Mitchum v. Foster

PETITIONER:Mitchum
RESPONDENT:Foster
LOCATION:University of Wisconsin-Oshkosh

DOCKET NO.: 70-27
DECIDED BY: Burger Court (1972-1975)
LOWER COURT:

CITATION: 407 US 225 (1972)
ARGUED: Dec 13, 1971
DECIDED: Jun 19, 1972

ADVOCATES:
Raymond L. Marky – for appellees
Robert Eugene Smith – for appellant

Facts of the case

Question

Audio Transcription for Oral Argument – December 13, 1971 in Mitchum v. Foster

Warren E. Burger:

We will hear arguments next in Number 27, Mitchum against Foster.

Mr. Smith you may proceed whenever you are ready.

Robert Eugene Smith:

Mr. Chief Justice, may it please the Court.

Case arose in the State of Florida in a town called Panama City in which a State Court Judge granted a closing requested by the prosecution of an adult bookstore selling adult materials.

And so, identified — this was predicated after a hearing in which the Trial Judge looked at certain few publications and felt that if these were representative, this whole store should be closed.

It was injunctive —

Warren E. Burger:

When you say representative, representative of what?

Of all the books or some of the books or —

Robert Eugene Smith:

Yes sir.

This is not a store that was selling Time and Life.

Consistent with what some counsel view, the decisions of this Court since Redrup it was an adult bookstore which was identified as an adult bookstore and, you know, you must be 21 to enter.

So that no one would enter and be intruded upon by their privacy looking to buy a Ladies’ Home Journal or something of this nature.

So we are dealing with only adult merchandise and the concession or any representation that all the material was adult only oriented.

Whether it be pocket novel, whether it be girly magazines, these were all adult only oriented material.

That was the way to view to the Judge, we suggest looked at the entire thing and that is what I mean by the term representative, adult only versus reportorial or newspapers or things of that nature sir.

And —

Warren E. Burger:

Well, do you suggest that some of the things that were in evidence and viewed by the Judge were representative of Ladies’ Home Journal for example?

Robert Eugene Smith:

No sir.

It was not contended that it was — they said they were representative of the material and all the material was adult —

Well, what you mean when you say adult material, you mean that it is material that deals explicitly with sex book.

Robert Eugene Smith:

Well, maybe not explicitly, it suggested or —

(Inaudible)

Robert Eugene Smith:

Erotic materials, yes sir.

And that is what it is.

Robert Eugene Smith:

Yes sir.

And that is what the whole contents of the store?

Robert Eugene Smith:

It was for adults only, erotic type materials.

Yes sir.

When you say material, do you — was it all — was it all literary or pictorial material?

Robert Eugene Smith:

Combination sir.

Robert Eugene Smith:

Mostly pocket novels but a lot of girly type magazines, primarily girly type magazines or either also some cover girl and exciting which it were involved in Bloss versus Dykema that had been held by this Court by a 4:3 decision that seemingly to be protected and these same publications were in that particular store.

Thereafter —

What do you mean to say, was it — it was all literary or pictorial was it or did involve articles of clothing or things like that?

Robert Eugene Smith:

It did not involve articles or clothing.

It was strictly an adult bookstore.

It is all literary and pictures.

Robert Eugene Smith:

Yes sir.

Alright.

Robert Eugene Smith:

And thereafter, an injunction was sought, temporary restraining order was sought.

Complaint was filed asking for a Three-Judge Court.

Judge Arnow granted a temporary restraining order after hearing — first having found the Dombrowski versus Pfister circumstances were present, irreparable harm–

Excuse me Mr. Smith, may I ask, in this Florida statutory scheme, is this business of a procedure by which the vendor’s place of business could be closed.

Is that a section of the general statutory scheme dealing with obscenity?

Robert Eugene Smith:

Yes sir.

And now, I gather they have other alternatives besides criminal prosecution or perhaps or are they (Inaudible)

This was not a criminal prosecution Your Honor.

I understand that.

But are there not also provisions for injunction against distribution and sale in that procedure?

Robert Eugene Smith:

Yes sir.

And this procedure is what?

Robert Eugene Smith:

A nuisance.

A nuisance.

And that is independently the injunction?

Robert Eugene Smith:

Yes sir that is correct.

Now, in either case or there either procedure is employed may it then be followed by criminal proceeding?

Robert Eugene Smith:

Your Honor, in this particular case, a criminal procedure had predated the civil procedure.

They have taken some of the publications which were the subject of a pending criminal case and utilized those in the civil procedure that followed thereafter.

The injunctive relief sought was as to the closing of the entire store.

That does not answer my question.

Then I gather either the injunction procedure or this closing procedure may be conducted independently of any criminal proceeding.

Robert Eugene Smith:

That is correct.

Is that not it?

Robert Eugene Smith:

That is my understanding, yes sir.

The temporary restraining order was issued by Judge Arnow.

Thereafter, Judge Arnow issues another temporary restraining order continuing it pending a hearing on a Three-Judge Court because the trial judge wanted to cite the petitioner for contempt because he had offered something for sale after the Federal District Court had said that the injunctive order was not proper or at least was staid pending the Three-Judge Court hearing nevertheless, ultimately we got to the question of the Three-Judge Court.

And after the Three-Judge Court had convened, this Court decided the Atlantic Coast Rail Lines case and that seemed to close it as far as the Three-Judge Court was concerned below.

They vacated all injunctions that were pending and they denied the injunctive relief sought below based a set up on the Anti-Injunction Law as interpreting it from the Atlantic Coast Rail Lines case.

This we suggest now is a civil proceeding.

This is not criminal, single criminal proceeding as we had in some of the other cases that this Court cited.

(Inaudible) to be sure not integrated with any criminal proceeding.

Robert Eugene Smith:

Yes sir, it was not integrated.

It was a separate proceeding and the Judge’s order was to close the entire business and to not remove from the premises any of the publications that were there.

And ultimately, thereafter he issued an order allowing the publications on the premises to be seized and we have set out the list of the publications that were seized in the appendix most of which were in the handwriting, I think of the Sheriff and his Deputies and it is in a — it is a rather substantial compendium beginning on page 198 of Volume 1 of the appendix in this case and continuing through to the end almost to page 251.

