text:
    In the Matter of David C. FRAZIER.
    Misc. No. 873.
    United States District Court, E.D. Louisiana, New Orleans Division.
    Sept. 13, 1984.

      Gary L. Roberts, Pascagoula, Miss., for plaintiff.
    Cicero C. Sessions and Sally Shushan, Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, La., for defendant.
   OPINION

EDWIN F. HUNTER, Jr., Senior District Judge.

In this suit, David Frazier challenges the constitutionality of the Local Rules for the Eastern District of Louisiana that pertain to the admission of nonresident attorneys to the Court’s Bar. Frazier commenced this action by filing a petition for a writ of prohibition and other relief with the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit remanded the cause to the District Court for the Eastern District of Louisiana for appropriate proceedings and entry of an appealable judgment. The appellate court noted that the petitions for extraordinary relief were carried with the cause on remand. After all of the active and senior judges of the Eastern District recused themselves, the matter was assigned to this judge, a senior judge of the Western District of Louisiana. A preliminary motion for summary judgment and a motion to dismiss for want of jurisdiction were taken under advisement for resolution after a trial on the merits and the action was tried to the Court, sitting without a jury, on August 10, 1984. This narrative opinion will serve as the findings of fact and conclusions of law required by Federal Rule of Civil Procedure 52(a).

Background

This action arises out of a simple set of facts, none of which are disputed by the parties. David Frazier resides in Pascagoula, Mississippi and practices law with a firm located in that same city.. Pascagoula is about 110 miles from New Orleans, where the Eastern District sits. Frazier is licensed to practice law in both Mississippi and Louisiana. On or about April 27, .1982, Frazier applied for general admission to the bar of the Eastern District, attaching all of the materials required by Local Rule 21.3. The matter was submitted to the Court sitting en banc and the Court ruled that Frazier was ineligible for general admission to the Eastern District Bar. The Clerk notified Frazier of this decision in a letter dated September 30, 1982.

In denying Frazier’s application, the Court found that Frazier could not satisfy the eligibility requirements of Local Rule 21.2. This rule provides as follows:

21.2 Eligibility
Any member in good standing of the bar of the Supreme Court of Louisiana who resides or maintains an office for the practice of law in the State of Louisiana is eligible for admission to the bar of this court.

(emphasis added). As a nonresident member of the Louisiana state bar, Frazier can qualify for admission to the Eastern District bar only by moving to Louisiana or by opening a law office in Louisiana. In substantial effect, the Rule requires nonresident members of the Louisiana bar to open a law office in Louisiana in order to qualify for general admission to the Eastern District bar. Continuous and uninterrupted Louisiana residence or maintenance of a Louisiana law office is now a requirement for continuing eligibility in the Eastern District bar. See Eastern District of Louisiana Local Rule 21.3.1.

If a nonresident attorney cannot qualify for general admission to the Eastern District bar, then he may practice before the Court only by way of an application for pro hac vice admission. The procedure for pro hac vice admission is set forth in Local Rule 21.5, which provides as follows:

21.5. Visiting Attorneys
Any member in good standing of the bar of any court of the United States or of the highest court of any state, who is ineligible to become a member of the bar of this court, may, upon written motion of counsel of record who is a member of the bar of this court, by ex parte order, be permitted to appear and participate as co-counsel in a particular case.
The motion must have attached to it a certificate of the presiding judge or clerk of the highest Court of the State, pr Court of the United States, where he has been so admitted to practice, showing that the applicant attorney has been so admitted in such Court, and that he is in good standing therein.
The applicant attorney shall state under oath whether any disciplinary proceedings or criminal charges have been instituted against him, and if so, full information about the proceedings or charges and the results thereof shall be disclosed.
An attorney thus permitted to appear may participate in a particular action or proceeding in all respects, except that all documents requiring signature of counsel for a party may not be signed solely by such attorney, but must bear the signature also of local counsel with whom he is associated.
Local counsel shall be responsible to the Court at all stages of the proceedings.
Designation of the visiting attorney as “Trial Attorney”, pursuant to Rule 2.3 herein shall not relieve the local counsel of the responsibilities imposed by this Rule.

The Court finds as a fact that David Frazier would not have been denied pro hac vice admission had he complied with Rule 21.5.

Frazier challenges the eligibility requirements of Rule 21.2 as violative of the Commerce Clause, the Full Faith and Credit Clause, the guarantee of equal protection of the laws secured by the Due Process Clause of the Fifth Amendment, and the Privileges and Immunities Clause. Frazier also contends that limiting him to admission on a pro hac vice basis violates the protections of the First Amendment. The Court will consider each of these challenges in turn after addressing the defendants’ objection to jurisdiction.

Jurisdiction

Counsel for the district judges concede that jurisdiction exists over this type of subject matter under 28 U.S.C. § 1651. Counsel urges, however, that the Court nonetheless lacks jurisdiction on the basis that Frazier has failed to raise a substantial federal question. A federal claim is jurisdictionally insubstantial only if it is obviously without merit or it is completely foreclosed by prior decisions of the Supreme Court. See Hagans v. Lavine, 415 U.S. 528, 536-37, 94 S.Ct. 1372, 1378-79, 39 L.Ed.2d 577 (1974). The test for dismissal on this basis is a rigorous one and ultimate dismissal on the merits is no test of jurisdiction. See generally 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3564 (1975). Here, the Court does not find that Frazier’s claims are obviously without merit or that they are completely foreclosed by prior Supreme Court decisions. Accordingly, the Court concludes that it has jurisdiction over the subject matter and will proceed to the merits of Frazier’s claims.

Commerce Clause

Frazier contends that Rule 21.2 violates the Commerce Clause because it has “the chilling effect of discriminating against and thereby discouraging out-of-state attorneys from the general practice of law before the Bar of the Eastern District of Louisiana.” Trial Brief for the Plaintiff, at 12. Frazier relies upon several cases recognizing constitutional restrictions on the power of states to prefer residents over nonresidents, such as Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978) (Alaska could not require preferential hiring of residents over nonresidents in oil or gas exploration and development agreements); Piper v. Supreme Court of New Hampshire, 539 F.Supp. 1064 (D.N.H.1982), aff’d by an equally divided court, 723 F.2d 110 (1st Cir.1983) (en banc), prob. juris. noted, — U.S. —, 104 S.Ct. 2149, 80 L.Ed.2d 535 (1984) (New Hampshire could not require residency for admission to the state bar); Stalland v. South Dakota Board of Bar Examiners, 530 F.Supp. 155 (D.S.D.1982) (similar); Keenan v. Board of Law Examiners, 317 F.Supp. 1350 (E.D.N.C.1970) (the court struck down a twelve-month residency requirement for eligibility to take the North Carolina bar); In re Jadd, 391 Mass. 227, 461 N.E.2d 760 (1984). It must be noted at the outset that all of these cases are decided under either the Privileges and Immunities Clause or the Equal Protection Clause. The Hicklin Court and two circuit judges in Piper do intimate, however, that the Commerce Clause also limits a state’s ability to prefer residents over nonresidents. See Hicklin, 437 U.S. at 531-34, 98 S.Ct. at 2490-91; Piper, 723 F.2d at 113 (Bownes and Coffin, JJ.); see also Service Machine & Shipbuilding Corp. v. Edwards, 617 F.2d 70 (5th Cir.1980) (a parish ordinance that required nonresident workers to obtain an identification card at a cost of ten dollars impermissibly burdened interstate commerce). Yet, even assuming that the Commerce Clause in its dormant state prohibits states from restricting admission of nonresident attorneys, it is far from clear that this particular clause places a similar restriction on the Congressionally-delegated rule-making authority of the lower federal courts.

The rule-making authority of the lower federal courts is limited only to the extent that Congress would be' limited if that body itself exercised the rule-making power. Congress possesses the power to establish courts inferior to the Supreme Court and to make all laws necessary and proper for executing that power. U.S. Const., art. I, § 8, cl. 9; U.S. Const, art. I, § 8, cl. 18. As part of the power to make necessary regulations in establishing a lower court system, Congress can prescribe rules for practice and procedure in those courts. Congress has not exercised this power directly, however, but has instead delegated the rule-making authority to the courts themselves. See 28 U.S.C. § 2071 (general delegation of rule-making authority); 28 U.S.C. § 1654 (specific delegation of authority to prescribe rules governing the appearance of counsel); see also F.R.C.P. 83 (authority for district courts to adopt local rules). So long as the lower courts do not exceed the authority delegated to them, they can prescribe rules of practice to the same extent as could Congress if it exercised the power directly.

