Petition for Writ of Certiorari — City of Paducah v. Investment Entertainment, Inc.

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86-307 0 rrvep

NO. 86- AUG 26 1988

JOSEPH F SPANIOL JR

IN THE

Supreme Court of the United States

October Term, i986

CITY OF PADUCAH: JGHN K. PENROD, as Mayor, and JOE

VITERISI, ROBERT A. COLEMAN, HAROLD (SHORTY)

FORD and JAMES W. FLYNN, as Commissioners of said City:

JAMES W. UTTER, as Corporation Counsel, and THURMAN

BAKER, as Treasurer thereof,

Petitioners,

Vv.

INVESTMENT ENTERTAINMENT, INC.;

BELTLINE NEWS AND ARCADE CLUB,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

JAMES W. UTTER

Post Office Box 2267

Paducah, KY 42002-

502-444-8506 2267

JAMES J. CLANCY

9055 La Tuna Cyn. Rd.

Sun Valley, CA 91352

Counsel of Record

for Petitioners

CLERK

en i

-i-

QUESTIONS PRESENTED

Whether The Tests Established. By This

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

(1941), and Huffman v. Pursue, Ltd., 420

U.S. 592 (1973) and Middlesex County Ethics

Committee v. Garden State Bar Ass'n., 457

U.S. 423 (1982), As Applied To The Trial

Record Herein 1/ Required The U.S. District

Court To: (1) Abstain; (2) Grant The City

Of Paducah's Summary Judgment Motion; (3)

Dismiss The Civil Rights Action Which Sought

To Invalidate The City Of Paducah's Newly-

Enacted Public Nuisance Ordinance No. 83-6-

2388; And (4) Remand The Public Nuisance

Abatement (Obscenity) Action To The State

Court For Trial On The Merits?

The trial record disclosed the following:

(1) The City of Paducah Ordinance No. 83-6-2388

was newly enacted, contained a severability clause,

and involved two important state interests, i-.e.,

abatement of a "per se" public nuisance and the

construction to be given such Ordinance by the State

Court;

(2) Neither the U.S. District Court nor the.

Court of Appeals had made the necessary finding to

support an exception to Watson v. Buck, i-e.-, that

the Ordinance was "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;

(3) The City filed a timely public nuisance

abatement action in the State Court and that forum

was available for a resolution of the identical

issues; and

(4) Proof of “exceptional circumstances" and

“great immediate danger of irreparable loss" is

lacking in that: (a) the terms of the Ordinance

precluded the use of the criminal process, (b)

iit: Kus

Whether Paducah Ordinance 83-6-2388 Is

Facialiy Unconstitutional As A “Prior

Restraint" On Free Speech So As To Authorize

Federal Interference; That Is,

(a) Whether The City Of Paducah, Under

Its Nuisance Abatement Powers, Has The Power

To Enact A Procedural Public Nuisance

Ordinance Which Declares A Place Of Business

In Which Obscene Publications Constitute

Either: (1) All Of The Stock In Trade, Or

(2) A Principal Part Of The Stock In Trade,

To Be A Public Nuisance Per Se; and;

(b) Whether Under Such A Procedural

Public Nuisance Ordinance, The City May Act

To Revoke All Licenses And Permits Of Such

Business Where: (1) No Criminal Proceedings

May Be Brought For fTransacting Business

Without A License Unless And Until The

Existence Of Such Public Nuisance Has Been

Established At A MTrial On The Merits, And

The License Revocation Confirmed By A Decree

Of The McCracken Circuit Court In Judicial

Proceedings Brought By The City For That

Purpose, Within Five (5) Days After Passage

Of Said Resolution; And Where: (2) The

Trial Judge Has Equitable Discretion To

Confirm Or Deny Such License Revocation?

(footnote continued)

restricted the law enforcement remedy of the City to

its use of a civil public nuisance abatement lawsuit

and license revocation, which (c) does not take

effect until after a trial on the merits anda

finding that the place of business was one in which

obscene publications constituted either: (1) all of

the stock in trade or (2) a principal part of the

stock in trade, and (d) the trial judge has equitable

discretion to confirm or deny the license revocation.

-i-

SUBJECT INDEX

Page

PETITION FOR WRIT OF CERTIORARI, +eeseseeees 1

OPINION BELOW, ccc cccccccccccccccccccccccces 2

JURISDICTION, osccesccsgeccceccccccccccccees 2

CITY ORDINANCE INVOLVED, +ossesccccccccevees 5

STATEMENT OF THE CASE, cecscsccccccccccccces 5

STATEMENT OF FACTS, +ccccccccccccccccccccces 9

INTRODUCTION, cccccccccccccccccccccccccscsss 9

SUMMARY OF ARGUMENT -cccocccccccoccceccececoos 24

REASONS FOR GRANTING THE WRIT,ccccccccccesee 30

UNDER THE TRIAL FACTS AND THE PRINCIPLES

EXPRESSED BY THIS COURT IN WATSON V.

BUCK, HUFFMAN Ve PURSUE LTD. AND

MIDDLESEX COUNTY ETHICS COMMITTEE V.

GARDEN STATE BAR ASS'N., THE FEDERAL

JUDICIARY WAS REQUIRED TO ABSTAIN AND

DISMISS THE FEDERAL CIVIL RIGHTS ACTION.. 30

I(A). Under The Trial Facts, The Test In

Watson v. Buck Is Controlling And Must

Be Appliedeccccccccsccccccccccccccccece 30

I(B). Under The General Principles

Expressed In Huffman v. Pursue, Ltd.

and Middlesex County Ethics Committee

ve Garden State Bar Assn., The Federal

Court Must Abstain If An Important

State Interest Is Involved And If The

Statute Is Susceptible Of A Constitu-

tional Construction In The State Court.

It May Only “Assume Jurisdiction" Where

The Challenged Statute Is "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.",oe.«.

I(C) Paducah Has Not Waived Its Defense

Of Abstention. The Federal Court Must

Return The Paducah Ordinance To The

State System For An Authoritative

Construction By The State Courtececeees

(1) A Federal Court Lacks Jurisdiction

To Authoritatively Construe State

ILMBLSLECEOR c coe ncesoerceeesessoesecee

(2) A State Court Approaches The Task

Of cConstruing A City Ordinance From

An Entirely Different Perspective....

(3) The Question As To Whether A City

Ordinance Is “Severable" Is More

Properly A Matter For The State

COUSE 666 0.0 6006608 E06 640640642 OS OR OS00

(4) Federal Interference Promotes

Judicial Inefficiencyccccccescccccces

-iii-

PADUCAH ORDINANCE 83-6-2388 Is NOT

"UNCONSTITUTIONAL ON ITS FACE", IN THE

SENSE THAT TERM IS USED IN WATSON V. BUCK

AND HUFFMAN V. PURSUE, LTDeccececescecece 53

II(A) Paducah's Motions For Summary

Judgment Should Have Been Sustained. The

City Has A Historic Right To Declare A

Place To Be A Public Nuisance And To

Revoke Business Licenses Of Unlawful

Activities. That Sovereign Right Of

Government Is Unrelated To Expressive

Activity And May Not Be Enjoined Or

Interfered With By The Federal Courts.

U.S» av O'Brien is Inapplicableecseeceeees 54

II(B) The Civil Rights Actions Also Fail

To State Sufficient Facts To Constitute A

Claim Upon Which Federal Reiief Can Be

based. The Defendant In The State Law

Enforcement Lawsuit Must Plead And Prove

The Jurisdictional Exception For Federal

TULLSdICtiONscccecccccvesscsseseseseseses 59

CONCLUSION, ccocccocvccccceseesesesesoeseseesers 63

TABLE OF AUTHORITIES

CASES Page

Allen ve McCurry, 449 U.S. 90 (1980)

@eeeeveceeseeeeeeeeeeeos eevee eeeees 37, 38, 39, 59

Arcara, District Atty. of Erie County v.

Cloud Books, Inc., et al., U.S- P

54 LeWe. 5060 (7/7/86)cceseeeee 5, 6, 8, 29, 55

-iv-

Art Theater Guild, Ince, et al ve Ohio ex

rel. Ewing, 37 Ohio Ste2d GWBeeeeesveseees 23

Art Theater Guild, Inc., et ale ve Ohio ex

rel Ewing, 421 UeSe 923 (1975 )ecccvcce a3 57

Bader v. Iowa Metropolitan Sewer Service

Company, 178 NeW. 2d 305, cccvcccsccccessece 57

Dombrowski v. Pfister, 380 U.S. 479 (1965). 51

Eastern Books ve. Bagnoni, 446 F.Supp, 643

(1978), ccccccesesseseseeessesessseseseses 10

Harris ve UseSe, 315 Ae2d 569 at 572, fn. 9

(1974), ecccevecescesseseseesesessessesere 57

Huffman ve. Pursue Ltd.e, 420 U.S- 592 (1975)

connssce Be 34, By 3265: Bs Ms We De Be 37

Juidice v. Vail, 430 UeSe 327 (1977), cccecece 35

Juncker v. Tinney III, 549 FeSupp. 574,.. 60, 61

Kingsley Pictures Corp. v. Regents, 360

U.S. 684 (1939), cccccsecsecesecesecscesse 47

MartineZ ve Calif., 444 U.S. 277 (1980)... 59, 63

Metromedia, Inc. ve San Diego, 453 U.S. 490

(1981), ccccesesssecvesesesseesseees 49, 50, 65

Middlesex County Ethics Comm. v. Garden

State Bar Assn., 457 UeSe 423 (1982)

eeeeveeveeveeeoceeee 7, 24, 26, 30, 34, 41, 42, 43

Moore Ve Sims, 442 U.S-e 415 (1978), cccccecs 36

Mugler ve Kansas, 123 U.S. 205 ,ccsccccccccs 56

Ogden City v. Eagle Books, Inc., dba Adult

Book Store, 586 P.2d 436 (10/16/78),+++e. 59

-Vv~=

Ohio Bureau of Employment Services v.

Hodory, 431 UseSe 471 (1977),ccccseceee 35, 44

Ohio Civil Rights Commission, et al. v.

Dayton Christian Schools, Inc., et al.,

476 U.S. (1986) pcoccvccccccecs Ve 27, Sle

106 Forsyth Corporation v. Bishop, 362

F.Supp. 1389 (C2/SF Todo ceccvsccsesceseovess

106 Forsyth Corporation v. Bishop, 482 F.2d

280 CTs PRs T21S0O E566 06086005 0546 Odo RE Ks

106 Forsyth Corporation dba Paris Theater

ve Bishop, et al., 422 U.S. 1044

(rar Feud 600 666.6466 60060 8000 00s b6eeebes

Paris Adult Theater ve Slaton, 413 U.S. 49

CHOOSE OOCHOOCE OOOO ECO O SEH OSE O SOLE LEE OCOE® 8,

Parratt ve Taylor, 451 U.S. 527 (1981)

eeeeoeespeeeveeeeeeeeeee ees eevee eeeeees 59, 60,

Phalen ve Commonwealth of Va., 12 L.Ed.

1030 [ We ha 60 066 0000660568 060s be deb KO S608

People ex rel. Busch v. Projection Room

Theater, 17 Cal.3d |) Tr rrerrery TET TTTrTes

People ex rel. Camil v. Buena Vista Cinema,

57 Cal.App.3d GPT gp ecccccesccsceccscccess 9,

Rex ve Curl, 2 Strange 789 (1727),ccccceces

Robichauxn v- Huppenbauer, 258 La. 139, 245

So.2d 385, 389 i Fe Pee teebeeescesseseavee

Sir Charles Sedley's Case, 1 Sid 168,..ee.0.

State of Idaho ex rel. Kidwell v. U.S.

Marketing, 102 Idaho 431 (1981),... 5, 10,

Stecher v. Askew, 432 F.Supp. 997 at 999 ©

SB SFP POTCTET CTL TTT TT TUL TT TTTTTTTTT

-vi-

Tilton v. Richardson, 403 U.S. 672 at 684,. 49

Trainor ve Hernandez, 431 UeS.- 34 (1977), 35, 36

UeSe Ve 12-200 Foot Reels, 413 UeSe 123

(1973), coccccccccccsccseesescssessesecece 42

UeSe ve O'Brien, 391 U.S- 3674. 7, 8, 29, 54, 55

U.eSe ve 37 Photographs, 402 U.S. 363 (1971)

apaeevpeovoe ooo ee eee eosvseepeeoee een eeeeevneeeee eee 47, 48

Universal Amusement Co. v. Vance, 587 F.2d

159 (CeAe 5, 197 )ccccccvcecccecccccocececs 58

Universal Amusement Co. ve. Vance, 445 U.S.

308 (1980 ), cove esvccccesecseseseseceessece 58

Vickory ve Walton, 721 F.2d 1062 (CA 6th,

11/30/83) ,ccccccesccecscesecsecssesecee 61, 62

Watson v. Buck, 313 UeSe 387 (1941)ecsscees 6, 7

24, 25, 28, 30, 31, 32, 34, 40, 49, 53, 63, 64

West Gallery Corporation v. Salt Lake City

Board of Commissioners, 586 P.2d 429

(10/16/78) ,cccccccecescvessereenesesesees 59

Younger v. Harris, 401 UeSe 37 (1971) 39, 40, 42

OTHER AUTHORITIES

UNITED STATES CODES:

28=-— §1254(1) ,covcvccccecvcvccsccsesevees 5

28-— $1343 (a) ,ccescecccccecvcccvesescsecs 2

2ZB-— $2201, covccccccccccecccsccccccccoece 2

42-- §1983,.. 2, 4, 17, 37, 38, 39, 60, 61, 62

-vii-

PADUCAH PUBLIC NUISANCE ORDINANCE 83-6-2388

eeeeevseeeeeeeeeees 3e 5, Ve 8, 10, 13, 15,

20, 24, 25, 27, 28, 31, 33, 41, 53, 54, 60,

$19=-152(a) pocccccccccccccccccccsece Wl, 19,

§$19-152(b) pevcecccececccccseccceseese Il, 19,

§$10-152(C)pccccccccccccccscccccccccccce I,

§19-153(a),ccccccccccccccee 11, 12, 19, 20,

$19-153(D),ccccccsccccccccccccccceee I1, 12,

$19=155 (A) ,cccccccccccccccccccccccccccces

£ID—156,, cocccccsccccecceccsescecccecesesees

UNITED STATED SUPREME COURT RULES

17 e1(a) sp eceeececsvesesceseseseeeseseesese

TWel(C)zcccccccvsccscesesesssessesvesecves

UNITED STATES CONSTITUTION

First Amendment, coccsecescssseesessesesess

Tenth Amendment ,cccccccccsssesessessesees

Eleventh Amendment ,cecssccesesesceseeces

TEXTS

58 Am.Jur.2d, Nuisances, §12 (1971),ccccees

Newark, The Boundaries of Nuisance, 1949,

65 Lee ROVepecceessesesesesesesesseseseces

Stephen, General View of the Criminal law

of England, 1890 at 105, ccccccccccccccccs

Joyce, Law of Nuisances, §345 at page 498,.

HeGe Wood, The Law of Nuisances,

§§23 and 24 at pages 45-46, cccccccsccccce

§57 at page TJ]ecccccccccccececcecccccceee

§65 at page Bo, ccccveccccccecseseccecccce

§743 at page QToa,ccccccccccsereeceeeceece

-viii-

66 Corpus Juris Secundum, §3, "Nuisances

Per Se and Per Accidens"™ at page 733 et

SCGesgeeeeesseeesceesesessesseseseeeeseseess 56

McQuillen, Municipal Corporations, 4§26.80,. 58

IN THE

Supreme Court of the United States

October Term, 1986

CITY OF PADUCAH: JOHN K. PENROD, as Mayor, and JOE

VITERISI, ROBERT A. COLEMAN, HAROLD (SHORTY)

FORD and JAMES W. FLYNN, as Commissioners of said City:

JAMES W. UTTER, as Corporation Counsel, and THURMAN

BAKER, as Treasurer thereof,

Petitioners,

V. \

INVESTMENT ENTERTAINMENT, INC.;

BELTLINE NEWS AND ARCADE CLUB,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED |

STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT |

The petitioners City of Paducah, et

al. respectfully pray that a writ of

certiorari be issued to review the judg-

ment of the United States Court of

Appeals for the Sixth Circuit in the re-

moved state lawsuit, No. C83-0217-P (J)

being City of Paducah v. Investment Enter-

tainment, Inc., McCracken Ci cuit Court,

and the Civil Rights Actions Investment

Entertainment, Inc., (No. 85-5092) and

Beltline News and Arcade Club, (No.

85-5093) v. City of Paducah, et al.,

entered on May 28, 1986.

OPINIONS BELOW

The memorandum opinion of the United

States District Court for the Western

District of Kentucky at Paducah (Edward

H. Johnstone, District Judge) is reprinted

in Appendix "B" to this petition.

The opinion of the Court of Appeals

for the Sixth Circuit is reprinted in

Appendix "A" to this petition.

JURISDICTION

Invoking federal jurisdiction under

42 U.S.C. section 1983, 28 U.S.C. section

1343(a), and 28 U.S.C. section 2201,

Investment Entertainment, Inc., and

Beltline News and Arcade Club brought

separate civil rights actions in the

= Zan

United States District Court for the

Western District of Kentucky at Paducah,

seeking a declaratory judgment and injunc-

tive relief that Paducah's Public Nuisance

Ordinance 83-6-2388 was unconstitutional

both on its face and as applied to the

plaintiff, and that the license revocation

provision of the ordinance constituted

a “prior restraint" on free speech. (See

Appendix "E" for Investment Entertainment,

Inc.'s complaint).

Alleging diversity of citizenship,

Investment Entertainment, Inc., success-

fully removed the state court public

nuisance abatement action pending against

it to the federal district court. Belt-

line's attempted removal was unsuccessful

because there was no diversity of citizen-

ship. The District Court then consol-

idated all three (3) actions.

