Hamar Theatres, Inc. v. Cryan , 365 F. Supp. 1312 ( 1973 )

ADAMS, Circuit Judge

(dissenting):

The doctrine of abstention enunciated in Railroad Comm’n v. Pullman Co.^1a admonishes that, under certain circumstances, a federal court should postpone resolution of a challenge to the constitutionality of a state statute until there has been a definitive construction of that statute by the state court.^2a

In making the determination whether to abstain, a court must engage in a balancing of weighty concerns. On the side of abstention is the possibility that the construction rendered by the state court would avoid or modify the constitutional challenge posed. By deferring its decision, the federal court might avert having to “mak[e] a tentative answer [on the meaning of the state statute] which may be displaced tomorrow by a state adjudication.” ^3a Beyond canons of sound judicial procedure, abstention serves the important national interest in “the avoidance of needless friction with state policies,” ^4a and a “scrupulous regard for the rightful independence of the state governments.” ^5a

Against these considerations weigh the claims of the particular litigant who has properly invoked the jurisdiction of the federal court and who would possibly be subjected to extensive delay were the federal court to abstain.^6a

Analyzing the facts present here and then sorting them into the two receptacles of the scale dictates that this Court, at least at this time, stay its hand.

The factors in favor of an immediate decision of this matter are not preponderant. The state has agreed that an interpretation by the highest state court of the obscenity statute here assailed will be expeditiously sought, and expects that oral argument will be held in September. Moreover, during the pendency of the state proceedings, the Attorney-General of New Jersey has indicated at oral argument that prosecutions will not be processed. These two items clearly diminish the possibility that the plaintiffs or members of their class, will be injured by the federal court’s decision to abstain.

Compared to the elements militating against abstention, those suggesting that abstention is proper loom large. The Superior Court of New Jersey has recently interpreted the statute in question in a fashion which, but for intervening facts, would have avoided assaults on the constitutionality of the statute.^7a Although the decision of the New Jersey tribunal is not a final, definitive interpretation of the statute, it illustrates the flexibility in statutory construction permitted to the courts of the state.

More importantly, on June 21, 1973, the United States Supreme Court decided Miller v. California.^8a In that case, a majority of the Court, for the first time since Roth v. United States,^9a “agree [d] on a standard to determine what constitutes obscene, pornographic material subject to regulation under the State’s police power.” ^10a

The standard established in Miller represented a change from the earlier pattern against which most states had enacted and interpreted their statutes. The Supreme Court recognized this variance yet made clear that new legislation was not necessarily required from the states. Rather, statutes “authoritatively construed” ^11a to comport with the new standards would be deemed acceptable .^12a

This Court cannot “authoritatively construe” the New Jersey obscenity statute. The highest court of New Jersey can do just that.^13a

A salutary rule of caution is the wise and ancient doctrine that a court not adjudge the validity of a statute except for manifest necessity, and that every doubt be explored and extinguished before moving to that grave conclusion. Because of this principle and the specific facts in this case, which in my judgment do not demand immediate decision, abstention is especially appropriate here.^14a

1a . 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).

2a . See e. g. Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959).

3a . Railroad Comm’n v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L. Ed. 971 (1941).

4a . Id.

5a . Id. at 501, 61 S.Ct. at 645, quoting DiGiovanni v. Camden Ins. Ass’n., 296 U.S. 64, 73, 56 S.Ct. 1, 80 L.Ed. 47 (1935).

6a . See Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). Cf. England v. Louisiana State Bd, of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964).

14a . In deciding to abstain, I would retain jurisdiction of this case pending disposition by the state court system. See Zwickler v. Koota, 389 U.S. 241, 244-245 n. 4, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). If undue delay developed, the court could then proceed with an adjudication.

7a . Coleman v. Wilson, 123 N.J.Super. 310, 302 A.2d 555 (N.J.Super.1973).

8a . 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

9a . 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).

10a . 93 S.Ct. at 2614.

11a . Id.

12a . “We do not hold, as Mr. Justice Brennan intimates, that all States other than Oregon must now enact new obscenity statutes. Other existing state statutes, as construed heretofore or hereafter, may well be adequate.” Id., n. 6.

13a . In United States v. 12 200-ft. Reels of Super 8mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), the Supreme Court clearly indicated that the interpretation of the statute should be made bv the state court.

“We further note that, while we must leave to state courts the construction of state legislation, we do have a duty to authoritatively construe federal statutes. . .”93 S.Ct. at 2670, n. 7.