Grove Press, Inc. v. Flask, 19940.
| Decision Date | 21 October 1969 |
| Docket Number | No. 19940.,19940. |
| Parties | GROVE PRESS, INC., et al., Plaintiffs-Appellants, v. Anthony B. FLASK et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Bernard A. Berkman, Berkman, Gordon & Kancelbaum, Cleveland, Ohio, for appellants.
Vincent E. Gilmartin, Pros. Atty., Mahoning County, Youngstown, Ohio, Patrick J. Melillo, Director of Law, Youngstown, Ohio, for appellees.
Before WEICK, EDWARDS and PECK, Circuit Judges.
Plaintiff-appellants have moved for an injunction pending appeal to restrain defendant-appellees from interfering with, hindering or obstructing the distribution and exhibition of the film "I Am Curious (Yellow)" by any means, including seizing any print of the film, arresting or prosecuting plaintiff-appellants or their agents and employees, or prosecuting civil proceedings against the film, or threatening to take any of such actions. The motion was submitted to Judge Weick at his chambers in Akron, Ohio, on September 26, 1969, upon arguments of counsel for the respective parties, and leave was granted to file briefs, the last one being submitted on October 17, 1969. A panel of this Court was then constituted under our Rule 9.
The action in the District Court was for injunctive and declaratory relief. It sought to declare the Ohio Nuisance Statutes (being Sections 3767.01 to 3767.11, inclusive of the Ohio Revised Code) to be void in violation of the Constitution of the United States, and to enjoin any proceedings thereunder, as well as criminal prosecutions for violation of obscenity ordinances of the City of Youngstown.
Plaintiffs applied to the District Judge for a temporary restraining order on September 16, 1969, which was not granted, and the Court set the application for preliminary injunction for hearing on September 23, 1969. After hearing arguments, but without receiving any evidence, the Court dismissed the action without prejudice on the ground that plaintiffs had failed "to seek a three Judge Court under Section 2284 of Title 28 of the United States Code."
Title 28 U.S.C. § 2281 provides that an interlocutory or permanent injunction to restrain the enforcement of a state statute shall not be granted upon the ground of the unconstitutionality of such statute unless the application is heard and determined by a District Court of three Judges under Section 2284 of said title. It was for the court, and not the plaintiffs, to determine the need for a three-Judge Court. The Court did determine that a three-Judge Court was necessary, but dismissed the complaint merely because plaintiffs had not requested it. In so doing the Court erred. Borden Co. v. Liddy, 309...
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Grove Press, Inc. v. Flask
...28 of the United States Code. On October 20, 1969, the Court of Appeals for the Sixth Circuit reversed the District Court dismissal, 417 F.2d 1062, and remanded the case with instructions to "proceed with dispatch" on an action pursuant to Sections 2281, 2284 of Title 28 of the United State......
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Hopson v. Schilling
...of a three-judge court, the question is jurisdictional and may be raised by the court sua sponte. See, e. g., Grove Press, Inc. v. Flask, 417 F.2d 1062 (6th Cir. 1969). In a case properly to be heard by a three-judge court, the single judge must inquire into the jurisdictional facts necessa......
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International News Distributors, Inc. v. Shriver
...is immaterial, since it is the duty of the district court to determine whether there is a need for such a court. Grove Press, Inc. v. Flask, 417 F.2d 1062 (6th Cir. 1969). The duty of the district judge to request a three-judge court is not absolute, however, and if he determines that there......
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Greenspan v. Klein
...at any time before final hearing.(Emphasis added).7 See, e.g., Noe v. True, 507 F.2d 9, 11 (6th Cir. 1974); Grove Press, Inc. v. Flask, 417 F.2d 1062, 1063 (6th Cir. 1969).8 The statute itself provides "A single judge shall not . . . hear and determine any application for an interlocutory i......