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Star Distributors v. Marino

decided: January 2, 1980.

STAR DISTRIBUTORS, LTD., BO-NA-TE DISTRIBUTORS, INC. AND MODEL MAGAZINE DISTRIBUTORS, INC., PLAINTIFFS-APPELLANTS,
v.
RALPH J. MARINO, INDIVIDUALLY AND AS CHAIRMAN, ABRAHAM BERNSTEIN AND ALBERT B. LEWIS, INDIVIDUALLY AND AS MEMBERS OF THE NEW YORK STATE SELECT LEGISLATIVE COMMITTEE ON CRIME, ITS CAUSES, CONTROL AND EFFECT ON SOCIETY, SIDNEY BAUMGARTEN, INDIVIDUALLY, AND AS ASSISTANT TO THE MAYOR OF THE CITY OF NEW YORK, ABRAHAM BEAME, INDIVIDUALLY AND AS MAYOR OF THE CITY OF NEW YORK, JEREMIAH T. WALSH, INDIVIDUALLY AND AS COMMISSIONER OF BUILDINGS OF THE CITY OF NEW YORK, CORNELIUS F. DENNIS, INDIVIDUALLY AND AS BOROUGH SUPERINTENDENT OF THE DEPARTMENT OF BUILDINGS OF THE CITY OF NEW YORK, DEFENDANTS-APPELLEES .



Appeal from an order of the District Court for the Southern District of New York entered on June 4, 1979, by Judge Lee P. Gagliardi, denying a preliminary injunction prohibiting enforcement of subpoenas duces tecum served by the New York State Select Committee on Crime upon appellants, which sought to compel witnesses to produce corporate records in connection with testimony relating to publication and distribution of materials portraying child pornography and involvement of organized crime in such operations. Affirmed on the ground that the appellees are immune from suit for injunctive relief under 42 U.S.C. § 1983.

Before Feinberg and Mansfield, Circuit Judges, and Mishler, Chief Judge.*fn*

Author: Mansfield

Plaintiffs appeal from the order of June 4, 1979, of the District Court for the Southern District of New York, Gagliardi, Judge, denying their motion for a preliminary injunction. They seek to restrain the members of the New York State Select Legislation Committee on Crime, Its Causes, Control and Effect on Society (Select Committee), as well as several local officials, from enforcing three subpoenas duces tecum ordering production of various corporate records at a Select Committee hearing. We affirm the denial of a preliminary injunction.

Appellants Star Distributors, Ltd. (Star), Bo-Na-Te Distributors, Inc. (Bo-Na-Te), and Model Magazine Distributors, Inc. (Model) are engaged in the printing, publication and distribution of sexually-oriented material. The Select Committee is composed of members of the New York State Legislature authorized to investigate the "entire subject of offensive and obscene publications, motion and still pictures . . . as well as every matter . . . relevant to organized crime and to make recommendations for remedial legislation." On October 24, 1977, the Select Committee issued subpoenas duces tecum ordering appellants to appear before them and to bring with them assorted corporate books, minutes, tax returns, retainer agreements, ledgers, leases and lists of vendors and vendees. The Committee does not propose to examine these records, but wants them brought to the hearing to avoid repeated adjournments if the witnesses need to consult the records in order to answer questions.

The subpoenas stated that the purpose of the hearing was

"to investigate and identify the existence of illicit establishments engaged in prostitution, obscenity, and other violations of law; to determine the involvement in such activities of organized criminal elements; to determine persons, firms, or corporations responsible for and/or profiteering from the establishment, promotion, and existence of such illicit enterprises; to determine its causes and its effects on legitimate commercial activity and to devise and recommend remedial legislation."

The investigation was focused on "child pornography," i. e., the exploitation and employment of juveniles in sexually-oriented materials, and infiltration of organized crime into the industry. The subpoena to Star arose out of information gathered by the Committee from two sources. First, an unnamed convicted child pornographer informed the Select Committee's counsel that Star had distributed his photographs of children engaged in deviant sexual activities. Second, the 1971 annual report of the New York State Commission of Investigation had stated:

"Star, a failing firm, received what amounted to a mysterious financial transfusion. Shortly thereafter, a partner identified with organized crime appeared on the scene. Star then greatly expanded its operations, even reaching out into the international scene. A main beneficiary of this expansion and the subsequent increased profits was organized crime." Thirteenth Annual Report, New York State Commission of Investigation 212 (1971).

Star and Bo-Na-Te share headquarters and management. The record does not disclose how Model is connected, beyond the statement in appellee's brief that the three are "linked together." The appellants deny their involvement in child pornography and organized crime.

Upon receipt of the subpoenas, appellants filed suit under 42 U.S.C. § 1983 alleging a violation of their First Amendment rights, seeking injunctive relief and damages. On June 4, 1979, Judge Gagliardi denied their motion for a preliminary injunction,*fn1 ruling that Model had not shown that the requested disclosure would inhibit its exercise of First Amendment rights, and therefore that they were not entitled to preliminary relief. While Star and Bo-Na-Te had made such a showing, the court held that the state had shown "a substantial relation between a compelling state interest and disclosure of the information sought," and therefore denied plaintiffs' motion. Plaintiffs now appeal this order. We affirm without reaching the merits.

Discussion

The threshold question is whether appellees are immune from this suit against them. Immunity may be invoked by legislators in a number of different types of cases, with different consequences. Here we are concerned only with immunity from federal civil lawsuits. A federal legislator may seek protection from such suits under the Speech or Debate Clause of the United States Constitution;*fn2 whereas state legislators invoke common law immunity.*fn3

Federal legislators acting within the scope of their legislative function are immune from both damage and injunction suits, Eastland v. United States Servicemen's Fund, 421 U.S. 491, 503, 95 S. Ct. 1813, 44 L. Ed. 2d 324 (1974); see Doe v. McMillan, 412 U.S. 306, 312, 93 S. Ct. 2018, 36 L. Ed. 2d 912 (1973); Dombrowski v. Eastland, 387 U.S. 82, 87 S. Ct. 1425, 18 L. Ed. 2d 577 (1967). State legislators (sued under § 1983) are similarly immune from damage suits, Tenney v. Brandhove, 341 U.S. 367, 71 S. Ct. 783, 95 L. Ed. 1019 (1951). The Supreme Court has not reached the question of whether State legislators are immune from § 1983 suits for Injunctive relief as well. The present case raises that issue, and we conclude that these suits should be treated no differently than (1) civil Damage actions against state legislators, and (2) civil injunction suits against Federal legislators, categories with which the Supreme Court has dealt.*fn4

Were this an action under § 1983 for damages rather than injunctive relief, the suit would clearly be precluded by legislative immunity. The Supreme Court has on several occasions held that "s 1983 is to be read in harmony with general principles of tort immunities."*fn5 Imbler v. Pachtman, 424 U.S. 409, 418, 96 S. Ct. 984, 989, 47 L. Ed. 2d 128 (1976). In Tenney v. Brandhove, 341 U.S. 367, 71 S. Ct. 783, 95 L. Ed. 1019 (1951), a suit for damages, the Court established that "the statute of 1871 (s 1983) does not create liability" ...


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