Motion to Dismiss — Kansas City v. Darby

oz

| Supreme Cou, U. S

Mm EILED

MAY 6 1977

| MICHAEL RODAK, JR., CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-1397

CITY OF KANSAS CITY, MISSOURI,

Appellant,

VS.

ROBERT J. DARBY,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF THE

STATE OF MISSOURI

MOTION TO DISMISS OR AFFIRM

THOMAS W. TIERNEY

DONALD V. PIERCE, JR.

1700 City Center Square

1100 Main Street

Kansas City, Missouri 64105

Telephone: (816) 421-4334

Attorneys for Appellee

E. L. Menpenwatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

INDEX

Motion To Dismiss Or Affirm 1

IEEE NS ee ee 2

I i iach 2

Argument—

The Case Presents No Substantial Question ........... 3

SR REE Ey SI ee ee 8

Citations

CASES

Apodaca V. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.

2d 184 (1972) 6

Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26

L.Ed.2d 487 (1970) 6

Braxton County Court v. West Virginia, 208 U.S. 192, 28

S.Ct. 275, 52 L.Ed. 450 (1908) 8

Burt v. Smith, 203 U.S. 129, 27 S.Ct. 37, 51 L.Ed. 121

(1906) . 4

~— Vv. Wilson, 127 U.S. 540, 8 ae. 1301, 32 L.Ed.

223 (1888) - 4,5

City of Kansas City v. Darby, 544 S.W.2d 529 (Mo. banc

1976) .2,3,5,7

DeBacker V. Brainard, 396 U.S. 28, 90 S.Ct. 168, 24 L.Ed.

2d 148 (1969) . 2

Duncan V. Louisiona, 391 U.S. 145, 98 S.Ct. 1 1444, 20 L.Ed.

2d 491 (1968) .... : 6

French V. Taylor, 199 U.S. 274, 26 S.Ct. 76, 50 L.Ed. 189

| ee 4

Hicks v. Miranda, 422 U.S. 325, 95 S.Ct. 2281, 45 L.Ed.2d

223 (1975) . 4

Live Oak Water Users’ Association V. Railroad Commis-

sion of California, 269 U.S. 354, 46 S.Ct. 149, 70 L.Ed.

305 (1926) - ” 2

Loftus V. IUinois, 334 US. 804, 68 S.Ct. 1212, 92 L.Ed.

IED tin cnersiiicdinieaiaanmiani = ne 6-7

Ludwig Vv. Massachusetts, -....... - a , 96 S.Ct. ‘9781,

49 L.Ed.2d 732 (1976) -.................

Marshall v. Dye, 231 U.S. 250, 34 S.Ct. 92, 58 L.Ed. 206

III ‘iiss irnstassbadimchiibniipaitaietalichanipaiibighinsniiilaiie nanigitdesicladitalbasibiaide 3

McNary V. Carlton, 527 S.W.2d 348 (Mo. banc 1975) .

Miller Vv. California, 413 U.S. 15, 93 S.Ct. 2607, 37 oo

2d 419 (1973) - hs 5

Parker v. McLain, 237 U.S. 469, 35 S.Ct. 632, 59 L.Ed.

1051 (1915) 5,7

Rawlins v. Georgia, 201 U.S. 638, 26 S.Ct. 560, 50 L.Ed.

899 (1906) - 7 4

Rice v. Sioux City Caeitiein' 349 U.S. 70, 75 S.Ct. 614,

' 99 L.Ed. 897 (1955) _.. ~

Smith v. Indiana, 191 U.S. 138, 24 S.Ct. 51, 48 L.Ed. 125

~ (1903) 3

State ex rel. Cole v. eden 471 S.W.2d 933 (Mo. 1971),

' appeal dismissed, 404 U.S. 804, 92 S.Ct. 122, 30 L.Ed.

ee ID setiischiithslninttlienwilitiiiattilitibtiicienssiesddetiindindiblagiala tie, 4,5

Utley v. City of St. Petersburg, 292 U.S. 106, 54 S.Ct.

— % FS Re: 2 eee ee oe ae 6

Williams Vv. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.

ee ee I areas etiscticesasctiiemscittlipentbiinishtisiiiiitensiidaiili 6

Young V. Ragen, 337 U.S. 235, 69 S.Ct. 1078, 98 L.Ed.

1383 (1949) -...........

