Louisville Area Inter-Faith Comm. for United Farm Workers v. Nottingham Liquors, Ltd., 542 F.2d 652 (6th Cir. 1976). · Go Syfert
Louisville Area Inter-Faith Comm. for United Farm Workers v. Nottingham Liquors, Ltd., 542 F.2d 652 (6th Cir. 1976). Cases Citing This Book View Copy Cite
79 citation events (4 in the last 25 years) across 19 distinct courts.
Strongest positive: Mikhail v. Kahn (paed, 2014-01-13)
Treatment trajectory · 1976 → 2026 · click a year to view as-of
1976 2001 2026
Top citers, strongest first. 22 distinct citers. How cited ↗
discussed Cited as authority (rule) Mikhail v. Kahn
E.D. Pa. · 2014 · confidence medium
The district court correctly entered a summary judgment for the defendant.”); Howard Gault Co., 848 F.2d at 555 ("The growers cannot be held liable in a § 1983 suit simply because they filed suit under Texas statutes and obtained a temporary restraining order.”); Louisville Area Inter-Faith Comm. for United Farm Workers v. Nottingham Liquors, Ltd., 542 F.2d 652, 655 (6th Cir.1976) (“We do not view Nottingham’s initiation of the state proceedings to be state action.”); Spencer v. Steinman, 968 F.Supp. 1011, 1019 (E.D.Pa.1997) ("Here, unlike the plaintiff in Lugar who challenged the c…
discussed Cited as authority (rule) Judy Lynn Tahfs, Plaintiff-Appellant/cross-Appellee v. William N. Proctor Miranda K. Proctor, Defendants-Appellees/cross-Appellants
6th Cir. · 2003 · confidence medium
In that connection, we have found it significant that the plaintiff failed to include in the complaint allegations that the private party sought “the state court restraining order in bad faith, with knowledge that an ex parte restraining order would be unconstitutional, or with an improper purpose.” Louisville Area Inter-Faith Comm. for United Farm Workers v. Nottingham Liquors, Ltd., 542 F.2d 652, 655 (6th Cir.1976).
cited Cited as authority (rule) Holly Gottfried v. Medical Planning Services, Inc.
6th Cir. · 1998 · confidence medium
See, e.g., Hayse v. Wethington, 110 F.3d 18, 20-21 (6th Cir.1997); Louisville Area Inter-Faith Comm. for United Farm Workers v. Nottingham Liquors, Ltd., 542 F.2d 652, 653-54 (6th Cir.1976).
cited Cited as authority (rule) Gottfried v. Medical Planning Services, Inc.
6th Cir. · 1998 · confidence medium
See, e.g., Hayse v. Wethington, 110 F.3d 18, 20-21 (6th Cir.1997); Louisville Area Inter-Faith Comm. for United Farm Workers v. Nottingham Liquors, Ltd., 542 F.2d 652, 653-54 (6th Cir.1976).
discussed Cited as authority (rule) United States v. Delene Reid and Milton Mayfield
6th Cir. · 1993 · confidence medium
Nor did the Local's act of securing a court order convert the civil action to state action, See, e.g., Louisville Area Inter-Faith Comm. for United Farm Workers v. Nottingham Liquors, Ltd., 542 F.2d 652, 655 (6th Cir.1976), in the absence of an order to answer after a valid assertion of the privilege.
discussed Cited as authority (rule) Traughber v. Beauchane
6th Cir. · 1985 · confidence medium
Even if I were to concede that important state interests are involved in the attachment process, these interests are clearly outweighed by the countervailing factor that the federal plaintiffs have no adequate state remedy in the unusual circumstances of the instant case. 73 In Lamb Enterprises, Inc. v. Kiroff, 549 F.2d 1052, 1058 (6th Cir.), cert. denied, 431 U.S. 968 , 97 S.Ct. 2926 , 53 L.Ed.2d 1064 (1977), this Court explained that "[t]he availability of adequate state remedies is a critical factor in determining whether extraordinary injunctive relief should issue from the federal court."…
discussed Cited as authority (rule) Traughber v. Beauchane
6th Cir. · 1985 · confidence medium