The Commerce Clause no more limits the authority of the Eastern District of Louisiana to prescribe local rules of practice than it would restrain Congress in exercising that power directly. The Commerce Clause is a grant of federal legislative power, not a restriction on that power. Frazier surely would not assert that the clause would invalidate federal legislation under another national power, such as the power to establish inferior courts and prescribe rules for their practice, merely because the legislation imposes a burden on interstate commerce. The Commerce Clause restricts state action where that action unduly burdens interstate commerce because of the encroachment on a power granted to the national government. E.g., Piper, 723 F.2d at 113. But when national legislative powers are exercised, either directly or by delegation, encroachment on federal power is not a concern, and the clause can serve only to expand, rather than restrict, the permissible sphere of federal regulation. Accordingly, the Commerce Clause places no limitation upon the rule-making authority delegated by Congress to the Eastern District of Louisiana. The limitations on that power must be found in other provisions of the Constitution.

Full Faith and Credit

As noted earlier, the Supreme Court of Louisiana has admitted Frazier to its bar and has decreed that he is qualified to practice in Louisiana courts. Frazier urges that the Eastern District improperly denied full faith and credit to this decree when it refused him admission to its own bar. Although federal courts are not bound by the Constitution to give full faith and credit to state court judgments, Congress has made the command of Article 4, section 1 of the Constitution applicable to federal courts by statute. See 28 U.S.C. § 1738. A decision of a court granting or denying admission to its bar is a judicial determination and it is thus entitled to full faith and credit in a federal court. At issue is whether the Eastern District has improperly denied full faith and credit in the instant case.

The Court concludes that the Eastern District did not violate section 1738 when it denied Frazier admission to its bar. It is axiomatic that a state court decision is entitled to full faith and credit only to the extent that the state court had jurisdiction over the subject matter. E.g., Halvey v. Halvey, 330 U.S. 610, 614, 67 S.Ct. 903, 905, 91 L.Ed. 1133 (1947). A state’s highest court has absolutely no jurisdiction over the subject matter of practice and procedure before the federal courts that sit in that state. Thus, a federal court does not violate the statutory command of full faith and credit when it denies admission to an attorney licensed by the state in which it sits. Moreover, the certificates of admission and of good standing issued to Frazier by the Supreme Court of Louisiana do not in fact purport to declare that Frazier is qualified to practice before the federal courts sitting in this state. The certificates state that Frazier is qualified to practice in the courts of this state, not that he is qualified to practice in all courts located in this state.

Fifth Amendment Equal Protection

Frazier’s most pertinent challenge to Rule 21.2 lies under the equal protection component of the Due Process Clause of the fifth amendment. In evaluating this challenge, what the rule does and what it does not do must be kept in sharp focus. The rule does not bar nonresident attorneys who are licensed in Louisiana from general admission to the Eastern District bar. The rule does require such attorneys to establish an office in Louisiana as a prerequisite to their general admission. If the nonresident attorney does not open an office and thereby qualify for general admission to the district court’s bar, then he can appear in a particular action only by satisfying the requirements for a pro hac vice appearance. See Eastern District of Louisiana Local Rule 21.5. The basic issue before the Court is whether this disparate treatment between resident and nonresident members of the Louisiana bar is supported by a sufficiently weighty governmental purpose and whether the means chosen in Rule 21.2 are sufficiently related to that end.

If a rule disadvantages a “suspect class” or impinges upon the exercise of a “fundamental right,” then it will be subject to strict scrutiny under equal protection review. E.g., Cleburne Living Center v. City of Cleburne, 726 F.2d 191, 195-96 (5th Cir.1984). Frazier does not contend that nonresidents or nonresident attorneys are a suspect class, but he does urge that strict scrutiny should be applied here because Rule 21.2 impinges upon a fundamental right — that .of practicing law. A right is “fundamental” for purposes of equal protection review only if the right asserted is explicitly or implicitly guaranteed by the Constitution. The societal significance or commercial importance of an activity does not determine whether the right to engage in that activity is a fundamental interest for equal protection purposes. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 33-34, 93 S.Ct. 1278, 1296-97, 36 L.Ed.2d 16 (1973).

This Court can find no support in the document for a constitutional right to practice law. The Constitution does limit the power of states to restrict bar admissions. Yet this has occurred in the past only where the restriction bore no rational connection to the purposes for selecting members to a bar, where the restriction impinges upon another interest which is constitutionally protected, such as the right to associate, or where a court concluded that the restrictions. discriminated against nonresidents in a manner that violated the Privileges and Immunities Clause. This Court can find no Supreme Court or federal appellate decision that establishes the right to practice law as protected directly under the Constitution without resort to some other constitutional guarantee, such as equal protection of the laws. Indeed, substantial authority supports the position that a right to practice law cannot be derived independently from the Constitution. The Court therefore concludes that the right to practice law is not a fundamental interest for purposes of equal protection review and it will not apply strict scrutiny on that basis.

Frazier also attempts to invoke strict scrutiny because of an alleged infringement of his constitutionally-protected right of interstate travel. There is some question at the outset as to whether a restriction that is based merely on residency and which does not impose a waiting period prior to receipt of state benefits impermissibly infringes upon the right to interstate travel. Compare Memorial Hospital v. Maricopa County, 415 U.S. 250, 255, 94 S.Ct. 1076, 1080, 39 L.Ed.2d 306 (1974) (the Court noted that decisions striking down durational residency requirements do not impair the validity of a mere requirement of residency to enjoy a state privilege) with Zobel v. Williams, 457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982) (the Court noted that the Alaska statute involved did not impose any threshold waiting period but did not determine whether the law should be subjected to the higher level of scrutiny applied in the durational residency cases). What is clear, however, is that a restriction based on residency does not warrant strict scrutiny merely because it impinges to some extent on the right to travel. Maricopa County, 415 U.S. at 256, 94 S.Ct. at 1081. The requirement must constitute a “penalty” upon the exercise of the right of interstate travel before an underlying compelling state interest need be shown. 415 U.S. at 258, 94 S.Ct. at 1082. The Supreme Court has established that the denial of a basic necessity of life does constitute a penalty, but that tribunal has not further clarified the standards for determining when a penalty has been imposed. See 415 U.S. at 259, 94 S.Ct. at 1082. The Supreme Court has expressly reserved the question of whether a requirement of residency to obtain permission to practice a profession constitutes a penalty. See Shapiro v. Thompson, 394 U.S. 618, 638 n. 21, 89 S.Ct. 1322, 1333 n. 21, 22 L.Ed.2d 600 (1969).

The Court need not define the precise contours of the penalty analysis to determine that the requirement imposed in the instant case is not a penalty on the exercise of the right of interstate travel. The basic disability resulting from the failure to open a Louisiana office, the inability to practice before the Eastern District, can be overcome quite easily. Frazier does not contend that he would not be allowed to appear pro hac vice in any case he might have before the Eastern District by complying with Local Rule 21.5. The Court finds as a fact that applications for admission pro hac vice are granted as a matter of course in the Eastern District and further finds that Frazier would not be denied admission on this basis if he complied with Rule 21.5. See also United States v. Dinitz, 538 F.2d 1214 (5th Cir.1976) (en banc); In re Evans, 524 F.2d 1004 (5th Cir.1975) (Dinitz and Evans both concern the scope of a trial judge’s discretion in granting or denying applications for pro hac vice appearance). The impact of the restriction in Rule 21.2 is thus quite unlike the durational residency requirements invalidated in Shapiro and Maricopa. Here, Frazier is not “irretrievably foreclosed” from appearing before the Eastern District; he need only comply with certain additional procedures which serve quite legitimate interests in ensuring that counsel is locally available to the court and in assuring that the attorney has the requisite ethical integrity. Cf. Sosna v. Iowa, 419 U.S. 393, 406, 95 S.Ct. 553, 560, 42 L.Ed.2d 532 (1975) (the one-year durational residency requirement for bringing a divorce action did not impermissibly impinge on the right of interstate travel because the party could ultimately attain access to the Iowa courts). Moreover, any hardship occasioned by the requirement that local counsel be associated can be relieved by obtaining a waiver of that requirement. See Lefton v. City of Hattiesburg, 333 F.2d 280, 285 (5th Cir.1964); Eastern District of Louisiana Local Rule 21.6. The Court therefore concludes that Rule 21.2 does not impose a penalty upon the right of interstate travel and will not apply strict scrutiny on that basis.

There being no basis for strict scrutiny in this case, the question next arises as to whether an intermediate level of scrutiny should be applied. A classification must be tested under the intermediate scrutiny standard when the line drawn gives rise to recurring constitutional difficulties. Plyler v. Doe, 457 U.S. 202, 217, 102 S.Ct. 2382, 2395, 72 L.Ed.2d 786 (1982); Cleburne Living Center, 726 F.2d at 196. The Supreme Court has observed that it employs this standard “[o]nly when concerns sufficiéntly absolute and enduring can be clearly ascertained from the Constitution and our cases.” Plyler, 457 U.S. at 218 n. 16, 102 S.Ct. at 2395 n. 16. If intermediate scrutiny is appropriate, then the classification must serve important governmental objectives and must be substantially related to the achievement of those objectives. E.g., Cleburne Living Center, 726 F.2d at 196.

