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HAMAR THEATRES, INC. v. CRYAN

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


March 25, 1975

HAMAR THEATRES, INC., Plaintiff,
v.
John CRYAN, Individually and as Sheriff of Essex County, State of New Jersey, et al., Defendants

Stern, District Judge.

The opinion of the court was delivered by: STERN

STERN, District Judge.

Plaintiff Hamar Theatres, Inc. brings suit under 42 U.S.C. § 1983 for a preliminary and a permanent injunction prohibiting the defendants Essex County Sheriff Cryan and Essex County Prosecutor Lordi from instituting any legal action, criminal or civil, against plaintiff in connection with seven motion pictures seized, pursuant to search warrants, by agents of the defendants at plaintiff's Newark place of business, known as the Treat Theatre, and for the return of those films, all on the ground that the judge who issued the warrants did not himself view the films before authorizing the seizure, but instead relied upon affidavits by policemen as to what each film contained. Plaintiff also seeks a restraint prohibiting the defendants from seizing any other films without first obtaining a search warrant from a magistrate who himself views the subject films before issuing a warrant for their seizure. Plaintiff also sues for declaratory relief.

 An Order to Show Cause was signed by this Court on January 31, 1975, and upon the representation of defendants that, pending this Court's determination, no action would be taken against plaintiff with regard to the seven films seized, plaintiff's request for a temporary restraining order was not granted. At oral argument on February 14, 1975, this Court ordered the application for preliminary and permanent injunctive relief denied, and the action dismissed, for the reasons set forth herein.

 I. FACTUAL AND PROCEDURAL BACKGROUND

 There is no factual dispute concerning the procedures which were employed in this case. On November 22, 1974, agents of the Essex County Sheriff's Office entered the Treat Theatre in Newark, which is owned and operated by plaintiff Hamar Theatres, Inc. (hereinafter Hamar), pursuant to search warrants signed by the Honorable Richard B. McGlynn, Judge of the Superior Court of New Jersey (temporarily assigned). The warrants were based on the affidavits of detectives who claimed to have viewed the films and who described what they had viewed in their affidavits, which they presented to the judge in support of their application for warrants. The warrants thereafter issued, authorizing the seizure of prints of the films "Surprised Coed" and "Ski Bunnies," and the two prints were seized. Approximately three hours later, plaintiff Hamar appeared before the state court judge and formally moved for the return of the seized films on the grounds that "a judicial officer issuing a Warrant for the seizure of allegedly obscene material had an obligation under Heller v. New York, 413 U.S. 483 [93 S. Ct. 2789, 37 L. Ed. 2d 745] (1973), to first view that material in order to determine the probable cause for seizure," and "that the seizure of the only available print of those films just before a weekend effectively constituted a prior restraint of their exhibition in violation of the First Amendment of the United States Constitution." (PB: 1-2) The motion was denied on both grounds, but Judge McGlynn did order that plaintiff be permitted to copy the seized films at its own expense. Plaintiff declined to do so.

 The two films at issue were viewed by Judge McGlynn on November 27, 1974. At that time, plaintiff requested an evidentiary hearing on the question of obscenity, while expressly reserving its previously asserted constitutional objections to the seizure on the ground that no judicial officer had viewed the material himself before authorizing the seizure. The hearing was set for December 4, 1974. At the appointed time, plaintiff elected to waive its right to an adversary hearing rather than to submit the issue of obscenity to Judge McGlynn.

 On January 8, 1975, agents of defendants Cryan and Lordi entered the Treat Theatre pursuant to additional search warrants, authorized by Judge McGlynn and obtained by means of the same procedure, that is, a viewing by the officers and an account by affidavit thereafter. Pursuant to these warrants, the policemen seized prints of the films "Cheese," "Lovers in the Woods," and "Six for Sex." Once again, plaintiff thereafter instituted suit before Judge McGlynn for return of the seized films, on January 9, 1975, on the same grounds as those asserted with regard to the previous seizure. The motion was again denied. The same order permitting copying at plaintiff's expense was made, and once again plaintiff made no attempt to copy the films. In response to a question from the court, plaintiff indicated that it desired an adversary hearing on the issue of obscenity, while reserving its constitutional objections to the method of seizure. Representatives of all parties, and Judge McGlynn, viewed the three seized films on January 14, 1975. An adversary hearing on the issue of obscenity was held on January 16, 1975. The State called no witnesses at the hearing, but plaintiff called Dr. Seymour Sinick, Professor of Sociology at the City University of New York, who testified that under the three-pronged test of Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), the three films seized on January 8, 1975 should not be classified as obscene. On January 17, 1975, Judge McGlynn ruled that the films were obscene, that there existed probable cause for restraint of the exhibition of the films pending further action by the Essex County Prosecutor, and that plaintiff could no longer copy any of the films.

