Petition — Brockett v. Spokane Arcades, Inc.

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IN THE

SUPREME COURT OF THE UNITED JallPAAs. porns, JR. CLERK |

October Term,

| Supieme Court, U. Ss

FILED

MAR 15 4979

No. 78-1419

DONALD C. BROCKETT, Petitioner,

Vv.

Spokane Arcades, Inc.,

A Washington Corporation;

Playtime Theaters, Inc.,

A Washington Corporation;

J-R Distributors, Inc.,

A Washington Corporation;

And

Sportland Amusement, Inc.,

A Washington Corporation;

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES BESPREGT COURT -$ Gppeate

FOR THE EASPERN-DESPRICE-OF WASHINGTON

NORTHERN-DIVISION VYinek Crout

DONALD C. BROCKETT

Spokane County Prosecuting Atty.

County-City Public Safety Bldg.

Spokane, Washington 99260

456-3662

INDEX

OPINION BELOW .

JURISDICTION. . .... .

QUESTIONS PRESENTED .

STATUTORY PROVISIONS INVOLVED..

STATEMENT OF THE CASE... .

REASONS FOR GRANTING THE WRIT .

THE DISTRICT COURT SHOULD

HAVE ABSTAINED IN THIS CASE.

THE STATUTE IN QUESTION

PROVIDES LEGITIMATE PRO-

CEDURES TO DETERMINE OB-

SCENITY AS A NUISANCE AND

ABATE THE SAME AND IS NOT

UNCONSTITUTIONAL AS A

PRIOR RESTRAINT VIOLATIVE

OF THE FIRST AMENDMENT TO

THE UNITED STATES CON-

STITUTION. « «© © « «

IN CONSIDERING THE QUES-

TION OF THE CONSTITUTION-

ALITY OF THE STATUTE, THE

COURT SHOULD HAVE BEEN

FORECLOSED FROM DECIDING

THE MATTER DIFFERENTLY

FROM A DECISION OF THIS

COURT INVOLVING A SIMILAR

STATUTE, WHEREIN THE AP-

PEAL WAS DISMISSED “FOR

WANT OF A SUBSTANTIAL

FEDERAL QUESTION".

CONCLUSION. . .

APPENDIX. .

INDEX TO APPENDIX

BROCKETT v. SPOKANE ARCADES,

INC. et al., 449 F.Supp.

1145 (D.C. Washington,

Eastern Division, 1978).

REVISED CODE OF WASHINGTON 7.48

38a

iii

TABLE OF AUTHORITIES

PAGE

CASES

ART THEATRE GUILD, INC., ET AL v.

EWING, 421 U.S. 923, 44

L.Ed.2d 82, 95 S.Ct. 164

[Aes 6506s eee ee we, o =O, 22

BELLOTTI v. BAIRD, 428 U.S. 132,

49 L.Ed.2d 844, 96 S.Ct.

7 ieee ees .. 7

COLORADO RIVER WATER CONS.

DIST. v. U.S., 424 U.S.

800, 47 L.Ed.2d 483, 96

S.Ct. 1236 (1976) rehear-

ing denied 426 U.S. 912,

48 L.Ed.2d 839, 96 S.Ct.

Bee eee ea eee ee ee es 7

COLORADO SPRINGS AMUSEMENTS,

LTD. ETC. ET AL v. RIZZO,

428 U.S. 913, 49 L.Ed.2d

1222, 96 S.Ct. 3228 (1976) . 17

GROVE PRESS, INC. v. FLASK,

362 F.Supp. 574 (D.C.

Northern District Ohio,

Eastern Division, 1970,

vacated and remanded on

other grounds, 413 U.S.

902, 37 L.Ed.2da 1013, 93

S.Gu. wee Saeeene 6s ess 8 9

HICKS v. MIRANDA, 422 U.S. 332,

45 L.Ed.2d 223, 95 S.Ct.

Baek SOeTeee 8 se SU we ew SR

HOFFMAN v. PURSUE, LTD., 420

U.S. 592, 601-602, 43

L.Ed.2d 482, 95 S.Ct.

1200 (1975). ....

JAMES PHALEN v. THE COMMON-

WEALTH OF VIRGINIA, 12

L.Ed. 1030, 1033 (1850).

JUIDICE v. VAIL, 430 U.S. 327,

51 L.Ed.2d 376, 97 S.Ct.

1211 (1977). a ae

KINGSLEY BOOK, INC. v. BROWN,

354 U.S. 436 1 L.Ed.2d

1469, 1473-1474, 77 S.Ct.

1325 (1957). ° ek

MUGLER v. KANSAS, 123 U.S.

205 (1887)

OHIO BUREAU OF EMPLOYMENT SERV.

v. HODORY, 431 U.S. 471,

477, 52 L.Ed.2d 513, 97

S.Ct. 1898 (1977). .

PARIS ADULT THEATRE v. SLAYTON,

413 U.S. 49, 53-56, 37

L.Ed.2d 446, 93 S.Ct.

2628 (1973).

SINGLETON v. COMMISSIONER, U.S.

, 58 L.Ed.2d 335, ’

S.Ct. (1978)

SOUTHEASTERN PROMOTIONS, LTD.

v. CONRAD, 420 U.S. 546,

43 L.Ed.2d 448, 95 S.Ct.

1239 (1975). ‘ ‘

STATE v. TERRY, 99 Wash. 1,

168 Pac. 513, 514 (1917)

STATE v. WANROW, 91 Wn.2d 301,

_. eae, ees aes

1978). 3 ae oleae

STATE EX. REL. EWING v. “WITH-

OUT A STITCH", 307 N.E.2d

911 (Ohio, (1971) appeal

dismissed sub nom. Art

Theater Guild Inc. et al.

v. Ewing, 421, U.S. 923,

44 L.Ed. 2d 82, 95 S.Ct.

1669 (iS7ads «= « «4 -

STATE EX. REL. KERN v. EMERSON,

90 Wash. 565, 155 Pac.

579, 583. (1916). ..

STATE EX. REL. KERN v. JEROME,

80 Wash. 261, 141 Pac.

753, 757 (1914).

YOUNGER v. HARRIS,: 401 U.S. 37,

27 L.Ed.2d 669, 91 S.Ct.

746 (1971)... “Te

UNITED STATES STATUTES

28 U.S.C.A. § 1254(1)

_ STATE OF WASHINGTON STATUTES

RCW 7.48.050-900.

ll, 14

OTHER AUTHORITY

SUMMARY DISPOSITION OF SUPREME

COURT APPEALS: THE SIGNIF-

ICANCE OF LIMITED DISCRE-

TION AND A THEORY OF LIM-

ITED PRECEDENT, 52 B.U.L.

Rev. 414-415, 419. ..... 15,

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

DONALD C. BROCKETT, Petitioner,

Spokane Arcades, Inc.,

A Washington Corporation;

Playtime Theaters, Inc.,

A Washington Corporation;

J-R Distributors, Inc.,

A Washington Corporation;

And

Sportland Amusement, Inc.,

A Washington Corporation;

Respondents.

PETITION FOR A TAOF CERTIORARI TO

THE UNITED STAT DISTRICT COURT

FOR THE EASTERN DI ICT OF WASHINGTON

NORTHE DIVISION

. The petitioner, Donald C. Brockett,

respectfully prays that a writ of cer-

tiorari issue to review the judgment and

opinion of the United States District

Court for the Eastern District of Wash-

ington, Northern Division, entered in

this proceeding on.April 3, 1978 and

March 13, 1978.

OPINION BELOW

The opinion of the United States

District Court for the Eastern District

of Washington, Northern Division, is re-

ported at 449 Fed.Supp. 1145 (Record On

Appeal 242-266). Attached as Appendix A.

JURISDICTION

The judgment of the United States

District Court for the Eastern District

of Washington, Northern Division, was

entered on March 13, 1978, after the

court denied a Motion To Alter Or Amend

Judgment on April 19, 1978 (Record On

Appeal 272). Timely notice of appeal was

filed in the Ninth Circuit Court of Ap-

peals on May 19, 1978 (Record On Appeal

276). This Court's jurisdiction is in-

voked under 28 U.S.C.A. § 1254(1).

QUESTIONS PRESENTED

1. Whether a federal court should

abstain from deciding that a state stat-

ute is unconstitutional on its face prior

to any actual case or controversy exist-

ing in which a state court has had the

ability to authoritatively construe the

statute, thus denying to the state fora

period of years an effective procedure.

2. Whether or not Initiative No.

335 (now codified as Revised Code of

Washington 7.48.050-900) is unconstitu-

tional on its face as a prior restraint

on protected material under the First

Amendment to the United States Constitu-

tion or is an effective legitimate method

to control obscene material?

3. Whether or not a District Court

is foreclosed from deciding a matter dif-

ferently from the decision of the United

States Supreme Court involving a similar

statute, wherein the United States Su-

preme Court dismissed an appeal "for want

of a substantial federal question"?

STATUTORY PROVISIONS INVOLVED

Initiative No. 335 (now codified as

Revised Code of Washington 7.48.050-900)

attached as Appendix B.

STATEMENT OF THE CASE

The statute involved in this case

was approved by the people of the State

of Washington as an Initiative on Novem-

ber 8, 1977. Before the statute was even

certified by the Secretary of State, the

respondents, corporations engaged in the

exhibition, sale or distribution of mo-

tion picture films, books and magazines

in Washington, petitioned the United

States District Court for the Eastern

District of Washington, Northern Divi-

Sion, for a declaratory judgment that the

statute was unconstitutional on its face

as a prior restraint in violation of the

First Amendment to the United States

Constitution.

The District Court Judge, the Hon-

orable James M. Fitzgerald, overruled

argument by the petitioner that the Fed-

eral Court should abstain by virtue of

the fact that there had been no actual

case or controversy before any state

court in order that the statute be au-

thoritatively construed and held that the

issue of the constitutionality of the

statute could be reached.

Because it is no longer required

that there be.a three-judge court to rule

on the constitutionality of a state stat-

ute from which a direct appeal could be

taken to this Court, a substantial delay

results in the use of the statute if the

District Court was in error.

The District Court overruled argu-

ment that the statute provided a legiti-

mate method to effectively determine ob-

scenity to be a nuisance after a full

hearing before a court and provide reme-

dies to abate the nuisance, ruling that

the statute amounted to a prior restraint

prohibited under the First Amendment to

the United States Constitution and thus

was unconstitutional.

Moreover, the District Court over-

ruled argument that the civil procedure,

similar to that of the State of Ohio, had

been upheld and approved by this Court

when the case of Art Theatre Guild, Inc.,

et al v. Ewing, 421 U.S. 923, 44 L.Ed.2d

82, 95 S.Ct. 1649 (1975), was dismissed

"for want of a substantial federal ques-

tion".

REASONS FOR GRANTING THE WRIT

1. THE DISTRICT COURT SHOULD HAVE

ABSTAINED IN THIS CASE.

If the statute had been certified by

the Secretary of State and an action had

been brought in the Washington State

Courts, it is clear that the court would

have been forced to abstain. Younger

v. Harris, 401 U.S. 37, 27 L.Ed.2d 669,

91 S.Ct. 746 (1971). That this is the

most appropriate way for state statutes

to be considered in our federal system

was recognized in Younger, supra, at 401

U.S. 52, when the Court stated that the

duty of the federal judiciary:

-does hot amount to an un-

limited power to survey the

statute books and pass judgment

on laws before the courts are

called upon to enforce them.

In addition, the Court has recog-

nized under the Pullman type of absten-

tion that there is:

. .the possibility that the

state courts may interpret a

challenged state statute so as

to eliminate, or at least to

alter materially, the consti-

tutional question presented.

Railroad Comm'n v. Pullman Co.,

312 US 496, 85 L.Ed. 971, 61

S.Ct. 643 (1941). See Bel-

lotti v. Baird, 428 US 132, 49

L.Ed.2dad 844, 36 $.¢t. 2637

(1976).

Ohio Bureau of Employment Serv. v.

Hodory, 431 U.S. 471, 477, 52 L.Ed.2d

513, 97 S.Ct. 1898 (1977).

