Appeal from an order of the United States District Court for the Southern District of New York, Morris E. Lasker, Judge, of preliminary injunction against enforcement of Article 1, Title B, Chapter 32 of the Administrative Code of the City of New York. Affirmed.
Lumbard, Hays and Oakes, Circuit Judges. Hays, Circuit Judge (dissenting).
Defendants appeal from the grant by Judge Lasker below of a preliminary injunction proscribing the enforcement against plaintiff of Article 1 of Title B, Chapter 32 of the Administrative Code of the City of New York (article 1).*fn1 414 Theatre Corp. v. Murphy, 360 F. Supp. 34 (S.D.N.Y. 1973). Appellee brought its action below under 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3), alleging that article 1 is unconstitutional on its face and as applied to activity carried on by appellee, activity alleged to be protected by the first amendment. Appellee sought a declaratory judgment of unconstitutionality under 28 U.S.C. § 2201, as well as preliminary and permanent injunctive relief.
Appellee, the operator of an establishment containing coin-operated film machines, first applied to Judge Lasker for preliminary injunctive relief against the enforcement of article 1 in January of 1973. At that time, Judge Lasker "denied the application without prejudice to renewal in order to permit the matter to be litigated in the state courts." Id. at 35. He did so "in the spirit of Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971) and United States ex rel. Goodman v. Kehl, 456 F.2d 863 (2d Cir. 1972) with full awareness that denial was not mandated . . . since no criminal or civil cases involving 414 were pending in the state courts . . ." Id.
The issues being litigated in the state courts also concerned the constitutionality of article 1. This litigation arose in two contexts. Under § B32-21.0 of article 1, violations of the article are punishable criminally by a fine of up to $500 and imprisonment for not more than six months. The uncontradicted affidavit of appellee below (supported by the facts as found in a case decided by the New York City Criminal Court to be discussed below) indicates that the appellants initiated a series of criminal prosecutions under this section early in 1972, some five years after the introduction of coin-operated movies into New York City. Only then was the operation of these "peep shows" in various types of non-amusement businesses in the mid-Manhattan area, typically in paperback book stores, determined by appellants to be within the reach of the licensing provisions of article 1, five years after the Department of Licenses had already ruled that licenses were not required for such premises. See 1487 Amusement Corp. v. Redlich, 350 F. Supp. 822, 824 (S.D.N.Y. 1972).
On the civil side, appellants sought and obtained New York Supreme Court injunctions, the first being issued on July 3, 1972, against various peep show operators; the injunctions required the operators to obtain licenses within 30 days or rid themselves of their coin-operated film machines. Failure to comply would, of course, lead to these operators being held in contempt of court, in addition to the other criminal and civil sanctions to which they had been or could be subjected. It was apparently the litigation involving these injunctions, presenting as it did the opportunity for presentation and decision of the constitutionality of article 1, that caused Judge Lasker to stay his hand initially.
On February 26, 1973, the appeal from one injunction against peep show operators in the State Supreme Court was decided, City of New York v. S & H Book Shop, Inc., 41 App. Div. 2d 637, 341 N.Y.S. 2d 292 (1973), and resulted in reversal of the injunction. The Appellate Division avoided decision on constitutional grounds, finding instead that the City of New York had not demonstrated "a clear right to the drastic remedy of a temporary injunction . . . ." Id., 341 N.Y.S. 2d at 293. The Appellate Division indicated that a "clear" right had not been demonstrated apparently because of the lack of probability that the City would prevail on the merits of the action, stating that
On its face, § B32-1.0 of the New York City Administrative Code appears to vest unbridled discretion in the Commissioner to define and determine the standards for granting a license. There is thus presented, a serious question to the constitutionality of the licensing provision which plaintiffs seek to enforce . . . .
Id., 341 N.Y.S. 2d at 293.
After this decision was handed down, appellee reapplied to Judge Lasker for preliminary injunctive relief. In granting that relief by decision dated June 28, 1973, and order dated July 11, 1973, Judge Lasker stated his belief that "this application is now ripe for determination" since "the state courts have had ample opportunity to consider the question and have declined to do so." 360 F. Supp. at 36. This statement, viewed as a decision to proceed rather than abstain, was, we think, correct. The question of abstention is, of course, "entirely separate from the question of granting declaratory or injunctive relief." Lake Carriers' Association v. MacMullan, 406 U.S. 498, 509 n. 13, 32 L. Ed. 2d 257, 92 S. Ct. 1749 (1972). See Steffel v. Thompson, 415 U.S. 452, 474 n.21, 94 S. Ct. 1209, 39 L. Ed. 2d 505, 42 U.S.L.W. 4357, 4364 n. 21 (U.S. Mar. 19, 1974). Where the state court has deliberately avoided an interpretation of a statute which might save its constitutionality or moot the federal claim, the abstaining federal court may certainly reassert the jurisdiction it was retaining in order to reach the merits. Neither comity nor sound judicial administration require the abstaining federal court to wait indefinitely for state courts to determine the merits. See NAACP v. Gallion, 368 U.S. 16, 7 L. Ed. 2d 85, 82 S. Ct. 4 (1961).
On July 20, 1973, nine days after Judge Lasker entered the order granting the preliminary injunction against enforcement of article 1, the New York City Criminal Court handed down a decision in certain consolidated prosecutions previously brought for violations of article 1. People v. Mitchell, 74 Misc. 2d 1053, 346 N.Y.S. 2d 495 (N.Y.C. Cr. Ct. 1973). The Mitchell court, after hearing argument and adducing evidence respecting article 1 and its enforcement, dismissed the complaints by holding
that Sections B32-1.0 and B32-4.0 . . . are unconstitutional on their face in that they subject the exercise of freedoms protected by the First Amendment to the prior restraint of a license without narrow, objective and definite standards to guide the licensing authority.
Id. at 1060, 346 N.Y.S. 2d at 502 (emphasis added). The Mitchell decision, from a procedural standpoint, was apparently the result of a motion or motions under NYCPL § 170.30(1) (f). As such, that decision was appealable as a matter of right to the Appellate Division of the New York Supreme Court by the City under NYCPL § 460.10 (1)(a) & (c), which requires filing of a motion of appeal within 30 days. Remarkably, in view of the appellants' position before us, no appeal from this decision was ever ...