 On January 29, 1975, agents of defendants Cryan and Lordi entered the Treat Theatre pursuant to search warrants signed by Judge McGlynn, and seized prints of the films "Adultery" and "Tycoon's Daughter." The same procedure had been followed in securing these warrants as in the prior seizures. On January 30, 1975, plaintiff began an action in the state court before Judge McGlynn for the return of these films on the same grounds raised in its two previous suits for the return of property. The relief sought was denied, but the court again ordered that the seized films be made available to plaintiff for copying at plaintiff's expense. Plaintiff requested an adversary hearing on the issue of obscenity, and the parties agreed to view the films on February 3, 1975. The instant action was filed on January 31, 1975, one day after that agreement and four days before the scheduled state court hearing.

 To recapitulate, the facts are that on three occasions, pursuant to warrants issued by Judge McGlynn, agents of the sheriff and prosecutor went to plaintiff's theater and seized certain films on the grounds that they were obscene, and their exhibition a violation of New Jersey law. N.J.S.A. 2A:115-2. Each of the warrants issued by Judge McGlynn was based on affidavits sworn by police officers, reflecting that the affiants had viewed the film and detailing that which they had viewed on the screen. Thereafter, Judge McGlynn read the affidavits and determined that there was probable cause to believe that the films named and described in the affidavits were obscene, and therefore exhibited in violation of statute, and the warrants issued. After each seizure, plaintiff Hamar appeared before Judge McGlynn and sued for the return of the films on the ground that the seizure was an unconstitutional abridgment of plaintiff's First and Fourth Amendment rights, through the Fourteenth Amendment, because in issuing the warrant in reliance only on the affidavits of police officers, and without having viewed the films first himself, Judge McGlynn had permitted a prior restraint to be effected by the police acting alone. As noted, plaintiff had asserted before Judge McGlynn, on each occasion, that the only proper procedure under the First and Fourth Amendments is for the judicial officer to view the films himself before authorizing law enforcement authorities to seize them. These arguments were made by plaintiff on its own motion on three separate occasions, after each seizure, and on each occasion the state court judge ruled against it. *fn1" Plaintiff took no appeal.

 After the last of the three state judicial determinations, plaintiff Hamar filed suit in this Court for injunctive and declaratory relief, on precisely the claim raised thrice and lost thrice before the state trial judge. Thus plaintiff here alleges that the procedures employed by the State of New Jersey in the seizures of plaintiff's films were violative of the First and Fourth Amendments of the United States Constitution, made applicable to the states by the Fourteenth Amendment and actionable by 42 U.S.C. § 1983, in that the acts of the state constituted a prior restraint of protected speech by police, because Judge McGlynn had himself made no determination regarding obscenity before empowering the police to seize the films. Plaintiff seeks injunctive and declaratory relief from the federal tribunal to secure the return of its property and to bar the institution of criminal proceedings based on the seized films, in the state courts.

 It is clear that this Court has jurisdiction over such a lawsuit. 42 U.S.C. § 1983; 28 U.S.C. § 1343(3). The state has conceded as much. Of greater import is the question whether this Court should exercise that jurisdiction, or whether it should instead defer to the state judicial process for reasons of comity and federalism, as enunciated by the Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1970), and its progeny.

 II. COMITY, EQUITY, FEDERALISM AND THE PRAYER FOR INJUNCTIVE RELIEF

 A word of background is in order. It is well-settled that federal courts exist primarily as a forum to vindicate rights guaranteed to citizens of the United States by the federal Constitution and federal law, at least since general federal question jurisdiction was conferred on the federal courts in 1875. Act of March 3, 1875, § 1, 18 Stat. 470. Thus, in Zwickler v. Koota, 389 U.S. 241, 245, 88 S. Ct. 391, 394, 19 L. Ed. 2d 444 (1967), the Supreme Court observed:

 

During most of the Nation's first century, Congress relied on the state courts to vindicate essential rights arising under the Constitution and federal laws. . . . But that policy was completely altered after the Civil War when nationalism dominated political thought and brought with it congressional investiture of the federal judiciary with enormously increased powers. The Act of March 3, 1875, was the principal ". . . measure of the broadening federal domain in the area of individual rights," McNeese v. Board of Education, 373 U.S. 668, 673, [83 S. Ct. 1433, 10 L. Ed. 2d 622]. By that statute ". . . Congress gave the federal courts the vast range of power which had lain dormant in the Constitution since 1789.