In an attempt to get the legal pro-

ceedings back into the state court system,

the City of Paducah answered and moved

for a Summary Judgment. In its answer,

(see Appewdix "G"), the City of Paducah

pleaded as a first defense that the

complaint failed to state a claim upon

which relief can be based under the Civil

Rights Statute, 42 U.S.C. section 1983;

as a fourth defense that the Federal

District Court should abstain from further

proceedings until a final determination

was made on the application of the

ordinance in the City's civil action

filed in the McCracken Circuit Court;

and as a fifth defense that no "prior

restraint" existed in applying the ord-

inance, in that a circuit court trial on

the merits was required before any

licenses could be revoked by the City of

Paducah. The Federal Court denied the

City's Motion for Summary Judgment and

sustained the Motion for Summary Judgment

of the two federal plaintiffs.

«Sa

The opinion of the Court of Appeals

was filed on May 28, 1986. This Court's

jurisdiction is invoked under 28 U.S.C.

section 1254(1) and rule 17.1l(a) and

17.1(c) of the U.S. Supreme Court, being

in conflict with a state court of last

resort, State of Idaho ex rel. Kidwell v.

U.S. Marketing, 102 Idaho 431, 631 P.2d

622 (1981) and with the principles

expressed in a recent decision of this

Court during the October Term, 1985, in

Arcara, District Attorney of Erie County

v. Cloud Books, Inc., etc., et al.,

U.S. , 54 L.W. 5060 (July 7, 1986).

CITY ORDINANCE INVOLVED

The text of City of Paducah Ordinance

No. 83-6-2388, enacted by the Board of

Commissioners on June 14, 1983, is set

forth at Appendix "C" to this petition.

STATEMENT OF THE CASE

The appeal herein presents this

Court with the question which was left

=a¢~

unanswered by this Court's recent decision

on July 7, 1986 in Arcara, District

Attorney of Erie County v. Cloud Books,

Inc., etc., @t al., UG 4

54 L.W. 5060 (July 7, 1986). Here, the

unlawful conduct and activities giving

rise to the public nuisance abatement

action, which the City Attorney was pre-

pared to prove in the State action below

and which was removed to the federal

court, is the maintenance of a public

nuisance in the form of a place of

business in which obscene publications

constitute all of the stock in trade, or

a principal part of the stock in trade.

See Arcara, 54 L.W. at 5061.

Petitioners City of Paducah et al.

contend that the federal judiciary

have unlawfully interfered with the

City's legislative process and right

under Watson v. Buck, 313 U.S. 387 (1941),

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

oJ=

(1975), and Middlesex County Ethics Com-

mittee v. Garden State Bar Association,

457 U.S. 423 (1982) to have newly

enacted Paducah Ordinance No. 83-6-2388

which contains a severability clause,

construed initially by the state court

system. Newly enacted Ordinance No.

83-6-2388 is not "flagrantly and patent-

ly 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", so as to permit federal

interference. The federal court was re-

guired to abstain. Watson v. Buck, 313

U.S. 387 (1941); Ohio Civil Rights Com-

mission ‘et al. v. Dayton Christian Schools

Inc., et al., 476 U.S. __—s,_-‘91 L.Ed. 2d

__, 54 L.W. 4860 at 4862 (June 27, 1986).

Petitioners further contend that

the test established by this Court in

ao. @. © eesen, 331 U.S. 367 is

inapplicable to Paducah Ordinance No. 83-

6-2388, inasmuch as O'Brien has no

relevance to an ordinance directed at

imposing sanctions on non-expressive

activity (a place of business which is

a manufactory of obscene materials)+

and that the sections held to be un-

constitutional below, namely, those

See Arcara, supra, 54 L.W. at 5062:

“The New York Court of Appeals held that the

O'Brien test for permissible governmental regula-

tion waS applicable to this case because the

closure order sought by petitioner would also

impose an incidental burden upon respondents'

bookselling activities. That court ignored a

crucial distinction between the circumstances pre-

sented in O'Brien and the circumstances of this

case: unlike the symbolic draft card burning in

O'Brien, the sexual activity carried on in this

case manifests absolutely no element of pro-

tected expression. In Paris Adult Theater I v.

Slaton, 413 U.S. 49, 67 (1973), we underscored the

fallacy of seeking to use the First Amendment as

a cloak for obviously unlawful public sexual con-

duct by the diaphanous device of attributing pro-

tected expressive attributes to that conduct.

First Amendment values may not be invoked by

merely linking the words 'sex' and ‘books'."

declaring such places (as distinguished

from "subject matter") to be public nui-

sances per se; and the sections revoking

all licenses and permits,were valid and do

not constitute “prior restraints".

STATEMENT OF FACTS |

{

INTRODUCTION

On June 14, 1983, the Board of

Commissioners of Paducah, Kentucky,

adopted a new procedural ordinance which

applied civil public nuisance controls to

the commercial exploitation of obscene

subject matter, i.e., businesses that

trade principally in obscene materials,

and declared such places to be public

nuisances per se. A copy is attached at

Appendix "C" to this petition.

The ordinance adopted by Paducah is

based upon a public nuisance "prototype"

ordinance upheld as a procedural ordinance

in People ex rel. Camil v. Buena Vista

Cinema, 57 Cal.App.3d 497, 129 Cal.Rptr.

-10-

315 (1976). Additionally, Paducah's

public nuisance abatement ordinance is

Similar to the public nuisance ordinance

which was upheld by the United States

District Court, Western District of

Pennsylvania in Eastern Books v. Bagnoni,

446 F.Supp. 643 (1978). A similar scheme

for a state public nuisance abatement

"prototype" statute was upheld in State

of Idaho ex rel. Kidwell v. U.S. Marketing,

102 Idaho 431, 631 P.2d. 622 (1981).

Ordinance 83-6-2388 is not directed

at businesses which may possess a few

items of "obscene" material as a part of

their stock in trade. Obscene subject

matter has not been made a public nuisance

by the Ordinance unless and until the

place of business itself is first found

to be a public nuisance under the ord-

inance, that is, a place of business

in which obscene publications constitute

all of the stock in trade, or a principal

Ne ante mae wee

-jl-

part of the stock in trade. See Appendix

"C" at section 19-153 (B).

Again, in the case of the exhibition

of films at a theater, the place (theater)

is the public nuisance, see Appendix "C"

at sections 19-152(A) and 19-152(B), and

the films must be “publicly exhibited

as a regular course of business", ora

film must be "publicly and repeatedly

exhibited" at a "place" which has been

found to be a public nuisance before

such films (if found to be obscene) would

be designated as "public nuisances" with-

in the Ordinance. See Appendix "C" at

section 19-152(C).

Two months after adoption of the

ordinance, the Board of Commissioners

conducted a public hearing and reviewed

specific examples of materials which had

been purchased from a place of business

known as Investment Entertainment, Inc.,

and heard the testimony of the investi-

-12-

gating officer regarding the content and

character of the general stock in trade

of such business.

Following the public hearing on

August 3, 1983, at which a representative

of Investment Entertainment, Inc. was

invited to appear, the Board of Commis-

sioners adopted a resolution finding that

the place of business was a public nuisance

pursuant to section 19-153(A) and that

the specific materials which had been

purchased and all of the stock in trade

of thet place of business was obscene

and a public nuisance under section 19-

153(B) of the City of Paducah, being

“obscene publications” possessed at a

place of business which is a public nui-

sance under section 19-153(A), and order-

ed the corporation counsel, pursuant to

section 19-156, to instigate judicial

proceedings within 5 days to abate such

public nuisance and to obtain judicial

-l13-

confirmation of the City Commissioner's

license revocation. The resolution (see

Appendix "D") revoked all licenses and

permits. Under section 19-155(D) of

the Ordinance, such revocation by the

City Commissioners was made subject to

confirmation by the McCracken Circuit

Court in judicial proceedings. Said

section provides further that "criminal

proceedings for transacting business

without a license at such address shall

not be filed until the order of license

revocation by the Board of Commissioners

has been confirmed by judicial order."

Under Paducah Ordinance 83-6-2388,

the resolution of the City Commissioners

is simply a written memorialization of

the executive decision of the City's

Board of Commissioners to file a lawsuit.

The commission was not required to exam-

ine all of the stock in trade, but could

take into account the testimony of the

-14g-

investigating officer to the effect that ,

all of the stock in trade was substan-

tially the same as that purchased at

random and examined by the Commissioners -*/

However, under the City's "Burden

of Proof" in the State Court action, the

City is required to prove that all of

the stock in trade, or a principal part

thereof is obscene. Further, the

question as to whether the license revo-

cation should be "confirmed" would be a

matter within the “equitable discretion"

of the trial judge. The trial judge is

See Appendix "B", herein, where U.S.

District Court Judge Johnstone stated:

"The only effect of the Board's action was

the initiation of tudicial proceedings against

Investment. The ordinance recognizes that all

and binding determinations must be made by the ce

involved in the judicial proceedings. Due process

does not require that decisions to initiate judicial

proceedings be made pursuant to some type of evident

standard or that they be made only after notice

has been given to the affected parties. Viewed

Strictly as a means of determining when to ;

initiate judicial proceedings, the ordinance

does not violate due process. See Buena

Vista Cinema, 129 Cal.Rptr. 315, 318 (Cal.Ct.App.

iar

1976). i

BEST AVAILABLE COPY

-15-

not required to confirm the Commissioners'

revocation. There is no “ordinance" or

"statute" which mandates the trial judge

to act in a particular fashion. Compare

section 2329 of the New York Public

Health Law in Arcara, supra, which re-

guires closure of a building found to be

a nuisance under 2320.

On the same date that the public

hearing was conducted, and at which its

representation was invited, (August 3,

1983) Investment Entertainment, Inc.

filed a civil rights complaint in the

United States District Court for the

Western District of Kentucky, see

Appendix "E" to this petition, requesting

the court to enjoin Paducah from

enforcing Ordinance No. 83-6-2388, al-

legingthat the ordinance was unconsti-

tutional on its face and as applied, and

that the provisions of said ordinance

-16- ;

and the enforcement procedures set forth

therein, constitute an unconstitutional

"prior restraint" and a deprivation of

plaintiff's rights, liberty and property

without due process of law.

One week after the public hearing

(August 10, 1983) Paducah filed a civil

complaint in the McCracken Circuit

Court (see Appendix "F" to this petition)

asking the state court to determine that )

the place of business operated by

Investment Entertainment, Inc., is a

public nuisance, and that the action

taken by the Board of Commissioners to

revoke the licenses issued to that place

of business was lawful, and that any

obscene films be forfeited as contraband.

On August 16, 1983 Paducah answered

the federal complaint. In its answer, see

Appendix "G" to this petition, Paducah

pleaded as a first defense that the

complaint failed to state a claim upon

-17-

which relief can be based under the

civil rights statute, 42 U.S.C. section

1983; as a fourth defense, that the

Federal District Court should abstain

from further proceedings until a final

determination was made on the application

of the ordinance in the City's civil

action filed in the McCracken Circuit

Court; and as a fifth defense, that no

“prior restraint" existed in applying

the ordinance, in that a circuit court

trial on the merits was required before

any licenses could be revoked and then,

only after the trial court, sitting in

Equity, had exercised its equitable

discretion to confirm or deny the

license -revocation.

One week later (August 17, 1983)

Ineeatenan Entertainment filed a petition

for removal to the United States District

Court. On October 3, 1983, the District

Court consolidated the two actions into

-18-

Civil Action No. 83-0208P(J). Investment

answered the state action and counter-

claimed against Paducah under the Civil

Rights Statute, to which Paducah replied.

BELTLINE NEWS AND ARCADE CLUB

As to Beltline, the proceedings in

the federal and state courts were

similar to Investment, except that the

District Court found that there was no

diversity of citizenship and remanded

the City's complaint against Beltline

to the McCracken Circuit Court, where

said action is still pending.

In both federal lawsuits, all of

the parties filed motions for summary

judgment. A copy of the four (4)

Summary Judgment Motions is attached

at Appendix "H" to this petition.

On January 5, 1985, the Hon.

Edward H. Johnstone, Judge of the Unite!

States District Court, entered a memo-:

-19-

randum opinion in Investment Enter-

tainment v. City of Paducah in which he

held that Paducah did not have the power

to declare a miunufactory of obscene

materials to be a place which was a

public suisance.>

Judge Johnstone noted that the

Opinion of the Idaho Supreme Court in

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

102 IDAHO 431 (1981), provided contrary

authority which he chose not to follow.

See Appendix "B" at page B-)%.

See Appendix "B", herein, reading in part:

;

“Investment does contend that Ordinance

No. 83-6-2388 declares property to be a public

nuisance in a way which impermissibly punishes

non-obscene, protected speech. The court agrees";

and, .

"On the other hand, non-obscene materials

are entitled to great protection, and therein

lies the danger of Ordinance No. 83-6-2388. By

going beyond the obscene materials themselves

and focusing on the place where the obscene

materials are sold or exhibited, the ordinance

improperly intrudes upon protected expression.

Because of this focus on places rather than

materials, the court finds that Section 19-152(A)

and (B) and Section 19-153(A) are unconstitutional."

-20- |

Judge Johnstone's memorandum of

opinion in Beltline, entered on January 7,

1985, adopted his memorandum opinion in the

Investment case.

On January 7, 1985, the District Court

sustained the Motion of Beltline for Sum- )

mary Judgment in Beltline News and Arcade

Club Inc. v. City of Paducah, et al., and

declared Sections 19-152 and 19-153 of |

Ordinance No. 83-6-2388 to be unconstitu-

tional and enjoined their enforcement. On |

January 8, 1985, the District Court entered

substantially the same Order in Investment

Entertainment Inc. v. City of Paducah, et

al.

On January 29, 1985, Paducah filed

notices of appeal. On May 28, 1986 the

Court of Appeals filed its opinion. See

Appendix "A" to this petition.

The Court of Appeal did not discuss

Judge Johnstone's proposition of law that

Paducah did not constitutionally possess

Ne a a _

-21-

the power to declare a "place of business

in the City of Paducah in which obscene

publications constituted all of the stock

in trade, or a principal part thereof" to

be a per se public nuisance. The Court of

Appeals' majority opinion held the ordin-

ance to be facially invalid, and affirmed

the U.S. District Court judgment on the

Court of Appeals' interpretation that the

revocation of all licenses and permits "is

a prior restraint of plaintiff's freedom

, 4

of expression."4/

See Appendix "A", herein, reading in part:

"No doubt one of the purposes of Paducah's

license revocation ordinance is to deter

the sale and exhibition of obscene material.

But the ordinance goes beyond this purpose

as District Judge Johnstone found. The main

thrust of the abatement procedure is the

revocation of all licenses and permits under

which the business in question operates.

Even under the so-called padlock laws, a

business operator remains free to engage in

protected expression in another location. Paducah's

-22-

The Court of Appeals did not analyze

section 19-153(A) of the ordinance which

provides that "Where such obscene publi-

cations constitute only a part of the

stock in trade and are located in a place

or places within such business which are

capable of demarcation, such place or

places constitute the public nuisance

which requires abatement". Paducah sub-

mits that a reasonable (state court)

interpretation of section 19-153(A) would

hold that (1) the balance of the stock in

trade (nonobscene) does not require

procedure of revoking business licenses is

more restrictive in that it essentially pre-

vents the offending business from engaging

in future distribution of protected, nonob-

scene material anywhere within the City of

Paducah. We therefore conclude that the

ordinance's use of license revocation as a

weapon against obscenity goes beyond merely

deterring or punishing individuals who deal

in obscene material. The ordinance's pur-

pose, as evidenced by the license revocation

provision, is to control future expression

by businesses that have been subjected to

the nuisance abatement procedure. The

ordinance is a prior restraint Of plain-

tiff's freedom of expression."

abatement, and (2) that once the of-

fending stock in trade is abated, (a) the

trial court would be authorized to

exercise its discretion and decide the

license need not be revoked or, if re-

voked by the Court that, thereafter, (b)

an application for a new license would be

considered by the City if the unlawful

place of business had been abated. See

Art Theater Guild Inc., et al., v. Ohio

ex rel. Ewing, 37 Ohio St.2d 95, 307

N.E.2d 911 (February 27, 1974); appeal

dismissed for want of a substantial

federal question in Art Theater Guild

Inc., et al., v. Ohio ex rel. Ewing, 421

U.S. 923, 44 L.Ed.2d 82, 95 S.Ct. 1649

(April a. 1975). The Court of Appeals

also noted that it would decline to ad-

dress the severability question.

= fl

SUMMARY OF ARGUMENT

nil sett, athena

;

Under Watson v. Buck, Huffman v.

Pursue, Ltd., and Middlesex County Ethics

Committee v. Garden State Bar Associa~

tion, the federal court was required to

abstain and dismiss the federal civil

arene meg, Ga mt nee te Lt ANE tt os SE ie

rights action in order that the state

court might be given an opportunity in ;

- the state action to render an initial

construction (including severance) of the

newly enacted Paducah public nuisance

abatement ordinance.

Where abstention is pleaded as a de-

fense to a federal action challenging the

constitutionality of a newly enacted city

ordinance which is also the subject of a

state complaint in a state court, the

federal court must abstain unless it is

shown that the challenged ordinance is

"flagrantly and patently violative of ex-

press constitutional prohibitions in

-25-

every clause, sentence, and paragraph and

in whatever manner and against whomever

an effort might be made to apply it.";

that is, the plaintiff must be able to

show that the city ordinance could not be

rendered constitutional by any decision

of the state court.

To establish an exception to absten-

tion under Watson v. Buck, one must show

“exceptional circumstances" and "great

and immediate danger of irreparable

loss". Such an exception is lacking here

where the terms of the Paducah public

nuisance abatement ordinance: (a) pre-

clude the use of the criminal process,

(b) restrict the city to its use of the

civil remedy of a public nuisance abate-

ment lawsuit, (3) provide that license

revocation does not take effect until

after a trial on the merits, and a find-

ing that the place of business was one

in which obscene publications constitute

-26-

all of the stock in trade or a principal

part of the stock in trade, and where (4)

a trial court has discretion to confirm

or deny the license revocation.

Under Younger-Huffman abstention,

the federal court may not retain juris-

diction, but must dismiss the federal

Civil rights complaint.

Not every civil rights complainant

is entitled to one unencumbered opportu-

nity to litigate his federal right in a

federal district court.

