Amicus Curiae Brief — City of Paducah v. Investment Entertainment, Inc.

Supreme Court brief1986

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PY OF PADUCAH: JOHN K: PENROD, as Mayor, and JOE

_-VITERISL, ROBERT A. COLEMAN, HAROLD (SHORTY)

R Dand JAMES: Ww. FLYNN, as Commissioners of said City:

ES W. OTTER, as Cesporation Counsel, and THURMAN

R, as ‘Treasurer thereof,

Petitioners,

¥,

‘ENTERTAINMENT, INC:

| BELTLINE NEWS AND ARCADE CLUB,

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

Fide aie court > eee FOR THE SIXTH CIRCUIT

AMICUS CURIA | BRIEF

OF THE CITY OF SANTA ANA, CALIFORNIA,

i. "IN SUPPORT OF PETITIONER

Edward Cooper

Sante Ana City Attorney

20 Civie Center Plaza

Santa Ana, CA Y¥2701

James J.

9055 La Tuna Canyon Rd.

Sun Valley, CA 91352

(818) 352~20669

3 Counsel for Amicus Curiae

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR

HARD COPY AT THE TIME OF FILMING.

IF AND WHEN A BETTER COPY CAN BE

OBTAINED, A NEW FICHE WILL BE

ISSUED.

his

SUBJECT INDEX

INTEREST OF AMICUS CURIAE CITY OF SANTA

ARGUMENT

A. SANTA ANA PUBLIC NUISANCE ORDINANCE

NS1325 AND PADUCAH PUBLIC NUISANCE. —

ORDINANCE 83-6-2388 ARE IDENTICAL .

ria gs gE argh a i ea

B. THE PADUCAH PETITION FOR WRIT OF

CERTIORARI PRESENTS THE "CLOSURE"

ISSUE WHICH WAS LEFT UNANSWERED BY

THIS COURT'S DECISION DURING THE

1965 Tiel IN AMCARAs «9. 6 2s 6 ee ew

C. THE "CLOSURE" OR "PADLOCK: OR

“LICENSE REVOCATION" OF A PLACE

OF BUSINESS IS NOTHING MORE THAN

AN "IN REM" REMEDY IN THE FORM OF

REFORMATION OF REAL PROPERTY WHICH

IS A HEALTH (MORAL) PUBLIC NUISANCE. .

D. THE TEN YEAR HISTORY OF THE LITI-

GATION BETWEEN THE CITY OF SANTA

ANA AND THE MITCHELL BROTHERS'

THEATRE IN SANTA ANA CLEARLY

ESTABLISHES THAT SANTA ANA PUBLIC

NUISANCE ORDINANCE NS 1325 (AND ITS

COUNTERPART PADUCAH PUBLIC

NUISANCE ORDINANCE 83-6-2388) AS

APPLIED, DOES NOT IMPOSE A "PRIOR

ot SL Ane a, ee ae er ee <8

E. THE U.S. DISTRICT COURT'S HOLDING

THAT A CITY DOES NOT HAVE THE POWER

TC ORDER A PLACE OF BUSINESS WHICH

IS A MANUFACTORY OF OBSCENITY TO BE

A PUBLIC NUISANCE IS CLEAR ERROR.

THAT SAME ERROR IS THE UNDERLYING

CAUSE FOR SANTA ANA'S LITIGATION

PROBLEMS IN THE CALIFORNIA COURTS. . 13

-ii-

BECAUSE OF THE CONFUSION WHICH

PRESENTLY EXISTS AS TO THE

LEGAL STATUS OF THE FEDERAL

"CLOSURE" ISSUE, THE CITY OF

SANTA ANA HAS BEEN DEPRIVED OF

RESTITUTIONARY COSTS OF ABATE-

MENT TO WHICH IT WOULD OTHERWISE

BE ENTITLED, AND ITS ABILITY TO

CONTINUE TO FUND ITS PUBLIC

NUISANCE ABATEMENT LITIGATION IS

BEING SERIOUSLY QUESTIONED. ..... 19

THE PRINCIPLES EXPRESSED BY THIS

COURT IN ARCARA REQUIRE THAT

QUESTIONS 2(a) AND 2(b) OF THE

PADUCAH PETITION BE ANSWERED IN

THE AFFIRMATIVE AS TO PADUCAH

PUBLIC NUISANCE ABATEMENT

ORDINANCE 83-6-2388. ........ 24

THE POWER TO ABATE MORAL PUBLIC

NUISANCES, BASED UPON A CONSIS-

TENT PATTERN OF ILLEGAL ACTIVITY

IN THE FORM OF EITHER “LEWD CON-

DUCT" OR “TRADING IN OBSCENITY",

IS AN INHERENT POWER IN GOVERN-

MENT WHICH MAY NOT BE QUALIFIED,

IF THE PUBLIC NUISANCE IS FOUND

TO EXIST. > . 2. ad 7 al . > >. ad el ll > bl a2

1. UNDER THE COMMON LAW AND THE

STATUTORY LAW ON "NUISANCES" IN

MOST STATES, THE TERM. "PUBLIC

NUISANCE" EMBRACES BOTH THE "MORAL"

PUBLIC NUISANCE, SUCH AS TRADING

IN “LEWD CONDUCT" AND/OR "OBSCENITY"

WHICH IS OFFENSIVE TO THE MORAL

SENSE, AND THE "PHYSICAL" PUBLIC

NUISANCE WHICH IS OFFENSIVE TO

ONE OF THE 5 PHYSICAL SENSES. . . . . 32

iteile, rm

errr

sar

-iii-

2. A “MORAL” NUISANCE IS A “PER

SE“ PUBLIC NUISANCE. "LEWD CON-

DUCT" AND THE“COMMERCIAL DISTRI-

BUTION OR EXHIBITION OF OBSCENE

MATTER" IS A PER SE PUBLIC NUISANCE

(AS A MATTER OF LAW)-- NO FURTHER

PROOF BEYOND THE FACT OF "LEWD

CONDUCT" OR "OBSCENITY" IS REQUIRED.

