Movies, Inc. v. Conlisk

• Decision Date: 07 July 1971
• Docket Number: 70 C 1235.,No. 70 C 2051,70 C 2051
• Citation: 345 F. Supp. 780
• Parties: MOVIES, INC., an Illinois corporation, et al., Plaintiffs, v. James CONLISK, individually and as Superintendent of Police of the City of Chicago, et al., Defendants. Leo WEINTRAUB and Rene Nawodylo, Plaintiffs, v. William J. SCOTT, individually and as Attorney General of the State of Illinois, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

345 F. Supp. 780

MOVIES, INC., an Illinois corporation, et al., Plaintiffs, v. James CONLISK, individually and as Superintendent of Police of the City of Chicago, et al., Defendants.

Leo WEINTRAUB and Rene Nawodylo, Plaintiffs, v. William J. SCOTT, individually and as Attorney General of the State of Illinois, et al., Defendants.

Nos. 70 C 2051, 70 C 1235.

United States District Court, N. D. Illinois, E. D.

July 7, 1971.

Patrick A. Tuite, Chicago, Ill., for Movies, Inc. and others.

Edward V. Hanrahan, State's Atty., and Richard L. Curry, Corp. Counsel, Chicago, Ill., for Conlisk and others.

David Goldberger, American Civil Liberties Union, Chicago, Ill., for Weintraub and Nawodylo.

William J. Scott, Atty. Gen. of Ill., Edward V. Hanrahan, State's Atty., and Richard L. Curry, Corp. Counsel, Chicago, Ill., for William J. Scott and others.

Before PELL, Circuit Judge, MAROVITZ and LYNCH, District Judges.

MEMORANDUM OF DECISION

LYNCH, District Judge.

The plaintiffs, Rene Nawodylo and Leo Weintraub, filed the complaint in No. 70 C 1235 seeking declaratory and injunctive relief from this Court. The relief requested contemplated an attack on constitutional grounds of a statute of statewide application. Accordingly, pursuant to 28 U.S.C. § 2281 and 28 U.S.C. § 2284, a three-judge Court was requested and subsequently convened. The plaintiffs, Movies, Inc., et al. filed the complaint in No. 70 C 2051 seeking both injunctive and declaratory relief from the same state law attacked in No. 70 C 1235. The matters were consolidated for argument because of the similarity of the causes.

The central thread of both complaints is a challenge to 38 Ill.Rev.Stat. § 11-20 (Appendix 1), the Illinois law defining and regulating obscenity. All plaintiffs contend that the law is vague and overbroad; they contend that it permits a conviction without a proper showing of scienter; lastly they contend that it is inimical to rights secured by the first amendment of the United States Constitution because it does not require a prior adversary hearing. Additionally, plaintiffs in No. 70 C 1235 challenge Chicago's obscenity ordinance, § 192.9, Municipal Code of Chicago (Appendix 2).

In both matters action was begun in this court after the State of Illinois had commenced several criminal proceedings for violation of Ill.Rev.Stat., Ch. 38, § 11-20 against each of the plaintiffs in No. 70 C 1235. Similar charges are pending against some of the plaintiffs in No. 70 C 2051.

Recent decisions of the United States Supreme Court have circumscribed the jurisdiction of a three-judge court to entertain constitutional challenges to state criminal statutes where criminal proceedings pursuant to those statutes are pending at the time of filing the complaint in federal court. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669; Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701; Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688; Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L. Ed.2d 781; Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792. This Court believes these rulings compel different treatment of the pending matters. Accordingly, it will be necessary to discuss them separately.

The complaint in Movies, Inc., et al. is brought by certain individuals who were arrested for showing a film that was judged obscene after a hearing held by a state court magistrate. The plaintiffs exhibited the film after it was adjudged obscene. Subsequently warrants were issued for their arrest and at the time of their arrest certain of the defendants seized the film, Pornography-Copenhagen '70. The arrests and seizure are currently on appeal to the Supreme Court of the State of Illinois. During the pendency of that appeal those individuals who were arrested brought this action. They were joined by certain corporate plaintiffs who own the theatres at which the film was shown. The proceedings here also seek to protect the rights of one Janice Mooney who purports to represent a class of individuals who would view Pornography-Copenhagen '70 were it available.

As noted above the Supreme Court recently decided a series of cases that redrew the perimeters of a federal court's jurisdiction when a court is asked to interfere with pending state court criminal matters. Younger v. Harris, supra, Perez v. Ledesma, supra.