Under Middlesex County Ethics Commit-

tee v. Garden State Bar Association, 457

U.S. 423, federal abstention is mandated

whenever the challenged city ordinance in-

volves an important state interest which

is involved in a pending state court ac-

tion in which the constitutional chal-

lenges can be raised, and there is no bad

faith, harrassment, or some other extraor-

dinary circumstances.

at Fa

Paducah did not waive its defense of

abstention or consent to federal juris-

diction. See Ohio Civil Rights Commis-

sion, et al. v. Dayton Christian Schools,

inc. , S& Biss £76 US. , 54 L.W. 4860

at 4862 (June 27, 1986). On the contra-

ry, Paducah asked the federal court to

grant summary judgment on its abstention

defense.

Practical reasons require absten-

tion: (1) a federal court lacks juris-

diction to authoritatively construe state

legislation; (2) state and federal courts

approach the task of statutory construc-

tion from an entirely different perspec-

tive; (3) the question as to whether a

city ordinance is severable is more prop-

erly a matter for the state court, and

(4) federal interference promotes judi-

cial inefficiency.

Id.

Paducah Ordinance 83-6-2388 is not

-28-

unconstitutional on its face in the

"sense" of Watson v. Buck. Contrary to

the conclusion of law expressed by United

States District Judge Johnstone, the City

of Paducah possesses the historic common

law power of cities to declare a place of

business which is a "manufactory of ob-

scere materials" to be a moral public nui-

sance.

Further, an ordinance which revokes

all licenses and permits of a place of

business which is a per se moral public

nuisance does not constitute an unlawful

“prior restraint". It represents a proper

implementation of the governmental power

of a city to license places of "lawful

businesses" and to revoke licenses of

places of “unlawful businesses".

The Paducah Ordinance controls places

of business which are immoral public nui-

sances, and not "writings". Accordingly,

the Paducah ordinance is unrelated to ex-

-29-

pressive activity and the test for per-

missible governmental regulation expres-

sed

for

the

The

in U.S. v. O'Brien is inapplicable

the reasons given in Arcara.

The right of cities to legislate in

area of public nuisances is historic.

right of a court to pass upon the

correctness of the revocation of a li-

cense is fundamental.

The Civil Rights Action also failed

to state sufficient facts to constitute a

claim upon which federal relief can be

based.

a race ee

-30-

REASONS FOR GRANTING THE WRIT

UNDER THE TRIAL FACTS AND THE

PRINCIPLES EXPRESSED BY THIS -

COURT IN WATSON v. BUCK, HUFF-

MAN v. PURSUE LTD. AND

MIDDLESEX COUNTY ETHICS CON-

MITTEE v. GARDEN STATE BAR

ASS'N., THE FEDERAL JUDICIARY

WAS REQUIRED TO ABSTAIN AND

DISMISS THE FEDERAL CIVIL

RIGHTS ACTION.

Under the principles expressed by

this Court in Watson v. Buck, 313 U.S.

387 (1941); Huffman v. Pursue Ltd., 420

U.S. 592 (1975); and Middlesex County

Ethics Committee v. Garden State Bar

Ass'n., 457 U.S. 423 (1982); the federal

judiciary was required to abstain and

dismiss the federal civil rights action.

I(A) Under The Trial Facts, The

Test In Watson v. Buck Is Con-

trolling And Must Be Applied.

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

(1941), the District Court for the Nor-

thern District of Florida had enjoined a

Florida Statute containing a severability

‘

;

‘

A We ila is i A

clause which had never been before the

Florida Supreme Court for interpretation.

In reversing that judgment and the

granting of the injunction, Justice Black

speaking for the U.S. Supreme Court, held

at pages 401-402 that a state statute

which contains a severability clause must

be "flagrantly and patently violative of

express constitutional prohibitions in

every clause, sentence, and paragraph,

and in whatever matter and against whom-

ever an effort might be made to apply it.

. .-" before a federal court can interfere

with the right of the state court to

interpret such legislation.

Because Paducah Ordinance No.

83-6-2388 was new legislation containing

a severability clause which was the sub-

ject of a declaratory judgment action in

the state court which was about to con-

strue it for the first time, and because

neither the U.S. District Court nor the

-32-

Court of Appeals' opinions made a finding

that the ordinance was unconstitutional

on its face, in the sense that it was

"flagrantly and patently violative of

express constitutional prohibitions in

every clause, sentence, and paragraph,

and in whatever matter and against whom-

ever an effort might be made to apply it"

the ordinance must be tested by the rule

expressed in Watson v. Buck. In sucha

case, it is reversible error for a

federal court to grant an injunction and

preempt the state court from its func-

tion, unless the record shows there were

"exceptional circumstances and a clear

showing that an injunction is necessary

in order to afford adequate protection

of constitutional rights. ..." Fur-

ther, under Watson v. Buck, that "clear

showing" must demonstrate that the danger

of irreparable loss “is both great and

immediate." --- otherwise the defenses

must be set up in the state court even

though the validity of the ordinance is

challenged, for there is ample oppor-

tunity for ultimate review by the U.S.

Supreme Court of federal questions.

Paducah submits that, because the

City may not use the criminal process,

and has the burden of proof in the pen-

ding state civil public nuisance abate-

ment lawsuit of establishing the exis~

tence of such public nuisance in a trial

on the merits before the license re-

vocation may be considered by the trial

judge andconfirmed or denied by him in

the trial court's discretion, it is

patent upon the face of Paducah Ordin-

ance 83-6-2388 that the danger of irre-

parable loss cannot be "both great and

immediate."

Further, because Paducah, pursuant

to its municipal powers, has adopted the

public nuisance approach; i.e., declared

=34-

the unlawful use to be a "per se” moral

public nuisance, the question as to

whether an exception exists under the

test in Watson v. Buck, supra, must also

be examined in the light of Huffman v.

Pursue Ltd., supra, which considered the

abstention issue in relation to an Ohio

public nuisance abatement statute.

I(B) Under the General Principles

Expressed In Huffman v. Pursue Ltd.

And Middlesex County Ethics Commit-

tee v. Garden State Bar Assn. The

Federal Court Must Abstain If An Im-

portant State Interest Is Involved

And If The Statute Is Susceptible Of

A Constitutional Construction In The

State Court. It May Only "Assume

Jurisdiction" Where The Challenged

Statute Is “Flagrantly And Patently

Violative Of Express Constitutional

Prohibitions In Every Clause, Sen-

tence And Paragraph And In Whatever

Manner And Against Whomever An Ef-

fort Might Be Made To Apply It."

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

(1975), considered the same “important

state interest" that is involved herein.

Huffman, however, was not ordered dis-

missed, but was remanded to the U.S.

District Court to determine whether the

court could "assume jurisdiction"; that

is at page 497:

"whether . . . the District Court

may assume jurisdiction under an

exception to the (Younger) policy

against federal judicial inter-

ference with state court proceedings

of this kind." (our emphasis).

During the 1976 October Term, how-

ever, Huffman v. Pursue Ltd., supra, was

further applied by this Court in other

Civil cases: Juidice v. Vail, 430 U.S.

327 (Mar. 22, 1977) and Trainor v.

Hernandez, 431 U.S. 434 (May 31, 1977)

and distinguished in Ohio Bureau of Em-

ployment Services v. Hodory, 431 U.S. 471

(1977). In his dissent in Juidice

Justice Stewart noted a significant dif-

ference between Pullman abstention and

Younger-Huffman abstention, at page 348:

", . . Both types of 'absten-

tion' of course, serve the common

goal of judicial restraint as a

means of avoiding undue federal

interference with state goals and

-36-

functions. But there is a signi-

ficant difference in result between

the two. Under Pullman abstention

the federal court may retain juris-

diction pending state-court inter-

pretation of an ambiguous statute,

while under Younger it may not."

(our emphasis).

See also Trainor v. Hernandez, -/ 431 U.S.

434, 445 (May 31, 1977) and Moore v.

Sims, 442 U.S. 415, 430 (June 11, 1979),

citing the Trainor v. Hernandez text

noted above, in holding that the

principles of Younger-Huffman, acted as

a bar.

While the language of this Court in

the above cases does not specifically

hold that federal "jurisdiction" is in

question, due to the interaction of 10th

and llth Amendment principles; if that were

not at the very core of the problem, what

would be the reason for distinguishing

between Pullman abstention and

5/ In Trainor v. Hernandez, supra, the Court

held that where Huffman v. Pursue Ltd. applies,

pendency of the state court action called for

dismissal of the complaint.

}

PRD CIR PNP PA ae et obitiva Cries UA ree

J hesesabites iain

Younger- Huffman abstention? See, also,

Ohio Civil Rights Commission et al., v.

Dayton Christian Schools, Inc., et al.,

476 U.S. ____ (June 27, 1986).

That a federal court lacks "juris-

diction" in matters involving state

sovereignty, where the trial facts show

that the constitutional claim can be

raised and fully litigated in a civil

action in the state court, finds support

in the rationale expressed in Allen v.

McCurry, 449 U.S. 90 (Dec. 9, 1980). In

Allen et al. v. McCurry, supra, a

majority of this Court had occasion to

reflect upon the "legislative intent"

which authorized federal jurisdiction in

Civil Rights cases, under the authority

of 42 U.S.C. Section 1983. In that de-

cision, the majority made it clear that,

except where the claim was made that a

state statute was totally

en ea eT

~%@-

unconstitutional on its face, it was not

intended by Congress that the federal

courts should have jurisdiction over a

42 U.S.C. Section 1983 federal cause of

action where the state courts were avail-

able, as here, to allow full litigation

a ON ae ae Tee

of the constitutional claim. See Allen

et al. v. McCurry, supra, at page 100: |

", . « To the extent that it

did intend to change the balance of

power over federal questions between

the state and federal courts, the

42d Congress was acting in a way

thoroughly consistent with the

doctrines of preclusion. In review-

ing the legislative history of

section 1983 in Monroe v. Pape,

supra, the Court inferred that Con-

gress had intended a federal remedy

in three circumstances: where state |

substantive law was facially un- |

constitutional, where state pro- |

cedural law was inadeguate to allow

full litigation of a constitutional

claim, and where state procedural

law, though adequate in theory, was

inadequate in practice. 365 U.S. at |

173-174. In short, the federal |

courts could step in where the state

courts were unable or unwilling to |

protect federal rights. Id., at |

176." (our emphasis). |

Under Allen et al. v. McCurry, supra, |

neither Investment Entertainment, Inc. |

-39-

nor Beltline News and Arcade Club, can

claim that every litigant asserting a 42

U.S.C. Section 1983 federal right is en-

titled to one unencumbered opportunity

to litigate the federal right in a

federal district court. See Allen, et

al. v. McCurry, 449 U.S. 90 at103 and 105.

In remanding Huffman to determine whether

the District Court "may assume jurisdic-

tion, " this Court defined the "jurisdic-

tional" boundary line of that Younger

"exception" at page 496 as:

"Younger, and its civil counterpart

which we apply today, do, of course,

allow intervention in those cases

where the District Court properly

finds that the state proceeding is

motivated by a desire to harass or

is conducted in bad faith or where

the challenged statute is ‘'flag-

rantly and patently violative of

express constitutional prohibitions

in every clause, sentence and para-

graph, and in whatever manner and

against whomever an effort might be

made to apply it.' As we have

noted, the District Court in this

case did not rule on the Younger

issue, and thus apparently has not

considered whether its intervention

was justified by one of these nar-

~40-

row exceptions. (our

emphasis).

The above rule of law, first voiced

in Buck v. Watson, 313 U.S. at 401-402

and cited with approval in Younger v.

Harris, 401 U.S. 37 at 53-54 (1971) and

in Huffman v. Pursue Ltd., at p. 60, fn.

14, was correctly expressed by the United

States District Court, M.D. Florida,

Tampa Division in Stecher v. Askew, 432

F.Supp. 997 at 999 (1977):

"While, as a general rule, a State

Supreme Court may construe a statute

which appears unconstitutional on

its face in such a way as to render

its application consitutional, see

e.g., Wainwright v. Stone, 414 U.S.

21. (934 S.Ct. 190, 36 L.8a.2d 179)

(1973), there may be cases in which

such a construction, even though

attempted, may be impossible. Under

the facts alleged in the complaint,

the plaintiff has standing to assert

that this statute presents such a

Situation. The plaintiff has stan-

ding as to this issue: to wit,

whether the statute is unconstitu-

tional on its face and could not be

rendered constitutional by any de-

cision of the Florida Supreme

Court." (our emphasis).

In seeking intervention by the federal

fone ea com ae

wii

court, the federal plaintiffs must suc-

cessfully demonstrate that no further

interpretation could bring City of

Paducah Ordinance 83-6-2388 under ques-

- tion within the confines of the protec-

tions insured by the Constitution. If

there is any saving interpretation which

the state court could make, plaintiffs

must demonstrate that the state courts

will not so construe it.

In Middlesex County Ethics

Committee, etc. v. Garden State Bar

Assn., et al., 457 U.S. 423 (June 21,

1982), disciplinary proceedings were in-

stituted by the local committee of the

New Juersey disciplinary system against

an attorney based upon an allegation of

unethical conduct. Upon filing of a

formal statement of charges, the respon-

dent refused to answer, but instead filed

suit in the United States District Court

contending that the disciplinary rules

violated his First Amendment right of

free speech. The District Court granted

the Bar Association's Motion to Dismiss

based on Younger v. Harris, 401 U.S. 37

(1971), but the Court of Appeals reversed.

On appeal, the majority of this Court

held that abstention was mandated, under

the general principles previously ex-

pressed by this Court, "when important

state interests are involved." See

Middlesex County Ethics Committee, supra

at pages 432-435, which enunciates a test

for Federal Court abstention in criminal

and non-criminal proceedings involving

"important state interests," which con-

trolled the discretion of the S6iuth Cir-

cuit below. The record herein demon-

iam

strates that the Middlesex County Ethics

Committee test has been satisfied and

abstention is mandated. The federal

court proceedings implicated an "“impor-

tant state interest" (obscenity legis-

lation). U.S. v. 12-200 Foot Reels,

~43-

413 UB. 223 at 230, tay?

"we further note that . - - We must

leave to state courts the construc-

tion of state legislation. ..- -

(our emphasis).

See also, Paris Adult Theatre Vv. Slaton,

413 U.S. 49 at 57:

"| . we hold that there are legit-

jmate state interests at stake in

stemming the tide of commercialized

obscenity. - +--+ i

and at page 59:

"there is a 'right of the states to

maintain a decent society. - - _

"the salient fact is whether federal-

court interference would unduly interfere

with the legitimate activities of the

state." See Middlesex County at page

433 footnote 12. The same constitution-

al challenges could have made in the

state court. It was a usurpation of

jurisdiction, for the Sixth Circuit to

fail to abstain from the exercise of

jurisdiction in this matter, in light of

Paducah's refusal to waive the attribute

of state sovereignty.

-44-

I(C) Paducah Has Not Waived Its

Defense of Abstention. The Federal

Court Must Return the Paducah Or-

dinance to the State System for an

Authoritative Construction by the

State Court.

In his concurring opinion, Justice

Wellford thought that "abstention" was

appropriate, but concluded that the issue

had been waived, in reliance on Ohio

Bureau of Employment Services v. Hodory,

431 U.S. 471 (1977). Paducah submits that

Justice Wellford's reliance on Hodory for

"waiver" of abstention is misplaced. Here,

unlike Hodory, there are "strong policies

counseling against the exercise of such

jurisdiction where particular kinds of

state proceedings have already been com-

menced" and appellate review is being ex-

ercised in the context of the federal

court's denial of Paducah's Summary Judg-

ment Motion, in which "Younger-Huffman

abstention was pleaded by the City as its

fourth defense in its answer to the

-45-

federal complaint (See Appendix "G").

See Ohio Civil Rights Commission et al. v.

Dayton Christian Schools, Inc., et al.,

476 U.S. , 54 L.W. 4860 at 4862 (June

27, 1986), where the Commission had filed

a Motion to Dismiss, based upon the ab-

stention doctrine, and had also filed

various documents defending its action on

the merits. There, this Court held there

was no waiver:

“Having taken jurisdiction over

the decision below, we now turn to

whether the District Court should

have exercised jurisdiction over

the case itself. We conclude that

the District Court should have ab-

stained from adjudicating this case

under Younger v. Harris, 401 U.S.

37 (1971), and later cases. The

Commission urged such abstention in

the District Court, and on oral ar-

gument here. Tr. of Oral Arg., /-8.

Dayton has filed a post argument

brief urging that the Commission has

waived any claim to abstention be-

cause it had stipulated in the Dis-

trict Court that the Court had juris-

diction of the action. We think,

however, that this argument miscon-

ceives the nature of Younger absten-

tion. It does not arise from lack

of jurisdiction in the District Court,

but from strong policies counseling

-46-

against the exercise of such juris-

diction where particular kinds of

state proceedings have already been

commenced. A state may of course

voluntarily submit to federal juris-

diction even though it might have

had tenable claim for abstention.

See Brown v. Hotel Employees, 468

U.S. 491, 500, n. 9 (1984); Ohio

Bureau of Employment Services v.

Hodory, 431 U.S. 471, 479-480. (1977);

Sosna v. Iowa, 419 U.S. 393, 396-397,

n. 3 (1975). But in each of these

cases, the State expressly urged this

Court or the District Court to pro-

ceed to an adjudication of the con-

stitutional merits. We think there

was no Similar consent or waiver

here, and we therefore address the

issue of whether the District Court

should have abstained from deciding

the case." (our emphasis).

Here, Paducah did not "expressly urge"

the District Court ex the Court of Appeal

below to proceed to an adjudication of the

constitutional merits. On the contrary,

Paducah asked the Court to grant Summary

Judgment and to defer to the state court

lawsuits, which had been interfered with |

by the filing of the Civil Rights Action,

and whose jurisdiction had been terminated

by the removal action.

There are a number of practical

eee

iF.

reasons why abstention should be mandated

in this case:

(1) A Federal Court Lacks Jurisdiction

to Authoritatively Construe State Legis-

lation.

A federal court lacks jurisdiction

to authoritatively construe state legis-

lation involving the "important state

interest" of obscenity constraints, see

U.S. v. Thirty-Seven Photographs, 402

U.S. 363 (1971), a task which is routine-

ly performed by state courts.

Further, were the Kentucky State

Supreme Court to say that "black" is

"white", or that the Paducah Ordinance

has an entirely different meaning than

that ascribed to it by the Sixth Circuit,

the federal system on an appeal from that

judgment must accept that interpretation

Kingsley Pictures Corp. v. Regents, 360

U.S. 684, 688 (1959).

