Graham v. Hill

• Decision Date: 30 January 1978
• Docket Number: Civ. A. No. A-77-CA-188.
• Citation: 444 F. Supp. 584
• Parties: Robert GRAHAM, Jay C. Battershell, Gene Battershell, Christine Battershell, and Theatres of America, Inc. v. John L. HILL, Gerald C. Carruth, Philip K. Maxwell and Tom Curtis.
• Court: U.S. District Court — Western District of Texas

444 F. Supp. 584

Robert GRAHAM, Jay C. Battershell, Gene Battershell, Christine Battershell, and Theatres of America, Inc. v. John L. HILL, Gerald C. Carruth, Philip K. Maxwell and Tom Curtis.

Civ. A. No. A-77-CA-188.

United States District Court, W. D. Texas, Austin Division.

January 30, 1978.

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Roger Jon Diamond, Hecht, Diamond & Greenfield, Pacific Palisades, Cal., Charles R. Burton, Minton, Burton & Fitzgerald, Austin, Tex., for plaintiffs.

Tom A. Curtis, Dist. Atty., Amarillo, Tex., David Kendall, First Asst. Atty. Gen., and Gerald C. Carruth, Asst. Atty. Gen., Austin, Tex., for defendants.

MEMORANDUM OPINION AND ORDER

ROBERTS, District Judge.

This is a suit by the owner and manager of a movie theater and bookstore in Amarillo, Texas, against various local and state officials, involving claims for injunctive relief, declaratory relief, and damages pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201. Jurisdiction in this Court is founded on 28 U.S.C. § 1343. The only matter presently before the Court is Plaintiff Jay Battershell's Motion for Summary Judgment seeking a declaratory judgment that Texas Penal Code § 43.25¹ is overbroad and unconstitutional on its face. It is the Court's opinion that there are no material factual disputes relative to this motion, and that the only contested matters at this stage concern questions of law. After careful consideration of the legal issues presented, the Court is of the opinion, for the reasons hereinafter set forth, that Plaintiff's motion is meritorious, and that summary judgment should be granted.

Background

Jay Battershell is the owner of a combination motion picture theater and bookstore known as the Mini-Vue Theater in Amarillo, Potter County, Texas. Prior to October, 1976, the Theater was owned and operated by Theaters of America, Inc., a New Mexico corporation of which Jay Battershell was the president. Since that time, Battershell has operated his business as a sole proprietorship. The Mini-Vue Theater manager at all times pertinent hereto has been Robert Graham. On August 26, 1977, the Grand Jury of Potter County returned an indictment against Graham, alleging that Graham had violated Texas Penal Code § 43.25.²

The criminal action against Graham is currently pending before the 47th Judicial District Court of Potter County, in Cause No. 18,125-A on that Court's docket. Tom Curtis, the District Attorney for Potter County and the Defendant in this federal suit against whom declaratory relief is sought, is primarily responsible for the prosecution of the criminal case. Jay Battershell was not made a defendant in the criminal action against Graham, and no criminal charges under § 43.25 are currently pending against Battershell.

On September 29, 1977, the present suit was filed by Battershell, Graham, and Theaters of America, Inc., seeking a variety of relief.³ Plaintiffs alleged, inter alia, that the criminal prosecution of Graham was instituted and was being maintained by Tom Curtis in bad faith, and Plaintiffs requested an injunction against the ongoing prosecution of Graham. Plaintiffs have since conceded that such relief clearly is precluded by the federal abstention doctrine set forth in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny, and Robert Graham has withdrawn his request for injunctive and declaratory relief. Plaintiff Battershell, however, has continued to pursue his request for a declaratory judgment on the constitutionality of § 43.25. For the purposes of his summary judgment motion, Battershell is willing to stipulate that Curtis has not acted in bad faith in the prosecution of Graham.

The criminal trial of Graham in the 47th Judicial District Court originally was set for Monday, January 9, 1978. However, on January 6, the date set for argument in state court on Graham's motion to quash the indictment, District Attorney Curtis and counsel for Graham agreed to request the state court to defer to this Court with regard to a ruling on the constitutionality of § 43.25, and the state court acquiesced in the postponement of the trial pending a ruling by this Court on Battershell's Motion for Summary Judgment.

With that background, the Court now proceeds to consider the legal issues raised by Plaintiff's motion.