Whether intermediate scrutiny should be applied in the instant case is not free from doubt. On the one hand, classifications pertaining to residency have given rise to constitutional difficulty. Shapiro and Maricopa invalidated durational residence requirements limiting access to vital governmental services. In Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978), the Supreme Court struck down as violative of the Privileges and Immunities Clause an Alaskan requirement that residents must be hired in the oilfield before nonresidents. More recently, the Supreme Court held that another Alaska statute, one which allocated a state bonus according to length of residency, could not withstand even deferential review under the Equal Protection Clause. See Zobel v. Williams, 457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982); see also Service Machine & Shipbuilding Corp. v. Edwards, 617 F.2d 70 (5th Cir.1980) (the court held that a parish ordinance requiring nonresident workers to obtain an identification card at a cost of ten dollars impermissibly burdened interstate commerce). Perhaps “concerns sufficiently absolute and enduring” can be ascertained from these decisions. Yet, on the other hand, the Supreme Court has repeatedly rejected in summary fashion constitutional challenges to state practice regulations linked to residency. These summary rejections provide strong support for the contention that regulation of the legal profession on lines drawn according to residency do not present recurring constitutional difficulties and that deferential scrutiny should therefore be applied.

The Court need not determine whether intermediate, as opposed to deferential, scrutiny should properly be applied in the instant case. The distinction between the two standards does not become a material one here because Rule 21.2 withstands the higher standard of review. That is, Rule 21.2 serves important governmental objectives and it adopts means that are substantially related to the achievement of those objectives.

Rule 21.2 serves at least one important governmental objective, the efficient administration of justice. Frazier seeks to characterize this interest as a concern merely for administrative convenience. Yet more is involved in the efficient operation of a court system than the mere convenience of judges and court personnel. Delays in litigation delay, and sometimes completely deny, justice to one or more of the parties. With delay comes additional expense for all of the parties. Moreover, all who seek the court’s services must suffer when the smooth flow of justice is obstructed. In a society such as ours, which places a high value on judicial vindication of individual rights, “the just, speedy, and inexpensive determination of every action” must stand as an important governmental objective.

United States District Judges Veronica D. Wicker and Morey L. Sear, both judges of the Eastern District of Louisiana, testified regarding the effect of general admission of nonresident attorneys on the efficient administration of justice. Judge Wicker was qualified and admitted as an expert in judicial administration. Prior to her appointment to the district court bench, she served as a United States Magistrate in this district and also served for a number of years as a clerk to an active judge of the Eastern District. Judge Sear was also qualified and admitted as an expert in judicial administration. In the past, he worked with Judge Alvin B. Rubin of the Fifth Circuit Court of Appeals in formulating methods for judicial case management. He has taught at the Federal Judicial Center since 1971 and has participated in numerous seminars on case management in federal district courts.

The testimony of Judges Wicker and Sear establishes that general admission of nonresident attorneys can impede the efficient' administration of justice. The relative unavailability of nonresident counsel seriously impairs the administration of justice when quick action is necessary. The defendant judges summarized many of the difficulties posed by the unavailability of nonresident counsel in their answer, and Judges Wicker and Sear confirmed these assertions in their testimony:

“It is not a rarity in the District Court that in Jones Act cases, as well as-in other types of civil litigation, a Rule (30)(b)(2), FRCP, notice may issue for the emergency deposition of an important witness aboard a vessel temporarily present, say, in Bremen, West Germany or Brisbane, Australia, etc., with counsel for either party being nonresident requiring an emergency conference under Rule 30(b)(3), FRCP, or an emergency conference pursuant to Rule 26(c), FRCP. Many other discovery emergencies arise. Immediate non-availability of counsel defeats due process need[ed] for such emergency proceedings.
“Emergencies also frequently arise under Rule 65(b), FRCP, in the issuance of temporary restraining orders. It has been the practice of the District Court in most injunction ease instances to require at least an informal, immediate chambers conference with the parties’ attorneys before issuance of a temporary restraining order. This cannot be accomplished if a party’s attorney is in Idaho or California. It is also respondents’ uniform experience that these and many other emergency matters cannot possibly be handled always by telephone or correspondence. “Production and inspection of documents pursuant to Rule 34 FRCP, would be unnecessarily difficult and in many instances prejudicially and expensively delayed if there is no local counsel to respond.
“In sum, the requirements of Rule 5(b), FRCP, and other requirements as to notice, are defeated if a ‘party’ is not conveniently located within the geographical jurisdiction of the District Court. The emergency and short notice holdings of a plethora of proceedings affecting litigation and the District Court’s dockets occur daily and frequently and would be made impossible in most instances if attorneys at interest are not locally available.”

The two judges further testified that scheduling routine court matters is also exceedingly difficult when nonresident counsel are involved. Nonresident counsel are present in the district only rarely and thus must of necessity seek either preferential scheduling or exceptions from required appearances. These difficulties unduly complicate case management, particularly in criminal matters, where speedy trial rights are involved.

The means chosen by the Eastern District to alleviate these difficulties are not unduly restrictive. Some decisions have indicated that a court may exclude nonresident attorneys from general admission altogether. See Aronson v. Ambrose, 479 F.2d 75 (3rd Cir.1973); Wilson, 416 F.Supp. at 987; Brown, 359 F.Supp. at 555, 561-62. Yet Local Rule 21.2 requires only that a nonresident attorney admitted to practice in Louisiana must establish an office in Louisiana in order to qualify for admission to the Eastern District bar. Fulfilling this requirement makes the nonresident attorney more available to the court, as well as to litigants and their counsel. This increased availability of the attorney would mitigate some of the impediments to the efficient administration of justice posed by general admission of nonresident attorneys.

Significantly, Frazier relies upon two opinions which in fact support the view that a court can properly require a nonresident attorney to open a local office as a prerequisite to general admission to the bar. In Stalland v. South Dakota Board of Examiners, 530 F.Supp. 155 (D.S.D.1982), Chief Judge Bogue held that South Dakota could not bar nonresidents from general practice in its court. Yet Chief Judge Bogue and Judges Bownes and Coffin in Piper all were of the opinion that, a court might require a nonresident to maintain a local office in order to facilitate availability for court. See Piper, 723 F.2d at 117 (opinion of two judges of an equally divided court sitting en banc); Stalland, 530 F.Supp. at 161. That is precisely the requirement that the Eastern District has established for general admission of nonresident attorneys. The Court can find no pertinent authority that would hold this particular requirement to be impermissible.

Furthermore, it is no criticism of Rule 21.2 that, under its terms, a resident attorney need not open a local office to obtain admission to the Court’s bar. The Court did not adopt the rule in a vacuum. That a resident attorney with a practice of any import must of necessity open an office is abundantly clear. Requiring resident attorneys to open an office in Louisiana, therefore, would be almost wholly superfluous. In the rare situation where a resident attorney does not have an office, the attorney is nonetheless locally available to a greater extent than is the case with most nonresident attorneys. His admission does not raise the same concern for the efficient administration of justice that admission of nonresident attorneys does.

The Court therefore concludes that requiring nonresident attorneys to open a local office as a prerequisite to general admission is a means that is substantially related to the important governmental objective of promoting the efficient administration of justice. Rule 21.2 does not deprive Frazier of the equal protection of the laws.

Privileges and Immunities

Frazier has mounted his most strenuous attack on Rule 21.2 under the Privileges and Immunities Clause. He insists that a functional analysis of the scope of the clause requires us to conclude that the practice of law is a fundamental right. This clause was adopted to promote comity among the several states; it is highly unlikely that it limits the rule-making power of the federal judiciary. See Hawes v. Club Ecuestre El Comandante, 535 F.2d 140, 145 (1st Cir.1976); United States v. Barnett, 330 F.2d 369, 388 (5th Cir.1963); Duehay v. Acacia Mutual Insurance Co., 105 F.2d 768, 775 (D.C.Cir.1939); Lung v. O’Cheskey, 358 F.Supp. 928, 931 (D.N.M.), summarily aff’d. 414 U.S. 802, 94 S.Ct. 159, 38 L.Ed.2d 39 (1973). But even if the clause does apply here, either directly or indirectly as a component of Fifth Amendment due process, Rule 21.2 passes muster.

In applying the Privileges and Immunities Clause, a court must first determine whether the interest asserted by the out-of-state resident is sufficiently fundamental to the promotion of interstate harmony so as to fall within the purview of the clause. If the privilege or immunity is subject to protection under the clause, the next inquiry concerns whether there is a “substantial reason” for discriminating against nonresidents and whether the discrimination actually imposed “bears a close relation” to the supporting reason or reasons. United Building and Construction Trades Council v. Camden, — U.S. —, —-—, 104 S.Ct. 1020, 1027-30, 79 L.Ed.2d 249 (1984).

