MTM, INC. v. BAXLEY

Transcript: 

Argument of Robert Eugene Smith

Chief Justice Warren E. Burger: We'll hear arguments next in 73-1119, MTM against Baxley.

Mr. Smith.

Mr. Robert Eugene Smith: Mr. Chief Justice and may it please the Court.

I think this case is a little different from the one you just heard.

In this case, there was an action brought by Mr. Jenkins who as an Assistant City Attorney in the City of Birmingham in Equity court seeking to permanently enjoin the maintenance of a nuisance at the Pussycat Adult Theater and a Bookstore.

The State of Alabama unlike the State of Ohio was proceeding under the Red Light Abatement Statute.

There was no provision for a one year closing.

There was no maximum or minimum set.

This was simply and purely going under the Red Light Abatement Statute.

The proof in this case was adduced by Mr. Jenkins was that, certain people who worked for the corporation had been convicted in the Recorder's Court which is the first level of court for violation of the obscenity laws of the City of the Birmingham.

They have a city ordinance for violation of obscenity laws.

There were approximately 15 cases which have been made most of which have been tried before the Recorder's Court.

All of which had been appealed at the -- or were in the process of being appealed.

Since that time, the only three cases with the appeal Your Honors goes to de novo to the next court -- Circuit Court and which there is a jury trial on issue of obscenity and parenthetically speaking the only three cases are going to trial all resulted in acquittals for the defendant.

But yet, it was this evidence of the violation of the -- alleged violation of the law before the Recorder's Court and instead of the other 12 that were still pending and have not yet been tried in the Circuit Court.

So, every -- what we have is the evidence of convictions that the lowest court when appeals were allowable in the next level with the Circuit Court.

That was the criminal process, what the prosecution or what Mr. Jenkins tried to do here was a civil proceeding and a purely civil proceeding which is not ipso facto or necessarily ancillary to the enforcement of the criminal laws because the criminal laws were proceeding and the rational is proceeding in the state court.

But what he did is attempt to go in and to close up the theater because yesterday they sold obscene books or films which they exhibited and tomorrow you may do so.

The --

Justice Byron R. White: Let's see, I gather that nuisance statutes are in Title 7 and the obscenity statutes are in Title 14 of the Abatement Code?

Mr. Robert Eugene Smith: Yes, sir.

It's entirely different and I --

Justice Byron R. White: What -- is there any provision which interconnects the two?

Mr. Robert Eugene Smith: No, sir and the State of Alabama has not interpreted its Red Light Abatement statute to include or exclude.

Justice Byron R. White: Now, why do you call it Red Light Abatement Controller?

Mr. Robert Eugene Smith: Because that's the term that it was given at the time, it was originally passed Your Honor.

It was designed to close beer house, saloons, pool halls and places of prostitution where you punish somebody for having gone, committed prostitution, they go back and open up again and open up again and open up again, you try to close that business.

Justice Byron R. White: It's a fairly old statute then, is it?

Mr. Robert Eugene Smith: Yes, sir.

Yes, sir.

Chief Justice Warren E. Burger: Will you sort out for me what is the relationship of MTM Incorporated and Mobile Bookmart?

It's undoubtedly in here but I --

Mr. Robert Eugene Smith: There is a new address.

It has a theater that is operated by one corporation.

There is bookstore in the lobby that is operated by another corporation much like these Gem Department Stores where there are at least sections in the store.

This is what we had at this particular location, two corporations, one location, one operating the theater and one operating the bookstore.

Justice William H. Rehnquist: Mr. Smith, did I understand you say a moment ago that it's the Alabama Supreme Court has never decided whether it's Red Light Abatement Statutes apply to the theater showing what this type of (Voice Overlap, would you?

Mr. Robert Eugene Smith: It never interpreted that question of whether or not their statute applies to theaters, adult theaters and adult bookstores.

Justice William H. Rehnquist: Did you raise that argument in the Circuit Court proceeding -- the equity proceeding?

Mr. Robert Eugene Smith: We -- in the equity proceeding, yes sir.

That was raised but the judge issued a temporary restraining order that is all that is involved.

Here is the temporary restraining order which we have placed at the beginning of the appendix in this case, order upon prayer for temporary injunction.

Now, incidentally Your Honors --

Justice William H. Rehnquist: Now wait a minute, you say order upon prayer for temporary injunction.

My understanding with temporary restraining order is something that issued ex parte without notice --

Mr. Robert Eugene Smith: Yes, Your Honor that's true.

