Keuper v. WilsonKeuper v. Wilson
Thе matter is before the court on defendants’ motion to settle the form of the judgment and for an order enjoining plaintiff, Prosecutor of Monmouth County, from proceeding аgainst defendants on any indictment for a violation of
This action was brought under
The statement of events leading to the filing of the complaint is set forth in some detail in the earlier opinion. Defendant Wilson is the owner and operator of a theatre in Keyport. Defendant Large is employed by Wilson as a motion picture projectionist. On June 12, 1970 a warrant for the arrest of Wilson was obtained charging a violation of
The prosecutor has threatened to move the indictment. The question is whether this Court should restrain the prosecutor from proceeding on the indictment and order the prosecutor to return the seized motion picture to the defendants.
Ordinarily equity will not enjoin criminal proceedings. Eleuteri v. Richman, 47 N.J. Super. 1, 26 (App. Div. 1957), aff‘d 26 N.J. 506 (1958), cert. den. 358 U.S. 843, 79 S.Ct. 52, 3 L.Ed.2d 77 (1958); Moresh v. O‘Regan, 122 N.J. Eq. 388 (E. & A. 1937); Dell Publishing Co. v. Beggans, 110 N.J. Eq. 72 (Ch. 1932); 4 Pomeroy‘s Equity Jurisprudence (5th ed. 1941), § 1361b, p. 978. An exception to the rule is made where property rights are involved and there is a serious claim that the prosecution is not authorized by law. S. & R. Amusement Corp. v. Quinn, 136 N.J. Eq. 420, 423 (Ch. 1944). Arbitrary acts of officials acting without due process of law will be enjoined.
The application now made in this matter does not fall strictly within any of the exceptions referred to.
The counterclaim was based upon the Uniform Declaratory Judgments Law,
Preliminarily, we wish to voice our distaste for the unseemly procedural course chosen by the defendant Baird. He could easily have brought a proceeding under the Uniform Declaratory Judgments Act (
N.J.S. 2A:16-50 et seq. ) under which an appropriate declaration could have been obtained without any criminal action whatever. See Lucky Calendar Co. v. Cohen, 19 N.J. 399 (1955); Sanitary Vendors, Inc. v. Byrne, 40 N.J. 157 (1963); cf. Evers v. Dwyer, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222 (1958); Note, Declaratory Relief in The Criminal Law, 80 Harv. L. Rev. 1490 (1967). In the Lucky Calendar case an advertising company sought and obtained a declaration as to the legality of its proposed sales promotional program; in his opinion for the Court, Chief Justice Vanderbilt stressed the patent advantages of declaratory testing рroceedings over proceedings under the criminal law. 19 N.J., at p. 409. In the Sanitary Vendors case, a company engaged in the automatic vending machine business brought a declaratory judgment рroceeding which resulted in a judicial declaration that its proposed mode of selling contraceptives would be unlawful underN.J.S. 2A:170-76 . See Annot. 96 A.L.R.2d 955, 965-967 (1964). [50 N.J. at 378 et seq.]
This result is called for particularly in сases involving First Amendment rights. The Supreme Court of the United States has emphasized the importance of freedom of speech. In Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22, 28 (1965), the Court stated:
* * * Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression — of transcendent value to all society, and not merely to those exercising their rights — might be the loser.” (Emphasis added)
There are numerous cases in which the federal courts have acted to protect a litigant‘s civil rights from state criminal proceedings, e.g., Zwickler v. Koota, 389 U.S. 241, 252, 88 S.Ct. 391, 397-398, 19 L.Ed.2d 444, 452 (1967), where the Court stated:
* * * In such case to force the plaintiff who has commenced a federal action to suffer the delay of state court proceedings might itself effect the impermissible chilling of the very constitutional right he seeks to protect.
In this action the defendants are claiming rights guaranteed to them by the First Amendment to the United States Constitution. It is the obligation of this court to protect such rights. In Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 551, 28 L.Ed. 542, 546 (1883), the Court stated:
* * * Upon the state courts, equally with the courts of the Union, rests the obligаtion to guard, enforce, and protect every right granted or secured by the constitution of the United States and the laws made in pursuance thereof, whenever thosе rights are involved in any suit or proceeding before them; for, the judges of the state courts are required to take an oath to support that constitution, and they are bound by it and the laws of the United States made in pursuance thereof, * * *.
The obligation of the prosecutor is not to obtain convictions, rather it is to see that justice is dоne. State v. Vigliano, 50 N.J. 51, 60-61 (1967); State v. Cook, 43 N.J. 560, 570 (1965). This court which has jurisdiction of the case has made a finding after a full hearing that the motion picture is not obscene. It would be a travesty of justice to allow the prosecutor to proceed to move an indictment charging the defendants with a violation of
The request to enjoin the prosecutor аnd for a return of the seized film was not contained in the counterclaim. It is authorized at this time by
The Judgment will restrain the prosecutor from proceeding against defendants under any indictment for a violatiоn of
The attorney for defendants will submit a judgment within 10 days in accordance with