Petition — Mowder v. Illinois ex rel. Roberts

Office - -upreme Court, US. |

82 -1245 FILED

JAN 18 1983

No.

ALEXANDER L. STEVAS,

— CLERk——

In The

SUPREME COURT OF THE UNITED STATES

TERM, A.D., 1983

RANDY MOWDER and ADULT WORLD,

Petitioners

vs.

PEOPLE EX REL J. WILLIAM ROBERTS,

STATE'S ATTORNEY, SANGAMON COUNTY,

ILLINOIS,

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES SUPREME COURT

STUART T. BENCH

Counsel for Petitioners

431 E. Hanna Avenue

Indianapolis, IN 46227

(317) 786-0487

State's Attorney's Office

JAMES A. GROHNE

Counsel of Record for Respondents

Sangamon County

Room 404, Sangamon County Bldg.

Springfield, Illinois 62701

QUESTIONS PRESENTED

1. Did the Supreme Court of I1lli-

nois err in denying the Application

for Stay when it failed to provide

strict procedural safeguards to

insure federally guaranteed consti-

tutional rights?

2. Does the denial of the Stay

by the Illinois Supreme Court deny

the fundamental rights of peti-

tioners during the pendency of the

appeal; are the petitioners’ rights

to appeal effectively denied by the

continuation of the injunction

during the pendency of said appeal?

INDEX

Page

Opinions Below . «3. s« « « « «ee i

UC SGRMPCEOR 6s wk woe wee en ek

Questions Presented ...... 3

Statutes Involved ......+«.+ 4

BESeement GCL CASE .\) 6... se ce ec 12

Reasons for Granting Writ... 22

PAO AUOLOR sw oaew. oe 88 ee 6 SF

Appendix A: Contents of the

Supreme Court Ruling on

Petitioners’ Motion for

Stay and Direct Expedited

NE ee Re at OO werk ecse, ye. 0

Appendix B: Order and Judgment

of the Appellate Court on

Motion’ for Stay .. «2s 2 « -«

Appendix C: Judgment Order of

the Circuit Court for the

Seventh Judicial Circuit of

I Be! sa aie 516 hee

Appendix D: Request for Direct

Expedited Appeal to the Illinois

Supreme Court ...-.«-+-+e.

la

lb

le

1d

TABLE OF CASES

Page

Cohen v. Beneficial Loan Corp.

337 U.S. 541, 93 L.Ed. 1528, 69

S.Ct. 1221 (1949) 3

Cotner v. Henry, 394 F.2d 873, 875

(7th Cir. 1968) Cert. Den. 393

U.S. 847, 89 S.Ct. 132, 21 t%.Ed.2d

118 32

Dunn v. Blumstein, 405 U.S. 330,

92 S.Ct. 995, 31 1.Ed.2d 274

(1972) 24

Eisenstadt v. Baird, 405 U.S.

j L.Ed, 7; Se Oe.

1029 (1972) 33,

44

Griswold v. Connecticut, 381

U.S. 479, 85 S.Ct. 1678, 14 L.

Ed.2d 510 (1965) 27, 28

29, 31

32 33

44

Loving v. Virginia, 388 U.S. 1,

87 S.Ct. 1817, 18 L.Ed.2d

1010 (1967) 31

NAACP v. Alabama, 357 U.S. 449,

78 §.Ct. 1163, +3 L.Ed. 2d 1388,

ee (1958) 30

ii

A Re ead Bt a

ua Mein 4

National Socialist Party of

America v. Village of Skokie

432 U.S. 43, 53 L.Ed.2d 96,

97 S.Ct. 2205 (1977)

New York State Ice Co. v.

Liebmann, 285 U.S. 262, 52

S.Ct. 371, 76 L.Ed. 747 (1932)

Roe v. Wade, 410 U.S. 113, 93

S.Ct. 705, 35 L.Ed.2a 147 (1973)

Schad v. Borough of Mt.

Ephraim, 452 U.S. 61, 68

L.Ed.2d 671, 101 S.Ct.

2176 (1981)

Stanley v. Georgia, 394 U.S.

557, or) SiGe. ios. 22 L.Ed.2d

542 (1969)

State v. Pilcher, (Sup. Ct.

Iowa), 1976) 242 N.W.2d 348

Terry v. Ohio, 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889

(1968)

iii

35,

30

25,

27,

34,

42

TABLE OF STATUTES

Illinois Revised

Chapter 100%, §1

Illinois Revised

Chapter 100%, §2

Illinois Revised

Chapter 100%, §5

Illinois Annoted

Paragraph 301 (Supreme Court

Rule 301)

Illinois Annotated Statute

§110A, Paragraph 305 (Supreme

Court Rule 305)

a

Page

Statute

4

Statute 5, 24

15, 16

Statute

6

Statute §110A

8

9, 20

iv

TABLE OF AUTHORITIES

Constitution of Illinois,

Article I, Section 12

United States Constitution,

Amendment 1

United States Constitution,

Amendment 14

United States Constitution,

Amendment 4

United States Constitution,

Amendment 9

American Law Institute, Penal

Code

21,

25,

27

31,

18,

20,

25,

43

43

In The

SUPREME COURT OF THE UNITED STATES

TERM, A.D., 1983

No.

RANDY MOWDER and ADULT WORLD,

Petitioners

vs.

