author: ASPEN, District Judge.

text:
    John AURIEMMA, Daniel Coll, Marshall Considine, Renaldo Cozzi, Kenneth Curin, Russell Ditusa, Thomas Farragoi, Lawrence Forberg, John Hinchy, Kathryn Kajari, George Marcin, Patrick McDonough, Walter Murphy, John Rafter, Dominic Rizzi, James Stampnick, Thomas Walton and Roger Whalen, Plaintiffs, v. CITY OF CHICAGO, Harold Washington, Chicago Police Department and Fred Rice, Defendants.
    No. 84 C 1224.
    United States District Court, N.D. Illinois, E.D.
    Oct. 23, 1984.

      John L. Gubbins, Chicago, 111., for plaintiffs.
    Langdon Neal, Asst. Corp. Counsel, Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge.

This action, like many brought in recent years, challenges an alleged municipal practice of firing or demoting public employees because of their political affiliations. Plaintiffs are several members of the Chicago Police Department who held high-ranking positions in the force until defendant Harold Washington replaced Jane Byrne as Mayor of Chicago. Mayor Washington’s newly-appointed Police Superintendent, defendant Fred Rice, demoted each of the plaintiffs shortly after taking charge of the force. Count I of plaintiffs’ amended complaint alleges that these demotions deprived them of property without due process, in violation of the Fourteenth Amendment. Count II alleges that Mayor Washington and Superintendent Rice demoted plaintiffs to punish them for not supporting the Mayor’s 1983 campaign, thus violating their rights under the First and Fourteenth Amendments. Defendants (“the City”) have moved to dismiss. For the reasons stated below, the motion to dismiss is denied.

Facts

The following facts are taken largely from the allegations in the amended complaint, which we assume to be true for the purposes of this motion. Each of the plaintiffs held high positions in the police department. For example, plaintiff Auriemma was Commander of the Central Intelligence Unit. Plaintiff Considine was Director of the Crime Laboratory. Plaintiff Forberg was Commander of the Narcotics Section. Each plaintiff was demoted in late 1983 as part of what the amended complaint terms “massive demotions in the upper ranks of the Chicago Police Department.”

Plaintiffs allege in Count I that they all had performed well in their jobs, that they had never been disciplined and that they all had received awards for their service. They further allege that Superintendent Rice demoted them without cause and without a hearing, contrary to a “long-standing custom and policy of the Police Department” that persons in plaintiffs’ job categories be hired, fired, promoted, demoted or transferred solely on a merit basis. They conclude that their demotions without cause and a hearing violated their Fourteenth Amendment rights to due process of law.

Count II, in a sense, located the “cause” which was missing in Count I. Mayor Washington appointed Superintendent Rice, who is a political supporter of the Mayor. Plaintiffs allege that the Mayor directed the Superintendent to demote the plaintiffs, and that these demotions were intended to punish the plaintiffs for supporting mayoral candidates who opposed Mayor Washington in the 1983 campaign. Plaintiffs conclude that these politically motivated demotions violated their First and Fourteenth Amendment rights.

The City’s motion to dismiss attacks the sufficiency of both counts in the amended complaint. We may dismiss the complaint “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, — U.S.-, -, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). With this standard in mind, we turn to the City’s motion.

The Procedural Due Process Claim

The City argues that the plaintiffs have alleged no protectible “property interest” in their jobs, and thus Count I fails to state a claim for relief under the Due Process Clause. It points out that each plaintiff held a position which was exempt from the City’s so-called “Career Service” positions. “Career Service” employees are entitled by Ordinance to discharge or discipline only for cause following a hearing on the issue. Municipal Code of Chicago, §§ 25.1-5(12), 25.1-6. No such ordinance or statute limits termination of non-career service employees like plaintiffs. Because no statute or ordinance creates entitlement to retain plaintiffs’ jobs, the City concludes that plaintiffs have no property interest in their former positions. See, e.g., Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972) (to have a property interest, person must have legitimate claim of entitlement, arising out of State statute, rule or policy).

Before plaintiffs amended their complaint, we probably would have agreed with the City since the plaintiffs had alleged no legitimate, bilateral claim of entitlement to their former positions. But after receiving the City’s motion to dismiss, plaintiffs amended their complaint to allege that the police department had a “longstanding custom and policy” that people holding plaintiffs’ jobs would be demoted or fired for cause only. We hold that this complaint as amended sufficiently alleges a “property interest” within the meaning of Roth and its progeny.

Roth’s companion case, Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), held that even if no state statute or contract creates a property interest in a job, a person may still enjoy a “property interest” for due process purposes if the interest stems from “mutually explicit understandings” between the person and the state employer. Id. at 601, 92 S.Ct. at 2699. A plaintiff may allege and prove that the state agency has promulgated an “unwritten ‘common law’ ” of job tenure, which may be implied from “the policies and practices of the institution.” Id. at 602-03, 92 S.Ct. at 2700; see also, e.g., Amendola v. Schliewe, 732 F.2d 79, 86 (7th Cir.1984); Hadley v. County of DuPage, 715 F.2d 1238, 1241-42 (7th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 1000, 79 L.Ed.2d 232 (1984). Plaintiffs’ allegation, that police department custom requires that job discipline be based on cause determined after a hearing, plainly satisfies the requirements of Perry for the purpose of surviving a motion to dismiss.

The City tries to distinguish Perry by directing us to one of the Supreme Court’s footnotes, which reads:

... If it is the law of Texas that a teacher in respondent’s position has no contractual or other claim to job tenure, the respondent’s claim would be defeated.

408 U.S. at 602, n. 7, 92 S.Ct. at 2700. The City argues that unlike Perry, in this case explicit state law does apply to plaintiff’s job tenure, in that city rules vest the Superintendent with discretion to reassign plaintiffs as he deems appropriate. See City of Chicago Personnel Rules, Rule III, § 2. We disagree that this Rule, or other state laws granting the Superintendent wide discretion in personnel decisions, defeats the Perry allegation of a custom of merit-based job decisions. The alleged custom could very well supplement rather than contradict the Rules. Simply because state law gives the Superintendent broad discretion does not imply that he could not use his discretion to create a custom of merit-based job decisions. If plaintiffs can prove that past Superintendents have exercised their discretion in a way to follow the alleged custom, they would satisfy Perry. Cf. Soni v. Bd. of Trustees of the Univ. of Tennessee, 513 F.2d 347 (6th Cir.1975), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976) (oral assurances that alien faculty member had de facto tenure satisfied Perry even though he had previously not been eligible under state law). In sum, because a set of facts can be proved consistent with the allegations and with Perry, the motion to dismiss Count I is denied.

The Elrod-Branti Claim

The parties agree that two Supreme Court cases, Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), control our analysis of the sufficiency of Count II of the amended complaint. Elrod held that the newly elected sheriff of Cook County violated the First and Fourteenth Amendment rights of certain employees when he fired them “because they did not support and were not members of the Democratic Party and had failed to obtain the sponsorship of one of its leaders.” 427 U.S. at 351, 96 S.Ct. at 2679. While the Judgment rested on two opinions, a majority of the Court agreed that “a nonpolicymaking, nonconfidential government employee can[not] be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs.” Id. at 375, 96 S.Ct. at 2690 (opinion of Stewart, Blackmun, J.J., concurring in the judgment). This holding plainly implies that certain public employees — “policymaking” or “confidential” employees— can be fired for political reasons.

In Branti the Supreme Court reaffirmed Elrod’s ban against broad political purges of public employees, but reformulated the test of who can be fired for political reasons:

In sum, the ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.

445 U.S. at 518, 100 S.Ct. at 1295; see also Livas v. Petka, 711 F.2d 798, 800 (7th Cir. 1983). Thus, a court must address two questions in an Elrod-Branti case. First, was the public employee discharged because of her political beliefs or affiliations? If so, has the “hiring authority” met its burden of showing that political loyalty is an appropriate job qualification.

As to the first question, the City asserts that the plaintiffs were demoted for nonpolitical reasons. This argument clearly lacks merit. Plaintiffs have alleged that their demotions were politically motivated, and we must assume for this motion to dismiss that this allegation is true. The City might turn out to be right, but now is not the time to decide that.

Moving to the second question, the City argues that all the plaintiffs fall within the Elrod-Branti exception in that their political loyalty is an appropriate requirement for their former jobs. The City points out that city ordinance specifically defines plaintiffs’ former positions as involving policymaking and confidentiality:

Senior Executive Service, consisting of positions which entail duties including city-wide or departmental level determinations of policy, or positions which entail their implementation of such policies.

Municipal Code of Chicago, § 25.1-3. The City also cites police department regulations which state that persons holding plaintiffs’ former positions supervise, train and otherwise lead many other employees. While the plaintiffs no doubt shouldered a great amount of responsibility, we cannot say at this time that the City has met its burden of showing that the plaintiffs come within the Elrod-Branti exception.

Whether a public employee is a “policymaker” is largely a question of fact, which must be decided on a case-by-case basis. As the Supreme Court stated in Branti:

Under some circumstances, a position may be appropriately considered political even though it is neither confidential nor policymaking in character____ It is equally clear that party affiliation is not necessarily relevant to every policymaking or confidential position.

