Rushia v. Town of Ashburnham

• Decision Date: 04 April 1983
• Docket Number: Civ. A. No. 82-1714-S.
• Citation: 582 F. Supp. 900
• Parties: Wilfred E. RUSHIA, Plaintiff, v. TOWN OF ASHBURNHAM, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

582 F. Supp. 900

Wilfred E. RUSHIA, Plaintiff, v. TOWN OF ASHBURNHAM, et al., Defendants.

Civ. A. No. 82-1714-S.

United States District Court, D. Massachusetts.

April 4, 1983.

Darragh K. Kasakoff, Seder & Seder, Worcester, Mass., for plaintiff.

Timothy Hillman, Fitchburg, Mass., for defendants.

MEMORANDUM AND ORDER

SKINNER, District Judge.

Plaintiff brings this action for declaratory and injunctive relief against the enforcement of an Ashburnham, Massachusetts bylaw which forbids the sale or display to minors of indecent publications. (Appendix, "Public Display Minors Law"). Plaintiff operates Bill's Pharmacy, Inc. in Ashburnham in which he displays and sells various magazines. He challenges the bylaw on the grounds that it is inconsistent with the Massachusetts statute on obscene matter, M.G.L. c. 272, §§ 28-32, and is unconstitutional under the First and Fourteenth Amendments. Plaintiff seeks a permanent injunction against the enforcement of the bylaw and a declaration under 28 U.S.C. § 2201 that the bylaw is unconstitutional. For the reasons which follow, plaintiff's motion is granted as to the requested declaratory relief.

Plaintiff was the subject of a complaint for violation of the bylaw brought by the defendant Chief of Police in the local district court. Plaintiff went to trial on the merits and was found not guilty, apparently due to the lack of proof that he had the requisite criminal intent. He did not raise any constitutional issues in the state action. He then filed this action and moved for a preliminary injunction. I denied plaintiff's motion for a preliminary injunction on July 30, 1982, and the Court of Appeals affirmed the denial. Rushia v. Town of Ashburnham, Massachusetts, 701 F.2d 7 (1st Cir.1983).

Before reaching the substantive issues of the case, it is necessary to determine whether the plaintiff has established the jurisdictional prerequisite for injunctive or declaratory relief. The Court of Appeals held that preliminary injunctive relief was inappropriate in this case because of plaintiff's failure to establish irreparable harm. See also Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). While this opinion dealt with a motion for a preliminary injunction, the same considerations preclude a permanent injunction. See Steffel v. Thompson, 415 U.S. 452, 471-472, 94 S.Ct. 1209, 1221-1222, 39 L.Ed.2d 505 (1974).

The availability of declaratory relief is, however, a different matter. In Steffel v. Thompson, the Supreme Court held that declaratory relief may be granted regardless of plaintiff's ability to demonstrate irreparable injury. See also Wulp v. Corcoran, 454 F.2d 826, 832 (1st Cir.1972) (quoted with approval in Steffel, 415 U.S. at 471, 94 S.Ct. at 1222). In Steffel, like the present case, a state prosecution was threatened, but was not pending, and no showing of bad faith, harassment or other special circumstances was made. "Regardless of whether injunctive relief may be appropriate, federal declaratory relief is not precluded when no state prosecution is pending and a federal plaintiff demonstrates a genuine threat of enforcement of a disputed state criminal statute...." 415 U.S. at 475, 94 S.Ct. at 1223. Defendants have stated that they would commence criminal proceedings against plaintiff if they prevailed in the Court of Appeals. Since the Court of Appeals has held for defendants by refusing to enjoin enforcement of the bylaw, a genuine threat of enforcement now exists. In this situation, "principles of federalism not only do not preclude federal intervention, they compel it." Id. at 472, 94 S.Ct. at 1222. See also American Booksellers Association v. McAuliffe, 533 F.Supp. 50 (N.D.Ga.1981).

Plaintiff's State Law Claims.

Plaintiff contends that the bylaw is "repugnant to law" under M.G.L. c. 40, § 21 because it is inconsistent with the state legislation governing obscene matter. M.G.L. c. 272, §§ 28-32. The analysis under M.G.L. c. 40, § 21 is not directly applicable to the present case because the bylaw in question was passed after the Home Rule Amendment to the Massachusetts Constitution. Mass. Const.Amend. Art. 89. The validity of the bylaw is thus determined by the provision of the Home Rule Procedures Act which states that towns can only adopt bylaws "not inconsistent with the constitution or laws enacted by the general court..." M.G.L. c. 43B, § 13; see also Mass. Const.Amend. Art. 89, § 6. Massachusetts courts will not strike a bylaw under this provision unless a state statute on the same subject demonstrates a clear legislative intent to preclude local action. School Committee of Boston v. City of Boston, 383 Mass. 693, 421 N.E.2d 1187, 1193 (1981); Bloom v. City of Worcester, 363 Mass. 136, 293 N.E.2d 268, 280 (1973).