PEOPLE EX REL J. WILLIAM ROBERTS,

STATE'S ATTORNEY, SANGAMON COUNTY,

ILLINOIS,

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES SUPREME COURT

vee ae ee fo ee eee | ae

To the Honorable, Chief Justice and

Associate Justices of the Supreme Court

of the United States:

Randy Mowder and Adult World, the

petitioners herein, pray that a Writ of

Certiorari issue to review the judgment

of the Supreme Court of the State of

Illinois entered in the above-entitled

case on the 21st day of December, 1982.

OPINIONS BELOW

The opinion of the Supreme Court

of the State of Illinois is unreported

and is printed in Appendix A hereto,

infra, page la. The judgment of the

Court of Appeals of the State of Illi-

nois is unreported, and is printed in

Appendix B hereto, infra, page Bl. The

Entry of Judgment of the Circuit Court

of the 7th Judicial Circuit of Illinois,

-l-

Be se

ih

Sangamon County, is printed in Appendix

C hereto, infra, page Cl.

JURISDICTION

The judgment of the Appellate Court

of the State of Illinois, 4th District

(Appendix B, infra, page Bl) was entered

on the 7th day of December, 1982. A

timely petition for stay with the I1lli-

nois Supreme Court, pursuant to the pro-

visions of Illinois Suprewe Court Rule

305 was filed with the Supreme Court of

Illinois on the 7th day of December,

1982; and, thereafter, a request for

direct expedited appeal to the Supreme

Court (Appendix D, infra, page Dl) was

filed with the Supreme Court of Illinois

on the 8th day of December, 1982. The

Supreme Court of Illinois entered judg-

judgment on the motion for stay, and

aQ~

request for direct expedited appeal to

the Supreme Court on the 21st day of

December, 1982 (Appendix A, infra, page

Al). The jurisdiction of the Supreme

Court is invoked under 28 U.S.C. §1257

(3). The denial of the motion for stay,

and motion for expedited direct appeal

is a final judgment under the court's

rulings in National Socialist Party of

America vs. Village of Skokie, 432 U.S.

43, 53 L.Ed.2d 96, 97 S.Ct. 2205 (1977);

Cohen v. Beneficial Loan Corp., 337

U.S. 541, 93 L.Ed. 1528, 69 S.Ct. 1221

(1949).

QUESTIONS PRESENTED

1. Did the Supreme Court of I1lli-

nois err in denying the Application

for Stay when it failed to provide

strict procedural safeguards to insure

=3-

fe,

federally guaranteed constitutional

rights?

2. Does the denial of the Stay

by the Illinois Supreme Court deny the

fundamental rights of petitioners during

the pendency of the appeal; are the

petitioners’ rights to appeal effectively

denied by the continuation of the injunc-

tion during the pendency of said appeal?

STATUTES INVOLVED

Illinois Revised Statute Chapter

100%:

1. House of assignation or

prostitution-public nuisance

§ 1. That all buildings and

apartments, and all places and

the fixtures and movable contents

thereof, used for purposes of

lewdness, assignation, or pros-

titution, are hereby declared to

be public nuisances, and may be

abated as hereinafter provided.

The owners, agents, and occupants

of any such building or apart-

ment, or of any such place shall be

deemed guilty of maintaining a

public nuisance, and may be

-4-

tien.) ei eRe ae eh

enjoined as hereinafter provided.

2. Injunction to abate-Temporary

writ-Notice lessee party defendant

§ 2. The State's Attorney or any

citizen of the county in which such

a nuisance exists, may maintain

a complaint, in the name of

the People of the State of

Illinois, perpetually to enjoin

all persons from maintaining

or permitting such nuisance,

and to abate the same, and

to enjoin the use of such

building or apartment, or such

place for any purpose, for

a period of one year. Upon

the filing of a verified peti-

tion therefor, in the circuit

court, the court, if satisfied

that the nuisance complained of

exists, shall allow a temporary

writ of injunction, with bond

unless the petition is filed

by the State's Attorney, in such

amount as the court may deter-

mine, enjoining the defendant

from maintaining any such

nuisance within the jurisdiction

of the court issuing such writ.

No such injunction may issue,

however, except on behalf of

an owner or agent, unless it is

made to appear to the satis-

faction of the court that

(1) the owner or agent of such

-5-

building or apartment or of

such place, knew or had been

personally served with a notice

signed by the petitioner;

(2) such notice has been served

upon such owner or such agent of

such building or apartment or

place at least 5 days prior

thereto; (3) such building or

apartment or such place, speci-

fically describing the same,

was being so used, naming the

date or dates of its being so

used; and (4) such owner or

agent had failed to abate

such nuisance, or that upon

diligent inquiry such owner

or agent could not be found

within the United States for

the service of such preliminary

notice. The lessee, if any,

of the building or apartment,

or of the place shall be made

a party defendant to such peti-

tion.

Amended by P.A. 79-1366, § 1,

eff. Oct. 1, 1976.

5. Judgment of court-Sale of

property~-Fees, etc.

