Petition — Keller v. Septum, Inc.

Buproms Court, U, & “y

FILED

JUN 21 1980

‘AK, JRq CLERN

.

y

IN THE

Supreme Court of the United States

October Term, 1979

WO wd

TPO cms ©

ROBERT E. KELLER, individually and as

District Attorney for the Clayton Judicial

Circuit, State of Georgia,

Petitioner,

ve

SEPTUM, INC., A Georgia Corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

Harowp G. BENEFIELD and

Cuiirrorp A. STICHER

Counsel for Petitioner

District Attorney’s Office

Clayton County Courthouse

Jonesboro, Georgia 30236

o? 2

INDEX

Page

NE 0S. 5 Caius bach anche buen wes Be ties.)| 1

Nels 4 To eas V5 4 be kak oa o COURSES OMS ES 2

I ona ica <igcdneeN bas eskbaneneeen 2

Statutes and federal rules involved................. 3

Se ecw. ie hewn ahs bus a 6s aha ee ees 5

Reasons for granting the writ. ........... 0... c eee 9

EES ESE GE celle Ce rt nen oe Se 19

EE ees a eee Om rr 20

EES ee TL Te Ter Tee Tre eee re A-1l

CITATIONS

| RGESR SRP angen ee one eran area re merwer pre ii

ES GN Ualivln sy ohana hs & 8's 0.08 603 o oa a eee ll

EEO EOE SE LECT OST TE EET Te EE iv

TABLE OF AUTHORITIES

Statutes

Page

Ga. Code Ann. Section 26-2101.................. 2, 3, 6

Federal Declaratory Judgment Act, 48 Stat. 955,

ga RE 7 NS er SpA in et 3, 13

Rule 57 Federal Rules of Civil Procedure.......... 3, 13

ee I Ie hi ec ce si ccnadbucwvaswesce 6, 7

sac sd vb o Vibe weds 6 eae wR 2

Cases

Aetna Casualty and Surety Co. v. Quarles,

ft Fb , Saas rer eee 14, 15

Alabama State Federation of Labor v. McAdory,

325 U.S. 450, 65 S.Ct. 13884, 89 L.Ed. 1725........ 15

American Automobiles Ins. Co. v. Freundt,

103 F.2d. 613, 51 Yale LJ. 511.................. 15

Bantam Books v. Sullivan, 372 U.S. 58,

I rr eee 16

Becker v. Thompson, 459 F.2d 919 (1972)............ 9

Borchard, Declaratory Judgments (2d.ed. 1941)..... 14, 17

Boyce Motor Lines v. United States, 342 U.S. 337,

ee I 6 a o's cna hssaueaeaas 19

Brillhart v. Excess Ins. Co., 316 U.S. 491, 494,

ey es BOs OO Ra BO oc kee ak bee vuadac es 15

Cunningham Bros. v. Bail, 407 F.2d 1165;

Cert. denied 395 U.S. 959, 89 S.Ct. 2100,

eee eh idee ed coeds oie bab tae 17

Eccles v. Peoples Bank, 333 U.S. 426,

Fo ge rer 15

li

TABLE OF AUTHORITIES (Continued)

Page

Cases (Continued)

Fireman’s Ins. Co. v. Newark, N. J. v. —

ee ea ncaa hadnt Vai pera a vue bcos os 17

Great Lakes Co. v. Huffman, 319 U.S. 293,

3 Se A ge Pe DF: 15

Independent Tape Merchants Ass’n v. Creamer,

gE Ty nee ener Pree eee ee 17

Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co.,

342 U.S. 180, 72 S.Ct. 219, 96 L.Ed. 200.......... 17

Maryland Casualty Co. v. Consumers Finance

SN OE PS i a hc is en a niks bs wees oe 15

Miller v. Calafornia, 413 U.S. 15........... 0. cece 18

Provident Tradesmen’s Bank and Trust Co. v.

Patterson, 390 U:S. 102, 88 S.Ct. 733,

Ey un RASS is eA ee ka Ko 15, 16

Public Service Commission of Utah v. Wycoff Co.,

344 U.S. 237, 73 S.Ct. 286, 97 L.Ed. 291......... 15

Russian Commercial Industrial Bank v. British Bank,

90 L.J.K.B.N.S. 1089; 19 A.L.R. 1101............ 14

Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764,

Se Be ee ED os ek ey hn oheaeteeywasaca 8, 10

Steffel v. Thompson, 415 U.S. 451, 94 8.Ct. 1209,

Se Ri I LADUE ab ove vce avodeeseews 2, 8, 9, 11

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746,

ee Re I EE 8 650i hk ea eee tea bewe 8, 10

Zemel v. Rusk, 381 U.S. 1, 85 8.Ct. 1271,

Oy ME MILES do Gre rinks Reeser e bk ea ee ke 15

TABLE OF AUTHORITIES (Continued)

Page

Miscellaneous

Brochard, Declaratory Judgments

SE eC ae ce be Aa bbs a ON oh eee ede 14,17

GA Moore's Federal Practice... ....ccccccccccccecs 17

iv

IN THE

Supreme Court of the United States

October Term, 1979

a

ROBERT E. KELLER, individually and as

District Attorney for the Clayton Judicial

Circuit, State of Georgia,

Petitioner,

Vv.

SEPTUM, INC., a Georgia Corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

Petitioner prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the Fifth Circuit entered in the above case on March 24,

1980.

OPINIONS BELOW

The opinions of the District for the Northern District

of Georgia are not reported, but copies thereof are in-

cluded herein at appendix. The opinion of the Court of

Appeals for the Fifth Circuit is reported at 614 F.2d 456

(1980).

2

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was made and entered on March 24, 1980, and

copies thereof are appended to this petition in the Appen-

dix at page A-1. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

The United States District Court for the Northern

District of Georgia declined to accept jurisdiction over

respondent’s action for declaratory and injunctive relief

in which respondent sought a declaration that a movie

exhibited at its Clayton County theatre was not obscene

under Georgia Code Ann. Section 26-2101. No attack was

made on the facial validity of Georgia’s obscenity statute.

After months of communication with the County, respon-

dent extracted an agreement from petitioner to give

advance warning prior to taking prosecutorial action.

Upon receiving such notice from petitioner, respondent

filed its action for declaratory and injunctive relief in the

federal court. The Fifth Circuit Court of Appeals re-

versed the District Court’s declination to accept juris-

diction. The questions presented are:

1. Whether Steffel v. Thompson, 415 U.S. 451, 94 S.Ct.

1209, 39 L.Ed.2d 505 (1974), requires Federal District

Courts to entertain any and every action filed by motion

picture theatre owners for a declaratory judgment that

a particular movie desired to be shown is not obscene,

applying the standards of a facially valid State statute,

when a State prosecution has been threatened but is not

pending, and a showing of bad faith enforcement or other

special circumstances has not been made.

2. Whether Federal District Courts may, considering

3

the nature of the case, all circumstances regarding how it

arose, the presence or absence of constitutional issues, and

the availability of another forum equally or better suited

for determining the factual issue of obscenity vel non,

exercise judicial discretion and decline to grant federal

declaratory relief in such cases.

STATUTES AND FEDERAL RULES INVOLVED

Federal Declaratory Judgment Act, 48 Stat. 955 as

amended, 28 U.S.C. Section 2201:

“In a case of actual controversy within its jurisdic-

tion, except with respect to Federal Taxes, other

than actions brought under section 7428 of the Inter-

nal Revenue Code of 1954 or a, proceeding under

section 505 or 1146 of Title 11, any court of the

United States, upon the filing of an appropriate

pleading, may declare the rights and other legal

relations of any interested party seeking such declara-

tion, whether or not further relief is or could be

sought. Any such declaration shall have the force

and effect of a final judgment or decree and shall be

reviewable as such.”

Rule 57 of the Federal Rulés of Civil Procedure:

“Rule 57. Declaratory Judgments. The procedure for

obtaining a declaratory judgment pursuant to Title

28, U.S.C. Section 2201, shall be in accordance with

these rules, and the right to trial by jury may be

demanded under the circumstances and in the manner

provided in Rules 38 and 39. The existence of another

adequate remedy does not preclude a judgment for

declaratory relief in cases where it is appropriate.

The court may order a speedy hearing of an action

for a declaratory judgment and may advance it on

the calendar.”

Ga. Code Ann. Section 26-2101, Georgia Acts 1975, p. 498:

(a) A person commits the offense of distributing

4

obscene materials when he sells, lends, rents, leases,

gives, advertises, publishes, exhibits or otherwise

disseminates to any person any obscene material of

any description, knowing the obscene nature thereof,

or offers to do so, or possesses such material with the

intent to do so, provided that the word ‘knowing’ as

used herein, shall be deemed to be either actual or

constructive knowledge of the obscene contents of

the subject matter, and a person has constructive

knowledge of the obscene contents if he has knowl-

edge of facts which would put a reasonable and

prudent person on notice as to the suspect nature of

the material. Provided, however, the character and

reputation of the individual charged with an offense

under this law, and if a commercial dissemination of

obscene material is involved, the character and repu-

tation of the business establishment involved may be

placed in evidence by the defendant on the question

of intent to violate this law. Undeveloped photo-

graphs, molds, printing plates and the like shall be

deemed obscene notwithstanding that processing or

other acts may be required to make the obscenity

patent or to disseminate it.

(b) Material is obscene if:

(1) to the average person, applying contemporary

commuity standards, taken as a whole, it pre-

dominantly appeals to the prudient interest, that

is a shameful or morbid interest in nudity, sex or

excretion;

(2) the material taken as a whole, lacks serious

literary, artistic, political or scientific value, and

(3) the material depicts or describes, in a patently

ofiensive way, sexual conduct specifically defined

in subparagraphs (i) through (v) below

(i) acts of secual intercourse, heterosexual or

homosexual, normal or perverted, actual or

simulated;

5

(ii) acts of masturbation;

(iii) acts involving excretory functions or lewd

exhibition of the genitals;

(iv) acts of bestiality or the fondling of sex

organs of animals;

(v) sexual acts of flagellation, torture or other

violence indicating a sadomasochistic sexual

relationship ;

(c) Additionally, any device designed or marketed as

useful primarily for the stimulation of human genital

organs in obscene material under this section.

