Polykoff v. Collins

• Decision Date: 07 May 1987
• Docket Number: No. 84-2328,84-2328
• Citation: 816 F.2d 1326
• Parties: , 14 Media L. Rep. 1065 Louis POLYKOFF; IAS, Inc., a corporation; Charles Stuart; Charles Clapp, etc., et al., Plaintiffs-Appellants, v. Tom COLLINS, in his official capacity as Maricopa County Attorney, Defendant- Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1326

816 F.2d 1326

55 USLW 2642, 14 Media L. Rep. 1065

Louis POLYKOFF; IAS, Inc., a corporation; Charles Stuart Charles Clapp, etc., et al., Plaintiffs-Appellants, v. Tom COLLINS, in his official capacity as Maricopa County Attorney, Defendant- Appellee.

No. 84-2328.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 14, 1987.

Decided May 7, 1987.

John H. Weston and G. Randall Garrou, Beverly Hills, Cal., and Richard J. Hertzberg, Phoenix, Ariz., for plaintiffs-appellants.

Bruce A. Taylor, Scottsdale, Ariz., for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before NELSON, KOZINSKI and NOONAN, Circuit Judges.

NELSON, Circuit Judge:

This appeal concerns the district court's denial of declaratory relief and permanent injunctive relief in a first and fourteenth amendment challenge to Arizona's obscenity statute and the statutory provisions imposing fines for felonies. Appellants contend that the statutory term "prurient interest," as interpreted by the Arizona Supreme Court, is unconstitutionally overbroad, and that the felony fine provisions impermissibly restrain and chill speech. We affirm.

I. BACKGROUND

Arizona law provides that a person is guilty of a felony who knowingly "sells, rents, lends, ... or commercially distributes or exhibits any obscene item, or offers to do any such things." Ariz.Rev.Stat.Ann. Sec. 13-3502.2 (1978) (current version in Supp.1986). ¹ At the time this action commenced, Arizona law provided that an item is "obscene" when:

(a) The average person, applying contemporary state standards would find that the item, taken as a whole, appeals to the prurient interest; and

(b) The item depicts or describes, in a patently offensive way, sexual activity as that term is described herein; and

(c) The item taken as a whole, lacks serious literary, artistic, political or scientific value.

Id. Sec. 13-3501.2 (amended 1986). ² The Arizona Supreme Court interpreted the term "prurient interest" in State v. Bartanen 121 Ariz. 454, 591 P.2d 546, cert. denied, 444 U.S. 884, 100 S.Ct. 174, 62 L.Ed.2d 113 (1979), discussed below, and upheld that interpretation against an overbreadth challenge.

The state's general felony fine provisions authorize the imposition of a fine, "fixed by the court," of not more than $150,000 for a felony committed by an individual and of not more than $1,000,000 for a felony committed by an "enterprise." Ariz.Rev.Stat.Ann. Sec. 13-801.A (1978); id. Sec. 13-803.A.1 (Supp.1986) (renumbering former Sec. 13-804.1).

Appellants are corporations and individuals who are owners or employees of bookstores and video stores in Maricopa County, Arizona, that sell materials depicting adults engaged in various sexual activities. Appellee Collins, the County Attorney of Maricopa County, has successfully prosecuted several adult book store owners other than appellants under Sec. 13-3502. The Maricopa County Superior Court has imposed felony fines on convicted defendants generally not exceeding $7,500. One individual was fined $25,000 in 1977. ³ To date, no enforcement action has been initiated against any of the appellants.

On June 18, 1984, appellants filed this action, invoking the district court's jurisdiction under 28 U.S.C. Secs. 1331, 1343(a)(3), (4) (1982), and seeking relief pursuant to the Civil Rights Act, 42 U.S.C. Sec. 1983 (1982), and the Declaratory Judgment Act, 28 U.S.C. Secs. 2201-2202 (1982). They alleged that Ariz.Rev.Stat.Ann. Sec. 13-3502, on its face, is unconstitutionally overbroad because the state's definition of "prurient interest" encompasses expression protected by the first and fourteenth amendments. They further alleged that Sec. 13-3502, coupled with the general felony fine provisions, is facially invalid because it acts as a prior restraint on speech and impermissibly chills speech. Appellants sought a declaration that Sec. 13-3502 is facially unconstitutional and an injunction restraining Collins from enforcing Sec. 13-3502 against them.

