Jurisdictional Statement — Kansas City v. Darby
Supreme Court brief1977
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APR 11 i977
40 DAK, R., CLERK
In the Supreme Court of the United States
OCTOBER TERM, 1976
NOTE 76-1997
CITY OF KANSAS CITY, MISSOURI,
Appellant,
vs.
ROBERT J. DARBY,
Appellee.
On APPEAL FROM THE SUPREME COURT OF THE
STATE OF MISSOURI
JURISDICTIONAL STATEMENT
Aaron A. WILSON
City Attorney
Dantet G. JAckso III
Assistant City Attorney
2800 City Hall
414 E. 12th Street
Kansas City, Missouri 64106
Telephone: (816) 274-1710
Attorneys for Appellant
E. L. Manna, IN., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-8080
ee eer
> eae
INDEX
r, 2
ene / 2
e EE ee 3
Statutory Provisions Involveeddgdqaddd 5
r ce f° 5
The Questions Are Substantiaaldsll 6
w r 8
II. The Second Question r 12
. 15
r,, .... 17
Appendix A (Opinion of the Municipal 19
Appendix A (Opinion of the Trial Court 20
Appendix A (Opinion of the Kansas City Court of Ap-
. 21
Appendix A (Opinion of the Missouri Supreme Court) 26
Appendix A (Order on Rehearing (Missouri Supreme
( 34
Appendix A (Notice of Appeal to 80 Court of
r 9 35
Appendix B (Statutory Provisions involved) a ee 39
Appendix C (Motion for Jury Trial (Municipal Court)) 46
Citations
CASES
Baldwin v. New York, 399 U.S. 66, 90 S. Ct. 1886, 26
e x 3, 4, 11, 12, 13, 16
Butters v. State of Michigan, 352 U.S. 380, 77 S. Ct. 524,
1 11 — 3
Ir
Callahan v. Wilson, 127 U.S. 540, 8 S. Ct. 1301, 32 L.
e eel 4, 12, 16, 17
City of Kansas City v. Darby, 544 SW2d 529 (Jan. 10,
FFF eee 4, 10, 14, 17
Duncan v. Louisiana, 319 U.S. 145, 88 S. Ct. 1444, 20
Pre... 3, 13
Evers v. Dwyer, 358 U.S. 202, 79 S. Ct. 178, 3 L. Ed. 2d
111 3
Hamling v. United States, 418 U.S. 87, 94 8. Ct. 2887, 41
RY RR ee eS 3, 8, 10, 11
Jenkins v. Georgia, 418 U.S. 153, 94 S. Ct. 2750, 41 L.
fF cc 3, 8, 10, 11
Ludwig v. Massachusetts, Juris. Noted, 423 U.S. 945,
46 L. Ed. 2d 276, 96 S. Ct. 354 (1975); ........ 1
49 L. Ed. 2d 534, 96 S. C. K—— 3, 15
McNary v. Carlton, 527 SW2d 343 (Mo. banc, 1975)
ꝗ—ͤ—-: cies taiasdli iniaitiitdliatliatl 4, 6, 8, 10
Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L.
e eee 3, 8, 10, 11
Missouri v. Lewis, 101 U.S. 22 (1880) ................... o 2
Nashville C. and St L. R. Company v. Wallace, 288
US. 249, 53 S. Ct. 345, 77 L. Ed. 730, 87 ALR 1191
212 3
North v. Russell, Juris. Noted, 422 U.S. 1040, 45 L. Ed.
2d 692, 95 S. Ct. 2652 (1975); ........ 6: ..... e&
Ed. 2d 534, 96 S. C. (1976) .. 3, 15
S.S. & W., Inc. et al. v. City of Kansas City, Missouri,
515 SW2d 487 (Mo. 1974); appl. dis., 421 U.S. 925, 44
L. Ed. 2d 83, 95 S. Ct. 1650 (1975) 1,8
State ex rel. Cole v. Nigro, 471 SW2d 933 (Mo. banc,
1971); appl. dis., 404 U.S. 804, 30 L. Ed. 2d 36, 92 S.
Ct. 122; reh. den. 404 U.S. 960, 30 L. Ed. 2d 278, 92
Gre . Fa 4, 11, 12
III
Williams v. Florida, 399 U.S. 78, 26 L. Ed. 2d 446, 90
EN EDEN 16
CONSTITUTIONAL PROVISIONS AND STATUTES
Constitution of Missouri, 1945, Article V, Section ! 5
Constitution of Missouri, 1945, Article V, Section 5 .... 5,9
Constitution of Missouri, 1945, Article V, Section 14 .. 5
Constitution of the United States, First 8
S 3, 4, 11, 14
Constitution of the United States, Sixth Amendment
B I ial ta aia aisitilciihaas * — 12, 13, 14
Constitution of the United States, Fourteenth Amend-
1 3, 4, 11, 12, 13, 14, 15, 17
R.S. Mo. 1969, Section 98.020 — 5
R. S. Mo. 1969, Section 478.070 (4) .. 5
OTHER AUTHORITIES
Kansas City, Missouri Charter, Section 396.5 5
Kansas City, Missouri Code, Section 1.17 2, 5, 14
Kansas City, Missouri Code, Section 22. 4, 5, 10
Kansas City, Missouri Code, Section 26.141.144 5, 8
Missouri Rules of Civil Procedure, 1975, Section 37.53
—: — 5, 11
Missouri Rules of Civil Procedure, 1975, Section 37.73 5
Missouri Rules of Civil Procedure, 1975, Section 37.78 5
Missouri Rules of Civil Procedure, 1975, Section 37.84 5
In the Supreme Court of the United States
OCTOBER TERM, 1976
CITY OF KANSAS CITY, MISSOURI,
Appellant,
On APPEAL From THE SUPREME COURT OF THE
Srarx oF MISSOURI
JURISDICTIONAL STATEMENT
Appellant appeals from the final order and judgment
of the Supreme Court of Missouri entered January 10, 1977,
overruling Appellant’s Motion for Rehearing and its Judg-
ment entered December 13, 1976, rendering Kansas City’s
Obscenity Ordinance unenforceable although continuing to
uphold said ordinance’s constitutional validity (S.S. & W.,
Inc. et al. v. City of Kansas City, Missouri, 421 U.S. 925).
OPINIONS BELOW
The opinion of the Municipal Court of Kansas City,
Missouri is not reported. The opinion of the Circuit Court
of Jackson County, Missouri, Sixteenth Judicial Circuit, is
not reportec. The opinion of the Missouri Court of Appeals,
Kansas City District, is not reported. The opinion of the
Supreme Court of Missouri is reported at 544 SW2d 529.
All opinions are set forth at Appendix A to this statement,
together with the order of the Missouri Supreme Court
denying Rehearing.
JURISDICTION
Robert J. Darby was convicted of exhibiting obscene
materials under Kansas City, Missouri Code, Section
26.142(d) (1971) (Ordinance No. 39144), and Section 1.17
of the Kansas City Code, August 24, 1973, the Court finding
the Defendant guilty and imposing upon said Defendant
for the offense a sentence of ninety (90) days at the Munic-
ipal Correctional Institution. A timely appeal was filed to
the Circuit Court of Jackson County, Missouri, Sixteenth
Judicial Circuit, pursuant to the applicable court rules,
wherein the Defendant, Robert J. Darby, exercised his
absolute right to a trial de novo by jury. A jury convicted
Robert J. Darby, February 28, 1974, of knowingly exhibiting
obscene materials and affixed his punishment at 120 days
confinement and a $500.00 fine. Timely motion for new
trial was filed with the Circuit Court of Jackson County,
Missouri, Sixteenth Judicial Circuit, which was overruled,
and a timely appeal was filed to the Missouri Court of
Appeals, Kansas City District. The case was briefed,
argued and ruled by said Court, March 29, 1976. Timely
motion to transfer said cause to the Supreme Court of
Missouri was filed by the Defendant, which transfer was
granted by the Supreme Court of Missouri, June 15, 1976.
Said cause was argued to the Supreme Court of Missouri,
sitting en banc, September 21, 1976, and said Court reversed
said conviction, December 13, 1976. A timely filed motion
for rehearing was by the Court overruled January 10, 1977,
and timely notice of appeal to this Court filed with the
Supreme Court of Missouri, April 5, 1977. The jurisdiction
of is Court is invoked pursuant to 28 U.S.C. 1257(2).
