Plaintiff's claim for damages can be disposed of summarily. The doctrine of judicial immunity protects judges from liability for damages for acts committed within their judicial jurisdiction, and it is settled that such immunity applies to suits brought under the Civil Rights Act, 42 U.S.C.A. Section 1983. Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967). The only exception to such immunity is acts of a judge while hearing a case where "there is clearly no jurisdiction over the subject matter," as distinguished from acts which "are in excess of . . . [his] [jurisdiction.]" Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351-352, 20 L. Ed. 646 (1871).
The exception refers to cases over which it would be inherently impossible for a court to take jurisdiction, as, for example, a probate court with authority only over wills and the settlement of estates purporting to take jurisdiction of a criminal case. Id. at 352. As Judge Wickersham was at all times at issue here acting in the context of a case over which he was given express jurisdiction by the Pennsylvania obscenity statute, see 18 C.P.S.A. Section 5903(h), it is clear that he was at all such times acting within his judicial jurisdiction. Even his retention of jurisdiction after the case had been removed, in apparent contravention of 28 U.S.C.A. 1446 (e), was at worst an act in excess of his jurisdiction; the removal did not alter the fact that the subject matter of the case was initially within the jurisdiction of the state court. Accordingly, plaintiff's claim for damages against Judge Wickersham must be dismissed.
The damage claim against the District Attorney and the Deputy District Attorney must also be dismissed. Prosecuting attorneys enjoy the same immunity afforded members of the judiciary. Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966). A "state prosecuting attorney is immune from liability under the Civil Rights Act, unless his alleged actions are clearly outside the scope of his jurisdiction." Kauffman v. Moss, 420 F.2d 1270, 1272 (3d Cir. 1970). As the District Attorney and Deputy District Attorney were acting in a manner expressly provided for by the Pennsylvania obscenity statute when they initiated and litigated the injunctive proceedings in the state court, they were clearly acting within the scope of their jurisdiction and cannot be held liable to plaintiff in damages.
With respect to plaintiff's claim for injunctive and declaratory relief, we recognize at the outset that since plaintiff seeks relief under the Civil Rights Act, 42 U.S.C.A. Section 1983, this Court is not absolutely without power to enjoin the state court proceedings, as suits under the Civil Rights Act fall within one of the recognized exceptions to the Anti-Injunction Statute, 28 U.S.C.A. Section 2283. Mitchum v. Foster, 407 U.S. 225, 32 L. Ed. 2d 705, 92 S. Ct. 2151 (1972). Nevertheless, we must consider whether the doctrine elaborated in Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971) requires us to stay our hand in this case and dismiss plaintiff's claims for equitable relief. See Mitchum v. Foster, supra, at 243. Younger provided that federal courts may not stay or enjoin pending state criminal proceedings except under special circumstances. Its principle also applies to cases in which declaratory relief is sought. Samuels v. Mackell, 401 U.S. 66, 27 L. Ed. 2d 688, 91 S. Ct. 764 (1971). As the Court in Younger stated, "the normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions." Younger v. Harris, supra, 401 U.S. at 45. Plaintiff argues that the Younger doctrine does not mandate dismissal here, because (1) the Younger doctrine does not even apply to this case, as the pending state action with which we are asked to interfere is a civil proceeding, and Younger only applies to interference with pending criminal proceedings; and (2) in any event the facts of this case present the "special circumstances" which require a federal court to dispense with the general rule of non-interference.
A discussion of plaintiff's arguments follows.
Plaintiff's first contention presents a question that was not answered by the majority opinion in Younger v. Harris, supra, and was expressly left open by Justice Stewart's concurring opinion in that case, in which he stated, "we do not deal with the considerations that should govern a federal court when it is asked to intervene in state civil proceedings, where, for various reasons, the balance might be struck differently." Id., at 55. Nevertheless, even though we may not have the benefit of an express Supreme Court holding, which we would have were we being asked here to enjoin a pending state criminal prosecution,
we must agree with Justice Rehnquist that "[while] the test to be applied may be less stringent in civil cases than in criminal, . . . [it is] clear that the federal courts will not casually enjoin the conduct of pending state court proceedings of either type." Cousins v. Wigoda, 409 U.S. 1201, 1206, 34 L. Ed. 2d 15, 92 S. Ct. 2610 (1972) (Justice Rehnquist, in his role as Circuit Justice for the Seventh Circuit Court of Appeals, denying an application for a stay of an order entered by the Seventh Circuit Court of Appeals vacating an injunction entered by the district court against a pending civil proceeding.) The same principles of federalism that underlay the holding in Younger and prompted the Court in that case to state that "[what] the concept [of "Our Federalism"] does represent is a system . . . in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States," Younger v. Harris, supra, 401 U.S. at 44, caution us against applying the Younger doctrine according to any formalistic distinction between criminal and civil cases. In short, we agree with the court in Palaio v. McAuliffe, 466 F.2d 1230, 1232-1233 (5th Cir. 1972) that "application of the principles of Younger should not depend upon such labels as 'civil' or 'criminal,' but rather should be governed by analysis of the competing interests that each case presents."
