Lady Ann's Oddities, Inc. v. Macy

Decision Date23 July 1981
Docket NumberNo. CIV-81-500-BT,CIV-81-501-BT and CIV-81-504-BT.,CIV-81-500-BT
Citation519 F. Supp. 1140
PartiesLADY ANN'S ODDITIES, INC., et al., Plaintiffs, v. Robert H. MACY, et al., Defendants. Tariq SHABAZZ d/b/a Nature's Store, Plaintiffs, v. Robert H. MACY, et al., Defendants. Robert L. CONERLY d/b/a ABC Bookstore, Plaintiff, v. Robert H. MACY, et al., Defendants.
CourtU.S. District Court — Western District of Oklahoma


Arthur R. Angel, Oklahoma City, Okl., W. Greekmore Wallace, II, Sapulpa, Okl., Garvin A. Isaacs, Oklahoma City, Okl., for Lady Ann's Oddities, Inc., et al.

David C. Hood, Oklahoma City, Okl., for Tariq Shabazz d/b/a Nature's Store.

Joe Farnan, Ballard & Farnan, Purcell, Okl., for Robert L. Conerly d/b/a ABC Book Store.

Walter Powell, City Atty., Fred Anderson, Asst. Municipal Counsel, Stephen Korotash and George W. Paull, Jr., Asst. Dist. Attys., Robert H. Macy, Dist. Atty., Seventh Judicial Dist., Jan Eric Cartwright, Atty. Gen. of Okl., Gary W. Gardenhire and William Roy Holton, Jr., Asst. Attys. Gen., Oklahoma City, Okl., Karen Huff, Dist. Atty., Twenty First Judicial Dist., Rebecca J. Patten, Asst. Dist. Atty., Douglas Juergens, City Atty. of City of Norman, Norman, Okl., for defendants.


BRETT, District Judge.

On April 13, 1981 the Governor of Oklahoma signed into law S.B. 114 which proscribes the use, possession, manufacture or delivery transfer or sale of "drug paraphernalia." The same day, plaintiff Lady Ann's Oddities, Inc., et al., brought this action for a Temporary Restraining Order enjoining enforcement of the Act and sought a judgment declaring the Act unconstitutional. Shortly thereafter, two identical suits were filed requesting the same relief. By stipulation of the parties, all three cases have been consolidated into the present action.1

Plaintiff's request for a Temporary Restraining Order under F.R.Civ.P. 65(b) was effectively denied when the matter was set down for hearing on a preliminary injunction. After a series of hearings both in Oklahoma City (Western District) and Tulsa (Northern District), plaintiffs' counsel advised their respective clients to reopen their businesses, they having temporarily closed when the Act was signed into law. Lacking the requisite element of irreparable harm, plaintiffs withdrew the Application for Preliminary Injunction. The matter is now at issue and before the Court on plaintiffs' consolidated request for a declaratory judgment that S.B. 114 is unconstitutional.

The Act contains essentially four parts: Section 1, defining terms including "drug paraphernalia"; Section 2, enumerating certain "logically relevant factors" that may be considered by a court of law to determine whether an object is "drug paraphernalia"; Section 3, establishing four substantive offenses and prescribing punishment; and Section 4, detailing objects subject to forfeiture pursuant to a violation of the Act.

The Act is patterned after the so-called Model Act (MDPA) drafted by the Drug Enforcement Administration of the United States Department of Justice. The Model Act in various forms has been the subject of extensive prior litigation. See e. g., Hejira Corporation, d/b/a Budget Records and Tapes, Inc., et al., v. J. D. MacFarlane, et al. (10th Cir. 1981) 660 F.2d 1356; Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d 916 (6th Cir. 1980) (cited hereinafter as "Parma (6th Cir.)")2; The Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir., 1981); Back Door Records v. City of Jacksonville, 515 F.Supp. 857 (E.D.Ark., 1981); Nova Records, Inc. v. Sendak, 504 F.Supp. 938 (S.D.Ind.1980); The Town Tobacconist v. Degnan, Superior Court of New Jersey, Chancery Division, March 12, 1981; New England Accessories Trade Association v. Browne, 502 F.Supp. 1245 (D.Conn.1980); New England Accessories Trade Association v. City of Nashua, No. 80-530-D (D.N.H. Dec. 8, 1980); Brache v. County of Westchester, 507 F.Supp. 566 (S.D.N.Y.1981); Lazy J, Ltd. v. Borough of State College, No. 80-1167 (M.D.Pa. Jan. 30, 1981); World Imports, Inc. v. Woodbridge Township, 493 F.Supp. 428 (D.N.J.1980); Mid-Atlantic Accessories Trade Assn. v. State of Maryland, 500 F.Supp. 834 (D.Md.1980); Delaware Accessories Trade Assn. v. Gebelein, 497 F.Supp. 289 (D.Del.1980); Florida Business Men for Free Enterprise v. State of Florida, 499 F.Supp. 346 (N.D.Fla.1980); Weiler v. Carpenter, et al., 507 F.Supp. 837 (D.N.M. 1981); General Stores, Inc. v. City of Albuquerque, No. 81-0027-M Civil (D.N.M. March 25, 1981); Florida Businessmen for Free Enterprise v. City of Hollywood, No. 80-6157-Civ-NCR (S.D.Fla. Aug. 29, 1980); Tobacco Accessories and Novelty Craftsmen Merchants Association of Louisiana v. Treen, 501 F.Supp. 168 (E.D.La.1980). See also Record Revolution No. 6 v. City of Parma, Ohio, 492 F.Supp. 1157 (N.D.Ohio E.D.1980) (cited hereinafter as "Parma (N.D.Ohio E.D.)"). Moreover, in an apparent effort to overcome the constitutional objections raised by the Court in Parma (6th Cir.), the Oklahoma legislature deleted certain provisions otherwise contained in the Model Act. Furthermore, the legislature added an exclusionary clause not in the Model Act which states as follows: "Provided, however, drug paraphernalia shall not include separation gins intended for use in preparing tea or spice, clamps commonly used for constructing electrical equipment, water pipes designed for ornamentation or pipes designed for smoking tobacco." See Section 1.