So, these were the publications which were seized by virtue of the Court Order after the closing.

Now —

What happened to them?

They have been destroyed?

Robert Eugene Smith:

No sir, they have not been destroyed.

They have been returned since that time as a result of other activity that occurred in the judicial system in the State of Florida.

In another case which Mr. Raymond L. Marky has called to the attention of this Court and I believe he has placed it in the back of his briefs called Mitchum versus Shabb (ph).

The Florida Supreme Court when considering the issue, a comparable issue, decided that the Judge below had been a little too ambitious in his rulings and reversed based on the concept of Near versus Minnesota.

And this was July 9, 1971 after this Court had noted probable jurisdiction in the Mitchum versus Foster case.

And the —

This was in another case?

Robert Eugene Smith:

Separate proceeding sir.

With Mitchum?

Robert Eugene Smith:

Yes sir and Mr. Raymond L. Marky and I were counsel.

And involving the same material?

Robert Eugene Smith:

No sir.

The same type of material but not a — a different geographical infusion.

(Inaudible) in this case.

Robert Eugene Smith:

Sir, we went to a different Court.

We went to an Appellate Court and it is working its way up —

Florida Supreme Court?

Robert Eugene Smith:

It is working its way up at the present time I gathered.

Except this is what has occurred, Your Honor.

The Court, the Intermediate Court of Appeals treated it.

In Florida, if a constitutional question was presented, the state in this particular case in Mitchum versus Shabb (ph) moved to transfer the matter because of its importance as a constitutional issue out of the District Court of Appeals and into the Supreme Court.

While the other case ended up in the District Court of Appeals and the District Court of Appeals affirmed Judge Fitzpatrick’s order below and said that the — whatever occurred in this case was proper and Judge Fitzpatrick was not wrong just as late as 29th of November 1971.

In anticipation we suggest that this case being heard today, as Judge Fitzpatrick entered a final order and said in essence that he had been overbroad in his interpretation and he was now cutting back and limiting the effect of his order.

November 29, 1971, I will leave a copy —

In this case —

Robert Eugene Smith:

In this case.

What sort of case was this then?

Robert Eugene Smith:

To the publication to which were before him.

(Inaudible)

Robert Eugene Smith:

No sir, to the publication, to several named publications which were before him.

But the store remains closed down?

Robert Eugene Smith:

The store is now out of business.

(Inaudible)

Robert Eugene Smith:

It remained close for a substantial period of time, yes sir.

Pending, going for the appellate route.

So, again, went to a District Court of Appeals which affirmed Judge Fitzpatrick’s orders.

Could you have gone any further that on the Florida Courts?

Robert Eugene Smith:

Yes, we would have gone had it not been for the entry of this order.

For the entry of -the modifying order —

Robert Eugene Smith:

Pardon?

Of the modifying order?

Robert Eugene Smith:

Yes.

November 29, 1971.

Well, what — what about — what is your position with respect to the — what is left with the order?

Robert Eugene Smith:

We have a petition for rehearing pending in that particular case and what is left with the order, in essence Your Honor, is that no longer do we have a nuisance law closing which says that the entire store is closed.

And do we have a —

Robert Eugene Smith:

Your Honor it is questionable in all candor based upon what happened on November 29, 1971.

William O. Douglas:

Could you speak a little louder?

Robert Eugene Smith:

It is questionable based upon what happened on November 29, 1971.

It starts now, I take it if she can afford it she can open the store tomorrow.

And with everything except those two –

Robert Eugene Smith:

Yes sir.

That will be for Judge Fitzpatrick –.

Robert Eugene Smith:

That would be correct.

He withdrew his injunction closing the store?

Robert Eugene Smith:

Closing the entire business, yes sir.

William O. Douglas:

What part is that in the record?

Robert Eugene Smith:

What part — pardon sir?

Where is that in the record?

Robert Eugene Smith:

This is a brand — this just came down sir.

I just got it.

I think —

William O. Douglas:

Could we have a copy?

Robert Eugene Smith:

Yes sir, I would leave it here.

Warren E. Burger:

You will leave it to the clerk, he will make copies for us.

It might have helped if those have been supplied to the Court in advanced with today’s argument counsel.

Robert Eugene Smith:

Yes.

Unfortunately I just got this on Friday from local counsel that — of course it was not Mr. Raymond L. Marky’s fault but — we had argued and said that the law in Florida is unconstitutional.

We raised a facial attack upon the constitutionality of the law as it is fairly Obscenity Law.

Meyer. v. Austin is a case which has been pending in this Court for some 13-14 months in which two of the Three-Judge Court in Jacksonville declared the Florida Obscenity Law to be unconstitutional.

And if knowing that, Mr. Smith, that if the present state of the judgment below does not raise this question that they have offered?

Robert Eugene Smith:

No sir.

How do we have a judgment before us that under which we can deal with it.

Robert Eugene Smith:

In the case below, we raised many issues regarding the constitutionality of the law including its facial and its application.

William O. Douglas:

Did you seek damages as well?

Robert Eugene Smith:

We sought damages as well.

We said the irreparable injury at the time we instituted suit was the order of the Court closing the entire store.

The Three-Judge Court said we do not reach any of your issues because under Atlantic Coast Rail Lines case you are now — we are now foreclosed from acting under the Civil Rights Act.

Well, I suppose the Three-Judge Court has had before it this order of November 29, would they not have been right?

Robert Eugene Smith:

With him abstaining based on Atlantic Coast Rail Lines case?

Well, —

Robert Eugene Smith:

Well, —

Well, in doing nothing, no other reason.

Robert Eugene Smith:

No sir.

Do you understood in sustaining the — in this case the power of the Three-Judge Court to issue an injunction.

Robert Eugene Smith:

Yes sir.

We want to go back to the Three-Judge Court and have our full hearing on the merits involving the Obscenity Law in general as we have attacked it and not just what has occurred here.

But did you raise the — did you raise the facial attack in the State Court?

Robert Eugene Smith:

We raised the facial attack in the Federal Court.

Before Judge Fitzpatrick?

Robert Eugene Smith:

Yes it was a raised before Judge Fitzpatrick.

And was it raised in the Court of Appeals?

