Star Distributors, Ltd. v. Marino, 268
| Decision Date | 02 January 1980 |
| Docket Number | D,No. 268,268 |
| Citation | 613 F.2d 4 |
| Parties | STAR DISTRIBUTORS, LTD., Bo-Na-Te Distributors, Inc. and Model Magazine Distributors, Inc., Plaintiffs-Appellants, v. Ralph J. MARINO, Individually and as Chairman, Abraham Bernstein and Albert B.Lewis, Individually and as Members of the New York State Select LegislativeCommittee on Crime, Its Causes, Control and Effect on Society, SidneyBaumgarten, Individually, and as Assistant to the Mayor of the City of New York, Abraham Beame, Individually and as Mayor of the City of New York, Jeremiah T. Walsh, Individually and as Commissioner of Buildings of the City of New York, Cornelius F. Dennis, Individually and as Borough Superintendent of the Department of Buildings of the City of New York, Defendants-Appellees. ocket 79-7448. |
| Court | U.S. Court of Appeals — Second Circuit |
Ralph J. Schwarz, Jr., New York City, for plaintiffs-appellants.
Jeremiah B. McKenna, New York City, for defendants-appellees.
Before FEINBERG and MANSFIELD, Circuit Judges, and MISHLER, Chief Judge. *
Plaintiffs appeal from the order of June 4, 1979, of the District Court for the Southern District of New York, Gagliardi, Judge, denying their motion for a preliminary injunction. They seek to restrain the members of the New York State Select Legislation Committee on Crime, Its Causes, Control and Effect on Society (Select Committee), as well as several local officials, from enforcing three subpoenas duces tecum ordering production of various corporate records at a Select Committee hearing. We affirm the denial of a preliminary injunction.
Appellants Star Distributors, Ltd. (Star), Bo-Na-Te Distributors, Inc. (Bo-Na-Te), and Model Magazine Distributors, Inc. (Model) are engaged in the printing, publication and distribution of sexually-oriented material. The Select Committee is composed of members of the New York State Legislature authorized to investigate the "entire subject of offensive and obscene publications, motion and still pictures . . . as well as every matter . . . relevant to organized crime and to make recommendations for remedial legislation." On October 24, 1977, the Select Committee issued subpoenas duces tecum ordering appellants to appear before them and to bring with them assorted corporate books, minutes, tax returns, retainer agreements, ledgers, leases and lists of vendors and vendees. The Committee does not propose to examine these records, but wants them brought to the hearing to avoid repeated adjournments if the witnesses need to consult the records in order to answer questions.
The investigation was focused on "child pornography," i. e., the exploitation and employment of juveniles in sexually-oriented materials, and infiltration of organized crime into the industry. The subpoena to Star arose out of information gathered by the Committee from two sources. First, an unnamed convicted child pornographer informed the Select Committee's counsel that Star had distributed his photographs of children engaged in deviant sexual activities. Second, the 1971 annual report of the New York State Commission of Investigation had stated:
Thirteenth Annual Report, New York State Commission of Investigation 212 (1971).
Star and Bo-Na-Te share headquarters and management. The record does not disclose how Model is connected, beyond the statement in appellee's brief that the three are "linked together." The appellants deny their involvement in child pornography and organized crime.
Upon receipt of the subpoenas, appellants filed suit under 42 U.S.C. § 1983 alleging a violation of their First Amendment rights, seeking injunctive relief and damages. On June 4, 1979, Judge Gagliardi denied their motion for a preliminary injunction, 1 ruling that Model had not shown that the requested disclosure would inhibit its exercise of First Amendment rights, and therefore that they were not entitled to preliminary relief. While Star and Bo-Na-Te had made such a showing, the court held that the state had shown "a substantial relation between a compelling state interest and disclosure of the information sought," and therefore denied plaintiffs' motion. Plaintiffs now appeal this order. We affirm without reaching the merits.