A recognition of this principle of

respect for federal-state comity was em-

bodied in the Court's statement in Hoff-

man v. Pursue, Ltd., 420 U.S. 592, 60l-

602, 43 L.Ed.2d 482, 95 S.Ct. 1200 (1975)

that:

ice "the notion of 'com-

ity,' that is, a proper

respect for state func-

tions, a recognition of

the fact that the entire

country is made up of a

Union of separate state

goverments, and a contin-

uance of the: belief that

the National Government

will fare best if the

States and their institu-

tions are left free to

perform their separate

functions in their, sepa-

rate ways." Id., at 44 27

L.Ed.2d 669.

_ Central to Younger was the

recognition that ours 1s a sys-

tem in which:

'the National Gov-

ernment, anxious though it

may be to vindicate and

protest federal rights and

federal interests, always

endeavors to do so in ways

that will not unduly in-

terfere with the legiti-

mate activities of the

States.' Ibid.

Likewise, in the footnote at 420

. 602:

16. While these standards

governing federal interference

were largely shaped in the con-

text of prayers for federal

injunctions against state pro-

ceedings, it is clear that with

respect to pending prosecutions

the same standards apply to

interference in the form of

declaratory relief. See Sam-

uels v. Mackell, 401 US 66, 27

L.Ed. 688, 91 S.Ct. 764 (1971).

Accord: Colorado River Water Cons.

Dist. v. U.S., 424 U.S. 800, 47 L.Ed.2d

483, 96 S.Ct. 1236 (1976) rehearing de-

nied 426 U.S. 912, 48 L.Ed.2d 839, 96

§.Cct. 2239.

Because the Respondents had an op-

portunity to present their issues to the

state courts in which event many of the

procedures would have been authoritative-

ly construed, perhaps avoiding the nec-

essity of a federal constitutional adju-

dication, the court should have abstain-

ed. Bellotti v. Baird, 428 U.S. 132, 49

L.Ed.2d 844, 96 S.Ct. 2857 (1976); Jui-

dice v. Vail, 430 U.S. 327, 51 L.Ed.2d

376, 97 &.Ct. 4211 (1977).

pa This ruling by the court below jus-

tifies the grant of certiorari to review

the judgment.

2. THE STATUTE IN QUESTION PRO-

VIDES LEGITIMATE PROCEDURES TO

DETERMINE OBSCENITY AS A NUI-

SANCE AND ABATE THE SAME AND IS

NOT UNCONSTITUTIONAL AS A PRIOR

RESTRAINT VIOLATIVE OF THE

FIRST AMENDMENT TO THE UNITED

STATES CONSTITUTION.

Because the District Court refused

to abstain in this case and held the

statute to be unconstitutional and be-

cause there is no longer a requirement

that a three-judge court rule concerning

the constitutionality of a state statute

which would go to this Court on a direct

appeal, the State of Washington may be

deprived for a period of years of the

legitimate procedures of a statute to ef-

fectively control obscenity.

This Court has consistently held

that obscenity is not protected within

the First Amendment to the United States

Constitution. In fact, the Court has

indicated that a civil process might meet

with more approval than a criminal pro-

cedure. Paris Adult Theatre v..Slayton,

413 U.S. 49, 53-56, 37 L.Ed.2d 446, 93

S.Ct. 2628 (1973).

The State contends that there is

absolutely no question of prior restraint

involved in this statute. The procedure

is protective of the interests of those

challenged by providing for a hearing by

a court in the first instance relative to

the question of the obscenity of the ma-

terial. The interests of the State are

protected by an order preserving the sta-

tus quo and providing for an inventory to

be kept which may be ordered by the

court. Only after a hearing by the

court, can a temporary injunction be is-

sued by the court and then limited to the

continuation of the nuisance. If the

material is determined to be obscene and

thus the place constitutes a nuisance, a

temporary forfeiture results so that the

place cannot continue as a nuisance, un-

less the owner or person in control shows

that the nuisance has been abated. If at

trial the nuisance is established, the

court enters judgment to perpetually en-

join the nuisance and certain penalties

are provided for in the nature of forfei-

ture by reason of the maintaining of such

nuisance. The procedure is appropriate

in view of the fact that the material is

not protected.

Even if it were to be assumed argu-

endo that the statute provides for a pri-

or restraint, this Court has held that

there may be such a restraint if certain

protections are involved. Southeastern

Promotions, Ltd. v. Conrad, 420 U.S. +546,

43 L.Ed.2d 448, 95 S.Ct. 1239 (1975).

Procedural safeguards exist in the stat-

ute that contradict the charge that a

system of censorship is provided. First,

the burden is clearly on the challenger

to prove that the material is obscene.

Second, the restraint, if it be consider-

ed as such, only preserves the status quo

without restricting the stock in trade

but imposing an inventory requirement

until the hearing which may be advanced

by the party challenged to the time of

the hearing on the temporary injunction

which must take place within ten (10)

days of the filing of the complaint.

Third, by virtue of the above provisions

a prompt judicial determination is as-

sured.

The very same procedure was approved

as provided by an Ohio statute in Grove

Press, Inc. v. Flask, 362 F.Supp. 574

(D.C. Northern District Ohio, Eastern

Division, 1970, vacated and remanded on

other grounds, 413 U.S. 902, 37 L.Ed.2d

1013, 93 S.Ct. 3026 (1973).

This Court has held that it is ap-

propriate for the government to suppress

nuisances. James Phalen v. The Common-

wealth of Virginia, 12 L.Ed. 1030, 1033

(1850). Abatement orders may be entered

and the offenders may be punished for

maintaining the nuisance. Mugler v. Kan-

sas, 123 U.S. 205 (1887).

In Gnas ley Sook, Inc. v. Brown, 354

U.S. 436, L.Ed.2 469, 1473-1474, 77

$.ct. 1325 (1957) Justice Frankfurter,

writing for the majority court, stated

the following at page 441:

We need not linger over

the suggestion that something

can be drawn out of the due

process clause of the Fourteen-

th Amendment that restricts New

York to the criminal process in

seeking to protect its people

against the dissemination of

pornography. a ae mot for

this court thus to limit the

state in resorting to various

weapons in the armory of the

law. Whether proscribed con-

duct is to be visited by a

criminal prosecution or by a

i tam action, or by a injunc-

tion or by some or all of these

remedies in combination is a

matter within the legislature's

range of choice (citation). If

New York chooses to subject

persons who disseminate obscene

'literature' to criminal pros-

ecution and also to deal with

such books as deodands of old,

or both, with due regard of

course, to appropriate opportu-

nities for the trial of the

underlying issue, it is not for

us to gainsay its selection of

remedies. . ‘ (Emphasis

Supplied)

Washington courts have consistently

held that a forfeiture as a result of

maintaining a nuisance is appropriate in

order to secure enforcement of the law.

St. ex. rel. Kern v. Emerson, 90 Wash.

565, 155 Pac. 579, 583 (1916); State v.

Terry, 99 Wash. 1, 168 Pac. 513, 514

(1917); St. ex. rel. Kern v. Jerome, 80

Wash. 261, 141 Pac. 753, 757 (1914).

It could be argued that this Court

has upheld injunctive and closure pro-

ceedings of a similar nature in Ohio by

the action taken in St. ex rel. Ewing v.

“Without A Stitch", 307 N.E.2d 911 (Ohio,

1971) appeal dismissed sub nom. Art The-

ater Guild Inc. et al. v. Ewing, 421 U.S.

923, 44 L.Ed.2d 82, 95 S.Ct. 1649 (1975).

This extremely important issue needs

to be decided by this Court. The States

have attempted to find a procedure that

would comply with this Court's guidance

in order that obscene material which is

recognized to be without protection be

effectively controlled.

The State of Washington contends

that the statute involved will be upheld

by this Court and thus a granting of cer-

pia to review the judgment is justi-

ied.

3. IN CONSIDERING THE QUESTION OF

THE CONSTITUTIONALITY OF THE

STATUTE, THE COURT SHOULD HAVE

BEEN FORECLOSED FROM DECIDING

THE MATTER DIFFERENTLY FROM A

-DECISION OF THIS COURT INVOLV-

ING A SIMILAR STATUTE, WHEREIN

THE APPEAL WAS DISMISSED "FOR

WANT OF A SUBSTANTIAL FEDERAL

QUESTION".

An Ohio statute set up much the same

procedure as the Washington statute for

the control of obscenity. That Ohio stat-

ute was upheld in State ex. rel. Ew-

ing v. "Without A Stitch", 307 N.E.2d

911, (1974), which was appealed to the

United States Supreme Court and "dis-

missed for want of a substantial federal

question". Art Theater Guild Inc. et al

v. Ewing, 421 U.S. 923, 44 L.Ed.2d 82, 95

S.Ct. 1649 (1975). Under Hicks v. Mir-

anda, 422 U.S. 332, 45 L.E@.24 223, 95

S.Ct. 2281 (1975), the Art Theater Guild

Inc. decision was a ruling on the merits.

As stated in Hicks, at 422 U.S. 343-344:

[5-8] We agree with ap-

pellants that the District

Court was in error in holding

that it could disregard the de-

cision in Miller II. That case

was an appeal from a decision

by a state court upholding a

state statute against federal

constitutional attack. A fed-

eral constitutional issue was

properly presented, it was

within our appellate juris-

diction under §1257 (2), and we

had no discretion to refuse

adjudication of the case on its.

merits as would have been true

had the case been brought here

under our certiorari jurisdic-

tion. We were not obligated to

grant the case plenary consid-

eration, and we did not; but we

were required tc deal with its

merits. We did so by concluding

that the appeal should be dis-

missed because the constitu-

tional challenge to the Cali-

fornia statute was not a sub-

stantial one. The three-judge

court was not free to disregard

this pronouncement. As Mr. Jus-

tice Brennan once observed,

'{vjotes to affirm summarily,

and to dismiss for want of sub-

stantial federal question, it

hardly needs comment, are

votes on the merits of a case.

-' Ohio ex rel. Eaton v.

Price, 360 U.S 246, 247, 3

L.Ed.2d 1200, 79 S.Ct. 978

(1959); compare R. Stern and E.

Gressman, Supreme Court Prac-

tice, 197 (4th ed 1969) ('The

Court is, however, deciding a

case on the merits, when it

dismisses for want of a sub-

stantial question. .. .'); C.

Wright, Law of Federal Courts,

495 (2d ed 1970) ('Summary

disposition of an appeal, how-

ever, either by affirmance or

by dismissal for want of a sub-

stantial federal question, is a

disposition on the merits’).

The District Court should have

followed the Second Circuit's

advice, first, in Port Author-

ity Bondholders Protective Com-

mittee v Port of New York Au-

thority, 387 F2d 259, 263 n 3

(1967), that ‘unless and until

the Supreme Court should in-

struct otherwise, inferior fed-

eral courts had best adhere to

the view that if the Court has

branded a question as unsub-

stantial it remains so except

when doctrinal developments

indicate otherwise'; and, lat-

er, in Doe v. Hodgson, 478 F2d

537, 539, cert denied sub nom.

Doe v. Brennan, 414 US 1096, 38

L.£a.24 555, % 8. 'Ce F732

(1973), the lower courts are

bound by summary decisions by

this Court '"“until such time

as the Court informs [them]

that [they] are not."'

(Emphasis Supplied)

Thus it would seem that the Wash-

ington statute, drafted on the basis of

the Ohio statute, contains a procedure

which has been upheld by the United

States Supreme Court. The Washington

Court, if faced with this issue, we con-

tend would have felt bound by Hicks,

supra, as seen by the language in State

v. Wanrow, 91 Wn.2d 301, _ P.2d __e,

(Dec. 28, 1978).

A review of the Ohio Supreme Court

decision at 307 N.E.2d 917-918, shows

that an order closing a theater which

exhibited a single obscene motion picture

film for a substantial period of time is

constitutionally valid, at least where a

good faith owner could obtain release by

(a) appearing in court, (b) filing a

bond in the full value of the property,

and (c) demonstrating to the court that

he would prevent the nuisance from being

reestablished (where the "nuisance" is

regarded as being the exhibition of the

particular film declared to be obscene).

It is clear that the Ohio Supreme Court

considered the question of prior re-

straint when it stated at 307 N.E.2d 916:

Appellants' fourth, fifth

and seventh arguments concern-

ing the constitutionality of

nR.C. 3767.04 eo seG@., 8 a

method for controkling obscen-

ity, are premised upon the

belief that the laws permit

censorship without a prior

judicial determination of ob-

scenity. This contention has

already been discussed and

rejected in this opinion.

