Petition — Warner v. Sovereign News Co.

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Supreme Court, U. &

FILED

APR 21 1980

MICHAEL RODAK, JR., CLERW

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1979

NO.

79-1670

Koy Warner, et 3/

Petitioners

vs.

SOVEREIGN NEWS COMPANY, ET AL.

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

BRUCE A. TAYLOR

440 Leader Building

Cleveland, Ohio 44114

(216) 696-1433

Attorney for Petitioners,

Cleveland Police Officers

SUBJECT INDEX

APPENDIX INDEX

TABLE OF AUTHORITIES

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

JURISDICTION TO REVIEW

PETITIONING PARTIES

QUESTIONS PRESENTED

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

LAW AND ARGUMENT

I. WHETHER THE UNITED STATES

COURT OF APPEALS ABUSED

ITS DISCRETION UNDER 28

U.S.C. SECTION 2106 BY

REMANDING TO THE DISTRICT

COURT AN APPEAL WHICH

RAISES ABSTENTION ISSUES

WITHOUT DECIDING THE

JURISDICTIONAL THRESHOLD

QUESTIONS OR PROVIDING

INSTRUCTIONS TO THE

DISTRICT COURT ON REMAND.

II. WHETHER THE PENDENCY OF A

STATE COURT SEARCH WARRANT

PROCEEDING REQUIRES’ ABSTEN-=-

16-21

mee ren amee 2 - ae =~

Iit.

IV.

Page

TION UNDER YOUNGER FROM

FEDERAL CLAIMS OF UNCONSTI-

TUTIONALITY OF STATE

STATUTES, INVALIDITY OF

STATE SEARCH WARRANT, AND

UNREASONABLE SEARCH UNDER

STATE SEARCH WARRANT

UNLESS CLAIMANT PRESENTS

THESE QUESTIONS FIRST TO

STATE JUDGE WHO ISSUED

THE SEARCH WARRANT. 21-27

WHETHER THE PENDENCY OF

APPEAL IN STATE SUPREME

COURT OF THE INTERME-

DIATE STATE APPELLATE

COURT DECISION UPON WHICH

FEDERAL DISTRICT COURT

RELIED IN FINDING STATE

STATUTE UNCONSTITUTIONAL

REQUIRES ABSTENTION UNDER

PULLMAN UNTIL STATE

SUPREME COURT CONSIDERS

OR CONSTRUES THAT STATE

STATUTE. 27-34

WHETHER OHIO REVISED CODE

SECTION 2907.01(F), THE

STATUTE RULED INVALID BY

THE DISTRICT COURT AND

PURUSANT TO WHICH OBSCENITY

IS DEFINED IN OHIO, IS UN-

CONSTITUTIONALLY OVERBROAD

OR VAGUE AS WRITTEN AND

CONSTRUED BY THE SUPREME

COURT OF OHIO AND THE

COURTS OF APPEALS OF OHIO. 34-51

A. The Supreme Court Of

Ohio Has Authoritatively

Construed The Ohio

Obscenity Statute To

Conform With Miller v.

California And The

Statute 1s Therefore

Constitutional. 35

CONCLUSION 51-52

CERTIFICATE OF SERVICE 53

APPENDIX

iii

— on ne i

APPENDIX INDEX

EXHIBIT A

SOVEREIGN NEWS COMPANY VS.

JOHH T. CORRIGAN, ET AL.

610 F.2d 428 (6th Cir. 1979)

EXHIBIT B

SOVEREIGN NEWS COMPANY VS.

LEE C. FALKE, ET AL.

448 F.Supp. 306 (N.D. Ohio E.D. 1977)

EXHIBIT C

OHIO REVISED CODE SECTION 2907.01 (F)

EXHIBIT D

STATE OF OHIO VS. RONALD BURGUN, ET AL.

56 Ohio St.2d 354 (1978)

EXHIBIT E

SEARCH WARRANT RETURN AND JOURNAL ENTRY,

SEARCH WARRANT RECEIPT, SEARCH WARRANT,

AND AFFIDAVIT FOR SEARCH WARRANT

EXHIBIT F

LARRY FLYNT, ET AL. VS. SIMON LEIS, ET AL.

Unreported Decision of Nov. 30, 1976

TABLE OF AUTHORITIES

Aero Mayflower Transit Co. v.

Board of R. Comrs.,

332 U.S. 495 (1947)

Albertson v. Millard,

345 U.S. 242 (1953)

Art Theatre Guild v. Ewing,

421 U.S. 923 (1975)

Baggett v. Bullitt,

377 U.S. 360 (1964)

Bellotti v. Baird,

428 U.S. 132 (1976)

Cincinnati v. Walton,

145 N.E.2d 407 (1957)

Coleman v. PACCAR, Inc.,

424 U.S. 1301 (1976)

Colorado River Dist. v. U.S.,

424 U.S. 800 (1976)

The Conqueror,

166 U.S. 110 (1897)

Crowley v. Christensen,

137 U.S. 86 (1890)

Doran v. Salem Inn, Inc.,

422 U.S. 922 (1975)

Flynt v. Leis,

(Unreported) (S.D. Ohio 1976)

(Exhibit F in Appendix)

Forest Hills Utility v. Whitman,

41 Ohio St.2d 25 (1975)

Garcia v. Motor Acci. Ind. Corp.,

238 N.Y.S.2d 195 (1963)

Giles v. Maryland,

386 U.S. 66 (1967)

Gillespie v. U.S. Steel Corp.,

379 U.S. 148 (1964)

Grove Press v. Flask,

326 F.Supp. 574

(N.D. Ohio E.D. 1970)

Guaranty Trust v. Blodgett,

287 U.S. 509 (1933)

Harmar Theatres v. Cryan,

393 F.Supp. 34 (D.N.J. 1975)

Heppel v. Columbus,

106 Ohio St. 107 (1922)

Herrick v. Kosydar,

44 Ohio St.2d 128 (1975)

Hicks v. Miranda,

442 U.S. 332 (1975)

Hollington v. Ricco,

40 Ohio App.2d 57 (1973)

Huffman v. Pursue, Ltd.,

420 U.S. 592 (1975)

Jacobellis v. Ohio,

378 U.S. 183 (1964)

Jeffery v. Cleveland Muni. Ct.,

N.D. Ohio No. C79=441

13, 34

2,13,34

25, 26

41, 48

25,30,35

Juidice v. Vail,

430 U.S. 327 (1977)

Kingsley Pictures v. Regents,

360 U.S. 684 (1959)

Kovacs v. State of Ohio,

24 N.P.(N.S.) 1 (1921)

Lee v. Cleveland Muni. Ct.,

Mercer v. Theriot,

377 U.S. 152 (1964)

Miller vy. California,

Si2 U.S. .15 (292738)

ae 45

5, 7, 28, 29,

36-45, 49-51

Mishkin v. New York,

383 U.S. 502 (1966)

Moody v. Thrush Corp.,

35 Ohio Misc. 84 (1972)

Moore v. Sims,

60 L.Ed.2d 994 (1979)

Moore v. Cleveland Muni. Ct.,

Moss v. Columbus Bd. of Ed.,

55 Ohio Misc. 7 (1978)

Muskegon Theatres v. Muskegon,

507 F.2d 199 (6th Cir. 1974)

Murray v. McCrystal,

99 Ohio App. 441 (1955)

New American Library v. Allen,

114 F.Supp. 823

vii

26, 28,30

New Orleans v. Dukes,

427 U.S. 297 (1976) 215,34

P.A.B., Inc. v. Stack,

440 F.Supp. 937

(S.D. Fla. 1977) 50

Philippine Sugar v. Philippines,

247 U.S. 385 (1918) 19

Procunier v. Martinez,

416 U.S. 396 (1974) 8, 29

Railroad Commission v. Pullman,

312 U.S. 496 (1941) 8, 28-29

Reece v. Georgia,

350 U.S. 85 (1955) 15

Sessions v. Skelton,

163 Ohio St. 409 (1955) 25

Sheehan v. Comm. Travelers,

283 Mass. 543 (1933) 19

Southdale Center, Inc. v. Lewis,

260 Minn. 430 (1961) 19

Sovereign News Co. v. Corrigan,

610 F.2d 428 (6th Cir. 1979) 2,17-19

Sovereign News Co. v. Falke,

448 F.Supp. 306

(N.D. Ohio E.D. 1977)

2,6-8,20,22,

37,42-44,47

Spiker v. Cleveland Muni. Ct.,

Stanley v. Schwalby,

162 U.S. 255 (1896) 19

State of Ohio v. Dalene Burgun,

49 Ohio App.2d 112 (1976) 7,33, 35,

41,45,48

viii

State of Ohio v. Ronald Burgun,

56 Ohio St.2d 354 (1978)

21,36,41-43,

5,8,10,11,

Turoso v. Cleveland Muni. Ct.,

46, 48-49

State of Ohio v. Harrison,

20 Ohio Misc. 282 (1969) 22

State of Ohio v. Lerner,

81 N.E.2d 282 (1948) 45, 48

State of Ohio v. Thomas,

57 Ohio St.2d 71 (1979) 41

State of Ohio v. Today's Bookstore,

(Unreported Appeal, 1977)

State of Ohio v. Valchar,

34 Ohio App.2d 21 (1972)

State of Ohio v. Vuin,

185 N.E.2d 506 (1962)

State, ex rel. Ewing v. Film

Entitled "Without A Stitch",

37 Ohio St.2d 92 (1974)

State, ex rel. Foreman v.

Municipal Court,

12 Ohio St.2d 26 (1967)

State, ex rel. Keating v. Film

Entitled "Vixen",

35 Ohio St.2d 215 (1973)

State, ex rel. Sensenbrenner v.

Adult Book Store,

35 Ohio St.2d 220 (1973)

Stringfellow v. Cain,

99 U.S. 610 (1879)

Trainor v. Hernandez,

431 U.S. 434 (1977)

6,41,45

35,41,48

40, 48

N.D. Ohio Nos. C79-442, 1010 10-11

United Gas v. Ideal Cement,

369 U.S. 134 (1962) 24

United States v. Burnison,

339 U.S. 87 (1950) 38

United States v. G.M. Corp.,

323: 0.8: 373 (2945) 3

Ward v. Illinois,

3. 0.8: 767 (2977) >. ee.

39-40 ,47,50

Wechsler v. Bowman,

285 N.Y. 284 (1941) 19

Younger v. Harris,

10.8. 37. W971) 8

Youngstown v. DeLoreto,

19 Ohio App.2d 267 (1969) 48

Zwickler v. Koota,

389 U.S. 241 (1967) 8, 29

STATUTES

Ohio Revised Code, §2907.01(F) 4, 45

28 U.S.C., §1254(1) 2

§1254 (2) 14

§2106 4,5,16-17

§2281 14

90 Stat. 1119 14

REFERENCE

Supreme Court Practice,

Stern & Gressman

(5th Ed. 1978) 15

OPINIONS BELOW

The per curiam opinion and order of

In The the Court of Appeals is reported at 610

F.2d 428. A copy thereof is set out in

SUPREME COURT OF THE UNITED STATES | the Appendix to this petition as Exhibit

| A, and bears the style: Sovereign News

| Company v. John T. Corrigan, Prosecu

October Term, 1979 RE SEES

The opinion of the District Court

NO below, per Judge John M. Manos, is reported

‘ at 448 F.Supp. 306 (October 31, 1977). A

copy thereof is set out in the Appendix as

Exhibit B, and bears the style: Sovereign

News Co. v. Lee C. Falke, Prosecuting

CLEVELAND POLICE OFFICERS Secaaae ak a :

Petitioners

JURISDICTION TO REVIEW

vs.

| The date of the opinion and order of

SOVEREIGN NEWS COMPANY, ET AL. the Court of Appeals sought to be reviewed

is December 7, 1979.

Respondents |

| Rehearing and rehearing en banc were

| denied on January 22, 1980 (See order

reference at 610 F.2d 428).

PETITION FOR WRIT ag = Sy at : Jurisdiction of this Court is invoked

TO THE UNITED STATE a emery under Section 1254(1) of Title 28 of the

APPEALS FOR THE SIXT United States Code.

The following decisions sustain the

power and jurisdiction of this Court to

review the opinion and order which is the

subject of this petition: New Orleans v.

Petitioners, Cleveland Police Officers,

pray that a writ of certiorari’ be issued

to review a judgment and order, entered on Dukes, 427 U.S. 297, 301-02

' ’ ee ’ ae ; oie—

December 7, 1979, by the United States man v. PACCAR, Inc., 424 U.S. 1301, T3032”

Court of Appeals for the Sixth Circuit,

remanding the preliminary injunction and (1976); Doran v. Salem Inn, Inc., 422 U.S.

922, 927 (1975); ci i lespis v. U.S. Steel

; Mercer v.

Theriot, 377 U.S. 152, 153-54 (1964);

declaratory judgment appeal to the United

States District Court for the Northern Corp., 379 U.S. 148, 15 96

District of Ohio, Eastern Division.

United States v. General Motors Corp., 323

U.S. 373, 377 (1945); The Conqueror, 166

U.S. 110, 113 (1897).

The special and unusual éircumstances

which warrant exercise by this Court of its

discretionary power to issue the common law

writ of certiorarri, as requested by this

petition, are set forth under the heading

"Reasons for Granting the Writ” (infra,

pp. 12-16).

PETITIONING PARTIES

The petitioners are referred to as

"Cleveland Police Officers" as a convenience

in identifying the numerous members of the

Cleveland Police Department who were named

as defendants in the Complaint filed in

District Court on March 7, 1977.

The officers as named in the Complaint

are: "Roy Warner, L. Thompson, John Craw-

ford, Archie Catavalos, Kenneth White,

William Poe, Richard B. Millett, John H.

Devine, James Lynsky, Vincent G. Krawulski,

Carl Delau, Andrew S. Vanyo, James _ +

Kennelley, Robert J. Cermak, Henry Yisha/

Gregroy Kunz, B. Jones, Richard McIntosh,

John McNamara, Edward C. Lucas, Samuel

Hennie, Charles Berkey, Robert O'Brien,

and members Kaminski, Banyon and McGreer

#1538". :

These police officers have.been collec-

tively referred to as "Cleveland Police

Officers" in the District Court and Court

of Appeals pleadings and briefs, and that

practice is repeated here.

QUESTIONS PRESENTED

I. Whether the United States Court

of Appeals abused its discretion under 28

U.S.C. Section 2106 by remanding to the

District Court an appeal which raises

abstention issues without deciding the

jurisdictional threshold questions or

providing instructions to the District

Court on remand.

II. Whether the pendency of a state

court search warrant proceeding requires

abstention under Younger from federal

claims of unconstitutionality of state

statutes, invalidity of state search

warrant, and unreasonable search under

state search warrant unless claimant pre-

sents these questions first to state court

which issued the search warrant.

III. Whether pendency of appeal in

state supreme court of the intermediate

state appellate court decision upon which

federal district court relied in finding

state statute unconstitutional requires

abstention under Pullman until state

Supreme court considers or construes that .

state statute. ;

Iv. Whether Ohio Revised Code Section

2907.01(F), the statute ruled invalid by

the District Court and pursuant to which

obscenity is defined in Ohio, is unconsti-

tutionally overbroad or vague as written

and construed by the Supreme Court of Ohio

and the Courts of Appeals of Ohio.

STATUTORY PROVISIONS INVOLVED

Ohio Revised Code, Section 2907.01(F),

is set out in the Appendix as Exhibit Cc.

It is published in "Page's Ohio Revised

Code", Title 29, Page 38 (Cincinnati; W.H.

Anderson Co., 1975). This section has been

construed in pari materia with Miller v.

California, 413 U.S. 15, at 24-25 (1973),

by the Supreme Court of Ohio in State of

Ohio v. Ronald Burgun, 56 Ohio St.2d 354,

356-61, 384 N.E.2d 255, 258-61 (1978), a

copy of which is set out in the Appendix

as Exhibit D.

United States Code, Title 28, Section

2106:

The Supreme Court or any

other court of appellate juris-

diction may affirm, modify,

vacate, set aside or reverse

any judmgent, decree, or order

of a court lawfully brought

before it for review, and may

remand the cause and direct

the entry of such appropriate

judgment, decree, or order,

Or require such further pro-

ceedings to be had as may be

just under the circumstances.

STATEMENT OF THE CASE

On February 15, 1977, the Court of

Common Pleas for Cuyahoga County, Ohio,

issued a Search Warrant directing the

affiant, a Dayton, Ohio, police officer,

and the Cleveland Police Department, to

conduct a search of a warehouse in Cleveland

expected to belong to the Sovereign News

Company and containing copies of several

magazines which were the subject of Search

Warrants issued by the Dayton Municipal

Court and held probably obscene, and also

papers and records and other evidence show-

ee ee ~~

ing a connection between the Sovereign News

Company and the distribution of these maga-

zines in Montgomery County, Ohio. The

evidence was sought for possible violations

of Ohio's Pandering Obscenity statute, Ohio

Revised Code Section 2907.32, and Ohio's

Organized Crime statute, Ohio Revised Code

Section 2923.04.

After filing a Complaint in the United

States District Court for the Northern

District of Ohio, Eastern Division, seeking

monetary, declaratory and equitable relief

against several Cleveland and Dayton Police

officers, the plaintiff Sovereign News

Company moved for a Preliminary Injunction.

The Complaint alleged jurisdiction

under 28 U.S.C. Section 1331, 1343(1),

1343(3), 1343(4) and 2201, and under 42

U.S.C. Section 1983. The District Court

found jurisdiction proper under all such

statutory provisions. See: Sovereign News

Co. v. Falke, 448 F.Supp. 306, ur es

(N.D. Ohio E.D. 1977).

The District Court withheld ruling on

the Motions to Dismiss of defendants and

held a hearing on March 29, 30, and 3l, #

1977. These motions raised abstention

issues and contended that the District

Court should have dismissed or withheld

ruling on the statutory objection claims

in favor of allowing Ohio courts to pass

on the constitutional validity of the Ohio

statutes and the Search Warrant..

On May 19, 1977, the Ohio Court of

Appeals for Montgomery County (Dayton)

announced State of Ohio v. Today's Book-

stores, Inc., No. 5248, an unreported

decision which held that the Ohio defini-

tion of obscenity was valid if construed

to include the "Miller Test" and upheld a

jury instruction upon the Ohio statute

which also charged the guidelines of

Miller v. California, 413 U.S. 15, at 24

(1973). The Court relied upon the earlier

decision of State of Ohio v. Dalene Burgun,

49 Ohio App.2d 112, 123-24, 127, 359 N.E.2d

1018, 3 Ohio Ops.3d 177 (Cuyahoga County,

1976), which upheld a like Cleveland Munic-

ipal Court jury instruction.

On June 9, 1977, this Court decided

Ward v. Illinois, 431 U.S. 767, wherein

the Illinois pre-Miller obscenity statute

was upheld as construed by Illinois courts.

