author: ROBERT D. POTTER, Chief Judge.

text:
    Raymond FLOYD, an individual, et al., Plaintiffs, v. Lacy H. THORNBURG, et al., Defendants. Sharon S. BUNDY, d/b/a Video Tracs; et al., Plaintiffs, v. Lacy H. THORNBURG, et al., Defendants. V.S.D., INC., et al., Plaintiffs, v. Lacy H. THORNBURG, et al., Defendants. Johnny T. ALLEN, Jr., d/b/a Prime Time Video, et al., Plaintiffs, v. Lacy H. THORNBURG, et al., Defendants. BRAGG NEWS, INC., T/A Bragg News, et al., Plaintiffs, v. Lacy H. THORNBURG, et al., Defendants. PARKER NEWS, INC., a North Carolina Corporation, et al., Plaintiffs, v. Lacy H. THORNBURG, et al., Defendants. TRI-STATE NEWS, INC., T/A North Liberty Books, Plaintiff, v. Donald K. TISDALE, District Attorney for Twenty-First Judicial District, Defendant. 3712 BRAGG, INC., d/b/a Fountainhead News, et al., Plaintiffs, v. Lacy H. THORNBURG, et al., Defendants.
    Nos. C-C-85-0542-P, C-C-85-544-M, STC-85-160-M, C-C-85-561-M, C-C-85-560-M, and C-C-85-557-P to C-C-85-559-M.
    United States District Court, W.D. North Carolina, Charlotte Division.
    Oct. 4, 1985.

      Jeffrey S. Miller, Jacksonville, N.C., Louis L. Lesesne, Jr., Charlotte, N.C., William E. Seekford, Towson, Md., Robert E. Whitley, Kinston, N.C., Arthur M. Schwartz, Denver, Colo., for plaintiffs.
    Edwin M. Speas, Jr., Sp. Deputy Atty. Gen., North Carolina Dept, of Justice, Raleigh, N.C., for defendants.
   ORDER

ROBERT D. POTTER, Chief Judge.

THIS MATTER is before the Court on the Plaintiffs’ Complaint and application for a Temporary Restraining Order, Preliminary Injunction, and Declaratory Judgment that North Carolina House Bill 1171 is on its face, and together with Sections 14-190 et seq. as it is applied to the Plaintiffs herein, unconstitutional as violative of rights guaranteed to Plaintiffs by the First, Fourth, Fifth, Sixth, Ninth and Fourteenth Amendments to the United States Constitution.

A hearing was held on September 30, 1985 at Charlotte, North Carolina at which all Plaintiffs were represented by counsel and the Defendants were represented by Ed Speas, North Carolina Department of Justice Attorney.

DISCUSSION

North Carolina House Bill 1171 entitled, “An Act to Strengthen the Obscenity Laws of this State and the Enforcement of these Laws, to Protect Minors from Harmful Material That Does Not Rise to the Level of Obscenity, and to Stop the Sexual Exploitation and Prostitution of Minors” (hereinafter “The Act”) was enacted by the General Assembly of North Carolina July 11, 1985, to become effective on October 1, 1985.

The Act substantially amended North Carolina General Statute Sections 14-190.1, 14-190.4, 14-190.5, 14-190.6, 14-190.7, 14-190.8; the Act repealed 14-190.2; 14-190.3. The Act deleted 14-190.10, 14-190.11, and 14-190.12 and replaced them with Sections 14-190.10, 14-190.11, 14-190.12, 14-190.14, 14-190.15, and 14-190.16. Article 26 of Chapter 14 was further amended by the Act to add Section 14-190.17.

The Plaintiffs have alleged jurisdiction of this Court under various statutes, Rule 57 of the F.R.C.P., and Article III, Section 2 of the U.S. Constitution.

The Plaintiffs are the operators of what they term “bookstores”, “a business that sells books, films, video tapes, and periodicals, some of which are sexually explicit,” and “video rental business,” in which items are sold and rented which are sexually oriented and explicit.

The Defendants are Lacy H, Thornburg, Attorney General of North Carolina, various district attorneys and law enforcement officers.

The Plaintiffs complain, among other things, that the Act is unconstitutional and void for substantial vagueness, in that men must guess as to the meaning and differ as to the application thereof and is therefore repugnant to the due process provisions of the First, Fifth, and Fourteenth Amendments to the United States Constitution, are void for overbreath and therefore invade the area of protected freedoms in violation of the First and Fourteenth Amendments, are repugnant to the due process requirements of the First, Fifth, and Fourteenth Amendments to the United States Constitution, are repugnant to the provisions of the Fourth and Fourteenth Amendments in the prior restraint of First Amendment freedoms.

The Plaintiffs have not brought any action in the North Carolina State Courts. Instead, the Plaintiffs have petitioned the United States District Court to enjoin the enforcement of the Act and declare it unconstitutional under the United States Constitution. None of the Plaintiffs had been prosecuted as of September 30, 1985.

At the outset, we note that the United States Supreme Court has often pointedly recognized the high importance of the state interest in regulating the exposure of obscene materials to juveniles and unconsent-ing adults. But the Court has never declared those to be the only legitimate state interests permitting regulation of obscene material. The States have long recognized a legitimate interest in regulating the use of obscene material in local commerce and in all places of public accomodation. However, these regulations must not run afoul of specific constitutional prohibitions. In an unbroken series of cases extending over a long stretch of the United States Supreme Court’s history, it has been accepted as a postulate that the primary requirements of decency may be enforced against obscene publications. There are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure of juveniles. These include the interest of the public in the quality of life and the total community environment, the tone of commerce in the city centers, and, possibly the public safety itself. The Hill-Link Minority Report of the Commission on Obscenity and Pornography in 1970 indicates that there is at least an arguable correlation between obscene material and crime. A man may be able to read an obscene book in his room, or expose himself indecently there. His privacy should be protected. But if he demands a right to obtain the books and pictures he wants in the market accessible to all, then to grant him his right is to affect the world about the rest of us, and to impinge on other privacies. Paris Adult Theater I v. Slaton, 413 U.S. 49 at pp. 57, 58, and 59, 93 S.Ct. 2628 at pp. 2635, 2635, and 2636, 37 L.Ed.2d 446 (1973).

Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) and following cases have established that when absolutely necessary for protection of constitutional rights courts of the United States have power to enjoin state officers from instituting criminal actions. But that may not be done except under extraordinary (emphasis added) circumstances where the danger of irreparable loss is both great and immediate. Ordinarily, there should be no interferences with such officers; primarily, they are charged with the duty of prosecuting offenders against the laws of the State and must decide when and how this is to be done. The accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection.