 

These courts ceased to be restricted tribunals of fair dealing between citizens of different states and became the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States." (Emphasis added.) Frankfurter & Landis, The Business of the Supreme Court: A Study in the Federal Judicial System 65 . . . .

 

In thus expanding federal judicial power, Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility, equally with the federal courts, ". . . to guard, enforce, and protect every right granted or secured by the constitution of the United States. . . ." Robb v. Connolly, 111 U.S. 624, 637, 4 S. Ct. 544, 28 L. Ed. 542.

 It is, however, equally well-established that although a federal court has jurisdiction to consider controversies such as the case at bar, there are situations in which the federal court ought to stay its hand. One classic instance of such abstention arises under what has been called the "Pullman Doctrine." Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). This doctrine, however, is limited to very special circumstances. It comes into play only when, in order to resolve the federal constitutional claim pending before it, the federal court must make an interpretation of state law which is as yet unsettled. In such a case, the federal court must abstain from considering the federal constitutional claim if the state statute is susceptible to varying interpretations, at least one of which would conform to the requirements of the federal Constitution. The proper course would then be to send the parties to state court to litigate the state issues "in light of" the federal claims. England v. Louisiana Board of Medical Examiners, 375 U.S. 411, 420, 84 S. Ct. 461, 11 L. Ed. 2d 440 (1964); Government Employees v. Windsor, 353 U.S. 364, 77 S. Ct. 838, 1 L. Ed. 2d 894 (1957). The parties would thus seek in state court that definitive interpretation of state law, obtainable only in that forum, which is the necessary predicate to the determination of whether the state statute offends the federal Constitution. Cf. United States v. Livingston, 179 F. Supp. 9, 12-13 (D.C.1959), aff'd sub nom., Livingston v. United States, 364 U.S. 281, 80 S. Ct. 1611, 4 L. Ed. 2d 1719 (1960), cited with approval in Zwickler v. Koota, supra, 389 U.S. at 250, 88 S. Ct. at 397:

 

Regard for the interest and sovereignty of the state and reluctance needlessly to adjudicate constitutional issues may require a federal District Court to abstain from adjudication if the parties may avail themselves of an appropriate procedure to obtain state interpretation of state laws requiring construction.

 Thus, when a citizen sues in federal court to vindicate federal rights infringed by state agents, agencies, or even state statutes, he sues in an appropriate forum, and the federal court ought not to stay its hand, provided that no suit is pending in a state court, and the Pullman Doctrine does not apply. The situation materially changes, however, when at the time the citizen seeks redress in federal court he is also in the process of litigating the same claimed federal rights in a state tribunal. This situation arises most often where an individual is sued at the instance of the state, or prosecuted in state court, and he thereafter seeks relief in federal court on the ground that the state lawsuit itself violates, or is predicated on some violation of, a federally-guaranteed right. Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1970). When an individual waits to assert federal rights in federal court until after he is already embroiled in litigation within the state judicial system, the Younger sextet and its progeny establish the principle that, absent unusual circumstances, it is then too late for him to invoke his right to a federal forum to vindicate his federal rights, since the existing state forum is presumably fully capable of affording him that opportunity. In such circumstances, considerations of equity, comity and federalism require that the individual then present his claims to the state tribunal he is already before, rather than, in effect, removing the entire proceeding to federal court (most often to a three-judge district court convened pursuant to 28 U.S.C. § 2281). *fn2" Thus, although the federal court has jurisdiction over such a controversy, it will decline to exercise that jurisdiction, absent a showing of unusual circumstances, and will require instead that the individual present his federal claims to the state court in the pending state proceeding. *fn3"

