Record Head Inc. v. Olson, Civ. No. A3-79-79.

• Decision Date: 17 September 1979
• Docket Number: Civ. No. A3-79-79.
• Parties: RECORD HEAD INC., a North Dakota Corporation, Dan Bredell, d/b/a Mother's Records and Nalpac Enterprises, Ltd., d/b/a Nalpac, Ltd., a Michigan Corporation, Plaintiffs, v. Allen OLSON, Individually and in his official capacity as Attorney General of the State of North Dakota, Defendant.
• Court: U.S. District Court — District of South Dakota

476 F. Supp. 366

RECORD HEAD INC., a North Dakota Corporation, Dan Bredell, d/b/a Mother's Records and Nalpac Enterprises, Ltd., d/b/a Nalpac, Ltd., a Michigan Corporation, Plaintiffs, v. Allen OLSON, Individually and in his official capacity as Attorney General of the State of North Dakota, Defendant.

Civ. No. A3-79-79.

United States District Court, D. North Dakota, Southeastern Division.

September 17, 1979.

COPYRIGHT MATERIAL OMITTED

Russell J. Myhre, Bismarck, N.D. (Michael L. Pritzker, Stroup, Goldstein, Jacobs, Jenkins & Pritzker, Chicago, Ill., of counsel), for plaintiffs.

Gail H. Hagerty, Asst. Atty. Gen., Allen I. Olson, Atty. Gen., Bismarck, N.D., for defendant.

ORDER

BENSON, Chief Judge.

Plaintiffs in the above-entitled action seek declaratory, injunctive and monetary relief from the effects of N.D.Cent.Code § 12.1-31-04, a statute enacted by the North Dakota Legislature in 1979 and which became effective on July 1, 1979. The action is now before the court on plaintiffs' motions for a preliminary injunction and to strike affirmative defenses pleaded by defendant.

N.D.Cent.Code § 12.1-31-04 provides as follows:

1. Any person who knowingly manufactures, sells, or delivers paraphernalia to another or who possesses with intent to manufacture, sell, or deliver paraphernalia to another shall be guilty of a class A misdemeanor.

2. As used in this section:

a. "Deliver" means the actual, constructive, or attempted transfer from one person to another of paraphernalia whether or not there is an agency relationship.

b. "Intent" means when a person engages in the conduct, it is that person's purpose to do so.

c. "Knowingly" means when a person engages in the conduct, the person knows or has a firm belief, unaccompanied by substantial doubt, that the person is doing so, whether or not it is the person's purpose to do so.

d. "Manufacture" means the production, preparation, construction, or processing of paraphernalia, and includes any packaging or repackaging of the paraphernalia, or the labeling or relabeling of it or its container.

e. "Paraphernalia" means any instrument, device, article, or contrivance used, designed for use, or intended for use in ingesting, smoking, administering, or preparing marijuana, hashish, hashish oil, or cocaine. "Paraphernalia" excludes cigarette papers and tobacco pipes but includes, and is not limited to:

(1) Metal, wooden, acrylic, glass, stone, plastic, or ceramic marijuana or hashish pipes with or without screens, permanent screens, hashish heads, or puncture metal bowls.

(2) Water pipes designed for use or intended for use with marijuana, hashish, hashish oil, or cocaine.

(3) Carburetion tubes or devices.

(4) Smoking and carburetion masks.

(5) Roach clips.

(6) Separation gins designed for use or intended for use in cleaning marijuana.

(7) Cocaine spoons and vials.

(8) Chamber pipes.

(9) Carburetor pipes.

(10) Electric pipes.

(11) Air-driven pipes.

(12) Chilams.

(13) Bongs.

(14) Ice pipes or chillers.

3. In determining whether an instrument, device, article, or contrivance is paraphernalia used, designed for use, or intended for use in ingesting, smoking, administering, or preparing marijuana, hashish, hashish oil, or cocaine, a court shall consider the following:

a. Whether a person or business establishment charged with violating this Act is a licensed distributor or dealer of tobacco products under chapter 57-36.

b. Expert testimony as to the principal use of the instruments, devices, articles, or contrivances claimed to be paraphernalia.

c. Circumstantial evidence concerning the total business of a person or business establishment and the type of instruments, devices, articles, contrivances or items involved in the business.

d. National and local advertising concerning the use of the instruments, devices, articles, or contrivances claimed to be paraphernalia.