The Plaintiffs here have offered nothing but their conclusions that, to quote from one Complaint, “14-190.1(c)(l) criminalizes as prohibited conduct ‘oral intercourse’ which is speech itself since both words together only relate to verbal discourse”. Clearly, if given an opportunity no court will equate ‘verbal discourse’ with ‘oral intercourse’ under the statute. Another patently unsubstantiated charge by Plaintiffs is an allegation by Plaintiffs is that “enacting subsection (c)(3) and criminalizing depictions therein described, including persons ‘clad in undergarments or in revealing or bizarre costume’ has rendered the statute substantially overbroad.” That’s not what the statute says. What it says is: “Sexual conduct means ... (3) An act or condition that depicts torture, physical restraint by being fettered or bound, or flagellation of or by a nude person or a person clad in undergarments or in revealing or bizarre constume.” Obviously, that is quite different than what the Plaintiffs have alleged.

“Proper exercise of federal jurisdiction requires that controversies involving unsettled questions of state law be decided in the state tribunals preliminary to a federal court’s consideration of the underlying federal constitutional questions. See, Railroad Comm’n v. Pullman Co., 312 U.S. 496 [61 S.Ct. 643, 85 L.Ed. 971 (1941)]. That is especially desirable where the questions of state law are enmeshed with federal questions. Spector Motor Co. v. McLaughlin, 323 U.S. 101, 105 [65 S.Ct. 152, 154, 89 L.Ed. 101 (1944)]. Here the state law problems are delicate ones, the resolution of which is not without substantial difficulty — certainly for a federal court. Cf. Thompson v. Magnolia Petroleum Company, 309 U.S. 478, 483 [60 S.Ct. 628, 630, 84 L.Ed. 876 (1940)]. In such a case, when the state court’s interpretation of the statute or evaluation of its validity under the state constitution may obviate any need to consider its validity under the Federal Constitution, the federal court should hold its hand, lest it render a constitutional decision unnecessarily.” Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639, 79 S.Ct. 455, 3 L.Ed.2d 562 (1959) citing Railroad Comm. v. Pullman Co., supra, Spector Motor Co. v. McLaughlin, supra, 323 U.S., 104-05, 65 S.Ct. 154. See Leiter Materials, Inc. v. U.S., 352 U.S. 220, 228-29, 77 S.Ct. 287, 292-93, 1 L.Ed.2d 267 (1957).

The doctrine of abstention is to be invoked by a federal court when a state statute has not been previously construed or is susceptible of a construction by the state courts that would avoid or modify the constitutional controversy. See Fornaris v. Ridge Tool Co., 400 U.S. 41, 91 S.Ct. 156, 27 L.Ed.2d 174 (1970); Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967).

None of the Plaintiffs in any of these actions have been indicted, arrested, or even threatened by a prosecutor.

There are allegations by the Plaintiffs that they are asking for declaratory relief to avoid acting at their peril since the Defendants will carry out their vowed intent to close Plaintiffs’ establishments; that the Act constitutes an immediate threat of irreparable injury to Plaintiffs; that such impending enforcement will force those Plaintiffs that operate video stores as aforesaid, at risk of criminal indictment, to remove all sexually oriented and sexually explicit tapes from their respective stores ... that such impending enforcement will force those plaintiffs that operate bookstores as aforesaid, at the risk of criminal indictment, to close their respective business ...; that because the said provisions are susceptible of sweeping and improper application by officials and the Defendants herein and have an impermissible ‘chilling and inhibiting effect’ on the exercise of the Federal constitutional rights of citizens of the State of North Carolina and the United States as well as the Plaintiffs to exhibit....”

Feeling inhibited, even if true is not sufficient to bring into play the equitable jurisdiction of the Federal Courts. Persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate Plaintiffs in such cases. Younger, District Attorney of Los Angeles County v. Harris, et al., 401 U.S. 37 at page 42, 91 S.Ct. 746 at page 749, 27 L.Ed.2d 669 (1971).

This Court does not accept the proposition that it is the duty of the Court to look over the shoulder of the State Legislature with a view to revising to the Court’s satisfaction every Act passed by the Legislature. This is not what the Constitution or the Congress intended.

“Since the beginning of this country’s history Congress has, subject to few exceptions, manifested a desire to permit state courts to try state cases free from interference by federal courts. In 1793 an Act unconditionally provided: ‘[N]or shall a writ of injunction be granted to stay proceedings in any court of a state____’ 1 Stat. 335, c. 22, § 5. A comparison of the 1793 Act with 28 U.S.C. § 2283, its present-day successor, graphically illustrates how few and minor have been the exceptions granted from the flat, prohibitory language of the old Act. During all this lapse of years from 1793 to 1970 the statutory exceptions to the 1793 congressional enactment have been only three: (1) ‘except as expressly authorized by Act of Congress’; (2) ‘where necessary in aid of its jurisdiction’; and (3) ‘to protect or effectuate its judgments’.” Younger, supra, at p. 43, 91 S.Ct. at p. 750.

Some of the Plaintiffs complain that the substantial vagueness and substantial over-breath of said statute will have a detrimental and chilling effect upon the exercise of First Amendment freedoms.

“The chilling effect can, of course, be eliminated by an injunction that would prohibit any prosecution whatever for conduct occurring prior to a satisfactory rewriting of the statute. But the State would then be stripped of all power to prosecute even the socially dangerous and constitutionally unprotected conduct that had been covered by the statute, until a new statute could be passed by the state legislature and approved by the federal courts in potentially lengthy trial and appellate proceedings. Thus, in Dombrowski itself, the Court carefully reaffirmed the principle that even in the direct prosecution in the State’s own courts, a valid narrowing construction can be applied to conduct occurring prior to the date when the narrowing construction was made, in the absence of fair warning problems.

“Moreover, 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. Where a statute does not directly abridge free speech, but— while regulating a subject within the State’s power — tends to have the incidental effect of inhibiting First Amendment rights, it is well settled that the statute can be upheld if the effect on speech is minor in relation to the need for control of the conduct and the lack of alternative means for doing so. Schneider v. State, 308 U.S. 147 [60 S.Ct. 146, 84 L.Ed. 155] (1939); Cantwell v. Connecticut, 310 U.S. 296 [60 S.Ct. 900, 84 L.Ed. 1213] (1940); Mine Workers v. Illinois Bar Assn., 389 U.S. 217 [88 S.Ct. 353, 19 L.Ed.2d 426] (1967). Just as the incidental ‘chilling effect’ of such statutes does not automatically render them unconstitutional, so the chilling effect that admittedly can result from the very existence of certain laws on the statute books does not in itself justify prohibiting the State from carrying out the important and necessary task of enforcing these laws against socially harmful conduct that the State believes in good faith to be punishable under its laws and the Constitution.” Younger, supra, 401 U.S., at p. 51, 91 S.Ct. at p. 754.

