# Petition — Harmer v. Motion Picture Film Entitled "Deep Throat," > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1600%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 432 U.S. 907 ## Text IN THE Supreme Court of the United States OCTOBER TERM, 1976 No. 76. JOHN HARMER, RAYMOND P. GAUER, SALVATORE MAIORINO, Petitioners, A MOTION PICTURE FILM ENTITLED “DEEP THROAT” (35 mm. Color, English Sound Track); VAN GUARD FILMS, INC GERARD DAMIANO. a.k.a JERRY GERARD. LOUIS PERAINO a.k.a. LOU PERRY; GERARD DAMIANO FIL™M PRODUCTIONS, INC.; PHIL PARISI. AQUARIUS RELEASING CO., INC.; TERRY LEVINE: PUSSYCAT THEATRES, INC.; VINCENT MIRANDA: FRANK N. SELTZER, WALTER SELTZER; GEORGE GLASS: JAY FINEBERG; JACK CHAZAN, WALNUT PROPERTIES, INC -ERNEST RICORD; BETTE LOU LEDFORD: ROBERT MATTIAS; JIM JCHNSON; PUSSYCAT HOLLYWOOD, PUSSYCAT (HOLLYWOOD) THEATRE, DOES 1 THROUGH 11 Respondents PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF APPEAL SECOND APPELLATE DISTRICT (DIV. 1) James J. Clancy 9055 La Tuna Canyon Road Sun Valley, California 91352 Counsel for Petitioners SUBJECT INDEX Gees sn gc eo ee ee bee OO 2 QUESTIONS PRESENTED . ...+++-e«-+-+ 3-6 CONSTITUTIONAL PROVISIONS INVOLVED. . . 7 STATUTORY PROVISIONS INVOLVED ..... 7 STATEMENT OF THE CASE .....-«-e«.«- S14 STATEMENT OF FACTS. . - « « « «© « « « e15=40 REASONS FOR GRANTING THE WRIT... . .41-79 I The Failure Of The State Of California To Provide A Prampt Judicial Forum In Which To Resolve The "Hard- Core Pornography vs. Free Speech" Issue Re The Film “Deep Throat" Raises A Substantial Federal 0!) ee II The Denial Of A Prompt Judicial Forum In Which To Contest Respondents’ Right To Commercially Exhibit e The Hard-Core Film Which Is Specially Pleaded In The Complaint Herein Has Deprived Petitioners Of Fundamental Rights Under The Federal Constitution. . ..... + .64=73 ii INDEX (cont. ) Page III The “Special Injury" Concept Serves No Valid Purpose In The Present Structure Of The Law, And Should No Longer Be A Viable Expedient In The Disposition Of Public Nui- sance Abatement Cases Where There Is Present A Bone Fide Adversarial Dispute. Certainly It Has No Appli- cation Where The Plaintiffs’ Attack Is Based Upon Consti- tutional Grounds. .... . .74-80 CONCLUSION. . . . ad . . . . ° 7. 7 . * . 80 CERTIFICATE OF SERVICE. * . . . ad o . . 81 APPENDIX A Informal Memoranda, Orders and un- reported opinion of the Court of Appeal, Second Appellate District, Division 1, in Harmer, et al. v. "Deep Throat", et al., 2d CIV Ue cease eeeeense BAR APPENDIX B Unreported opinion of the Court of Appeal, Second Appellate Dis- trict, Division 3, in Harmer, et al. v. "The Devil In Miss Jones, et al., 2d CIV 43778 . . ... . «B1-B22 APPENDIX C Amendments I and X of the Consti- tution of the United States. ... cl INDEX (cont. ) iii APPENDIX D 31l(a) defining “obscene Cg APPENDIX E California Civil Code, Sections 3479 and 3480, containing the provisions defining what con- stitutes a public nuisance .... APPENDIX F California Civil Code, Sections 3493 and 3495, authorizing the abatement of a public nuisance by a "private person" by a civil action and by other means (self-help) tea + S&S ee S&S @ & SS GO APPENDIX G California Code of Civil Procedure, Section 731, authorizing the fil- ing of a civil public nuisance abatement action "by any person whose property is injuriously affected, or whose personal en- joyment is lessened by a nui- APPENDIX H California Code of Civil Procedure, Section 527 containing the provi- sions relating to the granting of El Fl preliminary injunctions. ... . .HI-H3 iv INDEX (cont. ) APPENDIX I Rule 977 of the California Rules of Court, which precludes the citation of unreported decisions as precedent ....+-+-+ee-cee-s. APPENDIX J 1911 Treaty, entitled "Agreement for the Suppression of the Circu- lation of Obscene Publications", 37 Stat. 1511-1515 . . . «© ee « « TABLE OF AUTHORITIES Art Theater Guild Inc. v. Ewing 421 U.S. 923, 44 L.Ed.2d 82, 95 S.Ct. 1649 (Apr. 21, 1975) .. Auto Equity Sales, Inc. v. Superior Court, (1962) 5/7 Cal.2d 450 ... Besig v. U.S., 208 F.2d 142 (Oct. Sie SSEBPec oe eee e eee eee Bloust v. Rizzi, 400 U.S.410, 27 L.Ed. 2d 498, 91 S.Ct. 423 (1971). ... Joseph Busch et al v. Projection Roan Theater et al., 44 Cal.App.3d lil, 118 Cal.Rptr. 428 *-_ee © © @ & 1 v. Hussey, 368 U.S. 297, 7 L.Ed.2d 299, 82 S.Ct. 327 at 301 . . . * . . . . . . . . ° J1-J5 37 TABLE OF AUTHORITIES (Cont.) Champion v. Ames 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492 (1903) ... Coleman v. Wilson, 302 A.2d 555, 561 (Mar. 21, 1974). ....24-eee-e Colorado v. Talron, 544 P.2d 372 ~~~. . « «2 ¢ ¢ 66s Dept. of Administration v. Horne ) . . . . . . . . . . . . Ex parte Houston v. Hennessey, Jr., - 534 S.W.2d 52 (Nov. 10, 1975). ... Farmer v. Behmer, 100 P.901......-. Flast v. Cohen, 392 U.S. 83, 20 L.Ed.2d 55 947, 88 S.Ct. 1942 (June 10, 1968) .78,79 Florida v. Aiuppa, 298 So.2d 391 (May 1, 1974) _ a a a a a ae Freedman v. Maryland, 380 U.S. 5l, 13 L.Ed.2d 649, 85 S.Ct. 734 (1965). Gibbons v. oqien, 9 Wheat. 1, 6 L.Ed. 3 ( 3 4) . >. . . . - . >. a . >. . . Harmer et al v. D.M.J., No. 76-111-0. .. John Harmer, Raymond P. Gauer, Salvatore Maiorino v. A Motion Picture Film Fntitled "Deep Throat" (35 mn. Color, English Sound Track) 42 59 74 et al. No. 63814... ...2.. 4 6 «15,75 2d CIV 43047, 43423, 43612... Harmer v. lyn Productions, - 36, 37 Inc., 41.4.6 6 © © © «632,33,34,37 i , 100 U.S. 483, 25 L.Ed. 628 (1879). . . .- «+s - Herman v. Arkansas, 512 S.W.2d 023 (July Re 1974) a i ae a ae ae Hoke v. U.S., 27 U.S. 308 (Feb. 24, 1913). se - 2 6.2 2.64 © @ Illinois v. Thomas, 346 N.E.2d 190 (Apr. 7, 1976) ..... e « J-R Distributors, Inc. et al v. ees Le Le, 167 (July 25, 1974) .....-. Landau v. Fording, 245 Cal.App.2d 820, 54 Cal.Rptr. 177 Get. 26, I9GG) ec ccereveces Landau v. Fording, 388 U.S. 456, 18 L.Ed.2d 1317, 87 S.Ct. 2109 (June 12, 1967) . .~-. «es Maiorino v. Super tor Court, L.A. 30231, 30 44 . — . a * * _ . * >. Mangum v. Maryland State Board of Censors, 325 A.2d 253 (Nov. 25, - Si - 46 -52,53 - 46 - 43 - dll -11,47 - 36 - 4 vii TABLE OF AUTHORITIES (Cont.) Page Mangum v. States Attorney for Baltimore City, 341 A.2d 786 (July 8, 1973) ees 8 2&# 6 8 6 46 Marks v. U.S., _U.S.__, 51 L.Ed. 260, 97 S.Ct _ (Mar. l, 1977) No. 75-708 ..... oe « « 46 McKenzie v. Butler, 398 F.Supp. . gg gg ) ere 46 Menefee v. City and County of Denver, Jan. 5, SP ecees 46 Miller v. California et al, 413 U.S. 15; 37 L. Ed. 2d 41 , 431, 93 S.Ct. 2607. . . .- . . . .* .- 58,60 Mugler v. Kansas, 123 U.S. 205. .... 65 Nebraska v. American Theater Corp., aoe Game 5, Isle) ec ec ec ee ee 46 Nestle v. City of Santa Monica, Ao. BY * 5 eee eee N.Y. v. Mature Fnterprises, Inc. 343 N.Y.S.2d 911 (Mar.1, 1973); 35 N.Y.S.2d 520, 323 N.E.2d 704 OB. By WIG e ceo ececseeceenew & Ohio ex rel. Keating v. A Motion Picture Film Entitled "Virgin", 27 Ohio St.2d 278, 272 N.E.2d, 137. > . . . . . . . o . . . . . . 13 Paris Adult Theater I v. Slaton, 413 U.S. 49, 37 L.Ed.2d 446, 93 S.Ct. 2628 (June 21, 1973) . .... . «58,63 viii TABLE OF AUTHORITIES (Cont.) People ex rel. Busch et al. v. Projection Room Theater et al, 7 Cal.3d 42, 130 Cal.Rptr.328 (June l, 1976) . . . . . . . . . . 7 People of the State of California v. Superior Court, 28 Cal.App.3d 600, 104 Cal.Rptr. 876, 882-885. . . People of the State of California v. Superior Court of Orange County, 28 Cal.App.3d, 600, 104 Cal.Rptr. S76, GA-GMB wc ecco ececaeeves People of the State of Colorado v. Stewart, 553 P.2d 74 (May 20, 1976). People v. Pussycat Theater ....+e-s. James Phalen v. The Commonvealth of Virginia, 12 L.Ed. 1030, 1033 (1850) Ratner v. Municipal Court of Los Angeles Judicial District, County of Los Angeles, 256 Cal.App.2d 925, 64 Cal.Rptr. 500, 502, 503 (Dec. 14, , ae a a a a ee ee a a Rex v. Curl, 2 Strange 789 (1727) .. Rice v. Santa Fe Elevator Corp., 33 U.S. 218, 229-230, 11 L.Ed. 1447, 67 S.Ct. 1146, 1151, 1152, TSGep ec obec eoeeee ee eee Roth-Alberts, 354 U.S. 476 1L.Ed.2d 1498, 77 S.Ct. 1304 (1957) 7 . ad . >. Roth v. U.S., 354 U.S. 476 at 484 (June 2l, 1957). -_2e © © © © @© @© @ © Page - 39,43 ; 72 2 14 >. 14 . 34 ° 70 ° 44 . 70 -59,60 -41,59 ix TABLE OF AUTHORITIES (Cont.) S.S.W. Corp. et al v. Slaton, 204 S.E.2d 155 (Feb. 18, 1974). .... Sir Charles Sedley's Case, 1 SID 168... Sierra Club v. Morton, 405 U.S. 727, By ae ee ae ee Smith v. Texas, 530 S.W. 2d 955 (Jan. 7, 1976). . . «© 2 ee we 2 © Southeastern Productions Ltd. v. Conrad, U.S. 546, 43 L.Ed.2d 448, 95 S.Ct. 1239 (Mar. 18, 1975). State ex rel. Ewing v. "Without A Stitch", 37 Ohio St.2d 95, But Bebeae GUL, BIB. eo ce eeces State of Michigan ex rel. Cahalan, 229 N.W. 2d 289 (Mar. 4, 1975)... Stone v. Mississippi, 101 U.S. 816... Teitel Film Corp. v. Cusack, 390 U.S. 139, 19L.Ed.2d 966, 88 S.Ct. a Toucey v. New York Liberty Ins. Co., 314 U.S. 118 86 L.Ed. 100, 62 S.Ct. 139 (1941). . 7. . . . . . . — . . . U.S. v. Ome Reel of Film, 360 F.Supp. 1067 (May 15, 1973)... -2 eee U.S. v. One Reel of Film, Gerard Damiano Productions, Inc. 481 F.2d zoe Ghily 16, 1973) 2 2 se ec ee Page 70 41,42 14,72 46 65, 71 42 14 46 46 x TABLE OF AUTHORITIES (Cont.) United States v. Thirty-Seven Photographs, 402 U.S. 363, 28 L.Ed.2d 822, 91 S.Ct. 1400 (1971) ..... ee. U.S. Steel Corp. v. Save Sand Key, Inc., 3 (June 12, 1974). . 7. - « . . . . U.S. v. Two Obscene Books, 99 F.Supp. 760, 763 (Sept. 17, 1951) ..... Ware v. Hylton, 3 Dall.199 (1746) .... Whiting v. Roxy Ltd.,Inc., 293 N.E.2d Se e Se! ae eee United States Code Sections 18 U.S.C. Sections: 1461 ...2e-s 1465 . . - © « © Bfap eevee se a a ae 19 U.S.C. Section 1305 . wccccces 28 U.S.C. Section 1257 (3) ...e«-s«e-e-s California Rules of Court Rule 977 . . . . 7 . . . . . . . . i . . . Califomia Statutes and Code Civil Code Sections: , ae : ee Pe ee Page ~ 42 - 76,77 » 12 - Sl - 46 - 60 - 60 - 60 - 60 - 60 . 3 - 8,74 732,35 735,38 735,38 INDEX (Cont. ) Penal Code: Chapter 7.5 .. Section 3ll .. Section 11225 . Section 11226 . Code of Civil Procedure Sections: 527 . 7 eo . o a o — a o >. * * o e ° 731 — — oe oe _ . . — — _ * Textbooks Law of Nuisances, H. G. Wood: Section 23 & 24 a >. . . . o a . o Section 643 o — a 7 e oo . . > — . o Law of Nuisance, Joyce, Section 345... Sutherland Statutory Construction, Volume Sections 23.22 . . . . , . a . 8 . . Miscellaneous Congressional Record for October 13, 1970 Pages 36474, 36478 . . .. +. «2 e«-s Public Law, 90-100, 81 Stat. 253 .... Public Law, 90-100, Sectionl...... Senate Resolution No. 477 ...+s+-+«++«e-s. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1976 No. 76- JOHN HARMER, RAYMOND P. GAUER, SALVATORE MAIORINO, Petitioners, vs. A MOTION PICTURE FILM ENTITLED "DEEP THROAT" (35 mm. Color, English Sound Track); VANGUARD FILMS, INC.; GERARD DAMIANO a.k.a. JERRY GERARD; LOUIS PERAINO a.k.a. LOU PERRY; GERARD DAMIANO FILM PRODUCTIONS, INC.; PHIL PARISI; AQUARIUS RELEASING CO., INC.; TERRY LEVINE; PUSSYCAT THEATRES, INC.; VINCENT MIRANDA; FRANK N. SELTZER; WALTER SELTZER; GEORGE GLASS; JAY FINEBERG; JACK CHAZAN; WALNUT PROPERTIES, INC.; ERNEST RICORD; BETTE LOU LEDFORD; ROBERT MATTIAS; JIM JOHNSON; PUSSYCAT HOLLYWOOD; PUSSYCAT (HOLLY- WOOD) THEATRE, DOES 1 THROUGH ll, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND APPELLATE DISTRICT (DIV. 1) The Petitioners, John Harmer, Raymond P. Gauer and Salvatore Maiorino respectfully pray that a writ of certiorari issue to review the judgment by the Court of Appeal, Second Appel- late District, Division One; which affirmed Los Angeles County Superior Court Judge David A. Thomas' orders, dated Sept. 4, 1973 and Sept. 21, 1973, denying petitioners' motion for a preliminary injunction and sustaining the general demurrer to the Complaint in the trial court below. The California Supreme Court entered an order on February 3, 1977, denying a petitim for hearing, without writing an opinion. OPINIONS BELOW A copy of Judge Thomas’ informal memorandum and order, dated Sept. 4, 1973, and his informal memorandum and order, dated September 21, 1973, is attached hereto at Appendix A--1 through A-14 A copy of the unreported opinion of the Court of Appeal, Second Appellate District, Di- vision One, filed cm December 10, 1976, is attached hereto at Appendix A-l5through A-32. A copy of the California Supreme Court order of Feb. 3, 1977, denying the petition for hearing, is attached hereto at Appendix A-33. <_“ JURISDICTION The order of the California Supreme Court denying the petition for hearing was entered on February 3, 1977. The petition for certior- ari herein was filed within 90 days of this date. This Court's jurisdiction is invoked under 28 U.S.C. section 1257(3). QUESTIONS PRESENTED 1. Whether the motion picture film "Deep Throat" is hard-core pornography under federal standards 1/ and whether a substantial federal question is raised, when a state judicial sys- tem denies a state resident access to the state court to prevent the exhibition of such film in his local community, where such film is in its fifth year of exhibitim in that conmunity at 1/ A time and motion study of the film "Deep Throat" consisting of a chronological series of still photographs, timed in their relative order of appearance, depicting the sexual conduct visually portrayed on the motion picture screen of the Pussycat Hollywood Theater (being a 4-1 photo-reduction of the time and motion study of "Deep Throat" which was introduced as Exhibit "1" on Plaintiffs' Motion for a Preliminary Injunction) was pleaded specially as Exhibit "A" to the Complaint, and a "Continuity" contain- ing photographs and the dialogue of said film was pleaded specially at Exhibit "B" to said Complaint. the time of the final decision of the highest court in the state denying appellate review of the trial court ruling. : 2. Whether the facts specifically plead- ed in the Conplaint indisputably established petitioners’ right to a preliminary injunction, and whether in denying a prompt judicial forum in which to contest the right of the defendants to publicly exhibit for profit the hard-core sexual conduct depicted in the motion picture film described in the complaint, and exhibited continuously for eight months prior to the filing of the action, the judicial system of the State of California has deprived the petitioners as citizens of the United States of: (1) due process of law and equal protection of the law, and (2) the police power which is inher- ent in municipal authority, and (3) one of the fundamental civil rights essential to the concept of well- ordered liberty; namely, the right to enjoy "common decency" and to live in a conmmmnity whose public morals, moral values, and environment are free from the illegal, de- grading, and corrupting influences of such patently hard-core pornography where it is common knowledge and the subject -5- of judicial notice that, at the