In Lamb Enterprises, Inc. v. Kiroff, 549 F.2d 1052, 1058 (6th Cir.), cert. denied, 431 U.S. 968 , 97 S.Ct. 2926 , 53 L.Ed.2d 1064 (1977), this Court explained that “[t]he availability of adequate state remedies is a critical factor in determining whether extraordinary injunctive relief should issue from the federal court.” See also Louisville Area Inter-Faith Committee v. Nottingham Liquors, Ltd., 542 F.2d 652, 653 (6th Cir.1976). 2 In Trainor , the Supreme Court also emphasized the importance of adequate state remedies under Younger : Dismissal of the federal suit “naturally presupposes…
discussed Cited as authority (rule) James Hollis v. Itawamba County Loans
5th Cir. · 1981 · confidence medium
McShane Company, Inc. v. McFadden, 554 F.2d 111, 114 (3d Cir. 1977), cert. denied 434 U.S. 857 , 98 S.Ct. 178 , 54 L.Ed.2d 129 (1977); Kacher v. Pittsburgh National Bank, 545 F.2d 842, 846-47 (3d Cir. 1976); Louisville Area Inter-Faith Committee for United Farm Workers v. Nottingham Liquors, Ltd., 542 F.2d 652, 655 (6th Cir. 1976); Tucker v. Maher, 497 F.2d 1309, 1315-16 (2d Cir.), cert. denied 419 U.S. 997 , 95 S.Ct. 312 , 42 L.Ed.2d 271 (1974); Rios v. Cessna Finance Corporation, 488 F.2d 25, 28 (10th Cir. 1973).
discussed Cited as authority (rule) Danish News Co. v. City of Ann Arbor (2×) also: Cited "see"
E.D. Mich. · 1981 · confidence medium
Nottingham Liquors, supra at 655.
discussed Cited as authority (rule) Sovereign News Co. v. Falke
N.D. Ohio · 1977 · confidence medium
Contrast, Forest Hills Utility Company v. City of Heath, Ohio, 539 F.2d 592, 595 (6th Cir. 1976); Louisville Area inter-Faith Committee for United Farm Workers et al. v. Nottingham Liquors et al., 542 F.2d 652, 654-655 (6th Cir. 1976); Piatt v. Louisville and Jefferson County Board of Education, 556 F.2d 809, 810 (6th Cir. 1977); Lamb Enterprises, Inc. v. Kiroff, 549 F.2d 1052, 1055-1060, 1063 (6th Cir. 1977) (dealing with a “pending” state civil action and decided prior to Wooley, supra). 282 .
cited Cited "see" Dutton v. Shaffer
E.D. Ky. · 2023 · signal: see · confidence high
See Louisville Area Inter-Faith Comm. for United Farm Workers v. Nottingham Liquors, Ltd., 542 F.2d 652, 654 (6th Cir. 1976) (no proceedings on the merits where a complaint has been filed).
cited Cited "see" Holly Gottfried v. Medical Planning Services, Inc. The Offices of Dr. Manohar Lal, M.D. Dr. Lal Summit County Sheriff Drew Alexander Judge Jane Bond
6th Cir. · 2002 · signal: see · confidence high
See Louisville Area Inter-Faith Committee for United Farm Workers v. Nottingham Liquors, Ltd., 542 F.2d 652, 655 (6th Cir.1976) and cases cited therein.
discussed Cited "see" Dr. Joseph Murray Hayse v. Charles T. Wethington, Jr.
6th Cir. · 1997 · signal: see · confidence high
See Louisville Area Inter-Faith Comm. for United Farm Workers v. Nottingham Liquors, Ltd., 542 F.2d 652, 654-55 (6th Cir.1976) (applying “doctrine of equitable restraint” arising out of Younger and Huffman v. Pursue, 420 U.S. 592 , 95 S.Ct. 1200 , 43 L.Ed.2d 482 (1975), to decline to interfere with state court injunction restraining plaintiffs from picketing activities); Port Auth.
cited Cited "see" Howard Gault Co. v. Texas Rural Legal Aid, Inc.
N.D. Tex. · 1985 · signal: accord · confidence high
Accord, Louisville Area Inter-Faith Committee for United Farm Workers v. Nottingham Liquors, 542 F.2d 652 (6th Cir.1976).
discussed Cited "see" Johnson v. Kelly
3rd Cir. · 1978 · signal: see · confidence high
See Nottingham Liquors, supra at 655 (Edwards, J., concurring in part and dissenting in part). 43 The cited decisions from the Southern District of New York may have been significantly undermined by the later panel decision of the Second Circuit in Marshall v. Chase Manhattan Bank (National Association), 558 F.2d 680 (2d Cir. 1977).
cited Cited "see" Johnson v. Kelly
3rd Cir. · 1978 · signal: see · confidence high
See Nottingham Liquors, supra at 655 (Edwards, J., concurring in part and dissenting in part).
examined Cited "see" Lamb Enterprises, Inc. v. Judge George N. Kiroff (8×) also: Cited "see, e.g."