CONSTITUTIONAL PROVISIONS AND STATUTES

Constitution of Missouri, 1945, Article I, Section 22... 5

Constitution of Missouri, 1945, Article V, Section 5...... 4

Constitution of the United States—

First Amendment .... , 3, 6

Sixth Amendment . —

Fourteenth Amendment 38, 5, 6,8

R.S.Mo. 1969, Section 542.281 - 7

R.S.Mo. 1969, Section 542.301 7

R.S.Mo. 1969, Section 563.285 —................---------.c-----s+2000+- 7

28 U.S.C. 1257 2,3

OTHER AUTHORITIES

Kansas City, Missouri Code, Section 22.1 ........................ 5

In the Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-1397

CITY OF KANSAS CITY, MISSOURI,

Appellant,

vs.

ROBERT J. DARBY,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF THE

STATE OF MISSOURI

MOTION TO DISMISS OR AFFIRM

Pursuant to Rule 16 of the United States Supreme Court

Rules, Appellee moves the Court to dismiss this appeal from

the judgment and order of the Supreme Court of Missouri

upon the grounds that said appeal is not within the jurisdic-

tion of this Court and that the questions on which the deci-

sion of the lower Court rests do not present a substantial

federal question.

In the alternative, Appellee moves the Court to affirm

the aforementioned judgment and order on the ground that

the questions on which the decision of the cause depends are

quite limited in scope and have been thoroughly considered

by the Supreme Court of Missouri, thereby requiring no fur-

ther argument.

JURISDICTION

Appellant has sought to invoke the jurisdiction of this

Court in accordance with the provisions of 28 U.S.C. 1257

(2). However, as is evident from the decision of the Su-

preme Court of Missouri (Juris. Statement, Appendix “A”

p. 26) from which this appeal has been taken, the case of

City of Kansas City v. Darby, does not draw into question

the validity of a Missouri statute or ordinance “on the

ground of its being repugnant to the Constitution, treaties

or laws of the United States”. 28 U.S.C. 1257(2). Ac-

cordingly, the questions presented by this appeal, standing

alone, cannot be subject to review by this Court by way of

an appeal. DeBacker v. Brainard, 396 U.S. 28, 32, 90 S.Ct.

163, 24 L.Ed.2d 148, 153 (1969); Live Oak Water Users’ As-

sociation V. Railroad Commission of California, 269 U.S. 354,

46 S.Ct. 149, 70 L.Ed. 305 (1926). Therefore, appellee sub-

mits that said appeal should be dismissed.

STATEMENT

The facts comprising the basis of this appeal are cor-

rectly presented in the City Attorney’s Jurisdictional State-

ment under the heading “Statement”. The opinions of the

Municipal Court of Kansas City, Missouri, the Circuit Court

of Missouri, Sixteenth Judicial Circuit, Division 4, the Mis-

souri Court of Appeals, Kansas City District and the Su-

preme Court of Missouri, en banc, are correctly set forth

in Appendix “A” to the Jurisdictional Statemeni.

ARGUMENT

The Case Presents No Substantial Federal Question

The issue presented to the Supreme Court of Missouri

by virtue of these proceedings was whether a constitutionally

unacceptable judicial determination of obscenity by means

other than a trial by jury can be cured by the process of

allowing an appeal from such a determination by the Mu-

nicipal Court of Kansas City, Missouri, the court of origi-

nal jurisdiction, to the Circuit Court of Jackson County,

Missouri, where a trial de novo by a jury is provided on ap-

peal. Prior to the decision of City of Kansas City v. Darby,

544 S.W.2d 529 (Mo. banc 1976) (Juris. Statement, Appen-

dix “A”, p. 26) the Supreme Court of Missouri held in Mc-

Nary v. Carlton, 527 S.W.2d 343 (Mo. banc 1975) that a

jury determination of contemporary community standards

is constitutionally required in determining obscenity under

the First and Fourteenth Amendments to the United States

Constitution. Clearly, Appellant is estopped from and has

no standing to attack the decision rendered by the Supreme

Court of Missouri in the case of McNary v. Carlton, supra.

See 28 U.S.C. 1257; Smith v. Indiana, 191 U.S. 138, 24 S.Ct.

51, 48 L.Ed. 125 (1903); Braxton County Court v. West Vir-

ginia, 208 U.S. 192, 28 S.Ct. 275, 52 L.Ed. 450 (1908); Mar-

shall v. Dye, 231 U.S. 250, 34 S.Ct. 92, 58 L.Ed. 206 (1913).

Therefore, Appellant’s first question, involving the precise

issue decided by the McNary case, is without merit and

should be dismissed for the reason that said question is not

within the jurisdiction of this Court for purposes of these

proceedings.

