United States District Court, District of New Jersey, D.
January 13, 2000
NEW HOPE BOOKS, INC., AND 705 CRESCENT CORPORATION, PLAINTIFFS,
JOHN J. FARMER, JR. (AS ATTORNEY GENERAL OF THE STATE OF NEW JERSEY), DEFENDANT.
The opinion of the court was delivered by: Simandle, District Judge.
This motion addresses the important issue of whether it is
appropriate for this federal court to subject a state criminal
statute to pre-enforcement review upon the ground that the
statute's existence is alleged to have a tendency to chill the
plaintiffs' exercise of First Amendment rights in connection with
the operation of their adult entertainment business. In this
case, plaintiffs, New Hope Books, Inc. ("New Hope") and 705
Crescent Corporation ("705 Crescent"), an adult entertainment
store and its landlord, respectively, challenge the
constitutionality of various New Jersey statutes which regulate
the adult entertainment business. Plaintiffs were charged with
violating N.J.S.A. 2C:34-1, which prohibits engaging in
prostitution, promoting prostitution, and compelling
others to engage in prostitution, and N.J.S.A. 2C:33-12, which
prohibits knowingly maintaining a house of prostitution or a
premises where obscene material, as defined in N.J.S.A. 2C:34-2,
is exhibited. Pursuant to a plea bargain between the county
prosecutors and New Hope and 705 Crescent, all state indictments
have been dismissed. Nonetheless, before this Court is
plaintiffs' six-count Second Amended Complaint, in which they
seek declaratory relief holding unconstitutional the above
statutes, as well as N.J.S.A. 2C:33-12.1(b), which allows a court
to shut down a nuisance as defined above for one year, and
N.J.S.A. 2C:33-12.2(b), which includes in the definition of a
nuisance a sexually oriented business which offers enclosures
that facilitate sexual activity by patrons.
Defendant, John J. Farmer, Jr., Attorney General of New Jersey,
sought judgment on the pleadings as to plaintiffs' challenge to
N.J.S.A. 2C:33-12, 2C:33-12.1(b), 2C:34-1, and 2C:34-2, arguing
that this Court should abstain under the abstention doctrine from
Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669
(1971). Defendant additionally filed a motion for dismissal of
the complaint, or for a partial stay and partial dismissal, on
the counts for which he does not seek a Younger abstention. In
a December 22, 1999 Opinion and Order, this Court denied the
motion for judgment on the pleadings. Additionally, the Court
dismissed Count Six of the Second Amended Complaint by agreement
of the parties. As this Court explained, the following remained
to be decided: whether plaintiffs have standing to raise a
preenforcement challenge to the constitutionality of N.J.S.A.
2C:33-12.2(b), whether the Court should exercise Pullman
abstention, and whether, if the plaintiffs have standing and this
Court chooses not to abstain, N.J.S.A. 2C:33-12.2(b) is
unconstitutionally vague on its face.*fn1 This Court promised
that a forthcoming Opinion would take up these issues and
scheduled oral argument for January 28, 2000 upon these issues.
As explained below, however, this Court has now reviewed the
parties' papers on the motion to dismiss or for a partial stay
and partial dismissal and has determined that plaintiffs'
challenge of N.J.S.A. 2C:33-12.2(b) is not ripe. Accordingly,
defendant's motion to dismiss will be granted, and those aspects
of Counts One through Five which are based on N.J.S.A.
2C:33-12.2(b) will be dismissed.
The facts of this case are set out in detail in this Court's
December 22, 1999 Opinion, and they need not be repeated here.
What follows is a description of only those facts relevant to the
ripeness of the challenge to N.J.S.A. 2C:33-12.2(b). These facts
Following a February 6, 1997 raid of the subject premises, on
May 5, 1997, the Camden County Prosecutor's Office instituted
civil forfeiture proceedings in the Superior Court of New Jersey
against certain funds seized during the raid. On May 15, 1997,
Lee A. Solomon, the Acting Camden County Prosecutor, sent a
letter to "ALL POLICE CHIEFS" in which he explained that an
injunction against the enforcement of N.J.S.A. 2C:33-12.2(b) had
been issued in August of 1995, but that "[i]n February, 1997, the
New Jersey Superior Court, Appellate Division vacated the
injunction and declared that N.J.S.A. 2C:33-12.2 is
constitutional. Be advised that the statute may now be enforced."