THE POWER TO ABATE THE SAME IS IN-

HERENT IN GOVERNMENT, WHICH IS

UNDER AN OBLIGATION TO REMOVE THE

ee EE |

3. MUGLER V. KANSAS,123 U.S. 205,

AUTHORIZES "CLOSURE" OF MORAL

“PER SE" PUBLIC NUISANCES. ..... 39

4. THE CLAIM THAT THE "CLOSURE"

WHICH WAS AUTHORIZED IN MUGLER \V.

KANSAS CANNOT BE APPLIED TO A COM-

MERCIAL BUSINESS WHICH HAS BEEN

TRAFFICKING CONTINUOUSLY IN LEWD

CONDUCT OR OBSCENITY IS A "MYTH". . . 41

EE ee a ee ee

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES CITED

CASES

Arcara, District Attorney of Erie

County, NY v. Cloud Book Inc.,

et al., U.S. lamaey : 7, 2906).. «> 344,5;,142,

19,25, 26,

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

Ewan, 421 U.G. 923. (3975) 5... « + « « 42

Avenue Book Store v. City of Tallmage,

Gee ee Oe8. OFT, 66 0s 2s oe » 42

-iv-

City of Paducah et al. v. Investment

Bntertesmeere, Bs «6. 62 SS Se we SG

Commonwealth v. Holmes, 17 Mass. 336.

Commonwealth v: Sharpless, 2 S&R

(Penn.) 91, 7 Bm.Bee. G32... . -

General Corporation v. State of

Alabama ex rel. Sweeton, 320

SG<ae GOO Geeters 69S 4 Sa ee

Harris v. U.S. 315 A.2€ 569

CAs Re eS eR OS. ea Ge es

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

SOn CAG eh kG we. Oe ee eee ee

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

Ohio ex rel. Ewing v. "Without

A Stitch’, 207. Wik. Be Fels i ews

People v. Lim, 18 Cal.2d 872,

O79 -C2PSihs 6 2:0) Oe SOR Sw

People ex rel. Busch, et al. v.

Projection Room Theater, 17

Cal.2d0@ 42 (2970). 2 ss ts se «oO %

People ex rel. Cooper v. Mitchell

Brothers Case No. 45-80-37. ....

People ex rel. Hicks v. "Sarong

Gals" 42 Cal.App.3d 556 (10/18/74),

Hrg. Den. Cal.&.Ct. 12/11/74...

People ex rel. Sorenson v.

Randolph, 99 Cal.App.3d 183

(CAs Jets Die. Ae Pe ees ses

People ex rel. Gow v. Mitchell

Brothers Case No. 29-91-83 . .

43,44

34,41

42,43

16,27,28,29

- 20,22,24

-V-

People ex rel. Gow v. Mitchell

Brothers Case No. 35-55-93. .... 20,22,24

James Phalen v. Commonwealth of

Virginia, 12 L.Ed. 1030 (1850). . . 32,39

Rex v. Curl, 2 Strange 789 (1727). . . 32

Sir Charles Sedley's Case, 1 SID 163. 32

State ex rel. Kidwell v. U.S.

Marketing, Inc., 102 Idaho 451. .. 7,26

State ex rel. Kidwell v. U.S.

Marketing, Inc., 454U.S. 1140

(Probable Jurisdiction Noted). ... 7,20

State ex rel. Kidwell v. U.S.

Marketing, Inc., 455 U.S. 1009

(Appeal Dismissed on Motion of

pT St ee a ae a ee a ee 7,20

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

Regents, 248 N.Y.S.2d 857

ee: Dy er eee ee ae ee ee

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

ee Cee se ee Se ke se ee ee

Weis v. Superior Court, 30 Cal.App.

730 (1916) . . _ * 7 7 = . ° . - . - 27

STATUTES, ORDINANCES, RULES

California Civil Code

> | eS Sy Ca, gee ae ae er ee ee BS

Recs 6 ee care alee ek ee tae Lee

es + & 4 ce ck ew eo ce, Cee

Ohio Rev. Code (Red Light Abatement

Stat.)

3 fe Se ae ce ee ae oe ee a

eas See ee ee ee

New York Public Health Law (Red

Light Abatement Statute),

Article 23, Title 2, .

88 2320-2332,. .. Lar EERE

Santa Ana City Ordinance N.S. 1325

(enacteé@: in 3996) 54 4 Ss Sse

Paducah Public Nuisance Abatement

Ordinance Sections 19-152 (A)

Cpa GES ck eS 2 So ete ee SFE

Section G2-G-sgaee ise Sie «ee *

Section 19-153, 19-155 (A)-(D)..

Section 19-156 (A)(1) and (2). .

TEXTS, ETC.

= Cail .dut. 26: Ge Sees «oe bee eo

Joyce, Law of Nuisances, § 345,. .

Supreme Court Practice, Stern,

Gresman, Shapiro 6th EP at p. 144

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

8S 23 & 24 at pp. 45-46,. ....

S O25 -Mes Figs e € ecw ess

TS OP ee ee ee

S 763, Be ORO ere ed es 2s

Santa Ana Municipal Code

Sections’: 3243s 4A) p66 id ee -0

Sections: £24308. Chl io< (es se ses

Sections 12-104 (A)-(D),.....

Sections 12-105 (A)(1) and (4),.

25 ALR 4 at 381-412,. . . « « « « «

5,6

2,3,10,25

-1,2,3,10,12,

24,25

-34

In THE

Suprenve 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 Counscl, 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

S1 ATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

AMICUS CURIAE BRIEF

OF THE CITY OF SANTA ANA, CALIFORNIA,

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

CITY OF SANTA ANA

City of Paducah Public Nuisance

Abatement Ordinance 83-6-2388, as to which

the City of Paducah is seeking review in

its petition for writ of certiorari herein,

is essentially. the same ordinance as Santa

Ana Public Nuisance Ordinance NS1325 which

was adopted by the City of Santa ten years

ago to control the obscene films being

exhibited at the Mitchell Brothers’ The-

ater in Santa Ana. Santa Ana Ordinance

NS1325 enacted in 1976, has governed.

the actions of the Santa Ana City Council

in the ten years of the City's litigation

with the Mitchell Brothers' Santa Ana

Theatre.