“Beyond all this is another, more basic consideration. Procedures for testing the constitutionality of a statute on its face and for then enjoining all action to enforce the statute until the State can obtain court approval for a modified version, are fundamentally at odds with the function of the federal courts in our constitutional plan. The power and duty of the judiciary to declare laws unconstitutional is in the final analysis derived from its responsibility for resolving concrete disputes brought before the courts for decision; a statute apparently governing a dispute cannot be applied by judges, consistently with their obligations under the Supremacy Clause, when such an application of the statute would conflict with the Constitution. Marbury v. Madison, 1 Cranch 137 [2 L.Ed. 60] (1803). But this vital responsibility, broad as it is, does not amount to an unlimited power to survey the statute books and pass judgment on laws before the courts are called upon to enforce them. Ever since the Constitutional Convention rejected a proposal for having members of the Supreme Court render advice concerning pending legislation (footnote omitted) it has been clear that, even when suits of this kind involve a ‘case or controversy’ sufficient to satisfy the requirements of Article III of the Constitution, the task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative, remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, (citing cases) ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. In light of this fundamental conception of the Framers as to the proper place of the federal courts in the governmental processes of passing and enforcing laws, it can seldom be appropriate for these courts to exercise any such power of prior approval or veto over the legislative process.” Younger, supra, 401 U.S., p. 53, 91 S.Ct. p. 754.

It is in the court’s conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the nation’s laws.

For these reasons, fundamental not only to our federal system but also to the basic functions of the Judicial Branch of the National Government under our Constitution, a federal court cannot properly enjoin enforcement of a statute solely on the basis of a showing that the statute ‘on its face’ abridges First Amendment rights. There may, of course, be extraordinary circumstances in which the necessary irreparable injury can be shown such as bad faith and harassment. Younger, supra, p. 53, 91 S.Ct. p. 755.

“It is of course conceivable that a statute might be flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whoever an effort might be made to apply it.” Younger, supra, pp. 53 and 54, 91 S.Ct., pp. 754 and 755, citing Watson v. Buck, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416 (1941). But, these are unusual circumstances which are non-existent at this juncture in this case. There has not been any enforcement here, much less harassment.

Now, turning to the specific charge by the Plaintiffs that the Statute is vague and overbroad, it is apparent from the discussion which was had between the Court and counsel that it is not so vague that “men of common intelligence must necessarily guess at its meaning.” Broadrick v. Oklahoma, 413 U.S. 601 at p. 607, 93 S.Ct. 2908 at p. 2913, 37 L.Ed.2d 830 (1973), citing Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). See Grayned v. City of Rockford, 408 U.S. 104, 108-14, 92 S.Ct. 2294, 2298-2302, 33 L.Ed.2d 222 (1972); Colten v. Kentucky, 407 U.S. 104, 110-11, 92 S.Ct. 1953, 1957-58, 32 L.Ed.2d 584 (1972) ; Cameron v. Johnson, 390 U.S. 611, 616, 88 S.Ct. 1335, 1338, 20 L.Ed.2d 182 (1968). Whatever other problems there are with the Act, it is all but frivolous to suggest that the Act fails to give adequate warning of what activities it proscribes or fails to set out, “explicit standards” for those who must apply it. Words inevitably contain germs of uncertainty and, there may be disputes over the meaning of some terms in the Act but there are limitations in the English language with respect to being both specific and manageably brief, and although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with without sacrifice to the public interest. Broadrick v. Oklahoma, 413 U.S. 601, p. 608, 93 S.Ct. 2908, p. 2913, 37 L.Ed.2d 830 (1973) . See Dombrowski v. Pfister, 380 U.S. 479, 491-92, 85 S.Ct. 1116, 1123-24, 14 L.Ed.2d 22 (1965); United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951); Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 668, 89 L.Ed. 944 (1945); United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508 (1930). It would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation. This practice also fulfills a valuable institutional purpose: it allows state courts the opportunity to construe a law to avoid constitutional infirmities. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982).

The First Amendment overbreadth doctrine is one of the few exceptions to this principle and must be justified by “weighty countervailing policies.” The doctrine is predicated on the sensitive nature of protected expression: persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression. It is for this reason that courts have allowed persons to attack overly broad statutes even though the conduct of the person making the attack is clearly unprotected and could be proscribed by a law drawn with the requisite specificity. New York v. Ferber, supra, at pp. 768, 769, 102 S.Ct. at pp. 3360, 3361, citing cases.

The scope of the First Amendment overbreadth doctrine, like most exceptions to established principles, must be carefully tied to the circumstances in which facial invalidation of a statute is truly warranted. Because of the wide-reaching effects of striking down a.statute on its face at the request of one whose own conduct may be punished despite the First Amendment, courts have recognized that the over-breadth doctrine is “strong medicine” and have employed it with hesitation, and then “only as a last resort”. New York v. Ferber, supra, at p. 769, 102 S.Ct. at p. 3361, citing, Broadrick, 413 U.S. 601 at 613, 93 S.Ct. 2908 at 2916, 37 L.Ed.2d 830 (1973). The Supreme Court has, in consequence, insisted that the overbreadth involved be “substantial” before the statute involved will be invalidated on its face. New York v. Ferber, supra, 458 U.S., at p. 769, 102 S.Ct. at p. 3361.

It is important to note, that while every statute may contain room for question and construction, if the legitimate reaches of the statute dwarf the arguably impermissible applications, and the Court assumes that state courts and state officers will not widen the possible invalid reach of the statute by giving it an overexpansive construction to its proscriptions, then the statute will not be invalidated for being overbroad or vague or both. See, New York v. Ferber, 458 U.S. 747, at 773, 102 S.Ct. 3348, at 3363, 73 L.Ed.2d 1113 (1982).

Particularly where conduct and not merely speech is involved, the over-breadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep. New York v. Ferber, 458 U.S. 747 at 770, 102 S.Ct. 3348 at 3361. Obscene material is not protected by the First Amendment as a limitation on the Police Power by virtue of the Fourteenth Amendment. Paris Adult Theater I et al. v. Slaton, 413 U.S. 49 at 54, 93 S.Ct. 2628 at 2633.

