Opinion

Sovereign News Co. v. Falke

448 F. Supp. 306
3 Media L. Rep. (BNA) 1337

Court: District Court, N.D. Ohio
Filed: Oct 31, 1977
Status: Published
Author: Manos
On the bench: Manos
Cited by: 23 cases
Authority: More cited than 86.1%

finding that the “Supreme Court has held the doctrine of exhaustion of administrative remedies inapplicable to situations in which an agency’s action was entirely outside its statutory jurisdiction”

How later courts described this case

finding that the “Supreme Court has held the doctrine of exhaustion of administrative remedies inapplicable to situations in which an agency’s action was entirely outside its statutory jurisdiction”
including as “harmful to minors” material that depicted “extreme or bizarre violence, cruelty, or brutality”
"[m]aterial limited to forms of violence is ... given the highest degree of [First Amendment] protection"
“[mjaterial limited to forms of violence is ... given the highest degree of [First Amendment] protection”

Written by the judges who cited it.

The opinion

MEMORANDUM OF OPINION

JUDGMENT ORDER

MANOS, District Judge.

PROCEDURAL HISTORY

On March 7,1977, the plaintiff, Sovereign News Company,

filed this action seeking compensatory and punitive damages, a declaratory judgment, and preliminary and permanent injunctions restraining both the Cuyahoga County, Ohio and Montgomery County, Ohio prosecutors, and all the defendant Cleveland and Dayton police officers from using evidence seized during a search of Sovereign’s premises to prosecute Sovereign.

The search in question was

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conducted on February 16,1977 pursuant to a search warrant. Sovereign’s complaint alleges that the search of its premises, and the Ohio statutory provisions employed to authorize that search, violate the First, Fourth, and Fourteenth Amendments to the United States Constitution.

On March 28, 1977, Sovereign moved for a preliminary injunction, and on March 29, 1977, the court convened a hearing on that motion.

The Cleveland policemen urged the court to dismiss Sovereign’s complaint pursuant to Fed.R.Civ.P. 12(b) on the theory that the doctrine of

Younger v.

Harris,

401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971), and

Huffman v.

Pursue,

420 U.S. 592 , 95 S.Ct. 1200 , 43 L.Ed.2d 482 (1975) compelled the court to abstain from hearing Sovereign’s constitutional claims.

Prior to the commencement of the March 29, 1977 hearing, counsel for defendant Falke, the Prosecuting Attorney for Montgomery County, filed a written motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), (3), (6), “for the reasons that the court lacks jurisdiction over the subject matter of the action, the venue is improper and the complaint fails to state a claim upon which relief can be granted.

” Falke’s motion was orally argued before the commencement of the March 29, 1977 hearing. Falke’s counsel, First Assistant Montgomery County Prosecutor James Brogan, admitted that this court sustained “jurisdiction to hear the case,” but urged that venue should be transferred to the Federal District Court for the Southern District of Ohio,

and that the court should not hear Sovereign’s claims because of the doctrine of “equitable restraint” enunciated in

Louisville Area Inter-Faith Committee for United Farm Workers et al. v. Nottingham Liquors et al.,

542 F.2d 652 (6th Cir. 1976), and

Younger v. Harris,

401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971).

Assistant Montgomery County Prosecutor Brogan also argued that

United States v. Calandra,

414 U.S. 338 , 94 S.Ct. 613 , 38 L.Ed.2d 561 (1974) prohibits this court from issuing any injunctive order restraining state law enforcement authorities from introducing illegally obtained evidence to a state grand jury that sustains jurisdiction of investigate an alleged offense to which the illegally obtained evidence is relevant.

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At the conclusion of the arguments of counsel, the court overruled defendant Falke’s motion to change venue,

and withheld ruling on the motions to dismiss until it heard the evidence elicited during the preliminary injunction hearing.

On March 30, 1977, the second day of the hearing on the preliminary injunction, counsel for the defendant Cleveland police officers, moved the court

in limine

to limit the testimony of several of the Cleveland police officer defendants.

The court denied the motion, and permitted Mr. Berkman, counsel for Sovereign, to continue his examination of the police officers called as witness

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es during the preliminary injunction hearing.

On March 31, 1977, the hearing on the preliminary injunction was concluded

and each of the defendants renewed their motions to dismiss Sovereign’s declaratory and injunctive claims.

On April 1, 1977, after the close of the hearing, the court, pursuant to motions made by the defendants, stated that it would treat the hearing as one dealing with the preliminary injunction, and that it would consider the request for a declaratory judgment “only with respect to the [purely legal] issue of the constitutional validity of [Ohio Revised Code] Sections 2907.-32, 2907.01, and 2923.04. The court will not now entertain consideration of the plaintiff’s declaratory judgment claims other than the claim that Sections 2907.32, 2907.-01 and 2923.04 violated the United States Constitution.”

At the same time the court reiterated its earlier ruling that the question of money damages would be considered only after further proceedings, and not based on the hearing conducted between March 29 and 31, 1977.

At the conclusion of the April 1, 1977 proceeding, the defendants’ respective motions to dismiss Sovereign’s declaratory judgment and injunction claims were pending before the court. Sovereign’s motion for a declaratory judgment on the constitutional validity of Ohio Revised Code §§ 2907.32, 2907.01, and 2923.04, and its motion for a preliminary injunction were also pending. All defendants filed answers to Sovereign’s complaint by April 13, 1977, and all defendants except the Dayton policemen filed their briefs by April 25,1977.

By April 14, 1977, defendant Falke, pursuant to an agreement among the parties,

supplemented the record of the earlier hearing by filing Exhibits 100-141.

These exhibits consist of photographs which were not located in Cleveland at the time of the hearing.

On May 14, 1977, the court served copies of the plaintiff’s complaint, a copy of the transcript of the hearing on the preliminary injunction, and copies of other portions of the record upon the Ohio Attorney General with an invitation that he file an

amicus curiae

brief in this case regarding the issues currently pending before the court. On May 19, 1977, the Ohio Attorney General accepted the court’s invitation and filed an

amicus curiae

brief, followed by a supplemental brief filed on June 16, 1977.

On June 21,1977, defendant Falke filed a motion to supplement the record of the March 29-31,1977 evidentiary hearing with a certified copy of a Montgomery County Grand Jury indictment, filed in the Montgomery County Common Pleas Court on May 3, 1977.

The court denies Prosecutor Falke’s motion to reopen the record of the March evidentiary hearing to include the May indictment, because the document was not in existence at the time of the March hearing. However, the court will take judicial notice that the Montgomery County grand jury returned such an indictment on May 3, 1977.

See,

Federal Rules of Evidence 201, 902(4).

On July 29, 1977 Sovereign filed its post-hearing reply brief in opposition to the answer briefs previously filed by the defendants, and in opposition to the Ohio Attorney General’s

amicus curiae

briefs.

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II.

THIS COURT’S FACTUAL FINDINGS

A. THE CLEVELAND AND DAYTON POLICE OBTAIN ACCESS TO SOVEREIGN’S PREMISES.

During the April, 1976 term, the

Hamilton County

Ohio Grand Jury indicted Sovereign for pandering obscenity within the jurisdiction of

Hamilton County,

Ohio, in violation of Ohio Revised Code §§ 2923.04 and 2907.32.

On November 1, 1976, the

Montgomery County

Ohio law enforcement authorities commenced an investigation of Sovereign for pandering obscenity within the jurisdiction of Montgomery County

in violation of Ohio Revised Code §§ 2907.32, 2907.01 and 2923.04. The record shows that the Montgomery County investigation was sparked “as a result of complaints”

received by authorities in that jurisdiction. Nothing in the record suggests that the Montgomery County inquiry was related to the Hamilton County prosecution. The Montgomery County investigation focused on the interrelation between twelve book stores in the City of Dayton, Ohio, and the stores’ supposed supplier, Sovereign, located in Cleveland, Ohio.

The Dayton police placed the twelve Dayton stores under surveillance, and observed deliveries of boxes of magazines by vans which they determined were rented by Sovereign. Dayton Police Officer E. R. Robinson visited each of the twelve bookstores, examined various magazines, and purchased twelve which he submitted to a Dayton Municipal Judge. According to Officer Robinson’s affidavit,

the purchased magazines:

“dealt almost exclusively with pictures and portraits of nude males and females engaging in various acts of sexual intercourse, bestiality, sodomy, cunnilingus, and acts of sexual perversion. The printed matter was negligible and not relevant.”

On December 19, 1976, the Municipal Judge to whom the twelve magazines were submitted issued search warrants authorizing the Dayton police to conduct a search of the twelve Dayton bookstores. A search was conducted and materials were confiscated from each location.

Officer Robinson also learned from several of the bookstore owners that they were supplied from Sovereign’s Cleveland installation, that they personally knew Sovereign’s chief executive officer, Reuben Sturman, and that they dealt with him. One bookstore operator advised Robinson that other bookstore operations were subsidized by Sovereign, and that “these others may be on Sovereign News Company’s payroll and/or Reuben Sturman’s payroll.”

Based on the information unearthed during this investigation, the Dayton police contacted the Cleveland Police Department, which itself had been conducting its own continuing, intensive investigation of pornography in Cleveland, including Sovereign’s Cleveland operation. Captain Delau, one of the two officers in charge of the February 16, 1977 search of Sovereign’s Cleveland premises, testified that the Cleveland police had Sovereign’s Cleveland building under surveillance and would “love to” dedicate more time to that surveillance program. Delau also testified that the Cleve

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land police have followed Sovereign employees.

On February 14,1977, Dayton Police Sergeant Reynolds telephoned Cleveland Police Lieutenant Vanyo, the supervisory officer for the Cleveland Police Department’s Intelligence Unit, and requested Vanyo’s assistance in obtaining a warrant to search Sovereign’s Cleveland installation.

Van-yo, who, along with another Cleveland police officer, had entered Sovereign’s Cleveland building pursuant to a search warrant on March 19, 1975,

furnished the Dayton authorities with a description of the interior and exterior of Sovereign’s Cleveland premises.

On February 15, 1977 Cleveland Police Lieutenant Vanyo and Cleveland Police Captain Delau met in Cleveland with Dayton Police Officers Robinson and Dalrym

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pie. Officer Vanyo took the two Dayton policemen to the office of John T. Corrigan, the Cuyahoga County Prosecuting Attorney, in order to obtain a search warrant for Sovereign’s Cleveland building.

The two Dayton police officers, Robinson and Dalrymple, armed with unexecuted copies of the affidavit

prepared under the Cuyahoga County Prosecutor’s supervision, along with Prosecutor Corrigan personally, and at least one Cleveland police officer, appeared before Cuyahoga County Common Pleas Judge Leo M. Spellacy in the afternoon of February 15, 1977. After the law enforcement authorities explained the purpose of the search warrant, Officer Robinson executed the affidavit in Judge Spellacy’s presence, and the judge then issued the search warrant based solely on the information in the affidavit.

The search warrant, which authorized both the Cleveland Police Department and Dayton Police Officer Robinson to search Sovereign’s Cleveland offices and warehouse, stated:

“TO: CHIEF OF POLICE OF THE CLEVELAND POLICE DEPARTMENT and/or members of said Department

E. R. ROBINSON, a member of the DAYTON, OHIO POLICE DEPARTMENT

“Whereas there has been filed with me an affidavit consisting of four pages, a copy of which is attached hereto, designated as Exhibits A, A-l, A-2 and A-3, and incorporated herein as though fully rewritten, wherein the affiant avers that he believes and has good cause to believe that on the premises located at 2075 East 65th Street, Cleveland, Ohio, the same being a two story red brick building, located in a commercial area, which is a warehouse and general office building containing the Sovereign News Company and/or offices of Reuben Sturman, of which the second floor is devoted to general offices and the ground level and basement level are devoted to warehousing, there is now being unlawfully kept concealed and possessed evidence of pandering of obscenity and the violations of the Ohio organized crime statute, particularly any copies of the following magazines: [a list of thirteen magazines with sexually explicit titles was contained in this portion of the search warrant], invoices and bills of lading dealing with the shipment of magazines to the following stores located in Dayton, Ohio: Gaiety Book Store, Adult Book Store, Eros Book Store, Cinema X Book Store, Today’s Book Store, Adult Books, Art Movies, Adult Book Store, Exotic Book Store, Discount Book Store, Rexic Book Store and Bonnett’s Book Store from November 1st, 1976 and thereafter, payroll records as well as orders and other communications and other evidence of relationship between Reuben Sturman, the Sov

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ereign News Company and the aforementioned book stores.

“I am satisfied that there is probable cause to believe that the property described is being concealed on the premises above described and that probable cause for issuance of this search warrant exists.

“You are hereby commanded, in the name of the State of Ohio, with the necessary and proper assistance, to serve this warrant and search forthwith the premises named for the property specified, making search in the day season, and if the property or any part thereof be found there, you are commanded to seize it, leaving a copy of this warrant and a receipt for the proper

[sic

] taken, prepare a written inventory of the property seized and return this warrant and bring the property taken on such search forthwith before me, or some other judge or magistrate of the county having cognizance thereof, to be disposed of and dealt with according to law. Said search is to be made within three days of the date hereof.

“Given under my hand this 15th day of February, 1977.”

On the morning of February 16, 1977, at 9:00 a. m.,

the Cleveland Police, along with the two Dayton police, met to discuss strategy for the execution of the search warrant signed by Judge Spellacy. Cleveland Police Lieutenant Vanyo and Cleveland Police Captain Delau were in charge if the search

and briefed approximately thirty Cleveland policemen

before the raid. Captain Delau described the materials which were to be seized and stated the officers must avoid seizing materials not described in the warrant.

Copies of the search warrant and copies of the covers of the magazines named in the search warrant, were distributed to the thirty Cleveland policemen selected to conduct the search.

Despite the lack of authorization in the search warrant for the employment of photographic recording devices or video and audio tape recordings, officers from Lieutenant Vanyo’s unit employed such equipment during the search. Sergeant Richard McIntosh of the Cleveland Police Department’s “Smut Squad”

testified,

“Q My question is with respect to the recording materials, Sergeant, what instructions were given as to what they were to record with those cameras and tape recorders?

“A I don’t remember the specific instructions. I believe the general instructions were that any information that can be obtained and used because of the search warrant should be taken down.

“Q And they were left to their own devices as to determine what should be taken by recorder and what

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should be taken by camera or video tape equipment, is that right?

“A Within the scope of the instructions to limit themselves to material that they were searching for.

“Q And there is no question but that those who were in charge of the search were aware of all of these recording devices on the persons of the officers involved in the raid before the time for the raid began?

“A I’m sure that they were, yes, sir.

“Q The cameras and tape recording equipment was not surreptitiously sneaked onto the premises?

“A No, sir.

“Q It was with the full acceptance and understanding of those in charge of the police detail, isn’t that correct?

“A That’s correct.”

Cleveland Police Detective Berkey

carried a still shot camera and a audio tape recorder onto Sovereign’s premises. He testified that Cleveland Police Officer Millett carried a video tape recorder, which also recorded sound. Both Millett and Berkey employed their equipment to “record and preserve evidence of the scene,” and “documents” for “identification purposes.”

In addition to the photographic and recording devices employed by Cleveland Police Officers Berkey and Millett, Dayton Police Officer Dalrymple carried a camera onto Sovereign’s premises, and Lieutenant Vanyo observed Dalrymple photographing items during the search.

After Delau and Vanyo completed their briefing, the thirty Cleveland police officers, along with Dayton officers, traveled in ten vehicles

to Sovereign’s Cleveland offices and warehouse. Upon arriving, Sergeant McIntosh spoke into the intercom on the wall adjacent to the locked exterior door of the building, and announced his presence and the presence of the Cleveland Police Department. He stated that the police were there pursuant to a search warrant.

After the elapse of three or four minutes, and because the exterior door was not opened from the inside, the Cleveland police broke the door with a battering ram.

The first group of police entered the building and ascended a flight of stairs to a landing on the second floor where they found a second door which was locked.

The officers again announced that they were there to search the premises pursuant to a search warrant. After the elapse of sixty seconds and because the second door was not opened, the police broke down the door with the battering ram, and entered Sovereign’s main offices.

Upon entering, approximately thirty Cleveland police officers

and two Dayton police officers fanned throughout the premises and spent the next four hours searching the office, including “every single box” of magazines and books

in Sovereign’s warehouse for evidence of pandering obscenity, Revised Code § 2907.32 and organized crime offenses, Revised Code § 2923.04.

By the time the search was under way, counsel for

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Sovereign, Mr. Larry Gordon,

arrived on the premises. Mr. Gordon carried an audio tape recorder and was accompanied by a photographer hired by Sovereign.

Despite requests from the police officers, none of Sovereign’s representatives furnished keys to locked cabinets and desks on the premises, and therefore many desks and other enclosures were forced open with crowbars.

