Perez v. Ledesma

PETITIONER:Leander H. Perez, Jr.; Louis Reichart; George Bethea; Earl Wendling
RESPONDENT:August M. Ledesma, Jr.; Harold J. Speiss; Lawrence P. Pittman
LOCATION:U.S. District Court for the Eastern District of Louisiana

DOCKET NO.: 60
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 401 US 82 (1971)
ARGUED: Nov 17, 1970
DECIDED: Feb 23, 1971

ADVOCATES:
Charles H. Livaudais – for the appellants
Jack Peebles – for the appellees

Facts of the case

August Ledesma and several others were arrested and charged with violating both a Louisiana statute and a parish ordinance prohibiting display of obscene material for sale. The arresting officers seized the material in question. While the state court proceedings were underway, Perez, and the others arrested, sued in federal district court for a declaration that the statute and the ordinance were unconstitutional. A three-judge court convened and upheld the Louisiana statute, but found the arrests and seizure of materials invalid. The court prohibited use of the seized materials in the state criminal proceedings. The court noted that it had no jurisdiction to consider the ordinance, but expressed that it was probably invalid. A single federal judge later ruled the ordinance invalid. Local law enforcement officers directly appealed the district court decisions to the U.S. Supreme Court.

Question

Did the district court err when it convened a three-judge court and ruled on the validity of the arrests and seizure of materials while the state criminal proceedings were still pending?

Warren E. Burger:

Perez against Ledesma, number 60.

Charles H. Livaudais:

Honorable Chief Justice, may it please the Court.

Warren E. Burger:

Mr. Livaudais.

Charles H. Livaudais:

Is that it?

This is a case also involving obscenity, is involving the criminal prosecution of appellee Ledesma in this case both for the sale of obscene publications and the possession of obscene publications with the intent to sell.

The primary issue in this appeal raised on appeal is a procedural question in enforcing a state statute and the question as post to the Court is whether or not in a state criminal prosecution under a valid and constitutional state statute which has been filed constitutional by the three-judge court relative to sale and possession with intent to sale obscene materials and publications.

It is necessary that there be a judicial adversary hearing prior to the arrest and prosecution of the defendant to determine in advance of his arrest or prosecution whether or not the materials and publications involved are obscene under the terms of the state statute.

We will have other related issues which I will cover in connection with this in reference to the jurisdiction of this Court on appeal in light 28 U.S.C. 1253 in the Gunn case which has been discussed.

We also have problems connected involving injunctions and declaratory judgments under 2283 which has also been discussed and intervention by federal courts and state proceedings and abuse of discretion by the District Court in this case.

This case originated on January 27th of 1969 when two deputies of the St. Bernard Parish Sheriff’s Office and the State of Louisiana purchased four obscene publications from Ledesma at his store in St. Bernard Parish in Arabi, Louisiana.

These publications and the other publication I required to are here with the record which I brought in filing with this Court.

Ledesma was arrested and at the time of his arrest, these deputies selected certain publications, the three-judge court found it to be the number 45 from his shelves as evidence.

Four bills of information were filed against him by me in the state court, two of them under the state statute relative to sale and possession with intent to sell obscene publications, and two almost identical bills of information under the parish ordinance.

These two charges under the parish ordinance which were almost identical to the state ordinance were subsequently now crossed or dropped by me.

Now in this prosecution in the state court, Ledesma was afforded an adversary judicial hearing focusing on the obscenity of these publications in the form of a motion to suppress the evidence and a motion to quash the indictment which he filed under state prosecutions.

The basis, one allegation was that our statute was vague and overbroad and the other was that the materials were not obscene.

This was decided within two weeks after his arrest, he had his hearing in state court and we tried this issue and the state judge denied the motions of Ledesma.

Wanting another bite at the apple, he then went to Federal Court to ask the Federal Court for relief under the civil rights statute asking to declare both our state statute and our parish ordinance unconstitutional for vagueness and overbroad.

Also asking for injunctions against pending and state — and future state prosecutions and also asking that we be enjoined from retaining the publication in our possession and using them at prosecutions.

Also, he asked for damages in the sum of $30,000.00 each for his clients.

After a long and prolonged hearing in the court, not in court but the proceeding in the District Court after the three-judge court was convened on July 14th of 1969, some five to six months after the arrest, the three-judge court in a two-to-one decision with Judge Rubin dissenting held first all that our state statute, the two provisions, Subsections 2 and 3 involved herein were held to be constitutional.

Judge Rubin concurred in that.

The court in its order had stated and I say they alleged that they denied to grant the injunctive relief, grant, as a matter of fact they say we specifically deny injunctive relief.

Well, did they deny or did they grant injunctive relief in this case?

Charles H. Livaudais:

Your Honor, I’ll get to that but my opinion and I think this Court will see that we were enjoined both pending and future prosecutions were enjoined in this case.

That the court ordered its judgment in this way so as to get around the provisions or Article 2283 and this Court and other cases which I will give to the Court shortly look through this particular type of action by a court where it tried to evade 2283, and actually had an order which had practical effect, the operating effect of an injunction in the prosecution.