Turning to the competing interests involved here, we note immediately that the facts present a case in which the Commonwealth's interest in the "prompt and unencumbered enforcement of its law" is paramount. Younger v. Harris, 401 U.S. 37, 55 n.2, 27 L. Ed. 2d 669, 91 S. Ct. 746 (concurring opinion of Justice Stewart). The state court action was commenced by state governmental officials charged by law with the duty of enforcing the state's criminal laws. At the time they moved for injunctive relief, those officials knew of facts which gave them reasonable grounds to believe that the competing owners of four bookstores in Dauphin County were engaged in a war of rivalry that threatened the lives and property of Dauphin County citizens. It is, of course, true that no bombings, arsons or murders occurred within the boundaries of Dauphin County. On the other hand, the plans to blow up the Collegeville store were formulated at the Highspire store in Dauphin County, and the 85 pounds of explosives to be used for the job were transported through that county. Two plots to commit murder were also formed in Dauphin County. Given the bizarre state of mind of the combatants, and the fact that they owned four bookstores in Dauphin County, it was more than reasonable for the prosecutors to conclude that it was only a matter of time before the fighting and violence spilled over into Dauphin County. The prosecutors presented testimony about this war of rivalry in the hearing before Judge Wickersham, as well as the materials purchased from the four bookstores in Dauphin County; and with that testimony and those materials before him, Judge Wickersham issued the injunction.
In light of these facts, it is clear that if we were to grant the equitable relief requested in this case, we would be interfering with the Commonwealth of Pennsylvania's justifiable and pressing interest in the uninterrupted enforcement of its laws. Moreover, we would be impeding, at least indirectly, the Commonwealth's interest in the enforcement of its criminal laws.
Accordingly, we conclude that, regardless what nomenclature may be used to describe the state injunctive procedure employed in this case, this is the kind of case in which we are constrained by the principles of comity and federalism to observe a hands-off policy.
Thus, in the absence of a showing of the kind of "bad faith, harassment, or other unusual circumstances that would call for equitable [relief,]" Younger v. Harris, 401 U.S. 37, 54, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1970), plaintiff's suit must be dismissed.
Plaintiff contends that this case indeed does present unusual circumstances which call for equitable relief. Specifically, plaintiff argues that two of Judge Wickersham's actions in this case constitute sufficient "bad faith" to warrant the granting of equitable relief by a federal court: (1) his decision to proceed with the hearing on the continuance of the preliminary injunction on April 29, 1974, even though he knew that the case had been effectively removed under 28 U.S.C.A. Section 1446 (e) and he had been informed that the same federal statute directs a state court to proceed no further once a case has been removed unless and until the case is remanded; and (2) his indefinite continuance of the preliminary injunction on May 29, 1974.
Upon careful consideration of both of Judge Wickersham's actions in the context of the other circumstances of the case, we conclude that those actions do not constitute the bad faith or harassment that would warrant a federal court's abandoning the normal policy of noninterference with a pending state proceeding. The kind of showing that must be made to justify such a departure is either "proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid [conviction.]" Perez v. Ledesma, 401 U.S. 82, 85, 27 L. Ed. 2d 701, 91 S. Ct. 674 (1970). The facts of this case do not amount to such a showing. Judge Wickersham's decision to proceed with the case in the face of an effective removal was at worst a procedural irregularity prompted by his reluctance to allow the ex parte preliminary injunction to expire automatically, which it would have done had he not proceeded with the hearing on April 29, 1974 (see Rule 1531 (d), Pa. R. Civ. Proc.); and it may have merely been caused by a misreading of the removal statute. In neither event was there the kind of bad faith or harassment that calls for federal court intervention in a case such as this. Cf. Dombrowski v. Pfister, 380 U.S. 479, 14 L. Ed. 2d 22, 85 S. Ct. 1116 (1965) and Shaw v. Garrison, 328 F. Supp. 390 (E.D. La. 1971), aff'd, 467 F.2d 113 (5th Cir.), cert. denied, 409 U.S. 1024, 34 L. Ed. 2d 317, 93 S. Ct. 467 (1972). Furthermore, no bad faith emerges from Judge Wickersham's indefinite continuance of the preliminary injunction on May 31. Such an action seems warranted by the absence of two of the four principal parties in the case, and, in any event, Classic never requested a final hearing pursuant to Rule 1531(f), Pa. R. Civ. P. In short, there is nothing in the facts of this case to dissuade us from concluding that there was no threat of injury to plaintiff's federally protected rights, including its rights under the First and Fourteenth Amendments which it seeks to have us vindicate, that could not have been relieved by its defense in the single proceeding before the state court. See Younger v. Harris, 401 U.S. 37, 46, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1970).
To summarize, plaintiff's claim for damages must be dismissed because of the doctrines of judicial and prosecutorial immunity. And, since the state action with which we are asked to interfere by way of injunctive or declaratory relief is a proceeding in which the Commonwealth of Pennsylvania's interest in the prompt and unencumbered enforcement of its laws is paramount, we must decline to grant such relief, as there has been no showing of unusual circumstances which would warrant our departure from the normal federal policy of nonintervention in such a case. Therefore, the defendants' motion to dismiss must be granted.
Max Rosenn, Circuit Judge
Michael H. Sheridan, Chief District Judge
William J. Nealon, District Judge
Dated: October 18, 1974
Now, this 18th day of October, 1974, in accordance with the memorandum this day filed, the defendants' motion is granted and the complaint is dismissed.
Max Rosenn, Circuit Judge
Michael H. Sheridan, Chief District Judge
William J. Nealon, District Judge