B. THE MATERIALS SEIZED TO SUPPORT CLEVELAND’S INVESTIGATION OF SOVEREIGN

Common Pleas Judge Spellacy’s search warrant confined the permissible scope of the search to twelve books, copies of which had been purchased and adjudicated obscene in Montgomery County, invoices and bills of lading dealing with the shipment of magazines to twelve named bookstores in Dayton, Ohio from November 1, 1976 forward, and payroll records, orders, and other communications and other evidence of a relationship between the twelve Dayton bookstores and Sovereign and Reuben Sturman.

Thus the scope of the search was restricted to seeking evidence of a commercial link between Sovereign’s Cleveland operation and the sale of twelve specific items in twelve separate locations in Dayton, Ohio.

However, the items actually seized under the shield of Judge Spellacy’s warrant reveal that the thirty Cleveland police officers who implemented it greatly exceeded its scope by seizing material that was unrelated to the operation of an illegal business of pandering obscenity in Dayton, Ohio. The abundance of evidence which exceeded the Montgomery County orientation of the search warrant, but was nevertheless seized, impels this court to conclude that the thirty Cleveland police officers who participated in the February 16, 1977 raid on Sovereign’s premises employed the Dayton investigation as an excuse to gather evidence in support of the Cleveland authorities’ own ongoing investigation of Sovereign’s operations including whether it was engaged in violations of the pandering obscenity and organized crime statutes in Cleveland and Cuyahoga County.

The record demonstrates repeated instances in which the Cleveland police seized material that was both beyond the authorization of the search warrant and unrelated to Sovereign’s alleged Dayton operations.

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Exhibits 80 and 31 are photographs of a letter discovered in Sovereign’s files, addressed to the attention of Marjorie Rollins at Sovereign News, and written on the legal stationary of Sovereign’s legal counsel in this case, the law firm of Berkman, Gordon, Kancelbaum and Levy. The letter, and the file to which it was clipped at the time the photograph was taken, pertains to a written statement from the law office of John T. McCall regarding the arrest of an individual in Cincinnati and Louisville.

The record contains no evidence that the information on this photographed letter from an attorney’s office to a client has any relationship to the magazines, the “invoices and bills of lading dealing with the shipment of magazines,” or the “payroll records as well as orders and other communications and other evidence of relationship between Reuben Sturman, the Sovereign News Company and the Dayton bookstores” named in Judge Spellacy’s search warrant.

Furthermore, the information gleaned from this photographed attorney-client letter makes no reference to any activity in Montgomery County, Ohio.

Exhibits 38 and 132 are photographs of a drawer in Reuben Sturman’s desk.

These photos depict three items located in the drawer. One item is a photograph of a nude female

; a second, a revolver in a holster; and a third, a box labeled “cartridges.” The revolver was seized by the Cleveland police and was not sent to Dayton with the other material taken during the February 16, 1977 raid.

Sergeant McIntosh also wrote down the revolver’s serial number. The items displayed in the two photographs have no bearing either on the materials described in the search warrant or on the investigation of Sovereign’s supposed Dayton involvements. However, the seizure and notation of the serial number on the weapon are useful to the Cleveland authorities in their “continuing” investigation of Sovereign’s activities because they furnish an additional item of information by which the police could trace those persons having contacts with people in Sovereign’s Cleveland headquarters.

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Exhibit 79-A

is a memorandum, dated March 25, 1976, from Reuben Sturman to all Sovereign employees exhorting them to actively oppose “Senate Bill 1,” which had been introduced in the United States Senate earlier that year. A four page newsletter published by the Cleveland branch of the American Civil Liberties Union, characterizing that legislation as the “most dire threat to civil liberties since McCarthy,” and “an attempted repeal of much of the Bill of Rights”

is attached to Sturman’s note.

The seized ACLU material attacks specific portions of S-l, but does not deal explicitly with obscenity. At worst, Exhibit 79-A consists of an innocent, written political diatribe, i. e., pure political speech, and is therefore an example of the form of expression to which the First Amendment of the United States Constitution extends the greatest measure of protection from governmental interference.

Despite the highly protected character of the pure political speech material contained in Exhibit 79-A the Cleveland police officers who conducted the February 16, 1977 search seized that document as evidence that Sovereign engaged in the organized crime activity of pandering obscenity. Exhibit 79-A contains no references to Montgomery County, Ohio. The seizure of such pure political expression was beyond the scope of Common Pleas Judge Spellacy’s search warrant, and cannot be justified or tolerated on the speculative theory that Exhibit 79-A relates to any obscenity investigation in Montgomery County. The only purpose for seizing this political material is to identify the political views and affiliations of Sovereign and its chief executive officer, Sturman, for future reference in connection with the Cleveland Police Department’s continuing investigation of Sovereign’s and Sturman’s Cleveland operation.

Exhibit 71 consists of a printed, eleven-page mailing list of locations throughout Ohio. It was discovered in Sturman’s office.

The eleven separate pages are connected by only one staple at the top of each page. A notation on the outside of the envelope containing Exhibit 71 indicates that the eleven documents contain residential and store addresses in the Dayton area. However, only five of the eleven documents seized show addresses within the jurisdiction of Montgomery County. The first two pages of Exhibit 71 show addresses located only in the Columbus, Ohio, metropolitan area; the third and fourth sheets show addresses located only in the Cleveland, Ohio, metropolitan area; sheets five and six contain addresses primarily situated only in Cleveland, Akron and Canton, Ohio

; and the rest of the documents each contain at least one reference to a Montgomery County address.

The documents seized in Exhibit 71 exceed the scope of the search warrant to the extent that six readily severable records dealing with locations unrelated to Montgomery County were seized along with a few records containing addresses located within Montgomery County’s jurisdiction. The seizure of documents with addresses outside Montgomery County, and especially the seizure of the documents with Cleveland addresses, reveals the thirty Cleveland police officers focused attention on possible violations of the Ohio’s pandering obscenity and organized crime statutes in the Cleveland area, and in the

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areas of the state other than Montgomery County.

Exhibit 86-A consists of an alphabetical accordian file containing many separate pads of typed address labels located in thirteen different Ohio cities, including Cleveland, Olmsted Falls, Lorain, Toledo and Dayton. The accordian file also contains address label pads for locations in Fort Worth, Texas and Indianapolis, Indiana. Despite the severability

of each address label from the accordian file, the Cleveland policemen conducting the search seized the whole file, thus seizing addresses relating not only to Sovereign’s commercial activities in the Dayton area, but also its activities in other states, and other Ohio cities, including its commercial relations with bookstores situated in Cleveland. The seized Cleveland address labels are undoubtedly a great asset to the Cleveland Police Department’s own continuing investigation of Sovereign. However, Judge Spellacy’s search warrant did not authorize seizures of information unrelated to Sovereign’s alleged Dayton activity. The seizure of that information by Cleveland policemen, despite the lack of search warrant authorization for seizures pertaining to Sovereign’s solely Cleveland oriented transactions, indicates that the thirty Cleveland police officers who implemented the search warrant were seeking evidence to support their own investigation of Sovereign as well as evidence helpful to Robinson’s and Dalrymple’s Dayton investigation.

Exhibit 89, is a three-ring, loose-leaf notebook labeled “General News Gallery” containing nine separate,

enumerated documents of typed information regarding the distribution volume of the magazines

Hustler, Chic,

and

Best of Hustler,

to various drugstores, delicatessens, and cigar stores across Ohio. The first four documents among these business records seized from Sovereign contain no references to stores located in Montgomery County. The four business records delineate distribution patterns of the three magazines to thirty-two different locations in the Cleveland metropolitan area. Documents six through nine establish distribution channels for the three magazines to states outside Ohio,

and other locations throughout Ohio, but outside Montgomery County, including seventeen separate stores in the greater Cleveland area. Of the nine separately numbered business documents contained in Exhibit 89, evidence of a commercial distribution channel from Sovereign to locations within the jurisdiction of Montgomery County appears only on the fifth document

Several additional separate handwritten documents are clipped to the back inside cover of the notebook marked Exhibit 89. Among these seized documents are three sheets of white paper containing store names and a few commercial addresses, none of which are located in Montgomery County, a handwritten invoice indicating the February 2, 1977 sale of fifty copies of the March edition of

Hustler

magazine to the Zodiac Bookstore East in Columbus, Ohio, and five sheets of yellow legal size paper containing the same information as the nine typed documents found in the notebook.

The seizure of the notebook, marked Exhibit 89, with all of its severable documentary contents, resulted in the Cleveland and Dayton authorities obtaining voluminous information describing Sovereign’s commercial distribution patterns for three maga

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zines throughout the State of Ohio and into four other states. None of this was covered by the Common Pleas Judge’s search warrant.

The seizure of all the documents in the notebook furnished evidence to the Cleveland authorities of commercial transactions with forty-nine separate retail outlets within the Cleveland area, despite the search warrant instructions limiting the seizure of records to those relating to commercial activity in Montgomery County. Document number five is the only record in Exhibit 89 which relates to business activities in Montgomery County, because it demonstrates connections with four bookstores in Dayton. However, the Cleveland Police Department’s seizure of eight separate documents, showing forty-nine commercial connections with stores in the Cleveland area, illustrates how the search warrant was used as a vehicle for furthering Cleveland’s own continuing investigation of Sovereign for violations of the Ohio organized crime and pandering obscenity laws within the Cleveland area.

Exhibit 90 is a three-ring loose-leaf notebook labeled “A/R Invoice # Listing,” containing 105 separate

documents of handwritten data depicting Sovereign’s accounts receivable (/. e., “A/R”) invoice numbers, the name of the retail customers for each invoice, the city in which the customer maintains its retail business, the amount of each invoice, and a date. Of the one-hundred-five separate loose-leaf documents contained in Exhibit 90, sixty-eight documents contain no entries involving commercial transactions between Sovereign and persons or businesses situated within the jurisdiction of Montgomery County, Ohio, the sixty-eight seized documents, which have no evidentiary value regarding pandering obscenity and organized crime violations in Montgomery County, nevertheless contain evidence of commercial transactions between Sovereign and book retailers throughout the rest of Ohio and in many states outside Ohio. For example, those sixty-eight seized documents which have no bearing on the Montgomery County investigation, record two-hundred-ninety separate sales transactions between Sovereign and book retailers within the Cleveland metropolitan area. Those sixty-eight documents, which are unrelated to Sovereign’s activities in Montgomery County and therefore beyond the scope of the search warrant, must have been seized by the Cleveland Police Department as evidence in support of its own continuing investigation of Sovereign’s possible violation of Ohio’s pandering obscenity and organized crime statutes by selling arguably obscene books within the greater Cleveland area.

The characteristics of the evidence seized by thirty Cleveland and two Dayton policemen in the February 16,1977 raid on Sovereign’s building conclusively demonstrates the searching party’s orientation on the day of the search. This court finds that the Cleveland police participants in the February, 1977 raid sought evidence of possible violations of Ohio’s organized crime and pandering obscenity statutes by Sovereign in

both

the Dayton

and

Cleveland metropolitan areas, despite the restrictions in Judge Spellacy’s search warrant which authorized a search

only

for evidence relating to Sovereign’s Dayton connections.

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C. EVENTS AFTER THE RAID ON SOVEREIGN

After completing the search of the premises, Cleveland Police Sergeant McIntosh and Dayton Policeman Robinson, working together, cataloged Exhibits 70 through 90, the documents and physical objects seized, and both men signed the inventory receipt form listing twenty-two items taken from Sovereign’s premises.

No cataloging or inventory was made by Officers Millett, Berkey or Dalrymple regarding the photographic, video and audio recordings.

The video tape made by Cleveland Policeman Millett,

and the audio recording made by Cleveland Policeman Berkey

never left the custody of the Cleveland Police Department. The still photographs taken by Officer Berkey were developed by the Cleveland Police Department,

and reviewed by Sergeant McIntosh “two or three weeks” after the raid.

At least one set of Berkey’s photographs never left the custody of the Cleveland Police until the start of the preliminary injunction hearing.

Sometime after the preparation of the search inventory receipt form,

the Cleveland and Dayton policemen jointly filed a return on the search warrant in the Cuyahoga County Common Pleas Court and Judge Spellacy signed it.

Exhibits 70 through 90 were transported to Dayton sometime thereafter.

On March 3,1977 the Montgomery County Prosecutor’s Office issued the first subpoenas compelling witnesses to appear before the Montgomery County Grand Jury in connection with that body’s investigation of Sovereign’s possible violation of the pandering obscenity and organized crime statutes. On March 7, 1977, Sovereign filed this action in the United States District Court of

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the Northern District of Ohio.

On March 10 and 11, 1977, the Montgomery County Grand Jury heard testimony from 15 different witnesses pertaining to Sovereign’s transactions in that county,

and the vast majority of Exhibits 70 through 90 were presented to that Grand Jury on March 10, 1977

Mr. Brogan, the Assistant Montgomery County Prosecutor in charge of presenting evidence of Sovereign’s behavior to the Montgomery County Grand Jury characterized the state of that body’s deliberations as of March 31,1977 when he testified:

“Q Now, without divulging the secrecy of the grand jury proceedings inside the chambers where the grand jury sits in Montgomery County, is it a fact that you, as first assistant county prosecutor of Montgomery County, have been conducting an investigation or presentment to the Montgomery County grand jury in connection with matters involving Sovereign News Co. and/or its employees?

“A That’s correct.

“Q As a matter of fact that grand jury investigation is going on right now, is it not?

“A That’s correct.

“Q As a matter of fact there have been subpoenas issued for certain employees, five or six of them, of the Sovereign News Co. for an appearance at the grand jury tomorrow morning, April 1, 1977, isn’t that right?

“A That’s correct.

“Q And I suppose tomorrow afternoon as well?

“A That’s correct.

“Q All right.

Is it fair to say, again without revealing evidence taken inside the grand jury chambers, is it fair to say that that grand jury investigation is investigating the question of whether or not Sovereign News Co. and/or a number of its employees are to be charged with crimes for violation of the Ohio pandering obscenity statute and the Ohio organized crime statute?

“A That’s correct.”

“Q And as I understand it, there are no pending state prosecutions against Sovereign News Co. or its employees that you are aware of under these statutes at the present time?

“A Well, again I guess if you mean whether there is an actual indictment returned against Sovereign News or any of the employees, there is not an indictment as of yet.

“Q All right. And I take it that when you say there is no indictment, you mean that there are no outstanding complaints or informations, either, at the present time?

“A Yes, that’s correct.

“Q All right, So that with respect to what we normally consider a criminal prosecution beginning with either an indictment or a complaint or an information, there are no such cases pending at the present time, is that a fact?

“A That’s correct.

“Q And when you say “yet,” it sounds to me as though you’re suggesting that there might soon come a time when such prosecutions will occur?

“A It’s possible that an indictment might be returned.

“Q All right.

And there is no doubt in your mind that even though the pandering obscenity statute itself is a misdemeanor statute for a first offense, that the grand jury has the power to return an indictment under those circumstances?

“A Yes, under the organized crime section it indicates five or more persons who do anything illegal for gain. So

*328

if the misdemeanor is illegal, I take it it would fall within that concept.

“Q And you can independently prosecute for a misdemeanor under Rule 7?

“A We could. It would probably be transferred to Municipal Court for prosecution in the event of only a misdemeanor indictment.

“Q But it is clear that both statutes are under consideration now in terms of possible prosecution of Sovereign News Co. and its employees?

“A Yes.

“Q And can you tell me whether or not that company is a distributor of sexually oriented magazines, books and films?

“A Our investigation reveals that, yes.”

As noted above, this court concluded the hearing on the preliminary injunction on April 1,1977; all the defendants filed their answers to the plaintiff’s complaint by April 13, 1977; and the court received the initial briefs from all the defendants and the plaintiff by April 25, 1977.

On June 21, 1977 defendant Falke, the Montgomery County Prosecutor for the first time furnished this court with a copy of the Montgomery County Grand Jury’s May 3, 1977 indictment of Sovereign which pertinently reads:

“THE GRAND JURORS of the County of Montgomery, in the name, and by authority of the State of Ohio, on their oaths do present and find that Sovereign News . . .,

“Between the 1st day of November, 1976 and the 21st day of December, one thousand nine hundred and seventy-six in the County of Montgomery, aforesaid, and State of Ohio, did, with purpose to establish or maintain a criminal syndicate or to facilitate any of its activities, commit or act as accomplices in the commission of any offense of a type in which a criminal syndicate engages on a continuing basis, to-wit: Pandering Obscenity, a violation of Section 2907.32 of the Revised Code; contrary to the form of the statute (in violation of Section 2923.04(A)(5) of the Ohio Revised Code) in such case made and provided, and against the peace and dignity of the State of Ohio.

