author: SWEET, District Judge.

text:
    SYGMA PHOTO NEWS, INC., Plaintiff, v. HIGH SOCIETY MAGAZINE, INC., Drake Publishers, Inc., and Dorjam Publications, Inc., Defendants.
    No. 83 Civ. 7517 (RWS).
    United States District Court, S.D. New York.
    April 30, 1984.
    On Renewed Motion For Summary Judgment Sept. 27, 1984.

      Ben C. Friedman, New York City, for plaintiff.
    Abelman, Frayne, Rezac & Schwab, New York City, for defendants; Lawrence E. Abelman, Jonathan L. Rosner, New York City, of counsel.
   OPINION

SWEET, District Judge.

Plaintiff Sygma Photo News, Inc. (“Sygma”) has moved for summary judgment under Rule 56, Fed.R.Civ.P., against defendants High Society Magazine, Inc. (“High Society”), Drake Publishers, Inc. (“Drake”) and Dorjam Publications, Inc. (“Dorjam”). High Society and Drake have moved to dismiss the complaint under Rule 12, Fed.R.Civ.P. Upon the facts and conclusions set forth below, Sygma’s motion will be denied with leave to renew. The motion of High Society and Drake will be treated as one for summary judgment and will be denied. The action will proceed in accordance with the schedule set forth below.

The dispute between the parties arises out of the publication by Dorjam of its “Superstars of Celebrity Skin, the Definitive Collector’s Edition from High Society, Special No. 6” (“Superstars Edition”) which has as its cover a photograph of an unadorned Raquel Welch (“Welch”) which is alleged to be the copyrighted property of Sygma. Dorjam has conceded that the publication was without authorization. What has been placed in issue is the right of Sygma to enforce its claimed copyright and the liability of High Society and Drake for Dorjam’s acts. Affidavits and exhibits have been submitted and preliminary discovery by way of interrogatories has gone forward. No depositions have been taken, and the following facts have been established by the record presently before the court.

In 1978, Tony Kent (“Kent”) took several photographs of Welch. On December 12, 1978, Playboy Enterprises, Inc. (“Playboy”) paid Kent $3,000 for an assignment of his rights to “Pictorial Raquel Welch Photographs by Tony Kent.” By agreement of August 1, 1979, Playboy assigned all rights to photographs of Welch not used by Playboy to Raquel Welch Productions, Inc. (“RWPI”). In mid-1981, RWPI gave Sygma the exclusive right to distribute certain photographs and in that year Sygma granted to “Paris Match” magazine (“Paris Match”) the right to use a photograph (the “Photograph”) of Welch which thereafter became the cover of the Paris Match September 4, 1981 issue. The issue contained a general copyright notice. The Photograph also appeared on the cover of the Paris Match International edition, which contained a similar notice.

In February 1983, the Photograph was published as the cover of the Superstars Edition without the authorization of RWPI or Sygma. On May 31, 1983, RWPI assigned its rights in the Photograph to Sygma, describing it in a sworn statement by Welch as:

that certain photograph entitled “RAQUEL WELCH” and alternatively titled “A 42 ANS, ELLE YEUT ETRE LA PLUS BELLE GRAND-MERE DU MONDE”, photographed by Tony Kent in 1978, and published as the cover and on page 11 of the September 4, 1981 issue of “PARIS MATCH” magazine.

Sygma then filed its application for copyright of the Photograph, claiming Kent as the author and describing the transfers just set forth.

Dorjam concedes the facts described, but denies the validity of the copyright, claiming that the facts fail to establish the chain of assignment, “particularly since the person alleged by plaintiff to be the author — Tony Kent, — did not assign copyright ownership to any specific photograph ____” The affidavits of Welch and Eliane Laffont, submitted on behalf of Sygma, establish that the Photograph was one of the photographs of Welch made by Kent in 1978. There is, however, no affidavit or sworn statement by a person with knowledge that establishes that the photographs Kent assigned to Playboy, which Playboy later assigned to RWPI, included the Photograph. In view of the logical inference to that effect and Sygma’s supporting affidavits, it is highly likely that Sygma will be able to prove its chain of title. However, there is a possible factual dispute as to the chain of title. Although the burden is on defendants to overcome the presumption of validity accorded Sygma’s copyright, see Van Cleef & Arpels, Inc. v. Schechter, 308 F.Supp. 674, 676 (S.D.N.Y.1969), the potential fact dispute requires the denial of summary judgment.

Dorjam also resists summary judgment on the ground that material misrepresentations were made in the copyright application, namely that Kent was the author of the Photograph and that the copyright application claimed first publication in the United States, as well as on the ground of omission of notice. While the court’s conclusions as to these contentions are not necessary to the disposition of the present motion for summary judgment, perhaps their resolution will be helpful to the parties as the litigation proceeds.

As to the first ground, regardless of whether Kent is indeed the author of the Photograph under 17 U.S.C. § 201, in the context of this dispute, the distinction is not material, assuming that Sygma is able to complete the proof of its claimed chain of title. See Testa v. Janssen, 492 F.Supp. 198 (W.D.Pa.1980).

The inconsistency as to the place of publication resulted after counsel for Sygma explained his dilemma as to the date of the first publication to the examiner. The resulting change in date may have left an error in the place of publication given on the copyright application, but this inconsistency is also not material. See Midway Manufacturing Co. v. Bandai-America, Inc., 546 F.Supp. 125, 143 (D.N.J.1982) (misrepresentation must be intentional and must “harm or prejudice the defendant in some way or affect the validity of the copyright.”)

As to the omission of notice, the Photograph was published as the cover of Paris Match, which contained a copyright notice the validity of which defendants have not challenged. Defendants state that Sygma and Welch “may have” authorized publication and sale of the Photograph in the United States without copyright notice. However, under 17 U.S.C. § 405(b), the infringer has the burden of proving it was misled by a publication without notice. Defendants have offered no evidence of omission of notice, and this defense is thus unavailable to defendants.