Here, it is extremely dubious that Frazier’s interest in practicing in federal court in Louisiana is fundamental to, or even remotely relevant to, the promotion of interstate harmony. Surely, Frazier would not suggest that Mississippi would view the action of a federal court sitting in Louisiana as an affront to the comity exercised between Louisiana and Mississippi. The point is not a critical one, however. The foregoing equal protection analysis establishes that the unrestricted general admission of nonresident attorneys to the Eastern District bar impairs the efficient administration of-justice. Thus, there is a “substantial reason” to treat nonresident attorneys differently than resident attorneys. The discrimination imposed, the requirement that nonresident attorneys open a Louisiana office, bears a close relation to this substantial reason because it alleviates the problems presented by general admission of nonresident attorneys without greatly restricting the ability of those attorneys to practice before the Court. The Court therefore concludes that Rule 21.2 would not violate the Privileges and Immunities Clause if it were applicable. Accord Piper, 723 F.2d at 117 (opinion of two judges of an equally divided court sitting en banc); Stalland, 530 F.Supp. at 161.

Freedom of Association and Expression

Plaintiff lastly contends that relegating him to pro hgc vice admission, which requires him to associate local counsel, has a “chilling effect” on his freedom of association, expression and representation in the Eastern District. This Court has already found as a fact that Frazier would not be denied pro hac vice admission if he complied with Rule 21.5. Thus, Frazier could not argue with any force that the Eastern District Rules in fact deprive him of his first amendment freedoms. The most that can be said is that the Rules place an incidental burden on the exercise of these freedoms by restricting the manner in which they are exercised. This incidental burden will not violate the first amendment if it operates without regard to the content of the expression or the character of the association and it serves significant governmental interests. Cf. Heffron v. International Society for Krishna Con sciousness, 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) (time, place and manner restriction on distribution of material at a state fairgrounds).

That Rules 21.2 and 21.5 operate without regard to the content of expression or the character of association is clear. On their face, the Eastern District Rules do not restrict the appearance of out-of-state counsel on the basis of the beliefs they seek to espouse or upon the character of their associations. This Court finds as a fact that the Eastern District judges do not apply the Rules in a manner which discriminates against attorneys because of their beliefs or associations. The district judges do not have unbridled discretion in this regard. The Fifth Circuit is ever vigilant in ensuring that local rules do not operate with such an improper effect. See, e.g., Sanders v. Russell, 401 F.2d 241 (5th Cir.1968) (the court invalidated district court restrictions on pro hac vice admission that severely impaired the ability of Negroes to obtain attorneys for civil rights claims).

The rules are also reasonable in light of the significant governmental interests involved. This Court has discussed at length, in regard to Frazier’s equal protection challenge, the reasonableness of restrictions imposed by Rule 21.2 on the manner of a nonresident attorney’s appearance in the Eastern District. Rule 21.5 is a fitting complement to Rule 21.2. Rule 21.5 serves the goal of promoting the efficient administration of justice by requiring the association of an attorney who is locally available to the Court. The Rule further serves the goal of assuring the professional integrity of the attorneys that practice before the Court by requiring the applicant for pro hac vice admission to file a certificate of good standing and report on any disciplinary or criminal proceedings brought against him. These minimal restrictions on a nonresident’s freedom of expression and association in the Eastern District are amply justified by the significant governmental interests served.

Conclusion

Frazier’s challenges to the Eastern District’s limitations on admission of nonresident attorneys under the Commerce Clause, the Full Faith and Credit Clause, the equal protection component of the Due Process Clause, the Privileges and Immunities Clause, and the first amendment all fall short of the mark. Accordingly, his petition for injunctive and other extraordinary relief is DENIED and his suit will be DISMISSED on the merits and with prejudice.

It is appropriate to make this personal observation. Mr. Frazier and counsel for both sides have outlined their positions admirably, with a clarity that has been immensely useful. All have revealed their highest respect for the judicial institutions to which they are so obviously dedicated.

      . Frazier does not challenge the propriety of the basic delegation of rule-making authority to the lower courts. The Constitution does require Congress to lay down policies and establish standards when it delegates legislative power. See Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935). Yet these limits on the authority of Congress to delegate its legislative power are less stringent when the entity exercising the delegated authority itself possesses independent authority over the subject matter. United States v. Mazurie, 419 U.S. 544, 556-57, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975). Congress need not define the standards governing the delegation as narrowly as would be required in other situations. See United States v. Curtiss-Wright Corp., 299 U.S. 304, 319-22, 57 S.Ct. 216, 220-21, 81 L.Ed. 255 (1936) (Congress need not lay down narrowly definite standards in delegating authority to a president to prohibit sales of arms and munitions to certain warring nations). In the instant case, the entities exercising the delegated authority to make court rules, the lower federal courts, themselves, possess independent authority over the subject matter, practice and procedure in those courts. Section 2071 states that the rules shall be "for the conduct of their business” and requires that the court rules be consistent with Acts of Congress and the rules of practice and procedure prescribed by the Supreme Court. In light of the independent authority of the courts over practice and procedure, these standards suffice to properly delegate the rule-making authority to the lower federal courts. Cf. Sperry v. Florida, 373 U.S. 379, 403, 83 S.Ct. 1322, 1335, 10 L.Ed.2d 428 (1963) (35 U.S.C. § 31 contains sufficient standards .to guide the Patent Office in admitting persons to practice before that body and is therefore a proper delegation of legislative authority).

      . That a court might adopt a local rule that bears absolutely no relationship to "the conduct of [its] business” is of course conceivable. For example, a court might attempt to regulate the price of certain produce in interstate commerce. But, here, Frazier could not cogently argue that prescribing rules for admission to a district court’s bar is other than in "the conduct of [its] business." Indeed, the exercise of this power is expressly authorized by 28 U.S.C. § 1654. Similarly, Frazier does not contend that Rule 21.2 is inconsistent with an Act of Congress or a rule prescribed by the Supreme Court. Thus, it is clear that the Eastern District was acting within the scope of the powers delegated to it when it adopted the rule.

      . See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 1311-14, 75 L.Ed.2d 206 (1983) (jurisdiction case).

      . Frazier's additional reliance upon the Equal Protection Clause of the fourteenth amendment is clearly misplaced as that amendment does not limit federal governmental action. The analysis under fifth amendment and fourteenth amendment equal protection is. basically the same, however, although the limitations imposed by equal protection principles on federal and state power 'are not always coextensive. See Hampton v. Mow Sun Wong, 426 U.S. 88, 100, 96 S.Ct. 1895, 1903, 48 L.Ed.2d 495 (1976).

      . Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957).

      . See Baird v. State Bar of Arizona, 401 U.S. 1, 6, 91 S.Ct. 702, 705, 27 L.Ed.2d 639 (1971) (plurality opinion) (membership in a particular political organization is not a ground for denying admission to a state bar).

      . See Piper, 723 F.2d at 112-18 (opinion of two judges of an equally divided court sitting en banc ).

      . The Supreme Court stated in Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979) (per curiam summary reversal):
      [There is no] basis for the argument that the interest in appearing pro hac vice has its source in federal law____ There is no right of federal origin that permits such lawyers to appear in state courts without meeting that State’s bar admission requirements. This Court, on several occasions, has sustained state bar rules that excluded out-of-state counsel from practice altogether or on a case by case basis____ These decisions recognize that the Constitution does not require that because .a lawyer has been admitted to the bar of one State, he or she must be allowed to practice in another.
      439 U.S. at 443, 99 S.Ct. at 701 (citations omitted). While it is true that Frazier has met the State’s bar admission requirements, he remains an "out-of-state” lawyer as to the Eastern District’s bar admission requirements. As such a lawyer does not have a right protected directly under the Constitution to appear even temporarily before the Court, Frazier’s claim of a fundamental right to appear as a permanent member of the bar appears all the more tenuous. See also Martin v. Walton, 368 U.S. 25, 82 S.Ct. 1, 7 L.Ed.2d 5 (1961), dismissing for want of a substantial federal question the appeal from 187 Kan. 473, 357 P.2d 782 (1960) (members of the Kansas bar who were residents of Kansas could be required to associate local counsel if they regularly engaged in practice out of the state);
        Kovrak v. Ginsburg, 358 U.S. 52, 79 S.Ct. 95, 3 L.Ed.2d 46 (1958), dismissing for want of a substantial federal question the appeal from 392 Pa. 143, 139 A.2d 889.

      . Under Rule 21.5, the visiting attorney must (1) attach a certificate of good standing, (2) state under oath whether any disciplinary or criminal charges have been instituted against him, and (3) associate local counsel.

      . The Fifth Circuit did not address the merits of the nonresident workers’ equal protection challenge and the case therefore has no direct relevance here.

