Pollard v. Cockrell

• Decision Date: 23 August 1978
• Docket Number: No. 76-3907,76-3907
• Citation: Pollard v. Cockrell, 578 F.2d 1002 (5th Cir. 1978)
• Parties: James O. POLLARD, etc., et al., Plaintiffs-Appellants, v. Lila COCKRELL, etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1002

578 F.2d 1002

James O. POLLARD, etc., et al., Plaintiffs-Appellants, v.Lila COCKRELL, etc., et al., Defendants-Appellees.

No. 76-3907.

United States Court of Appeals Fifth Circuit.

Aug. 23, 1978.

Brock Huffman, Robert Mitchell, Charles Campion, San Antonio, Tex., for plaintiffs-appellants.

Crawford B. Reeder, James M. Parker, City Atty., Edgar A. Pfeil, Jane H. Macon, Steven W. Arronge, San Antonio, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before GODBOLD, SIMPSON and MORGAN, Circuit Judges.

SIMPSON, Circuit Judge:

In this casewe review a constitutional challenge to several portions of a massage parlor ordinance adopted by the San Antonio City Council in 1976.Although our task is complicated by several important procedural hurdles most arising out of a similar challenge contemporaneously filed in state courtwe hold that the district court properly exercised its jurisdiction over this case and correctly adjudicated the constitutionality of those portions of the ordinance that it considered.We remand so that the court below may rule upon the remaining challenged sections.

I.THE FACTS

Finding, in part, that "sexual conduct or the intimation of sexual conduct, rather than the massage of the body, has become the business in fact of many massage businesses" the city council of San Antonio, Texas, on February 26, 1976, passed an ordinance strictly regulating massage parlors.¹

In April, 1976, several San Antonio massage parlor owners and masseuses, none of whom are parties in the instant case, filed a complaint in state court alleging that the ordinance violated the Texas and federal constitutions and seeking injunctive and declaratory relief.On June 1, 1976, the state trial court ruled that the ordinance was constitutional with the exception of nine provisions, which it declared unconstitutional and enjoined the city from enforcing.²Both parties appealed to an intermediate level state appellate court which, on February 16, 1977, reversed the trial court on procedural grounds and held that the ordinance in its entirety was constitutional.Holt v. City of San Antonio, 547 S.W.2d 715(Ct.Civ.App.Tex.1977).Application for writ of error to the Texas Supreme Court was refused on grounds of "no reversible error."³

On June 14, 1976, two weeks after the state trial court's judgment was entered but prior to its reversal on appeal, the instant plaintiffs two massage parlor owners, two licensed masseuses, and two massage parlor "patrons" filed suit in federal court pursuant to 42 U.S.C. § 1983, seeking injunctive and declaratory relief on grounds that the ordinance violated the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the United States Constitution.After a non-jury trial, the district court on August 25, 1976, entered its findings of fact and conclusions of law.The court held that (1) although the plaintiff owners and masseuses had standing to sue, the plaintiff patrons did not; (2) those portions of the ordinance declared unconstitutional by the state trial court in Holt were "not properly before this Court" and presented no case or controversy, (3) with one exception, all sections of the ordinance properly before the court"are constitutional on their face (and as applied) as a valid exercise of police power", and (4)Section 10 of the ordinance, insofar as it requires recording of the type of massage provided to a patron, is unconstitutional on its face.Judgment enjoining enforcement of the "service provided" portion of Section 10 and denying all other relief sought by the plaintiffs was entered on the same day.The plaintiffs timely filed their notice of appeal to this Court.

II.THE PROCEDURAL ISSUES

A.Plaintiff Patrons' Standing to Sue:

In addition to massage parlor owners and masseuses, the complaint in this case named as plaintiffsEdward Camara, Jr., "a prospective and intended patron of massage parlors in San Antonio", and Keith Gates, "a patron of massage parlors in San Antonio".Camara and Gates sought a declaratory judgment that the customer registration and "peephole" provisions of the ordinance are unconstitutional, and each claimed to be "under a genuine threat of enforcement under the ordinance, with a likelihood of arrest and prosecution should he fail to comply with its provisions".The district court found that Camara and Gates "have not made the requisite showing to establish their standing to bring or join in the instant suit".We agree.