(2) A State Court Approaches the Task of

Construing a City Ordinance from an En-

tirely Different Perspective.

-48-

There is a marked difference in the

way in which the state and federal courts

approach the constitutional issue regard-

ing state legislation. Because of the

doctrine of separation of powers in State

Constitutions, the rule has evolved that

state courts are obliged to render a con-

struction of state legislation which will

arrive at a constitutional result. See

People ex rel. Busch v. Projection Room

Theater, 17 Cal.3d 55 where the California

Supreme Court noted, at page 60:

"We are obliged to construe and in-

terpret legislation in a manner

which will uphold its validity. (Ci-

tations). Thus, the courts have held

that provision for a prior adversary

hearing may be implied by law in p

otherwise silent statutory provi-

sions." i

and compare, U.S. v. 37 Photographs, supra.

Federal courts do not bear the same

relationship to state legislatures; accor-

dingly, the end result is certain to

differ.

-49-

(3) The Question As To Whether a |

City Ordinance is "Severable" Is More

Properly A Matter For The State Court. |

The question as to whether defective

federal and state legislation may be

"saved" by statutory construction or by

severance of the defective portion presents

important public policy matters for both

federal and state governments. See Tilton

v. Richardson, 403 U.S. 672 at 684, where

Chief Justice Burger noted:

"The cardinal principal of statutory

construction is to save and not

destroy."

The question as to whether a City

Ordinance is severable is more properly a

matter for the State Court. See Watson

v. Buck, supra. In a recent statement

confirming the importance of the "statu-

tory construction" factor and the right

of state court to interpret city ordinances,

this Court in Metromedia, Inc. v. San

Diego, 453 U.S. 490 (1981) (involving a

direct appeal of a city ordinance after a

state court decision by the California

Supreme Court upholding the ordinance on

its face), remanded the case back to the

California Supreme Court for further

statutory construction by the state court,

notwithstanding it held the ordinance to

be unconstitutional on its face. See,

in particular, Justice White's opinion an-

nouncing the judgment of the Court at page

521, fn. 26, wherein he addresses the is-

sue of severability and the responsibil-

ity and right of state courts in that

regard.

The dilemma is how this procedural

step is to be accomplished when, as here,

the federal court "interferes" with the

functioning of the state court system.

(4) Federal Interference Promotes

Judicial Inefficiency.

The judicial inefficiency of con-

tinuing to permit the federal system to

entertain jurisdiction of civil rights

cases of this sort and render judgments

-51-

thereon which, in the final analysis under

Dombrowski, are and must be inconclusive,

when the state court system is ready,

willing and able to consider the identi-

cal issues and render a judgment thereon,

which will be binding and conclusive, is

apparent from the record herein.

Federal interference has increased

the period of uncertainty and multiplied

the costs of litigation. If the ordin-

ance is to be pursued further, Paducah

must start anew without the benefit of a

definitive state court decision, and bur-

dened with the conflicting views of the

federal judges which will become a part

of the law of this case.

U.S. District Judge Johnstone ruled

that the ordinance's use of undefined

terms such as “regular course of business",

"repeatedly", and "principal part", was

a defect, and would give business oper-

ators no notice of what conduct the

=§2-

ordinance reached; on the other hand,

Justice Wellford, in his concurring opin-

ion, took note of the majority's failure

to discuss this aspect and stated in an

"aside" that:

"I have no problem, as did the

District Court, with the words

‘regular course of business' and

‘repeatedly' as used in the ordin-

ance in question. I do not find

them 'vague’ or overbroad, examined

in context with their use in the

opginange@. ..«.»”

Justice Wellford disagreed with

Justices Merritt and Celebrezze's a:sess-

ment that the license revocation provision

was entirely inadequate. In his concur-

ring opinion, Justice Wellford stated:

"I do not harbor the serious reser-

vations of Judge Merritt that ob-

scenity ordinances may not, under

any circumstances, validly revoke a

business license of one dealing in

obscenity, properly defined, in a

particular location. A permanent

revocation of license may be too

broad a sanction in the situation

before us... ."

Justices Merritt and Celebrezze felt

that the license revocation required sever-

ence -- but failed to address the issue.

~5 3-

PADUCAH ORDINANCE 83-6-2388

IS NOT “UNCONSTITUTIONAL ON

ITS FACE", IN THE SENSE THAT

TERM IS USED IN WATSON v.

BUCK AND HUFFMAN v. PURSUE,

LTD.

Paducah submits that Ordinance

83-6-2388 is not unconstitutional on its

face in the "sense" of Watson v. Buck and

Huffman v. Pursue, Ltd.

The City of Paducah possesses the

historic common law power of cities to

declare a "manufactory of obscene materi-

als" (i.e., a place of business in which

obscene publications constitute all of

the stock in trade, or a principle part

thereof) to be a moral public nuisance

per se. - Further, an ordinance which re-

vokes all licenses and permits of such a

place of business where no criminal pro-

ceedings may be brought for transacting

business without a license unless and un-

til the Public Nuisance per se has been

-54-

established at a trial on the merits, and

the trial judge has equitable discretion

to confirm or deny the license revocation,

does not constitute an unlawful “prior

restraint". It represents a proper in-

plementation of the governmental power of

a city to license lawful businesses, and

to revoke licenses of unlawful businesses.

II(A) Paducah's Motions For

Summary Judgment Should Have

Been Sustained. The City Has

A Historic Right To Declare

A Place To Be A Public Nuisance

And To Revoke Business Licenses

Of Unlawful Activities. That

Sovereign Right Of Government

Is Unrelated To Expressive

Activity And May Not Be Enjoin-

ed Or Interfered With By The

Federal Courts. U.S. v. O'Brien

Is Inapplicable.

As explained above, [6 ~jg, Paducah

Ordinance 83-6-2388 is not directed at

"obscene" subject matter as "subject mat-

ter"; rather it is directed entirely at a

"place" which is a "manufactory" of ob-

scene subject matter. The right of a City

-55-

to abate "places" and unlawful businesses

which are per se moral public nuisnaces

is historic. Contrary to the rulings of

the United States District Court and the

Court of Appeals, Sixth Circuit, which

enjoined that right and the use of that

power, the right of the City of Paducah

to legislate on the subject matter of

immoral public places is unequivocal, in

that the right to abate a "place" as dis-

tinguished from a "writing", etc., is un-

related to expressive activity. The test

for permissible governmental regulation,

expressed in United States v. O'Brien,

391 U.S. 367 (1968) would, therefore,

seem to be inapplicable for the reasons

given in Arcara, District Attorney of

Erie County v. Cloud Books, Inc.,

U.S. , 54 Law Weekly 5060 at 5062,

quoted above at page 8 supra.

More than a century ago, this Court

pointed out in James Phalen v.

-56-

Commonwealth of Virginia, 12 L.Ed. 1030,

1033 (1850);

"The suppression of nuisances in-

jurious to public health or

morality is among the most important

duties of government...it is a

principle of the common law, that

the king cannot sanction a nuisance."

See, also, Mugler v. Kansas, 123 U.S. 205

(1887). Even more anciently, our Anglo-

Saxon legal system has described its own

function as: "The courts are the guardi-

ans of the public morals." Rex v. Curl,

2 Strange 789 (1727); Sir Charles Sedley's

case 1 SID 168. See, also, Newark, The

Boundaries of Nuisance, 1949, 65 L.Q.Rev.

480, 482; Stephen, General View of the

Criminal Law of England, 1890 at 105;

Joyce, Law of Nuisances, Section 345 at

page 498; H.G. Wood, The Law of Nuisances,

Section 57 at page 77 and Section 65 at

page 85; Sections 23 and 24 at pages 45-

46; Section 743 at page 972; 66 Corpus

Juris Secundum, Section 3, "Nuisances Per

-57-

Se and Per Accidens" at page 733 et seq.;

Harris v. U.S., 315 A.2d 569 at 572, foot

note 9 (1974); Bader v. Iowa Metropolitan

Sewer Service Company, 178 N.W.2d 305,

306-307, Accord, Robichauxn v. Huppen-

bauer, 258 La. 139, 245 So.2d 385, 389

(1971); 58 Am.Jur.2d, Nuisances, Section

12 (1971); Art Theater Guild Inc., v.

Ohio ex rel. Ewing, 421 U.S. 923, 44

L.Ed.2d 82, 95 S.Ct. 1649 (April 21,

1975). Appeal dismissed for want of a

substantial federal question; Huffman v.

Pursue Ltd., 420 U.S. 592 at 612, 43

L.Ed.2d 482 at 497, 95 S.Ct. 1200 at

footnote 23.

Further, to say that a license to do

business has been revoked because a public

nuisance presently exists at that place,

where such revocation may not be the

basis of criminal sanction until the re-

vocation has been approved by a court in

an adversary hearing, and where the court

-58-

has an “equitable discretion" to confirm

or deny such revocation, does not invite

the type of criticism which appears in

Universal Amusement Co. v. Vance, 587 F.2d

1592(5th Cir. 1978) aff'd in 445 U.S. 308 (1980).

See, generally, McQuillan, Municipal Cor-

porations, Section 26.80 at page 191 et

seq. and 826.93 at page 216 et seq.

Since a trial court has the power to make

a determination that a public nuisance,

in fact, exists, it also must have the

power to pass upon the correctness of the

revocation of license which, by ordinance,

automatically attends such finding of

fact, and to exercise its inherent equit-

able powers in relation to the licensing

power. See 106 Forsyth Corporation v.

Bishop, 362 F.Supp. 1389 (February 2,

1972), affirmed in 106 Forsyth Corporation

v. Bishop, 362 F.Supp. 1389 (Feb. 2, 1972),

affirmed in 106 Forsyth Corporation v.

Bishop, 482 F.2d 280 (July 19, 1973),

-59-

petition for certiorari denied in 106

Forsyth Corporation dba Paris Theater v.

Bishop et al., 422 U.S. 1044, 45 L.Ed.2d

696, 95 S.Ct. 2660 (June 23, 1975); West

Gallery Corporation v. Salt Lake City

Board of Commisioners, 586, P.2d 429

(October 16, 1978); Ogden City v. Eagle

Books Inc., dba Adult Book Store, 586

P.2d 436 (October ‘16, 1978).

II(B) The Civil Rights Actions Also

Fail Toe State Sufficient Facts To

Constitute A Claim Upon Which Federal

Relief Can Be Based. The Defendant

In The State Law Enforcement Lawsuit

Must Plead And Prove The Jurisdiction-

al Exception For Federal Jurisdiction.

The complaint and pleadings on file

herein demonstrate that Plaintiffs have

not stated a civil rights claim upon which

federal-relief can be based. See Martinez

v. California, 444 U.S. 277 (1980).

Under the rationale expressed in

Allen v. McCurry, 449 U.S. 90 (1980), and

Parratt v. Taylor, 451 U.S. 527 (1981),

Congress intended to establish federal

jurisdiction under 42 U.S.C. Section 1983

where one of the following three circum-

stances is shown to exist:

(1) The State substantive law is

facially and totally unconsti-

tutional;

(2) The State procedural law is in-

adequate to allow full litiga-

tion of a constitutional claim;

(3) The State procedural law,

though adequate in theory is

inadequate in practice.

In this case, none of the foregoing

circumstances apply. Paducah Ordinance

83-6-2388 is not facially unconstitution-

al, and the procedural law of the State

of Kentucky is entirely adequate to allow

full litigation of all constitutional

claims.

As noted by United States District

Judge Young's analysis of Parratt, supra,

in Juncker v. Tinney III, 549 F.Supp.

574, the jurisdictional question may not

be one of "abstention" and whether the

plaintiff has exhausted his state judicial

remedies, but rather whether the plain-

tiff has stated a claim upon which relief

an be based, at page 578:

"The argument for applying

Parratt to liberty and life interest

(and thus for sending many purported

section 1983 cases to state court)

is based not upon principles of

comity but upon the language of the

Fourteenth Amendment and upon the

concept that in certain situations a

complaint fails to state a claim

under the Fourteenth Amendment be-

cause the plaintiff has not been de-

prived of a constitutional right

without due process of law. Proof

of this difference lies in the dif-

ferent results. Under an exhaustion

requirement, a plaintiff may sue in

federal court after he has exhausted

his state remedies. Under the Parratt

analysis, if a plaintiff fails to

state a claim under section 1983, he

has no cause of action in federal

court, and nay sue only in state

court." (our emphasis).

In Vickory v. Walton, 721 F.2d 1062

(CA 6th, Nov. 30, 1983), petition fora

writ of certiorari denied by this Court,

the Court undertook an analysis of Parratt,

supra, and determined that 42 U.S.C. Sec-

tion 1983 was not meant to supply an

-62-

exclusive federal remedy for every alleged

wrong. The gist of the cause of action

was a deprivation of property interest

"without due process of law." Under this

analysis, the court held the plaintiff

must plead and prove that the state re-

medies for redressing the wrong were in-

adequate and that, in a procedural due

process case under 42 U.S.C. Section 1983

plaintiff must attack the state corrective

procedure as well as the substantive

wrong. In Vickory v. Walton, supra, the

Sixth Circuit held that the plaintiff had

neither alleged nor shown any significant

deficiency of the state remedy.

Applying Vickory v. Walton, it is

clear that the federal plaintiffs have

not alleged a cause of action under 42

U.S.C. Section 1983. The City of Paducah

was entitled to a dismissal under the

first defense in its Answer for failure

to state a claim upon which federal relief

=63-

could be granted. Martinez v. California,

444 U.S. 277 at 285 (1980).

CONCLUSION

Under Watson v. Buck, 313 U.S. 387

(1941) the only question before the U.S.

District Court on the issue of "absten-

tion" was whether newly enacted Paducah

Ordinance 83-6~-2388 was unconstitutional

on its face; i.e., "flagrantly and patently

violative of express constitutional pro-

hibition in every clause, sentence, and

paragraph, and in whatsoever manner and

against whomever an effort might be made to

apply it."

In answering the above question, the

trial court was required to weigh in the

balance the historic powers of a City:

(1) to license lawful activities, and (2)

to abate places which are per se moral

public nuisances; which are central to a

resolution of Questions 2A and .2B to this

Petition, namely;

aca a ei

-64-

2A Whether the City of Paducah, under

its nuisance abatement powers, has the

power to enact a procedural public

nuisance ordinance which declares a

place of business in which obscene

publications constitute either: (1)

all of the stock in trade, or (2) a

principle part of the stock in trade,

to be a public nuisance per se; and

2B Whether under such a procedural

public nuisance ordinance, the City

May act to revoke all licenses and

permits of such business, where: (1)

no criminal proceedings may be brought

for transacting business without a

license unless and until the existence

of such public nuisance has been

established at trial on the merits,

and the license revocation confirmed

by a decree of the McCracken Circuit

Court in judicial proceedings brought

by the City for the purpose, within

five (5) days after passage of said

resolution; and where: (2) the trial

judge has equitable discretion to

confirm or deny such license revoca-

tion?

If the above questions of law are answered

in the negative, then the federal court

should hold the ordinance unconstitutional

on its face, and abstention was not re-

quired under Watson v. Buck. Conversely,

if the above questions of law must be

answered in the affirmative, as Paducah

CLA BCR Pi NO Nl BRT ts ee me

tO ee Rs en Re

contends herein, then the trial court should

have held: (1) that the ordinance is not

facially unconstitutional, in that a City

does have the power: (1) to declare a

place of business which is a "manufactory

of obscene matter" to be a per se public

nuisance, and (2) to provide for license

revocation after a trial on the merits and

confirmation by a trial court which pos-

sesses equitable jurisdiction to confirm

or deny the license revocation, and, there-

after should have abstained, and remanded

the cases of the state court for an inter-

pretation and construction as to the

language employed in the ordinance. See

Metromedia, supra.

The aetion of the City of Paducah for

Summary Judgment under its first, fourth

and fifth defenses should have been

sustained by the trial court and the State

case remanded to the State Court for Trial

on the merits.

hasan itaaeaiiaeaill

CERTIFICATE OF SERVICE

I, hereby certify that on this as a.

day of August , 1986, the original and

40 copies of the within Petition for Writ

of Certiorari were deposited in the

United States Post Office in VAN Nuys,

Cab yernin with first-class postage

prepaid, and properly addressed to the

Clerk of the United States Supreme Court.

I further certify that three (3)

copies were also mailed, postage prepaid,

to the below listed parties to the

proceedings and that all parties required

to be served have been served.

Mr. Joseph S. Freeland

Freeland, Glanville and Megibow

910 Citizens Bank Building

Paducah, Kentucky 42001

(Attorney for Respondents)

etitioners.

APPENDIX "A"

Opinion of the United States Court

of Appeals for the Sixth Circuit in City

of Paducah v. Investment Entertainment,

Inc., et al., and Investment

Entertainment, Inc., (No. 85-5092)

Beltline News and Arcade Club, (No.

85-5903) v. City of Paducah et al., Nos.

85-5092, 85-5093 decided May 28, 1986.

(Reference: Petition for Writ of

Certiorari at page 2, line 15; page

20, line 19; page 21, line 16).

...-A-l thru A-40

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A-1

Nos. 85-5092, 85-5093

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CITY OF PADUCAH,

Plaintiff-Appellant,

INVESTMENT ENTERTAINMENT,

imG., @€ Bix,

Defendants-Appellees.

INVESTMENT ENTERTAINMENT,

INC., (NO. 85-5092).

BELTLINE NEWS AND ARCADE

CLUB, (NO. 85-5093).

Plaintiffs-Appellees.

Vv.

CITY OF PADUCAH, et al.,

Defendants-Appellants.

me Ne a I es

ON APPEAL

FROM THE

UNITED —

STATES

DISTRICT

COURT FOR

THE WESTERN

DISTRICT OF

KENTUCKY

Decided and Filed May 28, 1986

Before: MERRITT and WELLFORD, Circuit

Judges; and CELEBREZZE, Senior Circuit

Judge.

A-2

MERRITT, Circuit Judge, delivered

the opinion of the court in which

CELEBREZZE, Senior Circuit Judge,

joined. WELLFORD, Circuit Judge (pp.

16-18), delivered a separate concurring

opinion.

