Amicus Curiae Brief — Arcara v. Cloud Books, Inc.

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Text

In The DEC 30 1965

Supreme Court of the United States

OCTOBER TERM, 1985

85437 .

—— 3

THE PEOPLE OF THE STATE OF NEW YORK

ex rel. RICHARD J. ARCARA,

DISTRICT ATTORNEY OF ERIE COUNTY,

Petitioner,

vs.

CLOUD BOOKS, INC. d/b/a,

VILLAGE BOOK AND NEWS STORE,

CHARLES A. OTTAVIANO,

BLANCHE DUDLEY and

all other persons unknown claiming

any ownership, right, title or

imterest in the property affected

by this action,

Respondents

ON WRIT OF CERTIORARI

TO THE NEW YORK STATE COURT OF APPEALS

— = Ss= SS 2S =

. MICUS CURIAE BRIEF

OF THE CITY OF SANTA ANA, CALIFORMIA,

(N SUPPORT OF PLTITIONER

Edward (ooover

Sarte Ana City Attorne

~O Civic Center Plaza

Santa Ana, CA 9270

James ). Clancy

7055 La Tura Canyon Rd

Sun Valley. CA 9195?

Si8) 352-2069

Counse! for Amicus C urtae

...

—

i |

hte

—

—_

—

hedeed

-i-

SUBJECT INDEX

INTEREST OF AMICUS CURIAE CITY OF SANTA

GUPMARY 5 6 eee Eee 27I(A)

ARGUMENT

THE WEW YORK COURT OF APPEALS’ HOLDINGS:

(1) THAT THIS COURT'S TEST In

v. 0° 391 U.S. 367

(1968) IS APPLICABLE, AND (2) THAT,

UNDER THE O'BRIEN TEST, CLOSURE OF

| f+ PP PPTTTETILILIELILELILLLL TT 28

JUSTICE MOULZE'S OPINION, SPEAKING FOR THE

APPELLATE OIVISION, FOURTH DEPART-

Itt

“

nil ii i eel i ] He bl ! i

cel Hi : . i i f

Cc.

—— A

~iii-

A. WHERE “CLOSURE” IS IMPOSED AS AN "IN

REM" REMEDY, FOR THE PURPOSE OF

REFORMING THE REAL PROPERTY, RATHER

THAN AS AN “IN PERSONAM" REMEDY

AGAINST THE PERSON, NO FIRST

AMENDMENT PROBLEM IS PRESENTED.....-

B. AN EQUITY COURT HAS INHERENT POWER

TO ENJOIN THE EXHIBITION OF SPECIFIC

SEXUAL ACTS PERFORMED IN THE CONTEXT

OF COMMERCIAL EXPLOITATION OF

OBSCENITY, AS UNLAWFUL AND CONTRARY

TO PUBLIC POLICY, AND INDEPENDENT OF

THE OBSCENITY STATUTES. csscscsscsecs

CONCLUSION, cccccccccseseseccesesesesesese

TABLE OF AUTHORITIES CITED

CASES

Art Theater Guild, Inc. v. Ohio ex rel.

Ewing, 421 UsS- 923 (1975S), ccccccccsecs

Avenue Book Store v. City of Tallmage,

Ohio, 459 U.S. DOT gcccccccccseccesecces

Baker v. Burbank-Glendale-Pasadena-

Airport Authority, 39 Cal.3d 862

ae eS rT TTTrTrrrrrrr+rrrttTTee

Clemente v. State of California, 40 Cal.

34 yr > Perr rrrrrrrerTrrrrrrrrrrrrrrrrTe

Commonwealth v. Croatan Books, Inc., 323

S.E.2d PPPPTTTITITIrrrrr+er+es+reirrretee

Commonwealth v. Holmes, 17 Mass. 336,..«.+-.

Commonwealth v. Sharpless, 2 S&R(Penn.)

91, 7 Am.Dec. Gemeeeccecocoocececoeoceees

21,

25s

Edward Cooper, City Attorney of Santa Ana

v. Mitchell Brothers’ Santa Ana Theater

et al., 454 UcSe BO, ceccceeescesese 18, 24,

Dombrowski v. Pfister, 380 U.S. 479 (1965)

General Corporation v. State of Alabama

ex rel. Sweeton, 320 So.2d 668 (1975)

eeevreeeeeeee eee eee eeeeeeeeeeeeeeee 54, 56,

Gondeck v. Pan Am World Airways, 382 U.S.

Y- PEPEREEEEEEEEE LEE

Harris v. U.S- 315 Ae2da 569 (2/11/74), ee

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

(1975S) -eeeeeeeeeeeeeereseeeeeeseees 21, 51,

Metromedia, Inc. v. City of San Diego,

453 U-S- 490 (19B 1), ceeeeseeesesesesese 55,

Mugler ve. Kansas, 123 U.S- 205, ceccseeees 47,

Ohio ex rel. Ewing v. “Without A Stitch",

307 N.E.2d Dll, wees seeeeeeeeeeeeeseeee 50,

Ohio ex rel. Keating v. Motion Picture

Film Entitled “Vixen”, 27 Ohio St.2d 78

CTBT) pace cece reer eee eeeeeeeeeeee 61,

Ohio ex rel. Keating v. Motion Picture

Film Entitled "Vixen", 35 Ohio St.2d

215 (D/2ZG/T3) peececeeeeeseeseseeseeeees 61,

People ex rel. Busch, et al v.-.

Projection Room Theater, 17 Cal.3d 42

C1ID7TE) peeee eee rere ee eee ee eeeeeeeueeeee 23,

People ex rel. Hicks v. "“Sarong Gals", 42

Cal.App.3d 556 (10/18/74), Hrg- Den.

