Ripplinger v. Collins

Decision Date24 February 1989
Docket NumberNo. 87-2501,87-2501
Citation868 F.2d 1043
PartiesMary Beth RIPPLINGER; David Lee; Sylvia Kammeyer; Steve Kammeyer; Robert Brown; Barbara Wodrich; Brian Heath; Darlene Schell; Barb Chew; George Wectstein; Judy Price; Ed Price; Bill Schindler; Robert S. McBride; Wayne Sharpe, Plaintiffs-Appellants, v. Thomas A. COLLINS, in his official capacity as Maricopa County Attorney, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Richard J. Hertzberg, Phoenix, Ariz., for plaintiffs-appellants.

Benjamin W. Bull, Phoenix, Ariz., for defendant-appellee.

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

Before SCHROEDER and WIGGINS, Circuit Judges, and STEPHENS, Jr., * District Judge.

WIGGINS, Circuit Judge:

Plaintiffs, Mary Beth Ripplinger and other owners of video stores, adult theatres, and bookstores, appeal the district court's grant of summary judgment in favor of Thomas Collins, the Maricopa County Attorney [hereinafter the "state" or "Collins"]. Plaintiffs seek declaratory and injunctive relief, claiming the Arizona obscenity regulation scheme is unconstitutional on its face. We affirm in part and reverse in part.


In the spring of 1986, the Arizona legislature enacted a new obscenity statute. The new statute altered the definition of "appeal to the prurient interest" and changed the scienter requirement. Ariz.Rev.Stat. Sec. 13-3501(1)(a)(i), (2)(a), (3)(a) (Supp.1987). The new statute also raised the production, publication, sale, possession, and presentation of obscenity from a class 6 to a class 5 felony. Id. Sec. 13-3502. 1 Broadcasts or telecasts licensed under the Federal Communications Act or under title 9, chapter 5, article 1.1 of the Arizona Code (cable television) are exempt from the statute's coverage. Id. Sec. 13-3511.

Plaintiffs are owners and managers of video stores, adult bookstores or theaters in Maricopa County, Arizona. Plaintiffs all either deal in or desire to deal in the "mainstream of sexually explicit materials." Plaintiffs filed suit seeking declaratory and injunctive relief on the grounds that section 13-3502 of the Arizona obscenity statute violates the first amendment, equal protection, due process, the eighth amendment protection against excessive punishment of the United States Constitution, and the separation of powers doctrine of Article 3 of the Arizona Constitution. The district court denied plaintiffs' motion for a preliminary injunction and then granted partial summary judgment in favor of the state, rejecting all plaintiffs' constitutional arguments except the excessive punishment claim. This last issue was settled by stipulation. The eighth amendment punishment issue thus is not before us and we express no view on it. Plaintiffs timely appealed and we have jurisdiction pursuant to 28 U.S.C. Sec. 1291.


We review a grant of summary judgment de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986).

A. Jurisdictional Issues
1. Standing

Collins moved to dismiss this case in the district court on the ground that the court lacked jurisdiction because the complaint did not establish that plaintiffs had standing. Although this issue is not raised on appeal, issues of Article III standing are treated as jurisdictional, and must be addressed The first element of the standing inquiry that plaintiffs must satisfy is the "case" or "controversy" requirement of Article III of the United States Constitution. 2 Secretary of State v. J.H. Munson Co., 467 U.S. 947, 954, 104 S.Ct. 2839, 2845, 81 L.Ed.2d 786 (1984). Article III requires an injury in fact that fairly can be traced to the challenged action, and that is likely to be redressed by a favorable decision. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982).

by this court. See Bender v. Williamsport Area School Dist., 475 U.S. 534, 541-42, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986). We review the district court's decision on standing de novo. Bruce v. United States, 759 F.2d 755, 758 (9th Cir.1985).

