Women's Liberation Union of Rhode Island, Inc. v. Israel

• Citation: 379 F. Supp. 44
• Decision Date: 23 July 1974
• Docket Number: Civ. A. No. 74-139.
• Parties: WOMEN'S LIBERATION UNION OF RHODE ISLAND, INC., et al., Plaintiffs, v. Richard J. ISRAEL, Attorney General for the State of Rhode Island; and Deeb G. Sarkas, Liquor Control Administrator for the State of Rhode Island, Defendants.
• Court: U.S. District Court — District of Rhode Island

379 F. Supp. 44

WOMEN'S LIBERATION UNION OF RHODE ISLAND, INC., et al., Plaintiffs, v. Richard J. ISRAEL, Attorney General for the State of Rhode Island; and Deeb G. Sarkas, Liquor Control Administrator for the State of Rhode Island, Defendants.

Civ. A. No. 74-139.

United States District Court, D. Rhode Island.

July 23, 1974.

Stephen J. Fortunato, Jr., Pawtucket, R. I., for plaintiffs.

W. Slater Allen, Jr., Asst. Atty. Gen. of R. I., Providence, R. I., for defendants.

OPINION

PETTINE, Chief Judge.

The issue to be resolved in this litigation is whether § 3-8-5 R.I.G.L.1956 (1969 Reenactment) is facially unconstitutional in that it violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.

On June 5, 1974 Doorley's Tap, in Providence, Rhode Island refused to serve alcoholic beverages to the named plaintiffs, all over 18 years of age and members of Women's Liberation Union of Rhode Island, Inc., simply because they were females who were not allowed, by virtue of the statute at issue, to drink beverages on the premises which was operating under a Class C retail liquor license.

As a result, they pray that this court declare § 3-8-5 R.I.G.L. to be unconstitutional under 28 U.S.C. § 1343 and 42 U.S.C. § 1983.

Section 3-8-5 of the R.I.G.L. in pertinent part reads:

"Every person who shall . . . allow any . . . woman to drink beverages on premises licensed under retailers' class C licenses . . . shall be fined not more than five hundred dollars ($500) or be imprisoned not more than one (1) year, or both, and shall thereafter for the term of five (5) years next following his conviction, be disqualified from holding any license under this title."

Defendants, the Attorney General of the State of Rhode Island and the Administrator of the State Liquor Control, have among their statutory responsibilities the enforcement of R.I.G.L. § 3-8-5, which, in pertinent part, subjects holders of Class C retail liquor licenses, their agents and employees to criminal sanctions and disqualification from holding any liquor license for a five-year period for serving or allowing any woman to drink beverages on their premises.

At the hearing before this court on July 26, 1974, it was also established and I so find that the plaintiffs on a previous occasion were told by the management of Doorley's Bar that if they persisted in their attempts to obtain alcoholic beverages on the premises "a complaint would be filed with the Providence Police Department", that of 1799 establishments in Rhode Island licensed to sell liquor by the drink, 146 of them operate under Class C licenses.

The Class C license is one category of retail liquor licenses created by Title 3 of Rhode Island General Laws. The Class C license authorizes the establishment of saloons or bars, where no food is cooked on the premises. See R.I.G.L. §§ 3-7-8, 3-7-9, 3-7-10. Among the other categories of retail licenses authorized by Title 3 are the package store (Class A), the bar-restaurant (Class B), and the beer and wine tavern (Class F). R.I.G.L. §§ 3-7-1, 3-7-3, 3-7-7, 3-7-14. All liquor licenseholders are prohibited from selling or serving liquor to minors. R.I.G.L. § 3-8-1. Only Class C licenseholders are prohibited from selling or serving liquor to adult women. None are prohibited from selling or serving liquor to adult men.

For reasons which follow I hold that the challenged portions of R.I.G.L. § 3-8-5 violate the Equal Protection Clause of the Fourteenth Amendment. As a result I do not reach plaintiffs' First Amendment challenge to the enactment.

DECLARATORY INJUNCTION

Although when an injunction is sought against the enforcement of a state statute on the grounds of unconstitutionality a three-judge court is required by 28 U.S.C. § 2281, a single judge has the jurisdiction to decide an action where only a declaratory judgment is sought. Mitchell v. Donovan, 398 U.S. 427, 430-431, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970); Doe v. Israel, 358 F.Supp. 1193 (D.R.I.1973), aff'd 482 F.2d 156 (1st Cir. 1973); Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). As the Court in Mitchell v. Donovan, supra, noted 398 U.S. at p. 431, 90 S.Ct. at p. 1765:

"We have stressed that the three-judge-court legislation is not `a measure of broad social policy to be construed with great liberality,' but is rather `an enactment technical in the strict sense of the term and to be applied as such.' Phillips v. United States, 312 U.S. 246, 251 61 S.Ct. 480, 483, 85 L.Ed. 800. Thus this Court's jurisdiction under that legislation is to be literally construed. It would hardly be faithful to such a construction to read the statutory term `injunction' as meaning `declaratory judgment.'"