(d) Material, not otherwise obscene, may be obscene

under this section if the distribution thereof, or the

offer to do so, or the possession with intent to do so

is a commercial exploitation of erotica solely for the

sake of prurient appeal.

(e) It is an affirmative defense under this section that

dissemination of the material was restricted to:

(1) a person associated with an institution of higher

learning, either as a member of the faculty or a

matriculated student, teaching or pursuing a

course of study related to such material; or

(2) a person whose receipt of such material was

authorized in writing by a licensed medical prac-

titioner or psychiatrist.

A person convicted of distributing obscene material

shall be punished as for a misdemeanor of a high and

aggravated nature.”

STATEMENT

This action was brought in the United States District

Court for the Northern District of Georgia by Septum,

Inc. (Septum), a Georgia corporation engaged in the

business of exhibiting motion pictures, against Robert E.

6

Keller individually and as District Attorney for Clayton

County in the State of Georgia (the County). Septum

sought injunctive and declaratory relief from the County’s

threatened enforcement of the Georgia Obscenity Statute,

Ga. Code Ann. Section 26-2101, claiming that enforcement

of the statute against it infringed upon rights secured to

it under the first amendment, in violation of 42 U.S.C.

1983 (1976). The basis for the threated prosecution was

Septum’s exhibition of an x-rated motion picture entitled

“Cinderella’’, a film based loosely on the well-known fairy

tale, and incorporating repeated episodes of sexually

explicit conduct.

The events leading up to this litigation are as follows:

Since the fall of 1975, Robert E. Busman, President and

sole owner of Septum, had initiated and actively pursued

negotiations with the County regarding the exhibition of

x-rated films. Septum wished to avoid the arrest of its

employees for showing films which the County believed

to be obscene. In March, 1977 Septum entered into an

informal arrangement with the County regarding future

exhibition of such films. The County agreed to issue a

warning to Septum in the event it intended to proceed

with obscenity arrests and prosecutions against Septum

because of an allegedly obscene movie. This agreement

was carried out, and was effective in September 1977

when the present action was filed by Septum.

Septum had been showing the movie ‘‘Cinderella”’ at the

Old Dixie theatre in Clayton County since August 26,

1977, and the District Attorney had received over 200

phone calls complaining about it. The District Attorney

determined that he would view the movie to determine

whether a criminal prosecution should be _ initiated.

Thereafter, at Septum’s request, a conference was held

7

between Mr. Busman and his attorneys, and members of

the District Attorney’s office on September 6, 1977. At

that time, the District Attorney informed Septum’s

representatives that if Septum continued to show the

movie, he would initiate criminal prosecutior. At the

request of Septum’s attorney, and for reasons soon to

become apparent, the District Attorney prepared a letter

containing substantially the same statement of intent as

had previously been conveyed. Septum stopped showing

the film, and on September 7, 1977 filed this suit in federal

district court.

The district court dismissed Sertum’s action, conclud-

ing that the conduct of Septum vis-a-vis the County re-

sulted in a waiver of their right to relief under 42 U.S.C.

Section 1983:

“This court holds that where the circumstances

demonstrate that a potential criminal defendant has

voluntarily entered into and obtained an agreement

with prosecuting authorities under which the au-

thorities promise not to prosecute under the obscenity

laws prior to notification of an intent to do so, such a

criminal defendant, by engaging in a collusory rela-

tionship with the prosecutors, in effect waives the

right to declaratory relief through an action under

section 1983, based on prior restraint under color of

the obscenity statute. If this court were to hold

otherwise, by finessing such promises from state pros-

ecutors, potential criminal defendants, without ever

risking prosecution, would be assured of a federal

‘advisory opinion’ every time the state prosecutors

gave notice of their intent to prosecute, and the doors

to the federal courthouse would be open to countless

numbers of section 1983 actions challenging applica-

tion of state obscenity statutes to conceivably, every

new film or magazine that is suspect. The federal

courts were not designed to operate as a national

censorship board.”

8

The Fifth Circuit Court of Appeals, in an opinion

written by Judge Randall with Judge Hill specially con-

curring, reversed the judgment of the District Court.

Judge Brown concurred in part and dissented in part.

Judge Randall found the salient facts and circumstances

of the case sub judice to be indistinguishable from those

in Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39

L.Ed.2d 505 (1974). She stated at page 461 of the opinion:

“Moreover, allowing the district court to abstain

from exercising jurisdiction over this case would do

violence to the Supreme Court’s holding in Steffel.

Concerning the applicability of Steffel, the district

court quoted the following languae from that case:

‘ ... federal declaratory relief is not precluded when

no state prosecution is pending and a federal plain-

tiff demonstrates a genuine threat of enforcement of a

disputed state criminal statute, whether an attack is

made on the constitutionality of the statute on its

face or as applied.’ 415 U.S. at 475, 94 S.Ct. at 1223-

1224. The court reasoned that althought federal

declaratory relief is not precluded, neither is a federal

forum for the complaint required. This was error. In

Steffel the Supreme Court reversed the Fifth Circuit’s

determination that abstention was proper under the

principles announced in Younger v. Harris, 401 U.S.

37, 91 8.Ct. 746, 27 L.Ed2d 669 (1971) and in Samuels

v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d

688 (1971), and remanded. Plainly the disposition of

that case precludes discretionary abstention in this

one, since there is no factual distinction between the

cases relevant to the abstention issue.

Accordingly, we hold that abstention is inappropriate

in this case.”

9

REASONS FOR GRANTING THE WRIT

A.

The Court below erroneously interpreted Steffel v.

Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505

(1974), based, apparently, upon a fundamental misunder-

standing of the issue faced by the Supreme Court in that

case. Judge Randall’s statement below that “In Steffel

the Supreme Court reversed the Fifth Circuit’s determi-

nation that abstention was proper under the principles

announced in Younger and in Samuels v. Mackell (cite),

and remanded,” misses the critical point of the Younger,

Samuels and Steffel progression. The Fifth Circuit in the

case sub judice treated Steffel as if it stood for the singu-

lar proposition that the Federal courts are required to

entertain all declaratory judgment actions filed by plain-

tiffs against whom state prosecution has been threatened

but is not pending. Such a treatment of Steffel not only

ignores the true issue of that case, but in so doing it has

the drastic and unprecedented effect of setting the Fed-

eral District Courts up as nothing less than what Judge

O’Kelley of the Northern District of Georgia described

as a ‘“‘national censorship board.”’

In order to put Steffel in its proper context, one need

only refer to the opinion rendered by the Fifth Circuit

Court of Appeals in that case, Becker v. Thompson, 459

F.2d 919 (1972). Stefiel and Becker desired to handout

anti-war material on the premises of a Georgia shopping

center. They were told by mall officials and police officers

that their failure to leave would result in their arrest.

Becker continued handbilling and was arrested for the

offense of criminal trespass, Georgia Code Ann. Section

26-1503. Steffel left to avoid arrest. The district court

denied Becker’s prayer for injunctive relief on the basis

10

of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d

669 (1971), and for declaratory relief on the basis of

Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d

688 (1971) because of the pending state criminal prose-

cution against her. The district court also denied both

injunctive and declaratory relief sought by Steffel, against

whom no state criminal prosecution was pending. The

court held that the ‘‘bad faith harassment” test set up

in the Samuels case, supra, governing the propriety of

declaratory relief when a state prosecution was pending,

must also be met for declaratory relief when no state pros-

ecution is pending. That is, the district court held that

since there was no showing of bad faith harassment against

Steffel by state authorities, federal declaratory relief was

precluded.

The Fifth Circuit picked up on the district court’s rea-

soning and affirmed. First, the Court noted that

“Younger, supra, made it clear beyond peradventure

that irreparable injury must be measured by bad

faith harassment and such test must be applied to a

request for injunctive relief against threatened state

court criminal prosecution.” 458 F.2d 922.

Then the Court demonstrated the similarity of effects

caused by injunctive and declaratory relief and came to

the following conclusion:

“Tf the practical effects of injunctive and declaratory

judgment remedies are identical because they result

in the disruption of a state’s enforcement of its crim-

inal statutes when a criminal prosecution is pending,

and therefore bad faith harassment must be shown

before either remedy may issue, and if, as we have

seen, the same test of bad faith harassment is pre-

requisite to injunctive relief in a threatened criminal

prosecution, it follows that a like showing must be

made for declaratory relief in a threatened prosecu-

11

tion. In short, the reasoning in Younger would appear

to ignore any distinction between pending and threat-

ened proceedings, and make denial of federal relief

obligatory in both situations unless bad faith enforce-

ment can be shown.” 459 F.2d 911.

The Court therefore held,

“Tf the propriety of declaratory and injunctive relief

should be judged by essentially the same standards,

then in preprosecution cases there must be a showing

of bad faith harassment tor the granting of declara-

tory as well as injunctive relief. We conclude that

under the circumstances of this case, even though no

state prosecution was pending against Steffel, sznce

there was no showing of bad faith harassment, he was

not entitled to a declaratory judgment.” 459 F.2d 923.

Of course, the Supreme Court did not agree with the Fifth

Circuit’s conclusion that bad faith harassment must be

shown before preprosecution declaratory relief can be

granted. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209,

39 L.Ed.2d 505. But the issue remained the same, Le.

whether declaratory relief was precluded when there was

no bad faith harassment demonstrated. It was certainly

not expanded to the point desired by respondent herein,

or suggested by Judge Randall below, that federal declara-

tory relief is required absent a pending state prosecution.

Justice Brennan’s statement in the Court’s opinion,

that,

“We therefore hold that regardless of whether in-

junctive relief may be appropriate, federal declara-

tory relief is not precluded when no state prosecution

is pending...’ 415 U.S. 475, 39 L.Ed.2d 524,

was not a flippant, irrelevant choice of words, but rather

was directly responsive to the Fifth Circuit’s holding that

such relief indeed was absolutely precluded absent bad faith

harassment.