(Pls.' Br. Ex. B.) The decision to which the
letter referred was Chez Sez VIII v. Poritz,
297 N.J. Super. 331, 688 A.2d 119 (App. Div.), cert. denied, 149 N.J. 409,
694 A.2d 194 (1997), which was issued on February 7, 1997, one day
after the raid. The remainder of the letter went on to explain,
in layman's terms, the Appellate Division's interpretation of the
statute, which was that
sexual activity is facilitated when "booths" or other
places in a sexually oriented business are so
constructed as to "preclude visibility" from public
areas of the business. It appears that it is the
Court's opinion that "sexual activity" is more likely
to occur, and therefore "facilitated", where a booth
has an opaque screen or a door which affords privacy
or anonymity to the booth's occupant. It further
appears, then, that sexually oriented businesses with
booths so equipped are in violation of the statute.
(Pls.' Br. Ex. B.)
Months later, on December 17, 1997, the Camden County grand
jury indicted plaintiffs under N.J.S.A. 2C:34-1 and 2C:33-12.
Plaintiffs were not charged with violating N.J.S.A.
On April 21, 1998, Brian E. Mulholland, Assistant Prosecutor of
Camden County, sent a letter to all owners/operators of sexually
oriented businesses which said the following;
New Jersey Statute 2C:33-12.2, a copy of which is
enclosed, makes it a nuisance as well as a crime of
the fourth degree to own or operate a "sexually
oriented business" which offers for public use
booths, screens, enclosures or other devices which
facilitate sexual activity by patrons. The term
"sexually oriented business" is defined in the
In Chez Sez VIII, Inc., et al. v. New Jersey,
A1729-95T3, a New Jersey appeals court found that
N.J.S. 2C:33-12.2 is not violative of the United
States Constitution and also provided guidance in
interpreting the statute. According to the appellate
court, sexual activity is "facilitated" when booths
or other places in a sexually oriented business are
so positioned or constructed as to "preclude
visibility" from public areas of the business.
N.J.S. 2C:33-12.1, a copy of which is also
enclosed, provides that a building whose owner has
been convicted of maintaining a nuisance may be
closed by the Court for a period not to exceed one
year. The purpose of this letter is to formally
notify you that a "sexually oriented business" may be
operating on premises owned by you, and to give you
an opportunity to bring that business into compliance
with the law.
(Pls.' Br. Ex. A.)
In response to this letter, plaintiff New Hope Books altered
the doors to its viewing booths such that the bottom one-third of
the door was eliminated and the opening to the booth was visible
to the adjacent public hallway. Counsel to New Hope Books, Donald
Feeley, Esquire, wrote to the Police Chief asking for a standard
regarding enforcement of N.J.S.A. 2C:33-12.2 and whether his
clients' alterations to the doors were in accordance with the
law. (Pls.' Br. Ex. C.) He received no response.
Plaintiffs have not been charged with violating N.J.S.A.