When an appeal to the Supreme Court

is from the lower federal courts, summary

disposition on the merits is by affirm-

ance. On the other hand when the appeal

to the Supreme Court is from a state

court, summary disposition on the merits

is by dismissal for want of a substantial

federal question. In a note entitled,

Summary Disposition Of Supreme Court

Appeals: The Significance of Limited

Discretion and a Theory of Limited Prece-

dent, it was said at 52 B.U.L. Rev. 414-

415:

-Thus, the current working

rule is that for summary dis-

positions on the merits, ap-

peals from state court deci-

sions are dismissed while fed-

eral court decisigns are gen-

erally affirmed. The dis-

tinction is reflected in Rule

16(1)(b) and (c), relating to

motions to dismiss, in the

case of state courts, or to

affirm,3p the case of federal

courts. At any rate, it is

fairly clear that the effect

of the decision is the same in

both cases, subject to one

qualification:

[D]Jismissal for want

of a substantial federal

question in a state court

appeal is fully equivalent

to affirmance on the mer-

its in an appeal from a

federal court insofar as

said:

the federal questions un-

der 28 U.S.C. § 125743

and (2) are concerned.

(Footnotes omitted)

And at 52 B.U.L. Rev. 419, it is

Closely allied to the use

of the summary dismissal as

precedent is the question of

whether such dispositions real-

ly go to the '‘'merits' of the

case acted upon. If these de-

cisions were not ‘'on the mer-

its,' just as dismissals for

want of jurisdiction and the

like, they would have no force

as precedent. It has been sug-

gested that the notion that

dismissals for insubstantiality

are on, the merits is 'pure fic-

tion.' But when one con-

siders that the summary dismis-

sal is, as far as the Court's

disposition of federal ques-

tions is concerned, the equiva-

lent 394 the summary affirm-

ance, such objections evapo-

rate. The, dismissal, in parti-

cular, has almost always

been correctly characterized as

on the merits. At times,

however, this fact has been

given 39R1Y begrudging accep-

tance. Such reluctance may

be attributable to the fact

that an affirmance ‘'sounds' so

much more like a decision on

the merits, while a dismissal

for want of a substantial fed-

eral question 'sounds' so much

more like a jurisdictional de-

fect. But whatever the poten-

tial theoretical differences

that could be drawn, the fact

remains that the Court draws -no

distinction between the two for

purposes of deciding cases 'on

the merits.' (Footnotes

omitted)

Therefore, there is no distinction

between a summary affirmance and a dis-

missal for insubstantial federal ques-

tion.

Some guidance needs to be given to

all courts with regard to this issue as

was recently recognized in Colorado

Springs Amusements, Ltd. etc. et al v.

Rizzo, 428 U.S. 913, 49 L.Ed.2d 1222, 96

S.Ct. 3228 (1976)(J. Brennan, dissent-

ing). See also Singleton v. Commission-

er, U.S. , 98 L.Ed. 2d 335,

ee (1978) (J. Stevens).

The lower court should have been

bound by this consideration and therefore

upheld the procedures as having been

ruled upon. Because the court did not,

this Court is justified in granting cer-

tiorari to review the judgment.

CONCLUSION

For these reasons, a writ of cer-

tiorari should issue-.to review the judg-

ment. and opinion of the United States

District Court for the Eastern District

of Washington, Northern Division.

Respectfully submitted,

DONALD C. BROCKETT

County-City Public Safety Bldg.

West 1100 Mallon

Spokane, Washington 99260

Counsel for Petitioner

SPOKANE ARCADES, INC.,—

A Washington Corporation, Plaintiff,

Vv.

The Honorable Dixie Lee RAY, as Gover-

nor of the State of Washington in her

representative capacity only, the

Honorable Bruce K. Chapman, Secretary

of State of Washington in his repre-

sentative capacity only, the Honorable

Slade Gorton, as Attorney General of

the State’of Washington in his repre-

sentative capacity only, and Donald C.

Brockett, Spokane County Prosecuting

Attorney in his representative capac-

city only, Defendants.

Ho. C 77-353

United State District Court,

E. D. Washington.

Feb. 6, 1978.

Proprietors of movie houses and book

stores located in various cities in the

state of Washington brought suit chal-

lenging the constitutionality of Washing-

ton's moral nuisance statute enacted by

initiative 335. Injunctive and declara-

tory relief was sought. The District

Court, Fitzgerald, J., held that (1)

since plaintiffs, whose businesses were

the type of establishments that Washing-

ton's moral nuisance statute purported to

regulate, were threatened with the real

and immediate prospect of prosecution

under the statute, and since there was

every reason to believe that state, coun-

ty or city prosecutors, or private citi-

zens, would imminently prosecute one or

more of the plaintiffs on the basis of

the initiative, plaintiffs had standing

to attack it on First and Fourteenth A-

mendment grounds, (2) neither Younger nor

Pullman abstention was appropriate,

Since, relative to Younger, no state ju-

dicial proceedings involving the initia-

tive were before Washington courts and

there would thus be no disruption of

state judicial proceedings, and since,

relative to Pullman, the procedures of

the initiative dealing with obscenity

were neither obscure ‘nor ambiguous and

statutory construction to ascertain their

meaning was not required, and (3) the

procedures of prior restraint under the

moral nuisance statute failed to with-

stand the strict scrutiny required of

large-scale seizures of material pro-

tected under the First Amendment and were

therefore unconstitutional; furthermore,

the initiative's contempt provision was

invalid as providing a summary procedure

for trial of indirect contempts.

Judgment in favor of plaintiffs.

1. Constitutional Law Key 42.2(1)

Since plaintiffs, whose businesses

were the type of establishments’ that

Washington's moral nuisance statute en-

acted by initiative 335 purported to reg-

ulate, were threatened with the real and

immediate prospect of prosecution under

the statute, and since there was every

reason to believe that state, county or

city prosecutors, or private citizens,

would imminently prosecute one or more of

the plaintiffs on the basis of the initi-

ative, plaintiffs had standing to attack

it on First and Fourteenth Amendment

grounds. RCWA 7.48.010 et seq.; U.S.C.A.

Const. Amends. 1, 14.

2. Courts Key 508(1)

Normally, the mere possibility of

erroneous initial application of consti-

tutional standards by a state will not

justify the enjoining of state statutory

procedures.

3. Constitutional Law Key 90(3)

Statutes regulating expression must

be narrowly drawn to avoid the jedopardiz-

ing of First Amendment rights. RCWA 7.

48.010 et seq.; U.S.C.A.Const. Amend. l.

4. Federal Courts Key 41

Neither Younger nor Pullman absten-

tion was appropriate in suit challenging

the validity of Washington's moral nui-

sance statute enacted by initiative 335,

since, relative to Youn er, no statute

judicial proceedings involving the ini-

tiative were before Washington courts and

there would thus be no disruption of

state judicial proceedings, and since,

relative to Pullman, the procedures of

the initiative dealing with obscenity

‘were neither obscure nor ambiguous and

statutory construction to ascertain their

meaning was not required. RCWA 2.60.010-

2.60.900, 7.48.010 et seq.

5. Obscenity Key 2

The constitutionality of Washing-

ton's moral nuisance statute, enacted by

initiative 335, was not foreclosed by

prior authoritative decisions of the

United States err Court. RCWA 7.48.

010 et seq.

6. Obscenity Key i

Definitionally, obscenity may or may

not be pornographic, and pornography may

or may not be obscene.

7. Constitutional Law Key 90.1(1)

As a general rule, it is presumed

that expression is protected under the

First Amendment until the final judicial

determination of obscenity is made, but

the boundaries delineating obscene mate-

rial from the nonobscene are murky and

ill defined. U.S.C.A.Const. Amend. 1.

8. Constitutional Law Key 90(3)

Statutory prior restraints upon

First Amendment rights in any setting

must be carefully and closely drawn.

U.S.C.A.Const. Amend. l.

9. Constitutional Law Key 90(3)

Three safeguards must be established

before prior restraint on First Amendment

rights can withstand constitutional scru-

tiny: first, the burden of instituting

judicial proceedings and of proving that

the material is unprotected must rest on

the censor; second, any restraint prior

to judicial review can be imposed only

for a specified period and only for the

purpose of preserving the status quo; and

third, a prompt judicial determination

must be assured. U.S.C.A.Const. Amend.

hee

10. Constitutional Law Key 90.1(8)

Obscenity Key 2

The procedures of prior restraint

under Washington's moral nuisance stat-

ute, enacted by initiative 335, failed to

withstand the strict scrutiny required of

large-scale seizures of material pro-

tected under the First Amendment and were

therefore unconstitutional; furthermore,

the initiative's contempt provision was

invalid as providing a summary procedure

for trial of indirect contempts. RCWA

7.48.010 et seq., 7.48.062, 7.48.080

U.S.C.A.Const. Amend. 1.

11. Contempt Key 52

Summary punishment is reserved for

direct contempt, i. e., misbehavior which

happens under the court's own eye within

its hearing. RCWA 7.48.080.

12. Federal Courts Key 51

A declaratory judgment finding a

state law unconstitutional involves less

of an intrusion into the practices and

policies of a state that an injunction.

Robert Eugene Smith, Atlanta, Ga.,

Jack R. Burns, Hubbard & Burns, P. S.,

Kirkland, Wash., for plaintiff.

Leland T. Johnson, Jr., Asst. Atty.

Gen., Slade Gorton, Atty. Gen., Olympia,

Wash., Donald C. Brockett, Spokane County

Pros. Atty., Spokane, Wash., for defen-

dants.

OPINION

FITZGERALD, District Judge.

, Fhe State of Washington, by initia-

tive,” has adopted a broad and comprehen-

sive law dealing with obscenity.

Under Initiative 335, certain places

are declared to be "moral nuisances" and,

as such, injurious to public morals.

Section 2 of the initiative lists the

types of places which constitute a moral

nuisance. Among the establishments list-

ed are theatres which exhibit "lewd

films" and book stores which deal in

“lewd publications."

Employing the procedures of Initia-

tive 335, the attorney general, county or

city prosecutors, or any private citizen

may bring an equitable action to abate

the alleged moral nuisance by filing a

verified complaint. After the filing of

the complaint with a request for a tem-

porary injunction, the judge is required

to grant a hearing within ten days. Upon

application (but before any judicial de-

termination of obscenity) the court can

issue an ex parte order prohibiting any-

one from removing the contents of the es-

tablishment pending the hearing on a mo-

tion for a temporary injunction. And

even if the order banning removal should

not extend to all goods in the establish-

ment, the proprietor may be required to

keep a full accounting of all business

i. Initiative Measure No. 335 (Approved Novem-

ber 8, 1977); 1913 c. 127, RRS § 946; RCW c.

7.48

transactions. Summary contempt punish-

ment is allowed for violations of ‘any

injunctions issued under Initiative 335.

If on hearing for a temporary in-

junction it should be determined that a

temporary injunction will issue and if

the person controlling the alleged nui-

sance was given three days notice for the

hearing, the issuing court may declare a

temporary forfeiture of the real property

involved until a final decision is made

on a permanent injunction. After a final

determination that a place is a moral

nuisance, the judicially declared lewd

matter is to be destroyed, funds received

for the sale of such lewd matter is for-

feited to the local government, and the

real property where the nuisance was lo-

cated may be closed to any purpose for up

to one year.

The plaintiffs operate movie houses

and book stores where sexually oriented

materials are exhibited or sold to the

public. They have brought this case in

federal court claiming violations of fed-

eral constitutional rights and demand

injunctive and declaratory relief. The

central issue is whether Initiative 335

is constitutionally valid.

JURISDICTION

The plaintiffs' amended complaint

claims violations of the United States

Constitution, principally of the First.

Amendment and the Due Process provision

of the Fourteenth Amendment and addition-

al violations of the Fourth, Fifth and

Sixth Amendments.

This court has jurisdiction under

the provisions of 28 U.S.C. § 1343(3).

STANDING

[1] The plaintiffs operate a number

of movie houses and book stores located

in various cities in the State of Wash-

ington. There can be little doubt that

the authors and supporters of Initiative

335 intended to provide an effective and

comprehensive means of controlling ob-

scenity in Washington. It is to be ex-

pected that the state attorney general

and the county prosecutors of Washington

will faithfully and energetically perform

their duties under the law. Should they

fail to do so, private persons are au-

thorized by the initiative to maintain an

action,

‘The plaintiffs' movie houses and

book stores offer sexually oriented ma-

terials to the public which they contend

are protected under the First Amendment

of the United States Constitution.