Plaintiffs contend that the statute is vague and overbroad, that it violates the due process clause because it is not rationally related to any legitimate state goal and constitutes an unlawful taking of property, that it is an impermissible restraint upon freedom of speech, and that it violates the equal protection and commerce clauses of the United States Constitution.


The threshold question for the Court is whether the Act presents a case or controversy such that declaratory relief is appropriate. It is settled law that a genuine threat of criminal prosecution under legislation that allegedly is constitutionally defective does present an actual case or controversy. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). In the present case, the facts demonstrate that the threat of prosecution of plaintiffs under the Act is not "imaginary", "speculative" or "chimerical." Compare Id. Furthermore, two Federal Circuit Courts of Appeal have held that legislation similar to this statute presents a threat of criminal prosecution sufficient to constitute an actual case or controversy. See Parma (6th Cir.) and High Ol' Times, Inc. v. Busbee, 621 F.2d 135 (5th Cir. 1980). Therefore, this matter constitutes an actual case or controversy such that declaratory relief is appropriate.


Prior to an adjudication of the merits of this case, the Court must determine whether it is more appropriate to refrain from exercising jurisdiction under the abstention doctrine. As articulated in Railroad Commission of Texas v. Pullman Company, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), the abstention doctrine "counsels abstention in narrowly limited special circumstances...", "... where the challenged state statute is susceptible of a construction by the state judiciary that would avoid or modify the necessity of reaching a federal constitutional question." Babbitt v. United Farm Workers National Union, 442 U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) quoting Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973). Three United States Courts of Appeal have concluded that the Pullman doctrine should not be invoked with respect to legislation similar to S.B. 114. See The Casbah, Inc. v. Thone, supra; Parma (6th Cir.) and High Ol' Times, Inc. v. Busbee, supra. The Court concluded in these cases abstention was not proper because the law was challenged on its face and the issues raised were predominantly questions of federal constitutional law. Compare Steffel v. Thompson, supra.

In the present case, the statute comes before this Court for a review of its facial validity and clearly raises questions of federal constitutional law. Therefore, abstention is not the proper course of action.


The authority of the federal district court to assess the constitutionality of a state statute is extremely limited. It is settled law that constitutional questions are not to be entertained in federal courts in the absence of the strictest necessity. Taylor v. United States, 320 F.2d 843 (9th Cir. 1963) cert. denied 376 U.S. 916, 84 S.Ct. 671, 11 L.Ed.2d 612 (1964).

In addition, the scope of a constitutional inquiry into a state statute is substantively constrained. When a due process challenge to a legislative enactment is presented, the doctrine of separation of powers requires that the Court may examine only the constitutionality and not the wisdom of the legislation. Provost v. Betit, 326 F.Supp. 920 (D.Vt.1971). In determining the validity of the statute the Court's task is not to resolve issues of policy. Millard v. Harris, 406 F.2d 964 (D.C.Cir.1968). The courts are not guardians of liberties of people against the press of legislation which does not violate constitutional provisions and are not concerned with the expediency, necessity, utility and propriety of legislation as long as constitutional principles are not violated. See Sims v. Board of Education of Independent School District No. 22, 329 F.Supp. 678 (D.N.M.1971).

Once the narrow issue of constitutionality has been reached, the Court must consider the inherent limitations on its ability to construe the statute. It is settled law that a presumption of constitutionality attaches to all state statutes. E. g. Wells v. Hand, 238 F.Supp. 779 (M.D.Ga.1965) aff'd. sub nom., Wells v. Reynolds, 382 U.S. 39, 86 S.Ct. 160, 15 L.Ed.2d 32 (1965). If possible the Court should not construe a statute in such a manner as to raise a serious constitutional issue. Civil Aeronautics Board...

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    • May 14, 1982
    ...supra, 500 F.Supp. at 845; Kansas Retail Trade Co-op v. Stephan, 522 F.Supp. 632, 641 (D.Kan.1981); Lady Ann's Oddities, Inc. v. Macy, 519 F.Supp. 1140, 1150 (W.D.Okl.1981). Plaintiffs' final challenge to the definitional section is directed to its provision that "the trier of fact, in addi......
  • Russell v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • October 28, 1988 was amended in 1982 in response to the constitutional deficiencies found in Cole, 511 P.2d at 594-95, and Lady Ann's Oddities, Inc. v. Macy, 519 F.Supp. 1140 (W.D.Okla.1981). In Cole, the 1971 version of Section 2-405 was held invalid partly because it shifted the burden of proof to the ......

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