WXYZ, Inc. v. Hand

• Decision Date: 19 August 1981
• Docket Number: No. 79-1162,79-1162
• Citation: 658 F.2d 420
• Parties: 7 Media L. Rep. 1817 WXYZ, INC., and Michigan Association of Broadcasters, Plaintiffs-Appellees, v. Michael J. HAND, District Judge, 47th Judicial District Court of the State of Michigan, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 420

658 F.2d 420

7 Media L. Rep. 1817

WXYZ, INC., and Michigan Association of Broadcasters, Plaintiffs-Appellees, v. Michael J. HAND, District Judge, 47th Judicial District

Court of the State of Michigan, Defendant-Appellant.

No. 79-1162.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 18, 1980.

Decided Aug. 19, 1981.

John B. Kiefer, Kiefer, Allen & Cavanagh, Detroit, Mich., for defendant-appellant.

John B. Kemp, Kemp, Klein, Endelman & Beer, Raymond L. Morrow, Southfield, Mich., for plaintiffs-appellees.

Before WEICK and BOYCE F. MARTIN, Jr., Circuit Judges, and NIXON, District Judge.^*

BOYCE F. MARTIN, Jr., Circuit Judge.

Michael J. Hand, a District Judge in the 47th Judicial District of the State of Michigan, appeals from the District Court's grant of partial summary judgment in favor of plaintiffs-appellees WXYZ, Inc. and the Michigan Association of Broadcasters. The court held that a Michigan statute and a suppression order issued by Judge Hand pursuant to that statute violated the First, Fifth, and Fourteenth Amendments to the United States Constitution. WXYZ, Inc. v. Hand, 463 F.Supp. 1070 (E.D.Mich.1979). We affirm.

On September 2, 1977, a Catholic priest from Farmington, Michigan was arrested and charged with second degree criminal sexual conduct, in violation of MCLA § 750.520c. On the day of the arrest, the priest's attorney applied to Judge Hand for a suppression order under MCLA § 750.520k, which provides:

Upon the request of the counsel or the victim or actor in a prosecution under sections 520b to 520g ¹ the magistrate before whom any person is brought on a charge of having committed an offense under sections 520b to 520g shall order that the names of the victim and actor and details of the alleged offense be suppressed until such time as the actor is arraigned on the information, the charge is dismissed, or the case is otherwise concluded, whichever occurs first.

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Judge Hand immediately issued the order.¹ In order to clear up the ensuing confusion concerning the applicability of the order, Judge Hand met with representatives of the press at 9:00 that evening. He explained that the order applied to everyone, and that violators would be subject to the contempt power of the court. Nevertheless, on its 11:00 p. m. newscast that night, WXYZ-TV reported an account of the incident, including the name of the priest. Plaintiffs then instituted this action to restrain Judge Hand from enforcing the suppression order and to have the statute declared unconstitutional.

On September 27, 1977, the District Court entered a preliminary injunction. After its subsequent denial of Judge Hand's motion to dismiss for failure to state a sufficient claim, the court certified questions to the Michigan Supreme Court concerning the applicability of the suppression order to the news media and the validity of the statute under the Michigan Constitution. ² The Michigan Supreme Court declined to respond, expressing the view that the issues raised federal questions. ³ Appellees then moved in the District Court for a partial summary judgment. The District Court found the statute invalid on its face and declared that orders issued pursuant to it were void. The motion for summary judgment for a permanent injunction was denied pending a factual determination of its necessity in light of the court's decision. 463 F.Supp. at 1072. Judge Hand subsequently indicated, in response to an interrogatory, that he intended to initiate contempt proceedings against the appellees notwithstanding the District Court's order. As a result, appellees' renewed motion for partial summary judgment for a permanent injunction was granted. ⁴

On appeal, Judge Hand argues that the District Court erred in refusing to grant his motion to dismiss. He contends that both Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and the Pullman doctrine, Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), require the federal courts to abstain from adjudicating this case. He further argues that the suppression order is neither a prior restraint nor constitutionally invalid. Finally, Judge Hand asserts that even if we uphold the District Court's ruling on the suppression order, we should reverse its determination that the statute is facially unconstitutional.

