Following oral argument in this Court of this appeal from an
order of a three-judge District Court declining, on the basis of
Younger v. Harris, 401 U. S. 37, to
intervene in a state proceeding to enjoin operation of appellants'
bookstore on the ground that it was violating a "public nuisance"
statute by selling obscene materials, the statute was held
unconstitutional by the Georgia Supreme Court as applied in a
similar case,
Sanders v. State, 231 Ga. 608,
203 S.E.2d
153. Since appellants may secure a dismissal of the state
proceeding against them on the basis of
Sanders, thus
precluding any irreparable injury, without which federal injunctive
relief would be barred, the judgment below should be reconsidered
in the light of the
Sanders decision.
356 F.
Supp. 1101, vacated and remanded.
PER CURIAM.
This is an appeal from a decision of a three-judge District
Court (356 F.Supp. 1101) declining to intervene in a pending state
civil proceeding and holding that such intervention was barred by
our decision in
Younger v. Harris, 401 U. S.
37. The state proceeding, brought against appellants by
the Solicitor General of Fulton County, Georgia, sought an
injunction against the operation of appellant Speight's bookstore,
and confiscation and destruction of all merchandise on the store's
premises, on the grounds that the store was being used for the
Page 415 U. S. 334
"advertising, storage, sale, and exhibition for sale of
materials obscene within the meaning of Section 26-2101 of the
Criminal Code of Georgia." The basis for the State's action was §
26-2103 of the Code, under which the use of any premises for the
violation of § 26-2101 constitutes a "public nuisance," thereby
triggering the application of state statutory provisions for the
abatement of public nuisances, c. 72-2 of the Code of Georgia. The
case is here on appeal. 28 U.S.C. §§ 1253, 2101(b). We noted
probable jurisdiction to decide whether, under these circumstances,
federal intervention in the pending state proceedings was barred by
our holding in
Younger v. Harris, supra.
Since oral argument of this case, the Georgia Supreme Court has
struck down the application of § 26-2103 in another case involving
similar facts.
Sanders v. State, 231 Ga. 608,
203 S.E.2d 153
(1974). In
Sanders, the State had brought an action to
enjoin the operation of a bookstore on the ground that certain
publications sold by the store were obscene under § 26-2101. The
supreme court held that this application of § 26-2103
"represents an unconstitutional prior restraint when construed
and applied to authorize the permanent closure of the book store as
a public nuisance upon a finding that a single publication, obscene
under the standards of Code Ann. § 26-2101(b), was sold on its
premises."
Id. at 611, 203 S.E.2d at 155. As we understand the
Georgia court's decision, the operation of a bookstore could not be
enjoined merely because some of its merchandise had been judicially
determined to be obscene. The Georgia court cited both the Federal
and Georgia Constitutions in its decision, although it was not
explicit as to whether each provided, in its view, an independent
ground for its holding.
It would appear that this Georgia Supreme Court decision would
probably foreclose the state action
Page 415 U. S. 335
against which federal injunctive relief was sought by appellants
in this case. In that event, appellants could obtain full relief in
the state court proceeding merely by moving to dismiss the state
action, in accord with state procedural rules, in light of
Sanders v. State. If that is the case, appellants could
not now make any showing of irreparable injury by reason of the
state court proceeding, and such a showing is, of course, required
before the federal court could grant the equitable relief, apart
from any special considerations involved in
Younger v. Harris,
supra, at
401 U.S.
46.
We therefore vacate the judgment below and remand to the
District Court for reconsideration in light of the decision of the
Georgia Supreme Court in
Sanders v. State, supra.
It is so ordered.