N. D. D., Inc. v. Faches , 385 F. Supp. 276 ( 1974 )

STEPHENSON, Circuit Judge.

On December 18, 1973 this court denied plaintiff’s initial application for a preliminary injunction stating that

it is the court’s view that it should abstain at this time from ruling on the constitutionality of [Iowa Code] Chapter 99 as it purports to regulate motion picture films pending the final state court decision on the same issue which might render a decision by this court unnecessary.

In the instant motion, filed on June 25, 1974, the plaintiffs have renewed their request for an injunction based upon recent developments in Iowa law which, they allege, wholly invalidate the state district court’s decision in this case. In response to this action, this court on its own motion raised a question as to its jurisdiction over the instant ease. An order filed on September 27, 1974 directed the parties to file briefs on that jurisdictional issue. The requested material is now before the court.

Having carefully considered plaintiff’s renewed request for federal injunctive relief, it x-emains our view that this court, in the interest of federal-state comity, should not interpose itself in this ongoing state court action. There is no showing of a threat of irreparable injury “both great and immediate.” See Younger v. Harris, 401 U.S. 37, 46, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

Furthermore, the Supreme Court in Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 306, 38 L.Ed.2d 260 (1973), stated that abstention is proper

where the challenged state statute is susceptible of a construction by the state judiciary that would avoid or modify the necessity of reaching a federal constitutional question. * * * Abstention in such circumstances not only serves to minimize federal-state friction, but also avoids premature and perhaps unnecessary constitutional adjudication.¹

If the Iowa Supreme Court finds that Chapter 99 of the Code of Iowa is unconstitutional, the instant litigation would be at an end. Federal intervention at this time would therefore be inappropriate.

In addition, this is not a case in which the underlying state statute is so clearly unconstitutional that it makes further consideration by a three-judge court unnecessary. See Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962). The Iowa Supreme Court, in an order issued after their decision in State v. Kueny, 215 N.W.2d 215 (Iowa 1974), denied plaintiff’s request for an expedited hearing stating that “[n]o compelling reason for priority in the assignment is found.” Accordingly, any presumption on our part that the Iowa Supreme Court has necessarily committed itself to a reversal in the instant case seems premature.

It is therefore

Ordered

that plaintiff’s renewed application for a preliminary injunction is denied.

1 . Citations omitted.