As for the motion to dismiss the complaint on behalf of High Society and Drake, an officer of defendants has stated by affidavit that High Society was the corporate publisher of High Society Magazine until 1979, when High Society terminated all business activities and transferred its assets to Drake. The officer also stated that in 1982, High Society adopted a plan of dissolution which was effectuated in 1983, and that Dorjam is the sole corporate publisher of the Superstars Edition and that High Society and Drake were not involved in or responsible for publication of the edition. Sygma has submitted copies of the masthead and publisher’s letter of the Superstars Edition and of an issue of High Society, which show that the publisher, editor and other staff members of the two publications are the same. Each publication refers to the other. The print orders for the Superstars Edition refer to the issue as “High Society’s Celebrity Skin # 6” and are written on High Society stationery. Defendants state that Dorjam was merely using old High Society stationery. Because the motion to dismiss was supplemented by the affidavit just referred to, the motion will be treated as one for summary judgment. Given the facts now before the court, a factual issue has been raised as to whether Drake and High Society are liable to Sygma as contributory infringers. See Peter Pan Fabrics, Inc. v. Acadia Co., 173 F.Supp. 292, 298-99 (S.D.N.Y.1959), affd, 274 F.2d 487 (2d Cir.1960). Accordingly, defendants’ motion is denied.

Summary judgment for Sygma is denied with leave to renew. Discovery will proceed to be completed by July 2, and the pretrial orders will be filed by July 9, 1984.

IT IS SO ORDERED.

ON RENEWED MOTION FOR SUMMARY JUDGMENT

Sygma Photo News, Inc. (“Sygma”) has renewed its motion for summajy judgment against High Society Magazine, Inc. (“High Society”), Drake Publishers, Inc. (“Drake”) and Dorjam Publications, Inc. (“Dorjam”) for alleged copyright violations by their publication of a photograph of Raquel Welch (the “Photograph”) in “High Society’s Celebrity Skin.” The motion is granted.

The underlying factual situation is set forth in this court’s opinion of April 30, 1984. High Society, Drake and Dorjam do not deny that the publication of the Photograph was without authorization. However, defendants have challenged the authority of Sygma to enforce the copyright on the picture involved.

The denial of the prior motion for summary judgment resulted from a dispute as to whether the Photograph in dispute was actually among those taken by Tony Kent, assigned to Playboy Enterprises, Inc.

(“Playboy”), and thereafter assigned to Raequel Welch Productions, Inc. (“RWPI”). In its renewed motion for summary judgment Sygma has submitted an unrebutted affidavit of Gary Cole, the director of Photography of Playboy stating his involvement in and responsibility for the negotiations and transactions with RWPI and Kent relating to the purchase and assignment of the Photograph which was among those assigned by Kent to Playboy and by Playboy to RWPI. No facts are now in dispute in this regard.

However, High Society, Drake, and Dorjam in an effort to defeat Sygma’s enforcement of the copyright by summary judgment, now assert that a corporate entity other than Sygma N.Y. may have granted Paris Match the right to use the Photograph. Initially Sygma asserted both in its copyright papers and in this case' that, prior to issuance of the copyright certificate, Sygma New York granted Parish Match Magazine (“Paris Match”) the right to onetime use of the Photograph. Subsequent deposition testimony, however, indicates that Sygma S.A.R.L., a legally separate corporation of common ownership with Sygma New York dealt with Paris Match.

Defendants thus assert that one element of ownership in the Photograph, distribution authority in Europe, was transferred. The affidavit in opposition to the motion for summary judgment, after introducing the deposition testimony relating to this issue concludes: “Thus, it is clear that Plaintiff Sygma had no distribution rights in Europe; that it sent the Photograph to Sygma S.A.R.L. ... [and that] only Sygma S.A.R.L. sold rights to the Photograph to Paris Match Magazine.”

Accepting this factual assertion as accurate, no authority is advanced to defeat Sygma N.Y.’s authority to protect the Photograph from copyright violation. Ownership of the underlying copyright or equitable ownership of the copyright are sufficient, even if the alleged infringement derived from a source other than the copyright owner. See Kurlan v. C.I.R., 343 F.2d 625 (2d Cir.1965), Kamakazi Corp. v. Robbins Music Corp., 534 F.Supp. 69 (S.D.N.Y.1982), Quinto v. Legal Times of Washington, Inc., 506 F.Supp. 554 (D.D.C.1981). In this context, the ambiguity with respect to which Sygma corporation dealt with Paris Match is immaterial to Sygma N.Y.’s ability to enforce its copyright on the Photograph.

High Society, Drake, and Dorjam also resist Sygma’s motion for summary judgment on the issue of liability on several other grounds. They assert that the Photograph may have been dedicated to the public by prior publication without an accompanying copyright notice. This assertion is left as a bald statement of what might possibly have occurred and is not substantiated with evidence of such publication. In order to show willful abandonment of the copyright defendants would have to establish an overt act by Sygma demonstrating an intention to surrender the copyright. Lottie Joplin Thomas Trust v. Crown Publishers, Inc., 456 F.Supp. 531 (S.D.N.Y.1977), affd, 592 F.2d 651 (2d Cir.1978). Alternatively, if the defendants are claiming innocent reliance on publication without copyright notice the statutory burden falls on the defendants to “prove that he or she was misled by the omission of notice.” 17 U.S.C. § 405(b). Neither showing is put forth by defendants.

High Society’s, Drake’s and Dorjam’s challenges to the validity of the underlying copyright on grounds that the filings were inaccurate were rejected in this court’s earlier opinion. Further, defendants conceded at oral argument, in spite of their assertion to the contrary in their 3(g) statement, that Paris Match contained a general copyright notice sufficient to encompass the Photograph in question.