12

The opinion of the Fifth Circuit Court of Appeals in

the case sub judice went beyond the limited context of

the Steffel opinion. Judge Randall noted that the District

Court quoted Steffel to the effect that fedcral declaratory

relief is not precluded when no state prosecution is pend-

ing. She then observed that:

“Moreover, allowing the district court to abstain from

exercising jurisdiction over this case would do vio-

lence to the Supreme Court’s holding in Steffel.

“The court reasoned that although federal declara-

tory relief is not precluded, neither is a federal forum

for the complaint required. This was error. Plainly

the disposition of Steffel precludes discretionary ab-

stention in this one, since there is no factual distine-

tion between the cases relevant to the abstention

issue. “

While there is more to be said herein regarding the

factual distinctions between this case and Steffel, it is cer-

tainly clear that if Judge Randall’s opinion is allowed to

stand, litigants in the Fifth Circuit will be led to the

erroneous conclusion that Steffel holds that if there is no

pending state prosecution, then federal district courts must

hear every declaratory judgment action that comes along.

The district courts will serve at the beck and call of every

adult magazine publisher and film distributor who wants

an authoritative factual predetermination that his prod-

uct is not obscene.

Steffel certainly does not require such a result, and this

court should make that point clear by reversing the errone-

ous implication provided by the Fifth Circuit’s opinion

in this case.

2.

The fact that Steffel does not require the district courts

to entertain all preprosecution declaratory actions is

13

highlighted by the discretionary nature of the remedy

under the federal Declaratory Judgment Act, 48 Stat.

955 as amended, 28 U.S.C. Section 2201. The intervention

sought by Septum in this case involves a type of decision

making for which the declaratory judgment is ill suited

and with which federal judges should not be irrevocably

saddled.

In the case sub judice, respondent has asked for a de-

claratory judgment that Georgia’s obscenity statute is

unconstitutional as applied. In reality, this is nothing

more than an attempt to add constitutional dignity to its

root desire to have a federal court rule that the motion ,

picture “Cinderella” does not violate Georgia’s obscenity

statute. To say that what respondent seeks reaches con-

stitutional dimensions is sheer sophistry. The issue is

purely factual:

Does ‘‘Cinderella”’ fall within the prescription of Geor-

gia’s Obscenity Statute or does it not? It is obscene or

isn’t it?

This is not to deny the existence of serious first amend-

ment issues in the area of obscenity law. It is simply to

suggest that in the context of determining whether or not

a particular movie is obscene, under a facially valid stat-

ute, the issue is purely factual and properly assignable to

someone other than a federal judge for declaratory relief.

Under the circumstances of this case, such assignment

was proper by the district court and entirely consistent

with the discretionary nature of the Declaratory Judg-

ment Act.

Rule 57 of the Federal Rules of Civil Procedure ex-

pressly provides that the existence of another adequate

remedy does not preclude judgment for declaratory

14

elief in cases where it is appropriate. Thus the courts

have the power to grant declaratory relief despite the

existence of another adequate remedy, but this does not

mean that the courts are required to grant relief in all such

cases. The negative form of the statement in Rule 57

leaves the matter to sound judicial discretion. Section 6 of

the Uniform Declaratory Judgment Act provides:

“The court may refuse to render or enter a declara-

tory judgment or decree where such judgment or

decree, if rendered or entered, would not terminate

the uncertainity or controversy giving rise to the

proceeding.”

Although the federal act contains no such express authori-

zation for the exercise of judicial discretion in the grant or

denial of declaratory relief, it, however, originally pro-

vided that the court ‘‘shall have power’ to declare, and

after the 1948 revision, now provides that the court

“may” declare the rights and other legal relations of any

interested party seeking such declaration. This is in-

ferential authority for the exercise of judicial discretion.

An excellent summary of the discretionary nature of the

action was made by Judge Parker of the Fourth Circuit in

Aetna Casualty and Surety Co. v. Quarles, 92 F.2d 321

(1937):

“The Uniform Declaratory Judgment Act expressly

provides for the exercise of discretion as does the

New York Civil Practice Act and the rules adopted

thereunder. And the rule is well settled under the

English statute and court rules that the granting of

declaratory relief is a matter resting in the court’s

discretion. Russian Commercial Industrial Bank v.

British Bank, 90 L.J.K.B.N.S. 1089; 19 A.L.R. 1101.

Professor Borchard points out that these statutory

provisions ‘merely embody the established Anglo-

American practice in all jurisdictions.’ Declaratory

15

Judgments, p. 100. While the federal act does not

expressly provide that the granting of declaratory

relief shall rest in the court’s discretion, this is clearly

implied from the fact that it merely gives the court

power to grant the remedy without prescribing any

of the conditions under which it is to be granted, and

it is hardly to be supposed that it was intended that

it should be granted as of course in every case where

a controversy exists. The Report of the Judiciary

Committee of the Senate states that there is a discre-

tion under the statute ‘not to issue the judgment if it

will not finally settle the rights of the parties.’ ”’

The discretionary nature of the declaratory judgment is

clearly shown by holdings of the Supreme Court. In

Brillhart v. Excess Ins. Co., 316 U.S. 491, 494, 62 S.Ct.

1173, 86 L.Ed. 1620, Justice Frankfurter stated:

“Although the District Court had jurisdiction of the

suit under the Federal Declaratory Judgment Act,

it was under no compulsion to exercise that juris-

diction. The petitioner’s motion to dismiss the bill

was addressed to the discretion of the court.”’

The Court cited as authority for this discretionary nature

of the declaratory judgment Aetna Casualty Co. v. Quarles,

92 F.2d 321; Maryland Casualty Co. v. Consumers Finance

Service, 101 F.2d 514; American Automobiles Ins. Co. v.

Freundt, 103 F.2d 613 and 51 Yale L.J. 511. Subsequent

decisions of the Supreme Court have also held the exercise

of the power to grant declaratory judgments to be discre-

tionary, e.g. Great Lakes Co. v. Huffman, 319 U.S. 293,

63 8.Ct. 1070, 87 L.Ed. 1407; Alabama State Federation of

Labor v. McAdory, 325 U.S. 450, 65 S.Ct. 13884, 89 L.Ed.

1725; Eccles v. Peoples Bank, 333 U.S. 426, 68 S.Ct. 641,

92 L.Ed. 784; Public Service Commission of Utah v. Wycoff

Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291; Zemel v.

Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179; Provident

16

Tradesmen’s Bank and Trust Co. v. Patterson, 390 U.S.

102, 88 S.Ct. 733, 19 L.Ed.2d 936.

Since Rule 57 authorizes declaratory relief “in cases

where it is appropriate,’ there are, by implication, cases

Which are inappropriate for such relief, notwithstanding

the courts power to provide it. The case sub judice is one

type case in which federal declaratory relief is ‘‘inappro-

priate.”’

It is inappropriate, first, because of the procedural

charade by which federal jurisdiction was invoked. After

months of dealings between Septum and the Clayton

County District Attorney’s office, wherein Septum was

the beneficiary of the County’s promise to notify Septum

of any intention to prosecute prior to arrest, Septum

began showing the movie Cinderella. The District At-

torney’s office received two hundred calls complaining

about the movie. The County contacted Septum and

advised it that appropriate action would be taken.

Septum’s owner and attorneys seized upon the oppor-

tunity to take advantage of the County’s wholly gratu-

itous gesture of preprosecution notice, requested that the

notice be put in writing, and upon receiving it, raced to

the federal courthouse seeking injunctive and declaratory

relief. The violation of Georgia’s obscenity statute, if

any, had already occurred, yet the County could not

prosecute without subjecting itself to allegations of a bad

faith breach of its agreement with Septum. The County

had tried to do that which the Supreme Court had en-

couraged it to do, e.g. Bantam Books v. Sullivan, 372 U.S.

58, 9 L.Ed.2d 584 (1963). However, all it got as a result

was the opportunity to have the normal flow of Georgia’s

criminal procedure interrupted and substituted by a

federal declaratory action. The scenario is very similar to

17

the spoiled child who, when faced by a situtation among

his peers not to his liking, runs to mama asking her to

tell those bad boys that they were wrong. Of course, the

prudent mother, well aware that her son must deal with

his peers from now on, and that her intervention would

solve nothing sends her child back to deal with the prob-

lem in the most direct and meaningful way possible.

That is precisely what the district court did in this case.

Rather than dignifying the obvious manipulation by way

of procedural fencing for the sole purpose of forum shop-

ping, Judge O’ Kelley recognized and ruled that this matter

was inappropriate for federal declaratory relief.

The court’s discretion to decline to entertain a declara-

tory action should be invoked when the action would not

“settle the controversy”, or not serve a useful purpose in

claryifying the legal relations in issue. Borchard, Declara-

tory Judgments (2d ed. 1941) 293. Courts should attempt

to prevent the perversion of the Act to purposes not

intended by the statute, and therefore should not permit

the declaratory remedy to be used merely for the purpose

of procedural fencing, or to provide an arena for a race

for res judicata. 6A Moore’s Federal Practice 57.08(2),

57.08(5), citing Kerotest Mfg. Co. v. C-O-Two Fire Equip-

ment Co., 342 U.S. 180, 72 S.Ct. 219, 96 L.Ed. 200 (1952),

Cunningham Bros. v. Bail, 407 F.2d 1165, cert. denied

395 U.S. 959, 89 S.Ct. 2100, 23 L.Ed.2d 745, Independent

Tape Merchants Ass’n v. Creamer, 346 F.Supp. 456;

Fireman’s Ins. Co. v. Newark, N.J. v. Riley, 322 F.Supp.

349.

It is inappropriate, second, because of the nature of the

inquiry and the future effects of accepting such cases. This

case arises from an entirely different set of legal issues

from those involved in Steffel v. Thompson, supra. In

18

Steffel the question was whether or not his conduct, i.e,

handing out anti-war material at a shopping center, was

constitutionally protected first amendment activity which

Georgia’s criminal trespass statute could not abrogate.

