LaBauve v. Louisiana Wildlife & Fisheries Com'n

• Decision Date: 05 January 1978
• Docket Number: Civ. A. No. 75-158 and 76-847.
• Citation: 444 F. Supp. 1370
• Parties: Randolph Roy LaBAUVE et al. v. LOUISIANA WILDLIFE AND FISHERIES COMMISSION. Edward Allen MARTIN et al. v. J. Burton ANGELLE et al.
• Court: U.S. District Court — Eastern District of Louisiana

444 F. Supp. 1370

Randolph Roy LaBAUVE et al. v. LOUISIANA WILDLIFE AND FISHERIES COMMISSION.

Edward Allen MARTIN et al. v. J. Burton ANGELLE et al.

Civ. A. Nos. 75-158 and 76-847.

United States District Court, E. D. Louisiana.

January 5, 1978.

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Joseph Neves Marcal, III, New Orleans, La., for plaintiffs.

Peter E. Duffy, Metairie, La., for defendants.

Before AINSWORTH, Circuit Judge, HEEBE, Chief District Judge, and SEAR, District Judge.

HEEBE, Chief District Judge:

Plaintiffs are two commercial fishermen in Louisiana who have brought this action both individually and on behalf of the class of commercial fishermen for damages as well as declaratory and injunctive relief against the enforcement of LSA-R.S. 56:314, 409 and 495.¹ More particularly, plaintiffs contend (1) that the penalties set forth under sections 314 and 409 conflict, violating the fair notice requirements of Due Process of Law under the Fourteenth Amendment to the United States Constitution, (2) that the statutory provisions are vague insofar as they rely on the "inside and outside line" set forth in section 495 and hence violate due process requirements of fair notice, and (3) that section 409 favors sport fishermen over commercial fishermen in violation of the plaintiffs' rights to equal protection of the laws under the Fourteenth Amendment to the United States Constitution. The two named defendants in the original complaint are the Louisiana Wildlife and Fisheries Commission and the State of Louisiana. Jurisdiction is alleged under 28 U.S.C. §§ 1331, 1343(3), 2201 & 2202 and 42 U.S.C. §§ 1981, 1983, 1985 & 1988. Because the complaint seeks an injunction against the enforcement of a state statute, a three-judge court was requested and convened, pursuant to 28 U.S.C. §§ 2281, 2284.

The case is before us on a motion for preliminary injunction against the enforcement of these provisions by the Louisiana Wildlife and Fisheries Commission through its agents and employees. After a hearing in open court on a previous day and in light of the memoranda of law and fact submitted by the parties, the court is ready to rule. For the reasons set forth below, we abstain from deciding the motion of plaintiff Randolph Roy LaBauve and deny the motion of plaintiff Roy Prospere.

REASONS

I. ABSTENTION DOCTRINE

Because some evidence of state prosecutions of one or more plaintiffs during the pendency of this federal litigation was presented at the hearing on the preliminary injunction, the Court's first inquiry is whether it should abstain from making a determination in this case pursuant to the principles of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1970). For the following reasons, our answer is negative as to plaintiff Prospere but affirmative as to plaintiff LaBauve."

While no state prosecution against the named plaintiffs was pending at the time the instant suit was filed, the testimony of one of the plaintiffs, Randolph Roy LaBauve, was that as recently as June and July of 1976 he was arrested for alleged violation of the challenged fishing laws and on one occasion his nets were seized pursuant to section 409.

The question which we confront under the abstention doctrine is whether this ". . . federal litigation was in an embryonic stage and no contested matter had been decided" at the time plaintiff LaBauve engaged in the conduct for which the arrests were made. Doran v. Salem Inn, Inc., 422 U.S. 922, 929, 95 S.Ct. 2561, 2566, 45 L.Ed.2d 648 (1974). In Doran, one of three plaintiff corporations, which filed a complaint on August 9, 1973, challenging the constitutionality of an ordinance prohibiting topless dancing and which had complied with the ordinance through the date of filing the complaint, proceeded on August 10, 1973, (one day after filing) to violate said ordinance. On August 9, the temporary restraining order sought by plaintiffs had been denied instanter, but the plaintiffs' motion for a preliminary injunction was set for hearing on August 22, 1973. Supra at 924-925, 95 S.Ct. 2561. The Supreme Court held that Younger v. Harris, supra, mandated abstention by the federal court on the preliminary injunction motion of the corporation which commenced its violation one day after the denial of the temporary restraining order and filing of the complaint because the corporation which chose to violate the ordinance and subject itself to state prosecution ". . . rather than awaiting the normal development of its federal lawsuit . . . cannot now be heard to complain that its constitutional contentions are being resolved in a state court." Doran v. Salem Inn, Inc., 422 U.S. 922, 929, 95 S.Ct. 2561, 2567, 45 L.Ed. 648 (1974). The court also stated:

"When the criminal summonses issued against the violator corporation on the days immediately following the filing of the federal complaint, the federal litigation was in an embryonic stage and no contested matter had been decided. In this posture, the violator corporation's prayer for injunction is squarely governed by Younger." Id.