Cases that sustain the jurisdiction of this Court include
Ludwig v. Massachusetts, 423 U.S. 945, 46 L. Ed. 2d 276,
96 S. Ct. 354 (1975); North v. Russell, 422 U.S. 1040, 45
L. Ed. 2d 692, 95 S. Ct. 2652 (1975); Balduin v. New York,
399 U.S: 66, 90 S. Ct. 1886, 26 L. Ed. 2d 437 (1970); Duncan
v. Louisiana, 319 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491
(1968); Evers v. Dwyer, 358 U.S. 202, 79 S. Ct. 178, 3 L. Ed.
2d 222 (1959); Butters v. State of Michigan, 352 U.S. 380, 77
S. Ct. 524, 1 L. Ed. 2d 412 (1957); and Nashville, C. and
St. L. R. Company v. Wallace, 288 U.S. 249, 53 S. Ct. 345,
77 L. Ed. 730, 87 ALR 1191 (1933).
QUESTIONS PRESENTED BY THIS APPEAL
The questions presented by this appeal are as follows:
1. Whether or not the First and Fourteenth Amend-
ments to the United States Constitution mandate that the
question of obscenity vel non is solely to be decided by a
jury pursuant to this Court’s holdings in the cases of Miller
v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419;
Hamling v. United States, 418 US. 87, 94 S. Ct. 2887, 41
L. Ed. 2d 590; Jenkins v. Georgia, 418 U.S. 153, 94 S. Ct.
2750, 41 L. Ed. 2d 642; as construed by the Missouri Supreme
4
Court in the case of McNary v. Carlton, 527 SW2d 343 (Mo.
banc, 1975) in a judicial forum, a Municipal Police Court,
where the trial by jury of a “petty offense” is prohibited
by ordinance, Section 22.1, Kansas City Code of General
Ordinances, Appendix B.
2. Whether or not it is constitutionally permissible
for the Supreme Court of Missouri to ground its decision
in this instant case, on the case of Callahan v. Wilson, 127
US. 540, 8 S. Ct. 1301, 32 L. Ed. 223 (1888), when such
case was impliedly overruled by this Court as applied to
State Courts in its dismissal, for want of a substantial Fed-
eral question, of the case of State ex rel. Cole v. Nigro, 471
SW2d 933 (Mo. banc, 1971); 404 U.S. 804, 30 L. Ed. 2d 36,
92 S. Ct. 122, reh. den. 404 U.S. 960, 30 L. Ed. 2d 278, 92 S. Ct.
309, which case held that a right to trial by jury in the
Municipal Court of Kansas City, for a “petty offense” was
not constitutionally mandated applying this Court’s decision
rendered in Baldwin v. New York, supra.
3. Whether or not it is constitutionally mandated by
the First and Fourteenth Amendments to the U.S. Constitu-
tion “in obscenity cases only” that a trial by jury is required
in the first instance (the Court of original jurisdiction, i.e.,
the first tier of a two-tiered judicial system) and that a trial
by jury after appeal to the Circuit Court of Missouri (the
second tier of the two-tiered judicial system in Missouri,
where a de novo trial, by jury if requested, is guaranteed
by absolute right) “does not satisfy the requirements of
the Constitution”. (127 U.S. at 557, 8 S. Ct. at 1307) (Pursu-
ant to the provisions of the First and Fourteenth Amend-
ments to the United States Constitution) (City of Kansas
City v. Darby, 544 SW2d 529, 532) (Appendix A).
STATE CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Missouri Constitution of 1945, Article V, Sections 1,
5, and 14; Missouri Revised Statutes 1969, Sections 98.020,
478.070(4); Missouri Rules of Civil Procedure 37.53, 37.73,
37.78, and 37.84 (1975); Kansas City Charter, Section 396.5;
Kansas City, Missouri Code, Sections 1.17, 22.1, 26.141-.144
are set forth verbatim in Appendix B to this statement.
STATEMENT
This case commenced August 9, 1973 when an Informa-
tion was filed in the Municipal Court of Kansas City, Mis-
souri charging Robert J. Darby with exhibiting obscene
materials in violation of Section 26.142(d) and Section 1.17
of the Kansas City Code of General Ordinances. Trial of
the case commenced August 23, 1973, at which time timely
request for trial by jury was filed with the Municipal Court
of Kansas City and overruled raising the Federal Question
(Appendix C). After receiving the evidence the Municipal
Judge found Robert Darby guilty and affixed his punish-
ment to be ninety (90) days confinement. Timely appeal
was filed to the Circuit Court of Jackson County, Missouri,
Sixteenth Judicial Circuit (Tr. 2), and after disposing of
preliminary motions said Court proceeded to grant Robert
J. Darby a trial de novo, by jury (Tr. 1-244, inclusive).
The jury, by unanimous verdict, convicted Robert J. Darby
February 28, 1974, of knowingly exhibiting obscene mate-
rials and affixed his punishment at one hundred twenty
(120) days confinement and a Five Hundred Dollar
($500.00) fine (Tr. 244). Timely motions for new trial
were filed and by the Court overruled (Tr. 245-247), and
timely notice of appeal to the Missouri Court of Appeals,
Kansas City District, was filed with the Trial Court June 17,
1974 (Tr. 249-250). Thereafter, the matter was submitted
on briefs and oral argument to the Missouri Court of Ap-
peals, Kansas City District, which rendered its original
judgment (Appendix A) on March 29, 1976. Timely mo-
tions to transfer said case to the Supreme Court of Missouri
were filed with the Missouri Court of Appeals, Kansas City
District, and with the Supreme Court of Missouri, which
transfer was granted by the Supreme Court June 15, 1976.
Thereafter, the matter was submitted on briefs and oral
argument to the Supreme Court of Missouri, which ren-
dered its judgment (Appendix A) on December 13, 1976,
which judgment reversed the decisions of the three lower
courts, holding that “in obscenity cases only” a trial by
jury was required in the first instance and that a trial by
jury after appeal to the Circuit Court “does not satisfy the
requirements of the Constitution”, in conformity with its
earlier opinion in McNary v. Carlton, 527 SW2d 343 (Mo.
banc, 1975).
A timely motion for rehearing was denied January 10,
1977 (Appendix A). Notice of appeal to this Court was
filed in the Supreme Court of Missouri April 5, 1977
(Appendix A).
THE QUESTIONS PRESENTED
ARE SUBSTANTIAL
The questions presented by this appeal are substantial
and of broad public importance. The Supreme Court of
Missouri has ignored binding precedential decisions of this
Court and has exceeded the judicial power granted it by
the Missouri Constitution in holding the right to trial by
— ee
7
jury, in obscenity cases only, to be an absolute jurisdictional
prerequisite in the prosecution of petty offenses” in Police
Courts of the State of Missouri, when there is an absolute
appellate right to a trial de novo, with a jury, at the second
tier of Missouri’s constitutionally approved two-tier judicial
system.
The synthesis of this uniquely specialized right to trial
by jury, in obscenity cases only, notwithstanding the fact
that they are “petty offenses” will have far-reaching na-
tional consequences in many jurisdictions other than Mis-
souri. The Appellant herein, Kansas City, a constitutionally
chartered municipal corporation of the State of Missouri,
is faced with two alternatives; one, the complete cessation
of prosecutions under its Obscenity Ordinance in the Munic-
ipal Court of Kansas City; or two, to make provision to pro-
vide juries in the trial of “petty offense” obscenity cases
within the Municipal Court of Kansas City, at substantial
cost to the taxpayers when such a trial is already provided
for, as a matter of absolute right, at the First Appellate level
in Missouri’s two-tiered judicial system. While both alter-
natives are unpalatable to the City, the second alternative
is doubly unpalatable in that with the Municipal Court of
Kansas City not being a court of record, and the Rules of
Civil Procedure being as they presently are, a Defen-
dant would have a right to two jury trials rather than one,
thereby completely frustrating the judicial system.