      . See Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979) (summary per curiam reversal of due process challenge to denial of application for a pro hac vice appearance); Wilson v. Wilson, 430 U.S. 925, 97 S.Ct. 1540, 51 L.Ed.2d 768 (1977) summarily aff’g 416 F.Supp. 984 (D.Ore.1976) (the three-judge district court held that the state could require a bar applicant to express an intent to be a resident of the state at the time of admission without penalizing the right of interstate travel and without contravening equal protection interests); Norfolk & Western R. Co. v. Beatty, 423 U.S. 1009, 96 S.Ct. 439, 46 L.Ed.2d 381 (1975), summarily aff’g 400 F.Supp. 234 (S.D.Ill.) (state restrictions on participation by out-of-state counsel); Brown v. Supreme Court of Virginia, 414 U.S. 1034, 94 S.Ct. 534, 38 L.Ed.2d 327 (1973), summarily aff’g 359 F.Supp. 549 (E.D.Va.) (the three-judge district court, one judge dissenting, rejected an equal protection challenge to a Virginia requirement that attorneys admitted by reciprocity without examination must become Virginia residents); Suffling v. Bondurant, 409 U.S. 1020, 93 S.Ct. 460, 34 L.Ed.2d 312 (1972), summarily aff'g 339 F.Supp. 257 (D.N.M.) (the three-judge court, one judge dissenting, rejected an equal protection challenge to a rule requiring six months residence in the state prior to admission to the bar for purposes of evaluation); Martin v. Walton, 368 U.S. 25, 82 S.Ct. 1, 7 L.Ed.2d 5 (1961), dismissing for want of a substantial federal question the appeal from 187 Kan. 473, 357 P.2d 782 (1960) (Kansas could require resident attorneys who regularly engaged in practice out of state to associate local counsel when appearing in Kansas).

      . Fed.R.Civ.P. 1 (emphasis added).

      . Presumably, a nonresident attorney or firm with a Louisiana office would have to practice in Louisiana with some regularity in order to make the office profitable.

      . U.S. Const., Art. IV, § 2, cl. 1.


source: Caselaw Access Project

author: SHOOB, District Judge.

license: Public Domain

text:
    PENTHOUSE INTERNATIONAL, LTD., Plaintiff, v. James L. WEBB, Individually, and as Solicitor General for the County of Fulton, State of Georgia, Defendant.
    Civ. A. No. C84-1769A.
    United States District Court, N.D. Georgia, Atlanta Division.
    Sept. 14, 1984.
    As Corrected Sept. 18, 1984.

      James L. Paul, Gary A. Barnes, Atlanta, Ga., Norman Roy Grutman, New York City, for plaintiff.
    Charles S. Hunter, Asst. Sol. Gen., Fulton County, Atlanta, Ga., for defendant.
   ORDER

SHOOB, District Judge.

I. INTRODUCTION

This is an action under 42 U.S.C. § 1983 for declaratory and injunctive relief as well as for damages. Plaintiff, publisher of the monthly magazine “Penthouse,” alleges that James Webb, Solicitor General of Fulton County, has wrongfully brought accusations against plaintiff and Elson’s News and Gift Shops, Inc., a distributor of Penthouse, for violation of the Georgia obscenity distribution statute, O.C.Ga.Ann. § 16-12-80, in the distribution of the September 1984 issue of Penthouse, and has thus violated plaintiff’s rights under the first and fourteenth amendments to the United States Constitution. Plaintiff seeks a permanent injunction against enforcement of O.C.Ga.Ann. § 16-12-80 with respect to distribution of the September 1984 issue of Penthouse; a declaration that the accusation filed against plaintiff is null and void; a declaration that the September 1984 issue of Penthouse is not obscene and is protected by the first and fourteenth amendments to the U.S. Constitution; a declaration that the actions of Webb and his agents are in bad faith and violate plaintiff's rights under the first and fourteenth amendments; a declaration that the statute authorizing service of a criminal accusation upon a corporation, O.C.Ga.Ann. § 17-7-92, is unconstitutional as applied to plaintiff; damages; and attorney’s fees under 42 U.S.C. § 1988.

Plaintiff has applied for a temporary restraining order to enjoin the arrest of any person for distribution of the September or October 1984 issues of Penthouse and to prevent the enforcement of the obscenity distribution statute with regard to those issues. The Court held a hearing on the application on September 4 and 5, 1984. Because counsel for both parties were present, the Court treats the application as being for a preliminary injunction under Rule 65(a), Fed.R.Civ.P., and hereby enters its findings and conclusions as required by Rule 52, Fed.R.Civ.P.

II. FACTUAL BACKGROUND

On August 8, 1984, two investigators of the Solicitor General’s office purchased a copy of the September 1984 Penthouse from a newsstand owned by Elson’s News and Gift Shops, Inc. The investigators went before a magistrate of Fulton County and obtained two “Jane Doe” arrest warrants against the salesperson based upon a determination that the issue was probably obscene within the meaning of O.C.Ga.Ann. § 16-12-80(b). Solicitor General Webb then filed accusations in the State Court of Fulton County against plaintiff and against Elson’s News and Gift Shops.

Penthouse is a nationally distributed magazine styling itself “the international magazine for men.” It has a world-wide circulation of 5 million. Plaintiff distributes the magazine through Curtis Circulation Company, which selects wholesalers in different areas of the United States. Plaintiff derives revenue both from sale of the issues and from advertising; advertising income itself depends upon circulation, because advertisement prices rise and fall with the number of readers reached.

Approximately 500 wholesalers distribute Penthouse throughout the country. Sixth largest of these wholesalers is Atlanta News Agency, Inc. (“ANA"). ANA controls 98 percent of the periodical distribution market in the Atlanta metropolitan area and in Savannah, which is Georgia’s second largest city. Both ANA and Elson’s News and Gift Shops are owned or controlled by Atlantan Edward E. Elson.

Upon the filing of an accusation against Elson’s News and Gifts, Inc., Mr. Elson caused ANA to cease distributing copies of the September 1984 Penthouse. Elson also informed Penthouse that ANA would not distribute the October 1984 issue because of the fear of arrest and prosecution.

Elson testified that no threat has been expressed to him, his companies, or any employees concerning distribution of the October 1984 issue of Penthouse. His decision not to distribute that issue was based upon business reasons and upon his knowledge of the history of litigation between him and the former Solicitor General of Fulton County over sexually oriented publications. Elson stated that he feared to distribute the October 1984 issue because of the controversy over the September 1984 issue; in his view — derived from information or complaints generated by others, and not from personal observation — there has been no significant change in the content of Penthouse over the last ten years. In his words, the prosecution for the September issue amounts to a threat of prosecution for the October issue.

Elson also testified that, owing to the size and complexity of its distribution network, ANA cannot screen individual issues of the 2800 different periodicals it handles. ANA is unable to intercept even the most extremely obscene issues; instead it depends upon the reliability and credibility of the publishers and distributors with whom it deals.

Elson estimated that there are approximately 500 retailers of Penthouse in Fulton County. Penthouse sales account for 4.8 percent of ANA’s gross revenues, although the percentage of revenues derived from Penthouse sales within Fulton County was not specified.

Elson testified that an interruption of ANA’s distribution of Penthouse causes a loss of credibility with retailers, who expect regular, distribution. He also testified that an accusation impairs ANA’s ability to do business because of the stigma attached to criminal prosecution for distribution of obscene materials. Elson stated that municipal governments and ■ large hotel chains dealing with ANA and Elson’s other companies are concerned with the distributor’s reputation and that the reputation is harmed by such an accusation.

Plaintiff’s chief financial officer, Mr. Prebich, .testified that the publisher loses revenue when part of the distribution system fails to operate. Although Curtis Circulation Company, not the publisher, deals directly with wholesalers, Mr. Prebieh estimated that it would be difficult for Curtis to find a new distributor to replace ANA. Mr. Prebieh also testified that an accusation such as that filed in Fulton County impairs the publisher’s relations with advertisers who are sensitive to the magazine’s image, but he could not cite any problems with advertisers over the current accusation.

Plaintiff called to the Court’s attention a history of litigation between it and Hinson McAuliffe, defendant’s predecessor in office, over alleged obscenity of various issues of Penthouse and of a film, Caligula, distributed by plaintiff. In Penthouse International, Ltd. v. McAuliffe, 436 F.Supp. 1241 (N.D.Ga.1977) (Penthouse I), Judge Freeman of this court found that the conduct of McAuliffe, “consisting of numerous and harassing arrests with or without a warrant prior to a final adjudication upon the issue of obscenity vel non at an adversary hearing,” constituted a prior restraint forbidden by the first and fourteenth amendments. 436 F.Supp. at 1256. The court also declared that the August 1977 issue of Penthouse was not obscene according to the standards of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). 436 F.Supp. at 1257.

In a separate case, Penthouse International, Ltd. v. McAuliffe, 454 F.Supp. 289 (N.D.Ga.1978) (Penthouse II), the court, again acting through Judge Freeman, considered plaintiff’s challenge to a state court accusation against it. The court found that no bad-faith harassment or clearly merit-less prosecution had been shown, and it denied declaratory and injunctive relief with regard to an accusation against the December 1977 issue that was commenced before Penthouse’s suit was filed. The court stated that the principles of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), precluded interference by a federal court with a state court proceeding, and therefore it refused to determine the question of obscenity of the December 1977 issue. 454 F.Supp. at 296-301. Judge Freeman also declared that the January 1978 issue of Penthouse was not obscene, and he declared that McAuliffe must apply the “as a whole” qualification of Miller in applying the obscenity laws. 454 F.Supp. at 304.