In opposing Sygma’s motion for summary judgment against Drake and High Society as contributory infringers, defendants rely upon the deposition testimony of Ira Kirschenbaum, vice-president of both Dorjam and Drake, to establish the legal divisions between the entities involved and the lack of involvement of Drake in the infringement. It is uncontested that Drake is the successor in interest to High Society, and the only relationship that requires examination is therefore that between Dorjam, the corporation that publishes “High Society’s Celebrity Skin,” and Drake.

Kirschenbaum’s deposition testimony establishes that most of the administrative functions of publishing the magazine were handled by Drake employees paid directly by Drake, that Drake employees were responsible for obtaining the photographs used in the magazine, and that the individuals listed as Publisher, Editor, Art Director, Production Director, and Researcher on the masthead of “High Society’s Celebrity Skin” are Drake employees paid by Drake, not Dorjam. (One Dorjam check of $46.80 is the exception.)

“Copyright infringement is in the nature of a tort, for which all who participate in the infringement are jointly and severally liable.” Screen Gems-Columbia Music, Inc. v. Metlis and Lebow Corp., 458 F.2d 552, 554 (2d Cir.1972). Further, “the normal agency rule of respondeat superior applies to copyright infringement by a servant within the scope of his employment.” Shapiro, Bernstein & Co. v. H.L. Green Company, 316 F.2d 304, 307 (2d Cir.1963). Indeed, one who had promoted or induced the infringing acts of another has been held jointly and severally liable even though he had no actual knowledge that the copyright is being violated. See Gershwin Publishing Corp. v. Columbia Artists Man., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971), MCA, Inc. v. Wilson, 425 F.Supp. 443, 456 (S.D.N.Y.1976), affd, 677 F.2d 180 (2d Cir.1981).

The facts presented in the deposition establish that Drake employees, within the scope of their employment and under the supervision of Drake, undertook the activities leading to the infringement of the copyright. That Drake and Dorjam have separate ownership and that Dorjam may have paid Drake for the services of Drake employees does not serve to absolve Drake of liability for the wrongdoing of its employees. The principles of contributory infringement and respondeat superior therefore impose liability on Drake.

Conclusion

Sygma’s motion for summary judgment with respect to the liability of Dorjam and Drake is granted. Discovery on the issue of damages will be completed by November 16, and pretrial orders will be filed by November 23, 1984.

IT IS SO ORDERED.


source: Caselaw Access Project

author: SELYA, District Judge.

license: Public Domain

text:
    Ronald CHASE, Plaintiff, v. Stafford QUICK, et al., Defendants.
    Civ. A. No. 82-0446 S.
    United States District Court, D. Rhode Island.
    May 11, 1984.

      Ronald Chase, pro se.
    Stephen P. Robinson, Cranston, R.I., for defendants.
   MEMORANDUM AND ORDER FOR DISMISSAL

SELYA, District Judge.

This is an action brought pro se on July 7, 1982 by an inmate at the Adult Correctional Institution (ACI), Cranston, Rhode Island (a state penal institution). The defendants are corrections officials. The action, which has lain fallow since its inception, provides scant food for judicial thought.

The case has, in the recent past, been assigned to my calendar. This court has reviewed the allegations contained in the complaint in light of the defendants’ so-called “First Defense,” including the assertion of a defense of failure to state a claim upon which relief can be granted. Fed.R. Civ.P. 12(b)(6). In so doing, the court has taken the factual averments of the complaint and related materials (such as they are) as true; and has considered them in thé light most favorable to the claimant. So viewed, the court is constrained to find that the Rule 12(b)(6) defense is well taken; and the court is impelled, as prayed for by the defendants in their answer, to dismiss the action. Further proceedings here would serve no useful purpose.

The described grievances are amorphous. Chase is incarcerated at the High Security Center (HSC) at the ACI. His complaint is in the nature of a generalized critique of the culinary service at the HSC: he grieves not of a precise event or mishap, but of a full menu of lingering commensal suspicions. Without reference to specific documented instances, he rails against lack of supervision anent food distribution; gripes that correctional officers help themselves to morsels from prisoners’ trays; bemoans the lack of cafeteria facilities at the HSC; and contends that violations of unspecified food-handling standards of the Rhode Island Department of Health have occurred. Hunger, food-poisoning, postcibal illness and the like are apparently not the problem; neither starvation nor malnutrition is alleged. Yet, he seeks, inter alia, to bar correctional officers from administering the food service operation at the HSC. He attempts, in a feeble and wholly conclusory manner, to relate this fare to the tenets of his religion. E.g., Complaint, ¶ IV (4) (“The Muslim meals are not to consist of pork but my tray and other Muslims have received pork.”). There is nothing to suggest that these occurrences are other than episodic and unintentional (if negligent).

The plaintiff points to nothing in the “Morris Rules,” Morris v. Travisono, 310 F.Supp. 857, 865-875 (D.R.I.1970), which has been transgressed here. His creative juices do not extend to a dispute of his classification or placement in the HSC, or to any lack of consistency of the same with the Morris Rules. Nor does he dispute that the HSC, by definition, requires tighter strictures for its operations than, say, medium security (let alone the neighborhood delicatessen). He nowhere sets forth facts to show that the ACI has failed in any meaningful way, or in any one or more discrete instance(s), to meet its Constitutional and-or court-mandated obligations in his case; or that any specific harm has befallen him. In these circumstances, the absence of particularized facts is fatal. No colorable claim is presented for federal judicial review. First, there is a failure to meet the case or controversy requirement. Valley Forge Christian College v. American United, etc., 454 U.S. 464, 471, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); United States Parole Comm’n v. Geraghty, 445 U.S. 388, 395, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980). As in Duffy v. Quattrocchi, 576 F.Supp. 336, 342 (D.R.I.1983), “(t)he plaintiffs pruritis cannot be scratched by the federal judiciary in the absence of a live controversy.” And second, there is a failure to plead with the requisite specificity. See O’Shea v. Littleton, 414 U.S. 488, 497, 94 S.Ct. 669, 676-77, 38 L.Ed.2d 674 (1974); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979) (Title VII); Black v. Brown University, 555 F.Supp. 880, 886 (D.R.I.1983).