 Just as a litigant may wait too long to assert his federal rights in a federal forum if he waits until he is actually under prosecution in state court, he may also fail in his choice of the federal forum if he attempts there to assert his federal rights too early. In order to invoke the jurisdiction of the federal courts, a suitor must do more than merely claim that there exists, for example, a state statute which chills the exercise of his federal constitutional rights. Younger, supra, at 52-53, 91 S. Ct. 746; Allee v. Medrano, 416 U.S. 802, 827, 94 S. Ct. 2191, 40 L. Ed. 2d 566 (1974) (separate opinion of Burger, C.J.). "It must be alleged that the plaintiff 'has sustained or is immediately in danger of sustaining some direct injury' as a result of the challenged statute or official conduct. Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S. Ct. 597, 67 L. Ed. 1078 (1923)." O'Shea v. Littleton, 414 U.S. 488, 494, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974). Absent an actual threat of prosecution against such a plaintiff, the Supreme Court has indicated that there may be no case or controversy presented, within the meaning of Article III of the Constitution, and therefore no jurisdiction in the courts of the United States at all, solely on the basis of the mere existence of a state criminal statute which may offend the United States Constitution. Younger, supra, 401 U.S. at 52-53, 91 S. Ct. 746; O'Shea, supra, 414 U.S. at 493-499, 94 S. Ct. 669; Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968).

 Steffel v. Thompson, 415 U.S. 452, 458-460, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974) appears to have relaxed somewhat the requirement that one must actually violate a criminal statute and subject himself to a demonstrably threatened prosecution before he may assert, in federal court, that a state or criminal statute is unconstitutional. *fn4" Nevertheless, the Constitution still requires that a plaintiff allege "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions[?]" Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663 (1962). As the court recently held in O'Shea, supra, 414 U.S. at 494, 94 S. Ct. at 675:

 

Abstract injury is not enough. It must be alleged that the plaintiff "has sustained or is immediately in danger of sustaining some direct injury" as a result of the challenged statute or official conduct. Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S. Ct. 597, 67 L. Ed. 1078 (1923). The injury or threat of injury must be both "real and immediate," not "conjectural" or "hypothetical." Golden v. Zwickler, 394 U.S. 103, 109-110, 89 S. Ct. 956, 22 L. Ed. 2d 113 (1969); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 85 L. Ed. 826 (1941); United Public Workers v. Mitchell, 330 U.S. 75, 89-91, 67 S. Ct. 556, 91 L. Ed. 754 (1947).

 The dynamic relationship between the Scylla of Younger and the Charybdis of Article III was aptly summarized in a recent three-judge district court opinion:

 

If the Younger rule did not exist, litigants could use federal court proceedings to paralyze state criminal proceedings. Pretrial motions could be litigated in federal court. State procedures could be tested in federal court without the highest state court having a chance to interpret the relevant statutes. Many issues in a case would have to be litigated repeatedly in different forums. On the other hand, if federal intervention were forbidden by the tiniest hint of any state action, the purpose of Congress in allowing litigants to obtain injunctive relief against infringements of their rights, as authorized by 42 U.S.C. § 1983, would be completely frustrated. The middle position is that federal interference is forbidden except under unusual circumstances once a state prosecution has actually started, but it is permitted until the actual inception of the proceedings. Were the rule against interference extended any further, litigants would be caught between Younger on the one hand, and the rules requiring standing and an actual "case or controversy" on the other. Such a Hobson's choice would frustrate both congressional intent and a workable system of federalism.

 Wall v. American Optometric Assoc., Inc., 379 F. Supp. 175, 187 (N.D.Ga.1974), aff'd mem. 419 U.S. 888, 95 S. Ct. 166, 42 L. Ed. 2d 134 (1974), rehearing denied, 419 U.S. 1061, 95 S. Ct. 648, 42 L. Ed. 2d 659 (1974).

 At first glance, the instant case might appear to present that rare factual situation justifying this Court's exercise of its jurisdiction, inasmuch as no state criminal charges are now pending against plaintiff, and the seizure and retention of plaintiff's property creates not only an admittedly real threat of prosecution for exhibition of obscenity, but also a real controversy over the return of the property itself. The state conceded at oral argument that there is now pending no state court criminal proceeding, initiated by the state, to which plaintiff Hamar is party and which therefore could be disturbed by this suit. While a warrant has been issued for the arrest of the manager of plaintiff's theater, it has not been executed, and in any event he is not a party to this action.

