Henley v. Wise

• Decision Date: 04 June 1969
• Docket Number: Civ. No. 69 H 28.
• Citation: 303 F. Supp. 62
• Parties: Mary HENLEY et al. v. George WISE et al.
• Court: U.S. District Court — Northern District of Indiana

303 F. Supp. 62

Mary HENLEY et al. v. George WISE et al.

Civ. No. 69 H 28.

United States District Court N. D. Indiana, Hammond Division.

June 4, 1969.

Saul I. Ruman, Hammond, Ind., Burton D. Wechsler, Gary, Ind., for plaintiffs.

Richard F. James, Hammond, Ind., Alfred R. Uzis, Lowell, Ind., for defendants.

Before KERNER, Circuit Judge, GRANT, Chief District Judge, and BEAMER, District Judge.

OPINION

BEAMER, District Judge:

Plaintiff Mary Henley is the operator of the Village Boutique in Hammond, Indiana. Plaintiff Robert Adams is an employee in the same establishment. The remaining plaintiffs are adult members of the general public who patronize the business. The complaint alleges that the Village Boutique is divided into two parts, one of which contains a music box, soft drink machine and counter for the sale of inexpensive merchandise with space for chairs and tables, while the other portion is used for the sale of unusual items costing as much as $200.00. It specifically alleges that the business, including the sale of reading matter, is conducted in a lawful manner. The defendant George Wise is Chief of the Hammond Police Department. Richard Uzubell, appearing for defendants John Doe, is a member of the same police department and defendant Henry Kowalczyk is Prosecutor of Lake County, Indiana.

The complaint alleges that defendants, acting under color of state law, subjected plaintiffs to deprivations of various civil rights guaranteed by the Constitution of the United States, particularly the First and Fourteenth Amendments thereof. Of special importance here is the allegation that plaintiff Robert Adams was arrested for the sale of an "underground" newspaper (Exhibit A to the complaint) Kaleidoscope, Chicago, Volume 1, Number 1, and charged with violation of Burns' Indiana Statutes § 10-2803 (1968 pocket part) (Indiana Acts of 1961 Ch. 40 § 1) and that plaintiff Mary Henley has been threatened with prosecution under the same statute. Plaintiffs seek to have the statute declared unconstitutional on its face and as applied to the particular publication, and ask for an injunction against its enforcement on the ground that it is unconstitutionally "overbroad" and vague and is being applied in bad faith.

The single district judge, in whose Court the matter was filed, requested the empaneling of a three-judge District Court pursuant to Title 28 U.S.C. § 2281, and the Chief Judge for the Seventh Circuit appointed this panel. The Court has heard oral argument and examined the pleadings, briefs and exhibits, but has not heard evidence. It has concluded that the statute under attack is not unconstitutional on its face, except as to a minor facet, but the publication in question is not obscene and is, therefore, constitutionally protected free speech under the First and Fourteenth Amendments to the United States Constitution. The Court has determined to issue a declaratory judgment to that effect, but to withhold injunctive relief until such time as the defendants herein demonstrate their bad faith in the application of the statute or other conduct. Accordingly, the Court will retain jurisdiction of the case to issue an injunction should such relief become necessary.

The action is brought under Title 42 U.S.C. § 1983 and jurisdiction is founded on Title 28 U.S.C. § 1343 providing for the original jurisdiction of district courts in actions to redress the deprivation of constitutional rights under color of state law. The plaintiffs specifically asked for an injunction against the enforcement of a state statute on the grounds that it is unconstitutional on its face and filed a request for a three-judge court. The statutory provisions, under Title 28 U.S.C. § 2834, for calling such a court were fully met, including service of notice upon the Attorney General and Governor of the State of Indiana, neither of whom appeared.

The defendants filed a motion to dismiss the case for failure to state a claim upon which relief could be granted and for lack of jurisdiction to grant the relief sought. The motion raised two questions. First, should the Court abstain from hearing the case or granting relief until such time as the state courts could construe and test the statute? Second, did the complaint itself reveal that the plaintiffs had an adequate remedy at law in the state criminal proceedings and were, therefore, entitled to no equitable relief? While these questions are theoretically separate, they must be considered together against the background of the action.

ABSTENTION

The argument behind both rests on the historical notion of comity between the state and federal sovereigns — that is, the federal courts should not interfere in state criminal proceedings and should allow the state courts an opportunity to construe the state statutes.