6th Cir. · 1977 · signal: see · confidence high
See Inter-Faith Committee v. Nottingham, supra, 542 F.2d 652 (6th Cir. 1976), and Sixth Circuit cases cited therein.
discussed Cited "see, e.g." Paul Cobb, William R. Woodall, F.D. Sandford, Gary Burke, Bill Clark, Reggie Pendergrass, Rodney Warman and Jack Bruce v. Georgia Power Company
11th Cir. · 1985 · signal: see also · confidence low
See also Louisville Area Inter-Faith Committee v. Nottingham Liquors, Ltd., 542 F.2d 652 (6th Cir.1976) (no state action where state court order prohibiting mass picketing was challenged without allegation that TRO was obtained in bad faith with knowledge that an ex parte restraining order would be unconstitutional or with an improper purpose); Hill v. McClellan, 490 F.2d 859 (5th Cir.1974) (fact that state did no more than furnish the forum and had no interest in the outcome meant no § 1983 jurisdiction); Phillips v. I.A.B.S.O.I.W., Local 228, 556 F.2d 939 (7th Cir.1977) (use of state and fe…
discussed Cited "see, e.g." Matter of McLouth Steel Corp.
Bankr. E.D. Mich. · 1982 · signal: see also · confidence low
See also, Louisville Area Interfaith Committee v. Nottingham Liquors, 542 F.2d 652 (6th Cir. 1976); United Mine Workers of America, Inc. v. Wellmore Coal Corporation, 609 F.2d 1083 (4th Cir. 1979); Harley v. Oliver, 539 F.2d 1143 (8th Cir. 1976); Grow v. Fisher, 523 F.2d 875 (7th Cir. 1975); Glaspoole v. Albertson, 491 F.2d 1090 (8th Cir. 1974); Stevens v. Frick, 372 F.2d 378 (2d Cir. 1967), cert. denied, 387 U.S. 920 , 87 S.Ct. 2034 , 18 L.Ed.2d 973 (1967); Fallis v. Dunbar, 386 F.Supp. 1117 (N.D.Ohio 1974), aff’d., 532 F.2d 1061 (6th Cir. 1976).
discussed Cited "see, e.g." Central Avenue News, Inc. v. The City Of Minot, North Dakota
8th Cir. · 1981 · signal: see also · confidence low
See also Louisville Area Inter-Faith Committee v. Nottingham Liquors, Ltd., 542 F.2d 652 (6th Cir. 1976). 14 Most recently the Supreme Court in Moore v. Sims, supra, 442 U.S. at 423-35 , 99 S.Ct. at 2377-2383 , reinforced its decision in Huffman v. Pursue, Ltd., supra, 420 U.S. at 604 , 95 S.Ct. at 1208 , and held that Younger is fully applicable to civil proceedings in which important state interests are involved.
cited Cited "see, e.g." Central Avenue News, Inc. v. City of Minot
8th Cir. · 1981 · signal: see also · confidence low
See also Louisville Area Inter-Faith Committee v. Nottingham Liquors, Ltd., 542 F.2d 652 (6th Cir. 1976).
discussed Cited "see, e.g." District 28, United Mine Workers of America, Inc. v. Wellmore Coal Corporation
4th Cir. · 1979 · signal: see, e.g. · confidence medium
See, e. g., Louisville Area Inter-Faith Committee v. Nottingham Liquors, 542 F.2d 652, 655 (6th Cir. 1976) (initiation of state court proceedings to enjoin picketing not state action); Grow v. Fisher, 523 F.2d 875, 877-79 (7th Cir. 1975) (affirmed dismissal of complaint because no allegation that private defendant conspired with state officials in prior criminal actions); Hansen v. Ahlgrimm, 520 F.2d 768, 770-71 (7th Cir. 1975) (no cause of action against lawyer who represented opposing party in prior state contempt proceedings); Glasspoole v. Albertson, 491 F.2d 1090, 1091-92 (8th Cir. 1974);…
Retrieving the full opinion text from the archive…
LOUISVILLE AREA INTER-FAITH COMMITTEE FOR UNITED FARM WORKERS Et Al., Plaintiffs-Appellants,
v.
NOTTINGHAM LIQUORS, LTD., Et Al., Defendants-Appellees
75-1901.
Court of Appeals for the Sixth Circuit.
Sep 29, 1976.
542 F.2d 652
J. Reuben Rigel, Clayton, Mo., Kurt Berggren, Legal Aid Society of Louisville, Inc., Louisville, Ky., for plaintiffs-appel-lants., James Foley, Henry A. Triplett, Louisville, Ky., for defendants-appellees.
Edwards, Peck, Lively.
Cited by 46 opinions  |  Published
Reporter's Syllabus editorial summary, not part of the Court's opinion

