454 U.S. 1022 (1981)

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U.S. Supreme Court

BROCKETT v. SPOKANE ARCADES, INC. , 454 U.S. 1022 (1981)

454 U.S. 1022

Donald C. BROCKETT etc., Appellant
No. 80- 1604

Supreme Court of the United States

November 9, 1981

Rehearing Denied Jan. 11, 1982.

See 454 U.S. 1165.

The judgment is affirmed.

Chief Justice BURGER, with whom Justice POWELL and Justice REHNQUIST join, dissenting.

The Court today affirms a decision of the Court of Appeals, CA9, 631 F.2d 135, holding unconstitutional a Washington statute which has yet

Page 454 U.S. 1022 , 1023

either to be enforced in or construed by a Washington state court. I would abstain from decision until the Washington courts are given an opportunity to interpret the law which has been thus invalidated. This Court-and all federal courts-have enough to do without "preempting" state courts on matters initially of state concern.

The Washington "moral nuisance" law, Wash.Rev.Code 7.48.050 et seq. ( Supp. 1977)-a comprehensive statute directed at prohibiting the public sale and exhibition of obscene materials-was adopted as an initiative by the voters in the November 8, 1977, election. Before the statute was even certified by the Secretary of State, appellees, several corporations engaged in the exhibition, distribution, and sale of movies, books, and magazines, filed this action in the Federal District Court, 449 F.Supp. 1145. On February 6, 1978, less than three months after the initiative's adoption, and apparently before it had ever been applied, the District Court declared the law unconstitutional. 449 F.Supp. 1145.

I have previously outlined the concerns that should lead a federal court to stay its hand in cases such as this, when litigants have deliberately avoided resort to the courts of the state whose statute is being challenged. Vance v. Universal Amusement Co., 445 U.S. 308, 317-320, 1161-1163 (1980) (BURGER, C. J., dissenting); cf. Moore v. East Cleveland, 431 U.S. 494, 521-531, 1946-1951 (1977) (BURGER, C. J., dissenting); Wisconsin v. Constantineau, 400 U.S. 433, 439-443, 511-513 (1971) (BURGER, C. J., dissenting). The policies of federalism and comity militate in favor of affording state judges-who are as capable as are federal judges of enforcing the Constitution of the United States, and have taken the same oath to do so-the initial opportunity to consider the scope and validity of state statutes. This is particularly so when the state law under consideration has never been applied, and when its interpretation is uncertain; in such a case the state court's construction of the statute may obviate the need for adjudication of the federal constitutional issues, or the state court may resolve those issues as we would. Harrison v. NAACP, 360 U.S. [454 U.S. 1022 , 1024]

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