Palaio v. McAuliffe, No. 71-2625.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: BELL, THORNBERRY and INGRAHAM, Circuit
• Citation: 466 F.2d 1230
• Parties: Samuel PALAIO and Walter Adams, Plaintiffs-Appellants, v. Hinson McAULIFFE et al., Defendants-Appellees.
• Docket Number: No. 71-2625.
• Decision Date: 11 December 1972

466 F.2d 1230 (1972)

Samuel PALAIO and Walter Adams, Plaintiffs-Appellants,
v.
Hinson McAULIFFE et al., Defendants-Appellees.

No. 71-2625.

United States Court of Appeals, Fifth Circuit.

September 21, 1972.

As Modified on Denial of Rehearing December 11, 1972.

Frierson M. Graves, Jr., Memphis, Tenn., for plaintiffs-appellants; Heiskell, Donelson, Adams, Williams & Wall, Memphis, Tenn., of counsel.

Tony H. Hight, Asst. Dist. Atty., Atlanta, Ga., Thomas E. Moran, Sandy Springs, Ga., W. Baer Endictor, Atlanta, Ga., Thomas R. Moran, Sandy Springs, Ga., for defendants-appellees; Moran & Moran, Sandy Springs, Ga., of counsel.

Before BELL, THORNBERRY and INGRAHAM, Circuit Judges.

466 F.2d 1231

THORNBERRY, Circuit Judge:

Appellants Palaio and Adams filed suit in the court below seeking declaratory and injunctive relief against appellees' efforts in a Georgia state court to have certain motion pictures declared obscene and subject to seizure. The court below held that federal intervention in these state court proceedings was improper and accordingly dismissed the suit. We agree with the district court that federal anticipatory relief would be inappropriate in this case, and thus intimate no view as to appellants' challenges to the state court proceedings.¹

Each of the appellants operated a motion picture theatre in Atlanta. On October 21, 1970, appellee McAuliffe, as Solicitor General of the Criminal Court of Fulton County, Georgia, instituted proceedings in the Fulton County Superior Court to have two motion pictures that were exhibited at appellants' theatres declared obscene and subject to seizure. In that suit, appellee sought a temporary and permanent injunction against exhibition of the films, and an order of the court that the films be seized and destroyed. The Superior Court judge issued an order setting a hearing for October 23, 1970, and requiring appellants to show cause why the films should not be declared obscene and seized. Both appellants filed answers and motions to dismiss the state court suit, urging as grounds for dismissal the same constitutional arguments that they raise on this appeal.² On November 23, 1970, the Superior Court judge rejected these constitutional claims and found probable cause for holding one of the films (exhibited in Palaio's theatre) obscene and subject to seizure. Subsequently, a criminal complaint was brought against both appellants in the Fulton County Criminal Court for exhibiting the motion pictures in violation of Georgia Code § 26-2101.³ That criminal prosecution was pending on the date this appeal reached us. The ruling of the Fulton County Superior Court was later affirmed by the Georgia Supreme Court on October 7, 1971 1024 Peachtree Corp. v. Slaton, 228 Ga. 102, 184 S.E.2d 144 (1971).

Meanwhile, appellants had begun the action that is the basis for the instant appeal. On October 20, 1970, shortly after the state court proceedings had been initiated, appellants filed complaints

466 F.2d 1232

under 28 U.S.C.A. § 1343⁴ and 42 U.S.C.A. § 1983⁵ against appellee McAuliffe and Lewis Slaton, District Attorney for the Atlanta Judicial Circuit. The complaint reiterated appellants' attack on the state court proceedings,⁶ and sought injunctions against pending and future criminal and civil proceedings against them and a declaration that the procedures employed in the state court suit were constitutionally invalid. On March 17, 1971—after the state judge had found probable cause for declaring one of the motion pictures obscene and after the state criminal prosecution of appellants had begun—the federal district judge concluded that the suit to declare the motion pictures subject to seizure was a good-faith effort by Georgia officials to enforce Georgia criminal laws, and accordingly held that dismissal was dictated by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)

Younger, supra, and its companion case, Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), established that federal intervention—by way of injunctive or declaratory relief —in a state's enforcement of its criminal laws is improper unless the plaintiff can prove that the enforcement of those laws...