J. Reuben Rigel, Clayton, Mo., Kurt Berggren, Legal Aid Society of Louisville, Inc., Louisville, Ky., for plaintiffs-appellants.

James Foley, Henry A. Triplett, Louisville, Ky., for defendants-appellees.

Before EDWARDS, PECK and LIVELY, Circuit Judges.

PECK, Circuit Judge.

Lead Opinion

PECK, Circuit Judge.

On February 14, 1975, defendant-appellee State Circuit Court Judge Hubbs signed, at the request of defendant-appellee Nottingham Liquors, an order restraining plaintiffs-appellants, the Louisville Area InterFaith Committee for United Farms Workers (“Committee”),* from mass picketing and mass marching on or near Nottingham’s business premises; the order limited the pickets to two who “shall not block any driveways or doorways to the store, nor cause or create any disturbance.” The restraining order was served on the Committee on February 14, but there was no attempted service of summons until March 7, 1975.

Rather than challenge the restraining order in state court, for example, by moving to dissolve the order, see Ky. Rule Civ.P. 65.03, the Committee on February 21, 1975, filed the instant complaint in federal district court. Plaintiffs sought declaratory and injunctive relief against the restraining order, claiming that the ex parte issuance of the order and the order itself violated their first and fourteenth amendment rights. Plaintiffs also prayed for $2,500 in damages against Nottingham. On March 24, 1975, defendants filed a three-paragraph answer. On May 23,1975, the district court granted defendants’ motion to dismiss, “abstainpng]” from exercising its jurisdiction because plaintiffs “may raise [their claims] in state court and pursue their remedies there and in the Kentucky appellate court if they so desire.”

On appeal, plaintiffs claim that the district court erred in “abstaining” because there was no pending state court proceedings at the filing of their federal complaint on February 21, 1975, and because even if there were pending proceedings those proceedings were neither criminal (Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 [1971]) nor sufficiently “in aid of and closely related to criminal” proceedings (Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 1208, 43 L.Ed.2d 482 [1975]) to require the district court to refrain from exercising its jurisdiction. Even if the district court properly refused to consider declaratory and injunctive relief, plaintiffs urge that the district court should have considered their damage claim. On the merits, plaintiffs argue that the state order violated their constitutional rights.

Although defendants’ briefs have been of very little assistance, we have concluded that the district court properly dismissed the complaint, and we therefore affirm.

The district court and parties have used “abstention” nomenclature, but we view the refusal to consider injunctive and declaratory relief as being “equitable restraint” deriving from federalism, comity, and traditional equitable concepts. See Puerto Rico International Airlines, Inc. v. Silva Redo, 520 F.2d 1342, 1344 n. 4 (1st Cir. 1975); H. Hart & H. Wechsler, The Federal Courts & the Federal System 1043 — 1044 (1973). Because federal courts are reluctant to interfere with state court proceedings, and because plaintiffs had an adequate remedy at law in state court in that state judges “are fully competent to adjudicate constitutional claims,” Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 2567, 45 L.Ed.2d 648 (1975); Huffman, supra, 95 S.Ct. at 1211, the refusal to consider equitable relief was proper.