Justice William H. Rehnquist: If you -- is this a temp -- what I would call a temporary injunction either affidavits or some testimony but at least with after notice and hearing.

Mr. Robert Eugene Smith: This was notice and hearing.

Yes sir, much like our -- I think Rule 45 of the Federal Rules of Civil Procedure kind of thing where an attempt is made to notify the other people.

Now, in the -- what counsel then did on behalf of MTM and the other plaintiff is to file an action in federal court prior to the issuance of the temporary restraining order and which it asked for the convocation of three-judge court to determine constitutionality of the utilization of the Red Light Statute either as written or as applied by the prosecutor in this particular case.

The -- there was a co-defendant, I'm sorry -- a co-plaintiff separate case entirely different by the name of General Corporation which had faced the same problem and I think some Huntsville, Alabama and in that case, they also were closed by court order and the three-judge federal court joined both cases for the purpose of argument and disposition.

And thus, the decision in essence applies to both sets of cases.

Again, parenthetically speaking we proceeded remaining the MTM and the other corporation operating the theater and bookstore preceded by following a jurisdictional statement and sought to seek the relief for this Court from the denial of the injunction.

The other corporation -- General Corporation decided to go forward in the state courts after the three-judge court threw them out.

When they did so in spite of the comment by Judge Pointer in his decision that there is a procedure in Alabama where you can sort of expedite your -- that's on page A-99 of the appendix.

He said that in Alabama permanent injunctions are appealable and temporary injunctions may be made appealable by appropriate motions and both types of appeals are given expedited preferential treatment by statute.

Now, let me tell you about the preferential treatment by statute --

Justice William J. Brennan: Where do you say this is?

Mr. Robert Eugene Smith: That's on A-99 and A-100 Your Honor of the appendix of appellants.

I'm quoting from Judge Pointer's ruling.

Justice William J. Brennan: That's at the bottom, yes.

Mr. Robert Eugene Smith: Yes, sir and the -- what I said in to the Court is that the co-plaintiff General Corporation thereafter appeal to the Alabama Supreme Court.

Justice William J. Brennan: Now, let's see.

This is from the same judgment that you brought directly here.

Mr. Robert Eugene Smith: Yes, sir.

Justice William J. Brennan: Right.

Mr. Robert Eugene Smith: This -- it was a co-plaintiff in the same case.

It was not an appeal from the same judgment.

Justice William H. Rehnquist: General --

Mr. Robert Eugene Smith: That was in Huntsville.

Pardon me.

Huntsville.

Justice William J. Brennan: Well, let me see in the District Court?

Mr. Robert Eugene Smith: In the District Court.

Justice William J. Brennan: That we combined the Huntsville case and your case?

Mr. Robert Eugene Smith: Yes, sir.

Justice William J. Brennan: Separate judgments entered in each?

Mr. Robert Eugene Smith: Yes, that's correct.

Justice William J. Brennan: And you brought your judgment here?

Mr. Robert Eugene Smith: Yes, sir.

Justice William J. Brennan: And Huntsville did what?

Mr. Robert Eugene Smith: After the three-judge court denied the injunction, they then entered an appeal in the Supreme Court of the State of Alabama.

Justice William J. Brennan: Alright.

From the closing?

Mr. Robert Eugene Smith: Closing in Huntsville.

Justice William J. Brennan: And the closing was sought to a temporary or permanent injunction?

Mr. Robert Eugene Smith: Permanent injunction there sir. (Voice Overlap)

Justice Byron R. White: And argue in the appeal?

Mr. Robert Eugene Smith: No sir, we did not.

Justice Byron R. White: The time expired?

Mr. Robert Eugene Smith: There is no -- we suggest there is no appeal for a temporary injunction in the State of Alabama there is a -- you can file a separate motion to dissolve which is a separate proceeding but Your Honors we had filed our federal suit prior to that temporary injunction.

Justice Byron R. White: And thus, what happened to the Huntsville?

Mr. Robert Eugene Smith: Alright, --

Justice Byron R. White: He -- he did take an appeal directly from whatever this injunction was temporary.

Mr. Robert Eugene Smith: After the three-judge court said, we deny the injunction.

He then appealed to the Supreme Court for the State of Alabama and Your Honors that appeal was argued October 15, 1974 and there is no and has been no disposition --

Justice Byron R. White: What is dismissed anyway?

Mr. Robert Eugene Smith: The appeal was not dismissed, there was the appeal brought by general from a final order in their case --

Justice Byron R. White: From a permanent injunction?