Thus, because of differences in the facts, an asistant public defender cannot be discharged for,party affiliation, Branti, 445 U.S. at 519-520, 100 S.Ct. 1287, 1295, but an assistant state’s attorney can be fired for political reasons. Livas v. Petka, 711 F.2d 798 (7th Cir.1983); Mummau v. Ranck, 531 F.Supp. 402 (E.D.Pa.), aff'd, 687 F.2d 9 (3d Cir.1982) (per curiam). A sheriff might properly be fired because of politics, Joyner v. Lancaster, 553 F.Supp. 809 (M.D.N.C.1982), but a deputy sheriff may not be. Barrett v. Thomas, 649 F.2d 1193, 1200-01 (5th Cir.1981), cert. denied, 456 U.S. 925, 102 S.Ct. 1969, 72 L.Ed.2d 440 (1982). It is relevant, but not enough for the City to cite some abstract regulations stating that plaintiffs belonged to a class of city employees which supervised other employees or promulgated some policies. The decision will ultimately turn on the idiosyncracies of each plaintiffs former position in an effort to determine whether “party affiliation is an appropriate requirement for the effective performance of” that particular public office. It might be that all, none or some plaintiffs will enjoy Elrod-Branti protection. But those individual decisions will have to be based on more than the pleadings and a few general regulations.

The City also argues that Elrod and Branti apply to discharges or threatened discharges, but not to the demotion which the plaintiffs allegedly suffered. The narrow holding of Elrod speaks to “discharges.” 427 U.S. at 375, 96 S.Ct. at 2690 (concurring opinion) (emphasis added), but does not directly address weaker forms of reprisal. Nevertheless, Elrod and Branti may apply to plaintiffs’ demotions.

McGill v. Bd. of Education of Pekin Elementary School District No. 108, 602 F.2d 774 (7th Cir.1979), presents an analogous situation. The plaintiff in McGill was a teacher who sued her employer, a school board, for transferring her to another school in retaliation for constitutionally protected speech. The school board argued that because she was only transferred— without loss of pay or seniority — rather than fired, she suffered no violation of her rights. The Seventh Circuit held that unlawful retaliation can take the form of transfer rather than discharge, even without loss of pay or seniority. Id. at 780. “The test is whether the adverse action is likely to chill the exercise of constitutionally protected speech.” Id. While McGill involved free speech rights, we do not think those rights can be distinguished in this context from the First and Fourteenth Amendment rights to political belief and affiliation which were protected in Elrod and Branti. Thus, a politically motivated demotion — which is harsher punishment than the lateral transfer in McGill — may fall within Elrod-Branti if it is “likely to chill” the exercise of the rights protected in Elrod-Branti.

We are aware that the Fourth Circuit has considered whether Elrod-Branti embraces actions other than dismissal and reached a narrower conclusion than we do. See Delong v. United States, 621 F.2d 618 (4th Cir.1980). The plaintiff in Delong was reassigned and transferred for allegedly political reasons. While the Court extended Elrod-Branti to a “wider range of patronage burdens than threatened or actual dismissals,” id. at 623, the Court confined the range to “substantial equivalent[s] of dismissal.” Id. at 624. The relevant inquiry according to the Fourth Circuit is:

whether the specific reassignment or transfer does in fact impose upon the employee such a Hobson’s choice between resignation and surrender of protected rights as to be tantamount to outright dismissal____ It is obvious that not every reassignment or transfer can fairly be thought to have this quality.

Id. We agree with Delong that not every transfer or reassignment necessarily deserves Elrod-Branti protection, but we respectfully disagree that Elrod-Branti is confined to de facto dismissals. As the plurality in Elrod stated, “[rjights are infringed both where the government fines a person a penny for being a Republican and where it withholds the grant of a penny for the same reason.” 427 U.S. at 360 n. 13, 96 S.Ct. at 2683. While a majority of the Court might not extend Elrod-Branti to fines of a penny, we do believe it would do so to actions which might have some real “chilling” impact on employees. As the Seventh Circuit emphasized in McGill, the focus should not be on the type of job action per se, but on whether the transfer, demotion, pay cut, etc., is “likely to chill” protected rights. 602 F.2d at 780.

The City agrees that the McGill test is relevant, but argues that the demotions alleged in this ease were not likely to chill Elrod-Branti rights. We disagree. Although the plaintiffs retain supervisory positions of substantial responsibility, they were demoted, and according to their affidavits, at least a few of the plaintiffs suffered serious cuts in pay. A demotion from a high-ranking position, coupled with a pay cut, is substantial and, we hold, “likely to chill” the Elrod-Branti rights of political thought and affiliation, assuming, of course, that plaintiffs can meet the other Elrod-Branti requirements discussed earlier.

The Shakman Issue

One last issue remains to be disposed of. The plaintiffs argue that their positions were shielded from political demotions by the consent decree issued on June 20, 1983, in Shakman v. Democratic Organization of Cook County, No. 69 C 2145 (N.D.Ill.1983) (Bua, J.). It is unclear what the thrust of plaintiffs’ argument is. If they believe that the City has violated the terms of Shakman consent decree, then they must present that claim in the form of a contempt petition in that proceeding. If the plaintiffs are asserting that the Shakman decree is res judicata, we agree with Judge Marshall that Shakman is not res judicata or collateral estoppel for separate actions brought under 42 U.S.C. § 1983 alleging Elrod-Branti violations. Gannon v. Daley, 561 F.Supp. 1377 (N.D.Ill.1983); Gannon v. Daley, 531 F.Supp. 287 (N.D.Ill. 1981). Therefore, the Shakman consent decree does not dispose of Count II of the amended complaint.

Conclusion

For the reasons stated above, the City’s motion to dismiss is denied. It is so ordered.

      . This action is brought under 42 U.S.C. § 1983. Our jurisdiction is based on 28 U.S.C. § 1331 and 28 U.S.C. § 1343.

      . See Begg v. Moffitt, 555 F.Supp. 1344, 1348-49 (N.D.Ill.1983) (Marshall, J.) (allegations of police department customs and other informal, "mutually explicit understandings” withstand motion to dismiss); Hermes v. Hein, 511 F.Supp. 123 (N.D.Ill.1980) (Kocoras, J.) (allegation of unwavering municipal custom and stated policy satisfied Perry). While the allegations in Hermes survived a motion to dismiss, the case was ultimately dismissed on summary judgment and affirmed on appeal because the plaintiff did not prove any material facts to support the allegation of custom. Hermes v. Hein, 742 F.2d 350 (7th Cir.1984); see also Hadley v. County of DuPage, 715 F.2d 1238, 1242-43 (7th Cir.1983) (naked assertion of a custom of not firing employees without a hearing could not survive a motion for summary judgment). This case is similar to Begg or Hermes in 1980, since we are now only at the pleadings stage. We do not now express any opinion on the merits of the allegation of custom, and the plaintiffs will of course later have to support the allegation with facts in order to survive summary judgment.

      . This Rule provides, "[ajppointments to Senior Executive Service positions are made at the discretion of the department head.”

      . See Ill.Rev.Stat. ch. 24, ¶3-7-3.2 (1983).

      . For other examples, see Gannon v. Daley, 561 F.Supp. 1377, 1384 n. 20 (N.D.Ill.1983).

      . We agree with Judge Marshall, see Gannon, 561 F.Supp. at 1383, that the "appropriate requirement” test of Branti is vague. Judge Marshall refined the test as:
      Where an employee’s discretion is sufficiently cabined so that his or her meaningful policy and administrative guidance comes from superiors, the Constitution prohibits political dismissals.

        Id. We need not decide now whether to apply Judge Marshall’s refinement or to try to refine the standard ourselves.

      . We note that other courts have assumed that Elrod-Branti applies to job actions less severe than dismissal; however, the courts in these cases were apparently never moved to address the issue squarely. See DeLuca v. Sullivan, 450 F.Supp. 736, 740 (D.Mass.1977) (failure to promote); Miller v. Bd. of Educ. of County of Lincoln, 450 F.Supp. 106 (S.D.W.Va.1978) (transfers, demotions and discharges); Cullen v. New York State Civil Service Commission, 435 F.Supp. 546, 552 (E.D.N.Y.1977) (failure to promote).

      . For a full discussion of the issues leading up to the Consent Decree, see Shakman, 481 F.Supp. 1315 (N.D.Ill.1979).


source: Caselaw Access Project

author: JAMES McGIRR KELLY, District Judge.

license: Public Domain

text:
    Richard VIOLA v. BENSALEM TOWNSHIP, et al.
    Civ. A. No. 84-3184.
    United States District Court, E.D. Pennsylvania.
    Nov. 8, 1984.

      Richard A. Sprague, Philadelphia, Pa., for plaintiff.
    Ward F. Clark, Doylestown, Pa., for defendants.
   MEMORANDUM AND ORDER

JAMES McGIRR KELLY, District Judge.

Presently before this court is defendants’ motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6) and in the alternative a motion for a more definite statement pursuant to Fed.R.Civ.P. 9. The defendant Natalie Strange, Township Manager, individually has motioned this court to dismiss plaintiffs complaint pursuant to Fed.R.Civ.P. 12(b)(6). Last, defendant Emil Toften, Solicitor for the Board of Supervisors of Bensalem Township, individually has motioned this court to dismiss plaintiffs complaint pursuant to Fed.R. Civ.P. 12(b)(6) and in the alternative a motion for a more definite statement pursuant to Fed.R.Civ.P. 9.

Plaintiff Richard Viola originally brought an action for a writ of mandamus in state court, but subsequently voluntarily dismissed the action and brought this action in federal court. Because defendants have motioned this court to dismiss for failure to state a claim, the plaintiffs complaint will be viewed most favorably to him, the non-moving party.