2C:33-12.2(b) at any time, including after the police saw and
raided the premises thirty-five months ago, or after the police
became aware, through Mr. Feeley's letter, that the booths looked
essentially the same but now had the bottom 1/3 of the doors
removed. Additionally, plaintiffs have not provided evidence that
any other sexually oriented business has been charged under the
A. Standards for Motion to Dismiss for Lack of Subject-Matter
Defendant here seeks to have this Court dismiss plaintiffs'
N.J.S.A. for lack of standing or ripeness. Such a challenge is
one to this Court's subject-matter jurisdiction and is brought
under Fed.R.Civ.P. 12(b)(1). When such a motion is brought, the
court must accept as true all material allegations of the
complaint and construe that complaint in favor of the nonmoving
party. Warth v. Seldin, 422 U.S. 490
, 501, 95 S.Ct. 2197, 45
L.Ed.2d 343 (1975). The court's focus is not upon the factual
allegations insofar as they would entitle plaintiffs to relief,
but rather upon whether this Court has jurisdiction to hear the
claim and grant that relief. Toward that end, the Court can
consider affidavits attached to the moving papers or even require
such affidavits to be submitted, id., and based on those the
Court can find facts. Growth Horizons, Inc. v. Delaware County,
Pennsylvania, 983 F.2d 1277
, 1281 n. 4 (3d Cir. 1993). "If,
after this opportunity, the plaintiff's standing does not
adequately appear from all materials of record, the complaint
must be dismissed." Warth, 422 U.S. at 501-02, 95 S.Ct. 2197.
B. Case or Controversy Requirement
Though defendant argues that plaintiffs lack standing to
challenge N.J.S.A. 2C:33-12.2(b), defendant's true argument is
that there is no actual "case or controversy" between the parties
and that a pre-enforcement challenge to the statute, under these
circumstances, is not ripe. Because of the mandates of Article
III of the United States Constitution and the terms of the
Federal Declaratory Judgment Act, 28 U.S.C. § 2201, this Court
must determine whether plaintiff has presented an "actual
controversy." As part of the "case or controversy" requirement,
parties seeking to challenge a statute must first "suffer injury
or come into immediate danger of suffering an injury," Artway v.
Attorney General of the State of New Jersey, 81 F.3d 1235, 1246
(3d Cir. 1996), such that district courts avoid "premature
adjudication, . . . entangling themselves in abstract
disagreements," and thus refrain "from interfering with
legislative enactments until it is necessary to do so. . . ."
Id. at 1247.
As explained by the Third Circuit in Artway, two factors must
be weighed in determining if a case is ripe: first, the hardship
to the parties if court consideration is withheld, and, second,
the fitness of the issues for judicial review. Id.*fn2 The
hardship factor is not met, and a challenge to a criminal statute
is not ripe, where there has been no prosecution under that
statute or where alleged threats of prosecution can be
characterized only as "imaginary or speculative." Steffel v.
Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)
(citing Younger, 401 U.S. at 42, 91 S.Ct. 746); Artway, 81
F.3d at 1247.
Under certain circumstances, "it is not necessary that
petitioner first expose himself to actual arrest or prosecution
to be entitled to challenge a statute that he claims deters the
exercise of his constitutional rights." Steffel, 415 U.S. at
459, 94 S.Ct. 1209. "If the injury is certainly impending, that
is enough." Babbitt v. United Farm Workers National Union,
442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (citing
Commonwealth of Pennsylvania v. State of West Virginia,
262 U.S. 553, 593, 43 S.Ct. 658, 67 L.Ed. 1117 (1923)). However,
whether a pre-enforcement challenge is ripe must be determined on
a case-by-case basis, for it is highly dependent upon the facts
of the particular case.
For example, in Steffel, the petitioner and other persons had
been told by police officers that they would be arrested if they
continued to distribute handbills in a mall protesting American
involvement in Vietnam. 415 U.S. at 455, 94 S.Ct. 1209. The group
left the mall but returned two days later and again began to
distribute handbills. Id. The manager of the mall called
the police, who once again told petitioner and his companion that
they would be arrested if they continued. Id. Petitioner left,
but his friend remained and was subsequently arrested and charged
under the criminal trespass statute. Id. at 455-56, 94 S.Ct.
1209. Petitioner sued, challenging the criminal trespass statute
under the First Amendment. The parties agreed that if petitioner
returned to the mall and began again to hand out handbills, as he
had expressed a desire to do, he would be arrested. Id. at 456,
94 S.Ct. 1209. The Supreme Court found that, under those
circumstances, petitioner's preenforcement challenge to the
criminal trespass statute was ripe.*fn3 Id. at 459, 94 S.Ct.