Mr. Robert Eugene Smith: Yes, sir.

Justice Byron R. White: Not a temporary injunction?

Mr. Robert Eugene Smith: That's correct.

But what I'm pointing out is that although Judge Pointer says that these things can be given expedited preferential treatment by statute.

The truth of the matter is that case still has not been decided.

Justice William H. Rehnquist: Well, yours is being argued December 10, 1974 and it hasn't been decided.

Mr. Robert Eugene Smith: But I'm always saying sir that one of the reasons why the court said, “Well, maybe we ought not deal with this question.”

It's because there is a basis where you can go for an appeal that is expedited in preferential and I'm saying that although that may be true in theory is not true in fact.

Justice William H. Rehnquist: Could it be that the Supreme Court (Voice Overlap)?

Justice Byron R. White: Well, it may not be fact but they exist.

I mean the state -- there is a state to tell a process that is in working order?

Mr. Robert Eugene Smith: Yes, sir and that --

Justice Thurgood Marshall: And could it be there waiting for us to decide in this case?

Mr. Robert Eugene Smith: It could be Your Honor but I say that October 15th was the day of the argument and that's October 1974 and this decision by Judge Pointer was October 1973.

So, it took a full year after which to give it that expedited preferential treatment is what I'm talking about.

Justice Byron R. White: I think if you'd be hearing the same argument if that started the criminal case against your point?

Mr. Robert Eugene Smith: No, sir.

I think we have a different prospect here.

Justice Byron R. White: Well, different prospect but it would be just as slow in the state court process?

Mr. Robert Eugene Smith: Yes, but then we have the Younger versus Harris problem.

It will be (Voice Overlap).

Justice Byron R. White: Well, I know but let's assume the three-judge court is quite right as to the applicability of Younger here.

Mr. Robert Eugene Smith: Well, I just happen to think they're not.

Justice Byron R. White: Well, I hope but if they were you're in trouble I take it.

Mr. Robert Eugene Smith: Yes, sir.

Justice Byron R. White: Well, that's the issue we've got to decide it.

Mr. Robert Eugene Smith: We're not in trouble sir because we still have the permanent injunction which is not yet been heard.

Justice Byron R. White: But is it the only question we have here, the Younger issue?

Mr. Robert Eugene Smith: We think that that's the primary question, Your Honor.

Justice Byron R. White: The primary, I'm looking at the jurisdictional statement that's the only question (Voice Overlap).

Is that right?

And aren't we bound or we rarely disagree with the lower federal courts on their characterization of a state statute and here the three-judge court said this states statute is aimed, it's a quasi-criminal and it's in the service of the criminal law.

That's what it said anyway, is that it?

Mr. Robert Eugene Smith: That's what they said, yes sir.

However, the Court would disagree that it's quasi-criminal because this unlike the --

Justice Byron R. White: You may but don't we usually give great difference to the lower federal courts to their view of the state law?

Mr. Robert Eugene Smith: I think it was the view that they placed on it Your Honor because they took the Fifth Circuit decision of Palaio versus McAuliffe and I think they misapplied that particular case because if the court will look at that case.

What occurred there is there were independent seizures and aid of the criminal process which was the first step in making a criminal case to have a trial -- a criminal trial and counsel in that case rushed in the federal court and said this was improper and sought to seek the aid of the federal court.

Judge Edenfield denied that aid because he said, this is part of the criminal process, you can vindicate your right ultimately in the criminal process.

We cannot vindicate our right in a criminal process and I think that the Fifth Circuit case is not applicable to, I say, its good law.

But it is not applicable to this situation because the criminal process is going on independent Your Honors of what is attempted here in this particular case.

This Court has said that in even in a criminal case in Younger -- in Mitchum versus Foster referring towards Younger versus Harris doctrine.

It talks about the fact that even if in criminal case the court purely clear left room for federal injunctive intervention in a pending state court prosecution and certain exceptional circumstances where reputable injury is both great and immediate and where the state law has flagrantly and patently violative expressed constitutional provision or where there's a showing of bad faith, harassment, or other unusual circumstances that we call for equitable relief.

Justice Byron R. White: Well, that's only an argument isn't it Mr. Smith that even if in a relation as the three-judge court found that the statutes is what the three--judge court said it was as a matter of state law.

You say you still within the exception?

Mr. Robert Eugene Smith: Yes sir, that is correct.