[*654] Plaintiffs concede that, had there been a criminal (Younger) or “quasi-criminal” (Huffman) action pending in state court on February 21, 1975, the refusal to consider equitable relief would be proper. But Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 233 (1975), and Salem Inn, supra, establish the applicability of the doctrine of equitable restraint even if the federal action were “commenced” prior to the state action. Accord, Hearing Aid Ass’n. v. Bullock, 413 F.Supp. 1032 (E.D.Ky., filed March 10, 1976); B. Coleman Corp. v. Walker, 400 F.Supp. 1355 (N.D.Ill.1975). Even accepting plaintiffs’ claim that the state proceedings were not “commenced” for Younger-Huffman purposes until the attempted service of the summons on March 7, 1975, there had been no “proceedings of substance on the merits ... in the federal court” as of March 7, 1975. Hicks, supra, 95 S.Ct. at 2292. In fact, the federal proceedings were then “in an embryonic stage [with] no contested matter ha[ving] been decided.” Salem Inn, supra, 95 S.Ct. at 2566.

Moreover, we view the policy factors underlying equitable restraint, to wit, federalism, comity, and the adequacy of plaintiffs’ remedy at law in state court, as mandating equitable restraint here, White, J., dissenting in Lynch v. Household Fin. Corp., 405 U.S. 538, 561, 92 S.Ct. 1113, 1126, 31 L.Ed.2d 424 (1972), Rehnquist, J., in Cousins v. Wigoda, 409 U.S. 1201, 1205-1206, 92 S.Ct. 2610, 34 L.Ed.2d 15 (1972); Lamb Enterprises, Inc. v. Kiroff, 399 F.Supp. 409, 413 (N.D.Ohio 1975), even though the state proceedings are neither criminal (Younger, supra) nor “in aid of and closely related to criminal statutes,” such as the obscenity nuisance proceedings in Huffman, supra, and Sanders v. McAuliffe, 364 F.Supp. 654 (N.D.Ga.1973), the medical advertising ban proceedings in Terminal-Hudson Electronics, Inc. v. Dep’t of Consumer Affairs, 407 F.Supp. 1075 (C.D.Cal.1976) (three-judge court), the bar disciplinary proceedings in Anonymous v. Association of the Bar, 515 F.2d 427 (2d Cir. 1975), and Goodrich v. Supreme Court, 511 F.2d 316 (8th Cir. 1975), or state-initiated injunction proceedings against unlawful danger-producing acts in Duke v. State of Texas, 477 F.2d 244, 249-251 (5th Cir. 1973), cert. denied, 415 U.S. 978, 94 S.Ct. 1565, 39 L.Ed.2d 874 (1974).

Interference in state civil proceedings, like interference in state criminal or quasi-criminal proceedings, would preclude state courts “the opportunity to resolve federal issues arising in [state] courts,” Huffman, supra, 95 S.Ct. at 1211, and would “. be interpreted as reflecting negatively upon the state court’s ability to enforce constitutional principles.” Steffel v. Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209, 1217, 39 L.Ed.2d 505, 516 (1974). See Cicero v. Olgiati, 410 F.Supp. 1080, 1089-1090 (S.D.N.Y.1976). Such interference would seem exactly counter to the firmly held position of this court in regard to state courts generally and in regard to the courts of the states of this circuit particularly.

Although the Supreme Court has left open the applicability of Younger-Huffman doctrine to general civil litigation, Huffman, supra, 95 S.Ct. at 1208, 1209, bolstering us in our application of Younger-Huffman doctrine to bar federal court interference with pending state court civil proceedings are this court’s oft-expressed reluctance to interfere in state court proceedings, see, e. g., Littleton v. Fisher, 530 F.2d 691, 693 (6th Cir. 1976), King v. Jones, 450 F.2d 478 (6th Cir. 1971), vacated as moot, 405 U.S. 911, 92 S.Ct. 956, 30 L.Ed.2d 780 (1972), Appalachian Volunteers, Inc. v. Clark, 432 F.2d 530 (6th Cir. 1970), cert. denied, 401 U.S. 939, 91 S.Ct. 936, 28 L.Ed.2d 219 (1971), and other courts’ application of Younger-Huffman doctrine to bar interference in state court civil proceedings. See, e. g., Lynch v. Snepp, 472 F.2d 769 (4th Cir. 1973), cert. denied, 415 U.S. 983, 94 S.Ct. 1576, 39 L.Ed.2d 880 (1974); Cousins v. Wigoda, 463 F.2d 603 (7th Cir.), stay denied, 409 U.S. 1201, 92 S.Ct. 2610, 34 L.Ed.2d 15 (1972); Ahrensfeld v. Stephens, 528 F.2d 193, 197 (7th Cir. 1975) (applying abstention and equitable restraint principles); Duke, supra, 477 F.2d at 248; Lamb Enterprises, supra, 399 F.Supp. 409; Gerken v. Merriam (No. 74C-[*655] 455, E.D.Wis., filed June 25, 1975). But see Puerto Rico Airlines, supra, 520 F.2d 1342. Contra, Vail v. Quinlan, 406 F.Supp. 951, 958 (S.D.N.Y.1976); Hernandez v. Danaher, 405 F.Supp. 757 (N.D.Ill.1975).