MERRITT, Circuit Judge. The City

of Paducah, Kentucky, appeals the

judgment of District Judge Johnstone

that Paducah's obscenity abatement

ordinance, on its face, establishes a

prior restraint of protected speech and

thereby unconstitutionally infringes the

first amendment rights of plaintiffs

Investment Entertainment, Inc. and

Beltline News and Arcade Club, sellers

of books, magazines, and video tapes.

We agree that the ordinance's provision

requiring the revocation of the

occupational licenses of booksellers and

move theatres dealing in obscenity

renders the ordinance invalid.

2 A le ARIAL de tai ere aM th Mo:

Abe’ Kmail end! Teall salen) 4

AT OY. nA hes ee RR NE, a Set alia iS a8

A-3

On June 14, 1983, the City of

Paducah enacted an ordinance to control

obscene material as defined in Miller v.

California, 413 U.S. 15 (1973). Relying

on the city's power to declare and abate

public nuisances, the ordinance defines

the following as “public nuisances per

se'' in Paducah: (1) any place where

obscene films are publicly exhibited or

possessed for exhibition in the regular

course of business; (2) any obscene film

so exhibited or possessed; (3) any place

of business, or portion thereof, where

obscene publications constitute a

principal part of the stock in trade of

the business; and (4) any obscene

publication possessed at such a place.

The ordinance also defines as "a public

nuisance per accidens" all money or

other consideration received for the

exhibition or sale of such obscene films

A-4

or publications after the manager of the

business receives certified notice of

the initiation of proceedings under the

ordinance.

The key contested provision of the

ordinance states that the Paducah Board

of Commissioners, upon a specific

finding that a public nuisance exists,

shall by resolution order a revocation

of all licenses and permits that have

been issued to the business maintaining

the nuisance. This license revocation

is subject to judicial confirmation.

The Board must then order counsel

for the city to bring a civil action

against the public nuisance. In

addition to license revocation, the

ordinance contemplates that the action

will seek an order enjoining all persons

maintaining the nuisance from possessing

or marketing the obscene films or

publications at any time in the future,

Wo wlth aR ae Fi egies besten

se eA Pt Men in Pa

A-5

an accounting of all money received in

the obscenity business, forfeiture of

the obscene materials and the money, and

judgment for the city for all costs

expended in abating the nuisance. The

ordinance provides that the "cost of

abatement,’ which is defined to include

investigative costs, court costs,

reasonable attorney fees, and printing

costs for any trial and appeal, is to be

a special assessment against the parcel

of land upon which the public nuisance

is maintained, but only against the

interests of the individuals responsible

for maintaining the nuisance. This

special assessment is to be collected

and enforced by the same means as used

for ordinary local property taxes.

In June and July of 1983, Paducah

police officers purchased obscene

magazines and video tapes from

businesses operated in Paducah by

A-6

Investment and Beltline. Counsel for

the city wrote a letter to both

informing them of the ordinance and of

the material purchased by the police

officers. The letter gave them notice

that public hearings would be held. In

August 1983, after a hearing, the Board

adopted a resolution finding the

material purchased from Investment to be

obscene and declaring the business from

which the material was purchased to be a

public nuisance. In September 1983, the

Board adopted a similar resolution

concerning Beltline. Thereafter,

counsel for the city initiated civil

actions in Kentucky state court seeking

abatement of the nuisances as provided

by the ordinance.

Investment and Beltline brought

separate suits in the United States

District Court for the Western District

of Kentucky, both under 42 U.S.C. § 1983

—e

A-7

(1982), seeking to have the ordinance

declared constitutionally invalid and to

have the city enjoined from enforcing

the ordinance. Alleging diversity of

citizenship, Investment removed the

state court enforcement action pending

against it to federal district court.

Beltline also attempted to remove the

enforcement action directed against it

to federal court, but removal was denied

| because there was no diversity of

citizenship. The District Court then

consolidated all three actions. The

parties have raised no issue concerning

abstention in the District Court or this

Court.

Neither Investment nor Beltline

challenged the ordinance's definition of

) obscenity, and both admit that the

| material seized is obscene within the

Miller v. California definition. The

District Court granted their motions for

A-8

summary judgment. It held that because

the ordinance's license revocation

procedure could result in closing down

an entire place of business even though

not all the material was obscene, the

abatement procedure amounted to a prior

restraint of both protected speech and

unprotected speech. Judge Johnstone

gave this example: Under the ordinance,

a movie theatre could be closed for

repeatedly showing an obscene film on

weekends even though the theatre showed

"The Ten Commandments," ‘Snow White,"

and "Gone With the Wind" on week days.

The District Court also held that the

ordinance's abatement procedure

unconstitutionally encouraged businesses

to engage in self-censorship because the

threat of having an entire place of

business "abated" would induce business

operators to avoid questionable, but

still protected, films and publications.

A-9

The District Court ruled that this

self-censorship arises from the

ordinance's use of undefined terms such

as "regular course of business,"

"repeatedly," and "principal part." The

court held that in this respect the

ordinance was vague and would give

business operators no notice of what

conduct the ordinance reached.

iy Ft

The ordinance requires the

revocation of the business licenses of

distributors and exhibitors of obscene

material. It therefore restrains future

speech of the booksellers and theaters

whose licenses are revoked--both obscene

and decorous speech. The main issue

presented is whether Paducah may use

license revocation as a tool to control

obscenity.

The problem of using licensing to

control distribution of printed

A-10

expression by booksellers and publishers

has a long history. Milton's

Areopagitica remains the classic

argument against the licensing of

speech. Writing in 1644, just after the

revolution, in response to a

parliamentary law reestablishing the use

of licensing to control books, Milton

takes as his "task...to show that

no...well instituted state, if they

valued books at all, did ever use" "this

authentic Spanish policy of licensing

books." He argues instead that "the

timeliest and most effectual remedy" is

subsequent evaluation and seizure if

necessary. Among his many arguments,

Milton advances the danger to truth and

beauty because they are difficult to

distinguish from falsity and ugliness

(however ‘much we thus expel of sin, so

much we expel of virtue, for the matter

of them both is the same'’) and the

Meth casa mp Lat te

“e ee eee T

A-11

problem of the "quality which ought to

be in every licenser" ("he who is made

judge to sit upon the birth and death of

books...had need to be a man above the

common measure, both studious, learned,

and judicious." Yet, "there cannot be a

more tedious and unchosen

journeywork...than to be made the

perpetual reader of unchosen books and

pamphlets"). Licensing speech

discourages new ideas ("I found and

visited the famous Galileo, grown old, a

prisoner to the Inquisition, for

thinking in astronomy otherwise than the

Franciscan and Dominican licensers

thought"); undermines expression as a

value in itself ("[g]ive me the liberty

to know, to utter, and to argue freely

according to conscience, above all

liberties"); and raises the prospect of

manipulation and misinformation when we

"pretend to bind books to their good

A-12

behavior" ("for what magistrate may not

be misinformed, and much the sooner, if

liberty of printing be reduced into the

power of a few?").

By the late Eighteenth Century,

Milton's view against licensing had

become the English common law rule

against prior restraint, as reflected in

Blackstone's Commentaries:

The liberty of the press is

indeed essential to the nature

of a free state: but this

consists in laying no previous

restraints upon

publications....To subject the

press to the restrictive power

of a licenser, as was formerly

done, both before and since

the revolution, is to subject

all freedom of sentiment to

the prejudices of one man, and

make him the arbitrary and

infallible judge of all

controverted points of

learning, religion, and

government.

: 4 W. Blackstone, Commentaries 151-52

(emphasis in original). Blackstone

described the history of printer

licensing in England:

footnote 1 con't on next page

ee orb Al re Leen tekivalat :

RR A ME ERS

A-13

The British common law against licensing

publishers and booksellers was part of

the foundation for the first amendment's

guarantee of freedom of the press. See

Z. Chafee, Free Speech in the United

States 10-12 (1942) (arguing that the

Blackstonian view of freedom of the

press--freedom from prior restraint--was

part, but only part, of the freedom that

the first amendment had come to

guarantee).

footnote 1 con't

The art of printing, soon after it's

introduction, was looked upon (as well

in England as in other countries) as

merely a matter of state, and subject to

the coercion of the crown. It was

therefore regulated with us by the

king's proclamations, prohibitions,

charters of privilege and of licence,

and finally by the decrees of the court

of starchamber; which limited the number

of printers, and of presses which each

should employ, and prohibited new

publications unless previously approved

by proper licensers. On the demolition

of this odious jurisdiction in 1641, the

long parliament of Charles I, after

footnote 1 con't on next page

A-14

IIl.

Modern first amendment

jurisprudence hgs followed Milton

and Blackstone on prior restraint. As

the District Court noted, that law has

dealt with the licensing problem by

footnote 1 con't

their rupture with that prince, assumed

the same powers as the starchamber

exercised with respect to the licensing

of books; and in 1643, 1647, 1649, and

1652, (Scobell. i. 44, 134, ii. 88,

230.) issued their ordinances for that

purpose, founded principally on the

starchamber decree of 1637. In

1662 was passed the statute 13 & 14 Car.

II. c. 33. which (with some few

alterations) was copied from the

parliamentary ordinances. This act

expired in 1679, but was revived by

statute I. Jac. II. c. 17, and continued

till 1692. It was then continued for

two years longer by statute 4 W. & M. c.

24, but, though frequent attempts were

made by the government to revive it, in

the subsequent part of that reign, (Com.

Journ. 11 Feb. 1694, 26 Nov. 1695. 22

Oct. 1696. 9 Feb. 1697, 31 Jan. 1698.)

yet the parliament resisted it so

strongly, that it finally expired, and

the press became properly free, in 1694;

and has ever since so continued.

Id. at 152 n.2.

A-15

focusing on whether the use of licensing

constitutes a prior restraint of

protected expression. The major case on

prior restraint is Near v. Minnesota,

283 U.S. 697 (1931). In Near the Court

invalidated, as a prior restraint, an

injunction entered against a newspaper

under a Minnesota statute providing that

any newspaper publishing malicious,

scandalous, or defamatory material is a

nuisance and can be permanently

enjoined. Chief Justice Hughes, quoting

Blackstone, pointed out that part of the

first amendment grew out of the struggle

in Britain against the "legislative

power of the licenser" of the press. Id.

at 713-14. The Court held that if "the

object of the statute is not punishment,

in the ordinary sense, but suppression

of the offending newspaper or

periodical" in the future, and ‘the

statute not only operates to suppress

anal

A-16

the offending newspaper or periodical

but to put the publisher under an

effective censorship.” 283 U.S. at

709-12, then the statute constitutes a

prior restraint.

The City of Paducah's argument that

its licensing ordinance is not a prior

restraint is similar to Justice Butler's

argument for the four dissenters in

Near, Paducah, one might argue, is only

revoking a previously issued business

license, and when the licenses are La

issued they are completely unrelated to

the regulation of speech. Later

revocation is for abuse of the

occupational license.

Likewise, Justice Butler argued

that prior restraint consists of

licensing publishers and their books as

Sled tet pclae OD ws UN ee SN ee ae

an original matter, not of later

revocation for abuse of the right.

Later revocation ''does not operate as a

A-17

previous restraint on publication within

the proper meaning of that phrase”

because it "is only in respect of

continuing to do what has been duly

adjudged to constitute a nuisance." Id.

at 735 (emphasis in original). "It is

fanciful to suggest similarity

between...the decree...to prevent

further publication of malicious,

scandalous, and defamatory articles and

the previous restraint upon the press by

licensers as referred to by

Blackstone....° Id. at 736 (emphasis in

original). Chief Justice Hughes and the

majority of the Court rejected this

argument--"that the constitutional

freedom from previous restraint is lost

because charges are made of derelictions

which constitute crimes''--dereliction

because "(the argument] is inconsistent

with the reason which underlies the

privilege." Id. at 720-21.

A-18

Several federal and state courts

have addressed the first amendment

question presented by state laws and

local ordinances that use the nuisance

abatement power to control obscenity.

Laws on this subject differ in approach.

Some, as in the instant case, abate the

nuisance by revoking the offending

business’ general business license.

Others, the so-called "padlock" laws,

call for a judicially ordered temporary

Or permanent injunction under which

local authorities close the place of

business and do not allow its owners to

operate out of that location for the

duration of the injunction.

We have found no precedent in which

courts have upheld an obscenity law that

provided for the revocation of obscenity

dealers' business licenses. In at least

three instances, federal courts have

held local obscenity ordinances that use

eens A > wer Pc. Novia natal lay aa ARPT te iN Va vA rca

ree ee

A-19

the revocation of licenses and permits

to be unconstitutional prior restraints

of protected speech. Gayety Theatres,

Inc. v. Miami, 719 F.2d 1550 (llth Cir.

1983); Entertainment Concepts, Inc. III

v. Maciejewski, 631 F.2d 497 (7th Cir.

1980); cert. denied, 450 U.S. 919

(1981); Cornflower Entertainment, Inc.

v. Salt Lake City Corp., 485 F.Supp. 777

(D. Utah 1980); see also Genusa v. City

of Peoria, 619 F.2d 1203, 1213-15 (7th

Cir. 1980) (requirement that adult

bookstore license applicant submit to

inspection of premises was held

unconstitutional). But cf. Young v.

American Mini Theatres, Inc., 427 U.S.

50, 62-63 (1976) (adult movie theatres

may be licensed if licensing is

necessary to valid zoning and locational

requirements); Genusa, 619 F.2d at

1212-13 (same for adult bookstores).

A-20

The Supreme Court has not ruled directly

on the licensing issue in an obscenity

case.

The padlock cases are also

pertinent, although not directly on

point. The results in the padlock and

other similar cases have varied. The

Supreme Court has never ruled on the

question of whether a padlock obscenity

law is an unconstitutional prior

restraint.“ Because this is a license

revocation ordinance case, we need not

give an opinion on the padlock laws

which are usually less intrusive than

license revocation. But a review of a

few of the cases is instructive.

ee ee es CN ee

ai een

See Avenue Book Store v. City of

Tallmadge, 459 U.S. 997, 998 TTOBD) |

(White, J., dissenting to the Supreme

Court's denial of certiorari, quoted

infra note 3).

A-21

In Universal Amusement Co. v.

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

Fifth Circuit held that a nuisance

statute's provision for temporary

closure of businesses distributing

obscene material was an unconstitutional

prior restraint of business operators’

rights to engage in protected expression

during the closure period. The Supreme

Court affirmed at 445 U.S. 308 (1980),

but, in affirming, the Court aimed its

per curiam opinion at the fact that

under the statute a prosecutor could

obtain a temporary restraining order and

preliminary injunction against showing

certain named and unnamed films before

judicial determination that the films

were indeed obscene. 445 U.S. at 316 n.

14. The Court held that this procedure

was an unconstitutional prior

A-22

3 Several other courts have

restraint.

held padlock obscenity laws invalid.

See Cornflower Entertainment, Inc. v.

Salt Lake City Corp., 485 F.Supp. 777

3 See Justice White's dissent in which

he argues that the Court misunderstood

the statute's provision dealing with an

injunction to be issued after judicial

determination that the material involved

was obscene. 445 U.S. at 320-25. See

also the dissent to the Supreme Court's

denial of certiorari in Avenue Book

Store in which Justice White states:

In Vance v. Universal Amusement

Co., 445 U.S. 308 (1980), the Court

upheld a finding that a Texas

public nuisance statute authorized

an unconstitutional "prior

restraint for indefinite duration

on the exhibition of motion

pictures without a final judicial

determination of obscenity and

without any guarantee of prompt

review of a preliminary finding of

probable obscenity." Id. at 309.

Fatal to that statute were

particular procedural infirmities

of the Texas nuisance scheme

whereby the subject of an abatement

order or injunction "would be

subject to contempt proceedings

even if the film [was] ultimately

found to be nonobscene." Id. at

316.

footnote 3 con't on next page

A-23

(D.Utah 1980); People ex rel. Busch v.

Projection Room Theatre, 17 Cal.3d 42,

130 Cal.Rptr. 328, 550 P.2d 600, cert.

denied sub nom., Van De Kamp v.

Projection Room Theatre, 429 U.S. 922

(1976); State v. A Motion Picture

Entitled "The Bet", 219 Kan. 64, 547

P.2d 760 (1976); see also Note,

Pornography, Padlocks, and Prior

Restraints: The Constitutional Limits

of the Nuisance Power, 58 N.Y.U.L. Rev.

1478, 1489 (1983) ("courts generally

have assumed that padlock orders are

footnote 3 cont

The Court has never determined

however, whether abatement orders,

such as the one involved in the

present case, will pass

constitutional muster when they

permanently enjoin the use of a

business premises for the sale or

display of obscene material, but do

not subject the owner to contempt

sanctions unless there has been a

judicial determination of

obscenity.

A-24

prior restraints without engaging in

substantial analysis under prior |

restraint doctrine.").¢ /

On the other hand, several state

courts have held that padlock laws aimed

at businesses involved in the sale or

exhibition of obscene material are not i

prior restraints. In State ex rel.

Kidwell v. U.S. Marketing, Inc., 102

Idaho 451, 631 P.2d 622 (1981), appeal

dismissed sub nom., U.S. Marketing, Inc.

v. Idaho, 455 U.S. 1009 (1982), the

Idaho Supreme Court dealt with a state

' Accord J.R. Distributors, Inc. v.

Eikenberry, /25 F.2d 482 (9th Cir.

1984}, rev'd on other grounds sub non.,

Brockett v. Spokane Arcades, Inc., 105

S.Ct. 2794 (1985). In Eikenberry the

Ninth Circuit stated as dictum (see 105

S.Ct. at 2797 n.5; 725 F.2d at 498

(Wallace, J., dissenting))that an

obscenity abatement law's provision

requiring forfeiture of profits derived

from the saie of both obscene and

nonobscene material unconstitutionally

restricted free speech rights in the

nonobscene material.

A Ri a ani SNE a A EL mt Ma Be

werd

A-25

nuisance law providing that if a

business is engaged in selling or

exhibiting obscene material, the real

property used in the business is

forfeited for a period of one year. The

defendant argued that this forced

forfeiture constituted an

unconstitutional prior restraint on

business operators’ first amendment

rights to engage in protected,

nonobscene expression. The court noted

that under Roth v. United States, 354

U.S. 476 (1957), the state could punish

purveyors of obscene material and that

the state was not limited to criminal

sanctions as a weapon against obscenity.

