Amicus Curiae Brief — Brockett v. Spokane Arcades, Inc.

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| Ottce Supreme Court, US. |

Cc (>) FILED

Nos. 84-28 and 84-1 wey 15 i904

vir js _

CLERK _}

Supreme Court of the U tates

October Term, 1984

No. 84-28

DONALD C. BROCKETT,

Spokane County Prosecuting Attorney

Appellant,

vs.

SPOKANE ARCADES, INC., et al,

Appellees,

No. 84-143

KENNETH EIKENBERRY,

Attorney General for the State of Washington, et al.,

Appellants,

vs.

J-R DISTRIBUTORS, INC., et al.,

‘ Appellees,

On Appeal From The United States

Court Of Appeals For The Ninth Circuit

BRIEF AMICUS CURIAE OF TOM COLLINS,

AS COUNTY ATTORNEY FOR THE COUNTY OF MARICOPA,

STATE OF ARIZONA, IN SUPPORT OF APPELLANTS

BRUCE A. TAYLOR

2331 W. Royal Palm Rd. #105

Phoenix, Arizona 85021

(602) 995-2600

Counsel of Record

Sandor O. Shuch For Amicus Curiae

Deputy County Attorney

County, Arizona

201 W. Jefferson Street

Phoenix, Arizona 85003

(602) 262-8541

Of Counsel

Sal

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF THE AMICUS CURIAE

SUMMARY OF ARGUMENT

LAW AND ARGUMENT

Proposition

CONCLUSION

APPENDIX

of Law

Number I

Number II

Number III

Number IV

Number V

CERTIFICATE OF SERVICE

(Foliows Appendix)

TABLE OF AUTHORITIES

Pages

Cases

Allen v. McCurry,

449 U.S. 90 71980) 21,25

Andrews v. State,

WwW. (Tx.Ct.Cr.App.

1983) 57

Art Theatre Guild v. Ewing, :

421 U.S. 923 (1975) 7

Besig v. U.S.,

xO8 F.2d 142 (9th Cir. 1953) 55

Broadrick v. Oklahoma,

413 U.S. 601 (1973)

Chateau X v. North Carolina,

up.ct.Nc. 1981) 17

Childs v. State of Oregon,

431 F.2d 272 (Sth Cir. 1970) 54

Cohen v. California,

) 42

Commonwealth v. Mascolo,

(App.Ct.Mass. 1978) 56

Commonwealth v. Rich,

" om.Ct.Pa.1981) 56

Communety Television of Utah v.

oy Citv,

Shs F. Supp. 1164 (D.Utah 1982) 27

Dombrowski v. Pfister,

380 U.S. 479 (1965)

Douglas v. City of Jeannette,

315 U.S. 157 (1943)

Eastman Kodak v. Hendricks,

t r. 1958)

Fehlhaber v. North Carolina,

675 F.2d 1305 (4th Cir. 1982)

Fenner v. Boykin

271 U.S. oho (1926)

First Amendment Foundation v.

“State of Florida,

364 So.2d 450 (Sup.Ct.Fla. 1978)

Flying Eagle Publications v.

United States,

273 F.2ag 799 (lst Cir. 1960)

Ginzburg v. United States,

383 U.S. 463 (1966)

Goldstein v. Allain,

-Supp. 1377 (N.D.Miss. 1983)

Hamling v. United States,

418 ime 8/ (1974)

-iii-

Pages

14,22

30-31

14,30

19,41

48,49

50,51

27,36

19,39

41.45

-46

Hicks v. Miranda,

422 U.S. 332 (1975)

Huffman v. Pursue,

975)

In re Collins,

riz.Rpts. 310 (1972)

Interstate Circuit v. City

of Dallas,

; 590 (5th Cir. 1966)

J-R Distributors v. Eikenberr ,

725 F.2d 482 (Sth Cir. LS8z4

Sangsiey Pictures v. Regents,

Little Store v. State,

A. t.App.Md. 1983)

Luros v. United States,

th Cir. 1968)

McCarthy v. Briscoe,

553 F.2d 1005 (5th Cir. 1977)

Miller v. California,

Mishkin v. New York,

y S 6)

-iv-

Pages

25,30

10,26

35-36

15,19

36-38

15,19

39 41

45,47

-48

Moore v. Sims,

5 (1979)

Mutual Film Corp. v.

~ Industrial Com. ,

230 U.S. 231 (1915)

New York v. Ferber,

82)

Parratt v. Taylor,

451 U.S. 53 (1981)

Penthouse v. McAuliffe,

, t ir. 1980)

People v. Ciampa,

35% N.Y.S.2d 727 (Sup.Ct. 1977)

People v. Souter,

178 Cal.Rptr. 111 (Ct.App. 1981)

People of Michigan v. Neumayer,

ks N.W. 2d 736 (Sup.Ct. 1575}

Pinkus v. United States,

(

Railroad Commission v. Pullman,

312 U.S. 496 (1941)

Red Bluff Drive-In v. Vance,

; th Cir. 1981)

Roth v. United States,

19,40

25,32

27,41

53,56

19,39

45,50

14,23

27,36

19,36

39,40

Rutt edge v. Arizona Board of

egents,

580 F.2d 1345 (9th Cir. 1981)

Samuels v. Mackell,

; 1)

Sedelbauer v. State, |

; up.Ct.In. 1981)

Splawn v. California,

43I U.S. 595 (1977)

Spokane Arcades v. Brockett,

631 F.2d 135 (Sth cir. 1980)

Spry v. State,

2% S.E.2d 2 (Ct. App. Ga. 1981)

Sovereign News v. Falke,

674 F.2d 484 (oth Cir. 1982)

State v. Anonymous,

A. uper.Ct.Conn.

1977)

State v. Barrett,

(Sup.Ct.S.C. 1982)

State v. Grabill,

Ct.App.Or. 1978)

State v. Great American Theatre,

: sup. Ct.Kan. 0)

State v. LeWitt,

A. (Ct.App.Conn. 1966)

State v. Little Art Cor -

215 N.W.2d 853 (Sup.Ct.Neb. 1974)

-vi-

Pages

49-50

51-52

16,27

State v. Schwing,

328 N.E.2d (Sup.Ct.Ohio 1975)

State v. Tidyman,

568 P.2d 5b6 (Ct.App.Or. 1977)

State of Arizona v. Bartanen,

up.Ct.Ariz. 1979)

State of Arizona v. Book-Cellar,

t.App.Ariz. 1984)

State of Idaho, ex rel. Kidwell v.

U.S. Marketing,

631 P.2d 622 (Sup.Ct.Idaho 1981)

State of Ohio, ex rel. Ewing v.

“Without a Stitch ,

1o St. (Sup.Ct.Ohio

1974)

State of Ohio v. Burgun,

56 Ohio St.2d 354 (Sup.Ct.Ohio

1978)

State of Washington v. J-R

Distributors,

51Z 0.2d 1049 (Sup.Ct.Wash. 1973)

Steffel v. Thompson,

G15 U.S. 452 CIS T&)

Stroianoff v. Montana,

th Cir. 1983)

Pages

46,56

16,

43-44

17 ,60

14,24

Turoso v. Cleveland Municipal Court,

531 F.Supp. 829 (N.D. Ohio 1980), 17

U.S. v. 31 Photographs,

156 F.Supp 350 (S.D.N.Y. 1957)

-vii-

* i AP :, Teen Phs

U.S. v. Ammirato,

; 5th Cir. 1982)

U.S. v. Battista,

6th Cir. 1981)

U.S. v. Central Magazine Sales,

U.S. v. Darnell,

(2d Cir. 1963)

U.S. v. Fatico,

441 F.Supp. 1285 (E.D.N.Y. 1977)

U.S. v. Keller,

(3rd Cir. 1958)

U.S. v. “Language of Love",

432 F.2d rhe oni Cir. 1970)

U.S. v. One Reel of Film,

.oupp. . Mass. 1973)

U.S. v. Pinkus,

5 (9th Cir. 1977)

Universal Amusement v. Vance,

t e. 8)

Vicory v. Walton,

(6th Cir. 1983)

Village of Hoffman Estates v.