To fulfill the "actual injury" requirement, plaintiffs must show a " 'reasonable threat of prosecution for conduct allegedly protected by the Constitution.' " Polykoff v. Collins, 816 F.2d 1326, 1331 (9th Cir.1987) (quoting Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619, 625 n. 1, 106 S.Ct. 2718, 2722 n. 1, 91 L.Ed.2d 512 (1986)). Here, at the time of filing this lawsuit, plaintiffs had not actually been prosecuted for violating the obscenity statute. 3 Each of the plaintiffs, however, owned or worked for a bookstore or video store that sold "adult materials." Plaintiffs alleged that they sold protected materials that Collins believed fell within the coverage of the statute. According to the affidavit of Randy Wakefield, deputy county attorney, the police in 1986 investigated possible violations of the obscenity statute by plaintiff Wayne Sharpe. Mr. Wakefield warned Mr. Sharpe that an obscenity charge would be initiated if he continued to distribute "hardcore pornography." Moreover, on June 4th and June 9th, 1987, five defendants were indicted in Maricopa County for violations of the new obscenity statute. Accordingly, plaintiffs have shown a reasonable threat of prosecution under the new statute. Polykoff, 816 F.2d at 1331. Also, the alleged chilling effect on protected speech of Arizona's statutory system for obscenity would be immediate. Id.; see also Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 108 S.Ct. 636, 642, 98 L.Ed.2d 782 (1988) (preenforcement suit can be brought to challenge obscenity law partly because of danger of self-censorship). This is a sufficient allegation of "actual injury" for purposes of conferring standing.

In addition to the Article III "case" or "controversy" limitation, prudential considerations limit the challenges federal courts are willing to hear. In general, the plaintiff cannot rest his claim to relief on the legal rights or interests of third parties. See J.H. Munson, 467 U.S. at 955, 104 S.Ct. at 2846. In first amendment cases, however, the Supreme Court has developed the overbreadth doctrine to allow a litigant whose own activity is subject to valid regulation to assert that a statute is unconstitutional "on its face" because it applies to protected expression of others. City Council v. Taxpayers for Vincent, 466 U.S. 789, 798-99, 104 S.Ct. 2118, 2125-26, 80 L.Ed.2d 772 (1984). 4 Similarly, when a statute prospectively limits first amendment rights and the statute is so vague that a person of reasonable intelligence cannot determine what the boundaries of Plaintiffs' equal protection claim also presents a standing issue. Plaintiffs argue that the exemption granted to cable television is unconstitutional. Even if plaintiffs prevail on this argument and we strike down the exemption, plaintiffs will not benefit because they still are covered by the statute. If plaintiffs did not have standing to challenge the exemption, however, underinclusive statutes would be effectively insulated from constitutional challenge. See Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 107 S.Ct. 1722, 1726, 95 L.Ed.2d 209 (1987). Plaintiffs thus have standing to claim a constitutional violation because others similarly situated are exempt from the operation of a state law adversely affecting the plaintiffs. Id.

that limitation are, one whose conduct is clearly covered by the statute has standing to challenge the statute for vagueness. Planned Parenthood v. State of Arizona, 718 F.2d 938, 946-47 (9th Cir.1983) (quoting Madison Joint School Dist. No. 8 v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 177, 97 S.Ct. 421, 427, 50 L.Ed.2d 376 (1976)). We conclude that plaintiffs here have standing to raise the rights of third parties by alleging vagueness and overbreadth.

2. Abstention

Collins claims that the district court erred in denying his motion to abstain under Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Collins argues that plaintiffs' attorney, Mr. Hertzberg, has raised the same constitutional challenges to the Arizona obscenity statute in his motion to dismiss criminal prosecutions in Arizona Superior Court and that the federal courts should defer to a forthcoming state court determination. The district court's application of the Pullman abstention doctrine is reviewed for an abuse of discretion. Polykoff, 816 F.2d at 1334.

Abstention from the exercise of federal jurisdiction is the exception rather than the rule. Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 236, 104 S.Ct. 2321, 2327, 81 L.Ed.2d 186 (1984). To abstain under Pullman, a federal court must find all three of the following factors: first, the complaint touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open; second, a definitive ruling on the state issue would terminate the controversy; and third, the possibly determinative issue of state law is doubtful. McMillan v. Goleta Water Dist., 792 F.2d 1453, 1458 (9th Cir.1986), cert. denied, 480 U.S. 906, 107 S.Ct. 1348, 94 L.Ed.2d 519 (1987).

In first amendment cases, the first of these factors will almost never be present because the guarantee of free expression is always an area of particular federal concern. See J-R Distribs. v. Eikenberry, 725 F.2d 482, 488 (9th Cir.1984), rev'd on other grounds sub nom. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). Moreover, abstention would " 'force the plaintiff who has commenced a federal action to suffer the delay of state court proceedings [and] effect the impermissible chilling of the very constitutional right he seeks to protect.' " Id. at 488 (quoting Zwickler v. Koota, 389 U.S. 241,...

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