Judge Freeman’s two cases were considered together on appeal in Penthouse International, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.1980). The court of appeals upheld the finding of an improper prior restraint in Penthouse I, affirmed its grant of injunctive and declaratory relief, and did not reach the issue whether the August 1977 Penthouse was obscene. 610 F.2d at 1362. Reviewing Penthouse II, the court of appeals reversed in part and held that the January 1978 Penthouse was in fact obscene. 610 F.2d at 1373.

The third case between these parties in federal court concerned the film Caligula. Judge Freeman heard that ease also; sitting with an advisory jury, he ruled that the film was not obscene. Penthouse International, Ltd. v. McAuliffe, Civil Action No. C80-2172A, slip op. (N.D.Ga. May 15, 1981) (Caligula). Judge Freeman found, however, that the film’s overwhelming depictions of violence, cruelty, and sexual behavior would inhibit rather than appeal to a prurient interest in sex. Slip op. at 7-9. He also found that the film, taken as a whole, lacked serious literary and scientific value, but contained serious artistic and political value. Slip op. at 15. A panel of the Eleventh Circuit reversed in part and affirmed in part, 702 F.2d 925 (11th Cir.1983). The court of appeals reheard the case in banc, thus vacating the panel opinion, cf. 11th Cir.R. 26(k); and because it divided equally as to the proper disposition of the case, it affirmed the district court by operation of law. 717 F.2d 517 (11th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1615, 80 L.Ed.2d 144 (1984).

III. LEGAL STANDARDS

There are four prerequisites to the grant of preliminary injunctive relief: (1) the movant is substantially likely to prevail on the merits; (2) the movant will suffer irreparable injury unless the injunction issues; (3) the threatened injury outweighs whatever damage the proposed injunction may cause the opposing party; and (4) the injunction would not be adverse to the public interest. Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1423 (11th Cir.1984).

The Georgia statute regulating the distribution of obscene materials states, in pertinent part:

(b) Material is obscene if:
(1) To the average person, applying contemporary community standards, taken as a whole, it predominantly appeals to the prurient interest, that is, a shameful or morbid interest in nudity, sex, or excretion;
(2) The material taken as a whole lacks serious literary, artistic, political, or scientific value; and
(3) The material depicts or describes, in a patently offensive way, sexual conduct specifically defined in subparagraphs (A) through (E) below:
(A) Acts of sexual intercourse, heterosexual or homosexual, normal or perverted, actual or simulated;
(B) Acts of masturbation;
(C) Acts involving excretory functions or lewd exhibition of the genitals;
(D) Acts of bestiality or the fondling of sex organs of animals; or
(E) Sexual acts of flagellation, torture, or other violence indicating a sadomasochistic sexual relationship;
(d) Material not otherwise obscene may be obscene under this Code section if the distribution thereof, the offer to do so, or the possession with intent to do so is a commercial exploitation of erotica solely for the sake of their prurient appeal.

O.C.Ga.Ann. § 16-12-80 (Michie 1984).

IV. DISCUSSION

A. Likelihood of Success on the Merits

There are two elements pertaining to success on the merits that plaintiff must establish: that the Court has jurisdiction over the case enabling the Court to reach the merits, and that the periodical at issue is not obscene. As movant, plaintiff has the burden of proof as to each element.

1. Jurisdiction of the federal courts

a. September 1984 Penthouse

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), held that there was a national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances. A companion case to Younger, Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), held that declaratory relief was also improper when a prosecution involving the challenged statute is pending in state court at the time the federal suit is initiated.

These decisions reflect two basic concerns. First is a principle of equity that a criminal proceeding cannot be enjoined by showing the existence of a valid defense. Second is a principle of federalism, that federal courts must not interfere in state judicial processes because state courts of general jurisdiction are authorized and competent, as front-line fora, to adjudicate all relevant questions of both state and federal law. See Younger, 401 U.S. at 43-44, 91 S.Ct. at 750-751.

Younger established that particular equitable considerations may make it appropriate, in certain cases, for a federal court to take action despite the usual rule of non-interference. Bad faith, harassment, and unusual situations may justify federal court action. As the Supreme Court stated in Perez v. Ledesma, 401 U.S. 82, 85, 91 S.Ct. 674, 677, 27 L.Ed.2d 701 (1971):

Only in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate.

On the other hand, Younger noted that “the existence of a ‘chilling effect,’ even in the area of First Amendment rights, has never been considered a sufficient basis, in and of itself, for prohibiting state action.” 401 U.S. at 51, 91 S.Ct. at 754.

This case, which concerns enforcement of the obscenity statutes against both the September 1984 and October 1984 issues of Penthouse, comes to the Court in a mixed procedural posture. The Solicitor General has already commenced enforcement proceedings with regard to the September issue, but not with regard to the October one. Thus only half the case falls within the domain of Younger.

The first issue the Court must determine from the evidence is whether there exists bad faith, harassment, or such unusual circumstances that should justify federal interference in the accusations against distribution of the September issue.

Plaintiff suggests four examples of Webb’s bad faith and several unusual circumstances in the case. Plaintiff first claims that Webb filed an accusation that is legally void because of the impossibility of service, and that the filing of a void accusation constitutes bad faith. The statute authorizing service of an accusation, O.C.Ga. Ann. § 17-7-92 (Michie 1982), states, in pertinent part:

Whenever an indictment, special presentment, or accusation against a corporation doing business in this state is returned or filed in any court having jurisdiction over the offense, the clerk of the court shall issue an original and copy notice to the defendant corporation of the filing of the indictment, special presentment, or accusation, which copy notice shall be served by a sheriff upon any officer of the corporation who is found in his county; or, if there is no such officer in his county, then service shall be upon any agent of the corporation.

Plaintiff claims that the statute does not authorize service against it, a foreign corporation without an agent for service of process in Georgia; it further contends that if the statute does in fact authorize service, it is unconstitutional because it denies due process.

The Court observes that the scope of O.C.Ga.Ann. § 17-7-92 has not been determined by state courts; for that reason the Court will consider only whether the statute, as applied to Penthouse, is so clearly unconstitutional that the Solicitor General’s reliance upon it would constitute bad faith.

The Second Circuit has adopted the “ ‘modern notion’ that where a person has sufficiently caused adverse consequences within a state, he may be subjected to its judicial jurisdiction so long as he is given adequate notice and an opportunity to be heard.” Matter of Marc Rich & Co., A.G., 707 F.2d 663, 667 (2d Cir.), cert. denied, — U.S. —, 103 S.Ct. 3555, 77 L.Ed.2d 1400 (1983). The court relied upon section 50 of the American Law Institute’s Restatement (Second) of Conflict of Laws (1971), which states:

A state has power to exercise judicial jurisdiction over a foreign corporation which causes effects in the state by an act done elsewhere with respect to any cause of action arising from these effects unless the nature of these effects and of the corporation’s relationship to the state makes the exercise of such jurisdiction unreasonable.

And, as the Second Circuit noted in an earlier case in a similar context, “the principal function of service of process is rather to give notice and opportunity to be heard, which can be done by appropriate methods of service outside the state.” Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326, 1340 (2d Cir.1972). See also McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). The Court agrees with those decisions and therefore concludes that Solicitor General Webb’s reliance upon O.C. Ga.Ann. § 17-7-92 does not constitute bad faith.

Plaintiff also claims that Webb violated an order of Judge Freeman in Penthouse I, 436 F.Supp. 1241 (N.D.Ga.1977). That order permanently enjoined Webb’s predecessor, Hinson McAuliffe, from making further arrests under Ga.Code Ann. § 26-2101 (now O.C.Ga.Ann. § 16-12-80 (Michie 1984)) for the sale of the August 1977 Penthouse without first obtaining arrest warrants. 436 F.Supp. at 1256. Judge Freeman added two observations. First, he noted: “While this court’s jurisdiction over the instant publications is limited to a single issue thereof ... it is hoped that ... a word to the wise will be sufficient.” Id. at 1256 n. 31. He also stated: “[I]t should be noted that we do not decide that Mr. McAuliffe’s office may make no more arrests under Ga.Code § 26-2101 concerning subsequent issues of the subject publications. Rather, we decide only that if he chooses to do so he must follow the previously enunciated constitutional guidelines.” 436 F.Supp. at 1256.