Flipside,

73k U.S. 489 (1982)

-viii-

Pages

Ward v. Illinois,

G31 U.S. 767 (1977) 15,41

Watson v. Buck,

: (1941) 9-10,

12,13

20 ,62

Younger v. Harris,

705 U.S. 37 (1971) 22,25

Youngstown v. DeLoreto,

19 Ohio.App.2d 267 (Ct.App.Ohio

1969) 45

Zwickler v. Koota,

: 967) 23

Miscellaneous

42 U.S.C., Section 1982 29

ABA's Standards for Criminal

Justice Relating to Sentencing

Alternatives and Procedures 59

Model Penal Code, Commentaries,

Part II 42-43

Schauer, The Law of Obscenity 42

-ix-

INTEREST OF THE AMICUS CURIAE

Your amicus curiae is the Honorable

Tom Collins, duly elected County Attorney

for Maricopa County, Arizona. He is the

chief law enforcement officer of the

County, with criminal jurisdiction over

felonies and misdemeanors as well as

civil practice and advice duties to

County governmental agencies.

There are approximately forty-five

(45) so-called "adult" bookstores and

theatres which carry exclusively

"hard-core" pornographic magazines,

films, video cassettes, sexual devices

such as d2ldos and bondage equipment, and

silent short-film "peep shows" in small

booths. In addition, several "adult"

motels offer hard-core films to paying

customers, numerous video cassette rental

and sales outlets carry hundreds of

hard-core pornographic cassettes, and

several bars and burlesque houses employ

elie

young females to expose their vagina and

anus areas and breasts to paying

customers. All such hard-core

pornography and nude "entertainments" are

illegal under Arizona state statutes.

Prosecutions, injunctions, and nuisance

abatement actions have been brought and

continue to be litigated in state courts.

The diversity of opinion by lower

federal and state courts deserves

correction as we enter a new era of

enforcement against an illegal organized

crime industry which has grown out of

control and now enters the home through

cable and pay television, dial-a-porn

telephone services, and "men's

sophisticate magazines" available at

nearly every corner convenience store and

newsstand. Sexual crimes against women

and children are among the only

classifications of crimes which are

steadily increasing, and are becoming

afte

more violent and bizarre. In the opinion

of veteran law enforcement officers and

many researchers and therapists, such sex

crimes are increasingly connected with

pornography and its effect on heightening

the arousal and deviant tendencies of

offenders. This nationwide problem

cannot be ignored, yet state prosecutors

are now being diverted from their law

enforcement response by lawsuits from the

pornography industry in federal courts.

Attacks against new and existing statutes

and ordinances are resulting in the

review of state laws by federal judges

rather than state courts. Awards of

attorneys fees whenever a federal judge

differs in opinion with the choice of

words in legislation are intimidating

city and county councils and state

legislatures, who are faced with mounting

financial problems on one hand anc

growing organized crime and related

individual offenses on the other.

Your amicus curiae has recently been

the subject of a similar federal

challenge to the existing Arizona

Obscenity Statutes, brought on behalf of

several pornographers by the same

attorney representing the Appellees in

this case. The Complaint in Polykoff, et

al. v. Tom Collins, F.Supp. CIV

84-1101, was filed in the U.S. District

Court in Phoenix and asked that the Court

declare the state statutes invalid,

primarily in reliance upon the Ninth

Circuit opinion now before the Court

here, and sought an injunction under 42

U.S.C. 1983, and attorneys fees under

Section 1988. Your amicus curiae

immediately filed a civil declaratory

action regarding the challenged statutes

in the state court against the federal

plaintiffs. (The federal plaintiffs-

in %

state defendants objected and moved to

dismiss the state action, which was

subsequently dismissed over our objection

after the federal court ruled in the

State's favor.) The Honorable District

Judge Charles L. Hardy assumed

jurisdiction but entered judgment, on

July 11, 1984, in favor of the State and

your amicus curiae. Judge Hardy first

found that abstention was not required

and then distinguished the Ninth Circuit

decision from the statute and ‘case law

construction by the Arizona Supreme

Court. See Appendix "A" for the District

Court decision of Judge Hardy. Judge

Hardy found that the Arizona Supreme

Court's interpretation of "prurient" and

the provision of. high fine limits under

Arizona's felony obscenity law were

constitutional. The Plaintiffs have

filed an appeal from this judgment in the

Ninth Circuit, where the case is now

pending, Case No. 84-2328.

Clarifying the steps in determining

jurisdiction, in considering abstention,

declaratory relief, and then injunctive

relief, would eliminate much improper

litigation of these state law issues and

restore proper deference to state courts.

Your amicus curiae, being faced with the

duty to enforce state laws and the burden

of defending such federal lawsuits, has

an interest in the resolution of these

issues of federal review and substantive

obscenity law questions. This case will

be the most important obscenity case

since Miller, and could be the most

significant statutory review case ever.

Your amicus curiae hereby offers a

summary of existing case law and

proposals for future guidance in the

resolutions of these controversies.

Il.

IIl.

SUMMARY OF ARGUMENT

Federal Courts Lack Jurisdiction To

Review State Laws Unless They Meet

The Watson v. Buck Test Of Total

Invalidity Incapable Of Narrowing

Construction, Either Facially Or As

Applied.

Federal Courts Should Abstain From

Exercising Jurisdiction Over

Declaratory Or Injunction Claims

Unless It Is First Pleaded And

Proved That State Procedures Are

Inadequate To Provide Due Process Or

That There Is Bad Faith Or

Harassment.

Even Where Declaratory Relief Is

Appropriate, Federal Courts Must

Still Consider Injunctive Claims

Separately And An Injunction Should

Issue Only Where There Is Evidence

IV.

That The Federal Declaratory Order

Will Be Ignored In Bad Faith.

The Concept Of Prurient Appeal Is

Not Limited To Appeal To A "Shameful

And Morbid" Sexual Interest And

Properly Includes The Commercial

Appeal To Erotic, Lustful, And

Otherwise Attractive, As Well As

Repulsive, Sexual Interests.

The Penalty Provisions Of The

Washington Statute Are Not

Unreasonable On Their Face And Can

Be Applied Constitutionally.

LAW AND ARGUMENT

Proposition of Law Number IL:

Federal Courts Lack Juris-

diction fo Review State Laws

Unless They Meet The Watson v.

Buck Test otal Invalidity

Incapable Of Narrowing Con-

Struction, bither Facially Or

As Applied.

In Watson v. Buck, 313 U.S. 387, at

401-02 (1941), the Court refused federal

review of Florida statutes because there

were no "exceptional circumstances", no

"great and immediate" danger of

irreparable loss, and the "Florida

Supreme Court, which under our dual

system of government has the last word on

the construction and meaning of statutes

of that state, has never yet passed upon

the statutes before us. It is highly

desirable that it should have an

opportunity to do so." The Court's

reasoning for deferring to state courts

is more applicable and needed now than it

-9-

was in years past: ‘Passing upon the

possible significance of the manifold

provisions of a broad statute in advance

of efforts to apply the separate

provisions is analogous to rendering an

advisory opinion upon a statute or a

declaratory judgment upon a hypothetical

case."" Id., at 402.

The Court then announced, at, 402, an

exception to this rule which, amicus

submits, should be the primary threshold

Guestion in determining federal

jurisdiction to consider declaratory

claims:

It is of course conceivable

. that a statute might be

flagrantly and patently

violative of express

constitutional prohibitions in

every clause, sentence and

paragraph, and in whatever

manner and against whomever an

effort might be made to apply

it.

The Ninth Circuit below, in J-R

Distributors v. Eikenberry, 725 F.2d 482,

at 487, concluded that facial chal’enges

to state statutes need not involve

“substantial” overbreadth "in the area of

first amendment rights", citing its

decision in Stroianoff v. Montana, 695

F.2d 1214, 1218 (9th Cir. 1983), and

thereby distinguishing Broadrick v.

Oklahoma, 413 U.S. 601 (1973). The Ninth

Circuit, at 487, also distinguishes

Village of Hoffman Estates v. Flipside,

455 U.S. 489, 494 (1982), by concluding

that such overbreadth rules only apply to

conduct and not “pure speech".