Standing

Although Battershell's Motion for Summary Judgment seeks only declaratory relief, this Court cannot, of course, exercise jurisdiction unless there is presented an actual live "case or controversy" for adjudication. 28 U.S.C. § 2201; Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). The basic requirement that there be adverse parties with adverse legal interests is no less strict in a declaratory judgment proceeding than in any suit where other relief is sought. See 6A Moore's Federal Practice ¶ 57.15.

Defendant Curtis initially contested the standing of Jay Battershell to challenge the constitutionality of Texas Penal Code § 43.25. Curtis asserted that Plaintiff has failed to show an immediate threat of prosecution under § 43.25, and that therefore no live case or controversy is presented. However, by agreeing on January 6 of this year to postpone the criminal trial of Robert Graham until this Court has ruled on the statute's constitutionality, Defendant apparently has retreated somewhat from his objection to Battershell's standing. An agreement by the parties to litigate a question in federal court cannot of itself confer jurisdiction or create a case or controversy where one does not otherwise exist, but the parties' desire to have an authoritative constitutional determination in the federal forum mitigates against the strictest interpretation of the standing requirements. See Craig v. Boren, 429 U.S. 190, 193, 97 S.Ct. 451, 454, 50 L.Ed.2d 397, 404 (1977).

Furthermore, apart from any agreement among the parties, the Court believes that Plaintiff Battershell clearly has standing to challenge § 43.25 on overbreadth grounds. The courts consistently have recognized an individual's standing to attack an allegedly overbroad statute which inhibits or chills conduct protected by the First Amendment, without regard to whether the Plaintiff's own conduct could be regulated or prohibited by a more narrowly drawn statute. Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975).

Still, in order to establish standing, a Plaintiff must present more than just allegations of a "subjective chill", and must present a claim of specific present objective harm or a threat of specific future harm from the prohibitions of the statute under attack. Bigelow v. Virginia, supra, 421 U.S. at 816-17, 95 S.Ct. 2222. Defendant claims that this element does not exist as to Jay Battershell because the Potter County District Attorney's office has not made a specific threat to prosecute Battershell. Tom Curtis has filed affidavits by his assistant district attorneys to the effect that they are not currently contemplating prosecution of Battershell for violation of § 43.25. Nonetheless, the Court is convinced that the requisite harm to Battershell is present here. Battershell is the owner of the Mini-Vue Theater and bookstore, as well as the owner of the real property on which it is located. The showing of motion pictures at his theater, even if for commercial purposes, clearly is protected by the First Amendment absent an adjudication that the material exhibited or sold there is obscene. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974). While the local District Attorney's office may not literally have uttered a "threat" to prosecute Battershell, it can hardly be contended that the indictment of his theater manager does not inhibit and threaten the exercise of Battershell's First Amendment rights as well as disrupt the operation of his business. Section 43.25 is aimed directly at those persons like Battershell who engage in the commercial sale and exhibition of motion pictures, and to the extent that the statute may overbroadly impinge on protected expression, he is obliged either to restrict his theater's movie offerings or to risk prosecution for exhibiting motion pictures made illegal by an unconstitutional statute. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 217, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); compare the situation of the vendor of beer in Craig v. Boren, supra, 429 U.S. at 194, 97 S.Ct. at 455, 50 L.Ed.2d at 405.

Under the circumstances, the Court is of the opinion that Plaintiff Battershell demonstrates the requisite threat of harm to establish a live case or controversy, and that he has standing to seek a declaratory judgment on the constitutionality of § 43.25.

Abstention

As an alternative to his challenge to Plaintiff's standing, Defendant has contended that this Court should abstain from ruling on the constitutional question by virtue of the Younger doctrine. Younger v. Harris, supra. The Younger doctrine, where appropriate, applies even though only declaratory relief, rather than an injunction against the enforcement of the state statute, is sought in the federal law-suit. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). Defendant would have the Court abstain and await the ruling of the Texas courts on the constitutionality of § 43.25.

As noted already, District Attorney Curtis and counsel for the Plaintiffs herein have advised the state court that they will defer further action in Robert Graham's criminal case until this Court has ruled on the present motion for summary judgment. Since the state officials and the state court have agreed to have the federal question heard first in federal court, the equitable basis for Y...