time of such Court's denial of the petition for rehearing on January 4, 1977, the hard-core film "Deep Throat", which was "in custodia legis” in the within "in rem" action, was presently being ex- hibited in Los Angeles City and County, and had been exhibited throughout Los Angeles County continuously for the past five years (1973-1977), without the District Attorney of Los Angeles County or the City Attorney of the City of Los Angeles having made any effort to challenge such public nuisance in the Courtroom. a/ 3. Whether it was a denial of due process of law for the Court of Appeal below to rule in the cause herein that (a) a cause of action has not been stated, and (b) that a cause of action cannot be stated by amending the pleadings, where Division 3 of the same Court has ruled in a companion case entitled John Harmer, Raymond P. Gauer, Richard Walton v. A Motion Picture Film Entitled "The Devil in Miss Jones" et al. (unreported), in an appeal taken from the sustaining of a demurrer to a cause of action involving identical pleadings and similar subject matter, that the cause should be remanded to the trial court with instructions 2/ See footnote 4 on page 8 infra. -6- to grant plaintiffs time within which to file an amended complaint, in that it appeared to that Court that plaintiffs might amend the com plaint to state (1) a controversy and standing for a cause of action for declaratory relief, and (2) special injury sufficient to justify the maintenance of a private suit to abate a public nuisance, and where the Califormia Supreme Court has refused to grant a hearing to resolve the conflict that exists between the two opin- ions af 3/ A conflict exists between the decision of the Court of Appeal, Second Appellate District (Division 3) in John Harmer, Raymond P. Gauer, Richard Walton v. A Motion Picture Film Entitled "The Devil in Miss Jones" et al., 2d Civ 43778, decided Sept. 17, 1976 (unreported), petition for hearing denied on Nov. 12, 1976, under which the cause of action was remanded to the trial court with instructions to grant plaintiffs time within which to file an amended complaint, and the decision of the Court of Appeal, Second Ap- pellate District (Division 1) in John Harmer, Raymond P. Gauer, Salvatore Maiorino v. A Motion Picture Film Entitled "Deep Throat" et al., 2d Civ 43913, decided Dec. 10, 1976 (unreported), petition for hearing denied on Feb. 3, 1977, which held to the contrary and affirmed the trial court's ruling which sustained the general demurrer to the cause of action below. A copy of the unre- ported opinion in the “Deep Throat" case herein is attached to this Petition at Appendix "A" and a copy of the unreported opinion in "The Devil in Miss Jones" case is attached to this petition at Appendix "B". aFo CONSTITUTIONAL PROVISIONS INVOLVED The pertinent provisions of the First and Tenth Amendments to the Constitution are set forth in Appendix "Cc". STATUTORY PROVISIONS INVOLVED Chapter 7.5 of the Penal Code of California prohibits the sale, distribution, etc. of "ab- scene matter". Penal Code section 3ll(a), defining “obscene matter", is printed at Appen- dix "D". Sections 3479 and 3480 of the Civil Code of California, containing the provisions defin- ing what constitutes a civil public nuisance, are set forth at Appendix "E". Sections 3493 and 3495 of the California Civil Code, authorizing the abatement of a public nuisance by a “private person" by a civil action and by other means (self-help) is printed at Appendix "F". Section 731 of the Code of Civil Procedure of California, authorizing the filing of a civil public nuisance abatement action "by any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance" is printed at Appendix "G". Section 527 of the Code of Civil Procedure of California, containing the provisions relat- ing to the granting of preliminary injunctions, is printed at Appendix "H”". Rule 977 of the California Rules of Court, which prevents the citation of unreported deci- sions as precedent, is printed at Appendix "I". STATEMENT OF THE CASE For 345 years, petitioners have been denied access to the California Courts in their efforts, as plaintiffs in the trial court below, to abate as a public nuisance, a hard-core pornographic motion picture film ("Deep Throat") which pres- ently is, for the past five years has been, and is about to be,exhibited on the screen of a public theater in the County of the petitioners’ resi- dence.4/ During that period of time, and pending 4/ In a Petition for Rehearing filed with the Court of Appeal on Dec. 20, 1976, petitioners noted at page 3: The cause which is now before this Court does not exist in a vacuum. The Court is daily made aware of the fact that “Deep Throat" and “The Devil in Miss Jones" have been exhibited throughout Los Angeles County for the past five years and neither the District Attorney of Los Angeles County nor -o the determination of this appeal, petitioners have, on four separate occasions, attempted and been denied extraordinary relief by way of writs of mandate. See Statement of Facts at page 36 infra. the City Attorney of Los Angeles have made any effort to challenge those public nui- sances inthe Courtroom. On this point, see the copy of page 65 of the Calendar section of the Los Angeles Times newspaper for Sun- day, Dec. 19, 1976,... This advertisement, by the defendants- appellants herein, broadcasts the facts (1) that these two films are “Now in its 5th year" and (2) the defendants - appellees have expanded their operations “to our brand new Pussycat Theatre in the San Fer- nando Valley and Riverside." Appellants request this Court to take judicial notice of these facts... Appellants’ counsel does not wish to appear disrespectful to this Court, but he would not be providing Mr. Maiorino with adequate representation were he not to sug- gest to this Court on this petition for a rehearing that, were defendants - appellees to move these films to a theater within 300 feet of the residences of any one of the justices on this court, the members of this Court would be hard put to explain to their neighbors why the Courts would not afford them relief under such circumstances... Success, today, with “Deep Throat" depends not so much on “good attorneys" as it does on the willingness of good justices of this Court to permit this unfortunate phenomenon to continue without abatement. -10- In the Complaint on file below, Petitioners pleaded factual obscenity (i.e., “indecency") specially, by attaching an accurate time and mo- tion study and continuity of the film "Deep Throat" to the Complaint as exhibits and making the same a part thereof by reference (see Exhib- its "A" and "B" to the Complaint and Exhibit "1" on the Motion for Preliminary Injunction), so that an issue of law as to the sufficiency of the accusatory pleading might be placed before the trial court, which could be tested by the Defendants’ demurrer. Ratner v. Municipal Court of Los Angeles Judicial District, County of Los Angeles, 256 Cal.App. 2d 925, 64 Cal.Rptr. 500, 502, 503 (Dec. 14, 1967). The time and motion study which is incorporated into the Complaint by reference and was admitted into evidence as Exhibit "1" consists of a chronological series of photographs timed in their relative order of appearance, depicting fairly and accurately the sexual conduct visually portrayed on the motion picture screen by such film. The "Continuity" which is incorporated into the Complaint is a reproduction of the sound portion of the subject film, identifying the actors, their roles and what they say as the film progresses. Visual screen depictions are recorded by still camera alia photographs reproduced at the exact point in the dialogue where such images appear, creating a miniature screen effect. The story line is bro- ken down into its integral scenes and timed from beginning to end to identify those segments in point of time. . When such specially pleaded matters are com pared with the subject matter in the 26-minute silent motion picture film, "Un Chant d' Amour" adjudged obscene in Landau v. Fording, 245 Cal. App. 2d 820, 54 Cal.Rptr. 177 (Oct. 24, 1966), and affirmed on the merits in Landau v. Fording, 388 U.S. 456, 18 L.Ed. 2d 1317, 87 S.Ct. 2109 (June 12, 1967), it is difficult to understand how such a state of public indecency can come into existence in a short period of 10 years. Petitioners submit that one reason for the proliferation of such hard-core pornography can be found in the Reply of Commissioner Charles H. Keating, Jr., dated Aug. 16, 1970 to the First Draft of the Legal Panel Report of the Commission on Obscenity and Pornography, Appendix "B" of which contains a 40-page continuity on the lémm motion picture film, "A Report On The United States Supreme Court and Its Recent Decisions in Obscenity Cases," presented to the Senate rela- tive to the nomination of Justice Fortas. After the first showing of the lémm motion picture film oli2e@ work print to a group of about 20 U-S. Senators on Sept. 20, 1970, one of the questions asked was "What was responsible for the great change in the motion picture area?" To answer that inquiry, the following historical event 42/ was added to that documentary. "Justice Brennan applied what he called ‘national standards' to hold the film 'The Lovers' not obscene -- a motion picture which for the first time was allowed to depict scenes of sexual intercourse -- in this in- stance, in a bed and bath between the wife 4a/At the core of Justice Brennan's badly con- ceived judgment in Jacobellis (concurred in by Justice Goldberg) is his faulty premise that the motion picture industry would be satisfied with showing a little bit of sexual intercourse and a little bit of lewdness. The "runaway" porno film operation which has developed inthe succeeding 10 years has erecteda monument to that blunder. Compare the differing philosophical view of Fed- eral District Court Judge Goodman, expressed in U.S. v. Two Obscene Books 99 F.Supp 760, 763 (Sept. 17, 1951), affirmed in Besig v. U.S. 208 F.2d 142 (Oct. 23, 1953) (holding "Tropic of Can- cer" and "Tropic of Capricorn" to be obscene): "These episodes or passages are stated to constitute about 13% of the total number of pages in the book, This, it is asserted, is an insufficient quantity upon which to base a finding of obscenity. The Court must reject any such quantitative test. It is akin to the excuse of Midshipman Easy's servant girl that her illegitimate child was "such a little one”. -13- and a casual house guest. A jury and the State of Ohio, speaking through three of its courts and 12 of its Ohio Justices, however, had held otherwise". The complaint below also seeks forfeiture of said motion picture film as contraband, together with an accounting and surrender of all of the mmetary consideration received as admission price to such unlawful exhibitions, The Defendants in said action are the motion picture film, entitled "Deep Throat", being a 35mm color film with pornographic content, and the Pussycat Hollywood Theatre, 7734 Santa Monica Blvd., where that film is playing in Los Angeles County, and all persons having an in- terest in said film and said theater. The rationale for the accounting and sur- render of unlawful profit relief requested, is that the filing and service of process of the It took the State of Ohio 10 years to repair the damage brought about by Justice Brennan's sub jective judgment in Jacobellis. See Ohio ex rel Keating v. A Motion Picture Film entitled "Vixen" 27 Ohio St2d, 278, 272 NE2d, 137 as adhered to by the Ohio Supreme Court in 35 Ohio St2d, 215, 301 N.E.2d 880, (Sept. 26, 1973). By then Justice Brennan had again changed his mind. See, in par- ticular, the rebuke to Brennan's obscenity judg- ments, expressed by Justice White in his separate opinion in J=-R Distributors, Inc. et al v. Wash- ington 41 L.Ed2d 1166 and 1167 (July 25, 1974). -14- within "in rem" public nuisance abatement action placed both the film and the theater (real estate) itself "in custodia legis", see Toucey v. New York Liberty Ins. Co., 314 U.S. 118, 86 L.Ed. 100, 62 S.Ct. 139 (1941) and that the inherent power and duty of a court "to control and prevent the abuse of its process", see People of the State of California v. Superior Court of Orange County, 28 Cal. App. 3d, 600, 104 Cal.Rptr. 876, 882-885; People of the State of Colorado v. Stewart, 553 P.2d 74 (May 20, 1976) requires a surrender of the unlawful receipts so as to prevent an injus- tice. The trial court should have stopped the unlawful exhibitions in 1973 and the appellees should not be permitted to gain an unlawful ad- vantage thereby. See State ex rel. Ewing v. "Without A Stitch", 37 Ohio St. 2d 95, 307 N.E. 2d 911, 918, appeal dismissed for want of a sub- stantial federal question 421 U.S. 923, 95 S.Ct. 1649, 44 L.Ed. 2d 82. If this Court allows the judgment of the Court of Appeal to stand, it will thereby, sub silentio, condone an illegal and outrageous business, and prevent the application of fundamental equitable principles which are sorely needed as remedies in the suppression of unlawful obscenity nuisances. STATEMENT OF FACTS On August 3, 1973, Petitiomers commenced a civil action in the Superior Court of Los Angeles County with the filing of the following papers: 1. A Camplaint in Equity to Abate Public Nuisances, for Declaratory Judgments and For- feitures, being John Harmer, Raymond P. Gauer, Salvatore Maiorino vs. A Motion Picture Film En- titled "Deep Throat" (35 nm. Color, English Sound Track) et al., No. 63814 (See Clerk's Transcript, hereinafter designated C.T., at pp. 1-78). 2. Points and Authorities in Support of Complaint in Equity to Abate Public Nuisances, Declare Forfeitures, and For Declaratory Judg- ments (C.T. 79210). 