I. The First Amendment to the United States
Constitution Does Not Mandate That the Question
of Obscenity Vel Non Is Solely to Be Decided by a
Jury Pursuant to This Court’s Holdings in the Cases
of Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37
L. Ed. 2d 419; Hamling v. United States, 418 U.S. 87,
94 S. Ct. 2887, 41 L. Ed. 2d 590; Jenkins v. Georgia, 418
U.S. 153, 94 S. Ct. 2750, 41 L. Ed. 2d 642, and That
Such a Holding by the Supreme Court of Missouri, in
the Case of McNary v. Carlton, 527 SW2d 343 (Mo.
Banc, 1975) Is Misplaced.
On June 24, 1974, the United States Supreme Court
handed down the decisions of Hamling v. United States, 418
U.S. 87, 94 S. Ct. 2887, 41 L. Ed. 2d 590 and Jenkins v.
Georgia, 418 U.S. 153, 94 S. Ct. 2750, 41 L. Ed. 2d 642. On
October 14, 1974, the Supreme Court of Missouri rendered
its decision in the case of S.S. & W., Inc. v. Kansas City,
515 SW2d 487 (Mo., 1974), appeal dismissed 421 U.S. 925,
44 L. Ed. 2d 83, 95 S. Ct. 1650 (1975). S.S. & W., Inc.
upheld the Kansas City Obscenity Ordinance, Sections
26.141-.144 (Appendix B) substantively and procedurally
applying the tests required by Miller v. California, 413 U.S.
15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973). It should be
noted in the Missouri Supreme Court decision that Judge
Siler’s dissent in the S.S. & W., Inc. case included refer-
ences to Hamling and Jenkins. September 8, 1975, the
Supreme Court of Missouri, en banc, handed down its
opinion in the case of McNary v. Carlton, 527 SW2d 343,
in effect, establishing by judicial decree, additional sub-
stantive rights with regard to trial by jury on the question
of obscenity vel non. The Court stated in that opinion,
I. c. 346:
“In Hamling and Jenkins, the Court explained and
elaborated upon the Miller holding. We must, of
course, recognize the impact of these decisions and,
where appropriate, establish procedures in Missouri
which will represent meaningful compliance with their
dictates.” (Emphasis supplied)
At I. e. 347, the Court stated:
“In ‘obscenity’ cases, we believe that we should ‘rely
on the jury system’ (413 US at 26, 93 S. Ct. 2607), and
require that jurors be involved as triers of fact under
the Miller guidelines. The imposition of such require-
ment by this court means that it will be ‘constitution-
ally permissible to permit juries to rely on the under-
standing of the community from which they came as
to the contemporary community standards...’ 418 US
at 157, 94 S. Ct. at 2753.”
Such judicial legislation is prohibited by Article V, Sec-
tion 5 of the Missouri Constitution of 1945, which section
reads as follows:
“Section 5. Rules of Practice and Procedure—Duty of
Supreme Court—Power of Legislature —The Supreme
Court may establish rules of practice and procedure for
all courts. The rules shall not change substantive
rights, or the law relating to evidence, the oral exam-
ination of witnesses, juries, the right of trial by jury,
or the right of appeal. The court shall publish the
rules and fix the day on which they take effect, but
no rule shall take effect before six months after its
publication. Any rule may be annulled or amended
by a law limited to the purpose.”
The legislative body of Kansas City, Missouri, the City
Council, is authorized by its duly adopted Home Rule Char-
ter to establish and fund a Municipal Court to try “petty
offenses” for ordinance vivlations. Said Council, by the
10
adoption of Section 22.1 of its Code of Ordinances (Appen-
dix B), has made a legislative determination that trial by
jury within the Municipal Court of Kansas City, Missouri
would not be consistent with the expeditious handling of
a petty offense case docket that approaches 300,000 cases
per year. While the Supreme Court of Missouri could not
dictate that the legislative body of the City must provide
trial by jury, it accomplished the same result by denying
a jurisdictional basis for an otherwise constitutionally per-
missible ordinance. Hamling stands for the proposition
that there is not a uniform nationwide standard of what is
obscene. Jenkins stands for the proposition that, as a mat-
ter of law, juries in the State of Georgia are unable to
legally determine that which is obscene. It is quite clear
that there is no direct mandate in Miller, Hamling or
Jenkins that the question of obscenity vel non is solely to
be decided by a jury. Significantly, it is the manner in
which the Supreme Court of Missouri has perceived what
they described as the emphasis which Miller and Hamling
placed upon the unique qualification of jurors to apply
contemporary community standards. Assuming, arguendo,
that the Trial Judge does not have the propensities of a 7
“reasonable” person as mandated by tort law, neither was
a Georgia jury “reasonable” in the case of Jenkins. The
instructions given by the Missouri Supreme Court, in
McNary, and as further applied in Darby, mandate that the
obscenity issues be tried by jury, that the Court instruct
the jury under Miller requirements and thai the Trial Court
should accept a verdict on the question of obscenity if sup-
ported by three-fourths of the members of the jury panel.
The Trial Court must, however, in the event of an affirma-
tive finding of obscenity by the jury, independently deter-
mine the constitutional question of whether the “materials
depict or describe patently offensive ‘hard core’ sexual
11
conduct”. If the verdict of the jury is that the materials
are not obscene, the Trial Court, under Missouri Law,
should be precluded from making the independent deter-
mination of the constitutional question of whether or not
the “materials depict or describe patently offensive ‘hard
core’ sexual conduct”. It should be additionally noted that
in the trial of a case before the Municipal Court of Kansas
City, or any Municipal Court in Missouri, under the present
court rules, 37.53 Missouri Rules of Civil Procedure, the
Trial Judge is prohibited from instructing the jury, thereby
preventing the jury from being knowledgeable of the
“Miller guidelines”. The Supreme Court of Missouri could
have as easily taken a lesson from Jenkins, and found that
jurors were not uniquely qualified to apply “contemporary.
community standards” in an evenhanded constitutionally
permissible manner as mandated by Miller. Neither Miller,
Hamling, Jenkins nor McNary were required to address
the question of “petty offense” obscenity violations. This
Court has ruled, in Baldwin v. New York, 399 U.S. 66, 90
S. Ct. 1886, 26 L. Ed. 2d 437 (1970), that a trial by jury is
not mandated by the Fourteenth Amendment to the U.S.
Constitution when the maximum possible punishment by
incarceration for the offense does not exceed six months.
Such is the case in the Municipal Court of Kansas City pur-
suant to the provisions of Section 1.17 General Ordinances
of Kansas City (Appendix B). Such was the case when this
Court dismissed for want of a substantial Federal question,
Cole v. Nigro (ante). It is respectfully submitted that for
the foregoing reasons that the Supreme Court of Missouri’s
synthesis of new substantive rights to trial by jury, in ob-
scenity cases only, pursuant to the provisions of the First
and Fourteenth Amendments to the United States Consti-
tution, presents a substantial question necessitating review
by this Court,
II. It Is Not Constitutionally Permissible for the
Supreme Court of Missouri to Ground Its Decision in
This Instant Case Upon the Case of Callahan v. Wil-
son, 127 U.S. 540, 8 S. Ct. 1301, 32 L. Ed. (1888),
When Such Case Was Impliedly Overruled by This
Court in Its Dismissal, for Want of a Substantial
Federal Question, of the Case of State ex rel. Cole v.
Nigro, 471 SW2d 933 (Mo. Banc, 1971); Appeal Dis-
missed 404 U.S. 804, 30 L. Ed. 2d 36, 92 S. Ct. 122; Reh.
Den. 404 U.S. 960, 30 L. Ed. 2d 278, 92 S. Ct. 309, Which
Case Held That a Right to Trial by Jury in the Mu-
nicipal Court of Kansas City, for a Petty Offense”
Was Not Constitutionally Mandated Applying This
Court’s Decision Rendered in Baldwin v. New York,
Supra.