Cal.S.Ct. W2/ 11S Tay cece ceeeeeeseees 53, 59,

-Vv-

People ex rel. Sorenson v. Randolph, 99

Cal.App. 34 183 (C.A. Ist, Div. 1,

1173O/79) pcccccccccccccceceecceeceeeocs 58, 59

People ex rel. Van DeKamp v. American Art

Enterprises, 75 CalsApp.3d 523, +cseeees

James Phalen v. Commonwealth of Virginia,

12 L.Ed. 1030 (1850), cccccccccccccceces

Rex V- Curl, 2 Strange 789 (1727 ),ecccess

Sir Charles Sedley’s Case, 1 SID 168,....

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

Inc., 102 Idaho BS ia ccccccccccccececese

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

Ince, 454 U.S. 1140 (Probable

Jurisdiction NOCGd) , ccccccccccscccesese

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

Inc., 455 U.S. 1009 (Appeal Dismissed

on Motion of Appellant), sccsesscssseess

Trans-Lux Dist. Corp. v. Bd. of Regents,

248 N.Y¥.S.2d 857 (3/26/64) ,cccccecesess

United States v. O'Brien, 391 U.S. 367

(1968), ccccccscssess 28, 29, 31, 32, 33,

Vance v. Universal Amusement Co., Inc.,

445 U.S. 308 (1980), coccccccccccccececs

STATUTES, ORDINANCES, RULES

California Civil Code

93479, cccccccescssssesseesssesesssesese

93480, ccccecccesessesesscesessesssesese

$3496, ccccccccccccccccccccccecccccccees

40,

37,

20,

-vi-

Ohio Rev. Code (Red Light Abatement Stat.)

$3767.04, ceceeecereeessseeeeeeeseeesees

§ 3767.06, cecccscsesseeeesseeeeseeeseees

New York Public Health Law (Red Light

Abatement Statute), Article 23, Title 2,

§§ 2320-2332, 2, 29, 30, 31, 32, 54,

Santa Ana City Ordinance N.S. 1287,

(enacted T/A 19D/T6) pecceeeeeeeeeeereeeeeee

TEXTS, ETC.

47 Cal.Jur.3d at 21a, cesceeeseeeeeeeeseee

20 Columbia Law Review at 604,«sceseeeees

Joyce, Law of Nuisances, § 345,«++++eeeees

Wood, H.G., The Law of Nuisances,

§§ 23 & 24 at pp- 45-46, cece eeereeeeeee

§ 57, Pg. Tp eee eee eee eee eee eases eeeee

65, Pg. Be cece eee ee eee ee eeeeeeeeeeee

§ 743, Pg. DT2 yp cece ewer eeeeeeeeeeeeee

57,

In The

Supreme Court of the United States

OCTOBER TERM, 1985

85-437

THE PEOPLE OF THE STATE OF NEW YORK

ex rel. RICHARD J. ARCARA,

DISTRICT ATTORNEY OF ERIE COUNTY,

Petitioner,

vs.

CLOUD BOOKS, INC. d/b/a,

VILLAGE BOOK AND NEWS STORE,

CHARLES A. OTTAVIANO,

BLANCHE DUDLEY and

all other persons unknown claiming

any ownership, right, title or

imterest in the property affected

by this action,

Respondents.

=—ooollWwa@aaoeawKX—XS— See

ON WRIT OF CERTIORARI

TO THE NEW YORK STATE COURT OF APPEALS

AMICUS CURIAE BRIEF

OF THE CITY OF SANTA ANA, CALIFORNIA,

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

~~ CITY OF SANTA ANA

The “closure” issue, which the

Erie County District Attorney's

-2-

"Petition for Writ of Certiorari” has

framed, is presented to this Court in

the context of a procedural “pleading”

problem, and before the trial of the

lawsuit has taken place. In his

petition, two basic propositions of

law are urged. The first holds that

his verified complaint alleges suf-

ficient facts to establish the

existence of a continuing moral public

nuisance which, under New York case law

and Article 23, Title II of the Public

Health Law, commonly identified as a

Red Light Abatement Statute, would

authorize an equity court to award

equitable relief in the form of

closure of the premises. Those factual

allegations are:

(1) The defendant Cloud Books,

Inc., as the operator of the p -emises,

permitted and ratified conduct of third

parties on the premises which consti-

-3-

tuted the crime of public lewdness as

defined by state law (complaint at

paragraphs 9, 10, and 17);

(2) The normal criminal penal-

ties are ineffective and inadequate in

preventing or punishing the activities

which are described and do not afford

the requisite protectio.: to health and

safety of the public (complaint at

paragraphs 10 and 17); >

‘+) The common fame and general

reputation of such premises and build-

ing is that it is a place kept,

conducted, and maintained for the pur-

pose of lewdness (complaint at para-

graph 19);

(4) The common fame and general

reputation of the occupants thereof

and frequenters thereto is that of

individuals engaged in criminal con-

duct (complaint at paragraph 19); and

(5) That unless closed to such

og-

use, the defendants will continue “to

use, occupy, and maintain said build-

ing and premises, together with the

furniture, etc. . . for the purposes

herein complained of, and that they and

each of them will continue to allow,

permit, and encourage the maintenance

and continuance of said nuisance on

said premises, to the irreparable

damage to the people.*

The Erie County District Attorney's

second proposition of law holds that

the defendant Book Store operator's

mere denomination of the premises as

a book store does not evoke the First

Amendment provisions of che Federal

Constitution and immunize the premise”

from the equitable remedy of closure

of the premises as a moral public

nuisance.