In July and August of 1977, the Cuya-

hoga County Court of Appeals affirmed four

Cleveland obscenity convictions. These

were the unreported decisions of: State

v. Turoso, No. 36368 (July 14, 1977); State

v. Bayless, No. 36264 (July 21, 1977);

State v. Krute, No. 36092 (August 4, 1977);

and State v. Ronald Burgun, No. 36078

(August 18, 1977). in the first three

cases, the jury was charged with both the

Ohio statute and the "Miller Test". In the

Ronald Burgun case, the jury was given only

the Ohio Statute. é

On October 6, 1977, Ronald Burgun

filed his Memorandum in Support of Juris-

diction in the Ohio Supreme Court, seeking

review of the affirmance by the County

Court of Appeals.

On October 31, 1977, the U.S. District

Court issued its Judgment Order and Memo-

randum of Opinion in the case of Sovereign

News Co. v. Falke, which had been heard on

the motion for preliminary injunction ‘seven

months earlier. This is the reported case,

448 F.Supp. 306 (N.D. Ohio E.D. 1977),

inca OE? Analy een a

which is involved in this appeal and is

inciuded in the Appendix hereto as Exhibit

B. The opinion held that abstention was

applicable as to the Montgomery County

Prosecuting Attorney, Lee C. Falke, and to

the Dayton police officers, E. R. Robinson

and C. L. Dalrymple, since the fruits of

the February 16, 1977, search of Sovemeign

News had already been presented in part to

the Grand Jury before "proceedings of sub-

stance" were reached in the federal action.

Sovereign News, supra at 329-31, and 33l-

The District Court refused to abstain

as to the Cuyahoga County Prosecuting

Attorney, John T. Corrigan, and the Cleve-

land Police Officers. The Court reasoned

that no charges had been brought nor Grand

Jury convened and therefore abstention did

not apply under Younger v. Harris, 301

U.S. 37 (1971). Id., at 372-78. The Court

also reasoned that abstention under

Railroad Commission v. Pullman, 312 U.S.

496 (1941), did not apply because of: (1)

the presence of “extraordinary circum-

stances" under Younger, Id., at 380; (2)

the First Amendment challenge nullified |

deference to state courts as a forum under

Baggett v. Bullitt, 377 U.S. 360, 378-79

(Ise4); Zwickler v. Koota, 389 U.S. 241,

251-52 (1967); and Procunier v. Martinez,

416 U.S. 396, 401-04 (1974), Id., at 382-

84; (3) the Ohio obscenity statute is not

"fairly susceptible to a narrowing state

court construction” under Bellotti v.

Baird, 428 U.S. 132, 143-51 (1976), Ward v.

Illinois, 431 U.S. 767 (1977), Id., at

386-87 and 400-06; and (4) the combination

of the "threat" of prosecution in Cuyahoga

County and the decision in State v. Ronald

Burgun, supra, “would engender a uniquely

severe Ev euac™ effect" on Sovereign's

future pornography operations, Id., at

388-39.

The District Court, having declined

to abstain from the Cuyahoga County and

Cleveland claims, declared on October 3l,

1977, that the Ohio definition of obscenity

statute, O.R.C. 2907.01(F), was unconsti-

tutionally overbroad and vague on its face

and that the Cuyahoga Prosecutor and

Cleveland Police would be enjoined from

enforcing the obscenity law against

Sovereign News Company. Id., at 390-406.

On November 17, 1977, the ie ge Pata

City Prosecutor filed a Response to e

sectantetional statement Filed by Ronald

Burgun in the Ohio Supreme Court and a

Petition for Confession of Error. The

prosecutor urged that the Court take the

case and reverse the conviction for failure

to charge the jury on the "Miller Test".

On December 1, 1977, the Ohio Supreme

Court granted a Motion to Certify in State

v. Ronald Burgun, State v. Bayless, an

State v. Turoso. State v. Krute was allowed

and consolidated on January 13, 1978.

In December of 1977, the Cleveland

Municipal Court, by agreement of the judges,

dismissed over one hundred pending mis-

demeanor obscenity cases. The Court felt

compelled to defer to the judgment of the

U.S. District Court in the Sovereign News

decision and to forego further’ prosecutions

until the federal-state controversy over

the Ohio Statute was resolved. There have

been no arrests for Pandering Obscenity

since 1977 by the Cleveland Police Depart-

ment.

On December 7, 1978, the Supreme Court

of Ohio announced State of Ohio v. Ronald

Burgun, et al., 56 Ohio St.2d 354, 384

N.E.2d 255, rehearing denied on January 17,

1979. (No appeal as of right was taken to

this Court.) See copy aitached as Exhibit

D in the Appendix hereto. The Ohio Supreme

Court reversed the conviction of Ronald

Burgun for lack of a Miller charge, upheld

the other three convictions where the

statute and the "Miller Test" were given,

and upheld the constitutionality of the

definitional statute, Ohio Revised Code

Section 2907.01(F). The Court stated the

law of the case in Syllabus One:

R.C. 2907.01(F), which sets forth

the definition of "obscenity",

is neither unconstitutionally

overbroad nor void for vague-

ness when it is authoritatively

construed to incorporate the

guidelines prescribed in Miller

Ve. Caii fornia, 413 0.8. 15.

Between February 8th and April 5th of

1979, the Cuyahoga County®Court of Appeals

announced several decisions affirming

Cléveland Municipal Court convictions for.

Pandering Obscenity for trials held in 1977

and before. Nine cases have been filed in

the U.S. District Court (N.D. Ohio E.D.)

seeking habeas corpus relief from sentenc-

ing, in liew of further appeals to the Ohio

Supreme Court. These habeas corpus cases

in the federal court are the following:

Roy Jeffery v. Cleveland Municipal Court,

et al., No. C79-441; Frank Turoso v.

Cleveland Municipal Court, No. C79-442;

William Lee v. Cleveland Municipal Court,

No. C79-474; Charles Moore v. Cleveland

Municipal Court, No. C79-475; Laura Spiker

v. Cleveland Municipal Court, Nos CISC OTF

Laura Spiker v.»Cleveland Municipal Court,

No. C79=704; Frank Turoso v. Cleveland

Municipal Court, No. C79-1010; Dalene Burgun

v. Cleveland Municipal Court, No. C79=1900.

All these cases are pending before the

District Court without final decision. One

of these cases, Frank Turoso, supra, No.

C79-747, is one of the convictions affirmed

by the Ohio Supreme Court in State v. Ronald

Burgun, supra, 56 Ohio St.2d 354 (1978).

On March 26, 1980, a Report and

Recommended Decision of Magistrate, was

filed in Turoso v. Cleveland Municipal

Court, No. C79-1010. The U.S. Magistrate

has recommended that habeas corpus be

granted. The Report finds constitutional

error in the jury instruction, like that

approved by the Supreme Court of Ohio in

State v. Burgun, supra, because the mere

adding of the "Miller Test" to the Ohio

statute does not satisfy the specificity

requirement of the Miller decision. The

Report concludes that an additional charge

1s needed to define the terms referring to

sexual activity in the Ohio law.

On April 10, 1979, the Cleveland

Police Officers, Defendants-Appellants in.

the Court of Appeals for the Sixth Circuit,

No. 78-3065, moved the Court for an order

expediting the appeal of the District

Court's injunction and declaratory judgment.

On June 14, 1979, these Appellants supple-

mented the Motion to Expedite to notify the

Court of Appeals of the habeas corpus

actions and requested oral arguments be

held before summer recess. On June 25,

1979, the Court of Appeals granted the

expedited appeal and set oral arguments

for the October term of 1980. On October 4,

1979, oral arguments were presented to the

Court of Appeals.

On December 7, 1979, the Court of

Appeals announced its per curiam opinion.

The four paragraph decision noted that in

1977 the District Court found the Ohio

statute invalid and in 1978 the Ohio

Supreme Court held it constitutional as

construed. The Court of Appeals then

"Ordered that these cases be remanded to

the district court for further considera-

tion in the light of the decision of the

Supreme Court of Ohio in State of Ohio v.

Burgun". The Cleveland Police Officers

moved for rehearing, which was denied on

January 22, 1980. (610 F.2d 428) The

Mandate has been stayed pending the peti-

tion for certiorari to this Court.

REASONS FOR GRANTING THE WRIT

There is a history of judicial con-

struction of Ohio obscenity law by Ohio

courts to adopt the latest "tests" for

obscenity announced by this Court. The

Ohio statutes have continually been sub-

ject to judicial review and construction

as federal constitutional standards have

changed. Many Ohio decisions have

specifically limited obscenity in Ohio to;

sexual conduct rather than mere nudity and

have announced applicable standards even

before the decisions of this Court have

recognized such concepts as "community

standards", "taken as a whole", "patently

offensive", and "value". (See discussion

of Ohio case law infra, Part IV, pp. 34).

The federal interference represented

by this lawsuit and the District Court's

Opinion has been severe. In order to give

this Court the totality of circumstances,

the Statment of the Case set forth an ex-

panded factual situation to allow this

Court to rely in part on "material not

part of the record" under this Court's

"practice of noticing supervening matter

in order to avoid deciding constitutional

questions by allowing state courts to take

action which might dispose of the case".

Giles v. Maryland, 386 U.S. 66, 80 (1967).

Though it is too late to prevent the

interruption with the obscenity prosecu-

tions of the City of Cleveland, which has

existed for over two years, this Court

alone can prevent further delay and

interference with enforcement of Ohio

obscenity law pursuant to the mandates of

the Supreme Court of Ohio.

The decision of the Court of Appeals

to remand this case to the District Court

for “further consideration" is an invita-

tion to review state law and the opinion

of the Ohio Supreme Court. This will

result in a failure to afford the Cleveland

Police Officers their right of appeal

on abstention grounds from the original

District Court decision.

As was the case in Gillespie v. U.S...

Steel Corp., 379 U.S. 148, 152-53 (1964),’

this Court should recognize the "finality"

in the Court of Appeals’ remand on the

abstention issues. The eventual costs to

the parties in time and expenses, plus the

harm to the public by the open spread of

hard core pornography which has flourished

since the District Court entered its pro-

tective order in 1977, would be avoided by

this Court's deciding the abstention and

statutory validity claims at this time.

The instant situation is like that which

led this Court to decide Gillespi, supra at

153, where this Court stated: Meever,

delay of perhaps a number of years in

having the brother's and sisters’ rights

determined might work a great injustice on

them, since the claims for recovery for

their benefit have been effectively cut

off so long as the District Judge's ruling

stands."

Furthermore, the appellate remedies of

the Cleveland Police Officers have been

effectively denied by a combination of

circumstances and judicial indifference.

As pointed out in Part I below, the Court

of Appeals has abused its discretion in

remanding this case without instructions.

If the Court of Appeals had affirmed the

District Court's judgment, these Police

Officers would have been entitled to an

appeal as of right to this Court under 28

U.S.C. Section 1254(2). This Court would

then be finally deciding the ultimate

question of whether the Ohio obscenity

statute is constitutional as written and

construed. By failing to affirm, or other-

wise directing the District Court on re-

mand, these defendants are left with this.

appeal by way of certiorari under Section

1254(1).

It is also a measure of the lack of *

adequate remedies available to these

Petitioners that the three-judge court

statute, 28 U.S.C. Section 228l, was re-

pealed shortly before this case began,

thereby shutting off the direct appeal

that would then have existed to this Court.

It is evident from the legislative history

of the Act of August 12, 1976, Public Law

94-381, 90 Stat. 1119, that a three-judge

court with a direct appeal to this Court

was no longer thought to be necessary to

prevent unwarranted federal interference

with the enforcement of state laws. The

abstention doctrine was developed by this

Court to effectuate this protection for

state systems and to preserve comity and

federalism. See: Stern and Gressman,

Supreme Court Practice, 5th Edition,

Section 2.14, pp. 98-105 (Wash. D.C.:

B.N.A. 1978).

This case presents adequate example

for the continuing need for this Court to

review, if only by certiorari, the un-

usual case presenting extraordinary

situations proving the pervasive impact

which a federal court injunction and

declaratory judgmnet has on a state crimi-

nal justice system. This is such a case

needing this Court's immediate attention.

This Court has jurisdiction to consider all

of the substantial federal question deter-

mined in the earlier stages of this liti-

gation. Reece v. Georgia, 350 U.S. 85, 87

(1955); Mercer v. Theiot, 377 U.S. 152,

153 (1964). This Court should reach back

to the District Court opinion and decide

the abstention and statutory validity

questions in favor of these Police Officers.

As state in New Orleans v. Dukes, 427 U.S.

297, 302 (1976); “a decision by this Court

rejecting the constitutional challenge to.

the statute will obviate the need for ;

further proceedings and bring to a halt

the continued disruption of the city's

internal . . . affairs."

There are two important questions pre-

sented which would eliminate a great deal

of needless federal lawsuits. -First, is a

search warrant enough of a pending state

proceeding to trigger Younger abstention?

(Part II) Second, must a Tederal court,

under Pullman, await the state court ruling

of an appeal which is presently considering

the same statute which is challenged in

federal court? (Part III) The remaining

question concerning the validity of the

Ohio Supreme Court's past and present con-

structions of the Ohio obscenity statute

presents an opportunity for this Court to

unequivocally state that the "Miller Test”

has pre-emptec the field of obscenity defi-

nitions under state and federal law and

therefore no state obscenity statute can be

declared invalid as long as the state's

highest court has indicated a willingness

to conform it to Miller or until such court

has had an opportunity to review the

statute in light of Miller.

For all these reasons, the writ of

certiorari should be issued and these

propositions of law decided.

LAW AND ARGUMENT

I. WHETHER THE UNITED STATES

COURT OF APPEALS ABUSED ITS

DISCRETION UNDER 28 U.S.C.

SECTION 2106 BY REMANDING

TO THE DISTRICT COURT AN

APPEAL WHICH RAISES ABSTEN-

TION ISSUES WITHOUT DECIDING

THE JURISDICTIONAL THRESHOLD

QUESTIONS OR PROVIDING

INSTRUCTIONS TO THE DISTRICT

COURT ON REMAND.

Section 2106 of the United States Code

Title 28 provides that a court of appellate

jurisdiction "may affirm, modify, vacate,

set aside or reverse” any decision. In

addition, it provides "and may remand the

cause and direct the entry of such appro-

priate judgment .. . or require such

further proceedings to be had as may be

just under the circumstances". (Emphasis

added.) The statute grants appellate

powers of upsetting or upholding a decision

and also the added power to, in conjunction

with such affirmance, modification, or

reversal, to remand the case. The statute

does not provide for a remand where there

has been no affirmance, modification, vaca-

tion, setting aside, or reversal.

The Court of Appeals in this case has

ordered that this case be “remanded to the

district court for further consideration".

(See Exhibit A in Appendix.) Under Sec-

tion 2106, the Court was required to:

"affirm, modify, vacate, set aside

or reverse" the declaratory judg-

ment and preliminary injunction.

In addition, the Court had the added

option to:

"remand the cause"

If the Court chooses to remand, it

must either:

"direct the entry of such appro-

priate judgment, decree, or order,

or require such further proceedings

to be had as may be just under

the circumstances",

The statute is clear that a ruling may

be accompanied by a remand, but in that

event, the remand must either direct a re-

sult or require further proceedings.

Particularly in cases raising juris-

dictional issues calling for abstention,

the effect of aliy appeal from a trial

court's refusal to abstain cannot be "just

under the circumstances" unless the appel-

late court instructs the trial court

whether to abstain or not upon the remand.

The statute clearly is meant to provide the

opportunity for relief to a losing party on

appeal. The right of appeal is meaningless

if a trial court rules against a party and

the appellate court fails to decide the

propriety of the ruling.

The appeal by the Cleveland Police

Officers raised the issue of whether the

District Court should have exercised ini-

tial jurisdiction to hear premature consti-

tutional claims or to abstain because of

the pending search warrant proceeding or

at least until the Ohio Supreme Court ruled

on the very statute the District Court was

considering.

The opinion of the Court of Appeals

remanded without direction, which indicates

an invitation to the District Court to hear

and decide again the statute's validity in

light of the intervening decision of the

Ohio Supreme Court. This is in direct con-

flict with the abstention grounds which the

Cleveland Police Officers sought to have

the Court of Appeals decide. The very

existence of the intervening opinion by the

Ohio Supreme Court points out the propriety

for Pullman abstention which the Court of

Appeals should have stated in deciding

whether the District Court erred in not

abstaining. (See argument in this regard

in Part III below.)

Many state courts have recognized the

duty of appeals courts to end controversies

by entering decisions which resolve the

questions presented. In Garcia v. Motor

Acci. Indemn. Corp., 18 App. Div.2d 62, 238

N.Y.S.2d 195, 7 A.L.R.3d 817 (1963), the

court recognized the duty of an appellate

court in a declaratory judgment case to

oe A eR RET OES:

make a declaration in favor of the defen-

dant where the trial court erred in failing

to do so. In Southdale Center, Inc. V.

Lewis, 260 Minn. 430, 110 N.W.2d 857, 6

A.L.R.3d 345 (1961), the Court entered

judgment for appellant without requiring

further proceedings below on appeal from

an order denying a motion for amended

finding or new trial, since it appeared as

a matter of law that appellant pine ee,

to prevail on the merits. See also: ores

Hillis Utility Co. v. Whitman, 41 Ohio St.2d

25, 35, 70 Ohio Ops.2d 114, 322 N.E.2d 646

(1975); Wechsler v. Bowman, 285 N.Y. 284,

34 N.E.2d 322, 328, 4 A.L.R. 1337 (1941);

Sheehan v. Comm. Travlers, 283 Mass. 543,

186 N.E. 627, 632, 88 A.L.R. 975 (1933).

This Court has also recognized the

need for avoiding further constroversy. As

stated in Stringfellow v. Cain, 99 U.S. 610,

at 614 (1879), “where all the evidence is

before the Supreme Court that could be con-

sidered by the District Court if the case

should be sent back, it is proper for the

Supreme Court itself to state the facts

established by the evidence and render the

judgment which ought to have been rendered

by the District Court". See also: ;

Philippine Sugar v. Philippines, 247 U.S.

385, 390-91 (1918); Stanley v. Schwalby,

162 U.S. 255, 282 (1896).

The Court of Appeals abused its dis-

cretion in remanding the case also for the

reason that further proceedings -are likely

to be protracted and not satisfactory to

resolving the issues. The District Court

continually misread the facts established

by the testimony and reached factual con-

clusions which are not supported by the

record and are unacceptably damaging to the

Cleveland Police as defendants in this ac-

chi hs a Ae at

tion. (See: Sovereign News, supra, 448

F.Supp., at 321-25). In every instance

where the District Court accuses Cleveland

Police of improperly seizing evidence which

was not related to the Dayton prosecution,

there is in fact a connection with Dayton

pornography distribution. The Journal Entry

of County Judge Spellacy of February 16, ®

1977, ordered that all of the property

seized from Sovereign News "be turned over

to the Dayton Ohio Police Department, with

the exception of the revolver". (See pace

2 of Exhibit E in Appendix, Search Warrant

Return, Common Pleas Journal No. 291-306.)

All such evidence, with the exception of

the Cleveland Police photographs and video

tape of the "raid", were taken to Dayton.

(See: Sovereign News, supra, 448 F.Supp.,

at 326 n.89.) The Cleveland Police recorded

the search on video tape in order to prove

the lack of abuse and preserve the actual

facts which took place. If the Cleveland

Police had something to hide, they cer-

tainly would not have recorded their own

actions. The District Court's characteri-

zation of these facts as evidence of bad

faith are therefor beyond the record.