Justice Potter Stewart: Mr. Smith, I hesitate to further complicate but seems to become rather a prolix argument here but are you familiar with the probably not with the decision of this Court announced this morning, Gonzalez?

Mr. Robert Eugene Smith: I had a brief moment to review it.

I know that the Court --

Justice Potter Stewart: That case of course cast a substantial doubt upon whether or not this appeal is properly here at all because this decision by the three-judge court was not a decision on the constitutional merits, was it?

Mr. Robert Eugene Smith: No sir, it was not.

Justice Potter Stewart: It's a decision to dismiss because of its understanding of a Fifth Circuit law, the law Younger against Harris?

Mr. Robert Eugene Smith: Right, but they did not say we do not have standing to be before the Court in that case.

In fact, --

Justice Potter Stewart: I beg your pardon?

Mr. Robert Eugene Smith: They did not raise -- say that we had no standing to be before the Court in that case that we had not raised substantial question. (Voice Overlap)

Justice Potter Stewart: Well, I -- I'm sure you're not -- I wouldn't possibly expect you to be familiar with the opinion announced this morning.

But the opinion at least raises questions of -- and suggest doubts as to whether or not the case like yours is of directly appealable to this Court whether it should go to the Court of Appeals since it was a decision -- an action dismissing your prayer for an injunction by the three-judge court on grounds short of a resolution of the constitutional issues that you raised.

Mr. Robert Eugene Smith: Yes, sir.

The Court did say and I point at A-100 of the appendix that there is a question as to whether the Alabama nuisance statute here in question are “flagrantly and patently violative of express constitutional prohibitions.”

In this particular concept, they go on to say it may be possible the Alabama Supreme Court might construe these statutes as in applicable.

So, they expressed no opinion on the particular merits to this particular case.

So, we say Your Honors that under the decision of Zwickler versus Koota authored by Mr. Justice Brennan.

We chose the forum of the federal courts.

We did so because there was no order against us at that time so to speak and this was a -- we think a purely civil case putting the title on quasi-criminal.

I think it's a misapplication of the decision of the Fifth Circuit in Palaio versus McAuliffe and we feel that even if the court agreed with the determination interpreting a statute is being quasi-criminal, we think that we still have demonstrated the extra ordinary circumstances and that is to say that the total closing and succession.

And the point is you can operate anything, I mean you can put in -- if you put in carnal knowledge and the Judge Barbour felt that carnal knowledge might have offended the law prior to this Court's decision in June.

He could've held the employees and contempt and put them in jail immediately for civil contempt because they had shown the movie which he later thought might possibly be obscene.

And the theaters have been closed from May 1973 to the present time.

Justice William H. Rehnquist: Was -- Mr. Smith, with the time sequence in this case that first, Mr. Jenkins filed his action in the equity court?

Mr. Robert Eugene Smith: Yes, sir.

Justice William H. Rehnquist: Then you filed your action three-judge District Court then the equity court issued with the temporary injunction?

Mr. Robert Eugene Smith: Yes sir, that's correct.

And of course we -- when we participated -- counsel participated in the proceedings before Judge Barbour, he did so in citing of course England versus Board of Medical Examiners where there because we have to be.

We -- we do not wish to abandon the jurisdiction of the federal court that we're trying to acquire and try to promote our cause that way.

Justice Potter Stewart: Have you filed a protective appeal in this case to the Court of Appeals?

Mr. Robert Eugene Smith: There is no need to sir.

Justice Potter Stewart: Well, that's a very open question as I suggest it to you.

Mr. Robert Eugene Smith: I pretend because we have a temporary restrain injunction.

There is no appeal from the temporary injunction.

We must do something affirmative that is to say file a motion to (Voice Overlap).

Justice Potter Stewart: You have a dismissal of your prayer for an injunction is what you have in the three-judge District Court.

And have you filed a protective appeal from that to the Court of Appeals for your Circuit?

Mr. Robert Eugene Smith: Yes, sir.

Justice Potter Stewart: Thank you.

Justice Byron R. White: Have you moved to dissolve the state court injunction?

Mr. Robert Eugene Smith: No sir, we took the position that under England versus Board of Medical Examiners if we took that affirmative action we might very well be then usurp it at the jurisdiction of the federal court.

And thus, we can't very well take the affirmative action in citing England versus Board of Medical Examiners at the same time in order to go for with them.

So, we did not for that reason, sir.

Justice Byron R. White: So, you took no action to dissolve a temporary injunction?

Mr. Robert Eugene Smith: No, sir.