Steffel’s right to make a comment is per se protected by

the first amendment in the same way that Septum’s right

to exhibit motion pictures, per se, is protected. In Steffel,

state authorities were attempting to curtail Steffel’s right

to make a comment irrespective of its content. In the

context of a time when our country was literally torn apart

over the propriety of its involvement in the Viet Nam war,

the State’s enforcement of the criminal trespass statute

against Steffel took on monumental constitutional pro-

portions. The only way in which Steffel would have ap-

proximated the case sub judice would have been if he was

trying to distribute sexually explicit materials. In that

case, the right to make a comment would not be at issue,

but rather whether the content of the comment violated

Georgia’s obscenity law. Clearly, such a purely factual

determination falls short of the momentous constitutional

issue involved in Steffel.

Miller v. California, 413 U.S. 15, after which Georgia’s

obscenity statute is patterned, established the criteria for

determining whether or not material is obscene, and re-

quired that that determination be made by applying

“community standards.”’ The district court in this case

recognized that that determination can be accomplished

just as well, if not better, by local state proceedings. In

short, he reached the altogether reasonable conclusion

that there is simply no sound reason for the federal courts

to become ‘“‘national consorship boards” if the federal

plaintiff has another forum in which that purely factual

determination can be made.

Certainly Septum doesn’t relish criminal prosecution.

19

But as noted in Boyce Motor Lines v. United States, 342

U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367,

“Tt is not unfair to require that one who deliberately

goes perilously close to an area of proscribed conduct

shall take the risk that he may cross the line.”’

But for Petitioner’s unwillingness to breach its agreement

with Septum, there most definitely would have been a

state forum immediately available for determining the

obscenity vel non issue. To be sure, those in the position

of Septum will have that forum in the future in Clayton

County.

For all of the foregoing reasons, the district court acted

appropriately in dismissing Septum’s action for declara-

tory relief. This court should reverse the Fifth Circuit’s

determination in this case in order to be consistent with

the purpose of the Declaratory Judgment Act and to

insure that the Federal District Courts will not be inun-

dated with requests for advisory opinions regarding the

possible obscenity of each monthly girly magazine and

each weekly motion picture. The Federal District Courts

need to know if that is their job. This case is an appro-

priate vehicle for informing them one way or the other,

and therefore the Court should exercise its discretionary

jurisdiction.

CONCLUSION

For the reasons set forth above,it is respectfully sub-

mitted that this petition for aMrit of certiorari should .

be granted. E>

Lita Lyf VA E> held

AROLD 4 rz

I a MF

LIFPFORD A“ STICHER

Attgrney for Petitioner

20

CERTIFICATE OF SERVICE

We, Harold G. Benefield, and Clifford A. Sticher,

Petitioner Attorneys, hereby certify that we have mailed

a copy of the foregoing Petition for Writ of Certiorari to

Mr. Foy Devine, Attorney for Respondent, 3565 Pied-

mont Road, N. E., Atlanta, Georgia, by placing a copy of

same along with certificate attached thereto in a proper ee

addessed and stamped envelope and mailed on the

day of Jun. _,:-1980, and we did also mail a

copy of same to Honorable Arthur K. Bolton, Attorney

General of Georgia, 321 Judicial Building, Atlanta,

Georgia.

hf drill

UW Ag CL ZAL AE iA

MAROLD G. BENEFYELD /

Attorney for Petipgner

VLA LAL

CLIFFO BD A. TICHER

Attoryly for Petitioner

Appendices

* ee eee a4

6 et ee ie ote ga de ss ee

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

SEPTUM, INC., a Georgia

corporation

ve CIVIL NO:

+ C77-1476A

ROBERT E. KELLER, Individually

and as District Attorney for Clayton

County, State of Georgia }

ORDEF

This action for declaratory! and injunctive? relief arises

from plaintiff Septum, Inc.’s (hereinafter ““Septum’’) ex-

hibition of the X-rated movie ‘‘Cinderella-96” at the Old

Dixie Theater in Clayton County, Georgia. In response

to certain complaints about the offensive nature of the

film, staff members of the District Attorney’s office in

Clayton County viewed the movie and determined that

there was sufficient probable cause that it violated the

Georgia obscenity statute.* Accordingly, after the movie

1 Plaintiff is seeking an order declaring (1) that Ga. Code Ann. §26-101

as applied to plaintiff by defendant is an unconstitutional violation

of its first and fourteenth amendment rights and (2) that the movie

“‘Cinderella-96” is not obscene within the meaning of either the de-

cision of the United States Supreme Court in Miller v. California,

413 US. 15 (1973), or Ga. Code Ann. §26-2101.

2 Plaintiff is seeking both a preliminary and a permanent injunction,

enjoining defendant Robert E. Keller and others acting in concert

with him from arresting or threatening to arrest persons for exhibit-

ing the movie “Cinderella-96.”’

3 Ga. Code Ann. §26-2101(b) provides that material is obscene if:

“‘(1) to the average person, applying contemporary community

standards, taken as a whole, it predominantly appeals to the

prurient interest, that is a shameful or morbid interest in nudity,

sex or excretion;

(2) the meterial taken as a whole, lacks serious literary, artistic,

political or scientific value, and

(3) the material depicts or describes, in a patently offensive way,

A-1

A-2

had been shown at the Old Dixie Theater for a total of

eleven days, on September 7, 1977, defendant Robert E.

Keller, the Clayton County District Attorney, notified

plaintiff’s attorney that “the appropriate criminal prose-

cution’’ would be instituted if plaintiff continued to show

the movie.‘ Faced with the choice between either inten-

tionally subjecting its officers and employees to state

criminal prosecution under the Georgia obscenity statute

—_— conduct specifically defined in subparagraphs (i) through (v)

elow:

(i) acts of sexual intercourse, heterosexual or homosexual, nor-

mal or perverted, actual or simulated;

(ii) acts of masturbation;

(iii) acts involving excretory functions or lewd exhibition of

the genitals;

(iv) acts of bestiality or the fondling of sex organs of animals;

(v) sexual acts of flagellation, torture or other violence indi-

cating a sadomasochistic sexual relationship;”’

* * * * *

The Georgia statute substantially mirrors the guidelines contained

in — v. California, 413 U.S. 15 (1973), and is not being attacked

on its face.

‘“T am writing this letter in response to your request as the attorney

for Septum Twin Cinema that I notify you of any action contem-

plated by this office on the above referenced matter prior to taking

such action.

“Since the movie Cinderella began showing in your theater, my

office has been inundated with telephone calls in oposition (sic) to

the showing of this movie. Members of my staff have viewed the

movie and feel that there is sufficient probable cause that the movie

violates the Georgia obscenity law under Georgia Code Annotated

Section 26-2101.

“T can not prevent you from showing the movie but at your request

I am notifying you that if the Septum Twin Cinema continues to

show the movie, Cinderella, my office will institute the appropriate

criminal prosecution.”

The court notes that this letter by defendant was in response to

a request by plaintiff’s attorney.

5 Mr. Robert B. Busman, president of the plaintiff corporation, states

by affidavit that he feared arrest and prosecution of himself or his

employees for exhibition of the movie ‘Cinderella-96” and, further,

that his employees have refused to take any part in the operation

of the Old Dixie Theater as long as they remain exposed to arrest

and prosecution under the Georgia obscenity statute.

A-3

or suffering alleged irreparable harm* by foregoing what

jt believes to be constitutionally protected activity under

the first and fourteenth amendments, on that date the

plaintiff ceased exhibition of the movie and instituted this

action for federal intervention under 42 U.S.C. § 1983.7

Plaintiff contends that its right to federal declaratory

relief under these circumstances is mandated by the de-

cision of the United States Supreme Court in Steffel v.

Thompson, 415 U.S. 452 (1974). In that case the plaintiff

was engaged in handbilling against American involvement

in Vietnam at a shopping center and was twice warned

by police that if he did not stop he would be arrested.

The plaintiff in Steffel alleged that application of the

Georgia criminal trespass law to him would violate his

first and fourteenth amendment rights and, consequently,

as in the case sub judice, brought an action under 42

U.S.C. § 1983 seeking declaratory and injunctive relief.

After concluding that the plaintiff presented the court

with an “actual controversy,’’* a unanimous Court held

6 Mr. Robert B. Busman, president of the plaintiff corporation, states

by affidavit that lost promotional expenditures, lost revenues, and

lost investment in viewing rights occasioned by suspending exhibi-

tion of the movie ‘“‘Cinderella-96” causes irreparable injury to plain-

tiff in that a competitor of plaintiff is exhibiting the motion picture

“Cinderella-96” at another location in the Atlanta metropolitan area,

thus exhausting the market of persons who may desire to view “Cin-

derella-96.”” This court has been informed, however, that since the

emergency hearing, on September 12, 1977, the office of the District

Attorney in Fulton County, pursuant to a warrant issued by an in-

dependent magistrate, seized the film ‘‘Cinderella-96” at the Tower

Place Six Theater at 3340 Peachtree Road in Fulton County and

made two arrests.

7 Specifically, plaintiff alleges that the actions of defendant, taken

under color of Ga. Code Ann. §26-2101, are depriving the plaintiff of

its constitutional rights to free expression under the first and four-

teenth amendments.

8 The district court had concluded that ‘the rudiments of an actual

controversy between the parties” was lacking. Becker v. Thompson,

334 F.Supp. 1386 (N.D. Ga. 1971) (Henderson, J.).

A-4

that:

federal declaratory relief is not precluded when no state

prosecution is pending and a federal plaintiff demon-

strates a genuine threat of enforcement of a disputed

state criminal statute, whether an attack is made on

the constitutionality of the statute on its face or as

applied.