“SECOND COUNT:

“AND the grand jurors of this County, in the name and by the authority of the State of Ohio, upon their oaths, do find and present that: SOVEREIGN NEWS, Incorporated, . . . between the 1st day of November, 1976 and the 21st day of December, 1976 in the County of Montgomery, aforesaid, and State of Ohio, with knowledge of the character of the material involved, did exhibit or advertise for sale or dissemination or sell or publicly disseminate or display obscene material contrary to the form of the statute (in violation of Section 2907.32(a)(2) of the Ohio Revised Code) in such case made and provided, and against the peace and dignity of the State of Ohio.”

Based on these facts, this court must decide under either the Younger

Pull

man

doctrines whether it should abstain from considering the issuance of an injunction or a declaratory judgment against both the Montgomery County and the Cuyahoga County law enforcement officers, or against either separately. The court first directs its attention to the abstention issue, as that issue pertains to the Montgomery County authorities.

*329

III.

THIS COURT ABSTAINS, UNDER THE DOCTRINE OF

YOUNGER v. HARRIS,

FROM CONSIDERING THE ISSUANCE OF EITHER AN INJUNCTION OR A DECLARATORY JUDGMENT AFFECTING THE PROCEEDINGS IN MONTGOMERY COUNTY.

The watershed decision of

Younger v. Harris,

401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971), defined the basis for federal judicial abstention in cases involving issues which are pending in parallel state proceedings. In

Younger ,

plaintiff Harris filed a federal complaint seeking an injunction restraining the Los Angeles County District Attorney from prosecuting him on a California indictment in which he was charged with criminal syndicalism. Harris contended that the state prosecution “inhibited him in the exercise of his rights of free speech and press . . . guaranteed . by the First and Fourteenth Amendments.”

Two individuals intervened in Harris’ federal action, claiming that his prosecution “would inhibit them as members of the Progressive Labor Party from peacefully advocating the program of their party.”

A college instructor also intervened, claiming that Harris’ prosecution “made him uncertain as to whether he could teach about the doctrines of Karl Marx or read from the Communist Manifesto as part of his classwork.”

100

The three-judge district court issued the injunction restraining Harris’ prosecution. On appeal, the United States Supreme Court reversed the three-judge court’s grant of the injunction, and held that the lower federal court should have abstained from deciding Harris’ federal claims. In Part I of its opinion, the

Younger

court held that the three plaintiffs, who had neither been indicted in state court, nor threatened with prosecution, but who nevertheless felt “inhibited” in exercising their First Amendment rights because of Harris’ indictment,

101

failed to plead a sufficiently “live controversy” to sustain standing to challenge the California Criminal syndicalism statute.

102

With respect to plaintiff Harris, the

Younger

court conceded that he sustained standing to challenge the criminal syndicalism statute by virtue of his state court indictment. However, the court concluded in Part II of its opinion that district courts, in deference to the role of state courts in our federal system, should normally abstain from litigating issues involving the constitutionality of a state statute when the federal plaintiff who asserts those issues in a federal district court has the opportunity to assert the same issues in defense of a

single

pending criminal proceeding in state court.

103

The

Younger

court carefully limited the scope of this abstention doctrine to situations in which the federal plaintiff could establish no “extraordinary circumstances,” such as a bad faith state prosecution,

104

which would cause the federal plaintiff to sustain an uniquely severe burden if he were denied access to the federal forum. The

Younger

decision, and the complex web of subsequent United States Supreme Court decisions which formulate the

“Younger

doctrine,” must be considered by this court before it can decide the merits of Sovereign’s claim that Ohio’s pandering obscenity and organized crime statutes violate the First Amendment.

*330

A. STANDING

Any federal district court charged with the duty to determine whether the doctrine of

Younger v. Harris,

401 U.S. 37, 53-55 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971) applies to a plaintiff’s claim must first decide whether the plaintiff sustains standing under Article III of the United States Constitution to personally assert its claims against the defendant. In this case, the record demonstrates that as of April 25, 1977,

105

Sovereign was the target of an advanced investigation conducted by the Dayton Police Department, the Montgomery County Prosecutor’s Office, and the Montgomery County Grand Jury. The Montgomery County authorities’ investigation focused solely on Sovereign’s alleged violation, in Montgomery County, of Ohio Revised Code §§ 2907.32, 2907.01, and 2923.04 which comprise the Ohio pandering obscenity and organized crime statutes.

106

The record indicates that the Dayton police conducted interviews with Dayton bookstore operators, as well as searches and seizures of publications and other merchandise in certain enumerated Dayton book establishments.

107

Based on the information obtained in Dayton, the Montgomery County authorities enlisted the assistance of law enforcement authorities in Cuyahoga County who were conducting a parallel “continuing” investigation of Sovereign’s possible violations of the same pandering obscenity and organized crime statutes in Cuyahoga County. The result of this alliance was the February 16, 1977 search of Sovereign’s Cleveland office and warehouse, ostensibly for evidence of Sovereign’s alleged organized crime and pandering obscenity violations in Montgomery County.

108

Much of the evidence from that search was presented to the Montgomery County Grand Jury by March 11, 1977, and that body had subpoenaed several Sovereign employees as of March 31, 1977.

109

James Brogan, the Montgomery County Assistant Prosecutor in charge of presenting evidence to the grand jury, testified that as of March 31, 1977 the grand jury’s investigation of Sovereign focused on violations of Ohio organized crime statutes and the Ohio pandering obscenity statute in Montgomery County.

110

This evidence persuades the court, beyond a reasonable doubt, that as of April 25, .1977,

111

at the latest, Sovereign was threatened with prosecution by the authorities in Dayton and Montgomery County for violations of Ohio Revised Code §§ 2907.32, 2907.01, and 2923.04, and therefore had standing under Article III of the United States Constitution, to challenge the constitutional validity of these provisions.

See, Younger,

401 U.S.

supra,

at 41-42, 91 S.Ct. 746 ;

Steffel v. Thompson,

415 U.S. 452, 458-460 , 94 S.Ct. 1209, 1215 , 39 L.Ed.2d 505 (1974) (“At the threshold we must consider whether petitioner presents an ‘actual controversy,’ a requirement imposed by Art. Ill of the Constitution. . . Unlike three of the appellees in

Younger v. Harris

. . . 401 U.S. at 41 , 91 S.Ct. [746,] at 749, petitioner has alleged threats of prosecution that cannot be characterized as ‘imaginary or speculative,’

id.,

at 42 , 91 S.Ct. [746] at 749”);

Doran v. Salem Inn,

422 U.S. 922, 928, 930-931 , 95 S.Ct. 2561 , 45 L.Ed.2d 648 (1975);

Wooley v. Maynard,

430 U.S. 705 , 97 S.Ct. 1428, 1433 , 51 L.Ed.2d 752 (1977);

Contrast, Steffel, supra,

415 U.S. at

*331

476, 94 S.Ct. 1209 (Stewart, J., concurring);

Boyle

Landry,

401 U.S. 77, 80-81 , 91 S.Ct. 758 , 27 L.Ed.2d 696 (1971);

O’Shea v. Littleton,

414 U.S. 488, 493-499 , 94 S.Ct. 669 , 38 L.Ed.2d 674 (1974);

Allee v. Medrano,

416 U.S. 802, 827-830 , 94 S.Ct. 2191 , 40 L.Ed.2d 566 (Burger, C. J., joined by JJ., White and Rehnquist, concurring in part and dissenting in part) (1974).

112

Montgomery County’s May 3, 1977 indictment

113

of Sovereign for violating' Ohio’s organized crime and pandering obscenity statutes solely in Montgomery County, reinforces this court’s conclusion that as of April 25, 1977 Sovereign sustained a concrete threat that its operation of a book distribution network in Montgomery County would result in a criminal prosecution for alleged violations of Ohio Revised Code §§ 2907.32, 2907.01, and 2923.04 arising solely within the Montgomery County’s jurisdiction.

See, Dombrowski v. Pfister,

380 U.S. 479, 483-484, 486-489 , 85 S.Ct. 1116 , 14 L.Ed.2d 22 (1965);

Younger ,

401 U.S.

supra,

at 41-42, 91 S.Ct. 746 (placing a limiting gloss on

Dombrowski’s

standing rule);

Steffel ,

415 U.S.

supra,

at 458-460, 94 S.Ct. 1209 .

B. THE DOCTRINE OF

YOUNGER v. HARRIS

APPLIES TO THE CRIMINAL ENFORCEMENT ACTION WHICH MONTGOMERY COUNTY INITIATED AGAINST SOVEREIGN

Having decided that a plaintiff has standing to seek an injunction restraining state officers from enforcing state criminal statutes against the plaintiff, and declaratory relief, the court must next determine whether the doctrine of

Younger v. Harris,

401 U.S.

supra,

at 53-55, 91 S.Ct. 746 (1971) applies.

Younger

does not require this court to abstain in every case where state proceedings have been initiated. If the court concludes that the procedural posture of the state criminal enforcement proceedings which the plaintiff attacks has not advanced to the point that the

Younger

doctrine applies,

114

then this court must immediately decide the merits of the federal plaintiff’s challenge to the actions of the defendants.

See, Steffel v. Thompson,

415 U.S. 452, 460, 474-475 , 94 S.Ct. 1209 , 39 L.Ed.2d 505 (1974);

Doran v. Salem, Inn, Inc.,

422 U.S. 922, 930 , 95 S.Ct. 2561 , 45 L.Ed.2d 648 (1975);

Wooley v. Maynard,

403 U.S. 705 , 97 S.Ct. 1428, 1433-1434 , 51 L.Ed.2d 752 (1977). However, if the procedural posture of the criminal enforcement activity conducted by the defendants did advance to a point where

Younger

applies to the plaintiff’s injunctive and declaratory complaint, then the federal court must not deal with merits of the plaintiff’s constitutional claims, unless the plaintiff first establishes that its case involves “extraordinary circumstances” justifying federal judicial incursion into an advanced stage of a state criminal enforcement action.

See, Younger,

401 U.S.

supra,

at 53-54, 91 S.Ct. 746 ;

Perez v. Ledesma,

401 U.S. 82, 85 , 91 S.Ct. 674 , 27 L.Ed.2d 701 (1971);

Samuels v. Mackell,

401 U.S. 66, 75-76 , 91 S.Ct. 764 , 27 L.Ed.2d 688 (1971);

Dyson v. Stein,

401 U.S. 200, 203 , 91 S.Ct. 769 , 27 L.Ed.2d 781 (1971);

Mitchum v. Foster,

407 U.S. 225, 230-231 , 92 S.Ct. 2151 , 32 L.Ed.2d 705 (1972);

Kugler v. Helfant,

421 U.S. 117, 123-126, fn. 4 , 95 S.Ct. 1524 , 44 L.Ed.2d 15 (1975);

Allee v. Medrano,

416 U.S. 802 , 819 fn. 14, 94 S.Ct. 2191 , 40 L.Ed.2d 566 (1974);

Hicks v. Miranda,

422 U.S. 332, 350-352 , 95 S.Ct. 2281 , 45 L.Ed.2d 223 (1975);

Huffman v. Pursue,

*332

Ltd.,

420 U.S. 592, 611-612 , 95 S.Ct. 1200 , 43 L.Ed.2d 482 (1975);

Rizzo v. Goode,

423 U.S. 362, 379 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976);

Juidice v. Vail,

430 U.S. 327, 338 , 97 S.Ct. 1211, 1218-1219 , 51 L.Ed.2d 376 (1977);

Trainor v. Hernandez,

431 U.S. 434 , 442-448 fn. 7, 97 S.Ct. 1911 , 1917-1920 fn. 7, 52 L.Ed.2d 486 (1977);

Sendak v. Nihiser,

431 U.S. 961 , 97 S.Ct. 2914 , 53 L.Ed.2d 1057 (1977);

Compare, Cline v. Frink Dairy,

274 U.S. 445, 451-453 , 47 S.Ct. 681 , 71 L.Ed. 1146 (1927). Thus, the introduction of the

Younger

abstention issue into federal litigation between state criminal enforcement officials and plaintiffs who are targets for the enforcement of state criminal statutes, which they contend are unconstitutional, demands that the federal court carefully assess the procedural posture of the state criminal enforcement action. However, assessment of the procedural posture of the defendants’ state-oriented criminal enforcement action is complicated because those state enforcement activities may frequently progress during the course of the federal litigation

115

so that the state activities which the plaintiff challenges may move through successively more advanced stages as the federal litigation itself goes forward.

This problem arose in

Hicks v. Miranda,

422 U.S. 332, 337-342, 349-350 , 95 S.Ct. 2281 , 45 L.Ed.2d 223 (1975) in which police, acting pursuant to search warrants, seized four copies of the movie “Deep Throat” from a theatre in Orange County, California and three days later, on November 27, 1974, a California state court held the seized film obscene. On November 29, 1974, the plaintiffs, owners of the theatre, who were not then parties to any litigation in state court,

116

filed a suit against four of the police officers who participated in the seizure and the Orange County, California District Attorney. The

Hicks

plaintiffs sought a federal court order declaring the California obscenity statute, pursuant to which the seizure occurred, unconstitutional and mandating the return of the four seized copies of the film. The federal court heard the plaintiffs’ motion for a temporary restraining order and denied it. A three-judge court

117

was convened on January 8, 1974, and service of the federal plaintiffs’ complaint was made on January 14, 1974.

118

On January 15, 1974, prior to the federal defendants filing their answers to the complaint, and prior to “any proceedings whatsoever before the three-judge court,”

119

but long after the filing of the federal complaint and the federal court’s denial of the plaintiffs’ request for a temporary restraining order, the California officials formally charged the federal plaintiffs as defendants in a state prosecution, arising from the original seizure, under the statutes which the federal plaintiffs challenged in the federal litigation. The United States Supreme Court held that the

Younger

doctrine applied to the federal plaintiffs’ complaint in federal court, notwithstanding that the

*333

state activities which the federal plaintiffs challenged had advanced to the stage of a pending criminal action in state court several weeks

after

the plaintiffs filed their federal complaint and the federal court denied the request for a temporary restraining order.

120

The

Hicks

court reasoned:

“[W]e now hold that where state criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but

before any proceedings of substance on the merits have taken place in the federal court,

the principles of

Younger v. Harris

should apply in full force.”

See, Hicks,

422 U.S.

supra,

at 349, 95 S.Ct. at 2292 (emphasis added).

Thus

Hicks, supra,

suggests that a federal district court, charged with the duty to determine whether the

Younger

doctrine applies to federal injunctive and declaratory litigation between state law enforcement officials and plaintiffs who are the targets of state criminal enforcement activities, must first decide on what date “proceedings of substance on the merits have taken place in the federal court.”

121

After fixing such a date, the federal court must determine the procedural posture of the state’s enforcement actions,

as of the date on which substantive proceedings occurred in the federal litigation.

If the state’s act, which is the subject of the federal plaintiffs’ complaint,

did not attain a sufficiently advanced procedural stage

within the state’s criminal justice system, by the date “proceedings of substance” transpired in the federal litigation, then the federal court may decide the merits of the plaintiffs’ complaint without analyzing the impact of the

Younger

doctrine.

Compare, Town of Lockport v. Citizens For Community Action,

430 U.S. 259 , 1051 fn. 8, 97 S.Ct. 1047 , 1051 fn. 8, 51 L.Ed.2d 313 (1977).

122

However, if the defendants’ conduct, which is

*334

the subject of the plaintiff’s complaint, attained a sufficiently advanced stage within the state’s criminal justice enforcement system by the date “proceedings of substance” transpired in the federal litigation, then

Younger

descends over that federal litigation, and the federal court must determine if it has jurisdiction in terms of

Younger’s

comity principles.

123

The court concludes that “proceedings of substance on the merits” occurred in Sovereign’s federal litigation against the Montgomery County and Cuyahoga County law enforcement authorities on April 25, 1977. As of that date: (1) Sovereign’s federal complaint was filed,

124

and served on all the defendants;

125

(2) a motion for a preliminary injunction was filed;

126

(3) this federal court conducted a three-day hearing at which it denied a motion to transfer venue, heard testimony and extensive legal arguments

on the merits

of both Sovereign’s preliminary injunction and declaratory judgment claims;

127

(4) all the defendants

answered

Sovereign’s complaint;

128

(5) the Montgomery County Prosecutor’s Office filed supplementary evidence to

complete

the record of the preliminary injunction and declaratory judgment hearing;

129

(6) and all defendants had filed their briefs in opposition to Sovereign’s assertion of entitlement,

on the merits

of its

*335

First Amendment claim to a declaratory judgment, and on its claim, for a preliminary injunction.