A. SANTA ANA PUBLIC NUISANCE

ORDINANCE NS1325 AND PADUCAH

PUBLIC NUISANCE ORDINANCE

83-6-2388 ARE IDENTICAL

ORDINANCES.

Santa Ana Public Nuisance Ordinance

NS1325 was drafted to control a porno-

graphic motion picture theater business

(Mitchell Brothers’ Santa Ana Theater)

which exhibited obscene films as its re-

gular and only course of business, and

was so limited. Paducah Public Nuisance

Te ar A AR ME OT ae ala

el armies BF x

eam ical WE oir ad RL Desa Ne A

Ordinance 83-6-2388 contains the iden-

tical provisions on pornographic motion

picture theater businesses (section 19-

152) and includes an additional section

(section 19-153) to control pornographic

bookstore businesses which deal with the

sale of "publications" and the sale and

exhibition of “arcade-type films" which

are defined as "publications". Santa Ana

Ordinance NS1325, in its entirety, appears

at Exhibit 2 to the "Motion to Allow

Amicus.Curiae City of Santa Ana To Argue",

in Richard Arcara, District Attorney of

Erie County, Petitioner v. Cloud Book

Inc., etc., et al.. See motion denied in

U8. gs OF b. Be. ae Fi, Waly -7,

1986). Compare, in this regard, here-

after at Appendix (A), Santa Ana Munici-

pal Code Sections 12-102(A) and (B) and

Paducah Ordinance 83-6-2388, Sections

19-152(A), (B) and (C); Santa-Ana Munici-

pal Code Section 12-104(A) through (D)

and Paducah Ordinance 83-6-2388, Sections

19-155(A) through (D); and Santa Ana

Municipal Code Sections 12-105(A) (1) and

(2) with Paducah Ordinance 83-6-2388,

Sections 19-156(A) {1) and (2).

B. THE PADUCAH PETITION FOR

WRIT OF CERTIORARI PRESENTS

THE "CLOSURE" ISSUE WHICH WAS

LEFT UNANSWERED BY THIS COURT'S

DECISION DURING THE 1985 TERM

IN ARCARA.

The Petition for Writ of Certiorari

herein presents this Court with the

"Closure" question which was left un-

answered by this Court's recent decision

on July 7, 1986 in Arcara, District At-

torney of Erie County v. Cloud Books,

inc., @6C.. Bt Biles U.S. » 54

L.W. 5060 (July 7, 1986). Arcara involved

a public nuisance in the form of lewd

public conduct in three (3) dimensional

form, which was occurring upon the place

of business known as Cloud Books Inc., a

bookstore. Here, the unlawful conduct

A anes ec Fd 1 eck tek We Dt tek La OP tame Ln nl ae a

and activities giving rise to the public

nuisance abatement action, which the City

Attorney was prepared 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 publi-

cations constitute all of the stock in

trade, or a principal part of the stock

in trade. See Arcara, 54 L.W. at 5061.

C. THE "CLOSURE" OR PADLOCK" OR

"LICENSE REVOCATION" OF A PLACE

OF BUSINESS IS NOTHING MORE THAN

AN "IN REM" REMEDY IN THE FORM OF

REFORMATION OF REAL PROPERTY WHICH

IS A HEALTH (MORAL) PUBLIC NUISANCE.

In Arcara, the City of Santa Ana sub-

mitted an Amicus Curiae Brief in Support

of the Erie County, New York District

Attorney, in which it argued that New York

Public Health Law, Article- 23, Title II,

was simply a codification of the Common

Law rule that a court may assume in rem

jurisdiction over real estate (the res)

which is a health menace and "reform" the

property so as to eradicate the health

public nuisance. See General Corporation

v. State of Alabama ex rel. Sweeton, 320

So.2d 668 at 674 (1975). Sections 2320

through 2332 of the New York Public Health

Law (Red Light Abatement Statute) in

Arcara simply provided a formula for

carrying out the process of reformation.

Amicus Curiae City of Santa Ana sub-

mits that the proper construction of the

so called "closure" or "padlock" or

“license revocation" remedy---and one

which avoids the "red herring" which is

regularly employed by those dealing in

hard-core materials, is the rationale ex-

pressed by the Court of Appeal, Fourth

District, in People ex rel. Hicks v.

"Sarong Gals", 42 Cal.App.3d 556, 117

Cal.Rptr. 24 (Oct. 18, 1974), hearing

.denied by the California Supreme Court on

December 11, 1974, involving

"entertainment"; and by the Court of Ap-

peal, First District, in People ex rel.

Sorenson v. Randolph, 99 Cal.App.3d 183,

160 Cal.Rptr. 69 (Nov. 30, 1979). Those

cases analyze the proceeding as an "in

—_— action to reform the real property.

For a "modern" adaptation of the same

statute, see State ex rel. Kidwell v. U.S.

Marketing, Inc., 102 Idaho 451, Probable

Jurisdiction Noted, 454 U.S. 1140, Appeal

Dismissed on Motion of Appellant, 455 U.S.

1009, in which the Idaho Supreme Court up-

held the "closure", and "padlock",

stating that it was not a "prior restraint"

against the person, but was instead merely

an in rem punishment imposed on the pro-

perty, analogous to a civil forfeiture of

property used in a crime.

In People of the State of California

ex rel. Hicks v. "Sarong Gals," supra, the

Court was construing an application of the

California Red Light Abatement Statute.