Amicus submits that obscenity

statues are not "pure speech"

regulations, as are political or

religious dialog or verbal expression

cases. As held in People v. Souter, 178

Cal.Rptr. 111 (Ct. App. Cal. 1981),

\paying actors and actresses to engage in

explicit sex acts before a camera in

order to produce pornography is a

hte

violation of prostitution and pimping

statutes. The distribution of such

hard-core pornography is therefore

exploiting the work of prostitutes, and

is at least a mixture of conduct and

speech. Modern hard-core pornography

should not be elevated to the protected

class which political, racial, and

religious expression deserves. In the

obscenity law area, the rule of

substantial overbreadth should apply, as

stated in Watson v. Buck, supra, and as

this Court stated in Hoffman Estates, 455

U.S., at 494-95. This Court then stated,

in Footnote 5, that:

5. A "facial" challenge,

in <his context, means a claim

that the law is “invalid in

toto--and therefore incapable

of any valid application."

The primary threshold question for

any court before whom a lawsuit has been ;

filed involves the inherent jurisdiction

to determine jurisdiction. In this

-12-

regard, whether the state statute being

attacked is new or existing, the federal

court should first determine whether it

meets the test of Watson v. Buck, 313

U.S., at 402 (1941).

A review of the challenged statute

by this rule, to determine whether it is

totally unconstitutional under any

circumstances or at least incapable of

constitutional application to the

complaining parties or under the

circumstances alleged, would involve the

federal courts only in those situations

where a state law is so vague or

overbroad that it has no meaning

whatsoever or encompasses clearly

protected conducted or speech. If the

statute under consideration is not so

totally repugnant to constitutional

guarantees that it could not be narrowly

construed by the state courts, then the

federal courts should leave to the state,

ekte

courts the determination of the validity

and application of such statutes. In

this instance the federal courts could

best be guided by the abstention

principles of Railroad Commission v.

Pullman, 312 U.S. 496 (1941), if it is a

new statute, and by the principles of

Dombrowski v. Pfister, 380 U.S. 479

(1965), and Steffel v. Thompson, 415 U.S.

452 (1974), if it is an existing statute.

If the federal court is not faced with

such a totally invalid statute, it should

determine that it has no jurisdiction to

review such a state law and immediately

dismiss the case for failure to state a

claim under either the Declaratory

Judgment Act or the Civil Rights Act.

Fenner v. Boykin, 271 U.S. 240, at 244

(1926). See also: Vicory v. Walton, 721

F.2d 1062, at 1065-66 (6th Cir. 1983),

cert. denied, _U.S. __—,_ 53 L.W. 3237,

No. 83-2111 (Oct. 1, 1984).

eSiic

In the obscenity case now before

this Court, the new Washington statute

could not be said to be “incapable” of a

narrowing construction, either as it

defined "prurient" or as it provided for

penalties. Obscenity laws have been

perhaps the most often construed and

interpreted of all statutes. The role of

this Court in defining the basic "test"

for both federal and state courts has

resulted in a response by the courts to

construe old statutes in light of the

latest pronouncements. See: Kingsley

Pictures v. Regents, 360 U.S. 684, at 688

(1959); Mishkin v. New York, 383 U.S.

502, at 507-08, 510-11 (1966); U.S. v. 37

Photographs, 402 U.S. 363 (1971); Miller

v. California, 413 U.S. 15, at 25 (1973);

Ward v. Illinois, 431 U.S. 767, at 772-73

(1977); and New York v. Ferber, U.S.

__, 73 L.Ed.2d 1113 (1982).

ofGe

Many sf te courts have a history and

willingness to interpret state laws to

conform with case law, and in these

states the federal courts cannot say that

narrowing constructions. are not possible

——or that state declaratory or criminal

actions cannot adequately protect

constitutional rights. See: State of

Washington v. J-R Distributors, 512 P.2d

1049 (Sup.Ct.Wash. 1973) (construing

obscenity statute); State of Arizona v.

Bartanen, 591 P.2d 546, at 550-52

(Sup.Ct.Ariz. 1979) (defining

"prurient"); State of Arizona v.

Book-Cellar, 679 P.2d 548 (Ct.App.Ariz.

1984) (construing and upholding obscenity

nuisance statute); State of Ohio v.

Burgun, 56 Ohio St.2d 354, 384 N.Ed.2d

255 (Sup.Ct.Ohio 1978) (construing

criminal obscenity statute), approved and

followed in Sovereign News v. Falke, 674

F.2d 484 (6th Cir. 1982), cert. denied,

ite

74 L.Ed.2d 120 (1982), and in Turoso v.

Cleveland Municipal Court, 531 F.Supp. °

829 (N.D. Ohio 1980), aff'd., 674 F.2d

486 (6th Cir. 1982), cert. denied, 74

L.Ed.2d 145 (1982); State of Ohio, ex

rel. Ewing v. "Without a Stitch", 37 Ohio

St.2d 92, 307 N.E.2d 911 (Sup.Ct. Ohio

1974) (construing obscenity nuisance

statute), affirmed sub nom Art Theatre

Guild v. Ewing, 421 U.S. 923 (1975) (by

dismissal f.w.o.s.f.q.); State of Idaho,

ex rel. Kidwell v. U.S. Marketing, 631

P.2d 622 (Sup.Ct. Idaho 1981) (upholding

obscenity nuisance statute and closure

remedy), jurisdiction noted, 454 U.S.

1140 (Jan. 11, 1982), appeal dismissed by

Appellant- U.S. Marketing over

State-Appellee's objection, 455 U.S. 1009

(March 10, 1982); Chateau X v. North

Carolina, 250 S.E.2d 603, remanded at 445

U.S. 947, reaffirmed at 275 S.E.2d 443

(Sup.Ct. N.C. 1981) (upholding obscenity

she

nuisance statute), approved and followed

in Fehlhaber v. North Carolina, 675 F.2d

1365 (4th Cir. 1982); People of Michigan

v. Neumayer, 275 N.W.2d 230 (Sup.Ct.

Mich. 1979) (construing criminal

obscenity statute); First Amendment

Foundation v. State of Florida, 364 So.2d

450 (Sup.Ct. Fla. 1978) (construing

criminal obscenity statute).

Therefore, the Ninth Circuit's

decision that the federal court has

jurisdiction simply because the plaintiff

chose that forum, and struck the entire

statute and is willing to enjoin all law

enforcement in the state because the

legislature included "lustful" as one of

the adjectives for prurient, is

unconscionable and unreasonable as an

intrusion into state powers and judicial

functions. Especially is this so since

the adjective "lustful" was given to

obscenity law by this Court in Roth v.

-18-

United States, 354 U.S. 476, at 487,

fn.20 (1957), and this Court has

specifically approved "erotic" and other

"attractive" descriptions of the concept

of prurience. See: Ginzburg v. United

States, 383 U.S. 463, at 470 (1966);

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

508-09 (1966); Miller v. California, 413

U.S. 15, at 18, fn.2 (1973); Hamling v.

United States, 418 U.S. 87, at 127-31

(1974); Pinkus v. United States, 436 U.S.

293, at 301-03 (1978). See also: Mutual

Film Corp. v. Industrial Com., 236 U.S.

231, at 242 (1915), cited in footnote 20

of Roth, supra at 487.

The Ninth Circuit not only should

not have concluded that the law was

totally invalid, but its ruling on

prurient was directly contrary to

historical authority on the concept of

prurience. Had it followed the Watson v.

Buck test, it would have had no choice

-19-

but to find a lack of federal

jurisdiction to review the Washington

statute. Amicus submits that therein

lies the error in the ruling under

review.

Proposition of Law Number II: ;

Federal Courts Should Abstain

From Exercising Jurisdiction

Over Declaratory Or Injunction

Claims Unless It Is First

Pleaded And Proved That State

Procedures Are snedcequste To

Provide Due Process Or That

There Is Bad Faith Or

Harassment.

Assuming that a federal court finds

that it is faced with a challenge against

a statute which meets the test of Watson

v. Buck, supra, the court's next

determination should be whether

declaratory relief is appropriate or

whether the federal court should abstain

from entertaining a declaratory action.

In this regard, the federal court should

look to the procedures for testing state

-20-

statutes which are available in the state

court system, including the availability

of a state decla.atory judgment actin as

well as the existence of prompt and valid

procedures for testing conduct under

these statutes in criminal or other civil

proceedings. Allen v. McCurry, 449 U.S.

