Sole v. Grand Jurors of NJ for Co. of Passaic & Bergen

Plaintiffs, al., Alfred SOLE et STATE OF OF the

GRAND JURORS NEW FOR the COUNTIES JERSEY al., BERGEN, et OF PASSAIC AND

Defendants.

Civ. A. No. 74-1446. Court, District

United States Jersey. D. New

5,May Marco, Wayne, J., William J. De N.

plaintiff Pope. Joseph Gourley, County D. J. Passaic Goceljak, Prosecutor John Asst. Pros- ecutor, Jurors, for defendants Grand Gourley and Woodcock. Atty. Hyland, William F. Gen. New Jersey by Rosengarten, Deputy Solomon Atty. Gen., Jersey for the State New Jersey. and Governor New GIBBONS, Judge, Before Circuit and STERN, Judges. and BIUNNO District OPINION STERN, Judge. District Sole, Plaintiffs Alfred Andrew Mus- kat, Pope Joseph Katherine Victoria and injunc- Rose filed for action against tive declaratory relief defendants 18 after their indict- months Superior ment in the Court New Jer- sey fornication, pri- for the crimes of lewdness, indecency vate carnal conspiracy.1 Joseph are defendants Gourley, County D. J. Passaic Prosecu- tor; Bergen Joseph County Woodcock, Prosecutor; Byrne, Brendan T. Governor Jersey; of New Jurors of the Grand State of Jersey New of the Counties of Bergen, Passaic and State of Rosenberg & Waldman Richard K. Jersey. New Rosenberg, J., plain- Rock, Glen N. for tiff Muskat. The state indictments were based on plaintiffs’ participation as the actors Stanley Ness, C. Van Public Defender (Pope Rose), producer (Mus- by George Tosi, Deputy First Asst. Pub- kat), (Sole) and the director of the mo- Defender, lic for Rose. picture “Deep tion Sleep,” filma Feinstein, Passaic, N.J., depicts Miles R. acts sexual intercourse plaintiff Sole. Pope allegedly engaged which Rose and February County 22, 1973, cency. charged 1. On the Passaic Plaintiff also Sole was Jury permitting several Grand returned indictments No. Indictment 234-73 with against plaintiffs assigna building in this action. Indict be used for lewdness plaintiffs charged tion, 2A:133-2(b). ment No. 236-73 Sole in violation N.J.S.A. Pope indecency, charged Joseph Bergen with carnal in violation of Plaintiff Rose Pope County 2A:115-1. Sole and were N.J.S.A. Indictment No. 246-73 with fornica charged tion, contrary provisions in Indictment 235-73 with’ for No. to the of N.J.S.A. nication, County : 110-1, Bergen in violation of N.J.S.A. 2A:110-1. 2A Indictment plaintiffs charged charged All were Indictment No. No. with carnal inde 274-73 Rose conspiracy cency, 237-73 to commit fornica 2A in violation of :115-1. On N.J.S.A. contrary provisions Judge Assignment tion of N.J.S.A. March Bergen County 2A :98-1 and 2A:98-2. N.J.S.A. Indictment ordered indictments charged County. No. 238-73 all with con transferred to Passaic spiracy to commit lewdness and carnal inde- filming. purposes Jersey When the Court of de- New nied theater lo- review.4 film was at a movie exhibited County, cated in it was seized as Passaic only following pre It was all of this pursuant to-a warrant evidence search liminary litigation that Superior defendant

obtained plaintiffs, in 18 months after were Gourley, and the state just dicted and several weeks before the state crimes ensued. begin, trial was to commenced here suit September alleging filing on indictments the un of these After sought constitutionality February 1973, plaintiffs on N.J.S.A. 2A:110-15 vague grounds pretrial and ness, overbreadth, indictments 115-1 dismissal 2A: Superior motions in Court. These mo- and unconstitutional brought application May tions, all the proceeding. plaintiffs, These