Based upon the pleadings, the alleged facts are that plaintiff was appointed police chief by the Bensalem Township Board of Supervisors (“Board”) in mid-1981. At that time one Township Supervisor, Mr. Kelly, a defendant here, dissented on the vote to appoint the plaintiff. Specifically, at the time of casting his vote, Mr. Kelly stated he believed the appointment was politically motivated, and when he got the necessary support on the Board, he would move for the dismissal of the plaintiff as police chief. Sometime after the plaintiff was appointed police chief, the plaintiff brought charges, seeking dismissal for cause, against: defendant Theodore Zajac (then deputy chief), Mr. Kosarek (then detective), and Mr. Rouland (then detective). Mr. Rouland resigned. Conversely, upon the vote of the Board (at that point in time) Detective Theodore Zajac and Mr. Kosarek were dismissed. Each of the two subsequently brought civil suits against the Township concerning the propriety of their dismissals. Further, plaintiff assisted state and federal authorities in an investigation of defendant Kelly for possible federal narcotic violations. Indeed, plaintiff assisted in the arrest of defendant Kelly on federal narcotic charges. Defendant Kelly’s counsel in that matter was Mr. Denker, a defendant here.

After the election of November, 1983, defendant Kelly got the necessary support from the Board to suspend plaintiff without pay. On January 3, 1984, the Board voted in favor of suspending the plaintiff as police chief. The Board did not give the plaintiff notice of the charges which they relied upon to dismiss nor at that time was an opportunity granted for a hearing, for plaintiff to answer the general allegations of misconduct prior to his dismissal. There were no formal charges levied against the plaintiff by the Board at any time prior to his dismissal.

Plaintiff contends that the defendants, in an orchestrated effort, sought the removal of plaintiff prior to the election of the present Board. Specifically, the plaintiff alleges that defendant Kelly was the “king pin” who “bought the” favors of some of the other defendants who were at the time candidates for the position of Township Supervisor, by promising to support their candidacy during the election and by promising employment opportunities to certain members of the candidates’ families. It must be noted here that defendant Kelly alone could not grant employment opportunities, but rather the Board by majority vote did in essence control the purse, and therefore, the job opportunities of the Township.

When the newly elected Board came into power, after it discharged plaintiff as chief of police, it reinstated defendant Zajac as deputy police chief, and reinstated Mr. Kosarek as detective. In addition, the Board appointed a panel consisting of defendant Cameron and Denker to recommend settlement of certain civil suits pending against the Township. These suits primarily arose out of the discharge of defendant Zajac and Mr. Kozsarek.

At the same Board meeting that plaintiff was dismissed, the Board appointed a panel consisting of the defendant McHugh and defendant Eckert, Township Police Lieutenant to conduct an investigation of plaintiff’s behavior during the period of his entire employment with the township. The investigation panel researched the matter for approximately four months. Plaintiff asserts that this panel worked in concert with the Board to stack the charges against the plaintiff.

The investigation panel made its report to the Board on May 7, 1984, approximately four months after plaintiff was dismissed. The Board, after discussing the charges in a closed meeting, voted to affirm its prior decision of dismissal. Again the Board did not give prior notice of this action, nor was an opportunity given to plaintiff to be heard on this matter.

Plaintiff claims that he has suffered public scorn, humiliation, injury to reputation, and severe emotional distress as a result of defendants’ behavior.

Count I of plaintiff’s complaint alleges that the defendants (except Township Manager Strange) violated the Racketeer Influenced and Corrupt Organization Act (RICO) 18 U.S.C. § 1961 et seq. by their activities which caused the plaintiff to be injured. Particularly, plaintiff claims that the defendant organized a purposeful effort, which included trading votes on the Board for support and consideration during the election and/or employment opportunities for family and friends. This behavior plaintiff claims amounts to a violation of 18 Pa.Cons.Stat.Ann. § 4701 (Purdon, 1983), Bribery in Official and Political Matters. Moreover, plaintiff alleges that the defendants on the Board settled various lawsuits, which were brought by some of the other defendants against the Township, favorably to these defendants who brought the suits. Defendants Kelly, McHugh, T. Zajac and R. Eckert, it is alleged, conspired among and between themselves during their investigation of plaintiff. Plaintiff also alleges that the defendants traveled in interstate commerce to promote their alleged illegal activity. Finally, plaintiff alleges that all of the defendants (except Township Manager Strange) either acted primarily or aided and abetted, in violating 18 U.S.C. § 1341 (mail fraud) and § 1343 (wire fraud).

Plaintiff asserts his injuries, inter alia, of being suspended from his job, injury to his reputation, and his emotional distress were the result of the unlawful activity of the defendants in violating 18 U.S.C. § 1961, et seq. (RICO). Plaintiff’s theory of recovery is grounded in his assertion that the defendant violated the civil provision of RICO 18 U.S.C. § 1964 which states in part:

Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit including a reasonable attorney's fee.

Therefore, our analysis must lead to the review of 18 U.S.C. § 1962 which states in part:

(a) It shall be unlawful for any person who has received any income derived directly or indirectly from a pattern of racketeering activity ... to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate, or foreign commerce ...
(b) It shall be unlawful for any person through a pattern of racketeering activity ... to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.
(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity ...
(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (c) of this section

Enterprise is defined in 18 U.S.C. § 1961(4):

‘Enterprise’ includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.

Pattern of racketeering activity is defined in 18 U.S.C. § 1961(5):

‘Pattern of racketeering activity’ requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity.

Racketeering activity is defined in 18 U.S.C. § 1961(1) which states in part:

‘Racketeering activity’ means (A) ... bribery ... (B) any act which is indictable under any of the following provisions of title 18, United States Code: ... Section 1341 (relating to mail fraud), section 1343 (relating to wire fraud) ... section 1952 (relating to racketeering)....

It is plaintiff’s contention that the defendants did engage in a pattern of racketeering activity and did conspire to engage in a pattern of racketeering activity to acquire and maintain control and interest in the Board, thus violating 18 U.S.C. § 1962 b, d supra. Additionally, it is plaintiff’s contention that the defendants are either employed by or control the Township Board (which constitutes an enterprise) and are involved in a pattern of racketeering activity; therefore, the defendants are in violation of 18 U.S.C. § 1962 c. See United States v. Davis, 707 F.2d 880 (6th Cir.1983) (County Sheriff’s Office constituted an “enterprise” under RICO).

As is often the case the parties do not agree as to the applicability of the civil RICO statute. Defendants argue that their behavior does not fall within the purview of the civil RICO Act. Specifically, the defendants assert that a person must be convicted under the predicated offenses listed under 18 U.S.C. § 1961(1) supra before one can bring a civil suit. Sedima, S.P.R.L. v. Imrex Co., Inc., 741 F.2d 482 (2nd Cir.1984). Further, the defendants argue that one must show a “RICO” injury before one can recover under RICO. Sedima, supra; Bankers Trust Company v. Rhoades, 741 F.2d 511 (2d Cir.1984). In essence, defendant asserts, because the defendants have not been convicted for the predicated acts nor has plaintiff alleged a RICO injury, the plaintiff lacks standing to bring the RICO civil claim. Conversely, plaintiff asserts that neither conviction for the predicated acts nor a showing of injury beyond that caused by the predicated acts need be shown to recover under RICO. United States v. Cappetto, 502 F.2d 1351 (7th Cir.1974) cert. denied, 420 U.S. 925, 95 S.Ct. 1121, 43 L.Ed.2d 395 (1975); Kimmel v. Peterson, 565 F.Supp. 476 (E.D.Pa.1983).

The Act itself is not explicit on these points. Moreover, the Third Circuit has not yet ruled as to whether conviction of the predicated acts or a showing of RICO injury is required for standing to bring a civil RICO action. To dispose of the RICO count I need only address whether or not conviction of the underlying predicated acts is required.

In Sedima, supra, the Second Circuit held that conviction of the predicate criminal acts was a prerequisite before bringing a civil RICO action. Thus, for a party to have standing to bring a civil RICO action, the party must show that the defendants have been convicted of the underlying acts. The court in Sedima cited the fact that RICO liability does not exist without criminal conduct. That the act itself was to remedy wrongs done by criminal activity. Id. at 500. Additionally, the court went on to discuss problems which would arise because of different standards of proof, if the predicated acts would be allowed to be ‘prosecuted’ by the plaintiff in a civil action. Id. at 501-502. Further, without pri- or criminal convictions of predicated acts as a requirement for standing in a civil RICO action, a defendant in a civil suit may be in a serious dilemma. If the defendant in a civil RICO action elected not to answer question by exercising his 5th amendment rights, a fact finder may wrongly infer culpability; conversely, if a defendant does not interpose the 5th amendment, he may be exposed to criminal prosecution. In the final analysis, the Second Circuit in Sedima rested its opinion on the intention of Congress and the purpose of the civil RICO action all of which reveal the more logical interpretation of requiring criminal conviction at least for the predicated acts.

Conversely, plaintiff relies upon Cappetto, supra, which dealt with the right of the United States government to seek an injunction under the civil RICO statute. Another line of cases plaintiff cites is the USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94 (6th Cir.1982) where the Sixth Circuit merely stated that a conviction under 18 U.S.C. § 1962 (Criminal RICO) was not a prerequisite for standing in a civil RICO action. This is distinguishable from here where all that is argued by defendant is that conviction of the predicated act is required rather than conviction under RICO. In Kimmel v. Peterson, 565 F.Supp. 476 (E.D.Pa.1988) the Court merely relied upon US ACO, supra, and several district court cases for authority that conviction for the predicated acts is not required.