But if there was an injunction here, you can’t appeal here can you?

Charles H. Livaudais:

That’s correct, Your Honor.

That unless jurisdiction in this matter was deferred to hearing on the merits today.

Warren E. Burger:

You have to construe what the judge said and perhaps what they wrote as meaning that you must stop doing this and if you don’t something will happen to you, isn’t that right?

Charles H. Livaudais:

That is right Your Honor.

That is the way I construe the judgment of the court.

In the record –

Warren E. Burger:

Is that not, I don’t know about Louisiana, but is that not a fairly familiar technique of District Court to say in effect that they will not enter a formal order of injunction on the assumption of the party will abide to suggestion that they are not going to proceed with the prohibited act which is real —

Charles H. Livaudais:

Oh!

That is a common practice, Your Honor and one that I do not think as advisable for a District Court to take like that Article 65 Subsection C of the Federal Rule of the Civil Procedure is a mandate to Federal District Courts especially the three-judge court that when they are dealing in the area of injunctions as was stated in the footnotes to the Gunn case by this Court, that they should be specific, that it is in effect unfair for them to deal with areas such as this and not deal with them in a clear manner so that their intention is obvious to the parties, that was the problem in the Gunn case.

Warren E. Burger:

Did you ask the Court to conform the record to the reality that that the reality that you say exists?

Charles H. Livaudais:

Yes, Your Honor.

First of all, I’d like to point out that in this case as opposed to other cases I’ve been arguing.

We did not agree to stop our prosecution.

The record shows that first of all, our case was set for trial in February of 1969, the record does not show that but a note of evidence is a result of a conference with Judge Boyle in this case shows that our case was first set, again set the trial on April 21st of 1969, that is in the record at page 1, page 97 I think, my co-counsel filed that.

Also, that was continued to that date to give this three-judge court time to issue its decision which it had not done as of that time.

It was continued to April 28 of 1969.

It was again continued by me after a phone call from the District Judge stating that the decision by this three-judge court would be rendered in the near future and that we would be able to take whatever action we had to after that.

So we did not abide by any request.

We did not concede to this Court that they, that we would have to hold our prosecution prior to their decision.

Now, in their decision —

Wasn’t there, wasn’t there a court order though other than a declaratory judgment?

I mean the order is set, return all the materials —

Charles H. Livaudais:

Yes, I was, our order —

In the order, did they order you to return all the materials and not to use them at any future prosecution?

Charles H. Livaudais:

That’s right.

They ordered us to return all the materials instanter, instantly from this —

Now, is that an injunction, is that an injunction for or an injunctive order for purposes of the — our appellant jurisdiction?

Charles H. Livaudais:

I would say it is, Your Honor in connection with the wording in the judgment itself which said I quote “that the pending prosecutions should be effectively terminated.”

That was the wording of the judgment at page 97 in the appendix to this record.

The pending prosecution should be effectively terminated, now whether they say should be enjoined or effectively terminated, it has the same meaning as our contention that we were enjoined and that this order ordering us to give up or evidence to return it instanter and also to suppress it in any prosecutions that both pending and future is — has all the practical and full force and operative effect of an injunction upon us.

What better way to stop our prosecution than to take our evidence away from us or to tell us that we will — we’re not in good faith continued prosecutions or to say that the prosecution should be effectively terminated?

And Your Honor, there is a case that is not in my brief, I wish to cite it at the Court, at this, to the Court at this time in connection with the Gunn case which came out after my brief is at the premise International Longshoremen’s Association versus Philadelphia Marine Trade Association, found at 389 U.S. 64.

In that case, there was an order, an arbitration — an arbitration award and a labor dispute.

Charles H. Livaudais:

It was not before the Court but then after dispute arose over the arbitration order, the union went in the court and they asked the court to give an order and the court gave this order, I quote, “that the arbitration award be specifically enforced and then he went on out of the union to comply with and abide with the award.”

And on the appeal to this Court, even though the word injunction was not used, Your Honors held that and I quote, “whether or not the District Court’s order was an injunction, it was an equitable decree, compelling obedience under the threat of contempt and was therefore an order granting an injunction.”

Well that, you don t have to, to have jurisdiction here, you don’t have to have an order enjoining a criminal prosecution?

All you have to have is an injunction.

And if the federal court issues an order requiring you not to use certain evidence in a pending criminal prosecution, isn’t that an injunction?

Charles H. Livaudais:

Yes, sir that is.

As a matter of fact, to look at the Ledesma’s petition, both his original petition and his amended petition, his prayer asked for injunctive relief to keep us from retaining the books in our possession, that was his request and that is what he got.

Warren E. Burger:

But the judge did more than that?

Charles H. Livaudais:

The injunction that he has for.

Warren E. Burger:

They made you physically return all those seized property, did they not?

Charles H. Livaudais:

Yes Your Honor they did, it was instanter, the only way I could stop that order was to get a stay order pending the appeal to this Court and that is one of the reason why the books are here before this Court at this time.

I’ve transmitted the books here.

