Lewis v. Baxley

• Decision Date: 21 December 1973
• Docket Number: Civ. A. No. 4182-N.
• Citation: 368 F. Supp. 768
• Parties: Jesse J. LEWIS and the National Democratic Party of Alabama, an Association incorporated and operating under the laws of the State of Alabama, Plaintiffs, Sigma Delta Chi, Professional Journalistic Society, Alabama Professional Chapter, Plaintiff-Intervenor, v. William BAXLEY, as Attorney General of Alabama, Defendant.
• Court: U.S. District Court — Middle District of Alabama

368 F. Supp. 768

Jesse J. LEWIS and the National Democratic Party of Alabama, an Association incorporated and operating under the laws of the State of Alabama, Plaintiffs,

Sigma Delta Chi, Professional Journalistic

Society, Alabama Professional Chapter, Plaintiff-Intervenor, v. William BAXLEY, as Attorney General of Alabama, Defendant.

Civ. A. No. 4182-N.

United States District Court, M. D. Alabama, N. D.

December 21, 1973.

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Morris S. Dees, Jr., Joseph J. Levin, Jr., Charles F. Abernathy, of Montgomery, Ala., and Orzell Billingsley Jr., Birmingham, Ala., for plaintiffs and plaintiff-intervenor.

William J. Baxley, Atty. Gen., George Beck, Deputy Atty. Gen., and George W. Royer, Jr., Asst. Atty. Gen., Montgomery, Ala., for defendant.

Before RIVES, Circuit Judge, and JOHNSON and VARNER, District Judges.

JOHNSON, District Judge:

Plaintiffs,¹ suing on their own behalf and as representatives of a class composed of newsmen reporting on state governmental activities in Alabama, seek to have one section of the new Alabama ethics statute² declared unconstitutional on its face and to have its enforcement enjoined. Plaintiffs invoke the jurisdiction of this Court pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343, 2201, and 2284. Defendant William Baxley is Attorney General of the State of Alabama and is sued in his capacity as such³ and as representative of a class of defendants composed of those empowered to take action against plaintiffs under the provisions of the ethics statute.⁴

It appearing that the constitutionality of a statute of statewide application was in question, a three-judge court was constituted pursuant to the requirements of 28 U.S.C. § 2281.

The case is submitted upon the pleadings, briefs, affidavits, stipulations, testimony and argument at the hearing on the motion for temporary restraining order on September 18, 1973, and argument of counsel for all parties.

I. Facts

On September 14, 1973, the Governor of Alabama signed into law a new statute governing the ethics of public officers in this state. In the course of the legislative debate over that bill, the following amendment, having been proposed from the floor, was passed and became law upon the signing of the Act:

Section 14. Members of the press who cover the State Legislature or state government in any way, either as a member of an editorial staff or through direct reporting, prior to being admitted to galleries, press rooms, committee meetings, any space set aside for use of the press, the floor of the legislature, or press conferences by a member of the legislature or a government official, shall file a statement of economic interest in accordance with the provisions of this Act at the office of the State ethics commission and shall have been approved by the State ethics commission for a special press pass and shall be subject to the provisions of the Act. The statement of economic interest filed by members of the press shall further include the names of all newspapers or publications, radio stations, or news-gathering organizations by which they are employed, and what other occupations or employment they may have, if any; and they shall further declare that they are not employed in any legislative or executive department of government, and that they are not employed, directly or indirectly, by any person or corporation having legislation before the State Legislature, and that they will not become so engaged in any of these activities while covering the State Legislature or state government.

Section 14 was introduced by Representative McCorquodale and was passed by an affirmative vote of 42-7. It appears that under the rules of procedure of the Alabama Legislature no public committee hearings are held on floor amendments, and none were held on this amendment. The only legislative history which has been offered in this case is a transcription of a filmed news report on a colloquy on the legislative floor by the sponsor of this provision and another representative:

Rep. McCorquodale: "And all this does, it says that all the press that covers the Legislature, all the news media that covers the Legislature, must reveal because they do contribute to influencing toward legislation by editorials, by newsstories, and by television editorials and other manner and it would provide that they should reveal financial interests other than where they are employed or if they represent any other company."