 However, the state maintains that when plaintiff instituted the prior suits in state court for the return of the films, it voluntarily submitted to the state court the very federal claims it now makes here in this subsequent federal suit. On this basis, defendants assert, this Court should stay its hand, and require plaintiff to take its federal claims through the various steps of review in the state system initially selected by it, instead of attempting to attack the state trial court ruling collaterally, by asserting this claim for relief in this Court. *fn5" Plaintiff, for its part, concedes that as a part of its suits for return of the seized films, on three different occasions it did indeed assert the very arguments now presented here. *fn6" (PB: 1-7)

 In England, supra, the Supreme Court held that after a district court has abstained on Pullman grounds, and the federal plaintiff brings suit in the state system in an attempt to resolve the open question of state law which caused the federal court to abstain, the plaintiff, upon losing his final state appeal, may bring suit again in federal court only if he has not "freely and without reservation submit[ted] his federal claims for decision by the state courts, litigated them there, and . . . [had] them decided there." 375 U.S. at 419, 84 S. Ct. at 467. *fn7" Plaintiff here maintains that "the England reserve was formulated to avoid conflicts with state courts, and to deny a plaintiff two bites at the constitutional apple." Plaintiff's brief continues:

 

Neither of those considerations apply [sic] here. As noted in Point 1 above, the mere issuance of a search warrant is not the commencement of a "state proceeding"; therefore, there is no possibility of conflict with the state courts.

 PB:20

 Plaintiff's argument that the mere issuance of the search warrant was not the commencement of a state suit may well be correct as far as it goes. *fn8" It does not, however, go far enough to cover the instant case. Here the problem plaintiff faces is a problem it has caused itself, for by initially moving in state court for return of the films on the same federal constitutional grounds it here asserts, it is seeking the very "two bites at the constitutional apple" which it claims to eschew. Although the issuance of a search warrant may or may not be the commencement of that kind of state proceeding to which the Younger doctrine would require deference, it is certain that plaintiff's suit for the return of the property is the commencement of just such a proceeding. Had plaintiff, after the first seizure, or after the second, or even after the third seizure, come to federal court with its complaint against state agents on the grounds which it asserts here now, it seems to this Court clear that there would have been no grounds, under Pullman or Younger or any other doctrine, for the federal court to deny the plaintiff a federal forum. *fn9" This is not, however, what the plaintiff elected to do.

  We have here the obverse of the Younger coin. This is not a case of a defendant brought against its will into the state court system, who thereafter seeks, in effect, to remove the lawsuit to federal court. This is a plaintiff who has elected to seek redress in the state trial court first, and then, unhappy with the initial outcome of the state litigation, does not appeal but instead brings a separate and redundant suit on the same grounds in federal court. This sort of attempted lateral review is clearly improper, for this Court does not sit to entertain appeals from state trial courts. Cf. Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975); Jennings v. Boenning & Co., 482 F.2d 1128 (3rd Cir. 1973); Covell v. Heyman, 111 U.S. 176, 182-183, 4 S. Ct. 355, 28 L. Ed. 390 (1884). Neither will it permit plaintiff simultaneously to commence and to maintain two separate suits in two separate forums.

 Traditional notions of comity, equity and federalism require that this Court stay its hand. Having chosen to litigate its federal claims in state court, and having lost its cause at the trial level there, Hamar may not now be heard to claim the right to re-litigate the identical federal claims at this federal trial level. Not only is it true that the Younger requirements of bad faith or other exceptional circumstances, leading to the conclusion that no potential exists for adequate remedy in the pending state court action, are absent here as grounds for federal court interference in ongoing state judicial proceedings, *fn10" but it is also true that this matter is presently the subject of such state proceedings precisely because this plaintiff elected to commence them there. *fn11"

  As this Court has noted, had plaintiff Hamar initially come to federal court to seek a hearing on its assertion that state agents had violated its federally-protected rights, instead of first proceeding to the state courthouse with its complaint, there is no doubt that, inasmuch as no state criminal or civil suit would then have been pending against Hamar,12 no doctrine of law would have justified a refusal by this Court to grant this plaintiff a federal forum. However, having itself begun suit in state court, plaintiff must see it through there, instead of abandoning that forum in favor of another at the first adverse ruling.