The requirement of substantial over-breadth is directly derived from the purpose and nature of the doctrine. While a sweeping statute, or one incapable of limitation, has the potential to repeatedly chill the exercise of expressive activity by many individuals, the extent of deterrence of protected speech can be expected to decrease with the declining reach of the regulation. “[Wjithout a substantial overbreadth limitation, review for overbreadth would be draconian indeed. It is difficult to think of a law that is utterly devoid of potential for unconstitutionality in some conceivable application.” Note, 83 Harv.L.Rev. 844, n. 25 at 859 and n. 61. This observation appears equally applicable to the publication of books and films as it is to activities, such as picketing or participation in election campaigns, which have previously been categorized as involving conduct plus speech. There is no appreciable difference between the position of a publisher or bookseller in doubt as to the reach of the Act and the situation faced with respect to a State’s restriction on partisan political activity as in Broadrick v. Oklahoma, supra. Indeed, it could reasonably be argued that the bookseller and film seller with an economic incentive to sell materials that may fall within the statute’s scope, may be less likely to be deterred than the employee who wishes to engage in political campaign activity. Cf. Bates v. State Bar of Arizona, 433 U.S. 350, 380-81, 97 S.Ct. 2691, 2707-08, 53 L.Ed.2d 810 (1977) (over-breadth analysis inapplicable to commercial speech) New York v. Ferber, supra.

This requirement of substantial overbreadth may justifiably be applied to statutory challenges which arise in defense of a criminal prosecution as well as civil enforcement or actions seeking a declaratory judgment. Cf. Parker v. Levy, 417 U.S. 733, 760, 94 S.Ct. 2547, 2563, 41 L.Ed.2d 439 (1974). Indeed, the Court’s practice when confronted with ordinary criminal laws that are sought to be applied against protected conduct is not to invalidate the law in to to, but rather to reverse the particular conviction. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963). The Court recognizes however, that the penalty to be imposed is relevant in determining whether demonstrable over-breadth is substantial. The Court simply holds that the fact that a criminal prohibition is involved does not obviate the need for the inquiry or a priori warrant a finding of substantial overbreadth. See New York v. Ferber, 458 U.S. 747 at 772,773,102 S.Ct. 3348 at 3362, 3363.

The Plaintiffs’ contention that the statute is overbroad simply will not wash. For example, as pointed out earlier, the Plaintiffs’ allegation that Section 14-190.1(a)(l) criminalizes as prohibited conduct “oral intercourse” which is speech itself since both words together only relate to verbal discourse is a frivolous allegation pointing up the very sort of ridiculous contention by the Plaintiffs that is entirely unsubstantiated, and is an example of language which is fairly subject to an interpretation which will avoid or modify the federal constitutional question.

The Plaintiffs have made no showing of ‘special circumstances’ requiring the Court to declare the Act unconstitutional for overbreadth.

But the Plaintiffs complain that the presence of the Act on the statute books and the threat of its being enforced seriously, irreparably damages the Plaintiffs because impending enforcement will force the Plaintiffs to close their doors or risk criminal indictment.

“In view of the fundamental policy against federal interference with state criminal prosecutions, even irreparable injury is insufficient unless it is ‘both great and immediate.’ (Citing Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927 (1926)). Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered ‘irreparable’ in the special legal sense of that term. Instead, the threat to the Plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. See, e.g., Ex Parte Young, supra [209 U.S.], at 145-47 [28 S.Ct. at 447-49]. Thus, in the Buck case, supra (Watson v. Buck, 313 U.S. 387) at 400 [61 S.Ct. 962 at 966, 85 L.Ed. 1416 (1941)] we stressed:

Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional. No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and hence unlawful is not alone ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid. Beal v. Missouri Pacific Railroad Corp., 312 U.S. 45, 49 [61 S.Ct. 418, 420, 85 L.Ed. 577 (1941)].” Younger v. Harris, 401 U.S. 37 at p. 46, 91 S.Ct. 746 at p. 751.

In summary, the North Carolina appellate courts have never had the opportunity to construe or consider the Act and define its limits and interpret its provisions. The Statute touches delicate areas of State policy which the Federal Courts ought not to entertain if there is an alternative to a determination of its constitutionality. Such constitutional adjudication obviously can be avoided if definitive ruling on the state issues terminates the controversy. The Court is, therefore, of the opinion that it should abstain from deciding the constitutionality of the Act at this time.

IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that the United States District Court abstain from deciding the issues of the constitutionality of North Carolina General Statute 14-190.1 et seq. while the parties seek a resolution in the North Carolina General Courts of Justice of the issues, presented to this Court.


source: Caselaw Access Project

author: LUMBARD, Circuit Judge:

license: Public Domain

text:
    JOHNSON PRODUCTS CO., INC., and Johnson Products of Nigeria, Ltd., Plaintiffs, v. M/V LA MOLINERA, her engines, boilers, etc., in rem; Caribbean Bulk Carriers, Ltd., International Customs Service, Inc., and Nigerian Star Line, Defendants.
    No. 85 Civ. 371 (JEL).
    United States District Court, S.D. New York.
    Oct. 4, 1985.

      Haight, Gardner, Poor & Havens, New York City, for plaintiffs.
    Thacher Proffitt & Wood, New York City, for defendant Nigerian Star Line.
    Marvin Eschen, Jericho, Long Island, for defendant International Customs Service, Inc.
   MEMORANDUM OPINION

LUMBARD, Circuit Judge:

Defendant International Customs Service (“ICS”) moves to dismiss on the ground that plaintiffs’ claims against ICS are not within the admiralty and maritime jurisdiction of the federal courts. See 28 U.S.C. § 1333. First, regarding plaintiffs’ claim under § 10(d)(1) of the Shipping Act of 1984 (“the 1984 Act”), 46 U.S.C. § 1709(d)(1), ICS argues that this Court has no jurisdiction under that provision and, alternatively, that the plaintiffs have failed to state a claim under the 1984 Act or its predecessor. Second, ICS argues that plaintiffs’ tort claims, which are based on ICS’s alleged fraud and negligence, are not within the Court’s admiralty and maritime jurisdiction because they derive essentially from an agency relationship — not a maritime contract — between the plaintiffs and ICS.

Stated briefly, the relevant facts as claimed in the pleadings are as follows. In mid-December, 1983, plaintiff Johnson Products of Chicago (“JPC”) contacted ICS, a freight forwarder and customs house broker, with regard to shipping certain personal care products to plaintiff Johnson Products of Nigeria (“JPN”). Specifically, ICS was to obtain quotes from overseas carriers regarding the shipment, and relay the proposed terms to JPC. After receiving these quotes, JPC chose for the job Container Overseas Agency (“COSA”), a non-vessel-operating common carrier. ICS subsequently engaged COSA who, in turn, contracted with defendant Nigerian Star Line (“NSL”), which ultimately carried the goods. Pursuant to a freight invoice, JPC paid ICS $145,209.50 for effecting the shipment; the invoice was accompanied by an allegedly false and fraudulent bill of lading prepared by COSA.