I. Abstention.

The Supreme Court discussed the issue of abstention thoroughly and authoritatively in Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976):

Abstention from the exercise of federal jurisdiction is the exception, not the rule. "The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest." County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-189 (79 S.Ct. 1060, 1062-63, 3 L.Ed.2d 1163) (1959). "(I)t was never a doctrine of equity that a federal court should exercise its judicial discretion to dismiss a suit merely because a State court could entertain it." Alabama Pub. Serv. Comm'n v. Southern R. Co., 341 U.S. 341, 361 (71 S.Ct. 762, 774, 95 L.Ed. 1002) (1951) (Frankfurter, J., concurring in result). Our decisions have confined the circumstances appropriate for abstention to three general categories.

(a) Abstention is appropriate "in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law." County of Allegheny v. Frank Mashuda Co., supra (360 U.S.) at 189 (79 S.Ct. at 1063). See, e. g., Lake Carriers Assn. v. MacMullan, 406 U.S. 498 (92 S.Ct. 1749, 32 L.Ed.2d 257) (1972); United Gas Pipeline Co. v. Ideal Cement Co., 369 U.S. 134, 82 S.Ct. 676, 7 L.Ed.2d 623 (1962); Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).

(c) Finally, abstention is appropriate where, absent bad faith, harassment, or a patently invalid state statute, federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) ....

Id. at 813-816, 96 S.Ct. at 1244-45.

As it applies to this case, the abstention rule of Younger v. Harris, supra, and its progeny is clear. Lacking extraordinary circumstances, a federal court cannot enjoin a pending state criminal proceeding. Parker v. Turner, 626 F.2d 1 (6th Cir. 1980). Subsequent decisions have expanded the range of state proceedings to which the rule is applicable. See Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (civil nuisance action); Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (child abuse and custody proceedings); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (contempt proceedings). However, when no state proceeding is pending, and considerations of equity, comity, and federalism are therefore diminished, a federal court may consider constitutional challenges to state statutes and grant declaratory and injunctive relief. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977).

Judge Hand contends that because his suppression order is a vital prerequisite to a future criminal contempt proceeding, the order itself should be regarded as a pending criminal proceeding. He cites no case supporting this argument, which we find to be clearly without merit. Judge Hand's reliance on Juidice v. Vail, supra, is misplaced. That case involved a suit brought in federal court to enjoin, on constitutional grounds, the use of New York's statutory contempt procedures. Two appellees were held to have standing: Patrick Ward, who had been held in contempt but not yet imprisoned; and Joseph Rabasco, who had been issued a show cause order by the state court. The Supreme Court stated that "since their standing, unlike that of the plaintiff in Steffel v. Thompson, supra, is predicated on the existence of a pending, and not merely a threatened, proceeding, we deal with appellants' Younger contentions." 430 U.S. at 333, 97 S.Ct. at 1216. In the present case, neither a contempt order nor an order to show cause why appellees should not be held in contempt has issued. Michigan contempt proceedings are not pending, they are merely threatened. This genuine threat of prosecution is a prerequisite to appellees' standing to maintain this action. See Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298-99, 99 S.Ct. 2301, 2308-09, 60 L.Ed.2d 895 (1979); Juidice v. Vail, supra, 430 U.S. at 333, 97 S.Ct. at 1216; Wooley v. Maynard, supra, 430 U.S. at 710, 97 S.Ct. at 1432; Doran v. Salem Inn, Inc., 422 U.S. 922 930-31, 95 S.Ct. 2561, 2567, 45 L.Ed.2d 648 (1975); Younger v. Harris, supra, 401 U.S. at 42, 91 S.Ct. at 749. It does not, however, require us to consider Judge Hand's Younger contentions. Steffel v. Thompson, supra, 415 U.S. at 462, 94 S.Ct. at 1217.

Judge Hand's other argument for abstention is based on the so-called Pullman doctrine. The doctrine facilitates the avoidance of unnecessary federal court interference in important state functions, Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1181, 14 L.Ed.2d 50 (1965), and spares federal courts unnecessary constitutional adjudication. Harrison v. NAACP, 360 U.S. 167, 176, 79 S.Ct. 1025, 1029, 3 L.Ed.2d 1152 (1959). Its underlying principle is that "federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation...