The judgment is vacated and the case is remanded to the United
States District Court for the Northern District of Indiana for
further consideration in light of Huffman v. Pursue, Ltd.,
420 U.S. 592 (1975).
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr.
Justice MARSHALL concur, dissenting.
Page 423 U.S.
976 , 977
On October 12, 1973, the prosecuting attorney for Adams County,
Ind., filed in the Adams Circuit Court a petition to enjoin and
abate appellee's motion picture theatre as a public nuisance. On
the same day the Circuit Court entered a temporary restraining
order with a notice and summons to appear for a hearing on a
temporary injunction. Additionally, a subpoena duces tecum issued,
ordering appellee to produce before the Court the film 'Deep
Throat' and all other motion pictures in his possession, and also a
list of the titles and play dates of all motion pictures exhibited
by him over the past three years.
The prosecutor was proceeding under the Indiana obscenity public
nuisance statute, supra. The Statute provides that a place which
exhibits obscene films is a public nuisance,1 and provides for a
court order requiring the closure for up to one year of any place
determined to be a public nuisance. [
Footnote 2] An ex parte restraining order may issue up to
10 days without any prior judicial determination of the obscenity
of specific films, and a preliminary injunction may issue if after
hearing the allegations of the complaint 'are sustained to the
satisfaction of the court.'3 The statute further provides that at
trial the 'general reputation of the place' is both admissible and
prima facie evidence for proving the existence of the nuisance.
[
Footnote 4] If a nuisance is
established at trial, an order closing the theatre for a year and
confiscating all personal property and contents therein shall
issue. [
Footnote 5] The owner
of a theatre closed by either preliminary or permanent injunction
may obtain a release from the closing order
Page 423 U.S.
976 , 978
only by posting a bond conditioned on the abatement of the
nuisance. [
Footnote 6]
On October 19, 1973, appellee filed suit in the United States
District Court. The complaint sought a declaratory judgment
pursuant to 28 U.S.C. 2201, 2202 that the statute under which the
prosecutor was proceeding was unconstitutional. The complaint also
sought to enjoin any further proceedings in the Adams Circuit
Court, relief premised on 42 U.S. C. 1983. On November 14, 1974,
the District Court granted summary judgment in favor of appellee
and the relief sought.
The Court today vacates the judgment below and remands for
consideration in light of its decision last Term in Huffman v.
Pursue, Ltd. ,
420
U.S. 592 (1975). Huffman, a case involving a similar nuisance
statute from Ohio, held that the principles of Younger v. Harris,
401 U.S. 37
(1971), which limit federal court equitable interference with state
court criminal proceedings, are also applicable to certain state
court proceedings which are 'in aid of and closely related to
criminal statutes . . ..' 420 U.S., at 604. Accordingly, the Court
in Huffman v. Pursue remanded for a determination whether under the
facts of the action 'extraordinary circumstances' existed bringing
the case within the narrow exceptions to Younger's general bar.
But in the instant case, the, Distrist Court anticipated Huffman
v. Pursue and, for the very reasons relied on by this Court in that
case, clearly held that Younger principles were applicable.
[
Footnote 7] That Court then
proceeded
Page 423 U.S.
976 , 979
to an extended analysis of the factual situation and concluded
that the case fell within the Younger exceptions as involving a
'statutory scheme here . . . arguably
in several respects 'flagrantly and patently violative of express
constitutional prohibitions in every clause, sentence and
paragraph, and in whatever manner and against whomever an effort
might be made to apply it." Nihiser v. Sendak,
405 F.
Supp. 482, 494 (N.D.Ind.1974).
The Court concluded that the provisions rendering admissible
'general reputation' evidence and constituting such evidence
sufficient 'prima facie' evidence of the existence of the nuisance
imposed an unconstitutional prior restraint upon freedom of
expression because there was not first required a judicial
determination of the obscenity of any specific materials, and
because the censor was not required to bear the burden of proving
obscenity. The Court emphasized that the statute provided for the
seizure and destruction of materials which had never been
judicially determined to be obscene, and for the seizure and
destruction of constitutionally protected materials 'merely because
they are found in a place which has a reputation of exhibiting
obscene films . . ..' Id., at 495. Furthermore, the Court
emphasized, once a closing order has issued, the statutory scheme
permits future restraints against exhibition of all films unless
the owner first discharges the burden of demonstrating their
nonobscenity. And if such a showing is made and a release from the
closing order obtained, the owner must thereafter 'determine at his
peril what
Page 423 U.S.