JPC’s goods were shipped aboard the M/Y Molinera, which arrived in Lagos, Nigeria in early February, 1984. Defendant NSL refused to release the containers of goods to JPN, allegedly because COSA had failed to pay NSL out of the money it received from JPC. JPC alleges that it made a variety of payments, under protest, to NSL in attempts to secure release of the goods. The goods were ultimately released sometime in April 1984, after JPC allegedly paid NSL an additional $111,000 in shipping charges.

Plaintiffs originally brought this action for damages incurred by the delay against defendants ICS and NSL, as well as the ship Molinera and her owner, Carribean Bulk Carriers, Ltd. The action against the ship and her owner was subsequently discontinued without prejudice. Plaintiffs were unable to join common carrier COSA as defendant, because it had filed for bankruptcy in May, 1984. The complaint, filed in January, 1985, alleged that JPC had been subjected to a variety of frauds and misrepresentations, including those detailed above and others not relevant to the instant motion. In August, 1985, defendant ICS moved to dismiss the claims against ICS for lack of subject matter jurisdiction.

The Court first turns to plaintiffs’ claim under § 10(d)(1) of the Shipping Act of 1984. The Act applies only to conduct occurring after March 20, 1984, see 46 U.S.C. § 1719(e)(2)(B), a date that falls in the middle of the events that led to this action. ICS argues that plaintiffs seeking reparations for injuries caused by violations either of section 10 of the 1984 Act or of its predecessor, section 17 of the Shipping Act of 1916 (“the 1916 Act”), 46 U.S.C. § 816, are compelled to bring their actions before the Federal Maritime Commission (“FMC”). The Court need not address the question of the FMC’s exclusive jurisdiction over the two Shipping Acts, because it finds that the complaint fails to set forth a cause of action under either Act.

Section 10 of the 1984 Act (which is nearly identical to section 17 of the 1916 Act) provides that no ocean freight forwarder “may fail to establish, observe, and enforce just and reasonable regulations and practices relating to or connected with receiving, handling, storing, or delivering property.” 46 U.S.C. § 1709(d)(1). JPC argues that ICS’s alleged frauds and misrepresentations regarding the shipment and the behavior of COSA constitute a “failure” cognizable under section 10 or its predecessor section. The legislative history of the 1984 Act makes clear, however, that behavior such as fraud and negligence does not come within the ambit of the Act. See H.R.Rep. No. 98-53, 98th Cong., 2d Sess. 35, reprinted in 1984 U.S.Code Cong. & Ad.News 167, 200. Furthermore, the Court is not aware of any cases that hold fraud or negligence to be a violation of section 17 of the 1916 Act.

The Court now turns to plaintiffs’ claims based on alleged frauds and misrepresentations. Admiralty jurisdiction applies both to maritime tort and to maritime contracts. Plaintiffs’ claims for fraud and misrepresentation against ICS, however, derive from what essentially amounts to an agency agreement between JPC and ICS— the agreement was not a maritime contract in the traditional sense. As freight forwarder, ICS performed a variety of services preliminary to JPC’s procurement of an actual carrier. Although the carrier’s obligation to the shipper certainly comes within the Court’s admiralty jurisdiction, the obligations arising out of preliminary procurement of and arrangement for carriage contracts do not. See Peralta Shipping Corp. v. Smith Johnson (Shipping), 739 F.2d 798 (2d Cir.1984); P.D. Marchessini & Co. v. Pacific Marine Corp., 227 F.Supp. 17 (S.D.N.Y.1964) (Weinfeld, J.). Plaintiffs argue that the requisite “maritime contract” here was a fraudulent bill of lading, which was presented to JPC by ICS. Although a bill of lading itself may be a maritime contract, the bill in this case was prepared by COSA (who is not a party to this action) and not by ICS; ICS merely passed the bill on to JPC. The forwarding of a bill of lading does not in itself create a maritime contract between ICS and JPC. Cf. Peralta, supra, 739 F.2d at 803 (noting that an agent’s supervision over maritime contracts does not create maritime jurisdiction as to the agent). Therefore, because any contract between JPC and ICS was not a maritime contract, there is no admiralty or maritime jurisdiction over JPC’s claims against ICS.

Although the Court concludes that its admiralty jurisdiction does not encompass JPC’s action against ICS, it notes that the pleadings indicate that diversity jurisdiction probably exists in this case. ICS is a California corporation, with California as its principal place of business. NSL is a foreign corporation incorporated in Nigeria. JPC is an Illinois corporation with its principal place of business in that state. It is well settled that, pursuant to 28 U.S.C. § 1653, the court may allow amendments of the pleadings to cure defective allegations of jurisdiction. See, e.g., Cox v. Livingston, 407 F.2d 392, 393 (2d Cir.1969). Because JPC’s claims are best tried in a single forum, the court will exercise its discretion to hear in diversity this claim not otherwise within its admiralty jurisdiction. See Doran v. Lee, 287 F.Supp. 807 (W.D. Pa.1968); Wright & Miller, Federal Practice and Procedure, § 1314,- at 455 (1st ed. 1969).

Therefore, the Court will dismiss the action against ICS for lack of admiralty jurisdiction, but allow plaintiffs leave to amend to plead jurisdiction based on diversity of citizenship.

       Sitting by designation.


author: WILL, District Judge.

text:
    William G. HERRON, Richard J. Egan, James R. Mc Kenna, William J. Murphy, Bruno Szwarzenski and Jerry A. Valenzio, Plaintiffs, v. CITY OF CHICAGO, an Illinois municipal corporation, Charles A. Pounian, as Commissioner of the Department of Personnel, John Corey, as Commissioner of the Department of Water, Wyman Porche, Manny Esteban and Michael A. Miller, Defendants.
    No. 83 C 4259.
    United States District Court, N.D. Illinois, Eastern Division.
    Oct. 7, 1985.

      William P. O’Loughlin, Diane MacArther, Edward T. Joyce, Joyce & Kubasiak, Chicago, 111., for plaintiffs.
    Richard Prendergast, Chicago, 111., for defendant Miller.
    Donald Hubert, James D. Montgomery, Corp. Counsel, City of Chicago, Chicago, 111., for all other defendants.
   MEMORANDUM OPINION

WILL, District Judge.

This case was tried before the Court on the merits of plaintiffs’ Third Amended Verified Complaint for violations of the 1972 Shakman consent decree. Plaintiffs alleged that the defendants promoted defendants Porche, Esteban, and Miller from Water Rate Takers (WRTs) to supervisors of WRTs based on political considerations and that the plaintiffs should have been, but were not promoted due to political considerations, in violation of the 1972 Shak-man consent decree.