There, the trial court permanently enjoined

certain parties from maintaining, using or

occupying the premises known as "Sarong

Gals" for the purpose of "lewdness" and

had closed the premises to all use for one

year. In affirming the permanent injunc-

tion, the Court of Appeal, Fourth District

analyzed the "padlock" provision as an "in

rem" rather than an "in personam" remedy,

and the principal objective as the refor-

mation of the property itself.

In People of the State of California

ex rel. Sorenson v. Randolph, supra, the

Court of Appeal, First District, Division

1 also was construing an application of

the California Red Light Abatement Statute.

‘There, the district attorney's office had

amassed considerable evidence that the

premises were being used for allegedly im-

moral purposes; that, for example, cock-

tail waitresses regularly solicited acts

of prostitution; that customers were

eee ee Oe eee ae

Pe ae a he

(illegally) "cadged" for drinks; that lewd

acts such as masturbation were performed

on customers, including police investiga-

tors; and, in general, that the ownership

promoted a systematic course of illegal

sexual acts such as to warrant closure of

the premises as a public nuisance.

On appeal from the trial court's

order of closure, the owners of "Easy

Street” argued that the order of abatement

unconstitutionally infringed upon its

First Amendment rights as a "prior re-

straint" of their protected activities of

showing.-pornographic films and nude dancing.

[In affirming the order of closure, at page

71, the Court of Appeai applied the same

rationale as was used by the Court of

Appeal in the "Sarong Gals" case noted

ove.

-10-

D. THE TEN YEAR HISTORY OF THE

- LITIGATION BETWEEN THE CITY OF SANTA

ANA AND THE MITCHELL BROTHERS’ THEATRE |

IN SANTA ANA CLEARLY ESTABLISHES THAT

SANTA ANA PUBLIC NUISANCE ORDINANCE

NS 1325 (AND ITS COUNTERPART PADUCAH

PUBLIC NUISANCE ORDINANCE 83-6--2388)

AS APPLIED, DOES NOT IMPOSE A "PRIOR

RESTRAINT."

During the 1981, 1982, and 1985 October

Terms of Court,-Amicus Curiae City of Santa

Ana, attempted, without success, to place

this same s0O-called "closure" issue and

the same basic propositions of law before

this Court for resolution. The issues pre-

sented in the Santa Ana City Attorney's

petitions, involving an application of

Santa Ana Public Nuisance Ordinance NS

1325 to the operation of the Mitchell

Brothers theater in Santa Ana, are sub-

stantially the same as the City of Padu-

cah's petition for writ of certiorari re-

garding the constitutionality of Paducah

Public Nuisance Abatement Ordinance

83-6-2388. See “Petition for Writ of

Certiorari” in People ex rel. Cooper, City

SEE APR. ES EBs GE A

Weer Fran *

FF NOSE

~j i=

Attorney of: the City of Santa Ana v. Mit-

chell Brothers’ Santa Ana Theater, et al.,

October Term 1981, No. 81-271; "Petition

for Writ of Certiorari”™ in Edward Cooper,

City Attorney of Santa Ana v. Mitchell

Brothers' Santa Ana Theater, et al., Octo-

ber Term 1982, No. 82-345; “Petitioner's

Reply and Supplemental Brief" in No. 81-271;

"Petitioner's Motion for Leave to File

Out-of-Time Petition for Rehearing, With

Petition for Rehearing Annexed," October

Term 1981, No. 81-271; “Petition for Writ

of Certiorari" in People of the State of

California ex rel. Cooper, City Attorney of

the City of Santa Ana v. Mitchell Brothers'

Santa Ana Theater, et al., October Term

1985, No. 85-439; and "Petition for Rehear-

ing" October Term 1985, No. 85-439.

The ten year history of litigation

between the City of Santa Ana and the

Mitchell Brothers' Theater in Santa Ana

=%2-

is set forth in a declaration of James J.

Clancy, filed in such Orange County liti-

gation, a copy of which has been filed with

this Court as Exhibit 3 to Santa Ana's

"Motion to Allow Amicus Curiae City of

Santa Ana to Argue" in Arcara, District

Attorney of Erie County, Petitioner v.

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

A copy of said declaration is also attached

as Appendix "B" to this amicus curiae

brief. That history clearly establishes

that Santa Ana Public Nuisance Ordinance

NS 1325 has not resulted in the imposition

of a "prior restraint", nor would its

equivalent counterpart, Paducah Ordinance

83-6-2388.

During the above ten year period, the

‘trial courts in 3 trials on the merits

have refused to confirm the City Council's

license revocation, notwithstanding those

trial courts also found that all of the

motion picture films which were adjudicated

Sort ce

(total of 51 films and 8 previews) were

hard-core pornography in violation of the

California State Obscenity Statutes. Fur-

ther, during that period of time, the

theater has continued to operate, uninter-

rupted, from 9:45 a.m. to midnight (12:00

a.m.) for 365 days of each of those years.

E. ‘THE U.S. DISTRICT COURT'S HOLD-

ING THAT A CITY DOES NOT HAVE THE

POWER TO DECLAREA PLACE OF BUSINESS

WHICH IS A MANUFACTORY OF OBSCENITY

TO BE A PUBLIC NUISANCE IS CLEAR

ERROR. THAT SAME ERROR IS THE

UNDERLYING CAUSE FOR SANTA ANA'S

LITIGATION PROBLEMS IN THE CALIFORNIA

COURTS.

The rationale given by the trial court

in each of the three cases discussed above,

was the same as that given by the U.S.

District Court in City of Paducah et al.

v. Investment Entertainment, Inc., ie.,

that a City cannot declare a place of busi-

ness which is alleged to be a "manufactory

of obscenity” to be a public nuisance.

See Petition for Writ of Certiorari, at

Appendix B-12 and B-17 and B-18, reading

ot ou

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 pro-

tection, and therein lies the danger

of Ordinance No. 83-6-2388. By going

beyond the obscene materials them-

selves and focusing on the place

where the obscene materials are sold

or exhibited, the ordinance improper-

ly 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.”