130

Having fixed April 25, 1977 as the date on which Sovereign’s federal litigation ripened into

“proceedings of substance on the

merits,”

131

the court concludes that the issue of whether

Younger

applies must depend upon the procedural posture of the Montgomery County and Cuyahoga County enforcement activities as of April 25, 1977. Procedural stages which occur within the jurisdiction of a state’s criminal justice system, after the date on which “proceedings of substance on the merits” transpired in the related

132

federal declaratory and injunctive litigation cannot terminate the more1 advanced federal action.

133

This court cannot permit officials

*336

of a state to manipulate the comity principles of

Younger

in order to oust the court’s jurisdiction over a case raising significant constitutional questions. That intolerable result would materialize if the state could obtain

Younger’s

protection by continuing their enforcement activities

after all parties,

and the court itself, invested substantial resources in the determination of the federal litigation, at a point in time

before

the federal defendants’ state enforcement activities advanced to a posture entitling them to

Younger’s

cloak. Thus, this court will not permit state officials, who are usually the defendants in cases like Sovereign’s, to strip a federal court of jurisdiction by advancing the state enforcement activities, which a plaintiff claims are unconstitutional, to a stage protected by

Younger, after

that federal court conducted substantial proceedings. Such an expansion of

Younger’s

scope,

beyond

the carefully delineated limitations expressed in

Hicks ,

would eviscerate the right of citizens to protect themselves from irreparable injury by resort to immediate federal litigation, when they sustain Article III and 28 U.S.C. § 2201 standing to challenge a threatened state criminal enforcement action, predicated on an unconstitutional state statute,

pri- or to

the actual initiation of the threatened state proceeding.

134

C. EXAMINATION OF THE STATUS, AS OF APRIL 25, 1977, OF THE MONTGOMERY COUNTY LAW EN-

cided before April 25, 1977. For example, this court denied the contested motion to change venue before April 25, 1977.

FORCEMENT OFFICERS’ ACTIVITIES WITHIN THE OHIO CRIMINAL JUSTICE SYSTEM REVEALS THAT THOSE ACTIONS WERE SUFFICIENTLY ADVANCED TO TRIGGER THE PROTECTIVE CLOAK OF THE

YOUNGER

DOCTRINE

The record demonstrates that before April 25, 1977, the date on which proceedings of substance on the merits of Sovereign’s federal complaint took place in this federal court, the Montgomery County authorities took the following steps toward prosecuting Sovereign within the Ohio state system: (1) on November 1, 1976, responding to complaints, the Dayton police commenced an investigation of Sovereign’s activities in that city;

135

(2) twelve Dayton bookstores were placed under surveillance;

136

a Dayton Municipal Judge determined the twelve seized magazines obscene;

137

(3) on December 19,1976 the Municipal Judge issued a search warrant authorizing the search of the twelve Dayton bookstores;

138

(4) the Dayton search warrant was executed and the Dayton police were told of the close connection between at least some of the Dayton stores and Sturman and Sovereign;

139

(5) on February 15, 1977 the Montgomery County authorities, acting in conjunction with the Cuyahoga County authorities, obtained a search warrant for Sovereign’s Cleveland premises from a Cuyahoga County Common Pleas judge;

140

(6) on February 16; 1977 the Dayton police, furnished with assistance by the Cleveland police, searched every office, and every box of magazines inside Sover

*337

eign’s Cleveland building, and located some evidence of Sovereign’s book dealings in Montgomery County.

141

By March 11,1977, most of the documentary evidence seized in the February raid was presented to the Montgomery County grand jury,

142

which had subpoenaed several Sovereign employees as witnesses,

143

and heard testimony from other individuals in connection with the Sovereign investigation.

144

According to First Assistant Montgomery County Prosecutor Brogan, it was “possible” that as of March 31, 1977, the grand jury’s investigation of Sovereign would result in Sovereign’s indictment for pandering obscenity and organized crime violations under Ohio statutes.

145

According to Sovereign’s argument, the above events reveal that the Montgomery County criminal enforcement action against Sovereign, as of April 25, 1977,

146

had not advanced to a point within the Ohio criminal justice system that entitled the Montgomery County authorities to protection

147

under

Younger

from federal injunctive and declaratory intervention. Sovereign contends that the

Younger

doctrine cloaks from federal judicial scrutiny only those state criminal enforcement activities which attain the post-indictment phase, and argues that

Younger

is inapplicable to the Montgomery County’s defendants’

148

activities because at the time substantial federal proeeedings occurred, the Montgomery County prosecution had not produced an indictment. This court rejects Sovereign’s argument that

Younger

only applies to federal litigation if formal criminal litigation is pending in the state courts against the federal plaintiff prior to the time at which the federal case attained substantial proceedings.

However, the court recognizes that Sovereign’s view sustains identifiable support from many sources. For example, in

McSurely v. Ratliff,

282 F.Supp. 848 (E.D. Ky., 1967), Circuit Judge Combs, writing for a three-judge district court, expressly held that arrest and seizure of the plaintiff’s possessions, did not initiate a “pending” state criminal proceeding barring a federal court from exercising its equity power against state law enforcement officers, because the pendency of a state criminal action depended on the issuance of a state indictment, which was presented by the Pike County Kentucky Grand Jury

after

substantial federal proceedings took place in the federal action, but before the federal district court issued its injunctive order.

See, McSurely, supra

at 850-851, 853-854 ;

appeal dismissed,

390 U.S. 412 , 88 S.Ct. 1112 , 19 L.Ed.2d 1272 (1968); 398 F.2d 817 , 818 (6th Cir. 1968) (Sixth Circuit Judges Phillips, Celebrezze, and McCree, reversing the district court’s refusal to order the fed

*338

eral defendants,

i. e.,

Kentucky law enforcement officers, to immediately return the federal plaintiffs’ papers which the state officials had seized.); 138 U.S.App.D.C. 187 , 426 F.2d 664 (1970) (Bazelon, C. J.).

149

Compare, Honey v. Goodman,

432 F.2d 333, 336-337, 342-344 (6th Cir. 1970) (Celebrezze, J.).

Sovereign’s position also finds support in the language of several opinions written by Supreme Court Justices dealing with the

Younger

doctrine. For example, in

Perez v. Ledesma,

401 U.S. 82 , 91 S.Ct. 674 , 27 L.Ed.2d 701 (1971), a case decided on the same day as

Younger v. Harris,

401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971), Justice Brennan, joined by Justices Marshall and White, adopted the view, which Sovereign now advocates, that

Younger

applies

only

when the pending state criminal enforcement action has attained the stage of technically filed criminal litigation in a state court. He wrote:

“The third threshold question is whether the state prosecution

under the ordinance was ‘pending’

so as to make federal intervention inappropriate. The fact is, as I have already noted, that informations against appellee Ledesma for violation of the ordinance were outstanding when this federal suit was filed. However, the

nolle prosequi

of those informations was entered before the three-judge court convened and heard the case.

That court therefore treated the case as one in which no prosecution under the ordinance was pending. This was not error.

The availability of declaratory relief was correctly regarded to depend upon the situation at the time of the hearing and not

*339

upon the situation when the federal suit was initiated. See,

Golden v. Zwickler,

394 U.S., at 108 [89 S.Ct. [956] at 959, 22 L.Ed.2d 113 .] The principles of comity as they apply to federal court intervention, treated by the Court today present this issue. The key predicate to answering the question whether a federal court should stay its hand, is whether there is a pending state prosecution where the federal court plaintiff may have his constitutional defenses heard and determined.

Ordinarily, that question may be answered merely by examining the dates upon which the federal and state actions were filed. If the state prosecution was first filed and if it provides an adequate forum for the adjudication of constitutional rights, the federal court should not ordinarily intervene. When, however, as here, at the time of the federal hearing there is no state prosecution to which the federal court plaintiff may be relegated for the assertion of his constitutional defenses, the primary reason for refusing intervention is absent.

Here, there was no other forum for the adjudication of appellees’ constitutional objections to the ordinance.

“There is, of course, some intrusion into a state administration of its criminal laws whenever a federal court renders a declaratory judgment upon the constitutionality of a state criminal enactment. The Court holds today in

Samuels

Mackell, supra,

that considerations of federalism

ordinarily make the intrusion impermissible if a state prosecution under that enactment is proceeding at the time the federal suit is filed.

The Court says, ‘[I]n cases where the state criminal prosecution was begun prior to the federal suit, the same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment, and * * where an injunction would be impermissible under these principles, declaratory relief should ordinarily be denied as well.’ 401 U.S., at 73 [91 S.Ct. [764] at 768.] But

considerations of federalism are not controlling when no state prosecution is pending and the only question is whether declaratory relief is appropriate.

In such case, the congressional scheme that makes the federal courts the primary guardians of constitutional rights, and the express congressional authorization of declaratory relief, afforded because it is a less harsh and abrasive remedy than the injunction, become the factors of primary significance.”

Perez, supra,

at 103-104 , 91 S.Ct. at 686 (emphasis added).

see also,

pp. 816-820, 94 S.Ct. 2191 .

155

Doran v. Salem Inn Inc.,

422 U.S. 922, 926-927 , 95 S.Ct. 2561 , 45 L.Ed.2d 648 (1975), three corporate operators of taverns filed federal complaints against the town attorney for North Hempstead, New York, charging the state official with threatening to enforce an allegedly unconstitutional

156

ordinance prohibiting tavern owners and others from permitting female employees and entertainers to appear in public with visibly exposed breasts. After the filing of the federal complaint and the denial of the plaintiffs’ request for a temporary restraining order, one of the tavern operators permitted topless dancing in his establishment and was promptly served with state criminal summons charging it with violation of the ordinance. The other two plaintiffs, Salem and Tim-Rob, did not allow exposed female breasts in their taverns until after the district court entered a preliminary injunction in their favor, and consequently no formal criminal prosecution was started in state court against these later two plaintiffs during the federal preliminary injunction litigation.

See, Doran, supra,

at 925-927 , 95 S.Ct. 2561 . The United States Supreme Court, in an opinion written by Justice Rehnquist, held that the

Younger

abstention doctrine applied to the plaintiff who had been served with summons for violating the ordinance, because a formal parallel

157

state criminal charge was pending in a state court against that plaintiff.

158

On the other hand, the Supreme Court held that the

Younger

doctrine did not apply to the other two federal plaintiffs,, solely because they were not defendants in any parallel state court criminal litigation at the time the district court heard oral- argument

159

on the preliminary injunction. In support of this conclusion, Justice Rehnquist found that the

Younger

doctrine is triggered only by the initiation of a formal

*342

criminal proceeding in a state court.

160

He wrote:

“The principle underlying

Younger . .

is that

state courts

are fully competent to adjudicate constitutional claims, and therefore a federal court should, in all but the most exceptional circumstances, refuse to interfere with an

ongoing state criminal proceeding. In the absence of such a proceeding,

however, as we recognized in

Steffel ,

a plaintiff may challenge the constitutionality of the state statute in federal court, assuming he can satisfy the requirements for federal jurisdiction.

“No state proceedings were pending

against either Salem or Tim-Rob at the time the District Court issued its preliminary injunction. Nor was there any question that they satisfied the requirements for federal jurisdiction. . [W]e think that Salem and Tim-Rob were entitled to have their claims for preliminary injunctive relief considered without regard to

Younger’s

restrictions.”

See, Doran, supra,

at 930-931 , 95 S.Ct. at 2567.

Based on the lower court precedents and the language in the United States Supreme Court decisions starting with Justice Brennan’s “separate opinion”

161

Perez ,

through

Steffel, Allee,

and

Doran ,

Sovereign might argue that no state criminal enforcement activity is entitled to

Younger’s

protection from federal injunctive or declaratory relief unless the state criminal enforcement effort matured into formal litigation in the state court

prior to

substantial proceedings on the merits in the parallei federal injunctive and declaratory litigation. While the language used by many of the authorities requires a fixed, wooden test for the application of

Younger’s

abstention standards, this court concludes that the important competing policies which underlie the

Younger

doctrine demand a more flexible approach to the question of when a federal district court must assess its

own

power to decide a case or controversy

162

which arises from an alleged violation of the Bill of Rights in a parallel state criminal enforcement action. Overwhelming authority establishes that the proper accommodation of the sensitive question of federalism, which the architects of the

Younger

doctrine sought to resolve, requires a federal district court to balance the plaintiff’s right for a federal forum against the importance of the state’s interest in vindicating its own state authority through an enforcement action within its own institutions.

163

Trainor v. Hernandez,

431 U.S. 434 , 97 S.Ct. 1911 , 52 L.Ed.2d 486 (1977), Justice White, writing for a four Justice

164

plurality of the United States Supreme Court, held that the

Younger

rule was crafted primarily to implement the fundamental policy that the Constitution contemplates a vibrant

federal

system of government;

i. e.,

a system in which the federal government, and especially the federal judiciary, permit the states to perform legitimate state functions in which the states have important governmental interests.

“Beyond the accepted rule that equity will ordinarily not enjoin the prosecution

*343

of a crime, however, the Court voiced ‘a more vital consideration,’

id. [Younger],

at 44, [91 S.Ct. [746,] at 750] namely, that in a union where both the States and the Federal Governments are sovereign entities, there are basic concerns of federalism which counsel against interference by federal courts, through injunctions or otherwise, with legitimate state functions, particularly with the operation of state courts. Relying on cases that declared that courts of equity should give ‘scrupulous regard [to] the rightful independence of state governments,’

Beal v. Missouri Pacific R. Corp.,

312 U.S. 45, 50 [ 61 S.Ct. 418, 421 , 85 L.Ed. 577 ] (1941), the Court held, that in this intergovernmental context, the two classic preconditions for the exercise of equity jurisdiction assumed new dimensions. Although the existence of an adequate remedy at law barring equitable relief normally would be determined by inquiring into the remedies available in the federal rather than in the state courts,

Great Lakes Company v. Huffman,

319 U.S. 293, 297 , [ 63 S.Ct. 1070, 1072 , 87 L.Ed. 1407 ] (1943), here the inquiry was to be broadened to focus on the remedies available in the pending state proceeding. ‘The accused should first set up and rely on his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection.’

Younger v. Harris,

401 U.S. at 45, [91 S.Ct. [746], at 751,] quoting

Fenner v. Boykin,

271 U.S. 240, 243-244 , [ 46 S.Ct. 492, 493 , 70 L.Ed. 927 ] (1926). Dismissal of the federal suit ‘naturally presupposes the opportunity to raise and have finally decided by a competent state [court] tribunal the. federal issues involved.’

Gibson v. Berryhill,

411 U.S. 564, 577 , [ 93 S.Ct. 1689, 1677 , 36 L.Ed.2d 488 ] (1973). ‘The policy of equitable restraint ... is founded on the premise that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights.’

Kugler v. Helfant,

421 U.S. 117, 124 , [ 95 S.Ct. 1524, 1531 , 44 L.Ed.2d 15 ] (1975).

“ . . . The burden of conducting a defense in the criminal prosecution was not sufficient to warrant interference by the federal courts with legitimate state efforts to enforce state laws; only extraordinary circumstances would suffice. As the Court later explained, to restrain a state proceeding that afforded an adequate vehicle for vindicating the federal plaintiff’s constitutional rights ‘would entail an unseemly failure to give effect to the principle that state courts have the solemn responsibility equally with the federal courts’ to safeguard constitutional rights and would ‘reflecto negatively upon the state court’s ability’ to do so.

Steffel v. Thompson,

415 U.S. 452, 460-461, 462 , [ 94 S.Ct. 1209, 1216, 1217 , 39 L.Ed.2d 505 ] (1974). The State would be prevented not only from ‘effectuating its substantive policies, but also from continuing to perform the separate function of providing a forum competent to vindicate any constitutional objections interposed against those policies.’

Huffman v. Pursue, Ltd.,

420 U.S. 592, 604 , [ 95 S.Ct. 1200, 1208 , 43 L.Ed.2d 482 ] (1975).

“Huffman

involved the propriety of a federal injunction against the execution of a judgment entered in a pending state court suit brought by the State to enforce a nuisance statute. Although the state suit was a civil rather than a criminal proceeding,

Younger

principles were held to require dismissal of the federal suit. Noting that the State was a party to the nuisance proceeding and that the nuisance statute was ‘in aid of and closely related to the State’s criminal statutes,’ the Court concluded that a federal injunction would be ‘an offense to the State’s interest in the nuisance litigation [which] is likely to be every bit as great as it would be were this a criminal proceeding.’ 420 U.S., at 604 , [95 S.Ct. [1200] at 1208]. Thus ... the more vital consideration’ of comity,

id.,

420 U.S., at 601 , [95 S.Ct. [1200,] at 1208], quoting

Younger v. Harris, supra,

401 U.S., at 44, [91 S.Ct. [746,] at 750], coun

*344

seled restraint as strongly in the context of the pending state civil enforcement action as in the context of a pending criminal proceeding. In these circumstances, it was proper that the federal court stay its hand.

“We have recently applied the analysis of

Huffman

to proceedings similar to state civil enforcement actions — judicial contempt proceedings.