As to the conditions attendant upon the plaintiffs confinement, none of the allegations of harm or deprivation appear facially to sink to the level of constitutional violations — a level which must be met to confer jurisdiction on this court. Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807-08, 40 L.Ed.2d 224 (1974). And in any event, Chase is part of the class for whose benefit suit has long since been brought in this court to insure that conditions at the ACI are no worse than the minimum level permissible under the Eighth Amendment. That case remains pending, and is a more apt forum for a generalized complaint of the type noted by this plaintiff. It would defeat the salutary purposes of Fed.R.Civ.P. 23 to permit Chase to attempt collaterally to traverse the same ground in an individual action.

The prisoner’s complaint as to interference with his First Amendment rights is far too attenuated to be swallowed whole. Members of the plaintiff’s faith are not, for aught that appears, treated better or worse than others who dine (not by choice) at the HSC. And, some effort has apparently been made, to the extent feasible, to honor valid sectarian dietary demands.

At bottom, Chase’s action presents the flip side of a familiar aphoristic coin: if the way to a man’s heart lies through his stomach, then so does the way to his bile. But, prison life cannot be modeled after a religious retreat. Incarceration, after all, itself impedes the exercise of a variety of freedoms — as well it should. The Constitution requires that correctional facilities meet certain minimum standards of decency, wholesomeness, cleanliness and the like — not that they cater to the individual preference of each inmate or that institutional cuisine be presented and served in a manner which Guide Michelin would applaud. A jail is, when all is said and done, a penal institution maintained for the purpose of imprisoning those who have committed wrongs against society and thus are receiving their just desserts; it is neither a country club, nor a three-star bistro. The applicable criteria must be judged accordingly.

Chase’s complaint is not judicially digestible in the form presented. Consonant with the foregoing, the action must be, and it hereby is, dismissed.

So ordered.

      . Judge Pettine specifically retained jurisdiction in Palmigiano v. Garrahy, 443 F.Supp. 956, 990 (D.R.I.1977).


author: PER CURIAM:

text:
    COUNTY COUNCIL OF SUMTER COUNTY, SOUTH CAROLINA, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants, Larry Blanding, et al., Defendants-Intervenors.
    Civ. A. No. 82-0912.
    United States District Court, District of Columbia.
    May 25, 1984.

      Joseph W. Dorn, Kilpatrick & Cody, Washington, D.C., Terrell Glenn, M. Elizabeth Crum, McNair, Glenn, Konduros, Corley, Singletary, Porter & Dibble, P.A., Columbia, S.C., Howard P. King, Bryan, Bahnmuller, King, Goldman & McElveen, Sumter, S.C., for plaintiffs.
    Gerald W. Jones, Paul F. Hancock, J. Gerald Hebert, Thomas G. Snow, Attys., Civ. Rights Div., Dept, of Justice, Washington, D.C., for defendants.
    Armand Derfner, Washington, D.C., Laughlin McDonald, Atlanta, Ga., Herbert Buhl, II, Columbia, S.C., for defendants-intervenors.
    Before BORK, Circuit Judge, and PARKER and OBERDORFER, District Judges.
   PER CURIAM:

We are concerned that because this and related proceedings have been so protracted and, more recently, because of the “exigencies of judicial deliberation,” Beer v. United States, 374 F.Supp. 357, 360 (D.D.C.1974), elections have not been held in Sumter County for some time. Although this court is not yet ready to issue its full opinion and findings of fact, we have agreed upon a disposition. Rather than permit the current situation to continue, with no elections being held, we have decided to issue an order stating our agreed disposition, with opinions and findings to follow.

We conclude that plaintiffs have failed to carry their burden of proof under section 5 of the Voting Rights Act, 42 U.S.C. § 1973c (1982), and have failed to prove that Act 371, 1967 S.C. Acts 371 (“Act 371”), as amended and supplemented, has neither the purpose nor effect of denying or abridging the right of black South Carolinians to vote.

The Supreme Court has said: “The fact that a covered jurisdiction adopted a new election practice after the effective date of the Voting Rights Act raises, in effect, a statutory inference that the p 'actice may have been adopted for a discriminatory purpose or may have a discriminatory effect.” McCain v. Lybrand, — U.S. -, 104 S.Ct. 1037, 1049-50, 79 L.Ed.2d 271 (1984). Plaintiffs have failed to rebut the inferences that can be drawn from the following facts. Their application for a declaratory judgment must therefore be denied.

Summary Findings of Fact

1. South Carolina is a covered jurisdiction under the Voting Rights Act. The State has a history of segregation and pervasive racial discrimination which has been an important factor in detrimentally affecting the political participation of black South Carolinians. Until after the passage of the Voting Rights Act, South Carolina enacted and enforced a variety of laws that had the purpose and effect of denying the right to vote to its black citizens.

2. In 1980, Sumter County blacks constituted 44.1 percent of the population, 41.3 percent of the voting age population, and 42.1 percent of the registered voters.

3. Racial segregation was, and in large measure remains, the way of life in much of the private sector of Sumter County. Voting in Sumter County is racially polarized.

4. Before Act 371 was passed in 1967, members of the Sumter County Board of Commissioners, the County’s governing body, were appointed by the Governor on recommendation of the local delegation to the State General Assembly (the “Legislative Delegation”). This Legislative Delegation de facto governed Sumter County, although the General Assembly of South Carolina possessed the de jure authority to enact local laws for Sumter County and the Governor had the de jure authority to veto all such legislation. Both the Governor and the Legislative Delegation were elected at-large.

5. Prior to 1967, the Governor followed the Legislative Delegation’s recommendations concerning appointments to the County governing body. As long as this appointive system was in effect, no black person was appointed to Sumter County’s Board of Commissioners.