The federal questions have been

framed in the City of Paducah's petition

for writ of certiorari as follows:

(a) Whether The City Of Paducah,

Under Its Nuisance Abatement Powers,

Has The Power To Enact A Procedural

Public Nuisance Ordinance Which De-

clares 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 Pro-

cedural Public Nuisance Ordinance,

The City May Act To Revoke All

Licenses And Permits Of Such

- —VT5-

Business Where: (1) No Criminal Pro-

céedings May Be Brought For Trans-

acting Business Without A License

Unless And Until The Existence Of

Such Public Nuisance Has Been Estab-

lished At A 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 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 Revoca-

tion?

It seems clear to Amicus Curiae City of

Santa Ana that, as a matter of “hornbook

law", both of the above questions must be

answered in the affirmative as powers which

are derived from an inherent right of

government under the Common Law. Further,

U.S. v. O'Brien, 391.U.S. 367 is inapposite.

O'Brien has no relevancy to a City Ordin-

ance which is directed at imposing common

law sanctions on a place of business which

is a "manufactory of obscene materials".

By definition, such a place is a "non-ex-

pressive saactivity”.

~16<

The unsupported assertion of the

California trial courts that a City may

not declare a place of business which is a

"manufactory of obscenity” to be a public

nuisance is a fallout resulting from

SREY Bry pk oe the California Supreme

Court ten years ago in its second opinion

in Peopie ex rel. Busch et al. v. Projec-

tion Room Theater et al., 17 Cal.3d 42

(1976) as to what this court would decide

after argument on the "closure" issue.

In its first opinion in Busch, a majority

of the California Supreme Court (4-3) held

in 128 Cal.Rptr. at 239, in part:

"We express no opinion upon the fur-

ther question whether the Court may,

in addition either close the premises

entirely or enjoin further ‘obscene’

exhibitions regarding materials not

yet adjudged obscene. Several cases

suggest that such further forms of

relief would be appropriate and

constitutionally permissible...”

"Since the United State Supreme Court

has not yet spoken on this difficult

question, and since in this posture

of the case the issue is not before

RII i 1 oe iL och ae cable cp OME rah io i Se

ea Oe

a ia ail, Ce a a

a a ae ee OPE Pe ee

us, we leave the question open for

further consideration."

Thereafter, however, the Court granted a

rehearing and with Chief Justice Wright

changing his vote to recast a 4-3 majority

into a 5-2 majority, thereafter omitted

the above portion of the first opinion and,

in place thereof inserted the following

text, in which the California Supreme Court

"speculated" on what this Court would do

when it faced the "closure" issue:

"We are aware of no reported

cases authorizing the closing of a

bookstore or theater, even after it

has been repeatedly determined

judicially in a full adversary hear-

ing that all or substantially all of

the magazines or films exhibited or

sold therein are obscene. Indeed

plaintiffs have directed our attention

to no such precedents, have presented

nothing to countermand or distinguish

the authorities referred to above,

and at oral argument stated they could

find no authority justifying the clos-

ing of bookstores in such circumstances.

While we have concluded that a court

of equity, having determined particu-

lar magazines or films to be obscene,

after a full adversary hearing, may

enjoin the exhibition or sale thereof

by those responsible, we emphasize

that the closing of such bookstores or

-16= .

theaters, either temporarily or per-

manently, or the enjoining of the

exhibition or sale on said premises

of magazines or films not specifical

ly so determined to be obscene,

constitutes an impermissible prior

restraint in violation of the First

and Fourteenth Amendments to the

United States Constitution.

"We therefore-hold that abate-

ment in the present action must be

directed to particular books or films

which have been: adjudged obscene

following a fair and full adversary

hearing, rather than against the

premises in which the material is

sold, exhibited or displayed.”

(our emphasis).

Although neither the Busch trial re-

cord nor the court's opinion contemplated

the validity of a city ordinance which de-

clared a place of business which is a

"manufactory of obscenity" to be a per se

public nuisance, as here, the second Busch

decision, with its unsupported "specula-

tion" became the leading case authority

which California Courts have followed

without gualification. This has come

about even though the language of the

Court's first opinion, noted above,

D+ NOL Ste Rt UG LAE Oe

eh uae SA Va

Lah at edt Dh

=1§-

clearly demonstrates that the rule of law

expressed in the second opinion is both

"dictum" and “speculation”.

(F) BECAUSE OF THE CONFUSION WHICH

2RESENTLY EXISTS AS TO THE LEGAL.STATUS

OF THE FEDERAL “CLOSURE” ISSUE, THE

SITY OF SANTA ANA HAS BEEN DEPRIVED

OF RESTITUTIONARY COSTS OF ABATEMENT

TO WHICH IT WOULD OTHERWISE BE EN-

TITLED, AND ITS ABILITY TO CONTINUE

TO FUND ITS PUBLIC NUISANCE ABATEMENT

LITIGATION IS BEING SERIOUSLY ~

QUESTIONED.

In the litigation with the Mitchell

Brothers' Theater, the City of Santa Ana

has taken the position: (1) that this

Court's analysis and reasoning in Arcara

v. Cloud Books, Inc., 475 U.S. a»;

L.Ed.2d (July 7, 1986) demonstrates that

the "speculation" by the Busch Court in

its second opinion (5-2) as to what this

Court will hold after argument on the

issue of closure of a theater which ex-

hibits nothing but pornographic films is in

error; and (2) that the California judici-

ary may not bar the City from making such

argument, as plaintiff is required to do

in perfecting its appeal on the federal

issue. See Supreme Court Practice, Stern,

Gresmann and Shapiro, Sixth Edition at

page 144 et seq. entitled "Need For Pro-

edt Saket A Substantial Federal

Question". The note of jurisdiction in

Idaho ex rel. Kidwell, 454 U.S. 1170, 71

L.Ed.2d 291, 102 S.Ct. 996; appeal dis-

missed on appellants’ motion in 455 U.S.