Chief Justice Warren E. Burger: Mr. Smith, it is not likely that we'll finish this case today if you wish you may file any comments or observations you have about the applicability of the Gonzalez case to this case tomorrow morning.

Mr. Robert Eugene Smith: Yes, sir.

Chief Justice Warren E. Burger: But you won't be confined with that.

Would three or four days be enough if you can't do it tonight?

Mr. Robert Eugene Smith: Yes, I would appreciate that.

Chief Justice Warren E. Burger: It's not a long opinion but you can file it either in the morning or --

Mr. Robert Eugene Smith: I'd like to have till Friday, if the Court please.

Chief Justice Warren E. Burger: Very well.

Mr. Robert Eugene Smith: Thank you.

Chief Justice Warren E. Burger: Mr. Jenkins.

Argument of Herbert Jenkins, Jr.

Mr. Herbert Jenkins, Jr.: Mr. Chief Justice Burger and may it please the Court.

There have been several comments made in Mr. Smith's presentation that are misrepresentative of the procedures that occurred in this case.

I don't know where it -- I don't believe they are intentional but for one thing, first thing they did out file the injunction procedure in the Circuit Court on March the 7th and set up the hearing for March 13th and gave them notice of it.

In the next day or the morning of the hearing, their local counsel was in the federal courts securing a -- filing a removal petition and he came to the hearing and with the bond order-- the removal order and present it to the circuit judge who for some reason I forgot to take in the county wouldn't accept it but I had to go back to the court and get that perfected.

In the meantime, he said that we're going to have a hearing and we have the hearing and while he was over that getting a thing removed and so they did remove and I filed a motion to remand immediately.

And we had a hearing on that and got the case remanded to the Circuit Court and proceeded to set another hearing that we were going to have.

And in the meantime they filed this present action.

It involved -- there was already a pending another case as he talked about that is on appeal and it was argued at the Alabama Supreme Court which was separate from this case the City of Huntsville case.

And they had already been filed another case by Earl Morgan, the District Attorney of Jefferson County in a separate case which involved the Mobile Bookmart which is a store -- bookstore located downtown across the street from the federal building.

This theater that I filed an injunction against is located in eastern section City of Birmingham and contains in the front of little bookstore in addition to the theater and that's operated by MTM Incorporated.

This whole title of the case got switched around, the other party -- the Huntsville case did not appeal from the three-judge court order in this case electing to go ahead and perfect their appeal in the state court.

In this case was appealed Mr. -- Attorney General Baxley was named because he is required to have notice in this type of actions and Earl Morgan was named because he is the party from those relations in this case was filed on behalf of the bookstore downtown.

In that case, there was a motion to -- they removed that case also for the federal court and there was a motion filed to remand in that case which was never ruled upon because this hearing -- this case was filed in a consolidated and immediately all three of these cases.

And on the basis of this jurisdictional question of whether or not the federal court could intervene in the matter and set it down for hearing in due course.

Now, it's very complicated, the record is not here before the Court as to what exactly happened and of course, I guess they consider this particular narrow question of whether the Younger versus Harris principle applied in this particular case.

It wouldn't be necessary but in order that this Court might consider this principle of Younger versus Harris whether or not it involves the criminal prosecution.

I would like to state that the -- in my complaint, he made a statement that there were some 15 cases.

But on the contrary, we began this matter when the theater opened in September of 1970 and it went to March of 1973 when the injunction in this Circuit Court was issued and up to that time they showed something like a 125 to 130 movies.

And which everyone was named in my complaint before the Circuit Court and it was made in exhibit to their complaint in the federal court and started per date except for about two months when the newspapers refused to take advertisements.

But in disperse out of the internet time over 125 or 130-week period we made 30 cases.

Some was kept a few weeks but they were in dispersed between the whole period of time of 130 cases.

Some might they may go five weeks and some a month but we did get a good sampling of them.

Amd some of the titles were -- the Ranch and Interstellar, Sex and Single Vampire, Jim and Peg, The Other of the Bed, Class of '69, Dollars of Satan, Miles Falls in love, Harvey Swings, Bitter Cherry, Flash to Flash, I'll do Everything, Lolita's Lollipop, Man Blower, Sandra Bowler, Lowly Housewife, and so on and including the ones 30 cases we have.

Now, those 30 cases there were 30 convictions in Recorder's Court.

All of which were appealed to Circuit Court to the criminal division for trial de novo.