(Emphasis supplied.) 415 U.S. at 475. Thus, contrary to

the plaintiff’s contentions in the case sub judice, Steffel

does not stand for the proposition that federal courts

“should exercise their unquestioned jurisdictional au-

thority’’* whenever a potential state criminal defendant,

faced with a genuine threat of arrest under a statute that

is allegedly unconstitutional, either facially or as applied,

seeks federal declaratory relief in an action under section

1983. Rather, Steffel merely holds that federal declara-

tory relief in such circumstances is not precluded because

of any failure to exhaust state judicial or administrative

remedies. !°

Although this court is in agreement with the notion

that both the potential state criminal defendant and the

state itself, when confronted with a Steffel kind of situa-

tion, would benefit from a procedure which allows a

declaration of rights without activation of the criminal

process, the federal courts cannot be a vehicle for such a

procedure in the absence of an “actual controversy” as

required under the provisions of both the Federal Declara-

® Plaintiff’s reply brief (pages 3-4) states that “where a case falls

within the foregoing progression such that state officials have stated

that they intend to effect an arrest, but no proceeding has actually

been initiated, then the Federal Courts should exercise their unques-

tioned jurisdictional authority,” citing Steffel.

10415 US. at 472-73.

A-5

tory Judgment Act " and Article III of the Constitu-

tion.'* If the record reveals that the rudiments of an

“actual controversy” are lacking, then this matter is not

,‘justiciable.”’ See, e.g., Aetna Life Insurance Co. v. Ha-

worth, 300 U.S. 227 (1937); Guillot v. United States Depart-

ment of Health, Education and Welfare, 464 F.2d 598 (5th

Cir. 1972). The statement in the affidavit of Mr. Rob-

ert B. Busman, president of the corporate plaintiff, that

defendant’s notification of his intent to prosecute resulted

from ‘‘negotiations’ between members of defendant’s staff

and agents of the plaintiff in a meeting held in defendant’s

office on September 6, 1977, strongly suggests collusion

between the plaintiff and defendant.‘ In the court’s view,

this statement together with defendant’s apparent prom-

ise to plaintiff not to prosecute for any exhibition of X-

rated films prior to notification of an intent to do so,

constitutes strong evidence of an implied, if not an ex-

11 The Federal Declaratory Judgment Act, 28 U.S.C. § 2201, provides

in pertinent part:

“Tn a case of actual controversy within its jurisdiction... any

court of the United States may declare the rights and other legal

relations of any interested party seeking such declaration . . . ”’

? Article III, Section 2 of the Constitution provides in part:

“The judicial Power shall extend to all Cases, in Law and Equity,

arising under this Constitution, the Laws of the United States, and

Treaties made, or which shall be, under their Authority; ... to

Controversies between... ”’

18 At the emergency hearing Mr. Robert B. Busman testified that

plaintiff’s attorneys initiated the dialogue between plaintiff and de-

fendant concerning plaintiff’s exhibition of the movie “Cinderella-96”’

by asking defendant, prior to the exhibition of the movie, if he ob-

— to such exhibition. In his affidavit Mr. Robert B. Busman

stated:

“Defendant contacted the undersigned . . . to advise that com-

plaints were being received regarding this movie . . . Further nego-

tiations followed during which the Defendant and members of his

staff viewed the picture in question and finally advised Plaintiff

in a meeting held in the offices of the Clayton County District

Attorney on Tuesday, September 6, 1977, that any further exhi-

bition of the film would bring about criminal prosecution.”

A-6

press agreement between the parties. This court holds

that where the circumstances demonstrate that a poten-

tial criminal defendant has voluntarily '4 entered into and

obtained an agreement with the prosecuting authorities

under which such authorities promise not to prosecute

under the obscenity laws prior to notification of an intent

to do so, such a potential criminal defendant, by engaging

in a collusory relationship with the prosecutors, in effect

waives the right to declaratory relief through an action

under section 1983, based on prior restraint under color

of the obscenity statute.'* If this court were to hold other-

wise, by finessing such promises from state prosecutors,

potential criminal defendants, without ever risking pros-

ecution, would be assured of a federal ‘advisory opinion”

every time the state prosecutors gave notice of their intent

to prosecute, and the doors to the federal courthouse

would be opened to countless numbers of section 1983

actions challenging application of state obscenity statutes

to, conceivably, every new film or magazine that is sus-

pect. The federal courts were not designed to act as a

national censorship board. By holding that a potential

criminal defendant who freely chooses to enter into such

an arrangement with prosecuting authorities is himself

foreclosing the possibility of an “actual controversy”

between himself and the prosecutors for the duration of

4 The fact that plaintiff initiated the dialogue with the defendant

as to this particular movie indicates that plaintiff entered into an

understanding or agreement with the defendant voluntarily and freely

as to its planned exhibition of this one movie, ‘‘Cinderella-96.”’ See

notes 4 and 13 supra.

6 This holding is limited to circumstances where the record demon-

strates that prosecuting officials have acted in good faith, which in-

cludes compliance with this court’s order in Penthouse International,

Ltd. v. McAuliffe, Civil No. 77-1238A (N.D. Ga. Aug. 24, 1977)

(Freeman, J.). The court concludes that this record is free from any

evidence of bad faith or harassment of the plaintiff by officials from

the office of the Clayton County District Attorney.

A-7

the collusion, and as to all matters that are the subject

of it, this court is following the lead of several United

States Supreme Court decisions which, in response to a

recent flood of section 1983 litigants, have closed the

floodgate under similar doctrines of jurisdiction and jus-

ticiability. See Simon v. Eastern Ky. Welfare Rights Or-

ganization, 426 U.S. 26 (1976); Rizzo v. Goode, 423 U.S.

362 (1976); Warth v. Seldin, 422 U.S. 490 (1975); O’Shea

v. Littleton, 414 U.S. 488 (1974). Moreover, the United

States Supreme Court has clearly sanctioned good faith

private consultation between state prosecutors and those

individuals who are potential criminal defendants under

state obscenity statutes:

We do not hold that law enforcement officers must

renounce all informal contacts with persons suspected

of violating valid laws prohibiting obscenity. Where

such consultation is genuinely undertaken with the

purpose of aiding (compliance) ... with such laws

and (to) avoid prosecution under them, it need not

_ the full enjoyment of First Amendment free-

oms.

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963).

When a potential criminal defendant is able to extract

a promise from prosecuting authorities not to prosecute ~

prior to notification of an intent to do so, this court is

hesitant to find that such notification is equivalent to

what, in the absence of such an agreement, would be an

arrest, thereby signaling the beginning of an ‘ongoing

state criminal prosecution” and, therefore, federal court

abstention under Younger v. Harris, 401 U.S. 37 (1971).

This court does find, however, that when an agreement

not to prosecute prior to notification is operative, upon

such notification by prosecuting authorities, a sufficient

state interest arises such that the appropriateness of fed-

A-8

eral intervention cannot be determined apart from the

principles of federalism. In this regard, recent Supreme

Court decisions also reflect a determination to keep sec-

tion 1983 litigants out of the federal courthouse where

they have an opportunity to have their rights vindicated

in state court. See e.g., Judice v. Vail, 45 U.S.L.W. 4269

(U.S. Mar. 22, 1977); Hicks v. Miranda, 422 U.S. 332

(1975); Huffman v. Pursue, Ltd., 420 U.S. 592 (1975).

The court does not specifically ground its decision

today, however, on principles of jurisdiction and fed-

eralism under Younger and its progeny. This court merely

finds that plaintiff’s action does not present the court

with a “justiciable controversy” in the constitutional

sense. Therefore, for the above reasons, plaintiff’s action

is hereby dismissed.

IT IS SO ORDERED this 16th day of September,

1977.

/s/ Wriu1aM C. O’ KELLEY

WituiaM C. O’ KELLEY

United States District Judge

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

SEPTUM, INC., a Georgia )

corporation

vs. CIVIL NO.

ROBERT E. KELLER, Individually C77-1476A

and as District Attorney for

Clayton County, Georgia

ORDER

This civil action is before the court on the plaintiff’s

motion to alter or amend the judgment pursuant to rule

59(e) of the Federal Rules of Civil Procedure.

Apparently, the plaintiff in this action yet fails to

understand the significant distinctions between the im-

passe he has encountered in the course of his consultation

and collusion with the Clayton County prosecutors and

the plight of the plaintiff in Steffel v. Thompson, 415 U.S.

452 (1974). At no time did the plaintiff or his colleagues

in Steffel negotiate with either the police or the appro-

priate prosecuting authorities about the permissibility of

leafleting on the sidewalk in front: of the DeKalb County

Shopping Center, and, quite clearly, no sgreement to

give notice of an intent to arrest or prosecute, prior to

doing so, was ever sought or obtained by the plaintiff or

his colleagues in Steffel. In fact, Steffel’s colleague Becker

was actually arrested under the Georgia criminal trespass

statute for engaging in the leafleting in question. Upon

being informed that the regulations of the DeKalb

County Shopping Center prohibited distribution of

leaflets on its property, Steffel and his colleagues did not

even attempt to consult with the police about the cir-

B-1

B-2

cumstances in which they could safely leaflet at or near

the shopping center so as to avoid arrest and prosecution

for criminal trespass. In reviewing these distinctions, the

court is not suggesting that there must have been an

actual arrest of one in a posture identical to a prospective

section 1983 plaintiff for such a prospective plaintiff to

have standing to obtain declaratory relief, or that a

potential criminal defendant jeopardizes his rights to

section 1983 relief anytime he consults with prosecutors

in an attempt to comply with the law. Rather, the court

is demonstrating that with reference to the possible

degrees of intercourse between prosecutors and potential

criminal defendants, Steffel and the case sub judice repre-

sent two extremes along a hypothetical spectrum. In

circumstances where consultation between a potential

criminal defendant and prosecuting authorities, entered

into voluntarily by the potential criminal defendant,

rises to the level of a working agreement under which the

so-called ‘‘threat”’ of arrest is merely the prosecutor’s

fulfillment of 2 bargained-for promise, this court reaffirms

its holding that such a “‘threat’’ does not constitute the

basis for a justiciable controversy in the constitutional

sense.

Finally, although the court’s decision in its order of

September 16, 1977, was not specifically grounded on

principles of jurisdiction and federalism under Younger v.