 The observation of the Court of Appeals in Brown v. Chastain, 416 F.2d 1012, 1013-1014 (5th Cir. 1969), cert. denied, 397 U.S. 951, 90 S. Ct. 976, 25 L. Ed. 2d 134 (1970) quoting Pilkinton v. Pilkinton, 389 F.2d 32, 33 (8th Cir. 1968), cert. denied, 392 U.S. 906, 88 S. Ct. 2057, 20 L. Ed. 2d 1364 (1968) is equally applicable here:

 

It is plainly evident that what appellant seeks in this original action is a review by the federal courts of the proceedings of the . . . State Court . . . . Federal Courts are without authority to function as an appellate arm of the state courts.

 The court continued in Chastain :

 

"State courts are competent to decide questions arising under the federal constitution, and the federal courts most assuredly do not provide a forum in which disgruntled parties can relitigate federal claims which have been presented to and decided by the state courts." Deane Hill Country Club, Inc. v. City of Knoxville, 379 F.2d 321, 325 (6th Cir. 1967), [cert. denied 389 U.S. 975 [88 S. Ct. 476, 19 L. Ed. 2d 467] (1967)].

 Cf. Lynch v. Snepp, 472 F.2d 769 (4th Cir. 1973), cert. denied, 415 U.S. 983, 94 S. Ct. 1576, 39 L. Ed. 2d 880 (1974).

 Under Chastain, "a federal district court is without jurisdiction to hear federal constitutional claims already litigated in state courts when . . . there is already a final, appealable judgment by a state court at the time the federal suit is instituted." Paul v. Dade County, Florida, 419 F.2d 10, 13 ( 5th Cir. 1969).

 III. THE PRAYER FOR DECLARATORY RELIEF

 The Court notes that plaintiff Hamar seeks both injunctive and declaratory relief. In Zwickler, supra, 389 U.S. at 254, 88 S. Ct. at 399, the Supreme Court held that "a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction." Thus, although this Court has found no basis for injunctive relief because of plaintiff's failure to show that state court remedies, which it itself has invoked, would be inadequate to protect it against "irreparable injury that is both serious and immediate," Gibson v. Berryhill, 411 U.S. 564, 574, 93 S. Ct. 1689, 1695, 36 L. Ed. 2d 488 (1973), it is still necessary to make an independent assessment of plaintiff's declaratory claim. The Supreme Court noted in Steffel, supra, 415 U.S. at 468-469, 94 S. Ct. 1209 that Zwickler was reaffirmed in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973). In the latter case, the Court wrote:

 

The Court has recognized that different considerations enter into a federal court's decision as to declaratory relief, on the one hand, and injunctive relief, on the other.

 410 U.S. at 201, 93 S. Ct. at 752.

 In Steffel, the court found that a declaratory judgment was designed to have a less intrusive effect on state criminal proceedings, and that to engraft upon it the equitable requirements of injunctions would defy Congress' purpose in enacting the Declaratory Judgment Act "to make declaratory relief available in cases where an injunction would be inappropriate." 415 U.S. at 471, 94 S. Ct. at 1222.

 This Court has made an independent assessment of plaintiff's claim for declaratory relief, and finds itself governed by the following caveat issued by the Supreme Court in Steffel :

 

The only occasions where this Court has disregarded these "different considerations" and found that a preclusion of injunctive relief inevitably led to a denial of declaratory relief have been cases in which principles of federalism militated altogether against federal intervention in a class of adjudications. See Great Lakes Co. v. Huffman, 319 U.S. 293 [63 S. Ct. 1070, 87 L. Ed. 1407] (1943) (federal policy against interfering with the enforcement of state tax laws); Samuels v. Mackell, 401 U.S. 66, 27 L. Ed. 2d 688, 91 S. Ct. 764 (1971).

 415 U.S. at 472, 94 S. Ct. at 1222.

 In the case at bar, principles of federalism must be seen to preclude any federal intervention on the identical issues raised by Hamar in state court until the state court system has had the opportunity to pass on them finally through the appellate process. It would, obviously, be just as chaotic in terms of pending state proceedings to declare here the merits of the controversy between parties who are in state court on the identical claims as it would be to enjoin the state suit altogether.

 IV. CONCLUSION

 For the foregoing reasons it is apparent to this Court that plaintiff, having sought and obtained an initial adjudication in state court on the very issues it now seeks to present here, must pursue its rights and remedies in the forum of its original choice. The federal court may not and should not provide an alternative forum for disgruntled suitors whose cases are yet pending before the courts of the states. This Court therefore declines to exercise its jurisdiction in the instant matter. The application for preliminary and permanent injunctive relief is denied, and the action will be dismissed. *fn13"


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