# Amicus Curiae Brief — Arcara v. Cloud Books, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1276%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1986 - **Citation:** 478 U.S. 697 ## 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 an ... — i | hte — co 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, 57 61 63 50 50 25s 27 29 42 42 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, 25 57 26 43 52 63 49 51 62 62 25 61 -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, 37 47 40 40 58 58 53 39 21 42 42 24 -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, 52 52 63 23 42 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" 10 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- ss ; -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} them within the purview of public nuisances. This latter class are those intangible a4 Omune _—s tion, those sounen are violative of C. Section 2905.34 and 2905.. a the. -63- CONCLUSION New York State Public Health Law, Article 23, Title II, should be remanded to the New York Court of Appeals for fur- ther consideration under the principles expressed above. Metromedia Inc. v. City of San Diego, 453 U.S. 490 at 521 (1981). 12/27/1985. Respectfully Submitted, Edward Cooper Santa Ana City Attorney James J. Clancy Counsel for Amicus Curiae. CERTIFICATE OF SERVICE I, hereby certify that on this 27tI day of December, 1985, the original and 40 copies of the within Amicus Curiae 3rief of the City of Santa Ana, California, were deposited in the United States Post Office in Sun Valley, Calif. with first-class postage prepaid, and oroperly addressed to the Clerk of the United States Supreme Court. I further certify that three (3) copies were also mailed, postage pre- paid, to the below listed parties to the proceedings and that all parties required to be served have been served. Frank G. Gunderman Attorney for Defendant Charles A. Ottaviano Office & P.O. Address 921 Niagara Frontier Building Buffalo, New York 14202 Richard J. Arcara District Attorney of Erie County 25 Delaware Avenue Buffalo, New York 14202 Lipsitz, Green, Fahringer, Roll, Schuller & James Attorney for Defendant Cloud Books, Inc. d/b/a Village Books & News One Niagara Square Buffalo, New York 14202 Falk & Siemer Attorneys for Defendant Blanche Dudley : 1900 Main Place Tower Buffalo, New York 14202 James J. Clancy Counsel for Amicus Curiae City of Santa Ara --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1276%3A09. Public record. Not legal advice.