Harris, 401 U.S. 37 (1971), the court did find that “when

an agreement not to prosecute prior to notification is

operative, upon such notification by prosecuting authori-

ties, a sufficient state interest arises such that the appro-

priateness of federal intervention cannot be determined

apart from the principles of federalism.” The plaintiff has

attacked this finding by the court as introducing an un-

warranted departure from a clear line of demarcation for

B-3

the applicability of Younger principles at the point where

proceedings are actually pending in state court and as

introducing an unworkable and vague notice of “state

interest.’’ While the court reiterates today that its dis-

cussion in the order of September 16, 1977, regarding the

applicability of principles of federalism and abstention

under Younger was mere dictum, in this court’s view a

“state interest” analysis is not only workable but also

is 2 more enlightened approach to application of the

principles of federalism embodied in Younger. Moreover,

this court emphasizes that the United States Supreme

Court has taken a similar approach in defining when a

sufficient “federal interest’? becomes vested. In Hicks v.

Miranda, 422 U.S. 332 (1974), the Court departed from

the traditional demarcation at the point when proceed-

ings are pending and held:

that where state criminal proceedings are begun

against 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.

(Emphasis added.)

Therefore, for the above reasons, and in accordance

with the court’s discussion in its order of September 16,

1977, the plaintiff’s motion is hereby denied.

IT ISSO ORDERED this 14th day of November, 1977.

/s/ Wiuu1aM C, O’ KELLEY

WILuiAM C, O’ KELLEY

United States District Judge

APPENDIX C

SEPTUM, INC., a Georgia Corporation,

Plaintiff-A ppellant,

V.

ROBERT E. KELLER, Individually and as District

Attorney for Clayton County, State of Georgia,

Defendant-A ppellee.

No. 78-1141.

United States Court of Appeals, Fifth Circuit.

March 24, 1980.

Appeal from the United States District Court for the

Northern District of Georgia.

Before BROWN, HILL and RANDALL, Circuit

Judges.

RANDALL, Circuit Judge:

This action was brought in the United States District

Court for the Northern District of Georgia by Septum,

Inc. (Septum), a Georgia corporation engaged in the

business of exhibiting motion pictures, against Robert E.

Keller, individually and as District Attorney for Clayton

County in the State of Georgia (the County). Septum

sought injunctive and declaratory relief ! from the Coun-

ty’s threatened enforcement of the Georgia obscenity

1 Septum’s Complaint seeks both a preliminary and a permanent in-

junction, enjoining the County from enforcing or threatening to en-

force the Georgia obscenity statute, Ga. Code Ann. § 26-2101 (1978),

with respect to the movie ‘‘Cinderella.”” The Complaint also seeks a

declaration that “Cinderella” is not obscene within the meaning of

Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973),

and the Georgia obscenity statute; and that the application of that

statute to Septum’s operations is a violation of the rights secured to

it under the first and fourteenth amendments.

C-1

C-2

statute, Ga. Code Ann. § 26-201 (1978),? claiming that

enforcement of the statute against it infringed rights

secured to it under the first amendment, in violation of

42 U.S.C. § 1983 (1976).* The basis for the threatened

prosecution was Septum’s exhibition of an X-rated motion

Ga. Code Ann. § 26-2101 (b) (1978) provides:

(b) Material is obscene if:

(1) to the average person, applying contemporary community

standards, taken as a whole, it predominantly appeals to the

prurient interest, that is a shameful or morbid interest in nudity,

sex or excretion;

(2) the material taken as a whole, lacks serious literary, artis-

tic, political or scientific value, and

(3) the material depicts or describes, in a patently offensive

way, sexual conduct specifically defined in subparagraphs (i)

through (v) below:

(i) acts of sexual intercourse, heterosexual or homosexual,

normal or perverted, actual or simulated;

(ii) acts of masturbation;

(iii) acts involving excretory functions or lewd exhibition of

the genitals;

(iv) acts of bestiality or the fondling of sex organs of animals;

(v) sexual acts of flagellation, torture or other violence in-

dicating a sadomasochistic sexual relationship. . . .

3 42 U.S.C. § 1983 (1976) provides:

Every person who, under color of any Statute, ordinance, regu-

lation, custom, or usage, of any State or Territory, subjects, or

causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at law, suit

in equity, or other proper proceeding for redress. Jurisdiction is

based on § 1983 and on 28 U.S.C. § 1343 (1976). The latter statute

provides, in pertinent part:

The district courts shall have original jurisdistion of any civil

action authorized by law to be commenced by any person:

(3) To redress the deprivation, under color of any State

law, statute, ordinance, regulation, custom or usage of any

right, privilege or immunity secured by the Constitution of

the United States or by any Act of Congress providing for

equal rights of citizens or of all persons within the jurisdiction

of the United States;

(4) To recover damages or to secure equitable or other relief

under any Act of Congress providing for the protection of

civil rights, including the right to vote.

C-3

picture entitled “Cinderella,” a film loosely based on the

well-known fairy tale and evidently incorporating some

sexually explicit symbolism not found in the original.

The events leading up to this litigation are important.

In December 1975 three Septum employees were arrested

at one of Septum’s theaters, the Old Dixie Twin Cine-

ma in Clayton County, and were charged with ex-

hibiting obscene material in violation of the Georgia

obscenity statute. According to the affidavit of Robert B.

Busman, Septum’s president, charges were dropped

against the three employees in return for Septum’s

agreement to stop showing X-rated films in Clayton

County. In March 1977, apparently in an attempt to

avoid the embarrassment that would attend another

obscenity arrest, Septum entered into an informal ar-

rangement with the Clayton County District Attorney

regarding the future exhibition of X-rated films. The

apparent terms of this arrangement included the District

Attorney’s agreement to issue a warning to Septum in the

event the County intended to proceed with obscenity

arrests and prosecutions against the theater because of an

allegedly obscene movie. Septum submits that the pur-

pose of the arrangement was to give the theater the option

of withdrawing the film voluntarily rather than forcing

the County to prosecute to suppress it. According to Mr.

Busman’s affidavit this procedure was followed in May

1977 with respect to a film entitled “Kinky Ladies of

Bourbon Street.” The Clayton County District Attorney

apparently indicated that he would initiate a prosecution

if Septum continued to exhibit the film; as a result,

Septum discontinued showing the movie.

The scenario underlying the present litigation began

C-4

September 6, 1977. Septum had been showing the movie

“Cinderella” at the Old Dixie theater in Clayton County

since August 26, 1977, and the District Attorney’s office

had received over 200 phone calls complaining about it.

The District Attorney determined that he would have to

view the movie to decide whether a criminal prosecution

should be initiated. Thereafter, at Septum’s request, a

conference was held between Mr. Busman and his at-

torneys and members of the District Attorney’s office on

September 6, 1977. At that time the District Attorney

informed Septum’s representative that if Septum con-

tinued to show the movie, he would initiate criminal pros-

ecution. At the request of Septum’s attorney, the District

Attorney prepared a letter containing substantially the

same statement of intent as had previously been con-

veyed.‘ Septum stopped showing the film and on Septem-

ber 7, 1977 filed this suit in federal district Court.

The district court declined to accept jurisdiction of the

complaint after a full hearing on the merits, holding that

there was no “actual controversy” as required by Article

III of the United States Constitution and the Federal

4 The letter to Septum’s attorney, signed by defendant Robert Keller

as District Attorney for Clayton County, reads as follows:

Dear Foy:

I am writing this letter in response to your request as the attor-

ney for Septum Twin Cinema that I notify you of any action con-

templated by this office on the above referenced matter prior to

taking such action.

Since the movie Cinderella began showing in your theater, my

office has been inundated with telephone calls in oposition (sic) to

the showing of this movie. Members of my staff have viewed the

movie and feel that there is sufficient probable cause that the movie

violates the Georgia obscenity law under Georgia Code Annotated

Section 26-2101.

I can not prevent you from showing the movie but at your re-

quest I am notifying you that if the Septum Twin Cinema con-

tinues to show the movie, Cinderella, my office will institute the

appropriate criminal prosecution.

C-5

Declaratory Judgment Act, 28 U.S.C. § 2201 (1976).5

The Court said:

This Court holds that where the circumstances

demonstrate that a potential criminal defendant has

voluntarily entered into and obtained an agreement

with the prosecuting authorities under which such

authorities promise not to prosecute under the ob-

seenity laws prior to notification of an intent to do so,

such a potential criminal defendant, by engaging in a

collusory relationship with the prosecutors, in effect

waives the right to declaratory relief through an

action under § 1983, based on prior restraint under

the color of the obscenity statute.

Although the district court purported to base its decision

exclusively on the issue of justiciability, and explicitly

disavowed an intention to rule on the question of absten-

tion under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746,

27 L.Ed.2d 669 (1971) and its progeny, the Younger issue

is properly before this Court for review. The issue is

certain to arise on remand if it is not dealt with here.

Despite the district court’s reservations, the court erron-

eously construed the import of Steffel v. Thompson,

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

which governs the resolution of the Younger abstention

issue here, and in doing so effectively decided the ques-

tion. The issue was presented below by the County, the

parties fully explored the issue in their briefs and at oral

argument, and the district court made a ruling concerning

this central issue. Therefore, the question whether the

federal district court should abstain under the principles

of Younger v. Harris and subsequent cases elaborating and

1 Article III provides, in pertinent part: “The judicial Power shall

extend to all Cases, in Law and Equity, arising under this Consti-

tution...” U. 8. Const. Art. III § 2. Federal declaratory judg-

ments are permitted under 28 U.S.C. § 2201 (1976), which limits the

availability of that remedy to “‘a case of actual controversy.”

C-6

refining those principles is now appropriately before this

court.

I.

(1,2) We address first, and briefly, the County’s con-

tention that no case or controversy within the meaning of

Article III of the Constitution and the Federal Declara-

tory Judgment Act, 28 U.S.C. § 2201 (1976), can be dis-

cerned in this case. This position, which is difficult to

understand in view of the unconstroverted evidence estab-

lishing Septum’s desire to exhibit “Cinderella” at its

theater in Clayton County and the County’s intention to

prosecute if it does so, is apparantly based on the novel

theory that not only must the parties’ legal interests be

adverse, but there must be personal animosity between

them as well.¢ The County’s apprehension of the nature

of the controversy required by Article III is mistaken.