6. In mid-1967, the Governor began appointing blacks to various offices.

7. During 1966-67, the South Carolina Senate was compelled to alter its apportionment system after its apportionment was held to violate the fourteenth amendment. This created the possibility that a black senate district would be created and the person elected from that district might control appointments to the Sumter County governing body.

8. In 1967, the South Carolina legislature passed Act 371. Act 371, which was formulated without significant input from Sumter County’s black community, creates a seven-member Sumter County Council. Under Act 371, each Council member is elected at-large. The winners are determined by majority vote and voting is without regard to geographic location- of residency. Thus, under this Act, the citizens of Sumter County — a majority of whom are white — elect all of the Council members.

9. Since the adoption and implementation in 1967 of the at-large system, only one black person (Phillip Rembert in 1974) has been elected to the Sumter County governing body.

10. There are three gubernatorially appointed boards in Sumter County; each has more than one black. Although the number of persons representing the black community who would be appointed by the Governor today if that system were in place is to a degree speculative, appointments by race to these boards is probative.

11. Regardless of the relative merits of comparing the appointive system with the at-large system, a fairly drawn single-member district election plan would give black voters of Sumter County a better opportunity to elect candidates of their choice to the Sumter County Council than the at-large system does. A fairly drawn single-member district plan for the Sumter County Council is more likely to allow black citizens to elect candidates of their choice in three of seven districts (or 42.8 percent of the representation on the Council).

12. Act 371 was not submitted to the Attorney General for preclearance pursuant to the Voting Rights Act. Thus, the at-large elections for the Sumter County Council held in 1968, 1970, 1972, 1974 and 1976 were in violation of section 5 of the Voting Rights Act.

13. In 1975, the South Carolina legislature passed the Home Rule Act, which permitted each of South Carolina’s counties to hold a referendum to select one of five alternate forms of local government, and to decide whether county governors would be elected at-large or from single-member districts. The Sumter County Council did not call for a referendum, thus preserving the council administrator system derived from Act 371.

14. The reason the members of Sumter County Council gave for refusing to hold the referendum, despite the objections of, among others, the Sumter County League of Women Voters, the Sumter County Republican Party, and the only black councilman, was “that they knew more or less what was best for the community.” Plaintiffs have not effectively rebutted evidence that racial considerations influenced the Council’s decision not to hold a referendum.

15. The white members of the Sumter County Council have at all times taken public positions favoring at-large elections. In an advisory referendum held in November 1978 on at-large elections, all the organizations in Sumter County that took a position on the referendum question favored single-member districts. The white councilmen continued to favor at-large districts and issued a position paper warning against “fragmentpng] county government into special interest groups.” The white councilmembers also secretly prepared a full-page advertisement endorsing at-large elections which appeared in the Sumter Daily Item on the eve of the referendum. Plaintiffs have not effectively rebutted evidence that the advertisement was intended to make clear that the referendum question (at-large versus single-member districts) was essentially a racial one.

16. In the referendum election, the at-large system was preferred by the slight majority of 787 votes out of approximately 12,700 votes cast. Whites are estimated to have voted for at-large elections by a four to one margin; blacks are estimated to have voted nine to one against at-large elections.

17. Plaintiffs have failed to carry their burden of proving that the legislature did not pass Act 371 in 1967 for a racially discriminatory purpose at the insistence of the white majority in Sumter County, because the at-large method of voting may have diluted the value of the then-increasing voting strength of the black minority, may have prevented formation of a black majority senate district, and probably prevented appointment by the Governor of blacks to the Sumter County Council.

18. Plaintiffs have failed to carry their burden of proving that the at-large system was not maintained after 1967 for racially discriminatory purposes and with racially discriminatory effect.

Conclusions of Law

1. Although it may seem anomalous to some to apply a statute prohibiting any actions denying or abridging the “right to vote” where an appointive system has been replaced by an elective one, we are convinced that section 5 of the Voting Rights Act does apply to this case. We reach that conclusion for two reasons. First, the Supreme Court has strongly implied in Blanding v. DuBose, 454 U.S. 393, 102 S.Ct. 715, 70 L.Ed.2d 576 (1982), that the Voting Rights Act applies to this case. Second, in McCain v. Lybrand, — U.S. -, 104 S.Ct. 1037, 79 L.Ed.2d 271 (1984), the Supreme Court applied the Voting Rights Act in a case like this, where an appointive system was replaced by an elective system. Also, in that decision the Supreme Court defined section 5 of the Voting Rights Act to cover “any election practices different from those in effect on November 1, 1964.” McCain v. Lybrand, 104 S.Ct. at 1044.

2. In Blanding v. DuBose, the Supreme Court held that a letter the So^ch Carolina Attorney General sent to the United States Justice Department reporting that the 1978 referendum had approved at-large council elections for Sumter County did not constitute a request for preclearance. The Supreme Court viewed the 1979 letter as a request for reconsideration. Thus, the Court held that the Attorney General’s failure to respond within 60 days as required by the Act did not constitute preclearance of the change by default. If the Voting Rights Act does not apply to Sumter County’s change to at-large council elections, the Supreme Court need not have decided whether the 1979 letter was a request for preclearance: preclearance would not be necessary.

3. In McCain v. Lybrand, the Supreme Court accepted a stipulation that an Act which replaced a Board of County Commissioners that had two appointed members with a three-member County Council elected at-large was required to be submitted for preclearance. 104 S.Ct. at 1046 n. 17. The Court could not have accepted such a stipulation had the Voting Rights Act not applied, as the Act’s applicability goes to the Court’s subject matter jurisdiction, and parties cannot waive a defect in subject matter jurisdiction. Moreover, in McCain the Court expressly and repeatedly defined section 5 of the Voting Rights Act as follows:

Section 5 of the Voting Rights Act of 1965 ... required a covered State or political subdivision desiring to implement any election practices different from those in effect on November 1,1964 to obtain a declaratory judgment from a three-judge panel of the United States District Court for the District of Columbia holding that the change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color” before the new practice could be implemented.