Appellant further contends in its first question that the

Supreme Court of Missouri exceeded the authority granted

to it under the Constitution of Missouri. Appellee submits

that said contention is misplaced for the reason that the con-

stitutional provision referred to by Appellant, viz., Article

V, Section 5 (Juris. Statement, Appendix “B”, p. 39) pertains

to the authority of the Supreme Court of Missouri to prom-

ulgate rules of practice and procedure for Missouri courts.

Said provision has no relationship whatsoever to the author-

ity of the Supreme Court to render decisions. Moreover, it

is clear that whether or not a state court exceeded its func-

tions under the state constitution cannot give rise to a ques-

tion respecting due process of law which will sustain the

appellate jurisdiction of this Court. French v. Taylor, 199

U.S. 274, 26 S.Ct. 76, 50 L.Ed. 189 (1905); Rawlins v. Geor-

gia, 201 U.S. 638, 26 S.Ct. 560, 50 L.Ed. 899 (1906); Burt

v. Smith, 203 U.S. 129, 135, 27 S.Ct. 37, 51 L.Ed. 121, 127

(1906).

On the basis of the foregoing, Appellee submits that Ap-

pellant’s first question is without merit for the reasons that

it is not within the jurisdiction of this Court and does not

raise a substantial federal question.

Appellant suggests in its second question that the Mis-

souri Supreme Court acted outside the scope of that which

is constitutionally permissible by following this Court’s de-

cision in the case of Callan v. Wilson, 127 U.S. 540, 8 S.Ct.

1301, 32 L.Ed. 223 (1888). Appellant contends that the

Callan case has been overruled by this Court by reason of

the dismissal, for want of no substantial federal question, en-

tered in the case of State ex rel. Cole v. Nigro, 471 S.W.2d

933 (Mo. 1971), appeal dismissed, 404 U.S. 804, 92 S.Ct.

122, 30 L.Ed.2d 36 (1971). Appellee concedes that a dis-

missal for want of no substantial federal question is a decision

on the merits of the case. Hicks v. Miranda, 422 U.S. 325,

344, 95 S.Ct. 2281, 45 L.Ed.2d 223, 236 (1975). However,

this Court concluded in the Nigro case that the appeal therein

had to be dismissed for the reason that the constitutional

challenge to the Kansas City, Missouri Code of Ordinances,

§22.1 (Juris. Statement, Appendix “B”, p. 43) was not a

substantial one. Such conclusion was a decision on the mer-

its as to the questions presented therein; but it clearly, was

not meant to overrule any prior decisions of this Court. II-

lustrative of that fact is the viability of the Callan case

which this Court recognized as recently as June 30, 1976 in

the case of Ludwig v. Massachusetts, ........ plete , 96 S.Ct.

2781, 49 L.Ed.2d 732 (1976) wherein the Court noted the

Callan holding and determined that it was not necessary

that it be disturbed. Id., 96 S.Ct. at 2787, 49 L.Ed.2d at

741. When an alleged federal question rests upon a false

assumption, it affords no basis for the exercise of this

Court’s jurisdiction over a state court. Parker v. McLain,

237 U.S. 469, 35 S.Ct. 632, 59 L.Ed. 1051 (1915).

In addition, the issue opted for by the relator in State

ex rel. Cole Vv. Nigro, supra, is clearly distinguishable from

the question raised by Appellee in the case below. The Ni-

gro case presented the question of whether a defendant, re-

gardless of the nature of the crime alleged to have been com-

mitted, is entitled to a trial by jury pursuant to the Sixth

and Fourteenth Amendments to the United States Constitu-

tion and Article I, §22(a) of the Missouri Constitution. The

question presented by Appellee in City of Kansas City, Mis-

souri V. Darby, supra, was whether it is permissible in the

first instance for a judge, rather than a jury, to determine

in obscenity prosecutions the factual issues of obscenity un-

der the guidelines set forth in Miller v. California, 413 U.S.

15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The Supreme

Court of Missouri held in response to the Darby question

that it is not constitutionally permissible to allow a munici-

pal judge to restrict freedom of expression without such a

jury determination. Said holding is based on settled prin-

ciples set forth in previous decisions of this Court and of

the Missouri Supreme Court. Therefore, Appellee submits

that there is no substantial federal question present in Ap-

pellant’s second question which forms a basis for review of

the judgment of the Missouri Supreme Court by this Court.

Utley v. City of St. Petersburg, 292 U.S. 106, 109, 54 S.Ct.

593, 78 L.Ed. 1155, 1158 (1934).