§ 5. If the existence of the

nuisance is established, the

court shall enter a judgment

perpetually restraining all

persons from maintaining or

a

y. ah f, .

ha Sp Ae

permitting such nuisance, and

from using the building or

apartment, or the place in

which the same is maintained

for any purpose for a period of

one year thereafter, unless such

judgment is sooner vacated, as

provided in this Act, and

perpetually restraining the

defendant from maintaining any

such nuisance within the juris-

diction of the court. While the

judgment remains in effect,

such building or apartment,

or such place shall be in

the custody of the court. An

order of abatement shall also

issue as a part of such judgment,

which order shall direct the

sheriff of the county to

remove from such building or

apartment, or such place all

fixtures and movable property

used in conducting or aiding

or abetting such nuisance, and

to sell the same in the manner

provided by law for the sale

of chattels under execution,

and to close such building or

apartment or such place against

its use for any purpose, and

to keep it closed for a period of

one year unless sooner released

as hereinafter provided. The

sheriff's fees for removing and

selling the movable property

shall be taxed as a part of the

costs, and shall be the same

as those for levying upon and

selling like property under

-7-

execution. For closing the build-

ing and keeping it closed the

court shall allow a reasonable

fee to be taxed as part of the

costs. No injunction may issue

against an owner, nor may an order

be entered requiring that any

building or apartment, or any

place be closed or kept closed,

if it appears that such owner

and his agent have in good faith

endeavored to privent such nui-

sance. Nothing in this Act

authorizes any relief respecting

any other apartment than that

in which such a nuisance exists.

Amended by P.A. 79-1366, §1,

eff. Oct. 1, 1976.

Illinois Annotated Statute §110A

Paragraph 301 (Supreme Court Rule 301):

Every final judgment of a

circuit court in a civil case is

appealable as of right. The

appeal is initiated by filing

a notice of appeal. No other

step is jurisdictional. An

appeal is a continuation of the

proceeding. All rights that

could have been asserted by appeal

or writ of error may be asserted

by appeal. No formal exception

need be taken in order to make

any ruling or action of the court

reviewable.

Illinois Annotated Statutes,

Chapter 110A Paragraph 305 (Supreme

Court Rule 305):

305. (Supreme Court Rule 305).

Stay of Judgments Pending Appeal

(a) Stay of Enforcement of

Judgment for Money Only.

(1) An appeal stays the enforce-

ment of a judgment for money only

if a notice of appeal is filed

within 30 days after the entry of

the judgment appealed from and a

bond in a reasonable amount to

secure the appellee is presented,

approved, and filed within the same

30 days or within any extension

of time granted under subparagraph

(2) of this paragraph. Notice of

the presentment of the bond

shall be given to the appellee.

(2) On motion made within the

same 30 days or any extension

thereof, the time for the filing

and approval of the bond may be

extended by the trial

court or by the reviewing

court or a judge thereof,

but the extension of time

granted by the trial court may

not aggregate more than 45

days unless the parties stip-

ulate otherwise. A motion in

the reviewing court for any

extension of time for the

filing and approval of the bond

in the trial court must be

supported by affidavit and

-9-

Dis

, LYN

bot Gia ae ae

accompanied by either the

record on appeal or such parts

of it as are relevant.

(b) Stay of Enforcement of

Judgments and Appealable

Orders by Order of Court.

(1) On notice and motion, and

an opportunity for opposing

parties to be heard, the trial

court, or the reviewing court

or a judge thereof, may stay

pending appeal the enforcement

of a judgment for money only

not stayed by compliance with

paragraph (a) of this rule,

or the enforcement, force and

effect of any other final or

interlocutory judgment or

judicial or administrative

order.

(2) Application for a stay

ordinarily must be made in

the first instance to the trial

court. A motion for a stay may

be made to the reviewing court,

or to a judge thereof, but such

a motion must show that appli-

cation to the trial court is

not practicable, or that the

trial court has denied an

application or has failed to

afford the relief that the

applicant has requested, and

must be accompanied by sugges-

tions in support of the motion

and by the record on appeal or

a short record.

-10-

(3) The stay, whether granted

by the trial or reviewing court,

shall be conditioned upon

such terms as are just. A

bond may be required in any

case, and in the case of a

judgment for money, or a stay

for the protection of interests

in property, shall be required

Constitution of Illinois, Article

I, Section 12:

ment

§ 12. Right to Remedy and

Justice

Every person shall find a certain

remedy in the laws for all

injuries and wrongs which he

receives to his person, privacy,

property or reputation. He

shall obtain justice

by law, freely, completely,

and promptly.

United States Constitution, Amend-

1:

Religious and political freedom.

Congress shall make no law respect-

ing an establishment of religion,

or prohibiting the free exercise

thereof; or abridging the freedom

of speech, or of the press; or

the right of the people peace-

ably to assemble, and to petition

-ll-

the Government for a redress of

grievances.

United States Constitution, Amend-

ment 14:

Section 1. Citizens of the

United States.

All persons born or naturalized

in the United States, and sub-

ject to the jurisdiction thereof,

are citizens of the United States

and of the State wherein they

reside. No State shall make or

enforce any law which shall abridge

the privileges or immunities of

citizens of the United States; nor

shall any State deprive any person

of life, liberty, or property,

without due process of law; nor

deny to any person within its

jurisdiction the equal protection

of the laws.

STATEMENT OF THE CASE

The petitioners’ Statement of the

Case contains specific references to

pleadings filed in this cause. Because

complete record had not been transcribed

and certified and submitted to the

-12-

Illinois Appellate Court, the same can-

not be referred to by transcript page.

Under applicable rules of the Supreme

Court of the State of Illinois, a "short

record" or summary record of the pleadings

as filed in the trial court was submitted

to the appellate court for purposes of

review upon petitioners’ Application for

Stay. Reference herein will be made to

specific pleadings as submitted with

the “short record”.