Notwithstanding the authority presented by the plaintiff, I believe the better view was most recently enunciated by the Second Circuit in Sedima, supra, requiring conviction of the predicated acts. Accordingly, I will dismiss plaintiff’s RICO count because he lacks standing to bring such action.

Count II of plaintiff’s complaint alleges that the defendants violated his substantive due process rights as guaranteed by the 14th amendment by damaging plaintiff’s reputation. Moreover, the plaintiff claims this resulted in his liberty being curtailed since now, because of the damaged reputation, plaintiff avers that he lacks mobility in the work force and his job opportunities have been narrowed. Additionally, plaintiff contends that since his employment contract was terminated without notice nor was he given an opportunity to be heard at the time of the discharge, his procedural due process right under the 14th amendment has been violated. Based upon the foregoing, the plaintiff couches Count II on Title 42 U.S.C. § 1983.

Section 1983 comes into operation where one asserts a violation of a federal statute or constitutional right by a person who acts under color of state law. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980). Here it is clear that the defendant Board acted under color of state law when it discharged plaintiff. Next, we must address what federal right was violated by the discharge.

Plaintiff first asserts that his substantive due process rights were violated because the discharge caused his reputation to be damaged. The plaintiff has not directed this court to any authority to support his argument. Certainly standing alone the right to reputation is not a fundamental right, especially where it is merely incidental to a discharge from employment. Moreover, every person who is discharged for cause has some questions raised in his community as to his competence, thus having some damage to his reputation. However, this is not to say that one can be denied procedural due process when a property interest, such as the employment contract here, is coupled with an injury to reputation. Cf. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Board of Regents of State Colleges, et al. v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972).

Here plaintiff has an adequate procedure at the state level to remedy the asserted wrong. The plaintiff has the right to a hearing before the Board to answer the allegations made in the letter sent to plaintiff informing him of his discharge. The applicable Pennsylvania statute 53 P.S. § 814 states in part:

§ 814. Hearings on dismissals
If the person sought to be suspended or removed shall demand a public hearing, the demand shall be made to the appointing authority. Such person may make written answers to any charges filed against him. The appointing authority shall grant him a public hearing, which shall be held within a period of ten days from the filing of charges in writing, and written answers thereto filed within five days, and may be continued by the appointing authority for cause or at the request of the accused. At any such hearing, the person against whom the charges are made may be present in person and by counsel____
A written record of all testimony taken at such hearings shall be filed with and preserved by the appointing authority, which record shall be sealed and not be available for public inspection in the event the charges are dismissed.

Further, 53 P.S. § 815 provides for review by appeal to the Court of Common Pleas. The discretion of the Court of Common Pleas determines whether or not the review will be de novo. Kelly v. Warminster Township Board of Supervisors, 44 Pa.Cmwlth. 457, 404 A.2d 731 (1979). Each time an individual is discharged from public employment within a state does not create a situation where a federal forum must be provided. Certainly where a state forum is provided which meets procedural due process, as is the case here, the plaintiff cannot merely decide not to use the state mechanism, but rather seek a federal forum. Cohen v. City of Philadelphia, 736 F.2d 81 (3d Cir.1984); Kelly v. Warminster Township Board of Supervisors, et al., 512 F.Supp. 658 (E.D.Pa.1981), affirmed 681 F.2d 806 (3d Cir.1982), cert. denied, 459 U.S. 834, 103 S.Ct. 76, 74 L.Ed.2d 74.

In conclusion, the fact that plaintiff was denied a property right (his contract) triggered procedural due process. Due process requires that notice of the charges and an opportunity to be heard. Board of Regents of State Colleges, et al. v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Pennsylvania law provides for a hearing, 53 P.S. 811 et seq. The Board has notified the plaintiff of the charges against him. There has been no questions raised that the procedure provided by state law would deny plaintiff of due process. Accordingly, the plaintiff has not been denied due process. Cohen, supra.

Counts III and IV of plaintiffs complaint are clearly grounded in contract and tort law, therefore, neither have an independent basis for jurisdiction in federal court.

Because of the foregoing reasons, plaintiff has failed to state a claim, thus defendant’s motion to dismiss must be granted.

      . Bensalem Township, Township Manager Natalie Strange, Township Tax Collector Theresa Eckert, Individual Township Supervisors: Stephen Kelly, Patricia Zajac, Nicholas Pasqualone, and Mary Komada, Deputy Chief of Police Theodore Zajac, Lieutenant of Police Robert Eckert, Solicitor of the Township Emil Toften, and Special Counsel to the Board of Supervisors, Raymond McHugh, Barry Denker, and William Cameron.

      . As the defendants have not answered plaintiff’s complaint, the plaintiff’s allegations for the purpose of this matter now before the court will be viewed as the facts.

      . The Board of Township Supervisors consists of five members of the community, duly elected by the public, which act as the governing body of the Township.

      . Defendants have not raised a defense that exigent circumstances were present; therefore, this Court will conclude at this time no exigent circumstances were present.

      . The reason the meeting was closed was because the subject matter of the meeting pertained to personnel and staff. The excluding of the public during discussion of personnel and staff is permissible under Pennsylvania law. See 65 Pa.Cons.Stat.Ann. § 263 (Purdon, 1984).

      . In the defendants' recital of the facts in their brief supporting the instant motion, defendants contend that on May 21, 1984, the Board withdrew their dismissal without pay, and supplanted it with a suspension with pay, pending a hearing on this matter. A motion to dismiss for failure to state a claim requires the Court to view plaintiffs complaint as true. The plaintiff has not mentioned this Board meeting action on May 21st. Accordingly, I will not consider the May 21st action here.

      . Plaintiff would have this court believe that the Court of Appeals for the Third Circuit in Seville Industrial Machinery Corp. v. Southmost Machinery Corp., 742 F.2d 786 (3d Cir., 1984) by not specifically addressing the issue of whether or not conviction of predicated crimes is a requirement for standing to bring a civil RICO action, inferred a holding that no conviction is necessary. However, this is not so, the issue before that court was whether or not the plaintiff pleaded the underlying act of fraud .with sufficient particularity; and whether the plaintiff properly alleged the existence of ah enterprise as defined by RICO. Consequently, the court never reached the question which is raised by the defendant here.

      . This is distinguishable from Farmers Bank of State of Del. v. Bell Mtg. Corp., 452 F.Supp. 1278 (D.Del.1978) which plaintiff offers as authority that conviction of the predicated acts are not required. The court in Farmer merely stated that one need not be convicted under the criminal provisions of RICO before a civil action under RICO could be maintained. Actually, the defendant Pennington in Farmer had been convicted of a federal charge and was serving time in federal penitentiary. Id. at 1279, n. 1.

      . Section 1983 states in part:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof 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, suit in equity, or other proper proceeding for redress____

      . Where a fundamental right is not in issue, the judiciary will give deference to the governmental body that the law has a rational basis. This analysis is all that is required under the constitution. Cf. Lincoln Union v. Northwestern Co., 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212 (1949); United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). Further, it should be noted that plaintiff has mischaracterized his claim as a substantive due process violation. There has not been any legislative acts which plaintiff contends are depriving him of his rights. Rather, plaintiffs claims are grounded in contract and tort, namely defamation. Compare Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979) (Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law). However, I am not saying here that where a plaintiff can recover under state law, he may not necessarily recover for a constitutional violation. Cohen v. City of Philadelphia, 736 F.2d 81, 87 (3d Cir.1984).

      . The Pennsylvania Commonwealth Court in Kelly v. Warminster Township Board of Supervisors, 44 Pa.Cmwlth. 457, 404 A.2d 731 (1979) stated that the Police Tenure Act 53 P.S. § 811 et seq. provided adequate procedural due process.


author: TOM S. LEE, District Judge.

text:
    FERNWOOD BOOKS AND VIDEO, INC., a Mississippi corporation, Select Books and Video, Inc., a Mississippi corporation, and Golden Distributors, Inc., a Mississippi corporation, Plaintiffs, v. CITY OF JACKSON, MISSISSIPPI, a municipal corporation, Defendant.
    Civ. A. No. J84-0775(L).
    United States District Court, S.D. Mississippi, S.D.
    Nov. 13, 1984.

      John H. Weston, G. Randall Garrow, Robert A. Sarno, Weston & Sarno, Beverly Hills, Cal., Bobby B. DeLaughter, Kirksey, Brantley & DeLaughter, Jackson, Miss., for plaintiffs.
    John Hedglin, Jackson, Miss., for defendant.
   MEMORANDUM OPINION

TOM S. LEE, District Judge.

The plaintiffs, Fernwood Books and Video, Inc., Select Books and Video, Inc. and Golden Distributors, Inc., filed this action to enjoin enforcement of an obscenity ordinance recently enacted by the defendant, the City of Jackson. This court declined to enter a temporary restraining order pending resolution of the plaintiffs’ Motion for a Preliminary Injunction. After review of the memoranda of authorities submitted by the parties and oral argument, the court is of the opinion that the plaintiffs’ Motion for Preliminary Injunction is well taken and should be granted.