Local regulations enjoy a presumption of validity, and a sharp conflict between the local and state legislation is required before the local regulation will be held invalid. ... That sharp conflict appears when either the legislative intent to preclude local action is clear, or, absent plain expression of such intent, the purpose of the statute cannot be achieved in the face of the local by-law.... The existence of legislation on a subject does not necessarily preclude local action, as long as the state legislative purpose can be achieved in the face of the local regulation ... School Committee of Boston v. City of Boston, supra 421 N.E.2d at 1193 (citations omitted).

Plaintiff argues that the state obscenity statute, M.G.L. c. 272, §§ 28-32, pre-empts local regulation on the same subject because the state statute covers the subject comprehensively. While the state law does address the dissemination of obscene matter to minors, it is silent on the question of whether local action on the issue is precluded. M.G.L. c. 272, § 28. Indeed, the state obscenity provisions make no mention of local action whatsoever. M.G.L. c. 272, §§ 28-32. See Grace v. Town of Brookline, 379 Mass. 43, 399 N.E.2d 1038, 1044 (1979). There is no contention that the purpose of the state statute will be frustrated by local regulation on the same subject.

"To the extent possible, local statutes and statutes of general application should be construed together so as to constitute a harmonious whole consistent with the legislative purposes of both..." School Committee of Boston, supra 421 N.E.2d at 1193 (citation omitted). In the present case, the bylaw can be read to supplement rather than to supplant the state statute. See Grace v. Town of Brookline, supra 399 N.E.2d at 1044-1045. Compare Anderson v. Boston, 376 Mass. 178, 380 N.E.2d 628 (1978) app. dism. 439 U.S. 1060 (1979). The bylaw is therefore valid under state law.

Plaintiff's Constitutional Challenges.

A. Prohibition of Protected Expression.

Plaintiff argues that the bylaw is too broad both as written and as applied because it encompasses expression protected by the First and Fourteenth Amendments to the United States Constitution. While the bylaw was apparently applied to plaintiff for the exhibition of the magazines Eros and Hornshow in the criminal complaint, the record contains no evidence as to the nature of these magazines which would enable me to make a judgment as to the constitutionality of the bylaw's application to the plaintiff's conduct.

Plaintiff is entitled to challenge the bylaw on its face, however, if it sweeps within its ambit protected expression, regardless of whether it may be constitutionally applied to plaintiff. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); Doran v. Salem Inn, Inc., 422 U.S. 922, 933, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975). "Obscenity" is not entitled to constitutional protection. Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957). The United States Supreme Court has set forth the following guidelines to determine what may be judged obscene and may therefore be subject to state regulation:

(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest...

(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

(c) whether the work taken as a whole, lacks serious literary, artistic, political or scientific value.

Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973) (citations omitted)

The Ashburnham bylaw does not meet these standards. It prohibits the display or sale of any publication, "the cover or content" of which is "lewd, lascivious, or indecent". It employs general language, such as "exploits"; "... lewd, lascivious, indecent"; "lust or passion"; "to exploit sex, lust or perversion for commercial gain"; and "any article or instrument of indecent or immoral use". Furthermore, the bylaw does not require that the work be taken as a whole, that it appeal to the prurient interest or that it depict sexual conduct in a patently offensive way. The terms of the bylaw are much more sweeping than Miller and potentially deter a substantial range of expression protected by the First and Fourteenth Amendments.

Although the state's interest in protecting its youth permits a greater degree of control over communicative materials available to them, Erznoznik v. Jacksonville, 422 U.S. 205, 212, 95 S.Ct. 2268, 2274, 45 L.Ed.2d 125 (1975); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); American Booksellers Association, Inc. v. McAuliffe, 533 F.Supp. 50 (N.D.Ga.1981), the Ashburnham bylaw also infringes on the rights of adults. Like the virtually identical statute struck down in American Booksellers Association, Inc. v. McAuliffe, "the language includes a public display prohibition which necessarily prevents perusal by, and limits sale to, adults". 533 F.Supp. at 56. Cf. Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 525, 1 L.Ed.2d 412 (1957); Hillsboro...