Further, it is evident that a diamettric

difference of opinion exists between the

District Court and the Ohio Supreme Court

on the meaning and effect of past Ohio

decisions. The District Court, at 448

F.Supp., 403, finds that the Ronald Burgun

("Burgun II") decision is consistent with

past opinions of the Ohio Supreme Court.

The City of Cleveland prosecutors argued

just the opposite to the Ohio Supreme Court

in filing a Petition for Confession of Error

in State v. Ronald Burgun, on November 17,

1977, urging that Burgun's conviction be

reversed for failure to include a "Miller

Charge" to the jury. The Ohio Supreme Court

agreed with the City of Cleveland and re-

manded this case for a new trial and

specifically held that, under past decisions

of that Court, the "Miller Test" is a neces-

sary part of the Ohio statute and must be

read to the jury and considered in all

findings of obscenity. State v. Ronald :

Burgun, et al., 56 Ohio St.2d 354, at

360-61 (1978).

Finally, the District Court unequivo-

cally stated, at 448 F.Supp., 405, that

various flaws exist in the statute as

written which no "reasonable" state inter-

pretation could save. Such a strong

opinion gives rise to the certainty of :

the difficulties which will take place in

the District Court without a decision from

this Court. The remand of the Court of

Appeals invites all parties to "start over",

only now the situation is not the same.

This case has progressed to the expense and

point in time where “starting over" amounts

to an intolerable and unfair burden on all

concerned.

The entire controversy lies waiting at

the door of this Court for a ruling. Three

years of immunity for a pervasive pornog-/

rapher has cost the City of Cleveland great

expense and its citizens great harm. These

petitioners deserve a decision, or at least

instructions, to guide further proceedings

in the trial court and this Court should

assume the duty of giving substance to the

right of appeal under the federal system.

II. WHETHER THE PENDENCY OF A

STATE COURT SEARCH WARRANT

PROCEEDING REQUIRES ABSTEN-

TION UNDER YOUNGER FROM

FEDERAL CLAIMS OF UNCONSTI-

TUTIONALITY OF STATE STATUTES,

INVALIDITY OF STATE SEARCH

. WARRANT, AND UNREASONABLE

SEARCH UNDER STATE SEARCH

WARRANT UNLESS CLAIMANT PRE-

SENTS THESE QUESTIONS FIRST

TO STATE JUDGE WHO ISSUED

THE SEARCH WARRANT.

As the record indicates, and as

alleged in the original Complaint filed in

the District Court by plaintiff below, the

Dayton Police Officers applied for a search

warrant before Judge Leo M. Spellacy of the

Common Pleas Court for Cuyahoga County,

Ohio, seeking permission for the two Dayton

officers and the Cleveland Police Officers

to search the Sovereign News Company

pornography warehouse in Cleveland. A copy

of the Search Warrant is included in the

Appendix as Exhibit E. Under Ohio law, the

Cleveland Police were necessary parties to

the execution of the warrant because Dayton

Police cannot execute a search warrant in

Cuyahoga County. State v. Harrison, 20

Ohio Misc. 282, 285-88, 251 N.E.2d 521, 48

Ohio Ops.2d 344 (Montgomery County Common

Pleas, 1969).

Under traditional Younger-Huffman

abstention principles, the federal courts

should abstain from considering federal

constitutional claims in the face of a

pending state proceeding. The District

Court held that abstention is triggered by

indictment or at least the taking of testi-

mony by a state Grand Jury. 448 F.Supp.,

at 329-31, 331-72. However, this principle

is erroneous and abstention is appropriate

where there has already begun a state search

warrant proceeding which provides an oppor-

tunity under state law for the subject of

the search to contest the validity of

statutes and process, attack the validity

of the search warrant, and seek suppression

and return of the seized property before

the state court which issued the search

warrant.

Ohio courts have long recognized the

right of a person who has been searched

under a search warrant to apply for return

and suppression of the property. Kovacs v.

State of Ohio, 24 N.P. (N.S.) 1 (Montgomery

County Common Pleas, 1921); Heppel v.

Columbus, 106 Ohio St. 107, 140 N.E. 169,

I71 (1922). As discussed in Kovacs, supra

at ll, inadmissible evidence seized under

an illegal search warrant may be challenged

anytime before trial “in a collateral pro-

ceeding, by application . .. no rule of

procedure excludes the making of such an

application in this state". It is clear

that even absent specific rule or statute,

a court has the inherent power to recon-

sider the legality of a warrant and to

review the lawfulness of its execution.

Under Ohio law, the complaining party

may attack both the search warrant and its

manner of execution even before entering a

plea or facing arrest. State of Ohio v.*

Vuin, 185 N.E.2d 506, 508 (Summit County

Common Pleas, 1962).

The Sovereign News Company, or any of

its employees, could and should have applied

to the Cuyahoga County Court of Common Pleas

for an order declaring the Search Warrant

invalid, or to order the search unlawful as

exceeding the authorized scope of the

Warrant, or for return of the property

seized, or for all of these remedies.

Those wishing to contest the validity

of an Ohio statute, or almost any legal

controversy, may avail themselves of the

Declaratory Judgments Act of Ohio Revised

Code Chapter 2721. Burger Brewing Co. v.

Liquor Comm., 34 Ohio St.2d 93, Se 63

Ohio Ops.2d 149, 296 N.E.2d 261, 264 (1973);

Moss v. Columbus Bd. of Ed., 55 Ohio Misc.

7, 9 Ohio Ops.3d 244, 379 N.E.2d 275

(Franklin County Common Pleas, 1978).

As was done in United Gas Pipe Line Co.

v. Ideal Cement Co., 369 U.S. 134 (1962),

this Court should hold that the Sovereign

News Company should have filed a request

for relief under the Ohio Declaratory

Judgment statutes. In United Gas, supra

at 135-36, an interpretation of state law

was made in federal court "in advance of

construction of the License Code by the

courts of the State, which alone, of course,

can define its authoritative meaning".

This Court saw a potential conflict between

the federal ruling and that. which could

be forthcoming from the Alabama Supreme

Court, and continued at p. 135:

The availability of appropriate

declaratory judgment proceedings

under Ala. Code .. . avoids

this unsatisfactory dilemma.

In this case, there is no need to dis-

miss the case tO permit a state court law-

suit. The Supreme Court of Ohio has

already made its ruling. All that remains

is, as Mr. Justice Douglas urged ina

Separate Opinion to United Gas, -supra, for

this Court to declare whether the Ohio

statute is constitutional as construed by

the Ohio Supreme Court in State v. Ronald

Burgun, supra (Set out as Exhibit D in

Appendix, see discussion of statute and

Burgun case in Part IV infra).

The Ohio Declaratory Judgment statutes

have always been liberally construed.

Sessions v. Skelton, 163 Ohio St. 409, 56

Ohio Ops. 370, 127 N.E.2d 378 (1955). The

remedies are limited only by the subject

matter jurisdiction of the court and in-

clude equitable relief where applicable.

State ex rel. v. Municipal Court, 12 Ohio

St.2d 26, 41 Ohio Ops.2d 159, 231 N.E.2d

70 (1967). The purpose of these statutes

is to provide immediate and alternative

remedies for the solution of legal rights,

even where an action has not yet begun or

a cause of action accrued, or where legal

rights exist but must await some act by

others before the right of action is nor-

mally asserted. Murray v. McCrystal, 99

App. 441, 59 Ohio Ops. 194, 134 N.E.2d 88

(Erie County, 1955); Herrick v. Kosydar,

44 Ohio St.2d 128, 130, 73 Ohio Ops.2d 442,

339 N.E.2d 626, 627 (1975).

The federal plaintiff below could have

raised all these claims in the Common Pleas

Court and the opportunity to do so following

a search warrant should be recognized by

this Court as a critical stage for absten-

tion purposes. See: Harmar Theatres v.

Cryan, 393 F.Supp. 34, at 39 n.2 (D.N.J.

1975).

This Court has recognized that state

proceedings which are antecedent or ancil-

lary to criminal process are entitled to

deference by abstention. Huffman v. Pursue,

Ltd., 420 U.S. 592 (1975); Colorado River

Dist. v. U.S., 424 U.S. 800; 816 (1976).

As stated in Huffman, supra at 604:

The State is a party to the

Court of Common Pleas pro-

ceeding, and the proceeding

is both in aid of and closely

related to criminal statutes

which prohibit the dissemina-

tion of obscene materials.

The District Court in Hamar Theatres,

Supra at 39, footnote 2, noted that the

State search warrant proceedings were, like

the nuisance action in Huffman, both in rem

actions. The Florida federal court held

that traditional Younger principles were

enough to require abstention, but went on

to note:

Thus, even if the issuance

of the search warrant were

viewed as the commencement

of that sort of state judi-

cial proceeding, against

Hamar or its property, to

which Younger standards are

made applicable by Huffman,

this Court would merely be

afforded a second basis upon

which to reach the same

result.

The situation present in this Sovereign

News case was sufficient for the District

Court to order the Plaintiff to return to’

the search warrant proceeding in Cuyahoga

County to present its claims, and should

have abstained from any claims as to the

authorities in Cuyahoga County.

This Court recently reaffirmed its

strong position on federal abstention in

Moore v. Simms, 441 U.S. , 60 L.Ed.2d

994, at 1007 (1979): Bric

In sum, the only pertinent

inquiry is whether the pro- c

ceedings afford an adequate

Opportunity to raise the con-

26 :

stitutional claims, and the

Texas law appears to raise no

procedural barriers.

This is a question not yet decided by

this Court. It is one which would set a

clear limit on when state proceedings were

worthy of federal deference and recognize

the right and ability of state courts to

determine statutory claims. °

III. WHETHER THE PENDENCY OF

APPEAL IN STATE SUPREME

COURT OF THE INTERME-

DIATE STATE APPELLATE

COURT DECISION UPON WHICH

FEDERAL DISTRICT COURT

RELIED IN FINDING STATE

STATUTE UNCONSTITUTIONAL

REQUIRES ABSTENTION UNDER

PULLMAN UNTIL STATE

SUPREME COURT CONSIDERS

OR CONSTRUES THAT STATE

STATUTE.

The District Court relied upon an un-

reported decision of the Cuyahoga County

Court of Appeals to find that no Miller

construction had been placed on the Ohio

obscenity statute. This decision affirmed

the misdemeanor Cleveland conviction of

Ronald Burgun and was announced on August 18,

1977, which was after the hearing on the

Preliminary Injunction in the District

Court on March 29-31, 1977, but before the

District Court's opinion of October 31,

1977. However, Ronald Burgun filed his

jurisdictional papers in the Ohio Supreme

Court on October 6, 1977, and was repre-

sented by the same law firm which repre-

sents the Sovereign News Company in this

case. On December 1, 1977, the Ohio Su-

preme Court granted the Motion to Certify

to review, among several search and seizure

and evidence questions, the constitution-

ality of the Ohio definition of obscenity.

Under the Pullman Abstention Doctrine,

the federal courts should abstain from pre-

mature rulings on state laws while the

state Supreme Court was presented the

opportunity to hear the matter and construe

the statute to avoid constitutional con-

flict. See: Railroad Commission v. Pullman,

312 U.S. 496 (1941); Albertson v. Millard,

345 U.S. 242 (1953); Hicks v. Miranda, 442

U.S. 332 (1975); Moore v. Simms, supra; and

Muskegon Theatres v. City of Muskegon, 507

F.2d 199 (6th Cir. 1974). But see opinion

of District Court, 448 F.Supp., at 380-90.

A clearer case for Pullman style ab-

-stention could not be found than a federal

court awaiting the Ohio Supreme Court's

review of the very case which the District

Court declares as the proof of the need for

and lack of an authoritative state court

construction of the obscenity statute.

(See opinion of District Court, 448 F.Supp.,

at 401-03.) This United States Supreme

Court specifically invited state supreme *

courts to "Millerize" their existing stat-

utes and Ohio's Supreme Court was entitled

to that opportunity. See: Miller v.

California, 413 U.S. 15, 24-25 (1973) and

Ward v. Illinois, 431 U.S. 767 (1977).

The District Court's reliance upon the

intervening unreported opinion of the County

Court of Appeals points out the need for

clarification from this Court of the need

for "Pullman Abstention" while that case is

still on appeal. In fact, the defendant in

that case, Ronald Burgun, had already filed

his Notice of Appeal to, and the Memorandum

of Jurisdiction in, the Ohio Supreme Court

on October 6, 1977. These facts, and the

immediate ruling that would have been ex-

pected by the Ohio Supreme Court on whether

it would hear Ronald Burgun's appeal, were

completely ignored by the District Court.

The abstention groundwork necessary under

Railroad Comm. v. Pullman, supra, was

already underway and the Court should have

certainly abstained for at least that

brief period.

The cases the District Court relied

upon to refuse "Pullman Abstention" are not

applicable to this obscenity case. The

District Court, 448 F.Supp., at 382-83,

looks to Baggett v. Bullitt, supra;

Zwickler v. Koota, supra; and Procunier

v. Martinez, supra, as authority for the

inapplicability of Pullman and of this

"Court's repeated reluctance to apply

Pullman to pure expression First Amendment

litigation". (Id., 448 F.Supp., at 384.)

This is an opposite reading of this Court's

holdings. Specifically because this is an

obscenity case, Pullman is particularly

appropriate. The cases relied upon by the

District Court are political speech cases,

not sexual exploitation cases. This Court

has "pre-empted the field" of obscenity

definition since Roth, and there lies the

great distinction between obscenity statute

consideration and political or economic

expression cases. This Court has mandated

a national constitutional test for obscen-

ity and specifically invited state courts

to construe old statutes to adopt it by

interpretation. Miller, supra at 24 n.6,

25; Ward, supra. Therefore, federal courts

should be extra careful to allow this pro-

cess to proceed uninterrupted in the state

system.

Abe iss! Ales BER eee

It may appear futile to complain after

over two years that the District Court

should have waited a few more weeks. How-

ever, the issue is important to state

criminal justice systems having the duty of

enforcing their laws. Freedom from un-

warranted federal interference is an essen-

tial concept of our republican system of

sovereignties and any attempt, successful

or otherwise, to infringe on legitimate

state functions must be rectified no matter

how long after major damage is accomplished.

The recent case of Moore v. Sims, 441

U.S. , 60 L.Ed.2d 994 (June Il, 1979),

also points to the continuing adherence to

strict abstention principles as mandated

by this Court. Speaking for the majority,

Mr. Justice Rehnquist repeated, in strong

and unequivocal terms, that federal courts

should refrain from interfering with state

cases. The Court, at 60 L.Ed.2d, 1003,

restated the vitality of Huffman:

As was the case in Huffman, the

State here was a party to the

state proceedings ... “in aid

of and closely related to crimi-

nal statutes." Id., at 604. The

existence of these conditions,

or the presence of such other

vital concerns as enforcement of

contempt proceedings, Juidice v.

Vail, 430 U.S. 327 (1977), or

the vindication of "important

state policies such as safe-

guarding the fiscal integrity

of [public assistance] programs,”

(Trainor v. Hernandez, 431 U.S.

434, 444 (1977), determines the

applicability of Younger-Huffman

principles as a bar to the in-

stitution of a later federal

action.

Mr. Justice Rehnquist then repeated

the basic equitable abstention factors

which, we submit, were not appropriately |

followed by the District Court below. As

stated at 60 L.Ed.2d, 1004-05:

reflect the same sensitivity to

the primacy of the State in the

interpretation and subsequent

invalidation of part of an inte-

grated statutory framework.

Under established principles of

equity, the exercise of equitable

powers is inappropriate if there

is an adequate remedy at law. .

- » Restated in the abstention

context, the federal court should

This Court finally touched on three

considerations, all of which are particu- ‘

larly applicable to this appeal. As stated

at 60 L.Ed.2d, 1006-07:

There is first the Pullman concern:

not exert jurisdiction if the

plaintiffs "had an opportunity

to present their federal claims

in the state proceedings."

[Emphasis the Court's]...

Certainly abstention is appro-

priate unless state law clearly

bars the interposition of the

constitutional claims.

It was also made clear in Moore v.

Sims that a broad attack on a statute does

not ease abstention requirements, but that

the opposite is true in light of the state

court's duty to interpret is own laws. As

stated at 60 L.Ed.2d, 1005:

Thus the District Court suggests

that the more sweeping the

challenge the more inappro-

priate is abstention, and

thereby inverts traditional

abstention reasoning. The

breadth of a challenge to a

complex state statutory scheme

has traditionally militated in

favor of abstention, not against

it. This is evident in a number

of distinct but related lines of

abstention cases which, although

articulated in different ways,

that a federal court will be forced

to interpret state law without the

benefit of state court considera-

tion and therefore under circum-

stances where a constitutional

determination is predicated on a

reading of the statute that is not

binding on state courts and may be

discredited at any time--thus

essentially rendering the federal

court decision advisory and the

eee underlying it meaning-

GBS. + s «

The second consideration is

the need for a concrete case or

controversy--a concern obviously

enhanced by the scope of the

Challenge. . .. Yet no pro-

ceeding was pursued in this case

to the point where the standard

could be applied and consequently

appellees can point to no injury

Am TAGE. ko 4%

The final concern prompted by

broad attacks on state statutes

is the threat to our federal

system of government posed by

"the needless obstruction to

the domestic policy of the

states by forestalling state

action in construing and apply-

ing its own statutes." .. .

Almost every constitutional

challenge . .. offers the |

opportunity for narrowing

constructions that might

obviate the constitutional

problem and intelligently

mediate federal constitutional

concerns and state interest.

When federal courts disrupt

that process of mediation

while interjecting themselves

in such disputes, they pre-

vent the informed evolution

of state policy by state

tribunals. ... The price

exacted in terms of comity

would only be outweighed if

state courts were not compe- |

tent to adjudicate federal

constitutional claims--a

postulate we have repeatedly

and emphatically rejected. ...

The City of Cleveland put forth this posi-

tion in the Supreme Court of Ohio in filing

a Petition for Confession of Error in the

Ronald Burgun appeal, and the District

Court should not have assumed otherwise

after the hearing without giving these

defendants an opportunity to be heard.

The Supreme Court of Ohio proved the

wisdom of this proposal for abstention in

ultimately clarifying the law. The decision

in State v. Ronald Burgun, supra, 56 Ohio

St.2d 354 (1978), avoided the constitutional

problems raised by the District Court. Had

the District Court awaited this decision,

under Pullman, these years of needless

interference with Ohio obscenity law would

have been avoided.

IV. WHETHER OHIO REVISED CODE

SECTION 2907.01(F), THE

STATUTE RULED INVALID BY

THE DISTRICT COURT AND

PURSUANT TO WHICH OBSCENITY

This Court should now announce a rule | IS DEFINED IN OHIO, IS UN-

that federal courts should not decide the | CONSTITUTIONALLY OVERBROAD

validity of state laws which are pending ; OR VAGUE AS WRITTEN AND

consideration in ongoing state appeals,even ) CONSTRUED BY THE SUPREME

though the instant federal plaintiff is not COURT OF OHIO AND THE

a direct party to that appeal. The District COURTS OF APPEALS OF OHIO.