Both parties to this litigation made an effort to accommo-

date the private and public interests involved in this kind

of situation without resort to the State’s criminal process.

When the parties to such an agreement reach an impasse

in negotiation, however, for us to hold that any contro-

versy evaporates under the light of the previous cooper-

ative relationship between them would effectively elimi-

nate the incentive for private parties to participate in

this kind of arrangement. More importantly, however,

6 The gist of the County’s argument is conveyed in the following

extract from its brief:

The history of the involvement between Septum, Inc., its attor-

neys, and representatives of the Clayton County District Attorney

discloses a relationship which falls far short of the Article III

“Controversy’’, the existence of which is a condition precedent to

the invocation of federal jurisdiction. Rather than a “concrete

adverseness” ... there was, an atmosphere of co-operation and

negotiations all at the behest of Septum, Inc.

Brief of Appellee at 5 (emphasis in original).

C-7

personal animosity between the parties to a lawsuit has

never been considered a necessary aspect of a controversy

under Article III or the Federal Declaratory Judgment

Act. All that is required is that ‘‘(t)he controversy .. . be

definite and concrete, touching the legal relations of

parties having adverse legal interests.’’ Aetna Life Ins. Co.

v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 464, 81L.Ed

617 (1937) (emphasis added). The county believes ‘‘Cin-

derella’”’ is obscene; Septum does not. In the circum-

stances of this case, that is sufficient. (3) That no criminal

prosecution has been instituted against Septum does not

affect the existence of a controversy, for federal courts

are not hostile to anticipatory constitutional challenges

to statutes. Such challenges ‘‘play a most vital role in

modern efforts to enforce constitutional rights.”’ nterna-

tional Soc. for Krishna Consciousness v. Haves, 601 F.2d

809, 817 (5th Cir. 1979). When a plaintiff alleges an inten-

tion to engage in conduct arguably affected with a consti-

tutional interest, but proscribed by statute, and there

exists a credible threat of prosecution thereunder, he

“should not be required to await and undergo a criminal

prosecution as the sole means of seeking relief.’’ Doe v.

Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d.

201 (1973); See Babbit v. UFW, US. , 99

S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979); Steffel v.

Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39

L.Ed.2d. 505 (1974); Evers v. Dwyer, 358 U.S. 202, 204,

79 8.Ct. 178, 179, 3 L.Ed.2d. 222 (1958). The controversy

between Septum and the County satisfies all the foregoing

controversy sufficient to permit the exercise of the judicial

power of the United States is presented here.

C-8

Bh.

The district court concluded that the pre-enforcement

notification agreement that operated here raised a signi-

ficant question about the appropriateness of ‘federal

intervention” when the case was viewed in the light of the

principles of Younger v. Harris and its progeny. We note

at the outset two important characteristics of the case

before us. First, there is no question of federal interven-

tion as such, unless any federal constitutional challenge

to a state statute asserted in a federal court amounts to

federal intervention in the affairs of the state. There is no

state proceeding, criminal or equitable, in progress at the

moment; nor will there be one unless Septum chooses

either to seek equitable relief in a state court or to subject

itself to criminal prosecution by exhibiting ‘Cinderella’

without obtaining a judicial declaration of its right to do

so. Second, since Septum has indicated that it will not

expose itself to the risk of a criminal prosecution by ex-

hibiting “Cinderella,” we can be certain that this case

does not present a choice between a remedy at law and

one in equity. Instead, the only question is whether a

plaintiff who has negotiated an agreement with state

prosecuting authorities for pre-enforcement notification

can, consistent with the notions of federalism, equity and

comity embraced in the Younger line of cases, obtain

equitable relief in a federal. forum upon applying to the

federal court in the first instance.

“Our Federalism’”’ was the basis in Younger for holding

that federal injunction relief is not normally available to

halt a state criminal prosecution.? Two years later, in

Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39

7See Younger v. Harris, 401, U.S. 37, 43-54, 91 8.Ct. 746, 750-755,

27L.Ed.2d 669 (1971).

C-9

L.Ed.2d 505 (1974), the Court emphasized that “the

relevant principles of equity, comity, and federalism

‘have little force in the absence of a pending state pro-

ceeding.’ ”’ Id. at 462,94 S.Ct. at 1217, quoting Lake Car-

riers’ Ass’nv. MacMullan, 406 U.S. 498, 509, 92 S.Ct. 1749,

1756, 32 L.Ed.2d. 257 (1972). The principle that a court

should not inject equity when there is an adequate remedy

at law seems to have no application to this case, since

the choice is only between a state or a federal forum to

hear a prayer for equitable relief. Moreover, because the

federal court in this situation is not asked to interrupt or

intervene in an ongoing, or imminent, state proceeding,

notions of federalism — at least insofar as that term calls to

mind the fact that state and federal courts exist side by

side and exercise concurrent jurisdiction over a case like

this one—seems just as inapposite. This plaintiff’s choice

of a federal forum involves no more interference with

Georgia’s orderly administration of its own affairs than

is attendant upon any § 1983 challenge to state laws.

Nevertheless, arguably the “more vital consideration’’®

of comity counsels federal restraint when the plantiff’s

vertifiable allegations of a threat of enforcement arise out

of the kind of pre-enforcement notification agreement

underlying this case. We note that the plaintiff’s prior

negotiation with prosecuting authorities is the only ele-

ment distinguishing this case from Steffel v. Thompson, ®

8 See Trainor v. Hernandez, 431 U.S. 434, 443, 97 S.Ct. 1911, 1917,

52 L.Ed2d 486 (1977); Judice v. Vail, 430 U. S. 327, 334, 97 S.Ct.

1211, 1216, 51 L.Ed2d 376 (1977); Huffman v. Pursue, Ltd., 420 U.S.

592, 601, 95 S.Ct. 1200, 1206, 43 L.Ed2d 482 (1975); Younger »v.

Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 750, 27 L.Ed2d 669 (1971).

9 Steffel involved the threatened enforcement of Georgia’s criminal

trespass statute against one who was distributing handbills on a side-

walk surrounding a shopping center. According to the stipulated

facts of the appeal, Steffel was warned on two different days by

C-10

in which the Court held that abstaining from exercising

jurisdiction over Steffel’s § 1983 challenge to a Georgia

statute was improper when the plaintiff was threatened

with prosecution but could not be prosecuted unless he

violated the statute another time. With regard to the

concurrent availability of declaratory relief in the state

courts of Georgia, which was permitted at that time, as it

is now, see Ga. Code Ann. § 110-1101 (1972), the Court

noted: ‘‘(We) do not require petitioner first to seek vindi-

cation of his federal rights in a state declaratory judgment

action, see Lake Carriers’ Assn. v. MacMullan, 406 U.S.

at 510, 92 S.Ct. 1949, at 1757; Wisconsin v. Constan-

tineau, 400 U.S. 483,(91 8.Ct. 507- 27 L.Ed.2d 515) (1971)

.... 415 U.S. at 475, N. 22, 94 S.Ct. at 1224, n 22. The

County’s uncoerced agreement to notify Septum of its

intent to prosecute if Septum continued to exhibit an

allegedly obscene movie does not alter the analysis. The

agreement was negotiated at arms’ length and benefited

both parties. Septum guarded itself to a degree against

the risk of criminal prosecution, and the County profited

in being able to conserve, to an extent, its prosecutorial

resources. The quid pro quo of the agreement did not

police that he would be arrested if he did not depart. 415 U.S. at

455-56, 94 S.Ct. at 1213-14. In addition, Steffel testified that several

months earlier police officers had delivered a similar warning. ID.

at 455 n. 2, 94 S.Ct. at 1214 n. 2. The Georgia statute, Ga. Code

Ann. § 26-1503 (1972), requires a single notice to depart from the

owner or rightful occupant of the property, but none from law en-

forcement authorities. Thus the distinction between Steffel’s case

and Septum’s is not that pre-enforcement authorities. Thus the dis-

tinction between Steffel’s case and Septum’s is not that pre-enforce-

ment notification was delivered to Septum when none was required,

but only that in Septum’s case it was delivered at Septum’s request,

whereas in Steffel’s case it was delivered gratuitously. As we discuss

infra, the agreement to warn Septum of a contemplated prosecution

was designed to benefit all concerned.

C-11

include any provision limiting the availability, to Septum,

of federal relief.

The proposition that federal courts should impose such

a limitation as a matter of law based on the vague motion

of comity finds no support in previous Younger-type

cases, and would run directly contrary to the policies the

Supreme Court has identified underlying § 1983. In Lake

Carriers’ Ass’n v. MacMullan, supra, the Court said:

“(T)he availability of declaratory relief in (a state court)

on appellants’ federal claims is wholly beside the point.”’

ID 406 U.S. at 510, 92 S.Ct. at 1757. In reaching this

conclusion the Court relied on the following apposite

language from Zwickler v. Koota, 389 U.S. 241, 248, 88

S.Ct. 391, 395, 19 L.Ed.2d 444 (1967):

In thus (establishing jurisdiction for the exercise of)

federal judicial power, Congress imposed the duty upon

all levels of the federal judiciary to give due respect to a

suitor’s choice of a federal forum for the hearing and deci-

sion of its federal constitutional claims. Plainly, escape

from that duty is not permissible merely because state

courts also have the solemn responsibility, equally with

the federal courts, “. . . to guard, enforce, and protect

every right granted or secured by the Constitution of the

United States... ,’’ Robb v. Connolly, 111 U.S. 624, 637,

4§.Ct. 544, 551, 28 L.Ed. 542.

Moreover, allowing the district court to abstain from

exercising jurisdiction over this case would do violence to

the Supreme Court’s holding in Steffel. Concerning the

applicability of Steffel, the district court quoted the fol-

lowing language from that case:

.... federal declaratory relief is not precluded when

no state prosecution is pending and a federal plaintiff

demonstrates a genuine threat of enforcement of a

disputed state criminal statute, whether an attack is

C-12

made on the constitutionality of the statute on its

face or as applied.