We decide three issues here. First, that the patronage prohibitions in the 1972 decree apply in the context of promotions; second, that government employees seeking a promotion do not violate the consent decree by soliciting or receiving the help and recommendation of political or other sponsors; and, finally, that, although the plaintiffs were deprived of equal consideration for promotion, the prohibition against patronage promotions was sufficiently ambiguous prior to 1984 that it would be unfair to hold the defendants in contempt of court for basing promotions on political considerations. For the reasons stated below, we hold that the Shakman consent decree prohibits the Shakman defendants from basing promotion decisions (except for those involving exempt positions) on or because of any political reason or factor. Second, we find that employees seeking a promotion have a first amendment right to talk to political and other sponsors and to seek their recommendations. Accordingly, defendants Porche, Esteban, and Miller are dismissed from the case. Finally, since plaintiffs and the remaining defendants have settled the remainder of this case, it is dismissed with prejudice and without costs.

I

The original Shakman complaint “alleged that it was unconstitutional for public officials or political bodies to discharge or threaten to discharge employees under their control who refused to contribute money and work time to candidates supported by those officials or political entities.” Tomczak v. The City of Chicago, 765 F.2d 633, 635 (7th Cir.1985). On May 5, 1972, the court approved and entered a consent decree which was intended to Id. quoting the 1972 Shakman consent decree reproduced in Shakman v. Democratic Organization of Cook County, 481 F.Supp. 1315, 1358 (N.D.Ill.1979). The court retained jurisdiction to determine, among other things, whether political sponsorship or other political considerations could lawfully be taken into account in hiring employees. 481 F.Supp. at 1358.

eliminate, for employees of local governmental entities, any coercion or employment discrimination based upon political considerations. The decree enjoined the Shakman defendants from “conditioning, basing, or knowingly prejudicing or affecting any term or aspect of governmental employment, with respect to one who is at the time a governmental employee, upon or because of any political reason or factor.”

In 1979, the court found that the defendants in that case had illegally “conditioned, based, and affected the hiring of persons for governmental employment upon and because of their political sponsorship, affiliation, and support.” Shakman, 569 F.Supp. 177, 178, citing 481 F.Supp. 1315 (N.D.Ill.1979). However, it was not until April 4, 1983 that the court entered a judgment enjoining political hiring. The injunction prohibited defendants from

conditioning, basing, or affecting ... the hiring of any governmental employees ... upon or because of any political reason or factor including, without limitation, any prospective employee’s political affiliation, political support or activity, political financial contribution, promises of such political support, activity, or financial contributions or such prospective employee’s political sponsorship or recommendation.

Shakman, 569 F.Supp. 177, 179 (N.D.Ill. 1983).

The prohibitions of the 1972 consent decree as well as those of the 1983 order apply to various political and governmental entities, including the City of Chicago, and the “elected leaders and the officers, members, agents, servants, employees, and attorneys of each of the defendants, ... and all others in active concert or participation with any of them who receives actual notice” of the respective judgments. See 481 F.Supp. at 1357-58 (1972 decree); 569 F.Supp. at 179 (1983 order). Both the 1972 decree and the 1983 order enjoined the defendants from “knowingly inducing, aiding, abetting, participating in, cooperating with, or encouraging the commission of any act which is proscribed,” and from threatening to commit any of the proscribed acts. See 481 F.Supp. at 1358; 569 F.Supp. at 179-80.

In a civil contempt proceeding such as this one, to establish a violation of the 1972 consent decree’s bar against adversely affecting any aspect of a governmental employee’s job because of any political reason or factor, the plaintiffs must show by clear and convincing evidence that political considerations were a substantial or motivating factor behind the action which adversely affected the employee’s job. See, e.g., United States v. Huebner, 752 F.2d 1235, 1241 (7th Cir.1985); Nekolny v. Painter, 653 F.2d 1164, 1167-68 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982); Vrdolyak v. City of Chicago, 604 F.Supp. 1325, 1332 (N.D.Ill.1984). If the plaintiffs meet this burden, the burden of proof then shifts to the defendants to prove that the event which adversely affected an aspect of the governmental employee’s job would have occurred even without the political considerations, due to valid nonpolitical reasons. See Nekolny, 653 F.2d at 1167; Vrdolyak, 604 F.Supp. at 1332. A person accused of violating a court order, however, may not be punished for contempt unless the terms of such order are clear and specific, and leave no doubt or uncertainty in the minds of those to whom it is addressed as to what the order requires or prohibits. See United States v. Joyce, 498 F.2d 592, 596 (7th Cir.1974); McFarland v. United States, 295 F. 648, 650 (7th Cir.1924).

II

In this ease, the six plaintiffs claim that the promotions of three Water Rate Takers to supervisors of Water Rate Takers were politically motivated in violation of the 1972 Shakman consent decree. The six plaintiffs are WRTs in the Department of Water. Defendants, Porche, Esteban, and Miller were WRTs who were promoted to supervisors of WRTs.

On March 1, 1982 the City of Chicago announced an examination for the position of Supervisor of Water Rate Takers that was “open until further notice.” Pl.Ex. 1. In April of 1982 each plaintiff, and defendants Miller and Porche were found eligible to take the examination. On June 26, 1982 about 25 people, WRTs, members of the public, and non-WRT employees of the City took the exam.

In July of 1982, the results of the exam were posted, and the six plaintiffs plus two other WRTs who had taken the exam, Ges-swein and Kroll, were rated qualified and placed on the eligibility list, as was Porche who did not take the exam because he was told he was qualified based on his experience as a provisional supervisor since August 1, 1981, and therefore, did not have to take the exam. Miller had signed up to take the exam, but did not because he overslept. Esteban had not signed up to take the exam because he did not know about it. Miller and Esteban each arranged to take the exam in late December, 1982 or in early January, 1983. Each was found qualified and placed on the eligibility list along with the others previously listed.

The June 1982 exam was an original exam, open to anyone, and, under Department of Personnel practice, could be given on a continuous basis. There is apparently nothing unusual or irregular about the exam being given to a person after the June 26 date. The exam is a “biographical employment evaluation form.” It is not a test of skills, rather it is merely a review of past experience relevant to the position, essentially an expanded application form. Such “credentials” exams are now classified as unassembled exams and are mailed out to applicants. In June of 1982, the exam was new and was given under supervision so that any questions applicants might have could be answered.

Porche’s Promotion

Until at least August, 1980, Porche had been a precinct captain in the 34th Ward Democratic Organization. In 1978 or 1979 Superintendent of Water Collections, Nihill, told Porche that supervisors jobs would be opening up, that Porche was qualified, and that Nihill would like to see him get one of the jobs. Nihill told Porche that he should talk to anyone who could help him. Porche informed State Senator Emil Jones, Jr., who was a member of the 34th Ward Democratic Organization, of his interest in a promotion to Supervisor of WRTs. And, in a very short conversation in the corridor of City Hall, Porche recalls telling Wilson Frost, Alderman and Ward Committeeman of the 34th Ward, of his interest in the promotion, and asked Frost to recommend him for the job and to be a character reference for him. According to Porche, Frost replied that he would look into it.