They have been introduced in evidence in this prior hearing before the three-judge court.

So Your Honor, in light of the Gunn case —

Warren E. Burger:

Then you —

Charles H. Livaudais:

— in which actually the word “injunction” was used and this Court held that it was not an injunction on this labor in a match on Longshoreman’s case where the word “injunction” was not used but this Court looked through the attempts of the Court to evade the issue of 2283 and actually issue an injunction even though 2283 says it cannot.

Well, in that case, I think the Court held that it was an order granting an injunction?

Charles H. Livaudais:

Yes, and that’s what we have a right of appeal from.

And they refer, it went on to half hold that it did not comply with the federal rules, that it was so ambiguous and unclear an order that they couldn’t expect anybody to abide, wasn’t the holding on that case?

Charles H. Livaudais:

That’s the holding in that case —

Or nobody could know what it for, what if —

Charles H. Livaudais:

Right and just the converse is true in our case.

It is crystal clear from the decision who was enjoined, Perez (Inaudible) enjoin.

What is enjoined?

Prosecution pending and future under Title 14-106 Subsections 2 and 3, this is all right in the opinion at page 97 and the prior pages and the opinion of the court.

What was enjoined?

These pending and future prosecutions and arrests.

So I think that this complies with Rule 65 (c).

The only abuse of discretion violated here by the three-judge court was deliberately making it look like they were not enjoining us.

Do you agree that what you have to look at ultimately is not their opinion but the order, isn’t it?

Charles H. Livaudais:

Yes Your Honor, and the object —

Which is at pages 106 and 107 here.

Charles H. Livaudais:

Yes, and the operative effect of the order read in light with their opinion.

Right.

Charles H. Livaudais:

And also in the, another case in which this, Your Honors did the same type of action, Atlantic Coast Line case which also was decided on June of this year.

Your Honors also looked at the order in that case.

The order ordered the railroad not to take advantage of the state court prosecution.

And Your Honors, in that you used the word “evade” so that district three-judge court cannot evade the mandate of 2283 by enjoining the railroad, will look right through that and see that actually you are enjoining a pending state prosecution.

(Inaudible)

Charles H. Livaudais:

Right.

If you continue to get that far (Inaudible).

Charles H. Livaudais:

(Inaudible) because jurisdiction was deferred by Your Honors’ two argument today.

We don’t need to prove that the prosecution was a little —

Charles H. Livaudais:

Which I was just arguing the case completely.

I think that would show and not just a prosecution but the retaining of the evidence and the orders of the court.

Now, the sole reason again, looking at the decision of the court, the sole reason for the entire decision of this Court can be seen both in the judgment and the footnotes, appendix 96 and 97 was that this Court felt that there must be a prior judicial adversary hearing in this case.

That is a sole reason for doing what they did and they so stated.

This is a concept that they derived from the Marcus case and A Quantity of Books case which cases which are referred to in my brief.

I wish to point out again to the Court this time that we did have in this case an adversary judicial determination of obscenity, obscenity.

There was a hearing in Court on the Ledesma’s motion to quash and motion to suppress, wherein the District Court did view the books and made its determination.

He did have an adversary judicial determination.

The only thing new being requested is that this be a prior hearing.

That this adversary hearing be held before any arrest or any prosecution of the defendant, and I submit to Your Honor that this Court Your Honors have never held that in a criminal prosecution that this is necessary.

As a matter of fact, you have indicated your preference for the conventional course of criminal procedure in enforcing this cases, not to say that other methods cannot be used but I think that in these decisions, Francis and the Kingsley Books case, they are where New York attempted to supplement its conventional coarse of criminal procedure in dealing with these cases.

The problem with the Court at that time was that you were hesitant to allow them to supplement their procedures and throughout the cases, Roth case, Albert’s case which I have quote in my brief there, Your Honors indicated that such a hearing was not necessary by its light.

But in the New York Feed case and Milky Way cases which were to decided in February of 1970 by Your Honors, you summarily affirmed the decision of the three-judge court which held affirmatively that this adversary judicial determination of obscenity was indeed a novelty, was unnecessary, and afforded no special protection to the books taking time cognizance of the concurring opinion of Chief Justice Warren in the Roth case, that in these cases involving criminal prosecutions, it is the person who is on trial, not the books.

That decision was summarily affirmed by this Court and as seen in the record page 121 of the appendix, after Your Honors came out with your summary affirmation of the New York Feed and Milky Way cases.

I went back to our three-judge panel and I told them in my motion which is in the record here that the Supreme Court has finally decided this issue as to whether or not there must be a prior adversary hearing in criminal prosecutions and I filed the motion, we argued the case, submitted memorandums and the motion was denied and I submit that this number one is proof of the injunctive intent of the lower court and also, Your Honor I feel that in this case, we are asking you to take jurisdiction and to decide these issues because obviously from the action of the three-judge court in our case is summary affirmation by Your Honors, is not enough to straighten out them arrest that has resulted in three-judge district in this area, and we must have a pronouncement from this Court as to whether or not this type of hearing is necessary, and that is what we’re asking you to do at this time.