Kingsley Books v. Brown, 354 U.S. 436,

441 (1957). The court held that the

purpose of the nuisance law was to deter

dealing in obscenity, and, in response

to the prior restraint argument, it

stated:

A-26

By way of example, if a

bookseller, having fallen behind on

his property taxes, loses his

bookstore at a tax sale, he will

not be heard to complain that the

state has imposed an unlawful prior

restraint upon his bookselling

activities. If that same

bookseller is convicted of the

crime of distributing obscene

materials, he may be imprisoned,

and yet he will not be heard to

complain that his incarceration

constitutes a prior restraint upon

his ability to disseminate

protected speech, even though it is

quite clear that it has that

effect.

* * *

The one-year forfeiture

provision of the Idaho moral

nuisance statute avoids the

particularly noxious specter of

content control. Like a tax sale,

the forfeiture is directed strictly

at property, apart from the content

of any expression contained

therein. And like imprisonment for

a criminal obscenity transgression,

the forfeiture is intended to

penalize past distributions of

illegal and unprotected obscenity.

The legislature could just as

easily have imposed a fine or other

property-related penalty. Instead,

the legislature chose to punish the

violator by temporarily depriving

him of the property which was used

in committing the violation.

631 P.2d at 627-28.

Under this line of analysis,

similar tc Justice Butler's argument in

dissent in Near, if the nuisance

abatement procedure is seen as a means

of deterring or punishing purveyors of

obscene material, preventing a business

operator from selling or exhibiting any

publications or films in the future is

no more of a prior res¥raint than

closing his business for drug or weapons

violations would be. Along these lines

see State ex rel. Calahan v. Diversified

Theatrical Corp., 59 Mich.App. 223, 229

N.W.2d 389 (1975), rev'd on other

grounds, 396 Mich. 244, 240 N.W.2d 460

(1976).

IV.

As noted by the Idaho Supreme Court

in Kidwell, not all laws that have the

effect of preventing a person from

engaging in protected expression in the

future are prior restraints as that term

A-28

has been developed. Assuming a valid

statute, the state of Kentucky could

See ee eee ee We

incarcerate a person who is properly

convicted of violating Kentucky's

obscenity statute. See Ginzburg v. |

United States, 383 U.S. 463 (1966)

(upholding conviction for violation of

federal obscenity statute; defendant had

been sentenced to serve five years) and

Ky. Rev. Stat. § 531.020 (1985)

(distributing two pieces of obscene

matter is a class A misdemeanr in

Kentucky, which may result in imposition

of up to a one-year jail sentence). If

a bookstore operator were convicted for

selling obscene material in his store

and were sentenced to serve time in the

state prison, his ability to continue to

personally sell nonobscene books in his

store would be foreclosed for the

duration of his incarceration. But it

A-29

is doubtful that he could make a valid

argument that the state law under which

he was incarcerated is a prior restraint

of his right to engage in protected

expression by selling nonobscene books.

Similarly, it is doubtful that he

could make a valid argument that a

nuisance abatement law applied to

obscenity is an unconstitutional prior

restraint if the law is narrowly

structured as a deterrent or punishment

of purveyors of obscenity. If, on the

other hand, the abatement procedure

focuses on regulating the future speech

of a defendant who has been adjudged

“suilty" of distributing obscene

material, the law is tantamount to a

licensing statute establishing a prior

restraint of the defendant's first

amendment right to engage in nonobscene

expression. To use the language of Near

A-30

v. Minnesova, a nuisance aba -ecment

procedure applied to obscenity should be

upheld if "[t]he object of the

[procedure] is punishment, in the

ordinary sense, [rather than]

suppression of the offending [business]"

and if the procedure does not "operat([e]

to...put the publisher under an

effective censorship." 283 U.S. at

709-12.

No doubt one of the purposes of

Paducah's license revocation ordinance

is to deter the sale and exhibition of

obscene material. But the ordinance

goes beyond this purpose as District

Judge Johnstone found. The main thrust

of the abatement procedure is the

revocation of all licenses and permits

under which the business in question

operates. Even under the so-called

padlock laws, a business operator

remains free to engage in protected

SAIN V Tt AA li lH et aoe aN th ae GTN eal SS \

A-31

expression in another location.

Paducah's procedure of revoking business

licenses is more restrictive in that it

essentially prevents the offending

business from engaging in future

distribution of protected, nonobscene

material anywhere within the City of

Paducah. We therefore conclude that the

ordinance's use of license revocation as

a weapon against obscenity goes beyond

merely deterring or punishing

individuals who deal in obscene

material. The ordinance's purpose, as

evidenced by the license revocation

provision, is to control future

expression by businesses that have been

subjected to the nuisance abatement

procedure. The ordinance is a prior

restraint of plaintiff's freedom of

expression.

Of course, not all prior restraints

of free speech are unconstitutional.

A-32

But none of the exceptions are present

here. In order to be valid, a system

imposing a temporary prior restraint

must implement certain procedural

safeguards required by Supreme Court

precedent. These safeguards are drawn

from Freedom v. Maryland, 380 U.S. 51

(1965), and more recently from

Southeastern Promotions, Ltd. v. Conrad,

420 U.S. 546, 560 (1975), in which the

Court stated:

First, the burden of instituting

judicial proceedings, and of

proving that the material is

unprotected, must rest on the

censor. Second, any restraint

prior to judicial review can be

imposed only for a specified brief

period and only for the purpose of

preserving the status quo. Third,

a prompt final judicial

determination must be assured.

As to the obscene material whose

sale or exhibition triggered the

application of Paducah's ordinance, the

A-33

safeguards are adequate. Or, more

accurately, there is no restraint at all

before a judicial hearing is conducted,

since the sale and exhibition of the

material is not restrained until after a

judicial determination that the material

is indeed obscene.” As discussed above,

however, the license revocation

procedure would still operate as a prior

restraint on plaintiffs' future

distribution of nonobscene expression.

3 The parties have not argued the

possibility that in an enforcement

action Paducah might obtain, under

Kentucky state court procedures, a

temporary restraining order directed at

allegedly obscene material before the

material had been judicially adjudged

obscene. We note that the majority of

the Supreme Court spoke to such a

procedure in Vance v. Universal \

Amusement, 445 U.S. 308 (1980), but that

is not an issue here.

A-34

Neither the parties nor the

District Court has addressed the

possibility that the ordinance's

unconstitutional use of license

revocation may be severable from the

remainder of the ordinance. In the

absence of argument on the issue, we

also decline to address the severability

question. The ordinance violates

plaintiffs’ first amendment right of

freedom of expression. Accordingly, we

Ce athlon wnebrere dll bed

hold the ordinance facially invalid, and

we affirm the District Court's judgment.

WELLFORD, Circuit Judge, concurring.

The City of Paducah originally

sought to enforce the ordinance in

question against Beltline News and

Arcade Club (Beltline) and against the

other defendant, Investment

Entertainment, Inc. (Investment), in

state court. The action against the

A-35

latter was successfully removed by

Investment to federal district court,

but the other is pending against

Beltline in state court. The defense of

abstention was presented by the City in

its answer to Investment's complaint and

amended complaint in the district court.

This is the kind of factual situation in

which abstention may be appropriate

because the ordinance's scheme

contemplates a full state court hearing

before revocation of defendants'

operating licenses and privileges

becomes effective. State courts are

fully competent to hear and to consider

the constitutional challenges, federal

and state, here made to the procedures

involved in the disputed ordinance. The

state court, of course, may first test

the ordinance and its procedure under

standards of the Kentucky

Constitution; accordingly, it might

A-36

avoid the necessity of a decision on the

federal Constitution in a complex and

difficult area.

Reflected among the concerns which

have traditionally counseled a

federal court to stay its hand are

the desirability of avoiding

unseemly conflict between the two

sovereignties, the unnecessary

impairment of state functions, and

the premature determination of

constitutional questions.

Martin v. Creasy, 360 U.S. 219, 224

(1959).

In Martin, the Court noted that the

Pennsylvania law challenged as

unconstitutional had not yet been

construed by state courts, and there was

"no reason to suppose that the

Commonwealth of Pennsylvania will not

accord full constitutional scope...."

Id. at 225. This case would have been

an appropriate vehicle for abstention

since the district court might have

awaited a decision of the state court in

Beltline before deciding the sensitive

A-3/7

federal constitutional issue in

Investment. However, because the City

did not actively pursue the abstention

issue before this court and has

apparently not urged the state court

promptly to render a decision in

Beltline, this issue has been waived,

although initially suggested by the City

in its answer to the federal action.

See Ohio Bureau of Employment Services

v. Hodory, 431 U.S. 471, 479-80 (1977).

The difficulty in this area of the

law is well expressed in the various

viewpoints of the Justices set out in

Vance v. Universal Amusement Co., 445

U.S. 308, 320 (1980). Perhaps the

Supreme Court will determine whether an

abatement or revocation of the kind

contemplated in the Paducah ordinance

will pass constitutional muster in

deciding the case now pending before it

for disposition. People ex rel. Arcara

A-38

v. Cloud Books, Inc., 119 Misc.2d 505,

465 N.Y.S.2d 633, later proceeding, 96

A.D.2d 751, 465 N.Y.S.2d 699 (1983),

aff'd, 101 A.D.2d 163, 475 N.Y.S.2d i73

(1984), certified question answered and

modified, 65 N.Y.2d 324, 491 N.Y.S.2d

307, cert. granted, 106 S.Ct. 379

(1985).

I emphasize, on the merits of this

Be scowl!

case, as found by Judge Merritt, that

the procedural safeguards of the Paducah

ordinance appear to be adequate solely

in respect of the allegedly obscene

= co PT ce ian lo cos

materials because there is no prior

restraint involved with regard to any

claimed first amendment freedom of

expression until after a judicial

determination has been made on

obscenity. It is the future effect of

revocation of an operating license, the

remedy that is provided, that is

especially troublesome in this case.

A-39

We have recently stated with

respect to a city ordinance dealing with

an effort to control what was deemed to

be potential obscene conduct in licensed

clubs through revocation of an

occupational license:

We hold further that the

ordinance does not constitute an

impermissible prior restraint upon

either present or future restricted

expression. The appellants'

argument that their zoning status

would be altered if their

occupational licenses were revoked

does not constitute a reason to

invalidate the ordinance as a prior

restraint. In this case,

prescreening discretion is not

vested in any administrative body,

as in Near v. Minnesota, 283 U.S.

697 (1931), and the dangers of

censorship are not present.

Iacobucci v. City of Newport, Ky., 785

F.2d 1354, 1359 (6th Cir. 1986)

(emphasis added).

I do not harbor the serious

reservations of Judge Merritt that

obscenity ordinances may not, under any

circumstances, validly revoke a business

A-40

license of one dealing in obscenity,

properly defined, in a particular

location. A permanent revocation of

license may be too broad a sanction in

the situation before us. I have no

problem, as did the district court, with

the words “regular course of business"

and “repeatedly” as used in the

ordinance in question. I do not find

them "vague" or overbroad, examined in

context with their use in the ordinance.

I concur in the result reached by

Judge “lerritt in this case. I do not,

however, adopt the rationale of J-R

Distributors, Inc. v. Eikenberry, 725

F.2d 482 (9th Cir. 1984), rev'd on other

grounds sub nom., Brockett v. Spokane

Arcades, Inc., 105 S.Ct. 2794 (1985).

APPENDIX ‘'B"

Opinion of the United States

District Court, Western District of

Kentucky at Paducah, Kentucky in City of

Paducah v. Investment Entertainment,

Inc., and Showtime Entertainment, Inc.,

Civil Action No. 63-021/-P(J),

Consolidated with Investment

Entertainment, Inc. v. City of Paducah,

et al., Civil Action No. 83-02Z05P(J).

(Reference: Petition of Writ of

Certiorari at page 2, line 12; page

14, line 14; page 19, lines 12 and

14).

....B-l thru B-19

B-1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT PADUCAH

CITY OF PADUCAH,

Plaintiff,

CIVIL ACTION

NO. 83-0217-P(J)

INVESTMENT ENTERTAIN-

MENT, INC., and SHOW-

TIME ENTERTAINMENT,

ImGss

Defendants.

CONSOLIDATED WITH:

INVESTMENT ENTERTAIN-

MENT, INC.,

Plaintiff,

CIVIL ACTION

NO. 83-0208-P(J)

Vv.

CITY OF PADUCAH,

et @hi,

ue fe I I I ee

Defendants.

MEMORANDUM OPINION

These consolidated actions concern

the constitutionality of Ordinance No.

83-6-2388 of the City of Paducah. The

litigation was initiated in this court

on August 3, 1983, with Investment

B-2

Entertainment, Inc. seeking a

declaration that the ordinance was

unconstitutional and a permanent

injunction preventing the City from

proceeding against Investment under the

provisions of the ordinance.

Investment's action was subsequently

consolidated with an enforcement action

brought against Investment in state

court, and removed by Investment to this

court. Investment's defense and

counter-claim in the removal action are

essentially the same as its claim in the

original action, i.e., that the

ordinance is unconstitutional and

violates its rights under the First and

Fourteenth Amendments to the United

States Constitution. Investment's

original action also presents a claim

under 42 U.S.C. § 1983. Showtime

Entertainment, Inc. was added as a party

when it was learned that Showtime might

B-3

have an interest in the property

involved in the enforcement action

against Investment. (For convenience

this opinion will refer only to

Investment; however, the court's

decision will also apply to Showtime).

Jurisdiction over Investment's

original action exists under 28 U.S.C.

Sections 1331, and 1343(3).

Jurisdiction over the removal action

exists under 28 U.S.C. § 1332, through

the provisions in 28 U.S.C. § 1441.

These matters are now before the court

on cross motions for summary judgment,

pursuant to Rule 56 of the Federal Ruies

of Civil Procedure.

Ordinance No. 83-6-2388 was enacted

on June 14, 1983. It deals with the

sale and exhibition of obscene

materials, and attempts to prohibit

sales and exhibitions through the City's

power to declare and abate public

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nuisances. The ordinance declares the

following to be public nuisance per se:

(A) Any and every place in the

City of Paducah where obscene

films are publicly exhibited

as a regular course of

business, or possessed for the

purpose of such exhibition.

(B) Any and every place in the

City of Paducah where an

obscene film is publicly and

repeatedly exhibition, or

possessed for the purpose of

such exhibition; and

which is publicly exhibited or

possessed for such purpose at

a place which is a public

nuisance under this section.

City of Paducah, Ordinance No.

83-6-2388, Section 19-152. Also

declared a public nuisance are:

(A) Any and every place of

business in the City of

Paducah in which obscene

publications constitute all of

the stock in trade, or a

principal part thereof. Where

such obscene publications

constitute only a part of the

stock in trade and are located

in a place or places within

such business which are

capable of demarcation, such

B-5

place or places constitute the

public nuisance which requires

abatement; and

(B) Any and every obscene

publication possessed at a

place which is a public

nuisance under this Section.

id. at Section 19-153. Additionally,

the ordinance provides that once a

certified copy of the ordinance and a

certified copy of the resolution

required under the ordinance have been

served on the place in question, or on

the persons responsible for the place,

all monies paid as admission to the

obscene exhibitions and all valuable

consideration received for the sale of

the obscene publications shall also be

regarded as public nuisances. Id. at

Sections 19-152 and 19-153.

The ordinance also prescribes

procedures for identifying and abating

the nuisances. The City's Board of

Commissioners must initially make a

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specific finding that a public nuisance

exists. Id. at Section 19-155. Once

this is determined, the Board, in order

to implement the provisions of the

ordinance, must pass a detailed

resolution, The resolution must declare

that a nuisance exists, describe its

location, and set forth the facts on

which the nuisance determination was

based. Id. It must order that all

operating licenses and permits

associated with the declared nuisance be

revoked (subject to confirmation by

mandatory judicial proceedings), that

the nuisance be abated, and that

specific notice be given to those persons

deemed to have knowledge of the

nuisance. Id. The resolution must also

order the Corporate Counsel to initiate

judicial proceedings to abate the

nuisance. Id. The judicial proceedings

are to be initiated within five working

B-7

days after passage of the resolution.

Id. at Section 19-156. In those

proceedings, the Corporate Counsel must

seek a court order that the materials in

question are obscene, that the places in

question are public nuisances, and that

the Board's action in revoking the

operating licenses and permits was

lawful. Id. The Ordinance also directs

the Corporate Counsel to seek an

injunction against the persons

maintaining the nuisance, enjoining them

from selling or exhibiting the materials

declared to be obscene and from

possessing the materials for purposes of

sale or exhibition. Finally, the

Corporate Counsel must seek an order of

forfeiture against the obscene films and

publications, and all monies determine

by the court to have been received

through their exhibition and sale. Id.

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On August 3, 1983, the City's Board

of Commissioners utilized Ordinance No.

83-6-2388 to take action against

Investment. Through the required

resolution, the Board declared that

Investment, and all materials possessed

by Investment, were public nuisances,

ordered that Investment's operating

licenses and permits be revoked (subject

to judicial confirmation), and ordered

the Corporate Counsel to initiate the

necessary judicial proceedings. The

Board's findings and resolution were

based solely upon testimony from an

undercover policeman who visited

Investment on June 22, July 2, and July

10, 1983, and the Board's examination of

two video tapes and two magazines

purchased by the undercover policeman.

DISCUSSION

For summary judgment purposes,

Investment concedes that the video tapes

cp lene lor iss nc nication vorect:

B-9

and magazines examined by the Board are

"obscene."' Furthermore, Investment does

not challenge the constitutionality of

the “obscene matter" definition

contained in the ordinance. Investment

does contend that the provisions of the

ordinance, and the actions taken against

it pursuant to those provisions, violate

constitutional guarantees of due

process. Investment also contends that

the ordinance imposes an impermissible

prior restraint on speech and

impermissibly punishes protected speech.

Investment's due process argument

centers around procedural and

evidentiary matters. Specifically, it

contends that a determination that

Investment and all materials possessed

there are public nuisances is

unconstitutional, if it is based solely

upon general testimony from an officer

who visited the business, and a finding

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that two video tapes and two magazines

purchased from the business are obscene.