1009, 71 L.Ed.2d 878, has established

that the issue of closure herein is a

substantial federal question.

As a result of this confusion as to

the legal status of the "closure" issue,

Orange County Superior Court Judge Claude

D. Owens on July 31, 1986 entered an

order denying the City's claim for reim-

bursement for costs of abatement and

attorney's fees in Case No. 29-91-83 and

31-55-93, pursuant to Civil Code Section

3496. Those two trials involved 28 days

of trial and resulted in judicial findings

of fact that all of the 51 motion picture

films and 8 previews which were under ad-

judication were hard-core pornography

under California Law. See, in this regard,

the history of those cases set forth in

Appendix B-11 through B-22 to this Amicus

Curiae Brief.

Civil Code Section 3496, under which

the City can claim restitution for ex-

penditures incident to a successful abate-

ment, prevides in part, as follows:

§ 3496. (Costs and fees in obscenity

cases) In any of the following de-

scrihed cases, the court may award

costs, including the costs of inves-

tigation and discovery, and reason-

able attorneys’ fees, which are not

compensated for pursuant to some

other provision of law, to the pre-

vailing party;

(a) In any case in which a

governmental agency seeks to enjoin

the sale, distribution, or public

exhibition, for commercial consid-

eration, of obscene matter, as de-

fined in Section 311 of the Penal

Code.

on Bue

Judge Owens based his adverse ruling re-

garding the City's right to restitution

for its costs of abatement on the fact

that the City Council's license revocat-

ion, which the City had requested be "con-

firmed", could not be confirmed under

federal law, and the City's defeat on that

federal issue prevented the City from

being the "prevailing party" for purpose

of recovering under Civil Code Section

3496. Judge Owens ruling in that regard

was:

"In case No. 29-91-83 and 31-55-93,

neither side prevailed, for both

sides only partially recovered what

they sought. Plaintiff succeeded

in having enjoined the showing of

many films. This tcok most of the

trial time. Defendants succeeded in

having the prayer for license re-

vocation denied. Which aspect was

more significant would depend upon

one's point of view.”

A copy of the Reporter's Transcript for

July 31, 1986 is attached as Appendix

"Cc" to this Amicus Curiae Brief.

= 2G~

At the present time, the City's fifth

lawsuit, People ex rel. Cooper v. Mitchell

Brothers’ Santa Ana Theater et al., Orange

County Case No. 45-80-37, involving the

City's allegations that the Mitchell Bro-

thers have been exhibiting obscene films

continuously for the past ten years, is

in Dept. 1 awaiting an assignment to a

trial court for a hearing on a preliminary

injunction against 17 programs (35 films).

Also awaiting assignment are preliminary

injunction hearings on the City's sixth

through thirtieth lawsuits (25 weekly

lawsuits, seeking an abatement of one pro-

gram of 3 films, which have been filed for

the 25 weeks subsequent to February 3,

1986) involving 75 films. In these law-

suits, the City is placed upon the horns

of a dilemma in that, if it persists in

its claims that "license revocation" under

Santa Ana Ordinance NS 1325 is constitution-

al as applied to the Mitchell Brothers

~2%s

trial facts, the City may lose its claim

for reimbursement of costs of abatement

under Civil @de Section 3496, as did

occur in the case of Judge Claude D.

Owen's ruling after trial in People ex rel.

Gow v. Mitchell Brothers' Santa Ana The-

ather Case No. 29-91-83 and No. 31-55-93.

This dilemma has jeopardized the City's

ability to continue to fund the public

“nuisance abatement litigation against the

Mitchell Brothers' Santa Ana Theater.

See the two Orange County Register News

Articles dated Sunday, August 17, 1986

which reported on the present situation

in Santa Ana, entitled "After 10 years,

Santa Ana guestions its fight" and "The

Mitchell Brothers From Small-town U.S.A.

to big-time pornography" at Appendix "D".

G. THE PRINCIPLES EXPRESSED BY

THIS COURT IN ARCARA REQUIRE THAT

QUESTIONS 2(a) AND 2(b) OF THE

PADUCAH PETITION BE ANSWERED IN THE

AFFIRMATIVE AS TO PADUCAH PUBLIC

NUISANCE ABATEMENT ORDINANCE

83-6-2388.

=2S—

Amicus Curiae City of Santa Ana con-

tends that Chief Justice Burger's analysis

in Arcara, District Attorney of Erie

County v. Cloud Book, Inc. et al., 475

U.S. __—, ~-(July 7, 1986), when considered

in the light of Santa Ana Public Nuisance

Abatement Ordinance NS 1325 as applied to

the Mitchell Brothers' Santa Ana Theater

trial facts, and its counterpart Paducah

Public Nuisance Abatement Ordinance

83-6-2388, requires that Questions 2(a)

and 2(b) of the City of Paducah Petition

for Writ of Certiorari noted above at

page: 14-15 be answered in the affirmative.

Amicus contends that the Arcara analysis

confirms the common law principle that

the license of a "manufactory of obscene

materials", such as a pornographic theater

or a pornographic bookstore, to operate at

a specific location can be revoked by a

city government on the ground that such

businesses present a health (moral) public

=~ 2¢-

nuisance.

In Arcara, Chief Justice Burger's

analysis held that a legislative body

could mandate closure (limit an equity

judge's discretion) upon proof that a

public nuisance, based upon lewd sexual

conduct in three~-dimension form, was found

to exist, and that:

"First Amendment values may not be

invoked by ae linking the words

"sex' and 'books'." and

"The First Amendment is not implicat-

ed by the enforcement of a public

health regulation of general appli-

cation against the physical premises

in which respondents happen to sell

books." (Our emphasis).

An analogous "precedent" for the

"logic" applied in the Arcara analysis can

be found in the opinion of Chief Justice

Bakes, speaking for a unanimous Idaho

Supreme Court in Idaho ex rel. Kidwell v.