On the 2nd day of June, 1982, a

Complaint was filed by respondents herein

alleging that Arthur Davis, Davis Develop-

ment Company, AAA Superior, Inc., Randy

Mowder, and Adult World were in violation

of Chapter 100%, paragraph 1 et seg., of

the Illinois Revised Statute by permitting

a "nuisance" to exist at the premises des-

cribed therein. The Complaint requested

ot Sh

that the court enter a decree perpetually

restraining all persons from maintaining

or permitting said nuisance and from

using the premises for any purpose what-

soever for one year, and restraining your

petitioners from maintaining any such

nuisance within the jurisdiction of the

court. The Complaint also asked the court

to issue an order of abatement pursuant

to the terms of the statute.

Thereafter, the trial court granted

petitioners’ counsel's petition to

appear pro hac vice in this cause, and

answer to the Complaint was filed on July

7, 1982, containing a general denial and

further containing three affirmative

defenses.

Thereafter, on the 21st day of

September, 1982, a motion to strike and

dismiss was filed on behalf of the

petitioners, Randy Mowder and Adult

o14-

World, alleging that the notice

requirements of the Illinois Revised

Statute, Chapter 1004, Section 2, had not

been complied with; requesting that the

court strike certain paragraphs of plain-

tiff's Complaint; requesting dismissal

on the basis that the State of Illinois

had an adequate remedy at law; and chal-

lenging the constitutionality of Chapter

1004 of the Illinois Revised Statute as

in violation of the Fifth Amendment of

the United States Constitution by reguir-

ing petitioners to defend a civil suit

and testify in a civil manner in violation

of their guaranteed rights. Thereafter,

on the 20th day of September, 1982, at

the oral argument on the Motion to Dismiss,

counsel for the petitioners, Randy Mowder

and Adult World, moved to amend their

Motion to Dismiss to include allegations

challenging the constitutionality of

-15-

Section 2, Chapter 100%, of the Illinois

Revised Statute on the basis that said

statute violated guaranteed rights under

the due process provisions and guarantees

of the 14th Amendment of the United States

Constitution because of the vagueness and

uncertainty of the terms and the lack of

-@efinitions contained therein. The motion

to amend was granted by the court without

objection by the State. Plaintiff further

argued and amended his motion to include

allegations that the provisions oc. the :

statute and application by the court in

not allowing petitioners an opportunity

to abate the alleged nuisance also

violated provisions of the United States

Constitution. Said motion to strike and

dismiss was denied.

On the 29th day of September, 1982,

the matter came before the court for trial

-16-

on the merits, the same was heard, and

the court entered judgment as more speci-

fically set forth in Appendix C (infra,

page lc).

Thereafter, your petitioners filed

with the trial court a Motion for Stay

Pending Appeal, or in the Alternative

Reguest for Setting of Bond in this matter

and at said time also filed their Post-

Trial Motion and a Motion to Amend the

Motion to Strike and Motion to Dismiss

by Interlineation to include those

matters brought 30 at the oral argument

on the motion. On the 8th day of Nov-

ember, 1982, the court granted the

written motion to amend the motion to

strike and dismiss by interlineation,

and petitioners presented oral testimony

and evidence to the court in support of

their Motion for Stay. Petitioners

-17=

af

oS Tere

argued that the Illinois statutes and

constitution guaranteed them a right to

appeal and should the court deny the

Motion for Stay, they were effectively

denying the right to appeal the decision

of the trial court. Argument was centered

around the fact that certain time limi-

tations were required on appeal, and for

consideration by the Court of Appeals and

Illinois Supreme Court. By virtue of the

fact that the statute allows the injunc-

tion as to the property to continue for

a period of one year, it was conceivable

that the appeal could last longer than

said time, thereby rendering the issues

on appeal moot. Petitioners further

argued that they maintained certain

fundamental guaranteed rights under the

provisions of the 14th Amendment to earn

a livelihood and operate a business, and

| -18-

that the business, building, lease, and

employment opportunities were property

rights under provisions of the 14th

Amendment of the United States Constitu-

tion, which would be denied during the

pendency of the appeal. The trial court

denied the Motion for Stay.

On the 23rd day of November, 1982,

petitioners filed with the Appellate Court

of the State of Illinois, an Application

for Stay, requesting that the court grant

a stay of all relief as ordered by the

trial court during the pendency of the

appeal. On the 3rd day of December,

1982, the Illinois Court of Appeals

granted the Motion for Stay in part (as

to the abatement as ordered) and denied

it as to the injunctive relief (Appen-

dix B, infra, page 1b)

On the 7th day of December, 1982,

the petitioners filed with the Supreme

-19-

Weg lab yA

a)6 ah ee eee

Court of the State of Illinois their

Application for Stay pursuant to Supreme

Court Rule 305. Petitioners alleged as

a basis for their application for stay

that the denial of the same would deny

petitioners their constitutional right

of appeal in review of the trial

court's decision, and further deny

guaranteed rights under the 14th Amend-

ment of the United States Constitution.

On December 8, 1982, petitioners filed

their Request for Direct Expedited

Appeal to the Supreme Court (Appendix

D, infra, page ld).

Petitioners then filed their cita-

tion of additional authority in support

of the motion for stay with the Illinois

Supreme Court. Said citation was filed

on or about the 15th day of December,

1982, and alleged in addition to the

-20-

allegations set forth in the Application

for Stay that fundamental rights as

guaranteed under the lst Amendment of

the United States Constitution would be

denied petitioner should the Stay Pending

Appeal be denied. Petitioners cited as

additional authority the cases of

National Socialist Party of America v.

