Speight v. Slaton, Civ. A. No. 17075.

• Decision Date: 22 February 1973
• Docket Number: Civ. A. No. 17075.
• Citation: 356 F. Supp. 1101
• Parties: Alvis G. SPEIGHT, t/a Harem Book Store, and James L. Chandler, Plaintiffs, v. Lewis R. SLATON, In his Capacity as District Attorney, Atlanta Judicial Circuit, and Hinson McAuliffe, In his Capacity as Solicitor, Criminal Court of Fulton County, Defendants.
• Court: U.S. District Court — Northern District of Georgia

356 F. Supp. 1101

Alvis G. SPEIGHT, t/a Harem Book Store, and James L. Chandler, Plaintiffs, v. Lewis R. SLATON, In his Capacity as District Attorney, Atlanta Judicial Circuit, and Hinson McAuliffe, In his Capacity as Solicitor, Criminal Court of Fulton County, Defendants.

Civ. A. No. 17075.

United States District Court, N. D. Georgia, Atlanta Division.

February 22, 1973.

D. Freeman Hutton, Gilbert H. Deitch, Atlanta, Ga., Robert E. Smith, Baltimore, Md., for plaintiffs.

Joel Feldman, Asst. Dist. Atty., Atlanta, Ga., for defendants.

Before MORGAN, Circuit Judge, and MOYE and O'KELLEY, District Judges.

MOYE, District Judge:

OPINION AND ORDER

Plaintiffs operate an establishment in Atlanta, Georgia, known as the Harem Bookstore. On August 23, 1972, pursuant to recently enacted Georgia statutes relating to obscenity,¹ the defendants herein brought a civil suit in the Georgia state courts to abate the Harem Bookstore as a public nuisance.² On the same day the state court ordered plaintiffs herein to show cause why their bookstore should not be abated as a public nuisance, they brought this suit in federal court alleging that the materials sold in their bookstore were protected by the First Amendment and the attempt to abate their bookstore as a public nuisance was unconstitutional.³ Plaintiffs challenged the constitutionality of the Georgia statutes as written and as applied and requested this Court to intervene in the state court proceedings and enjoin further use of the allegedly unconstitutional Georgia statutes. Since that time the state court suit has been stayed pending the outcome of this request for federal intervention.

The propriety of federal intervention in state court proceedings has been the subject of numerous recent Supreme Court and Fifth Circuit opinions. New guidelines for federal intervention in state court criminal proceedings were established by the Supreme Court in Younger v. Harris⁴ and its companion cases.⁵ But Younger specifically declined to extend the applicability of those standards to intervention in state court civil proceedings.⁶

We need not pause here to analyze how the Younger standards should be applied in state court civil cases because the instant case does not present that situation. The situation before this Court does not involve a request for intervention in simply a Georgia state court civil case, but instead, a state court civil proceeding used to enforce Georgia's criminal laws. The propriety of federal intervention in these circumstances has been squarely decided by the Fifth Circuit Court of Appeals in Palaio v. McAuliffe.⁷

Palaio involved a fact situation strikingly similar to the instant case. In Palaio, plaintiffs requested the federal district court to enjoin Georgia civil and criminal suits which had been brought against them under Georgia obscenity laws. The federal district court refused to intervene and the court of appeals affirmed. The only difference between Palaio and the instant case is that in Palaio the state court had already heard the entire case and rendered a decision which was affirmed by the Georgia Supreme Court when the federal district court refused to intervene. Here, the state court civil suit has not yet begun and has been stayed pending the outcome of this case. As explained below, this distinction weighs heavily in favor of nonintervention.

In affirming the district court's refusal to intervene, the court of appeals in Palaio held:

"We believe, however, that application of the principles of Younger should not depend upon such labels as `civil' or `criminal,' but rather should be governed by analysis of the competing interests that each case presents and when federal anticipatory relief will significantly affect a state's enforcement — by whatever means — of its criminal laws, then such relief is barred by the strong policy of noninterference, unless the plaintiff can meet the heavy burden of proof that Younger imposes."