federal prohibiting attacked statutes identical by presented public previously lewd- federal plaintiffs fornication and claims vague judge. overbroad, uncon- ness as and as trial face, as uncon- stitutional on their this three- On November 1974 applied. to stitutional alleging In addition judge court constituted order of was statutes, these defects Judge Ap- of the Court of Chief Seitz alleged plaintiffs forum also the state having Discovery peals for this Circuit. itself constitu- that tionally was completed, moved been defendants the Passaic defective because complaint for failure to dismiss the brought County the in- had Prosecutor upon state a granted. which relief can claim plaintiffs’ suppress exercise dictments 12(b)(6). Pursu- F.R.Civ.P. rights. The of their Amendment First Federal Rules of ant to Rule 65 plaintiffs’ in state heart of motions injunc- Procedure, Civil the claims prosecution under was tive consolidated with relief were prohibiting fornication the statutes trial on motion to dis- the merits. The pros- sham, which lewdness was by the miss taken under advisement was only had because the ecutor resorted 29,1975. January Court on precluded his United Constitution States juris- It that this Court is clear obscenity sup- of the use statute lawsuit, 42 this U.S.C. diction over § press the film itself.2 1343(3), and the State 28 U.S.C. § greater dispute Superior Of does not that issue. The heard and denied Court import question whether is all motions to dismiss the indictments.3 jurisdiction, Superior Appellate exercise that Court should The of the Division appeal. defer to the instead plaintiffs or whether should Court denied leave Complaint, paragraph infra, constitutionality Jersey n. 2. New 4. Amended anti-obscenity statute, 2A :115-1.1 N.J.S.A. 13. (Supp.1973) uncertain the time the 2A :110-1. Fornication N.J.S.A. instant were indicted. The anti- Any person is fornication who commits obscenity statute declared unconstitu pun- guilty misdemeanor, and shall be of a Theatres, Cryan, Hamar Inc. v. $50, than or a fine of more ished F.Supp. (D.N.J.1973) (three-judge 1312 365 months, imprisonment 6 not more than court), and remanded on other vacated or both. grounds, 42 L. S.Ct. (1974). Subsequently Ed.2d 675 the New indecency 2A: 115-1. Lewdness or 6. N.J.S.A. Jersey Supreme construed the statute open Any person who commits lewdness so that found in defects indecency, public grossly act of notorious longer Samar no v. De existed. State tending mor- debauch the scandalous Santis, 323 A.2d N.J. On private people, als and manners February this Court dismissed the carnal inde- of lewdness or an act commits cency complaint Samar as moot. another, grossly scandalous with tending Complaint, paragraph infra, 3. Amended and manners n. the morals to debauch Complaint E, F, guilty people, a misdemeanor. Exhibits K M. judicial process equi- they space, they for reasons co-exist in same comity ty, independent, and federalism. are and have no common superior.” Heyman, Covell v. 111 U. Historically, the lower federal courts S. 28 L.Ed. 390 lacked to vindicate arising under the Constitution fed- Jennings Boenning eral laws. The Co., state courts & F.2d litigant only denied, (3rd 1973), forum in which a could cert. Cir. against seek relief enforcement a 414 U.S. L.Ed.2d infringed course, statute which his fed- 316 Of to the extent rights. eral constitutional courts construe the Constitu tion, laws and treaties of the United following wave nationalism States, with the share congressional brought Civil with it War obligation courts the to follow authorita judiciary investiture of the supreme tive federal construction enormously power. increased “ law the land. Congress gave . . . range litigant alleges power A courts the vast which who a ease or controversy, purview had within the lain dormant the Constitution of Arti initially III, presented cle since 1789. These courts ceased to be therefore dealing luxury forum, with the restricted be- of a tribunals fair choice state, federal or tween citizens of different states primary powerful became the and reli- claims for resolution. right giv- vindicating every ances for plaintiff’s right A to choose his forum laws, Constitution, en and substantially diminished, is however, of treaties States.” United at when he seeks time redress in Landis, Frankfurther The Business & process federal court he is also of Study of the Court: A litigating the identical federal claims be- System, the Federal Judicial 65. fore a state tribunal. Where the federal plaintiff Koota, is a enmeshed in Zwickler v. state-initiated U.S. (1967). proceeding, prosecution, such L.Ed.2d 444 as a state original.) (Emphasis then and seeks in federal relief court for violations of his federal constitutional obligation The of state rights by agents statutes, state courts, under Article VI of the Constitu may ju- federal court decline to exercise rights guaranteed tion, to vindicate grounds risdiction on the of the tradi- constitution, the federal and trea laws principles comity equity, of ties, discharged by acquisi was not Younger Harris, federalism. power by tion of new federal courts. (1970). 91 S.Ct. before, fully remain, State ca courts policy, pable determining arising federal un This of issues do courts not der interfere with state criminal the federal constitution. pr oceedings,7 only not flows from judicial system Our national con- thus equitable jurispru the basic doctrine of co-equal sists two structures: equity dence that courts of should not “ belong moving party . . . These do act when has an ade ju- system, quate remedy law, the same their so far as at also from but “an although concurrent; consideration,” risdiction even more vital the no policy policy governs propriety non-interference state A similar proceedings applies equally equitable criminal to state federal intervention proceedings nominally which, although civil, proceedings. Schlesinger court-martial - closely Councilman, -, are in aid related state 95 S.Ct. Ltd., criminal - statutes. Huffman v. Pursue L.Ed.2d 591 -, L.Ed. 482 system ability comity system’s trust of tion under federal our willingness government: enforce constitutional principles.10 respect is, proper . that a recognition functions, a say This is not to feder that the country is the entire made fact absolutely al forum to liti unavailable gov- up separate of a Union gants ongoing prosecutions. ernments, and a continuance be- against policy federal fundamental will lief that the National Government prosecu interference with state criminal and their fare if the States insti- best outweighed may tions perform tutions are left free litigant’s irreparable demonstration of separate separate in their functions injury inadequate remedy at and an