3. Motion For A Preliminary Injunction (Temporary Writ of Injunction) to Abate a Public and Private Nuisance, and For a Declaration of Forfeiture (C.T. 211-213); am 4. Notice of Motion For a Preliminary In- junction with a trial date of August 28, 1973 at 09:00 A.M., in Department 85 of said Court (C.T. 214-215). In said civil action petitioners, as residents and real property owners in Los Angeles County sought to abate as a public nuisance the Pussy- a16- cat Hollywood Theatre, 7734 Santa Monica Blvd., in Los Angeles County wherein the hard-core por- nographic film "Deep Throat" had been exhibited continuously since on or about Nov. 30, 1972 and the positive motion picture print used by the de- fendant operators of said theatre as the means of exhibiting said motion picture film at that theatre. A time and motion study of the film "Deep Throat" consisting of a chronological series of still photographs, timed in their rela- tive order of appearance, depicting the sexual conduct visually portrayed on the motion picture screen of the Pussycat Hollywood Theatre was pleaded specially at Exhibit "A" to said Complaint, and a "Continuity" containing photographs and the dialogue of said film was pleaded specially at Exhibit "B" to said Complaint. A summons was issued and service of process was commenced as to all defendants named in said action, On August 15, 1973, a copy of the Summons, Complaint, Points and Authorities, Motion for Preliminary Injunction and Notice of Motion For Preliminary Injunction were served personally q@m the following Defendants: Vincent Miranda, Wal- nut Properties, Inc., Pussycat Hollywood, Pussy- cat Theatres, Inc. On August 17, 1973, a copy of the Summons, Complaint, Points and Authorities, ——« o] Jo Motion For Preliminary Injunction and Notice of Motion For A Preliminary Injunction were served personally on Defendant Jack Chazan, alleged to be the owner of the real property upon which the Pussycat Hollywood Theatre is located. On Au- gust 24, 1973, Defendant Pussycat Theatres, Inc., appeared by attorney David M. Brown and filed a Memorandum of Points and Authorities in Opposi- tion to Motion For Preliminary Injunction (C.T. 216-257). ' Qn August 28, 1973 and August 29, 1973, pe- titioners' Motion for a Preliminary Injunction came on for a hearing in Department 85 of the Los Angeles Superior Court before the Honorable David A. Thomas, at which David M. Brown appeared as counsel for Defendant Pussycat Theatres, Inc. At said hearing petitioners moved that the Con- plaint on file with the Court be admitted into evidence and the same was received into evidence less Exhibit "A" (Time and Motion Study) and Exhibit "B" (Continuity). (See Reporter's Trans- cript, referred to herein "R.T." at pages 10-12). On August 28, 1973, Kenneth Miles was called as a witness for petitioners (R.T. 52-55) and stated that he had seen the motion picture film “Deep Throat" at the Pussycat Theatre in Holly- wood on two occasions, August 3, 1973, and Au- gust 16, 1973; that on August 3rd he participated -18- in the service of process and on that occasion entered the theatre and served a subpoena on the projectionist, Alex Collantes, and a summons m another person who identified himself as the manager; that on that occasion he viewed the program, being the motion picture film "Deep Throat", a short cartoon, coming attractions and a short subject entitled "Good Morning", which lasted about one and one-half to two hours; that previous to August 16, 1973, he had made arrange- ments for a County Marshal to serve a subpoena duces tecum on the manager and on the projection- ist on August 16; that around noon on August 16, when the theatre opened, he observed the Marshal knock on the door, being allowed to enter by a person who said he was the manager, and observed the Marshal to serve a subpoena on the same indi- vidual he had previously served, who claimed to be the projectionist, and on the person who had admitted the Marshal to the theatre; that there- after he remained in the main part of the theatre for one and one-half to two hours and again watched "Deep Throat" and the others. A stipu- lation was thereafter reached between counsel as to what the balance of Miles' testimony would be (R.T. 56), namely: That the photographs on pages 1-16 of Plaintiffs’ "1" constituted a fair and accurate representation of photographs he saw EO rr Herter eres -19- screened at the Pussycat (Hollywood) on August 3 and 16, 1973, and that the sound track trans- cription in Exhibit "B" to the Complaint was a fair and accurate representation of the language and sound appearing on the sound track of the program insofar as that was reproducible from a cassette recording of the sam. A stipulation was reached as to what the testimony of Petitioers' attorney (Mr. Clancy) would be (R.T. 56), namely: That he supervised the preparation of the Time-Motion Study (Exhib- it "A" to Complaint) and the Continuity (Exhibit "B" to the Complaint); that he had previously seen the film "Deep Throat" in Washington, D.C., and had made a Time—Motion Study of that film at that time; that the making of the Time—Motion Study was supervised by him; that the Time-Motion Study was made using a Craig (2605) cassette tape recorder and a Bell & Howell 200 Series motion picture camera which also took single still photographs; that the camera is mounted in a sound-proof box with two microphones, one of which records the clicks on the camera when still pictures are taken, and the other which records the sound track on the screen; that both sounds are fed into a cassette tape recorder and recorded thereon; that the Bell & Howell camera uses a cartridge of 50 foot, No. 2475, recording -20- -2l- film, ASA 1000, which takes 40 still photographs per foot or a total of 2000 pictures per car- tridge and that the photographs were taken in the following manner; that an attempt was made to take at least one picture of every scene and to take still photos with no greater intervals than eight seconds; that on June 21, 1973, he sent Mr. Morelli, his assistant, to the Pussycat (Hollywood) Theatre with a loaded camera and two recorders and two cassettes; that Mr. Morelli returned and gave him the negatives in the car- tridge and the sound track; that he had the negative films developed and printed as enlarged 70 mm. prints which appear on Plaintiffs’ "1" as positive prints; that the Time-Motion Study which he had made of "Deep Throat” in Washington, D.C., is in substantial agreement with the one made at the Hollywood Pussycat and that he checked the recorded in the Pussycat (Hollywood) Theatre on June 21, 1973, was played back and re-recorded on a second cassette with the timing operations superimposed thereon; that when such playback and re-recording was commenced, a stop watch was started and when each camera click was heard, the stop watch timing in seconds was called out audibly so that the second cassette tape record- ed the sound track from the film, the click from the camera, and the exact timing in seconds as read on the stop watch; that upon completion of the timing operation, the second cassette tape was replayed and the numerical sequence and timing for each of the 1117 clicks wre tabulated on a form and thereafter transferred onto the labels which were superimposed as legends on each of the pictures in Plaintiffs’ "1", which were mounted on 16 pages, comprising Plaintiffs' timing for the latter for accuracy; that the "1"; that in an eight second interval between photographs, numbered 1 thru 1117, appear in st. 11 photographs with a motion picture camera sequential order on one roll of negative film speed of 16 frames per second, 16 times 8 single projections would appear on the theatre screen, appearing on Plaintiffs' "1" were checked with two of which were photographed; that the film and are in the same order as the photographs on "Deep Throat" as shown was in color whereas the the negative film; that the timing was accom time-motion photographs were black and white. plished as follows: The cassette tape recording, e\e The Time-Motion Study was offered by peti- containing the sound track of the Pussycat tioners' counsel as primary evidence which was (Hollywood) program and the 1117 camera clicks not subject to the best evidence rule, being a and the order of the 1117 positive 70 m. prints e\@ ~~ timed depiction of the sexual scenes appearing on the screen which offered something in addition to what the film itself would present (R.T. 64). Thereafter, arguments were had as to the accu- racy of portrayal of sexual conduct in relation to the totality of the motion picture film. (R.T. 60-64) Plaintiffs’ "1" was received in evidence, subject to reconsideration by the Court on the “best evidence" objection. (R.T. 66) Salvatori Maiorino, Plaintiff in the action, was called as a witness for Plaintiffs (R.T. 66) and testified as follows: That the Pussycat (Holly- wood) Theatre was located on the south side of Santa Monica Blvd., about 50 feet west of the in- tersection of Santa Monica Blvd., and Spaulding Avenue; that he presently owns and resides on the property known as 1039 North Spaulding Avenue, located 350 feet south of Santa Monica Blvd.; (R.T. 67) that he has lived at that address since September of 1955; (R.T. 68) that when he pur- chased the residence in 1955 for $19,700 he had selected the neighborhood as one which was ac- ceptable to a family environment; (R.T. 68) that at that time the theatre now known as the Holly- wood Pussycat was a nice neighborhood theatre; (R.T. 69) that he had not seen the motion picture film "Deep Throat" but had seen the photographic representations in Fxhibit "A" to the Complaint I -23- and was personally offended and embarrassed by the presence and playing of "Deep Throat” at the Pussycat (Hollywood) Theatre; (R.T. 70) that the change was subtle; (R.T. 71) that first came the establishments where people would come in and © photograph nude women and rent cameras.or filn, then came places where one could view porno- graphic-type films and then the massage parlor; that the most recent change was the so-called "Sexual Intercourse Center" adjacent to the Puss 'N Boots on the comer of Santa Monica Blvd. and Spaulding Avenue, which began advertising its business in Jume of 1973 with signs reading, "Sexual Intercourse Center” and "Have Intercourse With A Live Girl" and "Girls and Waterbeds"; (R.T. 72) that other similar businesses appeared in the immediate neighborhood subsequent to the first showing in November of 1972, such as the one on Santa Monica Blvd. between Ogden and Genesee, which used to be a bookstore; that ad- vertisements and news accounts appeared on radio and TV concerning the exhibition of “Deep Throat" at the Pussycat (Hollywood) Theatre; that he heard a broadcast of an incident at the Inter- course Center regarding an arrest for prostitu- tion which embarrassed him. Objections to the questions: "Do you regard the reporting of such an incident in your neighborhood as a matter of =36= public scandal" and "Do you regard the exhibition of the motion picture film 'Deep Throat’ as a public nuisance insofar as you are concerned" were sustained on the ground that they were lead- ing questions. (R.T. 76) He stated that his family consisted of his wife and two minor boys, ages 12 and 16, and that he was on the verge of selling his property until this action brought some hope. (R.T. 77). Qn cross-examination Plaintiff Maiorino stated he had not seen the film "Deep Throat” at the Hollywood Pussycat Theatre; (R.T. 78) that he observed persons outside waiting to get in; that he observed couples, men and women, enter- ing the theatre during the exhibition of “Deep Throat"; (R.T. 78-79) that the only “new” busi- ness he knew of were the two mentioned above; that the "Sexual Intercourse Center" was not the "Sexual Catharsis Center", the latter being on Santa Monica Blvd.; that the sign “Sexual Inter- course Center" referred to was painted over the day after an arrest was made for prostitution; (R.T. 79-80) that he has never been inside the “Sexual Intercourse Center" except in 1957 or 1958 when that property was part of a restaurant called "The Golden Lion"; that the change in the character of the neighborhood began about six to seven years ago with the introduction of =~ = businesses such as massage parlors, model studios, places selling sexually oriented books ami films, theaters exhibiting pornographic films, and busi- nesses uSing as outside advertising, pictures he thought were and are pornographic; that in the last six to nine months, (R.T. 82) the change has doubled its pace; that other changes took place since "Deep Throat" started showing, such as a woman living across the street in an apart- ment being pursued by a man in a car; (R.T. 83) that he had discussed the matter of deteriora- tion of the neighborhood with the O'Sheas and Mrs. Epstein, who owned the property next to him and behind the theatre; who had expressed a de- sire to move; (R.T. 84) that people were cat- calling down the street during the 15 minute intermission between successive two hour showings; (R.T. 90) that during that period his children hear the comments on the movie being made by the patrons, male and female, and know what's going on; that such language could be heard by his children from inside his house; (R.T. 84) that he objects to the type of language and the type of remarks and the use of language which is un- fit; (R.T. 89) that he reported the use of such language to the Sheriff's Department, but had not observed any arrest for disturbing the peace or use of abusive language because he didn't ~26- think anyone would come out of their house to quell any type of language; (R.T. 90) that he had made inquiries of the possibility of a citi- zen's arrest; (R.T. 90) that he had tried to quell the language but that it just resulted in more cat-calling and shouting. (R.T. 90) On re-direct Maiorino stated that when he arrived in the area in 1955 the Puss 'N Boots was a restaurant called The Golden Lion (R.T. 91) and that the Sexual Intercourse Center was the kitchen for the restaurant; (R.T. 92) that in 1955 the place occupied by the Sexual Cathar- sis Center used to be a pub; that it now attracts a different type of clientele by their advertis- ing "Sexual Catharsis." (R.T. 92) The matter was adjourned at 2:45 P.M, On Wednesday, August 29, 1973, the re-cross- examination was resumed. Mr. Maiorino testified that he had become a Plaintiff after Mr. Gauer called him and asked if he would want to become a party to this action (R.T. 99). Qn re-direct, Mr. Maiorino identified four photographs comprising Plaintiffs' Exhibit "2". He identified the first photograph as the "Sex- ual Intercourse Center", located about 250 feet fram his hame and about 60 feet from the inter- section of Spaulding and Santa Monica, (R.T. 100) and stated that such business began on either a2] June 15th or June 22nd, 1973, which was the day the signs "Sexual Intercourse Center", "Have In- tercourse With A Live Girl", and "Waterbeds Live Girls" went up. (R.T. 100). He identified the SEXUAL “"” ‘WAtE INTERCOURSE CENTER __ second photograph "as the southwest corner of Santa Monica and Spaulding with the Pussycat Theater on Santa Monica Blvd. and the Puss 'N Boots next to the theatre and the Sexual Inter- course Center next to the Puss 'N Boots. (R.T. 101). He identified the marquee on the Pussycat Theatre as "Hundred Percent Gulp - Deep Throat” and stated that the sign went up when the show -_"s started and is still up there now. (R.T. 101). He stated that the sign was offensive to him; that "it implies - I don't know how to describe it - I guess oral copulation or oral sodomy - « - SO there is nothing else you can define what this Hundred Percent Gulp ‘Deep Throat’ - what they imply. I don't think it leaves