Village of Skokie, 432 U.S. 43, 53 L.Ed.

2d 96, 97 S.Ct. 2205 (1977); and Schad v.

Borough of Mt. Ephraim, 452 U.S. 61,

68 L.Ed.2d 671, 101 S.Ct. 2176 (1981).

On the 21st day of December, 1982, the

Supreme Court of Illinois denied the

Application for Stay and affirmed the

decision of the Appellate Court as related

to petitioners in the writing set forth

as Appendix A (infra, page la).

~2l@

REASONS FOR GRANTING WRIT

The issue in this case is whether

basic fundamental rights are beihg de-

nied to cbs petitioners during the pen-

dency of the appeal by the denial of

the Illinois Supreme Court to grant a

stay of the injunctive relief and a

direct expedited appeal. Ancillary to

this issue is the question as to whether

the State of Illinois has provided ade-

quate procedural safeguards to protect

those rights of the petitioner during

the pendency of the action. Is there a

“compelling state interest" or “suffi-

cient public interest" present to justify

the denial of the stay?

In some aspects, this case is one

of first impression before the court.

Some of the questions which must be

answered are whether the "Adult World"

~22=

maintains fundamental protected rights

under provisions of the lst and 14th

Amendments to the United States Consti-

tution which are entitled to strict

scrutiny and the “compelling state

interest test", when determining the

appropriateness of legislation or

rulings. As stated in New York State

Ice Co., v. Liebmann, 285 U.S. 262,

TAR te

" sah! ‘a

Apo *

MB

52 S.Ct. 371, 76 L.Ed. 747 (1932):

The right to engage in a

lawful business or profession

without arbitrary restraints

is a ‘fundamental right' within

the protection of the 14th

Amendment.

Although most of the cases apply-

ing the "compelling state interest”

test refer to an act of legislation

effecting a business or protected right,

petitioners feel that such a test would

apply in the determination as to the

appropriateness of a stay.

-23-

To determine which test (rational

basis or compelling state interest)

should be applied in the given circum-

stance, the Supreme Court in Dunn v.

Blumstein, 405 U.S. 330, 92 S.Ct. 995,

31 L.Ed.2d 274 (1972) suggest that three

factors should be considered. Those

three factors are, 1) character or

basis of discrimination; 2) interest of

the individual subject to the discrimi-

nation; 3) the governmental interest at

stake.

In applying these factors to the

individual case, the character or basis

of the denial is the injunction itself.

It denies the petitioners their liveli-

hood, and right to operate the business

while the appeal is pending. The inter-

est of the individual or business sub-

ject to the discrimination are those

interests and fundamental rights under

-24-

provisions of the lst and 14th Amend-

ments.

Petitioners conted that the

Supreme Court's ruling in the case of

Schad v. Borough of Mt. Ephrian, 452

U.S. 61, 67 L.Ed.2d 671, 101 S.Ct.

2176 (1981), would extend to the

business which is the subject of this

case. As the evidence in this cause

demonstrated, the business in question

was an establishment which offered

“sensitivity sessions" to customers

for payment of a fee, and also included

modeling, nude modeling, and photographic

sessions for payment of the fee. A

fee was paid up front and the customer

then was allowed to go to a private

room with the model of his choice. He

then could "tip" or give compensation

for the choice of apparel of the model.

This included the model wearing what

-25-

the customer brought in or the model

appearing nude. Most models appeared

nude at the request of the customer.

At this point, the model could then

apply the sensitivity which was a light

fingertip touching of the body or light

massage. In addition, a customer could,

if requested, photograph a nude model

or have a nude model pose as he wished.

Petitioners contend that the

extension of lst Amendment rights of

freedom of expression as stated by

the court in Schad v. Borough of Mt.

Ephrian (supra) apply to the type

of business which is the subject of

this cause. The court itself held that

actions of the models within petitioners’

business were "lewd" under terms of the

statute on the basis of the nude modeling

and photographysessions. The lst

-26-

Amendment protections of freedom of

expression referring to nude dancing

in Schad v. Borough of Mt. Ephrian

(supra) would necessarily extend to

nude modeling and nude sessions within

petitioners’ establishment.

Rights of privacy and consensual

private acts are also protected funda-

mental rights under the lst Amendment

of the United States Constitution.

The leading case of Griswold v.

Connecticut, 381 U.S. 479, 85 S.Ct.

1678, 14 L.Ed.2d 510 (1965) set forth

the fundamental right of association

and privacy in individual relationships

afforded under the United States Consti-

_ tution. Although the factual setting

in Griswold is entirely different from

that in the present case, those rights

of privacy and association extend to

conser.sual private acts between adults.

-27=

As stated by the Supreme Court in

discussing the privacy rights:

In other words, the lst

Amendment has a penumbra

where privacy is protected

from governmental intrusion.

In like context, we have

protected forms of ‘associ-

ation’ that are not political

in the customary sense but

pertain to the social, legal,

and economic benefit of the

members .. .

Although Griswold v. Connecticut

(supra) referred to the private rights

of the marriage relationship, those

rights of privacy and association and

consensual private acts between adults

can and should be extended to the

facts in the case at hand. The only

acts which occur in the establishment

which is the subject of this cause are

consensual acts between adults in pri-

vate rooms. Such consensual acts

should be entitled to the same rights

of privacy and freedoms guaranteed by

-28-

the lst Amendment, the 5th Amendment,

and 14th Amendment as those acts committed

in the marriage relationship, or within

ones private homes as recognized in

Griswold v. Connecticut (supra). We

would further refer the court to Mr.