McCain v. Lybrand, 104 S.Ct. at 1044. It is beyond question that the change here is an election practice different from that in effect on November 1, 1964.

4. In order to rebut the inference of discriminatory effect, plaintiffs here were required to prove that the at-large election system in Sumter County will not “lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Beer v. United States, 425 U.S. 130, 140, 96 S.Ct. 1357, 1363, 47 L.Ed.2d 629 (1976). They have not done this. Neither have they carried the heavy burden they bear as to the purpose of this change. Plaintiffs are required to demonstrate the absence of discriminatory purpose; and section 5 preclearance must be denied if the evidence fails to disprove that a discriminatory purpose was present as a motivating factor among other legitimate non-discriminatory ones. City of Richmond v. United States, 422 U.S. 358, 378, 95 S.Ct. 2296, 2307, 45 L.Ed.2d 245 (1975). The evidence plaintiffs have adduced does not do this.

5. Since we find that section 5 of the Voting Rights Act applies, and that plaintiffs have failed to prove that the proposed change is not retrogressive, we need not reach the section 2 issues in this case.

- 6. Defendant-intervenors have moved that this court order interim elections pending our decision on the merits of plaintiffs’ ease. They ask that we divide the County into seven single-member districts and that we modify the election schedule to allow for implementation of this interim plan. This motion is mooted by the order we issue today unless this order is stayed by the Supreme Court. There will be time enough to address the need for emergency relief if such a stay is granted. We therefore deny defendant-intervenors’ motion for interim elections.

Nothing we say or do in this memorandum or the accompanying order is intended to preclude any party from seeking in another jurisdiction the relief sought by the emergency motion filed here by defendantintervenors.


author: LAMBROS, District Judge.

text:
    Kenneth JOHNSON, Plaintiff, v. The Honorable Richard ZURZ, Defendant. and Gregory MITCHELL, Plaintiff, v. The Honorable Richard V. ZURZ and Referee James Gill, Defendants.
    Nos. C 82-1534A, C 82-1805.
    United States District Court, N.D. Ohio, E.D.
    May 30, 1984.

      Peter J. Krembs, Gruber, Moriarty, Fricke & Jaros, Cleveland, Ohio, for plaintiff Rocco Wine Distributors, Inc.
    Michael C. Donovan, Janice Gui, Summit County Legal Aid Society, Akron, Ohio, for plaintiff Johnson.
    Sanford J. Berger, Robert M. Fertel, Cleveland, Ohio, for plaintiff Mitchell.
    Lynn C. Slaby, Summit County Pros. Atty., James L. Bickett, Chief Counsel, Civ. Div., Kevin R. Campbell, Asst. Pros. Atty., Akron, Ohio, for defendants Honorable Richard Zurz and Referee James Gill.
    Louis A. Colombo, Marc. D. Flink, Baker & Hostetler, Cleveland, Ohio, for defendant Pleasant Valley Wine Company.
   MEMORANDUM OPINION AND ORDER

LAMBROS, District Judge.

This is an action pursuant to 42 U.S.C. § 1983 for the deprivation of plaintiffs rights as provided under the fourteenth amendment to the United States Constitution. Plaintiff Johnson is an indigent individual who has failed to make child-support payments pursuant to a state court order and, as such, has been and is subject to contempt proceedings before the defendant Presiding Judge, Domestic Relations Division, Summit County Court of Common Pleas.

Presently before the Court is plaintiffs motion to certify a class action, and cross motions for summary judgment. The facts pertinent to this claim are undisputed. In September, 1979 Judge Zurz ordered Johnson to pay child support. In May, 1982 Judge Zurz, in response to a motion for a show cause order filed by an assistant prosecuting attorney of the Summit County Bureau of Support, ordered that Johnson appear on June 16, 1982 and show cause why he should not be held in contempt of court. The show cause motion also sought a sentence of ten days incarceration in the event Johnson was held in contempt.

On June 1, 1982 Johnson filed a motion for appointment of counsel and represented in a supporting memorandum and affidavit that he was, in fact, indigent. On June 2, Judge Zurz denied Johnson’s motion stating that the Domestic Relations Court was without legal authority to appoint counsel.

Two days before the scheduled contempt hearing Johnson filed this class action for injunctive and declaratory relief on his behalf and on behalf of others similarly situated claiming that, as he faced possible incarceration and was indigent, Judge Zurz was required to appoint counsel on his behalf. Johnson sought, and was granted, a temporary restraining order. Later an entry by stipulation of the parties was made granting a preliminary injunction on the same terms and conditions as the temporary restraining order. On June 21, the June 16 contempt hearing was dismissed by Judge Zurz.

I.

It is first necessary to address the motion for class certification and the issues of standing and state action. The threshold question ■ when considering whether an action should be certified as class action must necessarily be whether the plaintiff has standing to sue on his own behalf. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). In order to meet the standing requirement a party must demonstrate the following:

“[T]hat he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” Gladstone, Realtors v. Village of Bellwood, 441 US 91, 99, 60 L Ed 2d 66, 99 S Ct 1601 (1979), and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision,” Simon v. Eastern Kentucky Welfare Rights Org. 426 US 26, 38, 41, 48 L Ed 2d 450, 96 S Ct 1917 [1925] (1976).

Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (footnote omitted).

Defendant contends that plaintiff lacks standing to sue for a number of reasons, each of which this Court finds to be unconvincing.. Defendant claims that no actual injury has taken place and therefore the requirement of standing has not been satisfied. It is clear, however, that the existence of a threat of injury on account of illegal conduct is sufficient to satisfy the injury portion of the standing requirement. Here, plaintiff has been and continues to be threatened with thé deprivation of his liberty. The mere fact that Judge Zurz, shortly after this Court issued a restraining order, dismissed sua sponte the contempt hearing against Johnson is insufficient to overcome the remaining threat of incarceration. That dismissal was without prejudice and it is clear that Johnson may be cited with contempt at any time. Further, halting the challenged conduct would not, in any event, deprive this Court of reviewing that conduct where as here, plaintiff has standing.