The third question presented by Appellant is that the

First and Fourteenth Amendments to the United States Con-

stitution do not require a trial by jury in obscenity prosecu-

tions in the Municipal Court of Kansas City, Missouri. Ap-

pellant contends that the case of Ludwig v. Massachusetts,

supra, is determinative of said question. This Court held

in Ludwig that the Massachusetts “two-tier” court system

did not ‘violate the right to trial by jury guaranteed by the

Sixth and Fourteenth Amendments. In reaching its conclu-

sion, this Court reviewed its previous decisions holding that

a trial by jury is not required when an accused is charged

with a “petty” offense, Duncan v. Louisiana, 391 U.S. 145,

88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Baldwin v. New York,

399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970) and that

a jury of 12 is not required in criminal prosecutions, Wil-

liams V. Florida, 399 U.S. 78, 90 S.Ct. 1898, 26 L.Ed.2d 446

(1970); Apodaca Vv. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32

L.Ed.2d 184 (1972). However, Ludwig, Duncan, Baldwin,

Williams and Apodaca did not hold that it was constitu-

tionally impermissible for a state to protect First Amend-

ment freedoms by requiring that a trial by jury be made

available in the first instance in obscenity cases. A state

may choose the procedure it deems appropriate for the vin-

dication of federal rights, unless such procedure closes the

door to consideration of a claim that a federal right has

_been denied. Young v. Ragen, 337 U.S. 235, 238, 69 S.Ct.

1073, 93 L.Ed. 1333, 1336 (1949); Loftus v. Illinois, 334 U.S.

804, 68 S.Ct. 1212, 92 L.Ed. 1737 (1948). The jurisdiction

of this Court to review the judgment of the Supreme Court

of Missouri can be invoked only when a federal right which

was claimed below was denied by its decision. Parker V.

McLain, supra, 237 U.S. at 471, 59 L.Ed. at 1053 (1915).

The judgment from which the appeal herein is taken did

not deny federal rights, but rather provided for their vindi-

cation.

Appellant alleges that, by reason of the Darby decision,

it has only two alternatives with respect to the enforcement

of the Kansas City Obscenity Ordinance (Ordinance No.

39144, Juris. Statement, Appendix “B”, pp. 43-45), viz.: (1)

to cease prosecutions thereunder; or (2) to provide the right

to trial by jury in such prosecutions in the Municipal Court

of Kansas City, Missouri. Clearly, Appellant’s assessment

of its alternatives is erroneous. The city attorney for the

City of Kansas City, Missouri has adequate remedies at his

disposal to pursue the enforcement of obscenity violations

under state statutes, without resorting to municipal court

proceedings which deprive prospective defendants of due

process of law. As was stated by the Missouri Supreme

Court in Darby (Juris. Statement, Appendix “A”, p. 32), the

chief executive officer of Kansas City, or its city attorney,

is a proper party to initiate proceedings under R.S.Mo. 1969,

§563.285, which statute affords injunctive relief against the

sale, distribution or publication of obscene material, while

preserving the requisite due process protection of trial by

jury. McNary V. Carlton, supra. Furthermore, the city at-

torney is likewise a proper party in actions for search and

seizure of allegedly obscene material under the procedure

outlined in R.S.Mo. 1969, §§542.281 and 542.301. The State

of Missouri has provided adequate remedies for Appellant to

utilize for the purpose of prosecuting alleged obscenity viola-

tions occurring within the corporate confines of Kansas City,

Missouri. Only when a state deprives a person or denies him

enforcement of a right guaranteed by the Fourteenth Amend-

ment can its protection and this Court’s jurisdiction be in-

voked. Rice v. Sioux City Cemetery, 349 U.S. 70, 72, 75

S.Ct. 614, 99 L.Ed. 897, 900 (1955). Therefore, Appellee

submits that Appellant’s third question presents no substan-

tial federal question and accordingly, should be dismissed.

CONCLUSION

For the foregoing reasons, Appellee respectfully sub-

mits that the questions presented by Appellant’s jurisdic-

tional statement, standing alone, are not jurisdictionally

subject to review by this Court by way of appeal; and fur-

ther, that said questions are so insubstantial as not to need

or require further argument. Accordingly, Appellee re-

spectfully moves this Court to dismiss this appeal, or in the

alternative, to affirm the judgment entered in the case by

the Supreme Court of Missouri.

Respectfully submitted,

THOMAS W. TIERNEY

DONALD V. PIERCE, JR.

1700 City Center Square

1100 Main Street

Kansas City, Missouri 64105

Telephone: (816) 421-4334

Attorneys for Appellee