Now, of those 30, there are 18 cases that were tried and they were reconviction in every case.

There are some -- the rest of them are still pending except for three cases that he mentioned which did result in acquittal of the defendant just recently which of course I could explain to the Court but it's a the jury returned one verdict in case said it -- they were reluctant in and found them not guilty because of the Rulings of the Supreme Court of the United States.

In other words, that they didn't think our pre-Miller ordinance had defined that the man to the defendant exactly what he could and could not do or this best fits the matter.

But anyway the matter came on to be heard before the three-judge District Court and on the face of -- Bill filed in the District Court showed that this was a criminal matter that was filed in accordance with the state statute that's been mentioned which is in Title 7.

And it does has a different section and then I think Mr. Clansey read it and it require -- excuse me – it says, the nuisance established in the criminal action of the proceedings under this article in case the existence of such nuisance is established in a criminal proceeding in the court not having an equitable jurisdiction.

The solicitor or prosecuting officer shall proceed promptly under this article to enforce the provisions and penalties thereof and the findings of the defendant guilty in such criminal proceedings unless reverse are set aside shall be conclusive as against the defendant as to the existence of the nuisance and so forth.

Justice William J. Brennan: But it says I gather a separate equitable proceeding in that circumstance, does it?

Mr. Herbert Jenkins, Jr.: Sir?

Justice William J. Brennan: Does it take a separate equitable proceeding to get the injunction?

Mr. Herbert Jenkins, Jr.: It just says in a --

Justice William J. Brennan: And how about -- what's your Alabama facts?

Mr. Herbert Jenkins, Jr.: Yes, you do -- you have to go into the equity court after you have the convictions.

Justice William J. Brennan: Your Alabama judicial structure has a separate equity court, does it?

Mr. Herbert Jenkins, Jr.: Yes, sir.

Well, since July of 1973 we've adopted the Civil Rules of Practice which are similar to the federal and now they've done away with it but we still have (Voice Overlap).

Justice William J. Brennan: (Voice Overlap)-- put on its equity, doesn't it?

Mr. Herbert Jenkins, Jr.: That's right.

Justice William J. Brennan: Yes.

Mr. Herbert Jenkins, Jr.: But we still keep it divided, the equity judge is still lay and they still handle the automatic to refer him to the equity division anyway.

Justice William J. Brennan: So in any event, the statute contemplates a separate independent equitable proceeding even in the circumstances of the conviction?

Mr. Herbert Jenkins, Jr.: That's right.

Even after we had these 30 convictions that contemplates a separate action.

Justice William H. Rehnquist: Can the equity court or the chancellor take some sort of notice or is there some sort of res judicata effect, do I gather from your reading of that language as a result of the criminal conviction?

Mr. Herbert Jenkins, Jr.: Well, I play it safe, I introduced certified copies of the convictions are both and Recorder's Court and those that we had convictions in the Circuit Court.

And in addition, I have to Recorder's Court judge and the Circuit Court judge who heard all those cases testify.

Justice William H. Rehnquist: Were they admitted in the equity proceeding?

Mr. Herbert Jenkins, Jr.: They were admitted and there were evidence and proof of the convictions as previously mentioned.

Whereupon the judge issued a temporary injunction not a temporary restraining orders as Mr. Smith mentioned.

In the Title 7 in the other provisions of appeal from those types of injunction provides that within 10 days of the issuance of such an order, an appeal may be taken to the State Supreme Court.

And there is accelerated procedure for filing the transcript in the briefs.

This proceed -- this appeal was not taken as I stated this suit was filed in the federal court in the interim and so no appeal was taken from that order.

Then upon my having applied for a permit to injunction they wanted to wait the decision of this case and by agreement we continued and it's still being continued pending the outcome of this matter but he is still entitled to permanent -- on hearing on a permanent injunction.

And incidentally, after six months if no one does push for final hearing on ordinary circumstances the temporary injunction will expire.

But that was my agreement have continued also.

Justice William H. Rehnquist: But it takes a stipulation of the parties to the injunctive action in order to continue the permanent injunction beyond six months?

Mr. Herbert Jenkins, Jr.: Yes, sir.

Justice William H. Rehnquist: And that there was such a stipulation here?

Mr. Herbert Jenkins, Jr.: Yes, sir, because of the appendices of this litigation.

Justice Byron R. White: And not to the temporary injunction?

Mr. Herbert Jenkins, Jr.: No, sir, they loss that because they only had 10 days and they did not take advantage of it.

