Pederson v. Breier

• Decision Date: 25 May 1971
• Docket Number: 71-C-46.,Civil Action No. 71-C-37
• Citation: 327 F. Supp. 1382
• Parties: Joe PEDERSON, Individually and as President of Seven Chances, Inc., a Wisconsin Corporation, d/b/a Bang Bang Club, and Debbie Phillips, Plaintiffs, Francine Klinker and John Kondos, Plaintiffs, v. Harold A. BREIER, Individually and as Chief of Police of the City of Milwaukee, Wisconsin, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

327 F. Supp. 1382

Joe PEDERSON, Individually and as President of Seven Chances, Inc., a Wisconsin Corporation, d/b/a Bang Bang Club, and Debbie Phillips, Plaintiffs Francine Klinker and John Kondos, Plaintiffs, v. Harold A. BREIER, Individually and as Chief of Police of the City of Milwaukee, Wisconsin, et al., Defendants.

Civil Action Nos. 71-C-37, 71-C-46.

United States District Court, E. D. Wisconsin.

May 25, 1971.

Marvin Resnick, Milwaukee, Wis., for plaintiffs Joe Pederson and others.

William M. Coffey, Milwaukee, Wis., for plaintiffs Francine Klinker and others.

Joseph H. McGinn, Asst. City Atty., Milwaukee, Wis., for defendant Harold A. Breier.

E. Michael McCann, Dist. Atty., and Lee Edward Wells, Asst. Dist. Atty., Milwaukee, Wis., for defendant E. Michael McCann, Individually and as District Attorney for Milwaukee County, for his Agents, etc.

OPINION AND ORDER

REYNOLDS, District Judge.

These two actions involve a challenge to the constitutionality of the Wisconsin disorderly conduct statute, § 947.01(1), Wisconsin Statutes, after criminal prosecution of the plaintiffs had been commenced by the defendants. The plaintiffs are entertainers and proprietors of establishments in Milwaukee, Wisconsin, which feature "topless" dancing as entertainment. Defendants are law enforcement officials of the City and County of Milwaukee.

Section 947.01(1) is challenged as being unconstitutionally vague and overbroad as well as unconstitutional as applied to these plaintiffs. Both injunctive and declaratory relief is sought, and the complaints request the convening of a three-judge court pursuant to 28 U.S. C. § 2281 to hear each case on its merits.

Based upon a stipulation entered into by the attorneys for all parties involved, this court entered an order April 19, 1971, consolidating the two instant cases.

The history and underlying facts of both cases are set forth in adequate detail in the written opinions entered by this court on February 5 and February 9, 1971, which are attached to this opinion and order as appendices. In the orders of February 5 and February 9, 1971, this court temporarily enjoined the state criminal prosecution of both plaintiffs pending a resolution of their constitutional challenge to the statute in this court.

On February 23, 1971, the United States Supreme Court decided the case of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L.Ed.2d 669 (1971), and five companion cases.¹ In Younger, the Supreme Court enunciated the broad policy, based upon the doctrine of comity, that federal courts should not interfere in any manner with ongoing state criminal prosecutions except under extraordinary circumstances.

On April 8 and April 13, 1971, defendants filed motions with this court seeking to have the temporary restraining orders vacated and the instant actions dismissed. The primary basis of these motions appears to be the Supreme Court decisions of February 23, 1971, noted above.

Plaintiffs have been afforded an opportunity to brief the issues presented by defendants' motions and plaintiffs Pederson and Phillips have done so. These plaintiffs contend that defendants' motions should be denied notwithstanding the Younger cases, supra. I find that plaintiffs' contention in this regard is without merit. I believe that Younger squarely controls the instant cases.

In their complaints, all plaintiffs alleged "bad faith" enforcement of § 947.01(1) by defendants. These allegations are advanced in conclusory fashion. From the record, thus far established, I believe these allegations of "bad faith" to be wholly unsupportable. Plaintiffs Phillips and Pederson rely heavily on the fact that defendant McCann made an arrest under § 947.01(1) while this court was in the process of deciding whether to grant plaintiffs' request aimed at enjoining defendant McCann from enforcing a different statute.² That plaintiffs chose not to await the decision of this court on their request for temporary injunctive relief and were arrested under a different statute by defendants for engaging in the conduct at issue does not, in my view, amount to the type of bad faith enforcement which warrants federal court interference with state criminal prosecutions.