U.S. Marketing, Inc., 102 Idaho. 431, See

the annotation re Idaho ex rel. Kidwell

in 25 ALR 4 at 381-412, entitled

af >

"Validity and Application of Statute

Authorizing Forfeiture of Use or Closure

of Real Property From Which Obscene

Material Has Been Disseminated or Exhi-

bited" and-see in particular, the dis-

cussion on "Prior Restraint" at 25 ALR

4, pages 388-391.

The three-dimensional lewd conduct

which was the basis for the Moral Public

Nuisance and which authorized closure in

Arcara has a significant impact upon the

analysis of the California Supreme Court

in Busch and for the following reasons:

The “obscenity” (two dimensional) public

nuisance analysis in Busch, 17 Cal.3d 42

(June 1, 1976), was decided by a legal

analysis which is predicated upon the

lewdness (three-dimensional) analogy. The

Busch Court first re-affirmed its prior

decision in People v. Lim, 18 Cal.2d 872,

879 (1941) which: had upheld the Court of

Appeal decision in Weis v. Superior Court,

-28-

30 Cal.App. 730 (1916) that an exhibition

known as the "Sultan's Harem", conducted

at the Panama-California International Ex-

hibition, involving the "indecent and of-

fensive" exposition to members of the

public of the "naked persons and private

parts thereof" of various female employees

(in three-dimension), constituted a public

nuisance subject to abatement. People

ex rel. Busch, supra, 17 Cal.3d at 50.

The Court then reasoned by analogy and

held that there was no satisfactory dis-

tinction which would justify a different-

ial distinction of "live" performances on

the one hand (three-dimensionaé') and

"pictorial" representations in film on

‘the other (two-dimensional), and the pre-

sentation of either may fairly be de-

scribed as "indecent" and equally injur-

ious to public morals, People ex rel.

Busch, supra, 17 Cal.3d at 50, 54. Both

are "per se" public nuisances, 47

Cal.Jur.3d 214. See Busch at page 50 and

54 where the Court held:

"While carefully noting that Weis

involved live performances, we dis-

cern no satisfactory distinction

which would justify differential

treatment of the pictorial repre-

sentations in obscene magazines and

films on the one hand, and ‘'live'

performances on the other. The

presentation of either may fairly be

described as ‘indecent' and equally

injurious to public morals..."

"The Court explained that ‘if any

i semblance of civilization is retained

in our country, the states must have

standards of conduct permissible in

. public. There is little difference

in the effect on the public between

lewd conduct in public areas and lewd

conduct explicitly performed on a

motion picture screen for the viewing

of the public...'‘'"

Applying the same analogous reasoning

as was applied in Busch to Arcara, if a

finding of lewd (three-dimensional) sexual

conduct as a course of conduct at a

specific location in Arcara can be made to

"mandate" closure of the premises, then it

also must follow that a finding of a course

= 9G—

of conduct of exhibiting nothing but ob-

scene (two-dimensional) sexual conduct at

a specific locale for ten years can

authorize a judge to "confirm" a legis-

lative ordinance which holds that such a

Place is a public nuisance as to which

the license must be revoked.

-3)]-

H. THE POWER TO ABATE MORAL PUBLIC

NUISANCES, BASED UPON A CONSISTENT

PATTERN OF ILLEGAL ACTIVITY IN THE

FORM OF EITHER "LEWD CONDUCT" OR

"TRADING IN OBSCENITY", 1S AN IN-

HERENT POWER IN GOVERNMENT WHICH MAY

NOT BE QUALIFIED, IF THE PUBLIC

NUISANCE IS FOUND TO EXIST.

Amicus Curiae submits that the

confusion which has caused several’ courts

to error and to subject public nuisance

abatement legislation involving "closure"

to the O'Brien test is the common fail-

ure of most courts generally to proper=-

ly analyze and give recognition to the

basic principle that the power to abate

moral public nuisances itself is an

inherent power in government which may

not be gualified if the moral public

nuisance is determined to exist. If

’ the courts of this nation are to be

equipped to cope with this growing

national problem of moral public nui-

sances, this Court's opinion must

direct the attention of the judiciary

= >

to this fundamental principle. In this

regard, more than a century ago, this

Court pointed out in James Phalen v.

Commonwealth of Virginia, 12 L.Ed. 1030,

1033 (1850):

"The suppression of nuisances

injurious to public health or

morality is among the most impor-

tant duties of government. . . It

is a principle of the common law,

that the king cannot sanction a

nuisance."

Even more anciently, our Anglo-Saxon legal

system has described its own function as:

"the Courts are the guardians cf the

public morals" Rex v. Curl, 2 Strange 789

(1727): Sir Charles Sedley's case /. SID

168.

1. UNDER THE COMMON LAW AND THE

STATUTORY LAW ON "NUISANCES" IN

MOST STATES, THE TERM "PUBLIC

NUISANCE" EMBRACES BOTH THE "MORAL"

PUBLIC NUISANCE, SUCH AS TRADING IN

"LEWD CONDUCT" AND/OR “OBSCENITY”

WHICH IS OFFENSIVE TO THE MORAL

SENSE, AND THE “*PHYSICAL" PUBLIC

NUISANCE WHICH IS OFFENSIVE TO ONE

OF THE 5 PHYSICAL SENSES.

