# Petition — Warner v. Sovereign News Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2022%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 447 U.S. 923 ## Text 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 ii 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 iv 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) 48 25 37 35 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 vi 13 18 13, 34 2,13,34 35 38 25, 26 23 25 28 41, 48 25,30,35 48 10 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) 30 38 23 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 39 48 26, 28,30 10 24 28 25 35 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) ix 6,41,45 48 23 35,41,48 25 40, 48 40, 48 19 30 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- ED 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 ee 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 a 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, 10 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. 11 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 12 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 13 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 14 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 15 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 16 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 17 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 18 ? \ 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- 19 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 20 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- 21 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 22 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 23 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). 24 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 25 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- 27 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 28 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. 29 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. 30 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, 31 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 32 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 33 34 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. 35 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. 36 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 37 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 38 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 39 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 40 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 41 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 42 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] 43 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 44 = 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, 45 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 46 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, 47 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- 48 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 Sl 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 52 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 53 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, v. 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) 2 SOVEREIGN NEWS CO., Plaintiff, v. 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 re 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 ee 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. 1. 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. L 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. I. 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- in 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 te Ae 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2022%3A1. Public record. Not legal advice.