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May 5, 1975

Alfred SOLE et al., Plaintiffs,

The opinion of the court was delivered by: STERN

Plaintiffs Alfred Sole, Andrew Muskat, Katherine Victoria Pope and Joseph Rose filed this federal action for injunctive and declaratory relief against the defendants 18 months after their indictment in the Superior Court of New Jersey for the crimes of fornication, private lewdness, carnal indecency and conspiracy. *fn1" The defendants are Joseph D. J. Gourley, Passaic County Prosecutor; Joseph Woodcock, Bergen County Prosecutor; Brendan T. Byrne, Governor of New Jersey; the Grand Jurors of the State of New Jersey of the Counties of Passaic and Bergen, and the State of New Jersey.

The state indictments were based on plaintiffs' participation as the actors (Pope and Rose), the producer (Muskat), and the director (Sole) of the motion picture "Deep Sleep," a film which depicts acts of sexual intercourse in which Rose and Pope allegedly engaged for purposes of the filming. When the film was exhibited at a movie theater located in Passaic County, it was seized as evidence pursuant to a search warrant obtained in Superior Court by defendant Gourley, and the state prosecution for the state crimes ensued.

 After the filing of these indictments on February 22, 1973, plaintiffs sought dismissal of the indictments in pretrial motions in Superior Court. These motions, brought in May of 1973 by all the federal plaintiffs, attacked the statutes prohibiting fornication and public lewdness as vague and overbroad, as unconstitutional on their face, and as unconstitutional as applied. In addition to alleging these defects in the statutes, plaintiffs also alleged in the state forum that the prosecution was itself constitutionally defective because the Passaic County Prosecutor had brought the indictments to suppress plaintiffs' exercise of their First Amendment rights. The heart of plaintiffs' motions in state court was that their prosecution under the statutes prohibiting fornication and lewdness was a sham, to which the prosecutor had resorted only because the United States Constitution precluded his use of the state obscenity statute to suppress the film itself. *fn2"

 The Superior Court heard and denied all motions to dismiss the indictments. *fn3" The Appellate Division of the Superior Court denied plaintiffs leave to appeal. The Supreme Court of New Jersey denied review. *fn4"

 It was only following all of this preliminary state court litigation that plaintiffs, 18 months after they were indicted and just several weeks before trial was to begin, commenced suit here on September 17, 1974, alleging the unconstitutionality of N.J.S.A. 2A:110-1 *fn5" and 2A:115-1 *fn6" on the grounds of vagueness, overbreadth, and unconstitutional application in the pending state criminal proceeding. These were the identical federal claims previously presented by plaintiffs to the state trial judge.

 On November 25, 1974 this three-judge court was constituted by order of Chief Judge Seitz of the Court of Appeals for this Circuit. Discovery having been completed, defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted. F.R.Civ.P. 12(b)(6). Pursuant to Rule 65 of the Federal Rules of Civil Procedure, the claims for injunctive relief were consolidated with the trial on the merits. The motion to dismiss was taken under advisement by the Court on January 29, 1975.

 It is clear that this Court has jurisdiction over this lawsuit, 42 U.S.C. § 1983, 28 U.S.C. § 1343(3), and the State does not dispute that issue. 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 equity, comity and federalism.

 Historically, the lower federal courts lacked jurisdiction to vindicate rights arising under the Constitution and federal laws. The state courts were the only forum in which a litigant could seek relief against the enforcement of a state statute which infringed on his federal constitutional rights.

 The wave of nationalism following the Civil War brought with it congressional investiture of the federal judiciary with enormously increased power.

". . . 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." Frankfurther & Landis, The Business of the Supreme Court: A Study in the Federal Judicial System, 65.

 Zwickler v. Koota, 389 U.S. 241, 247, 88 S. Ct. 391, 395, 19 L. Ed. 2d 444 (1967).

 The obligation of the state courts, under Article VI of the Constitution, to vindicate rights guaranteed by the federal constitution, laws and treaties, was not discharged by the acquisition of new power by the federal courts. State courts remain, as before, fully ...

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