Mitchell Family Planning Inc. v. City of Royal Oak

• Decision Date: 05 January 1972
• Docket Number: Civ. A. No. 37227.
• Parties: MITCHELL FAMILY PLANNING INCORPORATED, a Michigan Corporation, et al., Plaintiffs, v. CITY OF ROYAL OAK, a Municipal Corporation, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

335 F. Supp. 738

MITCHELL FAMILY PLANNING INCORPORATED, a Michigan Corporation, et al., Plaintiffs, v. CITY OF ROYAL OAK, a Municipal Corporation, et al., Defendants.

Civ. A. No. 37227.

United States District Court, E. D. Michigan, S. D.

January 5, 1972.

David M. Fried, Lampert & Fried, Southfield, Mich., for plaintiffs.

Allan G. Hertler, Royal Oak, Mich., for defendants.

OPINION AND ORDER

PHILIP PRATT, District Judge.

This action was instituted on October 12, 1971, by an Order to Show Cause based on plaintiffs' complaint praying that City Ordinance No. 71-10 of defendant City of Royal Oak be declared unconstitutional and that defendants be enjoined from enforcing that ordinance.

At the hearing held on October 18, 1971, pursuant to the above-mentioned order, counsel agreed that the facts involved were clear and undisputed; a stipulation of facts was filed on October 29, 1971.

Thereafter, only questions of law being involved, the matter was submitted on respective motions for summary judgment. The positions of plaintiffs and defendants were extensively briefed and final oral arguments were taken on December 12, 1971. A preliminary injunction was unnecessary because the defendants agreed not to enforce the ordinance pending the decision of the Court.

The pertinent facts based on the stipulation (which is incorporated herein by reference) may be briefly stated. Plaintiff Martin Mitchell is the President of plaintiff Mitchell Family Planning, Incorporated, a non-profit corporation engaged in the business of disseminating information in regard to family planning, including information regarding abortion. Plaintiff Martin Mitchell in his capacity as President of Mitchell Family Planning, Inc., entered into a contract with plaintiff Tioran to lease an outdoor billboard advertising sign owned by Tioran and located on North Woodward Avenue near Thirteen Mile Road in the City of Royal Oak, Michigan.

The billboard carried the following words:

"Abortion Information.

Male and Female Sterilization Information.

MITCHELL FAMILY PLANNING INCORPORATED,

Niagara Falls, New York. Phone No. XXX-XXX-XXXX. Local Phone No. 358-4672."

Defendant City of Royal Oak is a municipal corporation existing under the laws of the State of Michigan. Defendant James Cline is the Mayor of the City of Royal Oak. Defendant Allan G. Hertler is the City Attorney for the City of Royal Oak.

On or about September 27, 1971, the defendant City of Royal Oak adopted Ordinance No. 71-10, a copy of which is appended hereto as Exhibit A, wherein the City of Royal Oak, under penalty of imprisonment and fine, prohibited any person from willfully advertising in his name or in the name of a corporation on a billboard any means whatever whereby abortion may be produced or procured or any information in regard thereto, and further prohibited any person who is engaged in the outdoor advertising business from permitting abortion information upon any sign owned by him.

On September 30, 1971, plaintiffs were advised by defendant Allan G. Hertler by letter that unless the sign were removed, they would be prosecuted under Ordinance No. 71-10.

Plaintiffs assert that the ordinance is unconstitutional because it violates their right to freedom of speech guaranteed by the First and Fourteenth Amendments to the United States Constitution. Plaintiffs also assert that even if the ordinance is constitutional, their sign does not violate its mandate.

Defendants contend that the ordinance is presumptively valid and a reasonable exercise of the police power of the City of Royal Oak. Defendants also allege that the sign does violate Ordinance No. 71-10.

This Court takes jurisdiction under 28 U.S.C. § 1343, which states:

"The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;"

and under 42 U.S.C. § 1983 which states:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and the laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

When a federal court is asked to enjoin the enforcement of a state statute or a state proceeding and declare the state statute unconstitutional, the usual procedure is to assemble a three-judge panel. 28 U.S.C. § 2281 et seq. However, when the statute in question is one with only local application or, as here, a city ordinance, a three-judge panel is inappropriate. Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967); Perez v. Ledesma, 401 U.S. 82, 86, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971).

Finding, as it does under the circumstances of this case and the applicable law that this Court has jurisdiction and that the question is properly before this Court, the next question to be considered is that of abstention. While defendants have not argued abstention, it is a matter which the Court must consider when it is requested to act in a manner which may affect the sensitive area of federal-state relations.

The United States Supreme Court has made it abundantly clear in a very recent series of cases that federal courts must abstain except in most unusual circumstances once a state court action has begun. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Samuels v. Mackell, 401 U. S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Perez v. Ledesma, supra; Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L. Ed.2d 781 (1971); and Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L. Ed.2d 792 (1971).

Likewise, a federal suit is not proper if no state prosecution is threatened. Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969); Younger v. Harris, supra, at p. 42, 91 S.Ct. 746.

Plaintiffs here are clearly threatened with prosecution by reason of the letters received from defendant Hertler, the City Attorney. However, by agreement of counsel prosecutions have not been initiated due to the pendency of this suit. Under these circumstances plaintiffs have passed between Scylla and Charybdis and this Court must not abstain.

Plaintiffs claim that their right to freedom of speech is being infringed by action taken under color of law, namely a city ordinance. If true such action is prohibited by the First and Fourteenth Amendments. The Supreme Court stated in Lovell v. Griffin, 303 U. S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949 (1938):

"Freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action citations omitted. It is also well settled that municipal ordinances adopted under state authority constitute state action and are within the prohibition of the amendment citations omitted."

Indeed, the presumptive validity which attaches to a legislative enactment is not as great when that enactment has as its purpose the limitations of speech. The Supreme Court spoke to this point in Wood v. Georgia, 370 U.S. 375, 386, 82 S.Ct. 1362, 1371, 8 L.Ed.2d 569 (1962):

"The ultimate responsibility to define the limits of state power regarding freedom of speech and expression rests with this Court citations omitted, and when it is claimed that such liberties have been abridged, we cannot allow a presumption of validity of the exercise of state power to interfere with our close examination of the substantive claim presented."

Speech may be limited only to protect a strong state interest. As stated by the Supreme Court in Bates v. Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480 (1960):

"Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling."

This is true even though there may be a legitimate state interest which is sought to be protected. The Supreme Court made this clear in Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960):

"In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental liberties when the end can be more narrowly achieved."

The Supreme Court language quoted above provides guidelines for the consideration of a statute or ordinance which limits speech. Such an ordinance is subject to careful scrutiny and is valid only when narrowly drawn to protect a legitimate, compelling state interest.

The preamble to Ordinance No. 71-10 indicates that three Michigan Statutes were considered when the ordinance was enacted. These are M.C.L.A. § 750.14, M.C.L.A. § 750.15, and M.C.L.A. § 750.34. Indeed, the wording of Ordinance No. 71-10 closely follows the wording of M. C.L.A. § 750.34.

If the substantive evil which the City of Royal Oak seeks to prevent is the violation of M.C.L.A. § 750.14, then the ordinance is drawn in an overly broad manner. The ordinance proscribes advertising on a billboard "any information concerning the producing or procuring of an abortion."

As stated by the Michigan Supreme Court in Gilchrist v. Mystic Workers, 196 Mich. 247, 253, 163 N.W. 10 (1917) and recently restated by the Michigan Court of Appeals in People v. Wellman, 6 Mich.App. 573, 149 N.W.2d 908 (196...