New Orleans Book Mart, Inc. v. Mitchell , 318 F. Supp. 352 ( 1970 )

OPINION-ORDER

Before SIMPSON, Circuit Judge, and McRAE and YOUNG, District Judges.

BY THE COURT:

In this action the plaintiffs, all under indictment in various districts for violation of federal obscenity statutes (Title 18, U.S.C. §§ 1461-1465), request injunctive relief prohibiting the prosecution if the pending indictments and the bringing of future indictments against the plaintiffs, as well as a declaration that the above-mentioned statutes are unconstitutional as written and applied.

The defendants move to dismiss the action on the grounds that the plaintiffs have an adequate remedy at law, i. e., the right to raise the attacks here made on the statute in defense to the criminal charges filed against them. We agree and have accordingly determined that the motion to dismiss should be granted. Douglas v. City of Jeannette, 319 U.S. 157, 163, 63 S.Ct. 877, 87 L.Ed. 1324 (1943).

This ruling is not inconsistent with Reed Enterprises v. Corcoran, 1965, 122 U.S.App.D.C. 387, 354 F.2d 519. In that case it was merely held that a three-judge district court was required to be empaneled to consider the claims of the plaintiffs. This we have done.

Having determined that this is not a proper case for injunctive relief, neither are we disposed to make a declaration of rights which cannot be enforced in the instant litigation. Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), is not inapposite to our refusal to grant declaratory judgment. That case turned in part on the fact that the denial of declaratory relief would have deprived the plaintiffs the right to have federal rights determined in a federal forum. Such is not the present case, where the plaintiffs have been indicted in courts of the United States.

It should be made explicit that by our refusal to grant declaratory relief we do not intend to preclude the plaintiffs from making future application to an appropriate single judge of a district court for declaratory relief. Title 28, U.S.C., § 2282 only requires the empaneling of a three-judge court to consider a request for injunctive relief against the enforcement of a statute of the United States. A single district judge may interpret a statute of the United States and grant declaratory judgment when injunctive relief is not requested. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); Brotherhood of Locomotive Firemen and Enginemen v. Chicago, B. & Q. R. Co., (D.C.D.C.1964) 225 F.Supp. 11, affirmed 118 U.S.App.D.C. 100, 331 F.2d 1020, cert. denied 377 U.S. 918, 84 S.Ct. 1181, 12 L.Ed.2d 187.

Therefore, it is ordered:

1. The defendants’ motion to dismiss is granted, and this action is dismissed with prejudice as to the request for injunctive relief, and without prejudice as to the request for declaratory judgment.

2. Costs shall be taxed against the plaintiffs.