ways. predicates law, the traditional litigant equitable However, the relief. at quasi-juris who seeks to establish this concept “does not This of federalism equitable re dictional basis Rights’,” deference mean blind to ‘States’ requirements lief must meet the strict recognition legiti- of “the but rather Younger exception: of the narrow Nation- mate interests both State plaintiff must [A] Governments, al in which the ... injury bad show though faith manifest Government, National anxious irrepara- immediate, great, that is may protect federal vindicate be to constituting ble, harassment interests, always en- and federal consti- exercise ways that will not to do so deavors resulting dep- rights, and tutional legitimate unduly ac- interfere with the meaningful access rivation of Id. tivities of the States.” state courts. its A enforcement state’s Medrano, Allee v. major for the vehicle laws is 40 L.Ed.2d policies.8' of its effectuation substantive (Separate opinion Burger, pending a Federal interference added) J.) (Emphasis C. by proceeding, in judicial whether only relief,9 junctive declaratory every not injury or associated with protect the prosecution thwarts the state’s efforts is insufficient criminal very Younger. crimi high its underlie interests which barriers of A breach the pro by duplicative litigant laws, action nal but results deliberate must show may interpreted ceedings prosecutorial as dis- authorities, in bad classify disruption as of conduct decision to terference with A State’s policy provides long-standing proceedings of indication criminal some prompt injunctions designed importance limiting to avoid.” was it has ascribed S.Ct., its at We 768]. of law. [91 unencumbered enforcement 401 at 72 U.S. that, Harris, supra, Younger “in cases at n. in Samuels 401 U.S. therefore held v. opinion (concurring of at 757 where the state begun prior suit, J.) Stewart, the same propri- equitable principles relevant Younger applicability to a federal of ety injunction into must be taken of an declaratory request plaintiff’s relief is federal district consideration determining Thomp- succinctly v. summarized Steffel declaratory to issue a whether 1209, 1216, son, 415 U.S. judgment. [91 .” 401 at 73 . . omitted) (1974) (footnote : 39 L.Ed.2d 505 768]. S.Ct. v. 91 S. [401 In Samuels Mackell - (1971) Pursue, Ltd., -, ] 10. Huffman Ct. prin (1975). [Younger] L.Ed.2d 482 also found that same 95 43 S.Ct Expansion ciples ordinarily Aldisert, of Federal Ju flouted issu would be Judicial (1973) declaratory judgment risdiction, ance of a federal 1973 Ariz.St.L.J. 557 contempo proceeding pending, a of the effect a discussion when declaratory rary jurisdiction expansion federal on the since intrusive effect public image precisely in- state courts. relief result the same “will faith, deprived which has him of a rea- Constitution to “cases” and “controver- adequate opportunity sonable and sies.” In order jurisdic- to invoke that application make tion, the state courts for an individual must do more than rights. vindication of his constitutional claim that exists, there example, state statute which chills individual, the exercise deprived When such an rights. his federal meaningful courts, access to the state Younger, supra, 52-53, irreparable U.S. at injury faces to constitu- 746; Medrano, rights S.Ct. Allee v. great supra, 416 and immediate (separate U.S. at 94 S.Ct. 2191 magnitude, either in the immediate opinion Burger, J.). C. suit or in the substantial likelihood of “repeated prosecutions to which he Plaintiffs in the federal courts “must subjected,” Harris, will be allege inju some threatened or actual U.S., supra, S.Ct. [91 ry resulting putatively from the ille 753], injury prompt and the demands gal may action before a federal court relief, prevented federal courts not are jurisdiction.” assume Linda R. S. v. comity from considerations D., Richard 410 U.S. S. [93 granting extraordinary remedy 1146, 1148, Ct. 35 L.Ed.2d 536] pending interference in state criminal “personal There must be a prosecutions. stake the outcome” such to “as as Medrano, supra, Allee v. 416 U.S. at sure that which concrete adverseness (1974) opin- (Separate 94 S.Ct. at 2210 sharpens presentation of issues Burger, J.). ion C. upon largely de court so circumstances,11 although pends Absent such for illumination of difficult con jurisdiction questions.” federal court over Carr, stitutional Baker v. controversy, to exer- 691, 703, it will decline [82 require cise will L.Ed.2d is the 663] Nor principle his