Rep. Phil Smith: "Now, isn't that person — aren't there some pretty stringent requirements in the substitute the bill prior to its amendment in this respect about lobbyists and aren't those people going to be included if they are in fact lobbying?"

Rep. McCorquodale: "No sir, let me answer this I think as direct as I know how. There are a number of people connected with the press today both in newspaper and television and other areas that as we normally term they moonlight and as they moonlight we should be, it should be some disclosure and this is not against the press but this should be disclosed to the public just as well as a public official."⁵

Plaintiffs have introduced evidence showing, and this Court finds, that reporters will be substantially hindered by Section 14 in their efforts to report on the activities of state government in Alabama. Refusal of access to the areas normally reserved for the press covering state government will limit the availability of some segments of the press to legitimate and public items of news. While under the Act access will apparently be granted upon disclosure, this Court finds that a requirement of economic disclosure by members of the press will tend to have the effect of driving some members out of the press altogether or to cause members of the press to limit their associational ties in order to avoid disclosure. This Court finds that such results will flow from the statute; that these results are unconstitutional does not necessarily follow, but that possible result will be analyzed in the light of the applicable law.

II. Preliminary Defenses

Defendants plead several matters which should be considered prior to our reaching the merits. There appears to be some confusion in the briefs between the Younger doctrine Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and the abstention doctrine. These defenses will be discussed separately for the sake of clarity.

A. Younger Doctrine. Defendant asserts that because of the Younger doctrine, this Court should decline to exercise its jurisdiction in this case. The Younger doctrine provides that, absent certain extraordinary circumstances, federal courts should not intervene in ongoing criminal prosecutions.

This case is no sense concerns the criminal laws of the State of Alabama. This regulatory statute governs disclosure and prohibitions of access to news; it is the disclosure and access provisions which are at issue, not the possible criminal sanction which would accrue to one who disobeyed the statute. It is apparent that the purpose of this section was to regulate newsmen who cover state government; the state has not asserted an interest here in prosecuting criminal conduct under state criminal statutes. "We see nothing in this sort of regulatory activity which might be construed as an integral part of Alabama's enforcement of its criminal laws." Polk v. State Bar of Texas, 480 F.2d 998 (5th Cir. 1973). In this case, it is unnecessary to require citation of an exception to the Younger doctrine; that doctrine is simply inapplicable. We are not dealing with Alabama's criminal justice system.

B. Abstention. Defendants also assert that this Court should abstain from deciding this issue, under the doctrine of abstention as opposed to the Younger doctrine. The doctrine of abstention is a judge-made doctrine first espoused in Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The doctrine of abstention has a limited applicability, however. Congress has seen fit to endow the federal judiciary with the power to render declaratory judgments. While there may be certain circumstances in which a suitor could bring his claim in either a state court or a federal court, the existence of a state court remedy does not oust the federal court of its jurisdiction under the Declaratory Judgment Act. As the Supreme Court has noted,

Congress has imposed the duty upon all levels of the federal judiciary to give due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because the state courts also have the solemn responsibility, equally with the federal courts, "to guard, enforce, and protect every right granted or secured by the constitution of the United States . . ." The judge-made doctrine of abstention . . . sanctions such escape only in narrowly limited "special circumstances" . . . These principles have particular significance when, as in this case, the attack upon the statute on its face is for repugnancy to the First Amendment. In such a case to force the plaintiff who has commenced a federal action to suffer the delay of state court proceedings might itself effect the impermissible chilling of the very constitutional right he seeks to protect.

Zwickler v. Koota, 389 U.S. 241, 248, 252, 88 S.Ct. 391, 398, 19 L.Ed.2d 444 (1967). Accord, Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973); Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 510, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972).

It is clear that the federal court may be warranted in abstaining if the challenged state statute could be construed in such a way as to avoid or substantially modify the federal constitutional question. Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 510, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972); Wulp v. Corcoran, 454 F.2d 826, 833 (1st Cir. 1972); ...