Submitted April 12, 1985.
Decided August 27, 1985.
Murray A. Marks, St. Louis, Mo., for appellants.
Robert H. Grant, Clayton, Mo., for appellees.
Appeal from the United States District Court for the Eastern District of Missouri.
Postscript Enterprises, Inc. (Postscript), and Transcontinental Leasing Corp. (Transcontinental) appeal from a final order entered in the District Court for the Eastern District of Missouri granting appellees' motion for summary judgment and dismissing appellants' complaint with prejudice. Appellants brought an action pursuant to 42 U.S.C. § 1983 (1982) and 28 U.S.C. § 2201 (1982) seeking a declaration that Mo.Rev. Stat. §§ 542.281, .301 and 573.010, .030, .060, .070 (1978) are unconstitutional, that Mo.Rev.Stat. § 542.281, .301 do not apply to appellants' property and seeking injunctive relief requiring that appellees return all of Transcontinental's equipment seized at Postscript's place of business. Subject matter jurisdiction was based upon 28 U.S.C. § 1343(3), (4) (1982). The district court held that it lacked Article III jurisdiction to address the constitutionality of § 573.010, .030, .060, .070; that Transcontinental's equipment was subject to seizure under § 542.281-1(2), but not forfeiture under § 542.301; and that it would not reach the constitutionality of § 542.281-1(1) because it was in the nature of a defense to prosecution under the statute and thus not properly before the court. The district court also found that because appellees had returned Transcontinental's equipment, appellants' request for injunctive relief was moot.
The text of the pertinent statutory sections is located in the Appendix to this opinion. All subsequent statutory references are to Missouri Revised Statutes (Mo.Rev.Stat.) (1978).
For reversal appellants argue that the district court erred in (1) holding that it lacked jurisdiction to address the constitutionality of § 573.010, .030, .060, .070, (2) declining to address the constitutionality of § 542.301 after acknowledging that it had jurisdiction to do so, and (3) holding that appellants' claim that the seized films were not within the ambit of § 542.281-1(1) was in the nature of a defense to prosecution under the statute and thus was not a proper claim for declaratory relief. For the reasons discussed below, we affirm in part, reverse in part and remand for further proceedings.
The facts in this case are fully outlined in the district court's memorandum opinion, Postscript Enterprises, Inc. v. Westfall, 596 F. Supp. 205, 206-08 (E.D.Mo. 1984). Postscript operates the Adult Book Store in Bridgeton, Missouri. The store is divided into two sections. The front section is open to any adult; the back section is accessible only to those adults who purchase a "membership." Any adult who presents some identification and signs a statement that he or she is not a police officer may become a member for $1.00 per year. Minors are not permitted to enter the front or back sections of the store and signs to such effect are prominently posted.
The back section of the store is located behind a divider and is accessible only through an electronically controlled door. The rear section contains fifteen booths and inside each booth is a movie projector. Members enter these booths for the purpose of viewing "adult" films. In order to view a segment of a particular film, an individual must deposit a quarter into the projection unit. The films are silent and contain no titles or credits. All of the movie projectors are marked "Property of Transcontinental Leasing Corporation."
On three separate occasions within a span of twelve months, a male St. Louis County or Bridgeton Police Department detective entered the Adult Book Store and viewed all of the films located in the back section of the store. Immediately after each viewing, the detective who saw the films filed an affidavit describing each film in detail and an application for a search warrant. A Missouri trial court issued three search warrants following separate adversarial hearings conducted pursuant to Mo.Rev.Stat. § 542.281-5. The search warrants authorized the search of the bookstore and seizure of the films, projectors and booths contained therein. The search warrants were executed by the appropriate law enforcement agencies and the property was seized.
On October 22, 1982, following the execution of the third search warrant, Joseph DeAndrea, an employee of the Adult Book Store, was indicted by a St. Louis County grand jury on a charge of promoting pornography in the second degree in violation of § 573.030-1(1). Appellants allege that following the execution of the third search warrant, Postscript itself was charged with promoting pornography in the second degree, found guilty and fined $100 plus costs. Appellees contend that the record does not substantiate appellants' pornography charge and thus appellants' factual allegation should not be taken into consideration. We disagree.
