# Petition — Keller v. Septum, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2590%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 992 ## Text 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2590%3A1. Public record. Not legal advice.