Landreth v. Hopkins

• Decision Date: 22 September 1971
• Docket Number: Civ. A. No. 1729.
• Citation: 331 F. Supp. 920
• Parties: Charles N. LANDRETH et al., Plaintiffs, v. William D. HOPKINS, etc., Defendant.
• Court: U.S. District Court — Northern District of Florida

331 F. Supp. 920

Charles N. LANDRETH et al., Plaintiffs, v. William D. HOPKINS, etc., Defendant.

Civ. A. No. 1729.

United States District Court, N. D. Florida.

September 22, 1971.

Thomas A. Edmonds, Tallahassee, Fla., for plaintiffs.

Howell L. Ferguson, Asst. Atty. Gen., Tallahassee, Fla., for defendant.

Before RONEY, Circuit Judge, and ARNOW and MIDDLEBROOKS, District Judges.

OPINION-ORDER

MIDDLEBROOKS, District Judge:

This cause is before this duly constituted Three-Judge Court in which plaintiffs seek declaratory and injunctive relief pursuant to Title 28, United States Code, Sections 2201 and 2281, to have § 797.01 and § 797.02, Florida Statutes, F.S.A. declared unconstitutional as applied to plaintiffs as being violative of their federally protected constitutional rights under the First and Sixth Amendments of the Constitution of the United States. It is also alleged that prosecution under the above described statutes would be a further abridgement of constitutional rights guaranteed by the Due Process and Equal Protection clauses of the Fourteenth Amendment.

Generally the threshold issue before a statutory Three-Judge Court is whether there is in fact and in law a substantial constitutional question presented in the complaint. See Jackson v. Choate, 404 F.2d 910 (5th Cir. 1968). See also Mayhue's Super Liquor Store, Inc. v. Meiklejohn, 426 F.2d 142 (5th Cir. 1970). Guided by the rule of Jackson, supra, this Court, sitting as a single Judge, made application for the convening of a Three-Judge Court. That application having been granted, this cause came on to be heard upon pending motion of defendant to dismiss the complaint. Prior to hearing before this Court the parties on August 25, 1971, entered into a stipulated statement of facts which document has been filed and made a part of this Court's records. Testimony has also been taken and transcribed and made a part of this record.

The facts pertinent to this action may be chronicled as follows:

Plaintiffs Landreth and Sandon are active participants in abortion counseling in the Tallahassee, Florida, area. These counseling services are rendered free of charge to prospective counselees. If after receiving counseling advice and other appropriate information and instruction the counselee wishes to obtain an abortion she is referred to an abortion clinic in the State of New York. Because of these activities, plaintiffs believe they will be arrested and prosecuted and for this reason this suit was brought.

The laws of Florida under which the alleged prosecution is threatened provide in part:

"Whoever with intent to procure miscarriage of any woman * * * advises * * * or with like intent aids or assists therein, shall * * * be punished by imprisonment * * * or fine * * *." Chapter 797, § 797.01, Florida Statutes.

"Whoever knowingly advertises, * * * distributes or circulates * * * any pamphlet, printed paper, book, newspaper notice, advertisement or reference containing words or language giving or conveying any notice * * * to any person * * * from whom, or to any place * * * where * * * any advice, direction, information or knowledge may be obtained for the purpose of causing or procuring the miscarriage of any woman pregnant with child, shall be punished by imprisonment * * * or by fine * * *." Chapter 797, § 797.02, Florida Statutes.

The defendant Hopkins has conducted investigations into the activities of the plaintiffs Landreth and Sandon to determine if violations of Florida law may have occurred and has submitted the fruits of his investigation to the Leon County Grand Jury for their consideration to determine if plaintiffs' practices are in violation of Florida law. As of this date there have been no grand jury indictments returned against these plaintiffs and no plaintiff has been arrested or prosecuted. Because of the alleged imminency of prosecution plaintiffs Sandon and Landreth abandoned their counseling service on or about July 9, 1971, and have not resumed same as of this date.

Plaintiffs Bell, Jones and Wailes are counselees of plaintiffs Landreth and Sandon and as such have received advice relative to problem pregnancies. Each of these female plaintiffs has received an abortion in the State of New York either as a direct or indirect consequence of the counseling efforts of Landreth and Sandon; however, it appears without dispute that the plaintiffs Bell, Jones and Wailes have not been the focus of any investigation nor have they been or now are they threatened with prosecution by the defendants. Additionally it appears at present that these plaintiffs have no need for counseling services.

It is in this legal setting that defendant has as the fountainhead of his argument that sextet of cases¹ of which Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), is in the forefront.

Focusing attention to the alleged threatened conduct of the defendant Hopkins the strongest intimation of immediate and irreparable injury which might befall plaintiffs is from that statement contained in paragraph 6 of the complaint:

"As a direct and proximate result of said conduct by defendant, plaintiffs Landreth and Sandon have been intimidated in the free exercise of their first amendment freedoms of speech and religion, and have felt compelled to terminate their counseling activities as delineated in paragraph 3 above."²

Further examination of the record discloses that defendant intends to prosecute any violations of Section 797.02, Florida Statutes, F.S.A., in the event indictments are returned against plaintiffs, but he has never publicly or privately threatened any of the plaintiffs with arrest or prosecution. It is also worthy of note that under Florida Law, as conceded by the parties, the defendant State Attorney may file direct informations for violations of the statutes attacked if he wishes to do so. This he has not done.

If the recent pronouncements in the Younger series are not sufficient, formidable impediments to plaintiffs' entry into the domain of federal jurisdiction, then attention is called to Watson v. Buck, 313 U.S. 387, 61 S.Ct. 962, 85 L. Ed. 1416 (1941), wherein additional prohibitory language will be found.

In Buck, supra, a Florida statute forbidding unlawful combinations of musical authors and composers was subjected to constitutional attack when members of the American Society of Composers, Authors and Publishers (ASCAP) became fearful of prosecution by the Attorney General of Florida and the state's prosecuting attorneys for possible violation of the statutory plan in question. "The original bill alleged that the defendants had threatened to—and would unless restrained—enforce the 1937 statute `in each and all of its terms and the whole thereof, and particularly against these complainants and others similarly situated * * *' and that as a consequence complainants would suffer irreparable injury and damages." Ibid. at 398, 61 S.Ct. at 965. The Three-Judge District Court, finding that "`Defendants have threatened to and will enforce such State Statutes against these Complainants and others similarly situated in the event that such Complainants and others similarly situated refuse to comply with said State Statutes or do any of the acts made unlawful by said State Statutes.'" Ibid. at 399, 61 S.Ct. at 966, granted relief. Upon review the United States Supreme Court reversed.

As in Younger, supra, there was an absence of any equitable basis for invoking the federal authority to suspend the operation of a viable state statute. Aware that this remedy should have only infrequent application in those instances where it was clearly manifest that constitutional rights would be impinged, the Court delivered this teaching:

"Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional. `No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and hence unlawful is not alone ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid.' Beal v. Missouri Pacific Railroad Corp., 312 U.S. 45, 49 61 S.Ct. 418, 420, 85 L.Ed. 577. A general statement that an officer stands ready to perform his duty falls far short of such a threat as would warrant the intervention of equity. And this is especially true where there is a complete absence of any showing of a definite and expressed intent to enforce particular clauses of a broad, comprehensive and multi-provisioned statute. For such a general statement is not the equivalent of a threat that prosecutions are to be begun so immediately, in such numbers, and in such manner as to indicate that virtual certainty of that extraordinary injury which alone

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