Sovereign News Co. v. Falke

Decision Date31 October 1977
Docket NumberNo. C77-230.,C77-230.
Citation448 F. Supp. 306
PartiesSOVEREIGN NEWS CO., Plaintiff, v. Lee C. FALKE, Prosecuting Attorney for Montgomery County, Ohio, and E. R. Robinson and C. L. Dalrymple, and John T. Corrigan, Prosecuting Attorney for Cuyahoga County, Ohio, and Roy Warner, L. Thompson, John Crawford, Archie Catavolos, Kenneth White, William Poe, Richard B. Millett, John H. Devine, James Lynsky, Vincent G. Krawulski, Carl Delau, Andrew S. Vanyo, James Kennelley, Robert J. Cermak, Henry Yisha, Gregory Kunz, B. Jones, Richard McIntosh, John McNamara, Edward C. Loucas, Samuel Hennie, Charles Berkey, Robert O'Brien, and the following members of the Police Department of the City of Cleveland, Ohio, whose full names are unknown at this time: Kaminski, Banyon, McGreer (Badge No. 1583), and John Doe I, John Doe II, and John Doe III, Defendants.
CourtU.S. District Court — Northern District of Ohio






Bernard A. Berkman, Berkman, Gordon, Kancelbaum & Levy, Cleveland, Ohio, for plaintiff.

William J. Brown, Atty. Gen. of Ohio, Thomas V. Martin, Asst. Atty. Gen., Columbus, Ohio, James A. Brogan, First Asst. County Pros., Dayton, Ohio, for amicus curiae.

Jack M. Schulman, Director of Law, Bruce A. Taylor, Asst. Director of Law, Cleveland, Ohio, Herbert Creech, Asst. Pros. Atty., Dayton, Ohio, for Falke.

Smith, Warder, Arter & Hadden, Cleveland, Ohio, Timothy J. Armstrong, Asst. Pros. Atty., Cleveland, Ohio, for Robinson and Dalrymple.


MANOS, District Judge.


On March 7, 1977, the plaintiff, Sovereign News Company,1 filed this action seeking compensatory and punitive damages, a declaratory judgment, and preliminary and permanent injunctions restraining both the Cuyahoga County, Ohio and Montgomery County, Ohio prosecutors, and all the defendant Cleveland and Dayton police officers from using evidence seized during a search of Sovereign's premises to prosecute Sovereign.2 The search in question was conducted on February 16, 1977 pursuant to a search warrant. Sovereign's complaint alleges that the search of its premises, and the Ohio statutory provisions employed to authorize that search, violate the First, Fourth, and Fourteenth Amendments to the United States Constitution.3

On March 28, 1977, Sovereign moved for a preliminary injunction, and on March 29, 1977, the court convened a hearing on that motion.4 The Cleveland policemen urged the court to dismiss Sovereign's complaint pursuant to Fed.R.Civ.P. 12(b) on the theory that the doctrine of Younger v. Harris,5 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Huffman v. Pursue,6 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) compelled the court to abstain from hearing Sovereign's constitutional claims.7

Prior to the commencement of the March 29, 1977 hearing, counsel for defendant Falke, the Prosecuting Attorney for Montgomery County, filed a written motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), (3), (6), "for the reasons that the court lacks jurisdiction over the subject matter of the action, the venue is improper and the complaint fails to state a claim upon which relief can be granted.8" Falke's motion was orally argued before the commencement of the March 29, 1977 hearing. Falke's counsel, First Assistant Montgomery County Prosecutor James Brogan, admitted that this court sustained "jurisdiction to hear the case," but urged that venue should be transferred to the Federal District Court for the Southern District of Ohio,9 and that the court should not hear Sovereign's claims because of the doctrine of "equitable restraint" enunciated in Louisville Area Inter-Faith Committee for United Farm Workers et al. v. Nottingham Liquors et al., 542 F.2d 652 (6th Cir. 1976), and Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).10 Assistant Montgomery County Prosecutor Brogan also argued that United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) prohibits this court from issuing any injunctive order restraining state law enforcement authorities from introducing illegally obtained evidence to a state grand jury that sustains jurisdiction of investigate an alleged offense to which the illegally obtained evidence is relevant.11

At the conclusion of the arguments of counsel, the court overruled defendant Falke's motion to change venue,12 and withheld ruling on the motions to dismiss until it heard the evidence elicited during the preliminary injunction hearing.13

On March 30, 1977, the second day of the hearing on the preliminary injunction, counsel for the defendant Cleveland police officers, moved the court in limine to limit the testimony of several of the Cleveland police officer defendants.14 The court denied the motion, and permitted Mr. Berkman, counsel for Sovereign, to continue his examination of the police officers called as witnesses during the preliminary injunction hearing.15

On March 31, 1977, the hearing on the preliminary injunction was concluded16 and each of the defendants renewed their motions to dismiss Sovereign's declaratory and injunctive claims.