In light of the fact that this suit was filed on May 23, 1975, whereas the state criminal proceedings did not occur until June and July of 1976, this suit was hardly embryonic from the perspective of time actually elapsed when the criminal proceedings began. On the other hand, this litigation was in an embryonic stage to the extent that the only significant development in the record from the filing date through July 14, 1976, was the denial of the plaintiffs' motion for temporary restraining order on May 30, 1975. According to Doran, mere denial of a temporary restraining order left this case in the posture that "no contested matter had been decided" when plaintiff LaBauve engaged in conduct for which he was arrested on July 13, 1976. Plaintiff LaBauve, like the violating corporation in Doran, chose to engage in conduct subjecting himself to state prosecution rather than await the normal development of his federal lawsuit and hence Doran mandates abstention by this Court from deciding plaintiff LaBauve's motion for preliminary injunction pending determination of the pending state prosecution.

On the other hand, we do not have before us any evidence that plaintiff Roy Prospere was subject to state prosecution either at the time of filing this lawsuit or subsequent thereto. Mr. Prospere therefore falls into a category like the nonviolating corporations in Doran (i. e., the two corporations not subject to state prosecution) who were found entitled to pursue their motion for preliminary injunctive relief in federal court without being subject to Younger's restrictions. Id. at 930, 95 S.Ct. 2561.² Accordingly, we find no Younger basis for abstaining from determination of Mr. Prospere's claim.

Nor does there appear to be any basis, for a Pullman-type abstention. Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1940). Abstention was appropriate in the case of Dardar v. Louisiana Wildlife and Fisheries Comm'n, 413 F.Supp. 937, 941 (E.D.La.1975), which sets forth the major factors to be considered under Pullman, namely, whether the issue of state law is unclear and whether a decision by the state court would substantially modify or eliminate the federal constitutional question. Also, see Dubois v. State of Louisiana, 339 F.Supp. 685, 689-690 (E.D.La.1972). In Dardar, the Louisiana statute regulating the kind and size of shrimp nets allowed in Louisiana waters was challenged for vagueness. A criminal prosecution in that case would clearly establish whether the types of nets used by those plaintiffs were or were not proscribed. The uncertainty as to the scope of the statute's application would be cured by a state proceeding thus rendering unnecessary the determination of the federal vagueness challenge. Accordingly, the Dardar court correctly abstained.

While the instant case is like Dardar inasmuch as the errors in coordinates describing the "inside and outside line" in section 495 could be eliminated in a state proceeding, the instant case is significantly distinguishable from Dardar in that the decision of federal challenges based on (1) the alleged vagueness resulting from conflicting penalties, (2) the alleged vagueness due to the lack of artificial markers for the inside-outside line, and (3) the alleged invidious discrimination inherent in the challenged statutory provisions, will not be rendered unnecessary or modified by a state criminal proceeding. Thus, we conclude that Pullman-type abstention is not appropriate here.

Since neither Younger nor Pullman principles dictate abstention as regards plaintiff Prospere, we proceeded with the determination of whether the preliminary injunctive relief sought by him should be granted or denied.

II. PRELIMINARY INJUNCTION CRITERIA

In determining whether a preliminary injunction should issue, we are obliged to lend an ear to a quartet of factors:

(1) whether there is a substantial likelihood that plaintiff will succeed on the merits;

(2) whether there is a substantial threat that the plaintiff will suffer irreparable harm unless the preliminary injunction is granted;

(3) whether the threatened injury to the plaintiff if the injunctive relief is denied outweighs the possible harm to the defendant if the relief is granted; and

(4) whether the issuance of injunctive relief will serve the public interest.

Barrett v. Roberts, 551 F.2d 662 (5th Cir. 1977); Canal Authority v. Callaway, 489 F.2d 567 (5th Cir. 1974); Blackshear Residence Organization v. Romney, 472 F.2d 1197 (5th Cir. 1973); Allison v. Froehlke, 470 F.2d 1123 (5th Cir. 1972).

III. LIKELIHOOD OF SUCCESS ON THE MERITS

In our deliberations on the plaintiff's likelihood of success on the merits, we are guided by the precept that every statute is presumed to be constitutional and the court is bound to uphold the constitutionality of a statute when it...