any- thing to anyone's imagination... ." (R.T. 102). He identified the third photograph as a view of the intersection of Spaulding and Santa Monica showing the Pussycat Theatre, the Puss ; ‘ 4 -29- 'N Boots and the place which formerly was a pub serving beer but which no mre than six months ago became the Sexual Catharsis Center. (R.T. 102). er ere | 7 a Sehr: oe wt P () \y 8 L co [J | a | J | LJ =e | Kama Sutera CO Pyzontstay’ a ae ae 4 —— Ts err gg 7. oe Lt ae yr | a li * (gig L ia dhe a, saewe pf oo i &@ 9) Gime | er. aoe 7% 7 bh . ee VEOCOD Mah <-E oe — Se bookstore at the intersection of Santa Monica and Ogden, referred to by him on direct, which in May of 1973 became known as "Kama Sutra - Phrontistory." (R.T. 103). Qn further re-cross he stated he had never been inside the "Sexual Catharsis Center" or the Kama Sutra business; (R.T. 104) that his knowledge of that business was derived from the sign "Exotic Girls" and the girls standing outside very scantily dressed in conversations with passerbys. That he wouldn't be able to answer truthfully whether "Deep Throat" or the massage parlor started first because the timing was so close; (R.T. 105) that before the film "Deep Throat" appeared, model studios and bookstores selling sexually oriented books and/or magazines and film arcades showing sex- ually oriented films existed in the neighbor- hood before "Deep Throat" began showing, but not before the Pussycat Theatre came and started their advertisement and drew that type of clientele. (R.T. 106). At the conclusion of Mr. Maiorino's testimony shea ine CI an Gib ah @e wtite. Mn We eile Defendants' Motion to Strike his testimony (R.T. 107) was denied (R.T. 112) and Exhibit 2, parts 1, 2, 3 and 4 were admitted into evidence. (R.T. 113). Plaintiffs offered in evidence the film "Deep Throat", under the subpoena duces tecum for a viewing by the Court, (R.T. 113) or in absence thereof, the admission into evidence of Exhibit "B" to the Complaint - the Continuity (R.T. 113). An objection to the introduction of the same on. the grounds of the best evidence was taken under submission. (R.T. 113). Defense counsel Brown asked the Court for leave to intro- duce evidence on nonobscenity if the Court got to that issue, and the same was granted, the Court saying: "This does not discount the argu- ment of the plaintiffs that from the evidence heretofore submitted, this may be deemed obscene, per se, for it is possible that will be a ruling » «+ ." “If it gets down to, Mr. Brown, the factual issue of obscenity beyond obscenity, per se, I will permit you to present evidence." (R. T. 115). Defendants’ objections to hearsay state- ments in the Complaint and Motion to Strike Hear- say Statements in the Complaint on the ground that the Complaint was verified only by an attor- ney were overruled as untimely. (R.T. 140). Arguments were had on the matter and both parties rested. (R.T. 149). @32= On August 31, 1973, Defendants Pussycat Theatres, Inc., Vincent Miranda, Frank N. Seltzer, Walter Seltzer, George Glass, Jay Fineberg, Jack Chazan, Walnut Properties, Inc., Bette Lou Ledford, Robert Mattias, Jim Johnson, Pussy- cat Hollywood and Pussycat Hollywood Theatre, filed a demurrer with the Court alleging, inter alia, that each of the two causes of action of said Complaint failed to state facts suffi- cient to constitute a cause of action and noticed the same for a hearing on September 14, 1973. (C.T. 290-294). Qn September 4, 1973, Judge David A. Thomas, speaking for the Superior Court in a minute order (C.T. 303) and informal memorandum (C.T. 298-302), denied Plaintiffs’ Petition for a Preliminary Injunction. In such memorandum, Judge Thomas ruled that Harmer v. Tonylyn Productions, Inc., 23 Cal.App. 3d 941, "precludes pendente lite relief upon grounds entirely preliminary to the issue of whether the film "Deep Throat' is obscene under Penal Code Section 311" and made no determination on that issue. (C.T. 299). As to the first cause of action brought under Civil Code Sections 3479, 3480 and 3493 to enforce the right of a private citizen to abate a public nuisance on a showing of a special o33< injury to the plaintiff, Judge Thomas ruled that "In Tonylyn, the Court held that the showing of a film in a closed theater, viewed only by those patrons who paid the admission price and entered the theater, did not constitute a public nuisance;" (C.T. 300) that "while it would be_ constitutional for a California court to hold that an obscene film shown in a closed theater is a public nuisance, the California courts may, if they choose, hold otherwise, and the California Appellate Court, in Tonylyn clearly held, as set Out above, that said showing in a closed theater does not constitute a public nuisance under Cali- fornia law... ;" (C.T. 300-301) that "The testimony of Mr. Maiorino neither established evidence in support of the allegations of special injury pleaded in the Complaint (see Complaint, Para. 23) nor otherwise established that special injury which might form the basis of maintaining this action for public nuisance . .. ;" (C.T. 301) and that "Nestle v. City of Santa Monica (1972), 6 Cal. 2d 920, had not changed the law concerning standing to sue for abatement of a public nuisance." (C.T. 301). As to the second cause of action brought under Penal Code Section 11226, et seq., known as the Red Light Abatement Act a.k.a. Abatement of Unlawful Activities, Judge David A. Thomas -34- ruled that "In Tonylyn, the Court construed Penal Code Section 11225 to exclude . . ." "“de- Pictions in closed theaters of (lewi shows and exhibitions) by still or motion picture. . -" (C.T. 301) and that "Tonylyn declares that the Red Light Abatement Act does not include the exhibition of a motion picture, even if it is obscene."2/ (C.T. 301) Judge Thomas stated that "The Court also has read the Memorandum of Decision of Judge Bruno in People v. Pussycat Theater, Superior Court of Santa Clara County #290747, and while it expresses admiratim for Judge Bruno and much of what he says in said Memorandum, it cannot agree with his state- ment that "The statement in Harmer v. Tonylyn Products (sic) Inc., (cites omitted) that the law cannot apply to films must be held to be an inadvertent or inappropriate statement .. .;" (C.T. 302) that "Although this Court has an intellectual problem with Tonylyn, it cannot disregard or refuse to follow Tonylyn, "citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450 (C.T. .302). A copy of Judge Bruno's Memorandum of Decision in People v. Pussycat Theater, supra, applying the Red Light Abatement Act to a theater which was showing 5/ The Petition herein does not challenge the trial court's ruling on the second cause of action under Penal Code Section 11226 et seq. -35- "Deep Throat" is attached as Appendix F to Appel- lants' Opening Brief. On September 14, 1973, the demurrer of Defen- dants Pussycat Theatres, Inc., Vincent Miranda, Frank N. Seltzer, Walter Seltzer, George Glass, Jay Fineberg, Jack Chazan, Walnut Properties, Inc., Bette Lou Ledford, Robert Mattias, Jim Johnson, Pussycat Hollywood and Pussycat Hollywood Theatre came on for a hearing in Department 85 of the Los Angeles Superior Court before the Honorable David A. Thomas. Arguments were had thereon and the matter as to whether Plaintiffs had stated a cause of action to abate a public nuisance upon a showing of "special injury" under Civil Code Sections 3479, 3480 and 3493 and whether a cause of action had been stated under Penal Code Section 11225 were taken under submission. On September 21, 1973, by order (C.T. 306) and informal memorandum Judge David A. Thomas sustained the demurrer to the Complaint and ruled as follows: "The Complaint clearly attempts to allege a public nuisance under Civil Code Section 3480 and violation of the ‘Red Light Abatement Act' (P.C. Section 11225), and clearly cannot state a cause of action on those theories.” (C.T. 304). On September 20, 1973, Appellants filed a notice of appeal from the aforementioned ruling a36= and a notice to prepare the Clerk's transcript. A petition for writ of mandate entitled, John Harmer, Raymond P. Gauer, Salvatore Maiorino v. Superior Court of the State of California for the County of Los Angeles, 2 Civ 43047, was filed with the Court of Appeal, Second Appel- late District, on October 12, 1973, and was denied by that Court (Division Four) without opinion on October 18, 1973. A petition for hearing was denied by the California Supreme Court on November 21, 1973, with Justices Burke and Clark dissenting. 2/ On December 17, 1973, Petitioner Maiorino herein filed an original petition for writ of mandate in the California Supreme Court, en- titled, Maiorino v. Superior Court, L.A. No. 30231 and, on the same date, that Court trans- ferred such matter to the Court of Appeal, Second District. mn January 4, 1974, Division Four of the Court of Appeal denied said petition in Maiorino v. Superior Court, 2 Civ 43423.2/ On January 22, 1974, Petitioner Maiorino filed a second original petition for writ of mandate in the California Supreme Court, entitled Maio- rino v. Superior Court, L.A. No. 30244, and 6/ A certified copy of the records in 2d Civ 43047, 43423, and 43612 is being lodged with the Clerk of this Court, concurrently with this Petition. aSPe on the same date, that Court transferred the second original petition to the Court of Appeal, Second District. On January 29, 1974, the Court of Appeal denied said second petition in Maiorino v. Superior Court, 2 Civ 43612:/ a petition for hearing on the denial of said second original petition, entitled Third Petition for Original Writ of Mandate and/or, Alternately, Petition for Hearing on Second Petition by Court of Appeal, Second District, was filed on February 8, 1974, . and was denied by the California Supreme Court on February 27, 1974, with Justices Burke and Clark dissenting. &/ ; Petitioners herein filed a Notice of Appeal and Notice to Prepare the Clerk's Transcript on September 28, 1973, and the Record on Appeal was filed on March 21, 1974. Appellants' Qpening Brief was filed on April 22, 1974, and Respon- dents’ Brief was filed on or about September 10, 1974. On December 27, 1974, the Court of Appeal, Second District, Division 3, filed its decision in Joseph Busch et al. v. Projection Room Theatre et al., 44 Cal.App. 3d 111, 118 Cal.Rptr. 428, holding, contrary to the law stated in Harmer et al. v. Tonylyn Productions, Inc., supra, that the continuous exhibition in a theater of obscene motion pictures can constitute a public nuisance -38- as an activity which is “indecent or offensive to the senses . . . so as to interfere with the comfortable enjoyment of life or property" and which "affects at the same time an entire community or neighborhood, or any considerable number of persons... .". On February 3, 1975, Division 1 ordered this appeal on calendar for oral argument and the same were held on February 25, 1975. On March 27, 1975, Division 1 filed its opinion affirming the trial court's orders, which had sustained the general demurrer to the second cause of action of Plaintiffs Harmer, Gauer and Maiorino (based upon the Red Light Abatement Law) and to the first cause of action of Plaintiffs Harmer and Gauer (based upon the right of a private citizen to enjoin and abate a public nuisance under Civil Code sections 3480 and 3493) and had denied Plaintiffs' motion for a preliminary injunction under both causes of action, including Maiorino's motion for a preliminary injunction under his first cause of action on the singular ground that Maiorino's first cause of action failed to state a claim as to which a preliminary injunction could be granted. On May 5, 1975, petitioners herein filed a Petition for Hearing in the California Supreme -39- Court and on May 22, 1975 that Court granted a hearing in such matter. On June 1, 1976, the California Supreme Court filed its opinions in People ex rel. Busch et al. v. Projection Room Theater et al., 17 Cal. 3d 42, 130 Cal.Rptr. 328 (June 1, 1976) and such decision became final on or about August 1, 1976. Qn August 12, 1976, that Court retransferred this appeal back to the Court of Appeal, Second Dis- trict, Division One for reconsideration in light of Busch, supra. On October 8, 1976, petitioners were inform ed by telephone by the Clerk of the Court of Ap- peal (Division One) that a supplementary brief would be received by the Court, and that such was to be filed on or before October 25, 1976. On October 25, 1976, petitioners filed and served Appellants' Supplementary Brief. On November 23, 1976, the Court of Appeal | (Division One) heard reargument, and on December 10 filed its opinion affirming the orders of the Trial Court. A copy of said opinion is attached to this Petition at Appendix "B". Qn December 20, 1976, petitioners filed a Petition for Rehearing in the Court of Appeal. In the Petition for Rehearing at Page 3, peti- tioners asked the Court of Appeals to take judi- cial notice of (1) Page 65 of the Calendar Section -40- of the Los Angeles Times newspaper containing the adult movie advertisement for Sunday, Decem- ber 19, 1976, containing the Pussycat Theatre's advertisement for "Deep Throat" and broadcasting that it is "Now in its 5th year" and is expand- ing its operations to the San Fernando Valley and Riverside; (2) Page 54 of the Los Angeles Times Calendar section containing a news report on the "Decline and Stabilization of the Adult Film", the full swing to hard-core, and state- ments of the "surefire" formla for what will work today", attributed to Appellee Miranda and (3) the fact that neither the District Attor- ney of Los Angeles County nor the City Attorney of the City of Los Angeles have made any effort to challenge those public nuisances in the Court- room; and to grant a rehearing on the questions presented in the appeal. On January 4, 1977 the petition for rehear- ing was denied. a6i- ARGUMENT POINT I THE FAILURE OF THE STATE OF CALIFORNIA TO PROVIDE A PROMPT JUDICIAL FORUM IN WHICH TO RESOLVE THE "HARD-CORE PORNO- GRAPHY VS. FREE SPEECH" ISSUE RE THE FILM "DEEP THROAT" RAISES A SUBSTANTIAL FEDERAL QUESTION. In the 18 terms of Court since Roth-Alberts, 354 U.S. 476, 1 L. Ed.2d 1498, 77 S.Ct. 1304 (1957), was decided in June of 1957, the dockets and de- cisions of this Court have chronicled a major governmental struggle over the public morals of this nation (as they relate to human sexuality), between the constitutional powers of the govern- ment as a whole (State) and the people, embodied in the Tenth Amendment (Police Power), and the countervailing rights of the individual set forth in the First Amendment. In the pattern which has evolved from those decisions, this Court has fashioned a procedural requirement to maintain the balance. As recently as the 1974 October Term, Justice Blackmun, writing the majority opinion for five justices, in Southeastern Productions Ltd. v. Conrad, 420 U.S. 546, 43 -42- L.Ed.2d 448, 95 S.Ct.1239 (March 18, 1975) ruled that minimal procedural safeguards had not been provided to the individual, in a case where government (the City of Chattanooga) sought to deny the use of a municipal auditorium for presentation of the theatrical production "Hair". See also: Freedman v. Maryland, 380 U.S. 5l, 13 L.Ed.2d 649, 85 S.Ct. 734 (1965); United States v. Thirty-Seven Photographs, 402 U.S. 363, 28 L.Ed.2d 822, 91 S.Ct. 1400 (1971); Blount v. Rizzi, 400 U.S. 410, 27 L.Ed.2d 498, 91 S.Ct. 423 (1971); Teitel Film Corp. v. Cusack, 390 U.S. 139, 19 L.Ed.2d 966, 88 S.Ct. 754 (1968). The central theme in all of these decisions has been, as stated by Justice Blackmun in South- eastern Productions Ltd., supra, at page 460, that: "a prompt final judicial determination must be assured”. The petition herein asserts that procedural requirement as a federal right - the right to an immediate hearing and determination.”