We also fear Your Honor that we do have a question argue in the other cases before us, Article 2283, the abstention doctrine in view of Dombrowski, Cameron and the Atlantic Coast cases and we just wish to point out strongly in line with that that there was no finding of bad faith on our part in this case.

There was specific finding of good faith on our part and the Cameron case read together with Dombrowski, the Atlantic Coast cases are specific, that before this three-judge courts can interpose themselves in place of the United State Supreme Court in state prosecutions, that there must be bad faith prosecution, there must be a statute which is filed unconstitutional.

Charles H. Livaudais:

In our case, the court specifically found that the sections of our statute that we’re dealing with are constitutional.

Now, the Court also abused its discretion in ordering us to return these books and in not invoking the adoption of abstention, and I argued this in connection with the court’s action in declaring our parish ordinance unconstitutional.

Our reference to our parish ordinance Your Honor, there was no case, there was no controversy of sufficient immediacy and reality to warrant the action taken by the course — by the court.

And Golden v. Zwickler which was a clarification of Zwickler v. Koota, this Court held that although the court might have jurisdiction to hear declaratory judgments where there’s allegations of a controversy in the absence of an actual controversy of sufficient immediacy and reality, the court should not make declaratory judgments in an advisory capacity only.

The purpose of this being obviously to keep the three-judge courts from taking the prerogative of the United States Supreme Court to issue these doctrines especially in this case of obscenity which is so critical to our whole procedure in prosecuting these cases in court.

One obvious result that we can see from the three-judge court’s stepping into these cases is the fact to state in the previous case, “I am curious yellow” involving that, that there are five other cases pending in federal district three-judge courts involving the same issues and its my intention that if these cases were allowed to go through the normal course of procedure as stated in the Atlantic Coast case, that we would not have a confusion that we have today in this field of obscenity.

Warren E. Burger:

Mr. Livaudais, that’s enough.

[Lunch recess]

You may continue.

Charles H. Livaudais:

Mr. Chief Justice, may it please the Court.

Before the noon recess, I’d — all practical purposes concluded the bulk of my argument.

This time I would like to sum up where I consider the major points in my argument.

One is the jurisdiction of question which I think that we have answered clearly as far as the injunctive intent of the three-judge District Court in this case.

Also, the fact that in cases involving criminal prosecutions that there are adversary judicial hearings, and that in light of this Court’s summary affirmation of the Milky Way and New York Feed cases, that there is no need to have this hearing prior to the arrest of the defendant in the case.

At this, in effect we give no more protection to the publications than having the hearing after the arrest.

At this extraordinary protection which is not allowed in Federal Law would serve to help the lawbreaker.

It would not have any further effect in securing First Amendment rights.

We do feel that there has been a definite abuse of the Court’s discretion under the provision and the mandates of Article 2283 and of the dictates of this Court and the Dombrowski case, the Cameron case and the Atlantic Coast case.

In our case, where there has been no finding of bad faith of any kind by the lower court.

Our state statute of Sections 2 and 3, which are the only ones before this Court today have been held constitutional and that there has been no appeal taken from this decision of the Court by appellees in this case.

We further feel that there has been an abuse under the declaratory judgment act and that the doctrine of abstention should have been invoked in this case in reference to the three-judge courts declaring our St. Bernard Parish police jury ordinance unconstitutional.

I based that on the finding not in Zwickler v. Koota which has been submitted to this Court and previous argument erroneously I think, but in the case of Golden v. Zwickler which enlarged this Court’s viewpoints in Zwickler v. Koota and which this Court specifically held referring to Zwickler v. Koota from which it originated, that there must be a controversy of sufficient immediacy and reality.

There was no such issue before the three-judge court in our case and that there were no pending prosecutions under that ordinance and there were no, and in view of the fact that the prosecutions had been terminated, there were no threats of any future prosecutions under that ordinance.

So here, we have a case of clear abuse by three-judge court under the provisions of 2283 by interfering with state court prosecutions and going even further than that and legislating criminal procedure for a state court.

I think that in doing this, that this federal three-judge — that this Court has abused its power and you serve the powers of this Court in deciding Louisiana law.

I’ll save the remainder of my time for rebuttal.

Thank you.

Warren E. Burger:

Very well.

Mr. Peebles.

Jack Peebles:

Mr. Chief Justice and may it please the Court.

Jack Peebles:

I think that there are basically three issues which this case present to this Court at this time.

First, there is the threshold question of whether or not this Court has jurisdiction of this appeal in view of the provisions on Section 1253.

Once that hurdle is passed, I submit that the issues then are first, did the Court below abused its discretion in granting the relief it granted or does Section 2283, the federal anti-injunction statute prevent the court below from taking the action that it took?

And then the third question, if this Court has jurisdiction and the court below properly considered the issues on the merits below, then did it properly decide the merits in this case?

But before getting into those questions, I would like to emphasize certain facts in this case which I think are relevant and should be called in with the Court’s attention.