Webb cannot have violated the letter of that order because it was confined to the August 1977 issue. Moreover, there is no evidence before this Court that Webb violated even the spirit of Judge Freeman’s order. His office has made no arrests; furthermore, he has obtained two “Jane Doe” warrants after a magistrate’s determination of probable obscenity of the September 1984 issue. He has not engaged in the sort of widespread harassment by his predecessor that amounted to an informal system of prior restraint and constructive seizure. Cf. id. at 1251-1256. As a matter of fact, from the limited evidence before the Court, it is hard to see how Webb could have done anything less.

Plaintiff’s third example of bad faith consists of the coincidence that the arrest warrants and accusation were issued on August 8, 1984, the same day that the Solicitor General’s lawyer paid court costs and thus concluded the litigation over the film Caligula. Webb testified that the payment of costs on that date by the county commission culminated a lengthy bureaucratic process of obtaining a check, and that the payment and the accusation were unrelated. Although there is no independent evidence of Webb’s motivation, the Court is satisfied that the coincidence does not show any bad faith.

Plaintiff shows, as a purported fourth example of bad faith, that the Solicitor General has failed to prosecute distribution of other magazines that are arguably less clearly protected under the first and fourteenth amendments than Penthouse. To that end plaintiff introduced copies of two other magazines sold in Fulton County that have not been prosecuted. The Court would place little weight upon such a claim of selective prosecution without stronger evidence, because all prosecution is to some extent selective. In this case the Court accords even less weight to the claim because, upon reviewing the magazines, it could discern rational reasons for prosecuting Penthouse and not the others.

It does not amount to bad faith for a prosecutor to make distribution of obscene materials a high priority in his or her prosecutorial agenda. Nor does it amount to bad faith to prosecute a defendant that pretends to be in the mainstream and not at the extréme of sexually oriented publications. Nor is there bad faith in prosecuting close cases, especially where previous cases have not always been decided in favor of the publisher. Plaintiff must show harassment or other clear evidence that the Solicitor General has abused his discretion; and plaintiff has not done so. There is no showing here that Webb undertook anything other than to carry out his stated purpose, and official obligation, of enforcing the state’s criminal statutes.

Aside from the specific claims of bad faith, Penthouse claims unusual circumstances that justify federal intervention. Plaintiff claims that the dominant position of ANA in local periodical distribution, combined with ANA’s apparent sensitivity to controversy, shuts Penthouse completely out of the county. For this reason, plaintiff asks the Court not only to block the accusation against it, but also to interfere with the accusation against Elson’s News and Gift Shops and with the possible arrests of its employees. Plaintiff claims that, by selecting the crucial link of Penthouse’s distribution system in the county — Edward Elson — for prosecution, the Solicitor General has so blocked all sales of the magazine as to constitute a prior restraint.

Plaintiff also claims that its long history of disputes over obscenity with the Fulton County Solicitor General requires federal intervention. Although there have indeed been several lawsuits brought by both parties, the last attempted prosecution for obscenity of an issue of Penthouse occurred in 1977; thus it appears that the disputes are episodic rather than continuing. The history of the disputes includes at least one occasion when an issue of Penthouse was adjudicated to be obscene, Penthouse International, Ltd. v. McAuliffe, 610 F.2d 1353, 1372-1373 (5th Cir.1980), cert. dismissed, 447 U.S. 931, 100 S.Ct. 3031, 65 L.Ed.2d 1131 (1980), and another occasion when a film produced by plaintiff drew an even split within the Eleventh Circuit on appeal from a finding of no obscenity. Penthouse International, Ltd. v. McAuliffe, 717 F.2d 517 (11th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1615, 80 L.Ed.2d 144 (1984).

Plaintiff claims that the continuing threat of further arrests chills the distribution of future issues of Penthouse; but any threat of further arrest in this case comes from the awareness of plaintiff and its distributors that they act at the margin of, or outside, the law. The Solicitor General testified under oath at the hearing that he had made no plans concerning further prosecution.

None of these circumstances, either individually or taken together, warrant an exception to the Younger doctrine. As Younger itself noted, the “chilling effect” of a prosecution alone does not create an unusual circumstance. 401 U.S. at 51, 91 S.Ct. at 754. Further, plaintiffs part in the history of prior eases is not impeccable, because at least one prior issue was obscene; it therefore does not have the “clean hands” necessary to claim that history as an equitable consideration justifying federal interference. Third, the selection of Elson’s company as a target of prosecution was legitimate, precisely because Elson is Penthouse’s major distributor. The apparent special sensitivity of Elson and his companies to controversy over obscenity, long known to plaintiff, cf. Penthouse II, 454 F.Supp. 289, 299, 301 n. 13 (N.D.Ga.1978), could have been taken into account by plaintiff when fashioning a distribution network. Because plaintiff has knowingly created its own hardship by retaining this distributor, it may not rely upon that hardship as an equitable consideration justifying federal court intrusion into a state proceeding.

Because the Court concludes that the prosecution of distribution of the September 1984 issue of Penthouse involves no bad faith and that no unusual circumstances justify federal intervention in a state enforcement proceeding, the Court, at least as a preliminary matter, determines that equitable restraint is required under Younger v. Harris. As a consequence, there is not a substantial likelihood that plaintiff will even reach, much less prevail on, the merits of its action as to the September 1984 issue of Penthouse.

b. October 1984 Penthouse

There is no state enforcement action yet concerning the October 1984 issue. When no state court enforcement proceeding has begun, there may be no sufficient “case or controversy” to authorize federal court jurisdiction under either the Declaratory Judgment Act, 28 U.S.C. § 2201, or Article III of the U.S. Constitution. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), established, however, that “federal declaratory relief is not precluded when no state prosecution is pending and a federal plaintiff demonstrates a genuine threat of enforcement of a disputed state criminal statute, whether an attack is made on the constitutionality of the statute on its face or as applied.” 415 U.S. at 475, 94 S.Ct. at 1224.

Even if there exists somewhere a case or controversy between plaintiff and defendant regarding the October 1984 issue, that case or controversy has not entered this Court. Plaintiffs complaint seeks no ultimate relief, by way of either injunction or declaration, regarding the October issue; the request for ultimate relief is confined to questions concerning the September 1984 issue. As a result, the Court is without jurisdiction to pass upon the merits of the October 1984 issue.

2. Nature of the Magazines

a. September 1984 Penthouse

Even if the Court were to decide that it was proper for a federal court to interfere with the state court proceedings, it would not do so in this case because plaintiff has not shown a substantial likelihood of prevailing on the merits of its action for a declaration that the September 1984 issue is not obscene.

The Court first addresses the burden and standard of proof that would apply to plaintiff’s action. Plaintiff urges that it comes into Court protected by a presumption that the magazines are not obscene, and that the presumption may be defeated only if the materials are found obscene “beyond a reasonable doubt,” citing the standard applied by Judge Freeman in the Caligula case. See Trial transcript at 1540, Penthouse International, Ltd. v. McAuliffe, Civil Action no. C80-2172A, (N.D.Ga. May 15, 1981). On its theory, all plaintiff would have to do in its affirmative action for a declaratory judgment is to show that there is a reasonable doubt that the issues are obscene. Plaintiff thus wants to have its cake and eat it too: it wants to force Webb to prove his case as a defendant instead of as a prosecutor, by the criminal standard instead of by a preponderance of the evidence, in a federal civil action instead of a state criminal prosecution.

Plaintiff’s suggestion is untenable. The Supreme Court has squarely held that the “beyond reasonable doubt” standard is not required in a civil proceeding concerning obscenity. Cooper v. Mitchell Brothers’ Santa Ana Theater, 454 U.S. 90, 102 S.Ct. 172, 70 L.Ed.2d 262 (1981) (per curiam).

Nor does the state bear the burden of proof. The state has not come into this court; plaintiff has. Because it seeks affirmative and anticipatory relief, which in any event should be considered only in extraordinary circumstances, it must accept the burden that is placed on every civil plaintiff. The Court therefore holds that, as the party seeking relief, plaintiff must carry the burden of proof and meet the usual, preponderance-of-the-evidence standard for civil litigation.

In light of the standard just discussed, plaintiff must, in order to obtain a preliminary injunction, show that it is substantially likely to prevail — by a preponderance of the evidence — on the merits at the ultimate determination.

Miller v. California establishes that, in a case involving obscene materials,

[t]he basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that 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.

413 U.S. at 24, 93 S.Ct. at 2615 (citations omitted). The Court went on to offer examples of what a state statute could permissibly define for regulation under category (b) above:

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

413 U.S. at 25, 93 S.Ct. at 2615.

Any portions of O.C.Ga.Ann. § 16 — 12— 80(b) that would apply to plaintiff with regard to the September or October 1984 issues of Penthouse would accord with the Miller standard.

The Court will examine the September 1984 issue of Penthouse, analyzing first its depictions and descriptions of sexual conduct; second, its appeal to prurient interest; and third, its literary, artistic, political, or scientific value.