While both parties have offered a learned dissertation on the history of the doctrine, its modern application must be considered in the light of the decision of the Supreme Court in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) in which the Court found a three-judge district court erred in dismissing a complaint for declaratory and injunctive relief against the enforcement of the Louisiana Subversive Activities and Communist Control Law and the Louisiana Communist Propaganda Control Law. The plaintiffs had been arrested and their property seized on warrants which were later quashed. The local authorities, however, continued their efforts to prosecute through the grand jury. With regard to the "abstention" argument, the Court said, at 380 U.S. 479, 489-492, 85 S.Ct. 1116, 1122-1124, 14 L.Ed.2d 22, 30-31 (1965):

We hold that the abstention doctrine is inappropriate for cases such as the present one where, unlike Douglas v. City of Jeannette 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324, statutes are justifiably attacked on their face as abridging free expression, or as applied for the purpose of discouraging protected activities.

* * * * * *

(I)t is readily apparent that abstention serves no legitimate purpose where * * * as here, the conduct charged in the indictments is not within the reach of an acceptable limiting construction readily to be anticipated as the result of a single prosecution and is not the sort of `hardcore' conduct that would obviously be prohibited under any construction.

The Court further found that the defense of a criminal prosecution was not an adequate remedy at law where continuous or threatened bad faith prosecutions under challenged statutes will have a "chilling effect" upon the exercise of First Amendment rights. It is apparent from the opinion of the Supreme Court that a district court in cases such as this must decide the merits of plaintiff's case before considering whether to abstain from further action. The Court must decide whether the statutes in question (1) abridge free expression by their overbreadth or vagueness and/or (2) whether the conduct in question is within the reach of a constitutionally permissible and readily anticipated construction of the statute. We conclude that the doctrine of federal abstention or deference to state courts on the interpretation and constitutionality of state statutes is inapplicable where, as here, there is an alleged impairment of the federal constitutional right to freedom of speech. Dombrowski v. Pfister, 380 U.S. 479, 485-486, 489-490, 85 S.Ct. 1116, 14 L.Ed.2d 22, 27-28, 30-31 (1965); Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444, 452 (1967); Landry v. Daley, 280 F.Supp. 938, 946-949 (N.D.Ill.1967), prob. jurisdiction noted sub nom. Boyle v. Landry, 393 U.S. 974, 89 S.Ct. 442, 21 L.Ed.2d 436 (Dec. 9, 1968); and Landry v. Daley, 288 F. Supp. 200, 209-212 (N.D.Ill.1968).

This Court therefore found that it has the authority to hear plaintiffs' case and to determine the constitutionality of the statute on its face and as it applied to the particular publication. Since we have made such a finding we can determine what affirmative relief might be appropriate under the circumstances.

CONSTITUTIONALITY OF THE STATUTE

The statute under attack is Burns' Indiana Statutes § 10-2803 (1968 pocket part) (Indiana Acts of 1961, Ch. 40 § 1) which provides:

Whoever knowingly sells or lends, or offers to sell or lend, or gives away, or offers to give away, or in any manner exhibits or has in his possession, with or without intent to sell, lend or give away, any obscene, lewd, indecent or lascivious book, pamphlet, paper, drawing, lithograph, engraving, picture, daguerreotype, photograph, stereoscopic picture, model, case, instrument, or article of indecent or immoral use, or instrument or article for procuring abortion, or for self-pollution, or medicine for procuring abortion, or advertise the same, or any of them, for sale, or writes or prints any letter, circular, handbill, card, book, pamphlet, advertisement or notice of any kind, or gives information orally, stating when, how, where, or by what means, or of whom any of the obscene, lewd, indecent or lascivious articles or things, hereinbefore mentioned can be purchased, borrowed, presented or otherwise obtained, or are manufactured; or whoever knowingly manufactures, or draws and exposes, or draws with intent to sell or have sold, or prints any such articles or things, shall be fined not less that twenty dollars ($20.00) nor more than one thousand dollars ($1,000), to which may be added imprisonment for not less than twenty (20) days nor more than one (1) year; but nothing in this act shall be construed to affect teaching in regularly chartered medical colleges, or the publication of standard medical books, or the practice of regular practitioners of medicine or druggists in their legitimate business.

In argument, the plaintiffs have attacked two particular portions of this statute. In lines 5 and 6 they have attacked that portion of the statute which prohibits "possession * * * without intent to sell, lend or give...