Threat of prosecutions is very real to

the plaintiffs, and the consequences will

be substantial. The initiative, by its

terms, permits forfeiture of all money

collected by admissions or sale, forfei-

ture of contents and fixtures of the

place where any obscene materials are

found, an order closing the place to any

use for as long as a year, forfeiture of

any lease on the premises, and an injunc-

tion perpetually enjoining the defendants

from maintaining a nuisance anywhere.

[2, 3] Normally, the mere possibil-

ity of erroneous initial application of

constitutional standards by a state will

not justify the enjoining of state statu-

tory procedures. But statutes regulating

expression must be narrowly drawn to a-

void the jeopardizing of First Amendment

rights. Dombrowksi v. Pfister, 380 U.S.

479, 85 &$.CE. 1236, 14 Le. EG. 24 22

(1965).

It has long been recognized

that the First Amendment needs

breathing space and that stat-

utes attempting to restrict or

burden the exercise of First

Amendment rights must be nar-

rowly drawn and represent a

considered legislative judgment

that a particular mode of ex-

pression has to give way to

other compelling needs of so-

ciety. [citations omitted] As

a corollary, the Court has al-

tered its traditional rules of

standing to permit--in the

First Amendments area--'attacks

on overly-broad statutes with

no requirement that the person

making the attack demonstrate

that his own conduct could not

be regulated by a statute drawn

with the requisite narrow spe-

cificity.' Dombrowski v. Pfi-

ster. Broadrick v.Oklahoma,

413 U.S. 601, 611-12, 93 S.Ct.

2908, 2916, 37 L. Ed.2d 830

(1973).

Nor does Broadrick v. Oklahoma un-

dercut Dombrowski, as the defendants con-

tend. In Broadrick, the Court reviewed

an Oklahoma law which prohibited certain

political activity by state employees.

The Court explicitly adopted the broad

10a

standing requirement of Dombrowski, at

least as it pertains to speech or expres-

sion:

Litigants, therefore, are per-

mitted to challenge a statute

not because their own rights of

free expression are violated,

but because of a judicial pre-

diction or assumption that the

statute's very existence may

cause others not before the

court to refrain from constitu-

tionally protected speech or

expression.

Broadrick v. Oklahoma, at 612,

33 S.CC. aS 2946.

But the Court in Broadrick did qualify

its broad standing requirements, noting

that where conduct and not speech is reg-

ulated, statutory overbreadth must be not

only real but substantial.

It is plain that Initiative 335 is

broadly drawn and purposely drafted to

cast a broad net effectively prohibiting

and deterring the dissemination of ob-

scene material. The initiative exposes

anyone who undertakes public exhibition

or sale of sexually oriented material to

the risk of losing not only condemned

material but the proceeds of the busi-

ness, and the place where the business is

conducted if the material is later deter-

mined to be obscene. Beyond this, once

proceedings have been filed, the court

may enjoin disposition of the contents

and materials which are in any way con-

nected with maintaining a nuisance as

defined under the law. The officer serv-

ing the restraining order is to inventory

the contents and materials which appear

lla

to him to be connected with a nuisance.

The owner may also be required to account

for all transactions involving the stock

in trade.

The punitve provision of the initia-

tive would in all probability cause any

reasonable person to avoid the risk of

public exhibition or sale of any materi-

als in which there was any real chance of

an ultimate judicial determination of

obscenity.

I, therefore, conclude that Initi-

ative 335 is overbroad and that the

plaintiffs have standing in this case to

attack the initiative on First and Four-

teenth Amendment grounds.

THE ABSTENTION DOCTRINE

[4] The defendants argue that the

doctrine of abstention should be applied

in this case. This issue was first con-

sidered by United States District Judge

Marshall Neill when he heard the plain-

tiffs' motion for a restraining order.

Judge Neill concluded that abstention was

inappropriate. I agree.

The defendants misconceive the pol-

icy reasons supporting the abstention

doctrine. Once jurisdiction is estab-

lished, a district court is under a heavy

responsibility to go forward with the

matter before it. The Supreme Court has

noted:

The doctrine of absten-

tion, under which a District

2. R.C.W. 7.48.062.

12a

Court may decline to exercise

or postpone the exercise of its

jurisdiction, is an extraordi-

Mary and narrow exception to

the duty of a District Court to

adjudicate a controversy prop-

erly before it. Abdication of

the obligation to decide cases

can be justified under this

doctrine only in the excep-

tional circumstances where the

order to the parties to repair

to the State court would

Clearly serve an important

countervailing interest.

County of Allegheny v. Frank

Mashuda Co., 360 U.S 185, 188-

189, [79 S.Ct. 1060, 1063, 3

L.Ed.2d 1163] (1959).

The abstention doctrine was recently

considered by the Supreme Court in the

case of Ohio Bureau of Employment Service

v. Hodory, 431 U.S. 471, 97 S.Ct. 1898,

52 b.ba.42G 513 (i977). The Court re-

viewed the two principal bases underlying

the doctrine:

There are, of course, two

primary types of federal ab-

stention. The first, usually

referred to as Pullman absten-

tion, involves an inquiry fo-

cused on the possibility that

the state courts may interpret

a challenged state statute so

as to eliminate, or at least to

alter materially, the constitu-

tional question presented.

Railroad Comm'n v. Pullman Co.,

312 U.S. 496, [61 S.Ct. 643, 85

13a

L.Ed.971](1941). See Bellot-

tiv. Baird, 428 U.S. 132, [96

S.Ct. 2857, 49 L.Ed.2d 844]

(1976). The second type is

Younger abstention, in which

the court is primarily con-

cerned in an equitable setting,

with considerations of comity

and federalism, both as they

relate to the State's interest

in pursuing an on-going state

proceeding, and as they involve

the ability of the state courts

to consider federal constitu-

tional claims in that context.

Younger v. Harris, 401 U.S. 37,

[91 S.Ct. 746, 27 L.Ed.2d 669]

(1971). See Huffman v. Pursue,

Ltd., 420 U.S. 592, 195 S.Ct.

1200, 43 L.Ed. 2d 482] (1975);

Juidice v. Vail, 430 U.S. 327,

197 $.Ct. i2zid, 51 L.Bad.24 376)

(1977); Trainor v. Hernandez,

431 U.S. 434, [97 Eseuse APae,

52 L.Ed.2d 486] (1977), id., at

448 (concurring opinion).

Hodory, 431 U.S. at 477, 97

s.Ce. at 2902, 32 b.86.26 at

520.

The arguments made for abstention

rejected in Hodory were much like those

made by the defendants here. In sum, the

defendants contend that since the plain-

tiffs are free to pursue their remedies

in state court, principles of comity re-

quire abstention. But the defendants'

counsel acknowledged during argument that

no state judicial proceedings involving

Initiative 335 are before Washington

courts, and since no state judicial pro-

ceedings are to be disrupted by this pro-

ceeding, I conclude that Younger absten-

tion is not appropriate.

14a

The defendants rely also on Pullman

abstention. Railroad Comm'n v. Pullman

Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed.

971 (1941). Under Pullman, abstention is

proper if a state court might construe

state law in a manner which removes fed-

eral constitutional implications. In

support of their argument for Pullman

abstention, the defendants point to Bel-

lotti v. Baird, 428 U.S. 132, 96 S.Ct.

2857, 49 L.Ed.2d 844 (1976). But that

case is inapplicable. The Court in Bel-

lotti concluded that an interpretation by

the Massachusetts Supreme Judicial Court

might narrow or remove the federal ques-

tions presented and suggested that the

district court should have certified the

question under Massachusetts' procedure

directly to the Supreme Judicial Court

for its construction. Certification pro-

cedure is provided for under the Revised

Code of Washington, 2.60.010-2.60.900,

but the interpretation given to that

statute by the Supreme Court of Washing-

ton precludes certifications in the pres-

ent case.

The procedures of Initiative 335

dealing with obscenity are neither ob-

scure nor ambiguous, and statory con-

struction to ascertain their meaning is

not required. What is in issue is not

the meaning of the statute but whether

procedures under the statute meet consti-

tutional requirements. Since these ques-

tions ultimately involve federal issues,

3. "Nor would this court take jurisdiction

of a certified question which involves ulti-

mately a federal constitutional issue, for

again this would not meet the criteria of

the certification statute" In re Elliott,

Wash., 446 P.2d 347, 358 (1968).

15a

certification is not warranted and Pull-

man abstention is not appropriate.

THE APPLICABILITY OF HICKS v. MIRANDA

The principal thrust of the defen-

dants' argument on the constitutional

issues is that statutory procedures simi-

lar to those here in question have been

previously upheld by the United States

Supreme Court; further, since district

courts are bound to follow decisions of

the Supreme Court under the rule of

Hicks v. Miranda, 422 U.S. 332, 95 S.Ct.

2281, 45 L.Ed.2d 223 (1975), the consti-

tutional issues before this court are

foreclosed from present consideration.

I do not quarrel with the rule that

district courts should follow the deci-

sions of the Supreme Court and not relit-

igate issues of law decided by that

Court. The question is whether defen-

dants are correct in their contentions

that procedures similar to those provided

in Initiative 335 have been previously

upheld in the Supreme Court.

The defendants rely on Grove Press,

Inc., et al. v. Flask, et al., 326 ¥'s

Supp. 574 (N.D. Ohio 1970). In that case

a three-judge court found the film "I Am

Curious Yellow" to be obscene. Compari-

son of the Ohio law with Initiative 335

reveals that the procedures are in many

ways similar. The district court con-

cluded that the provisions of Ohio law

that permitted an ex parte restraining

order preventing the defendant or any

person from interfering with the personal

property and contents of an alleged nui-

sance was not constitutionally impermis-

sible. But that issue was not squarely

16a

before the court since a restraining or-

der had been denied in state court and

prior restraint was not involved. More-

over, unlike Initiative 335, the Ohio law

did not permit the stock in trade to be

inventoried or require a full accounting

of all business transactions.

Commendably, the defendants point

out that the judgment of the three-judge

court in Grove Press, supra, was vacated

and the case remanded after appeal to the

United States Supreme Court. Thus, the

Supreme Court did not pass upon the con-

stitutionality of the Ohio procedures in

Grove Press, supra.

4. . . . Judgment vacated and case remanded for

further consideration in light of Miller v.

California, 413 U.S. 15, 93 S.Ct. 2607, 37

L.Ed.2d 419; Paris Adult Theatre I v. Sla-

ton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d

446; Kaplan v. California, 413 U.S. 115, 93

S.Ct. 2680, 37 L.Ed.2d 492; United States

v. 12 200-ft. Reels Film, 413 U.S. 123, 93

S.Ct. 2665, 37 L.Ed.2d 500; United States v.

Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.

2d 513; Heller v. New York, 413 U.S. 483, 93

S.Ct. 2789, 37 L.Ed.2d 745; Roaden v. Ken-

ucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.

2d 757. MR. JUSTICE BRENNAN, joined by MR.

JUSTICE STEWART and MR. JUSTICE MARSHALL,

would vacate the judgment and remand case

for further proceedings not inconsistent

with his dissent in Paris Adult Theatre

I v. Slaton, 413 U.S. 73, 93 S.Ct. 2628.

See Miller v.California, 413 U.S. 47, 93

$.Ce. Gage. ss

Grove Press, Inc., et al. v. Flask, et al.,

413 U.S. 902, 93 S.Ct. 3026, 37 L.Ed.2d 1013

(1973).

17a

The second case sere an by the

defendants is Ewing v. Without A Stitch,

37 Ohio St.2d 95, 307 N.Ed.2d 911 (1974).

In that case the Supreme Court of Ohio

granted a motion of certificaton allowing

an appeal to consider only four issues:

(1) The applicability of

R.C. 3747.01 et seq. to a thea-

ter in cases involving the ex-

hibition of a single obscene

motion picture film; (2) the

constitutionality of n.C.

3767.01 et seq. prescribing a

method of controlling obscen-

ity; (3) the mandatory: or dis-

cretionary nature of the reme-

dies set forth in R.C. 3767.01

* et seq.; and (4) the availabil-

ity of the nonstatutory remedy

of forfeiture of box office

receipts derived from the ex-

hibition of a film after it was

judicially determined to be

obscene.