Frost, understandably, does not remember the brief conversation, and there is no evidence that either Frost or Jones or anyone else in the 34th Ward Democratic Organization did anything in 1978 or 1979 to help Porche get promoted. Two or three years later, on August 1, 1981, Porche was provisionally appointed Supervisor of WRTs. Neither Frost nor Jones, or any other person ever took credit for getting Porche the promotion. When Jones was told, he said: “Well deserved.” Frost was never informed of the promotion.

Prior to the June 26, 1982 Supervisor Exam, Assistant Superintendent of Water Collection, Clark, told Porche that because he had been working as a supervisor since August 1, 1981, and was doing a very good job, he was qualified and need not take the exam on June 26, 1982. Porche was rated qualified, and on September 16, 1982 he was appointed as a probationary supervisor of WRTs. A year later he obtained permanent career service status as a supervisor.

The Promotions of Esteban and Miller

Since 1978, Esteban has served as a precinct captain for the 33rd Ward Democratic Organization where Richard Mell is Aider-man and Committeeman. Esteban did not apply to take the June 1982 Supervisor exam because he did not know about it. When a fellow WRT told him about the exam, Esteban telephoned the Department of Personnel and was told that the exam was no longer available. However, since the exam was still posted as “open until further notice,” Esteban went to see Aider-man Mell who accompanied him to the Department of Personnel on December 20, 1982, at which time he was allowed to submit an application. He took the exam a week later, was found qualified, and placed on the eligibility list.

From 1969 to 1981 Miller served as a precinct captain for the 12th Ward Democratic Organization. In 1981, Miller became a precinct captain for the 13th Ward Democratic Organization. He signed up to take the Supervisor exam given on June 26, 1982, but overslept and did not take it at that time. In December of 1982 he was called by someone in the Department of Personnel who asked him if he still wanted to take the exam. Miller replied that he did and scheduled the exam which he took on January 13, 1983. Miller was also found qualified and placed on the eligibility list.

In December, 1982, prior to the time Esteban and Miller attempted to schedule their make-up exams, the City Council passed the Annual Appropriations Ordinance for 1983 which allocated funds for the creation of- two new Supervisor of WRTs positions. Sometime between then and February 1,1983, the date Esteban and Miller were appointed probationary Supervisors of WRTs, someone within the 33rd Ward Democratic Organization contacted someone within the Mayor’s Office and recommended Esteban to be considered for appointment to the position of Supervisor of WRTs. Similarly, someone within the 13th Ward Democratic Organization contacted someone within the Mayor’s Office and recommended Miller to be considered for appointment to the position of Supervisor of WRTs.

Thereafter, James Richmond, assistant to the Chief of Staff for Mayor Byrne, called Karen Schroeder, supervisor of personnel services for the Department of Water, and asked about the possibility of promoting Esteban and Miller to Supervisors of WRTs. After discussing with Commissioner Corey the fact that Esteban and Miller were not then on the eligibility list, Schroeder called Robert Joyce, Deputy Commissioner of Personnel, who told her that the exam was closed but that late applications were possible. Schroeder knew this to be part of the Department of Personnel’s standard procedures. On Corey’s instructions, Schroeder then informed Richmond that Esteban and Miller were not on the eligibility list. Afterwards, Esteban and Miller each arranged to take the Supervisor Exam, and were placed on the list.

Once the Department of Personnel informed the Department of Water that Esteban and Miller were on the eligibility list, Schroeder discussed the promotions to Supervisor of WRTs with Commissioner Corey, reminding him of the call or calls from the Mayor’s Office inquiring about Esteban and Miller. Corey appointed Esteban and Miller to the newly created Supervisor positions. Corey testified that, if his department found a person qualified, and if they were on the eligibility list, a call from the Mayor’s Office would be the deciding factor.

In this case, Esteban and Miller were found qualified by the department and were bn the eligibility list. Plaintiffs were also qualified and on the eligibility list. Esteban and Miller were appointed to the supervisor positions instead of any of the plaintiffs or other qualified people on the eligibility list because Corey’s office received a call from the Mayor’s Office recommending Esteban and Miller, and did not receive such a call recommending any of the others. Corey also testified that he did not assume that a call from the Mayor’s Office recommending or making an inquiry was always politically motivated or for patronage reasons.

Ill

Liability under the 1972 Decree

It is clear that plaintiffs have stated a claim under the 1972 Shakman Consent Decree. As Judge Bua pointed out in this case in denying defendants’ motion to dismiss:

[T]he actions complained of herein are within the ambit of the 1972 decree. First, the Court notes that each plaintiff is an employee of the City. Moreover, at some point, each was qualified for the Supervisor position as measured by objective prerequisites. Finally, the positions sought by the plaintiffs were of the very sort which a Water Rate Taker might expect to gain once he had proven himself qualified at his position. The plaintiffs’ predicaments were thus quite different from those of an individual who is not a City employee who seeks to be newly hired. Clearly, by failing to place the plaintiffs in the desired positions, defendants prejudiced or affected the plaintiffs’ term of employment so as to expose themselves to [potential] liability under the 1972 decree.

Herron v. City of Chicago, 591 F.Supp. 1565, 1567 (N.D.Ill.1984). This is the law of the case.

The essential purpose of the 1972 decree was to free government employees from all coercion and employment discrimination based on political considerations. See 569 F.Supp. at 178, citing 481 F.Supp. at 1356. Its focus originally was to prohibit retaliation, usually discharge, against government employees based on political considerations. The rationale of the prohibition against patronage firings in the decree was that at least some aspects of both a “candidate’s right to an ‘equal chance’ and a voter’s right to an ‘equally effective voice’ are entitled, under the equal protection clause, to protection” from state action in the form of invidious official discrimination. 481 F.Supp. at 1322, 1340.

Both interests are impaired by the misuse of official power over public employees because such misuse of official power can create a “substantial, perhaps massive, political effort in favor of the ins and against the outs.” Id. at 1322, quoting Shakman, 435 F.2d 267, 270 (7th Cir.1970), cert. denied, 402 U.S. 909, 91 S.Ct. 1383, 28 L.Ed.2d 650 (1971). The Cook County Democratic Organization’s ability to coerce political work or contributions from patronage employees with the threat of firing or other adverse effects on the employee’s government job was indeed a powerful weapon which the 1972 decree prohibited. In the most simple terms, the 1972 decree prohibited political organizations from using patronage as a “stick” against governmental employees.