An examination of the Jurisdictional Statements and
the Petitions for Rehearing filed by counsel for the Appel-
lant, Berniece W. Cole, in this Court in the October Term,
1971, in Case No. 70-5140, seeking review of the case of
State ex rel. Cole v. Nigro, 471 SW2d 933 (Mo. banc, 1971)
reveals that Appellant’s theory was grounded in the fact
that Baldwin v. New York, supra, and Missouri v. Lewis,
101 U.S. 22 (1880), the cases upon which the Supreme Court
of Missouri relied in reaching its decision in Nigro, had not
overruled Callahan v. Wilson, 127 U.S. 540, 8 S. Ct. 1301,
32 L. Ed. 223 (1888). Callahan was also a major corner-
stone in Petitioner’s Petition for Writ of Mandamus to the
Supreme Court of Missouri in Nigro. In 1971, the Supreme
Court of Missouri, notwithstanding the emphasis placed
upon Callahan by the Petitioner Cole, neglected to mention
said case in its decision in Nigro. Of course, in that case,
the Supreme Court of Missouri and this Court were mea-
suring the due process guarantees of the Fourteenth
Amendment against the Sixth Amendment right to jury
13
trial; however, the incongruity of failing to provide a jury
trial on the issue of ultimate guilt or innocence, in the
Court of original jurisdiction under the Sixth and Four-
teenth Amendments to the United States Constitution,
while mandating that a jury must be provided, in the Court
of original jurisdiction, in the trial of a “petty” offense, on
the issue of obscenity vel non, is incongruous, to say the
least. Direct resolution of this question is necessary to
provide guidance to the Courts of Missouri and the Courts
of every jurisdiction of this country, utilizing a two-tiered
court system for the trial of “petty” offenses.
The maximum authorized punishment has been the
critical standard in measuring whether or not an offense
is serious or petty. This Court held, in Duncan v. Louisiana,
391 U.S. 145, 20 L.Ed. 2d 491, 88 S. Ct. 1444 (1968), reh. den.
392 U.S. 947, 20 L. Ed. 2d 1412, 88 S. Ct. 2270 (1968):
„ .. But the penalty authorized for a particular crime
is of major relevance in determining whether it is
serious or not and may in itself, if severe enough,
subject the trial to the mandates of the Sixth Amend-
ment... The penalty authorized by the law of the
locality may be taken as a gauge of its social and ethical
judgments . . of the crime in question.” 391 U.S. at 159,
20 L. Ed. 2d at 502.
In the case of Baldwin v. New York, 399 U.S. 66, 90 S. Ct.
1886, 26 L. Ed. 2d 437 (1970), it was held:
“Prior cases in this court narrow our inquiry and fur-
nish us with a standard to be used in resolving this
issue. In deciding whether an offense is ‘petty’, we
have sought objective criteria reflecting the seriousness
with which society regards the offense, . and we have
found the most relevant such criteria in the severity
14
of the maximum authorized penalty. ... Applying
these guidelines, we have held that a possible six-month
penalty is short enough to permit the classification of
the offense as ‘petty’,.. . (399 U.S. 66, 26 L. Ed. 2d
at 440, Emphasis supplied.) ... “This near-uniform
judgment of the nation furnishes us with the only ob-
jective criteria by which a line could ever be drawn—
between offenses which are and which are not regarded
as ‘serious’ for the purposes of trial by jury. 26 L. Ed.
2d at 442... where the accused cannot possibly face
more than six months imprisonment, we have held that
these disadvantages, onerous though they may be, may
be outweighed by the benefits which result from a
speedy and inexpensive non-jury adjudication.” (26 L.
Ed. 2d at 443)
Appellants suggest that it is now irrelev2ut in the
premises to make any inquiry as to the “common-law
nature” of the offense to which Darby stood charged. The
City Council of Kansas City has declared by its enactment
of Section 1.17 of the General Ordinances of Kansas City
(Appendix B) that this type of offense is not one which
is serious enough to merit a trial by jury. Surely the
thrust of the most recent decisions of the United States
Supreme Court clearly indicate that where the Legislature
has established the penal limits for any given offense, the
maximum penalty that may be assessed is all that need
be inspected to see if the offense is one which requires a
trial by jury. In the premises, the maximum Five Hundred
Dollar ($500.00) fine and/or six (6) months imprisonment
falls below the line requiring a trial by jury, under the
Sixth and Fourteenth Amendments to the United States
Constitution and under the First and Fourteenth Amend-
ments to the United States Constitution.
15
III. It Is Not Constitutionally Mandated by the
First and Fourteenth Amendments to the United States
Constitution, in Obscenity Cases Only“, That a Trial
by Jury Is Required in the First Instance (the Court
of Original Jurisdiction, i.e., the First Tier of a Two-
Tiered Judicial System); a Trial by Jury After Appeal
to the Circuit Court of Missouri (the Second Tier of
the Two-Tiered Judicial System in Missouri, Where a
De Novo Trial, by Jury If Requested, Is Guaranteed
by Absolute Right) Does Satisfy the Requirements of
the Constitution.
This Court, in June of 1976, handed down two addi-
tional cases involving two-tiered State Judicial Systems
construing the Defendants’ rights to Fourteenth Amend-
ment due process over alleged deficiencies in the proce-
dures implemented in the Court of original jurisdiction, the
first tier court; those cases were North v. Russell. US.
pe , 49 L. Ed. 2d 534, 96 S. Ct. (1976) and Ludwig v.
Massachusetts, ........ 2 , 49 L. Ed. 2d 732, 96 S. Ct.
12 (1976). North involved an alleged deprivation of due
process guarantees by trial at the original Trial Court level
by a non- lawyer Judge, which due process guarantees were
fulfilled by an absolute right to appeal and trial de novo
at the second tier of the two-tiered system. Ludwig in-
volved an attack on Massachusetts’ two-tiered court system
where no trial by jury was available at the first tier. The
Ludwig case is analogous to the situation in Missouri. The
Court held, in Ludwig:
“The standard against which we judge whether the
Massachusetts two-tier system violates an individual’s
constitutional right to trial by jury is the Fourteenth
Amendment’s guarantee that no person may be de-
prived ‘of life, liberty or property without due process
of law.’ In giving content to this sweeping proscription
16
in the jury trial context, the court in the past has con-
sidered two distinct issues; whether a state is ever
obliged to grant an accused a jury trial, and whether
certain features of the 18th Century common-law jury
are inherent in the right.” (49 L. Ed. 2d at 738)
“Only when an accused is charged with a ‘petty’ of-
fense, usually defined by reference to the maximum
penalty that might be imposed, does the Cunstitution
permit the Federal Government and the State to de-
prive him of his liberty without affording him an op-
portunity to have his guilt determined by a jury.
(Citing Baldwin v. New York) ... These two issues
are not again in controversy in the present case. It is
indisputable that the Massachusetts two-tier system
does afford an accused charged with a serious offense
the absolute right to have his guilt determined by a
jury composed and operating in accordance with the
Constitution. Within the system, the jury serves its
function of protecting against prosecutorial and judicial
misconduct. It does so directly at the second tier of
the Massachusetts system, and it may also have an
indirect effect on first-tier trials.... This is not to say
that we are unaware of a remote possibility that an
accused in Massachusetts may be faced at his first trial
with an overzealous prosecutor and a Judge who is
either unable or unwilling to control him. But, in such
case, he may protect himself from questionable incar-
ceration by appealing and insisting on a trial by jury.”
(49 L. Ed. 2d at 739, Emphasis supplied)
The Court, in this case, as they did in Baldwin, and in
Williams v. Florida, 399 U.S. 78, 26 L. Ed. 2d 446, 90 S. Ct.
1893, Ic. 26 L. Ed. 2d 475, refused to disturb the holding
in Callahan v. Wilson, on the basis that Callahan was appli-
cable to the Federal Judicial System alone, and not binding
17
precedent upon the State Court System, as applied through
the Fourteenth Amendment to the United States Constitu-
tion. Therefore, it is respectfully submitted that the Su-
preme Court of Missouri’s reliance on Callahun, in support
of their judgment in Darby, is misplaced and for this rea-
son, and this reason alone, jurisdiction of this appeal should
be accepted.
CONCLUSION
For the reasons stated, probable jurisdiction should be
noted.
Respectfully submitted,
Aaron A. WILSON
City Attorney
Dante. G. JAcKson III
Assistant City Attorney
2800 City Hall
414 E. 12th Street
Kansas City, Missouri 64106
Telephone: (816) 274-1710
Attorneys for Appellant
—
| BEST COPY AVAILABLE
19
APPENDIX
APPENDIX A
MUNICIPAL COURT OPINION
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20
CIRCUIT COURT OPINION
IN THE CIRCUIT COURT OF MISSOURI,
SIXTEENTH JUDICIAL CIRCUIT,
DIVISION NO. FOUR,
CRIMINAL DIVISION “C.”