"This court may rely on any part of the record of the district court proceedings in rendering judgment on the appeal, including parts that have not been included in the clerk's record or appendix." 8th Cir.R. 7(c)(3) (1981); see Fed.R.App.P. 30(b). Appellants refer us to the Defendants' Exhibits K, L and Q in the district court record. These exhibits are respectively affidavits of detective Charles Scherer of the Bridgeton Police Department, detectives Tom Vohsen and J. Schupp of the St. Louis County Police Department. Each affidavit explicitly states that "Postscript Enterprises, Inc. . . . was indicted by the St. Louis County grand jury for promoting pornography in the second degree" in violation of § 573.030.
Appellants filed the present action in the district court following the execution of the third search warrant. The district court dismissed appellants' claims with prejudice.
Appellants first argue that the district court erred in holding that it lacked jurisdiction to address the constitutionality of § 573.010, .030, .060, .070 because no case or controversy existed between the parties regarding those sections. Appellants argue that there was a specific threat of prosecution and a pattern of past prosecution satisfying the case or controversy requirement of Article III of the United States Constitution.
Before addressing the merits of a constitutional challenge to state action, a court must decide whether the party has standing to assert the constitutional rights in question. See Carey v. Population Services International, 431 U.S. 678, 682, 97 S.Ct. 2010, 2014, 52 L.Ed.2d 675 (1977). "`[T]o entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he[or she] must show that he [or she] has sustained or is immediately in danger of sustaining a direct injury as the result of that action.'" Laird v. Tatum, 408 U.S. 1, 13, 92 S.Ct. 2318, 2325, 33 L.Ed.2d 154 (1972), citing Ex Parte Levitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937). "`[O]ne does not have to await the consummation of threatened injury to obtain preventative relief. If the injury is certainly impending that is enough.'" Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979), citing Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923). "[I]t is not necessary that [the plaintiff] first expose himself [or self] to actual arrest or prosecution to be entitled to challenge a statute that he [or she] claims deters the exercise of his [or her] constitutional rights." Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974). As we stated in Postscript Enterprises, Inc. v. Whaley, 658 F.2d 1249, 1252 (8th Cir. 1981), with respect to a municipal ordinance prohibiting the sale of contraceptives and prophylactics,
[the statute] inflicts on appellant "injury in fact" that satisfies Article III's castor-controversy requirement since the legal duties created by the ordinance are addressed directly to vendors such as appellant. It is obliged either to heed the statutory prohibition, thereby incurring a direct economic injury through the constriction of its market, or to disobey the statutory command and suffer legal sanctions.
See also Craig v. Boren, 429 U.S. 190, 194, 97 S.Ct. 451, 455, 50 L.Ed.2d 397 (1976) (Plaintiff beer vendor alleged sufficient standing to challenge the constitutionality of Oklahoma statute prohibiting the sale of beer to males under the age of 21 and females under the age of 18 where vendor would either sustain economic injury or lose her license as a result of the statute's operation.).
In the present case Postscript exhibits "adult" films which makes it susceptible to prosecution under § 573.030, .060. Appellants argue on the merits that § 573.030 and .060, which prohibit the promotion of pornographic material and public display of sexually explicit material, are unconstitutional as applied to them. For the purpose of satisfying the injury in fact requirement of Article III, we cannot find any relevant distinction between appellants' status as the provider of a product in Postscript Enterprises, Inc. v. Whaley, 658 F.2d 1249, and appellants' status as the provider of a service in the present case. In both instances appellants must either "heed the statutory prohibition, thereby incurring a direct economic injury through the constriction of its market, or . . . disobey the statutory command and suffer legal sanctions." Id. at 1252. We therefore conclude that § 573.030 and .060 inflict on appellants sufficient injury in fact to satisfy Article III's case or controversy requirement. We also hold that because § 573.010 defines "pornographic" as used in § 573.030 and because § 573.070 proscribes the procedure for prosecuting an individual alleged to be in violation of § 573.030 or .060, appellants have standing to challenge the constitutionality of § 573.010 and .070 as well. See Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 83, 96 S.Ct. 2831, 2847, 49 L.Ed.2d 788 (1976) (Where statutory provisions are inextricably bound together, they must stand or fall as a unit.).