/ where a — 7/ Petitioners claim a civil right as individuals to live in an environment which is free from the corrupting influences of hard-core pornography. The judicial system in California, by its refusal to provide a prompt forum for the issues herein presented, has effectively imposed a “prior re- straint" on the Community's right to “speak out” in this regard, and the right of individual mem- v8 =43- such federal procedural safeguards do not exist by statute, the State Court is required to fashion the same through judicial construction and inter- pretation. See People ex rel. Busch etc., et al. v. Projection Room Theater, et al., 17 Cal. 3d 42, 130 Cal.Rptr. 328 at 338. Petitioners contend that the action of the Trial Court sustaining the demurrer and preclud- ing immediate relief on petitioners’ application for extraordinary relief and a prompt judicial forum to determine the "Hard-core pornography vs. Free Speech" issue re the film "Deep Throat” raises a substantial federal question in that the evidence which the petitioners offered in support of their motion, and which was uncontroverted, showed: (1) that under Near, supra, properly interpreted, "free speech" was not a relevant issue, and (2) the existence of a nuisance per bers close enough to the public nuisance to be affected, to "speak out" when the Community's law enforcement officials fail and neglect to do so. See the opinion of the Montana Supreme Court in U.S. Manufacturing and Distributing Corp. v. City of Great Falls, 546 P. 2d 522 at p. 526 (February 25, 1976), which suggests that a local community has an inherent right to halt the type of conduct specifically pleaded in the Complaint below. Is the right to an immediate hearing a one-way Street?. Is the right of an individual to speak out against hard-core pornography of a lesser order than the right to speak out for it (by exhibiting the same) ? -44- se. Reasonable minds would not differ and all would hold that such evidence showed the film "Deep Throat" to be "obscene per se" and a public nuisance as a matter of law. A. The Film “Deep Throat" Is Obscene As A Matter Of Law. In the Complaint on file below, Appellants have pleaded factual obscenity specially, and by attaching an accurate time and motion study and continuity of the film "Deep Throat" to the Cam plaint as exhibits and making the same a part thereof by reference. See Exhibits "A" and "B" to the Complaint and Exhibit "1" on the Motion for Preliminary Injunction. See also the explicit sexual conduct alleged in the complaint at pp. 13-17 (C.T. 13-17). Such matters were pleaded specially so that an issue of law as to the suffi- ciency of the accusatory pleading might be placed before the trial court, which could be tested by the Defendants’ demurrer. Ratner v. Municipal Court of Los Angeles Judicial District, County of Los Angeles, 256 Cal.App. 2d 925, 64 Cal.Rptr. 500, 502, 503 (Dec. 14, 1967). The time and motion study which is incorporated into the Com plaint by reference and was admitted into evidence as Exhibit "1" consists of a chronological series Ps Qos rene od afGea of photographs timed in their relative order of appearance, depicting fairly and accurately the sexual conduct visually portrayed on the motion picture screen by such film. The "Continuity" which is incorporated into the Complaint is an accurate reproduction of the sound portion of the subject film, identifying the actors, their roles and what they say as the film progresses. Visual screen depictions are recorded by still camera photographs reproducted at the exact point in the dialogue where such images appear, creating a miniature screen effect. The story line is broken down into its integral scenes and timed from be- ginning to end to identify those segments in point of time. Plaintiffs’ Exhibits 1 and 2, filed with the trial court on August 28, 1973, and admitted in evidence in the hearing on Plaintiffs' Motion for a Preliminary Injunction (R.T. at pp. 50-66 and 113-145) establish the film "Deep Throat" to be a film which is obscene per se. Reasonable minds would not differ and could come to but one con- clusion, i.e., that the film was hard-ore porno- graphy. See also: N.Y. v. Mature Enterprises, Inc., 343 N.Y.S. 2d 911 (Mar. 1, 1973) affd 352 N.Y.S. 2d 346 (Jan. 14, 1974), affd as modified N.Y. v. Mature Enterprises, Inc., 35 N.Y.S. 2d 520, 323 N.E.2d 704 (Dec. 20, 1974); Whiting v. -46- Roxy Ltd., Inc., 293 N.E.2d 889, 891 (Mar. 12, 1973); Coleman v. Wilson, 302 A.2d 555, 561 (Mar. 21, 1974); U.S. v. One Reel of Film, 360 F.Supp. 1067 (May 15, 1973) affd in U.S. v. One Reel of Film, Gerard Damiano Productions, Inc., 481 F.2d 206 (July 16, 1973); Florida v. Aiuppa, 298 So.2d 391, (May 1, 1974); Herman v. Arkansas, 512 S.W. 2d 923 (July 1, 1974); Mangum v. Md. State Bd. of Censors, 328 A.2d 283 (Nov. 25, 1974) affd in Mangum v. States Atty. for Balt. City, 341 A.2d 786 (July 8, 1973); State of Michigan ex rel. Cahalan, 229 N.W.2d 389 (Mar. 4, 1975); Nebraska v. American Theater Corp., 230 N.W.2d 209 (June 5, 1975); McKenzie v. Butler, 398 F.Supp. 1319 (July 24, 1975); Ex parte Houston v. Hennessey, Jr., 534 S.W.2d 52 (Nov. 10, 1975); Smith v. Texas, 530 S.W.2d 955 (Jan. 7, 1976); Smith v. U.S., (C.A. 8 unreported) Petition for Writ of Certiorar+ filed on April 10, 1975 and granted by U.S. Supreme Court on June 21, 1976 in Smith v. U.S., No. 75- 708, _U.S.__, 51 L.Ed.2d 260 97 S.Ct. (Mar. 11, 1977); Colorado v. Talron, 544 P.2d 372 (Jan. 5, 1976); Menefee v. City and County of Denver, 544 P,2d 382 (Jan. 5, 1976); and Illinois v. Thomas, 346 N.E.2d 190 (Apr. 7, 1976). When such specially pleaded matters are compared with the time-motion study of the 26- minute silent motion picture film, "Un Chant a @ -47- d'Amour" prepared by Petitioners' counsel and adjudged obscene as a matter of law in Landau v. Fording, 245 Cal.App. 2d 820, 54 Cal.Rptr. 177 (Oct. 24, 1966), hearing denied by the California Supreme Court and affirmed on the merits by the United States Supreme Court, after this Court granted review on a petition for a writ of certiorari in Landau v. Fording, 388 U.S. 456, 18 L.Ed. 2d 1319, 87 S.Ct. 2109 (June 12, 1967), rehearing denied 389 U.S. 889, 19 L.Ed. 2d 199, 88 S.ct. 16 (Oct. 9, 1967), it is difficult to understand how such a state of public indecency can come into existence. A copy of the time-m- tion study of "Un Chant d'Amour" appearing at Appendix "A" of the Plaintiffs' Points and Autho- rities, filed in the trial court was prepared by counsel for Petitioners, who represents to this Court that the same is an exact reproduction of the content appearing in the l6nmm. film, "Un Chant d‘Amour", which was an exhibit before the United States Supreme Court in 388 U.S. 456, where counsel for plaintiffs viewed the same. B. Under The Facts Pleaded In Their Com plaint, Petitioners Have Demonstrated A Clear Right To Extraordinary Relief. The Hearing The Application For A Preliminary Injunction Should Have Gone Forward As Noticed And Inme- diate Relief Should Have Been Granted. The preliminary injunction issue, involving the film "Deep Throat" was before the Georgia Supreme Court in $.S.W. Corp. et al. v. Slaton, 204 S.E.2d 155 (Feb. 18, 1974). ‘There, the Georgia Supreme Court held at p. 158: "We acknowledge that interlocutory judicial restraint with respect to a First Amendment claim must be reasonable and should be followed as promptly as is prac ticable by a final judicial determination of First Amendment issues. We.tried to say this as plainly as we knew how in this court's order of October 1, 1973, denying the motion for supersedeas in this case (see appendix. ) "But for this court to hold that a film, judicially determined to be obscene at a preliminary hearing, cannot be sup- pressed during the pendency of the litiga- tion as to whether it is obscene or not i e 4 -49- would effectively deny the state the right to suppress the showing of an obscene film. This is so because without the possibility of interlocutory prohibition, a film, ul- timately adjudged to be obscene, could be shown during the many months and years of trial and appellate litigation permitted by our system before a judgment is absolutely final. "Obscenity is not protected by the First Amendment, and after a preliminary judicial determination that material is ob- scene, such material is not protected during the course of the litigation on its Way to a final judgment. In short, we hold that interlocutory judicial restraint of ab- scene material, with adequate provisim being made that First Amendment claims can proceed to final judgment at the earliest practicable date, is not violative of First Amendment rights.” Cc. A State May Not Deny Access To The State Judicial System To Citizens Who Seek ‘To Prevent The Exhibition Of Hard-Core Pornography In Their Local Commmnity. 1. The State of California may not deny access to its Courts or refuse to entertain civil actions which are designed to prevent the dissemination of subject matter which the United States of America, by treaty, is re- quired to discourage. In Roth v. U.S., 354 U.S. 476 at 484 (June 21, 1957) this Court took notice of an existing international policy agreement: "But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the in- ternational agreement of over 50 nations, 8/ " 8/ A copy of the 1911 “Agreement for the Suppres- sion of the Circulation of Obscene Publications", 37 Stat 1511-1515, referred to by the Roth Court a7 e baa Ln Sar, tM 2 affine In Hauenstein v. Lynham, 100 U.S. 483, 25 L.Ed. 628 (1879), this Court noted that the treaties of the United States are as much a part of the law of every’ State as its own local laws and Constitution. When the conflict is between the provision of a treaty and a provision of a state statute the treaty supercedes prior con- _ flicting state legislation, and cannot be restric- ted by later inconsistent state statutes. Sutherland Statutory Construction, Vol 1A, Sec tion 23.22. "Conflict between statutes and trea- ties" at page 262. A treaty cannot be the Supreme law of the land, that is of all of the United States, if an act of a State Legislature can stand in its way. Ware v. Hylton, 3 Dall. 199 (1746). 2. A state public policy which would permit the dissemination of hard-core pornography would be invalid under the “one people" concept regarding the federal police power. at footnote 15 is attached as Exhibit "J" to this Petition. In that treaty, the United States of America, as a signatory nation, ex- pressed the national desire to repress “offenses connected with obscene publications" and entered into a mutual compact with other nations to that end. -52- The "one people" concept of federalism, (see Hoke v. U.S., 27 U.S. 308 (Feb. 24, 1913), envisions the federal government as having been granted plenary power and charged with the con- comitant duty and responsibility of administer- ing those controls, which have been established by their representatives at the national level, in a way which will safeguard the standards of public decency (morality) which are common to the individual State members of the compact. Under the “one people" concept the federal government has total control over subject matter as to which reasonable minds would not differ and all would hold to be pornographic (hard- core pornography). Petitioners dispute with the ruling of the Court of Appeal below 2/ is its refusal to con- sider the inescapable consequences flowing from the "one motion" concept which has been devel- oped in aid of maintaining good public morality. 9/ See Petition for Rehearing at pages 2-4. Cf. the trial court's ruling that, were Maiorino to attempt to amend: “on amendment, the alleged obscenity of the picture 'Deep Throat' will not form thebasis for Plaintiff Maiorino's Alle- gations of private nuisance". (R.T. 305, also appendix herein at pp. A- ll Z - % See Part XIV entitled "The ‘One People' Con- cept," 1°/ appearing in "The Challenge of a Modern Federal Criminal Code Statement in the U.S. Senate by Senator John L. McClellan, March 11, 1971, in Hearings Before the 1C0/ XIV. THE "ONE PEOPLE" CONCEPT. Between the Code of 1909 and the codification of 1948, a number of significant new Federal criminal offenses were enacted. Their significance can be best understood, however, by prefacing their consideration by a reference to Madison's conception of the scope of the powers of the Federal Government. In the Federalist No. 44, he observed: The powers delegated by the proposed Con- stitution to the Federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiations, and foreign commerce; with last the power of _taxation will, for the most part, be connected. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state. This limited conception of the role of the Federal Government stands in sharp contrast, of course, with what as a matter of history has come to pass. For example, in June, 1910, less than 6 months after the Code of 1909 went into effect, Congress passed the Mann Act, a provision against the "moral misuse” of the facil- ities of interstate commerce. (Act of June 25, 1910, c. 395, 36 Stat. 825.) In Hoke v. United States, 277 U.S. 308, 322 (1913), upholding the act, Mr. Justice McKenna employed expressions which, when considered, serve as a reminder that, -54- Subcommittee on Criminal Law and Procedures of the Committee on the Judiciary, United States Senate, Ninety-second Congress, First Session, Part 1," at p. 30. In Congress, the since 1872, Congress had been acting, intermit- tently, upon a principle foreign to Madison's that did not come into application until after the Civil War. He said: "Our dual form of government has its perplex- ities . . . but it must be kept in mind that we are one people .. . and the powers (granted to the Federal government) .. . are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral." The inference is plain. Lotteries, frauds, circulation of obscene literature, prostitution, marcotic addiction, all were, at first, well with- in what Madison had in mind when he commented that the powers reserved to the States extended to “all objects which, in the ordinary course of affairs, concern... the internal order, improvement, and prosperity of the state." The trouble was that it proved, as we became not only one people, but one nation, impossible for the States, under their own powers, effectually to preserve “internal order" in these matters when the facilities of the mails were seen to operate, in one fashion, and the privileges of interstate commerce, in another, to negate the efforts of any state to suppress what the people of the na- tion saw as national evils. In the judgment of many, these evils were pervasive throughout the whole nation. There were, moreover, Federal constitutional powers under which they could be attacked by the enactment of federal criminal legislation. From time to time, therefore, Con- gress made use of the powers assigned to the general government, singly or in combination, “to promote the general welfare, material and moral." ( several states have assembled and established a comprehensive set of federal. controls of ob- scenity over (1) importation from abroad, (2) use of the mails, (3) transportation in inter- state conmerce, and (4) international movement. In view of such federal legislation, obscenity (hard-core pornography) is not simply a matter of state interest. It is, under the "one people" concept, a matter of state and federal interest. Independent federal interest have been "identi- fied" by this Court in the well-documented views of Justice Harlan. See, for example, Roth v. U.S., 354 U.S. at 497-498. Petitioners submit that the foundation for Harlan's views are to be found in the "one people" concept. In granting such powers to the Federal government, it was the expectation of the compact States that the Federal government would administer those powers to suppress that subject matter which was considered by the States as a whole to be injurious to public morals, as declared by their representatives in federal legislation. See Coampion v. Ames, 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492 (1903), where the court said at pp. 356 and 357: -56- "If a state, when considering legis- lation for the suppression of lotteries within its own limits, mav properly take into view the evils that inhere in the raising of money, in that mode, why may not Congress, invested with the power to regulate commerce among the several States, provide that such commerce shall not be polluted by the carrying of lottery tickets from one State to another? In this connection it must not be forgotten that the power of Congress to regulate commerce among the States is plenary, is complete in itself, and is subject to no limitations except such as may be found in the Constitution... . But surely it will not be said to be a part of anyone's liberty, as recognized by the supreme law of the land, that he shall be allowed to introduce into commerce among the States an element that will be confessedly injurious to the public morals ... As a State may, for the purpose of guarding the morals of its own people, forbid all sales of lottery tickets within its limits, so Congress, for the purpose of guarding the people -57- of the United States ayainst the ‘widespread pestilence of lotteries’ and to protect the commerce which concerns all the States, may prohibit the carrying of lottery tickets from one State to another. In legislating upon the subject of the traffic in lottery tickets, as carried on through interstate cammerce, Congress only supplemented the action of those States—perhaps all of them — which, for the protection of the public morals, prohibit the drawing of lotteries, as well as the sale or circulation of lot- tery tickets, within their respective limits. It said, in effect, that it would not permit the declared policy of the States, which sought to protect their people against the mischiefs of the lottery business, to be . overthrown or disrecarded by the agency of interstate commerce. We should hesitate long before adjudging that an evil of such appalling character, carried on throuch interstate commerce, cannot be met and crushed by the only power competent to that end... ." (Our enphasis.) In enumerating his hard-core pornography rule limitation on federal power, Harlan was using as a common denominator that "bottom of the barrel” quality of material as to which it -53- might be said that reasonable minds would not differ, and could come to but one conclusion.*~’ In Miller v. California et al., supra, this Court's obscenity decisions took a sharp tur in course from the direction in which they had been proceeding. Over night, all of the hurdles which had been constructed against law enforce- ment were removed and the pornographers awoke on June 21, 1973, to find themselves stripped of their defenses. In spite of the braking ac— tion which this Court has applied, the expected positive gains have not been achieved. Nor will they, until the conspicuous contradiction in those decisions is corrected12’ 1l/ Conceptually speaking, obscenity might be visualized as a polluted liquid of varying den- sities contained within a barrel, with hard-core pornography, with the heaviest density, lying at the bottom of the barrel. Protected free speech can be visualized as that clear liquid which overflows and lies outside the barrel. That subject matter which lies inside the barrel and on top of the density layer which is “hard- ' eore pornography" is non-protected subject matter, which states may legalize or proscribe in their discretion. 12/ This Court said in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 37 L.Ed.2d 446, 93 S.Ct. 2628, June 21, 1973: "The States, of course, may follow such a ‘laissez faire’ policy and drop all controls on commercialized obscenity, if that is what they prefer, just as they can 3. On the question of whether hard- core pornography is to be tolerated, federal law has occupied the field. When Congress exercises a granted power, the federal legislation may displace state law umder the Supremacy Clause. Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23 (1824). Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 229-230, 11 ignore consumer protection in the place, but nothing in the Constitution compels the States to do so with regard to matters falling within state jurisdiction. ..." Surely this Court was not saying that hard-core pornography, which under federal law may not be imported; may not be placed in the mail, may have no property value, may not be copyrighted and which may not be sent interstate, can never- theless be given a legal status and value within a state? What of the expression in Roth-Alberts, 354 U.S. 476, 485, 1 L.Ed.2d 1498, 77 S.Ct. 1304 (June 24, 1957) that it is the universal judgment of civilized nations as reflected in their inter- national agreements, that obscenity should be restrained? Should not this Court explain that statement by recognizing the Harlan view express- ed in Roth v. U.S., 354 U.S. 476, at 500, and admitting that what the court was talking about, in so far as States are concerned, was something which was specifically described, but less than hard-core pornography (reasonable men would not differ and could come to but one conclusion), and yet not quite protected speech. -60- L.Ed. 1447, 67 S.Ct. 1146, 1151, 1152 (1947). (a) The disposition of "hard-core pornography" inherently, is a matter for federal control: In Congress assembled, the representatives of the several states have established a campre- hensive set of federal controls on obscenity over (1) importation from abroad, (2) use of the mails, and (3) transportation in interstate com merce, See 18 U.S.C. Sections 1461-1465, 1735, 1737; 19 U.S.C. Section 1305. Those controls have been supplemented by treaty abroad. Ina Situation such as this, where the evidence clear- ly points to a total restraint on such hard-core pornography, the federal compact must prevail and federal preemption is clearly operative. While Congress has never established a definition of obscenity, it has not, as noted above, been silent about whether or not obscenity should be proscribed, cf. Justice Harlan's discussion of the category of obscenity, “hard- core pornography", and federal power in relation thereto, cited with approval in Miller v. Califor- nia, 413 U.S. 15, 37 L.Ed.2d 419, 431, 93 S.Ct. 2607. As regards the category “hard-core porno- graphy", see Justice Douglas speaking on pre- -~6]- emption in Campbell v. Hussey, 368 U.S. 297, 7 L.Bd.2d 299, 82 S.ct. 327 at 301: | "We do not have here the question whether Georgia's law conflicts with the federal law. Rather we have the question of pre-emption. Under the federal law there can be but one ‘official’ standard - one that is ‘uniform’ and that eliminates all confusion by classifying tobacco not by geographical origin but by its character- istics. In other words, our view is that Congress, in legislating concerning the types of tobacco sold at auction, pre-empted the field and left no room for any supple- mentary state regulation concerning those same types.” (b) The Congressional intent has been clearly stated that obscenity shall not be given a free reign. In its Act of Oct. 3, 1967, Public Law 90-100 81 Stat. 253 (creating the Conmission on Obscenity and Pornography) Congress speci- fically held that the traffic in obscenity and pormography is a matter of national concern. See Section 1 of Public Law 90-100 which pro- vided: ~62- "Section 1. Finding of fact and declaration of policy. - The Congress finds that the traffic in obscenity and pornography is a matter of national concern. The problem, however, is not one which can be solved at any one level of government. The Federal Government has a responsibility to investi-_.- gate the gravity of this situation and to determine whether such materials are harmful to the public, and particularly to minors, and whether more effective methods should be devised to control the transmission of such materials. The State and local governments have an equal respon- sibility in the exercise of their regulatory powers and any attempts to control this transmission should be a coordinated effort at the various governmental levels. It is the purpose of this Act (this note) to establish an advisory commission whose purpose shall be, after a thorough study which shall include a study of the causal relationship of such materials to antisocial behavior, to recommend advisable, appropriate, effective, and constitutional means to deal effectively with such traffic in ob- scenity and pornography." See also, Senate Resolution No, 477, rejecting the findings and recommendations of the Camis- sion on Obscenity and Pornography, which recom mended the liberation of obscenity. (Congres- Sional Record for October 13, 1970 at pages 36474-36478. ) Petitioners submit that this court has not indicated, with regard to competing inter- ests, that it has recognized that the regulation of “obscenity” is predominantly a matter of state, not federal interest. In Paris Adult Theatre, this court was addressing itself to the opposing interests of the Tenth Amendment to the Federal Constitution (which reserves to states the power to regulate obscenity) and the First Amendment (freedom of speech which tradi- tionally resists such regulation.) Any argument that this Court in Paris Adult Theater has re- jected any need for national uniformity does not place this Court's remarks in their proper con- text. The solution therein arrived at was in response to the problem of how to find an acco- modation between the opposing interests of the Tenth Amendment (state police power) and the First Amendment (free speech). That accommoda- tion does not dispute or deny the national need to provide controls which aid in the individual state efforts to suprress obscenity. -64- POINT II THE DENIAL CF A PROMPT JUDICIAL FORUM IN WHICH TO CONTEST RESPONDENTS' RIGHT TO COMMERCIALLY EXHIBIT THE HARD—CORE FILM WHICH IS SPECIALLY PLEADED IN THE COMPLAINT HEREIN, HAS DEPRIVED PETI- TIONERS OF FUNDAMENTAL RIGHTS UNDER THE FEDERAL CONSTITUTION. Petitioners as citizens of the U.S. have a federally protected right to live in a community whose public morals, moral values, and environ- ment are free from the degrading and corrupting influences of the patently hard-core pornography which is specially pleaded in the Complaint. The refusal, in 1973 to provide a prompt judi- cial forum and grant the inmediate relief here—- in requested has deprived petitioners as citi- zens of the United States of: (1) due process of law and equal protection of the law; (2) the police power which is in- herent in municipal authority; and (3) one of the fundamental rights essential to the concept of well-ordered liberty; namely, the right to enjoy "cammon" -65- decency” and to live in a community whose public morals, moral values and environment are free from the illegal, degrading and corrupting influences of such patently hard- core pornography. ~s A. Where Comercial Vice Is Involved, The Power To Abate The Same Is Inherent, And Plenary, And May Not Be Interfered With. "The power to determine the question of what will injuriously affect the public is lodged with the legislative branch of the Government." Mugler v. Kansas, 123 U.S. 205 at 210 (Dec. 5, 1887). A legislative act or judicial ruling which would restrict a municipality's police power to legislate on those matters considered necessary to safeguard public morality would constitute an unconstitutional abridgment of fundamental rights under the federal constitution. Mugler v. Kar sas, 123 U.S. 205 at 210, 211. See also Stone v. Mississippi, 101 U.S. 816, where the United States Supreme Court noted: | "no legislature can bargain away the public health, or the public morals. The people themselves cannot do it, much less -66- their servants . . . government is organized with a view to their preservation, and can- not divest itself of the power to provide for them." The power to abate a Public Nuisance is one of the most basic powers of local government - the power possessed by municipal government in aid of its duty to protect the public morals of the local community against that type of public conduct which is regarded as being malum in se. In addressing himself to the public morals issue and the pre-eminent power of local government to control the same, Woods describes the danger as being in the nature of a "nuisance per se.” See "The Law of Nuisances" by