This argument fails to recognize that

the actions taken by the Board of

Commissioners had no binding effect on

whether Investment, or any of the

materials possessed by Investment, would

ultimately be determined to be a public

nuisance and subjected to closure or

forfeiture. The only effect of the

Board's action was the initiation of

judicial proceedings against investment.

The ordinance recognizes that all final

and binding determinations must be made

by the court involved in the judicial

proceedings. Due process does not

require that decisions to initiate

judicial proceedings be made pursuant to

some type of evidentiary standard or

that they be made only after notice has

been given to the affected parties.

Viewed strictly as a means of

Sncitaatla PERLE

LoS ected 5 LSM Ran Ss esp 4G Ke

B-11

determining when to initiate judicial

proceedings, the ordinance does not

violate due process. See Buena Vista

Cinema, 129 Cal. Rptr. 315, 318 (Cal.

Ct.App. 1976).

The ordinance does not, however,

serve solely as a means for determining

when to initiate judicial proceedings.

Indeed, although the ordinance leaves

the ultimate procedural and evidentiary

standards in the hands of the court

conducting the required judicial

proceedings, it expressly defines the

property constituting a "public

nuisance,"

thereby establishing the

scope of the judicial proceedings and

setting the standard for the substantive

nuisance determination. Investment's

prior restraint and impermissible

punishment of protected speech arguments

relate to these public nuisance

declarations. Investment does not

B-12

contend that it is improper for the City

to declare what property constitutes a

public nuisance, or even that it is

improper for the City to declare that

obscene materials constitute a public

nuisance, subject to proper procedural

safeguards; however, Investment does

contend that Ordinance No. 83-6-2388

declares property to be a public

nuisance in a way which impermissibly

punishes non-obscene, protected speech.

The court agrees. Attempts to regulate

obscenity must be drafted in a manner

that will “ensure against the

curtailment of constitutionally

protected expression, which is often

separated from obscenity only by a dim

and uncertain line."’ Bantam Books, Inc.

v. Sullivan, 372 U.S. 58, 66, 83 S.Ct.

631, 637 (1963). Accordingly,

constitutional guarantees of freedom of

speech mandate that laws regulating

6302 bet ok brtereadtltnan Oh 2 Real Sas eltetan

e ie

B-13

speech be carefully drawn so as to

punish only unprotected speech and not

intrude upon protected expression.

Gooding v. Wilson, 405 U.S. 518, 522, 92

S.Ct. 1103, 1106 (1972). Ordinance No.

83-6-2388 intrudes upon protected speech

by declaring an entire place of business

to be a public nuisance upon a finding

that the place publicly and repeatedly

exhibits obscene films, exhibits obscene

films as a regular course of business,

possesses obscene films for such

exhibitions, or maintains obscene

publications as its principal stock in

trade. See Ordinance No. 83-6-2388 at

Sections 19-152 and 19-153. By focusing

on the places of sale and exhibition,

rather than merely upon the materials

sold or exhibited, the ordinance

intrudes upon protected speech.

Specifically, it prevents an entire

place from disseminating

B-14

constitutionally protected, non-obscene

materials, simply because the place has

sold or exhibited obscene materials in

the past. The dangers of such a ban are

readily illustrated. For example, a

movie theatre that showed The Ten

Commandments, Snow White, or Gone With

the Wind during the week could be closed

and prevented from showing any movies,

if it happened to show a film each

Saturday night at midnight that was :

ultimately determined to be obscene,

assuming that once a week constitutes

"repeatedly" exhibiting. Similarly, an

entire book store could be closed if it

sold materials later determined to be

obscene, even if the store also sold The

Bible, A Tale of Two Cities, and The New

York Times. Such all-encompassing

prohibitions directed at places of sale

or exhibition are unconstitutional. See

J-R Distributors, Inc. v. Eikenberry,

B-15

725 F.2d 482, 494 (9th Cir. 1984), prob.

juris. noted, U.S. ; 205 8.Ce. 77

(1984). See also Universal Amusement

Co. v. Vance, 587 F.2d 159, 165-166 (5th

Cir. 1978). (en banc), aff'd. 445 U.S.

308, 100 S.Ct. 1156 (1980); People ex

rel. Busch v. Projection Room Theater,

550 P.2d 600 (Cal. 1976), cert denied,

429 U.S. 922, 97 S.Ct. 320 (1976). See

generally Cornflower Entertainment, Inc.

v. Salt Lake City Corp., 485 F.Supp.

777, 785-786 (D. Utah 1980); State v. A

Motion Picture Entitled "The Bet," 547

P.2d 760 (Kan. 1976). Moreover, because

the ordinance allows the entire business

to be declared a public nuisance, it

encourages a business person to steer

wide of danger by avoiding questionable

but nonetheless protected films and

publications. See Vance, 587 F.2d at

166. Thus, given that the line between

protected and unprotected speech is dim

B-16

and uncertain, the broad closure

provision contained in Ordinance No.

83-6-2388 will result in self-censorship

of protected but questionable materials

as business persons avoid those

materials in an effort to prevent their

entire business from being declared a

public nuisance. Thus, a new Ulysses

might never be disseminated because of

the threat of having the entire place of

business closed if the questionable item

was later determined to be obscene. See

Vance, 587 F.2d at 166. Ordinance No.

83-6-2388 especially encourages

self-censorship by its vague standards.

The ordinance does not define "regular

course of business, repeatedly," or

"principal part,'' yet it uses these

terms to draw the line at where a place

selling or exhibiting obscene materials

becomes a public nuisance. Ordinance

No. 83-6-2388 at Sections 19-152 and

Whee OE RAMS Baie 203

oy ees

sb aiguan leeks ee

B-17

19-153. There is no way that a business

person could know in advance whether

once-a-week or once-a-day amounted to

"repeatedly" or whether two magazines or

twenty magazines constituted a

"principal part."

CONCLUSION

Materials which have been properly

determined to be legally obscene are not

within the free speech protection

afforded by the constitution and,

therefore, are subject to regulation.

See Sullivan, 3/72 U.S. at 65, 83 S.Ct.

at 637. Accordingly, although the issue

is not squarely presented in the present

case, an ordinance which focused a

government's public nuisance powers

solely upon obscene materials would not

appear to be invalid. On the other

hand, non-obscene materials are entitled

to great protection, and therein lies

the danger of Ordinance No. 83-6-2388.

B-18

By going beyond the obscene materials

themselves and focusing on the places

where the obscene materials are sold or

exhibited, the ordinance improperly

intrudes upon protected expression.

Because of this focus on places rather

than materials the court finds that

Sections 19-152(A) and (B) and Section

19-153(A) are unconstitutional. See

Eikenberry, 715 F.2d at 493-496, and

cases cited therein; Vance, 587 F.2d at

164-166; Busch 550 P.2d at 600. The

City has cited one case supporting a

contrary conclusion, State ex rel.

Kidwell v. U.S. Marketing, 631 P.zd 622

(Idaho 1981), however, the court has

chosen to rely upon the cases cited

above; cases which direct a finding that

the ordinance provisions are

unconstitutional. The court further

concludes that Section 19-i52(C) and

Section 19-153 (B) are dependent upon

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the nuisance declarations in Sections

19-152(A) and (B) and Section 19-153(A)

and, therefore, are also

unconstitutional. The sections are

dependent because even though they refer

to materials rather than places, they

only refer to materials which are sold

or exhibited at places defined as public

nuisances under the sections which the

court has declared unconstitutional.

An appropriate order will be

entered.

DATED: 1-5-85

Edward H. Johnstone, Judge

United States District Court

RENT PUD AES PRC RET Ne os

APPENDIX "'C"

City of Paducah, Kentucky Public

Nuisance Abatement Ordinance No.

83-6-2388, passed by the Board of

Commissioners of Paducah, Kentucky on

June 14, 1983.

(Reference: Petition for Writ of

Certiorari at page 5, line 19; page

9, line 17; page 11, lines 2, 5,

14).

...-C-l thru C-29

C-1

ORDINANCE NO. 83-6-2388

AN ORDINANCE OF THE CITY OF PADUCAH

DECLARING THE COMMERCIAL EXPLOITATION OF

OBSCENE MOTION PICTURE FILMS AND

OBSCENITY PUBLICATIONS TO BE CONTRARY TO

PUBLIC HEALTH, SAFETY, AND GENERAL

WELFARE, AND A PUBLIC NUISANCE;

DECLARING ANY PLACE DISPLAYING OR

EXHIBITING SUCH OBSCENE MOTION PICTURE

FILMS OR PUBLICATIONS TO BE A PUBLIC

NUISANCE PER SE; MAKING ALL OBSCENE

MATTER AND PUBLICATIONS POSSESSED IN

SUCH PLACES A PUBLIC NUISANCE PER SE;

PROVIDING FOR NOTICE AND LEGAL

PROCEEDINGS TO ABATE THE SAME; AND

PROVIDING A PROCEDURE FOR ASSESSMENT AND

COLLECTION OF COSTS OF ABATEMENT.

BE IT ORDAINED BY THE BOARD OF

COMMISSIONERS OF THE CITY OF PADUCAH,

KENTUCKY:

Section 1. That the Board of

Commissioners create Article VII of

C-2

Chapter 19 of the Code of Ordinances of

the City of Paducah by adopting Sections

19-150, 19-151, 19-152, 19-153, 19-154,

19-155, 19-156, and 19-157 to read as

follows:

"SECTION 19-150. PURPOSE; POLICY;

AUTHORITY; APPLICATION.

The Board of Commissioners find

that the crass commercial exploitation

of explicit sexual conduct through the

public exhibition of obscene films and

the sale of obscene publications,

constitutes a debasement and distortion

of a sensitive key relationship of human

existence, central to family life,

community welfare and the development of

human personality; that such

exploitation is indecent and offensive

to the senses and to public morals and

interferes with the interest of the

public in the quality of life and total

community environment, the tone of

C-3

commerce in the City, property values,

and the public safety; and that the

continuation of such activities is

detrimental to the best health, safety,

convenience, good morals, and general

welfare of the City of Paducah and of

the residents, citizens, inhabitants,

and business thereof and is unlawful and

may not be made the subject of a lavful

license. Pursuant to Section 82.082 of

the Kentucky Revised Statutes, the Board

of Commissioners hereby declares such

activities to be public nuisances, and

establishes procedures for the abatement

thereof and for the assessment and

collection of costs of abatement which

may be incurred by the City incident to

such abatement. This ordinance shall

apply to existing establishments which

are presently engaged in the activities

herein declared to be public nuisances.

C-4

"SECTION 19-151. DEFINITIONS.

(A) "Knowledge" or "knowledge of

such nuisance" means having knowledge of

the contents and character of the

patently offensive sexual conduct which

appears in the obscene matter.

(B) "Obscene matter" means matter,

taken as a whole, the predominant appeal

of which to the average person, applying

contemporary standards, is to prurient

interest, i.e., a shameful or morbid

interest in nudity, sex, or excretion;

and is matter which taken as a whole

goes substantially beyond customary

limits of candor in description or

representation of such matters; and is

matter which taken as a whole is utterly

without redeeming social importance.

(1) The predominant appeal to

prurient interest of the

matter is judged with

reference to average adults

(2)

ae hd ai eT ee

—

C-5

unless it appears from the

nature of the matter or the

circumstances of its

dissemination, distribution or

exhibition, that it is

designed for clearly defined

deviant sexual groups, in

which case the predominant

appeal of the matter shall be

judged with reference to its

intended recipient group.

Where circumstances of

production, presentation,

sale, dissemination,

distribution, or publicity

indicate that matter is being

commercially exploited by the

defendant for the sake of its

prurient appeal, such evidence

is probative with respect to

the nature of the matter and

can justify the conclusion

that the matter is utterly

without redeeming social

importance.

Nothing herein contained is intended to

include or proscribe any matter which,

when considered as a whole, and in the

context in which it is used, possesses

serious literary, artistic, political or

ae Nah aA whe hte

scientific value.

picture film or a publication, or both;

(D) "Motion picture film" shall

include any:

(1) film or plate negative;

(2) film or plate positive;

(3) film designed to be

projected on a screen for

exhibition;

(4) films, glass slides or

transparencies, either in

negative or positive form

designed for exliibition by

projection on a screen;

C-7

(5) Video tape or any other medium

used to electronically

reproduce images on a screen.

(E) “Person" means any individual,

partnership, firm, association,

corporation, or other legal entity;

(F) "Place" includes, but is not

limited to, any building, structure or

place, or any separate part or portion

thereof, whether permanent or not, or

the ground itself. 'Place" also

includes any money, slug or

coin-operated vending machine, or

mechanical or electronically controlled

vending machine, which is located upon

or is accessible from a public sidewalk

or thoroughfare;

(G) "Publication" shall include

any book, magazine, newspaper, article,

pamphlet, writing, printing,

illustration, picture, sound recording,

or a motion picture film when such film

C-8

is offered for sale or exhibited in a

coin-operated machine.

(H) "Sale'' means a passing of

ee eo

So ganriis _ e

title or right of possession from a

seller to a buyer for valuable

consideration, and shall include, but is

not limited to, any lease or rental

arrangement or other transaction wherein

or whereby any valuable consideration is

received for the use of, or transfer of

possession of, obscene matter.

SECTION 19-152. OBSCENE FILMS AND

THEATERS EXHIBITING THE SAME DECLARED A

PUBLIC NUISANCE PER SE; ADMISSION PRICE

RECEIVED AFTER SERVICE OF RESOLUTION TO

BE REGARDED AS A PUBLIC NUISANCE PER

ACCIDENS.

The following are declared to be

public nuisances per se:

(A) Any and every place in the

City of Paducah where obscene films are

publicly exhibited as a regular course

C-9

of business, or possessed fer the

purpose of such exhibition;

(B) Any and every place in the

City of Paducah where an obscene film is

publicly and repeatedly exhibited, or

possessed for the purpose of such

exhibition; and

which is publicly exhibited or possessed

for such purpose at a place which is a

public nuisance under this section.

From and after service on the

theater, or its manager, or acting

Manager, or person then in charge of

such place, of a certified copy of this

ordinance and a certified copy of the

resolution provided for herein, all

monies paid thereafter as admission

price to such exhibitions shall be

regarded as being a public nuisance per

accidens, as personal property used in

conducting and maintaining a declared

C-10

public nuisance as to which forfeiture

will be requested in the judicial

proceedings required herein.

"SECTION 19-153. PLACE OF BUSINESS

IN WHICH OBSCENE PUBLICATIONS CONSTITUTE

A PRINCIPAL PART OF THE STOCK IN TRADE

AND OBSCENE PUBLICATIONS POSSESSED

THEREIN DECLARED A PUBLIC NUISANCE PER

SE; VALUABLE CONSIDERATION RECEIVED FOR

SALE AFTER SERVICE OF RESOLUTION TO BE

REGARDED AS A PUBLIC NUISANCE PER

ACCIDENS.

The following are declared to be

public nuisances per se:

(A) Any and every place of

business in the City of Paducah in which

obscene publications constitute all of

the stock in trade, or a principal part

thereof. Where such obscene

publications constitute only a part of

the stock in trade and are located in a

place or places within such business

C-11

which are capable of demarcation, such

place or places constitute the public

nuisance which requires abatement; and

(B) Any and every obscene

publication possessed at a place which

is a public nuisance under this Section.

From and after service on the

place, or its manager, or acting

manager, or person then in charge of

such place, of a certified copy of this

ordinance and a certified copy of the

resolution provided for herein, all

valuable consideration received for the

sale of such obscene publications shall

be regarded as being a public nuisance

per accidens, as personal property used

in conducting and maintaining a declared

public nuisance, as to which forfeiture

will be requested in the judicial

proceedings required herein.

C-12

"SECTION 19-154. KNOWLEDGE OF

NUISANCE PRESUMED FROM SERVICE OF COPY

OF RESOLUTION; RESPONSIBILITY OF PARTIES

THEREFOR; ABATEMENT OF SUCH NUISANCES.

(A) Upon receiving notice through

service of a certified copy of this

ordinance and of a certified copy of the

resolution provided for herein, any and

every person who shall own, legally or

equitably, lease, maintain, manage,

conduct, or operate a place in the City

of Paducah which is declared to be a

public nuisance as set forth and stated

in Section 19-152 or Section 19-153 of

the Code of Ordinances of the City of

Paducah, is deemed to be a person who

has knowledge of such nuisance for the

purpose of this ordinance and is,

thereafter, responsible for its

maintenance, and shall be liable

therefor.

C-13

(B) The places and subject matter

declared to be public nuisances under

Section 19-152 or Section 19-153 of the

Code of Ordinances of the City of

Paducah shall be abated, as provided for

herein.

"SECTION 19-155. ACTION TO BE

TAKEN BY BOARD OF COMMISSIONERS.

Upon a specific finding that a

public nuisance, as defined in Section

19-152 or Section 19-153 of the Code of

Ordinances of the City of Paducah,

exists in the City of Paducah, the Board

of Commissioners, in applying the

provisions of this ordinance to such

nuisance, shall provide for the

following by resolution:

(A) Declare the fact that such

nuisance exists;

(B) Set forth the description or

legal description and street address of

the real property which constitutes the

nuisance.