PULLMAN ABSTENTION

The defendant contends that this court should refrain from deciding the constitutional issues in this case pursuant to the abstention doctrine set out in Railroad Commission of Texas v. Pullman Company, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The Pullman Court stated that a federal court may properly defer to a state court “if a definitive ruling on the state issue would terminate the controversy.” Id. at 498, 61 S.Ct. at 644. Abstention, however, is the exception rather than the rule. See Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976); Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (1967); O’Hair v. White, 675 F.2d 680, 692 (5th Cir.1982); High Ol’ Times, Inc. v. Busbee, 621 F.2d 135, 139 (5th Cir.1980); Gibson v. Jackson, 578 F.2d 1045, 1048-49 (5th Cir.1978), cert. denied, 439 U.S. 1119, 99 S.Ct. 1028, 59 L.Ed.2d 79 (1979); Goldstein v. Allain, 568 F.Supp. 1377, 1383-84 (N.D. Miss.1983).

A federal court should exercise its jurisdiction unless resolution of the state law issue is “fairly susceptible of an interpretation that might avoid or substantially modify the federal constitutional question.” O’Hair v. White, 675 F.2d at 693. Abstention is not appropriate when state law is not ambiguous and is not necessary in every case involving a question that has not yet been interpreted by the state court. Id. In addition, abstention is rarely proper when fundamental constitutional rights, particularly First Amendment rights, are involved. See Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974); Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020, 1032-33 (5th Cir.1981); Hobbs v. Thompson, 448 F.2d 456, 463 (5th Cir.1971). After review of the issues raised by the plaintiff, this court concludes that abstention is not appropriate in this case.

CRITERIA FOR ISSUANCE OF A PRELIMINARY INJUNCTION

The requirements for the issuance of a preliminary injunction are well settled in the Fifth Circuit. The moving party must show:

(1) a substantial likelihood that the movant will prevail on the merits;

(2) a substantial threat that the movant will suffer irreparable injury if the injunction is not granted;

(3) that the threatened injury to the movant outweighs the threatened harm the injunction may do to the nonmoving party; and

(4) that granting the preliminary injunction will not disserve the public interest.

Canal Authority v. Callaway, 489 F.2d 567, 572 (5th Cir.1974).

LIKELIHOOD OF SUCCESS ON THE MERITS

To prevail on their Motion for Preliminary Injunction, the plaintiffs must first demonstrate a substantial likelihood that they will succeed on the merits of their claims. The plaintiffs have raised two distinct claims and the court will discuss each separately.

1. Preemption by State Law

The plaintiffs argue that the City is without power to enact its obscenity ordinance because of the existence of a state statute regulating the same material. The City’s only response to this contention is that the statute has been held to be unconstitutional. This, of course, is not correct. In Goldstein v. Allain, the United States District Court for the Northern District of Mississippi merely enjoined enforcement of the statute against the plaintiffs pending a trial on the merits. In all other respects, the statute continues to be an enforceable law of this state. Section 21-13-19, Miss. Code Ann., provides:

“All offenses under the penal laws of this state which are misdemeanors are hereby made, without further action of the municipal authorities, criminal offenses against the municipality in whose corporate limits the offenses may have been committed to the same effect as though such offenses were made offenses against the municipality by separate ordinance in each case.”

Therefore, the portions of the state obscenity statute relating to misdemeanors are also enforceable laws of the City of Jackson, subject to the preliminary injunction entered in Goldstein.

The question of preemption presented by the plaintiffs has not been directly addressed by the Mississippi Supreme Court. Section 21-17-5 of the Mississippi Code Annotated grants the municipality the power to “enact ordinances for the purposes provided by law, where same are not repugnant to the laws of the state.” Interpretation of this statute and its predecessors has made it clear that a municipality

“can only exercise such powers as are delegated by the legislature to municipalities and that such powers should be exercised in conformity to and consistent with the general laws of the state; that a municipality has no power except that delegated to it by the state; that powers of a municipality are to be construed most strongly against an asserted right not clearly given and cannot be extended by mere implication; [and] that if there is a conflict between a municipal ordinance and a state statute the latter must prevail.”

In City of Jackson v. Lee, 252 So.2d 897 (Miss.1971), the Mississippi Supreme Court upheld a Jackson ordinance requiring that operators and passengers of two-wheeled self-propelled vehicles wear helmets. The court found authority for the ordinance in the Mississippi statute delegating to municipalities the power to exercise jurisdiction in the matter of streets, sidewalks, sewers and parks. Furthermore, § 8150, Miss. Code Ann. (1956) (recodified at § 63-3-209, Miss.Code Ann. (1972)), specifically provided that “Local authorities may, however, adopt additional traffic regulations which are not in conflict with the provisions of this Act.” The court determined that the ordinance was not in conflict with the statute but rather was merely an additional traffic regulation as contemplated by the legislature.

Likewise, in Watkins v. Navarrette, 227 So.2d 853 (Miss.1969), the challenged ordinance was found to be authorized by state legislation. The ordinance made it unlawful to sell light wine and beer between the hours of 2:00 A.M. and 9:00 A.M. on week days and between 12:00 midnight Saturday and 9:00 A.M. Monday. The statute prohibited sale of beer and wine between 12:00 midnight and 7:00 A.M. or “during any time the licensed premises may be required to be closed by municipal ordinance or order of the Board of Supervisors.” Section 10223, Miss.Code Ann. (1942) (recodified at § 67-3-53, Miss.Code Ann. (1972)). The State Tax Commission, pursuant to statutory authority, had approved the sale of alcoholic beverages in the city between the hours of midnight and 2:00 A.M. on weekdays. The court acknowledged that, in the event of a conflict between an ordinance and a statute, the statute must prevail. The court held that no conflict existed but stated that an ordinance extending hours during which beer could be sold would be contrary to the controlling state law. In City of Amory v. Yielding, 203 Miss. 265, 34 So.2d 726 (1948), the Mississippi Supreme Court invalidated a local ordinance that had the effect of nullifying a state statute. The state statute provided that the possession of beer for personal consumption was legal. The local ordinance, which made that act illegal in the City of Amory, was held to be void because of the clear conflict with the statute. Id. 34 So.2d at 728.

In Hattiesburg Firefighters Local 184 v. City of Hattiesburg, 263 So.2d 767 (Miss. 1972), the court reviewed state statutes setting forth the powers and duties of a city council operating under a commission form of government and found authority for the enactment of an ordinance requiring that city employees reside within the city limits. Section 3374-53, Miss.Code Ann. (1942) (recodified at Section 21-5-9, Miss.Code Ann. (1972)), empowered the council to enact “all needful rules and regulations for the government of the officers and employees of such city.” Section 3374-54, Miss.Code Ann. (1942) (recodified at Section 21-5-11, Miss.Code Ann. (1972)), authorized the making of “all such rules and regulations as may be necessary or proper for the efficient and economical conduct of the business of the city.”

The defendant has not identified any such authorization for the enactment of the ordinance under consideration. None of the above cases are directly on point regarding the issue before the court. The state statute does not specifically contemplate or anticipate additional regulation by a city as did the statutes in Watkins, City of Jackson, and Hattiesburg Firefighters. The Jackson ordinance, as a whole, does not have the effect of nullifying a state statute as the ordinance did in the Amory case. A precise comparison of the statute and ordinance and the determination of their relative effects would be difficult because of the nature of the legislation. In Hattiesburg Firefighters, 263 So.2d at 769, the Mississippi Supreme Court stated that “powers of a municipality are to be construed most strongly against an asserted right not clearly given and cannot be extended by mere implication”. Therefore, this court is of the opinion that, if presented with the issue, the Mississippi Supreme Court would find that the enactment of the ordinance was an unauthorized exercise of power by the City of Jackson and is therefore invalid. Accordingly, the plaintiffs have satisfied the first requirement of the Canal Authority test in showing a substantial likelihood of success on the merits of their preemption claim.

2. Substantive Challenges to the Ordinance

The plaintiffs have raised various substantive challenges to the ordinance, and the court will review each claim separately as an additional basis for its conclusion that the first requirement of the Canal Authority test has been met.

The plaintiffs arigue that officers of a corporation are made strictly liable if the corporation is found guilty of violating the ordinance. The ordinance, according to the plaintiffs, eliminates the requirements of actus reus and mens rea vis-a-vis corporate officers. If the ordinance does in fact operate in that fashion, it penalizes mere “status”, which the United States Supreme Court prohibited in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). The ordinance provides that “when a corporation is charged with violating this Ordinance, the corporation, the president, the vice-president, the secretary, and the treasurer may all be named as defendants.” As named defendants, the corporate officers are charged with the violation. To obtain a conviction against any defendant, corporate officer or not, the City must prove the elements of the crime which are set out in Section 1 of the ordinance. Therefore, the ordinance does not eliminate the requirement of actus reus, but, rather, it necessitates the showing of a direct involvement in the commission of the offense by any defendant.

Section 6 of the ordinance states:

A required element of any conviction under this ordinance shall be that the defendant had actual or constructive knowledge of the nature of the material or conduct involved, and a person has constructive knowledge thereof if he has knowledge of facts which would put a reasonable and prudent person on notice as to the suspect nature of the material or conduct.

The plaintiffs contend that the requirement of scienter, or mens rea, in the ordinance does not satisfy constitutional standards. In Hamling v. United States, 418 U.S. 87, 123, 94 S.Ct. 2887, 2910, 41 L.Ed.2d 590 (1974), the United States Supreme Court stated that “it is constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature Of the material.” In requiring only knowledge of the nature of the material, the ordinance omits Ham-ling’s requirement of knowledge of the contents and character of the subject matter. The court, therefore, concludes that, with respect to the scienter requirement, the ordinance is constitutionally infirm.