Justice William H. Rehnquist: I thought your 10 days to appeal the temporary injunction but that it will expire of its own force without any appeal in six month unless that was stipulated that be continued (Voice Overlap) --

Mr. Herbert Jenkins, Jr.: A temporary restraining order which was not issued in this case would've been issued to ex parte.

This was not issue, this temporary injunction was issued after a hearing and based on their filed complaint which they bypass by skipping in order to go to the court to get --

Justice William H. Rehnquist: What's the six months time that you --

Mr. Herbert Jenkins, Jr.: Well, after the temporary injunction is issued and there is no appeal taken from it within 10 days which is provided by the statute then after six months if the either party hasn't attempted to set it down for a final hearing on the question whether the injunction should be made permanent which is permanent until such a final hearing, then it automatically expires if no attempt is made to had it set down for a final hearing.

So it would not be in effect after six months.

So, in the District Court, three-judge court was appointed and the matter was taken under advice on us to Younger versus Harris principle is being applicable.

And we argued in brief that it was a quasi-criminal matter that it was in aid of the criminal statute -- the nuisance statute that I have mentioned under which it was proceeded on the procedure, it was instituted.

And the three-judge court ruled that it was on the basis of several things.

They talked about Mitchum versus Foster and said that they required irreparable injury or unusual circumstances which didn't exist in this case and they stated that in the order, that's in the appendix that he referred to previously.

And stated in fact that this case did not involve and I think it surmise it to the ordinary circumstance in here in this particular type of proceeding, that's the nuisance that is going to involve loss of profit and those things.

But the court deemed this to be an action in the nature of a criminal proceeding.

Of course the ruling that are residing for several Fifth Circuit case is mainly the one of Duke versus Texas, 477 F.2d and which the Fifth Circuit told that court that applications of the principles of Supreme Court as Younger versus Harris decision involved in the matter of the federal court enjoining a state court proceeding should not depend upon such labels or civil or criminal but rather it should be governed by analysis of the competing interest that each case presents.

And so, that is that the Younger principles of equity come in federalism applied to federal intervention in state civil as well as criminal proceedings even where they exercise the First Amendment rights is involved.

So, the question that has been raised here several times this afternoon on regarding the application of the Younger versus Harris.

I think it's pretty well covered in the order by the Fifth Circuit and in those cases cited and I adopt that argument and I supported and I think that the facts of this case indicate that if we don't have some kind of a stop to people running to the federal court in this particular instances that we're in a fact being precluded from stopping any kind of pornography because as indicated.

They showed this films over two-and-a-half year period and we undertook as much prosecution as we could and they wanted us to resort to individual prosecutions in each case where obscenity occurred which we did and it's voluminous, it's tedious, it's weary and it's exasperating --

Justice Byron R. White: And unpleasant.

Mr. Herbert Jenkins, Jr.: And unpleasant and you cannot stop pornography that way.

And if it is against the law as this Court says over and over again then I think the -- there is some equity and comity and federalism in upholding this Court's decision in this case.

This case was taken in institute in the name of the State of Alabama or my relation in my case known in relation to Earl Morgan and the other case and I think the Court overlooked my argument and that in regard to the fact the I think it's an action against the State of Alabama in one which would fit under then reasoning of Larson versus Domestic in Foreign Commerce Corporation Case 6 and in that Supreme Court 1457.

In that, I did not act ultra vires, I had the authority to do what I did.

Its -- Its fact, it says that I shall do it.

One of the reasons we didn't do it sooner it was because of this case has came up before Miller and some were afraid at that time that this Court not render the opinion making pornography legal for consenting adults.

They operate this theater within those that limit that is advertised for adults only.

And another -- and also that if it's unconstitutionality that our questioning in such an action they must state that they have illegal right, illegal protective right which is being denied by the state.

In this case, if the pornography is illegal, as I believe it is, then the ordinance that the statute has been held in 80 Drive-In Theatres versus Baxley and the state case that I cited in to go holding that this -- by the State of Alabama that this is quasi-criminal matter.

Then, it's not an unconstitutional statute, it's merely one that they claimed and may have been but applied unconstitutional.

And also, in attempt to avoid the state form from deciding the issue.

So, if this is a state matter, the state is not a person under Section 1983 and they would have to jump those two hurdles to get out from under that.

So I think that we're not really a proper part anyway and that we should been dismissed even on that ground, but the Kenosha versus Bruno case held was municipality case but it did hold that in this equity relief, our damages would be applicable to state or subdivision, I mean to municipality and I think that that also includes the state county or municipality or the reason it would.