fed- statutory different where is proceed- eral claims sues are raised. Cf. United States ing. SCRAP, [93 37 L.Ed.2d 254] prior Just as the existence enough. injury Abstract It litigant proceeding may foreclose alleged plaintiff “has must be that the may forum, re from the so danger immediately sustained course to a if he at federal court fail sustaining injury” direct some tempts to there assert his federal challenged the result statute prematurely. conduct. v. official Massachusetts 447, Mellon, of 262 The federal U.S. 448 S.Ct. [43 by 597, (1923). The 601, is limited Article III of the 67 L.Ed. 1078] prosecution clause, paragraph, every 11. Aside from the “bad faith” sentence and exception developed Younger, against manner whomever the Su- in whatever might apply preme made it.” 313 Court indicated other situa- an be to has also effort injunctive permit S.Ct., may U.S., in- 402 at [61 967]. tions which federal calling proceedings: federal unusual situations terference state criminal Other might arise, extraordinary may, course, there is also but There of intervention be specify necessary attempting point ir in our now to circumstances which the no might reparable they injury in the be. can be even shown what supra, 53-54, prerequisites Younger, 91 S.Ct. absence of the of bad 401 U.S. usual example, faith and harassment. as For exception long ago “extraordinary case, Buck v. circumstance” [Watson the The Buck, 962, Kugler, 387, F.2d L.Ed. Helfant v. 500 313 61 85 was invoked U.S. S.Ct. (1941) 1974), ], (3rd 1416 indicated: Cir. vacated and remanded we 1188 - -, 1524, is, “It that a statute 95 S.Ct. 44 L.Ed.2d course conceivable U.S. might flagrantly patently the ex- found be violative Court inapplicable express prohibitions ception case. facts constitutional injury injury by Constitution, likely be or threat must the federal he is immediate,” be not “con- to denied federal both “real and a forum for want of jectural” “hypothetical.” controversy, v. a or case or or Golden for lack of standing. Littleton, supra ; Zwickler, 109-110 [89 O’Shea Thompson, 22 L.Ed.2d Steffel v. 458- 113] Maryland Casualty (1969); Pa- v.Co. Co., (1974).12 cific & Oil Coal L.Ed. 826] [61 S.Ct. governing Thus, under the Su (1941); United Public Workers preme portals decisions, of the Court the Mitchell, [67 89-91 open federal forum remain a 564-565, 91 L.Ed. 754] turning controversy who has a case unconstitutionality Littleton, 493- on a of the claim O’Shea only time statute, a until L.Ed.2d 674 but such go, brought, be as he is or chooses fore a state court that constitutional continuing, Absent a actual threat claim. against prosecution the federal plain- plaintiff, controversy” re- In case federal the the at bar the “case precludes his a federal suit quirement tiffs did not choose file resolution challenging fo- before these state claims statutes constitutional making According to their the film. rum. they proceeded complaint, own instead to in- unfortunate result It is the conduct, challenge the statute requirements of Article tersection not forum until and did seek federal Younger that ac- barriers of III they presented lost identi- after illusory, may forum cess court, cal some claims contemplating best, to an individual prosecution after state court months he be- an act which the commission of begun. had federally protected, but lieves prohibited by engages existence he law. If against the instant is thereafter arrest- in that conduct and authority prosecuted state stat- under under the ed and beyond challenged comity ute, equity, thus principles state statutes dispute. now well-estab will Under enunciated federalism require comity equity, principles of lished him to Younger, su forum, ex- enunciated absent federalism claims in the state may feder pra, plaintiffs not invoke traordinary the oth- circumstances. On foregoes can demonstrate hand, conduct and forum er if he al unless “extraordinary circum federal forum that instead access kind seeks litigate permit would of whether the stances” which issue federally-guaranteed pending criminal case statute to interfere violates his system. protected proscribing court conduct within the state authoritatively deter Al- been involved several handbillers. It also has not Steffel effect, any, though a state criminal if mined considered what filing arrested, proceeding plaintiff, after had been instituted who propriety complaint alleged controversy the an actual with the imputation agents exercise him a court’s without to com- supra, Thompson, panion’s proceeding