Kois v. Breier
| Decision Date | 05 May 1970 |
| Docket Number | Civ. A. No. 70-C-97. |
| Parties | John R. KOIS, Plaintiff, v. Harold O. BREIER, Individually and as Chief of Police of the City of Milwaukee, Wisconsin, E. Michael McCann, Individually and as District Attorney of the County of Milwaukee, Wisconsin, Their Agents, Assistants, Successors, Employees, Attorneys and All Persons Acting In Concert or Cooperation With Them or at Their Direction or Under Their Control, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
James M. Shellow and Robert H. Friebert, Milwaukee, Wis., for plaintiff; Percy L. Julian, Jr., Madison, Wis., of counsel.
John J. Fleming, City Atty., by Thomas E. Hayes and Theophilus C. Crockett, Asst. City Attys., Milwaukee, Wis., for defendant Harold A. Breier.
John Peter Genrich, Asst. Dist. Atty., and William D. Gardner, Deputy Dist. Atty., Milwaukee, Wis., for defendant E. Michael McCann.
Plaintiff brings this action for declaratory and injunctive relief. He seeks a judgment declaring that the February 13-26, 1970 Vol. 2 No. 26 (#52) issue of the newspaper Kaleidoscope is not obscene as a matter of law, and injunctive relief from alleged threatened prosecution under state obscenity statutes.
Kois is the editor and publisher of the newspaper Kaleidoscope which is sold and distributed in Milwaukee and the State of Wisconsin. Defendant Breier is the Chief of Police of the City of Milwaukee. Defendant McCann is the District Attorney of Milwaukee County, Wisconsin.
Kois commenced this action on February 19, 1970, by filing the complaint which alleged that certain state obscenity statutes (§§ 944.21, 944.22, and 944.23, Wis.Stats.) were unconstitutional and that the defendants had threatened plaintiff with prosecution under these statutes without hope of ultimate success, with the purpose of discouraging plaintiff's exercise of First Amendment rights.
On February 20, 1970, a hearing on plaintiff's motion for a temporary restraining order was held, and upon consent of defendants, by their counsel, such order was entered. By the terms of that order, which has been in effect until now, the defendants were enjoined from interfering with the distribution or sale of the February 13-26 issue of Kaleidoscope and from prosecuting plaintiff for any alleged violation arising out of the sale or distribution of that issue of Kaleidoscope pending a final determination of plaintiff's motion for preliminary injunction. In the course of that hearing counsel for plaintiff withdrew those portions of the complaint which challenged the constitutionality of the state statutes. The court indicated that plaintiff could renew his constitutional challenge if he wished.
On February 24, 1970, counsel for defendant Breier and plaintiff conferred with the court, at which time defendant Breier made a motion to convene a three-judge court to consider the case.
On March 2, 1970, there was a hearing on plaintiff's motion for declaratory judgment and preliminary and permanent injunction and on defendant Breier's motion to convene a three-judge court.
The issues before the court are:
1. Should defendant Breier's motion to convene a three-judge court to consider the case be granted?
2. Does this court have jurisdiction over plaintiff's motions for declaratory and injunctive relief?
3. Is the February 13-26 issue of the newspaper Kaleidoscope obscene as a matter of law?
4. Should plaintiff's request for injunctive relief restraining defendants from enforcing the state obscenity statutes against plaintiff for the sale and distribution of the subject issue of Kaleidoscope be granted?
Defendant Breier contends that a three-judge court should be convened to consider this case. Plaintiff's complaint originally alleged the unconstitutionality of several state statutes as the basis for injunctive relief. Section 2281, 28 U.S. C., requires a three-judge court to consider cases where the operation of a state statute is sought to be enjoined on the basis of the unconstitutionality of such statute. Defendant Breier maintains that the original complaint is determinative of the question of whether a three-judge court should be convened, and that since the complaint herein contained allegations requiring a three-judge court, a single-judge court cannot now consider the case.
Breier further contends that even if plaintiff could have amended his complaint so as to remove the constitutional challenge and consequent requirement of a three-judge court, such amendment was not effected in this case.
Rule 15(a) of the Federal Rules of Civil Procedure provides that "A party may amend his pleading once as a matter of course at any time before a responsive pleading is served * * *." Plaintiff withdrew those portions of his complaint dealing with the constitutionality of the state statute on February 20, 1970, at the hearing on plaintiff's motion for a temporary restraining order, well before the defendants filed their answers on March 9, 1970.