Plaintiffs acknowledge in their complaint that they have sold items which may possibly fall within the statutory definition of "paraphernalia" in N.D.Cent.Code § 12.1-31-04. Plaintiffs further state that they wish to comply with § 12.1-31-04 but are unable to do so because the statute is so broad and argue that persons of common understanding and intelligence cannot ascertain what items are within the ambit of the statute. It is alleged that the statute is void for vagueness, and therefore violative of the Fourteenth Amendment to the Constitution. Plaintiffs also allege that the statute is violative of the First, Eighth and Ninth Amendments to the Constitution and the Commerce Clause.

A hearing before the court was had on the motion for a preliminary injunction. At the hearing both oral testimony and physical exhibits were received into evidence.

I. Abstention

Defendant contends this court should abstain from ruling on the issues in this case until the North Dakota courts have construed § 12.1-31-04. In support of this contention, defendant asserts that the North Dakota courts may construe the statute to require, as an element, intent by the vendor to engage in unlawful activity, and that such a construction would either avoid plaintiffs' constitutional challenge or at least significantly alter the nature of the problem presented to the court.

This court has jurisdiction to hear plaintiffs' claims. 28 U.S.C. § 1331. Abstention from the exercise of federal jurisdiction is the exception, not the rule. A federal court may abdicate its responsibility to decide cases properly before it only under exceptional circumstances, where the order to the parties to repair to the state court would clearly serve an important countervailing interest. County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959). See also Colorado River Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L.Ed. 257 (1821).

The Supreme Court has confined the circumstances under which abstention would be appropriate to three general categories: (1) "cases presenting a federal constitutional issue which might be mooted or presented in a different posture 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); (2) where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case at bar; and (3) where, absent bad faith, harassment, or a patently invalid state statute, federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings, state nuisance proceedings antecedent to a criminal prosecution, or proceedings for the collection of state taxes. Colorado River Conservation District v. United States, 424 U.S. 800, 814-16, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).

Defendant concedes that this case does not fall into the third category of cases enunciated by Colorado River Conservation District, supra. There does not appear to be any state proceeding, criminal or civil, pending against plaintiffs.

Defendant contends that this case fits within either of the first two categories where abstention is appropriate. The first category is essentially the doctrine of abstention as enunciated in Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Abstention under the Pullman doctrine is appropriate "where an unconstrued state statute is susceptible of a construction by the state judiciary `which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem." Bellotti v. Baird, 428 U.S. 132, 146-47, 96 S.Ct. 2857, 2866, 49 L.Ed.2d 844 (1976), quoting Harrison v. NAACP, 360 U.S. 167, 177, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959).

The possibility that the state courts, to sustain a prosecution, might construe § 12.1-31-04 to require proof of intent to engage in an unlawful activity is not sufficient to justify abstention. Plaintiffs' complaint is not that the statute has no state of mind requirement, but that the definition of paraphernalia is vague. A state court construction of § 12.1-31-04 dealing with the state of mind required would not avoid in whole or in part the necessity for federal constitutional adjudication and would not materially change the nature of the problem presented. Bellotti v. Baird, supra. The vagueness issue would remain. The statute is open to an indefinite number of interpretations arising out of a variety of factual situations and would require piecemeal adjudication in the state courts. Baggett v. Bullitt, 377 U.S. 360, 378-79, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). The state courts could rule on the question of vagueness, but this court should not abdicate to the state courts its responsibility to decide federal constitutional issues.

The second category of cases appropriate for abstention under the holding in Colorado River Conservation District is essentially the doctrine of Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). In Burford, the Court held that abstention was proper where the only issue in the case concerned basic problems of a state policy not involving federal constitutional or statutory questions. The only issue in Burford dealt with an order of the Texas Railroad Commission regarding the spacing of oil wells. Because Texas had a "unified method for the formation of policy and determination of cases by the Commission and by the state courts," 319 U.S. at 333-34, 63 S.Ct. at 1107, the Court exercised its equitable discretion to give the Texas courts the first opportunity to consider the questions raised.

The distinguishing feature of the cases where the Burford type of abstention has been held applicable is that there were no federal constitutional issues involved. Jurisdiction was based on diversity and only...