In its decision, the court observed that

Ohio law does not permit censorhip in any

form prior to a judicial determination of

obscenity. But the holding also under-

cuts the defendants' position in the

present case in one other respect. The

Ohio Supreme Court concluded that penal-

ties may not be imposed under Ohio ob-

scenity laws unless the person penalized

has knowledge of the offending material's

contents.

a The Ohio court noted Smith v. California,

361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205

(1959) where the Supreme Court struck down

an ordinance imposing criminal penalties on

a book store owner for mere possession of a

18a

[5] Following the decision of the

Supreme Court of Ohio, Ewing v. Without A

Stitch, an appeal was taken to the United

State Supreme Court. There the appeal

was dismissed for want of substantial

federal question. Art Theatre Guild,

ine. v¥. Being, 421 U.S. 92s, Bo 8.Ct.

1649, 44 L.Ed.2d 82 (1975). The summary

dismissal of the appeal by the Supreme

Court is understandable since no consti-

tutional issue was presented. The film

in question, "Without A Stitch," had been

judicially determined to be obscene and

under the principle of Roth v. United

States, 354 U.S. 476, 77 &.Ct. 1304, 1

L.Ed.2d 1498 (1954) was not entitled to

constitutional protection. Thus, the

constitutionality of Initiative 335 is

not foreclosed by prior authoritative

decisions of the United States Supreme

Court.

THE CONSTITUTIONAL ISSUES

[6] The purpose of Initiative 335

is to control public exhibition and sale

of obscene materials. Passage of the

initiative is clear proof that a voting

majority of the State of Washington is

book later determined to be obscene even

though the owner was without knowledge of

the contents of the book. The Supreme Court

reasoned that to impose criminal liability

in such circumstances would force book store

owners to restrict the books they sell to

those they had inspected which would result

in restricting the distribution of constitu-

tionally protected, as well as_ obscene,

books.

6. "Obscene" refers to that which is repugnant

or disgusting to the senses, or offensive,

19a

opposed to public dissemination of ob-

scene films or printed matter. The crit-

ical issue is whether the procedures se-

lected to accomplish the evident purpose

of the law meets federal constitutional

requirements.

[7] As a general rule, it is pre-

sumed that expression is protected under

the First Amendment until a final judis

Cial determination of obscenity is made.

But as may be seen, the boundaries delin-

eating. obscene material from the non-

obscene are murky and ill-defined.

The first significant attempt by the

United States Supreme Court to define the

legal meaning of obscenity occurred in

Roth v. United States. Justice Brennan,

writing for the Court, determined that

obscene material is not entitled to con-

stitutional protection. Once a final

judicial determination is made that ma-

terial is obscene, neither First Amend-

ment nor other constitutional rights are

filthy, foul, repulsive, or loathsome. Ex-

cept as used in the law, it does not neces-

sarily have any sexual connotations. "Por-

nography," on the other hand, derived from

the greek words for harlot and writing, is

limited to depictions of sexual lewdness or

erotic behavior. Definitionally, obscenity

may or may not be pornographic, and pornog-

raphy may or may not be obscene.

Professor Frederick F. Schauer, The Law of

Obscenity, (1976) p. 1.

7. U. S. v. Tupler, 564 F.2d 1294 (9th Cir.

1977). See also, Professor Schauer, The Law

of Obscenity, 1976) p. 229

20a

implicated. Under such circumstances,

the State is not required to establish

either compelling necessity or rational

basis to destroy the pernicious material.

The principle that obscene material

is beyond the scope of constitutional

protections presupposes a definition of

obscenity so that the boundary may be

drawn between what is protected expres-

sion and what is not. The Supreme Court

undertook in Roth to provide such a defi-

nition, recognizing at the outset that

sex and obscenity are not synonymous.

Material is said to be obscene if to the

average person, applying contemporary

community standards, the dominant theme

of the material, taken as a whole, ap-

peals to prurient interest. This formu-

lation was later augmented in Memoirs v.

Massachusetts, 383 U.S. 413, 86:S.Ct.

975, 16 L.Ed.2d 1 (1966). Finally, in

Miller v. California, 413 U.S. 15, 93

S.Ct. 2607, 37 L.Ed.2d 419 (1973), Chief

Justice Burger, writing for the Court,

restated the definition of obscenity as

follows:

(a) ‘whether ‘the average per-

son, applying contemporary com-

munity standards' would find

that the work, taken as a

whole, appeals to the prurient

interest; [citations ommitted]

(b) whether the work depicts or

describes, in a patently offen-

sive way, sexual conduct spe-

cifically defined by the appli-

cable state law; and (c)

whether the work, taken as a

whole, lacks serious literary,

artistic, political, or scien-

tific value.

2la

Miller, supra, at 24, 93 S.Ct.

at 2615.

On the same day as Miller, the Su-

preme Court also decided Paris Adult The-

atre v. Slaton, 413 U.S. 49, 93 S.Ct.

2628, 37 L.Ed.2d 446 (1973). Interest-

ingly, in Paris Theatre Justice Brennan,

the articulator of the Roth definition of

obscenity, now dissented. He was con-

vinced on the basis of gi6 years of ex-

perience following Roth, that no accep-

table definition of obscenity could be

devised which would strike an acceptable

balance between the individual's consti-

tutional rights on the one hand and the

State's interest in regulating dissemina-

tion og sexually oriented material on the

other.

In Initiative 335 the word "lewd" is

generally substituted for the term "ob-

scene", and the definition of lewd

8. Justice Stewart, concurring in Jacobel-

lis v. Ohio, 378 U.S. 184, 197, 84 S.Ct.

1676, 1683, 12 L.Ed.2d 793 (1964), recog-

nized the difficulty in attempting to define

obscenity. He said in part: ". . . perhaps

I could never succeed in intelligibly doing

so. But I know it when I see it, and the

motion picture involved in this case is not

that."

9. "[N]o one definition, no matter how

precisely or narrowly drawn, can possibly

suffice for all situations, or carve out

fully suppressible expression from all media

without also creating a substantial risk of

encroachment upon the guarantees of the Due

Process Clause and the First Amendment."

Paris Adult Theatre, supra, 413 U.S., at 85,

93 S.Ct., at 2648.

22a

generally follows the definition of ob-

scenity set out in Miller. The defen-

dants suggest that since the terms "ob-

scene or lewd" in Initiative 335 comport

with the obscenity definition in Miller,

the initiative cannot be found vague or

overbroad. But the problem of regulating

obscenity is in large part due to diffi-

culty of definition. Freedoi;n of expres-

sion involves sensitive and important

constitutional rights. For these reasons

the Supreme Court has consistently re-

quired that under the First Amendment

efforts to regulate or prohibit obscenity

be surround by procedural safeguards

which

ihe ensure against the cur-

tailment of constitutionally

protected expression, which is

often separated from obscenity

only by a dim and uncertain

line . . Our insistence that

regulations of obscenity scru-

pulously embody the most vigor-

ous procedural safeguards

is... but a special instance

of the larger principle that

the freedoms of expression must

be ringed about with adequate

bulwarks ...

Bantam Books v. Sullivan, 372

U.S. Se, 66, SS S.Ct. G51, 637,

9 L.Ed.2d 584 (1963).

Close examination of Initiative 335

inevitably leads to the conclusion that

the initiative undertakes to regulate

obscenity in a broad and comprehensive

manner. The impact of the law is dir-

ected not only at the offending material

10. R.C.W. 7.48.050.

23a

but at the place where such material may

be found and at,4ny entity or person con-

nected with it. The initiative applies

to films, video tapes, photographs,

books, magazines, pamphlets, illustra-

tions, sound recordings and many other

forms of expression. It permits the

attorney general or any prosecuting at-

torney or a citizen to initiate proceed-

ings in the name of the State of Wash-

ington to abate as a nuisance obscene

films or other material and to close eve-

ry place where obscene films or material

may be publicly exhibited or sold or held

for those purposes.

At the time proceedings are initi-

ated under the initiative, the complain-

ant is entitled to apply for a prelimin-

ary injunction, in which event the court

must 1qrder a hearing within ten (10)

days. Immediately upon a complainant's

filing of the proceedings, the judge is

on good cause authorized to issue a re-

straining order enjoining the defendant

and all other persons from removing or

interfering with the contents and the

personal property of the place where the

nuisance is said to exist, excepting only

stock in trade. The court may require an

accounting of all business transactions

taking place on the premises. The of-

ficer serving the restraining order is

required to make and return to the court

ll. R.C.W 7.48.052.

12. R.C.W. 7.38.050.

13... R.C.W. 7.48.058.

14. R.C.W. 7.48.060.

24a

an inventory of the contents and personal

property located and used in, maintaining

or conducting the nuisance. A defen-

dant. must be given three (3) days notice

prior to the hearing of the preliminary

injunction and the court may order trial

of the case expedited to the time set for

the first hearing.

If a preliminary injunction is

granted, the court may declare temporary

forfeiture on the use of the premises and

issue an order closing the place for add

uses until final decision is rendered.

An admission or finding of guilt of any

person under laws dealing with obscenity

or prostitution is admissible to prove

existence of the nuisance and as prima

facie evidence of nuisance and of know-

ledge and acquiescence and participation

therein on the part of the person charged

with maintaining the nuisance. If ex-

istence of a nuisance is established at

trial, the court shall enter judgment

perpetually enjoining the defendant and

any other person from further maintaining

the nuisance complained of and enjoining

the defendant from, ever maintaining a

nuisance anywhere. Violations of the

restraining order constitute contempts ,of

court which may be summarily punished.

15. R.C.W. 7.48.062.

16. R.C.W. 7.48.064.

17. R.C.W. 7.48.066.

18. R.C.W. 7.48.072.

19. R.C.W. 7.48.078.

20. R.C.W. 7.48.080.

25a

The Supreme Court in Marcus v.

Search Warrant, 367 U.S. 717, 81 S.Ct.

1708, 6 L.Ed.2d 1127 (1961) considered

Missouri procedures somewhat similar to

those outlined in Initiative 335. In

that case under Missouri law, police of-

ficers were permitted to file a sworn

accusation in court alleging possession

of obscene publications for sale. On the

basis of the accusation, the court in an

ex parte proceedings could issue a war-

rant requiring seizure of the offending

material. The court in which the matter

was pending was required promptly to set

a time for hearing.

The Supreme Court held that the Mis-

souri procedures failed to provide due

process sufficient to safeguard consti-

tutionally protected expression under the

First and Fourteenth Amendments. The

Court noted that the holding in Roth re-

cognized no state power to restrict the

dissemination of books which are not ob-

scene:

The question here is

whether the use by Missouri in

this case of the search and

seizure power to suppress ob-

scene publications involved

abuses inimical to protected

expression. We held in Roth

v. United States, 354 U.S. 476,

485, [77 S.Ct. 1304, 1 L.Ed.2d

1498,] that ‘obscenity is not

within the area of constitu-

tionally protected speech or

press.' But in Roth itself we

expressly recognized the com-

plexity of the test of ob-

scenity fashioned in that case

and the vital necessity in its

26a

application of safeguards to

prevent denial of 'the protec-

tion of freedom of speech and

press for material which does

not treat sex in a manner ap-

pealing to prurient interest.'

Id., p. 488, 77 S.Ct. 1304. We

have since held that a State's

power to suppress obscenity is

limited by the constitutional

protections for free expres-

sion. In Smith v. California,

361 U.S. 1467, 155, [80 $.Ct.

215, 4 L.Ed.2d 205] we said,

'The existence of the State's

power to prevent the distribu-

tion of obscene material does

not mean that there can be no

constitutional barrier to any

form of practical exercise of

that power,' inasmuch as 'our

holding in Roth does not recog-

nize any state power to re-

strict the dissemination of

books which are not obscene.'

For the use of these war-

rants implicates questions

whether the procedures leading

to their issuance and surround-

ing their execution were ade-

quate to avoid suppression of

constitutionally protected pub-

lication. ,.-« + See eee

between speech unconditionally

guaranteed and speech which may

legitimately be regulated, sup-

pressed, or punished is finely

drawn. . . . The separation of

legitimate from illegitimate

speech calls for .. . sensi-

tive tools. . .' Speiser v.

Randall, 357 U.S. 513, 525, 178

$.ct. 1332, 2 L.Ed.2d 1460].