Robert Eugene Smith:

Yes sir, raising and preserving, of course is England versus England Medical Examiner or the Louisiana Medical Examiners requires us to.

So, this is where I come having to argue the case as we suggest predicated upon what has occurred on November 29th.

We suggest that if we are permitted —

Did not you say that what you submitted — did I understand you correctly?

You followed what England said when he submitted that the constitutional question to the State Court, you said you are not however, waiving your right to come back to the Federal Court.

Robert Eugene Smith:

Yes sir.

On those issues that had decided it ?

Robert Eugene Smith:

Yes.

You did not believe it, they may not have raised it but the State proceeding was underway before the Federal proceeding.

Robert Eugene Smith:

Yes sir.

As I recall.

Robert Eugene Smith:

Yes.

It was a civil proceeding underway.

And England was a substantial case and it has been interesting.

Robert Eugene Smith:

Yes sir.

And Except –.

Robert Eugene Smith:

But there is some language which suggests that we should say something and as was done in this case.

We are asking for the right to have the — to say that the 2283 does not act as a bar to injunctive relief when a proper case is made out.

And we say that at the time we made our proper case, we do not think circumstances have been rendered moot, we would like to have a chance to have the Court consider the other constitutional arguments regarding the statute which were raised at that time and to seek prospective criminal injunctive relief from cases which are not now pending.

The history of the Anti-Injunction Statute is a correspondent that starts back in the early days in 1870 — 1773 when the first Act was passed by the Congress, it has been suggested that the first act may have been limited only to the Justices of this Court.

However, 80 years later, this Court considered that was not so and held it applicable to all of the Courts.

There were subsequent amendments that occurred particularly after the 1941 Toucey case in which the certain exemption that exists in the law was stricken out and thereafter, the exemptions stricken out was the question of the re-litigation of issues already decided by the Court.

And Justice Frankfurter seemed to suggest in this Toucey case that the exceptions of the Anti-Injunction action could be inferred from other federal legislation and it did not have to expressly say so.

After the — Justice Reed in dissenting over this case felt there should be a certain flexibility supplied by judicial interpretation and it seemingly in 1948 when this was re-codified, that was the partial prospect involved.

In the Leiter Minerals case, the Court said that the Anti-Injunction Statute did not apply to the United States and so it was perfectly — it was could be an exception in that regard seemingly as a issue of a policy.

This Court decided in 1955 the Amalgamated Clothing Workers versus Richmond Brothers case which Mr. Justice Frankfurter again spoke for the Court and in essence Mr. Justice Frankfurter suggested that this Court could not whittle away the intent of Congress in the Anti-Injunction Act.

In 1970, when the Atlantic Coast Rail Lines case came down, a decision said that a federal injunction could not be obtained unless — because of the Anti-Injunction Statute.

That was not a Civil Rights case and so, we say that there would be some exception to it.

There had been many decisions throughout the country.

There is an amicus brief that has been filed here from Third Circuit relating to certain judgments of the Third Circuit Court of Appeals.

There are Fifth Circuit Court of Appeals judgments and Three-Judge Court judgments and throughout the Fifth Circuit which are of wide ranging.

There is a new one out by Judge Goldberg cited Hobbs versus Thompson, this is a brand new, it has just been reported in the advance and sheets 448 Federal 2nd 456 in which Judge Goldberg undertakes to explain what this Court meant in Younger versus Harris and the other cases.

But it seems we suggest that the Anti-Injunction Statute gives way when we are dealing with private — public rights versus private rights because we think that that seems to be implicit in the Leiter Minerals Company case and we say that when there are public rights because of the need to protect and preserve the public rights, that the Anti-Injunction Statute could be considered not to be applicable.

Well, why is this — is this an argument that 1983 is within the —

Robert Eugene Smith:

2283.

(Inaudible)

Robert Eugene Smith:

Oh, Yes.

Special authorization exception under 2283, is that it?

Robert Eugene Smith:

It is different.

No sir, I am not saying that.

We of course have argued that in our brief but aside from that we think there are essentially three grounds, one is an exception and in this context, the argument I am taking out is not necessarily exception but that — as a matter of policy when seemingly private versus public rights are involved —

Well, that means we have to read them?

What do we do?

Read 2283 out of the picture entirely?

Robert Eugene Smith:

No sir.

It just — there is an Anti-Injunction Statute, Leiter Minerals versus U.S., this Court said it was not meant to apply to the United States Government.

Well, that is right.

Robert Eugene Smith:

Because the United States Government was protecting public rights.

Well, we said that only a couple weeks ago in another case, National Labor Relations Board.

Robert Eugene Smith:

Yes sir.

But what is the right to the United States Government?

Robert Eugene Smith:

We said rights of the people, eternal rights of people.

In other words —

Robert Eugene Smith:

Public rights.

Not only is the United States not bound by the prohibitions of 2283 but there is also something called the rights of the people, is that it?

Robert Eugene Smith:

Yes, it — well, private versus public rights.

Judge Griffin Bell of the Fifth Circuit writing in Machesky versus Bizzell which is mentioned in our brief, talks about the difference between the two categories and suggests that as a matter of comity that when public rights are involved, the Anti-Injunction Statute is here —

William J. Brennan, Jr.:

And what are the public rights here Mr. –?

Robert Eugene Smith:

Here is the right of the public, the First Amendment Right, that showing of speech, the right to be able to use and close up an entire business entity which is offering at least presumptively protected First Amendment materials and we say that this is the right — Mr. Justice Brennan writing in — for instance, Quantity Books versus Kansas, this Court pointed out that the public in essence would only be able to have access to publications which had been the subject to seizure dependent upon the right of the distributor to get additional copies which themselves would be subject to seizure.

And that it was the public, seemingly the public’s right to have access to non-obscene materials which could be involved.

So, we are talking throughout here —

You are not talking about the subject.

You are taking about the adult public?

Robert Eugene Smith:

We are talking about the interest of the adult public, yes sir.

Well, that is the only good we are talking about.

Robert Eugene Smith:

Yes sir, because there is no question of minors.

It is not the public.

Robert Eugene Smith:

Yes sir.

There is no question of minors involved here at all.

What — I mean it is not the public in general.