Court pointed to the County Court of Appeals |

decision as proof that the Ohio statute was __. The Court should step back into the

not yet authoritatively construed in light District Court's opinion and give the

of Miller. These Police Officers alleged | final decision on the constitutionality

at the March hearing before the District | of the Ohio Obscenity statute. Gillespie

Court that Miller's guidelines were to be v. U.S. Steel, supra; Giles v. Maryland,

considered part of the Ohio definition, Supra; New Orleans v. Dukes, supra. This

as mandated by the Cuyahoga County Court i relief would end a long and endlessly com-

of Appeals in the 1976 decision of State plicated conflict between the Ohio and

v. Dalene Burgun, supra, 49 Ohio App. 112. federal courts on this score. This relief

should have been forthcoming in a direct

appeal from the Ohio Supreme Court's ruling

in Burgun, supra (where the defendants were

also represented by Sovereign News Company's

attorneys), or from the Court of Appeals

decision had that Court affirmed the

District Court's declaratory judgment in-

stead of its remand. This issue is

immediate, important, and worthy of this

Court's exercise of the extraordinary

writ of certiorari.

The history of Ohio's respect for this

Court's obscenity decisions has been favor-

ably recognized by federal courts in the

past and the Sovereign News opinion ignored

the precedent established thereby. See:

Art Theatre Guild v. Ewing, 421 U.S. 923

(1975) (affirming State ex rel. Ewing v.

"Without A Stitch", 37 Ohio St.2d 92 (1974);

Huffman v. Pursue, Ltd., 420 U.S. 592, 596

n.4 (1975); Grove Press v. Flask, 326 F.Supp.

574, 578-80 (N.D. Ohio E.D. 1970); New

American Library v. Allen, 114 F.Supp.

823, 830-31 (N.D. Ohio E.D. 1953). Further-

more, shortly before this instant case

began, the District Court for the Southern

District of Ohio refused injunctive relief

against the Ohio obscenity statute, held

that abstention was appropriate, and ruled

that the Ohio statute was not invalid on

its face and as applied in State v. Dalene

Burgun, supra. A copy of this opinion in

Larry Flynt v. Simon Leis, No. C-1-76-553

(S.D. Ohio W.D. Nov. 30, 1976) (unreported),

is included in the Appendix as Exhibit F.

A. The Supreme Court Of Ohio

Has Authoritatively Con-

strued The Ohio Obscenity

Statute To Conform With

Miller v. California And

The Statute Is Therefore

Constitutional.

ee eae ts A ww iamanaanscanee

On December 7, 1978, The Supreme Court

of Ohio rendered its decision in State of

Ohio v. Ronald Burgun, et al., 56 Ohio St.2d

354, 356-61, 384 N.E.2d 255, 258-61. Re-

hearing was denied by the Ohio Supreme Court

on January 17, 1979. (No appeal as of right

taken to the United States Supreme Court.)

This decision specifically held that the

definition of obscenity contained in Ohio

Revised Code Section 2907.01(F) is not un-

constitutionally vague or overbroad, in

light of the First Amendment, when read in

pari materia with, and as construed to

include, the guidelines of Miller v.

California, 413\U.S. 15, at 24-25 (1973).

This important holding of Ohio's

highest court is summarized in 56 Ohio

St.2d, at 361; 384 N.E.2d, at 261:

We hold that R.C. 2907.01(F)

is neither unconstitutionally

overbroad nor void for vague-

ness when it is read in pari

materia with the Miller deci-

sion. The Miller test for

defining obscenity is therefore

incorporated into that statute

by an "authoritative" state

court construction specifically

sanctioned by Miller. In addi-

tion, a close reading of R.C.

2907.01 in its entirety shows

that the statute is not vague

but rather extremely precise

in defining what conduct is pro-

hibited. Thus, since the current

statutory definition has been

effectively narrowed to consti-

tutionally permitted parameters,

the appellants' proposition of

law has no merit.

This statement of the Ohio Supreme

Court goes to the heart of this federal con-

troversy. This is the case which was

referred to as "Burgun II" by the District

Court, in finding that the statute “had not

been interpreted to contain the Miller test".

Sovereign News Co. v. Falke, 488 F.Supp.

306, at 401 (N.D. Ohio E.D., October 31,

1977). This statute is also the one to

which the District Court found an authori-

tative gloss could not be added “readily",

and that it "does not lend itself to a

narrowing construction. The statute is so

substantially overbroad that only radical

surgery could save it". The Cleveland

Police Officers submit that the Burgun

decision is determinative of the issue of

the obscenity statute's validity and man-

dates that the District Court's injunction

and declaratory judgment be reversed by

this Court.

It is a fundamental principle in

federal actions which seek to test the

constitutionality of state statutes or

ordinances that if the court of last resort

of the state has decided that the statute

or ordinance is valid, the federal court is

bound by that decision and must yield to ‘

the decision of the state court, unless it

appears that the law, as construed, contra-

venes some provision of the Federal

Constitution. As stated in Crowley v.

Christensen, 137 U.S. 86, at 92, 34 L.Ed.

620, at 624 (1890):

The Supreme Court of the State

has decided that the ordinance

in question, under which the

petitioner was arrested, and is

held in custody, was thus author-

ized and is valid. That decision

is binding upon us unless some

inhibition of the Constitution

or of a law of the United States

is violated by it.

Once a state supreme court places a

judicial construction upon a statute, all

courts must thereafter consider the

statute as if it had been originally passed

in the words adopted by the limiting court.

The federal courts, including the United

States Supreme Court, must accept the state

court's construction and proceed to test its

validity only on that basis, under the

traditional standard of "reasonableness",

In Guaranty Trust Co. v. Blodgett, 287 U.S.

509, at 513, 7/7 LEG. 463, at 465 (1933),

this Court reviewed a statute which had

been construed by the Superior Court of

Connecticut, and proceeded to review it on

that basis:

[W]e are bound by the decision

of that court as though the

meaning as fixed by the court

had been expressed in the statute

itself in specific words.

This principle has been consistently

followed and applied by this Supreme Court,

and this language often repeated. See:

Albertson v. Millard, 345 U.S. 242, at

244-45, 97 L.Ed. 983, at 985 (1953); United

States v. Burnison, 339 U.S. 87, at 89, 94

L.Ed. 675, at 680 (1950); Aero Mayflower

Transit Co. v. Board of R. Comrs., 332 U.S.

495, at 499-500, 92 L.Ed. 99, at 104-05 (1947).

This principle has been applied in

particular to cases dealing with the con-

struction of obscenity statutes. This

Court in Kingsley Pictures Corp. v. Regents,

360 U.S. 684, at 688, 3 L.Ed.2d 1512, at

1516 (1959), noted that the New York Court

of Appeals had construed its statute in

relation to the film "Lady Chatterly's

Lover", and stated:

We accept the premise that

the motion picture here in ques-

tion can be so characterized.

We accept too, as we must, the

construction of the New York

Legislature's language which

the Court of Appeals has put

upon it... . (Emphasis

added)

In Mishkin v. New York, 383 U.S. 502,

16 L.Ed.2d 56, at 60-62, and 63, (1966),

this Court again followed and approved an

interpretation of New York statutes by New

York appellate courts.

Recently, and most importantly, this

Court upheld the Illinois pre-Miller

statute based upon the limitations and

constructions placed on the statute by the

Illinois Supreme Court. The Court in Ward

v. Illinois, 431 U.S. 767, 52 L.Ed.2d 738

(1977), noted that in 1965 the Illinois

Supreme Court detailed what kind of sexual

conduct was cognizable by the Illinois

statute.

The construction of the statute

in Sekara gives detailed meaning

to the Illinois law, is binding

on us, and makes plain that

§11-20 reaches the kind of-.sexual

materials which we now have before

us. If Ward cannot be convicted

for selling these materials, it

is for other reasons and not be-

cause the Illinois statute is

vague and gave him no notice that

the statute purports to ban the

kind of materials he sold. The

statute is not vague as applied

to Ward's conduct. Id., 431 U.S.,

at 772-73, 52 L.Ed.2d, at 745.

(Emphasis added)

Ward also noted that in 1974, the

Illinois Supreme Court “proceeded to 'con-

strue section 11-20 . .. to incorporate

parts (a) and (b) of the Miller standards’

. « « but to retain the ‘utterly without

redeeming social value’ standard of Memoirs

in preference to the more relaxed criterion

contained in part (c) of the Miller guide-

lines". Ward, supra, 431 U.S. at 744, 52

L.Ed.2d, at 746. In 1975, the Illinois

Supreme Court again noted that it had

incorporated parts (a) and (b) of Miller

and the “explanatory examples" found in

Miller at 413 0.&., at 25. ° “THis Court

affirmed Ward's conviction, stating:

Given that Illinois has

adopted Miller's explanatory

examples, what the State has

done in attempting to bring

its statute in conformity

with Miller is surely as much

as this Court did in its post-

Miller construction of federal

obscenity statutes. Ward, 431

U.S., at 776, 52 L.Ed.2d, at

747-48.

This effort by the Illinois Supreme

Court to conform with Miller was duplicated

by the Ohio Supreme Court, on remand from

Miller, in State, ex rel. Keating v. Film

Entitled "Vixen", 35 Ohio St.2d ars at

218-19 (Sept. 26, 1973), and State, ex rel.

Sensenbrenner v. Adult Book Store, 35 Ohio

St.2d 220, at 221 (Sept. 26, 1973), cert.

denied, 421 U.S. 934 (1975). This pattern

continued in the Ohio courts with Hollington

v. Ricco, 40 Ohio App.2d 57, at 60, 65-66,

318 N.E.2d 442 (Cuyahoga County, Dec. 14,

1973), and State, ex rel. wang ve. Film

Entitled "Without A Stitch", 37 Ohio St.2d

92, at 98-101, 307 N.E.2d 911 (Feb. 27,

1974), appeal "dismissed for want of a

substantial federal question", 421 U.S. 923

(April 21, 1975). Subsequently, both the

Court of Appeals for Cuyahoga County and

for Montgomery County, Ohio, approved an

interpretation of the Ohio statute to in-

clude the "Miller Test". State of Ohio v.

Dalene Burgun, 49 Ohio App.2d 112, 359

N.E.2d 1018 (Cuyahoga County, 1976); State

of Ohio v. Today's Bookstores, Inc., No.

5248 (Montgomery County Appeal, 1977).

This policy of Ohio Courts, and particular-

ly the Ohio Supreme Court, culminated

clearly and decisively in State v. Ronald

Burgun, 56 Ohio St.2d 354, 356-61, 384

N.E.2d 255, 258-61 (Dec. 7, 1978), rehearing

denied January 17, 1979, and State v. Thomas,

57 Ohio St.2d 71, 72 (March 21, 1979) (Per

Curiam), where the entire "Miller Test" was

specifically adopted into Ohio law and man-

dated as part of every jury instruction

under the definition of obscenity. No appeal

was taken by any of the three persons whose

convictions were affirmed, Frank Turoso,

William Krute, or Thomas Bayless, or by

Ronald Burgun, whose case was remanded for

trial, even though there was a right of

direct appeal to the U. S. Supreme Court.

The opinion in that case is, therefore,

a final and binding mandate for-.Ohio.

Several convicted pornographers have

raised arguments in the Cleveland Municipal

Court, the Cuyahoga County Court of Appeals,

the District Court, and the Court of

Appeals, that the Ohio statute is invalid

because it fails to specifically define

sexual conduct in accordance with the ex-

amples given in Miller, supra at 25. The

District Court accepted these arguments in

striking down Section 2907.01(F) of the

Ohio Revised Code in Sovereign News Co.

v. Falke, 448 F.Supp., at 400, where Judge

Manos found that Ohio law permitted material

to be found obscene if it contained "simple

nudity" or any "display or depiction of

extreme or bizarre violence, cruelty or

brutality". These arguments were disposed

of by the Ohio Supreme Court in Ronald

Burgun, supra, 56 Ohio St.2d, at 357-58,

384 N.E.2d, at 258-59:

The essence of the appel-

lants' criticism is that the

definition in R.C. 2907.01 (F)

is overbroad "on its face"

because an item can be con-

sidered "obscene" if any of

the characteristics outlined

in subsections (1) through (5)

are present. Since the statute

is written in disjunctive

rather than conjunctive language,

it is alleged that a conviction

can be obtained without a finding

that the tripartite test in

Miller v. California (1973),

413 U.S. 15 has been satisfied.

* * *

In addition to the criticism

that subsections (1) through (5)

do not facially incorporate the

three-part Miller test, the

appellants have asserted other

instances where the statute con-

flicts with that decision. It

is argued that subsection (3)

unconstitutionally restricts

the depiction of extreme violence

when only material depicting or

describing sexual conduct may be

limited as being obscene. In

addition, appellants argue that

subsections (1), (2), (3) and

(5) are facially overbroad be-

cause acts of " ‘simple nudity’

as opposed to hard core pornog-

raphy can also be considered to

be " "obscene.' " Likewise, what

is meant by material whose

" 'dominant appeal is to prurient

interest’ " is cited as a further

example of unconstitutional over-

breadth. Finally, it is argued

that the general lack of specific-

ity found in R.C. 2907.01(F)

warrants not only a finding of

unconstitutional overbreadth but

also a determination that the

entire statute is void for

vagueness.

In summary, appellants allege

in effect that the statute not

only has not been "limited, as

written," in light of the Miller

guidelines but also is incapable

of a "narrowing construction"

in conformity with that decision.

We disagree.

The United States Supreme

Court did not intend for every

state legislature to rewrite

its obscenity statutes as a

result of the Miller decision.

As indicated, an “authoritative

construction" of applicable

state law limiting the regulation

of obscenity by the guidelines in

that decision would be constitu-

tionally sufficient. [Emphasis

the Court's]

The Sovereige News opinion relied upon

the lower Court of Appeals decision in

State v. Ronald Burgun which was reversed

and remanded by the Ohio Supreme Court.

The Sovereign News decision pointed to the

Court of Appeals decision as evidence that

the statutory definition had not been con-

strued by the Ohio courts to include the

"Miller Test", 448 F.Supp, at 403:

Because this court has found

§2907.01 to be overbroad on its

face, and that it has not been

narrowed to constitutionally

permitted parameters by an

authoritative state court

interpretation, the court finds

Ohio Revised Code §§ 2907.01

and 2907.32 to be overbroad.

[Emphasis added]

The Sovereign News opinion, supra at

405, also expressed the opinion that Ohio's

statute was incapable of a constructive

narrowing and stated that “the court never-

theless would find the statute unconstitu-

tionally overbroad":

Section 2907.01 does not

lend itself to a narrowing

construction. The statute

is so substantially overbroad

that only radical surgery

could save it.

Continued reliance upon the Sovereign

News opinion's pre-Ohio Supreme Court

analysis, in light of the authoritative

and specific construction in Ronald Burgun,

supra, should not be allowed. The Bur

decision is fair warning to all that tals

those types of sexual exhibitions and con-

duct which could be santioned by Miller may

= be illegal in Ohie. Furthermore, the

Sovereign News Company was on notice by the

decision of the Cuyahoga County Court of

Appeals in State v. Dalene Burgun, 49 Ohio

App.2d 112, 359 N.E.2d 1018 (1976), and

State v. Today's Bookstore, Inc., supra,

(Montgomery County Court 0 Appeals, 1977),

that its pornography would be judged

according to the guidelines of Miller.

The Miller decision itself, and the

Ohio statute as well, both limited obscenity

to avoid the problems found in Sovereign

News as to "simple nudity" and violence.

As to nudity, it was held in Miller, at 25,

that "lewd exhibitions of the genitals",

without further sexual conduct, could form

the basis for obscenity as long as it would

be presented in a prurient and patently

offensive manner and lacked serious value.

Furthermore, it was held in Ohio in 1948

that simple nudity cannot be considered

obscene under Ohio law. State of Ohio v.

Lerner, 51 Ohio Law Abs. 321, 81 N.E.2d

262, at 286, 292 (Hamilton County, C.P.,

1948).

As to violence, Section 2907.01(F) (3),

by its express wording, limits "extreme

or bizarre violence, cruelty, or brutality”

to a sexual type which must have a "domi-

nant tendency to arouse lust". It is clear

that not simple nudity but only lewd-genital

nudity can be found obscene under Ohio law

and the three-part "Miller Test" and only

sadomasochistically sexual violence can

form the basis of obscenity under Ohio law.

Therefore, pure assault-type violence and

"horror movie" type cruelty would be speci-

fically excluded from Ohio law by the

wording of the statute itself.

The Ohio Supreme Court, in Burgun,

supra, 56 Ohio St.2d, at 357, 360-61, 384

N.E.2d, at 259, 260, first recognized that

the Miller case controls the scope of sex-

ual conduct which can be regulated as well

as the test or inquiry to be applied there-

to, and then noted that its past decisions

had adopted the "Miller Test" under the

former similar statute, and that this

adoption had been upheld by the dismissal

for "want of a substantial federal ques-

tion" in Art Theatre Guild, Inc., v. Ewing,

421 U.S. 923 (1975):

In that case [Miller] the

United States Supreme Court, at

pages 24-25, described the

permissible scope of state

regulation of obscenity and the

three-pronged inquiry to be

adopted by the trier of fact

. e e e [Emphasis added]

* * *

The essence of these three

Ohio decisions [including Ewing]

was not that the wording of R.C.

2905.34 (A) (1) through (4) [the

former similar statute] visibly,

literally, or facially incorporated

the tripartite Miller test in each

of those subsections. What this

court attempted to spell out was

that the wording of the entire

statute, when construed in pari

materia with the Miller decision,

adequately protected the First

Amendment values applicable to

the states through the Fourteenth

Amendment. R.C. 2905.34 contained

the same disjunctive language

currently under attack as well

as being more general in its

terms and definitions than its

successor, R.C. 2907.01 (F).

The Ohio Supreme Court used the terms

"construed .. . with the Miller decision"

because it was obvious that the entire deci-

sion was meant to be complied with and

adopted into Ohio law, including the limi-

tations on "sexual conduct” and “lewd

exhibition of the genitals" of Miller at

25. The reasoning against a reading of

Burgun in any other fashion was underscored

by the Court in Ward v. Illinois, 431 U.S.

767, at 775 (1977), where the Court rejected

the argument that the Illinois Supreme Court

had adopted the first two prongs of the

"Miller Test" and did not also, by implica-

tion or otherwise, adopt the limitations of

the examples of sexual conduct and lewd

exhibitions given in Miller at 25:

The Illinois court thus must

have been aware of the need

for specificity and of the

Miller Court's examples. ...

The alternate reading of the

decision would lead us to the

untenable conclusion that the

Illinois Supreme Court chose

to create a fatal flaw in its

statute by refusing to take

cognizance of the specificity

requirement set down in Miller.