27a

It follows that, under the

Fourteenth Amendment, a State

is not free to adopt whatever

procedure it pleases for deal-

ing with obscenity as here in-

volved without regard to the

possible consequences for con-

stitutionally protected speech.

We believe that Missouri's

procedures as applied in this

case lacked the safeguards

which due process demands to

assure nonobscene material the

constitutional protection to

which it is entitled.

Marcus v. Search Warrant, 367

U.S. at 729, 731, 81 S.Ct. at

1715.

While Initiative 335 does not au-

thorize seizure of obscene material under

warrant, it does, as has been described,

authorize a judicial officer to restrain

removal of contents or personal property

of the place where a nuisance allegedly

exists. Neither propety nor contents may

be removed from the premises under the

threat of contempt. Moreover, the court

may order an accounting of all other bus-

iness transactions involving the stock in

trade. Such restraints are permissible

under Initiative 335 before a judicial

determination is made whether the mater-

ial is obscene. Since the boundary be-

tween obscene and non-obscene material is

difficult to draw, the inevitable result

must be that constitutionally protected

material will be swept along with the

obscene. The central point made in

Marcus was that the Missouri procedures

failed to provide adequate constitutional

21. R.C.W. 7.48.062.

28a

protections for non-obscene material.

Initiative 335 suffers from the same de-

‘fect of permitting the suppression of

protected expression.

[8] I have noted that some members

of the Supreme Court now believe it im-

possible to define obscenity within the

certainty required by law. Even more

importantly, fundamental and sensitive

constitutional rights are involved. Un-

derstandably, then, statutory prior re-

straints upon First Amendment rights in

any setting must be carefully and closely

drawn.

[9] The plaintiffs have attacked

Initiative 335 as an unconstitutional

prior restraint on freedom of expression.

The defendants rejoin that prior re-

straints are not necessarily unconstitu-

tional as long as they follow certain

procedural requirements. Southeastern

Promotions, Ltd. v. Conrad, 420 U.S. 546,

95 S.Ct. 1239, 43 L.Ed.2d 448 (1975),

Freedman v. Maryland, 380 U.S. 51, 85

S.Ct. 734, 13 L.Ed.2d 649 (1965). Under

the Freedman-Southeastern Promotions

test, three safeguards must be estab-

lished before the prior restraint can

withstand constitutional scrutiny.

"First, the burden of instituting judi-

Cial proceedings, and of proving that the

material is unprotected, must rest on the

censor. Second, any restraint prior to

judicial review can be imposed only for a

‘specified period and only for the purpose

of preserving the status quo. Third, a

prompt judicial determination must be

assured." Southeastern Promotions,

supra, at 560, 95 S.Ct. at 1247.

29a

This tripartite test for prior re-

straints has been examined in a series of

cases following Freedman v. Maryland.

In Teitel Film Corp. v. Cusack, 390

U.S. 139, 88 S. Ct. 754, 19 L.Ed.2d 966

(1968), the Court reviewed a Chicago film

censorship ordinance which required a

film exhibitor to obtain a permit from

the Chicago Police Department prior to

showing the film. An administrative and

judicial appeals procedure was available

when a permit was denied. The Court

found that the procedure violated the

second and third parts of the Freedman

standard in that it allowed 50-57 days to

complete the administrative process, and

there was no provision for a prompt judi-

cial decision.

United States Post Office regula-

tions aimed at mailers of allegedly ob-

scene material were examined in Blount

v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27

L.Ed.2d 498 (1971). Under the regula-

tions, the Postmaster General made the

determination that certain mailers were

_using the Post Office to convey materials

or solicit money for materials which had

been designated as obscene by the Post-

master General. In that event, the Post-

master General required the offending

mail to be returned to the mailer. The

mailer was prohibited from cashing postal

money orders for the supposedly obscene

mail. The Court found the regulations

similar to those rejected in Marcus v.

Search Warrant, and that they violated

all three parts of the Freedman test.

The Court scrutinized another fed-

eral statute in United States v. Thirty-

Seven Photographs, 402 U.S. 363, 91 S.Ct.

30a

1400, 28 L. Ed.2d 822 (1971) and found

that the customs seizure of sexually-

explicit photographs met the first and

second parts of the standard. In regard

to the thirds aspect, "a prompt final

judicial determination", the Court exam-

ined the facts of the particular seizure

and found that promptness would have been

possible had the photographs' owner not

challenged the statute. The Court con-

cluded that since federal statutes can be

saved by judicial construction if the

construction does not require a rewriting

of the statute and if the judicial con-

struction is in accord with the statute's

legislative history, the customs seizure

conformed to Freedman.

In Heller v. New York, 413 U.S. 483,

93 S.Ct. 2789, 37 L.Ed.2d 745 (1973), the

Court affirmed the seizure of a single

copy of a motion picture film which was

seized as evidence after a judge of the

New York Criminal Court viewed the film

at a theatre and immediately signed a

warrant. Heller amplified the Court's

holding in Lee Art Theatre v. Virginiaw

392 U.S. 636, 8S S.Ct. 2103, 20 L.

1313 (1968) which provided that a 1]

adversary hearing was not required before

the seizing of a single piece of evidence

if the prior judicial determination was

constitutionally valid. The Heller deci-

sion carefully distinguished between sei-

zure of infividesl pieces of evidence and

prior restraints of quantities of ma-

terial:

Courts will scrutinize any

large-scale seizure of books,

films, or other materials pre-

sumptively protected under the

First Amendment to be certain

3la

that the requirements of A

Quantity of Books and Marcus

are fullymet.

Heller, ‘413 U.S. at 491, 93

S.Ct. at 2794.

The most recent Supreme Court con-

siderations of prior restraints emphasize

the ongoing adherence to the Freedman

test. As noted above, Southeastern Pro-

motions is a direct affirmation of the

standard. Further, in McKinney v. Ala-

bama, 424 U.S. 669, 96 S. Ct. 1189, 47

L.Ed.2d 387 (1976) the Court reviewed

Alabama's obscenity regulation scheme and

found that it did not conform to the

“necessary sensitivity to freedom of ex-

pression" required by Freedman and Hel-

ler. McKinney, at 674, 96 S.Ct. at 1193.

The continuing concern with the heavy

burden of prior restraint is seen in the

Court's rejection of a state court's gag

order in Nebraska Press Assn. v. Stuart,

Sa? .U.e. Soe. oe os Ce. 2794, 49 L.Ed.24

683 (1976). While the issue in that case

was not obscenity, the Court's detailed

discussion of prior restraint emphasized

the constitutional limitations on censor-

ship, and Justice Brennan's concurring

opinion approvingly quoted a commenta-

tor's summary of the difficulties of such

restraint:

A system. of prior re-

straint is in many ways more

inhibiting than a system of

subsequent punishment: It is

likely to bring under govern-

ment scrutiny a far wider range

of expression; it shuts off

communication before it takes

place; suppression by a stroke

of the pen is more likely to be

| : 32a

applied than suppression

through a criminal process; the

procedures to not require at-

tention to the safeguards of

the criminal process; the sys-

tem allows less opportunity for

public appraisal and criticism;

the dynamics of the system

drive toward excesses, as the

history of all censorship

shows. T. Emerson, The System

of Freedom of Expression 506

(1970)

Nebraska Press Assn. v. Stuart,

at 589-590, 96 S.Ct. at 2817.

While arguably satisfying the first

and third parts of the Freedman test,

Initiative 335 fails to meet the second

requirement that any prior restraint may

be imposed only for the purpose of pre-

serving the status quo. As already

pointsd out, section 7 of the initia-

tive allows the court to issue an order

"restraining the defendant and all other

persons from removing or in any manner

interfering with the personal property

and contents of the place where such nui-

sance is alleged to exist..." Since a

defendant could under this provision be

prohibited from disposing of all of his

merchandise pending a judicial determina-

tion, the State could during the interim

period effectively shut down a busines

charged with conducting a nuisance.

Instead of

22. R.C.W. 7.48.062.

a. The provision is not saved by the lim-

itation that ". . . pending such [judicial]

33a

carefully limiting the scope of a re-

straining order to specific pieces of

merchandise and allowing the business

itself to continue to function, the ini-

tiative may well severely alter the

status quo to the defendant's detriment.

Moreover, even if certain merchan-

dise designated as "stock in trade" is

not restrained, section 7 provides that

"an inventory and full accounting of all

business transactions may be required."

Again, rather than maintaining the status

quo, this provision imposes additional

burdens on a defendant before a judicial

determination of a moral nuisance has

been made.

[10] I therefore conclude that the

initiative's procedures of prior re-

straint fail to withstand the strict

scrutiny required of large-scale seizures

of material protected under the First

Amendment, Heller, and are therefore un-

constitutional. .

Another serious question arises in

connection with the contempt provision of

the initiative. As part of the enforce-

ment power conferred by Initiative 335,

decision the stock in trade may not be so

restrained." Presumably, "stock in trade”

means that merchandise not considered to be

part of the moral nuisance. But since the

initiative nowhere defines the difference

between "personal property and contents of

the place where such nuisance is alleged to

exist", which may be restrained, and "stock

in trade", which may not.be restrained, non-

obscene as well as obscene material could be

swept into the net of a restraining order.

34a

any person found by a court to have vio-

lated any injunction prescribed by the

initiative is subject to summary trial

and punishment in the court which has

issugq the injunction. The contempt sec-

tion of the initiative provides in

part:

In case of the violation

of any injunction granted under

the provision of RCW 7.48.050

through 7.48.100 as now or

hereafter amended, the court or

judge may summarily try and

punish the offender. The pro-

ceedings shall be commenced by

filing with the clerk of court

an information under oath, set-

ting out the alleged facts con-

stituting such violation, upon

which the court or judge shall

cause an attachment to issue,

under which the defendant shall

be arrested. The trial may be

had upon affidavits, or either

party may demand the production

and oral examination of the

witnesses. A party found guil-

ty of contempt under the pro-

visions of this section shall

be punished by a fine of not

less than two hundred nor more

than one thousand dollars, or

by imprisonment in the county

jail not less than three nor

more than six months, or by

both fine and imprisonment.

Under the law, a variety of acts may sub-

ject the actor to summary contempt pro-

ceedings. Those acts include removing or

24. R.C.W. 7.48.080.

35a

mutilating a copy of the restraining or-

der posted on the premises of the alleged

nuisance; selling or projecting the al-

legedly obscene or pornographic books and

films prior to a judicial determination;

selling the stock in trade of a temporar-

ily restrained establishement without

keeping complete records of the trans-

actions; and removing the contents and

personal property of a restrained estab-

. lishment. While these forms of poten-

tial contempt differ, they will all or-

dinarily occur outside the direct pres-

ence of the court which has issued the

temporary, preliminary or permanent in-

junction.

[11] But summary punishment is re-

served for direct contempt, and direct

contempt is defined as that misbehavior

which happens “under [the court's] own

eye within its hearing", Ex parte Terry,

126 U.S. 269, 9 8.CSs Fre Sa ome. auo

(1888). As defined by a recent Ninth

Circuit case arising in the State of

Washington:

Indirect contempt is contuma-

cious behavior occurring beyond

the eye or hearing of the court

and for knowledge of which the

court must depend upon the tes-

timony of third parties or the

confession of the contemnor.

United States v. Marshall, 451

F.4G S372, 373 (L9TL).

Indirect contempts as such cannot be

tried in the summary manner of 7.48.080.

Rather, as the United States Supreme

Court emphasized over half a certury ago:

25. R.C.W. 7.48.080.

36a

Due process of law, there-

fore, in the prosecution of

contempt, except of that com-

mitted in open court, requires

that the accused should be ad-

vised of the charges and have a

reasonable opportunity to meet

them by way of defense or ex-

planation. We think is in-

cludes the assistance of coun-

sel, if requested, and the

right to call witnesses to give

testimony, relevant either to

the issue of complete exculpa-

tion or in extenuation of the

offense and in mitigation of

the penalty to be imposed.

Cooke v. United States, 267

U.8. Sars. Bar, Ge 8.Ct. 390,

395, 69 L.Ed. 767 (1925).

CONCLUSION

I conclude that statutory procedures

Similar to those contained in Initiative

335 have not previously been sustained in

the United States Supreme Court. I con-

clude that the initiative is overbroad

and fails to provide sufficient safe-

guards for constitutionally protected

expression. Procedures under the initi-

ative amount to a constitutionally imper-

missible prior restraint upon freedom of

speech.