No. 5457
CITY OF KANSAS CITY, MISSOURI,
Plaintiff,
vs
ROBERT J. DARBY,
Defendant.
Instructions of the Court are given, arguments of coun-
sel for their respective parties, the jury retires to the jury
room to deliberate in the custody of Tom Blake, bailiff,
who was duly sworn to take charge of the same to consider
their verdict and after due deliberation said jury returns
into open Court with the following verdict in words and
figures as follows, to-wit:
“We, the jury, find the defendant guilty of the offense
of knowingly exhibiting obscene materials, and we
affix his punishment at 120 days confinement, $500.00
fine.
s/ Donald L. Flanegin
Foreman
Instructions Numbers 1-10 (both inclusive) marked
“Given” are filed herein
Instructions Letters A-E marked “Refused” are filed
herein
It is ordered by the Court that said defendant be given
a total of Thirty (30) days to file Motion for New Trial.
It is further ordered by the Court that the defendant’s
present bond continue in effect.
21
MISSOURI COURT OF APPEALS, KCD, OPINION
MISSOURI COURT OF APPEALS
KANSAS CITY DISTRICT
KCD 27,444
CITY OF KANSAS CITY, MISSOURI,
Respondent,
vs.
ROBERT J. DARBY,
Appellant.
KCD 27,464
CITY OF KANSAS CITY, MISSOURI,
Respondent,
vs.
EDGAR E. HERZMARK,
Appellant.
APPEAL FROM THE CMcurr Court or JAcKson County,
Missouri, HONORABLE ALVIN C. RANDALL, JUDGE
(FILED MARCH 29, 1976, MARY LOUISE THOMAS,
CLERK, Missouri Court of Appeals K.C. Dist.)
Before Turnage, P.J., Welborn and Higgins, Sp. JJ.
Appeals from judgments of conviction for violation of
Kansas City ordinance by exhibiting obscene motion pic-
tures. Both appellants were found guilty in Municipal
Court and appealed to Circuit Court. On de novo jury trial
in circuit court, Robert J. Darby was found guilty and sen-
tenced to 120 days’ confinement and $500 fine. At de novo
trial of Edgar E. Herzmark, jury failed to agree on guilt
and was discharged. Thereafter defendant withdrew re-
quest for jury trial and stipulated that defendant exhibited
the movies in question and that they are obscene, applying
the standards of Miller v. California, 413 U.S. 15 (1973).
Thereupon the court entered a finding of guilt and assessed
a fine of 8500.00.
With the exception of one point advanced by Darby,
the contentions of both appellants in this court are identical
and their briefs on such points are likewise identical.
Both contend first that the procedure required to be
employed in the enforcement of the ordinance deprived
them of the due process requirement of trial by jury pre-
scribed by Miller v. California, supra, and therefore the
Municipal Court lacked jurisdiction over the charges orig-
inally and the Circuit Court derivatively acquired no juris-
diction.
After extensively arguing that Miller v. California,
supra, guarantees them a trial by jury in the first instance
in the municipal court, appellants conclude that, inasmuch
as the Kansas City Ordinance § 22.1 provides that “trial in
the municipal court shall be by the court and not by the
jury,” the inability of that court to provide a trial by jury
rendered void the entertainment of jurisdiction by that
court of these cases.
Appellants cite no authority for the proposition that
the failure to grant a jury trial, if required, is a jurisdic-
tional defect. Their mere assertion of that conclusion does
not make it so and they have the burden of establishing
the correctness of their assertion.
Despite the ordinance above referred to, remedies do
exist whereby the right of trial by jury in the municipal
court may be enforced. See State ex rel. Cole v. Nigro,
471 S.W. 2d 933 (Mo. banc 1971). Appellants moved for
a jury trial there but, insofar as the records here disclose,
took no action otherwise to enforce their claimed right.
Darby did obtain a trial by jury in his de novo trial in the
circuit court and Herzmark has stipulated that the films
he was charged with exhibiting were obscene, the issue
which Miller holds must be determined by a jury.
The municipal court had jurisdiction of the subject
matter of the causes before it and had jurisdiction of the
persons of the appellants. The failure to provide a jury
trial, if it was required, has not been shown to have de-
prived that court of jurisdiction, and the circuit court like-
wise had jurisdiction of the appeals before it.
Appellants’ arguments that the Kansas City ordinance
is impermissibly vague and overly broad have been deter-
mined adversely to appellants by the Supreme Court of
Missouri (Kansas City v. O’Connor, 510 S.W. 2d 689 (Mo.
bane 1974); S.S. & W. Inc. v. Kansas City, 515 S.W. 2d 487
(Mo. 1974) ) and more significantly, insofar as federal con-
stitutional guaranties are relied upon, by the United States
Supreme Court. S.S. & W. Inc. v. City of Kansas City, 421
U.S. 925 (1975). Obviously this court cannot re-examine
these contentions.
Appellants argue that the ordinances are unconstitu-
tional as applied to them because they are alleged to have
shown the films in August, 1973, whereas the authoritative
construction” of the Kansas City ordinance in O’Connor,
supra, did not occur until 1974. They contend that they
did not have due notice of the illegality of their conduct.
This argument is without merit. O’Connor was charged
with having exhibited an obscene film in 1971, prior even
to the Miller decision in June, 1973, and O’Connor’s convic-
tion was affirmed by the Supreme Court en banc.
Appellants’ argument, based upon Bouie v. Columbia,
378 U.S. 347 (1964), that O’Connor was an “unforeseeable
state court construction” of a criminal statute which could
not subject a person to criminal liability for past conduct,
is without merit. A similar argument, based upon Bouie,
supra, with respect to Miller, wac rejected by the United
States Supreme Court in Hamling v. United States, 418 U.S.
87 (1974).
Appellants’ contention that the ordinance is void for
lack of procedural safeguards against suppression of pro-
tected expression has been rejected in O'Connor and S. S.
& W. Inc., supra. Again, this court cannot re-examine this
contention. Furthermore, the record in neither of these
cases shows that the films involved were seized by city
officials. No constitutional question, present in seizure
situations, exists where there is no seizure of the allegedly
obscene materials. State v. Shouse, 519 S.W. 2d 13 (Mo.
1975).
Appellant Darby has assigned as error the trial court’s
overruling his Motion to Dismiss Jury Panel, or, in the
Alternative, to Dismiss Information.” That motion was
premised on the grounds that by reason of § 22 (b), Art. I,
Const. of Mo. 1945, permitting a woman to be excused from
jury duty on request, the panel was not a truly represen-
tative cross section of the community, particularly the
female population, and such discrimination deprived him
of due process and equal protection of the laws as guaran-
teed by the Constitution of the United States. There is no
need to detail appellant’s argument.
Although his motion was captioned as stated in his
point above, the motion sought only dismissal of the infor-
mation. It did not request that the jury panel be quashed.
Thus the opening paragraph of the motion is:
“Comes now the defendant, Robert Darby, by his
undersigned counsel and moves this Court to dismiss the
information against him for the reason, in the selection of
a jury, Missouri law denies him due process of law and
the equal protection of the laws.”
The concluding paragraph is:
“For these reasons the information against defendant
should be dismissed.”
The composition of the jury panel had nothing to do
with the validity of the charge against appellant. The trial
court is not to be held to have erred in overruling appel-
lant’s motion.
It might be noted that the motion was filed Feb-
ruary 26, 1974, and the trial did not begin until February 27,
1974. No specific reference to the jury panel actually called
for the trial appears in the motion. In any event, dismissal
of the information is not the proper method to remedy the
deficiency alleged by appellant, if it be such.
Judgments affirmed.
Robert R. Welborn
Special Judge
All concur.
26
SUPREME COURT OF MISSOURI OPINION
SUPREME COURT OF MISSOURI
en banc
No. 59595
CITY OF KANSAS CITY, MISSOURI,
Respondent,
vs.
ROBERT J. DARBY,
Appellant.
CITY OF KANSAS CITY, MISSOURI,
Respondent,
EDGAR E. HERZMARK,
Appellant.