Juidice v. Vail,

430 U.S. 327 , 97 S.Ct. 1211 , [ 51 L.Ed.2d 376 ] (1977). The Court again stressed the ‘more vital consideration’ of comity underlying the

Younger

doctrine and held that the state interest in vindicating the regular operation of its judicial system through the contempt process — whether that process was labeled civil, criminal, or quasi-criminal — was sufficiently important to preclude federal injunctive relief unless

Younger

standards were met.”

See, Trainor,

431 U.S.

supra,

at 441, 97 S.Ct., at 1916-1918.

165

Justice Blackmun wrote a separate concurring opinion in

Trainor

in which he placed even greater stress on the balance of interest approach to federalism as the key to

Younger’s

applicability than the four-justice plurality.

“I join the Court’s opinion and write only to stress that the substantiality of the State’s interest in its proceeding has been an important factor in abstention cases under

Younger v. Harris,

401 U.S. 37 [ 91 S.Ct. 746 , 27 L.Ed.2d 669 ] (1971), from the beginning. In discussing comity, the Court in

Younger

clearly indicated that both federal and state interests had to be taken into account:

‘The concept does not mean blind deference to ‘States’ Rights’ any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both thesé courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.’

Id.,

at 44 , [91 S.Ct. [746,] at 751].

“Consistently with the requirement of

balancing

the federal and

state interests,

the Court in previous

Younger

cases has imposed a requirement that the State must show that it has an important interest to vindicate in its own courts before the federal court must refrain from exercising otherwise proper federal jurisdiction. In

Younger

itself, the Court relied on the State’s vital concern in the administration of its criminal laws. In

Huffman v. Pursue, Inc.,

[sic ] 420 U.S. 592 [ 95 S.Ct. 1200 , 43 L.Ed.2d 482 ] (1975), the court stressed the fact that it dealt with a quasi-criminal state proceeding to which the State was a party. The proceeding was both in aid of and closely related to criminal statutes. Thus, the State’s underlying policy interest in the litigation was deemed to be as great as the interest found in

Younger .

Similarly in

Juidice v. Vail,

430 U.S. 327 , 97 S.Ct. 1211 [ 51 L.Ed.2d 376 ] (1977), the Court found that the State’s interest in its contempt procedures was substantial.

“In cases where the State’s interest has been more attenuated, the Court has refused to order

Younger

abstention. Thus, in

Steffel v. Thompson,

415 U.S. 452 , [ 94 S.Ct. 1209 , 39 L.Ed.2d 505 ] (1974), in which a state prosecution was merely threatened, the federal court was free to reach the merits of the claim for a declaratory judgment.

Id.,

at 462 [94 S.Ct. [1209,] at 1217.] In such a case, ‘the opportunity for adjudication of constitutional rights in a federal forum, as authorized by the Declaratory Judgment Act, becomes paramount.’

Ellis v. Dyson,

421 U.S. 426, 432 [ 95 S.Ct. 1691, 1695 , 44 L.Ed.2d 274 ] (1975).”

See, Trainor, supra,

97 S.Ct. at 1920-1921 (emphasis added).

*345

Trainor ,

a state public assistance agency filed a civil lawsuit in the state court against two citizens on October 30, 1974, alleging that the two citizens had fraudulently concealed assets when they applied for and received public assistance. Such conduct constituted a crime under the applicable state law. However, the state agency elected to proceed civilly, seeking only the return of the money alleged to have been wrongfully received. The state agency simultaneously instituted a statutory,

ex parte

pre-judgment attachment proceeding against the state defendant’s property, and the clerk of the state court issued a writ of attachment on the state defendant’s credit union accounts which was executed on November 5, 1974. On December 3, 1974, the state defendants initiated a federal action against the enforcement officials of the state agency challenging the pre-judgment attachment proceedings as violative of the Due Process Clause of the Fourteenth Amendment, and seeking only the release of the attached funds. The three-judge district court issued an order refusing to apply

Younger

because the pending state attachment action was not a criminal or quasi-criminal proceeding, and then held the attachment statute unconstitutional. The Supreme Court majority reversed, holding that the policy rationale underlying the

Younger

doctrine applied to the state’s anti-fraud civil enforcement and attachment actions because the state’s participation, as a party in these enforcement proceedings, furthered important state governmental interests. In reaching this result, the Supreme Court majority explicitly recognized that a state’s interest in enforcement activities of lesser magnitude than its cognizable interest in completing formally initiated

criminal

litigation could trigger

Younger’s

cloak of protection. Thus the

Trainor

court wrote:

“The District Court thought that

Younger

policies were irrelevant because suits to recover money and writs of garnishment were available to private parties as well as the State; it was only because of the coincidence that the State was a party that the suit was ‘arguably’ in aid of the criminal law. But the fact remains that the State was a party to the suit in its role of administering its public assistance programs. Both the suit and the accompanying writ of garnishment were brought to vindicate important state policies such as safeguarding the fiscal integrity of those programs. The State authorities also had the option of vindicating these policies through criminal prosecutions. . . . Although, as in

Juidice ,

the State’s interest here is ‘perhaps . . . not quite as important as is the State’s interest in the enforcement of its criminal laws . or even its interest in the maintenance of a quasi-criminal proceeding . . .,’ 430 U.S., at 335 [97 S.Ct. [1211,] at 1217,] the principles of

Younger

and

Huffman

are broad enough to apply to interference by a federal court with an ongoing civil enforcement action such as this, brought by the State in its sovereign capacity.

“For a federal court to proceed with its case rather than to remit appellees to their remedies in a pending state enforcement suit would confront the State with a choice of engaging in duplicative litigation, thereby risking a temporary federal injunction, or of interrupting its enforcement proceedings pending decision of the federal court at some unknown time in the future. It would also foreclose the opportunity of the state court to construe the challenged statute in the face of the actual federal constitutional challenges that would also be pending for decision before it, a privilege not wholly shared by the federal courts. Of course, in the case before us, the state statute was invalidated and a federal injunction prohibited state officers from using or enforcing the attachment statute for any purpose. The eviscerating impact on many state enforcement actions is readily apparent. This disruption of suits by the State in its sovereign capacity, when combined with the negative reflection on the State’s ability to adjudicate federal claims that occurs whenever a federal court enjoins a pending state proceeding, leads us to the

*346

conclusion that the interests of comity and federalism on which

Younger

and

Samuels

Mackell, supra,

primarily rest apply in full force here.”

See, Trainor, supra,

97 S.Ct., at 1918-1919.

166

Significantly, the federal plaintiffs in

Trainor

argued that the injunction issued by the district court “in no way interfered with a pending state case” because only the attachment proceeding was interfered with, while the underlying civil anti-fraud enforcement action

167

could continue unimpeded. Relying on

Lynch v. Household Finance Corp.,

405 U.S. 538, 552-556 , 92 S.Ct. 1113 , 31 L.Ed.2d 424 (1972) (non-judicial garnishment order is not a pending state court action for purposes of 28 U.S.C. § 2283 );

Fuentes v. Shevin,

407 U.S. 67, 96-97 , 92 S.Ct. 1983 , 32 L.Ed.2d 556 (1972), and

Gerstein

Pugh,

420 U.S. 103 , 108 fn. 9, 95 S.Ct. 854 , 43 L.Ed.2d 54 (1975), the federal plaintiff in

Trainor

argued that the pre-judgment attachment issued through the clerk of courts, did not constitute a “court proceeding” within the

Younger

doctrine.

See, Trainor, supra,

431 U.S. at 446 fn. 9, 97 S.Ct., at 1919 fn. 9. The Supreme Court rejected this argument in a fashion which has a bearing on whether the Montgomery County grand jury actions which occurred in Sovereign’s case constituted a pending state court proceeding under

Younger .

The four Justice plurality opinion states:

“In this case the attachment was issued by a court clerk and is very much a part of the underlying action for fraud. Moreover, the attachment in this case contained a return date on which the parties were to appear in

court

and at which time the appellees would have had an opportunity to contest the validity of the attachment. Thus the attachment proceeding was ‘pending’

in the state courts

within the

Younger

doctrine at the time of the federal suit.”

See, Trainor, supra,

97 S.Ct. at 1919 fn. 9.

168

The

Trainor

court held that the attachment proceeding constituted a “pending” state court action under

Younger

because it served the function of compelling the state defendants to appear in state

“court”

on the civil anti-fraud enforcement action. Similarly, a state Grand Jury proceeding can be viewed as a “pending” state action for

Younger

purposes because it, too, compels state defendants to appear in state court on a governmental enforcement action. However, the analogy is imperfect. The difference is that, in

Trainor ,

the initial attachment action was designed to facilitate formally filed state enforcement litíga

*347

tion, whereas no such formal state criminal enforcement action was pending at the time the Montgomery County authorities presented evidence to the Grand Jury. Nevertheless, this court concludes, in light of the additional authorities cited

infra,

that

Younger’s

applicability does not depend on so slim a distinction.

The key to the application of the

Younger

doctrine is whether, in the unique factual context of each ease, the state’s enforcement activities, which are challenged in the federal suit, have progressed to a point within the

state justice system

that the state sustains an important interest in resolving the enforcement dispute within its own institutions.

Younger’s

applicability is crystal clear when the state’s enforcement activity advances to the stage of formal criminal litigation pending in state court prior to the attainment of substantial proceedings on the merits in the federal action. In that situation, the state sustains an overwhelming interest in vindicating its sovereign power and the vitality of its own institutions by concluding the enforcement action within its own system.

169

However, a state sustains a diminished interest during the prelitigation phase of its enforcement activities. As the state’s enforcement activity approaches stages beyortd the bare investigation phase, and as the state judicial institutions commence involvement in the enforcement action, the state’s legitimate governmental interest may attain sufficient magnitude to merit

Younger’s

protection from federal intervention despite the fact that the state’s interest is less important than the interest it sustains in concluding formally initiated criminal litigation in its courts.

170

This balance of interests approach to the question of

Younger’s

application is the common thread unifying the complex web of Supreme Court decisions which compose the

Younger

abstention doctrine.

For instance, in

O’Shea v. Littleton,

414 U.S. 488 , 94 S.Ct. 669 , 38 L.Ed.2d 674 (1974), seventeen black and two white residents of Cairo, Illinois, filed a federal action against the state’s attorney for Alexander County, Illinois his investigator, the Police Commissioner of Cairo, a county magistrate, and a county judge, charging all the defendants with racially discriminatory administration of the criminal justice system in Alexander County, over a sustained period of years, all in violation of the First, Sixth, Eighth, Thirteenth, and Fourteenth Amendments, and 42 U.S.C. §§ 1981 , 1982, 1983, and 1985.

171

See, O'Shea, supra,

at 490-491, 94 S.Ct. 669 . The county magistrate and the county judge were charged with setting unconstitutionally high bond primarily for black criminal defendants, ordering harsher sentences for black convicts, and compelling only blacks and indigents to pay for a trial by jury.

See, O’Shea, supra,

at 492, 94 S.Ct. 669 . The plaintiffs sought injunctive and declaratory relief. The record before the United States Supreme Court in

O’Shea

did not establish that any of the federal plaintiffs were defendants in any pending state criminal enforcement litigation, nor did it even suggest that any of them were threatened with a future prosecution before the two state judicial officials.

172

Nevertheless, in Part II of the opinion of the court, five Supreme Court Justices, relying on the policies of comity and federalism, agreed that

*348

the

Younger

doctrine applied in the

O’Shea

context, because the relief which the federal plaintiffs sought would result in a continuing supervision of the judicial component of the state’s criminal justice system by means of the federal judiciary’s equity power, disrupting the normal, vigorous operation of an important state sovereign function.

“[Recognition of the need for a proper balance in the concurrent operation of federal and state courts counsels restraint against the issuance of injunctions against the state officers engaged in the administration of the State’s criminal laws in the absence of a showing of irreparable injury which is ‘both great and immediate.’

[Younger,

401 U.S.]

Id.,

at 46, [91 S.Ct.[746] at 751]. . . .

Those principles preclude equitable intervention in the circumstances present here.

“Respondents . . . seek .

an injunction aimed at controlling or preventing the occurrence of specific events that might take place in the course of future state criminal trials. The order the Court of Appeals thought should be available if respondents proved their allegations would be operative only where permissible state prosecutions are pending against one or more of the beneficiaries of the injunction. Apparently the order would contemplate interruption of state proceedings to adjudicate assertions of noncompliance by petitioners.

. ..

The objection is to unwarranted anticipatory interference in the state criminal process by means of continuous or piecemeal interruptions of the state proceedings by litigation in the federal courts; the object is to sustain ‘[t]he special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.’ Stefanelli v. Minard,

342 U.S. 117, 120 , [ 72 S.Ct. 118, 120 , 96 L.Ed. 138 ] (1951). An injunction of the type contemplated by respondents and the Court of Appeals would disrupt the normal course of proceedings in the state courts via resort to the federal suit for determination of the claim

ab initio,

just as would the request for injunctive relief from an ongoing state prosecution against the federal plaintiff which was found to be unwarranted in

Younger.” See, O’Shea, supra,

414 U.S. at 499-501, 94 S.Ct. at 678 (emphasis added).

Thus,

O' Shea, supra,

suggests that the applicability of

Younger

principles depends more on the importance of the state’s sovereign interest which is threatened by federal judicial intrusion, rather than on a fixed, wooden rule that federal judicial interference with a state’s criminal enforcement activity is always permissible so long as the federal litigation attains substantial proceedings before the state authorities can initiate formal criminal litigation in a state court.

173

Huffman v. Pursue, Ltd.,

420 U.S. 592 , 95 S.Ct. 1200 , 43 L.Ed.2d 482 (1975) the Supreme Court again restated its view that the federal-state comity policy for which the

Younger

doctrine was crafted arises whenever federal litigation threatens to disrupt a state’s important interest in maintaining a vigorous justice system. In

Huffman, supra,

state enforcement officials initiated a nuisance proceeding in an Ohio Common Pleas Court against a motion picture theatre. The nuisance action resulted in the state trial court rendering a judgment that the theatre had shown obscene movies and must therefore be closed for one year as a nuisance under Ohio law.

See,

*349

Huffman.

Rather than appeal the state trial court’s judgment, the state defendant filed a 42 U.S.C. § 1983 action in the Northern District of Ohio, alleging that the Ohio court’s nuisance judgment constituted a deprivation of constitutional rights under color of state law, and seeking a federal injunctive and declaratory order holding the Ohio nuisance statute unconstitutional. In Parts II and IV of the opinion the United States Supreme Court recapitulated the federal policy considerations underlying the

Younger

doctrine, stressing at various points that

Younger

operates when a federal judicial action threatens to interfere with “the state criminal law enforcement process,”

174

or “state criminal proceedings.”

175

The Huffman

176

court indicated that

Younger’s

concern for “threats to our federal system”

177

suggests that occasionally a state’s identifiable enforcement interests are sufficient to compel the application of

Younger

to “state civil functions,”

178

especially when those functions are inextricably fused to the operation of a state’s “criminal justice system.”

179

“The seriousness of federal judicial interference with state

civil functions

has long been recognized by this Court. . For example,

Massachusetts State Grange v. Benton,

272 U.S. 525 , [ 47 S.Ct. 189 , 71 L.Ed. 387 ] (1926), involved an effort to enjoin the operation of a state daylight savings act. Writing for the Court, Mr. Justice Holmes . . . emphasized a rule that ‘should be very strictly observed,’ 272 U.S., at 529 , [47 S.Ct. [189], at 190 ‘that no injunction ought to issue against officers of a State clothed with

authority to enforce the law in question,

unless in a ease reasonably free from doubt and when necessary to prevent great and irreparable injury.’

Id.,

at 527 , 47 S.Ct. [189] at 190.]

“Although Mr. Justice Holmes was confronted with a bill seeking an injunction against

state executive officers,

rather than against state judicial proceedings, we think that

the relevant considerations of federalism are of no less weight in the latter setting.

If anything, they counsel more heavily toward federal restraint, since interference with a state judicial proceeding prevents the state not only from effectuating its substantive policies, but also from continuing to perform the separate function of providing a forum competent to vindicate any constitutional objections interposed against those policies. Such interference can readily be interpreted ‘as reflecting negatively upon the state courts’ ability to enforce constitutional principles.’

Cf. Steffel v. Thompson, supra,

415 U.S. at 462 , [94 S.Ct. [1209] at 1217.]

“The component of

Younger

which

rests upon the threat to our federal system is thus applicable to a civil proceeding such as this quite as much as it is to a criminal proceeding. . .

