Hearn v. Short

• Citation: 327 F. Supp. 33
• Decision Date: 16 April 1971
• Docket Number: Civ. A. No. 70-H-1376.
• Parties: Roy HEARN, d/b/a Martinique Lounge et al. v. H. B. SHORT, Chief of Police, Houston Police Department, et al.
• Court: U.S. District Court — Southern District of Texas

327 F. Supp. 33

Roy HEARN, d/b/a Martinique Lounge et al. v. H. B. SHORT, Chief of Police, Houston Police Department, et al.

Civ. A. No. 70-H-1376.

United States District Court, S. D. Texas, Houston Division.

April 16, 1971.

Ray Epps, Cutler & Epps, Houston, Tex., for plaintiff Martinique Lounge.

David H. Berg and Stuart M. Nelkin, Houston, Tex., for plaintiff-intervenor My-O-My Club.

Crawford C. Martin, Atty. Gen. of Texas and Jay Floyd, Asst. Atty. Gen. of Texas, Austin, Tex., for defendants Texas Dept. of Public Safety, Texas Rangers and Texas Liquor Control Board.

William A. Olson, City Atty. and Joseph G. Rollins, Senior Asst. City Atty., Houston, Tex., for defendant H. B. Short.

Before INGRAHAM, Circuit Judge, and SINGLETON and BUE, District Judges.

MEMORANDUM AND ORDER

INGRAHAM, Circuit Judge:

Plaintiff, Roy Hearn, d/b/a Martinique Lounge, sues the defendants H. B. Short, Chief of Police of the City of Houston; Houston Police Department; C. V. Kern, Sheriff of Harris County; Harris County Sheriff's Department; Texas Department of Public Safety; Texas Rangers and the Texas Liquor Control Board, seeking a temporary restraining order and preliminary and permanent injunctive relief enjoining the above named defendants from enforcing, and prosecuting violations of Articles 667-19B(b) and (g)¹ and 607(18)² of the Texas Penal Code and Article II § 36-43 of the City of Houston Municipal Code.³ Plaintiff additionally seeks a declaratory judgment that the enumerated Articles of the Texas Penal Code and the City of Houston Municipal Code are void for vagueness and impermissible overbreadth. Plaintiff invokes the jurisdiction of this court pursuant to Title 28 U.S.C. §§ 2281 and 2284 and Title 42 U.S.C. § 1983.

The Martinique Lounge is joined in this action by the owner and operator of another lounge, the My-O-My Club, which was permitted to intervene as a party plaintiff.

Since the plaintiff prays for injunctive relief from the operation and enforcement of state criminal statutes having general application and allegedly violative of the Federal Constitution, a statutory three-judge court was convened pursuant to Title 28 U.S.C. § 2281, et seq.

A succinct summary of the pertinent facts preceding the joining of issue is as follows: On December 17 and again on December 19, 1970, the Martinique Lounge was "raided" by Houston police officers and other authorities, and certain employees therein were arrested and charged with violation of the State vagrancy statute, Note 2, supra, and violation of the city ordinance prohibiting "indecent dancing", note 3, supra. On December 22, 1970, plaintiff made application to a single judge of this district for a temporary restraining order enjoining the defendants from enforcing the provisions of the enumerated statutes, which application was granted.

On January 1, 1971, authorities "raided" the My-O-My Club and as a result thereof the manager, assistant manager and various employees were arrested and charged with violation of Article 667-19B(b) and (g) of the Texas Penal Code, Note 1, supra. After denial of an oral request for a temporary restraining order presented to one of the judges of this panel, the My-O-My Club sought and received, on January 4, 1971, permission from the three-judge panel to intervene in the main suit as a party plaintiff. Accordingly, the temporary restraining order previously granted was extended and enlarged to include the My-O-My Club within its command.

A further recitation of the factual history of the litigation is unnecessary for in cases such as the one at bar—where the State's criminal legal machinery has been set in operation prior to the plaintiff's seeking of redress in Federal Court—the Supreme Court has afforded the lower Federal Courts a polestar by which to guide the exercise of their equitable powers—one which is dispositive of the issues presented herein.

