# Petition for Writ of Certiorari — City of Paducah v. Investment Entertainment, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2382%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 479 U.S. 915 ## Text | a 5 1 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 ee -i- QUESTIONS PRESENTED I 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? i/ 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 Il 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 I 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.«. 4 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 34 44 47 47 49 50 -iii- Il 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 45 58 58 39 43 61 56 48 14 56 57 56 19 40 -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 19 63 20 10 20 22 20 57 56 -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 ae a manufactory of obscene materials)+ and that the sections held to be un- constitutional below, namely, those 1/ 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-)%. 3/ ! 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 I 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 ‘ + ; & Hi ‘ 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 ey =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. | a | . } 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. L 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- If 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; or (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 t 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). if v 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 \ & \ ‘ ay % ay en ‘ wa \ Car * . ‘ 4 a n ¥ * ih . y 4 => a j . me ’ ~ . =) 5 » 4 2 ‘ xy %y ry , \~ A ro A - Mis) A-1 Nos. 85-5092, 85-5093 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT CITY OF PADUCAH, Plaintiff-Appellant, Vs 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. | j | i 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) 2; 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 B-4 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 (C) Any and every obscene film 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 B-6 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. B-8 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 B-10 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 oo e ie eT 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 sh [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2382%3A1. Public record. Not legal advice.