This is a class of the public you are talking about.

Robert Eugene Smith:

Yes sir.

Warren E. Burger:

Are you addressing yourself to the case as it is now or the case as it was before —

Robert Eugene Smith:

Case as it was Your Honor.

Case as it was in all candor.

We say that in Dombrowski versus Pfister, the distinction of saying that if you win the race to the courthouse door, it is alright and you can stay in the Federal Court versus saying if they win the race to the courthouse door and file in the State Court, you do not have that right.

We say it is rather artificial that —

Maybe artificial but that was rather the whole point of Section 2283 which dates back to the year one of the existence of this country as a nation, is it not?

Robert Eugene Smith:

Yes sir.

That is the whole point of it.

Robert Eugene Smith:

But we say that the —

Who wins the race?

And whoever wins the race then the litigation proceeds in that Court and that is exactly what 2283 has the effect of saying, is it not?

Robert Eugene Smith:

Yes sir.

It goes back to the very first Congress of this nation.

Robert Eugene Smith:

Yes sir.

The conflict between federalism and the State Court rights to proceed is the same because if immediately after a Federal Court enters — has a suit entered in the State Court proceeding is undertaken there still becomes a possible conflict —

There is no conflict if the Federal Court stays out if it and it is told to stay out of it.

Robert Eugene Smith:

Yes sir.

That is exactly as 22 — the purpose — the evident, self evident, purpose of 2283 and its predecessor was to keep a Federal Court out of it and thereby to avoid conflict.

Would you agree with that?

Robert Eugene Smith:

Yes sir.

It would seem that that would be the original purpose, yes sir.

Except when there is unusual circumstances to this Court —

Would you not agree also Mr. Smith that the Federal Judges have no monopoly on enforcing the Federal Constitution?

Robert Eugene Smith:

Yes sir, that is correct.

That is simply the responsibility of a State Judge, is it not?

Robert Eugene Smith:

That is correct.

Well then I do not quite follow you, the State Courts do not have one with different responsibility from Federal Judges.

Robert Eugene Smith:

No sir.

But it is first, certain, special certain circumstances seem to be present and if they were present, there would be a justification we suggest for Federal Court to intervene.

Robert Eugene Smith:

It makes it clear that there is this certain type of harassment.

If there is the irreparable harm that is involved then I would say —

On the rationale that we have seen and we have said in the Younger line of cases.

It was of course harassment, bad faith.

But is that suggest today?

Robert Eugene Smith:

Yes sir.

But it — it is.

But if in the Younger line of cases this Court has said that bad faith and harassment maybe the type of situation which would allow an injunction to proceed then is it not saying that 2283 is not an absolute bar to the position?

Well, it is because expressly saying that the question in those cases.

Robert Eugene Smith:

Well, there of course is a conflict as to whether it did or did not.

Atlantic Coast Rail Lines case seems to say no.

As read literally Your Honor, it seems to say that there that nothing is an exception so to speak, unless those things were specifically pulled up.

Yes.

But Atlantic Coast Line, there was not any question of harassment or the lack of good faith.

And you get a State prosecution that is — that lacks good faith, what you are really saying is — it is not a State prosecution at all.

Robert Eugene Smith:

Well, then that is what — that is where it comes back —

(Inaudible)

Robert Eugene Smith:

That is where –

It does not qualify as a prosecution.

Robert Eugene Smith:

It qualifies as a prosecution, yes, it is a prosecution.

But if it a harassment which —

Robert Eugene Smith:

But then in that Court is reaching that rationale, I would suggest by then saying that the 2283 is not applicable in that kind of case.

Well, but Younger and Harris and Atlantic cases said that question.

Robert Eugene Smith:

Yes sir.

I know that.

By all saying that you could have an authority.

Robert Eugene Smith:

Yes sir.

In an unusual circumstances.

Robert Eugene Smith:

Yes sir, and we say that those type of unusual circumstances were presented when this case first was presented to the Court down below and those were the complete closing of the business entity on the basis that — without any question as to what would occur in the future, it was a total complete prior restrain in operating that business activity and at that time the case was presented.

Am I correct that since that time the State Court have opened up the place and it removed the bar against doing business and it returned all the books except those nine books, is that correct?

Robert Eugene Smith:

Yes sir.

In stages–

All that relief was granted in the State Court.

Robert Eugene Smith:

On November 29th 1971.

Well, I thought you said the books were given back earlier.

Robert Eugene Smith:

Books were given back earlier but when — in regard to allowing the store to open —

So as of now, you want is for us to declare the statute unconstitutional.

Robert Eugene Smith:

No sir, let us get back in the state court and have our hearing on whether there is other evidence of that.

Three-Judge Court, no?

Robert Eugene Smith:

Yes sir, I am sorry Three-judge Federal Court.

Yes sir.

I take it Mr. Smith that and you would agree that the 1983 seems within the expressed authorization exception, would not have to deal with this public rights, public — private rights.

Robert Eugene Smith:

Not as we have presented in here, no sir.

But you would still have to deal with Younger and Harris.

Robert Eugene Smith:

Yes sir.

But of course that was criminal, this was civil.

But you would still have to deal with whether the Younger and Harris rationale applies to civil cases as well as criminal.

Robert Eugene Smith:

Yes sir.

Which we suggest a very excellent —

Because Younger and Harris was in 1983 –.

Robert Eugene Smith:

Yes sir, I am aware of that.

As I have pointed out to the Court there is an excellent analysis bites of what you all meant in Younger and Harris and Hobbs versus Thompson decided by Judge Goldberg in the Fifth Circuit.

Is that cited in your brief, did you say?

Robert Eugene Smith:

No sir, it has just been reported, 448 F. 2nd 456.

448, 456?

Robert Eugene Smith:

Yes sir.

Thank you.

Robert Eugene Smith:

Thank you.

Excuse me, the District Court did not, in view of its understanding of the effect of 2283, the District Court did not — did it consider any questions of whether or not there was an harassment here, the Court was absolute, the injunction was absolutely barred, is it not?

Robert Eugene Smith:

Yes sir, but the District Court Judge, Judge Harlan —

Well, the singular Judge.

I am not talking about the District Court’s final order in this case, with that I mean Three-judge District Court

Robert Eugene Smith:

Yes sir.