The District Court discussed the Ward

decision but found it inapplicable to the

power of the Ohio courts to similarly con-

strue our statute. However, the conclusion

is not supported by the reasoning which the

District Court gave to Ward that a statute

may not be "substantially” overbroad for

mere failure to specifically list the types

of sexual conduct. Sovereign News, supra,

A a nar ata

448 F.Supp., at 400, n.346. Also, the

District Court overlookéd numerous Ohio

decisions, including some frdém the Court

upon which the District Judge sat and which

were decided while he was part of that

Court, which is the Court of Appeals for

Cuyahoga County. In Sovereign News, supra,

448 F.Supp., at 406, n.361, the District

Court said that it was not the case as to

Sovereign News Company that it could take

notice from prior Ohio convictions. There

were hundreds of convictions for obscenity

in Cleveland from 1973-77 which gave notice

to Sovereign as well as numerous past deci-

sions in Ohio. See for example: Cincinnati

v. Walton, 76 Ohio Law Abs. 162, 3 Ohio Ops.

2d 252, 145 N.E.2d 407, 412 (Cincinnati

Muni. Ct. 1957); State v. Lerner, supra

(Hamilton County Appeal, 1948); Jacobellis

v. Ohio, 378 U.S. 183 (1964); Youngstown v.

DeLoreto, 19 Ohio App.2d 267, 48 Ohio Ops.2da

393, 251 N.E.2d 491 (Mahoning County, 1969);

Moody v. Thrush Corp., 35 Ohio Misc. 84, 93,

62 Ohio Ops.2d 115, 291 N.E.2d 922 (Frank-

lin County Common Pleas, 1972); State v.

Valchar, 34 Ohio App.2d 21, 63 Ohio Ops.2d

52, 295 N.E.2d 137, Syllabus Two (Cuyahoga

County, 1973); State, ex rel. Keating v.

Film Entitled "Vixen", supra; State, ex rel.

Sensenbrenner v. Adult Book Store, supra;

Hollington v. Ricco, supra; State, ex rel.

Ewing v. “Without A Stitch", supra; State

v. Dalene Burgun, supra.

Nevertheless, contrary to the District

Court's analysis, the Ohio Supreme Court

recognized the Ward decision and proceeded

to similarly construe R.C. 2907.01(F) to

comply with Miller, in Ronald Burgun, supra,

The United States Supreme

Court pointed out that subse-

quent to the Miller decision,

the Illinois Supreme Court

decisions had proceeded to

"construe" Section 11-20 of

their Criminal Code to "incor-

porate" the guidelines in that

decision. Id., at page 774-775.

As a result of that state

Supreme Court's "response to

Miller," the Court indicated,

at page 776, that it would not

hold the Illinois statute to

be “unconstitutionally pverbroad."

This court, as previously

noted in Vixen and Sensenbrenner,

supra, [35 Ohio St.2d 215 (1973)

and 35 Ohio St.2d 220 (1973)] has

followed a somewhat similar "res-

ponse to Miller" in its construc-

tion of R.C. 2905.34. Today,

that "response" continues with

a further clarification by the

interpretation and application

of its successor, R.C. 2907.01(F).

We hold that R.C. 2907.01(F) is

neither unconstitutionally over-

broad nor void for vagueness when

it is read in pari materia with

the Miller decision. The Miller

test for defining obscenity is

therefore incorporated into that

statute by an "authoritative"

state court construction speci-

We emphasize that it is not

our function to propose regula-

tory schemes for the States.

That must await their concrete

legislative efforts. It is:

possible, however, to give a

few plain examples of what a.

state statute could define for

regulation under part (b) of the

standard announced in this

Opinion, supra: [Emphasis added]

(a) Patently offensive repre-

sentations or descriptions of

ultimate sexual acts normal

or perverted, actual or simulated,

(b) Patently offensive repre-

sentations or descriptions of

masturbation, excretory functions,

and lewd exhibition of the

genitals.

It is clear that the Ohio Supreme Court

meant to and did construe R.C. 2907.01(F)

in such a manner to incorporate the three-

part "Miller Test" as well as the general

scope of the examples of sexual conduct, as

had Illinois, in order to comply with

Miller v. California and also Ward v.

Illinois, supra. The Ohio Court's action

on these issues conclusively shows that

the law has already been accorded that

which Sovereign News seeks from the federal

courts, namely a constitutional standard

fically sanctioned by Miller. ... | for judging obscenity in Ohio.

It must also be remembered that yo

' iven at page 25 of Miller PY

perry De peer ae of Wags the Ph oa of ae 1t had been originally drafted in the words

regulation of conduct which can form the | of the Miller decision, as the Ohio Supreme

basis for obscenity under the three-part Court so held. See also: I.A.B., Inc. v.

"test", The Miller Court stated, in this Stack, 440 F.Supp. 937, at 943 (S.D. Fla.

regard, at page 25:

The Ohio definition of R.C. 2907.01 (F)

must be tested by the federal courts as if

49 50

1977). There can be no question as to the

validity of the "Miller Test", and only

this Court can now declare that the "Miller

Test" cannot be used to define obscenity.

It is no answer that the Ohio Supreme

Court did not adopt the examples of Miller,

at 25, since those examples are not the

limit of conduct subject to obscenity and

the Ohio decisions have long confined the

reach of prosecution to sexual conduct,

not mere nudity and not pure violence, and,

no conflict with the First Amendment will

ever be approved by the Ohio Supreme Court.

If anything, the Ohio statute is more

precise than the "examples" given in Miller,

at 25.

The Miller standards were the law in

Ohio at the time the District Court held

the hearing on the preliminary injunction

and declaratory judgment and were the law

at the time the District Court announced

its decision seven months later. This

remains the law today in Ohio and this

Court is honor bound to set the record

straight and reverse the orders of the

Court of Appeals and District Court.

CONCLUSION

This Court has consistently cautioned

against federal interference. However, the

federal courts, in general, and the District

in particular, have avoided this warning

and precedent to the continual detriment

of the state courts.

The facts of this case require a reso-

lution of the abstention issues in order

to prevent future state prosecutions

from being compromised as well as to

allow the Ohio courts to resume their

function in protecting our people

against the horrid plague which pornography

has set upon us, particularly in Cleveland.

The District Court has unjustifiably pro-

vided Sovereign News Company's operators

with over two years of practical immunity

for crimes which the State has a right to

combat. Such an unjust situation should.

not be allowed to continue any longer.

For these reasons, we pray that the Writ

of Certiorari be issued.

Respectfully submitted,

ars A. ave

440 Leader Building

Cleveland, Ohio 44114

(216) 696-1433

Attorney for Petitioners,

Cleveland Police Officers

Of Counsel:

THOMAS E. WAGNER

Director of Law

DONALD F. BLACK

Assistant Director of Law

City of Cleveland

City Hall

Cleveland, Ohio 44114

CERTIFICATE OF SERVICE

On this 18th day of April, 1980,

three copies of this Petition for a Writ

of Certiorari were mailed to the attorneys

for each of the Respondents: .

Bernard A. Berkman, Esq.

Berkman, Gorddén, Levy, Murray & Palda

2121 Illuminating Building

55 Public Square ;

Cleveland, Ohio 44113

Attorney for Sovereign News Company

James A. Brogan, Esq.

First Assistant Prosecuting Attorney

Montgomery County Courts Building

41 North Perry Street

Dayton, Ohio 45402

Thomas P. Gill, Esq.

Assistant Prosecuting Attorney

Office of the County Prosecutor

Justice Center, Ninth Floor

1200 Ontario Street Fé

Cleveland, Ohio 44113

miEwwore Waren a

' Bruce A. Tay

Attorney for Petitioners

Te ind tees 2 ay TO ma 5 etl

EXHIBIT A

Sovereign News Company

vs.

John T. Corrigan, et al.

United Stat::s Court of Appeals

Sicth Circuit

610 F.2d 128 (Dec. 7, 1979)

428 610 FEDERAL REPORTER, 2d SERIES

SOVEREIGN NEWS COMPANY,

‘Plaintiff-Appellee,

John T. CORRIGAN, Prosecuting Attor-

ney, et al, Defendants-Appeliants.

Nos. 78-3064 to 78-3066. ;

United States Court of Appeals,

Sixth Gircuit.

Argued Oct. 4, 1979.

Decided Dec. 7, 1979.

Rehearing and Rehearing En Banc

Denied Jan. 22, 1980.

Appeal from the United States District

Court for the Northern District of Ohio;

Joba M. Manos, Judge.

Timothy J. Armstrong, Asst. Pros. Atty.,

Cleveland, Ohio, for John T. Corrigan.

Bernard A. Berkman, Berkman, Gordon,

Kancelbaum & Levy, Cleveland, Ohio, for

Sovereign News Co.

James A: Brogan; Asst. Prosecutor, Gary

‘W. Crim, Dayton, Ohio, for Lee C. Falke.

Thomas V. Martin, Asst. Atty. Gen., Co

een ene HAF SEND. enn Ally Gen.

- of Ohio.

ih 0h: ekidhuidie, Siveteer at Law, Cy

of Cleveland, Donald F. Black, Bruce A.

Taylor, Bertsch, Edelman & Fludine Co.,

LPA, Cleveland, Ohio, for Cleveland Police

Officers. y

Before EDWARDS, Chief Judge, KEITH,

Circuit Judge, and PHILLIPS, Senior Cir-

cuit Judge.

PER CURIAM.

decision of the district court reported at 448

F.Supp. 306, rendered October 31, 1977,

_holding parts of the Ohio obscenity statute,

R.C. Ohio §§ 2907.01(F} and 2907.32, to be

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

2607, 37 L.Ed.2d 419 (1973). -

On December 7, 1978, the Supreme Court

of Ohio rendered an opinion in State of

Ohio v. Burgun, 56 Ohio St2d 354, 384

N.E.2d 255 (1978), holding that the Ohio

statute when construed to incorporate the

guidelines of Miller v. California, is valid

and constitutional. The first syllabus, pre-

pared by the Supreme Court of Ohio, is as

follows:

R.C. 2907.01(F), which sets forth the defi-

nition of “obscenity,” is neither unconsti-

tutionally overbroad nor void for vague-

"ness when it is authoritatively construed

to incorporate the guidelines prescribed

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

S.Ct. 2607, 37 L.Ed.2d 419}.

56 Ohio St.2d at 354, 384 N.E2d at 255.

Upon consideration of the briefs, oral ar-

guments of counsel and the entire record, it

is ORDERED that these cases be remanded

to the district court for further considera-

_ tion in the light of the decisiof of the

Supreme Court of Ohio in State of Ohio v.

Burgun. .

EXHIBIT B

Sovereign News Company

vs.

Lee C. Falke, et al.

United States District Court

N.D. Ohio E.D.

448 F.Supp. 306 (Oct. 31, 1977)

SOVEREIGN NEWS CO., Plaintiff,

Lee C. FALKE, Prosecuting Attorney for

Montgomery County, Ohio, and E. R.

Robinson and C. L. Dalrymple, and John

T. Corrigan, Prosecuting Attorney for

Cuyahoga County, Ohio, and Roy War-

ner, L. Thompson, John Crawford, Ar-

chie Catavolos, Kenneth White, William

Poe, Richard B. Millett, John H. Devine,

James Lynsky, Vincent G. Krawulski,

Carl Delau, Andrew S. Vanyo, James

Kennelley, Robert J. Cermak, Henry Yi-

sha, Gregory Kunz, B. Jones, Richard

McIntosh, John McNamara, Edward C.

Loucas, Samuel Hennie, Charlies Berkey,

Robert O’Brien, and the following mem-

bers of the Police Department of the

City of Cleveland, Ohio, whose full

names are unknown at this time: Ka-

minski, Banyon, McGreer (Badge No.

1583), and John Doe I, John Doe II, and

John Doe III, Defendants.

No. C77-230.

United States District Court,

N. D. Ohio, E. D.

Oct. 31, 1977.

Distributor of sexually oriented materi-

al brought action against county prosecu-

448 FEDERAL SUPPLEMENT

tors, city police officers and others seeking

compensatory and punitive damages, de-

claratory judgment and injunctions re-

straining defendants from using evidence

seized during a search of plaintiff's premis-

es to prosecute plaintiff. The District

Court, Manos, J., held that: (1) state grand

jury proceeding at which evidence of dis-

tributor’s alleged violations of state’s or-

ganized crime and pandering obscenity stat-

utes was presented constituted a pending

state proceeding for purposes of applying

the Younger abstention doctrine; (2) where

state enforcement efforts against distribu-

tor in another county had not, at time that

stributor’s federal litigation attained sub-

stantial proceedings on the merits, ad-

vanced past the stage in which police

threatened future prosecution of distributor

under pandering obscenity and organized

crime statutes, police threats of prosecution,

without further involvement of state’s jus-

tice system, were insufficient to trigger ab-

stention doctrine’s cloak of protection for

state law enforcement officers; (3) where

obscenity statute, in four different instanc-

es, went beyond the suppression of just

obscene material, degree of impact on First

Amendment rights was substantial, chilling

effect of statute was multiplied by large

numbers of persons caught in its web and

severe penalties provided for violations, and

state court could not readily put an authori-

tative gloss on statute to make it constitu-

tional, such statute was unconstitutionally

overbroad; (4) obscenity statute which

failed to specify types of sexual conduct

that were banned was unconstitutionally

vague, and (5) district court would not rule

on plaintiff's contention that organized

crime statute, when read in conjunction

with pandering obscenity statute, was un-

constitutionally overbroad and vague.

Order accordingly.

1. Federal Courts e104

First concern of court on motion to

transfer is whether action which party

omer Tenthcers. Cane sets

le a

ne ke ee er

SOVEREIGN NEWS CO. v. FALKE

Cite as 448 F.Supp. 306 (1977)

seeks to transfer could have been brought

originally in the proposed transferee dis-

trict. 28 U.S.C.A. § 1404

2. Federal Courts e103

In considering a motion to transfer,

district court is vested with wide discretion.

28 US.C.A. § 1404

3. Injunction = 114(4)

District court lacked power to permit

State Attorney General to intervene in

hearing on preliminary injunction motion

under statute permitting State Attorney

General to intervene in proceedings in

which constitutionality of state statute is

drawn in question, in view of fact that

county prosecutors were parties to such

hearing and such prosecutors were officers

of the state under state law. 28 U.S.C.A.

§ 2408%(b); R.C.Ohio §§ 309.08, 2907.01,

2907.32, 2923.04.

4. Federal Civil Procedure 103

Any federal district court charged with

duty to determine whether to abstain from

litigating issues involving constitutionality

of state statute involved in pending state

criminal proceeding must first decide

whether plaintiff sustains standing to per-

sonally assert its claims against defendant.

U.S.C.A.Const. art. 3, § 1 et seq.

5. Constitutional Law @=42.1(3)

Corporate distributor of books, maga-

zines and films had standing to challenge

constitutionality of state’s pandering ob-

scenity and organized crime statutes, in

view of fact that distributor was threatened

with prosecution under such statutes. R.C.

Ohio §§ 2907.01, 2709.32, 2923.04; U.S.C.A.

Const. art. 3, § 1 et seq..

6. Federal Courts. 42

State proceedings which occur after

substantial federal proceedings cannot be

relied on to justify federal abstention.

7. Federal Courts 50

In determining whether Younger ab-

stention doctrine applies to federal injunc-

tive and declaratory litigation between

state law enforcement officials and plain-

tiffs who are targets of criminal enforce-

ment activities, district court must decide

when proceedings of substance on merits

took place, and then determine procedural

posture of state action as of date when

substantive proceedings occurred; if state’s

act which is subject of federal complaint did

not attain sufficiently advanced procedural

state within state’s criminal justice system

by date proceedings of substance transpired

in. federal suit, federal court may decide

merits of plaintiff's complaint; if state’s

date proceedings of substance transpired in

federal litigation, federal court must deter-

mine if it has jurisdiction in terms of comi-

ty principles established by Supreme Court.

8. Federal Courts @=42

For purposes of doctrine providing that

if state’s act that is subject of federal com-

plaint did not attain sufficiently advanced

procedural stage within state’s criminal jus-.

tice system by date that proceedings of

substance transpired in federal suit, federal

court may decide merits of complaint, “pro-

ceedings of substance on the merits” oc-

curred in federal litigation on April 25,

1977, since as of that date, plaintiff's com-

plaint was filed and served on all defend-

ants, motion for preliminary injunction was

filed, three-day hearing had been held on

motion to transfer and merits of plaintiff's

claims for preliminary injunction and de-

claratory judgment, and all defendants had

answered complaint and had filed briefs on

merits of plaintiff's claim for preliminary

injunction.

See publication Words and Phrases

for other judicial constructions and

definitions.

9. Federa) Courts 42

Procedural stages which occur within

jurisdiction of state’s criminal justice sys-

tem after date on which proceedings of

substance on the merits transpired in relat-

ed federal declaratory and injunctive litiga-

tion cannot terminate the more advanced

federal action.

10. Federal Courts 50

Key to application of Younger absten-

tion doctrine which counsels against federal

intervention in pending state criminal and

gation.

11. Federal Courts 50

The Younger abstention doctrine ap-

plies when record reveals that prior to at-

tainment of substantial proceedings on mer-

its of federal complaint, a state or criminal

enforcement action has posed a concrete

adverse threat to federal plaintiff and to

his enjoyment of federal right, has afforded

federal plaintiff an opportunity to present

its federal claims in state forum at some

time during state’s enforcement action, and

has involved a state institution imbued with

an important legitimate state interest.

12. Federal Courts #50

So long as state criminal enforcement

action attains a stage which assures federal

purposes of application of the Younger ab-

stention doctrine.

13. Federal Courts 50

State grand jury proceeding in which

evidence of book and magazine distributor's

alleged violations of state’s organized crime

and pandering obscenity statute was

presented furnished such distributor with

an opportunity to ultimately pursue, within

state judicial system, its federal claim that

criminal statutes in question were unconsti-

tutional; therefore, application of the

Younger abstention doctrine was not pre-

cluded on the theory that distributor sus-

tained no opportunity to present its federal

claims to state judicial system.

14. Federal Courts 50

Grand Jury 1

State grand juries are state institutions

having a legitimate state interest deciding

whether formal felony criminal litigation

should go forth in state court, and invoca-

tion of federal judiciary’s equity powers

against a state grand jury to suppress evi-

dence, developed after a lengthy police in-

vestigation and presented to state grand

jury, would violate abstention policies.

15. Declaratory Judgment 84

Federal courts should not ordinarily

employ their equitable and declaratory

judgment power to suppress evidence at

grand jury stage of state criminal proceed-

ing. ;

16. Federal Courts 50

State grand jury proceeding at which

evidence of book and magazine distributor’s

alleged violations of state’s organized crime

and pandering obscenity statutes was

presented constituted a pending state pro-

ceeding for purposes of applying the

Younger abstention doctrine because it

posed distributor with a sufficient threat to

give it Article III standing, it furnished

distributor an opportunity to present its

federal claims during state’s enforcement

action, and it involved a state institution

having a legitimate state interest. US.C.

AConst. art. 3, § 1 et seq.; RC.Ohio

§§ 2907.01, 2907.32, 2923.04.

