United Books, Inc. v. Conte, 83-1832

• Decision Date: 26 July 1984
• Docket Number: No. 83-1832,83-1832
• Citation: 739 F.2d 30
• Parties: UNITED BOOKS, INC., Plaintiff, Appellant, v. John J. CONTE, Et Al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 30

739 F.2d 30

UNITED BOOKS, INC., Plaintiff, Appellant, v. John J. CONTE, Et Al., Defendants, Appellees.

No. 83-1832.

United States Court of Appeals First Circuit.

Argued March 8, 1984.

Decided July 26, 1984.

Regina L. Quinlan, Boston, Mass., for appellant.

Frances L. Robinson, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Frederick W. Riley, Chief, Crim. Div., and Barbara A.H. Smith, Asst. Atty. Gen., Chief, Criminal Appellate Division, Boston, Mass., were on brief, for appellees.

Before COFFIN and BOWNES, Circuit Judges, and GIERBOLINI, ^* District Judge.

COFFIN, Circuit Judge.

The plaintiff, United Books, Inc., operates what is commonly referred to as an "adult bookstore" in Worcester, Massachusetts. The store sells, among other things, books, magazines, films, and videotapes that describe or depict explicit sexual conduct. The store also maintains private, coin-operated booths where patrons may view sexually explicit films.

The plaintiff, its officers and employees, have been charged six times since April, 1981, with violations of the Massachusetts obscenity statute, Mass.Gen.Laws ch. 272, Sec. 29. Each of these prosecutions was based on the plaintiff's display of allegedly obscene films in the private booths at its store. The last of these prosecutions, which is still pending on appeal from a conviction, was brought in May, 1983 under an amended version of the Massachusetts obscenity statute. That amendment, St.1982, ch. 603, Secs. 3 & 7, increased the penalties for obscenity offenses and altered the statutory definition of obscenity. The first five prosecutions were brought before the obscenity statute was amended.

The plaintiff brought this action under 42 U.S.C. Sec. 1983 alleging that the defendant had violated the First and Fourteenth Amendment rights of United Books, its officers and employees by singling out for enforcement the films shown in its private booths. United Books sought an injunction enjoining future prosecutions "pending a declaration of the constitutionality of the obscenity [statute] prior to its amendment by the Supreme Judicial Court for the Commonwealth of Massachusetts and pending a declaration of the constitutionality of the obscenity law as amended...." In addition, the plaintiff sought a declaratory judgment holding that the amended Massachusetts obscenity law is unconstitutional "both on its face and as applied to the plaintiff United Books, Inc."

The district court dismissed the complaint. It held that the decision of the Massachusetts Supreme Judicial Court in Commonwealth v. United Books, Inc., 389 Mass. 888, 453 N.E.2d 406 (1983), rendered the complaint moot insofar as it sought to enjoin further prosecution pending a declaration of the constitutionality of the pre-amendment statute, and that the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), precludes issuance of injunctive or declaratory relief based on plaintiff's challenge to the constitutionality of the post-amendment statute. The plaintiff argues that the district court erred and that neither the Supreme Judicial Court's decision in United Books nor the Younger doctrine present any bar to its request for injunctive and declaratory relief. We affirm.

We have no trouble affirming the district court's conclusion that the United Books decision rendered moot plaintiff's request for an injunction pending adjudication of the constitutionality of the pre-amendment statute by the Supreme Judicial Court. In its decision the Supreme Judicial Court explicitly declared that Mass.Gen.Laws ch. 272, Sec. 29, as supplemented by Sec. 31, which contains the statute's definition of obscenity, is constitutional, both on its face and as applied. 389 Mass. at 889-94, 453 N.E.2d 406. Since the Supreme Judicial Court has declared the constitutionality of the pre-amendment version of the statute, plaintiff's request for an injunction pending that declaration is undeniably moot.

Whether the Younger doctrine prevents the district court from enjoining future prosecutions based on the post-amendment version of the statute and from evaluating the constitutionality of that statute is a somewhat harder question.

The Supreme Court has had frequent occasion to elaborate on its holding in Younger and to define the limits of "Our Federalism". See, e.g., C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Secs. 4251-55 (1978 & Supp.1984) (discussing Younger and its progeny). It is by now well established that a federal court may not entertain a challenge to state action nor give injunctive or declaratory relief if a state criminal action is pending when the federal action is commenced. Rather, the federal court must dismiss the action without addressing the merits "except in the rare case in which the Younger standard of bad faith, harassment, or other extraordinary circumstance is satisfied". C. Wright, Law of Federal Courts 325-26 (4th ed. 1983).

Since a prosecution under the post-amendment statute is currently pending against the plaintiff in Massachusetts, the district court held that it must defer to the state courts and refrain from considering plaintiff's claim. Plaintiff argues that this was error and that abstention was not required. It contends that the Younger doctrine is no bar to its request for injunctive relief because it seeks only to enjoin future prosecutions, not those currently pending. Although we are aware of no case directly on point, we conclude that Younger's policy of comity requires dismissal of plaintiff's claim for injunctive relief.

In coming to this conclusion we are guided by our own decision in Guerro v. Mulhearn, 498 F.2d 1249, 1253 (1st Cir.1974), where we held that a suit for damages under the federal civil rights statute could not be maintained if it would have a substantially disruptive effect upon an ongoing state proceeding:

"Where the federal court, in dealing with the question of damages caused by violation of civil rights, would have to make rulings by virtue of which the validity of a conviction in contemporary state proceedings would be called in question, the potential for federal-state friction is obvious. The federal ruling would embarrass, and could even intrude into, the state proceedings. Questions concerning the effect to be given the federal ruling in the state courts might be difficult ones, and could lead to delay, or even derailment of the course of the state action." (Footnote omitted).

This rationale strikes us as equally applicable to the case at bar.

Plaintiff seeks a preliminary injunction enjoining future prosecutions based on the post-amendment statute, pending a declaration of the statute's constitutionality by the state appellate courts or the federal district court. In order to grant such an injunction the district court would necessarily have to find that plaintiff's constitutional challenge has a substantial likelihood of success. Although such a declaration by itself would not have binding collateral effect in the state courts, it would serve notice to the state courts that an adverse declaratory judgment could be expected. This expectation might immobilize the state proceedings or lead to a "rush to judgment" to foreclose estoppel. Either result would violate Younger's obvious policy: "to permit state courts to try state cases free from interference by federal courts". 401 U.S. at 43, 91 S.Ct. at 750.

While the grant of a preliminary injunction would have an indirect effect upon the pending state appeal, granting plaintiff's request for declaratory relief would actually resolve an issue central to that appeal. Such a declaration, which would be binding on the state courts, would constitute just the sort of interference condemned in Samuels v. Mackell, 401 U.S. 66, 73, 91 S.Ct. 764, 768, 27 L.Ed.2d 688 (1971), where the Court held that "the basic policy against federal interference with pending state criminal prosecutions will be frustrated as much by a declaratory judgment as it would by an injunction". See also Conover v. Montemuro, 477 F.2d 1073, 1080 (3d Cir.1973) (en banc) (noting that "[i]f the requested declaratory relief ... would ... adjudicate an issue ... which on the basis of collateral estoppel might affect the state prosecution, then the federal court...