APPEAL FROM THE Cmcurr Court or Missouri, SIXTEENTH
JUDICIAL Cmcurr, HONORABLE ALvin C. RANDALL, JUDGE
(DUPLICATE OF FILING ON DECEMBER 13, 1976,
IN OFFICE OF CLERK, SUPREME COURT)
These cases involve the law relating to obscenity. The
judgments of conviction were affirmed by the Missouri
Court of Appeals, Kansas City District. On June 15, 1976,
both cases were transferred to this Court by this Court.
They will be determined here “the same as on original
appeal.” Mo. Const. Art. V, § 10.
CITY OF KANSAS CITY vs. DARBY:
Robert J. Darby was charged in the Municipal Court
of Kansas City, Missouri, with exhibiting an obscene mo-
tion picture on August 9, 1973, in violation of an ordinance
27
of Kansas City. He was tried in the Municipal Court, with-
out a jury, and was convicted. He appealed to the Circuit
Court of Missouri, Sixteenth Judicial Circuit.
In the Circuit Court, Darby filed several pre-trial mo-
tions. Among these was a Motion to Dismiss which as-
serted, in part, that the charges pending against him should
be dismissed because he was denied in the Municipal Court
trial below the right to have community standards with
regard to the question of obscenity determined by a jury
„ „ *” The motion to dismiss was overruled, the cause
proceeded to trial before a jury, Darby was convicted, and
his punishment was fixed at “hundred twenty days con-
finement, five hundred dollar fine.”
The parties agree that the Municipal Court was barred
by ordinance from providing Darby with a trial by jury.
In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37
L.Ed.2d 419 (1973), the United States Supreme Court re-
formulated the constitutional tests for determining obscen-
ity under the First and Fourteenth Amendments to the
Constitution of the United States. In Hamling v. United
States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974),
the Court explained the Miller holding. In McNary v.
Carlton, 527 S.W.2d 343 anc 1975), this Court construed
Miller, as explained in Hamling, to mean that, in deter-
mining obscenity under the First and Fourteenth Amend-
ments, a jury determination of contemporary community
standards is constitutionally required.
Accordingly, we must conclude that a constitutionally
acceptable determination of obscenity cannot be made in
the Municipal Court in Kansas City because no jury is
available.
The question presented in the Darby case is whether
this constitutional deficiency can be cured by the process
of allowing an appeal to the circuit court and making a
jury available there.
In Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed.
223 (1888), Callan was charged with conspiracy in the
Police Court of the District of Columbia and convicted. He
perfected an appeal to the Supreme Court of the District
of Columbia (in which a trial by a jury would have been
available to him), withdrew the appeal and was committed
to the custody of the Marshal. On appeal to the United
States Supreme Court, he contended that the Constitution
of the United States secured to him the right to be tried
by a jury, and, that right having been denied, the police
court was without jurisdiction to impose a fine upon him,
or to order him to be imprisoned until such fine was paid.”
The Supreme Court sustained his contention, and said (127
US., at 557):
„Except in that class or grade of offences called
petty offences, which, according to the common law,
may be proceeded against summarily in any tribunal
legally constituted for that purpose, the guarantee of
an impartial jury to the accused in a criminal prosecu-
tion, conducted either in the name, or by or under the
authority of, the United States, secures to him the right
to enjoy that mode of trial from the first moment, and
in whatever court, he is put on trial for the offence
charged. In such cases a judgment of conviction, not
based upon a verdict of guilty by a jury, is void. To
accord to the accused a right to be tried by a jury, in
an appellate court, after he has been once fully tried
otherwise than by a jury, in the court of original juris-
diction, and sentenced to pay a fine or be imprisoned
for not paying it, does not satisfy the requirements of
the Constitution. When, therefore, the appellant was
brought before the Supreme Court of the District, and
the fact was disclosed that he had been adjudged guilty
of the crime of conspiracy charged in the information
in this case, without ever having been tried by a jury,
he should have been restored to his liberty.”
We consider the Callan holding extremely persuasive.
If it is to be followed, Darby should be discharged.
First, however, we must consider the possible impact
of Ludwig v. Massachusetts. U.S. 96 S.Ct. 2781,
49 L.Ed.2d 732, decided by the United States Supreme Court
on June 30, 1976.
In Ludwig, the accused was convicted in the District
Court of Northern Norfolk in a proceeding in which no jury
was available. He then asserted his statutory right to a
trial de novo before a jury. In the de novo proceeding he
asserted that he had been deprived of his federal consti-
tutional right to a speedy jury trial in the first instance,
and that he had been subjected to double jeopardy. At the
second trial he was again convicted. The Supreme Court
of the United States rejected his assertions and held that
the Massachusetts “two-tier” court system violated neither
his Fourteenth Amendment right to a trial by jury nor the
double jeopardy clause of the Fifth Amendment. The sig-
nificant language in Ludwig, for our purposes, is as follows
(96 S.Ct., at 2787, 49 L.Ed.2d at 741):
“Our disposition of this case does not require us
to disturb the holding in Callan v. Wilson, 127 US 540,
32 L Ed 223, 8 S Ct 1301 (1888). In Callan, this Court
considered the validity of a District of Columbia two-
tier trial system that provided for trial by jury only
in the second tier. The Court announced: ‘Except in
that class or grade of offences called petty offences,
which, according to the common law, may be proceeded
against summarily in any tribunal legally constituted
for that purpose, the guarantee of an impartial jury to
the accused in a criminal prosecution, conducted either
in the name, or by or under the authority of, the United
States, secures to him the right to enjoy that mode of
trial from the first moment, and m whatever court,
he is put on trial for the offence charged.’ Id., at 557,
32 L Ed 223, 8 S Ct 1301.
“Reconsideration of Callan is not required here for
two reasons. First, as the Court there recognized, the
sources of the right to jury trial in the federal courts
are several and include Art III, § 2, cl 3, of the Consti-
tution. That provision requires, in pertinent part, that
Atjhe trial of all Crimes shall be by Jury.’ This
language, which might be read as prohibiting, in the
absence of a defendant’s consent, a federal trial with-
out a jury is, of course, not applicable to the States.
Second, to the extent that the decision in Callan may
have rested on a determination that the right to trial
by jury in a serious criminal case was unduly burdened
by a requirement that an accused first be tried without
a jury, it is not controlling here. Unlike the District
of Columbia system, which apparently required that
an accused be ‘fully tried’ in the first tier, 127 US, at
527, 32 L Ed 223, 8 S Ct 1301, Massachusetts permits
an accused to short-circuit trial in the first tier by ad-
mitting to sufficient findings of fact.”
We recognize that the Ludwig holding casts a shadow
on the holding in Callan. However, the Ludwig opinion
disavows any intention of overruling Callan, and we con-
sider the Callan holding and result uniquely appropriate
in situations involving resolution of obscenity issues under
the Miller guidelines. In Miller, the Court noted “that
obscene material is unprotected by the First Amendment”
but then acknowledged the inherent dangers of under-
31
taking to regulate any form of expression.” (413 U.S., at
23). In our view, we are free to follow the Callan holding,
and we believe we should apply it to a situation where
First Amendment rights are involved.
In Blount v. Rizzi, 400 U.S. 410, 416-417, 91 S.Ct. 423,
428, 27 L.Ed.2d 498, 503 (1970), the Supreme Court of the
United States cautioned that. Government ‘is not free
to adopt whatever procedures it pleases for dealing with
obscenity . . . without regard to the possible consequences
for constitutionally protected speech.’ Marcus v. Search
Warrant, 367 U. S. 717, 731 (1961). Rather, the First
Amendment requires that procedures be incorporated that
‘ensure against the curtailment of constitutionally pro-
tected expression, which is often separated from obscenity
only by a dim and uncertain line.... Our insistence that
regulations of obscenity scrupulously embody the most
rigorous procedural safeguards ... is . but a special
instance of the larger principle that the freedoms of expres-
sion must be ringed about with adequate bulwarks.
Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 66 (1963).
Since we have recognized that ‘the line between speech
unconditionally guaranteed and speech which may legit-
imately be regulated. is finely drawn. . . . [t]he separa-
tion of legitimate from illegitimate speech calls for
sensitive tools. Speiser v. Randall, 357 U. S. 513, 525
(1958).”