90, at 100-01 (1980). If state

procedures are inadequate to provide due

process to the federal plaintiffs, the

federal court will then find itself in a

position of being the only forum capable

of determining the validity of the

statute and issuing a declaratory

judgment thereon. If the state

procedures, civilly or criminally, are

adequate and available to the federal

plaintiff, the federal court should then

look to see whether there is evidence of

bad faith or harassment on the part of

the prosecution or law enforcement

officers. If it is evident that the

-21-

federal plaintiffs will not be dealt with

in good faith by the local agencies, as

in Dombrowski, supra, then the court is

again faced with a situation where it

must step in to protect the federal

plaintiff. If the federal court does not

find that state procedures are

inadequate, or that if adequate would be

enforced in bad faith, the court should

abstain and dismiss the action. This

would be consistent with this court's

discussion in Younger v. Harris, 401 U.S.

37, at 46-49 (1971), stating that facing

a good faith prosecution or the existence

sf a chilling effect on First Amendment

rights, even under an invalid law, is not

sufficient reason for the application of

the substantial power of federal

jurisdiction.

Although the Court in Steffel,

supra, rejected the stricter Younger

rules for declaratory actions where no

=22-

state case was pending, and held that

irreparable harm need not be shown, the

reasoning of Steffel is no longer

applicable to modern federal-state

litigation and this Court should return

to the rule of Railroad Com. v. Pullman,

supra, especially where a new state law

is challenged.

Where state criminal or civil ~—

proceedings are pending, or commenced

before proceedings of substance are

reached in the federal court, there are

strict burdens which must be met before a

federal court can consider either

injunctive or declaratory relief in

reviewing a state statute. Younger v.

Harris, 401 U.S. 37, at 46 (1971),

Samuels v. Mackell, 401 U.S. 66, at 73

(1971), Hicks v. Miranda, 422 U.S. 332,

at 349 (1975). Where there is no state

criminal or civil action pending, but is

threatened or at least likely, federal

=23<

intervention might be permissible to

consider declaratory relief, but the

injunctive relief would still require

satisfaction of equitable principles,

extraordinary circumstances, and

deference to federalism. Steffel v.

Thompson, 415 U.S. 452, at 468-69, 475

(1974), Zwickler v. Koota, 389 U.S. 241,

at 254 (1967), Douglas v. City of

Jeannette, 319 U.S. 157, at 162-64

(1943). Although Steffel was decided at

a time when the Court, at 462, stated

that considerations of federalism have

little vitality when no state proceeding

is pending, such a situation no longer

exists. Steffel discusses, at 465-68,

the "storm of controversy" between

federal and state jurisdiction which led

to the establishment of the three judge

district court system and the enactment

of the Declaratory Judgment Act. In

1976, however, the three judge court

=2he

provision was repealed and a single

federal judge was again empowered to

enjoin the enforcement of state law.

This development was obviously undertaken

because of the strong statements in favor

of abstention and respect for the state

court system which had developed in the

long line of abstention cases where this

Court has stated that federal courts

should not be the primary arbitors of the

language or application of state laws.

The continuing vitality of Younger v.

Harris, supra, Huffman v. Pursue, 420

U.S. 592 (1975), and Railroad Commission

v. Pullman, supra, should have

safeguarded the state's rights to enact

and enforce statutes and ordinances.

Even though this Court has reaffirmed the

principles of federalism and abstention

in such recent cases as Moore v. Sims,

422 U.S. 415 (1979), Allen v. McCurry,

449 U.S. 90 (1980), and Parratt v.

-25-

Taylor, 451 U.S. 527 (1981), and has

attempted to restrict and clarify the

application of the Civil Rights Statute

under Section 1983, these principles are

now widely ignored by the lower federal

courts. The U.S. Court of Appeals for

the Ninth Circuit, in the opinion now

under consideration, J-R Distributors,

supra at 486-88, now holds that facial

attacks on any state statute involving

First Amendment expression may be brought

in federal court even though the

overbreadth is not substantial, and that

abstention is the exception and is not

preferred.

It is now common to see federal

courts accept jurisdiction to review

state statutes, especially newly enacted

ones, before they may be enforced in

state courts. The federal courts are not

limiting themselves to entertaining

declaratory judgment claims, but are

-26-

regularly issuing injunctions against the

enforcement of new or existing statutes

pending the federal litigation. This

situation causes delay of several years

before such state laws are even available

for interpretation in the state courts.

See for example Goldstein v. Allain, 568

F.Supp. 1377 (N.D. Miss. 1983), Community

Television of Utah v. Roy City, 555

F.Supp. 1164 (D. Utah 1982), Red Bluff

Drive-In v. Vance, 648 F.2d 1079 (5th

Cir. 1981), Penthouse v. McAuliffe, 610

F.2d 1353 (5th Cir. 1980), Sovereign News

Co. v. Falke, 448 F.Supp. 306 (N.D. Ohio

E.D. 1977), rew'd., 674 F.2d 484 (6th

Cir. 1982).

This Court has contributed to the

perception that abstention is not

required, in sucn cases as: Spokane

Arcades v. Brockett, 631 F.2d 135 (9th

Cir. 1980), affirmed summarily at 454

U.S. 1022 (1981) and Universal Amusement

-27-

v. Vance, 587 F.2d 159 (5th Cir. 1978),

affirmed on the merits at 455 U.S. 308

(1980). Proper deference can only be

shown to the state court systems if new

criteria are announced to guide federal

courts in (1) determing whether

jurisdiction lies, (2) whether the court

should exercise such jurisdiction over

the declaratory judgment claims, and (3)

over the injunction claims and attorneys

fees request.

Proposition of Law Number III:

Even Where Declaratory Relief

Is Appropriate, Federal Courts

Must Tae Consider injunctive

Claims Separately And

Injunction Should Issue Only

Where There 1s Evidence That

The Federal Declaratory Order

Will Be Llgnored in Bad Faith.

Although the federal courts, in

determining whether to entertain the

lawsuit challenging a state statute,

should deal with the threshold questions

of jurisdiction as invoked by the

-28-

presence of a totally invalid statute as

well as the lack of an adequate remedy in

state court, the federal courts should

also refuse to entertain injunction

claims under 42 U.S.C., Section 1983,

until after the declaratory relief has

been considered and determined. As a

general rule, the federal courts should

at most issue a declaratory judgment

where the circumstances require, and only

issue an injunction if there has been a

deprivation of civil rights shown by past

bad faith conduct or a need to issue an

injunctive order to protect the integrity

of the federal declaratory order. If the

federal court is not shown that the

declaratory judgment will be ignored in

bad faith by state officials, no

injunction should be considered.

Furthermore, an award of attorney fees

should only be assessed against state

officials where the challenge to the

o29-

statute is shown to be required and

justifies an injunction under the civil

rights act for an actual deprivation of

the federal plaintiff's civil rights.

In Fenner v. Boykin, 271 U.S. 240,

at 243-44 (1926), the Court held that,

even in the absence of a pending state

prosecution, a federal complaint must be

dismissed and injunctive relief denied

against possible or even threatened

future prosecutions unless there are

"extraordinary circumstances where the

danger of irreparable loss is both great

and immediate". In Huffman v. Pursue,

420 U.S., at 602-02, the Court explained

that this rule of Fenner was expanded in

Younger v. Harris, 401 U.S., at 46, and

pointed out that extraordinary

circumstances would be found where facts

are pleaded and proved to show the type

of bad faith and harassment by the state

which was present in Dombrowski v.

-30-

Pfister, 380 U.S. 479 (1965). Huffman,

at 602, also noted that federal

intervention might also be justified if

the statute meets the Watson v. Buck test

of being "flagrantly and patently

violative of express constitutional

prohibitions in every clause, sentence

and paragraph, and in whatever manner and

against whomever an effort might be made

to apply it". However, the Court

concluded that "we unequivocally held

that facial invalidity of a statute is

not itself an exceptional circumstance

justifying federal interference with

state criminal proceedings". These rules

should apply whether prosecutions are

pending, as in Younger, or merely

threatened, as in Fenner.

Fenner, supra at 244, stated that an

"intolerable condition would arise if,

whenever about to be charged with

violating a state law, one were permitted

-3]-

freely to contest its validity by an

original proceeding in some Federal

court". Parratt v. Taylor, 451 U.S. 527,

542-44 (1981), held that in order to

state a claim under Section 1983, a

plaintiff must show that available state

procedures are not even adequate to

compensate a suffered deprivation. See

also: Rutledge v. Arizona Board of

Regents, 660 F.2d 1345, 1352 (9th Cir.