In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the United States Supreme Court established a tripartite test for determining whether material is obscene. The Court stated:

The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find the work, taken as a whole, appeals to the prurient interest ...; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Id. at 24, 93 S.Ct. at 2615 (citations omitted).

The Court set forth two definitions of materials that could be regulated by a state:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

Id.

That this list was not exhaustive was made clear in the Court’s opinion in Jenkins v. Georgia, 418 U.S. 153, 160-61, 94 S.Ct. 2750, 2754-55, 41 L.Ed.2d 642 (1974). In Jenkins, the Court, after viewing the movie Carnal Knowledge, found it not to be obscene within the scope of Miller. The Court explained:

Nothing in the movie falls within either of the two examples given in Miller of material which may constitutionally be found to meet the ‘patently offensive’ element of those standards, nor is there anything sufficiently similar to such material to justify similar treatment. While the subject matter of the picture is, in a broader sense, sex, and there are scenes in which sexual conduct including ‘ultimate sexual acts’ is to be understood to be taking place, the camera does not focus on the bodies of the actors at such times. There is no exhibition whatever of the actors’ genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standards.

Id. 418 U.S. at 161, 94 S.Ct. at 2755.

An accurate application of the Miller test is of the utmost importance because it separates that material which is entitled to the full protection of the First Amendment from that which can be regulated or even prohibited by a state. See J.R. Distributors v. Eikenberry, 725 F.2d 482, 489 (9th Cir.1984). Indeed, the Miller court announced that the intent of the test was to “provide fair notice to a dealer in such material.” No one, the court stated, “will be subject to prosecution for the sale or exposure of obscene materials unless those materials depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed.” Miller, 413 U.S. at 27, 93 S.Ct. at 2616. Therefore, to be constitutional, the Jackson ordinance must include specific definitions of materials that are obscene within the Miller test. It is on this point that the plaintiffs contend that the Jackson ordinance has failed.

Section 2(b)(ii) defines as hard core sexual conduct the “lewd exhibition ... of ... female breast nipples.” In Miller, the Court approved as a definition of hard core sexual conduct the “lewd exhibition of the genitals,” but made no mention of “female breast nipples.” This court finds that the ban of lewd exhibition of female breast nipples includes within its scope material that is constitutionally protected and, therefore, that this portion of the ordinance is overbroad.

Hard core sexual conduct is defined by Section 2(b)(iii) as sadomasochistic abuse. It is true, as the plaintiffs state in their brief, that the actions described in this subsection are not expressly limited to a sexual context. It is also clear, however, that the conduct described would necessarily take place within a sexual context. Although Miller limited permissible regulation to “works which depict or describe sexual conduct,” 413 U.S. at 24, 93 S.Ct. at 2614, this court is of the opinion that Section 2(b)(iii) of the Jackson ordinance satisfies the Miller test and is not constitutionally overbroad. See Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020, 1026 (5th Cir.1981).

Section 2(b)(iv) describes as hard core sexual conduct:

Actual, simulated, or animated touching, or fondling of, or other similar physical contact with pubic area, anus, female breast nipple, covered or exposed, whether alone or between humans, animals, or a human and an animal, of the same or opposite sex, in an act of apparent sexual stimulation or gratification.

Although a substantial portion of this section describes material that is subject to regulation, other portions clearly exceed the scope of Miller and reach material that is entitled to First Amendment protection. In Wild Cinemas of Little Rock, Inc. v. Bentley, 499 F.Supp. 655 (E.D.Ark.1980), the court held that a similar provision was overbroad. The court stated that the section could be applied to “any romantic caress on screen or stage.” Id. at 663. This, the court continued, was “exactly the case with Carnal Knowledge in Jenkins v. Georgia.” Id. It is conceivable that the Jackson ordinance could reach just as far, and the court, therefore, finds this section of the ordinance to be unconstitutionally overbroad.

The plaintiffs also assert that Section 2(b)(v) is overbroad, but the court concludes that this section is within the limits established by Miller and is not constitutionally impermissible. See Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020, 1027-28 (5th Cir.1981).

The plaintiffs contend further that the exemption of certain individuals and organizations found in section 3(1) of the ordinance denies them the equal protection of the laws. The exemptions distinguish between those who may and may not legally traffic in obscenity. Obscenity does not involve any fundamental right, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 66, 93 S.Ct. 2628, 2639, 37 L.Ed.2d 446 (1973), so the exemption provision of the ordinance will be upheld if it is reasonably related to a legitimate state interest. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). This court is unable to identify any valid state interest which would justify the exemptions. By enacting the ordinance, the City of Jackson has declared an intent to eradicate dealings in obscenity within the city. This is a worthy goal, but it bears no rational relationship to the exemption of those cited in Section 3(1).

The plaintiffs also object to Section 4(4) of the ordinance, which imposes more severe punishment when the offense is committed “with or in the presence of a minor.” Although a state is given greater latitude in regulating the dissemination of sexually oriented material when minors are involved, this provision potentially “reaches a substantial amount of constitutionally protected conduct.” Attempts to comply with this section of the ordinance in an effort to avoid criminal prosecution would furthermore have a chilling effect on the exercise of First Amendment rights. Therefore, the court is of the opinion that this provision of the ordinance is unconstitutionally vague.

The plaintiffs further contend that specific portions of the ordinance are in conflict with Mississippi statutes and are, therefore, preempted. As discussed earlier in this opinion, the scienter standards differ in the ordinance and statute to the extent that the ordinance is repugnant to the statutory provision. Likewise, the ordinance’s exemptions and definitions of the crime of obscenity are contradictory to those of the statute. The sentences imposed by Section 4 of the ordinance are to be “without benefit of probation, parole, or suspension.” Section 21-23-7, Miss.Code Ann. (1984 Supp.), empowers municipal judges to suspend any sentence, and this statutory section, therefore, preempts the imprisonment provision of the ordinance. In addition, Sections 97-5-27 and -29 of the Mississippi Code Annotated regulate the dissemination of sexually oriented material to minors. To the extent that Section 4(4) of the ordinance, which imposes harsher punishment when the violation is committed “with or in the presence of a minor,” conflicts with the statutory provision, it is also preempted.

This court concludes that the plaintiffs have shown a substantial likelihood of prevailing on several of their challenges to specific portions of the ordinance. The court must now determine whether these portions are severable. In Day v. Klein, 225 Miss. 191, 82 So.2d 831 (1955), the Mississippi Supreme Court stated:

In accordance with general principles ordinarily applicable to municipal ordinances as well as to state statutes, where the provisions of an ordinance are separable, and it may fairly be presumed that the municipal council would have enacted one part without the other, the whole ordinance will not be declared void because of the invalidity, such as the unconstitutionality or unreasonableness of a part.

The Code of Ordinances of the City of Jackson includes a section which permits the severance of provisions found to be unconstitutional. Therefore, the court could eliminate those provisions found to be invalid and the remainder of the ordinance would continue to be enforceable. However, this court finds that the plaintiffs have demonstrated a substantial likelihood of success on the merits of so many of their claims, that, after severance, the remainder of the ordinance would not reflect the intent of the City Council. To sever the flawed portions of the ordinance would “essentially eviscerate the law and would create a program quite different from the one ... actually adopted.” Spokane Arcades, Inc. v. Brockett, 631 F.2d 135, 139 (9th Cir.1980).

IRREPARABLE INJURY

The plaintiffs have established that they have suffered and continue to experience economic harm that seriously threatens the existence of their businesses. Furthermore, in an effort to avoid prosecution under the ordinance, the plaintiffs have been forced to refrain from selling material that is arguably protected by the First Amendment. A showing of such interference with constitutional rights is sufficient to demonstrate the irreparable injury necessary for the issuance of a preliminary injunction. See Henry v. First National Bank, 595 F.2d 291, 304-05 (5th Cir.1979); Goldstein v. Allain, 568 F.Supp. at 1386.

ABSENCE OF HARM TO THE DEFENDANT

In Goldstein v. Allain, the court found that, since the Mississippi Legislature had made but one attempt to enact a revised obscenity statute in seven years, the issuance of a preliminary injunction would cause the state to suffer little harm. That reasoning also applies to the instant case.

PUBLIC INTEREST

The fourth prong of the Canal Authority Test requires that the moving party show that the public interest will be served by the issuance of a preliminary injunction. The court in Goldstein v. Allain analyzed this requirement as follows:

Both the plaintiffs and the defendants agree that the public has a vital interest in the vigorous exercise of First Amendment Rights. This vital interest clearly outweighs any interest which the public may have in regulating the distribution of obscenity. As a result, this court cannot say that the public interest will be disserved by the issuance of such an injunction.

568 F.Supp. at 1386-87.

Likewise, this court concludes that the plaintiffs have satisfied this element of the Canal Authority test.

This court is of the opinion that the plaintiffs have satisfied the four requirements of the Canal Authority test and are entitled to the issuance of a preliminary injunction pending a hearing on the merits of their claims.

An order will be entered according to the local rules of this court.

APPENDIX 1

AN ORDINANCE TO DEFINE AND PROHIBIT OBSCENITY; AND TO ESTABLISH PENALTIES THEREFOR.

Section 1. The crime of obscenity is the intentional:

(1) Exposure of the genitals, pubic hair, anus, vulva, or female breast nipples in any public place or place open to the public view with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive.