On April 1, 1977, after the close of the hearing, the court, pursuant to motions made by the defendants, stated that it would treat the hearing as one dealing with the preliminary injunction, and that it would consider the request for a declaratory judgment "only with respect to the purely legal issue of the constitutional validity of Ohio Revised Code Sections 2907.32, 2907.01, and 2923.04. The court will not now entertain consideration of the plaintiff's declaratory judgment claims other than the claim that Sections 2907.32, 2907.01 and 2923.04 violated the United States Constitution."17 At the same time the court reiterated its earlier ruling that the question of money damages would be considered only after further proceedings, and not based on the hearing conducted between March 29 and 31, 1977.

At the conclusion of the April 1, 1977 proceeding, the defendants' respective motions to dismiss Sovereign's declaratory judgment and injunction claims were pending before the court. Sovereign's motion for a declaratory judgment on the constitutional validity of Ohio Revised Code ?? 2907.32, 2907.01, and 2923.04, and its motion for a preliminary injunction were also pending. All defendants filed answers to Sovereign's complaint by April 13, 1977, and all defendants except the Dayton policemen filed their briefs by April 25, 1977.18

By April 14, 1977, defendant Falke, pursuant to an agreement among the parties,19 supplemented the record of the earlier hearing by filing Exhibits 100-141.20 These exhibits consist of photographs which were not located in Cleveland at the time of the hearing.

On May 14, 1977, the court served copies of the plaintiff's complaint, a copy of the transcript of the hearing on the preliminary injunction, and copies of other portions of the record upon the Ohio Attorney General with an invitation that he file an amicus curiae brief in this case regarding the issues currently pending before the court. On May 19, 1977, the Ohio Attorney General accepted the court's invitation and filed an amicus curiae brief, followed by a supplemental brief filed on June 16, 1977.

On June 21, 1977, defendant Falke filed a motion to supplement the record of the March 29-31, 1977 evidentiary hearing with a certified copy of a Montgomery County Grand Jury indictment, filed in the Montgomery County Common Pleas Court on May 3, 1977.21 The court denies Prosecutor Falke's motion to reopen the record of the March evidentiary hearing to include the May indictment, because the document was not in existence at the time of the March hearing. However, the court will take judicial notice that the Montgomery County grand jury returned such an indictment on May 3, 1977. See, Federal Rules of Evidence 201, 902(4).

On July 29, 1977 Sovereign filed its post-hearing reply brief in opposition to the answer briefs previously filed by the defendants, and in opposition to the Ohio Attorney General's amicus curiae briefs.


During the April, 1976 term, the Hamilton County Ohio Grand Jury indicted Sovereign for pandering obscenity within the jurisdiction of Hamilton County, Ohio, in violation of Ohio Revised Code ?? 2923.04 and 2907.32.22

On November 1, 1976, the Montgomery County Ohio law enforcement authorities commenced an investigation of Sovereign for pandering obscenity within the jurisdiction of Montgomery County23 in violation of Ohio Revised Code ?? 2907.32, 2907.01 and 2923.04. The record shows that the Montgomery County investigation was sparked "as a result of complaints"24 received by authorities in that jurisdiction. Nothing in the record suggests that the Montgomery County inquiry was related to the Hamilton County prosecution. The Montgomery County investigation focused on the interrelation between twelve book stores in the City of Dayton, Ohio, and the stores' supposed supplier, Sovereign, located in Cleveland, Ohio.25

The Dayton police placed the twelve Dayton stores under surveillance, and observed deliveries of boxes of magazines by vans which they determined were rented by Sovereign. Dayton Police Officer E. R. Robinson visited each of the twelve bookstores, examined various magazines, and purchased twelve which he submitted to a Dayton Municipal Judge. According to Officer Robinson's affidavit,26 the purchased magazines:

"dealt almost exclusively with pictures and portraits of nude males and females engaging in various acts of sexual intercourse, bestiality, sodomy, cunnilingus, and acts of sexual perversion. The printed matter was negligible and not relevant."27

On December 19, 1976, the Municipal Judge to whom the twelve magazines were submitted...

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