action. Steffel v. over the (Concurring yet Younger purposes. It has not de- for Compare J.) degree joint activity opinion Rehnquist, ma the fined and com- the Inn, dissenting opinions jority imputation permits Salem the mon interest which 1974), (2nd Frank, proceeding Younger purposes Cir. F.2d 18 Inc. of a state for charged prob. juris, the noted to prosecution. Medrano, supra, Allee (sepa- 416 U.S. at n. opinion Burger, J.) rate C. case, sought tribunal, immediately In however, we need not state court plaintiffs issue, for reach the to invoke the federal forum to vindicate voluntarily rights by offering trial submitted to the state his federal to demon- precise legal they that, extraordinary seek issues strate because of cir- again. Moreover, cumstances, to raise here after he could not obtain relief rulings against initial them at plain- adverse before the state tribunal. These level, plaintiffs un- the state these present trial tiffs well content successfully sought permission appeal tribunal, to' federal claims the state interlocutory decision that tribunals many to be and to do for continued so so Appellate They then Division. months, until, ini- dissatisfied with the Supreme petitioned Jersey there, New tial results obtained decided legal identical Court for review . to seek a different forum here. This alleg- they now and factual issues they may not do. If there had been ex- Court, which was ed Federal District traordinary circumstances which made denied.13 remedy adequate an at law within system impossible improb- state court Although judicial determinations able, plaintiffs should made them have Jersey be ac- courts cannot New opportunity known at the first estoppel judicata corded res or collateral sought Having relief then. their federal here, ren- effect because there has been elected instead to seek their relief from judgment under that is final dered no court, plaintiffs simply the state will not eq- Jersey Law,14 principles of New now be heard here. preclude our uity, comity and federalism interlocutory “review” decisions effect, plaintiffs attempted In have that very issues courts on their criminal remove later- initially elected to ally court, to federal district rather than adjudication. for state courts following appellate procedure, cul- minating, plain- necessary appeal if in an not a case of a federal This is brought who, having Court,15 before tiff been the United States rights, Pursue, Ltd., 13. “21. the indictments were returned Since federal supra see Huffman v. - March, 1973, plaintiffs have, -, or about n. U.S. at 95 S.Ct. 1200. Jersey, of the State of New at- Courts 1257(2). 15. 28 Mr. Bren- § U.S.C. Justice tempted cause the dis- indictments to be Younger: nan noted alia, reasons, inter missed for akin to the thought . . . The court it below also wit, court, reasons adduced before this significant appellee that Harris had raised alleged that acts crimi- which were to be his constitutional claim in the state courts protected I, nal are under and that Article in a motion to dismiss the indictment and under, the statutes which the indictments petitions appellate in the state courts brough have been either are unconstitutional [sic] prohibition. ques- for a writ of tioned at oral It was applied on their face or to these argument whether constitu- facts.” properly issues could be raised Superior “22. The Law Division of Court of procedures by Harris, invoked Jersey application New plaintiffs, denied the suggested that the denial of Harris’ petition appeal leave necessarily rejec- motions did not involve Appellate denied Division of that tion constitutional claims. How- Jersey, finally, Court of New the Su- ever, even if the California courts had preme Jersey grant refused to New interlocutory rejected stage Harris’ plaintiffs’ petition these for certification on rejection arguments, presented.” the issues provided justification would not have Complaint, paragraphs Amended 21 and 22. intervening the District Court. Harris 2:3-1, sought 14. R. N.J. Court Rules could direct review of that Kugler, supra, rejection Helfant v. n. 4. Cf. of his constitutional claims or he Fitzgerald Cawley, F.Supp. 677, requests could have renewed the claims (S.D.N.Y.1973). instructions, For a discussion and on direct review of preclusive application any effect of of the doc- conviction the state and in judicata litigant’s proper res trine of on a to access this Court. These were the modes presentation proper a federal trial forum for the vindication of and these the fo-