During the 1961, 1982, and 1985

October Terms of Court, Amicus Curiae

-5-

has attempted, without success, to

place this same “closure” issue and the

Same two basic propositions of law

before this Court for resolution. The

Santa Ana City Attorney's petitions,

involving the operation of a theater in

Santa Ana, are substantially the ewivalent

of the petitions of the Erie County New

York District Attorney, regarding the

operations of the book store in Erie

County herein. See “Petition for Writ

of Certiorari* in People ex rel. Cooper,

City Attorney of the City of Santa Ana

. ter,

et al., October Term 1981, No. 81-271;

"Petition for Writ of Certiorari® in

A * . ™ “ — Pe a \ lel 23. ~

Theater, et al., October Term 1982,

NO. 82-345; “Petitioner's Reply and

Supplemental Brief" in No. 8]1-271;

“Petitioner's Motion for Leave to Tile

-6-

Out-of-Time Petition for Rehearing,

With Petition for Rehearing Annexed,”

October Term 1981, No. 81-271;

"Petition for Writ of Certiorari” in

Term 1985, No. 85-439; and “Petition

for Rehearing” October Term 1985,

No. 85-439, presently pending before

this Court.

Qne important factual difference

in the above-descr bed petitions of the

City of Santa Ana ie that, whereas the

Erie County issue was framed in the

context of a procedural “pleading”

problem, the Santa Ana “Petition for

Writ of Certiorari*® in No. 81-271

presented a case where the civil

public nuisance abatement lawauit bad

been tried and was being reviewed upon

+ =

appeal, and the trial judge had made

findings of fact and conclusions of

law thet, were it not for the exist-

ence of such “immunity,” he would have

closed the premises. See “Petition for

Writ of Certiorari® in No. 81-271 at

page 25, Footnote 4, reading as follows:

/ See Conclusion of Law XVI,

fra, at pages C-29 and C-30

which reads:

“Under the facts in this

case, namely, that the Defendants

are engaged in the commercial ex-

ploitation of obscene motion pic-

ture films and have for a substan-

tial period of time in the past and

as a cont and regular course

ef conduct ted sexually ex-

plicit films depicting oral copula-

tion, + Masturbation, homo-

sex cality, lesbianism, group sex,

portrayed incest, portrayed rape,

the licking of from the bodies

of the actors smear of sperm

on the face, and have tted their

intention to continue to show the

same similarly a A icit

films in the future, tement

remedy of closing the defendants’

theater for a period of time would

otherwise constitute a proper and

suitable equitable except

for the law supenenl ia’ or

se * Ne & *

-8-

Constitution of the United States

as a prior restraint.”

See, also,"Motion for Leave to File

Out-of-Time Petition for Rehearing With

Petition for Rehearing Annexed” in No.

81-271 at page A-15, setting forth the

remarks of Trial Judge Weeks at the

settlement conference on the Findings

of Fact and Conclusions of Law on

may 2, 1978:

“THE COURT: ... As I see it,

that if the Appellate Court dis-

agrees with my Conclusion of Law

as stated in and the Consti-

tution, then may see fit to

reverse my dec » you see,

based on this enumerated set of

circumstances, and that is the way

I see it, and I think that the

atmosphere of the community and the

cases are such that the Court, the

Appellate Court, whichever one it

is, here or in San Francisco or in

Washington, D.C. should have the

— to know that this lit-

’ t is sitting down here

by ass t from the Municipal

Court recognized that he would have

closed this theater, based on the

law, if it were not for the

case and the Constitution

that's all that I wish to portr

in this Conclusion. And so, while

and what the facts were in this

particular case.”

Another factua) difference in the

Santa Ana Statement of Facts is that,

whereas in the Erie County pleadings,

the lewd public conduct was three (3)

Gimensional, and the allegation that such

conduct was performed by third parties,

with the knowledge of and ratified by

the book store operator, was contro-

verted by the verified anewer of the

book store operator, see verified answer

of Cloud Books, Inc. at page A-64 et

seq. of the“Petition for Writ of

Certiorari” in 85-439, the Santa Ana

petitions presented a factual situation

where the ‘ewd conduct was produced,

directed, and photographed by the

defendant, Mitchell Brothers’, and placed

Om Motion picture film for two (2)

elie

ers and exhibitors of sexually orien-

ted films at their O'Farrell Theater

at 895 O'Farrell Street in San Fran-

cisco, to their operations in 1975,

when they billed themselves as “the

Cecil B. DeMille and David 0. Selz-

nick of modern porn” (R.T. 1045), is

described in the trial testimony of

James Mitchell, (C/A.O.B. at A-54

through A-84 and A-116 through A-137).

An operational! chart of the defen-

dants’ “pandering” businesses (Plain-

tiff's No. 77) appearing on the

opposite page, was prepared from the

testimony of James Mitchell.”

See, also, the photographs of the

two (2) dimensional lewd conduct which the

Mitchell Brothers’ continuously projected

onto the public screen of the Santa Ana

Theater, appearing in the time and motion

studies of the three films, at Appendix

D-1 through D-185 i> the “Petition for

Writ of certiorari” in No. 82-345.

A significant factual difference

in the Santa Ana City Attorney's

"Petition for Writ of Certiorari” in

No. 85-439, which is presently pending

before this Court on a "Petition for

Rehearing” is that, whereas in the Erie

that the “normal criminal penalties are

ineffective and inadequate in prevent-

ing or punishing the activities de-

scribed above and do not afford the

requisite protection to health and

safety of the public,” and the New York

Court of Appeals’ decision on that issue

can be narrowly interpreted as a holding

that “on these facts,” see “Petition

for Writ of Certiorari” in No. 85-437

at page A-3, and at this stage of the

pleadings, an injunction was not inade-

quate, see “Peticion for Writ of

Certiorari” in No. 83-437 at pages A-18

and A-19 holding:

"In Croatan Books, the court

specifically noted that, follow-

ing an initial hearing, the trial

court had ordered temporary in-

junctive relief designed to elimi-

nate the nuisance without closing

the premises, and that the evi-

dence at a second hearing showed

that this relief had been ineffect-

ive. The court was thus able to

conclude that ‘less restrictive

en ee ee ——— »

ol3e

remedial measures failed to abate

what the trial court had unequi-

vocally found. . .to be a nuisance’