[W]e deal here with a state proceeding which in important respects is more akin to a criminal prosecution than are most civil cases. The State is a party to the Court of Common Pleas proceeding, and the proceeding is both in aid of and closely related to criminal statutes which prohibit the dissemination of obscene materials. Thus,

an offense to the State’s interest in the nuisance litigation is likely to be every bit as great as it would be were this a criminal proceeding. Cf. Younger v. Harris,

401 U.S., at 55 n.2 [91 S.Ct. at 757] (Stewart, J., concurring). Similarly, while in this case the District Court’s injunction has not directly disrupted Ohio’s

criminal justice system, it has disrupted that State’s efforts to protect the

*350

very interests which underlie its criminal laws

and to obtain compliance with precisely the standards which are embodied in its criminal laws.”

See, Huffman, supra,

at 603-605, 95 S.Ct. at 1208 (emphasis added).

In order to implement the important comity principles underlying the

Younger

abstention rule, the

Huffman

court ultimately held that the state quasi-criminal nuisance enforcement action was “pending,” for purposes of the application of

Younger’s

standards for federal equitable restraint, despite the finality of the Ohio trial court’s judgment, because the federal plaintiff had failed to exhaust all available appellate remedies within the state’s criminal justice system.

“Appellee contends that even if

Younger

is applicable to civil proceedings of this sort, it nonetheless does not govern this case

because at the time the District Court acted there was no longer a ‘pending state court proceeding’

as that term used in

Younger. Younger

and subsequent cases such as

Steffel

have

used the term ‘pending proceeding’

to distinguish state proceedings which have already commenced from those which are merely incipient or threatened. Here, of course, the state proceeding had begun long before appellee sought intervention by the District Court. But appellee’s point, we take it, is not that the state proceeding had not begun, but that it had ended by the time its District Court complaint was filed.

“Appellee apparently relies on the facts that the Allen County Court of Common Pleas had already issued its judgment and permanent injunction when this action was filed, and that no appeal from that judgment has ever been taken to Ohio’s appellate courts. As a matter of state procedure, the judgment presumably became final, in the sense of being nonappealable, at some point after the District Court filing, possibly prior to entry of the District Court’s own judgment, but surely after the single judge stayed the state court’s judgment. We need not, however, engage in such inquiry. For regardless of when the Court of Common Pleas’ judgment became final,

we believe that a necessary concomitant of Younger is that a party in appellee’s posture must exhaust his state appellate remedies before seeking relief in the District Court, unless he can bring himself within one of the exceptions specified in Younger.

“Virtually all of the evils at which

Younger

is directed would inhere in federal intervention prior to completion of state appellate proceedings, just as surely as they would if such intervention occurred at or before trial. Intervention at the later stage is if anything more highly duplicative, since an entire trial has already taken place, and it is also a direct aspersion on the capabilities and good faith of state appellate courts. Nor, in these state-initiated nuisance proceedings, is federal intervention at the appellate stage any the

less a disruption of the State’s efforts to protect interests which it deems important.

Indeed, it is likely to be even more disruptive and offensive because the State has already won a

nisi prius

determination that its

valid policies are being violated in a fashion which justifies judicial abatement.

“Federal post-trial intervention, in a fashion designed to annul the results of a state trial, also

deprives the States of a function which quite legitimately is left to them, that of overseeing trial court dispositions of constitutional issues which arise in civil litigation over which they have jurisdiction.

We think this consideration to be of some importance because it is typically

a judicial system’s

appellate courts which are by their nature a litigant’s most appropriate forum for the resolution of constitutional contentions. Especially is this true

when, as here, the constitutional issue involves a statute which is capable of judicial narrowing.

In short, we do not believe that a

State’s judicial system would be fairly accorded the opportunity to resolve federal issues arising in its courts if a federal district court were permitted to substitute itself for the State’s appellate courts.

*351

therefore hold that

Younger

standards must be met to justify federal intervention in a state judicial proceeding as to which a losing litigant has not exhausted his state appellate remedies.”

See, Huffman, supra,

at 607-609, 95 S.Ct. at 1210, (emphasis added).

180

Thus

Huffman

follows the pattern illustrated by

Trainor, supra,

and

O’ Shea, supra,

of construing the application of

Younger’s

cloak of protection for state enforcement activities by striking a balance in favor of the state’s important interest in maintaining the vitality of the state institutions which comprise its “justice system.” Intriguingly, the

Huffman

court broadly construed the scope of the term “pending” state prosecution, in order to include formally concluded state litigation under the sweep of

Younger’s

protective shield. The court’s opinion adopts the view that a state trial court decision, which becomes final before the federal court’s decision because the federal plaintiff

(i. e.,

state court defendant) fails to take a state court appeal, is nevertheless a “pending” state action for

Younger

purposes. The court reached this result in order to insure the vigor of the appellate sector of the forum state’s “judicial system.”

181

Such an interpretation rebuts Sovereign’s argument that

Younger

standards never apply unless state court litigation is formally pending prior to the attainment of substantial federal proceedings, because the

Huffman

court assumes that there was no formal state litigation pending at the time the

Huffman

federal district court issued its injunction. Thus

Huffman

indicates that the determination of whether a case is “pending” for purposes of

Younger’s

abstention rule, is governed by balancing the interests underlying the comity policies of the

Younger

doctrine, and not a question controlled merely be examining the date upon which the formal state litigation was initiated.

182

However,

Huffman

does not explicitly answer the question of whether Montgomery County’s enforcement activities in this case are entitled to

Younger’s

protection, because the problem in

Huffman

involved the deference to be accorded state litigation which had already been formally initiated and formally concluded,

183

albeit at the federal plaintiff’s choice, whereas the Montgomery County enforcement activities attacked by Sovereign had not formally ripened into state court litigation at any time prior to the point at which substantial proceedings on the merits occurred in Sovereign’s federal action.

184

Rizzo v. Goode,

423 U.S. 362 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976), constitutes still another example of the United States Supreme Court’s invocation of the

Younger

doctrine according to the need to protect a sovereign state’s weighty interest in the vigor of its criminal enforcement institutions from federal judicial usurpation. The

Rizzo

court applied

Younger

despite the lack of parallel, technically “pending” state court litigation. In

Rizzo, supra,

the federal plaintiffs initiated a federal action under 42 U.S.C. § 1983 charging the Philadelphia Mayor, Police Commissioner, and City Manager with expressly authorizing, encouraging, and knowingly failing to stop intentional, pervasive, misconduct by the Philadelphia Police Department. The federal district court, holding that it sustained broad equitable power to supervise the function of a state police department,

185

issued an injunctive order against the federal defendants [i.

e.,

the Philadelphia municipal officials], “requiring [them] ‘to submit to [the district] court for its approval [of] a comprehensive program for improving the handling of citizen complaints alleg

*352

ing police misconduct’ in accordance with a comprehensive opinion filed together with the order.”

See, Rizzo, supra,

at 364-366 , 96 S.Ct. at 601 ,

see also, Rizzo,

fn. 2. No state litigation involving any segment of the state’s justice system was pending during any stage of the federal litigation in

Rizzo .

Nevertheless, the United States Supreme Court held that the

Younger

doctrine shielded state executive law enforcement officials from injunctive interference by federal district courts, when such state officials were entrusted with the important state function

186

of managing a local police department and insuring that the local police conduct their affairs within constitutionally prescribed parameters. Justice Rehnquist, writing for five of the eight Justices

187

who considered the case, held:

“Where as here, the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the ‘special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.’

Stefanelli v. Minard,

342 U.S. 117, 120 , [ 72 S.Ct. 118 , 96 L.Ed. 138 ] (1951), quote in

O’Shea v. Littleton, supra,

414 U.S., at 500, [94 S.Ct. [669] at 678].

“Section 1983 by its terms confers authority to grant equitable relief as well as damages, but its words ‘allow a suit in equity only when that is the proper proceeding for redress, and they refer to existing standards to determine what is a proper proceeding.’

Giles v. Harris,

189 U.S. 475, 486 , [ 23 S.Ct. 639, 642 , 47 L.Ed. 909 ] (1903) (Holmes, J.). Even in an action between private individuals, it has long been held that an injunction is ‘to be used sparingly, and only in a clear and plain case.’

Irwin v. Dixon,

9 How. 10, 33 , 13 L.Ed. 25 (1850). . . .

“When the frame of reference moves from a unitary court system, governed by the principles just stated, to a system of federal courts representing the

Nation, subsisting side by side with 50 state judicial, legislative, and executive branches, appropriate consideration must be given to principles of federalism in determining the availability and scope of equitable relief. Doran v. Salem Inn, Inc.,

422 U.S. 922, 928 , [ 95 S.Ct. 2561 , 45 L.Ed.2d 648 ] (1975).

“So strongly has Congress weighted this factor of federalism in the case of a state criminal proceeding that it has enacted 28 U.S.C. § 2283 to actually deny to the District Courts the authority to issue injunctions against such proceedings unless the proceedings come within narrowly specified exceptions. Even though an action brought under § 1983, as this was, is within those exceptions,

Mitchum v. Foster,

407 U.S. 225 , [ 92 S.Ct. 2151 , 32 L.Ed.2d 705 ] (1972), the

underlying notions of federalism which Congress has recognized in dealing with the relationships between federal and state courts still have weight.

Where an injunction against a criminal proceeding is sought under § 1983, ‘the principles of equity, comity, and federalism’ must nonetheless restrain a federal court.

Id.,

at 243, 92 S.Ct. [2151] at 2162.

“But even where the prayer for injunctive relief does not seek to enjoin the state criminal proceedings themselves, we have held that the principles of equity nonetheless militate heavily against the grant of an injunction except in the most extraordinary circumstances. In

O’Shea v. Littleton, supra,

414 U.S. at 502, [94 S.Ct. [669] at 679, we held that ‘a major continuing intrusion of the equitable power of the federal courts into the daily conduct of state criminal proceedings is in sharp conflict with the principles of

*353

equitable restraint which this Court has recognized in the decisions previously noted.’ And the same principles of federalism may prevent the injunction by a federal court of a state civil proceeding once begun.

Huffman v. Pursue, Ltd.,

420 U.S. 592 , [ 95 S.Ct. 1200 , 43 L.Ed.2d 482 ] (1975).

“Thus the principles of federalism which play such an important part in governing the relationship between federal courts and state governments, though initially expounded and

perhaps entitled to their greatest weight in eases where it was sought to enjoin a criminal prosecution in progress, have not been limited either to that situation or indeed to a criminal proceeding itself. We think these principles likewise have applicability where injunctive relief is sought not against the judicial branch of the state government, but against those in charge of an executive branch of an agency of state or local governments such as [respondents] here.

Indeed, in the recent case of

Mayor v. Educational Equality League,

415 U.S. 605 , [ 94 S.Ct. 1323 , 39 L.Ed.2d 630 ] (1974), in which private individuals sought injunctive relief against the Mayor of Philadelphia, we expressly noted the existence of such consideration, saying ‘[t]here are also delicate issues of federal-state relationships underlying this case.’

Id.,

at 615 , [94 S.Ct. [1323], at 1331].”

See, Rizzo,

423 U.S.

supra,

at 378-380, 96 S.Ct. at 607 (emphasis added).

188

Juidice v. Vail,

430 U.S. 327 , 97 S.Ct. 1211 , 51 L.Ed.2d 376 (1977), Justice Rehnquist, writing for a majority of five Justices, recently held that the applicability of

Younger’s

abstention principles depends on the importance of a state’s interest in maintaining the vigor and capacity of the institutions which comprise its justice system by concluding civil and criminal enforcement activities without federal judicial intervention. In

Juidice ,

the plaintiffs failed to pay civil default judgments rendered against them by New York state courts, and subsequently the New York trial court, acting under a New York statute, held the federal plaintiffs in contempt. The state court also imposed a brief jail term because the plaintiffs failed to obey subpoenas requiring their attendance at depositions designed to furnish information pertaining to the satisfaction of the judgments. Shortly thereafter, the judgment debtors

189

who had been held in contempt filed an action in a federal district court seeking a federal injunction against application of the New York contempt statutes on the theory that the statutorily prescribed procedures leading to their imprisonment violated the Due Process Clause of the Fourteenth Amendment. At no time did the plaintiffs make their constitutional claim before any state tribunal, although New York procedural law permitted them the opportunity to do so.

See, Juidice,

430 U.S. 327 ,

supra,

at 337, fn. 14, 97 S.Ct. 1211 ,

supra,

at 1218, fn. 14, 51 L.Ed.2d 376 . A three-judge federal district court ruled several of the challenged New York statutes unconstitutional and issued a permanent injunction against the application of those statutes by the federal defendants

190

who appealed claiming that the abstention principles of

Younger

compelled the federal court to dismiss the federal plaintiff’s action. Once again, the Supreme Court did not decide

Younger’s

applicability by examining the potential friction between

*354

formal litigation

pending in state and federal courts. Instead, the Supreme Court scrutinized the substantiality of the state’s interest, as a politically sovereign entity, in operating its civil and criminal enforcement institutions without interference from federal district courts so long as those state institutions furnish an identifiable opportunity for the plaintiff to litigate his constitutional claim within the state justice system.

191

“We now hold, however, that the principles of

Younger

and

Huffman

are not confined solely to the° types of state actions which were sought to be enjoined in those cases. As we emphasized in

Huffman,

‘the more vital consideration’ behind the

Younger

doctrine of nonintervention lay not in the fact that the state criminal process was involved, but rather in

‘the notion of comity, that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States

and their institutions

are left free to perform their separate functions in their separate ways.’

Huffman, supra,

[420 U.S.] at 601, [95 S.Ct. [1200,] at 1206,] quoting

Younger, supra,

[401 U.S.] at 44, [91 S.Ct. [746] at 758].

“This is by no means a novel doctrine. In

Ex parte Young,

209 U.S. 123 , [ 28 S.Ct. 441 , 52 L.Ed. 714 ] (1908), the watershed case which sanctioned the use of the Fourteenth Amendment to the United States Constitution as a sword as well as a shield against unconstitutional conduct of state officers, the Court said:

‘But the Federal court cannot, of course, interfere in a case where the proceedings were already pending in a state court.

Taylor v. Taintor,

16 Wall. 366, 370 [ 21 L.Ed. 287 ];

Harkrader v. Wadley,

172 U.S. 148 [ 19 S.Ct. 119 , 43 L.Ed. 399 ]’ 209 U.S., at 162 , [28 S.Ct. [441] at 455].

“These principles apply to a case in which the State’s contempt process is involved. A

State’s interest

in the contempt process, through which it

vindicates the regular operation of its judicial system,

so long as

that system

itself affords the opportunity to pursue federal claims within it, is surely an

important interest.

Perhaps it is not quite as important as is the

State’s interest

in the enforcement of its criminal laws,

Younger, supra,

or even its

interest

in the maintenance of a quasi-criminal proceeding such as was involved in

Huffman, supra.

But we think it is of sufficiently great import as to require application of the principles of those cases. The contempt power lies at the core of the administration of a

State’s judicial system, . . .

Whether disobedience of a court-sanctioned subpoena, and the resulting process leading to a finding of contempt of court, is labeled civil, quasi-criminal, or criminal in nature, we think the salient fact is that federal court interference with the State’s contempt process is

‘an offense to the State’s interest .

likely to be every bit as great as it would be were this a criminal proceeding,’

Huffman, supra,

[420 U.S.] at 604, [95 S.Ct. [1200] at 1208]. Moreover, such interference with the contempt process not only

‘unduly interferes with the legitimate activities of the State

[],’

Younger, supra,

*355

[401 U.S.] at 44, [91 S.Ct. [746] at 750]— but also ‘can readily be interpreted as reflecting negatively upon the state court’s ability to enforce constitutional principles,’

Huffman, supra,

[420 U.S.] at 604 [ 95 S.Ct. 1200 ] at 1208.”

See, Juidice, supra,

430 U.S. at 332-337, 97 S.Ct., at 1216-1218 (emphasis added).

After expressing the broad federalism policy reasons which triggered

Younger’s

application, the

Juidiee

majority, rejecting the district court’s conclusion that

Gerstein v. Pugh,

420 U.S. 103 , 95 S.Ct. 854 , 43 L.Ed.2d 54 (1975) permitted the district court’s exercise of federal jurisdiction, focused on the most crucial criterion in determining the applicability of YoungePs federal abstention analysis.

“The District Court relied upon our decision in

Gerstein v. Pugh,

[ 420 U.S. 103 , 95 S.Ct. 854 , 43 L.Ed.2d 54 (1975),] to justify its refusal to dismiss appellees’ suit, and it spoke of the possibility that a debtor in the position of appellees might be ‘thrown in jail without an

actual

hearing,’ (emphasis added). But

Gerstein

explained the reason for the inapplicability of

Younger

to that case in a way which clearly distinguishes it from this:

‘The District Court correctly held that the respondents’ claim for relief was not barred by the equitable restrictions on federal intervention and state prosecutions,

Younger v. Harris,

401 U.S. 37 , [ 91 S.Ct. 746 , 27 L.Ed.2d 669 ] (1971). The injunction was not directed at the

state prosecutions as such,

but only at the legality of pretrial detention without a judicial hearing,

an issue that could not be raised in defense of the criminal prosecution.’