17. Federal Courts 50

Existence of two separate pending

state judicial criminal actions against book

and magazine distributor for alleged viola-

tions of state’s organized crime and pander-

ing obscenity statutes did not constitute

“exceptional circumstances” so as to free

a A -

SOVEREIGN NEWS CO. v. FALKE

48 FEDERAL SUPPLEMENT

309

Cite as 448 F.Supp. 306 (1677)

federal court from abstention doctrine and

permit distributor to litigate its constitu-

tional issues against county authorities in

federal court despite the pendency of paral-

lel state judicial enforcement action, in ab-

sence of showing that either of the two

pending state actions was initiated in bad

faith. :

18. Federal Courts 42

In all cases in which a party seeks

federal injunctive or declaratory relief chal-

lenging constitutional validity of state stat-

ute against state law enforcement officers

who in turn urge federal court to abstain,

federal district court must first determine

whether federal defendants pose a concrete

threat to enforce challenged state statutes

against federal plaintiffs. U.S.C.A.Const.

art. 3, § 1 et seq.; 28 U.S.C.A. § 2201.

19. Constitutional Law @=42.2(1)

Distributor of sexually oriented materi-

al was threatened sufficiently to sustain

standing for a First Amendment challenge

to state’s pandering obscenity and organ-

ized crime statutes, in view of fact that city

authorities’ testimony and conduct demon-

strated their ongoing intention to enforce

those statutes against distributor, distribu-

tor had two separate pandering indictments

against it for violation of such statutes, and

the statutes had already resulted in convic-

tion of another publisher of sexually orient-

ed literature, who was sentenced to seven

to 25 years in prison and fined over $20,000.

U.S.C.A.Const. art. 3, § 1 et seq.; Amend. 1;

28 U.S.C.A. § 2201; R.C.Ohio §§ 2907.32,

2923.01, 2923.04.

20. Federal Courts «50

Where state enforcement efforts

against distributor of sexually oriented ma-

terial had not, at time that distributor's

federal litigation attained substantial pro-

ceedings on the merits, advanced past the

stage in which police threatered future

prosecution of distributor. under pandering

obscenity and organized crime statutes, po-

lice threats of prosecution, without further

involvement of state’s justice system, were

insufficient to trigger abstention doctrine’s

cloak of protection for state law enforce-

ment officers who were named as defend-

ants in distributor’s federal litigation. R.C.

Ohio §§ 2907.32, 2923.01, 2923.04.

21. Federal Courts o=50

County authorities’ threat of a third

repetitive prosecution against distributor of

sexually oriented material under pandering

obscenity and organized crime statutes jus-

" tified federal judicial scrutiny of constitu-

tional validity of statutes on which threat-

ened prosecution was based, and federal

court would not abstain from deciding mer-

its of distributor’s preliminary injunction

and declaratory judgment claims against

county authorities. R.C.Ohio §§ 2907.32,

2923.01, 2923.04.

22. Federal Courts #47

The Younger abstention doctrine is

triggered when federal injunction or deciar-

atory judgment action threatens interdic-

tion of a state’s justice system, usually by

interference with a civil or criminal en-

forcement action pending in state’s justice

system, to which action the state, exercising

its sovereignty powers, is a party; the

Younger doctrine also applies to federal

action calculated to subjugate substantial

segment of state’s justice system to perva-

sive regulation of federal court’s equity

powers.

23. Federal Courts 242

The Pullman abstention doctrine ap-

plies when outcome of federal litigation de-

pends on federal court’s resolution of an

unclear threshold question of state law that

is fairly subject to a state judicial construc-

tion.

24. Federal Courts. 42.

The elements. which trigger a federal

district court’s self-assessment of its juris-

diction under the Pullman abstention doc-

trine are: an unclear threshold question of

state law which, if resolved in favor of

federal plaintiff, aborts the need to decide

federal issues in federal plaintiff's com-

plaint, and a state law question which can

be readily resolved by state courts if federal

court temporarily stays its own proceedings.

310

25. Federal Courts 50

The Pullman abstention doctrine which

is applicable when outcome of federal liti-

gation depends upon federal court’s resolu-

tion of unclear threshold question of state

law would not be invoked with respect to

action brought by distributor of sexually

oriented material challenging validity of

state’s paridering obscenity and organized

crime statutes, in view of fact that distribu-

tor’s claims alleged infringement of its

First Amendment interest of protection of

pure expression, challenged pandering ob-

scenity statute was not fairly subject to a

judicial construction that would narrow it

to constitutional perimeters, and county of-

ficials were threatening a third repetitive

prosecution of distributor under the chal-

lenged statutes. R.C.Ohio §§ 2907.01,

2907.32, 2923.04; U.S.C.A.Const. Amend. 1.

26. Constitutional Law @=90(1)

Any statute or ordinance that may in-

fringe on protected expression must be

closely scrutinized. U.S.C.A.Const. Amend.

27. Constitutional Law @90(1)

Extent of protection afforded expres-

sion varies with form as well as time and

place during which it occurs; if expression

takes the form of simply and unobtrusively

communicating an idea, with physical action

element limited to the extent necessary to

transmit the idea, then expression is pure

expression or speech and is entitled to the

highest degree of protection. U.S.C.A.

Const. Amend. 1.

28. Constitutional Law @=90(3)

To restrict pure expression the state

must show that a clear and present danger

is presented to society by the pure expres-

sion, that individual’s interest in having

pure expression allowed is outweighed by

danger presented to society by permitting

that conduct, and that government has used

the narrowest restriction on pure expres-

sion consistent with furtherance of govern-

mental interest involved. U.S.C.A.Const.

Amend. 1.

448 FEDERAL SUPPLEMENT

29. Constitutional Law ¢=90(3)

If physical action element of conduct

becomes more than just an unobtrusive

means to communicate an idea, then the

conduct is speech plus and is entitled to a

lower degree of protection than pure

speech; to restrict speech plus, state must

show that a substantial interest of society

will be affected by the speech plus conduct,

that individual’s interest in allowing speech

plus conduct is insufficient in comparison

with detrimental effect the conduct will

have on society, and that government has

used the narrowest restriction on pure

speech consistent with the furtherance of

the governmental interest involved. U.S.C.

A.Const. Amend. 1.

30. Constitutional Law *=90.1(1)

High degree of protection afforded all

forms of pure expression does not, with a

narrow exception, end when subject matter

of expression deals with human sexuality,

and therefore, such material may not be

normally restricted or censored; the narrow

exception occurs when contents of what

would otherwise be protected expression

deals with human sexuality in a manner

which is “obscene” under standards estab-

lished by United States Supreme Court.

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

31. Constitutional Law @=90.1(1)

The line between protected expression

and obscene materia] which is subject to

restriction must be drawn so as not to un-

duly infringe protected rights. U.S.C.A.

Const. Amend. 1.

32. Obscenity e=2

Only material that depicts or describes

sexual conduct can be regulated because it ©

is obscene; material containing violence,

brutality or cruelty cannot be considered

obscene unless it also contains depictions or

descriptions of sexual conduct. U.S.C.A.

Const. Amend. 1.

33. Obscenity e=5

When sexua! material appeals to pru-

rient interest and depicts in a patently of-

fensive way sexual conduct specified in a

state statute and the work lacks serious

literary, artistic, political or scientific value,

eles | ate:

See ne eee

SOVEREIGN NEWS CO. v. FALKE

311

Cite as 448 F.Supp. 366 (1877)

then it can be found to be obscene; state

must establish that all three elements of

the test are met before restricting material

on the grounds that it is obscene. U.S.C.A.

Const. Amend. 1.

34. Obscenity «2

Only hard core sexual conduct may be

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

35. Obscenity e=2

Statutes proscribing the depiction or

description of sexual conduct must specifi-

cally define the sexual conduct which may

not be described or depicted. U.S.C.A.

Const. Amend. 1.

36. Obscenity o=5

Depictions or descriptions of simple nu-

dity are not “hard core” sexual conduct and

cannot be restricted. U.S.C.A.Const.

Amend. 1.

See publication Words and Phrases

for other judicial constructions and

definitions.

37. Obscenity o=5

Line drawn between hard core pornog-

raphy which is subject to restriction and

depictions and descriptions of sexual con-

duct which may not be restricted depends

on amount of physical activity connected

with sexual depiction or description; if hu-

man subject of depiction or description is

engaged in sexual action, whether by him-

self or herself, or with another, then mate-

rial is “hard core” sexual conduct and may

be banned; when description or depiction is

of sexual conduct without a significant ac-

tion element, i. e. sexual conduct is of a

passive nature, then description or depiction

is not “hard core” and may not be banned

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

38. Constitutional Law ¢=90.1(1)

Obecenity «2

Statute which defined as “obscene”

material whose dominant appeal was to

prurient interest but which did not require

state to prove that material was patently

offensive or that, taken as a whole, the

material lacked serious literary, artistic, po-

litical or scientific value, was overbroad.

R.C.Ohio §§ 2907.01, 2907.01(F), (FX1-5).

39. Constitutional Law o=90.1(1)

Obscenity 2

Obscenity statute which restricted the

display or depiction of extreme or bizarre

violence, cruelty or brutality was overbroad,

since only material depicting or describing

sexual conduct may be barred as obscene. -

R.C.Ohio § 2907.01(F\3); U.S.C.A.Co:

Amend. L

40. Constitutional Law @=99,1(1)

Obscenity e=2

Statute which restricted the display or

depiction of nonactive sexual conduct was

overbroad, since depiction of nonactive sex-

ual conduct is not hard core pornography

and cannot be restricted as obscene. R.C.

Ohio § 2907.01(F\1-3, 5); U.S.C.A.Const.

Amend. 1.

41. Obscenity 2

Statute which declared that any mate-

rial whose dominant appeal is to prurient

interest was obscene was unconstitutionally

overbroad because it did not list the types

of sexual conduct to be restricted, and

therefore could be applied to the depiction

of sexual conduct not subject to restriction.

R.C.Ohio § 2907.01(FX1); U.S.C.A.Const.

Amend. 1.

42. Federal Courts e386

A federal court may not place a nar-

rowing interpretation on a state statute.

43. Constitutional Law. =48(1)

Municipal Corporations ¢= 12)

When considering contention that stat-

ute or ordinance is facially unconstitutional,

it is necessary to proceed with caution and

restraint, and facial invalidity should not be

declared unless statute or ordinance is not

readily subject to narrowing construction

by state courts and its deterrent effect on

legitimate expression is both real and sub-

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

44. Obscenity e=2

Where state obscenity statute, in four

different instances, went beyond the sup-

pression of just obscene material, degree of

impact on First Amendment rights was

substantial because of extent of over-

LL LL aaa a oo as =

312 448 FEDERAL SUPPLEMENT

breadth, chilling effect of statute was mul-

tiplied by large number of persons caught

in its web and severe penalties provided for

violations, state court could not readily put

an authoritative gloss on statute to make it

constitutional, and state courts had had a

number of opportunities to narrow the stat-

ute but failed to do so, such statute was

unconstitutionally overbroad. R.C.Ohio

§§ 2907.01, 2907.32; U.S.C_A.Const. Amend.

45. Criminal Law @13.1(1)

Statutes which impinge on the area of

freedom of expression must have a greater

degree of specificity than in other contexts

so as to insure that citizens will not be

chilled from exercising their constitutional

right to free expression. U.S.C.A.Const.

Amend. 1.

46. Criminal Law @13.1(1)

Standard normally used in determining

if a statute is vague is whether men of

common intelligence must necessarily guess

as te its meaning.

47. Criminal Law @=13.1(13)

Obscenity statute which failed to speci-

fy types of sexual conduct that were

banned was unconstitutionally vague. R.C.

Ohio § 2907.01(F).

48. Constitutional Law @=46(1)

District court would not rule on plain-

tiff’s contention that state’s organized

crime statute, when read in conjunction

with pandering obscenity statute, was un-

constitutionally overbroad and vague, in

view of fact that court had declared state’s

pandering obscenity statute unconstitution-

al, and therefore, the organized crime stat-

ute did not thereafter substantially impinge

on constitutionally protected right of free

speech. R.C.Ohio §§ 2907.01, 2907.32, 2923.-

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

1. Hereinafter, Sovereign.

2. Paragraph | of Sovereign’s Complaint states:

“Plaintiff is a corporation doing business in

Ohio and engaged in the distribution of

books, magazines and films. Defendants Lee

C. Falke and John T. Corrigan are respective-

ly the duly elected and acting prosecuting

attorneys for the counties of Montgomery

and Cuyahoga, State of Ohio. The other de-

49. Constitutional Law @=46(1)

A court will not reach constitutional

questions when it is not necessary.

Bernard A. Berkman, Berkman, Gordon,

Kancelbaum & Levy, Cleveland, Ohio, for —

William J. Brown, Atty. Gen. of Ohio,

Thomas V. Martin, Asst. Atty. Gen., Colum-

bus, Ohio, James A. Brogan, First Asst.

County Pros., Dayton, Ohio, for amicus cu-

Jack M. Schulman, Director of Law,

Bruce A. Taylor, Asst. Director of Law,

Cleveland, Ohio, Herbert Creech, Asst. Pros.

Atty., Dayton, Ohio, for Falke.

Smith, Warder, Arter & Hadden, Cleve-

land, Ohio, Timothy J. Armstrong, Asst.

Pros. Atty., Cleveland, Ohio, for Robinson

and Dalrymple.

MEMORANDUM OF OPINION

JUDGMENT ORDER

MANOS, District Judge.

PROCEDURAL HISTORY

On March 7, 1977, the plaintiff, Sovereign

News Company,’ filed this action seeking

compensatory and punitive damages, a de-

claratory judgment, and preliminary and

permanent injunctions restraining both the

Cuyahoga County, Ohio and Montgomery

County, Ohio prosecutors, and all the de-

fendant Cleveland and Dayton police offi-

cers from using evidence seized during a

search of Sovereign’s premises to prosecute

Sovereign.2? The search in question was

fendants are officers and members of the

police departments of the cities of Dayton

and Cleveland in the State of Ohio, as indi-

cated in the caption of this complaint. This

action seeks damages against the defendants

(except the defendant prosecuting attorneys),

declaratory judgment and equitable relief to

redress the violation of plaintiff's rights se-

cured under the First, Fourth and Fourteenth

SOVEREIGN NEWS CO. v. FALKE 313

Cite as 448 F.Supp. 366 (1977)

conducted on February 16, 1977 pursuant to

a search warrant. Sovereign’s complaint

alleges that the search of its premises, and

the Ohio statutory provisions employed to

authorize that search, violate the First,

Fourth, and Fourteenth Amendments to the

United States Constitution.’

On March 28, 1977, Sovereign moved for

a preliminary injunction, and on March 29,

1977, the court convened a hearing on that

motion.‘ The Cleveland policemen urged

the court to dismiss Sovereign’s complaint

pursuant to Fed.RCiv.P. 12(b) on the theo-

ry that the doctrine of Younger v. Harris,’

401 U.S. 37, 91 S.Ct. 746, 27 L.Ed2d 669

(1971), and Huffman v. Pursue, 420 U.S.

592, 95 S.Ct. 1200, 48 L.Ed.2d 482 (1975)

compelled the court to abstain from hearing

Sovereign’s constitutional claims.’

Prior to the commencement of the March

29, 1977 hearing, counsel for defendant

Falke, the Prosecuting Attorney for Mont-

gomery County, filed a written motion to

dismiss pursuant to Fed.R.Civ.P. 12(b\1),

(3), (6), “for the reasons that the court lacks

jurisdiction over the subject matter of the

action, the venue is improper and the com-

plaint fails to state a claim upon which

Amendments. of the United States Constitu-

tion.”

The compiaint alleges an excess of 10,000 dol-

lars in controversy, and charges that the de-

rights while acting under color of state law.

Thus paragraphs two and three of Sovereign’s

complaint allege original federal subject matter

jurisdiction under 28 U.S.C. §§ 1331, 1343(1),

1343(3), 1343(4), and 42 U.S.C. § 1983. Sover-

Sovereign’s complaint. See generally, Hanna

v. Drobnick, 514 F.2d 393, 396-399 (6th Cir.

1975); Patterson v. City of Chester, 389

F.Supp. 1093, 1095-1096 (E.D.Pa.1975); Amen

v. Dearborn, 532 F.2d 554, 559 (6th Cir. 1976);

Wiley v. Memphis Police Department, 548 F 2d

1247, 1254 (6th Cir. 1977); Mt. Healthy City

School District Board of Education v. Doyle,

429 U.S. 274, 97 S.Ct. 568, 571-572, 50 LEd2d

471 (1977).

3. Count II of Sovereign’s complaint seeks an

injunction against the defendants on the theory

that they perpetrated the Ohio common law

torts of trespass and conversion against Sover-

relief can be granted.*” Falke’s motion

was orally argued before the commence-

ment of the March 29, 1977 hearing.

Falke’s counsel, First Assistant Montgom-

ery County Prosecutor James Brogan, ad-

mitted that this court sustained “jurisdic-

tion to hear the case,” but urged that venue

should be transferred to the Federal Dis-

trict Court for the Southern District of

Ohio,® and that the court should not hear

Sovereign’s claims. because of the doctrine

of “equitable restraint” enunciated in

Louisville Area Inter-Faith Committee for

United Farm Workers et al. v. Nottingham

Liquors et al., 542 F.2d 652 (6th Cir. 1976),

and Younger v. Harris, 401 U.S. 37, 91 S.Ct.

746, 27 L.Ed2d 669 (1971). Assistant

Montgomery County Prosecutor Brogan

also argued that United States v. Calandra,

414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561

(1974) prohibits this court from issuing any

injunctive order restraining state law en-

forcement authorities from introducing ille-

gally obtained evidence to a state grand

jury that sustains jurisdiction of investigate

an alleged offense to which the illegally

obtained evidence is relevant."

eign, as weil as an illegal search and seizure

under the laws of Ohio. The Court assumes

that these state law claims are joined in the

complaint under the doctrine of pendant juris-

diction.

4. See, transcript (hereinafter, Tr.] at pp. 3-4.

5. See, Tr. 5-19.

6. See, Tr. 5-19.

7. On the morning of March 29, 1977 the Cleve-

land Law Department, representing the individ-

ually named Cleveland police officer defend-

ants, filed a brief, arguing various reasons, un-

der Ohio law, why this court should not grant

the injunction sought by Sovereign. The court

rejects the arguments based solely on Ohio

law.

8 See, defendant Falke’s motion filed March 29,

1977.

9. See, Tr. 22.

10. See, Tr. 23.

ll. See, Tr. 21.

314 448 FEDERAL SUPPLEMENT

[1-3] At the conclusion of the argu-

ments of counsel, the court overruled de-

fendant Falke’s motion to change venue,”

and withheld ruling on the motions to dis-

miss until it heard the evidence elicited

during the preliminary injunction hearing.”

On March 30, 1977, the second day of the

hearing on the preliminary injunction, coun-

12. See, Tr. 37-38, 44. See, 28 U.S.C.

$$ 1391(b), 1392(a), and 1404(a). The fisq con-

tal Grain Co. v. Barge F.B.L.-585, 364 U.S. 19,

22, 80 S.Ct. 1470, 4 LEd2d 1540 (1960); Hoff-

Plum Tree, inc. v. Stockment, 488 F.2d 754, 756

(3rd Cir. 1973); Nowell v. Dick, 413 F.2d 1204,

cause that district is where the search warrant

was obtained and the search was conducted; it

is also where the overwhelming number of the

parties to this litigation are located, and it is

the district from which most of the witnesses

including Cuyahoga County Common Pleas

512 F.2d 918, 931 (1974). Also, the court gave

substantial weight to piaintiff Sovereign's se-

lection of this forum. See, Vasquez v. Falcon

Coach Co., 376 F.Supp. 815, 822-823 (D.N.D.