(323 SE2d at 90). In the present

case, there has been no ‘less

restrictive’ relief imposed, nor

has the District Attor demon-

strated that the injunctive relief

provided for in Title II would be

insufficient to abate the nuisance;"

the Santa Ana “Petition for Writ of

Certiorari” in No. 85-439 pleads a

factual record of ten continuous years

of the same conduct which contains

abundant proof that the remedy of

injunction is not adequate and that

the equitable remedy of “closure” is

essential if the continuing public

nuisance is to be abated. See the

"Petition for Writ of Certiorari”

in No. 82-345 at Point II on pages

54-55 reading:

"As applied to the trial facts

herein, the single right to a

personal injunction against a

specific obscene film which the

Court of Appeal authorizes, is

an illusion and fails to pro-

vide an uate remedy. See

footnote nfra at p. 55. The

Mitchell Brothers’ business prac-

tice is to show 2 pornographic

films on a program and change the

program each week. In 7 years, the

theater has exhibited approximately

500 different pornographic titles.

The short run of each film and the

theater's ability to shorten that

run even further, coupled with the

practical problem of Plaintiff's

not being able to force the defen-

dants to an early trial on the

merits in such cases, makes the

personal injunction against a

specific film worthless, especially

where the film itself must be given

back at the conclusion of the law-

suit, and it can be expected that

each of such lawsuits will be

tenaciously resisted, that the City's

costs of abatement will be substan-

tial, and that the costs may not be

recovered by the Plaintiff in such

lawsuit either as costs of abate-

ment or damages or attorney's fees.

On the other hand, the defendants

benefit from such prolonged and

unproductive litigation, in that

the substantial profits being derived

from the box office of the moral

public nuisance, ($1200.00 per day,

see Statement of Facts at page 20,

fn. 4; Appendix C-18) provide the

defendants with a slush fund which

more than underwrites their casts of

litigation and allows a substantial

profit, whereas the budgetary pro-

blems of Cities today make such

prolonged and unproductive litiga-

tion unattractive. (The cost to the

City of Santa Ana for the first

public nuisance abatement lawsuit

was $71,420.20.) "

ela —_— li

-15-

See, also, the "Certificate of Counsel”

in support of "Petition for Rehearing”

in No. 85-439 at pages 13-16, filed in

this Court after its grant of a Writ of

Certiorari on the issue of “closure” in

the Erie County case herein, reading

as follows, with underlininy to empha-

Size the proposition being urged herein

that the remedy of “injunction” is not

adequate and that “closure” is essen-

tial:

"CERTIFICATE OF COUNSEL

I, JAMES J. CLANCY, hereby

certify that the foregoing peti-

tion for rehearing is presented

in good faith and not for delay

and is restricted to grounds

specified in Rule 51 of the rules

of this Court.

The City of Santa Ana has

maintained a continuous weekl

aeatT

ho hic and sound su

Tance af che Mitchell Brothers"

Santa Ana Theater for gbe tee wee

riod from

iS gt sel ac

ed a fifth don May 7 action

pe People of the State of

" 27. The continuing course

of conduct of exhibiting obscene

matter, which the Mitchell Brothers’

Santa Ana Theater and its operators

are engaged in, has caused and

continues to cause irreparable harm

to the Plaintiff CITY OF SANTA ANA

and its residents, in that its

continuing existence across the

street from the Santa Ana Junior

College as a business which is

licensed by the City of Santa Ana,

is a source of scandal causing:

(1) reputational damage to the City

and its community standards, and

(2) a potential for harm to its

residents by misrepresenting to the

world and particularly to children

of tender and impressionable years

living within the community that the

community as a whole has accepted

such conduct as lawful.

"28. The exhibition of said

‘motion pictures’ and previews at

said theater is indecent and of-

fensive to the senses so as to

interfere with the confortable

enjoyment of life and property and,

therefore, constitutes a public

nuisance per se.

CC ee Pp a? ;

defendant Mitchell Brothers’ Santa

Ana Theater and the maintenance of

public nuisances, plaintiffs direct-

ed that certain individuals, acting

aid individuals, acting as plain-

tiffs* ayents, paid the required

admission fee each time they entered

the Mitchell Brothers’ Santa Ana

Theater.

to provide foundation

for the use of secondary

evidence in the form of video-tape

cassette copies of the motion

picture films and previews named in

paragraph 20, above. Such time-and-

motion studies consist of a chrono-

logical series of photographs timed

in their relative order of appearance

with legends setting forth the story

line of the film.

moti t: _ x

~ Fecordina the sane-oemmatche

type © and obscene subject

er wre was beina portrayed

ates suc

nr) 5s is was xe a for

the projection of such visual

images and sounds.

Executed this 29th day of November,

1985, at Sun Valley, California.

JMMES J. CACY

Counsel for Petitioner

Amicus Curiae City of Santa Ana

filed its first “Petition for Writ of

Certiorari” in No. 81-271 on August 10,

i961. This Court granted the same in

Edward Cooper, City of Attorney of

Ana Theater, et al. No. 81-271, at

454 U.S. 90, as to question 2 (burden

-19-

of proof), but denied the petition on

the “closure” issue (question 1) on

November 30, 198)---over swur years

ago. Upon remand to the Court of Appeal,

the City of Santa Ana argued in its

plaintiff/appellant's Supplementary

Brief, filed on January 4, 1962, that

merits” and that this Court's note of

jurisdiction on the closure issue in

U.S. Marketing, Inc., et al. v. State of

Idaho, No. 81-741, on January 11, 1982,

six weeks after its denial of the Peti-

tion for Writ of Certiorari on the same

issue in the Santa Ana petition had

reestablished “closure” as 4 litigable

issue and that the court should reexam-

-20-

ine the entire appeal, in greater depth,

including the “remedy” issue as to

closure, see Point I, reproduced in

"motion for Leave To File Out-Of-Time

Petition Por Rehearing, With Petition

Por Rehearing Annexed” in No. 81-271

at pages A-5 et seq. In its opinion,

the Court of Appeal rejected the City

of Santa Ana's argument as to the scope

of the appeal and reiterated its ear-

lier opinion on remedies in its entirety

and remanded the case to the trial

court to allow the City Attorney to

seek the one equitable remedy that the

Court of Appeal held was available

under the Federal Constitution and its

interpretation of this Court's opinion

in Vance v. Universal Amusement Co-,

Inc., 445 U.S. 308 (1980), namely,

an injunction as to the remaining six

films.