420 U.S. 103, 108, n. 9 , [ 95 S.Ct. 854 , 86 n. 9, 43 L.Ed.2d 54 ] (emphasis added).

“Here it is abundantly clear that appellees

had an opportunity to present their federal claims in the state proceeding. No more is required to invoke Younger abstention.

There is no support in

Ger-stein

or in our other cases for the District Court’s belief that the state courts must have an

actual

hearing (to which a recalcitrant defendant would presumably be brought by force) in order for

Younger

and

Huffman

to apply.

Appellees need be accorded only an opportunity to fairly pursue their constitutional claims in the ongoing state proceedings, Gibson v. Berryhill,

411 U.S. 564, 577 , [ 93 S.Ct. 1689, 1697 , 36 L.Ed.2d 488 ] (1973), and their failure to avail themselves of such opportunities does not mean that the state procedures were inadequate.

Presumptively,

therefore, the principles which underlie

Younger

call for dismissal of the action.”

See, Juidiee, supra,

97 S.Ct., at 1218 (emphasis partially added).

Thus, in a line of cases ranging from

O’Shea v. Littleton,

414 U.S. 488 , 94 S.Ct. 669 , 38 L.Ed.2d 674 (1974) through

Huffman v. Pursue, Ltd.,

420 U.S. 592 , 95 S.Ct. 1200 , 43 L.Ed.2d 482 (1975);

Rizzo v. Goode,

423 U.S. 362 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976);

Juidice v. Vail,

430 U.S. 327 , 97 S.Ct. 1211 , 51 L.Ed.2d 376 (1977);

Trainor v. Hernandez,

431 U.S. 434 , 97 S.Ct. 1911 , 52 L.Ed.2d 486 (1977), the United States Supreme Court repeatedly stressed that whenever a plaintiff seeks a federal injunction or declaratory relief against state institutions, charged with the duty to civilly or criminally enforce state laws, the federal forum must decide whether the federalist policies of comity dictate the application of Younger’s abstention doctrine. The applicability of that doctrine is not mechanically restricted to those situations in which formal state enforcement litigation is pending

192

prior to the federal court’s attainment of substantial proceedings on the merits of the federal complaint.

193

But

Younger

analysis applies when the record reveals that prior to the attainment of substantial proceedings on the merits of the federal complaint, a state civil or criminal enforcement action satisfied three elements which

*356

embody

Younger's

balance of interests approach. The state civil or criminal enforcement activity must have:

(1) Posed a concrete adverse threat, within the contemplation of Article III of the United States Constitution, to the federal plaintiff, and to his enjoyment of a federal right;

194

(2) Afforded the federal plaintiff an

OPPORTUNITY

to present its federal claims in a state forum at some time during the state’s enforcement action;

195

(3) Involved a state institution imbued with an important legitimate state interest.

196

The sequence of Supreme Court holdings from

Steffel

Thompson,

415 U.S. 452 , 94 S.Ct. 1209 , 39 L.Ed.2d 505 (1974), through

Allee v. Medrano,

416 U.S. 802 , 94 S.Ct. 2191 , 40 L.Ed.2d 566 (1974);

Doran v. Salem Inn, Inc.,

422 U.S. 922 , 95 S.Ct. 2561 , 45 L.Ed.2d 648 (1975) is consistent with this interpretation of

Younger's

applicability.

First,

in each of those cases, the Supreme Court took great care to carefully document the concrete threat of enforcement activity directed at the plaintiffs as of the date the federal complaint was filed.

197

Second,

the Supreme Court delineated the procedural posture of the state enforcement action in each of the three cases, thereby revealing whether a plaintiff had an opportunity to litigate its federal claims in the state enforcement context, and if such an opportunity was identified, the court ordered abstention under

Younger. Third,

the court examined the weightiness of the state interest underlying the function of the particular state enforcement institution which, according to the federal plaintiff, violated the United States Constitution. Each of the three cases, consistent with all the other abstention cases, noted that the most highly protected state interest cognizable under

Younger

is the preservation of the state’s authority to conclude criminal litigation formally pending in its judicial system.

198

More recent Supreme Court holdings indicate that state interests of lesser significance than state judicial completion of technically pending state criminal litigation are sufficiently important to the federal system of government to trigger

Younger's

protection.

199

However, the more recent holdings are consistent with the holdings in

Steffel, Allee,

and

Doran

that the state interests underlying the state institutions which were affected by those three federal eases were not sufficiently weighty to deserve

Younger's

protection.

200

The recent holdings in

Huffman, Rizzo, Juidice

and

Train

201

extended

Younger's

protections to state institutions with legitimate state interests analogous to the interests underly

*357

ing the state judicial process, and therefore different from the relatively insignificant state interests present in

Steffel, Allee,

and

Doran .

202

Applying the balance of comity interests test for Younger's application, the court fixed the point at which it sustained substantial proceedings on the merits,

203

and determined that Sovereign presented a case or controversy within the appropriate time frame.

204

This court, continuing to apply the interest balance approach, must now decide whether the state enforcement activities, which took place within the applicable time frame,

205

afforded Sovereign an

opportunity

to present its federal claims during

*358

the state’s enforcement action, and involved a state institution imbued with an important, legitimate state interest.

C(l) THE MONTGOMERY COUNTY GRAND JURY PROCEEDING AFFORDS SOVEREIGN AN OPPORTUNITY TO PRESENT ITS FEDERAL CLAIMS AT SOME OCCASION DURING THE MONTGOMERY COUNTY ENFORCEMENT ACTION.

Arguably the Montgomery County Grand Jury proceeding at which evidence of Sovereign’s alleged violations of the Ohio organized crime and pandering obscenity statutes was presented, threatened Sovereign with enforcement of those statutes without also furnishing it with an opportunity to present its federal constitutional claims to a competent Montgomery County forum. Thus, Sovereign concludes, by analogy to

Steffel, Allee,

and

Doran

206

that

Younger

does not apply to its federal litigation against the Montgomery County authorities.

However, this court concludes that so long as a state criminal enforcement action attains a stage which assures the federal plaintiff an opportunity to present its constitutional defenses at. some point during the “ongoing state proceedings,”

i. e.,

either during the proceeding which itself poses the threat of enforcement, or at later proceedings which must occur prior to entry of a state criminal court’s final judgment of conviction, then the state’s enforcement activity provides the federal plaintiff with a sufficient opportunity to present its federal claims for purposes of

Younger's

application.

207

Trainor v. Hernandez,

431 U.S. 434 , 97 S.Ct. 1911 , 52 L.Ed.2d 486 (1977), the court held that plaintiffs had sufficient opportunity to present their federal claims against the state’s pre-judgment, clerk issued,

ex parte

attachment proceeding, by appearing in court

after

the issuance of the clerk’s attachment order to contest the validity of the clerk’s decision.

208

Thus, the

Trainor

court implicitly points out that

Younger

may apply to a federal plaintiff who had no opportunity to present his federal claim at the same state procedural stage which threatened a state enforcement action against him. As the court stated in

Juidice ,

430 U.S.

supra,

at 334-338, 97 S.Ct.

supra,

at 1217-1218,

Younger

may apply to federal constitutional litigation which is parallel to a state enforcement action “so long as [the state judicial]

system

itself affords the opportunity to pursue federal claims within it”

209

(emphasis added).

Sovereign might argue that this court’s application of

Trainor

and

Juidice

is inconsistent with the Supreme Court’s earlier pronouncements in

Steffel, Allee,

and

Do-ran

210

However, each of those cases involved enforcement threats against plaintiffs which originated from the discretionary acts of solely administrative law enforcement personnel, not from any adjudicatory body within the state’s judicial system.

211

Assuming the statute involved had

*359

not been previously ruled unconstitutional,

212

state administrative law enforcement personnel, exercising their discretion, could threaten enforcement over a sustained period against a federal plaintiff like Sovereign merely to deter it from activity which the federal plaintiff viewed constitutionally protected.

213

In that situation the plaintiff, like those in Steffel,

Allee ,

and

Doran ,

has no opportunity to have state judges

214

authoritatively decide the validity of the federal plaintiff’s constitutional objections to the state enforcement action threatened by state administrative law enforcement personnel. However, once an enforcement action reaches the state grand jury stage, one of two results must shortly materialize: first, the threat will be immediately dispelled by the grand jury’s refusal to indict; or, second, the grand jury will make factual findings independent of the discretionary determinations of the state’s administrative law enforcement personnel,

215

and issue an indictment which entitles the federal plaintiff to a full opportunity to present its federal claim before a state judicial tribunal.

This court concludes that the Montgomery County Grand Jury proceedings which occurred in March, 1977 furnished Sovereign with an opportunity to ultimately pursue its federal claims within the

state judicial system

located in Montgomery County. Therefore, the application of

Younger

to the Montgomery County branch of Sovereign’s federal action is not precluded on the theory that Sovereign sustained no opportunity to present its federal claims to the state judicial system.

C(2) THE MONTGOMERY COUNTY GRAND JURY PROCEEDING INVOLVED A STATE INSTITUTION IMBUED WITH IMPORTANT LEGITIMATE STATE INTERESTS.

Part of the relief sought by Sovereign in its federal complaint consists of “a permanent injunction

suppressing

the use of the seized materials by the defendants and requiring that they be returned to the plaintiff”

216

(emphasis added). As the record indicates, entry of such a federal suppression order, as of the date on which substantial proceedings on the merits of Sovereign’s federal action took place

217

would severely interfere with the ongoing deliberations of the Montgomery County Grand Jury, a state institution charged with judging whether probable cause exists to proceed with state felony criminal litigation.

218

Douglas v. City of Jeannette,

319 U.S. 157 , 63 S.Ct. 877 , 87 L.Ed. 1324 (1943), a seminal case developing the doctrine of federal equitable restraint with respect to state judicial criminal proceedings, Jehovah’s Witnesses filed a federal suit challenging the constitutionality of a city ordi

*360

nance restricting their rights to solicit membership in their religious organization, all in violation of the First and Fourteenth Amendments. Some of the Jehovah’s Witnesses had been arrested and prosecuted for violating the ordinance, and the defendants

219

maintained a threat “to enforce the ordinance by arrests and prosecutions.”

See Douglas, supra,

at 160-161, 165 , 63 S.Ct. at 879. Chief Justice Stone, writing for the

Douglas

majority, held that the district court abused its discretion by enjoining the defendants from initiating and concluding state criminal prosecutions for violation of the clearly unconstitutional ordinance, without finding that the defendants threatened

in bad faith

to prosecute the federal plaintiffs.

Douglas, supra,

at 159, 162-164 , 63 S.Ct. 877 .

Compare, Murdock et al. v. Commonwealth of Pennsylvania,

319 U.S. 105, 108-110 , 63 S.Ct. 870 , 87 L.Ed. 1292 (1943). The

Douglas

court stressed the importance of avoiding federal judicial interference with the “[process] of the criminal law within the states,” without distinguishing whether those proceedings were merely threatened, or formally pending.

“Hence the arrest by the federal courts of the processes of the criminal law within the states, and the determination of questions of criminal liability under state law by a federal court of equity, are to be supported only on a showing of danger of irreparable injury ‘both great and immediate.’ .

“The trial court found that respondents had prosecuted certain of petitioners and other Jehovah’s Witnesses for distributing the literature described in the complaint without having obtained the license required by the ordinance, and had declared their intention further to enforce the ordinance against petitioners and other Jehovah’s Witnesses. But the court made no finding of threatened irreparable injury to petitioners or others, and we cannot say that the declared intention to institute other prosecutions is sufficient to establish irreparable injury in the circumstances of this case.

“. . . . It does not appear from the record that petitioners have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith, or that a federal court of equity by withdrawing the determination of guilt from the state courts could rightly afford petitioners any protection which they could not secure by prompt trial and appeal pursued to this Court.”

See, Douglas, supra,

at 163-164 , 63 S.Ct. at 881.

220

Perez v. Ledesma,

401 U.S. 82 , 91 S.Ct. 674 , 27 L.Ed.2d 701 (1971), the United States Supreme Court majority condemned the use of federal judicial equity power to suppress evidence on First, Fourth, and Fourteenth Amendment grounds

221

in a state criminal prosecution, especially since the federal plaintiffs, who were indicted prior to the commencement of the federal litigation, could assert the exclusionary rule in a state trial court.

222

*361

“It is difficult to imagine a more disruptive interference with the operation of the state criminal process short of an injunction against all state proceedings. Even the three-judge court recognized that its judgment would effectively stifle the then-pending state criminal prosecution.

‘In view of our holding that the arrests and seizures in these cases are invalid for want of a prior adversary judicial determination of obscenity, which holding requires suppression and return of the seized materials,

the prosecutions should be effectively terminated.’

304 F.Supp., at 670 (emphasis added).

Moreover, the District Court retained jurisdiction ‘for the purposes of hereafter entering any orders necessary to enforce’ its view of the proper procedures in the then-pending state obscenity prosecution. According to our holding in

Younger v. Harris, supra,

such federal interference with a state prosecution is improper. The propriety of arrests and the admissibility of evidence in state criminal prosecutions are ordinarily matters to be resolved by state tribunals, see

Stefanelli v. Minard,

342 U.S. 117 , [ 72 S.Ct. 118 , 96 L.Ed. 138 ] (1951), subject, of course, to review by certiorari or appeal in this Court or, in a proper case, on federal habeas corpus. Here Ledesma was free to present his federal constitutional claims concerning arrest and seizure of materials or other matters to the Louisiana courts in the manner permitted in that State. Only in cases of proven harassment or prosecutions undertaken by state officials in bad faith, without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown, is federal injunctive relief against pending state prosecutions appropriate. See

Younger v. Harris, supra; Ex parte Young,

209 U.S. 123 , [ 28 S.Ct. 441 , 52 L.Ed. 714 ] (1908). There is nothing in the record before us to suggest that Louisiana officials undertook these prosecutions other than in a good-faith attempt to enforce the State’s criminal laws. We therefore hold that the three-judge court improperly intruded into the State’s own criminal process and reverse its orders suppressing evidence in the pending state prosecution and directing the return of all seized materials.”

See, Perez, supra,

at 84-85 , 91 S.Ct. at 676, 677.

223

This court concludes that: (1) state grand juries are state institutions having a legitimate state interest deciding whether formal felony criminal litigation should go forth in state court; (2) invocation of the federal judiciary’s equity power against a state grand jury to suppress evidence, developed after a lengthy police investigation and presented to the state grand jury would violate the policies underlying

Douglas

and

Perez, supra.

224

These cases suggest that the states’ judicial institutions which are designed to

initiate

state criminal litigation perform important state functions and

*362

therefore should be left undisturbed in the ordinary case.

The important governmental function performed by grand juries was recognized by the Supreme Court in

United States v. Dionisio,

410 U.S. 1 , 16 — 18, fn. 15, 93 S.Ct. 764 , 35 L.Ed.2d 67 , (1973), and

United States v. Calandra,

414 U.S. 338, 349-350 , 94 S.Ct. 613 , 38 L.Ed.2d 561 (1974). The

Calandra

decision is pivotal because it holds that the application of the exclusionary rule to grand jury proceedings would intolerably disrupt them, and on that ground, the Supreme Court reversed a decision of a federal district court for the Northern District of Ohio, which had ordered evidence suppressed from the grand jury’s deliberations. The

Calandra

court held:

“In deciding whether to extend the exclusionary rule to grand jury proceedings, we must weigh the potential injury to the historic role and functions of the grand jury against the potential benefits of the rule as applied in this context. It is evident that this extension of the exclusionary rule would seriously impede the grand jury. Because the grand jury does not finally adjudicate guilt or innocence, it has traditionally been allowed to pursue its investigative and accusatorial functions unimpeded by the evidentiary and procedural restrictions applicable to a criminal trial. Permitting witnesses to invoke the exclusionary rule before a grand jury would precipitate adjudication of issues hitherto reserved for the trial on the merits and would delay and disrupt grand jury proceedings. Suppression hearings would halt the orderly progress of an investigation and might necessitate extended litigation of issues only tangentially related to the grand jury’s primary objective. The probable result would be ‘protracted interruption of grand jury proceedings,’

Gelbard v. United States,

408 U.S. 41, 70 , [ 92 S.Ct. 2357, 2372 , 33 L.Ed.2d 179 ] (1972) (White, J., concurring), effectively transforming them into preliminary trials on the merits. In some cases the delay might be fatal to the enforcement of the criminal law. Just last Term we reaffirmed our disinclination to allow litigious interference with grand jury proceedings:

‘Any holding that would saddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws.’