No way consider that because it was absolutely barred by —

Whether or not there was harassment, the Court thought it was barred from issuing an injunction, is it not?

Robert Eugene Smith:

That is correct.

So, it has never had an opportunity to consider the issue of whether or not there was the kind of harassment that would have made this case one of the exceptional situations referred to in Younger and its companion cases because of its view that 2283 wholly barred the injunction, regardless of whether or not there was harassment.

Robert Eugene Smith:

Yes sir.

Is that — that is the way you understand his opinion?

Robert Eugene Smith:

Yes sir and that is correct.

That is why we have ask —

You would hinder that issue of harassment?

Robert Eugene Smith:

Yes sir.

That is facially raised in the pleadings.

Warren E. Burger:

Very good! Thank you.

Mr. Marky.

Raymond L. Marky:

Mr. Chief Justice, may it please the Court.

The position of the appellees before the Court is that a Three-Judge Court properly concluded that the Anti-Injunction Statute was an absolute bar that 1983 was not an expressed exception to that particular provision and property declined to grant injunctive relief.

The question that is not before the Court is whether the Court erred and perhaps, declined a grant declaratory relief, thus we do not have the dilemma raised in the sextet, Younger, etcetera, wherein Justice Brennan I believe you discussed the differences that may exist in declaratory relief.

So, I wish to make it clear, subsequently the Court declined to grant declaratory relief.

But that has not been raised on an appeal as it has not been assigned as in here and has not been argued.

So, I will not address myself to the question of whether they should have perhaps gone on and granted declaratory relief for whatever purpose it may have served.

The only reason I mentioned that is I know that there is a question on the Court as to whether the same standards were always applicable to a declaratory relief as opposed to injunctive relief.

And I want to make certain that that is not an issue before the Court.

Yes Your Honor?

Do you say that the Federal Court properly proceeded to grant for declaratory relief?

Raymond L. Marky:

No they did not grant declaratory relief Your Honor.

They concluded —

Or would you say that they properly could proceed?.

Raymond L. Marky:

I do not know what the answer to that is Your Honor.

Raymond L. Marky:

There is some confusion even in Mr. Justice Black’s majority opinion in Younger as to whether the same standards applicable are always applicable in declaratory relief that are in injunctive relief situation.

So —

Your point is that that is a question you need not answer in this case?

Raymond L. Marky:

Yes Your Honor.

I have got enough confusion about that.

Or, and that we need not answer in this case.

Raymond L. Marky:

Correct.

The position of the appellees is that Atlantic Coast Line is absolutely dispositive of the issues raised herein and that 1983 is not an exception to 2283.

Now, I have cited in my brief several cases specifically so holding and we are relying on in the main case of Baines versus the City of Danville out of the Fourth Circuit, 1963 wherein that Court made a lengthy analysis of the problems that would be created in this situation, the confusion and the disorder over one — a Federal Judge attempting to get into the bonafideness with a lack thereof of the prosecutor and the trial judge or any other institutional officers.

They also concluded that unlike the Removal Statute which implicit within that very statute itself is that the Court has total jurisdiction.

I would agree that by necessary corollary that when they remove it they had it for all purpose of singularly.

There is no such antagonism when we are talking about 1983 and 2283.

In fact, all 2283 is, is a limitation upon the chancellor’s authority to engage in a certain limited type of injunctive relief, although he may occupy a general grant or general power of equity.

And I would suggest that is clearly correct.

Civil rights actions, authorized injunctions against university presidents, penal institution or wardens, all sorts of people wholly and completely unrelated to the criminal State prosecution or indeed a civil prosecution, and I — in that context I would note that while there has been some suggestion that because this is civil case we have a problem.

But Mr. Justice Stewart, in footnote 3 of your concurring opinion noted that there is no distinction in the civil, in the Anti-Injunction statute itself as a civil and a criminal provision.

Secondly, I thought if the law was that each party had the right to seek out its own forum, and I would be a guest if I were a State plaintiff, suddenly thrusting a Federal Court as a Federal defendant.

And now I, having to fight my way back into the Court that I selected first.

So I would suggest that because it is civil, should make no difference as to the application of the Anti-Injunction Statute.

Moreover, the State in fact is a party in these proceedings.

The State is trying to implement a substantial State interest that they have and that is expressed in the penal laws.

Under Kingsley Books, Inc. versus New York, this Court recognized that we could use alternative methods, civil and criminal.

We have elected to attempt the civil.

In this context, I would like to tell the Court that I am fully aware of, painfully aware of I might add in light of the Florida Supreme Court’s reversal of my judgment that it was an error.

I would agree that I was wrong just as was the Trial Judge was wrong in Atlantic Coast Line but that is not bad faith.

Many of us make mistakes, I frequently do and I think I would probably will in the future.

Indeed, my argument right here maybe a mistake and yet I would suggest that an erroneous initial application and a subsequent declaration that I was wrong cannot retroactively go back and impute into me a bad faith on my effort to merely auger a legal position that may or may not prevail.

Many defendants claim the rights of Gideon long before they prevailed.

So it is not unusual that the prosecutor on occasion is going to be auguring a position that may be contrary to the law.

But I think that is the way the law gradually is effectuated and made more meaningful.

Raymond L. Marky:

So, for these reasons, I would suggest that it makes no difference whether it is civil or criminal.

Going back to Baines versus City of Danville, I find it very interesting that in Hemsley against Meyers, an 1891 case, involving a situation not unlike this where the defendant, the State defendant attempted to put the Court or the parties in a squabble more or less to divide and conquer by thrusting the State into a Federal State collision to get this worked out.

In the meantime, there is delay, there is protraction, there is confusion and no one is properly distributed.

That judge in the Hemsley case, in 1891 concluded that it would just be chaos to allow the question begging that goes on invariably in these kind of lawsuits.

Is the Statute constitutional?

Is there bad faith?

Etcetera, etcetera.

Interestingly, in that case, Judge Caldwell completely interpreted 720, Section 720, the predecessor to 2283, consistent the way this Court did in the Atlantic Coast Line Railroad case, that it is an absolute bar unless you can fit within one of the exceptions.