We held in McNary that a person is entitled to freedom
of expression, in areas of alleged obscenity, until a jury of
his peers declares otherwise. We merely reaffirm the
McNary holding today and give it practical effect. The
essential question is whether it is constitutionally permis-
sible to allow a municipal judge to restrict freedom of
expression prior to the time a jury is made available in
circuit court. We think not.
We hold, in obscenity cases only, that a trial by jury
is required in the first instance and that a trial by jury
after appeal to circuit court “does not satisfy the require-
ments of the Constitution.” (127 U.S., at 557).
We recognize that today’s holding renders the Kansas
City obscenity ordinance unenforceable so long as juries
are not permitted in Kansas City municipal courts. How-
ever, the chief executive officer of Kansas City, or its city
attorney, may proceed under Section 563.285, RSMo 1969,
in matters of alleged obscenity.
The judgment is reversed, and the cause remanded
with directions to discharge Darby from custody.
CITY OF KANSAS CITY v. HERZMARK:
Edgar F. Herzmark was charged in the Municipal Court
of Kansas City, Missouri, with exhibiting two obscene mo-
tion pictures on July 23, 1973, in violation of an ordinance
of Kansas City. He was tried in the Municipal Court,
without a jury, and was convicted. He appealed to the
Circuit Court of Missouri, Sixteenth Judicial Circuit.
In the Circuit Court, he received a trial and the jury
was unable to reach a verdict. He then stipulated that for
the purposes of this case only the films are obscene under
the Miller guidelines, withdrew his request for jury trial,
was found guilty of exhibiting obscene materials, and his
punishment was assessed at a fine of five hundred dollars.
Herzmark first asserts on appeal that he was deprived
of trial by jury as prescribed by Miller. The assertion is
without merit. He stipulated the motion pictures are ob-
scene.
Herzmark next asserts that the Kansas City ordinance
is impermissibly vague and overly broad. The assertion
33
is without merit. Kansas City v. O’Connor, 510 S.W.2d
689 (Mo.banc 1974).
Herzmark finally asserts that the Kansas City ordi-
nance is invalid in that it provides no procedural safe-
guards against the suppression of protected expression as
required by Heller v. New York, 413 U.S. 483, 93 S.Ct.
2789, 37 L.Ed.2d 745 (1973), and Roaden v. Kentucky, 413
U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). The asser-
tion is without merit. Kansas City v. O’Connor, supra.
The judgment is affirmed.
Robert T. Donnelly, Judge
Morgan, Bardgett, Henley and Finch, JJ., concur; Seiler,
C.J., concurs as to Darby, concurs as to Herzmark under
compulsion of Kansas City v. O’Connor, 510 S.W.2d 689
(Mo. banc 1974); Holman, J., dissents.
34
MISSOURI SUPREME COURT ORDER DENYING
MOTION FOR REHEARING
CLERK OF THE SUPREME COURT
State of Missouri
Jefferson City, Missouri
65101
Thomas F. Simon Telephone
Clerk (314) 751-4144
P. O. Box 159
January 10, 1977
Mr. Dan Jackson III
Assistant City Attorney
28th Floor
City Hall
414 E. 12th
Kansas City, Missouri 64106
In re: City of Kansas City, Missouri vs. Robert
J. Darby—City of Kansas City vs. Edgar
E. Herzmark No. 59595
Dear Mr. Jackson:
This is to advise that the Court this day has made the
following order in the above-entitled cause:
“Respondent City of Kansas City’s motion for rehear-
ing overruled. Rendlen, J., not participating.”
Yours very truly,
/s/ Thomas F. Simon
Clerk.
/bh
ec: Thomas W. Tierney and Donald V. Pierce, Jr., Tierney,
Mushkin & McGuire, 1730 Commerce Tower, 911
Main Street, Kansas City, Missouri 64105
— — —
35
IN THE
SUPREME COURT OF THE STATE OF MSSOURI
No. 59595
CITY OF KANSAS CITY, MISSOURI,
Respondent,
vs.
ROBERT J. DARBY,
Appellant.
NOTICE OF APPEAL TO THE SUPREME COURT
OF THE UNITED STATES
Notice is hereby given that the above-named Respon-
dent hereby appeals to the Supreme Court of the United
States from the final judgment of the Supreme Court of
the State of Missouri, originally dated December 13, 1976,
and thereafter entered on January 10, 1977 (rehearing de-
nied January 10, 1977) reversing the judgment of the
Missouri Court of Appeals, Kansas City District, dated
March 29, 1976, which judgment affirmed the judgment of
the Circuit Court of Jackson County, Missouri, dated Feb-
ruary 28, 1974.
This appeal is taken pursuant to 28 U.S.C. 1257(2).
Aaron A. WILSON
City Attorney
2800 City Hall
411 E. 11th Street
Kansas City, Missouri 64106
and
DANIEL G. JACKSON III
Assistant City Attorney
2800 City Hall
411 E. 11th Street
Kansas City, Missouri 64106
(816) 274-1710
Attorneys for Respondent
By /s/ Daniel G. Jackson III
CERTIFICATE OF SERVICE
I, Daniel G. Jackson III, one of the attorneys for the
Respondent herein, and a member of the Bar of the Su-
preme Court of the United States, hereby certify that on
this 4th day of April, 1977, I served a copy of the foregoing
Notice of Appeal to the Supreme Court of the United States,
on Thomas W. Tierney, 1730 Commerce Tower, Kansas
City, Missouri 64105, Attorney for Robert J. Darby, by
mailing a copy in a duly addressed envelope, with postage
prepaid.
It is further certified that all parties required to be
served have been served
/s/ Daniel G. Jackson III
37
CLERK OF THE SUPREME COURT
State of Missouri
Jefferson City, Missouri
65101
Thomas F. Simon Telephone
Clerk (314) 751-4144
P. O. Box 150
April 5, 1977
Mr. Dan G. Jackson, III
Assistant City Attorney
28th Floor, City Hall
Kansas City, Missouri, 64106
In re: City of Kansas City, Missouri vs. Robert J.
Darby—No. 59595
Dear Sir:
This acknowledges receipt of notice of appeal to the
United States Supreme Court which has this day been filed
in the above-entitled cause and is reflected in the records
of this Court.
This office has confirmed today by telephone to the
United States Supreme Court that certified copies of the
record are not forwarded to that Court until we are noti-
fied by it that jurisdiction is being accepted.
The Office of Clerk of the Supreme Court referred this
office to its Rule 12 wherein it is stated that “the filing of
the record in this court is not required for docketing an
appeal.” Rule 21 covering certiorari contains approx-
imately the same wording and the same procedure applies
thereto.
We will, of course, keep your request on file and when
the U. S. Supreme Court notifies this office that they are
accepting jurisdiction, the certifications will be made.
Yours very truly,
Thomas F. Simon
/s/ Goldie Ketcham
By Goldie Ketcham
Chief Deputy Clerk
/gk
APPENDIX B
STATE CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Missouri Constitution of 1945, Article V
Section 1. Judicial power - constitutional courts.—The
judicial power of the state shall be vested in a supreme
court, a court of appeals consisting of districts as prescribed
by law, circuit courts, probate courts, the St. Louis courts
of criminal correction, the existing courts of common pleas,
magistrate courts, and municipal corporation courts.
Section 5. Rules of practice and procedure—duty of
supreme court—power of legislature.— The supreme court
may establish rules of practice and procedures for all courts.
The rules shall not change substantive rights, or the law
relating to evidence, the oral examination of witnesses,
juries, the right of trial by jury, or the right of appeal. The
court shall publish the rules and fix the day on which they
take effect, but no rule shall take effect before six months
after its publication. Any rule may be annulled or amended
by a law limited to the purpose.
Section 14. Circuit courts—jurisdiction—sessions.—
The circuit courts shall have jurisdiction over all criminal
cases not otherwise provided for by law, exclusive original
jurisdiction in all civil cases not otherwise provided for,
and concurrent and appellate jurisdiction as provided by
law. Such courts shall sit at times and places in each
county as prescribed by law.