The threshold question is whether appellees are immune from this suit against them. Immunity may be invoked by legislators in a number of different types of cases, with different consequences. Here we are concerned only with immunity from federal civil lawsuits. A federal legislator may seek protection from such suits under the Speech or Debate Clause of the United States Constitution; 2 whereas state legislators invoke common law immunity. 3
Federal legislators acting within the scope of their legislative function are immune from both damage and injunction suits, Eastland v. United States Servicemen's Fund, 421 U.S. 491, 503, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1974); see Doe v. McMillan, 412 U.S. 306, 312, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967). State legislators (sued under § 1983) are similarly immune from damage suits, Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). The Supreme Court has not reached the question of whether State legislators are immune from § 1983 suits for Injunctive relief as well. The present case raises that issue, and we conclude that these suits should be treated no differently than (1) civil Damage actions against state legislators, and (2) civil injunction suits against Federal legislators, categories with which the Supreme Court has dealt. 4
Were this an action under § 1983 for damages rather than injunctive relief, the suit would clearly be precluded by legislative immunity. The Supreme Court has on several occasions held that " § 1983 is to be read in harmony with general principles of tort immunities." 5 Imbler v. Pachtman 424 U.S. 409, 418, 96 S.Ct. 984, 989, 47 L.Ed.2d 128 (1976). In Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), a suit for damages, the Court established that "the statute of 1871 (§ 1983) does not create liability" for acts of a state legislative committee "in a field where legislators traditionally have power to act." Id. at 379, 71 S.Ct. at 789.
The plaintiff in Tenney claimed that certain hearings of the California Senate Un-American Activities Committee were intended to smear him rather than to further any legitimate legislative purpose. Justice Frankfurter, writing for the Court, determined that the historical recognition of "the freedom of State legislators acting within their traditional sphere" had not been curtailed by the enactment of § 1983. 341 U.S. at 376, 71 S.Ct. at 788. He drew heavily on the common origins of the common law immunity and the Speech or Debate Clause contained in the United States Constitution and nearly all of the state constitutions. 6 Those origins included the British Parliamentary struggles of the sixteenth and seventeenth centuries and the Bill of Rights of 1689. 7 Tenney, like the cases construing the Speech or Debate Clause, "recognizes the need for immunity to protect the 'public good.' " Lake Country Estates v. Tahoe Planning Agency, 440 U.S. 391, 404-05, 99 S.Ct. 1171, 1179, 59 L.Ed.2d 401 (1979).
Immunity from damages is not inevitably accompanied by immunity from injunctive relief. Wood v. Strickland, 420 U.S. 308, 315 n.6, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). However, the justification for legislative immunity against injunctive relief, while somewhat different from that for immunity from damages, is no less compelling. The threat of an award of damages, like the threat of a criminal prosecution, may chill legislators in the performance of their duties, Gravel v. United States, 408 U.S. 606, 617-18, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972); Tenney v. Brandhove, supra, 341 U.S. at 377, 71 S.Ct. 783. The deterrent effect of the threat of injunctive relief may be less but the "cost and inconvenience and distractions of a trial upon a conclusion of the pleader" remain. Id. Indeed,
This reasoning, which has led the Supreme Court to find immunity from suits for injunctive relief under the federal Speech or Debate Clause for members of Congress, applies equally here.
Thus the public interest in holding legislators immune from civil suits seeking injunctive relief is substantial. Moreover, the individual alleging constitutional injury is in a position to protect himself in cases such as this. When the subpoena is directed at the party claiming a constitutional violation, that party has the option of...
To continue reading
Request your trial
-
State ex rel. Stephan v. Kansas House of Representatives
...similarity between common-law immunity and federal Speech or Debate Clause immunity. As stated by the court in Star Distributors, Ltd. v. Marino, 613 F.2d 4, 8 (2nd Cir.1980), "[t]he shared origins and justifications of [state legislative immunity and immunity under the federal Speech or De......
-
Birmingham v. Ogden
...a proceeding, Birmingham could have litigated his constitutional claims. New York Civil Service Law § 76(1); see Star Distrib., Ltd. v. Marino, 613 F.2d 4, 8 n. 10 (2d Cir.1980) (noting the obligation and competence of state courts to decide federal questions); see also Huffman v. Pursue, L......
-
Thomas v. Beth Israel Hosp. Inc.
...Circuit. See Donkor, 673 F.Supp. at 1226 (citing Texaco Inc. v. Penzoil Co., 784 F.2d 1133, 1142 (2d Cir.1986); Star Distrib., Ltd. v. Marino, 613 F.2d 4, 8 n. 10 (2d Cir.1980)). Thus, Thomas may assert his civil rights claims in the pending neglect proceeding, upon appeal of any decision t......
-
State Employees Bargaining Agent v. Rowland
...immunity may shield state officials from claims for injunctive relief (as opposed to claims for damages) in Star Distributors, Ltd. v. Marino, 613 F.2d 4 (2d Cir.1980). In that case, we considered whether legislative immunity applied to bar claims seeking to enjoin members of the New York S......