When August Ledesma, the newsstand operator in this case decided to mark off a section of his new store Chalmette, Louisiana and sell within that section to adults only erotic literature.

He did sell with a full knowledge that the sheriff’s department was aware of what he was doing and would be watching what he was doing.

He was not secreting his publication.

He was not selling them even under the counter.

So that the sheriff’s department had adequate time to take any procedural measures that are constitutionally required.

They cannot argue that there was any impediment of time or fact which would have prevented them from giving Ledesma the full measure of his procedural constitutional protection to which he would be entitled.

But in view of this fact on January 27, 1969, after watching his store for sometime, they went in, purchased a couple of magazines, briefly looked at them and then arrested him and seized 45 other of his publications on hand.

They did not seek to obtain nor did they obtain an arrest warrant.

They did not seek to obtain nor did they obtain a search warrant.

They did not seek to have nor was held any kind of adversary hearing before a judge or magistrate which could have given them any kind of judicial opinion as to whether or not these publications were obscene.

Rather this way occurred, something because two members of the sheriff’s department in this parish in Louisiana decided that in their family, publications were obscene.

Now there was only one prosecution in this case that’s true but I think it should be pointed out further that the deputy sheriff made it clear that the rest of these magazines that were in that store had better be taken off the stand.

The affidavit filed by Ledesma and by his attorney below indicated that one of the deputies told him on three separate occasions, you’d better get rid of the rest of these magazines, and of course there’s no doubt what he was talking about, there would have been further prosecutions if he had not done so.

Now, in view of that fact, the three-judge court below rendered certain relief.

First, it declared that this part of the state statute and the parish ordinance were unconstitutional.

Now, this case below was combined with another case called Delta Book Distributors versus Cronvich, and in the other case with which this case was combined below, the defendant and the criminal defendants had been charged under Section 7 of the State Obscenity Act.

So that in this decision in this case, the court below held that Section 7 of the State Obscenity Act was unconstitutional on its face for overbreadth.

And in view of the statements by this Court in Zwickler versus Koota, we feel that this should be kept in mind.

Further, the Court below declared that procedure of arresting and seizing these publications without an adversary hearing was unconstitutional.

And then the court ordered a return of the seized magazines and their suppression in evidence in the state of criminal prosecution.

And the court below did not enjoin the state criminal prosecution and specifically declined to do so.

He did not enjoin further arrest in the future.

It did not enjoin the state prosecution facing Ledesma resulting from these seizures.

It simply exercised its authority as a court protecting federal rights by determining what would happen to these magazines and specifically it said, give the magazines back because you seized them in violation of constitutional rights.

Do you think there was a — you said which the court in your submission did not enjoin, do you think there was any injunction here?

Was there an order granting an injunction?

Jack Peebles:

That depends Your Honor on what we mean by an injunction and of course it takes us right into the threshold question of whether or not this Court —

Has jurisdiction?

Jack Peebles:

— probably has jurisdiction.

Yes, Your Honor.

The court specifically said that it did not enjoin the defendants and —

Well, in spite say that, it said that the preliminary and permanent injunctions prayed for to be denied.

That’s what it says, it wasn’t issuing any injunctions.

Warren E. Burger:

They enjoined the use of the evidence, didn’t it?

Jack Peebles:

It certainly did Your Honor and it only enjoined the use of that evidence, it required that that evidence be returned to the petitioners below.

Now, in view of that decision by the court, we now call the court’s attention to the decision of the Dial versus Fontaine decided by this Court June 29, 1970 but Mr. Justice Douglas dissenting.

In that case, the facts are substantially similar to the facts in this case.

And in Dial against Fontaine, this Court held that it did not have jurisdiction of the appeal.

I’d like to mention briefly the facts in the Dial case and Dial arising from the Western District of Texas, police authorities had seized a movie and the only question before the three-judge Federal Court in that case was, was the seizure proper.

That court held in Dial against Fontaine below that the procedure for seizure was unconstitutional and it declared it to be unconstitutional.

Second, in Dial the three-judge court below as in our case ordered the material which had been seized to be returned.

And third, in the Dial, the court below prohibited the defendants from utilizing the statute in the future without a prior adversary hearing, having been held.

But just in our case and the Dial case, the court below refuse to interfere in any matter with the criminal prosecution based upon the showing of the film.

What do you suppose the effect of paragraph 2 of the order in this case would have on any future criminal prosecutions?

Jack Peebles:

What page is it on?

On page 107.

Jack Peebles:

I think it would have the effect Your Honor of making it impossible for the prosecution to proceed.

And likewise, I think in Dial, the requirement that the materials be returned likely would have the same effect.

And the same effect?

Jack Peebles:

Yes, Your Honor.

And I can only say that in Dial, this Court felt that it did not have jurisdiction, I don’t see a distinguishing factor in that case between that case and this case on that threshold trust.

What is the citation?

Jack Peebles:

With Dial Your Honor?

Dial was decided June the 29th by this Court and the citation below was 303 Federal Supplement 436.

Did we dismiss?

Jack Peebles:

You dismissed for lack of jurisdiction citing Gunn.

D-I-A-L?

