Polykoff v. Collins, CIV 84-1101 PHX CLH.
| Decision Date | 10 July 1984 |
| Docket Number | No. CIV 84-1101 PHX CLH.,CIV 84-1101 PHX CLH. |
| Citation | 596 F. Supp. 584 |
| Parties | Louis POLYKOFF, IAS, Inc., Charles Stuart, Charles Clapp, Jess Emery, David Fuehring, Modernworld, Inc., Tony Dumbsky, Bill Henderson, Elise White, and Michael Kaplan, Plaintiffs, v. Thomas E. COLLINS, in his official capacity as County Attorney for Maricopa County, Arizona, Defendant. |
| Court | U.S. District Court — District of Arizona |
COPYRIGHT MATERIAL OMITTED
John H. Weston, Beverly Hills, Cal., Richard J. Hertzberg, Phoenix, Ariz., for plaintiffs.
Sandoe O. Shuch, Deputy County Atty., Bruce A. Taylor, Phoenix, Ariz., for defendant.
Invoking the Civil Rights Act, 42 U.S.C. § 1983, plaintiffs Louis Polykoff, IAS, Inc., Charles Stuart, Charles Clapp, Jess Emery, David Fuehring, Modernworld, Inc., Tony Dumbsky, Bill Henderson, Elise White, and Michael Kaplan seek a declaratory judgment and injunction restraining defendant Thomas E. Collins, in his official capacity as the Maricopa County Attorney, from prosecuting them for violations of section 13-3502 of the Arizona Revised Statutes on the basis that this statute abridges rights secured by the First and Fourteenth Amendments of the United States Constitution. At the close of the hearing for the plaintiffs' application for preliminary injunction, the parties stipulated that the Court's findings of fact may be deemed conclusive and that a trial on the merits would not be necessary. The trial of this action on the merits, therefore, will be deemed consolidated with the hearings for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65(a)(2). The following memorandum opinion will serve as the Court's findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52.
The plaintiffs are corporations and individuals who are either owners or employees of stores that sell materials, such as magazines or films, depicting adults engaged in various sexual activities. These stores are located in Maricopa County. The defendant, as the County Attorney, is charged with the duty of prosecuting persons who violate the state laws within Maricopa County.
Under A.R.S. § 13-3502, a person who knowingly sells or offers to sell any "obscene item" is guilty of a class 6 felony. An item is obscene as the term is used in § 13-3502 when:
A.R.S. § 13-3501.2. Under Arizona's sentencing statutes, an enterprise and an individual guilty of a class 6 felony may be punished by imposition of fines of up to $1,000,000 and $150,000, respectively. A.R.S. § 13-804, 13-801.
The defendant has successfully prosecuted a number of adult book store owners for violations of § 13-3502. Fines of up to $7,500, all pursuant to plea agreements, have been imposed by the Maricopa County Superior Court. The defendant would prosecute the plaintiffs if there were probable cause to believe that they violated § 13-3502.
Plaintiffs' complaint seeks, in addition to injunctive relief, a judgment declaring § 13-3502 unconstitutional on two grounds: first, the statute's use of the term "prurient interest" to define obscenity, as it has been interpreted by the Arizona Supreme Court 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), renders § 13-3502 overbroad and, second, the classification of violations of § 13-3502 as a class 6 felony, punishable by fines of up to $1,000,000, is a prior restraint upon the plaintiffs' freedom of speech.
The jurisdiction of this Court is based upon 28 U.S.C. § 1343(a)(4), which implements the Civil Rights Act. Although the plaintiffs have not been prosecuted under § 13-3502, the fact that other owners of adult book stores have been prosecuted is a sufficient threat of prosecution to create the jurisdictional predicate of an "actual controversy." See Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1216, 39 L.Ed.2d 505 (1974); cf. Ellis v. Dyson, 421 U.S. 426, 95 S.Ct. 1691, 44 L.Ed.2d 274 (1975). Accordingly, the Court finds that it has jurisdiction over this case.
The defendant first contends that the Court should abstain from exercise of its jurisdiction in favor of pending state litigation concerning the same controversy. It is, however, a "virtually unflagging obligation of the federal courts to exercise the jurisdiction given them." Colorado River Water Conservation District v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976). Therefore, "abstention from the exercise of federal jurisdiction is the exception, not the rule." Id. at 813, 96 S.Ct. at 1244. There are three general categories of abstention, none of which are applicable to this case:
First, abstention is appropriate "in cases presenting a federal constitutional issue which might be mooted or presented by a state court determination of pertinent state law." County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163 (1959). The defendant has not suggested a construction of § 13-3502 that would obviate the plaintiffs' constitutional challenge. Section 13-3502, moreover, has been authoritatively construed in its relevant parts by the Arizona Supreme Court in State v. Bartanen, 121 Ariz. 454, 591 P.2d 546.