And so, the equity relief that they're seeking even though they are not seeking damages would be improper against the State of Alabama.

So, the Gibson versus Berryhill case --

Justice Byron R. White: Do you want us to overrule ex parte Young?

Mr. Herbert Jenkins, Jr.: Ex parte, sir?

Justice Byron R. White: Young?

Mr. Herbert Jenkins, Jr.: No, sir.

I don't know ex parte you're speaking.

I'm not speaking about the Younger versus Harris.

I'm not sure I'm familiar with the ex parte Young.

Justice Byron R. White: But in your argument you might not be.

Mr. Herbert Jenkins, Jr.: And I -- I read, I just merely -- I alternate is an alternative to some extent to show that I think that of course I realize that state officials can be sued but I was trying to say that it was -- well, action against the state and not myself and that should -- could be consideration.

But the title of that Act is not a Red Light Act someone had mentioned.

I did want to clarify that it's a -- the title of it is Abatement of Certain Nuisances.

They defined the nuisance as a place upon which as defined above upon which lewdness, assignation or prostitution is conducted, permitted, or continued, or exists.

So it's not just that and definition of lewdness has been held to be, it's none as I believe with the obscenity and it's the word broader than assignation and prostitution, and involves open in public indecency and includes I think obscenity.

So, I think its action was properly brought and is a quasi-criminal matter and the principles of Younger versus Harris do applied to it.

Chief Justice Warren E. Burger: Thank you Mr. Smith.

We'll try to finish tonight in spite of what I said, you got about eight minutes left.

Rebuttal of Robert Eugene Smith

Mr. Robert Eugene Smith: Alright sir, thank you.

I'll only take about three.

The counsel referred to the decision of 80 Drive-in, Inc. versus Baxley, this was the decision of the Fifth Circuit Court of Appeals.

It's in the brief 468, F.2d 611.

In that case, the federal court -- Fifth Circuit held that the state has a right to use its nuisance law -- public nuisance law and a manner to where here there was drive-in theater, it was showing X-rated films, there were traffic problems being created and in that specific instance much like I think the case crime in Rabe from the State of Washington, Rabe versus Washington where Mr. Chief Justice Burger, I think pointed out that that could be a special problem that might be resolved by nuisance actions.

That is not involved here.

We have theater it's closed.

Chief Justice Warren E. Burger: The country wasn't confined to the traffic aspect?

Mr. Robert Eugene Smith: I know sir, there're young people going by and of course the same thing would be necessary true here.

So, I don't think that this decision of 80 Drive-in Inc. versus Baxley and I was referring to the Court's concurring opinion and there where you talked I believe about the fact that this could be dealt and might be dealt with this nuisance and I think that's what that decision holds for and I don't think it's applicable to the case here at bar.

Secondly, I understand from Mr. -- from counsel that there has been no stipulation entered into by the parties that the judge on his motion Judge Barbour on his motion has continued the hearing or any permanent injunction.

We are not going to ask for it unless we be usurp from our federal court jurisdiction and I suppose the prosecution is not asked for.

And we suggest in final conclusion that the Court dismissed our case and we feel that if they felt that the State Supreme Court should rule on the matter abstention and they abstained then they should've retained jurisdiction under the theory of law but this Court has espoused including more recently American Trial Lawyers Association versus the New Jersey Supreme Court.

We think the Court erred absolutely flat out dismissing the case and should have retained jurisdiction.

Justice William H. Rehnquist: Well, doesn't -- doesn't England type of abstention for a state law question mean retention of jurisdiction but Younger versus Harris has meant dismissal, hasn't it?

Mr. Robert Eugene Smith: Yes, but if the Court if you will remember the opinion of the judge they suggested and it was a mixed bag that in this instance we have not gotten to a Younger versus Harris problem but we hadn't got into the special circumstances there because the state court could construe the statute in a manner which would take the federal constitutional question out of it.

And if it did that, then the special circumstances in Younger v. Harris are not present.

So, that's why I'm saying it is relevant and that's the point I was making that I felt that under those circumstances then this is not -- they were not deciding it on pure Younger grounds and I think under this circumstance, they should retain jurisdiction even if not dismissed.

Thank you, Your Honors, and may have the Friday then to respond to the Court's latest decision?

Chief Justice Warren E. Burger: Yes, that will be on Friday.

Mr. Robert Eugene Smith: Thank you, Your Honor.