It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Such abandonment is an important factor bearing on the question whether a court should exercise its power to enjoin the defendant from renewing the practice, but that is a matter relating to the exercise rather than the existence of judicial power. In this ease the city’s repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court’s judgment were vacated.

City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074, 71 L.Ed.2d 152 (1982) (footnotes omitted). Likewise, there is nothing to preclude the defendant from continuing his conduct upon the removal of the preliminary injunction.

Defendant also argues that plaintiff is not subject to any real or immediate possibility of injury. While contempt, proceedings traditionally lie within the discretion of the judge, Section 2705.05 of the Ohio Revised Code specifically provides that in contempt proceedings such as those in question a guilty individual is subject to punishment which includes imprisonment for up to ten days. Ohio Rev.Code Ann. § 2705.05. Further, the motion to show cause which led to the contempt proceedings specifically sought such a penalty. It is evident that Johnson and those who are similarly situated are under the scope of threatened and possible injury.

The Court concludes that plaintiff has the necessary standing to sue on his own behalf. Additionally, in order to invoke the jurisdiction of the federal court pursuant to the sixth and fourteenth amendments and 42 U.S.C. § 1983, the action complained of must be state action and not that of private persons. Turner v. Impala Motors, 503 F.2d 607 (6th Cir. 1974). The State of Ohio has prescribed potential penalties for contei_y.pt proceedings by statute, including incarceration. More significantly, however, the action complained of is not the civil contempt action, which is initiated by private persons, but the failure of a state judge, acting by and through his state authority, to fail to advise indigents of their right to appointed counsel and appoint such counsel when those indigents are threatened with possible incarceration pursuant to statute. Thus it is clear that the action in question herein is state action.

It has been stipulated by the parties that plaintiff’s asserted class satisfies the requirements of Rule 23(a) of the Rules of Civil Procedure pertaining to class actions. The Court concurs in that statement and as the requirements of Rule 23(b)(2) are also satisfied, plaintiff’s motion to certify a class is hereby granted and this action shall proceed as a certified class action, said class of plaintiffs to consist of all indigent defendants who are unable to afford private counsel and who now, or will in the future, face potential incarceration as a result of being summoned before the Domestic Relations Division of the Summit County Court of Common Pleas to show why they should not be held in contempt of court for failure to pay court ordered child-support.

II.

Defendant raises the doctrines of abstention, under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and its progeny, and judicial immunity in support of his motion. The abstention doctrine as articulated in Younger is based on the proposition that in the absence of extraordinary circumstances principles of federalism, comity and equity require that federal courts abstain from unduly interfering with state criminal court proceedings. This principle has been extended and applied to certain civil actions. See Judice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). The purpose of the Younger abstention doctrine is to prevent undue interference in legitimate state functions by the federal court. A basic premise of the application of this doctrine, however, is that the plaintiff has recourse to the state appellate process to raise his federal claim. Younger, supra 401 U.S. at 41, 45, 91 S.Ct. at 749, 751. In Parker v. Turner, 626 F.2d 1 (6th Cir.1980), the United States Court of Appeals for the Sixth Circuit, considering alleged due process violations by state court judges similar to the claim made in this case, held that the federal court should abstain as the state courts were available to address the unconstitutional conduct in question. The Court specifically noted, however:

Should the Tennessee appellate courts be unable or unwilling to correct continuing unconstitutional conduct by the Juvenile Court judges, plaintiffs would then be in a position of showing “exceptional circumstances” which would warrant federal injunctive relief.

Id. at 10 (footnote omitted).

It is clear that the Ohio Supreme Court has spoken to the conduct in question herein and held that plaintiff and the members of plaintiffs class have no right to counsel in “civil” contempt proceedings. In re Calhoun, 47 Ohio St.2d 15, 350 N.E.2d 665 (1976). Accordingly, plaintiff and plaintiff’s class are effectively precluded from seeking to correct the conduct in question by appeals within the state court system and, therefore, this Court may consider the constitutionality or unconstitutionality of the conduct herein. The fact that In re Calhoun relied only on the sixth amendment is irrelevant in that the Ohio Supreme Court must necessarily have rejected any fourteenth amendment right to counsel under similar circumstances. Accord, Mastín v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981). Where, as here, plaintiff and plaintiff's class have no adequate state court avenue of redress and such a vital constitutional interest is at stake, “extraordinary circumstances” exist and this Court will not abstain

A vast majority of courts have recognized that where declaratory or injunctive relief is sought, rather than monetary relief, judges are not immune from 42 U.S.C. § 1983 suits. See Allen v. Burke, 690 F.2d 376 (4th Cir.1982); Tarter v. Hury, 646 F.2d 1010 (5th Cir.1981); Harris v. Harvey, 605 F.2d 330, 335 n. 7 (7th Cir.1979), cert. denied 445 U.S. 938, 100 S.Ct. 1331, 63 L.Ed.2d 772 (1980); Heimbach v. Village of Lyons, 597 F.2d 344 (2nd Cir.1979); Slavin v. Curry, 574 F.2d 1256 (5th Cir.1978), reh. denied 583 F.2d 779; Hansen v. Ahlgrimm, 520 F.2d 768, 769 (7th Cir.1975); Timmerman v. Brown, 528 F.2d 811 (4th Cir.1975), rev’d on other grounds sub nom, Leeke v. Timmerman, 454 U.S. 83, 102 S.Ct. 69, 70 L.Ed.2d 65 (1981); Conover v. Montemuro, 477 F.2d 1073 (3d Cir.1973); Littleton v. Berbling, 468 F.2d 389 (7th Cir.1972), rev’d on other grounds 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674, vacated on other grounds 414 U.S. 514, 94 S.Ct. 685, 38 L.Ed.2d 694 (1974). See also, Shipp v. Todd, 568 F.2d 133 (9th Cir.1978); Briggs v. Goodwin, 569 F.2d 10 (D.C.Cir.1977).