Second, abstention is also appropriate when the case presents "difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar." Colorado River Conserv. Dist., 424 U.S. at 814, 96 S.Ct. at 1244. In this case, the Court is not called upon to construe state law in view of state policy. Rather, state law will be considered in the context of a federal constitutional challenge.
Finally, abstention is appropriate when "federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings, ... state nuisance proceedings antecedent to a criminal prosecution, which are directed at obtaining closure of places exhibiting obscene films, ... or collection of state taxes." Id. at 816, 96 S.Ct. at 1245 (citations omitted). At this time there is no pending state criminal prosecution or state nuisance proceeding against the plaintiffs.
In view of the above considerations, defendant's bid for abstention appears to be based merely upon a preference for having the constitutionality of this statute determined in state court. This is not a legitimate reason for a federal court to decline to exercise jurisdiction and, therefore, the Court will deny the plaintiffs' motion to dismiss. See, e.g., J-R Distributors, Inc. v. Eikenberry, 725 F.2d 482 (9th Cir.1984); Kit-Dal Cinema v. Village of Downers Grove, Ill., 534 F.Supp. 81 (N.D. Ill.1981).
The plaintiffs first contend that § 13-3502 is facially overbroad insofar as it outlaws expression protected by the First Amendment and, therefore, must be declared unconstitutional. Application of the First Amendment overbreadth doctrine to bar all enforcement of a statute is "strong medicine" and, accordingly, has been applied "with hesitation, and then only as a last resort." New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973)). Three requirements must be met before § 13-3502 may be declared invalid on its face. First, the statute must bring within its sweep expression protected by the First Amendment. J-R Distributors, Inc. v. Eikenberry, 725 F.2d 482, 486 (9th Cir.1984); Wurtz v. Risley, 719 F.2d 1438, 1440 (9th Cir. 1983). Second, the statute must not be readily subject to a narrowing construction by the state courts which might cure the constitutional deficiency. See Ferber, 458 U.S. at 769 n. 24, 102 S.Ct. at 3361 n. 24; Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125 (1975). Third, the deterrent effect on legitimate expression must be both real and substantial. Erznoznik, 422 U.S. at 216, 95 S.Ct. at 2276; see also Ferber, 458 U.S. at 769-70, 102 S.Ct. at 3361-62. A discussion of each of these requirements of the overbreadth doctrine will not be necessary, however, because the Court finds that § 13-3502 does not prohibit legitimate expression.
Section 13-3502 defines obscenity by adopting the tripartite test established in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 rehearing denied, 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 (1973). One definitional element of obscenity, thus, is that the item "appeal to the prurient interest." A.R.S. § 13-3501.2(a). The plaintiffs' first point of contention with respect to § 13-3502 is that the term "prurient interest," as defined by the Arizona Supreme Court in State v. Bartanen, 121 Ariz. 454, 591 P.2d 546, is unduly broad.
To continue reading
Request your trial
-
Polykoff v. Collins
...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 pendi......
-
State v. Feld, 1
...more than would a fine imposed on the defendant, a remedy which has been held not to constitute a prior restraint in Polykoff v. Collins, 596 F.Supp. 584 (D.Ariz.1984), aff'd, 816 F.2d 1326 (9th Similarly, subsection (D)(5), allowing a state or county general fund to be reimbursed for the c......
-
Cohen v. City of Daleville, Ala.
...of narrowly structured nuisance and abatement laws), cert. denied, 479 U.S. 915, 107 S.Ct. 316, 93 L.Ed.2d 290 (1986); Polykoff v. Collins, 596 F.Supp. 584 (D.Ariz.1984) (criminal fines imposed by judges for punishment are constitutional), aff'd, 816 F.2d 1326 (9th Cir. 1987); State ex rel.......
-
Espinoza v. Fry's Food Stores of Arizona, Inc., CIV 89-1934 PHX RCB.
...on policy problems of substantial public import whose importance transcends the result in the case then at bar.'" Polykoff v. Collins, 596 F.Supp. 584, 587 (D.Ariz.1984) (quoting Colorado River Conservation District v. United States, 424 U.S. 800, 814, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483, 4......