Plaintiffs’ appellate brief impliedly admits that Appalachian Volunteers, supra, supports dismissal, but attempts to distinguish Volunteers by arguing that in Volunteers the state court proceeding clearly had been commenced prior to the federal complaint being filed and that a state court clerk, rather than state judge, signed the restraining order. See 432 F.2d at 537 n. 6. But plaintiffs apparently overlooked, thereby failing to cite, Hicks, supra, and Salem Inn, supra, undercutting their first ground of distinction, and King, supra, and Snepp, supra, undercutting their second ground.

Younger-Huffman equitable restraint bars declaratory, as well as injunctive, relief where there is a pending state court proceeding. See Kugler v. Helfant, 421 U.S. 117, 95 S.Ct. 1524, 1533-1534, 44 L.Ed.2d 15 (1975); Huffman, supra, 420 U.S. at 602, 95 S.Ct. at 1207 n. 16, 43 L.Ed.2d at 491; Samuels v. Mackell, 401 U.S. 66, 73, 91 S.Ct. 764, 768, 27 L.Ed.2d 688 (1971); Anonymous, supra, 515 F.2d at 435. But see Steffel, supra, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505.

Even if Younger-Huffman doctrine fails to support the dismissal of plaintiffs’ damage claim against Nottingham, we find no error in the dismissal because plaintiffs have failed to state a 42 U.S.C. § 1983 claim against Nottingham. We do not view Nottingham’s initiation of the state proceedings to be state action. See Harley v. Oliver, 539 F.2d 1143 (8th Cir. 1976); Grow v. Fisher, 523 F.2d 875 (7th Cir. 1975); Glasspoole v. Albertson, 491 F.2d 1090 (8th Cir. 1974); Fallis v. Dunbar, 386 F.Supp. 1117 (N.D.Ohio 1974), aff’d, 532 F.2d 1061 (6th Cir. 1976). Moreover, the federal complaint does not allege that'Nottingham moved for the state court restraining order in bad faith, with knowledge that an ex parte restraining order would be unconstitutional, or with an improper purpose. See Tucker v. Maher, 497 F.2d 1309, 1313-1316 (2d Cir.), cert. denied, 419 U.S. 997, 95 S.Ct. 312, 42 L.Ed.2d 271 (1974); Rios v. Cessna Fin. Corp., 488 F.2d 25, 28 (10th Cir. 1973); Hagopian v. Consolidated Equities Corp., 397 F.Supp. 934 (N.D.Ga.1975).

Affirmed.

Also named as appellants on the appellate docket sheet are Pamela Hayes and Marion King, but they have no interests apart from the Committee. In the district court, Hayes and King “sue[d] on behalf of and as representation for” the Committee, rather than on their individual behalf.

Concurrence in Part

EDWARDS, Circuit Judge,

concurring in part and dissenting in part.

I concur in dismissal of this action as to the two state judge defendants.

The state court restraining order under attack in this case, however, appears to me to represent an ex parte prior restraint on First Amendment rights.[1] Under Carroll v. Commissioners of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968) and Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), the complaint states a § 1983 (42 U.S.C. § 1983 (1970)) cause of action over which the District Court has jurisdiction and where abstention and “equitable restraint” are inappropriate.

I would vacate the judgment of the District Court and remand for hearing, at which appellee’s suggestion of mootness should first be determined.

1

See Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).