Jack Peebles:

D-I-A-L.

Yes, Your Honor and in that case you cited Gunn versus University Committee as the basis for your decision.

But if this Court does feel that an injunction was issued here and thus that it has jurisdiction to entertain this appeal.

Then we raise the further question of whether or not the court below properly exercised its discretion, and whether it in fact was forbidden by 2283 from doing what it did.

Warren E. Burger:

Well, I’m having a little trouble squaring that with what you responded to before when I asked you if, as a matter of fact that the court had enjoined the use of all this evidence, and I thought you said it did enjoin its use.

Jack Peebles:

It did.

Warren E. Burger:

And return the exhibits to your client?

Jack Peebles:

It did, Your Honor.

And there’s an injunction isn’t there?

Jack Peebles:

It would seem so to me Your Honor but in view of the fact that this Court held no jurisdiction in Dial in which case, the Court there also required a return of the seized materials and there may be some question about.

Well, if a — assume a state statute for example authorizes wiretapping in the use of evidence to criminal cases under controlled situation and a man is indicted and is about to go to trial and he sues in the Federal Court to enjoin, to have declared unconstitutional the State wiretapping statute and to enjoin the use of the any wiretap testimony in his criminal trial and the Federal Court declares a statute of constitutional and does enjoin the use of any of that evidence, that’s roughly these situations in nature.

Jack Peebles:

Yes, frankly.

And you would, you think that the Dial case means there’s no jurisdiction here?

Jack Peebles:

The Dial case held that there was no jurisdiction and I cannot find a distinguishing factor between that case and this case.

Thank you.

Jack Peebles:

Yes.

But assuming this Court does have jurisdiction, then does 2283, the federal anti-injunction statute —

Warren E. Burger:

Was Dial an argued case here?

Jack Peebles:

I beg your pardon, Your Honor?

Warren E. Burger:

Was Dial an argued case here?

Jack Peebles:

I don’t know Your Honor whether it was –

Warren E. Burger:

Or summary disposition?

Jack Peebles:

–argued or not, I do not know.

You do not know the number of the value?

Jack Peebles:

Below Your Honor are here, recorded in here, I have it Your Honor.

You said long week ago?

Jack Peebles:

It’s a long week, yes Your Honor.

Or do you have an amount or value, you know what I mean.

Jack Peebles:

That’s number 1032 The October term cited at 90 Supreme Court 2235.

It’s 309 — 299 U.S. (Inaudible).

Jack Peebles:

Very well, Your Honor.

How did it form that the order reaches the Dial case?

Jack Peebles:

Yes, Your Honor.

And the Dial case decided by this Court, Your Honor?

Yes.

Jack Peebles:

It served first this as facts and opinion giving the lower court citation June 29, 1970 per curium, the appeal is dismissed for one of jurisdiction, Gunn versus University Committee, Mr. Justice Douglas dissents from the dismissal of the appeal.

If the Court please, yesterday, an argument of other counsel fairly, adequately covered I think, the question of the fact that 2283 may have won the civil rights statute.

Surprising to say that we simply take the position that the Civil Rights Act is, one of — is enact which expressly provides for the injunction and it is an exception and one the exceptions filled out in the language of the Federal Anti- injunction Act.

We feel that the reconstruction congress of 1871 clearly intended that in an appropriate case, the federal court should intervene on a state proceeding.

However, we would point out that in the facts of this case, 2283 should not be considered a bar because the court below did not grant “an injunction to state proceedings on a state court,” which is the language of 2283.

Now, it did suppress the evidence and it did exercise jurisdiction over those magazines by requiring them to be returned but it specifically did not stay the proceedings in the state court.

It did not say they could not go forward with the criminal prosecution.

Thurgood Marshall:

How could the state prosecute without the books?

Jack Peebles:

It could not effectively, Your Honor.

Thurgood Marshall:

Well, what’s the difference then?

What’s the effective difference?

Jack Peebles:

There is no effective difference Your Honor, I think it’s a question of whether they’d specifically stayed the injunction or simply had the effect of staying the injunction, and we submit that if it’s merely have the effect of staying that proceedings below, then it would not be forbidden by the anti-injunctions.

Thurgood Marshall:

Well, the things that were in lieu of that is one paragraph, they say they’re not doing it.

They say they will not grant a temporary or permanent injunction but we will retain jurisdiction.

Jack Peebles:

They did that, true.

Thurgood Marshall:

How do you interpret that?

Jack Peebles:

I interpret that Your Honor to mean that if the state should resume prosecution, they would then exercise their authority to effectuate their declaratory judgment by enjoining the state prosecution.

That’s my interp —

Thurgood Marshall:

The only difference is that if that state, they can’t be held any contempt and the only difference between them being held in contempt and not being held in contempt is a little piece of paper which says permanent injunction, that’s the only difference.

Jack Peebles:

I think so, Your Honor.

Warren E. Burger:

If you had refused to return the exhibits as ordered, and on the contrary had gone to trial the next day or very soon, offered them an evidence, do you think, say you, your friend, do you think he might have gone in contempt or subject to contempt?