"In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a 'caseor controversy' between himself and the defendant within the meaning of Article III".Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343(1975).Essentially, "the question is whether the person whose standing is challenged is a proper party to request an adjudication or a particular issue and not whether the issue itself is justiciable".Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947(1968).Plaintiffs in the federal courts must have a "personal stake in the outcome" of the case, Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663(1962), and "must allege some threatened or actual injury resulting from the putatively illegal action".Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536(1973)."Abstract injury is not enough. . . .The injury or threat of injury must be both 'real and immediate,' not 'conjectural' or 'hypothetical.' "O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674(1974).

If this were an appeal from a judgment granting the defendants' motion to dismiss for lack of standing, we would be required to accept as true all of the material allegations of the complaint.Warth v. Seldin, supra, 422 U.S. at 501, 95 S.Ct. at 2206;Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404(1969).However, because we are reviewing a final judgment based upon a fully developed record, we must evaluate standing "from all materials of record".Warth, supra, 422 U.S. at 502, 95 S.Ct. at 2207;City of Hartford v. Town of Glastonbury, 561 F.2d 1032, 1051(2d Cir.1976)(en banc).On this basis, it is clear that neither Camara nor Gates has the requisite " 'personal stake in the outcome of the controversy' " and that each alleges not an injury to him personally but rather "a 'generalized grievance' shared in substantially equal measure by all or a large class of citizens".Warth, supra, 422 U.S. at 499, 95 S.Ct. at 2205.First, the record is barren of evidence that Camara or Gates intended to patronize a massage parlor in the future.At no point did Gates allege such an intent; although the complaint did describe Camara as "a prospective and intended patron", Camara testified at trial that the likelihood of his having "gone into a massage parlor someday except for . . . the ordinance" was only a "possibility".R. 296.Second, while the complaint alleged that "the San Antonio Police Department has enforced the ordinance vigorously" and that criminal charges for violation of the ordinance are pending against "at least two patrons . . . who are not Plaintiffs in this lawsuit", neither Camara nor Gates alleged that he was personally threatened with prosecution.Cf.Steffel v. Thompson, 415 U.S. 452, 458-59, 94 S.Ct. 1209, 1215-16, 39 L.Ed.2d 505(1974).To the contrary, Gates testified that on one occasion when he patronized a massage parlor without any identification in violation of Section 10 of the ordinance he was merely admonished by a San Antonio police officer who discovered the violation during a routine inspection: "He gave me a lecture about why I wasn't supposed to be in there without my driver's license".R. 293.

We do not hold that patrons or "intended patrons" of massage parlors Per se lack standing to challenge ordinances regulating such establishments.We hold only that the plaintiff patrons in this case have failed to show "that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment" under 28 U.S.C. § 2201.Maryland Casualty Co. v. Pacific Coal and Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826(1941).

B. Preclusive Effect of the State Court Judgment:

The appellants contend that the district court erred in declining to rule upon the nine sections of the ordinance which had earlier been declared unconstitutional by a state trial court in Holt v. City of San Antonio.⁴Our consideration of this issue is foreclosed, however, by the fact that the Holt injunction relied on by the district court was reversed during the pendency of this appeal.SeeConcerned Citizens of Vicksburg v. Sills, 567 F.2d 646(5th Cir.1978).It is well established that an appellate court"is obligated to take notice of changes in fact or law occurring during the pendency of a case on appeal which would make a lower court's decision, though perhaps correct at the time of its entry, operate to deny litigants substantial justice".Id., quotingHawkes v. I.R.S., 467 F.2d 787, 793(6th Cir.1972).See alsoMichigan Surety Co. v. Service Machinery Corp., 277 F.2d 531(5th Cir.1960).As the district court viewed this case, the plaintiffs were not entitled to federal review of those portions of the ordinance already nullified by the Holt injunction.Since that injunction is no longer in force, and since a state appellate court has ruled that the ordinance in its entirety is constitutional, the plaintiffs would be denied "substantial justice" if the federal review they seek continued to be withheld.The appropriate remedy is to remand to the district court for a ruling on the merits of the plaintiffs' constitutional objections to the nine sections of the ordinance previously but only temporarily...