Santa Ana's experience with hard-

;

-2l-

core pornography at the Mitchell Brothers’

Santa Ana Theater as a “continuing public

nuisance” for the past ten years, is a

governmental problem which is facing

all cities. The problem has escalated.

The same pornographic movies and

continuing public nuisances are now

appearing on television.

Confusion as to what remedies an

equity court can apply after trial of

a nuisance lawsuit is the result of this

Court's not having squarely addressed

the problem since Huffman v. Pursue,

Theater Guild, Inc. v. Ohio ex rel.

Ewing, 421 U.S. 923 (1975) and having

avoided the issue in No. 81-271.

Vance v. Universal Amusement Co., ine.,

445 U.S. 308 (1980) is inapposite on

the issue of what remedies may be

applied after 4 trial on the merits,

but continues to be mis-cited.

Brothers’ Santa Ana Theater. Addition-

ally, in the interim, the “law of the

case” principle on finality has

resulted in a substantial number of

injustices in the California courts in

Case No. 25-65-30. Unless this Court

corrects that imbalance through its

opinion in this Erie County case, that

imbalance can be expected to cause

additional injus® oes to Amicus Curiae

City of Santa Ana in the near future.

In the view of this Amicus Curiae, the

alleged injustices include the following

matters:

=-2}<

(1) The California Trial and

Appellate Courts have refused to give

legal consideration to (hear argument)

and rule upon the merits of Santa Ana

Ordinance NS-1287, enacted on January

) 19, 1976, which declares that “any and

| every place in the City of Santa Ana

where: 1) obscene films are publicly

exhibited as a regular course of

business, or possessed for the purpose

of such exhibition, is a public nui-

sance” (our emphasis). Santa Ana

Ordinance NS-1287 was enacted to over-

come the interpretation in People ex

col. Duech, et el. v. Projection Roos

Theater, 17 Cal.34 42 (1976), which

held that the Federal Constitution

“immunized” a theater against closure

and defined the public nuisance as the

“film” and not the “place.”

(2) Paradoxically, one court

which refused to treat the “place*

OO —————

-24-

as @ public nuisance under the Santa

Ana ordinance also stated that judi-

ciel economy would not justify « trial

court's remaining open to try each fils

as the theater changed the weekly program.

(3) The Appellate Courts in

California have denied the City its

statutory right under Civil Code,

Section 3496, to @ reasonable attorney's

fee as the prevailing party on the

appeal in 454 U.S. 90 on the ground

that the City of Santa Ana did not

prevail on the serits on the “closure”

issue.

(4) The Mitchell Srothers" have

filed an application under Civil Code,

Section 14% for an attorney fee of

$17,941.95 a8 hewing prevailed on the

“closure” ieeve in 454 U.S. 90.

(5) A Lew and motion trial court

in the original lawsuit, Case No.

25-65-30, has held that, under the

-25-

Federal Constitution as interpreted in

Busch, supra, the place may never be

treated as a public nuisance (is

immunized) and that the City of Santa

. Ana is “preempted” from enacting an

ordinance which declares it to be such.

(6) That same trial court has

denied the City's Motion for Leave to

Pile a Supplemental Pleading under the

continuing public nuisance concept,

see Baker v. Burbank-Glendale-

Pasadena Airport Authority, 39 Cal.3d

862 (Sept. 23, 1985), in the original

lawsuit (No. 26-65-30) after remand in

454 U.S. 90. Said supplemental plead-

ing seeks to incorporate the allega-

tions in the fifth lawsuit set ferth

at pages 15-18 that the theater hase .on-

tinuously exhibited obscene films for

the ten years of its operation since

1975. The Law and Motions Court is

about to entertain an application by

-26-

the Mitchell Brothers’ for an award of

an attorney's fee as having prevailed

on the denial of plaintiff's Motion to

Amend and the defendants’ Motion to

Dismiss the Complaint in No. 25-65-30.

In its most recent “Petition for

Writ of Certiorari” and “Petition for

Rehearing” in No. 85-439, the City of

Santa Ana is attempting to persuade the

membership of this Court to apply Gondeck

v. Pan Am World Airways, 382 U.S. 25 at

27 and correct the injustices allegedly

created by its denial of the Santa Ana

City Attorney's petition on the “closure”

issue in No. 81-271 on November 30,

1981. Gondeck holds that the interest

in finality of ligitation must yield

where the interests of justice would

make unfair the strict application of

this Court's rules. Here, in the case

of a continuing public nuisance which

customarily remains within the juris-~-

@2%e

diction of the equity court and as to

| which there is no statute of limitations,

| the “law of the case" should not bar a

. reexamination of the “closure” issue in

| No. 85-439 in 1985 as it applied to the

original lawsuit in Case No. 25-65-30,

merely because this court, under its

discretionary powers, refused to examine

that issue in 1981 in Case No. 81-271,

where to do so will continue and will

perpetuate further and new injustices which

have arisen as a result of this court's

failure to rule on the “closure” issue

on November 30, 1981. In California,

see Clemente v. State of California,

40 Cal.3d 202, 219 Cal.Rptr. 445 at

450, holding that:

"However, the doctrine of

law of the case which has been

recognized as being harsh is

merely a rule of procedure and

does not go to the power of the

court. It will not be adhered

to where its application will

result in an unjust decision.”