Jack Peebles:

I think it would have been Your Honor, I do.

Warren E. Burger:

Very seriously, wouldn’t it?

Jack Peebles:

I think so.

Warren E. Burger:

And so whatever name we give this exercise, he was prohibited from doing something?

Jack Peebles:

Yes, Your Honor, no question about it.

Now, with regard to 2283, yesterday, Mr. Justice Stewart inquired one of the attorneys as to whether any studies had been made of the increase number of request for three-judge courts and their effect from the judicial system.

Yesterday afternoon, I located a comment in the April 1970 Edition of the Harvard Law Review which may be appropriate there.

And an article entitled Section 1983 Jurisdiction, the commentator pointed out that an examination of 100 private civil rights cases reported in the federal supplement from December 1966 to March 1968, shows that 67 were dismissed without a trial or hearing, the vast majority on the face of the complaint.

“The statistics suggest” said the writer, “that most Section 1983 cases even now are quickly disposed off and pose little time problem for federal courts”.

And the remaining 35 cases, plaintiffs obtain preliminary relief and 12 without an evidentiary hearing.

Only seven cases appeared to have been tried and five of those resulted in a judgment of the plaintiff.

That might also suggestive that it requires a bit of wasted time of members of federal courts.

It’s a problem that perhaps is easy and certified by Second Circuit by the First Circuit, but in the larger geographical circuits, the very assembling of one circuit judge, which is required by the statute, two district judges and if they’re traveling to wherever the court is going to be held is a great, can add up to a great deal of expenditure of judicial time, and if as it turns out, most of this cases end up by getting dismissed.

It suggests it’s a bit of waste of time, doesn’t it?

Jack Peebles:

Yes.

With the motion.

Jack Peebles:

Your Honor, it can, certainly this process can be abused.

However, if complaint is considered frivolous, the District Court is under no obligation to request a three-judge court.

And I submit that this situation is roughly analogous to the removal situation.

Now, there for a while, we have a flurry of removal cases.

But once they’ve seen that the federal courts simply are not going to inappropriately intervene, unless there is really a chilling effect by the prosecution in the state criminal case, then counsel will surely learn not to waste their time.

But we submit that the decision initially as to whether or not to implement the provisions of the injunctive authority should be with the rest with the district court.

Federal state relations were not to see manage for the future and we don’t know that there might be sometime in the future in which federal courts will find it very necessary to intervene in these situations.

We submit that the discretion of the lower court should be respected and perhaps to call on a phrase, the Court should exercise appellate judicial restraint in that regard and permit the different courts to make that initial determination.

Incidentally, the Sixth Circuit on September the 9th in the case of Honey versus Goodman held that the anti-injunction statute did not bar 1983 proceeding, even after the proceedings were instituted in state court, so that at least in the view of that Court, the Atlantic Coast Line decision from this Court does not mean that you can’t proceed with the 1983 action.

Now, to move on to the third question then —

Thurgood Marshall:

If it did not, then which first 2283 or 1983?

Jack Peebles:

I’m sorry Your Honor?

Thurgood Marshall:

Which of the two, the anti injunction statute 2283 and the 1983, do you know?

I mean it’s not important —

Jack Peebles:

The 1983 was passed as part of the Original Civil Rights Act of 1871, Your Honor.

Thurgood Marshall:

Right, but where is that?

Jack Peebles:

I believe —

You believe?

Jack Peebles:

1793 I believe is the original anti-injunction statutes.

The original anti-injunction statute I believe was 1793, Your Honor.

It’s a very early statute, very early statute.

So that the reconstruction of Congress has that in mind and nonetheless passed 1983 providing for suits and equity in these provisions.

Now, to come to the merits of the case, counsel for the appellant has argued specifically on the question of whether an adversary hearing is required before an arrest can be made.

We call the Court’s attention to that fact that in this case, there was no judicial supervision whatsoever, there’s no application for an arrest warrant or search warrant either and none was obtained in spite of the fact that they had all the time they needed in order to attempt to obtain such.

But we would go further than that and argue that the court below was correct in its determination that there should be if time and circumstances permit in the specific fact situation involved, then there should be a prior adversary judicial hearing on the question of the obscenity of the publications before the publications can be disturbed by the prosecuting officials.

Now, we say that because that is the method by which the publications can be given a maximum procedural protection to which we feel that presumptively protected first amendment materials are entitled.

Simultaneous things from this Court have indicated that there maybe materials that are hardcore and that this can be recognized easily but speaking from the standpoint of someone like Ledesma, I can assure the Court that it is extremely difficult to distinguish between those publications which will get you in danger of prosecution and of conviction and those publications which are safe.

It is impossible to do so.

And our neighboring State of Mississippi, we recently had one Federal District Court to hold that the movie “The Fox” was not obscene as a matter of law and the neighboring District Judge in Mississippi held that it was hard core pornography, the very same film.

Now, there are simply differences in this area of obscenity because of the subject, the values involved.

And the opinions of the Deputy Sheriff from St. Bernard’s Parish can be so different from those of newsstand operator, an attorney or a judge.