1331 petition allegations a federal for a Writ er the are sufficient to estab- and/or Corpus.16 “exceptional of Federal district lish the per- Habeas circumstances” simply jurisdiction courts lack to mitting review federal in intervention the state court determinations of federal proceedings. Having court to lit- chosen questions matter while the igate their federal claims in the fo- is still before the state trial having preliminarily rum, and lost their court.17 pretrial stage, plaintiffs cause the at legal duplicate of Avoidance may the not now be heard to claim that single proceedings and sanctions where inadequacy of the state forum affords adequate protect suit the would be to right re-litigate them to same the those in the best interests of asserted is federal in claims the federal forum. court both the federal systems.18 This exer- Court therefore declines to mat- cise its in the instant Accordingly, ex- this Court need ter, and action be dismissed.19 complaint the will wheth- amine the to ascertain having interpret chance to state court of constitution- for consideration the rums Many in a issues statutes. relevant al issues. * repeatedly litigated Younger, supra, have to be 57, case would 401 n. 91 S.Ct. U.S. J.) (concurring opinion Brennan, in forums. different 756 Inc., Ass’n, Optometric 379 American Wall v. City York, 16. Thistlethwaite v. of New mem., F.Supp. (N.D.Ga.1974), 175, aff’d 187 339, (2nd 1974). F.2d 342-343 Cir. 497 166, 888, 42 L.Ed.2d 419 95 S.Ct. 1061, Fidelity Co., rehearing (1974), v. Trust 263 419 Booker denied 134 (1923) ; (Em 68 L.Ed. 362 42 L.Ed.2d 659 95 S.Ct. phasis Minard, App. added) Tang Div. of New York v. Stefanelli Cf. (2nd 1973), Court, 123-124, L.Ed. 487 F.2d Cir. denied, cert. 416 U.S. Boy (1974) ; Jones, 484 F.2d L.Ed.2d delay aof in the ultimate resolution 18. The (3rd 1973). Cir. 98-99 dissipation and the criminal judicial graphically illustrates one instant ease an action result when resources that evils of federal intervention .when courts and federal between state is shuttled only pending proceeding is not state court in is described § under 28 U.S.C. completion. progress close but to Peacock, 832- Greenwood 833, indictments were returned Feb- The state 16 L.Ed.2d proceed- ruary, 1973. The state defendants disrup- doctrine, Younger similar Absent litigate here in ed first the issues raised if interference federal tion would occur level, pretrial at the their motions trial proceeding. permitted a state criminal sought appellate thereafter review prior discovery completed interlocutory All trial the Completion court’s decisions. procedures hearing dismiss pretrial motion to the defendants’ in state complaint a claim to state for failure court resulted in the establishment of Octo- granted. upon At that relief can be ber 1974 as the date commencement litigants hearing, September 1974, plaintiffs the Court informed of trial. On converting possibility Rule this suit substan- launched raise summary 12(b) (6) tially prosecutor, a Rule 56 into motion similar claims. The pursuant judgment good F.B.Civ.P. faith, motion consented hold state trial any requested 12(b), abeyance pending to submit counsel the in- the outcome of support pleadings delay materials outside the stant suit. The resultant proceedings in the state positions. respective already been over five deposi- (cid:127) length the filed We have examined months. especially transcripts, tions, type paralysis affidavits It the state Gourley depositions and of Younger sought of Prosecutor that As to avoid. Niccollai, Assistant, three-judge T. his First John has observed : one plaintiffs, drawing exist, favor of inferences in liti- all If rule did not genuine proceedings issue gants there exists