In Artway, the Third Circuit found that a plaintiffs
preenforcement challenge to the registration requirement of New
Jersey's sex offender statute, Megan's Law, was ripe.
81 F.3d 1235. The plaintiff in that case had been convicted as a sex
offender in New Jersey, served his sentence, moved out of New
Jersey, settled down, and began a new life; he also wished to
move back to New Jersey, which required that convicted sex
offenders who move to New Jersey register with the local police.
Id. The plaintiff challenged that requirement.*fn4 At oral
argument, the Attorney General agreed that she would definitely
prosecute the plaintiff if he moved to New Jersey and failed to
register. Id. at 1248. Based on this very "credible, real, and
substantial" threat of prosecution, the Third Circuit found that
the challenge was ripe. Id.
Finally, in Presbytery of New Jersey of the Orthodox
Presbyterian Church v. Florio, 40 F.3d 1454 (3d Cir. 1994),
several churches and a pastor challenged amendments to the New
Jersey Law Against Discrimination which added "affectional or
sexual orientation" to the list of impermissible distinctions,
arguing that it violated the First Amendment freedom of speech.
Id. The responsible state official averred in an affidavit that
the state would not enforce the NJLAD against the churches or
against the individual as church pastor. Id. at 1458. The Third
Circuit agreed with the district court that the challenge by the
churches was not ripe, but found that the controversy was ripe as
to the individual plaintiff because he also alleged that "the
statute threatens his right as an individual citizen to speak out
against male and female homosexual acts and the state has
expressly refused to offer any assurance it will not prosecute
[him] if he does so outside of the church." Id. In their
complaint, the plaintiffs expressly admitted that they always
had, and then-presently did (even in the face of the amendments
to the NJLAD), discriminate against people based on their sexual
preference because of their religious beliefs. Id. at 1460. The
state was pointedly asked at oral argument if its offer of
immunity from the provisions extended to the pastor as an
individual, and specifically said that it would not guarantee
that because he was an individual. Id. at 1467. Based on what
the Third Circuit described as "[t]he pointed nature of that
refusal," the Court held that the threat of prosecution was "real
and substantial." Id. at 1468.
However, the facts of all three of these cases are
distinguishable from the facts of the case at bar. Unlike in
Steffel and Artway, no one in the instant case told
plaintiffs that they would actually be arrested if they continued
to operate their business either as it existed or as it stood
after the bottom third of the doors was cut
off. All that occurred was that the Camden County Prosecutor sent
a letter to police chiefs and to sexually oriented businesses
letting them know the change in status of the law. There was no
implication that plaintiffs were not in compliance with the law,
only fair notice to them of what the law requires (as delineated
in Chez Sez).*fn5 Plaintiffs would argue that the local
police's failure to answer their question as to whether
eliminating the bottom third of the door satisfies the
requirements of N.J.S.A. 2C:33-12.2(b) makes this case akin to
Presbytery. However, in Presbytery, the Third Circuit relied
not upon a failure to answer a question about whether certain
actions violated the NJLAD, but rather upon a "pointed refusal"
to waive the right to prosecute individuals for actions which no
one disputed violated that statute.
Additionally, in all three of the above cases,
Steffel, Artway, and Presbytery, it was quite clear that if
the plaintiffs took the actions that they sought to take
(distributing handbills, moving to New Jersey without
registering, encouraging the church to not hire someone because
of sexual orientation), that such actions would constitute
violations of the challenged statutes. In the instant case, to
the contrary, it is quite possible (based on the Appellate
Division's statement in Chez Sez that "enclosures meeting other
jurisdictions' physical requirements would be permissible under
the State's statute,"*fn6 297 N.J.Super. at 349, 688 A.2d 119)
that plaintiffs' newly-structured booths (which are also
monitored by store personnel through video cameras) would satisfy
the requirements of N.J.S.A. 2C:33-12.2(b).