On February 23, 1971, the Supreme Court handed down its decision in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (Feb. 23, 1971) and five companion cases—the dominant theme of which was the propriety of a Federal district court intervening in pending State criminal prosecutions by way of injunctive and declaratory relief. Predicated upon the fundamental policy against Federal interference with State criminal prosecutions, the Court in Younger, supra, made it abundantly clear that failing proof of bad faith prosecution, harassment or other unusual circumstances evincing irreparable injury which is "both great and immediate", a Federal district court entertaining a challenge to a State penal statute alleged to be facially unconstitutional should, on the basis of comity and the principles of federalism, abstain from interfering in the State criminal prosecution, in esse at the time the Federal suit is filed. The corollary of course is that:

"The accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection."

Fenner v. Boykin, 271 U.S. 240, 243-244, 46 S.Ct. 492, 493, 70 L.Ed. 927 (1926), quoted in Younger, supra, 401 U. S. at 45, 91 S.Ct. at 751.

Having reviewed the entire record in this case, we are convinced that neither plaintiff nor intervenor have demonstrated irreparable injury as that concept is articulated in Younger, supra, and its companion cases, nor can either point to a high probability of infringement of a constitutional right which is incapable of being fully adjudicated and protected in defense of the State criminal prosecutions.

We reiterate that the State's criminal processes were set in operation as to both the plaintiff and the intervenor prior to the entry of each through the portals of the Federal courthouse. Moreover, an accused may not avoid the result mandated by the Supreme Court in circumstances such as these by pleading guilty to the State charge without raising his constitutional defense, thereby bypassing the opportunity available in the State forum—for such procedural manipulations not only violate the spirit of Younger but are unavailing. The controlling factor is whether State criminal proceedings are pending at the time Federal relief is sought, a circumstance clearly evident in the instant case.

As a final matter we note that the plaintiff additionally seeks injunctive relief from the operation and enforcement of a municipal ordinance, Note 3, supra. That consideration of such an ordinance local only in character and scope is without the purview of this three-judge court is clear. Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (February 23, 1971); Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967). As such, we make no determination as to this aspect of the case and remand that claim for relief to the single District Judge for his action and disposition.

Accordingly, it is ORDERED as follows:

(1) The temporary restraining order heretofore entered on December 22, 1970, and thereafter extended pending resolution of the merits is hereby dissolved, vacated and set aside;

(2) The prayer for injunctive and declaratory relief sought by plaintiff and intervenor as to Articles 667-19B(b) and (g) and 607(18) of the Texas Penal Code is hereby denied and the claims for relief are dismissed at plaintiff's and intervenor's cost.

(3) The claim for relief from the operation and enforcement of Article II § 36-43 of the City of Houston Municipal Code is remanded to a single District Judge for his action and disposition.

SINGLETON, District Judge (specially concurring):

I feel reluctantly compelled to follow the recent holdings of the Supreme Court in Younger v. Harris, supra, and its companion cases. Those cases and the various opinions written in connection therewith have created in my mind a legal caldron with respect to the constitutional questions discussed, particularly with reference to proper injunctive and declaratory relief by a federal three-judge court. If as a federal district judge I could properly adopt the opinion of Mr. Justice Brennan with whom Mr. Justice White and Mr. Justice Marshall joined, concurring in part and dissenting in part, in Perez v. Ledesma, 401 U.S. 82, 93, 91 S.Ct. 674, 678, 27 L.Ed.2d 701 (1971), I would do so and meet the issues raised in the case before us head-on. Because there are no pending criminal charges against the My-O-My Club, declaratory relief, as pointed out by Mr. Justice Brennan, would seem historically appropriate. However, since dismissal is compelled on the bases pointed out in this court's majority opinion, no precedential value could be gained by further discussion of the substantive issues involved. However, I do have strong feelings that the first amendment, and its proscription against censorship, applies to the legal issue of obscenity (if in fact there is any such legal concept) and in this connection the standards set forth in Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967) should be implemented in cases such as the one before us. See also Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971); United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672, 680 (1968).

BUE, District Judge (concurring specially):

I fully concur in the result reached and the reasoning employed in the Court opinion in this case. However, while such dismissal can be dispositive of the bare legal issues before this Court, it scarcely comes to grips with the malady which has spread at an ever-increasing rate in recent years—the use and abuse of First Amendment protection under the Constitution as a vehicle for the commercial distribution of obscenity in its various forms. Consequently, I feel compelled to write in this instance with a somewhat broader sweep, not to render an opinion where none is called for, but to draw together into some...