On June 22, 1984, the district court denied appellants' motion for a temporary restraining order. A hearing on appellants' motion for a preliminary injunction was set for July 5. In the meantime, on July 3, Collins filed a declaratory judgment action in the Maricopa County Superior Court, naming the appellants as defendants and seeking a declaration that Sec. 13-3502 is constitutional. Collins also filed a motion to dismiss in the federal action, dated July 3, 1984, ⁴ arguing, inter alia, that appellants lacked standing to sue and that the district court should abstain in view of the state proceeding.

At the close of the preliminary injunction hearing on July 5, the parties stipulated that the district court's findings of fact drawn from that hearing would be conclusive. The district court thus consolidated the preliminary injunction hearing with trial on the merits pursuant to Fed.R.Civ.P. 65(a)(2). On July 10, 1984, the district court denied appellants' application for a preliminary injunction and denied the requests for declaratory and permanent injunctive relief. In reaching this conclusion, the court rejected Collins' jurisdiction and abstention arguments, held that Arizona's definition of "prurient interest" was not overbroad, and found that the felony fine provisions did not impermissibly restrain or chill speech. See Polykoff v. Collins, 596 F.Supp. 584, 587-91 (D.Ariz.1984).

After appellants timely appealed, on December 12, 1984, this court granted appellants' motion to stay the appeal pending the Supreme Court's decision in Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). On November 7, 1985, this court also granted the parties' joint motion for a limited remand to conduct supplemental evidentiary hearings on the question whether the felony fine provisions chill speech. The district court conducted hearings on November 27, 1985, but made no findings on the evidence presented. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982).

II. DISCUSSION

A. Jurisdiction in the District Court

Collins argues that the district court erred in holding that appellants had standing to bring this action, because no enforcement proceeding against appellants had been initiated and the threat of prosecution of appellants was not sufficiently real and immediate to create an actual controversy. We review de novo the district court's decision on the jurisdictional question of standing. Fors v. Lehman, 741 F.2d 1130, 1132 (9th Cir.1984). Underlying factual determinations are reviewed under a clearly erroneous standard. See Bohemia, Inc. v. Home Ins. Co., 725 F.2d 506, 508-09 (9th Cir.1984).

This case presents an actual and ripe controversy, because there was a "reasonable threat of prosecution for conduct allegedly protected by the Constitution." Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., --- U.S. ----, 106 S.Ct. 2718, 2722 n. 1, 91 L.Ed.2d 512 (1986); id. --- U.S. at ----, 106 S.Ct. at 2726 n. 4 (Stevens, J., concurring); Steffel v. Thompson, 415 U.S. 452, 458-59, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974); see also Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 1755, 32 L.Ed.2d 257 (1972) (stating that an "actual controversy" under the Declaratory Judgment Act exists when " 'there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment' ") (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941)). Each of the appellants owned or worked for a bookstore or video store that sold "adult" materials. They alleged that they sell protected materials that Collins believes fall within the ambit of the statute. The district court found that Collins was actively prosecuting other owners of adult bookstores under Sec. 13-3502 and that he would prosecute the appellants if probable cause existed to believe that they violated that law. Polykoff, 596 F.Supp. at 587.

In addition, the chilling of protected speech caused by Arizona's statutory system for obscenity, if it exists as alleged, would be immediate. See Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 956, 104 S.Ct. 2839, 2846, 81 L.Ed.2d 786 (1984) (stating that "where there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society's interest in having the statute challenged"); Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 2325-26, 33 L.Ed.2d 154 (1972) (indicating that an allegation of chilling effect would establish a justiciable controversy if based on "a claim of specific present objective harm or a threat of specific future harm"). We thus conclude that the district court properly assumed jurisdiction over this action. See Spokane Arcades, 472 U.S. 491, 105 S.Ct. 2794 (implicitly finding that plaintiffs had standing to bring a Sec. 1983 suit seeking declaratory and injunctive relief against an obscenity law prior to its enforcement against anyone); Vance v. Universal Amusement Co., 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980) (per curiam) (rejecting the argument of two dissenting Justices that the actual controversy requirement was not met in a suit challenging an obscenity law prior to its enforcement).

B. Abstention

Collins also argues that the district court should have abstained in view of the declaratory action filed by Collins against the appellants in state court. Though not clearly delineated, Collins' argument partakes of several categories of abstention doctrine, which the district court found inapplicable. We treat each in turn.

Collins principally asks us to invoke the abstention doctrine associated with Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), when a state civil action seeks the same declaratory relief on a...