As noted, the plaintiffs now before

this court are threatened with the real

and immediate prospect of prosecution

under Washington's moral nuisance stat-

ute. The plaintiffs' businesses are the

type of establishments that the statute

37a

purports to regulate. There is every

reason to believe that the State of Wash-

ington, county or city prosecutors, or

private citizens will imminently prose-

cute one or more of the plaintiffs on the

basis of Initiative 335. As was noted by

the Supreme Court in Steffel v. Thompson,

415 U.S. 452, 94 S. Ct. 1209, 39 L.Ed.2d

505 (1974):

In these circumstances, it is

not necessary that petitioner

first ‘expose himself to actual

arrest or prosecution to be

entitled to challenge a statute

that he claims deters the exer-

cise of his constitutional

rights.

Steffel, at 459, 94 S.Ct. at

1216.

In short, these plaintiffs and these de-

fendants present an actual, continuing

controversy to this court.

[12] My examination of the statute

enacted by Initiative 335 leads me to

conclude that the statute is facially

unconstitutional. A declaratory judgment

finding a state law unconstitutional in-

volves less of an instrusion into the

practices and policies of a state than an

injunction. Steffel_v. Thompson, and as I

believe that the responsible state offi-

cers involved in this action will not

prosecute under an unconstitutional stat-

ute, I find no present necessity for the

issuance of an injunction.

Accordingly, I find that plaintiffs

are entitled under 28 U.S.C. §2201 to a

declaratory judgment that Initiative 335

is unconstitutional on its face.

Sections

-48

~] ~ ~ ~ ~ i i

-48

. 48

7 ee ee oo

“ ws

48.

.052

.054

48.

050

056

058

.060

-062

.064

066

068

070

.072

.074

076

078

.080

085

090

38a

Chapter 7.48

NUISANCES

Moral nuisances--Definitions.

Moral nuisances.

Moral nuisance--Personal prop-

erty--Effects of notice.

Abate moral nuisance--Enjoin

owner.

Maintaining action to abate

moral nuisance--Bond.

Moral nuisance--Jurisdiction--

Filing a complaint.

Moral nuisance--Restraining

orders--Violations.

Moral nuisance--Hearing--No-

tice--Consolidation with

trial.

Finding of moral nuisance--

Orders.

Abatement of moral nuisance by

owner--Effect on injunction.

Moral nuisance--Priority of

action on calendar.

Moral nuisance--Effects of ad-

mission or finding of guilt.

Moral nuisance--Evidence of

reputation--Admissibility.

Moral nuisance--Trial--Costs--

Dismissal--Judgment.

Moral nuisance--Judgment--Pen-

alties--Disposal of personal

property.

Moral nuisance--Contempt for

violation of injunction.

Moral nuisance--Property owner

may repossess.

Moral nuisance--Contraband--

Forfeitures.

39a

7.48.100 Moral nuisance--Immunity of

certain motion picture thea-

tre employees.

7.48.900 Severability--Initiative Meas-

ure No. 335.

7.48.050 Moral nuisances--Defini-

tions. The definitions set forth in this

section shall apply throughout this chap-

ter as they relate to moral nuisances.

(1) "Knowledge" or “knowledge of

such nuisance" means having knowledge of

the contents and character of the patent-

ly offensive sexual conduct which appears

in the lewd matter, or knowledge of the

acts of lewdness, assignation, or prosti-

tution which occur on the- premise.

(2) “Lewd matter" is *1onymous

with "obscene matter" and means any mat-

ter:

(a) Which the average person, ap-

plying contemporary community standards,

would find, when considered as a whole,

appeals to the prurient interest; and

_ (b) Which depicts or describes pat-

ently offensive representations or des-

criptions of:

(i) Ultimate sexual acts, normal or

perverted, actual or simulated; or

(ii) Masturbation, excretory func-

tions, or lewd exhibition of the genitals

or genital area.

Nothing herein contained is intended to

include or proscribe any matter which,

when considered as a whole, and in the

context in which it is used, possesses

serious literary, artistic, political, or

scientific value.

(3) “Lewdness" shall have and in-

clude all those meanings which are as-

Signed to it under the common law.

—— oo

als.

40a

(4) “Matter” shall mean a motion

picture film or a publication or both.

(5) “Moral nuisance" means a nui-

sance which is injurious to public mor-

(6) “Motion picture film" shall in-

clude any:

(a) Film or plate negative;

(b) Film or plate positive;

on a screen for exhibition;

(ad) Films, glass slides, or trans-

parencies, either in negative or positive

form, designed for exhibition by projec-

tion on a screen;

(e) Video tape or any other medium

used to electronically reproduce images

on a screen.

(7) “Person” means any individual,

partnership, firm, association, corpora-

tion, or other legal entity.

(8) "Place" includes, but is not

limited to, any building, structure, or

places, or any separate part or portion

thereof, whether permanent or not, or the

ground itself...

(9) "Publication" shall include any

book, magazine, article, pamphlet, writ-

ing, printing, illustration, picture, -

sound recording, or a motion picture film

which is offered for sale or exhibited in

a coin-operated machine.

(10) "Sale" means a passing of title

or right of possession from a seller to a

buyer for valuable consideration, and

shall include, but is not limited to, any

lease or rental arrangement or other

transaction wherein or whereby any valu-

able consideration is received for the

use of, or transfer of possession of,

lewd matter. [Initiative Measure No. 335

§ 1 (Approve November 8, 1977);. 1913 c

127 § 1; RRS § 946-1. ]

4la

7.48.052 Moral nuisances. The fol-

lowing are declared to be moral nui-

sances: }

(1) Any and every place in the

state where lewd films are publicly ex-

hibited as a regular course of business,

or possessed for the purpose of such ex-

hibition;

(2) Any and every place in the

state where a lewd film is publicly and

repeatedly exhibited, or possessed for

the purpose of such exhibition;

(3) Any and every lewd film which

is publicly exhibited, or posessed for

such purpose at a place which is a moral

nuisance under this section;

(4) Any and every place of business

in the state in which lewd publications

constitute a principal part of the stock

in trade;

(5) Any and every lewd publication

possessed at a place which is a moral

nuisance under this section;

(6) Every place which, as a regular,

course of business, is used for the pur-

pose of lewdness, assignation, or pros-

titution, and every such place in or upon

which acts of lewdness, assignation, or

prostitution are conducted, permitted,

carried on, continued, or exist;

(7) All public houses or places of

resort where illegal gambling is carried

on or permitted; all houses or places

within any city, town, or village, or

upon any public road, or highway where

drunkenness, illegal gambling, fighting,

or breaches of the peace are carried on

or permitted; all opium dens, or houses,

or places of resort where opium smoking

is permitted. [Initiative Measure No.

335 § 2 (Approved November 8, 1977).]

42a

7.48.054 Moral nuisance--Personal

property--Effects of notice. The follow-

ing are also declared to be moral nui-

sances, as personal property used in con-

ducting and maintaining a moral nuisance;

(1) All moneys paid as admission

price to the exhibition of any lewd film

found to be a moral nuisance;

(2) All valuable consideration re-

ceived for the sale of any lewd publica-

tion which is found to be a moral nui-

sance;

(3) The ‘furniture, fixtures, and

contents of a place which is a moral nui-

sance.

From and after service of a copy of

the notice of hearing of the applciation

for a preliminary injunction, provided

for in RCW 7.48.064, upon the place or

its manager, acting manager, or person

then in charge, all such persons are

deemed to have knowledge of the acts,

conditions, or things which make such

place a moral nuisance. Where the cir-

cumstantial proof warrants a determina-

tion that a person had knowledge of the

moral nuisance prior to such service of

process, the court shall make such find-

ing. [Initiative Measure No. 335 § 3

(Approved November 8, 1977).]

7.48.056 Abate moral nui-

sance--Enjoin owner. In addition to any

other remedy provided by law, any act,

occupation, structure, or thing which is

a moral nuisance may be abated, and the

person doing such act or engaged in such

occupation, and the owner and agent of

the owner of any such structure or thing,

may be enjoined as provided in this chap-

ter. [Initiative Measure No. 335 § 4

(Approved November 8, 1977).]

43a

7.48.058 Maintaining action to a-

bate moral nuisance--Bond. The attorney

general, prosecuting attorney, city at-

torney, city prosecutor, or any citizen

of the county may maintain an action of

an equitable nature in the name of the

‘state of Washington upon the relation of

such attorney general, prosecuting at-

torney, city attorney, city prosecutor,

or citizen, to abate a moral nuisance, to

perpetually enjoin all persons from main-

taining the same, and to enjoin the use

of any structure or thing adjudged to be

a moral nuisancé.

If such action is instituted by a

private person, the complainant shall

execute a bond to the person against whom

complaint is made, with good and suffi-

‘cient surety to be approved by the court

or clerk thereof, in the sum of not less

than five hundred dollars, to secure to

the party enjoined the damages he may

sustain if such action is wrongfully

brought, and the court finds there was no

reasonable grounds or cause for said ac-

tion and the case is dismissed for that

reason before trial or for want of prose-

cution. No bond shall be required of the

attorney general, prosecuting attorney,

city attorney, or city prosecutor, and no

action shall be maintained against such

public official for his official action

when brought in good faith. [Initiative

Measure No. 335 § 5 (Approved Novem-

ber 8, 1977).]

7.48.060 Moral nuisance--Jurisdic-

tion--Filing a complaint. The action

provided for in RCW 7.48.058 shall be

brought in any court of competent juris-

diction in the county in which the prop-

erty is located. Such action shall be

commenced by the filing of a verified

44a

complaint alleging the facts constituting

the nuisance. After the filing of said

complaint, application for a temporary

injunction may be made to the court in

which the action is filed, or to a judge

thereof, who shall grant a hearing within

ten days after the filing. [Initiative

Measure No. 335 § 6 (Approved November

8, 1977); 1913 c 127 § 2; RRS § 946-2. ]

7.48.062 Moral nuisance--Restrain-

ing order--Violations. Where such appli-

cation for a temporary injunction is

made, the court or judge thereof may, on

application of the complainant showing

good cause, issue an ex parte restraining

order, restraining the defendant and all

other persons from removing or in any

manner interfering with the personal

property and contents of the place where

such nuisance is alleged to exist, until

the decision of the court or judge grant-

ing or refusing such temporary injunction

and until the further order of the court

thereon, except that pending such deci-

sion, the stock in trade may not be so

restrained, but an inventory and full

accounting of all business transactions

may be required.

The restraining order may be served

by handing to and leaving a copy of such

order with any person in charge of such

place or residing therein, or by posting

a copy thereof in a conspicuous place at

or upon one or more of the principal

doors or entrances to such place, or by

both such delivery and posting. The of-

ficer serving such restraining order

shall forthwith make and return into

court an inventory of the personal prop-

erty and contents situated in and used in

conducting or maintaining such nuisance.

45a

Any violation of such restraining

order is a contempt of court, and where

such order is posted, mutilation or re-

moval thereof while the same remains in

force is a contempt of court if such

posted order contains therein a notice to

that effect. [Initiative Measure No.

335 § 7 (Approved November 8, 1977).]

7.48.064 Moral nuisance--Hearing--

Notice--Consolidation with trial. A copy

of the complaint, together with a notice

of the time and place of the hearing of

the application for a temporary injunc-

tion, shall be served upon the defendant

at least three days before such hearing.

The place may also be served by posting

such papers in the same manner as is pro-

vided for in RCW 7.48.062 in the case of

a restraining order. If the hearing is

then continued at the instance of any

defendant, the temporary writ as prayed

shall be granted as a matter of course.

Before or after the commencement of

the hearing of an application for a tem-

porary injunction, the court, on applica-

tion of either of the parties or on its

own motion, may order the trial of the

action on the merits to be advanced and

consolidated with the hearing on the ap-

plication for the temporary injunction.

Any evidence received upon an application

for a temporary injunction which would be

admissible in the trial on the merits

becomes a part of the record of the trial

and need not be repeated as to such par-

ties at the trial on the merits. [Initi-

ative Measure No. 335 § 8 (Approved No-

vember 8, 1977). ]

7.48.066 Finding of moral nuisance

--Orders. If upon hearing, the allega-

tions of the complaint are sustained to

46a

the satisfaction of the court or judge,

the court or judge shall issue a tempo-

rary injunction without additional bond,

restraining the defendant and any other

person from continuing the nuisance.