1974); Cooper v. Camp Pinecrest, Inc., 175

F.Supp. 817, 818-819 (E.D.N.Y.1959).

U EERE

iad

: Hie

fegiig

agencies of the State of Ohio and the officials

themselves are officers of the State of Ohio for

purposes of enforcing Ohio's criminal laws,

such as the laws drawn into question in this

sel for the defendant Cleveland police offi-

cers, moved the court in limine to limit the

testimony of several of the Cleveland police

officer defendants.“ The court denied the

motion, and permitted Mr. Berkman, coun-

sel for Sovereign, to continue his examina-

tion of the police officers called as witness-

case. Ohio Revised Code § 309.08 explicitly

“The prosecuting attorney may inquire into

the commission of crimes within the county

and shall prosecute on behalf of the State, all

complaints, suits, and controversies in which

the State is a party .

Therefore, this court lacks the power to permit

the Ohio Attorney General to intervene under

28 U.S.C. § 2403(b), as a litigant in the hearing

on the preliminary injunction because the two

county prosecutors who were already parties

are officers of the State of Ohio for purposes of

the administration of the Ohio legislation chal-

lenged as unconstitutional.

This court’s application of § 2403(b) is con-

94-381. See, 1976 U.S.Code Cong. Admin.

News, pp. 1988-2001.

In the case of Larry Flynt, et al. v. Simon L.

Leis, et al., Case No. C-1-76-553 (S.D.Ohio,

court exercised that discretion in this case.

14. See, Tr. 123-125.

SOVEREIGN NEWS CO. v. FALKE 315,

Cite as 448 F.Supp. 306 (1977)

es during the preliminary injunction hear-

ing.4

On March 31, 1977, the hearing on the

preliminary injunction was concluded ™ and

each of the defendants. renewed their mo-

tions to dismiss Sovereign’s declaratory and

injunctive claims.

On April 1, 1977, after the close of the

hearing, the court, pursuant to motions

made by the defendants, stated that it

would treat the hearing as one dealing with

the preliminary injunction, and that it

would consider the request for a declarato-

ry judgment “only with respect to the

[purely legal] issue of the constitutional va-

lidity of [Ohio Revised Code] Sections 2907.- -

32, 2907.01, and 2923.04. The cov . will not

now entertain consideration of the plain-

tiff’s declaratory judgment claims other

than the claim that Sections 2907.32, 2907.-

01 and 2923.04 violated the United States

Constitution.” At the same time the

court reiterated its earlier ruling that the

question of money damages would be con- .

sidered only after further proceedings, and

not based on the hearing conducted be-

tween March 29 and 31, 1977.

At the conclusion of the April 1, 1977

proceeding, the defendants’ respective mo-

tions to dismiss Sovereign’s declaratory

judgment and injunction claims were pend-

ing before the court. Sovereign’s motion

for a declaratory judgment on the constitu-

tional validity of Ohio Revised Code

§§ 2907.32, 2907.01, and 2923.04 and its

motion for a preliminary injunction were

also pending. All defendants filed answers

to Sovereign’s complaint by April 13, 1977,

and all defendants except the Dayton po-

licemen filed their briefs by April 25, 1977.¥

1S. See; Tr. 127.

16. See, Tr. 274.

17. See, Tr. 286-287, and cf, Tr. 125-127.

18. Dayton police officers Dairymple and Robin-

son filed no briefs on the preliminary injunction

question after the court concluded the hearing.

19. See, Tr. 243-246, 258.

By April 14, 1977, defendant Falke, pu-

suant to an agreement among the parties,"'

supplemented the record of the earlier hear-

ing by filing Exhibits 100-141." These ex-

hibits consist of photographs which were

not located in Cleveland at the time of the

hearing.

On May 14, 1977, the court served copies

of the plaintiff's complaint, a copy of the

transcript of the hearing on the preliminary

injunction, and copies of other portions of

the record upon the Chio Attorney General

with an invitation that he file an amicus

curiae brief in this case regarding the issues

currently pending before the court. On

May 19, 1977, the Ohio Attorney General

accepted the court’s invitation and filed an

amicus curiae brief, followed by a supple-

mental brief filed on June 16, 1977.

On June 21, 1977, defendant Falke filed a

motion to supplement the record of the

March 29-31, 1977 evidentiary hearing with

a certified copy of a Montgomery County

Grand Jury indictment, filed in the Mont-

gomery County Common Pleas Court on

May 3, 1977.% The court denies Prosecutor

Falke’s motion to reopen the record of the

March evidentiary hearing to include the

May indictment, because the document was

not in existence at the time of the March

hearing. However, the court will take judi-

cial notice that the Montgomery County

grand jury returned such an indictment on

May 3, 1977. See, Federal Rules of Evi-

dence 201, 902(4).

On July 29, 1977 Sovereign filed its post-

hearing reply brief in opposition to the an-

swer briefs previously filed by the defend-

ants, and in opposition to the Ohio Attorney

General’s amicus curiae briefs.

28. See; this court’s order dated April 14, 1977.

21. The motion which defendant Falke filed on

June 21, 1977 erroneously indicated that the

indictment was filed on “March 3, 1977.”

However, by a letter dated August 1, 1977,

defendant Falke acknowledges that the indict-

ment was actually returned by the Montgom-

ery County grand jury on May 3, 1977.

316

Il.

THIS COURT’S FACTUAL FINDINGS

A. THE CLEVELAND AND DAYTON

POLICE OBTAIN ACCESS TO

SOVEREIGN’S PREMISES.

During the April, 1976 term, the Hamil-

ton County Ohio Grand Jury indicted Sover-

eign for pandering obscenity within the jur-

isdiction of Hamilton County, Ohio, in viola-

tion of Ohio Revised Code §§ 2923.04 and

2907.32.

On November 1, 1976, the Montgomery

County Ohio law enforcement authorities

commenced an investigation of Sovereign

for pandering obscenity within the jurisdic-

tion of Montgomery County ™ in violation

of Ohio Revised Code §§ 2907.32, 2907.01

and 2923.04. The record shows that the

Montgomery County investigation was

sparked “as a result of complaints”™ re-

ceived by authorities in that jurisdiction.

Nothing in the record suggests that the

Montgomery County inquiry was related to

the Hamilton County prosecution. The

Montgomery County investigation focused

on the interrelation between twelve book

stores in the City of Dayton, Ohio, and the

stores’ supposed supplier, Sovereign, located

in Cleveland, Ohio.*

The Dayton police placed the twelve Day-

ton stores under surveillance, and observed

deliveries of boxes of magazines by vans

which they determined were rented by Sov-

ereign. Dayton Police Officer E. R. Robin-

son visited each of the twelve bookstores,

examined various magazines, and purchased

twelve which he submitted to a Dayton

Municipal Judge. According to Officer

See, Exhibit 1, p. A.

This is the affidavit which Robinson signed

before Judge Spellacy on February 1, 1977.

See, Exhibit 1. The earlier affidavit placed

448 FEDERAL SUPPLEMENT

Robinson’s affidavit,™ the purchased maga-

zines: }

“dealt almost exclusively with pictures

and portraits of nude males and females

engaging in various acts of sexual inter-

course, bestiality, sodomy, cunnilingus,

and acts of sexual perversion. The print-

ed matter was negligible and not rele-

vant.” 7

On December 19, 1976, the Municipal

Judge to whom the twelve magazines were

submitted issued search warrants authoriz-

ing the Dayton police to conduct a search of

the twelve Dayton bookstores. <A search

was conducted and materials were confis-

cated from each location.*

Officer Robinson also learned from sever-

al of the bookstore owners that they were

supplied from Sovereign’s Cleveland instal-

lation, that they personally knew Sover-

eign’s chief executive officer, Reuben Stur-

man, and that they dealt with him. One

bookstore operator advised Robinson that

other bookstore operations were subsidized

by Sovereign, and that “these others may

be on Sovereign News Company’s payroll ~

and/or Reuben Sturman’s payroll.” *

Based on the information unearthed dur-

ing this investigation, the Dayton police

contacted the Cleveland Police Department,

which itself had been conducting its own

continuing, intensive investigation of por-

nography in Cleveland, including Sover-

eign’s Cleveland operation. Captain Delau,

one of the two officers in charge of the

February 16, 1977 search of Sovereign’s

Cleveland premises, testified that the Cleve-

land police had Sovereign’s Cleveland build-

ing under surveillance and would “love to”

dedicate more time to that surveillance pro-

gram. Delau also testified that the Cleve-

before the Dayton Municipal Judge has not

been entered into the record of this case.

27. See, Exhibit 1, p. A-1.

28. See, Tr. 248; Exhibit 1, pp. A, A-1.

29. The record is unclear whether Robinson was

told this information before, during, or after the

execution of the search warrants in Dayton.

See, Exhibit 1, pp. A-1, A-2.

ee ae Ltr One a ee ——

Pilates si

SOVEREIGN NEWS CO. v. FALKE

317

Cite as 448 F.Supp. 306 (1977)

land police have followed Sovereign em-

ployees.*

On February 14, 1977, Dayton Police Ser-

geant Reynolds telephoned Cleveland Police

Lieutenant Vanyo, the supervisory officer

for the Cleveland Police Department’s In-

telligence Unit, and requested Vanyo’s as-

sistance in obtaining a warrant to search

Sovereign’s Cleveland installation. Van-

yo, who, along with another Cleveland po-

30. See, Tr. 217, 223-224. Sergeant Mcintosh

also testified regarding the Cleveland Police

eer ce investigation of Sovereign’s

Cleveland activities. The court finds the fol-

lowing testimony by Mcintosh to be particular-

ly credible.

“Q And are you presently employed by the

Cleveland Police Department?

“A Yes, sir.

“Q What is your job description or title?

“A I’m a Sergeant in the Cleveland Police

Department. I'm the officer in charge of the

“Q Is that known as the Smut Squad?

“A Yes, sir.

“Q For how long a period of time have held

that responsibility?

“A I’ve been in charge of the obscenity de-

tail since December of 1976.

“Q And during the course of your activity in

that connection, have you had occasion to

keep Sovereign News Company under sur-

veillance?

“A Yes, sir, I have.

“Q Can you tell me whether or not the po-

lice department obscenity unit, which is un-

der your direction and control, is presently

the activities of Sovereign

“A Yes, they are.

“Q And, as a matter of fact, the statutes

whose violations are presently under invest

gation are the Ohio statute involving pander-

“Q O.K. Asa matter of fact, you know that

the organized crime statute is a felony?

“A Yes, sir.” See, Tr. 57-59.

Mcintosh also gave testimony which this court

believes when he said:

“Q Sgt. Mcintosh, yesterday you were

asked about whether or not, in your role as

chief of the Smut Squad, you knew whether

or not Sovereign News Co. was under inves-

tigation by the Cleveland police, and you

answered in. the affirmative. Do you remem-

ber that testimony?

“A Yes.

lice officer, had entered Sovereign’s Cleve-

land building pursuant to a search warrant

on March 19, 1975,* furnished the Dayton

authorities with a description of the interior

and exterior of Sovereign’s Cleveland prem-

ises.3

On February 15, 1977 Cleveland Police

Lieutenant Vanyo and Cleveland Police

Captain Delau met in Cleveland with Day-

ton Police Officers Robinson and Dalrym-

“Q Well, as a matter of fact, the investiga

tion is current and ongoing, isn’t it?

“A That’s correct.

“Q And, as a matter of fact, it has involved

a stake out of the building, hasn’t it?

“A Yes, sir, we have done surveillance

there.

“Q There has been surveillance at the build-

ing itseif?

“A Yes.

“Q Employees have been followed?

“A Yes, sir.

“Q Contacts have been made with other

law enforcement agencies to get information

which other law enforcement agencies may

have with respect to Sovereign News Co. and .

its employees, isn’t that the case?

“A Yes.

“Q You have contacted public agencies

with respect to information on file, isn't that

correct, with respect to Sovereign and its

employees?

“A That’s correct.

“Q And the investigation with respect to

possible prosecution under the Ohio pander-

ing obscenity law and the organized crime

Statute is presently ongoing and continuing,

isn’t that correct?

“A That’s correct.

ond When you have investigations of this

kind, Sergeant, your purpose is always to

gather evidence so that a prosecution can be

sustained, isn’t that correct, as a matter of

police procedure?

“A Yes, sir. Any law violation that is in-

vestigated by the police department is to de-

termine whether or not in fact there is a law

violation and present that material for—

“Q And the investigation that you have just

identified as being continuing and ongoing is

not just a matter of personal curiosity, it’s a

matter of official police action designed to

ultimately culminate in prosecution, isn’t that

correct?

“A Yes, sir, if law violations are found.”

See, Tr. 90-93 (emphasis added).

31. See, Tr. 182.

32. See, Tr. 177-178, 203; Exhibit 98.

33. See, Tr. 183.

318 448 FEDERAL SUPPLEMENT

ple. Officer Vanyo took the two Dayton

policemen to the office of John T. Corrigan,

the Cuyahoga County Prosecuting Attor-

ney, in order to obtain a search warrant for

Sovereign’s Cleveland building.

The two Dayton police officers, Robinson

and Dalrymple, armed with unexecuted

copies of the affidavit ® prepared under the

Cuyahoga County Prosecutor’s supervision,

along with Prosecutor Corrigan personally,

and at least one Cleveland police officer,

appeared before Cuyahoga County Common

Pleas Judge Leo M. Spellacy in the after-

noon of February 15, 1977. After the law

enforcement authorities explained the pur-

pose of the search warrant, Officer Robin-

son executed the affidavit in Judge Spella-

cy’s presence, and the judge then issued the

search warrant based solely on the informa-

tion in the affidavit.* The search warrant,

which authorized both the Cleveland Police

Department and Dayton Police Officer Rob-

inson to search Sovereign’s Cleveland of-

fices and warehouse, stated:

“TO: CHIEF OF POLICE OF THE

CLEVELAND POLICE DEPART-

MENT and/or members of said De-

partment

E. R. ROBINSON, a member of the

DAYTON, OHIO POLICE DE-

PARTMENT

“Whereas there has been filed with me

an affidavit consisting of four pages, a

copy of which is attached hereto, desig-

34. See, Tr. 63-64, 180-181, 216, 248.

When was that?

nated as Exhibits A, A-1, A-2 and A-3,

and incorporated herein as though fully

rewritten, wherein the affiant avers that

he believes and has good cause to believe

that on the premises located at 2075 East

65th Street, Cleveland, Ohio, the same

being a two story.red brick building, lo-

cated in a commercial area, which is a

warehouse and general office building

‘containing the Sovereign News Company

and/or offices of Reuben Sturman, of

which the second floor is devoted to gen-

eral offices and the ground level and

basement level are devoted to warehous-

ing, there is now being unlawfully kept

concealed and possessed evidence of pan-

dering of obscenity and the violations of

the Ohio organized crime statute, particu-

larly any copies of the following maga-

zines: [a list of thirteen magazines with

sexually explicit titles was contained in

this portion of the search warrant], in-

voices and bills of lading dealing with the

shipment of magazines to the following

stores located in Dayton, Ohio: Gaiety

Book Store, Adult Book Store, Eros Book

Store, Cinema X Book Store, Today’s

Book Store, Adult Books, Art Movies,

Adult Book Store, Exotic Book Store,

Discount Book Store, Rexic Book Store

and Bonnett’s Book Store from Novem-

ber 1st, 1976 and thereafter, payroll rec-

ords as well as orders and other commu-

nications and other evidence of relation-

ship between Reuben Sturman, the Sov-

SOVEREIGN NEWS CO. v. FALKE 319

Cite as 448 F.Supp. 306 (1977)

ereign News Company and the aforemen-

tioned book stores.

“I am satisfied that there is probable

cause to believe that the property de-

scribed is being concealed on the premises

above described and that probable cause

for issuance of this search warrant exists.

“You are hereby commanded, in the

name of the State of Ohio, with the nec-

essary and proper assistance, to serve this

warrant and search forthwith the premis-

es named for the property specified, mak-

ing search in the day season, and if the

property or any part thereof be found

there, you. are commanded to seize it,

leaving a copy of this warrant and a

receipt for the proper [sic ] taken, prepare

a written inventory of the property seized

and return this warrant and bring the

property taken on such search forthwith

before me, or some other judge or magis-

trate of the county having cognizance

thereof, to be disposed of and dealt with

according to law. Said search is to be

made. within three days of the date here-

of.

“Given under my hand this 15th day of

February, 1977.” *

On the morning of February 16, 1977, at

9:00 a. m.,™ the Cleveland Police, along

with the two Dayton police, met to discuss

strategy for the execution of the search

warrant. signed by Judge Spellacy. Cleve-

land Police Lieutenant Vanyo and Cleve-

37. See, Exhibit 2. The affidavit executed by

Officer Robinson explicitly states:

“Affiant requests that a search warrant be

issued to search for the aforesaid evidence of

pandering obscenity and Ohio organized

crime statute law violations and that the

search warrant be issued to be executed in

the day season in company with the Cleve-

land Police Department.” See, Exhibit 1, pp.

A-2, A-3 (emphasis added).

Thus Judge Spellacy knew, at the time the

affidavit was executed, and.the search warrant

issued, that the Cleveland and Dayton police

would be searching for evidence of the felony

of conducting an illegal business of pandering

obscenity

38. See, Tr. 70.

39. See, Tr. 180.

4@. The court concludes from the testimony that

at least thirty Cleveland policemen participated

land Police Captain Delau were in charge if

the search® and briefed approximately

thirty Cleveland policemen“ before the

raid. Captain Delau described the materi-

als which were to be seized and stated the

officers must avoid seizing materials not

described in the warrant.“ Copies of the

search warrant and copies of the covers of

the magazines named in the search war-

rant, were distributed to the thirty Cleve-

land policemen selected to conduct the

search.@ Despite the lack of authorization

in the search warrant for the employment

of photographic recording devices or video

and audio tape recordings, officers from

Lieutenant Vanyo’s unit employed such

equipment during the search. Sergeant

Richard McIntosh of the Cleveland Police

Department’s “Smut Squad” ® testified,

“Q My question is with respect to the

recording materials, Sergeant, what

instructions were given as to what

they were to record with those cam-

eras and tape recorders?

“A I don’t remember the specific in-

structions. I believe the general in-

structions were that any information

that can be obtained and used be-

cause of the search warrant should

be taken down.

“Q And they were left to their own

devices as to determine what should

be taken by recorder and what

in the February 16, 1977 raid on Sovereign’s

Cleveland building. See, Tr. 70, 84, 179, 203,

°218; Exhibits 50, 51. The court disbelieves

Sergeant Mcintosh’s suggestion that, “during

the entire proceedings,” there were only “12 to

14” officers inside the premises. Tr. 64.

41. See; Tr. 72, wherein Sergeant Mcintosh

no materials were to be seized or :aken which

did not—were not listed in the search war-

rant.” However, if such an instruction was

furnished to the search participants, they did

not adhere to it. See, Part Il B of this court’s

Memorandum of Opinion, infra.

