SENDAK, ATTORNEY GENERAL OF INDIANA v. NIHISER, DBA MOVIELAND DRIVE-IN THEATER
No. 74-1165
Supreme Court of the United States
1975
422 U.S. 976
No. 75-5573. GREEN v. DEPARTMENT OF PUBLIC WELFARE OF MASSACHUSETTS ET AL. Appeal from D. C. Mass. dismissed for want of jurisdiction.
No. 75-5481. WILLIS v. NORTH CAROLINA STATE BOARD OF LAW EXAMINERS. Appeal from Sup. Ct. N. C. dismissed for want of substantial federal question.
No. 74-1165. SENDAK, ATTORNEY GENERAL OF INDIANA v. NIHISER, DBA MOVIELAND DRIVE-IN THEATER. Appeal from D. C. N. D. Ind. Judgment vacated and case remanded for further consideration in light of Huffman v. Pursue, Ltd., 420 U. S. 592 (1975).
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL concur, dissenting.
This is a direct appeal from the decision of the three-judge District Court for the Northern District of Indiana declaring an Indiana obscenity public nuisance statute,
On October 12, 1973, the prosecuting attorney for Adams County, Ind., filed in the Adams Circuit Court a petition to enjoin and abate appellee‘s motion picture theater as a public nuisance. On the same day the Circuit Court entered a temporary restraining order with a notice and summons to appear for a hearing on a temporary injunction. Additionally, a subpoena duces tecum issued, ordering appellee to produce before the court the film “Deep Throat” and all other motion pictures in his possession, and also a list of the titles and play dates of all motion pictures exhibited by him over the past three years.
The prosecutor was proceeding under the Indiana obscenity public nuisance statute, supra. The statute provides that a place which exhibits obscene films is a public nuisance,1 and provides for a court order requiring the closure for up to one year of any place determined to be a public nuisance.2 An ex parte restraining order may issue for up to 10 days without any prior judicial determination of the obscenity of specific films, and a preliminary injunction may issue if, after hearing, the allegations of the complaint “are sustained to the satisfaction of the court.”3 The statute further provides that at trial the “general reputation of the place” is both admissible and prima facie evidence for proving the existence of the nuisance.4 If a nuisance is established at trial, an order closing the theater for a year and confiscating all personal property and contents therein shall issue.5 The owner of a theater closed by either preliminary or permanent injunction may obtain a release from the closing order
On October 19, 1973, appellee filed suit in the United States District Court for the Northern District of Indiana. The complaint sought a declaratory judgment pursuant to
The Court today vacates the judgment below and remands for further consideration in light of its decision last Term in Huffman v. Pursue, Ltd., supra. Huffman, a case involving a similar nuisance statute from Ohio, held that the principles of Younger v. Harris, 401 U. S. 37 (1971), which limit federal-court equitable interference with state-court criminal proceedings, are also applicable to certain state-court proceedings which are “in aid of and closely related to criminal statutes . . . .” 420 U. S., at 604. Accordingly, the Court in Huffman remanded for a determination whether under the facts of the action “extraordinary circumstances” existed bringing the case within the narrow exceptions to Younger‘s general bar.
But in the instant case, the District Court anticipated Huffman and, for the very reasons relied on by this Court in that case, clearly held that Younger principles were applicable.7 That court then proceeded
“statutory scheme here . . . arguably in several respects ‘flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it.‘” 405 F. Supp. 482, 494 (ND Ind. 1974).
The court concluded that the provisions rendering admissible “general reputation” evidence and constituting such evidence sufficient ”prima facie” evidence of the existence of the nuisance imposed an unconstitutional prior restraint upon freedom of expression because there was not first required a judicial determination of the obscenity of any specific materials, and because the censor was not required to bear the burden of proving obscenity. The court emphasized that the statute provided for the seizure and destruction of materials which had never been judicially determined to be obscene, and for the seizure and destruction of constitutionally protected materials “merely because they are found in a place which has a reputation of exhibiting obscene films . . . .” Id., at 495. Furthermore, the court emphasized, once a closing order has issued, the statutory scheme permits future restraints against exhibition of all films unless the owner first discharges the burden of demonstrating their nonobscenity. And if such a showing is made and a release from the closing order obtained, the owner must thereafter “determine at his peril what
Finally, and of particular significance, the District Court held the definitional section of the statute to be “flagrantly and patently in violation of express constitutional guarantees.” Id., at 496. The statute defines as a nuisance a place at which “lewd, indecent, lascivious, or obscene” films are exhibited.9 The court reached its conclusion upon the authority of two Indiana Supreme Court decisions which struck down criminal obscenity statutes employing the same definition on the ground that it was too general in nature under the principles announced in Miller v. California, 413 U. S. 15 (1973). Mohney v. State, 261 Ind. 56, 300 N. E. 2d 66 (1973); Stroud v. State, 261 Ind. 58, 300 N. E. 2d 100 (1973).
Thus the case fits precisely within the clearly settled Younger exception permitting federal courts to grant relief against state authorities who proceed under a statute “flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it.” This exception, first fashioned in Watson v. Buck, 313 U. S. 387, 402 (1941), and reaffirmed in Younger, 401 U. S., at 53-54, was twice recognized in Huffman itself, 420 U. S., at 602, 611. Therefore the judgment of the District Court should be affirmed. The Court‘s remand to require the
No. A-385. LONG VISITOR ET AL. v. UNITED STATES. C. A. 8th Cir. Application for bail pending timely filing of petition for writ of certiorari, presented to Mr. Justice Douglas, and by him referred to the Court, denied.
No. A-392 (75-322). VERNELL v. UNITED STATES. C. A. 5th Cir. Application for bail, presented to Mr. Justice Douglas, and by him referred to the Court, denied.
No. A-395. LAK MAN TOM v. IMMIGRATION AND NATURALIZATION SERVICE. C. A. 9th Cir. Motion to vacate stay of deportation heretofore entered by Mr. Justice Douglas on October 30, 1975, granted.
No. A-432. HAMLING ET AL. v. UNITED STATES. Application for stay of mandate of the United States Court of Appeals for the Ninth Circuit, presented to MR. JUSTICE BRENNAN, and by him referred to the Court, denied.
No. 75-110. SAKRAIDA v. AG PRO, INC. C. A. 5th Cir. [Certiorari granted, ante, p. 891.] Motion of respondent to limit grant of certiorari denied.
Notes
“[A]ttempts to enforce civil provisions such as the one here may be characterized as civil proceedings utilized to enforce the criminal laws and thus subject to Younger in any event. . . . The best approach is not to regard labels ‘civil’ and ‘criminal’ as controlling, but to analyze the competing interests which each case presents.” 405 F. Supp. 482, 493 (ND Ind. 1974).