On Oct. 24, 1972, when Judge Light’s decision finding that the Sigma Theater was a public nuisance and ordered the theater closed immediately, and also set the case for a final hearing on Nov. 30, 1972, I was elated. However, the Pursue Limited lawyers had been busy because two days later, on October 26th, the manager filed a civil rights case in the Federal District Court in Toledo alleging a claim, under Section 1983 of the United States Code, asking for a temporary order restraining the state court parties (me and my gang) from acting under the authority of Judge Light’s order. He also asked for an injunction and asked the District Court to convene a three-judge panel to rule on the case on a permanent basis.
This whole federal procedure is a little different than the Ohio procedure. Section 1983 of the U.S. Code, commonly known as the “Civil Rights Enforcement Act,” was enacted by Congress in response to the unwillingness of some southern courts to protect the civil rights of certain citizens regarding education, voting, public conveniences and others. It was intended by Congress as a tool to aid in doing away with racial discrimination. In pertinent part, it reads as follows:
“Every person who, under color of any statute of any State … subjects any citizens of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action, at law, or other proper proceedings for redress.”
Dakota, the manager of the theater, filed an action in the Federal Court in Toledo asking the Federal Court for a temporary order restraining the closing of the theater and a permanent injunction and appointing a three-judge panel to try the case. He claimed a violation of his constitutional right to free speech had been violated by Judge Light’s action enjoining him from showing films. The case was assigned to U.S. District Judge Nicholas Walinski. One week later, on Nov. 2, 1972, Judge Walinski ruled that the state court’s temporary injunction issued by Judge Light be stayed which means that no further action may be taken based on it. We had to take our padlock off and Dakota immediately resumed his “free speech” by showing two films Nov. 4, 1972: “Sexual Freedom Now” and “Shoot-out at Beaver Alls.”
I filed a contempt motion in the Allen County Court against Dakota claiming he violated Judge Light’s order and was thus in contempt of the previous order. The court ordered Dakota to appear on Nov. 7, the date originally set for hearing on my motion for a permanent injunction. The Court continued the hearing to Nov. 30.
When Nov. 30, 1972, rolled around, the defendants, through their lawyer, informed the court that they would not be present at the hearing. The evidence I would have presented included 12 other films, which had been exhibited at the theater since Judge Light’s order had been abated by Judge Walinski. Immediately after the hearing, Judge Light filed an order that Pursue Limited and all its employees “are permanently enjoined and restrained from conducting the nuisance and that the place at 69 Public Square, Lima, Ohio, is ordered closed for any purpose for a period of one year and that Dakota pay the court costs.”
The next day, Dec. 1, 1972, after Judge Light’s closure order was filed, Pursue Limited filed a new action in the United States District Court in Toledo against me as prosecutor and Edward L. Fair as sheriff alleging a civil rights claim under Section 42 U.S. Code 1983 (quoted above). They requested the usual temporary restraining order, preliminary, and final injunction, and application for a three-judge panel. Civil rights cases under Section 1983 are heard on what is commonly referred to as a “rocket docket.” This means that they go to the head of the docket of the judge to whom they are assigned and a three-judge court is impaneled to hear them. Under the civil rights law, one of the three judges who will preside must be a Federal Court of Appeals Judge. This is because the usual appeal process is by-passed. The verdict of the three-judge panel may be appealed directly to the Supreme Court of the United States skipping the usual Court of Appeals procedure pursuant to Section 28 USCA 1253, the pertinent part of which reads:
“… any party may appeal to the Supreme Court from an order granting a permanent injunction in any civil action required by any act of Congress to be heard and determined by a district court of three judges.”
On Dec. 6, 1972, the Chief of the Sixth Circuit Court of Appeals designated Circuit Judge Anthony J. Celebrezze, who the Ohio Northern Law School has memorialized by naming the practice courtroom at the Law School after him, and the two local Toledo District judges, Walinski and Don J. Young, to be the three-judge panel.
The usual sparring among lawyers began. I filed a motion in the federal court to remand the case to the state court on the grounds that the case was not a civil rights case and that Pursue’s federal civil rights could be protected in the state appeals court. The Federal Court denied it. However, once the three-judge panel was named, I, and my assistant prosecutor, Gary L. Hermon, got busy preparing for what we thought would be a very prompt hearing before the three judges. After all, we were on the go-to-the-head-of-the-line “rocket docket,” weren’t we?
To find out what happened at the Federal Court with the three judge panel, see my next column in two weeks.
Moral of the Story: Success comes to those who are patient.
Lawrence S. Huffman is an attorney in Lima and a guest columnist in The Lima News.