1981). In Vicory v. Walton, 721 F.2d

1062, at 1065-66 (6th Cir. 1983), cert.

denied, U.S. __, 53 L.W. 3237, No.

83-2111 (Oct. 1, 1984), the Court stated

that:

Section 1983 was not meant

to supply an exclusive federal

remedy for every oP wrong

committed by state officials.

Rather, the statute is a remedy

for only those wrongs which

offend the Constitution's

prohibition against property

deprivations without procedural

due process. Thus we hold that

in section 1983 damage suits

claiming the deprivation of

property interest without

=32-

procedural due process of law,

the plaintiff must plead and

prove that state remedies for

redressing the wrong are

inadequate. In a procedural

due process case under section

1983, the plaintiff must attack

the state's corrective

procedure as well as the

substantive wrong. In the

instant case the plaintiff has

neither alleged nor shown any

significant deficiency in the

state's remedies.

In Allen v. McCurry, 449 U.S. 90, at

100-01 (1980), this Court set out three

circumstances for federal remedies under

Section 1983; (1) state law is facially

and totally unconstitutional, (2) state

procedural law is inadequate to allow

full litigation of a constitutional

claim, and (3) where the procedural law

is adequate in theory but inadequate in

practice. "In short, the federal courts

could step in where the state courts were

unable or unwilling to protect federal

rights."

~ =

The policy expressed in Steffel also

recognized that the intrusion of

injunctions should be imposed only to

prevent manifest injustice and in

necessary aid of the federal court's

jurisdiction. A federal court should not

enaesteee a prayer for injunction unless

bad faith is evident, especially where

declaratory relief would suffice to

protect the rights of the plaintiff.

Only where the court is shown that the

State would disregard the declaratory

judgment or retaliate against the

plaintiff should an injunction issue. As

stated in McCarthy v. Briscoe, 553 F.2d

1005, at 1007 (5th Cir. 1977):

This Court presumes that Texas

will not defy the holding of

unconstitutionality in the

absence of an injunction.

~"e

Proposition of Law Number IV:

The Concept Of Prurient Appeal

Ts Not Limited To Appeal To A

"Shameful And Morbid” Sexual

Interest And Properly Includes

The Commercial Appeal To

Erotic, Lustrul, And Otherwise

Attractive, As Well As

Repulsive, Sexual interests.

The new Washington statute defined

prurient as “that which incites

lasciviousness or lust". This is a

Wholly proper definition of the concept

of prurience and is consistent with this

Court's use of the term and the great

weight of authority. The Ninth Circuit

was in error in concluding, in J-R

Distributors, 725 F.2d, at 491, that the

case law developed since 1957 mandates

that only "shameful and morbid" can be

used to describe a prurient interest.

The Court of Appeals states, at 491:

We agree with these

decisions and reaffirm that,

under the first prong of the

Miller test, a "prurient

interest" is "a shameful or

morbid interest in nudity, sex

-35-

or excretion." By including

"lust" in its definition of

"prurient," the Washington

state legislature has clearly

exceeded the established--

though sometimes blurred--

boundries drawn by the Supreme

Court to distinguish protected

first amendment expression from

that which is obscene.

The Court based this conclusion on a

restrictive reading of footnote 20 of

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

487 (1957) and of Red Bluff Drive-In v.

Vance, 648 F.2d 1020, 1026 (5th Cir.

1981); U.S. v. “Language of Love", 432

F.2d 705, 711 (2d Cir. 1970), cert.

denied, 403 U.S. 925 (1971); and

Goldstein v. Allain, 568 F.Supp. 1377

(N.D. Miss. 1983). The Court of Appeals

also found that this Court, in referring

to the Medel Penal Code definition of

“obscenity” in footnote 2 of Miller,

supra at 18, "has replaced the

definitions offered in Roth" and was

imposing "shameful or morbid" as the only

-36-

adjectival descriptions of the term

"prurient". This is an erroneous and

unwarranted conclusion and is directly

contrary to the language of this Court's

opinions and the historical development

of the concept of "prurience". This

Court has often rejected limiting

prurience to only "shameful and morbid"

interests. Even the Model Penal Code did ’

not consider the term so limited. The

term as defined in the Washington (and

Arizona and Mississippi) statute cannot

be said to be unconstitutionally and

substantially overbroad and this Court

should not foreclose the State's right to

develop this concept of prurience within

historical pareneters. Indeed, footnote

2 of Miller refers to Roth, at 487, as

providing the source of the "specific

judicial meaning" of obscene material.

The Model Penal Code itself recognized

the erotic quality of obscenity, and its

aSPe

Commentaries explain this in greater

depth. Indeed, Miller's footnote 2 says

the word pornography "now means... a

portrayal of erotic behavior designed to

cause sexual excitement".

Confusing the offensiveness of

pornography with prurience ignores the

reason that Miller provided a three part

test. Prurience was retained as a way to

require that sexual conduct be exploited

for its commercial value rather than its

artistic or scientific uses. This is

recognized in the cases dealing with

"pandering". It is the second prong of

Miller which safeguards mere nudity and

non-offensive material from prosecution,

not the first. Even though attractive

and erotic or lustful material may be

"prurient", the work must also present

hard-core sexual conduct in a "patently

offensive way". This prong prevents the

type of suppression feared by the Court

-38-

of Appeals on pages 490-92 of the opinion

below.

It was in footnote 20 of Roth v.

U.S., supra at 487, that the Court first

defined in its own words that appeal to

prurient interest meant "having a

tendency to excite lustful thoughts”.

[Emphasis added.] This remains to this

day the only direct and isolated

definition ever given by this Court. All

other references to prurient interest and

what constitutes an illegal appeal to

prurience are contextual examples.

Together these references by this Court

to the concept of prurience serve to

guide the courts and juries in finding

obscenity, and have never mandated a

singular route to such determination.

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

502, at 508 (1966), Hamling v. United ~»

States, 418 U.S. 87, at 127-29 (1974),

and Pinkus v. United States, 436 U.S.

-39-

293, at 301-03 (1978), this Court

affirmed that when materials are intended

to stimulate a specific deviant group or

a specific deviant sexual interest, then

the jury can decide whether the average

person would find the appeal of the

matter to be to the "general" prurient

interest or the deviant prurient

interest.

In Mutual Film Corp. v. Industrial

Com., 236 U.S. 230, at 242 (1915), cited

with approval in footnote 20 of Roth v.

U.S., supra, the general observation was

made about the attraction of pornography

to normal persons:

They take their attraction from

the general interest, eager and

wholesome it may be, in their

subjects, but a prurient

interest may be excited and

appealed to.

This Court: later characterized this

trait in Ginzburg v. United States, 383

U.S. 463, at 471 (1966), as "the

-40-

widespread weakness for titillation by

pornography".

This Court has used various

descriptive words to illustrate what

prurience may mean. Material can be

prurient when it either attracts or

repulses, as stated in Mishkin at 508.

Attractively erotic material, even to the

average person, has been held obscene.

Ginzburg, supra; Hamling, supra. See

also Penthouse v. McAuliffe, 610 F.2d

1353 (5th Cir. 1980), and Miller v.

United States, 431 F.2d 655, 658 (9th

Cir. 1970). Bizarre material, repulsive

to the average person, has also been

found obscene. Mishkin, supra; Ward v.

Illinois, supra.

This Court used the words "lewd" and

"lascivious" in Roth, footnote 20, and

also referred to the Model Penal Code's

use of “shameful or morbid". In another

case which sought to separate protected

-41-

sexual expression for political purposes

from the pornographic prurience of

obscenity, Cohen v. California, 403 U.S.

15, at 20 (1971), said that:

{[T]o prohibit obscene

expression, such expression

must be, in some significant

way, erotic.

Prurient appeal is properly a

synthesis of these adjectives to describe

an interest in sex for its own sake, for

commercial gain. See: Schauer, The Law

of Obscenity, at 96-102 (D.C.: BNA,

1976); Model Penal Code, Commentaries,

Part II, Article 251.4, at 488-94

(A.L.I., 1980).