The concern in a case such as the instant case, where
plaintiffs are seeking declaratory judgment that a statute
violates the First Amendment, is that the threat of prosecution
chills the plaintiffs' speech:
The ripeness inquiry to pre-enforcement challenges in
First Amendment cases usually focuses on how imminent
the threat of prosecution is and whether the
plaintiff has sufficiently alleged an intention to
refuse to comply with the statute in order to ensure
that the fear of prosecution is genuine and the
alleged chill on First Amendment rights is concrete
and credible, and not merely imaginative or
National Rifle Association of America v. Magaw, 132 F.3d 272,
285 (6th Cir. 1997) (pre-enforcement challenge of law on First
Amendment grounds possible because the "harm alleged in First
Amendment cases is the `chilling effect' on the constitutionally
protected right to free expression") (citing Steffel, 415 U.S.
at 459, 94 S.Ct. 1209, and Babbitt, 442 U.S. at 301-03, 99
S.Ct. 2301). Here, N.J.S.A. 2C:33-12.2(b) has apparently not
chilled plaintiffs' speech, namely their continuance of selling
sexually oriented books and videos and presenting sexually
oriented dancing. Though plaintiffs responded to the statute by
changing the structure of the doors to the viewing booths, there
is no hint that they did not continue to operate their business
after the time for which they agreed to close the store (through
the state-court plea agreement) had passed.
Plaintiffs argue that prosecution cannot be ruled out because
plaintiffs' counsel sent a letter to the police asking if it was
enough that the bottom third of the doors to the booths have been
removed but received no answer. True, prosecution cannot be ruled
out, but the threat of prosecution is only speculative. Here, the
state of New Jersey has known about plaintiffs' set
up for a long time, both because of the raid and because
plaintiffs' counsel specifically told the police how plaintiffs'
booths are now configured. Despite that, plaintiffs have not been
indicted under N.J.S.A. 2C:33-12.2(b), nor has any law
enforcement authority threatened plaintiffs with such charges.
There is no reason, other than speculation, to believe that the
state will seek to indict plaintiffs under this statute.
Courts should avoid "interfering with legislative enactments
until it is necessary to do so," see Abbott Labs. v. Gardner,
387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). It is
also axiomatic that courts should avoid unnecessary adjudication
of constitutional issues. Here, there is no evidence of more than
a speculative threat of prosecution and it does not appear that
speech has been chilled. Therefore, this challenge fails the
hardship prong of the ripeness test. Because there is no "actual
controversy" under Article III, this Court cannot reach the
constitutional challenge to N.J.S.A. 2C:33-12.2(b).
For the reasons stated above, this Court finds that plaintiffs'
pre-enforcement challenge to N.J.S.A. 2C:33-12.2(b) is not ripe.
Therefore, defendant's motion to dismiss those aspects of the
Second Amended Complaint which are based on N.J.S.A.
2C:33-12.2(b) will be granted, and those claims will be dismissed
from the case for lack of subject-matter jurisdiction. Remaining
in this case are those aspects of Counts One through Five of the
Second Amended Complaint which challenge the constitutionality of
N.J.S.A. 2C:33-12, 2C33-12.1(b), 2C:34-1, and 2C:34-2, none of
which are the subject of any currently pending motions. The
accompanying Order is entered.
This matter having come before the Court upon defendant's
motion to dismiss or for a partial dismissal and partial stay;
and the Court having considered the parties' submissions; and for
the reasons expressed in an Opinion of today's date;
IT IS this day of January 2000 hereby
ORDERED that the aspect of defendant's motion to dismiss or for
a partial dismissal and partial stay which was continued by
virtue of the December 22, 1999 Order be, and hereby is,
GRANTED, such that those aspects of Counts One through Five of
the Second Amended Complaint which were based on N.J.S.A.
2C:33-12.2(b) are DISMISSED FOR LACK OF SUBJECT MATTER
JURISDICTION; and it is
ORDERED that the Oral Argument scheduled for January 28, 2000
at 11:30 a.m. be, and hereby is, CANCELED.