Lumbard and Friendly, Circuit Judges, and Thomsen, District Judge.*fn*
Beatrice J. Reilly and the Foursome Inn Corp. appeal from a decision of Chief Judge Mishler of the Eastern District of New York dismissing plaintiffs' complaint under 42 U.S.C. §§ 1983 and 1985. The complaint sought injunctive and declaratory relief, and money damages.
Plaintiff Beatrice Reilly is the owner and chief operator of the corporate plaintiff Foursome Inn Corp. The corporation owns and operates a hotel, bar, and restaurant called "Surf and Sand" in the Town of East Hampton. The plaintiffs' complaint alleges that Joseph and Teresa McCully, the "private" defendants,*fn1 in early 1971 adopted a scheme to force the plaintiffs out of business, or to compel the plaintiffs to sell "Surf and Sand" to the McCullys for nominal consideration. In furtherance of this plan it is alleged that the McCullys induced the "public defendants," a group consisting of members of the Town Board of East Hampton, the Chief of Police, officers of the Police Department, and Justices of the Peace, to join in this enterprise by performing various acts which deprived the plaintiffs of their federally guaranteed rights. The only justices of the peace in East Hampton also serve on the Town Board.
In considering defendants' motion to dismiss the complaint on the grounds that the court lacked subject matter jurisdiction (F.R.Civ.P. 12(b)(1)) and that the complaint failed to state a claim upon which relief may be granted (F.R.Civ.P. 12(b)(6)), the district judge permitted the parties to submit affidavits. This had the effect of converting the Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. Chief Judge Mishler then granted the "public" defendants' motion to dismiss pursuant to Rule 12(b)(6), and presumably granted the motion for summary judgment.*fn2 For the reasons stated below we affirm the district court's dismissal of the complaint.
In 1966 the Town Board of East Hampton acting pursuant to Section 130 of the Town Law of New York State, N.Y. Town Law § 130 (McKinney's Consol.Laws c. 62, 1965), adopted an "Anti-Noise Ordinance." In June, 1971 the "private" defendants, the McCullys, complained to the East Hampton Police Department concerning noise emanating from the plaintiffs' "Surf and Sand." Defendant Jarrett, a police officer, entered the plaintiffs' premises at twelve midnight on June 14, 1971, and issued a summons to Reilly charging her with violating the "Anti-noise Ordinance." Later that day Jarrett returned to the "Surf and Sand" and allegedly used force and violence to take Beatrice Reilly into custody, and to bring her to the police station. On July 27, 1971 Beatrice Reilly was tried before and convicted by "public" defendant Frood, a justice of the peace and a non-lawyer. This conviction and the fine of $50 was affirmed by a state appellate court. Later that summer, another police officer, defendant Lyon, issued a summons to Judy Schenck, an employee of the plaintiffs, for violating the noise ordinance. In September, 1971 still another summons was issued to Beatrice Reilly for violating the same ordinance. Both of these cases are still pending in the state court.
During the summer of 1971, the McCullys petitioned the Town Board, composed of certain of the "public" defendants, to adopt a parking ordinance prohibiting the parking of cars on either side of the highway in front of the "Surf and Sand." Later in 1971 the Town Board adopted an amendment to the Town's parking regulation which prohibited parking on either or both sides of the same highway for some distance on either side of the "Surf and Sand."
In the final set of factual allegations plaintiffs contend that the defendant Police Chief Doyle ordered defendants Jarrett and Lyon, and other police officers, to inspect the "Surf and Sand" on a regular daily basis at or about 2:00 a.m. on the pretext of ascertaining whether alcoholic beverages were being sold. These defendants continued the inspections in spite of being advised prior to August, 1971 by the Suffolk County Alcoholic Beverage Control Board that under the plaintiffs' hotel liquor license customers were permitted to remain in the hotel lobby after 2:30 a.m. In addition, on December 3, 1971, officer Lyon acting pursuant to an order of Doyle entered the "Surf and Sand," wrongfully accused Beatrice Reilly of serving alcoholic beverages after hours, and physically took Beatrice Reilly into custody. Through the alleged use of force she was brought to the police station where she was forced to disrobe and was searched by a police matron, the defendant Katherine Babcock, and held overnight in an unheated cell. Although she alleges that she was not allowed to call counsel and was denied bail, counsel appeared that morning and she was released. Charges were lodged against her for resisting arrest. This misdemeanor charge is still pending.
Beatrice Reilly contends that these events were part of a scheme engineered by the "private" defendants, the McCullys, with the aid of the "public" defendants to deprive the plaintiffs of privileges and immunities secured by the Constitution. In the prayer for relief the plaintiffs seek the following: 1) convening of a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284; 2) declaratory and injunctive relief declaring invalid and enjoining the enforcement of: (a) the East Hampton Anti-Noise Ordinance; (b) Section 31 of the Town Law of New York State, N.Y. Town Law § 31 (McKinney, 1965), insofar as it permits justices of the peace to serve as members of the Town Board; (c) Section 20 of Article 6 of the state constitution, Section 31 of the Town Law, N.Y. Town Law § 31 (McKinney, 1965), and Section 105 of the Uniform Justice Court Act, Uniform Justice Court Act § 105 (McKinney, Supp. 1971-73), insofar as they allow non-law-yers to serve as judges in certain towns and villages; 3) a declaratory judgment that the Alcoholic Beverage Control Law of New York and the Rules and Regulations promulgated thereunder are not violated by the plaintiffs when the plaintiffs permit friends or guests to remain near the bar after 2:30 a.m.; 4) an injunction restraining the enforcement of these alcoholic control laws and regulations against the plaintiffs; and 5) equitable relief and money damages against all the defendants for conspiring to deprive plaintiffs of their federal constitutional and civil rights.
Except for the money damage claim for violation of plaintiffs' federally secured rights, the complaint asks a federal court to declare unconstitutional and to enjoin the enforcement and utilization of various local and state laws, and a state constitutional provision. The posture of this litigation makes such relief inappropriate at this juncture.
The convening of a three judge court to enjoin the enforcement of the "Anti-Noise Ordinance" is clearly unwarranted. The Supreme Court has held that "the term 'statute' in § 2281 does not encompass local ordinances or resolutions." Moody v. Flowers, 387 U.S. 97, 101, 87 S. Ct. 1544, 1548, 18 L. Ed. 2d 643 (1967). See also Board of Regents v. New Left Education Project, 404 U.S. 541, 543, 92 S. Ct. 652, 30 L. Ed. 2d 697 (1972). The noise pollution statute in the instant case is obviously a local ordinance, and a three-judge court is unnecessary to enjoin its enforcement.
The other statutes and the one state constitutional provision attacked in this action would come within the purview of § 2281. However, neither a three-judge court nor a single federal judge should at this point hear the dispute. This also applies to the demand that a single federal judge grant the plaintiffs' relief concerning the noise pollution statute.
Federal intervention would require the court to examine the constitutionality of a local criminal statute dealing with noise control, as well as the constitutionality of state laws permitting Beatrice Reilly to be tried before a justice of the peace who also sits on the Town Board and is not an attorney. A federal court may not assert jurisdiction over these issues at this time. Similarly, a federal constitutional attack on Beatrice Reilly's first conviction for violating the "Anti-noise Ordinance" may no longer be heard as judgment of that conviction has ...