Justice Goldberg's concurring opinion

in Griswold v. Connecticut (supra)

where it is stated:

- « « In some, the 9th Amend-

ment simply lends strong

support to the view that

the ‘liberty' protected by

the 5th and 14th Amendments

were an infringement by the

federal government or the

states is not restricted to

rights specifically mentioned

in the first eight amend-

ments ...

In determining which rights

are fundamental, judges are

not left at large to decide

cases in light of their

personal and private notions.

Rather, they must look to

the ‘traditions and [collec-

tive] conscience of our people’

to determine irony a

principle is ‘so rooted [there]

+ « « as to be ranked as funda-

mental . .. I agree fully

with the court that, applying

these tests, the right of

privacy is a fundamental per-

sonal right, ‘emanating from

the totality of the consti-

tutional scheme under which

we live.’ ...

The thrust of petitioners’ argument is

that they maintain certain fundamental and

guaranteed rights under the United States

Constitution which are entitled to protection

and strict scrutiny. Those rights are the

right to privacy, liberty, and association as

set forth above. The general right of privacy

has been viewed as emanating from the lst

Amendment's guarantee of freedam of associa-

tion, NAACP v. Alabama 357 U.S. 449, 78 S.Ct.

1163, 2 L.Ed.2d 1388, S.Ct. ss: (1958) ;

and of speech, Stanley v. Georgia, 394 U.S.

557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969);

the 4th Amendment, Terry v. Ohio, 392 U.S. 1,

88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); the

-30-

Equal Protection Clause of the 14th Amendment,

Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817,

18 L.Ed.2d 1010 (1967); the 9th Amendment,

Griswald v. Connecticut (supra); the penumbras

of the Bill of Rights, Griswald v. Connecticut,

(supra); and the concept of liberty guaranteed

by the Due Process Clause of the 14th Amendment,

Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35

L.Ed.2d 147 (1973). The concept of freedom of

speevh or expression as extending to nude

entertainment was established most recently in

the case of Schad v. Borough of Mt.Ephrian

(supra) by the United States Supreme Court in

holding that such entertainment is entitled to

protection by the provisions of the lst Amend-

ment of the United States Constitution. This

protection should necessarily extend to nude

performances or adult entertainment in a

private setting where such acts are speci-

fically limited to persons above the age of

18 and consist of only voluntary acts between

=3le

consenting persons in a private room. The

Supreme Court has recognized the right to pri-

vacy as it applies to sexual relations in

marriage (Griswald v. Connecticut, supra) and

some decisions have interpreted Griswald as

denying the state the right to regulate private

marital relations. See Cotner v. Henry, 394

F.2d 873, 875 (7th Cir. 1968), Cert. Den. 393

U.S. 847, 89 S.Ct. 132, 21 L.Ed.2d 118. Worthy

of noting is the comment in note 3, page 875 of

Cotner v. Henry (supra) that "the American Law

Institute Model Penal Code adopts the view that

consensual private sexual conduct between

adults should not ordinarily be subject to

criminal sanction."

Petitioners realize that Griswald dealt

with private relationships in the marriage, and

they further realize that Cotner v. Henry

(supra) and the American Law Institute Model

Penal Code adoption refers more specifically

to consensual acts between persons who would

-32-

better be described as “intimate” or "lovers"

than it applies specifically to matters relat-

ing to sex in private places such as "massage

parlors", "modeling centers", or other estab-

lishments. However, the protection afforded by

the Constitution should necessarily extend to

those persons and establishments where such

private, consensual conduct takes place. The

Supreme Court later, in the case of Eisenstadt

Vv. Baird, 405 U.S. 438, 31 L.Ed.2d 349, 92 S.Ct.

1029 (1972) extended the Griswald (supra) concept

to consenting adults not married to each other.

The next necessary extension of that concept

would apply to the case at hand, thereby

demonstrating that there are in fact fundamental,

guaranteed and protected rights of petitioners

in this cause which are directly effected by

the denial of the stay by the Illinois Supreme

Court.

in Fe

¥ '

itera’

As stated by the court in Schad v.

Borough of Mt. Ephrian (supra, at 101

S. Ct. 2181) nor may an entertainment

program be prohibited solely because it

displays the nude human figure. "Nudity

alone" does not place otherwise protec-

ted material outside the mantel of the

First Amendment. . .

This statement in Schad v. Borough

of Mt. Ephrian (supra) shows clearly

that because "nudity" was involved in

this particular cause, does not remove

it from the realm of protected freedoms

that have been set forth above.

Regarding the consensual private

acts of adults being rights which are

fundamental and protected by the United

States Constitution, petitioners make

; -34-

ara

a further analogy and refers the court

to the case of State v. Pilcher (Sup.

Ct. Iowa, 1976), 242 NW2d 348, a case

wherein the defendant Pilcher appealed

from a judgment imposed following his

conviction by a jury of the crime of

sodomy in violation of the Iowa Code.

Although several issues were presented

for review, defendant primarily challen-

ged the constitutionality of the statute

on the basis that (1) it was an improper

exercise of police power; (2) it violated

the due process and equal protection

clauses; (3) it was unconstitutionally

vague and overbroad; (4) it invaded the

right to privacy; and (5) it implemented

cruel and unusual punishment.