* * * * * *

"We thus pose a limited answer to the question expressly reserved in Younger, supra, by holding that, where plaintiff is unable to prove the existence of `special circumstances,' the principles of Younger bar federal intervention in a state civil proceeding that is an integral part of a state's enforcement of its criminal laws."⁸

The instant case which we are requested to enjoin is, like Palaio, a state civil proceeding that is an integral part of the State of Georgia's enforcement of its criminal laws. In fact, the instant case presents an even stronger case for non-intervention than Palaio because the state laws which were claimed to be unconstitutional in Palaio had already been tested in the Georgia state courts prior to the request for intervention, while here the state law is a new statute and has not been ruled on by the Georgia state courts.

In support of Palaio, which was virtually a "gray horse" case, we could refer to Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), in which Chief Justice Burger, speaking for the dissent, consisting of Justices Burger, White and Blackmun Justices Powell and Rehnquist not participating, suggested:

"We have not yet reached or decided exactly how great a restraint is imposed by these principles on a federal court asked to enjoin state civil proceedings. Therefore on remand in this case, it seems to me the District Court, before reaching a decision on the merits of petitioner's claim, should properly consider whether general notions of equity or principles of federalism, similar to those invoked in Younger, prevent the issuance of an injunction against the state `nuisance abatement' proceedings in the circumstances of this case." Id. at 244, 92 S.Ct. at 2163.

Furthermore, plaintiff consistently responded at the three-judge hearing that he could raise the same issues of constitutionality in the Georgia state courts. Consequently, this Court holds that the Georgia state court suit has not been brought in bad faith or for purposes of harassment and that plaintiff has failed to present any "special circumstances which would justify federal intervention.

Accordingly, the complaint is dismissed.⁹

O'KELLEY, District Judge (concurring):

I agree completely with the opinion of Judge Moye in this case.

It would appear that the dissent has attempted to reach the merits of the case before deciding the threshold question, that is if it should even have the case in the first place. The dissenting opinion would imply that our brothers on the state bench are neither willing nor able to apply the First Amendment of the United States Constitution. I do not agree that that is so. If a state trial judge errs, the Supreme Court of Georgia is available to correct his error. If they both err, that is not the end of the avenue when a federal constitutional right is at stake. The Supreme Court of the United States may accept certiorari and review the case even though it has found its course there through the state court system. This is federalism.

The Seventh Circuit has applied the principle of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) to civil actions. Cousins v. Wigoda, 463 F.2d 603, (7 Cir. 1972). More recently, the Fourth Circuit, speaking through Judge Craven, extended that principle to the civil field saying:

"The long-standing public policy against federal court interference with state court proceedings generally means that the jurisdiction of a state court first obtained should not be interfered with by federal courts.

"The `pendency' of state proceedings is one of the most important criteria in determining whether federal court intervention in state action is appropriate. . . . Because of the costs involved, in terms of both time and money, the divisive effect of unnecessary friction between coordinate courts, and the clear obligation of state courts to decide questions arising under the United States Constitution, . . . there is a presumption against federal interference." Lynch v. Snepp, 472 F.2d 769 (4 Cir. 1973).

The Lynch case like this case dealt with a First Amendment question. The court implied that the statute at issue was possibly overbroad and imposed a prior restraint on the parties. That court felt, as does this court, that in order for the federal court to intervene, there must be no adequate remedy or appellate process in the state courts.

In the case sub judice, there is a single controversy pending in a court of the State of Georgia which may be litigated and appealed to a final determination. There is no allegation of harassment or inadequate remedy in the state court machinery.

If the statute under attack is so clearly unconstitutional as contended by the dissent, surely the Georgia courts will so hold. I am of the opinion that they should first have that opportunity since that statute has never been before them for consideration.

For the foregoing reasons, this court should abstain from interference in the pending litigation and I concur with the opinion and order of Judge Moye.

LEWIS R. MORGAN, Circuit Judge (dissenting):

I must respectfully dissent from the court's decision not to intervene in the state court proceedings.

First, I feel it is necessary to set out in detail exactly what the state is seeking in this proceeding. Over a period of time agents of the state, apparently posing as customers, bought a number of "adult" books from the Harem Bookstore in southwest Atlanta. These items constituted the core of the evidence against the bookstore and its owners. The state first sought to prosecute the owners of the Harem Bookstore in a criminal proceeding under the state's obscenity laws.¹ The trial before a jury resulted in a mistrial with the jury unable to decide whether the materials were obscene. Having failed to this degree in direct criminal prosecution, the state moved to what the majority characterizes as its "civil enforcement of its criminal laws."

The suit this court is...