no find we could use federal court appli- dispute concerning proceedings. paralyze material fact legal herein. litigated discussed doctrine cation Pre-trial motions could he fed- say procedures also court. could he eral State Suffice highest inade- of an the existence court icithout failed to establish tested GIBBONS, Judge (concur- sought declaratory Circuit relief in a federal ring) prior making : sexually ex plicit film, majority I am as disenchanted with the trend standing they Court would find that had of decisions on federal court enforce challenge the here in statutes issue Younger ment of civil since v. prose the absence anof actual threat of Harris, 37, 746, 91 S.Ct. L. See, g., cution Al defendants. e. Ed.2d (1970), as are some commen lee v. Medrano, supra, 416 826- See, g., tators. Wechsler, B. e. Federal 30, (Burger, J., 94 S.Ct. 2191 C. concur Courts, State Criminal Law and the ring part dissenting part). and Amendment, First 49 N.Y.U.L.Rev. 740 (1974). But bound de we are those Judge BIUNNO, (concur- District pend cisions. Here faced we are with a ring). ing prosecution. state criminal we Thus premiere Cairo, At the Aida in grant injunctive relief, cannot either 1871, Radames Aida immured were declaratory supra, Harris, v. prison Temple in a cell beneath relief, Mackell, Samuels 401 U.S. v. Isis, expired they where in each other’s (1971), 91 S.Ct. 764, 27 L.Ed.2d 688 un they again arms. And died at the have less we can find that perform- end of each of the countless “brought faith, gen no bad opera ances of the since then. expectation uine of conviction.” Allee v. Medrano, 416 U.S. Carmen, every performance In 40 L.Ed.2d 566 premiere since its Paris Jose find, on Since this I cannot I record so girl through gypsy stabbed the agree that we must dismiss the com bull-ring just heart as shouts from the plaint considering without the constitu signalled victory. Escamillo’s challenge Jersey to the New stat Cascio has stabbed and Silvio Nedda availability utes. limitation This Pagliacci before audiences of countless equitable declaratory of federal reme years. for more than 80 suggest any not, course, dies does power Superior limitation on decapitated been Jochanaan has grant corresponding remedies brought head silver his Salome on a pending cause, in the Rule under N.J. platter ever 1905 in since Dresden. 4:52-6, presence pend of a even per- And so in countless theatrical ing proceeding. See Dobbins formances, pictures, strips motion comic Angeles, Los 195 U.S. S.Ct. and books, manner of crime violence, all Epperson (1903); 49 L.Ed. 169 cf. depravity portrayed. been Arkansas, The distinction distinguishes killings, poi- What these suggested Judge’s opinion be Stern’s sonings, rapes, like seductions yet have not tween who those they from events case is that violated a who seek federal statute and real; are not All are simulated. declaratory prose than risk relief rather performers always found “dead” are cution, violate first and and those who footlights take their curtain litigate it. later has much commend calls. Thompson, 263 Terrace v. performance (1923); case, Truax In 68 L.Ed. 255 real; Raich, L. the acts conduct recorded on question actually committed, I Ed. 131 But wheth film companions er, photographic if had film them. Sole and evidence of quate remedy great, dis- im- context of at state law and of whether the motion irreparable injury necessary summary judgment. mediate miss or the motion requested injunctive relief, Coughlin, E. First Amendment Richard Asst. S. that U. The claim Atty., prosecu- Mo., plaintiff, Louis, for participants from St. shields the they did, grotesque. for tion what Mo., Louis, London, Norman S. St. opinion fully defendants. I concur Court. MEMORANDUM