The transcript indicates that counsel for plaintiff withdrew the constitutional challenge in the following colloquy with the court:
Whether or not plaintiff could have reamended his complaint to bring the constitutional challenge before the court either before or after the defendants filed their answers is not at issue now. Plaintiff requested that the constitutional challenge to the Wisconsin statutes be withdrawn, and I granted his request. Plaintiff could have withdrawn his constitutional challenge without leave of the court by amending his complaint before the defendants' answers were filed. 3 Moore, Federal Practice, ¶ 15.072, at 850 (2d ed. 1968). Defendant Breier has in no way indicated that the withdrawal of plaintiff's constitutional challenge was not timely or that it would prejudice defendants' case. Therefore, I find that plaintiff's withdrawal of his constitutional challenge to the state obscenity statutes effected a timely amendment of the complaint. The challenge to the Wisconsin obscenity statutes is no longer before this court and is not an issue in the case. This is no longer a suit for injunctive relief against operation of a state statute on the ground of alleged unconstitutionality of the statute, and therefore a three-judge court is not required to consider the case. Therefore, defendant Breier's motion to convene a three-judge court is denied.
It is plaintiff's contention that this court has jurisdiction over his claim for injunctive relief under 28 U.S.C. § 13431 and 42 U.S.C. § 19832, and further, that the court has independent jurisdiction under 28 U.S.C. § 13313 to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202 regarding the obscenity vel non of the newspaper.
§ 1343 Jurisdiction
Plaintiff alleges that defendants have threatened him with prosecution under the state obscenity statutes and that such threats deprive him of his First Amendment rights. Section 1343, 28 U.S.C., provides for the original jurisdiction of district courts in actions to redress the deprivation of constitutional rights under color of state law. The Supreme Court has recognized that the threat of prosecution can constitute an effective prior restraint on free expression. Bantam Books v. Sullivan, 372 U. S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). See also Poulos v. Rucker, 288 F.Supp. 305 (D.C.Ala.1968). Therefore, jurisdiction over plaintiff's claim for injunctive relief under 28 U.S.C. § 1343 and 42 U.S.C. § 1983 is proper.
§ 1331 Jurisdiction
For a federal district court to have § 1331 jurisdiction of an action it is necessary that the amount in controversy exceed $10,000 and that the action arise under the Constitution, laws, or treaties of the United States.
As the Supreme Court recently noted, the intent of Congress in enacting § 1331(a) was to provide a broad jurisdictional grant to the federal courts. Powell v. McCormack, 395 U.S. 486, 515, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). The Powell court said:
* * *" Id. 395 U.S. at 514, 89 S.Ct. at 1960.
The resolution of the plaintiff's claim that the subject issue of Kaleidoscope is not obscene depends entirely on the construction of the First Amendment of the Constitution. This is the kind of suit that is authorized by § 1331(a). Id. 395 U.S. at 516, 89 S.Ct. 1944. See also Poulos v. Rucker, 288 F.Supp. 305 (M.D. Ala. 1968), where the court exercised § 1331 jurisdiction over the plaintiff's request for declaratory judgment as to the obscenity vel non of certain publications.
While plaintiff has satisfied the subject matter requirement of § 1331, he has not satisfied the requirement that the matter in controversy exceed $10,000. Plaintiff in an uncontroverted affidavit states that if he does not prevail on the obscenity question, he will be prosecuted under the state obscenity statutes, and that such prosecution threatens him with advertising and sales losses and postponement of a new publishing venture which could result in total losses in excess of the requisite $10,000. When determining the amount in controversy, the collateral effect of the judgment, such as operating as an estoppel in a subsequent proceeding or affecting another suit by virtue of stare decisis, cannot be taken into consideration. 1 Moore, Federal Practice, ¶ 0.912 (2d ed. 1964). The effect of a declaratory judgment that the subject newspaper is not obscene would only operate to...
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CONSERVATION LAW FOUND. OF NEW ENGLAND v. Browner
...of Congress in enacting federal question jurisdiction is to provide broad jurisdictional grant to federal courts, Kois v. Breier, 312 F.Supp. 19, 23 (E.D.Wis.1970) and a sympathetic and knowledgeable forum for the vindication of their federal rights. Hunter v. United Van Lines, 746 F.2d 635......
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Scherr v. Municipal Court
...might have merit. But in the first place, there is no such authority. Appellant cites three cases involving newspapers. In Kois v. Breier (E.D.Wis.) 312 F.Supp. 19, the United States district judge held that a newspaper was not, as a matter of law, obscene although it contained photographs ......