Landreth v. Hopkins, Civ. A. No. 1729.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
Writing for the CourtRONEY, Circuit , and ARNOW and MIDDLEBROOKS
Citation331 F. Supp. 920
PartiesCharles N. LANDRETH et al., Plaintiffs, v. William D. HOPKINS, etc., Defendant.
Decision Date22 September 1971
Docket NumberCiv. A. No. 1729.

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.


331 F. Supp. 921

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.

331 F. Supp. 922
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...

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2 practice notes
  • Independent Tape Merchant's Association v. Creamer, Civ. No. 72-73.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • July 24, 1972
    ...Corp., 1941, 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577; Musick v. Jonsson, 5 Cir. 1971, 449 F.2d 201; Landreth v. Hopkins, N.D.Fla.1971, 331 F.Supp. 920; cf. Boyle v. Landry, Relative to plaintiff's contention that prosecution will destroy the business which its members have developed in Penn......
  • State of Florida v. Richardson, Civ. A. No. 1826.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • March 13, 1973
    ...controversy". See Roe v. Wade, supra, at p. 128, 93 S.Ct. at p. 714. Compare this Court's earlier decision in Landreth v. Hopkins, 331 F.Supp. 920 (N.D.Fla.1971) (Three-Judge Court). See also S. v. D., ___ U.S. ___, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). 15 Compare also Roe v. Wade, sup......
2 cases
  • Independent Tape Merchant's Association v. Creamer, Civ. No. 72-73.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • July 24, 1972
    ...Corp., 1941, 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577; Musick v. Jonsson, 5 Cir. 1971, 449 F.2d 201; Landreth v. Hopkins, N.D.Fla.1971, 331 F.Supp. 920; cf. Boyle v. Landry, Relative to plaintiff's contention that prosecution will destroy the business which its members have developed in Penn......
  • State of Florida v. Richardson, Civ. A. No. 1826.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • March 13, 1973
    ...controversy". See Roe v. Wade, supra, at p. 128, 93 S.Ct. at p. 714. Compare this Court's earlier decision in Landreth v. Hopkins, 331 F.Supp. 920 (N.D.Fla.1971) (Three-Judge Court). See also S. v. D., ___ U.S. ___, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). 15 Compare also Roe v. Wade, sup......

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