# Petition — Brockett v. Spokane Arcades, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 441 U.S. 945

## Text

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 .
i.

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".

11

ii

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

18
la

la

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

iv

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)

10

17

1l

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.

14

ll, 14

10

11

vi

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,

16

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

DONALD C. BROCKETT, Petitioner,
Ve

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).

10

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.

11

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

12

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,

13

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

14

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

15

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:

16

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

17

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.

18

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

la

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

2a

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.

3a

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.

4a

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

Sa

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.

6a

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

7a

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.

8a

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.

a

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
48

-48

48

~] ~ ~ ~ ~ i i

48

-48
. 48

7 ee ee oo

48

“ ws

~J

48.
.052
.054
48.

48.

48.
48.
48.

48.
48.

48.
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;

(c) Film designed to be projected
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).]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2622%3A1. Public record. Not legal advice.