42. See, Tr. 70.

43. See, Tr. 57.

should be taken by camera or video

tape equipment, is that right?

“A Within the scope of the instructions

to limit themselves to material that

they were searching for.

“Q And there is no question but that

those who were in charge of the

search were aware of all of these

recording devices on the persons of |

the officers involved in the raid be-

fore the time for the raid began?

“A I’m sure that they were, yes, sir.

“Q The cameras and tape recording

equipment was not surreptitiously

sneaked onto the premises?

“A No, sir

“Q It was with the full acceptance and

understanding of those in charge of

the police detail, isn’t that correct?

“A That’s correct.”

Cleveland Police Detective Berkey “ carried

a still shot camera and a audio tape record-

er onto Sovereign’s premises. He testified

that Cleveland Police Officer Millett carried

a video tape recorder, which also recorded

sound. Both Millett and Berkey employed

their equipment to “record and preserve

evidence of the scene,” and “documents” for

“identification purposes.” In addition to

the photographic and recording devices em-

ployed by Cleveland Police Officers Berkey

and Millett, Dayton Police Officer Dalrym-

ple carried a camera onto Sovereign’s prem-

ises, and Lieutenant Vanyo observed Dal-

rymple photographing items during the

search.“

44. See, Tr. 77-78.

45. See, Tr. 129-130. See also, Exhibits 18

(photo of Cleveland Officer Millett with video

still shot camera inside Sovereign's building),

20 (photo of Dayton Officer Dalrymple using a

still shot camera inside Sovereign's building).

46. See, Tr. 194, 210-211.

47. See, Tr. 65.

48. See, Tr. 157; Exhibits 50, 51, 63, 64, 65, 125,

126. The video tape, Exhibit 95, contains a

visual and audio record of the events which

448 FEDERAL SUPPLEMENT

After Delau and Vanyo completed their

briefing, the thirty Cleveland police offi-

cers, along with Dayton officers, traveled in

ten vehicles * to Sovereign’s Cleveland of-

fices and warehouse. Upon arriving, Ser-

geant McIntosh spoke into the intercom on

the wall adjacent to the locked exterior

door of the building, and announced his

presence and the presence of the Cleveland

Police Department. He stated that the po-

lice were there pursuant to a search war-

rant After the elapse of three or four

minutes, and because the exterior door was

not opened from the inside, the Cleveland

police broke the door with a battering

ram.” The first group of police entered the

building and ascended a flight of stairs to a

landing on the second floor where they

found a second door which was locked.”

The officers again announced that they

were there to search the premises pursuant

to a search warrant. After the elapse of

sixty seconds and because the second door

was not opened, the police broke down the

door with the battering ram, and entered

Sovereign’s main offices.™

Upon entering, approximately thirty

Cleveland police officers ® and two Dayton

police officers fanned throughout the prem-

ises and spent the next four hours searching

the office, including “every single box” of

magazines and books ® in Sovereign’s ware-

house for evidence of pandering obscenity,

Revised Code § 2907.32 and organized crime

offenses, Revised Code § 2923.04." By the

time the search was under way, counsel for

occurred at the front outside door to Sover-

eign’s installation.

48. - See, Tr. 66-68.

5@. See, Tr. 68.

51. See, Tr. 68-69; Exhibits 21, 23, 24, 25, 26,

27, 45, 104, 107, 131.

52. See, fn. 40, supra.

53. See, Tr. 80, 131, 202.

54. See, Exhibits 22, 33, 40, 41, 42, 43, 44, 45,

62, 105, 106, 107, 108, 109, 110, 118, 120, 122,

123, 124, 125, 127, 128.

oY SAE

tal i NAN SO Nh

Aa aril A ahha AACR. a aS cate tt

SOVEREIGN NEWS CO. v. FALKE

321

Cite as 448 F.Supp. 308 (1977)

Sovereign, Mr. Larry Gordon,™ arrived on

the premises. Mr. Gordon carried an audio

tape recorder and was accompanied by a

photographer hired by Sovereign.* De-

spite requests from the police officers, none

of Sovereign’s representatives furnished

keys to locked cabinets and desks on the

premises, and therefore many desks and

other enclosures were forced open with

crowbars.”

B. THE MATERIALS SEIZED TO SUP-

PORT CLEVELAND’S INVESTIGA-

TION OF SOVEREIGN

Common Pleas Judge Spellacy’s search

warrant confined the permissible scope of

the search to twelve books, copies of which

had been purchased and adjudicated ob-

scene in Montgomery County, invoices and

bills of lading dealing with the shipment of

magazines to twelve named bookstores in

Dayton, Ohio from November 1, 1976 for-

ward, and payroil records, orders, and other

communications and other evidence of a

relationship between the twelve Dayton

bookstores and Sovereign and Reuben Stur-

man.™ Thus the scope of the search was

restricted to seeking evidence of a commer-

cial link between Sovereign’s Cleveland op-

eration and the sale of twelve specific items

35. Mr. Gordon, who was seated at Sovereign’s

trial table during the hearing on the motion for

a preliminary injunction and deciaratory judg-

ment, is depicted in the photographic exhibits

wearing a gray pinstripe suit. See, Exhibits 36,

42, 47, 58.

536. See, Exhibits 42, 45, 48, and Tr. 160-161,

260-268. Despite the testimony by Cleveland

Policeman Vanyo that “No one was asked to

leave the premises” Tr. 200, the record, specifi-

cally Exhibit 96, the audio tape made by Cleve-

land Policeman Berkey, conclusively shows

that Officer Berkey ordered Sovereign’s woman

photographer to give him her name so that he

could subpoena her photographs. When she

refused he ordered her to leave the premises,

threatened to arrest her for not leaving, and

further, attempted to deny her access to Sover-

Tr. 260-267. Berkey’s tape is reproduced in

the transcript. See particularily Tr. 265-266:

“DET. BERKEY: But if you have no name

and no business here, you'll have to leave the

premises. Now, which is it? Do you want to

continue taking photographs? Then give me

in twelve separate locations in Dayton,

Ohio.

However, the items actually seized under

the shield of Judge Spellacy’s warrant re-

veal that the thirty Cleveland police offi-

cers who implemented it greatly exceeded

its scope by seizing material that was unre-

lated to the operation of an illegal business

of pandering obscenity in Dayton, Ohio.

The abundance of evidence which exceeded

the Montgomery County orientation of the

search warrant, but was nevertheless

seized, impels this court to conclude that

the thirty Cleveland police officers who par-

ticipated in the February 16, 1977 raid on

Sovereign’s premises employed the Dayton

investigation as an excuse to gather evi-

dence in support of the Cleveland authori-

ties’ own ongoing investigation of Sover-

eign’s operations including whether it was

engaged in violations of the pandering ob-

scenity and organized crime statutes in

Cleveland and Cuyahoga County.

The record demonstrates repeated in-

stances in which the Cleveland police seized

material that was both beyond the autho-

rization of the search warrant and unrelat-

ed. to Sovereign’s alleged Dayton opera~

tions.*

your name and who you work for. If you do

not work here or belong here, please leave.

Do you hear that? Do you understand what I

said?

“FEMALE VOICE: I'd like to consult the

[Attorney Gordon] | came with.

“DET. BERKEY: No, you just leave: If

you have no business here, you leave. If you

have business here, I'd like your name and

address and who you work for. All right.

You can leave or you can teil me: Which is

it? You're at the front door, you want to

leave or do you want to stay?

“FEMALE VOICE: /! would like to consult

the lawyer I came here with.” (emphasis

added).

S7. See, Tr. 82-85, 134, 166, 185, 197-198, 225~-

226; Exhibit 28 (photo of Cleveland policeman

applying a crowbar to a desk).

38. See, Exhibit 2, p. 1, and text accor2panying

fn. 37, supra.

39. The court in Part I1(B) of this Memorandum

of Opinion does not examine whether seizures

were made beyond t'e scope of the search

329 448 FEDERAL SUPPLEMENT

Exhibits 30 and 31 are photographs of a

letter discovered in Sovereign’s files, ad-

dressed to the attention of Marjorie Rollins

at Sovereign News, and written on the le-

gal stationary of Sovereign’s legal counsel

in this case, the law firm of Berkman, Gor-

don, Kancelbaum and Levy. The letter,

and the file to which it was clipped at the

time the photograph was taken, pertains to

& written statement from the law office of

John T. McCall regarding the arrest of an

individual in Cincinnati and Louisville

The record contains no evidence that the

information on this photographed letter

from an attorney’s office to a client has any

relationship to the magazines, the “invoices

and bills of lading dealing with the ship-

ment of magazines,” or the “payroll records

as well as orders and other communications

and other evidence of relationship between

Reuben Sturman, the Sovereign News Com-

pany and the Dayton bookstores” named in

Judge Spellacy’s search warrant." Fur-

thermore, the information gleaned from

this photographed attorney-client letter

warrant for purposes of determining the validi-

ty of Sovereign’s Fourth Amendment claims.

The court’s concern is now focused on whether

‘ileal

“lite

E it

HIBS

Tr. 131, 140-144, 187-188.

makes no reference to any activity in Mont-

gomery County, Ohio.

Exhibits 88 and 132 are photographs of a

two photographs have no bearing either on

the materials described in the search war-

rant or on the investigation of Sovereign’s

supposed Dayton involvements. However,

the seizure and notation of the serial num-

ber on the weapon are useful to the Cleve-

land authorities in their “continuing” inves-

tigation of Sovereign’s activities because

they furnish an additional item of informa-

tion by which the police could trace those

persons having contacts with people in Sov-

ereign’s Cleveland headquarters.

€2. See, Tr. 106, 131-133, 244.

€3. See, Miller v. California, 413 U.S. 15, 24-26,

93 S.Ct. 2607, 37 L.Ed2d 419 (1973).

64. See, Tr. 86, where Cleveland Policeman

Mcintosh testified:

“Q Sgt. Mcintosh, can you tell me what

happened to all of the material seized during

that raid on February 16th?

“A 1 believe all the material, with the ex-

ception of a revolver and a holster were tak-

en by the Dayton police officers.

“Q Taken directly to Dayton, is that

“A 1 suppose they did. I don’t know.”

makes no mention of the seizure of those items.

The court concludes that the two items are

currently in the custody of the Cleveland po-

lice.

65. The serial number on the weapon could be

SOVEREIGN NEWS CO. v. FALKE 323

Cite as 448 F.Supp. 306 (1977)

Exhibit 79-A ® is a memorandum, dated

March 25, 1976, from Reuben Sturman to

all Sovereign employees exhorting them to

actively oppose “Senate Bill 1,” which had

been introduced in the United States Sen-

ate earlier that year. A four page newslet-

ter published by the Cleveland branch of

the American Civil Liberties Union, charac-

terizing that legislation as the “most dire

threat to civil liberties since McCarthy,”

and “an attempted repeal of much of the

Bill of Rights” ® is attached to Sturman’s

note.

The seized ACLU material attacks specif-

ic portions of S—1, but does not deal explic-

itly with obscenity. At worst, Exhibit

79-A consists of an innocent, written politi-

cal diatribe, i. e., pure political speech, and

is therefore an example of the form of

expression to which the First Amendment

of the United States Constitution extends

the greatest measure of protection from

governmental interference. Despite the

highly protected character of the pure polit-

ical speech material contained in Exhibit

79-A the Cleveland police officers who con-

ducted the February 16, 1977 search seized

that document as evidence that Sovereign

engaged in the organized crime activity of

pandering obscenity. Exhibit 79-A con-

tains no references to Montgomery County,

Ohio. The seizure of such pure political

expression was beyond the scope of Com-

mon Pleas Judge Spellacy’s search warrant,

and cannot be justified or tolerated on the

speculative theory that Exhibit 79-A re-

lates to any obscenity investigation in

Montgomery County. The only purpose for

seizing tis political material is to identify

the political views and affiliations of Sover-

eign and its chief executive officer, Stur-

66. See, Tr. 103, 242. Exhibit 79~A is located

inside the envelope marked Exhibit 79.

67. See, Exhibit. 79-A, p. 1 of the ACLU news-

letter.

68. See, this court’s decision in McNea et al v.

Garey et al, 434 F.Supp. 95, 105-112 (N.D.

Ohio, 1976) (Manos, J.); Kucinich et ail. v.

Forbes et ai., 432 F.Supp. 1101, 1110 (“The

right to freedom of speech is the cornerstone of

the American system of government”) (N.D.

Ohio, 1977) (Manos, J.).

man, for future reference in connection

with the Cleveland Police Department’s

continuing investigation of Sovereign’s and

Sturman’s Cleveland operation.

Exhibit 71 consists of a printed, eleven-

page mailing list of locations throughout

Ohio. It was discovered in Sturman’s of-

fice. The eleven separate pages are con-

nected by only one staple at the top of each

page. A notation on the outside of the

envelope containing Exhibit 71 indicates

that the eleven documents contain residen-

tial and store addresses in the Dayton area.

However, only five of the eleven documents

seized show addresses within the jurisdic-

tion of Montgomery County. The first two

pages of Exhibit 71 show addresses located

only in the Columbus, Ohio, metropolitan

area; the third and fourth sheets show

addresses located only in the Cleveland,

Ohio, metropolitan area; sheets five and six

contain addresses primarily situated only in

Cleveland, Akron and Canton, Ohio™; and

the rest of the documents each contain at

least one reference to a Montgomery Coun-

ty address.” The documents seized in Ex-

hibit 71 exceed the scope of the search

warrant to the extent that six readily sev-

erable records dealing with locations unre-

lated to Montgomery County were seized

along with a few records containing ad-

dresses located within Montgomery Coun-

ty’s jurisdiction. The seizure of documents

with addresses outside Montgomery Coun-

ty, and especially the seizure of the docu-

ments with Cleveland addresses, reveals the

thirty Cleveland police officers focused at-

tention on possible violations of the Ohio’s

pandering obscenity and organized crime

statutes in the Cleveland area, and in the

@. See, Exhibit 3, No. 11.

70. The sixth page of Exhibit 71 contains one

addréss located in Columbus, Ohio.

71. None of the Montgomery County locations

depicted on Exhibit 71 are addresses of book-

stores contained in the search warrant. All of

the Montgomery County addresses appear to

be solely residential locations, which may be

beyond the restrictions in Judge Spellacy's

search warrant.

areas of the state other than Montgomery

County.

Exhibit 86-A consists of an alphabetical

not only to Sovereign’s commercial activi-

ties in the Dayton area, but also its activi-

ties in other states, and other Ohio cities,

including its commercial relations with

bookstores situated in Cleveland. The

seized Cleveland address labels are un-

doubtedly a great asset to the Cleveland

Police Department’s own continuing inves-

tigation of Sovereign. However, Judge

Spellacy’s search warrant did not authorize

seizures of information unrelated to Sover-

eign’s alleged Dayton activity. The seizure

of that information by Cleveland policemen,

despite the lack of search warrant autho-

rization for seizures pertaining to Sover-

eign’s solely Cleveland oriented transac-

tions, indicates that the thirty Cleveland

police officers who implemented the search

warrant were seeking evidence to support

their own investigation of Sovereign as well

as evidence helpful to Robinson’s and Dal-

rymple’s Dayton investigation.”

Exhibit 89, is a three-ring, loose-leaf note-

book labeled “General News Gallery” con-

taining nine separate,“ enumerated docu-

ments of typed information regarding the

distribution volume of the magazines Hus-

tler, Chic, and Best of Hustler, to various

72. By “severability” the court means that each

document was readily detachable, in a fashion

which would leave the documents which were

beyond the scope of the search warrant and

unrelated to Sovereign's activities in Dayton

undisturbed.

73. Several other photographic exhibits appear,

on their face, to be outside the warrant and

unrelated to Sovereign's alleged Dayton con-

nections. See, e g., Exhibits 129, 139, 141.

448 FEDERAL SUPPLEMENT

drugstores, delicatessens, and cigar stores

across Ohio. The first four documents

among these business records seized from

Sovereign contain no references to stores

located in Montgomery County. The four

business records delineate distribution pat-

terns of the three magazines to thirty-two

different locations in the Cleveland metro-

politan area. Documents six through nine

establish distribution channels for the three

magazines to states outside Ohio,” and oth-

er locations throughout Ohio, but outside

Montgomery County, including seventeen

separate stores in the greater Cleveland

area. Of the nine separately numbered

business documents contained in Exhibit 89,

evidence of a commercial distribution chan-

nel from Sovereign to locations within the

jurisdiction of Montgomery County appears

only on the fifth document.”

Severa] additional separate handwritten

documents are clipped to the back inside

cover of the notebook marked Exhibit 89.

Among these seized documents are three

sheets of white paper containing store

names and a few commercial addresses,

none of which are located in Montgomery

County, a handwritten invoice indicating

the February 2, 1977 sale of fifty copies of

the March edition of Hustler magazine to

the Zodiac Bookstore East in Columbus,

Ohio, and five sheets of yellow legal size

paper containing the same information as

the nine typed documents found in the note-

book.

The seizure of the notebook, marked Ex-

hibit 89, with all of its severable documen-

tary contents, resulted in the Cleveland and

Dayton authorities obtaining voluminous in-

formation describing Sovereign’s commer-

cia] distribution patterns for three maga-

74. See, fn. 72, supra.

75. Exhibit 89 also shows transactions involving

Sovereign's locations in Indiana, Texas, lowa,

and New York. The transactions depicted on

Exhibit 89 deal exclusively with the three mag-

azines: Hustler, Chic, and Best of Hustler.

76. The four Dayton locations named in Exhibit

89 are also named in Judge Spellacy’s search

warrant.

SOVEREIGN NEWS CO. v. FALKE 395

Cite as 448 F.Supp. 306 (1977)

zines throughout the State of Ohio and into

four other states. None of this was covered

by the Common Pleas Judge’s search war-

rant.” The seizure of all the documents in

the notebook furnished evidence to the

Cleveland authorities of commercial trans-

actions with forty-nine separate retail out-

lets within the Cleveland area, despite the

search warrant instructions limiting the sei-

zure of records to those relating to commer-

cial activity in Montgomery County. Docu-

ment number five is the only record in

Exhibit 89 which relates to business activi-

ties in Montgomery County, because it dem-

onstrates connections with four bookstores

in Dayton. However, the Cleveland Police

Department’s seizure of eight separate doc-

uments, showing forty-nine commercial

connections with stores in the Cleveland

area, illustrates how the search warrant

was used as a vehicle for furthering Cleve-

land’s own continuing investigation of Sov-

ereign for violations of the Ohio organized

crime arid pandering obscenity laws within

the Cleveland area.

Exhibit 90 is a three-ring loose-leaf note-

book labeled “A/R Invoice # Listing,” con-

taining 105 separate ™ documents of hand-

written data depicting Sovereign’s accounts

receivable (i. e., “A/R”) invoice numbers,

the name of the retail customers for each

invoice, the city in which the customer

maintains its retail business, the amount of

each invoice, and a date. Of the one-hun-

dred-five separate loose-leaf documents

contained in Exhibit 90, sixty-eight docu-

ments contain no entries involving commer-

cial transactions between Sovereign and

persons or businesses situated within the

jurisdiction of Montgomery County, Ohio,

77. Compare, Exhibit 2 and text accompanying

fn. 37

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