It is important to note that the Bar

Association's Model Penal Code also

recognized the "erotic" nature of

prurient appeal and did not preclude this

recognition in using the adjectives

"shameful and morbid" in its Draft. As

~42-

stated in the Model Penal Code

Commentaries, supra at 491-92:

Prurient interest involves an

exacerbated, morbid, or

perverted interest growing out

of the conflict between the

universal sexual drive of the

individual and the equally

universal social controls of

sexual activity. The Model

Code provision rests on the

proposition that society may

legitimately seek to deter the

deliberate stimulation and

commercial exploitation of

emotional tensions arising from

this conflict.

x ~ *

The Model Code definition

follows the great weight of

prior authority in restricting

obscenity to the erotic. This

limitation is imposed by

requiring that the prurient

interest appealed to concern

sex, nudity, or excretion.

[Emphasis added. |!

One of the best examples of this

mixture of "tendency to arouse lustful

thoughts" and the appeal to a "shameful

or morbid interest" is set out in State

v. Bartanen, 591 P.2d 546, at 550-52

(Supreme Court, Arizona, In Banc, 1979).

-43-

The trial court charged the jury: "The

term appeal to the prurient interest

means to excite lustful thoughts, a

shameful or morbid interest in sex or

nudity, arouse sexual desires or sexually

impure thoughts, inclined to or disposed

to lewdness, having lustful ideas or

desires."" Id. at 550. The Arizona

Supreme Court upheld and approved this

definition as a synthesis of the "appeal"

and the "tendency" functions of

prurience. As stated by the Court, at

552:

The trial court herein

used both the so-called

"appeal" approach tc obscenity,

that is, does the material

appeal to a morbid, shameful,

disgusting, unhealthy,

. unwholesome, degrading interest

in sex, as well as a “tendency”

of the material to excite

"lustful ideas or desires."

We believe the trial court

correctly instructed the jury.

Such a concept has long been the law

of Ohio, and often employed by the trial

~44-

courts. See: Youngstown v. DeLoreto, 19

Ohio.App.2d 267 (Ct.App.Ohio 1969).

However, as pointed out in Mishkin,

supra at 508; Hamling, supra at 128-30;

and Pinkus, supra at 301-03, it is

proper, when the evidence calls for it,

to allow the jury to measure the material

"by its appeal to the prurient interest

not only of the average person but also

of a clearly defined deviant group”.

Hamling, supra at 128.

In Hamling, supra at 128, this Court

noted that: "Petitioners appear to argue

that if some of the material appeals to

the prurient interest of sexual deviants

while other parts appeal to the prurient

interest of the average person, a general

finding that the material appeals to a

prurient interest in sex is somehow

precluded."" The Court relied on Mishkin

in rejecting this contention, and stated

in Hamling, supra at 129:

-45-

The District Court's

instruction was consistent with

this statement in Mishkin. The

jury was instructed that it

must find that the materials as

a whole appealed generally to a

prurient interest in sex. In

making that determination, the

jury was properly instructed

that it should measure the

prurient appeal of the

materials as to all groups.

It is important to remember that

this Court did not define obscenity so

that the jury was to decide only whether

the matter appealed to the prurient

interest of the average person applying

contemporary community standards, but

rather that the jury determine whether

the average person, if the average person

applied those standards, would find the

appeal to be to a prurient interest. The

question is whether the appeal of the

material would be to a generally erotic

or shameful interest in sex, whether that

interest was that of an average person or

that of a deviant class. See: State v.

-46-

Tidvman, 568 P.2d 666, 674 (Ct. App. Or.

1977).

This subtle distinction is not a

harmless one and is important. If a

court were to charge a jury that they

must find the matter obscene, if at all,

only when it appeals or excites a

shameful or morbid interest in an average

person or in the jury, then confusion

would result and the whole purpose of

obscenity law would be thwarted.

The legal error in this reasoning is

clearly set out in Mishkin v. New York,

383 U.S. 502, at 508 (1966), whMte this

Court explained:

Indeed, appellant's sole

contention regarding the nature

of the material is that some of

the books involved in this

prosecution, those depicting

various deviant sexual

practices, such as

flagellation, fetishism, and

lesbianism, do not satisfy the

prurient-appeal requirement

because they do not appeal to a

prurient interest of the

‘average person" in sex, that

o47-

"instead of stimulating the

erotic, they disgust and

sicken." We reject this

argument as being founded on an

unrealistic interpretation of

the prurient-appeal

requirement.

Any discussion of the meaning of

prurient appeal must also consider the

correlative concept of pandering.

Pandering is a term of art in obscenity

law which relates to exploiting the

prurient nature of material for

commercial purposes rather than

emphasizing some legitimate interest in

sex, such as scientific, medical, or

education interests in sexual subject

matter. This has application in the

"Miller Test" in determining the "serious

value" of the material, but requires the

finding of a commercial appeal to the

prurient qualities of the material. This

Court's development of the pandering

concept illustrates what is meant by the

all important ingredient of prurience,

-48-

since that is the heart of pandering and

the true concept of obscenity regulation.

Motivation is very much a part of

obscenity law, as evidenced by this

Court's holding in Ginzburg v. United

States, supra, that sexual matter which

may not be obscene per se in other

contexts can be the subject of a

conviction if it was pandered for

prurient interest exploitation. The

development of the pandering law also

bears on how “prurient” is to be defined

and used, and illustrates how an appeal

to lust and erotic curiosity form an

integral part of prurience, rather than

solely a limitation to the "shameful and

morbid".

The development of this concept

continued in Splawn v. California, 43i

U.S. 595, at 598 (1977):

There is no doubt that as

a matter of First Amendment

obscenity law, evidence of

~49-

pandering to prurient interests

in the creation, promotion, or

dissemination of material is

relevant in determining whether

the material is obscene.

This is a short statement of the

principles applied in Ginzburg v. U.S.,

supra, 383 U.S., at 466, where the Court

stated that it was viewing the material

"against a background of commercial

exploitation of erotica solely for the

sake of their prurient appeal".

{Emphasis added.] At 467-68, Ginzburg

outlined the advertising and promotion

evidence and characterized the business

involved as:

[T]he sordid business of

pandering - "the business of

purveying textual or graphic

matter openly advertised to

appeal to the erotic interest

of their customers".

Pinkus v. U.S., supra, 436 U.S., at

303-04, made clear that no extensive

evidence need be adduced before an

instruction is warranted to assist the

-50-

Pt a ott Ne PON ee a

jury in determining whether the material

was distributed for its prurient appeal

or for its serious value. "In essence,

the Court has considered motivation

relevant to the ultimate evaluation if

the prosecution offers evidence of

motivation.” Id., at 303.

In a practical application of this

principle, the Supreme Court of Indiana

upheld a pandering instruction, taken

from Splawn v. California, 431 U.S., at

597-98, upon the evidence that the

materials were sold from an "adult"

bookstore, clearly marked as such, and

dealing openly with sexual devices,

books, and films of a hard-core

pornographic nature. Sedelbauer v.

State, 428 N.E.2d 206, at 207-08 (Supreme

Court of Indiana, 1981), cert. denied,

455 U.S. 1035 (March 22, 1982).

The jury charge approved by the

Court in Splawn, supra at 597-98,

efi

indicates the range of adjectives

properly used to describe prurience. The

trial court charged the jury:

If you conclude that the

purveyor's sole emphasis is in

the sexually provocative aspect

of the publication, that fact

can justify the conclusion that

the matter is utterly without

redeeming social importance.

[Emphasis added. ]

This Court in Splawn, at 598, also

refers to and quotes from Ginzburg, supra

at 470, where the Court said:

The deliberate representation

of petitioners’ publications as

erotically arousing, for

example, stimulated the reader

to accept them as prurient; he

looks for titillation, not for

saving intellectual content.

[Emphasis added. ]

This Court recognized the greater

latitude state courts have for forming

instructions and held that Ginzburg and

Hamling "clearly show" that the charge

violated no First or Fourteenth Amendment

rights. Splawn, supra at 599.

-52-

Many other courts have also

discussed the prurience concept and its.

definitional parameters, and have not

limited them in a constitutional sense to

the "shameful and morbid" restrictions

adopted by J-R Distributors, supra, and

Goldstein v. Allain, supra. In fact one

New York court noted that "shameful and

morbid" was deleted from the New York

statute in 1974 and this was in keeping

with a shift away from a restrictive

reading of the Model Penal Code by the

Supreme Court. The court reasoned that

the Roth reference was to the "case law

developed to date", up to 1957, and that

the Court's own definition of "tendency

to excite lustful thoughts" was an

indication of a new direction. People v.