(2) (a) Participation or engagement in, or management, operation, production, presentation, performance, promotion, exhibition, advertisement, sponsorship, or display of, hard core sexual conduct when the trier of fact determines that the average person applying contemporary community standards would find that the conduct, taken as a whole, appeals to the prurient interest; and the hard core sexual conduct, as specifically defined herein, is presented in a patently offensive way; and the conduct taken as a whole lacks serious literary, artistic, political, or scientific value.

(b) Hard core sexual conduct is the public portrayal, for its own sake, and for ensuing commercial gain of:

(i) Ultimate sexual acts, normal or perverted, actual, simulated, or animated, whether between human beings, animals, or an animal and a human being; or

(ii) Masturbation, excretory functions or lewd exhibition, actual, simulated, or animated, of the genitals, pubic hair, anus, vulva, or female breast nipples: or

(iii) Sadomasochistic abuse, meaning actual, simulated or animated, flagellation, or torture by or upon a person who is nude or clad in undergarments or in a costume that reveals the pubic hair, anus, vulva, genitals, or female breast nipples, or in the condition of being fettered, bound, or otherwise physically restrained, on the part of one so clothed: or

(iv) Actual, simulated, or animated touching, caressing, or fondling of, or other similar physical contact with pubic area, anus, female breast nipple, covered or exposed, whether alone or between humans, animals, or a human and an animal, of the same or opposite sex, in an act of apparent sexual stimulation or gratification; or

(v) Actual, simulated, or animated stimulation of a human genital organ by any device whether or not the device is designed, manufactured, or marketed for such purpose.

(3) Sale, allocation, consignment, distribution, dissemination, advertisement, exhibition, or display of obscene material, or the preparation, manufacture, publication, or printing of obscene material for sale, allocation, consignment, distribution, advertisement, exhibition, or display.

Obscene material is any tangible work or thing which the trier of fact determines (a) that the average person applying contemporary community standards would find, taken as a whole, appeals to the prurient interest, and (b) depicts or describes in a patently offensive way, hard core sexual conduct specifically defined in Paragraph (2) above, and (c) the work or thing taken as a whole lacks serious literary, artistic, political, or scientific value.

(4) Requiring as a condition to a sale, allocation, consignment, or delivery for resale of any paper, magazine, book periodical, or publication to a purchaser or consignee that such purchaser or consignee also receive or accept any obscene material, as defined in Paragraph (3) above, for resale, distribution, display, advertisement, or exhibition purposes; or, denying or threatening to deny a franchise to, or imposing a penalty, on or against, a person by reason of his refusal to accept, or his return of, such obscene material.

(5) Solicitation or enticement of an unmarried person under the age of seventeen years to commit any act prohibited by Paragraphs (1), (2), or (3) above.

Section 2. Lack of Knowledge of age or marital status shall not constitute a defense.

Section 3. (1) The provisions of this Ordinance do not apply to recognized and established schools, churches, museums, medical clinics, hospitals, physicians, public libraries, governmental agencies, quasi-governmental sponsored organizations and persons acting in their capacity as employees or agents of such organizations, or a person solely employed to operate a movie projector in a duly licensed theatre.

(2) For the purpose of this Paragraph, the following words and terms shall have the respective meanings defined as follows:

(a) “Recognized and established schools” means schools having a full time faculty and pupils, gathered together for instruction in a diversified curriculum.

(b) “Churches” means any church, affiliated with a national or regional denomination.

(c) “Physicians” means any licensed physician or psychiatrist.

(d) “Medical clinics and hospitals” means any clinic or hospital of licensed physicians or psychiatrists used for the reception and care of the sick, wounded or infirm.

Section 4. (1) On a first conviction, whoever commits the crime of obscenity shall be fined not less than three hundred dollars nor more than five hundred dollars, or imprisoned, for not less than thirty days or both.

(2)(a) On a second conviction, the offender shall be imprisoned for not less than sixty days without benefit of probation, parole, or suspension of sentence, and in addition may be fined not less than five hundred dollars.

(b) The imprisonment provided for in Subparagraph (a), may be imposed at court discretion if the court determines that the offender, due to his employment, could not avoid engagement in the offense. This Subparagraph (b) shall not apply to the manager or other person in charge of an establishment selling or exhibiting obscene material.

(3) On a third or subsequent conviction, the offender shall be imprisoned for hot less than ninety days, without benefit of probation, parole, or suspension of sentence, and in addition may be fined not less than one thousand dollars.

(4) When a violation of Paragraph (1), (2) or (3) of Section 1 of this Ordinance is with or in the presence of an unmarried person under’ the age of seventeen years, the offender shall be fined not less than one thousand dollars and shall be imprisoned for not less than ninety days without benefit of parole, probation, or suspension of sentence.

Section 5. (1) When a corporation is charged with violating this Ordinance, the corporation, the president, the vice president, the secretary, and the treasurer may all be named as defendants. Upon conviction for a violation of this Ordinance a corporation shall be sentenced in accordance with Section 4 hereof. All corporate officers who are named as defendants shall be subject to the penalty provisions of this Ordinance as set forth in Section 4.

(2) Proceedings brought against a corporation by affidavit shall proceed in the same manner as proceedings brought against a corporation by indictment or information under state law.

Section 6. A required element of any conviction under this ordinance shall be that the defendant had actual or constructive knowledge of the nature of the material or conduct involved, and a person has constructive knowledge thereof if he has knowledge of facts which would put a reasonable and prudent person on notice as to the suspect nature of the material or conduct.

Section 7. This ordinance shall be in force and effect thirty (30) days from and after passage.

APPENDIX 2

OBSCENE MATERIALS, PERFORMANCES AND DEVICES

§ 97-29-101. Distribution or wholesale distribution of obscene materials or performances; character and reputation as evidence; prosecutor’s bond.

A person commits the offense of distributing obscene materials or obscene performances when he sells, rents, leases, advertises, publishes or exhibits to any person any obscene material or obscene performance of any description knowing the obscene nature thereof, or offers to do so, or possesses such material with the intent to do so. A person commits the offense of wholesale distributing obscene materials or obscene performances when he distributes for the purpose of resale any obscene material or obscene performance of any description knowing the obscene nature thereof, or offers to do so, or possesses such material with the intent to do so. The word “knowing” as used in this section means either actual or constructive knowledge of the obscene contents of the subject matter, and a person has constructive knowledge of the obscene contents if he has knowledge of facts which would put a reasonable and prudent person on notice as to the suspect nature of the material. The character and reputation of an individual charged with an offense under section 97-29-101 through 97-29-109 and, if a commercial dissemination of obscene material or an obscene performance is involved, the character and reputation of the business establishment involved, may be placed in evidence by the defendant on the question of intent to violate sections 97-29-101 through 97-29-109.

Any person, other than a city attorney, county prosecuting attorney or district attorney, who shall sign an affidavit charging an offense prescribed by this section shall file a bond in the amount of five hundred dollars ($500.00) at the time such affidavit is lodged. Such bond shall be conditioned that the affidavit was not filed frivolously, maliciously or out of ill will.

§ 97-29-103. Definitions.

(1) Material or performance is obscene if:

(a) To the average person, applying contemporary community standards, taken as a whole, it appeals to the prurient interest, that is, a lustful, erotic, shameful, or morbid interest in nudity, sex or excretion; and

(b) The material taken as a whole lacks serious literary, artistic, political or scientific value; and

(c) The material depicts or describes in a patently offensive way, sexual conduct specifically defined in subparagraphs (i) through (v) below:

(1) Acts of sexual intercourse, heterosexual or homosexual, normal or perverted, actual or simulated;

(ii) Acts of masturbation;

(iii) Acts involving excretory functions or lewd exhibition of the genitals;

(iv) Acts of bestiality or the fondling of sex organs of animals; or

(v) Sexual acts of flagellation, torture or other violence indicating a sadomasochistic sexual relationship.

(2) Undeveloped photographs, molds, printing plates and the like shall be deemed obscene material, notwithstanding that processing or other acts may be required to make the obscenity patent or to distribute it.

(3) “Performance” means a play, motion picture, dance or other exhibition performed before an audience.

(4) “Patently offensive” means so offensive on its face as to affront current community standards of decency.

(5) “Wholesale distributes” means to distribute for the purpose of resale.

(6) “Material” means any book, magazine, newspaper, advertisement, pamphlet, poster, print, picture, figure, image, drawing, description, motion picture film, phonographic record, recording tape, video tape, or other tangible thing producing, reproducing or capable of producing or reproducing an image, picture, sound or sensation through sight, sound or touch, but it does not include an actual three-dimensional sexual device as defined in section 97-29-105.

§ 97-29-105. Distribution or wholesale distribution of unlawful sexual devices; prosecutor’s bond.

A person commits the offense of distributing unlawful sexual devices when he knowingly sells, advertises, publishes or exhibits to any person any three-dimensional device designed or marketed as useful primarily for the stimulation of human genital organs, or offers to do so, or possesses such devices with the intent to do so. A person commits the offense of wholesale distributing unlawful sexual devices when he distributes for the purpose of resale any three-dimensional device designed or marketed as useful primarily for the stimulation of human genital organs, or offers to do so, or possesses such devices with the intent to do so.

Any person, other than a city attorney, county prosecuting attorney or district attorney, who shall sign an affidavit charging an offense prescribed by this section shall file a bond in the amount of five hundred dollars ($500.00) at the time such affidavit is lodged. Such bond shall be conditioned that the affidavit was not filed frivolously, maliciously or out of ill will.

§ 97-29-107. Exemptions from application of §§ 97-29-101 through 97-29-109; procedure for claiming exemption; defenses.