H.G. Wood, Sections 23 and 24, at pp. 45-46: "Section 23. Acts affecting public morals, public nuisances per se, when. - There are classes or kinds of businesses which are nuisances per se, amd the very fact that they are carried on in a public place is prima facie sufficient to establish the offense. But in such cases, if the respon dent questions that the use of his property in the manner charged in the indictment produces the effects set forth therein, and introduces e""idence to sustain his position, -67- it then becames necessary to prove that the effects are such as are charged. But there are a class of nuisances arising from the use of real property and from one's personal conduct that are nuisances per se, irres- pective of their results and location, and the existence of which only need to be proved in any locality, whether near to or far removed fram cities, towns, or human habitations, to bring them within the purview of public nuisances. This latter class are those intangible injuries which affect the morality of mankind, and are in derogation of public morals and public decency." "Section 24. Wrongs malum in se. - This Class of nuisances are of that aggravated Class of wrongs that, being malum in se, the courts need no proof of their bad results and require none. The experience Of all mankind condemns any occupation that tampers with the public morals, tends . to idleness and the promotion of evil manners, and anything that produces that result finds no encouragement from the law, but is universally regarded and condemed by it as a public nuisance." (Our emphasis.) -68- That municipal power is inherent in govern ment itself and is so basic that its grant of authority is said to be "implied", and to flow from the Common Law and basic civil rights in- herent in individuals, rather than from "express" provisions in the City's Charter or the General Laws of the State. See "The Law of Nuisances," Woods, Section 743, at p. 972: "Section 743. No control over nuisances without special power. - Therefore, a mumi- cipal corporation has no control over nui- sances existing within its corporate limits except such as is conferred upon it by its charter or by general law. There can be no question, however, but that where a nuisance exists within its corporate limits that is clearly a nuisance at common law or by statute, which is detrimental to the health of the inhabitants, it may be abated by the authorities, but it must be a nuisance at common law and one which any person injured thereby might lawfully abate of his own m- tion, or in the absence of express or implied authority given, the removal or abatement of the nuisance would be unlawful. Where the thing abated is clearly a nuisance, and one which affects the health of the city, -69- the abatement may be made by the authorities or by any person injured thereby. The com mon law in such a case comes in aid of the authorities, and they are justified in the act, mot because they are officials of the city, but because they are citizens injured by the thing abated." (Our emphasis.) See also, Section 3495 of the California Civil Code, at Appendix "F" infra. Joyce, in his treatise "Law of Nuisance", Section 345, notes that this commn law power entrusts the mmi- cipal corporation with not only the right but the obligation to remove the nuisance; at p. 498: "The rule is declared to be settled, without dissent, that, without a special grant of authority, public corporations may, as a common law power, cause the abatement of nuisances, and if the nuisance cannot other- wise be abated, may destroy the thing which constitutes it. And it is said that a municipal corporation has not only the right, but is also under the obligation, to remove nuisances which may endanger the health of its citizens; that it has the power to decide in what manner this shall be done; and that its decision is conclusive unless it transcends the power conferred by -70- the charter or violates the constitution.” The importance of this abatement power was stressed by the United States Supreme Court in James Phalen v. The Commonwealth of Virginia, 12 L.Ed. 1030, 1033 (1850): "The suppression of nuisances injurious to public health or morality is among the most important duties of government. . .” "It is a principle of the commn law, that the king cannot sanction a nuisance. . ." B. The California Judiciary Have A Moral Responsibility As The Guardian Of The Peoples' Morals. It was long ago decided that the Courts in our Anglo-Saxon legal system are the guardian of the public morals. Rex v. Curl, 2 Strange 789 (1727), Sir Charles Sedley's Case, 1 SID 168. Where the legislature had bargained away that power, the California Court in Farmer v. Beh- mer, 100 P. 901 at 904 had the following to say: "It is a novel doctrine that the Legislature may empower a city by its charter to suspend the operation of general laws punishing crime. No one would for a ‘ -71- moment contend that murder, manslaughter, larceny, burglary, or any other of the long list of crimes punishable by statute could be condoned or palliated by an ordi- nance regulating or licensing such offenses. The heinousness or degree of the crime can make no difference. The statute punishing the keeping of a house of prostitution as a crime can no more be suspended in its Operation than any other criminal statute Since the legislatures are subject to censure by the California Courts for failing in their responsibility to safeguard the public norals, . then the Courts should also be expected to reciprocate and exercise those powers and perform those duties which are required of the Court under the common law in similar circumstances. See Stone v. Mississippi, supra. -72- C. Respondents Should Be Held Responsible To The Community For An Accounting As To Their Unjust Enrichment Arising Out Of An Unlawful Act. The subject matter which was pleaded in the body and Exhibits "A" and "B" to the Complaint, demonstrated beyond all shadow of a doubt that the motion picture film "Deep Throat" is porno- graphy under federal law and, as such, contraband; that the exhibition should have been terminated, and that the injunction should have been granted. Under rudimentary, equitable principles, respon- dents are required to account to the community for the unjust enrichment accruing by virtue of their unlawful act. People of the State of Califomia v. Superior Court, 28 Cal.App.3d 600, 104 Cal.Rptr. 876, 882-885. See also, Ghio ex rel. Ewing v. “Without A Stitch", 37 Ohio St.2d 95, 307 N.E.2d 911 (Feb. 27, 1974). Appeal dis- missed for want of a substantial federal questi in Art Theater Guild, Inc. v. Ewing, 421 U.S. 923, 44 L.Ed.2d 82, 95 S.Ct. 1649 (Apr. 21, 1975) where the Ghio Supreme Court held at p. 918: "However, the Court of Appeals did not order a forfeiture; it merely required that appellants account for and pay to the county -73- - treasurer the receipts obtained from showing "Without A Stitch’ after the date on which the trial court's permanent injunction would have become effective had the judge not stayed it. This accounting was not imposed as a result of any illegal act on the part of appellants; it was, instead, a recogni- tion by the Court of Appeals that the trial court erred when it stayed the effectiveness of its injunction order. As noted in our discussion under issue No. III, a trial court is required by R.C. 3767.05 to issue a permanent injunction when it declares a film to be obscene; it does not have the power to stay the effectiveness of the in- junction. The only way the Court of Appeals could rectify that error was to assure that appellants did not profit thereby — which was the object of the accounting order." (Our emphasis.) POINT III THE "SPECIAL INJURY" CONCEPT SERVES NO VALID PURPOSE INTHE PRESENT STRUCTURE OF THE LAWV, AND SHOULD NO LONGER BE A VIABLE EXPEDIENT IN THE DISPOSITION OF PUBLIC NUISANCE ABATEMENT CASES WHERE THERE IS PRESENT A BONE FIDE ADVER- SARIAL DISPUTE. CERTAINLY, IT HAS NO APPLICATION WHERE THE PLAINTIFFS' ATTACK IS BASED UPON CONSTITUTIONAL GROUNDS. The opinion of Division Three in the "Devil in Miss Jones" case,petition for writ of cer- tiorari filed in this Court on Harmer et al v. "Devil in Miss Jones" No. 76-1119 is irrecon- Cilable with the opinion of Division One in the "Deep Throat" appeal herein. (See Appendix "A" and "B" herein). These inconsistent results present a due process and unequal protection of the law dilemma in the resolution of this “special injury" issue. To further complicate matters, the "Devil in Miss Jones" decision is unreported and, as such, is subject to the prohibition of Rule 977 of the California Rules of Court, which prevents that citation as precedent, a result which violates time-honored "Stare decisis" principles. -75- Petitioners submit that the opinion of the Court of Appeal (Division 3) in Harmer et al v. A Motion Picture Film Entitled "Devil in Miss Jones" recognizes the fact that strict application of the “special injury" concept in such a case as this poSes a problem and may not be in the best public interest. That Court re- manded the cause to the trial Gourt for amend- ment "to show special injury sufficient to jus- tify the maintenaitce of a private suit to abate a public nuisance or a controversy with a poten- tial for substantial injury to them justifying their maintenance of a declaratory relief action." (See Appendix "B" at pp. 15-16.) Om the other hand, Division 1, herein, in Harmer et al v. A Motion Picture Film Entitled “Deep Throat" et al., Supra, avoided that approach and, giving lip service to the problem, suggested that if the "special injury" requirement were to be recognized as having been met, that it was a matter for the California Supreme Court to con- Sider. (See Appendix "A" at pp. 28-29.) Faced with this "special injury" standing requirement and dilemma in public nuisance abatement cases brought by private citizens, the California Supreme Court did nothing! -76- In Save Sand Key, Inc. v. U. S. Steel Corp., 281 So.2d 572 at 574, the District Court of Appeal of Florida, Second District, in addressing itself to the “special injury" standing require- ment in public nuisance abatement cases brought by private citizens stated: | "(I)t is anathema to any system of justice to proclaim that a right may be enjoyed by all yet none may protect it. Accordingly, except in strictly nuisance cases to date, the obvious recent trend is to open the courts to afford relief to many more parties plaintiff than were heretofore entitled thereto under the ‘special injury’ rule so broadly applied.” In striking that requirement from the law of public nuisance, the Court took note of the end result which, more often than not, flowed from an adherence to that rule of law: "(A)1l1 too often we observe the afore- said duty to abate nuisances rested overly lang in the bosom of the appointed officials amd relief was indeed ultimately never attained by the public or anyone else." While the District Court of Appeal decision, above referred to, was subsequently reversed by the Florida Supreme Court by a 4-3 vote in U.S. Steel Corp. v. Save Sand Key Inc., 303 So.2d 9 ~~, = (June 12, 1974), the analysis of those justices who voted for abandoning that test bears recog- nition, for it points up the injustices which are being perpetuated by a rigid interpretation of the “special injury" requirement.22/ While the majority of the Florida Supreme Court did not uphold the decision of the lower Florida appellate court which struck the "special injury” requirement from the law, that Court did reaffirm an exception previo sly adopted in De- Peartment of AGministration v. Horne, 269 So.2d 659 /1972), “limited to constitutional chal- ienges On taxing and spending as earlier in- dicated.” In that case, the Florida Swpreme Court stated: “Appellees have alleged the unconsti- tutionality of certain sections of an ap- propriations act. These sections are said to be violative of constitutional provisions which place limitations upon enacting legis- lation regarding state funds. We hold that such allegation in this narrow area i3/ In his dissent at p. 14, Justice Ervin of the Florida Supreme Court recommends for reading the case comment in University of Florida Law Review Vol. XXVI No. 2, Winter 1974, p. 360 which analyzes the Sand Key, Inc., case, and at p. 365 reports on the final disposition in such cases where there is no one left to enforce the pub- lic right. -78- satisfied the requirement for ‘standing’ to attack an appropriations act." The decision of the Florida Supreme Court in Horne, supra, was based upon the rationale ex- pressed by this Court in Flast v. Cohen, 392 U. S. 83, 20 L.Ed.2d 947, 88 S.Ct. 1942 (June 10, 1968). Flast presented the first evidence of a reevaluation of the special injury rule and its effect on the standing question. In that tax payer suit challenging federal spending, the Court recognized standing without requiring a showing of special injury. This Court indicated that standing was merely a threshhold question. determining whether the dispute sought to be ad- judicated would be presented in an adversary cor- text. With this emphasis on the adversary con- text, the standing criterion approached "injury- in-fact", “aesthetic, conservational, and recre- ational as well as economic." The Court express- ly dismissed the long espoused spectre of muilti- plicity of actions, recognizing the ability of the courts to exercise judicial discretion in order to avert completely frivolous lawsuits. The recent federal actions defining and expanding injury-in-fact were based on judicial interpretation of statutory authority giving "persons aggrieved" standing to challenge agency action. This concept was expanded in Sierra -79- Club v. Morton, 405 U.S. 727, 732 (1972), hold ing that where a party does not rely on statu- tory authorization the question of standing depends on whether the party has alleged such a personal stake in the outcome that the dis- pute will be presented in an adversary context. Petitioners submit that the nature of the case -—- being a conflict between alleged first and tenth amendment rights — places the instant controversy in that category of exceptions governed by Horne which call for an acknowledg- ment of the "standing" rule applied in Fiast v. Cohen, Supra, and Sierra Club v. Morton, av supra, rather than the "special injury” rule formerly adhered to. The Flast and Sierra Club criteria are fully satisfied by petitioners 14/ See University of Florida Law Review Vol. XXVI No. 2, Winter 1974, p. 360 at p. 366: "The public has demonstrated an ability to present the essential issues with sufficient clarity to in- sure the requisite adversary context. The in- stant decision recognizes the judiciary's ability to utilize modern rules of procedure and pleading to insure that the proper parties and issues are before it. By refusing to apply inflexible and outdated standards that prevent, rather than promote, an efficient administration of justice, the instant court has demonstrated Florida's ex- panding judicial desire to allow citizen parti- cipation in the resolution of problems that di- rectly affect them, whether individually or in common with the community.” -80- herein. In few areas of the law is there a greater need for citizen participation in the Courtroom in the resolution of problems than in the legal attack against the growth of porno- graphy in the local neighborhoods. CONCLUSION Petitioners submit that the facts specifi- cally pleaded in the Complaint clearly established the film "Deep Throat" to be hard-core porno- graphy and the petitioners to be entitled to imme- diate relief by way of a preliminary injunction against its exhibition. By denying a prompt judi- cial forum in which to contest the right of the respondents to publicly exhibit the same for profit, the State of California has deprived the petitioners of their federal civil rights to enjoy "common decency" and to live in a community whose public morals are free from the corrupting influences of patently hard-core pornography. The Writ of Certiorari should be granted as prayed for. DATED: May 1, 1977. Respectfully submitted, -" * . a oe po AP 4-0 Wr. &i4” a / 7 | “ Jgttes 4J. Claricy f Attorney for Petitioners , ae 4s aQ]= CERTIFICATE OF SERVICE I hereby certify that on this lst day of May, 1977, copies of the within Petition for Writ of Certiorari were mailed, postage prepaid, to the below listed parties to the proceedings. I further certify that all parties required to be served have been served. David M. Brown, Esq. 433 North Canden Post Office Box 4055 ; Beverly Hills, California 90313 APPENDIX A Trial court memorandum, dated Sept. 4, 1973 eee *# @ # @ @® A-1 = A-7 Trial court minute order, dated Sept. 4, 1973 . 