United States v. Dionisio,

410 U.S. 1, 17 , [ 93 S.Ct. 764, 773 , 35 L.Ed.2d 67 ] (1973).

“. . . . In sum, we believe that allowing a grand jury witness to invoke the exclusionary rule would unduly interfere with the effective and expeditious discharge of the grand jury’s duties.”

See, Calandra, supra,

at 349-350 , 94 S.Ct. at 620.

225

If grand juries perform a sufficiently important function within the federal criminal justice system to preclude federal courts from suppressing the evidence, which is tendered before grand juries under the exclusionary rule, then certainly the inter-government comity policies underlying

Douglas

and

Perez

magnify the importance of state grand juries and suggest that federal courts should not ordinarily employ their equitable and declaratory judgment power to suppress evidence at that stage of a state criminal proceeding.

226

*363

Several post-

Younger

eases bolster this view. For example, in

Byrne v. Karalexis,

401 U.S. 216, 219 , 91 S.Ct. 777 , 27 L.Ed.2d 792 (1971), the federal plaintiffs challenged the constitutionality under the First Amendment of a Massachusetts statute prohibiting possession of obscene films. At the time the federal plaintiffs filed their federal action, they had been indicted by the state. “While the federal action was pending those indictments were dismissed . and new indictments were returned.”

See, Byrne, supra,

at 219, fn. 2 ,

227

91 S.Ct. at 778. Despite the technical termination of the first state prosecution in

Byrne ,

and the return of the

Byrne

case to the state grand jury stage during the pendency of the federal action, the Supreme Court nevertheless held that the state criminal proceeding was “pending” for purposes of YoungeYs application and ordered the district court to abstain.

See, Byrne, supra,

at 219, fn. 2, 220 , 91 S.Ct. 777 .

228

Kugler v. Helfant,

421 U.S. 117 , 95 S.Ct. 1524 , 44 L.Ed.2d 15 (1975), the federal plaintiff, Helfant, a state court defendant, who himself was a state municipal judge, charged in his federal complaint that his state indictment for obstruction of justice and false swearing before a state grand jury had arisen because the New Jersey Attorney General and several New Jersey Supreme Court Justices coerced him to testify before the grand jury to which he allegedly lied under oath. The Federal Third Circuit Court of Appeals ordered the Federal District Court to conduct an evidentiary hearing of Helfant’s claim and to enter a declaratory judgment, after that hearing, on the question of whether Helfant’s grand jury testimony should be admitted into evidence at Helfant’s state criminal trial. The United States Supreme Court reversed the Court of Appeals and held that

Younger

barred the federal judicial inquiry into the admissibility of the evidence except by the New Jersey grand jury-

“This procedure closely resembles the course rejected by this Court in

Stefanelli v. Minard,

342 U.S. 117 , [ 72 S.Ct. 118 , 96 L.Ed. 138 .] In

Stefanelli

the Court affirmed the refusal of a Federal District Court to entertain proceedings to suppress the use in a pending state prosecution of evidence allegedly obtained in an unlawful search. As the Court explained:

‘If the federal equity power must refrain from staying State prosecutions outright to try the central question of the validity of the statute on which the prosecution is based, how much more reluctant must it be to intervene piecemeal to try collateral issues.’

Id.,

at 123 , [72 S.Ct. [118] at 121]. The Court thus held that ‘federal courts should refuse to intervene in State criminal proceedings to suppress the use of evidence even when claimed to have been secured by unlawful search and seizure.’

Id.,

at 120 , [72 S.Ct. [118] at 120]. Similarly, in

Perez v. Ledesma, supra,

the Court held: ‘[T]he propriety of arrests and the admissibility of evidence in state criminal prosecutions are ordinarily matters to be resolved by state tribunals, . subject, of course, to review by certiorari or appeal in this Court or, in a proper case, on federal habeas corpus.’ 401 U.S. at 84-85, [91 S.Ct. [674] at 676], See also,

Cleary v. Bolger,

371 U.S. 392 , [ 83 S.Ct. 385 , 9 L.E.2d 390 .]

“These precedents clearly establish that at least in the absence of ‘extraordinary circumstances’ federal courts must refuse to intervene in

state criminal proceedings to suppress

the use of evidence claimed to have been obtained through unlawful means.”

See, Kugler, supra,

at 129-130 , 95 S.Ct. at 1533 (emphasis added).

Branzburg v. Hayes,

408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 (1972) the United States Supreme Court held that news reporters possessed no constitutional privilege

*364

from furnishing testimony to state grand juries. However, the

Branzburg

court carefully qualified its holding when it wrote:

“Finally, as we have earlier indicated, news gathering is not without its First Amendment protections, and grand jury investigations if instituted or

conducted other than in good faith,

would pose wholly different issues for resolution under the First Amendment. Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources would have no justification. Grand juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth.” See,

Branzburg, supra,

at 707-708 , 92 S.Ct. at 2670 (emphasis added).

The above-quoted qualification on the

Branzburg

holding was supported by footnote 42 in the

Branzburg

opinion, which consisted of a citation to

Younger v. Harris,

401 U.S. 37, at 49 , and 53-54, 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971). Those portions of the

Younger

opinion which are cited by the majority in

Branzburg

footnote 42, deal with the need to show “extraordinary circumstances” such as a bad faith prosecution in order to trigger federal intervention into a pending state prosecution. The clear implication of the

Branzburg

court’s reliance on the cited passages from

Younger

is that the

Younger

doctrine applies to federal challenges to state grand jury proceedings, and that federal relief against state grand jury proceedings will be granted only if the federal plaintiff establishes the existence of an extraordinary circumstances exception, such as bad faith conduct by state officials, to the

Younger

abstention rule.

Dombrowski v. Pfister,

380 U.S. 479 , 85 S.Ct. 1116 , 14 L.Ed.2d 22 (1965), the federal plaintiffs filed an action against several Louisiana state officials, charging that several state statutes violated the First and Fourteenth Amendments, and that the defendants threatened to enforce these statutes against the federal plaintiffs as part of a course of harassment perpetrated by the federal defendants. The federal plaintiffs sought injunctive relief, and the United States Supreme Court held that the district court need not abstain under the doctrine of equitable restraint. However, Justice Brennan, writing for the

Dombrowski

court, carefully noted,

“Since the

grand jury was not convened

and indictments were not obtained

until after the filing of the complaint,

which sought interlocutory as well as permanent relief, no state ‘proceedings’ were pending within the intendment of § 2283.”

See, Dombrowski, supra,

380 U.S. at 484 fn. 2, 85 S.Ct. at 1119 (emphasis added).

229

This careful delineation of the procedural posture of the state proceedings at the time federal intervention was sought indicates that in the

Dombrowski

court’s view, feder

*365

al equitable intervention would not interfere with any “pending” state criminal litigation because “the grand jury was not convened.”

230

The negative implication is that if the grand jury had been convened, then state criminal proceedings would have been “pending,” and the Supreme Court would then have confronted the issue of whether the federal trial court sustained jurisdiction to entertain the federal plaintiff’s claim.

The above-cited authorities denote that proceedings before a state grand jury involve sufficiently important legitimate state interests to compel a federal district court to apply the

Younger

doctrine before intruding on such state grand jury deliberations. However, the particular Montgomery County Grand Jury which Sovereign challenges has an uniquely weighty governmental interest, because its deliberations follow a

lengthy

four-month

231

investigation

by the Montgomery County law enforcement officials, in which the state authorities in that county invested massive resources. Thus the state’s interest in the Montgomery County Grand Jury proceedings with respect to Sovereign are considerably greater than in the standard state grand jury case. This court holds that the Montgomery County Grand Jury proceedings serve an important, legitimate state interest similar to those state interests which the United States Supreme Court determined were sufficient to trigger Younger’s cloak of protection. This conclusion is based on the important adjudicatory

232

and indicting functions which the grand, jury performs,

233

and on the significant investment of state investigatory resources which the record indicates were expended in preparing the Montgomery County authorities’ case against Sovereign, which was in the process of presentation to that grand jury at the time Sovereign sought federal intervention.

234

This court further concludes that the Montgomery County enforcement action constitutes a pending state proceeding for purposes of applying the

Younger

doctrine because it: (1) poses Sovereign with a sufficient threat to give it Article III standing; (2) furnishes Sovereign an opportunity to present its federal claims during the state’s enforcement action; (3) involves a state institution having a legitimate state interest.

Having found that

Younger

applies to Sovereign’s litigation against the Montgomery County authorities, the court must now decide whether Sovereign has demonstrated applicability of one of the exceptions to the

Younger

doctrine, frequently denominated “extraordinary circumstances.”

See, Younger v. Harris, supra,

401 U.S. at 53, 91 S.Ct. 746 .

*366

D. THIS COURT CONCLUDES THAT NONE OF THE EXCEPTIONS TO THE YOUNGER DOCTRINE APPLY TO SOVEREIGN’S FEDERAL LITIGATION AGAINST THE MONTGOMERY COUNTY AUTHORITIES.

In crafting the

Younger

doctrine Justice Black recognized that “extraordinary circumstances” may arise in particular cases which justify a federal district court’s issuance of a declaratory judgment or injunctive relief that interferes with a parallel pending state criminal enforcement action. Thus in

Younger, supra,

401 U.S., at 53-54, 91 S.Ct., at 755 , the Court states:

“There may, of course, be extraordinary circumstances in which the necessary irreparable injury can be shown . . .”

“. . . [Ujnusual situations calling for federal intervention might . arise, but there is no point in our attempting now to specify what they might be.”

The Supreme Court did not comprehensively catalogue the “extraordinary circumstances” which free a federal district court and a federal plaintiff from

Younger’s

restrictions on the use of federal declaratory and equitable power against a pending state criminal proceeding. However, in six and one-half years since the

Younger

decision the Supreme Court furnished several examples of “extraordinary circumstances” sufficient to permit a federal district court to intrude on a pending state criminal enforcement action.

Younger

itself, the Supreme Court recognized that a state enforcement action brought in “bad faith,” without hope of obtaining a valid conviction, or solely to harass the plaintiff, constituted “extraordinary circumstances” justifying federal intervention in the pending state action, as does state enforcement litigation predicated on a statute which was “flagrantly and patently violative of express constitutional provisions in every clause, sentence, and paragraph.”

See, Younger, supra,

401 U.S., at 53-54, 91 S.Ct. at 755 (majority), 56-57, 91 S.Ct. 755 (Brennan, White, Marshall, JJ., concurring in result), 56, 91 S.Ct. 757 (Stewart and Harlan, JJ., concurring) (1971);

Perez v. Ledesma,

401 U.S. 82, 85 , 91 S.Ct. 674 , 27 L.Ed.2d 701 (majority), 97, 118, fn. 11, 91 S.Ct. 683 , 693 (discussion and citation delineating forms of “bad faith”), 120, 122, fn. 15, 91 S.Ct. 694 , 695 (Brennan, J., joined by Marshall, White, JJ.) (1971);

Samuels v. Mackell,

401 U.S. 66, 75-76 , 91 S.Ct. 764 , 27 L.Ed.2d 688 (Brennan, White, Marshall, JJ.) (1971);

Dyson v. Stein,

401 U.S. 200, 203 , 91 S.Ct. 769 , 27 L.Ed.2d 781 (majority remanding in light of

Younger

because the district court made no findings on the “extraordinary circumstances” question), 204-207, 91 S.Ct. 772 -773 (Brennan, Marshall, Douglas, JJ., indicate that mass police seizure of two tons of newspaper issues without prior judicial determination of obscenity, along with the seizure of the tools and equipment used to publish the newspaper, may well establish bad faith and harassment) (1971);

Mitchum v. Foster,

407 U.S. 225, 230-231 , 92 S.Ct. 2151 , 32 L.Ed.2d 705 (1972);

Steffel v.Thompson,

415 U.S. 452, 481-484 , 94 S.Ct. 1209 , 39 L.Ed.2d 505 (1974) (Rehnquist, J., and Burger, C. J., suggest that state officials’ refusal to adhere to an earlier federal declaratory judgment order, issued under the

Steffel

holding, ruling a state statute unconstitutional, does

not

constitute “bad faith” on the state officials’ part);

Kugler v. Helfant,

421 U.S. 117, 124-126, fn. 4 , 95 S.Ct. 1524, 1530 , 44 L.Ed.2d 15 (1975) (Indicating that

Gibson v. Berryhill,

411 U.S. 564, 577 , 93 S.Ct. 1689 , 36 L.Ed.2d 488 established that “extraordinary circumstances” exist when the state trier of fact is shown to be “incompetent by reason of bias to adjudicate the issue pending before it.”), fn. 6 (“‘bad faith’ in [YoungePs] context generally means that a prosecution has been brought without a reasonable expectation of obtaining a valid conviction”);

Allee v. Medrano,

416 U.S. 802, 819, fn. 14 , 94 S.Ct. 2191 , 40 L.Ed.2d 566 (1974);

Hicks v. Miranda,

422 U.S. 332, 350-352, fn. 19 , 95 S.Ct. 2281 , 45 L.Ed.2d 223 (five Justice majority concludes that state police conduct of a search, within the authority of state search warrants, could not constitute “bad

*367

faith and harassment” absent impeachment of the warrants by the district court);

Huffman v. Pursue, Ltd.,

420 U.S. 592 , 611— 612, 95 S.Ct. 1200 , 43 L.Ed.2d 482 (1975);

Rizzo v. Goode,

423 U.S. 362, 379 , 96 S.Ct. 598, 608 , 46 L.Ed.2d 561 (1976);

Juidice v. Vail,

430 U.S. 327, 338 , 97 S.Ct. 1211, 1218-1219 , 51 L.Ed.2d 376 (1977) (New York contempt statute held not “flagrantly and patently violative of express constitutional prohibitions [in every clause, sentence and paragraph]”);

Trainor v. Hernandez,

431 U.S. 434, 442 , 97 S.Ct. 1911, 1917 , fn. 7

235

52 L.Ed.2d 486 (1977) (civil anti-fraud enforcement action not brought by state officers in “bad faith,” and state pre-judgment attachment statute was not “flagrantly and patently violative of express constitutional prohibitions”);

Sendak

Nihiser,

431 U.S. 961 , 97 S.Ct. 2914 , 53 L.Ed.2d 1057 (1977) (summarily affirming an unpublished district court decision holding that “extraordinary circumstances” authorized federal plaintiff’s federal court challenge to Indiana’s statute defining obscenity despite the pend-ency of an Indiana nuisance proceeding against the federal plaintiff).

236

See also, Flynt et al. v. Leis, Jr. et al.,

434 F.Supp. 481, 484-486 (S.D.Ohio 1977) (Rubin, J.) (holding that “extraordinary circumstances” justified federal court’s intervention into pending state criminal prosecution and ordering state authorities to conduct a hearing regarding the admission to the Ohio bar,

pro haee vie

of the state defendant’s New York attorneys).

237

The record of Sovereign’s federal litigation does not support- the conclusion that any of the “extraordinary circumstances” discussed by the above citations apply to Sovereign’s federal claims against the Montgomery County defendants. However, one as yet unmentioned category of “extraordinary circumstances” arguably applies to the Montgomery County branch of Sovereign’s federal case.

During the development of the

Younger

doctrine, the United States Supreme Court stressed that

multiple

state enforcement actions pending against a plaintiff constitute circumstances sufficient to strip from state enforcement officials the cloak of protection which

Younger

extends to them. In the seminal

Younger

decision Justice Black noted:

*368

“Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a

single criminal prosecution,

could not by themselves be considered ‘irreparable’ in the special legal sense of that term. Instead, the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a

single criminal prosecution.”

(emphasis added)

238

Later in the

Younger v. Harris

opinion, the majority states:

“There is no suggestion that this

single prosecution

against Harris is brought in bad faith or is only

one of a series of repeated prosecutions

to which he will be subjected.” (emphasis added).

239

Byrne v. Karalexis,

401 U.S. 216 , 91 S.Ct. 777 , 27 L.Ed.2d 792 (1971), the Supreme Court held that

Younger

applied to an obscenity case,

240

but remanded the litigation to the district court for a determination of whether “the threat to appellees’ federally protected rights is ‘one that cannot be eliminated by [their] defense against a

single criminal prosecution

’ ”

241

Doran v. Salem Inn, Inc.,

422 U.S. 922 , 95 S.Ct. 2561 , 45 L.Ed.2d 648 (1975), the Supreme Court remanded M and L’s case to the district court for consideration of M and L’s claim that it was the target of

“repetitive

” state criminal enforcement actions.

242

Wooley v. Maynard,

430 U.S. 705 , 97 S.Ct. 1428 , 51 L.Ed.2d 752 (1977), George Maynard and his wife Maxine filed a federal action, challenging the constitutionality of a New Hampshire statute mandating that noncommercial vehicles bear license plates embossed with the motto “Live Free or Die.”

243

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