MEREDITH, Judge. Chief This matter tried to the jury. sitting without a The defendants charged by with violat- indictment ing 18 U.S.C. two different § charges occasions. The indictment that America, STATES UNITED transported Plaintiff, defendants caused in interstate commerce checks drawn against the account of Warrenton Prod- Henry and Thomas LUDWIG Ronald ucts, Inc., on the Commonwealth Bank Colonna, Defendants. James Wentzville, Missouri, Wentzville, 75-5Cr No. by which had been converted and taken Court, District United States fraud. Missouri, E. D. D. E. given by The cheeks were to Colonna April Ludwig, comptroller who was the Products, Inc.,

Warrenton time. The checks were made out Colonna $19,521.71 and were in the amounts of $49,868.71. deposited Colonna them personal in his account at Bank Dutzow, Dutzow, in Missouri. Colonna purchase then used his own checks to give cashier’s checks which he would Ludwig. The evidence clear that nei- Ludwig right any ther nor Colonna had proceeds of the two checks in question, and that their actions amount- toed unlawful conversion of funds Products, of Warrenton Inc.

The defendants raised motion judgment acquittal aas defense did not cause the checks to be transported in interstate commerce. charges indictment the interstate checks, transportation occurred when the being deposited after Dutzow, the Bank of

were forwarded mail to the Stockyards National Bank National City, Illinois. This done ordinary Bank of Dutzow in the course business, had of its had corre- spondent banking relationship Stockyards National Bank some years. Stockyards thirty-one Na- the checks to Bank forwarded Louis, Mis- First Bank St. National

Case Details

Case Name: Sole v. Grand Jurors of NJ for Co. of Passaic & Bergen

Court Name: District Court, D. New Jersey

Date Published: May 5, 1975

Citation: 393 F. Supp. 1322

Docket Number: Civ. A. 74-1446

Court Abbreviation: D.N.J.