_———————

-27(a)-

SUMMARY OF ARGUMENT

l. In U.S. v. O'Brien, this Court

established a test for the enactment of

legislgtion regarding conduct which

invoWes opposing claims of “speech” and

on-speech” motivation. The Court of

“Appeals erred. The test has no applica-

tion to moral public nuisance legislation.

2. The opinion of the Appellate

Division, holding O'Brien irrelevant,

correctly analyzes the law on "closure"

as a remedy in civil public nuisance

abatement litigation. The New York

Statute includes illegal activity in the

form of “lewd conduct", which need not

be the sole or dominant use of the prem-

ises, and requires proof of a consistent

pattern sufficient to prove that the

premises are being employed for the

illicit use. The single question is,

"does the public nuisance exist?"

3. "Lewd conduct” and “trading in

;

-27(b)-

obscenity” are “per se” moral public

nuisances. The power to abate “per se"

nuisances is an inherent Common Law

power of government, needs ao enabling

legislation, and may not be qualified if

the public nuisance is found to exist.

The suppression of “per se" public nui-

sances is among the most important du-

ties of government. It is a Common Law

principle that government cannot sanc-

tion a nuisance. The Courts are the

custodians of the public morals.

This Court authorized the “closure”

of a moral public nuisance in Mugler v.

Kansas. Mugler can be applied to “lewd

conduct" and “trading in obscenity”.

Avenue Books Store v. City of Talmage,

Ohio; Art Theater Guild, Inc. v. Swing;

Huffman v. Pursue Ltd. Vance v. Univer-

sal Amusement Co., Inc., has repeatedly

been miscited.

This Court should adopt the ratio-

nale expressed by Justice Burke of the

New York Court of Appeals in Trans-Lux

Dist. Corp. Vv. Bd. of Regents.

4. "prior Restraint” is not avail-

able as a defense to “closure” which is

imposed as an “in rem" remedy (rather

than “in personam" against the person)

in reforming the property for past

unlawful conduct which has been deter-

mined to be a moral public nuisance.

People ex rel. Hicks v. “Sarong Gals";

People ex rel. Sorenser v. Randolph;

State ex rel. Kidwell v. U.S. Marketi

Inc..

Further, an equity court can enjoin

specific sexual acts performed in the

context of commercial obscenity, inde-

pendent of the obscenity statute. Ohio

ex rel. Keati v. "Vixen".

This case should be remanded under

Metromedia, Inc. for further construc-

tion by the Court of Appeals.

@28<

ARGUMENT

THE NEW YORK COURT OF APPEALS‘ HOLDINGS:

(1) THAT THIS COURT'S TEST IN

UNITED STATES V. O'BRIEN 391 U.S.

( 8 IS APPLICABLE, AND (2)

THAT, UNDER THE O'BRIEN TEST,

CLOSURE OF THE PREMISES IS AN

UNCONSTITUTIONAL PRIOR RESTRAINT ON

THE DEFENDANTS’ FIRST AMENDMENT

RIGHTS, ARE CLEAR ERROR.

The New York Court of Appeals’

equivocal opinion on the issue of

“closure” is clearly erroneous. It

is “equivocal” in the sense that, while

holding that this court's test in

United States v. O'Brien, 391 U.S.

367 (1968) is applicable, and that

under that test closure is an unconsti-

tutional restraint on the defendants’

First Amendment rights, see Petition

for Writ of Certiorari at pages A-18

and A-19, it also seems to suggest that

giver. additional factual allegations,

closure would be authorized under the

-29-

analysis expressed in Commonwealth v.

Croatan Books, Inc. Virginia ,

323 S.E.2d 86.

Amicus Curiae submits that the

Court of Appeals' analysis is clear

error and that the O'Brien test has no

application to the trial facts herein

which simply involve a civil complaint

to abate certain real estate as a

public nuisance under the New York

public health law.

The Court of Appeals’ ovinion has

misinterpreted and misapplied the manda-

tory closure provisions of New York

State Public Health Law, Article 23,

Title 2, Section 2329, which reads in

its relevant parts as follows:

"Section 2329. Houses of

Prostitution; Injunction; Order

of Abatement; Sale and Removal of

Property; Fees

1. If the existence of the

nuisance k= admitted or established

in an action as provided in this

article, or in a criminal proceed-

=30-

ing in any court, an order of abate-

ment shall be entered as a part of

the judgment in the case, which

order. . . shail direct the

effectual closing of the building,

erection or place against its use

for any purpose, and so keeping it

closed for a period of one year,

unless sooner released as herein-

after provided."

The legislative intent in drafting

the prototype Red Light Abatement sec~

tion from which Section 2329 was

derived is common knowledge. See 20

Columbia Law Review at 604 which traces

the history of such legislation:

“RED LIGHT” INJUNCTION AND

ABATEMENT ACTS--The strong arm of

uity has lately found increas-

re) y

upon e quor laws which origi-

nated in Iowa, these laws owe

their enactment to the sneeeseecy

of criminal prosecutions;

accordingly permit any Citizen of

the county wherein the nuisance

exists to bring his civil action

to enjoin and abate it. The

effectiveness of the legislation

lies in stringent provisions for

abatement and in penaities for

contempt.

e3le

"this is clearly police

legislation, designed to protect

the public health and morals

rather than to provide a remedy

for injury to private property..."

This section of the so-called Red Light

Abatement Statute was enacted to with-

draw the "discretion" of the equity

court once the trial court had found

as a matter of fact that the moral

public nuisance did exist. The meaning

and application of the statute is clear.