2. ee we ee eo 0 0 0 « © AB Trial court memorandum, dated Sept. 21, 1973 . . - «© «© 6 © © © AW9= All Trial court minute order, dated Sept. 21, 1973 . . « « «6 © © © « Al2 = AHl3 Trial court order of dismissal, dated Sept. 21, 1973 . 2. 2. ee eee eee e Ald Unreported opinion of the Court of Appeal, Second Appellate District, Division One, in Harmer, et al. v. "Deep Throat" et al., 2d Civ 43913 . . ... . A-15 -— A-32 California Supreme Court notice, dated Feb. 3, 1977, denying a petition for hearing. ......-.2++ 4 AH33 A-1 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES JOHN HARMER, et al., ) ) Plaintiffs,) NO. C 63814 ) vs. ) INFORMAL ) MEMORANDUM A MOTION PICTURE FILM ENTITLED ) "DEEP THROAT", etc., et al., ) ) Defendants. ) ) The Court has denied through a minute order of this date plaintiffs’ petition for a prelim inary injunction against, inter alia, the con- tinued exhibition of the film "Deep Throat". Inasmuch as the issue is important and the ground for the ruling is narrow, the Court sets out in this Informal Memorandum the bases for its ruling. COMPLAINT The complaint is sunmarized below in order that the bases for this Court's order may be understood. The complaint contains two causes of action. The first alleges that the picture "Deep Throat" is obscene and its showing constitutes a public nuisance within California CC §3480 (Complaint, A-2 paragraph 34). ‘The second cause of action al- leges that the showing of the moving picture "Deep Throat" constitutes a violation of Penal Code $11225 ("Red Light Abatement Act") by reason of its obscene nature. Upon the two causes of action, or either of them, the plaintiffs pray inter alia for a preliminary injunction against the continued exhibition of "Deep Throat" and for a forfeiture of the film. Although plaintiffs' complaint is long (37 pages), the above sunmary fairly states plaintiffs’ theories. ISSUE OF OBSCENITY Inasmuch as the Court concludes that Harmer v. Tonylyn Productions, Inc. (1972), 23 Cal.App. 3d 941 (rehearing denied March 30, 1972; pet. for hring. by the Sup. Ct. denied April 26, 1972), (hereinafter referred to as "Tonylyn") presently precludes pendente lite relief upon grounds entirely preliminary to the issue of whether the film "Deep Throat" is obscene under Penal Code $311, this Court makes no determina- tion of said issue, and admonishes all parties hereto to not misconstrue the present minute order as one determinative of the issue of ob- scenity. APPLICABLE LAW The preliminary injunction, if granted at all, would be effective only until trial @ e°@ a Se ee A-3 of this matter, and this entire ruling will be superseded by a final ruling after trial. It is not the function of this Court to finally determine the issues. Therefore, the Court measures from the pleadings and evidence only the "(p) robability «+. Of ultimate success....". State Board of Barber Examiners v. Star (1970), 8 Cal.App. 3d 716, 738. Further, the injunction should not lie if the case is "doubtful"; rather, the injunction will lie only if plaintiff's case is clear and injury avertible only by injunctive relief. Schwartz v. Arata (1920), 45 Cal.App. 596. This probability of success encompasses consideration of whether the complaint states a cause of action, and although here defendant has not yet filed a pleading responsive to the complaint, the Court has taken into consideration the maintainability of the action. The limited scope of the ruling made this date should be clearly understood. DISCUSSION OF CAUSES OF ACTION First Cause of Action (public nuisance): Plaintiffs candidly assert at the very outset of their presentation that "This is a case of second impression in the State of California. See Harmer v. Tonylyn Productions, Inc. (citations omitted)", as indeed it is. However, plaintiffs forcefully contend that the recent U.S. Supreme Court deci- sions (Miller v. California (June 12, 1973) 13 A-4 CrL 3161 and companion cases of the same date) "..egive voice to a powerful new policy statement of the Court that legal efforts should be directed by the states toward bringing this runaway situ- ation (of purveyance of hardcore pornography) under control." (Pts. & Auth., page 6). Although the Court agrees that said Supreme Court decisions have enunciated new law concern- ing obscenity, it concludes that said cases do not change the basis for Tonylyn (which really is not an “obscenity case” at all, but is me of statutory construction) which still is binding on this Court. In Tonylyn, the Court held that the showing of a film in a closed theater, viewed mly by those patrons who paid the admission price and entered the theater, did not constitute a public nuisance (opinion, page 943). The Supreme Court in its recent decisions, particularly in Paris Adult Theater No. I v. Slaton (June 21, 1973) 13 CrL 3171, did not change the California law in this respect. All that the Supreme Court said in Paris is that.a state statute which prohibits the showing of an obscene film in a closed theater is not unconstitutional. The Court very carefully pointed out that the states need not determine that the converse is true, saying: ee e°@ e° ee ee ce A-5 "It should be clear from the outset that we do not undertake to tell the states what they must do but rather to define the area in which they may chart their own course in dealing with obscene material." Thus, while it would be constitutional for a Cali- fornia court to hold that an obscene film shown in a closed theater is a public nuisance, the California courts may, if they choose, hold other- wise. And the California Appellate Court, in Tonylyn clearly held, as set out above, that said showing in a closed theater does not constitute a public nuisance under California law. The recent Supreme Court rulings do not upset Tonylyn but inform us only that we and the other states may define, if we choose, exhibitions of obscene films to be public nuisances. The testimony of Mr. Maiorino neither estab- lished evidence in support of the allegations of special injury pleaded in the complaint (see Complaint, paragraph 23) nor otherwise established that special injury which might form the basis of maintaining this action for public nuisance. Although plaintiffs have alleged that Nestle v. City of Santa Monica (1972), 6 Cal. 3d 920, has changed the law concerning standing to sue for abatement of a public nuisance, said assertion simply is not correct, at least in the Tonylyn and instant situations. A-6 Second Cause of Action ("Red Light Abate- ment"): In Tonylyn, the Court construed Penal Code §11225 to exclude "...depictions in closed theaters of (lewi shows and exhibitions) by still or motion picture...." (page 9444 .—There is no constitutional problem involved in this portion of the Tonylyn ruling, which is limited to a construction of the statute. Thus, watever new policy may have been expressed by the »ecent Supreme Court decisions concerning obscenity simply is irrelevant, for Tonylyn declares that the Red Light Abatement Act does not include the exhibition of a motion picture, even if it is obscene. BINDING NATURE OF TONYLYN This Court has examined the rationale for the Tonylyn ruling again, as it has examined it on earlier occasions (see its Informal Memo- randum in Busch v. Sex Appeal, etc., C 56573), and has carefully reread those several Supreme Court rulings referred to above. The Court concludes that it is as bound by Tonylyn presently as it was before said Supreme Court rulings were issued. The Court also has reac the MEMO- RANDUM OF DECISION of Judge Bruno in People v. Pussy Cat Theater, Superior Court of Santa Clara County, #290747, and while it expresses admira- tion for Judge Bruno and much of what he says _—< A-7 in said memorandum, it cannot agree with his statement that "The statement in Harmer v. Tonylyn Products (sic) Inc., (cites omitted) that the law cannot apply to films must be held to be an inad- vertent or inappropriate statement....", and cites People v. Sarong Gals (1972), 27 Cal.App. 3d 46 as authority therefor. Although this Court has an intellectual problem with Tonylyn, it cannot disregard or refuse to follow Tonylyn. Auto Equity Sales, Inc. v. Superior Court (1962), 57 Cal. 2d 450, at 454-455, says: "Decisions of every division of the District Courts of Appeal are binding upon all...the Superior Courts of this State, and tiis is so whether or not the Superior Court...Courts exercising inferior jurisdiction must accept the law declared by courts of superior juris- diction. It is not their function to attempt to overrule decisions of a higher court." While in Auto Equity Sales, Inc., supra, at page 456, the Court recognizes the right of a Superior Court to choose between conflicting Courts of Appeal decisions, this Court does not consider any appellate decision, including Sarong Gals, supra, to be in conflict with Tonylyn. DAVID A. THOMAS Sept. 4, 1973 ‘A-8 SUPERIOR COURT OF CALIFORNIA, COUNTY CF LOS ANGELES DEPT. 85 Date: September 4, 1973 HONORABLE David A. Thomas JUDGE HONORABLE JUDGE PRO TEM Ed Harrold Deputy Sheriff C Saunders Deputy Clerk 85 None Reporter C 63814 John Harmer, et al. vs. A Motion Picture Film Entitled "Deep Throat” NATURE OF PROCEEDINGS. c Mot.on for preliminary In this matter, heretofore injunction taken under submission on August 28, 1973, the and Court now makes the following ruling: for a declaration of forfeiture The motion for prelimin- ary injunction and for forfeiture is denied in accordance with Informal Memorandum signed and filed this date. Counsel for defendant Pussycat Theatres, Inc. to serve notice. Copy of this order and the Court's Informal September 4, 1973 (23) Memorandum mailed to Dept., 85 counsel by U.S. Mail this date. ee eee Oe ae ee ee oan Sencha | ete BS. — ES = . — = aeaenneneinine A-9 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES JOHN HARMER, et al., Plaintiffs,) NO. C 63814 Vv. A MOTION PICTURE FILM ENTITLED "DEEP THROAT", etc., et al., Defendants. eee ee eee ee ee The Court writes this Informal Memorandum to set out the reasoning for its minute order of this date which sustains the defendants’ demurrer without leave to amend as to Plaintiffs Harmer and Gauer, but gives leave to Plaintiff Maiorino to amend his complaint. The Complaint clearly attempts to allege a public nuisance under CCC 83480 and violation of the "Red Light Abatement Act" (PC §11225), and clearly cannot state a cause of action on those theories (see this Court's Informal Memorandum of September 4, 1973). However, in plaintiffs' oral argument in response to the defendants’ de- murrer, plaintiffs asserted that the complaint seeks to state a cause of action for private nui- sance, and not public nuisance. Of course, this argument is completely incorrect, for the entire A-10 file and earlier proceedings leave no question but that private nuisance was never pleaded or advanced by plaintiffs (see the Complaint, plaintiffs' Memorandum of Points and Authorities, and plaintiffs' other documents in the file which indicate that at all times plaintiffs' theories have been those two first described above). Nonetheless, the Court has considered whether plaintiffs can state a cause of action for private nuisance in order to determine whether the Court should now give plaintiffs leave to amend. The Court concludes that there is no basis for granting Plaintiffs Harmer and Gauer leave to amend. In reaching this conclusion the Court adopts that summary of the facts set out in defendants’ supplemental memorandum of points and authorities $II B and C(3) concerning Plaintiffs Harmer and Gaver. There is no doubt that as to said plaintiffs this is an "obscenity" case in which plaintiffs seek to enjoin exhibition of the picture "Deep Throat" for its alleged obscenity. As earlier determined by the Court, maintenance of this cause of action by said plaintiffs runs squarely into Harmer v. Tonylyn Productions, Inc., (1972) 23 Cal.App. 3d 941. (Plaintiffs simply are incorrect when they assert that Tonylyn "conflicts with California precedent in another District. (see Weiss v. Superior e@ A-11 Court of San Diego County, 30 Cal.App. 730....)". The Weiss case is completely distinguishable from Tonylyn and clearly is not in conflict). Plaintiff Maiorino is in a different position. He owns property near the Defendant Pussy Cat Theater and possibly can state a cause of action in private nuisance. ( amendment, the alleged obscenity of the picture "Deep Throat” will not form the basis for Plaintiff Maiorino's allegations of private nuisance, DATED: September 21, 1973 DAVID A. THOMAS Date: September 21, 1973 HONORABLE David A. Thomas JUDGE HONORABLE %® JUDGE PRO TEM Ed Harrold Deputy Sheriff C Saunders Deputy Clerk 85 None Reporter C 6 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1600%3A1. Public record. Not legal advice.