Appellants next argue that the district court erred in declining to address the constitutionality of § 542.301. The district court held that the booths and projectors seized by the state are not subject to forfeiture under § 542.301-2(1) and thus the constitutionality of the forfeiture statute is not a justiciable issue. Appellants argue that the district court was obligated to address the constitutionality of the statute once it had found the existence of a threat of specific future harm, sufficient to satisfy the case or controversy requirement of Article III and the Declaratory Judgment Act, 28 U.S.C. § 2201. The district court explicitly held that § 542.301 poses a threat of specific future harm to appellants because appellees had informed appellants' attorney that appellants were not to remove the projectors and booths from the State of Missouri because appellees, relying on § 542.301, intended to seek the destruction of the property.
We initially uphold the district court's determination that a case or controversy exists between the parties involving § 542.301 because appellees informed appellants' attorney of their intention to seek destruction of the booths and projectors. In stating their intention, appellees were relying on the statutory language of § 542.301. Appellants have sufficiently shown the existence of an immediate threat that the statute will be enforced against them to satisfy the case or controversy requirement of Article III and the Declaratory Judgment Act, 28 U.S.C. § 2201. See Babbitt v. United Farm Workers National Union, 442 U.S. at 298, 99 S.Ct. at 2308; 10A C. Wright, A. Miller M. Kane, Federal Practice and Procedure § 2757, at 598 (2d ed. 1983).
On the merits, we uphold the district court's determination that the booths and film projectors do not fall within the purview of § 542.301-2(1). Booths and projectors do not fall within the statutory definition in that section and thus are not subject to forfeiture.
We also uphold the district court's decision not to address the merits of appellants' constitutional challenge to § 542.301-2(1). We initially found the existence of a case or controversy because appellees were relying on § 542.301 in threatening to seek destruction of the booths and projectors. However, because we hold that the booths and projectors do not come within the meaning of that section, appellees' threat of forfeiture is for all practical purposes an empty one.
"The restriction of our jurisdiction to cases and controversies within the meaning of Article III . . . is not the sole limitation on the exercise of our appellate powers, especially in cases raising constitutional questions." Poe v. Ullman, 367 U.S. 497, 502-03, 81 S.Ct. 1752, 1755, 6 L.Ed.2d 989 (1961); see also 13A C. Wright, A. Miller E. Cooper, Federal Practice and Procedure § 3532.1, at 117-19 (2d ed. 1984) (justiciability comprises a jurisdictional component and a component of policy considerations). In the present case, appellants are in no real danger of forfeiting their property; thus, an opinion at this time would be advisory. See Babbitt v. United Farm Workers National Union, 442 U.S. at 304, 99 S.Ct. at 2311. We conclude that the district court properly exercised judicial restraint in refusing to address the constitutionality of § 542.301.
Appellants finally argue that the district court erred in holding that their claim that the seized films were not within the purview of § 542.281-1(1) was not properly before the court because it was in the nature of a defense to a prosecution under the statute. Appellants argued before the district court that pursuant to Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), any attempt to apply § 542.281-1(1) to them or their customers would be unconstitutional. Appellants argued that their films were not "being held or displayed for sale, exhibition, distribution, or circulation to the public" and, therefore, did not come within the meaning of § 542.281-1(1). We agree with appellants that the district court improperly refused to address their claim.
"[I]t is not the function of the declaratory judgment action merely to anticipate a defense that otherwise could be presented in a state action." 10A C. Wright, A. Miller M. Kane, Federal Practice and Procedure § 2758, at 631-32 (2d ed. 1983) (footnotes omitted). In applying this principle to dismiss the plaintiff's claim for a declaratory judgment that its carriage of motion picture film between points in Utah constituted interstate commerce, the Supreme Court observed:
Where the complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is a federal-question jurisdiction in the District Court. If the cause of action, which the declaratory defendant threatens to assert, does not itself involve a claim under federal law, it is doubtful if a federal court may entertain an action for a declaratory judgment establishing a defense to that claim. This is dubious even though the declaratory complaint sets forth a claim of federal right, if that right is in reality in the nature of a defense to a threatened cause of action. Federal courts will not seize litigations from state courts merely because one, normally a defendant, goes to federal court to begin his federal-law defense before the state court begins the case under state law.