First, the equity court must perform

its judicial fact finding function and

determine whether a moral public nui-

sance exists; then if it so finds, the

statute mandates that "ciosure” must

be ordered to abate the public nui-

sance.

The intent of the State Legisla-

ture in enacting the mandatory provi-

sions of Section 2329 had nothing to do

with the “free speech" controversy which

was presented iin O'Brien and the test

o32e

which was expressed by this court in

that decision. Q'Brien's argument was

that the “purpose” of Congress in enact~-

ing the federal legislation which “pro-

hibited the knowing destruction of the

draft card” was “to suppress freedom of

speech” and that his burning of the

draft card was “free speech.” It was

in the context of the enactment of

legislation regulating conduct and

involving opposing claims of "speech"

and “non-speech” motivations that this

Court framed the O'Brien test for

determining the constitutionality of

such legislation.

In view of the clear legislative

intent in enacting Section 2329 of the

New York Public Health Law, the fact

that the premises houses a book store,

i.e. Cloud Books Inc., is simply irrele-

vant and the O'Brien test is inapposite.

The "closure" issue which Section 2329

-~33-

2resents on its face involves the power

of an equity court to grant equitable

relief in the form of closure of the

premises upon proof of the existence of

continuous illegal conduct which consti-

tutes a moral public nuisance. In the

application of that statute, only one

question is before the trial court,

sitting in equity, and that is whether

the trial facts establish that a moral

public nuisance exists. The complaint

to abate a public euteonce does not

implicate the O'Brien factors. The

remark of the Erie County Supreme Court

on this issue are particularly apposite,

see “Petition for Writ of Certiorari”

at page A-48 reading:

"An establishment, whether it

be of the highest calling or a

market for the dissemination of

materials of questionable moral

value or legality, cannot employ

the constitutional rights and

protections, which it properly

enjoys, as a curtain behind which

illegal activity can be freely

-34-

encouraged and conducted and beyond

which legitimate law enforcement

can perform its proper function

in the enforcement of statutes

entrusted to such agencies. The

protections afforded by the laws

and Constitutions of the United

States and the State of New York

are designed to enhance the full

exercise of the freedoms we

enjoy and are not to be subverted

as shields for illegal conduct."

JUSTICE MOULE'S OPINION, SPEAKING FOR

THE APPELLATE DIVISION, FOURTH

DEPARTMENT, BELOW, CONTAINS A

CORRECT ANALYSIS OF THE AVAILABILI-

TY OF “CLOSURE” AS AN EQUITABLE

REMEDY IN A CIVIL COMPLAINT TO

ABATE A PLACE WHICH HAS BEEN

ALLEGED TO BE A MORAL PUBLIC

NUISANCE BECAUSE OF A CONSISTENT

PATTERN OF ILLEGAL ACTIVITY IN THE

FORM OF “LEWD CONDUCT”.

Amicus Curiae submits that the

opinion of Justice Moule, writing for

the Appellate Division, Fourth

Department, in the cause below,

correctly states the law on "closure"

as a remedy in a civil complaint to

abate a premiscs which has been

-35-

Geclared to be a moral public nuisance,

see “Petition for Writ of Certiorari”

at pages A-23 through A-35.

In his opinion, Justice Moule

first considered the question raised by

the defendants as to the scope of

Title II of the New York Public Health

Law and held, as had the Erie County

Supreme Court, and as did the New York

Court of Appeals thereafter, that the

statute was to be broadly construed

and could include illicit lewd getivity

which plaintiffs can prove occurred at

the store, see "Petition for Writ of

Certiorari" at page A-29. In addres-

sing the burden of proof on the issue

of a proscribed use which amounted to

a public nuisance, the court held:

"The question of whether any

given premises, including defen-

dant's book store, is subject to

Title II of Article 23 of the

Public Health Law is necessarily

a question of fact. Resolution

of this question will depend upon

the degree of illicit activity

-36-

which plaintiff can prove occurred

at the store. In addressing the

people's burden of proof under the

Washington statute, the court in

State ex rel. Carroll v. Gatter,

43 Washington 2d 153, 160, supra,

stated: 'To sustain the senttte-

tion of the act, it must be shown

to the satisfaction of the court,

by a proponderance of the evidence,

that the premises were being used

as a house of lewdness, assigna-

tion, or prostitution as that term

is generally understood. The

'‘use' of the premises of which the

statute speaks, requires more than

a showing that sporadic acts of

prostitution occurred therein. '

We believe that this is an appro-

priate standard of proof for the

people to be held to under the

Public Health Law. While it will

not be necessary for the people to

demonstrate that the sole, or even

dominant, use of the premises is

devoted to the illegality prohibit-

ed in the statute, the people will

have to show a consistent pattern

of conduct sufficient to prove that

the premises are being employed for

a proscribed use.” (Our emphasis)

In addressing the defendants’ second

contention that the mandatory closure

provision impermissibly infringed upon

defendants' First Amendment freedoms,

Justice Moule's analysis is completely

at odds with the opinion of the New York

a%7eo

Court of Appeals. Whereas, the New York

Court of Appeals relied upon this Court's

test in United States v. O'Brien and the

analysis of the California Court of

Appeal in People ex rel. Van de Kamp

v. American Art Enterprises, 75 Cal.App.

3d 523, Judge Moule held the O'Brien

test to be inapplicable and the opinion

in People ex rel. Van de Kamp v. American

Art Enterprises to be based upon an

erroneous reading of O'Brien.

The opposing views of these two

New York courts describes an ongoing

philosophical controversy which exists

in other jurisdictions and needs to be

settled. See for example, the lengthy

and vociferous dissenting opinion of

Associate Justice Thaxton Hanson to the

majority opinion (Thompson and Lillie)

in People ex rel. Van de Kamp v.