In addition to their bad faith allegations, plaintiffs allege that irreparable injury will result if the state court prosecution under § 947.01(1) is not enjoined because § 947.01(1) is facially overbroad. Plaintiffs argue that the existence of such a statute "chills" the legitimate exercise of fundamental First Amendment freedoms. In addition, plaintiffs argue that irreparable injury will befall them through lost business revenues. After Younger, these arguments in the context of this case do not establish the requisite irreparable injury warranting federal court interference with state criminal prosecutions already commenced. Younger commands that plaintiffs' contentions regarding the constitutionality of the statute and its application to them are properly addressed to the state court in the course of their criminal trials.

In sum, I conclude that the instant cases must be viewed as completely controlled by Younger v. Harris and the cases decided with it, and that this fact renders further action by a federal court inappropriate at the present time. Therefore, I believe that the temporary restraining orders previously issued by this court in both cases must be vacated forthwith. Further, in view of my conclusion that further action by a federal court in either case would be improper under Younger, I conclude that defendants' motions to dismiss the actions must also be granted.

Accordingly, the convening of a three-judge court, prayed for in plaintiffs' complaints, must be denied. Because this case must be viewed as controlled by Younger v. Harris, there no longer remains any basis for injunctive relief. Hence, the convening of a court of three judges to consider possible injunctive relief would be a useless act in the present posture of this case.³ Further, while this court acting as a single judge still technically has the power to render declaratory relief, the impropriety of considering declaratory relief in a case where injunctive relief is deemed inappropriate is made clear by Samuels v. Mackell, supra.

In sum, I find and conclude that under Younger v. Harris and the other cases decided with it, federal court action of any kind, either by this court or a court of three judges convened pursuant to 28 U.S.C. § 2281, would be improper and inappropriate. Accordingly, defendants' motions to dismiss must be granted.

Therefore, on the basis of the foregoing and the entire record herein,

It is ordered that the temporary restraining orders entered by this court on February 5 and February 9, 1971, in the instant actions be and they hereby are vacated and dissolved.

It is further ordered that the instant actions be and they hereby are dismissed.

Appendix in No. 71-C-37

Plaintiff has commenced an action challenging the Wisconsin disorderly conduct statute, § 947.01(1) of the Wisconsin Statutes, which reads as follows:

"Whoever does any of the following may be fined not more than $200 or imprisoned not more than 90 days or both:

"(1) In a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which such conduct tends to cause or provoke a disturbance; or * * *."

Plaintiff challenges the statute as overly broad on its face in violation of the United States Constitution and as unconstitutional as applied.¹ Plaintiff seeks both injunctive and declaratory relief. Since plaintiff seeks to enjoin the operation of a state statute, if this court determines that his constitutional claim is not insubstantial, a three-judge court must be convened to hear the case on the merits. I presently make no determination with regard to the convening of a three-judge court. Plaintiff seeks temporary injunctive relief pending the convention of a three-judge court, and this request is the only issue dealt with in this opinion and order.

Jurisdiction is asserted, among other provisions, under Title 42 U.S.C. § 1983 and Title 28 U.S.C. § 1343, and it appears that jurisdiction is present.

Plaintiff is the operator of a night-club in Milwaukee, Wisconsin. Defendants are, respectively, the chief of police of the City of Milwaukee and the district attorney of Milwaukee County.

Plaintiff originally filed an action challenging the constitutionality of § 944.21(1) (d) of the Wisconsin Statutes. Plaintiff sought the convention of a three-judge court to determine issues of declaratory and injunctive relief. He also sought from this court a temporary restraining order. Pursuant to this motion for a temporary restraining order, this court held a hearing on February 2, 1971. In his motion and at the hearing, plaintiff contended that he was being threatened with prosecution under § 944.21(1) (d) and sought injunctive relief restraining the enforcement of that statute against him.

It appears that plaintiff, being the operator of a nightclub in Milwaukee, was desirous of featuring "topless" dancing at his establishment. Plaintiff and his counsel visited defendant McCann's office and spoke with a member of Mr. McCann's staff, informing him of his intention to provide topless dancing and inquiring with regard to what the legal consequences might be. It appears from the testimony at the hearing that plaintiff was informed he would be prosecuted under § 944.21(1) (d) of the Wisconsin Statutes should he have topless dancing at his establishment. However, in his answer and at the hearing, Mr. McCann denied that plaintiff would be prosecuted under § 944.21(1) (d), stating that in all likelihood plaintiff would be prosecuted but under some other statute or ordinance which could not be specified until the topless event took place, was observed, and was reviewed. Accordingly, defendant McCann...