The Iowa Supreme Court, in address-

ing the allegations as to unconstitution-

ality for violation of the due process

=

and equal protection clauses, and

unconstitutionality as to the invasion

of privacy stated at Page 356:

We conclude the defendant

has standing to question

the constitutionality of

the sodomy statute as it

applies to the private,

consensual acts of adult

persons of the opposite

sex not married to each

other as an invasion of

personal rights.

We do not understand

defendant to question the

power of a state to consti-

tutionally regulate sexual

activity involving adult

corruption of minors or

forceful non-consenting

sexual behavior between

adults and to render crimi-

nal such sexual activities.

It has been concluded a

defendant convicted of

forced or public sodomy

does not have standing to

assert the rights of married

or unmarried consenting adults

to engage in such private or

sexual activities. See

Carter v. State, 255 Ark.

225, 500 S.W.2d 368, 373,

Cert. Den. 416 U.S. 905,

94 S.Ct. 1610, 410 L.Ed.2d

=36«

110; People v. Sharpe «

183 Solo. o P.2d

1138, 1140-1141. (1973);

Hughes v. State, 14 Md.

App. 497, 287 A.2d 299,

303-304, Cert. Den., 409

U.S. 1025, 93 S.Ct. 469,

34 L.Ed.2d, 317; Jones v.

State, 85 Nev. 411,

P.2d 429, 430-431; Byrd v.

State, 65 Wis. 2d 41s,

222 N.W.2d 696, 699-700;

United States v. Brewer,

363 F. Supp. 606, 607

(M.D. Pa. 1973) (Brewer

denied standing to prison-

ers to assert the rights of

consenting adults); Lovisi

v. Slayton, 363 F. Supp. 620,

624 (E.D. Va. Richmond Division

1973); and Swikert v. Cady,

381 F. Supp. 988, 989 (E.D.

Wis. 1974).

The main and most compelling

thrust of any argument

against a sodomy statute's

constitutionality entails

assertion that the emerging

right of privacy protects

private sexual activity

between consenting adults

of the opposite sex not

married to each other. The

general right of privacy

+ « + has been viewed as

emanating from the First

Amendment's guarantee of

freedom of association,

=I7=

NAACP v. Alabama, 357 U.S.

449, 78 S.Ct. 1163, 2 L.Ed.

2d 1488 (1958); and of

speech, Stanley v. Georgia,

394 U.S. 557, S.Ct. 1243,

22 L.Ed.2d 542 (1969); the

Fourth Amendment, Terry v.

Ohio, 392 U.S. 1, 88 S.Ct.

T6868, 20 L.Ed.2d 889 (1968);

the Equal Protection Clause

of the 14th Amendment,

Loving v. Virginia, 388 U.S.

1, 87 S.Ct. 1817, 18 L.Ed.

2a 1010 (1967); the 9th

Amendment, Griswald v.

Connecticut, 381 U.S. 479,

85 S.Ct. 1678, 14 L.Ed.2d

510 (1965) (Goldberg J.

Concurring); the Penumbras

of the Bill of Rights, Id.;

and the concept of liberty

guaranteed by the Due Process

Clause of the 14th Amendment,

Roe v. Wade, 410 U.S. 113,

93 S.Ct. 705, 35 L.Ed.2da

147 (1973). The court is

satisfied that the candid

approach of Roe v. Wade,

supra, and of Mr. Justice

Harlan's concurrence in

Griswald v. Connecticut,

supra, 381 U.S. at 499,

85 S.Ct. 1678, that the

Due Process Clause of the

14th Amendment provides

substantive protection for

-38-

fundamental human values

‘implicit in the concept

of ordered liberty’.

Palko v. Connecticut,

U.S. , 325, 58

S.Ct. 149, 152, 82 L.

Ed. 288 (1937), represents

the preferred view... .'

Lovisi v. Slayton, supra,

363 F. Supp. 620, 624.

The Supreme Court has

recognized the right to

privacy as it applies to

sexual relations. Thus,

in Griswald v. Connecticut,

supra, a statute prohibiting

the use and distribution

of contraceptives was

struck down on the basis

it operated '. ..

directly on an intimate

relation of husband and

wife and their physician's

role in one aspect of that

relation. 381 U.S. at 482,

85 S.Ct. at 1680, 14 L.Ed.2d

at 513.

The Buchanon Court (Wade v.

Buchanon, 401 U.S. 989, 91

S.Ct. 1221, 28 L.Ed.2d 521

(1971) and 401 U.S. 989, 91

S.Ct. 1222, 28 L.Ed.2d 526

(1971)) recognized a

state's power to regulate

-39-

Ps

‘sexual promiscuity or

misconduct’ but agreed with

Griswald such ‘regulation

may not be achieved by means

which sweep unnecessarily

broadly and thereby invade

the area of protected free-

doms' (Griswald, 381 U.S.

at 485, 85 S.Ct. at 1682,

quoting from NAACP v. Alabama

377, U.S, 288, 307, 84 S.

Ct. 1302, 1314, 12 L.Ed.

325 (1964). 308 F. Supp.

at 733.