976 , 980
is literally or arguably within the definition of 'nuisance."
Ibid. [
Footnote 8]
Finally, and of particular significance, the District Court held
the definitional section of the statute to be 'flagrantly and
patently in violation of express constitutional guarantees.' Id.,
at 496. The statute defines as a nuisance a place at which 'lewd,
indecent, lascivious or obscene' films are exhibited. [
Footnote 9] The Court reached its conclusion
upon the authority of two Indiana Supreme Court decisions which
struck down criminal obscenity statutes employing the same
definition on the ground that it was too general in nature under
the principles announced in Miller v. California,
413 U.S. 15 (1973). Mohney
v. State, Ind.,
300 N.E.2d 66
(1973); Stroud v. State, Ind.,
300 N.E.2d
100 ( 1973).
Thus the case fits precisely within the clearly settled Younger
exception permitting federal courts to grant relief against state
authorities who proceed under a statute 'flagrantly and patently
violative of express constitutional prohibitions in every clause,
sentence and paragraph, and in whatever manner and against whomever
an effort might be made to apply it.' This exception, first
fashioned in Watson v. Buck,
313 U.S.
387, 402 (1941), and reaffirmed in Younger, supra, 401 U.S. at
53-54, was twice recognized in Huffman itself, 420 U.S., at 602,
611. Therefore the judgment of the District Court should be
affirmed. The Court's remand to require the
Page 423 U.S.
976 , 981
District Court to do over what it has done already makes no
sense whatever. I respectfully dissent. [
Footnote 10]
Footnotes
Footnote 1 Ind.Stat.Ann.
9-2711(d) (Supp.1974) (now codified at Ind.Code 35-30-10.5-1).
Footnote 2 Ind.Stat.Ann.
9-2716 (Sup.1974).
Footnote 3 Ind.Stat.Ann.
9-2714 (Supp.1974).
Footnote 4 Ind.Stat.Ann.
2715 (Supp.1974).
Footnote 5 Ind.Stat.Ann.
9-2716 (Supp.1974).
Footnote 6 Ind.Stat.Ann.
9-2714, 2716 (Supp.1974).
Footnote 7 The District
Court stated
'attempts to enforce civil provisions
such as the one here may be characterized as civil proceedings
utilized to enforce the criminal laws and thus subject to Younger
in any event. . . .. The best approach is not to regard labels
'civil' and 'criminal' as controlling, but to analyze the competing
interests which each case presents.' Nihiser v. Sendak,
405 F.
Supp. 482, 493 (N.D.Ind.1974).
Footnote 8 The statutory
scheme also provides for 'summary' trial and punishment for
violation of an outstanding injunction or closing order, and for
any contempt of court. Ind.Stat.Ann. 9-2717 (Supp.1974). In this
context the District Court found the statutory scheme to be an
attempt to circumvent the safeguards attendant upon formal criminal
proceedings. Nihiser v. Sendak, supra, at 496.
Footnote 9 Ind.Stat.Ann.
9-2711(d) (Supp.1974).
Footnote 10 It is no
answer that the Court said in Huffman that the Ohio nuisance
statute there involved did not fit within the 'flagrantly and
patently violative of express constitutional prohibitions'
exception to Younger, 420 U.S., at 611-612 & n. 23, since one
Ohio state court decision had narrowly construed the scope of the
statute, id., at n. 23 and another had construed the Ohio
definition of obscenity as comporting with the specificity
requirements of Miller v. California, id., at 596 n. 4. In sharp
contrast, Indiana court decisions have not narrowed the scope of
the Indiana nuisance statute and the Indiana Supreme Court, in the
two decisions relied upon by the District Court, has held that the
same definition of obscenity appearing in Indiana's criminal
obscenity statutes does not satisfy the specificity standards of
Miller.
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