(1) Sections 97-29-101 through' 97-29-109 shall not apply when the distribution or wholesale distribution of the material, performance or device was made by:

(a) A person, corporation, company, partnership, firm, association, business, establishment or other legal entity to a person associated with an institution of higher learning, either as a member of the faculty or as a matriculated student, teaching or pursuing a course of study related to such material, performance or device.

(b) A licensed physician or a licensed psychologist to a person whose receipt of such material or device was authorized in writing by such physician or psychologist in the course of medical or psychological treatment or case;

(c) A person who while acting in his capacity as an employee is employed on a full-time or part-time basis by (i) any recognized historical society or museum accorded charitable status by the federal government; (ii) any state, county or municipal public library; or (iii) any library or any public or private school, college or university in this state; or

(d) A community television antenna services system or a cable television system operating pursuant to a written agreement not in conflict with this paragraph granted by a county, municipality or other political subdivision of this state, or by an employee of such system while acting within the scope of his employment, when the signal transmitting the material or performance originates outside of the state of Mississippi.

(2) Any exemption from prosecution claimed under the provisions of this section may be raised at a pretrial hearing by motion, and the court shall determine whether sufficient evidence exists to constitute an exemption from prosecution under the provisions of sections 97-29-101 through 97-29-109. If the motion is sustained, the case shall be dismissed; provided, however, if the motion is not sustained then the defendant may offer into evidence at trial as an affirmative defense to conviction under this act any matter which could have been raised by the defendant in the motion to dismiss.

§ 97-29-109. Penalties.

Any person, except one who wholesale distributes, who violates section 97-29-101 or section 97-29-105 shall be guilty of a misdemeanor and, upon conviction, shall, in the case of the first offense, be fined not more than five thousand dollars ($5,000.00) or imprisoned in the county jail for a term not to exceed six (6) months, or both. If the person has been previously convicted of a violation of section 97-29-101 or section 97-29-105 or of section 97-5-27 or 97-5-29, Mississippi Code of 1972, then the person shall be fined not less than two thousand five hundred dollars ($2,500.00) nor more than ten thousand dollars ($10,000.00) or imprisoned for a term not to exceed one (1) year, or both.

Any person who wholesale distributes in violation of section 97-29-101 or section 97-29-105 shall, upon conviction, be fined not more than ten thousand dollars ($10,-000.00) or imprisoned for a term not to exceed one (1) year, or both. If the person has been previously convicted of a violation of section 97-29-101 or section 97-29-105 or of section 97-5-27 or 97-5-29, Mississippi Code of 1972, then the person shall, upon conviction, be fined not less than two thousand five hundred dollars ($2,500.00) nor more than fifty thousand dollars ($50,-000.00) or imprisoned for a term not to exceed one (1) year, or both.

A corporation, company, partnership, firm, association, business, establishment, organization or other legal entity other than an individual convicted of distributing obscenity or unlawful sexual devices or wholesale distribution of obscenity or unlawful sexual devices shall be fined not less than one thousand dollars ($1,000.00) nor more than ten thousand dollars ($10,-000.00). If such legal entity has been previously convicted of distributing obscenity or unlawful sexual devices or wholesale distribution of obscenity or unlawful sexual devices or of a violation of section 97-5-27 or section 97-5-29, Mississippi Code of 1972, then such legal entity shall be fined not less than five thousand dollars ($5,000.00) nor more than fifty thousand dollars ($50,000.00).

      . See Appendix 1 for the text of the ordinance.

        . As the court states later in this opinion, abstention may be an issue as to particular portions of the ordinance.

      . See Appendix 2 for the text of the state statute.

      . It should be noted that, since the Goldstein court issued its opinion and order, the Mississippi State Legislature has convened and took no action to repeal or amend the state obscenity statute.

      . Hattiesburg Firefighters Local 184 v. City of Hattiesburg, 263 So.2d 767 (Miss.1972). See also Watkins v. Navarrette, 227 So.2d 853, 855 (Miss. 1969); City of Jackson v. Freeman-Howie, Inc., 239 Miss. 84, 121 So.2d 120, 120-21 (1960); Alexander v. Edwards, 220 Miss. 699, 71 So.2d 785, 786 (1954); King v. City of Louisville, 207 Miss. 612, 42 So.2d 813, 815 (1949); Knight v. Johns, 161 Miss. 519, 137 So. 509, 510 (1931); Steitenroth v. City of Jackson, 99 Miss. 354, 54 So. 955, 955 (1911); City of Hazlehurst v. Mayes, 96 Miss. 656, 51 So. 890, 890-91 (1910); Crittenden v. Town of Booneville, 92 Miss. 277, 45 So. 723, 724-25 (1908).

      . See § 3374-129, Miss.Code Ann. (1956) (recodified at § 21-37-3, Miss.Code Ann. (1972)).

      . Section 10265-17(a)(14), Miss.Code Ann. (1942) (recodified at § 67-1-37, Miss.Code Ann. (1984 Supp.)), empowered the State Tax Commission to “designate hours and days when alcoholic beverages may be sold in different localities in the State which permit sale."

      . Certain provisions of the Jackson ordinance are in direct conflict with Mississippi statutes. For example, Section 21-23-7, Miss.Code Ann., gives municipal judges the authority to suspend any sentence, whereas the Jackson ordinance states that no sentence imposed thereunder shall be suspended. For a more detailed analysis of particular conflicts with state statutes, see infra notes 17-19 and accompanying text.

      . The plaintiffs also object to the ordinance on the ground that it imposes cruel and unusual punishment. The court is of the opinion that the punishment imposed is not disproportionate under the analysis set out in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) and that plaintiffs have not established a substantial likelihood of success on the merits of this claim.

      . Section 97-29-101, Miss.Code Ann. (1984 Supp.), of the Mississippi obscenity statutes, requires that the defendant know the obscene nature of the material and have actual or constructive knowledge of the obscene contents of the subject matter. Because of this conflict in the scienter requirements of the ordinance and statute, this court is of the opinion that this portion of the ordinance is preempted by the state legislation. See supra notes 4-8 and accompanying text for an analysis of the Mississippi law on preemption.

      . The court stated that the statute included in its definition of sexual conduct "any touching of the genitals, pubic areas, or buttocks of the human male or female, or the breast of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification." Wild Cinemas, 499 F.Supp. at 662.

      . In State v. Amato, 343 So.2d 698 (La. 1977), a Louisiana court upheld the Louisiana statute on which the Jackson ordinance is based. The court concluded that the Louisiana counterpart of Section 2(b)(iv) did not exceed the limits of Miller. In support of its position, the City has referred the court to Louisiana state court cases dealing with the Louisiana obscenity statute after which the Jackson ordinance was fashioned. See, e.g., State v. Windhorst, 343 So.2d 711 (La. 1977); State v. Amato, 343 So.2d 698 (La. 1977). The Louisiana courts have consistently upheld the statute against overbreadth challenges. This court notes that the Louisiana statute provides procedural safeguards that are not included in the ordinance. The Louisiana law requires an adversary hearing prior to the seizure of certain subject matter and conviction is possible only if the defendant continues to sell that material after a determination of obscenity. Recognizing that this issue is not before this court, the court notes that those safeguards may permit the statute to reach further into the "gray” area surrounding the Miller test than the ordinance, without those safeguards, will be able to do.

      . This court notes that the organizations listed in Section 3(1) are, in effect, already exempted by the substantive provisions of the ordinance. By definition, in Section 1 of the ordinance, obscene material is limited to that which "taken as a whole lacks serious literary, artistic, political, or scientific value.” Any material legitimately used by any of the organizations listed in Section 3(1) would surely possess such value and would not be held to be obscene under the ordinance. See Miller v. California, 413 U.S. 15, 26, 93 S.Ct. 2607, 2616, 37 L.Ed.2d 419 (1973).

      . Kolender v. Lawson, 461 U.S. 352, 359 n. 8, 103 S.Ct. 1855, 1859 n. 8, 75 L.Ed.2d 903, 910 n. 8. The Court also stated: "Where a statute imposes criminal penalties, the standard of certainty is higher ... This concern has, at times, led us to invalidate a criminal statute on its face even when it could conceivably have had some valid application.” Id. (citations omitted).

      . The plaintiffs also challenge section 2 of the ordinance which states, "lack of knowledge of age or marital status shall not constitute a defense." The court agrees that this section imposes strict liability and impermissibly chills the exercise of first amendment rights. See Smith v. California, 361 U.S. 147, 151, 80 S.Ct. 215, 217, 4 L.Ed.2d 205 (1959).

      . The defendant contends that the court should abstain from deciding this issue pending interpretation by the state courts pursuant to Railroad Comm’n of Texas v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). In Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), the Court rejected the argument that a finding of vagueness by the district court compels abstention. Id. at 401, 94 S.Ct. at 1805.

      . See supra notes 4-8 and accompanying text for analysis of the Mississippi law of preemption.

      . See Section 21-17-5, Miss.Code Ann. (1972). For discussion of the differing scienter standards in the ordinance and statute, See supra note 10 and accompanying text.

      . See Appendix 1 (text of City Ordinance); Appendix 2 (text of State Statute).

      . In its response brief, the defendant focuses solely on the substantive merits of the plaintiffs’ claims and is silent as to the final three prongs of the Canal Authority test.

      . In ABC Interstate Theaters, Inc. v. State, 325 So.2d 123 (Miss.1976), the Mississippi Supreme Court struck down the obscenity statute then in effect.