Ciampa, 394 N.Y.S.2d 727, 732 (Sup. Ct.,

App. Div., 1977).

Following is a list of cases dealing

with the various adjectives describing

-53-

"prurient". The only common thread is

the realization that prurience is not a

precise nor limited concept and varies

widely. These cases serve to prove that

the Washington, Arizona, Mississippi, and

other broader definitions of "prurient"

accept the parameters of the terms as

used by this Court.

Federal cases: Flying Eagle

Publications v. United States, 273 F.2d

799, 803 (lst Cir. 1960); U.S. v.

Darnell, 316 F.2d 813, 816 (2d Cir.

1963); U.S. v. Keller, 259 F.2d 54, 58

(3rd Cir. 1958); U.S. v. Central Magazine

Sales, 381 F.2d 821, 823 (4th Cir. 1976);

Interstate Circuit v. City of Dallas, 366

F.2d 590, 596 (5th Cir. 1966); U.S. v.

Battista, 646 F.2d 237, 245 (6th Cir.

1981); Luros v. U.S., 389 F.2d 200, 203

(8th Cir. 1968); Eastman Kodak v.

Hendricks, 262 F.2d 392, 397-98 (9th Cir.

1958); Childs v. State of Oregon, 431

-54-

F.2d 272, 275, 276 (9th Cir. 1970); U.S.

v. Pinkus, 551 F.2d 1155, 1159-60 (9th

Cir. 1977); U.S. v. One Reel of Film, 360

F.Supp. 1067, 1071-72 (D. Mass. 1973);

and U.S. v. 31 Photographs, 156 F.Supp

350 (S.D.N.Y. 1957). See also: Besig v.

U.S., 208 F.2d 142, at 145-46 (9th Cir.

1953) (not contradictory to say obscenity

"repels" and "seduces").

State cases: State v. LeWitt, 222

A.2d 579, 582 (Ct. App. Conn. 1966);

State v. Anonymous, 377 A.2d 1342, 1343

(Super. Ct. Conn. 1977); Spry v. State,

274 S.E.2d 2 (Ct. App. Ga. 1981) (statute

uses “shameful anc morbid", but

permissible for courts to add

instructions on "tendency to excite

lustful thoughts"); State v. Great

American Theatre, 608 P.2d 951, 952-59

(Sup. Ct. Kansas, 1980) (lengthy

discussion of history and breadth of

term); Little Store v. State, 453 A.2d

-55-

1215, 1216-17 (Ct. App. Md. 1983);

Commonwealth v. Mascolo, 375 N.E.2d 17,

26 (App. Ct. Mass, 1978); People v.

Ciampa, 394 N.Y.S.2d 727, 732 (Sup. Ct.,

App. Dept., 1977) ("tendency to excite

lasciviousness", and lasciviousness is

defined as “tending to arouse sexual

desire"); State v. Schwing, 328 N.E.2d

379, 382 (Sup. Ct. Ohio 1975) (prurient

must be erotic); State v. Tidyman, 568

P.2d 666, 674 (Ct. App. Or. 1977); State

v. Grabill, 579 P.2d 316, 320 (Ct. App.

Or. 1978); Commonwealth v. Rich, 437 A.2d

516, 519-20 (Com. Ct. Pa. 1981) (no need

to define prurient); State v. Barrett,

292 S.E.2d 590, 591-92 (Sup. Ct. S.C.

1982) (Prurient Interest “means a

shameful and morbid interest in nudity,

sex, or excretion and is reflective of an

arousal of lewd and lascivious desires

and thoughts."); State v. Little Art

Corp., 215 N.W.2d 853, 856 (Sup. Ct. Neb.

-56-

1974) (prurient includes "shameful and

morbid", "excite lustful thoughts",

"tending to excite lasciviousness", and

"presence or arousal of sexuai desire");

and Andrews v. State, 652 S.W.2d 370,

375-77 (Texas Ct. Cr. App. 1983).

Proposition of Law number V:

The Penalty Provisions Of The

Washington Statute Are Not

Unreasonable On Their Face And

Can Be Applied

Constitutionally.

The Ninth Circuit opinion below, at

493-96, makes a wholly hypothetical

assumption that the civil fines for

maincaining a moral nuisance can be or

would be used unconstitutionally. The

statute is clear in directing the equity

court to fashion a remedy only against a

defendant who knowingly violated the law,

and to consider wilful conduct and

"profits made by the defendant

attributable to the moral nuisance”.

atin

[Emphasis added.] First, the statute

does not specifically state that

legitimate profits are to be attached.

It clearly states that the court shall

consider profits attributed to the

nuisance. If there is any vagueness

present here, which amicus submits there

is not in light of the broad powers given

equity and civil courts (such as in all

other civil tort and contempt cases),

then the state courts will deal with them

“in specific fact situations. These state

rulings will then be examined by

appellate and federal courts.

The function of any penalty is both

punishment and deterrence. As was

recognized by Judge Hardy of the District

Court of Arizona in the recent case of

Polykoff v. Collins (copy in Appendix),

substantial deterrence is entirely

proper. Judge Hardy upheld the criminal

fines of Arizona, which reach up to One

-58-

Million Dollars for corporations, because

there was no evidence that state judges

have, or would ever. exact unreasonable

fines in circumstances where it would be

unfair in relation to the offense. The

Arizona Supreme Court has provided the

state judiciary with guidelines for fines

by adopting portions of the ABA's

Standards for Criminal Justice Relating

to Sentencing Alternatives and

Procedures, Sections 2.7(b) and (c). In

re Collins, 108 Ariz. Rpts. 310, at

312-13, 497 P.2d 523 (1972). These

standards provide that a court "should

consider" financial resources as well as

deterrence.

These criteria allow a judge to levy

a fir: that will be sufficient to deter

future criminal activity, but will not

unfairly destroy a defendant financially.

There is no reason to assume that

Washington's judiciary cannot be trusted

-59-

to follow these or similarly fair

guidelines.

The state courts can also conduct

fact finding sentencing hearings to

determine the proper penalty, as is done

in federal courts under 18 U.S.C. 3577.

See: U.S. v. Fatico, 441 F.Supp. 1285

(E.D.N.Y. 1977) ("Fatico I"), rev'd, 579

F.2d 707 (2d Cir. 1978), on remand, 458

F.Supp. 388 (E.D. N.Y. 1978 ("Fatico

II"), aff'd 603 F.2d 1053 (2d Cir. 1979).

See also: U.S. v. Ammirato, 670 F.2d 552

(Sth Cir. 1982).

Finally, since this Court was

deprived of its stated desire to review

the one-year closure remedy for an

obscene nuisance which was upheld by the

Idaho Supreme Court, it should not now

allow the Ninth Circuit opinion to stand

as authority that equitable remedies are

unlawful because they are not pre-set by

the legislature. See State, ex rel.

-60-

Kidwell v. U.S. Marketing, 631 P.2d 622,

upon which jurisdiction was noted but the

appeal was dismissed by U.S. Marketing

over the State's objection, 454 U.S.

1140, 455 U.S. 1009. If total closure

for one year can be a lawful punishment

for past misconduct, and forfeitures of

unlimited properties and funds can be

assessed in tax, contempt, and

racketeering cases, then the Washington

civil penalty scheme is also entitled to

case-by-case application and review in

its own courts. It should not be

presumed invalid, for this also assumes

"bad faith" on the part of the Washington

judiciary. This is a grave blow to

federalism which this Court should not

tolerate.

ile

CONCLUSION

The federal courts should never have

entertained the Complaint in this case.

The new statute could not be found so

totally invalid that it could not be

applied constitutionally, and its

interpretation and application properly

belonged in state court. This Court must

fashion new and clear guidelines to

prevent federal courts from continuing to

act as "“super-legislatures”.

The state legislatures and court

systems are entitled to an honest

deference. Unless a challenged law meets

the test of Watson v. Buck, supra, the

federal courts should be said to lack

subject matter jurisdiction to review

them, even when no pending case is begun

in state court. Indeed, Washington's

courts never got a chance to even review

the statutes. This was grossly unfair,

and unnecessary. The whole body of

-62-

obscenity and First Amendment cases

provide adequate guidelines for state

courts to follow and this Court should

let them do so.