415 U.S. at 475, 94 S.Ct. at 1223-1224. The court rea-

soned that although federal declaratory relief is not pre-

cluded, neither is a federal forum for the complaint re-

quired. This was error. In Steffel the Supreme Court re-

versed the Fifth Circuit’s determination that abstention

was proper under the principles announced in Younger

and in Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27

L.Ed.2d 688 (1971), and remanded. Plainly the disposition

of that case precludes discretionary abstention in this

one, since there is no factual distinction between the cases

relevant to the abstention issue.

Accordingly, we hold that abstention is inappropriate

in this case. We reverse and remand for further proceed-

ings consistent with this opinion.

REVERSED and REMANDED.

JAMES C. HILL, Circuit Judge, specially concurring:

I concur, but add these observations. The result we

find to be required in this case may well bring to an end

cooperative undertakings between potential adversaries

in situations like the one reviewed here.

If a prosecuting attorney prefers that he not be forced

to try his cases in federal court, often sitting many miles

away from the state court having jurisdiction, he would

be well advised to refrain from conciliatory measures

which might warn his adversary of intention to bring

criminal proceedings. Septum, in this case, professes to

have wanted an opportunity to consider substituting a

film for the allegedly offensive one and, on that profes-

sion, negotiated a “notice” arrangement with the district

attorney. We now announce that by making this agree-

C-13

ment Septum brought itself within the Younger “window”:

A point lying between the time when a real and substan-

tial threat of prosecution arises and the time when state

criminal proceedings are commenced.

Justice Stewart observed in Steffel v. Thompson, 415

U. S. 452, 94 S.Ct. 1209, 1224, 39 L.Ed2d 505 (1974)

(Stewart, J., concurring): “Cases where such a ‘genuine

threat’ can be demonstrated will, I think, be exceedingly

rare.”’ Perhaps their rarity will be governed by the will-

ingness of the state’s attorney to work constructively with

potential violators. Such cases will be rare, indeed, where

the state refuses to be helpful; to secure state court juris-

diction, it must institute criminal proceedings by surprise.

Perhaps parties yet bent upon constructive cooperation

can devise a way to implement that good impulse without

transferring potential cases from state courts to federa!

courts. I do not believe that what we say today is in-

tended to discourage their trying.

JOHN R. BROWN, Circuit Judge, concurring in part

and dissenting in part:

The issue which faces us today is one which places upon

the equitable considerations enunciated in Yoynger v.

Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed2d 669 (1970),

the most strenuous challenge I believe they have yet

undergone. We must decide whether a plaintiff, request-

ing declaratory and injunctive relief against a State Dis-

trict Attorney, may take advantage of an artificial set of

circumstances, created through the construction of an

agreement it entered into with its potential prosecutor,

to bring an action which would otherwise clearly have

been precluded by 28 U.S.C.A. § 2283 and Younger.

This agreement wards off indefinitely any actual prose-

C-14

cution by the District Attorney’s office, thereby dispelling

the likelihood of a “pending prosecution” which would

automatically force the Federal Court to refrain from

exercising its jurisdiction. Yet at the same time, this agree-

ment hovers as a threat of prosecution, not merely ‘“‘imag-

inary and speculative,’’ but substantial enough to create

a justiciable issue for the Federal Courts to decide. Thus,

Judge Randall finds the plaintiff balancing nicely on the

sill of the “‘Steffel window” with a set of circumstances

similar, although not identical, to those of Steffel v. Thomp-

son, 415 U.S. 452, 94 8.Ct. 1209, 39 L.Ed2d 505 (1971)

in which the Supreme Court held the Younger abstention

doctrine inapplicable.

I agree with Judge Randall that a justiciable contro-

versy exists in this case. But I dissent from her analysis

of the Younger abstention question. I believe it is an

over simplification of the case to say that just because

there is technically no pending prosecution in State Court,

that there is no question of Federal intervention in the

affairs of the State, and that the case is therefore con-

trolled by Steffel. Nor do I agree with her statement that |

since Septum does not intend to risk criminal prosecu-

tion by showing “Cinderella,” there is no choice between

law and equity at issue here. *

Both of these conclusions can be made only if one ig-

nores the fact that, had there not been an agreement by

the District Attorney to warn Septum before making

arrests under the obscenity statute, there would have

been a criminal prosecution pending, and the Federal

' District Court would have had no choice but to abstain

from hearing the case. To ignore the fact that the ‘‘Steffel

window” in this set of circumstances was created artifi-

cially through an agreement: between the parties is to

ignore the equitable considerations which are the first

C-15

and foremost reason that Younger abstention came into

being. I believe this one fact requires us to reconsider the

Younger equitable principles, to distinguish this case from

Steffel, and to affirm.

I. EQUITY

Although the procedural distinction between actions

at law and actions at equity has disappeared in Federal

District Courts, F.R.Civ.P. 1, suits for injunctions and

for declaratory relief, both traditionally brought as equi-

table actions (see D. Dobbs, Remedies 25-26 (1973)) (are

still governed by the previously established substantive

principles of equity. C. Wright, Law of Federal Courts,

318 (3d ed. 1976); 30 C.J.S. Equity § 6 (1965).

The most basic principle of equity is the discretion of

the Court. Historically, equitable remedies were granted

only in cases where an action at law would not provide

adequate relief. Dobbs, supra, at 33, 57. The remedy

granted by a Court sitting in equity was based on its

“sense of need and justice.” Id. at 25.

Traditionally, injunctions would issue when, not only

did the remedy at law fail to meet the adequacy test, but

the damage to the plaintiff if he were forced to settle for

only a legal remedy, would be irreparable. Id. at 108.

Plaintiffs in equity often sought declaratory judgments

along with injunctions in order to obtain a forma! declara-

tion of their rights with respect to an existing conflict or

one that was fairly certain to arise in the future. Id. at 26.

II. ABSTENTION

Federal injunctions against State Court proceedings are

governed by 28 U.S.C.A. § 2283 which is the starting

point for the Younger abstention doctrine. This statute

C-16

provides:

A court of the United States may not grant an

injunction to stay proceedings in a State court except

as expressly authorized by Act of the Congress, or

where necessary in aid of its jurisdiction, or to pro-

tect or effectuate its judgments.

It is based on the same law of equity common to all in-

junctions. Its purpose is “to prevent needless friction

between state and federal courts.’”’ Oklahoma Packing Co.

v. Oklahoma Gas and Electric Co., 309 U.S. 4, 9, 60 S. Ct.

215, 218 84 L.Ed. 447, 537 (1940). The notions of federal-

ism and comity which underlie § 2283 and which were

developed so extensively in Younger are actually founded

in equity. Abstention itself is an equitable principle that

has developed in Federal Court. 30 C.J.S. Equity § 10.

Although it is in the form of law, § 2283, is the codi-

fication of the equitable rule governing availability of the

injunctive remedy. Normally a Federal Court may not

enjoin a state proceeding because it is assumed the state

proceeding will provide an adequate remedy at law, that

is, it will adeyuately adjudicate the would-be Federal

plaintiff’s rights under Federal law and the Constitution.

The three exceptions enunciated in the statute are fun-

damentally codifications of three situations in which a

Federal injunction should issue because it has been Con-

gressionally determined that the remedy under state law

would be inadequate. Younger refines the requirements

for the application of the § 2283 exceptions in its holding

that, to enjoin a pending state prosecution, not only must

the remedy at law be inadequate, but there must be a

“showing of bad faith, harassment, or any other un-

usual circumstances that would call for equitable relief.”’

Younger, supra, 401 U.S. at 54, 91 8.Ct. at 755, 27 L.Ed2d

at 681. Essentially this means the plaintirf also must show

C-17

severe, irreparable harm in order to get a state proceeding

enjoined.

Of course, § 2283 applies only to injunctions, but de-

claratory judgments are not that different a matter. Al-

though Steffel discusses at length the differences between

injunctive and declaratory relief, this was only with re-

spect to a situation where there was no pending state

criminal prosecution. In such a case, even an injunction

could issue. Doran v. Salem Inn, Inc., 422 U. 8. 922,

930-31, 95 S.Ct. 2561, 2567-68, 45 L.Ed2d 648, 658-59

(1975). Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27

L.Ed.2d 688 (1970), a companion case to Younger, states

the applicable rule for Federal declaratory relief after a

state proceeding has begun. In most cases it will not be

granted if an injunction would not be appropriate either.

I dissent because I feel the same deference to equitable

principles which permeates § 2283, Younger, and the en-

tire abstention doctrine should be practiced when we

consider the specific facts of this case. When a Court sits

in equity it must apply all relevant canons of substantive

equity. Thus, in this case we cannot ignore the theory

of estoppel. See Dobbs, supra at 41-43. Septum obtained

a promise from the District Attorney that he would forego

prosecution until Septum was fully warned of his intent

to do so. Essentially, the State was giving up its right to

prosecute in State Court to accommodate Septum. The

would-be criminal defendant took advantage of the good

faith of the District Attorney in order to sue in Federal

Court.

The District Court characterized Septum’s actions as

a waiver of its right to claim there was a justiciable issue.

Although this is not quite accurate, I can see that the

District Court was trying to achieve the same equities

C-18

that I adhere to. Septum should be estopped from ob-

taining an advantage it would not otherwise have had.

But for this agreement, Septum would have been in-

volved in a criminal prosecution, brought in good faith,

with no hint of the purpose of harassment. Younger, spe-

cifically holds that neither “the cost, anxiety, and in-

convenience”’ of defending a criminal prosecution, nor the

“chilling” of First Amendment rights constitutes the type

of irreparable injury necessary to enjoin a state action.

401 U.S. at 46, 50, 91 S.Ct. at 751, 753, 27 L.Ed.2d at

676-77, 679. Moreover, we have every reason to believe

this proceeding would have fairly adjudicated Septum’s

rights. The equities of this case demand that we treat it

as if there were a pending prosecution and as if Younger

and Samuels applied to require Federal abstention.