Wilhelm v. Turner, 19792

Decision Date30 June 1970
Docket Number19796.,No. 19792,19792
PartiesHenry WILHELM and Lawrence Frank, Appellants, v. Richard C. TURNER, Attorney General of Iowa; Douglas Carlson, Assistant Attorney General, Robert C. Blair, Director, Iowa Bureau of Criminal Investigation, Daniel Mayer and Terry C. Johnson, Agents, Appellees. Henry WILHELM and Lawrence Frank, Appellees, v. Richard C. TURNER, Attorney General of Iowa, Douglas Carlson, Assistant Attorney General, Robert C. Blair, Director, Iowa Bureau of Criminal Investigation, Daniel Mayer and Terry C. Johnson, Agents, Appellants.
CourtU.S. Court of Appeals — Eighth Circuit

Clark L. Holmes, of Holmes & Ralph, Des Moines, Iowa, for Wilhelm and others.

Richard C. Turner, Atty. Gen., Des Moines, Iowa, for Turner and others; Larry Seckington, Asst. Atty. Gen., and Eugene Davis, Des Moines, Iowa, on the brief.

Before BLACKMUN, MEHAFFY and BRIGHT, Circuit Judges.

Rehearing En Banc Denied June 29, 1970.

MEHAFFY, Circuit Judge.

Plaintiffs Henry Wilhelm and Lawrence Frank were the publishers of a newspaper, the "Pterodactyl," which was published at irregular intervals for primary distribution on the campus of Grinnell College and in the vicinity thereof. Frank was a junior at Grinnell and Wilhelm was a former student who dropped out of Grinnell about a year and a half prior to this action.

Plaintiffs brought this action under 42 U.S.C. § 1983, seeking an injunction to compel the return of the March 13, 1969 copy of the newspaper and other materials which they alleged had been illegally seized by the Attorney General and other defendants, and they also sought compensatory and exemplary damages. The Iowa Attorney General, Richard C. Turner, had had complaints about the publication and had examined several copies which he thought to be obscene. He made arrangements with the printer and his attorney for the next copy which was furnished to the printer to be delivered to his agents. He obtained this copy on the assumption that it was obscene and that his action and the action of those acting under his direction, including the Director of the Iowa Bureau of Criminal Investigation and agents of the Bureau, who were alerted by the attorney for the printer as to when the copy would be available, was pursuant to the performance of their duties under the Iowa statutes.1 Defendants included Richard C. Turner, the Attorney General of Iowa; Douglas Carlson, one of his assistants; Robert C. Blair, Director of the Iowa Bureau of Criminal Investigation; and Daniel Mayer and Terry C. Johnson, agents of IBCI.

The complaint was filed on March 17, 1969 and on the following day defendants filed a motion to dismiss supported by affidavits. On March 19, 1969, the court set the date for a hearing on the preliminary injunction for March 25, 1969. On March 21, defendants filed a brief and affidavits in support of their motion to dismiss and supplemental motion to dismiss. On the hearing date, March 25, The Honorable Roy L. Stephenson permitted evidence to be taken orally by both parties and he treated defendants' motion as one for summary judgment. Thereafter the court filed its memorandum opinion and order which required a return of the materials to plaintiffs but refused to order a preliminary injunction on the ground that it was unnecessary and dismissed plaintiffs' claim for compensatory and exemplary damages. Judge Stephenson's opinion is reported as Wilhelm v. Turner, 298 F.Supp. 1335 (S.D. Iowa 1969). We affirm the judgment of the district court although our reasons differ in some respects from the reasons advanced in the memorandum opinion.

The Pterodactyl had been published intermittently for about a year, but the record is not clear as to exactly how many issues had been printed. The Attorney General had had a complaint from a county attorney relative to one of the issues, and he had read some previous issues and was convinced that the material was obscene. His office made arrangements with the printer and the latter's attorney to alert him when the next issue would be published and to deliver the copy to the state agents. This was done which promptly resulted in a demand for the return of the copy, and upon refusal this action ensued.

The Unlawful Seizure.

Judge Stephenson held that the materials were seized by the agents of the Attorney General at his direction without a prior judicial determination as to their obscenity and that by reason thereof the plaintiffs were entitled to a prompt return of the materials. The view of the district court was based primarily on A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), in which case the Supreme Court ruled that an adversary determination of obscenity is a necessary prerequisite to seizure. In the Kansas case, there was a warrant issued authorizing the sheriff to seize all copies of certain books but the Supreme Court there said (378 U.S. at 210, 84 S.Ct. at 1726):

"A seizure of all copies of the named titles is indeed more repressive than an injunction preventing further sale of the books. State regulation of obscenity must `conform to procedures that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line.\'"

The Court further said at 213, 84 S.Ct. at 1727:

"For if seizure of books precedes an adversary determination of their obscenity, there is danger of abridgment of the right of the public in a free society to unobstructed circulation of nonobscene books."2

We have no difficulty in agreeing with Judge Stephenson in his holding that the warrantless but voluntary arrangement for procuring the copy constituted a seizure and in following the rule of Kansas requiring an adversary determination of obscenity as a necessary prerequisite thereto. The order requiring prompt return of the materials to plaintiffs was proper under the circumstances.

Judicial Immunity.

The district court recognized that the doctrine of judicial immunity has long been applied to prosecuting attorneys and those associated with them in the discharge of their duties on the basis that they are quasi-judicial officers and should be afforded the same immunity as judges in order that they may act freely and fearlessly in the discharge of their important official functions, and further recognized that the doctrine of immunity of quasi-judicial officers such as prosecuting attorneys has not been modified by the Civil Rights Act. The primary position of the plaintiffs is that this general rule is not applicable here because the Attorney General acted prior to having seen the material seized and therefore was not engaged in a quasi-judicial function but was engaged in activities which were clearly investigative. The court found that the Attorney General and his staff must of necessity conduct investigations in carrying out their official duties, that they were acting within their jurisdiction in conducting the investigation in the case at hand, and that it is only when the Attorney General or his staff act clearly outside their jurisdiction that they lose their immunity. In accordance with these findings, the court dismissed the suit for damages against the Attorney General and his assistant. With regard to the Director of the State Bureau of Criminal Investigation and the agents of the Bureau, the court found that they were performing ministerial functions at the specific direction of the Attorney General and were therefore immune from suit for civil damages.

In their argument in opposition to the court's finding of immunity for the defendants, the plaintiffs specifically raise three questions. First, they suggest that the doctrine is not applicable in actions brought under the Civil Rights Act of 1871, 42 U.S.C. § 1983. Second, assuming the applicability of the doctrine to the Civil Rights Act, they question the extent thereof in creating immunity for prosecutors. And finally, they question whether the action by the prosecutor (Attorney General) in the instant case falls within the doctrine.

Plaintiffs suggest that the plain language of § 1983 makes the statute applicable to "every person."3 We think that Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967), affords a complete answer to plaintiffs' first argument. Pierson involved the liability of local police officers and judges under § 1983 and the Court, speaking through Mr. Chief Justice Warren, held that the common-law doctrine of judicial immunity was not abolished by § 1983. At pages 553-555, 87 S.Ct. at pages 1217-1218, the Court said:

"Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872). This immunity applies even when the judge is accused of acting maliciously and corruptly, and it `is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.\' (Citing case.) It is a judge\'s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.
"We do not believe that this settled principle of law was abolished by § 1983, which makes liable `every person\' who under color of law deprives another person of his civil
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