Likewise, the 1983 order banning reliance on political considerations in the hiring context eliminated political organizations’ ability to use patronage as a “carrot” to reward those who did political work, and pay for it from the public coffers. The ability of the Cook County Democratic Organization to condition the recommendation or sponsorship necessary to obtain a job on either the fact of past, or the expectation of future political work or financial contributions was a powerful political reward which benefitted those in power to the detriment of an opposition candidate’s right to an equal chance and a voter’s right to an equally effective voice under the equal protection clause. Thus, in 1983 the court enjoined the defendants from hiring or refusing to hire employees based on political considerations.

Under the rationale of the 1972 decree, promotions based on political considerations are also prohibited. Under the 1972 decree, the defendants are prohibited from retaliating against governmental employees by denying them promotions because they failed to do political work for, contribute money to, or be affiliated with the Democratic Organization and thereby failed to gain the political sponsorship of a functionary of the Democratic Organization.

In the context of this case, the 1972 decree prohibits a decision to promote a WRT merely because he has gained the political recommendation of the Democratic Organization and to deny promotion to those who have not gained such a recommendation. Likewise, the 1983 order would prohibit, as patronage hiring, a decision to give the supervisor’s job to a qualified person who was not an employee of the City based on that person’s having gained a political recommendation.

Not until Judge Bua’s 1984 ruling in this case, however, was there a specific holding that promotions among existing city employees were not to be based on political sponsorship or other political considerations. It is now clear that discharge, hiring and promotion are all within the ambit of the Shakman decree.

Liability of the Promoted Supervisors

The defendants argue, correctly, that defendants Porche, Esteban, and Miller did not violate the 1972 decree by either seeking or receiving, if they did, the recommendation of party leaders for whom they had done voluntary political work in the past. An individual employee seeking a promotion, like a volunteer political worker seeking a government job, has a first amendment right to speak to political leaders and to seek their recommendations for such employment or promotion. However, it is appropriate to bar political leaders and governmental officials from ever including consideration of an individual’s past history of precinct or other political work or financial contribution, or the lack thereof, in any employment decision whether it be a decision to hire, fire, or promote. See, e.g., 481 F.Supp. at 1341, n. 28.

On the other hand, individuals who were initially hired because of their political work can continue to do voluntary political work. And government officials may hire or promote such persons unless such decision is based on political considerations. See, id.; Shakman, 607 F.Supp. 1086, 1087 (N.D.Ill.1985). Likewise, political leaders may recommend such persons for a government job or promotion, unless the recommendation is based on political factors and the decision is substantially motivated by such political considerations. As Judge Bua recently pointed out, the decree does not exclude “party leaders from any role in the hiring process.” Nor does it exclude them from any role in the promotion process. Although the

Decree does prohibit the existing system by which hiring [or promotion] decisions are delegated to ward and township committeemen, the Decree does not prohibit party leaders from disseminating public information concerning job openings [including promotional opportunities], referring people to employment offices of the defendants, or even from recommending persons about whom they have specific job related information. The Decree simply prohibits hiring [and promotion] which gives political recommendations more weight than other relevant recommendations (including recommendations of rival political groups).

Shakman, 607 F.Supp. at 1087.

Like the person seeking a job in a hiring case, the employees seeking promotion in this case are not in a position to affect the decision to hire or promote, and therefore are not in a position to violate the decree. Though the employee seeking a promotion does not violate the decree by seeking a recommendation from a political leader or government official, the political leader or government official violates the decree if he or she conditions the recommendation on the fact of past, or the promise of future, political work, support, affiliation, financial contribution, or the like, and such political reason or factor is a substantial or motivating factor in the decision to promote.

Porche is not in contempt of court because he was not in a position improperly to affect the decision to promote him. In addition, it is apparent that his alleged political sponsors, Frost and Jones, did nothing. There is no evidence that Frost or Jones or anyone else recommended Porche for the provisional supervisor job. Moreover, some two or three years elapsed between his conversations with Jones and Frost and his promotion to provisional supervisor. Therefore, there was no political factor which could have been a substantial or motivating factor in the decision to promote Porche. Porche must, therefore, be dismissed from the case.

The promotions of Esteban and Miller were clearly substantially motivated by political considerations. The only reasonable inference from the evidence is that the calls from “someone” in the 13th Ward Democratic Organization and “someone” in the 33rd Ward Democratic Organization to the Mayor’s Office, and the subsequent call or calls from the Mayor’s Office to the Department of Water recommending Esteban and Miller for the supervisor positions and requesting that they be promoted, would not have been made unless Miller and Esteban had done political precinct work for the respective Democratic Ward Organizations in the past, or unless the respective ward organizations expected that Esteban and Miller would do such work in the future. Thus the first element of a Shakman promotion violation exists.

Furthermore, it is undisputed that political considerations were a substantial or motivating factor in Commissioner Corey’s decision to promote Miller and Esteban. He frankly stated that, given a pool of qualified employees, he would promote the one or ones recommended by the Mayor’s Office. Thus, the second element of a Shakman violation also exists. However, as we pointed out above, neither Miller nor Esteban was in a position to affect the decision, and neither could be in violation of the decree. Both deny that they asked for recommendations from their ward organizations, although someone in each Organization tried to affect the promotion decision based on political considerations. Neither Miller nor Esteban would be in contempt even if he had requested a recommendation from his ward committeemen, though by acting on the request the ward committeemen might well violate the Shak-man decree. Thus, both Miller and Esteban must also be dismissed from the case as defendants.

Ambiguity as a Defense

We need not decide the potential liability of the remaining defendants, Pounian, Corey, and the City of Chicago. These defendants have settled with the plaintiffs in light of the Court’s tentative finding of ambiguity as a possible defense to contempt. That settlement, we believe, was a fair resolution of the equitable elements of the case. Obviously, the six plaintiffs could not all have been promoted to two positions. In addition, four other WRTs including Esteban and Miller were on the eligibility list and might have been promoted without regard to political considerations, Without conceding liability, the City, not relying solely on a possible legal defense, has recognized the equitable considerations in the somewhat complex facts of the case and we commend its counsel for doing so.

Conclusion

For the reasons stated above we reaffirm Judge Bua’s 1984 holding that patronage promotions, as well as hirings and firings, are prohibited under the terms of the 1972 decree as clarified by the 1983 order. Government employees, however, have a first amendment right to talk to and to seek recommendations for promotions from government officials and political leaders, and do not violate the terms of the decree by doing so. Therefore, defendants Porche, Esteban, and Miller are dismissed from the case. Finally, the settlement between the plaintiffs and the remaining defendants concludes the case and requires its dismissal with prejudice and without costs. An appropriate order will enter.