Respectfully submitted,

Tom Collins

Maricopa County Attorney

Amicus Curiae

Sandor 0. Shuch

Deputy County Attorney

By: meagan

Attorney for Amicus Curiae

ia.

APPENDIX

Polykoff, et al. v. Collins,

___-*F.Supp. ___;»

No. CIV 84-1101

(D.Ariz. 1984)

(Filed July 11, 1984)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Louis Polykoff, IAS,

Inc., Charles Stuart,

Charles Clapp, Jess

Emery, David Fuehring,

Modernworld, Inc.,

Tony Dumbsky, Bill

Henderson, Elise White,

and Michael Kaplan,

Plaintiffs,

Vv.

Thomas E. Collins, in

his official capacity

as County Attorney

for Maricopa County,

Arizona,

No. CIV 84-1101

Defendant.

ue a a ee ee et ee

Invoking the Civil Rights Act, 42

U.S.C. §1983, plaintiffs Louis Polykoff,

IAS, Inc., Charles Stuart, Charles Clapp,

Jess Emery, David Fuehring, Modernworld,

Inc., Tony Dumbsky, Bill Henderson, Elise

White, and Michael Kaplan seek a

declaratory judgment and injunction

restraining defendant Thomas E. Collins,

in his official capacity as the Maricopa

County Attorney, from prosecuting them

for violations of section 13-3502 of the

A-l

Arizona Revised Statutes on the basis

that this statute abridge rights secured *

by the First and Fourteenth Amendments of

the United States Constitution. At the

close of the hearing for the plaintiffs'

application for preliminary injunction,

the parties stipulated that the Court's

findings of fact may be deemed conclusive

and that a trial on the merits would not

be necessary. The trial of this- action

on the merits, therefore, will be deemed

consolidated with the hearings for a

preliminary injunction pursuant to

Federal Rule of Civil Procedure 65(a)(2).

The foliowing memorandum opinion will

serve as the Court's findings of fact and

conclusions of law as required by Federal

Rule of Civil Procedure 52.

I. FACTS

The plaintiffs are corporations and

individuals who are either owners or

employees of stores that sell materials,

A-2

such as magazines or films, depicting

adults engaged in various sexual

activities. These stores are located in

Maricopa County. The defendant, as the

County Attorney, is charged with the duty

of prosecuting persons who violate the

state laws within Maricopa County.

Under the A.R.S. §13-3502, a person

who knowingly sells or offers to sell any

"obscene item" is guilty of a class 6

felony. An item is obscene as the term

is used in §13-3502 when:

(a) The average person,

applying contemporary state

standards would find that the time,

taken as a whole, appeals to the

prurient interest; and

(b) The item depicts or.

describes, in a patently offensive

way, sexual activity as that term is

described herein; and

lacks serious, literary, artistic,

political or scientific valte.

A.R.S. §13-3501.2. Under Arizona's

-sentencing statutes, an enterprise and an

individual guilt’ of a class 6 felony may

A-3

be punished by imposition of fines of up

_, to $1,000,000 and $150,000 respectively.

A.R.S. §13-804, 13-801.

The defendant has successfully

prosecuted a number of adult book store

owners for violations of §13-1302. Fines

of up to $7,500, all pursuant to plea

agreements, have been imposed by the

Maricopa County Superior Court. The

defendant would prosecute the plaintiffs

if there were probable cause to believe

that they violated §13-3502.

Plaintiffs' complaint seeks, in

addition to injunctive relief, a judgment

declaring §13-3502 unconstitutional on

two grounds: first, the statute's use of

the term "prurient interest" to define

obscenity, as it has been interpreted by

the Arizona Supreme Court in State v.

Bartanen, 121 Ariz. 454, 591 P.2d 546,

cert. denied, 444 U.S. 884 (1979),

renders §13-3502 overbroad and, second,

A-4

the classification of violations of

§13-3502 as a class 6 felony, punishable

by fines of up to $1,000,000, is a prior

restraint upon the plaintiffs’ freedom of

speech.

II. JURISDICTION AND ABSTENTION

The jurisdiction of this Court is

based upon 28 U.S.C. §1343(a)(4), which

implements the Civil Rights Act.

Although the plaintiffs have not been

presecuted under §13-3554, the fact that

other owners of adult book stores have

been prosecuted is a sufficient threat of

prosecution to create the jurisdictional

predicate of an “actual controversy."

See Steffel v. Thompson, 415 U.S. 452,

459 (1974); cf. Ellis v. Dyson, 421 U.S.

426 (1975). Accordingly, the Court finds

that it has jurisdiction over this case.

The defendant first contends that

the Court should abstain from exercise of

its jurisdiction in favor of pending

A-5

state litigation concerning the same

— -= controversy. It is, however, a

"virtually unflagging obligation of the

federal courts to exercise the

jurisdiction given them." Colorado River

Water Conservation District v. United

States, 424 U.S. 800, 817 (1976).

Therefore, "[a]bstention from the

exercise of federal jurisdiction is the

exception, not the rule." Id. at 813.

There are three general categories of

abstention, none of which are applicable

to this case:

First, abstention is appropriate "in

cases presenting a federal constitutional

issue which might be mooted or presented

by a state co determination of

pertinent std’ aw. County of

Allegheny v. Frank Mashuda Co., 360 U.S.

185, 189 (1959). The defendant has not

suggested a construction §13-3502 that

would obviate the plaintiffs'

A-6

constitutional challenge. Section

13-3502, moreover, has been

authoritatively construed in its relevant

parts by the Arizona Supreme Court in

State v. Bartanen, 121 Ariz. 454.

Second, abstention is also

appropriate when the case presents

"difficult questions of state law bearing

on policy problems of substantial public

import whose importance transcends the

result in the case then at bar."

Colorado River Conserv. Dist., 424 U.S.

at 814. In this case, the Court is not

called upon to construe state law in view

of state policy. Rather, state law will

be considered in the context of a federal

constitutional challenge.

Finally, abstention is appropriate

when "federal jurisdiction has been

invoked for the purpose of restraining

state criminal proceedings, ... state

nuisance proceedings antecedent to a

A-7

criminal prosecution, which are directed

at obtaining closure of places exhibiting

obscene films, .. . or collection of

state taxes." Id. at 816 (citations

omitted). At this time there is no

pending state criminal prosecution or

state nuisance proceeding against the

plaintiffs.

In view of the above considerations,

defendant's bid for abstention appears to

be based merely upon a preference for

having the constitutionality of this

statute determined in state court. This

is not a legitimate reason for a federal

court to decline to exercise jurisdiction

and, therefore, the Court will deny the

plaintiffs' motion to dismiss. See,

e.g., J-R Distributors, Inc. v.

Eikenberry, 725 F.2d 482 (9th Cir. 1984);

Kit-Dal Cinema v. Village of Downers

Grove, Ill., 534 F.Supp. 81 (N.D.I11.

1981).

A-8

III. THE OVERBREADTH ISSUE

The plaintiffs first contend that

§13-3502 is facially overbroad insofar as

it outlaws expression protected by the

First Amendment and, therefore, must be

declared unconstitutional. Application

of the First Amendment overbreath

doctrine to bar all enforcement of a

statute is "strong medicine” and,

accordingly, has been applied "with

hesitation, and then only as a last

resort." New York v. Ferber, 458 U.S.

747, 769 (1982) (quoting Broadrick v.

Oklahoma, 413 U.S. 601, 613 (1973)).

Three requirements must be met before

§13-3502 may be declared invalid on its

face. First, the statute must bring

within its sweep expression protected by

the First Amendment. J-R Distributors,

Inc. v. Eikenberry, 725 F.2d 482, 486

(9th Cir. 1984); Wurtz v. Disley, 719

F.2d 1438, 1440 (9th Cir. 1983). Second,

A-9

the statute must not be readily subject

to a narrowing construction by the state

courts which might cure the

constitutional deficiency. See Ferber,

458 U.S. at 769 n. 24; Erznoznik v. City

Jacksonville, 422 U.S. 205, 216 (1975).

Third, the deterrent effect on legitimate

expression must be both real and

substantial. Erznoznik, 422 U.S. at 216;