The next step taken in

this area is that the state

may not interfere with the

private sexual actions of

consenting adults of the

opposite sex not married

to each other. This rea-

soning has often found its

basis in Eisenstadt v. Baird,

405 U.S. 438, 92 S.Ct. 1029,

31 L.Ed. 2d 349, a case

which held the different

treatment afforded married

and unmarried persons as

to the availability of

contraceptives was not

grounded on a rational

difference. Thus, the

statute violated equal

protection. The court,

through Justice Brennan,

reasoned this was so

under either of two situa-

tions: (1) if under

Griswald_ the distribution

-40-

of contraceptives to

married persons could

not be prohibited due

to the right of privacy,

then such right would

enure equally to indi-

viduals; (2) if Griswald

does not bar the state's

prohibition on the dis-

tribution of contracep-

tives, the state could

not allow married persons

such a right but deny to

unmarried individuals.

405 U.S. at 453-454, 92

S.Ct. at 1038, 31 L.Ed.2d

at 362.

The Eisenstadt Court further

stated:

It is true that in

Griswald the right

of privacy in ques-

tion adhered in the

marital relation-

ship. Yet the mari-

tal couple is not an

independent entity

with mind and heart

of its own, but an

association of two

individuals each with

a separate intellect

and emotional makeup.

- « (citing authorities).

405 U.S. at 453, 92

S.Ct. at 1038, 31

L.Ed.2d at 362.

-41-

limes 4

In our opinion, the

rationale expressed in

Eisenstadt extends to

protect the manner of

sexual relations per-

formed in private between

consenting adults of the

opposite sex not married

to each other.

Before the state can

encroach into recognized

areas of fundmanetal rights,

such as the personal right

of privacy, there must

exist a subordinating

interest which is compell-

ing and necessary, not

merely related, to the

accomplishment of a per-

missible state policy.

Griswald v. Connecticut,

381 U.S. at 497-498, 85

S.Ct. at 1688-1689, 14

L.Ed.2d at 522, 523 (Gold~

berg, J. Concurring). The

state has not shown the

existence of any such in-

terest here.

Again, although State v. Pilcher

(supra) is not factually the same as

the case at hand, it does go on to

extend fundamental rights to consensual

~42-

private acts between adults.

The arguments heretofore have

demonstrated two basic facts for the

- court's consideration. First, that

petitioners enjoy the basic fundamental

rights. Not only do they enjoy the

right to appeal under provisions of the

Illinois Code (Illinois Annotated Stat-

utes §110A Paragraph 301); the right to

engage in a lawful business and funda-

mental guarantees of liberty (United

States Constitution, 14th Amendment) ;

but they also enjoy fundamental guaran-

teed rights under provisions of the

lst, 9th and 14th Amendments as regards

the freedoms of speech, expression and

association (United States Constitution,

lst Amendment; Schad v. Borough of Mt.

Ephrian (supra); and also the guaran-

teed and fundamental rights of privacy

(1st and 14th Amendments of the United

~43<

States Constituion; Griswald v. Connec-

ticut (supra); Eisenstadt v. Baird

(supra); State v. Pilcher (supra).

The second reason for the above-

mentioned argument is to demonstrate

that not only are the fundamental

guaranteed rights present and guaran-

teed to the petitioners, but they are

in fact being denied by the action of

the Illinois Supreme Court in the denial

of the stay. During the pendency of the

appeal, petitioners are not allowed to

operate their business in any way or

manner, nor are they allowed to exercise

their property rights in the lease,

building or personal property which

exists at the location upon which the

injunction was granted. The injunction

itself, as to the property, extends for

a period of one year pursuant to the

terms of the statute. It is conceiv-

-44-

able that the appeal itself, with the

various time limitations for filings of

records, briefs and other matters, and

possible oral argument plus considera-

tion by the court could extend for a

period of more than one year. If that

is the case, then it virtually destroys

any right of appeal by petitioners on

that issue of injunction as it extends

to the property, because the appeal

itself and any decision may well be

made at a time subsequent to the expir-

ation of the one year injunctive period,

Further, petitioners are denied

the right to operate their business and

denied the basic guaranteed rights as

set forth above during the pendency

of the appeal if the stay is not

granted. The State of Illinois has

demonstrated no compelling state

interest, as is necessary when

-45-

yy ae

fundamental rights are effected to

justify the denial of the stay during

the pendency of the appeal. All rights

and remedies of the State of Illinois as

secured by their judgment in the trial

court will be available to the State of

Illinois upon completion of the appeal

should the petitioners not be success-

ful. There is no prejudice to the

State of Illinois, and they have shown

no interest compelling or otherwise in

maintaining the injunction during the

pendency of this appeal. There are no

procedural safeguards to guarantee that

the rights as guaranteed to the peti-

tioners as set forth herein will not be

infringed during the pendency of the

appeal, and without such procedural

safeguards, and with the lack of

prejudice to the state and more substan-

tial, the lack of any compelling state

-46~

“en wit As

&

interest to justify the denial of these

rights, the denial of stay was clearly

improper. The stay in the Appellate

Court during the pendency of the appeal

would serve only to protect those

rights as guaranteed to petitioners,

and would deny no rights, nor substantial

interests to the people nor the State

of IJiinois during the time the appeal

is pending.

CONCLUSION

WHEREFORE, petitioners respect-

fully pray that a Writ of Certiorari

be granted, and in the event the

petition is granted, petitioners pray

that the judgment and decision of the

Illinois Supreme Court in denial of

the stay be reversed and this cause

be ordered stayed pending appeal in

this cause, and for all other relief

‘

‘

i)

MS

‘ { t

+ . n )

At RE) PPM eT) See ee Ae E,W ae. 4

just and proper in the premises.

Respectfully submitted,

(.

STUART) T.

BENCH

for P titioners |

-48-