A federal court must not, save in exceptional and extremely limited circumstances, intervene by way of either injunction or declaration in an existing state criminal prosecution. Such circumstances exist only when there is a threat of irreparable injury "both great and immediate." A threat of this nature might be shown if the state criminal statute in question were patently and flagrantly unconstitutional on its face, Younger v. Harris ante 401 U.S., at 53 91 S.Ct., at 755; cf. Evers v. Dwyer, 358 U.S. 202 79 S.Ct. 178, 3 L.Ed.2d 222, or if there has been bad faith and harassment—official lawlessness — in a statute's enforcement, Younger v. Harris ante, 401 U.S., at 47-49 91 S.Ct. at 752-753. In such circumstances the reasons of policy for deferring to state adjudication are outweighed by the injury flowing from the very bringing of the state proceedings, by the perversion of the very process which is supposed to provide vindication, and by the need for speedy and effective action to protect federal rights. Cf. George v. Rachel, 384 U.S. 780 86 S.Ct. 1783, 16 L.Ed. 2d 925. Younger v. Harris, supra, 401 U.S., at 56, 91 S.Ct. at 757 (Stewart, J., concurring).

In Perez v. Ledesma, supra, the Supreme Court articulated the standard that controls this court's intervention with a pending state court prosecution. "Only in case of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate." 401 U. S. 82, 84, 91 S.Ct. 674, 677. In Movies, Inc., there is no allegation of harassment or bad faith prosecution. Nor does there appear to be any other extraordinary circumstances justifying federal injunctive relief. Indeed the situation here appears closely analogous to that which existed in Perez v. Ledesma, supra.

In Perez the Supreme Court reviewed the holding of a three-judge court that declared a Louisiana statute permitting the seizure of allegedly obscene material, without a prior adversary hearing on the issue of obscenity, violative of rights secured by the first amendment. Delta Book Distributors, Inc. v. Cronvich, 304 F.Supp. 662 (E.D.La.1969), rev'd, sub nom. Perez v. Ledesma, supra. The lower court was asked to enjoin pending state criminal proceedings for alleged violations of the Louisiana obscenity law. The lower court did not enjoin the state criminal proceedings but did suppress certain material seized pursuant to the arrest of those individuals being prosecuted. The result of the order to suppress was a termination of the state court proceedings. The Supreme Court reversed the lower court and held that it was improper for the federal court to interfere with the state court proceedings. Further, the Supreme Court noted that any alleged constitutional deficiency in the state court proceedings could properly be raised and disposed of in the state tribunals.

Applying the holding of Perez to the matters raised in Movies, Inc., it is apparent that the complaint must be dismissed. The thrust of the complaint and the relief requested would require this court to interject itself into matters currently before the courts of Illinois. It was precisely this type of interference that was proscribed in Perez, supra. Further, the complaint in Movies, Inc., contains no allegation of bad faith, enforcement or harassment upon which this court might predicate its jurisdiction. Accordingly, the cause in No. 70 C 2051 is dismissed.

Turning next to the complaint in No. 70 C 1235 the court is faced with a somewhat different situation. Both Weintraub and Nawodylo have been the subjects of frequent arrests by various state and local enforcement officials for sale of allegedly obscene material. Further, the plaintiffs in this matter assert that the enforcement officials are acting in bad faith with an intention to harass. Indeed, the single district judge to whom this matter was originally assigned found that the pattern of arrests constituted an attempt to harass and accordingly entered a temporary injunction that subsequently was dissolved. Thus, in No. 70 C 1235 the allegations of the complaint appear to assert sufficient facts to permit this court to entertain jurisdiction of the matter without contravening the directions contained in Younger, and its companion cases, supra. We note in passing that we are not determining that harassment or bad faith prosecution in fact exists in this matter. We hold only that the allegations of harassment coupled with the showing of frequent arrests of both plaintiffs is sufficient to bridge the gap in this court's jurisdiction created by Younger. Thus, assuming that we enjoy the rights to interfere with state criminal proceedings where there are allegations of harassment coupled with some factual data to support those allegations we turn to the constitutional challenge of the Illinois obscenity laws.

The plaintiffs' challenge to the constitutionality of Ill.Rev.Stat., Ch. 38, § 11-20 proceeds along several avenues. Plaintiff's most ambitious contention strikes at the right of the state to regulate obscene material, a right long recognized. Roth v. United States; Alberts v. California, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. The predicate for plaintiff's assertion is found in the holding of Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 wherein the Supreme Court determined that the first and fourteenth amendments prohibit making mere private possession...