And that the exception which then did not exist, the Civil Rights Act was not an exception to it that the Civil Rights Act did nothing to change the relationship of the State Governments and the Federal Government that they remained reasonably intact.

I say that this is consistent and it shows the history, the history because this was 20 years after the Civil Rights was enacted.

That at that time the framers did not in fact intend for the Civil Rights Act to be a repeal of the principles recognized in Atlantic Coast Line which are embedded in the Tenth Amendment.

I would say that that dispute that is going on that went on with the framers that Mr. Justice Black talked about, that there were those who disagreed as to whether we should have independent Federal Judiciary to determine all federal questions.

I say that that debate was resolved by the framers.

But the debate rages on.

And debate is brought to this Tribunal, is actually brought to this Tribunal.

And I would urge to this Court that this is not the proper place to bring it.

The reconsideration or the reevaluation of the policy decision made 200 years ago more properly rests in the Congress.

And I would buttress this by noting that this Court, when they talked of the Removal Statutes in a Civil Rights setting not in a “dirty bookcase” a legitimate Civil Rights Action.

In construing the Civil Rights Act, this Court took the view expressed by the Fourth Circuit in, again Baines versus City of Danville, another case but related to the removal and strictly construed that and said that statute of this vintage ought not be loosely construed into providing the relief they want to it as Justice Holmes noted to cut red tape and intervene.

So I would suggest that this Court’s interpretation of the Civil Rights Act and you noted in there the absolute chaos that would result in this respect, the appeal of the removal ruling, perhaps to the Court of Appeals and a denial of cert to this Court and the hearings to be conducted 200 miles away, you noted that a year and a half later after all the legal proceedings were over, it might get back to trial.

Or I would like to relate this aspect to the case —

William O. Douglas:

How do you construe the words inequity in 1983?

Raymond L. Marky:

That merely recognizes, Mr. Justice Douglas, that injunction may issue and say a suit by a prisoner against the warden.

If there was no equity grant there, there would be no power for a Federal Courts, for example, to enjoin the warden of penal institution or the President of the University.

So, I think the general grant of equity should not be loosely interpreted to meaning that 2283 is no longer applicable because Atlantic Coast Line says we must not loosely construe this 2283.

That it should not be eroded.

The proper respect for State and Federal relation should not be intruded.

Now, I am merely suggesting —

William O. Douglas:

That there was no constitutional First Amendment claim in Atlantic Coast Line?

Raymond L. Marky:

Your Honor, there was none mentioned but men were picketing and attempting to picket in a very public way by which to attempt to redress their grievances in a labor dispute.

Raymond L. Marky:

To ignore the context, Your Honor, what I am saying is that if the Civil Rights Act were an exception, the people in the Atlantic Coast Line, although they could not have gotten in under Norris-LaGuardia, would have been the first to urge you Your Honor, Civil Rights Act.

I say it makes the Anti-Injunction Statute —

William O. Douglas:

1983 was not before us.

Raymond L. Marky:

No, no.

I say if you construe 1983 to be an exception, who will need Norris-LaGuardia?

Who will need any other statute?

Who will need removal?

They will just file a Civil Rights action and 2283 becomes meaningless.

In fact, this is exactly what the Court held in Baines versus the City of Danville.

They said if we — we open it up this as loose construction we avoid the reason for the statute’s existence.

So, I would again urge that when you look at it in this respect, it just will not work Your Honor.

Counsel has alluded to Machesky versus Bizzell.

This is also with Sheridan versus Garrison.

The Fifth Circuit did not say 1983 was an expressed exception, they held in fact that they could grant injunctive relief because 2283 was a rule of comity not an absolute bar.

But that was repudiated in the Atlantic Coast Line Railroad and with it went Sheridan and Machesky.

And this, if it please the Court is why Judge Arnold actually receded after Atlantic Coast Line because the theory under which he was —

William O. Douglas:

When you put a man out of business permanently because of the ideas that he has, the way he has closed.

Raymond L. Marky:

Your Honor, again that —

William O. Douglas:

His philosophy.

Raymond L. Marky:

That issue was resolved against me in the Florida Supreme Court and I could see that it was an erroneous initial application.

It is my First Amendment and I respected the same.

I do not like of course trampling on it.

But, “when are they trampling”.

In other words, it requires a close examination and an articulation between opposing counsel.

Before we can understand or even appreciate that there has in fact been a trampling of rights.

In this respect, Mr. Justice Douglas, we had a case and it is cited in both Sheridan and Machesky, it is called Dawkins versus Green.

There, it was a Civil Rights case allegedly where a man threw a Molotov cocktail into a laundry store.

They filed a Civil Rights action in the District Court in Tallahassee, I handled this case.

They claimed that it violated their First Amendment freedom and we were harassing them.

We went — we had — the Court granted a motion to dismiss on my basis.

Raymond L. Marky:

An appeal was liaised in the Fifth Circuit.

The Fifth Circuit reversed and set to hold a hearing.

By the time we got to the hearing, Mr. Counselor said — files a motion to voluntary dismissal.

But the State defendant who is then the Federal plaintiff was gone from the custody of the State of Florida.

It was 18 months later and we were gone.

Now, even Your Honor, I think it was in Perez versus Ledesma or in Dyson, one of the two, said well, who would suggest that you can throw rocks and bottles in the name of speech.

Yet, Mr. Dawkins got in under the concept of Dombrowski, which I have no objection to.

Dombrowski, that man could not have vindicated his rights in any State proceeding.

The obtaining of the lists, the memberships —

Thurgood Marshall:

But there is a slight difference between selling a book and throwing a Molotov cocktail?

Raymond L. Marky:

Mr. Justice Marshall, I think it is an insult to compare.

Thurgood Marshall:

And I do not know, just because somebody says that throwing a Molotov cocktail as a symbolic of speech that does not make it insult.

We are dealing here with selling what could be protected by the First Amendment.

I am not saying that it is not.

Raymond L. Marky:

No.

I agree with that Your Honor but only when a Court gets seated and starts going into the matters.

Can we determine whether they are protected or not protected?

I mean there is some — somehow, we got to start a proceeding unless this Court recedes from Roth, and United States against Riddle and those cases.