If at the time the temporary injunc-

tion is granted, it further appears that

the person owning, in control of, or in

charge of the nuisance so enjoined had

received three days notice of the hear-

ing, then the court shall declare a tem-

porary forfeiture of the use of the real

property upon which such public nuisance

is located and the personal property lo-

cated therein, and shall forthwith issue

an order closing such place against its

use for any purpose until a final deci-

sion is rendered on the application for a

permanent injunction, unless:

(1) The person owning, in control

of, or in charge of such nuisance shows

to the satisfaction of the court or

judge, ‘by competent and admissible evi-

dence which is subject to cross-examina-

tion, that the nuisance complained of has

been abated by such person; or

(2) The owner of such property, as

a “good faith" lessor, has taken action

to void said lease as is authorized by

RCW 7.48.085.

Such order shall also continue in

effect for such further period as_ the

order authorized in RCW 7.48.062 pro-

vided. If no order has been issued pur-

suant to RCW 7.48.062, then an order re-

straining the removal or interference

with the personal property and contents

located therein shall be issued. Such

restraining order shall be served and the

inventory of such property shall be made

and filed as provided for in RCW 7.48.

062. ;

47a

Such order shall also require such

persons to show cause within thirty days

why such closing order should not be made

permanent, as provided for in RCW 7.48.

078. [Initiative Measure No. 335 § 9

(Approved November 8, 1977). ]

7.48.068 Abatement of moral nui-

sance by owner--Effect on injunction.

The owner of any real or personal prop-

erty to be closed or restrained, or which

has been closed or restrained, may appear

after the filing of the complaint and

before the hearing on the application for

a permanent injunction.

The court, if satisfied of the good

faith of the owner of the real property

and of the innocence on the part of any

owner of the personal property of any

knowledge of its use as a nuisance, and

that with reasonable care and diligence

such owner could not have known thereof

shall, at the time of the hearing on the

application for the temporary injunction

and upon payment of all:costs incurred

and upon the filing of a bond by the own-

er of the real property with sureties to

be approved by the clerk in the full val-

ue of the property to be ascertained by

the court, conditioned that such owner

will immediately abate the nuisance and

prevent the same from being established

or kept, refrain from issuing any order

closing such real property or restraining

the removal or interference with such

personal property, and, if such temporary

injunction has already been issued, shall

cancel said order and shall deliver such

real or personal property, or both, to

the respective owners thereof. The re-

lease of any real or personal property

under this section shall not release it

ee ee ee

48a

from any judgment, lien, penalty, or lia-

bility to which it may be subjected by

law. [Initiative Measure No. 335 § 10

(Approved November 8, 1977).]

7.48.070 Moral nuisance--Priority

of action on calendar. The action pro-

vided for in RCW 7.48.058 shall be set

down for trial at the first term of the

court and shall have precedence over all

other cases except crimes, election con-

tests, or injunctions. [Initiative Mea-

sure No. 335 § 11 (Approved November 8,

1977); 1913 c 127 § 3; RRS § 946-3. ]

7.48.072 Moral nuisance--Effects of

admission or finding of guilt. In such

action, an admission or finding of guilty

of any person under the criminal laws

against lewdness, prostitution, or assig-

nation at any such place is admissible

for the purpose of proving the existence

of such nuisance, and is.prima facie evi-

dence of such nuisance and of knowledge

of, and of acquiescence and participation

therein, on the part of the person

charged with maintaining such nuisance.

[Initiative Measure No. 335 § 12 (Ap-

proved November 8, 1977).]

7.48.074 Moral nuisance--Evidence

of reputation--Admissibility. At all

hearings upon the merits, evidence of the

general reputation of the building or

place constituting the alleged nuisance,

of the inmates thereof, and of those re-

sorting thereto, is admissible for the

purpose of proving the existence of such

nuisance. [Initiative Measure No. 335 §

13 (Approved November 8, 1977).]

7.48.076 Moral nuisance--Trial--

Costs--Dismissal--Judgment. If the ac-

tion is brought by a person who is a

49a

citizen of the county, and the court

finds that there were no _ reasonable

grounds or probable cause for bringing

said action, and the case is dismissed

before trial for that reason or for want

of prosecution, the costs, including at-

torney's fees, may be taxed to such per-

son.

If the existence of the nuisance is

established upon the trial, a judgment

shall be entered which shall perpetually

enjoin the defendant and any other person

from further maintaining the nuisance at

the place complained of, and the defen-

dant from maintaining such nuisance else-

where. The entire expenses of such a-

batement, including attorney's fees,

shall be recoverable by the plaintiff as

a part of his costs of the lawsuit.

If the complaint is filed by a per-

son who is a citizen of the county, it

shall not be dismissed except upon a

sworn statement by the complainant and

his attorney, setting forth the reason

why the action should be dismissed and

the dismissal approved by the prosecuting

attorney in writing or in open court. If

the judge is of the opinion that the ac-

tion should not be dismissed, he may dir-

ect the prosecuting attorney to prosecute

said action to judgment at the expense of

the county, and if the action is contin-

ued for more than one term of court, any

person who is a citizen of the county or

has an office therein, or the attorney

general, the prosecuting attorney, city

attorney, or city prosecutor, may be sub-

stituted for the complainant and prose-

cute said action to judgment. [Initia-

tive Measure No. 335 § 14 (Approved No-

vember 8, 1977). ]

50a

7.48.078 Moral nuisance--Judgment--

Penalties--Disposal of personal property.

If the existence of a nuisance is admit-

ted or established in an action as pro-

vided for in RCW 7.48.058 or in a crimin-

al proceeding, an order of abatement

shall be entered as a part of the judg-

ment in the case, which order shall dir-

ect the removal from the place of all

personal property and contents used in

conducting the nuisance and not already

released under authority of the court as

provided for in RCW 7.48.066 and 7.48.

068, and shall direct the sale of such

thereof as belong to the defendants noti-

fied or appearing, in the manner provided

for the sale of chattels under execution.

Lewd matter shall be destroyed and shall

not be sold.

Such judgment shall impose a penalty

of three hundred dollars for the mainten-

ance of such nuisance, which penalty

shall be imposed against the person or

persons found to have maintained the nui-

sance, and, in case any owner or agent of

the building found to have had actual or

constructive notice of the maintenance of

such nuisance, against such owner or a-

gent, and against the building kept or

used for the purposes of maintaining a

moral nuisance, which penalty shall be

collected by execution as in civil ac-

tions, and when collected, shall be paid

into the current expense fund of the

county in which the judgment is had.

Such order shall also require the

renewal for one year of any bond fur-

nished by the owner of the real property,

as provided in RCW 7.48.068 or, if not so

furnished, shall continue for one year

any. closing order issued at the time of

granting the temporary injunction, or, if

no such closing order was then issued,

5la

shall include an order directing the ef-

fectual closing of the place against its

use for any purpose and keeping it closed

for a period of one year unless sooner

released.

The owner of any place closed and

not released under bond may then appear

and obtain such release in the manner and

upon fulfilling the requirements provided

in RCW 7.48.068.

Owners of unsold personal property

and contents so seized must appear and

Claim the same within ten days after such

order of abatement is made, and prove

innocence to the satisfaction of the

court of any knowledge of such use there-

of, and that with reasonable care and

diligence they could not have’ known

thereof. If such innocence is estab-

lished, such unsold personal property and

contents shall be delivered to the owner,

otherwise it shall be sold as provided in

this section. For removing and selling

the personal property and contents, the

officer shall be entitled to charge and

receive the same fees as he would for

levying upon and selling like property on

execution and for closing the place and

keeping it closed, a reasonable sum shall

be allowed by the court. [Initiative

Measure No. 335 § 15 (Approved November

So, ATT ye3

7.48.080 Moral nuisance--Contempt

for violation of injunction. In case of

the violation of any injunction granted

under the provisions of RCW 7.48.050

through 7.48.100 as now or hereafter a-

mended, the court or judge may summarily

try and punish the offender. The pro-

ceedings shall be commenced by filing

with the clerk of the court an informa-

tion under oath, setting out the alleged

52a

facts constituting such violation, upon

which the court or judge shall cause an

attachment to issue, under which the de-

fendant shall be arrested. The trial may

be had upon affidavits, or either party

may demand the production and oral exam-

ination of the witnesses. A party found

guilty of contempt under the provisions

of this section shall be punished by a

fine of not less than two hundred nor

more than one thousand dollars, or by

imprisonment in the county jail not less

than three not more than six months, or

by both fine and imprisonment. [Initia-

tive Measure No. 335 § 16 (Approved No-

vember 8, 1977); 1913 c 127 § 4; RRS §

946-4. }

7.48.085 Moral nuisance--Property

owner may reposses. If a tenant or oc-

cupant of a building or tenement, under a

lawful title, uses such place for the

purposes of maintaining a moral nuisance,

such use makes void at the option of the

owner the lease or other title under

which he holds, and without any act of

the owner causes the right of possession

to revert and vest in such owne., who may

without process of law make immediate

entry upon the premises. [Initiative Mea-

sure No. 335 § 17 (Approved November 8,

1977).]

7.48.090 Moral nuisance--Contra-

band--Forfeitures. Lewd matter is con-

traband, and there are no property rights

therein. All personal property declared

to be a moral nuisance in RCW 7.48.052

and 7.48.054 and all moneys and other

consideration declared to be a moral nui-

sance under RCW 7.48.056 are the subject

of forfeiture to the local government and

are recoverable as damages in the county

53a

wherein such matter is sold, exhibited,

or otherwise used. Such moneys may be

traced to and shall be recoverable from

persons who, under RCW 7.48.064, have

knowledge of the nuisance at the time

such moneys are received by them.

Upon judgment against the defendants

in legal proceedings brought pursuant to

RCW 7.48.050 through 7.48.100 as now or

hereafter amended, an accounting shall be

made by such defendant or defendants of

all moneys received by them which have

been declared to be a public nuisance

under this section. An amount equal to

the sum of all moneys estimated to have

been taken in as gross income from such

unlawful commercial activity shall be

forfeited to the general funds of the

city and county governments wherein such

matter is sold or exhibited, to be shared

equally, as a forfeiture of the fruits of

an unlawful enterprise and as partial

restitution for damages done to the pub-

lic welfare, public health, and public

morals.

Where the action is brought pursuant

to RCW 7.48.050 through 7.48.100 as now

or hereafter amended, special injury need

not be proven, and the costs of abatement

are a lien on both the real and personal

property used in maintaining the nui-

sance. Costs of abatement include, but

are not limited to the following:

(1) Investigative costs;

(2) Court costs;

(3) Reasonable attorney's fees a-

rising out of the preparation for and

trial of the cause, appeals therefrom,

and other costs allowed on appeal;

(4) Printing costs of trial and

appellate briefs, and all other papers

filed in such proceedings. [Initiative

54a

Measure No. 335 § 18 (Approved November

8, 1977); 1927 c 94 § 1; 1913 ¢ 127 § 5;

RRS § 946-5. ]

7.48.100 Moral nuisance--Immunity

of certain motion picture theatre employ-

ees. The provisions of any criminal stat-

utes with respect to the exhitition of,

or the possession with the intent to ex-

hibit, any obscene film shall not apply

to a motion picture projectionist, usher,

or ticket taker acting within the scope

of his employment, if such projectionist,

usher, or ticket taker (1) has no finan-

cial interest in the place wherein he is

so employed, other than his salary, and

(2) freely and willingly gives testimony

regarding such employment in any judicial

proceedings brought under RCW 7.48.050

through 7.48.100 as now or hereafter a-

mended, including pretrial discovery pro-

ceedings incident thereto, when and if

such is requested, and upon being granted

immunity by the trial judge sitting in

such matters. {Initiative Measure No.

335 § 19 (Approved November 8, 1977);

1927 c 94 § 2; 1913 c 127 § 6; RRS § 946-

6.]

7.48.900 Severability--Initiative

Measure No. 335. If any provision of

this 1977 amendatory act, or its applica-

tion to any person or circumstance is

held invalid, the remainder of the act,

or the application of the provision to

other persons or circumstances is not

affected. [Initiative Measure No. 335 §

20 (Approved November 8, 1977).]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.