[N]o sound reason exists for holding that federal courts should not have the power to issue injunctive relief against the commission of acts in violation of a plaintiffs civil rights by state judges acting in their official capacity.

Erdman v. Stevens, 458 F.2d 1205, 1208 (2nd Cir.1972), cert. denied, 409 U.S. 889, 93 S.Ct. 126, 34 L.Ed.2d 147 (1972). Defendant, therefore, is not immune from this suit and, having jurisdiction, the Court will proceed to the merits of this case.

III.

When approaching any due process claim a court must first determine whether a protected interest is at stake. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Here plaintiff and members of plaintiffs class are threatened with a deprivation of physical liberty by the Domestic Relations Court. Thus, the fourteenth amendment is clearly implicated and the Court must address what process will protect plaintiffs’ rights.

It is evident that the presence of counsel to represent individuals who appear in court and face incarceration is a vital element in preserving due process. In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the United States Supreme Court held that a criminal defendant, charged with a felony but unable to afford counsel, is entitled to have counsel appointed for him by the state. The Court noted that such an individual “cannot be assured a fair trial unless counsel is provided for him.” Id. at 344, 83 S.Ct. at 796.

In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the Court held:

[Ajbsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.

Id. at 37, 92 S.Ct. at 2012 (footnote omitted). Subsequently, the Supreme Court held, “that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.” Scott v. Illinois, 440 U.S. 367, 373-74, 99 S.Ct. 1158, 1162, 59 L.Ed.2d 383 (1979).

After a discussion of the precedent on an indigent’s right to appointed counsel, including Scott, the Court in Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), summarized as follows:

In sum, the Court’s precedents speak with one voice about what “fundamental fairness” has meant when the Court has considered the right to appointed counsel; and we thus draw from them the presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty. It is against this presumption that all the other elements in the due process decision must be measured.

Id. at 26-27, 101 S.Ct. at 2159 (emphasis added).

The issue in Lassiter was whether counsel should have been appointed for an indigent parent at a parental-rights termination hearing. There the Court balanced the three elements of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1975), in deciding what due process requires, against each other and then as “against the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom.” 452 U.S. at 27, 101 S.Ct. at 2159. In Lassiter there was no potential loss of the indigent’s liberty, and the Court determined that on the facts before it, a case-by-case evaluation was necessary to determine whether counsel should be appointed in a parental-rights termination proceeding. The Court rephrased its inquiry, saying:

The dispositive question, which must now be addressed, is whether the three Eldridge factors, when weighed against the presumption that there is no right to appointed counsel in the absence of at least a potential deprivation of physical liberty, suffice to rebut that presumption and thus to lead to the conclusion that the Due Process Clause requires the appointment of counsel when a State seeks to terminate an indigent’s parental status.

Id. at 31, 101 S.Ct. at 2161.

Because there is the actual possibility of incarceration, this Court need not evaluate claims such as plaintiff’s on a case-by-case basis. Martin v. Fellerkoff, supra. In any event, however, where as here the plaintiff and plaintiff’s class are faced with incarceration, the liberty interests involved far outweigh the interests of the state. The fact that the proceeding at issue is considered to be a “civil” matter rather than “criminal” is irrelevant as the concern is with the defendant’s authorization and authority to deprive plaintiff’s and class member’s physical liberty.

Physical liberty is and has been of vital interest to the people of the United States from the time of our founding fathers. That this liberty interest may only be taken from an individual with due process of law is fundamental to our system of government. Accordingly, this Court holds that where an indigent is ordered to appear and show cause why he should not be held in contempt of court for failure to pay child support and is subject to incarceration, due process requires that the indigent be informed of his right to appointed counsel and, after inquiry and upon request, such counsel be appointed before the indigent appears to answer the show cause order.

The Court is cognizant of the cost of compliance with this decision and is not unsympathetic. But the interest in preserving the right to liberty as provided by the United States Constitution through due process of law does not come without cost. Anything worth having is worth paying for.

Accordingly, plaintiff’s motion for summary judgment is granted. Defendant’s motion for summary judgment is denied. In accord with the holding of . this Court, the defendant is hereby permanently enjoined.

On February 8, 1983, the Honorable Sam H. Bell, United States District Judge for this District, Eastern Division, severed and consolidated the claims of Gregory Mitchell against the Honorable Richard Zurz and James Gill, in Kelly v. Honorable Herbert R. Whiting, Case No. C 82-1805, with this action for the purpose of pretrial hearing.

The issues raised by Mitchell are identical to those raised by the plaintiff herein. Factually, the cases are virtually identical with the exception that Referee Gill failed to inform Mitchell of his right to counsel or to have counsel appointed on his behalf. Additionally, upon recommendation of Referee Gill, Judge Zurz sentenced Mitchell to imprisonment and issued an arrest warrant. Said warrant was recalled after Mitchell initiated this action, °nd Mitchell has not been incarcerated. Plaintiff Mitchell has moved for summary judgment, incorporating the brief of plaintiff Johnson. Referee Gill and Judge Zurz have moved for summary judgment.

Having granted class certification in Case No. C 82-1534A, and noting that the claims of Mitchell establish his membership in the class defined above, plaintiff Mitchell’s motion for summary judgment is also granted. Defendants’ motion for summary judgment is denied.

In sum, plaintiff Johnson’s motion to certify a class action is granted. Motions on behalf of plaintiffs Johnson and Mitchell for summary judgment are granted. The motion for summary judgment on behalf of the defendants in both actions is denied. The defendants are permanently enjoined from action inconsistent with the directives of this memorandum opinion and order.

This order terminates Case No. C 82-1534A and terminates Case No. C 82-1805 only as to the claims of plaintiff Mitchell against Referee James Gill and the Honorable Richard V. Zurz.

IT IS SO ORDERED.