Unless you recede from that —

Thurgood Marshall:

But you admit that this was — do you say that this nuisance injunction is the same as a criminal prosecution?

Raymond L. Marky:

The State is attempting to enforce a legitimate procedure.

Let me put it in this context —

Thurgood Marshall:

What happened to the first conviction? Would you convict it?

Raymond L. Marky:

His salesmen were convicted.

Their conviction was affirmed by the Florida Supreme Court and no appeal was launched in this Court from that conviction.

The books that counsel has described, the District Court of Appeals has first described and was autofellatio and masturbation was one of the books, which cannot fit within any case ever decided by this Court.

I am reasonably confident of that Your Honor.

So, I do not want to get into any inquiries to whether the books were obscene, not obscene or anything else because I think, as it actually happened the State Court could have resolved this and it did resolve it.

Thurgood Marshall:

Do you say that the State of Florida in order to enforce its criminal law, must put a man out of business —

Raymond L. Marky:

No Your Honor.

Thurgood Marshall:

It is necessary.

Raymond L. Marky:

No.

Thurgood Marshall:

Why did you close him up?

Raymond L. Marky:

The Judge concluded that the store, based on the stipulation or the representation of counsel, that all of the books that were being sold were obscene.

And since all of the books that were being obscene, the store was actually operating as a public nuisance.

Now, that Judge was wrong Your Honor as —

Thurgood Marshall:

That is with State of Florida, is it not?

Raymond L. Marky:

Yes sir.

Thurgood Marshall:

No, the State of Florida, do you say it is doing — needs this nuisance statute in order to enforce its criminal law.

Raymond L. Marky:

No, no.

That is —

Thurgood Marshall:

That is where I get in a lot of trouble.

Raymond L. Marky:

That is not what I am trying to suggest Mr. Justice Marshall, I am saying that many times a civil action may be the part of the State’s machinery for enforcing its protected area, for example oil spill cases.

We have Civil Injunctions against it, with fine and forfeiture and we also have criminal penalty. So the State in many times uses its civil remedies.

Now, I could not help but note the counsel’s reference to Hobbs versus Thompson which is cited to this is Court in 448 F. 2d just decided by Mr. Judge Goldberg of the Fifth Circuit.

They did say a lot about what this Court said in Younger but the negative pregnant of Younger, it must be qualified by what you do here today in this case.

And Mr. Justice Stewart noted that, I believe in footnote 2 or 3 in this concurring opinion in Younger versus Harris.

That is a negative pregnant.

Do not decide the case at the same time saying, well, we would not answer that in these proceedings.

The cases here are not to be decided.

But in the Hobbs case, they used that negative pregnant to actually answer the question.

Well then that is in Hobbs?

Raymond L. Marky:

Yes and Your Honor what — at page 466 of the Hobbs opinion you will see this, I would like to just read it; “In the instant case, we are not even faced with the force and applicability of the Anti-Injunction Act.

The present challenge to the Macon Ordinance and charter provisions not only is outside the criminal sphere but also poses no possibility of interference with pending State proceedings.

The present challenge simply requests relief against allegedly unconstitutional State action in the form of conditioning and employment upon the surrender of political activity.”

Now, that is nothing but Baggett v. Bullitt, where you said you could not make a man surrender his employment in lieu of signing a loyalty oath.

So, there was nothing estranged about Hobbs.

If it did not interfere with the State proceeding, why do they go into discussing the import of Younger, all they now have done is create a morass and I read it out, I do not know what the law in the Fifth Circuit is which goes to the point that I guess the appellee have stated.

There is clear authority that this Court should not interpret 1983 as an expressed exception.

Why should you not?

Raymond L. Marky:

First of all, the practical problems mentioned in Greenwood versus Peacock and I cite these in the brief.

Just like in the Jack Dawkins case that I alluded to early this morning, 200 miles away, 18 months later and we do not have a defendant.

Those are the practical problem.

Moreover, in every case you are going to hold a hearing to determine the bonafideness whereas I think Mr. Justice Brennan noted that normally you should be able to look at the pleadings to determine who first filed it and not ought to be end of it.

And I say that a construction that I auger for, avoids the necessity of these hearings.

And I might add this, every time Your Honors, every time a hearing is held and it is denied the appellant is going to appeal.

I mean, the plaintiff is going to appeal if it is denied.

If it is granted, I tell you the State will appeal because it cannot afford to have an order in the books declaring its officers in bad faith.

Consequently, there will be direct appeals to this Court from every Civil Rights case.

Anyway, I think the Court could take judicial knowledge of the increase in Civil Rights actions brought before this Court under 1983 in the face of a pending State proceeding.

Another reason is that I think that this, a construction similar to mine promotes the speedy, orderly dispensation of justice.

In Florida, we have adopted a new rule guaranteeing a speedy trial within 60 days or an immediate release.

The Court docket is not an excuse, nothing.

If the man is not tried within 60 days he is unconditionally released.

All this will do is delay and protract the legal proceedings.

Is this Court’s interpretation as they suggest necessary to the enhancement of justice and the promotion of liberty in this country, I suggest the answer is in the negative.

The Fourth Circuit, the Sixth Circuit, the Seventh Circuit and the Second Circuit, the largest Circuits in the United States had held that is an absolute bar in 1983 is not an expressed exception.

I would ask the Court, if those jurisdictions were a copy maintained because it is an absolute bar, which means they do not get a hearing.

Have our people suffered such a deprivation of their liberty that had has posed a serious threat to the country.

I would suggest the answer is in the negative.

I think that our State Courts are in trying to the best of their abilities and to the ability that God gave them to do justice.

Now, occasionally that may even be questioned.

But on those rare occasions that it does occur, this Court through its greater jurisdiction because it is the ultimate arbitrar of all actions can take care of these needs.

Indeed, that is where I brought my complaint for relief in the MNW Theater’s case were bad faith was stipulated not to exist and Judge Arnold enjoined.I sought a stay order of Mr. Justice Black granted it.

It is now pending before this Court apparently to be disposed off in light of whatever you do in this case.

But in that case, I understand you just told us bad faith and harassment was stipulated not to exist.

In the present case, that is never been litigated.

Raymond L. Marky:

No, all I am — what I am saying Your Honor is that we — I do not think that there is so much wide spread deprivation by the State Courts and that is what we are talking about.