We feel that the only safe approach to take as long as the Court does feel that there is not an absolute right to possess and disseminate erotic materials under controlled circumstances.

As long as this Court takes the position that the State can suppress the very controlled dissemination of these materials then surely there must be a procedure by which the newsstand operator can know what’s safe for him to sell and what is not safe for him to sell.

We submit that experiences shown that in circumstances of obscenity, the only fair way in a situation in which an adversary hearing can be held is to grant the newsstand operator an adversary hearing.

Thank you.

Warren E. Burger:

Thank you Mr. Peebles.

Mr. Livaudais you have few minutes left.

Charles H. Livaudais:

Mr. Chief Justice and may it please the Court.

I’d first like to comment on the Dial case which has been mentioned in requisite of jurisdiction of question.

That case was decided by this Court, the jurisdiction was declined on the same day that Your Honors referred our case to an argument on the merits.

I’m sure you saw the distinction in that case as I see between that case and our case and that is on the Dial case, the Court recognized that this case involves only one contested issue of law, that is whether or not the Constitution of the United States requires an adversary hearing to determine the question of obscenity, must be held prior to the arrest.

Now, that was submitted by stipulation of the parties to the court, strictly for the Court to decide that issue.

There was no pending prosecution, there was not even a threat of future prosecution but this Dial case amounts to is a submission by both sides for declaratory judgment in that case and I appeal that that must be what this Court recognize when it declines jurisdiction in that case.

There was no pending prosecution, no treats, no issue other than the one issue as to whether or not a prior adversary hearing is necessary.

That was the sole issue in the Dial case and what I have just quoted to you is from the report and 303 Federal Supplement 436 at page 438.

So there is an easy distinction between the Dial case and our case, well, this was a contested case whether questions of constitutionality of our statute, there were questions of bad faith and unfortunately the statute and this is an easy distinction to make.

Charles H. Livaudais:

There have been some comments made by counsel concerning not either using the word “threats” I don’t think but something akin to that by the police officers in this case.

I’d like to point out to this Court that in the finding of the District Court after a hearing on this case, they wanted to hear an affidavit so we heard it on affidavit but we did submit affidavits, they found no bad faith, they found no threats, they found no bad faith at all in our part.

Their decision was made strictly on this question of the adversary hearing which is an erroneous decision.

This case — this issue has been settled by this Court and the New York Feed and Milky Way cases which asked the specific question and this Court affirmed that decision.

This time we’re asking the Court to reaffirm that decision, your decision in the Milky Way and New York cases using your own words that once and for all, these three-judge courts will understand what Your Honors are telling them.

This is the problem that happens when we have so many federal three-judge courts interfering with state prosecutions, each one of them giving their own pronouncement and they are so different.

It has caused great confusion in the law and a lot of confusion as to field of obscenity has been caused not by Your Honors in the United States Supreme Court but by the three-judge courts that have so many varying opinions as to what should be the law of the land in its area.

Now, you are now addressing yourself not to the propriety of any action of a three-judge court in cases generally but you’re talking about the necessary antecedent conditions to an obscenity prosecution, is that correct?

Charles H. Livaudais:

Yes Your Honor, both.

I say that in this case, in this particular instance concerning prior adversary hearing, Your Honors have spoken out on this.

Yes.

Charles H. Livaudais:

In the New York Feed and Milky Way cases.

And your talking about that now?

Charles H. Livaudais:

What I’m saying is that this is the evidence of the entire overall problem of the three-judge courts making pronouncements that really should be made by this Court.

But you say, have been made in the Milky Way case?

Charles H. Livaudais:

Yes, have been made, have been made but unfortunately, in that case was a summary affirmation.

I think that’s the reason why I couldn’t sell our court on it.

They want to hear it from your own words.

They don’t just want a summary affirmation to a lower three-judge courts decision.

Now, I think that if we will — I think that if the lower courts would follow more the mandates of 2283 and let the conventional course of procedure go through, you wouldn’t have a lot of the problems you’ve had in our case and to the other cases that I’ve heard today.

One problem you’ve had and all of these cases have been a lack of a record, a lack of evidence.

You can’t really tell what a case is about unless you had a trial on it.

In our case, we do have a number of affidavits.

For instance we have affidavits in the record of our sheriff stating that he received complaints from clergy and people in the neighborhood and schools and churches.

We have affidavits in our record that showed that we had minors in this very store.

We have affidavits of minors in this record stating that they went into the store and got publications.

This is evident of the fact that these books do get to the children no matter what types of safeguards are attempted.

In view of this Your Honor, we ask that you accept the jurisdiction and that you issue your own pronouncement as to this prior adversary hearing and reaffirm your decision of the New York Feed and the Milky way decisions and reaffirm your pronouncement of the Atlantic Coast case in reference to 28-2283 to stop this constant interference by federal district courts and state court actions.

Thank you.

Warren E. Burger:

Thank you Mr. Livaudais.

Warren E. Burger:

Thank you Mr. Peebles.

The case is submitted.