Missouri Revised Statutes 1969
$ 98.020. Appeals from police court
Appeals from police courts and for violation of an
ordinance of a city, town or village shall be in the nature
of a criminal appeal from a magistrate. And when an ap-
peal is taken from the judgment of such police court, the
defendant shall be required to give bond as in appeals in
trials for misdemeanors before a magistrate, notwithstand-
ing any ordinance or city charter to the contrary. If, on
trial in the court having jurisdiction of such appeal, the
defendant shall be convicted and fails or refuses to pay
the costs and fine assessed against him, such fine and costs
may be collected as if no appeal had been taken, and de-
fendant may be committed to a workhouse or compelled
to work out such fine and costs, as provided by law for
collecting fines and costs in police courts when no appeal
has been taken. (R.S.1939, § 7363)
§ 478.070 Jurisdiction of circuit courts
The circuit courts in the respective counties in which
they may be held shall have power and jurisdiction as
follows:
(4) Appellate jurisdiction from the judgment and
orders of county courts, probate courts and magistrates, in
all cases not expressly prohibited by law, and shall possess
a superintending control over them, and a general control
over executors, administrators, guardians, curators, minors,
idiots, lunatics and persons of unsound mind. (R.S. 1939,
§ 2100, A. 1949 S.B. 1140)
1 eee a ee ee
— mes
41
Missouri Rules of Court 1976
37.53. Issues of Fact
(a) All issues of fact shall be tried by the judge ex-
cept where trial by jury is authorized by law and the defen-
dant or his attorney requests a trial by jury.
(b) Where trial by jury is authorized by law and the
defendant or his attorney requests, a jury shall be selected
in the manner provided for the selection of juries in mis-
demeanor cases tried in magistrate courts, except as other-
wise provided by law. The jury so selected shall determine
the facts and render a verdict.
(c) In cases tried by a jury the judge shall not com-
ment on the facts. The judge may, with the consent of all
parties, answer questions asked by jurors pertaining to the
law applicable to the case.
37.73. Motion for New Trial—Not Required but Permitted
Except as otherwise required by law, no motion for a
new trial shall be required as a condition for review on
appeal. An appeal shall be granted as a matter of course
on compliance with these Rules and any law governing
same. Motions for a new trial may be filed within the
time permitted for appeal and shall be considered and
ruling made thereon by the court before the time for appeal
expires in accordance with the findings of the court as to
the commission of any substantial errors in the trial of the
case and the judgment and sentence.
37.78. Appeal—Right—Time—Appellate Court
A defendant and the municipality shall be entitled to
appeal from a judgment to the circuit court of the county
or such other court having jurisdiction of such appeals
within the time and in the manner provided by law.
37.84. Appeal—Trial
After an appeal from a judgment rendered in a mu-
nicipal court has been entered upon the docket of the cir-
cuit or other court having jurisdiction of the appeal, the
case shall be heard, tried and determined de novo in such
circuit or other court as though the prosecution had origi-
nated in such court. If the defendant shall be convicted
in such court, the judgment entered upon the finding or
verdict shall assess the costs in both the municipal and
such other court in the manner provided by law.
Kansas City Charter
Sec. 396.5 Appeals.
Appeals may be taken from the municipal court by the
defendant and by the city to the circuit court in the manner
and upon the conditions prescribed by law and rules of the
Missouri Supreme Court. (C.S. No. 33041, § A(a), 11-8-66)
Kansas City, Missouri Code
§ 1.17. General penalty; continuing violations.
Whenever in any section of the Administrative Code
or this Code of General Ordinances or in any ordinance,
the doing of any act is required or is prohibited or is de-
clared to be unlawful or a misdemeanor, and either no
specific fine or penalty is provided for a violation thereof
or a specific penalty of imprisonment for more than six
(6) months is provided therefor, any such specific pen-
alty provided by any such section or ordinance notwith-
standing, any person who shall be convicted of a violation
of any sich provision of this codification or of any such
ordinance shall, for each offense, be fined not less than
one dollar ($1.00) nor more than five hundred dollars
($500.00) where no specific fine is provided, or the fine
—
43
so specifically provided where so provided, or be punished
by imprisonment in the municipal farm or the women’s
reformatory, according to the sex of the person convicted,
not to exceed six (6) months, or be punished by both fine
and imprisonment.
Each day’s violation of, or failure, refusal or neglect
to comply with, any provision of this codification or of
any other ordinance shall constitute a separate and dis-
tinct offense.
This section shall not apply to any section of this Code
or to any ordinance in which there is expressly provided
a penalty for its violation of imprisonment for a term not
in excess of six (6) months. (R. O. 1956 S. 1.100 Ord. No.
38541, 7-17-70)
§ 22.1 Trial by court.
In all prosecutions for violations of any offenses un-
der the Charter and ordinances, or either, trial in the mu-
nicipal court shall be by the court and not by the jury.
(C.S. No. 35644, § A, 8-16-68)
Ordinance No. 39144
§ 26.141. Definitions.
(a) Obscenity. Material is obscene if, considered as
a whole, its predominant appeal is to prurient interest,
that is, a shameful or morbid interest, in nudity, sex or
excretion, and if in addition it goes beyond customary
limits of candor in describing or representing such mat-
ters. Predominant appeal shall be judged with reference
to ordinary adults unless it appears from the character of
the material or the circumstances of its dissemination to
be designed for children or another especially susceptible
audience. Undeveloped photographs, molds, printing
44
plates and the like, shall be deemed obscene notwithstand-
ing that processing or other acts may be required to make
the obscenity patent or to disseminate it.
(b) Person. As used in this article, the term “per-
son” shall be taken to mean any natural person, firm,
partnership, copartnership, association, corporation or or-
ganization of any kind or character. (Ord. 39144, 3-5-71)
§ 26.142. Offenses.
No person shall knowingly:
(a) Sell, deliver or provide, or offer or agree to sell,
deliver or provide, any obscene writing, picture,
record or other representation or embodiment of
the obscene; or
(b) Present or direct an obscene play, dance or per-
formance, or participate in that portion thereof
which makes it obscene; or
(c) Publish, exhibit or otherwise make available any
obscene material; or
(d) Possess any obscene material for the purpose of
sale or other commercial dissemination; or
(e) Sell, advertise or otherwise commercially dis-
seminate material, whether or not obscene, by
representing or suggesting that such material is
obscene; or
(f) Display, draw or write in any place open to or
used by the public, any obscene material, repre-
sentatations or drawings. (Ord. 39144, 3-5-71)
——
§ 26.143. Exceptions.
Nothing herein contained shall be deemed to prohibit
dissemination of materials, otherwise in violation of this
article, restricted to: |
(a) Institutions or persons having scientific, educa-
tional, governmental or other similar justification
for possessing obscene material; or
(b) Non-commercial dissemination to personal asso-
ciates over the age of 18 years. (Ord. 39144, 3-5-71)
§ 26.144. Adjudication of obscenity.
In construing the meaning of the terms or phrases
used in this article which relate to Federal Constitutional
Principles, only such meanings or inclusion shall be adopted
as have been settled by controlling majority adopted opin-
ions of the Supreme Court of the United States and not
otherwise where such opinions exist; provided further, it
is the intent of this article not to adopt any non-control-
ling personal views or opinions of any justice or a number
thereof less than the majority of the Supreme Court of
the United States. (Ord. 39144, 3-5-71)
46
APPENDIX C
IN THE MUNICIPAL COURT OF
KANSAS CITY, MISSOURI
ee
OR (Overruled) 8-23-73 Judge Nigro
City of Kansas City, Missouri,
Plaintiffs,
vs.
Jim Lee, Robert Darby, Edward Herzmark, Sue Robertson,
Defendants.
REQUEST FOR TRIAL BY JURY
(FILED MUNICIPAL COURT, AUGUST 23, 1973,
CLERK, E. OSBORN)
Come now defendants herein and move this court for
an order empanelling a jury for the trial of this action.
Defendants are entitled to a jury to serve as a trier of
fact to assess the legality of the movies herein by the
standards of the community. Where there are no explicit
standards by which a judge may determine the limits of
community acceptance of sexually explicit material defen-
dants are entitled to a trial by a jury composed of members
of the community.
Respectfully submitted,
/s/ Arthur A. Benson II
Attorney at Law
1024 Commerce Tower
Kansas City, Missouri
(816) 842-7604
Attorney for Defendants
a Le ee ee ee
1 .
e
47
A copy of the above and foregoing was served this 23rd
day of August, 1973, by handling a copy to Dan Jackson,
Assistant City Counsellor, 2800 City Hall, Kansas City,
/s/ Arthur A. Benson II
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.