Depictions and descriptions

There are five photo features in the magazine that contain 108 photographs of women in varying degrees of nudity; only 21 photos in those series portray women without exposed breasts, buttocks, or genitals. Nine of the photographs display lesbian cunnilingus, either simulated or actual. Seven photographs display or allude to masturbation: five show a finger on or near the clitoris, one shows a finger near the anus, and one shows a finger clearly within the vagina. Among the other photographs in the five series are sixteen showing women’s legs spread in such a way as to expose their genitals, two that feature women spreading their labia open with their fingers to reveal more, and six that are close-up photographs showing nothing but women’s groins. The Court finds that these photographs depict sexual conduct and lewd exhibition in a patently offensive way forbidden by O.C.Ga.Ann. § 16-12-80 within the guidelines of Miller.

Patently offensive written descriptions, even without photographs, may be sufficient to render a publication obscene. Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973). Having found that the September 1984 issue contains patently offensive photographic depictions of sexual conduct, the Court need not dwell on whether the magazine also contains patently offensive written descriptions as well, except to say that “Penthouse Forum,” “Women’s Forum,” and “Call Me Madam,” analyzed in the next section, contain an abundance of them.

Appeal to prurient interest

An examination of the text of the issue follows, broken down by categories. The length of each item is approximate. Not included in the analysis are the five series of nude photographs, totaling 63 pages, discussed above.

Letters:
Penthouse Forum: readers’ narratives of sexual behavior in seven letters, detailing four acts of fellatio, four of vaginal intercourse, two of anal intercourse, two of cunnilingus, and one of masturbation, not to mention one act of “intercourse” with a “rubber love doll” and sundry other activities. (3:A pages)
Women’s Forum: one letter narrating vaginal and anal intercourse as well as cunnilingus. (FA pages)
Pet Forum: fan mail to “Penthouse Pets” from readers. (1 page)
Feedback: letters from readers about Penthouse’s editorial content. (4 pages)
Call Me Madam: two letters seeking advice on stimulating libido, one letter seeking advice on sexy lingerie, and two letters narrating sexual activities. (3 pages)
Columns:
Power Game: on how to use power (1 page)
Men’s Rights: on federal divorce legislation (1 page)
Vietnam Veterans Adviser: on veterans’ benefits (1 page)
Advise and Consent: on Soviet aggression (2 pages)
Reviews, trivia, miscellaneous:
View from the top: on sexual mores (1 page)
Computers: review (1 page)
Sounds: review (1 page)
Home Video: review (includes “adult” and standard videos) (1 page)
Films: review (standard films) (1 page)
Nutrition and Fitness: advice (1 page)
Food & Wine: restaurant review (1 page)
Fast Forward: auto review (2 pages) Hard Times: humorous compendium of news items (3 pages)
Games: trivia quiz about Penthouse (2 pages)
Are You Really Special?: personality test (2 pages)
Non-fiction articles:
The Friends of Robert Vesco: on international drug trafficking (6 pages)
Oh Boy: profile of Boy George (6 pages)
Champ: profile of Muhammad Ali (2 pages)
Getting It All Together: exercise advice by John Travolta (3 pages) Interview:
John and Yoko: 1971 interview with John Lennon and Yoko Ono (5 pages) Fiction article:
Fallen Hero: novel excerpt about firefighting drama (4 pages)
Cartoon features:
Sweet Chastity: social-political satire (6 pages)
In the Beginning: parody of Penthouse (5 pages)
Hofmekler’s People: political caricature (2 pages).

Having reviewed the contents of the September 1984 Penthouse, the Court concludes that, taken as a whole, the magazine predominantly appeals to the prurient interest. Even though there are items that concern topics other than sex, the magazine’s overwhelming effect, obviously planned, is to create sexual excitement and stimulation, to scratch the itch — or to create the itch itself — of prurient interest.

Literary, artistic, political, or scientific value

The Court also preliminarily concludes that, taken as a whole, the magazine has no serious literary, artistic, political, or scientific value. There may be some literary value to the fiction article, some slight artistic value to one cartoon, and some slight political value to three items, but the Court questions whether any of these taken alone has serious value; the Court also determines that the magazine, taken as a whole, has no serious literary, artistic, political, or scientific value.

Because the Court finds that the September 1984 Penthouse meets all three criteria of the Miller test and falls within the Georgia obscenity distribution statute, O.C.Ga. Ann. § 16-12-80, the Court must conclude that plaintiff has shown no substantial likelihood of prevailing on the merits of its action for a declaration that the September 1984 Penthouse is not obscene.

b. October 1984 Penthouse

As noted earlier, see supra pages 1195, the complaint makes no claim for relief as to the October 1984 issue, and as a result the Court is powerless to consider-the merits of such a claim. Nevertheless, because the omission of a claim for relief may have been an oversight, and because parties to expedited preliminary motions deserve clear guidance, the Court adds the following observation. If a claim for relief as to the October 1984 issue were properly before the Court, the Court would find that plaintiff would be even less likely to prevail on the merits than with regard to the September 1984 magazine: the October issue contains less material than the September issue that could arguably be deemed to have value, while it also contains patently offensive depictions of sexual conduct and predominantly appeals to prurient interest.

B. Other Prerequisites

Because the Court finds that plaintiff has failed to show a substantial likelihood of prevailing on the merits, the Court need not consider whether plaintiff has satisfied the other prerequisites for preliminary injunctive relief.

V. CONCLUSION

Because the circumstances of this case do not justify federal interference in the pending state enforcement proceeding as to the September 1984 Penthouse, because plaintiff has not made a claim for ultimate relief as to the October 1984 Penthouse, and because, in any event, plaintiff has not shown that it is likely to prevail in showing that either the September 1984 Penthouse or the October 1984 Penthouse is not obscene, the Court DENIES plaintiff’s motion to enjoin enforcement of the Georgia obscenity distribution statute, O.C.Ga.Ann. § 16-12-80, with respect to the September and October 1984 issues of Penthouse.

      . Because the Court conducted a hearing on short notice and received limited evidence, it will entertain a further motion at a later date if plaintiff has evidence that would substantially alter the Court's preliminary impressions.

      . Although no testimony addressed this point, it is clear from exhibits that plaintiff also engages directly in the sale of magazines on a subscription basis.

      . Elson also unsuccessfully demanded that plaintiff, which has claimed that the accusation against it was void because of problems of service, submit itself to jurisdiction of the State Court of Fulton County so that the Solicitor General and Penthouse could dispute the question of obscenity without the issue being litigated indirectly and at ANA’s expense.

      . As to the burden and standard of proof on the question of obscenity, see infra page 1195-1196.

      . Among obvious questions of construction are whether “any agent of the corporation” means only an agent authorized to receive service of process; whether an agent (as opposed to an officer) may be served outside a sheriff's county; and whether plaintiff is "doing business” within Georgia. Those questions are appropriate for the state court to determine in the enforcement proceeding.

      . Plaintiff has also suggested that Webb’s failure to obtain a finding of probable obscenity in the course of making an accusation violates Judge Freeman's order, is unconstitutional, and demonstrates bad faith. The Court disagrees. There is no requirement of, much less any procedure for obtaining, a finding of probable obscenity in the course of filing an accusation. Such a finding must precede an arrest, but a corporation such as plaintiff is not subject to arrest, and no arrest warrant has been sought against plaintiff. Furthermore, there was a finding of probable obscenity by a magistrate, in connection with the two arrest warrants already issued, when Webb filed the accusation. Plaintiff clutches at straws in claiming that a prosecutor must make an accusation (to obtain a probable obscenity determination) before filing another accusation (to commence prosecution).

      . Plaintiff has also apparently aggravated that hardship by refusing to make arrangements with ANA that might have resulted in renewed distribution. See supra page 1189 note 3.

      . Plaintiff claims that publications are presumed to be protected by the First Amendment. That is true in a criminal prosecution, merely because a defendant is presumed to be innocent until proved otherwise; but in an anticipatory action like this that presumption does not apply. It is true that prior restraints are presumptively invalid, Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963), but there is no evidence of prior restraint in this case.

      . The Court recognizes that any attempt to control expression poses a potential threat to democracy. See Miller v. California, 413 U.S. at 23, 93 S.Ct. at 2614. But a state may properly exercise its police powers to regulate obscene material in order to protect legitimate state interests, including "the interest of the public in the quality of life and the total community environment ... and, possibly, the public safety itself.” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57-58, 93 S.Ct. 2628, 2635-2636, 37 L.Ed.2d 446 (1973). Even if the boundary between protected and unprotected expression is not clear, it nevertheless exists, cf. Miller, 413 U.S. at 26-30, 93 S.Ct. at 2616-2618; and plaintiff has crossed that boundary. The Court expresses no personal opinion on matters of taste or morality. The Court’s function is to decide whether the Constitution forbids defendant to apply the law enacted by Georgia’s elected legislature to the September 1984 Penthouse. The legislature has power, limited only by the Constitution, to decide whether or not state regulation'of obscenity is appropriate or desirable. The role of a federal court is solely to enforce the federal constitutional limits to the legislature’s power.