American Art Enterprises, supra, at

pages 532-572. Amicus Curiae contends

-38-

that, in general, Justice Moule's opin-

ion cannot be improved upon, and cor-

rectly states the law in this regard,

see "Petition for Writ of Certiorari at

page A-35:

"In O'Brien, supra, uwefendant

was arrested and convicted for

burning his selective service

registration certificate. On appeal,

defendant argued that his action

in burning his registration certi-

ficate constituted symbolic speech

and that the Federal statutory

provision in prohibiting this activ-

ity impermissibly interfered with

his First Amendment right of -free

speech. Thus, the test formulated

by the court in O'Brien is applica-

ble only where the Government seeks

to regulate the non-expressive

element of conduct in a course of

conduct which consists of 'speech'

and ‘non-speech’ elements. Since

the conduct at issue in American

Art Enterprises, supra, arranging

prostitution, did not involve any

element of speech, reliance on

O'Brien was misplaced. Likewise,

the conduct sought to be enjoined

by the People in the instant case

does not contain any element of

speech and, hence, O'Brien is

inapplicable."

-39-

III

THE POWER TO ABATE MORAL PUBLIC

NUISANCES, BASED UPON A CONSISTENT

PATTERN OF ILLEGAL ACTIVITY IN THE

FORM OF EITHER “LEWD CONDUCT" OR

"TRADING IN OBSCENITY", IS AN

INHERENT POWER IN GOVERNMENT WHICH

MAY NOT BE QUALIFIED, IF THE PUBLIC

NUISANCE IS FOUND TO EXIST.

Amicus Curiae submits that the

confusion which has caused several courts

to error and to subject public nuisance

abatement legislation involving “closure"

to the O'Brien test is the common fail-

ure of most courts generally to proper-

ly analyze and give recognition to the

basic principle that the power to abate

moral public nuisances itself is an

inherent power in government which may

not be qualified if the moral public

nuisance is determined to exist. If

the courts of this nation are to be

equipped to cope with this growing

national problem of moral public nui-

sances, this Court's opinion must

direct the attention of the judiciary

-40-

to this fundamental principle. in this

regard, more than a century ago, this

Court pointed out in James Phalen ve

Commonwealth of Virginia, 12 L.Ed. 1030,

1033 (1850):

"The suppression of nuisances

injurious to public health or

morality is among the most impor-

tant duties of government. . . It

is a principle of the common law,

that the king cannot sanction a

nuisance.”

Even more anciently, our Anglo-Saxon legal

system has described its own function as:

“the Courts are the guardians of the

public morals" Rex v. Curl, 2 Strange 7389

(1727): Sir Ch-rles Sedley's case 1 SID

168.

A. UNDER THE COMMON LAW AND THE

STATUTORY LAW ON "NUISANCES" IN

MOST STATES, THE TERM “PUBLIC

NUISANCE" EMBRACES BOTH THE "MORAL"

PUBLIC NUISANCE, SUCH AS TRADING IN

“LEWD CONDUCT" AND/OR “OBSCENITY”

WHICH IS OFFENSIVE TO THE MORAL

SENSE, AND THE “PHYSICAL" PUBLIC

NUISANCE WHICH IS OFFENSIVE TO ONE

OF THE 5 PHYSICAL SENSES.

-4)l-

From the earliest days of Anglo-

Saxon law, a “moral” nuisance has been

abatable as a public nuisance. At commor.

law, both lewd conduct and trading in

obscenity was regarded as a “moral”

public nuisance. See H.G. Wood, the

Law of Nuisances, section 57, at page

77 and section 65 at page 85:

"S57. Indecent exposure of

one's person in public place, a

public nuisance - As has previous~

ly been stated, anything that is

offensive to the morals of society,

or that is indecent, is a public

nuisance. Therefore, any indecent

exposure of one’s person in a

public place, in the presence of

several persons, is a public nui-

sance, and indictable and punish-

able as such at common law. It is

a nuisance because it shocks the

moral sensibilities, outrages

decency, and is offensive to those

feelings of chastity that people

of ordinary respectability enter-

taim. « «

"65. Selling obscene picture

books, etc. Common nuisance - So,

too, all obscene pictures, prints,

books or devices are common nui-

sances, and any person having them

in his or her possession for the

purpose of exhibition or sale may

be indicted therefore at common law,

ete

because they are clearly in deroga-

tion of public morals and common

decency. Commonwealth v. Holmes, 17

Mass. 336; Commonwealth v. Sharpless

2 S and R (Penn.) 91; 7 Am. Dec.

632."

This common law rule as to moral

public nuisances has been codified in most

states through adoption of the Field Code

in 1872. See, for example, California

Civil Code sections 3479 and 3480.

A "MORAL" NUISANCE IS A “PER SE"

PUBLIC NUISANCE. "LEWD CONDUCT"

AND THE “COMMERCIAL DISTRIBUTION OR

EXHIBITION OF OBSCENE MATTER” IS A

PER SE PUBLIC NUISANCE (AS A MATTER

OF LAW)-- NO FURTHER PROOF BEYOND

THE FACT OF “LEWD CONDUCT” OR

"OBSCENITY" IS REQUIRED. THE POWER

TO ABATE THE SAME IS INHERENT IN

GOVERNMENT, WHICH IS UNDER AN

OBLIGATION TO REMOVE THE “MORAL”

NUISANCE.

A “per se” public nuisance is

described in 47 Cal.Jur.3d at 214,

as follows:

"Certain activities or con-

ditions are considered nuisances

under all circumstances, and are

therefore termed nuisances ‘per

-43-

se’ as distinguished from so -

called nuisances ‘in fact.' WNui-

sances per se are so termed because

no proof is required, beyond the

actual fact of their existence, to

establish that they are nuisances.

No proof of ill effects is neces-

Sary. ..