In Samuels v. Mackell, 401 U.S. 66, 72, 91 S.Ct. 764, 767, 27 L.Ed.2d 688 (1971) the court stated:

"ordinarily a declaratory judgment will result in precisely the same interference with and disruption of state proceedings that the long-standing policy limiting injunctions was designed to avoid."

This language does not mandate a contrary holding. Even if declaratory and injunctive relief may be equated for purposes of the doctrine that federal courts should not interfere with pending state criminal prosecutions as this dicta indicates, they are not to be equated for purposes of determining the need for a three-judge court. Doe v. Israel, supra.

STANDING

Plaintiffs' standing to sue is not diminished by the fact that the sanctions of R.I.G.L. § 3-8-5 are directed against the licenseholder and its agents. In Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), the Supreme Court held that a private club's refusal of service solely due to race inflicted a direct injury on the person denied service and accorded him standing to challenge both the club's policy and the regulations of the state liquor board which required the club to enforce its policy. Id. at 168, 178-179, 92 S.Ct. 1965. Furthermore where it appears, as it does here, that the licenseholder's refusal to serve plaintiffs stems solely from a desire to avoid the sanctions of R.I.G.L. § 3-8-5 it is "idle to call the injury to plaintiffs indirect or remote." Truax v. Raich, 239 U.S. 33, 39, 36 S.Ct. 7, 9, 60 L.Ed. 131 (1915). Cf. Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). It is further beyond question that an organization may represent its injured members in a judicial proceeding. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); cf. Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).

IMPACT of the 21st AMENDMENT ON PLAINTIFFS' EQUAL PROTECTION CLAIM

In answering plaintiffs' equal protection challenge to § 3-8-5 defendants assert that "the key question then is, may the state disregard the consitutional requirements of equal protection in exercising its power to regulate sales of liquor conferred by the United States Constitution, Articles of Amendment XXI."¹ (Defendants' Pre-Trial Memorandum) (emphasis added). I address this question at the outset, since an affirmative answer would foreclose further examination of plaintiffs' equal protection claim.

Defendants' contention that the Twenty-first Amendment supercedes the Equal Protection Clause of the Fourteenth Amendment must be rejected out of hand. Section two of the Twenty-first Amendment, on which this argument is predicated, was added as a saving clause to the national repeal of Prohibition to shield states wishing to remain "dry" from potential conflict with the Commerce Clause of the Constitution. Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, 11, 95 Cal.Rptr. 329, 485 P.2d 529 (1971); see also California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 405, 34 L. Ed.2d 342 (1972) (Marshall, J., dissenting). Yet even in this respect, section two has not been held to work a wholesale repeal of the Commerce Clause as to the regulation of alcoholic beverages.

"To draw a conclusion from this line of decisions that the Twenty-first Amendment has somehow operated to `repeal' the Commerce Clause wherever regulation of intoxicating liquors is concerned would, however, be an absurd oversimplification. If the Commerce Clause had been pro tanto `repealed,' then Congress would be left with no regulatory power over interstate or foreign commerce in intoxicating liquor. Such a conclusion would be patently bizarre and is demonstrably incorrect. . . .

Both the Twenty-first Amendment and the Commerce Clause are parts of the same Constitution. Like other provisions of the Constitution, each must be considered in the light of the other, and in the context of the issues and interests at stake in any concrete case." Hosttetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 331-332, 84 S.Ct. 1293, 1298, 12 L. Ed.2d 350; see Sail'er Inn, supra, 5 Cal.3d at 11-12, 95 Cal.Rptr. 329, 485 P.2d 529.

In this case the controversy does not revolve primarily around the Commerce Clause. It is based entirely upon the Equal Protection Clause of the Fourteenth Amendment and possesses no interstate implications. Krauss v. Sacramento Inn, 314 F.Supp. 171 (E.D.Cal. 1970) vacated in part and remanded on other grounds sub nom. Krause v. Sacramento Inn, 479 F.2d 988 (9th Cir. 1973). Whatever its broad effect on the Commerce Clause, the Twenty-first Amendment does not displace the Equal Protection Clause of the Fourteenth Amendment. A statute which is reasonable under the Twenty-first Amendment may still be held unconstitutional for violation of the Fourteenth Amendment. Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 15 (1971). And the assertion that the state or its liquor board, "itself the repository of the State's power under the Twenty-first Amendment" LaRue, supra, 409 U. S. at 116, 93 S.Ct. at 396 is immune from the requirements of the Fourteenth Amendment cannot be entertained seriously in light of the Supreme Court's decision in Moose Lodge, supra. Jus...