C-14

upon which the Board of Commissioners'

declaration of nuisance is based;

(D) Order the revocation of all

licenses and permits which have been

issued as a part of the operation of

such business, subject co confirmation

by the court in the judicial proceedings

required herein. Criminal proceedings

for transacting business without a

license at such address shall not be

filed until the order of license

revocation by the Board of Commissioners

has been confirmed by judicial order;

(E) Order the Corporation Counsel

to give written notice to all persons

named in Section 19-154(a) of the Code

of Ordinance of the City of Paducah,

public nuisances immediately, by

terminating the exhibitions of such

obscene film or films and sale or

offering for sale of such publications,

C-15

or causing the same to be terminated;

(F) Order the Corporation Counsel

to proceed as directed in Section_19-156

of the Code of Ordinances of the City of

Paducah and do all things necessary to

abate such public nuisance through

judicial proceedings and to conclude

such proceedings as expeditiously as is

permissible under the law;

(G) Inform and give notice to

persons named in Section 19-154(A) of

the Code of Ordinances of the City of

Paducah that:

(1) The Board of Commissioners has

determined that a public

nuisance presently exists at

such place and address, and

has revoked the licenses and

permits at that place, subject

to court confirmation, and

that, under Section 19-154 of

the Code of Ordinances of the

(2)

C-16

City of Paducah they are

deemed to have knowledge

thereof and are responsible

;

therefor;

The Board of Commissioners has

ordered the Corporation

Counsel, as provided for under

Section 19-156 of the Code of

Ordinances of the City of

Paducah, to commence legal

proceedings naming such

persons as defendants in a

civil action to abate the same

judicially, and to seek

recovery in said action of the

costs of abatement, including

investigative costs, court

costs, attorney fees, and

other expenses and that under

Section 19-157 of the Code of

Ordinances of the City of

Paducah, the costs of

C-17

abatement are made a special

assessment against the parcel

of land upon which the

nuisance is maintained, but

only against the interest, if

any therein, of the person

responsible for maintaining

such nuisance and, upon their

determination by the Board of

Commissioners, will, by

separate resolution, be made a

lien against the real property

interest of the person

responsible for maintaining

such nuisance;

(3) All obscene motion picture

film or films or obscene

publications being used in

conducting and maintaining

such public nuisances are

considered to be contraband

and the subject of forfeiture;

(4)

(5)

C-18

The obscene motion picture

film or films or obscene

publications which are being

used in conducting and

maintaining such public

nuisance will be needed at the

hearing in the court having

jurisdiction of the legal

proceedings brought by the

Corporation Counsel.

From and after service on the

place or its manager or acting

Manager, or person then in

charge of such place, of a

certified copy of this

ordinance and a certified copy

of such resolution, any and

all monies paid as admission

price to the exhibition or

exhibitions of such obscene

motion picture films, and

valuable consideration

we 3

(H)

received for the sale of such

obscene publications, shall be

regarded as being a public

nuisance per accidens, as

personal property used in

conducting and maintaining

such nuisance, and as gain

derived from a wrongful act,

and that forfeiture of the

same will be requested in the

judicial proceedings required

herein;

Order that a certified copy of

said resolution and a certified copy of

this ordinance be delivered forthwith in

any manner normally used to effectuate

personal service of process as to all

persons of record having any legal or

equitable interest in the real property

and to the regular or acting manager or

persons in charge of the place therein

declared a public nuisance.

C-20

"SECTION 19-156. ACTION TO BE

TAKEN BY DISTRICT ATTORNEY.

Upon a specific finding by 3

resolution of the Board of Commissioners

of the fact that a public nuisance

exists at a particular location, the

Corporation Counsel shail:

(A) Forthwith, but not later than

five (5) working days after passage of

said resolution, commence legal

proceedings by the filing of a civil

action seeking the following relief:

(1) an order that the subject

matter identified by the Board

of Commissioners in said

resolution is obscene as

defined herein;

(2) an order that each place named

by the Board of Commissioners

is a public nuisance and that

the action taken by the Board

of Commissioners to revoke the

(3)

(4)

(5)

C-21

licenses issued to that place

of business was lawful;

an injunction enjoining and

restraining all persons

maintaining said nuisance from

possessing or publicly

exhibiting said obscene motion

picture films, or from selling

or possessing for sale said

obscene publications at any

time in the future in the City

of Paducah, and such other

injunctive relief as the court

may order;

an order that all positive

prints of such obscene films

and all such obscene

publications or copies of

reproductions thereof be

forfeited as contraband;

an accounting of all monies

paid as admission price to the

(6)

C-22

exhibition or exhibitions of

such obscene motion picture

films and valuable

consideration received for the

sale of such obscene

publications from and after

the time the person or persons

maintaining said nuisance

received a copy of the

resolution of the Board of

Commissioners’ finding that a

public nuisance and a judgment

that such monies are gain

derived from a wrongful act

and a public nuisance;

an order that all admission

price monies or valuable

consideration received and

enumerated in the court

ordered accounting be

forfeited as required by law;

od Se re ts WE Aas Cr aol

a = oS fk eee Oe ee

C-23

(7) judgment of the City of

Paducah for all costs expended

in abating the public

nuisance, including

investigative costs, court

costs, reasonable attorney

fees, and such other expenses

as are provided for herein;

and

(8) all other relief as the court

may deem proper.

(B) File a notice of the pendency

of the action in the office of the

McCracken County Clerk, giving the names

of the parties, the object of the

action, and a description of the

property thereby affected.

"SECTION 19-157. COST OF

ABATEMENT; ASSESSMENT; ASSESSMENT

“PORT; HEARING ON ASSESSMENT REPORT;

ASSESSMENT RESOLUTION; COLLECTION.

C-24

(A) The cost of abatement is

hereby declared a special assessment

against the parcel of land upon which

the public nuisance is maintained, but

only against the interest, if any

therein, of the person or persons

determined in the action to be

responsible for maintaining such

nuisance. As used herein, the term

"cost of abatement" shall include, but

is not limited to, the following: (1)

investigative costs; (2) court costs;

(3) reasonable attorney fees; and (4)

printing costs for any trial and appeal.

(B) Upon the filing of a County

Court judgment adjudicating the

existence of a public nuisance in any

proceedings instituted pursuant to these

sections, the Corporation Counsel shall

file with the City Clerk a written

report containing his account of the

expenses of abatement, the person or

C-25

persons determined in the action to be

responsible for maintaining such

nuisances, a description of the

premises on which such abatement

occurred, and the assessment against

each lot or parcel of land proposed to

be levied to pay the cost thereof. The

clerk shall then set the report for

hearing by the Board of Commissioners

and shall, not less than ten (10) days

prior to the date set for such hearing,

serve notice of assessment upon the

owners, which notice shall specify the

day, hour and place when the Board of

Commissioners shall hear and pass upon

the assessment report tocether with any

objections or protests thereto.

for the hearing, the Board of

Commissioners shall hear and pass upon

the assessment report together with any

objections or protests which may be

C-26

raised by any of the owners of any

property liable to be assessed for the

costs of abatement of any other

interested persons. The Board of

Commissioners may make such revision,

correction or modifications in the

report as it may deem just, after which

the report as submitted, or as revised,

corrected or modified, shall be

confirmed. The Board of Commissioners

may adjourn the hearings from time to

time. The decisions of the Board of

Commissioners on all protests and

objections which may be made shall be

final and conclusive.

(D) Upon confirmation of the

assessment report, the Board of

Commissioners shall adopt a resolution

specifying the amount assessed against

each respective parcel as shown on the

last available assessment roll in

accordance with the assessment report.

C-27

Unless otherwise provided in such

resolution, any such assessment shall

become due thirty (30) days after

adoption of such resolution and shall

thereafter bear interest at the rate of

fifteen per cent (152%) per year. The

Board of Commissioners may provide in

the resolution for payment to become due

at any later date, in total sum or in

installments.

(E) All assessments may be paid by

tender of the amount due to the City

Treasurer. The City Treasurer, prior to

August 10 of each year, shall determine

if any assessment, or portion thereof,

is due and unpaid, and if he so

determines, such assessment shall be

collected at the same time and in the

same manner as ordinary City taxes are

collected and shall be subjéct to the

same penalties and the same procedure

and sale in case of delinquency as

C-28

provided for ordinary City taxes. All

laws applicable to the levy, collection

and enforcement of municipal taxes shall

be applicable to the levy, collection

and enforcement of municipal taxes shall

be applicable to such special

assessment.

SECTION 2. If any section,

subsection, sentence, clause, phrase or

portion of this ordinance is for any

reason held to be invalid or

unconstitutional by the decision of any

court of competent jurisdiction, such

decision shall not affect the validity

of the remaining portions of this

ordinance. The Board of Commissioners

of the City of Paducah hereby declares

that it would have adopted this

ordinance and each section, subsection,

sentence, clause, phrase or portion

thereof irrespective of the fact that

any one or more sections, subsections,

Pe ESI RSA Ee

C-29

sentences, clauses, phrases or portions

be declared invalid or unconstitutional.

SECTION 3. This ordinance shall be

read on two separate days and will be

effective upon publication of a

certified summary thereof.

Mayor

Introduced by the Board of

Commissioners May 31, 1983

Passed by the Board of

Commissioners June 14, 1983

Recorded by Louise McKinney, City

Clerk, June 14, 1983

Published by The Paducah Sun

June 20, 1983.

APPENDIX ''D"

Resolution of the Board of

Commissioners of the City of Paducah,

Kentucky passed August 3, 1983, finding

the business known as Tammy's Book Store

To Be A Public Nuisance Pursuant to

Section 19-153 of the Code of Ordinances

of the City of Paducah As A Place of

Business In Which Obscene Publications

Constitute All of the Stock in Trade or

a Principle Part of the Stock in Trade

and Revoking All Licenses and Permits

Except That No Criminal Proceedings May

Be Filed for Transactions Business

Without A License Until The Fact of

Public Nuisance Has Been Confirmed by a

Decree of the McCracken County Court in

Judicial Proceedings.

(Reference: Petition for Writ of

Certiorari at page 13 line 3).

....D-1 thru D-16

D-1

RESOLUTION

WHEREAS, on the 14th day of June,

1983, the Board of Commissioners of the

City of Paducah adopted Ordinance No.

83-6-2388 declaring the commercial

exploitation of obscene motion picture

films and obscene publications to be

contrary to the public health, safety,

and general welfere, and a public

nuisance, and

WHEREAS, on June 22, 1983, Officer

Kermit Perdew visited a business located

at 243 Brown Street, Paducah, Kentucky,

known as Tammy's Book Store, and

WHEREAS, at that time said officer

observed motion pictures, magazines, and

other material which taken as a whole

the appeal to the average person is to

the prurient interest and the matter,

taken as a whole, lacks any redeeming

social importance, and

D-2 4

WHEREAS, on July 2, 1983 Officer

Kermit Perdew returned to the place of

business known as Tammy's Book Store and

purchased the following material:

"EROTIC INTERLUDE", (Where one

man's woman is another man's pleasure),

a video tape (Beta); and "BACK DOOR"

NUMBER TWO ("Come with us on a Journey

and see just how much fun, anal sex can

be!"), and

WHEREAS, on July 10, 1983, Officer

Kermit Perdew again went to the premises

of Tammy's Book Store and purchased the

following material: “THE FILTHY RICH"

(the secret pleasures of those who have

it made), a video tape (Beta); and

"MR/MRS" ("he had this thing for women's

clothes.), and

WHEREAS, the Board of Commissioners

conducted a public hearing on August 3,

1983, at the hour of 1:00 p.m. at which

time the Board of Commissioners reviewed

all of the above mentioned materials.

D-3

NOW THEREFORE, BE IT RESOLVED BY

THE BOARD OF COMMISSIONERS OF THE CITY

OF PADUCAH, AS FOLLOWS:

SECTION 1. The Board of

Commissioners hereby finds the following

facts: On July 2, 1983, the place of

business located at 243 Brown Street,

Paducah, Kentucky, known as Tammy's Book

Store, sold the following materials:

Caballero Control Corporation

Presents "EROTIC INTERLUDE", (Where one

man's women is another man's pleasure).

A video tape (Beta) with approximate

running time of 84 minutes.

This material contains numerous

explicit scenes of sex acts between

males and females, females and females,

including natural and contorted sexual

intercourse, felatio and cunnilingus,

The Board of Commissioners after

reviewing said material on August 3,

1983, finds that said material is

D-4

obscene under the ordinance of the City

of Paducah and the statutes of the

Commonwealth of Kentucky, in that the

matter taken as a whole, the predominant

appeal to the average person, applying

contemporary community standards, is to

the prurient interest. The material,

taken as a whole, goes substantially

beyond customary limits of candor of

description and representation of such

matters and, taken as a whole, the

material is utterly without redeeming

social importance.

SECTION 2. The Board of

Commissioners hereby finds the following

facts: On July 2, 1983, the place of

business located at 243 Brown Street,

Paducah, Kentucky, known as Tammy's Book

Store, sold the following materials:

"BACK DOOR" NUMBER TWO ("'Come with us on

a Journey and see just how much fun,

anal sex can be!") from the publishers

of Swedish Erotica Magazine and Books.

D-5

A 36 slick-page magazine containing

color photographs in an explicit manner,

sexual relations between men and women,

including sexual intercourse (both

natural and contorted) and acts of

cunnilingus and fellatio, and anal

intercourse.

The Board of Commissioners after

reviewing said material on August 3,

1983, finds that said material is

obscene under the ordinances of the City

of Paducah and the statutes of the

Commonwealth of Kentucky, in that the

matter taken as a whole, the predominant

appeal to the average person, applying

contemporary community standards, is to

the prurient interest. The material,

taken as a whole, goes substantially

beyond customary limits of candor of

description and representation of such

matters and, taken as a whole, the

material is utterly without redeeming

social importance.

D-6

SECTION 3. The Board of

Commissioners hereby finds the following

facts: On July 10, 1983, the place of

business located at 243 Brown Street,

Paducah, Kentucky, known as Tammy's Book

Store, sold the following material:

Swedish Erotica presents

(distributed by Caballero Control

Corporation) "THE FILTHY RICH" (the

secret pleasures of those who have it

made). A video tape (Beta) with

approximate running time of 80 minutes.

The material contains numerous

explicit scenes of sex acts between

males and females, including natural and

contorted sexual intercourse, felatio

and cunnilingus, and masturbation.

The Board of Commissioners after

reviewing said material on August 3,

1983, finds that said material is

obscene under the ordinances of the City

of Paducah and the statutes of the

D-7

Commonwealth of Kentucky, in that the

matter taken as a whole, the predominant

appeal to the average person, applying

contemporary community standards, is to

the prurient interest. The material,

taken as a whole, goes substantially

beyond customary limits of candor of

description and representation of such

matters and, taken as a whole, the

material is utterly without redeeming

social importance.

SECTION 4. The Board of

Commissioners hereby finds the following

facts: On July 10, 1983, the place of

business located at 243 Brown Street,

Paducah, Kentucky, known as Tammy's

Book Store, sold the following material:

"MR/MRS" (he had this thing for

women's clothes.) From the publishers

of Swedish Erotica magazines and books.

A 36 click-page magazine containing

color photographs depicting in an

D-8

explicit manner sexual relations between

men and women, including sexual

intercourse (both natural and contorted)

and acts of cunnilingus and felation.

The Board of Commissioners after

reviewing said material on August 3,

1983, finds that said material is

obscene under the ordinances of the City

of Paducah and the statutes of the

Commonwealth of Kentucky, in that the

matter taken as a whole, the predominant

appeal to the average person, applying

contemporary community standards, is to

the prurient interest. The material,

taken as a whole, goes substantially

beyond customary limits of candor of

description and representation of such

matters and, taken as a whole, the

material is utterly without redeeming

social importance.

SECTION 5. The Board of

Commissioners of the City of Paducah

D-9

hereby finds that the business known as

Tammy's Book Store is owned and operated

by Investment Entertainment, Inc. with

its principal place of business at 243

Brown Street, Paducah, Kentucky.

SECTION 6. The Board of

Commissioners hereby finds that the

business known as Tammy's Book Store is

a public nuisance and that all material

possessed at 243 Brown Street, Paducah,

Kentucky is a public nuisance pursuant

to Section 19-152 and 19-153 of the bode

of Ordinances of the City of Paducah.

SECTION 7. Tammy's Book Store is

located at 243 Brown Street, Paducah,

Kentucky, more particularly described as

follows:

Beginning on the south side of

Brown Street at a tack of distance

of 94.32 feet in a westerly

direction from a southwest

intersection of Brown Street and

Beltline Highway (now Irvin Cobb

Drive); thence at a right angle in

a southerly direction a distance of

125 feet to an iron pipe; thence at

D-10

a right angle in a westerly

direction a distance of 50 feet to

an iron rod; thence at a right

angle in a northerly direction a

distance of 125 feet to an iron rod

on the south line of Brown Street;

thence with the south line of Brown

Street at a right angle a distance

of 50 feet in an easterly direction

to the point of beginning.

Beginning the same property in all

respects that was conveyed to

Investment Entertainment, Inc. by

deed dated the 21st day of March,

1983, and recorded in Deed Book

653, Page 239, in the McCracken

County Court Clerk's Office.

SECTION 8. The Board of

Commissioners hereby orders revocation

of all licenses and permits that have

been issued as a part of the operation

of Tammy's Book Store and/or Investment

Entertainment, Inc. subject to

confirmation by the McCracken Circuit

Court in judicial proceedings

hereinafter required.

SECTION 9. The Board of

Commissioners hereby orders the

Corporation Counsel to give written

D-11

notice to all persons associated with

243 Brown Street, Paducah, Kentucky,

including but not limited to Investment

Entertainment, Inc., all employees and

managers of Tammy's Book Store and/or

Investment Entertainment, Inc. to abate

the public nuisances immediately by

terminating the exploitation of obscene

film or films for sale or offering for

sale of such publication or causing the

same to be terminated.

SECTION 10. The Board of

Commissioners further orders the

Corporation Counsel to proceed as

directed under Section 19-156 of the

Code of Ordinances of the City of

Paducah and to do all things necessary

to abate such public nuisance through

judicial proceedings and to conclude

such proceedings as expeditiously as

possible under the law. It is ordered

that a certified copy of this Resolution

D-12

shall be served on the statutory agent

of Investment Entertainment, Inc., all

officers and employees and agents

thereof, which can be found within the

City of Paducah, that said business has

been declared a public nuisance and has

revoked the licenses and permits at that

place, subject to court confirmation,

and that under Section 19-154 of the

Code of Ordinances of the City of

Paducah they are deemed to have

knowledge thereof and are responsible

therefor. They shall further be

notified that the Board of Commissioners

has ordered the Corporation Counsel as

provided under Section 19-156 of the

Code of Ordinances of the City of

Paducah to commence legal proceedings

naming such persons as defendants in a

civil action to abate the same

judicially and to seek recovery in said

action of the cost of said abatement,

D-13

including investigation costs, court

costs, attorneys fees, and other

expenses end under Section 19-157 of the

Code of Ordinances of the City of

Paducah. The costs of abatement are

made a special assessment against the

parcel of land upon which the business

is maintained.

The Board of Commissioners, will,

by separate resolution, place a lien

against the real property interest or

the person responsible for maintaining

such nuisance. Said persons are to be

furthe

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