You are seeing the State Judges in bad faith.

No.

Raymond L. Marky:

And in your case, dealing with removal in Greenwood, you said you should not put a State Judge on trial.

The embarrassment between the State Judges and the Federal Judges in the testimonies and the appearances before each other in this case would bespeak the answer.

I would suggest to the Court when we think that it will — when we know that a construction such as the appellee suggests and suggested upon the Court makes it easier for Trial Judges below to dispose of whether they should proceed or not proceed not unlike what produced Gideon.

In fact in Gideon versus Wainwright, one of the very reasons that prompted this Court to hold as they did was that it would avoid the necessity of having to make an independent inquiry over and over as to whether there was an abuse of discretion.

I say that a ruling favorable as rendered below will have precisely the same effect and achievement.

Mr. Marky, what is your answer to your brother’s argument that he did alleged harassment and bad faith, he is at least entitled to a hearing in the District Court on those allegations.

Raymond L. Marky:

Your Honor, I have had many cases where it was alleged that there was harassment and none was shown.

And finally after the hearing —

We have no way of knowing that.

Raymond L. Marky:

No.

I understand Your Honor.

My answer to that is that the — in the jurisdictions where they have ruled in my favor, they have not had hearings either because it is an absolute bar.

It is not an exception.

Ergo, these people have not been granted hearings either.

And I say under Atlantic Coast Line, once he is in the State Court, he is suffering an adverse ruling.

This Court has emergency relief to rule on that matter.

In other words, you are arguing that 2253 is a complete bar even if he can show harassment and bad faith so long as the pending State proceeding is a civil proceeding, is that it?

Raymond L. Marky:

Or a criminal Your Honor.

So I know but I thought the —

Raymond L. Marky:

That — but — at any event, that is what I am —

Younger points the other way, does it not?

Raymond L. Marky:

No, Younger is from a negative pregnant again Your Honor.

In that case —

So, I suggest that it points the other way.

But when Younger points this Court decided exactly what you say the law ought to be.

This Court, in this case, decided this case just the way you say it should have decided it.

So, if the error is —

Raymond L. Marky:

That guess, it is Your Honor–

It is on the part of the Court certainly not in your arguments.

You are simply adopting the reasoning of the District Court in this case.

Raymond L. Marky:

That is correct.

Wish to be sure that did not have the benefit, if that is the word, of our opinions in Younger and related cases.

Raymond L. Marky:

Yes.

All I am — in addition to the avoidance of the friction that it — that I need not even go into.

My argument is consistent with ACL and their argument flies into the face of it.

So, when we looked at the totality of the reasons and justifications that I have pointed out to the Court, the benefits to be the simplicity of resolution, the avoidance of competence.

And we can thrash that with what they want, disorder, chaos, fillet.

I am not impeaching their integrity or the morality.

All I am saying is that if I were a defense lawyer and this Court has noted in Stefanelli, every defense lawyer would be obliged to come forward and raise this on behalf of his client.

That is the only benefit that will come from such a ruling and I respectfully urge this Court to affirm the action taken by the Three-judges in the case of law.

Thank you very much.

Warren E. Burger:

Thank you Mr. Marky.

You have two minutes left.

Mr. Smith?

Robert Eugene Smith:

Yes sir.

A few very brief things, Mr. Judge Fitzpatrick in the 6th day of April 1970 reentered his preliminary order, held that the activities of the defendant in Panama City were prima facie injurious and damaging to the morals and manners to the people of the State of Florida were prima facie subversive to public order and decency and prima facie constituted to public noise and nuisance.

And that the plaintiff had demonstrated irreparable harm and damage, the plaintiff in that case being a State to the morals and welfare and safety of the people of State of Florida.

There was no evidence before that Court of any kind in that regard and the Court ordered there further, hereby, enjoins from operating and maintaining any business on the premises.

And are further enjoined from removing anything from the premises.

And thereafter, an immediate request was made were superceduous.

Staid the effect of the order Your Honor so we can appeal.

No, we would not do so.

Immediate request for superceduous was made to the Court of Appeals and they denied the same and by order denied the same and said that they could not say that the Judge below was in error and denied us the relief.

We had to await our appellate relief there.

Thereafter, a federal suit was filed.

And although, Judge Fitzpatrick said, the defendants can have an expeditious hearing time and time again, defense counsel filed a request for an expeditious hearing and it was denied.

It was for this reason that the Federal Court intervention was sought because we felt that the whole circumstances were and the irreparable harm was present.

We wanted to prove our bad faith.

We felt the use of a Nuisance Law and the way it was used in this case was erroneous and we felt we would like to have the right and we would like to have the right to go back to a District Court and so demonstrate that to the Court.

Well, Mr. Smith, if we should decide this case in your favor on the inapplicability in this case for some reason or another, if Section 2283 or more precisely if we should decide either the 2283 words were not inapplicable or that one of the exceptions therein provided were applicable — applicable this one in 2283.

Then what you are telling us now is just the matter that you would then be permitted to present to the District Court, is it not?

Robert Eugene Smith:

Yes sir.

Because that is never been, never been litigated or tried or even considered by the District Court, by the Three-judge District Court

Robert Eugene Smith:

Yes sir.

That is why I say that we would want the right to go back.

But you are not, for there is no point if you are arguing those things to us.

Robert Eugene Smith:

No sir.

Only, except to you say that it is — it was in your complaint and you brought it to the attention of the District Court.

Robert Eugene Smith:

Yes sir.

And one other question while I have interrupted you, I have just read Hobbs against Thompson and so far as one and read all this trying to listen.

I do not find that that case involved any application of 2283, did it?

It was not a pending State proceeding was it?

Robert Eugene Smith:

All I said sir, was — that it was a good discussion of what this Court had said in Younger and a good discussion on this issue.

I was not saying that it was —

Well, whatever you are saying, did it involve a pending State proceeding?

Robert Eugene Smith:

No sir.

I did not think of that.

Robert Eugene Smith:

Yes sir.

It is just a good discussion.

Right, thank you.

Warren E. Burger:

Thank you Mr. Smith.

Thank you Mr. Marky.

The case is submitted.