This principle has since been restrictively applied to defeat subject matter jurisdiction only where such jurisdiction is premised on a federal question. 28 U.S.C. § 1331. See First Federal S L Ass'n of Harrison, Arkansas v. Anderson, 681 F.2d 528, 533 (8th Cir. 1982); Lawrence County, South Dakota v. State of South Dakota, 668 F.2d 27, 30 (8th Cir. 1982); Home Federal S L Ass'n v. Ins. Department of Iowa, 571 F.2d 423, 427 (8th Cir. 1978); Product Engineering and Manufacturing, Inc. v. Barnes, 424 F.2d 42, 43-45 (10th Cir. 1970).
In the present case, however, the district court's subject matter jurisdiction was based upon 28 U.S.C. § 1343(3), (4) and therefore the principle enunciated in Public Service Comm'n v. Wycoff is inapposite. Additionally, appellants brought their cause of action pursuant to 42 U.S.C. § 1983 and "[w]hen federal claims are premised on 42 U.S.C. § 1983 . . . we have not required exhaustion of state judicial or administrative remedies, recognizing the paramount role Congress has assigned to the federal courts to protect constitutional rights." Steffel v. Thompson, 415 U.S. at 472-73, 94 S.Ct. at 1222.
§ 1343. Civil rights and elective franchise
28 U.S.C. § 1343
(a) The district courts shall have original jurisdiction 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.
firstfourthfourteenth42 U.S.C. § 1983 28 U.S.C. § 1343
The plaintiff in Steffel had been threatened with prosecution under the Georgia criminal trespass statute for distributing handbills at a shopping center protesting American involvement in the Vietnam conflict. Id. at 454-55, 94 S.Ct. at 1213. The plaintiff brought an action pursuant to § 1983 seeking injunctive and declaratory relief alleging that the statute violated his first and fourteenth amendment rights and was thus unconstitutional as applied to him. Id. The Fifth Circuit Court of Appeals affirmed the district court's judgment refusing declaratory relief. Becker v. Thompson, 459 F.2d 919 (5th Cir. 1972). The Supreme Court reversed and held that "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 made on the constitutionality of the statute on its face or as applied." Steffel v. Thompson, 415 U.S. at 475, 94 S.Ct. at 1223 (footnote omitted). In reaching this conclusion the Court noted that when a prosecution is merely threatened, as opposed to pending, principles of equity, comity and federalism have little force. Id. at 462, 94 S.Ct. at 1217.
When no state criminal proceeding is pending at the time the federal complaint is filed, federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state court's ability to enforce constitutional principles. In addition, while a pending state prosecution provides the federal plaintiff with a concrete opportunity to vindicate his constitutional rights, a refusal on the part of the federal courts to intervene when no state proceeding is pending may place the hapless plaintiff between the Scylla of intentionally flouting state law and the Charybdis of forgoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding.
Id. at 462, 94 S.Ct. at 1217.
Here, as in Steffel, a refusal on the part of the district court to entertain appellants' declaratory judgment action challenging the constitutionality of § 542.2811(1) will force appellants to choose between intentionally flouting state law and forgoing what they believe to be constitutionally protected activity. Because the declaratory judgment action will provide a comprehensive solution of the general conflict between the parties, 10A C. Wright, A. Miller M. Kane, Federal Practice and Procedure § 2758, at 639, and because we hold that the district court has jurisdiction to entertain appellants' claim for declaratory relief regarding the constitutionality of § 542.281-1(1), we remand this issue to the district court for further consideration.
In sum, we hold that § 542.301 is not applicable to appellants' property and that the district court erred in refusing to reach the merits of appellants' constitutional challenge to §§ 542.281-1(1), 573.010, .030, .060 and .070. Accordingly, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.