‘

a ik Pe

From the earliest days of Anglo-

Saxon law, a "moral" nuisance has been

abatable as a public nuisance. At common

law, both lewd conduct and trading in

obscenity was regarded as a "moral"

public nuisance. See H.G. Wood, the

Law of Nuisances, section 57, at page

77 and section 65 at page 85:

"57. Indecent exposure of

one's person in public place, a

public nuisance - As has previous-

ly been stated, anything that is

offens:ve to th: morals of society,

or that is indecent, is a public

nuisance. Therefore, any indecent

exposure of one's person in a

public place, in the presence of

several persons, is a public nui-

sance, and indictable and punish-

able as such at common law. It is

a nuisance because it shocks the

moral sensibilities, outrages

decency, and is offensive to those

feelings of chastity that people

of ordinary respectability enter-

WERRi s 6 8

"65. Selling obscene picture

books, etc. Common nuisance - So,

too, all obscene pictures, prints,

books or devices are common nui-

sances, and any person having them

in his or her possession for the

purpose of exhibition or sale may

be indicted therefore at common law,

~=34~

because they are clearly in deroga- |

tion of public morals and common 4

decency. Commonwealth v. Holmes, 17 :

Mass. 336; Commonwealth v. Sharpless

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

632.”

This common law rule as to moral

public nuisances has been codified in most.

states through adoption of the Field Code

in 1872. See, for example, California

Civil Code sections 3479 and 3480.

2. A "MORAL" NUISANCE IS A "PER SE"

PUBLIC NUISANCE. "LEWD CONDUCT" i

AND THE “COMMERCIAL DISTRIBUTION OR :

EXHIBITION OF OBSCENE MATTER" IS A

PER SE PUBLIC NUISANCE (AS A MATTER

OF LAW)-- NO FURTHER PROOF BEYOND

THE FACT OF "LEWD CONDUCT" OR F

"OBSCENITY" IS REQUIRED. THE POWER ;

TO ABATE THE SAME IS INHERENT IN 4

GOVERNMENT, WHICH IS UNDER AN j

OBLIGATION TO REMOVE THE "MORAL" i

NUISANCE. 4

A "per se" public nuisance is

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

as follows: ‘

"Certain activities or con-

ditions are considered nuisances

under all circumstances, and are

therefore termed nuisances ‘per

—35-

se' as distinguished from so -

called nuisances ‘in fact.' Nui-

sances per se are so termed because

no proof is required, beyond the

actual fact of their existence, to

establish that they are nuisances.

No proof of ill effects is neces-

GGSV. « +”

similar question, reversed the trial

court judgment and defined a "nuisance

per se" as a structure or activity which

is a nuisance at all times and under any

circumstances. Proof of the act or the

existence of the structure establishes

the nuisance as a matter of law.

In addressing himself to the public

morals issue and the preeminent power of

local government to control the same,

Woods describes the danger to the en-

vironment as being in the nature of a

"nuisance per se." See "The Law of Nui-

sances” by H. G. Wood, Sections 23 and

~36-

24, at pages 45-46:

"Section 23. Acts affecting

public morals, public nuisances per

se, when. - There are classes or

kinds of businesses which are nui-

sances per se, and the very fact

that they are carried on in a public

place is prima facie sufficient to

establish the offense. But in such

cases, if the respondent questions

that the use of his property in the

manner charged in the indictment

produces the effects set forth there-

in, and introduces evidence to sus-

tain his position, it then becomes

necessary to prove that the effects

are such as are charged. But there

are a class of nuisances arising

from the use of real property and

from one's personal conduct that

are nuisances per se, irrespective

of their results and location,

and the existence of which only

need to be proved in any locality,

whether near to or far removed

from cities, towns, or human habi-

tations, to bring them within the

purview of public nuisances. This

latter class are those intangible

injuries which affect the morality

of mankind, and are in derogation

of public morals and public decency.”

“Section 24. Wrongs malum in se. -

The class of nuisances are of that

aggravated class of wrongs that,

being malum in se, the courts need

no proof of their bad results and

require none. The experience of

all mankind condemns any occupation

that tampers with the public morals,

tends to idleness and the promoition

of evil manners, and anything that

=39—

produces that result finds no en-

couragement from the law, but is

universally regarded and condemned

by it as a public nuisance."

(Our emphasis.)

The municipal power to protect the

environment is inherent in government

itself and is so basic that its grant of

authority is said to be "implied," and

to flow from the Common Law rather than

from "express" provisions in the City's

Charter or the General Laws of the State.

See "The Law of Nuisances," Wood, Sec-

tion 743, at page 972.

"Section 743. No control

over nuisances without special

power. - Therefore, a municipal

corporation has no control over

nuisances existing within its

corporate limits except such as

is conferred upon it by its charter

or by general law. There can be

no guestion, however, but that

where a nulsance exists within its

corporate limits that is clearly

a nuisance at common iaw or by

statute, which is detrimental to

the health of the inhabitants, it

may be abated by the authorities,

but it must be a nuisance at common

law and one which any person injured

thereby might lawfully abate of his

own motion, or in the absence of

express or implied authority given,

- 39.

the removal or abatement of the

nuisance would be unlawful. Where

the thing abated is clearly a nui-

sance, and one which affects the

health of the city, the abatement

may be made by the authorities or

by any persons injured thereby.

The common law in such a case comes

in aid of the authorities and they

are justified in the act, not

because they are officials of the

city, but because they are citi-

zens injured by the thing abated.”

(Our emphasis.)

Joyce, in his treatise "Law of Nuisance,”

Section 345, notes that this common law

power entrusts the municipal corporation

with not only the right but the obliga-

tion to remove the nuisance; at page

498:

"The rule is declared to be

settled, without dissent, that,

without a special grant of author-

ity, public corporations may, as a

common law power, cause the abate-

ment of nuisances, and if the nui-

sance cannot otherwise be abated,

may destroy the thing which consti-

tutes it. And it is said that a

municipal corporation has not only

the right, but is also under the

obligation, to remove nuisances which

may endanger the health of its

citizens; that it has the power to

decide in what manner this shall be

done; and that its decision is

—-39-

concluSive unless it transcends the

power conferred by the charter or

violates the constitution."

3. MUGLER V. KANSAS, 123 U.S. 205,

AUTHORIZES "CLOSURE" OF MORAL "PER

SE" PUBLIC NUISANCES.

This Court has previously stated

that "The suppression of nuisances

injurious to public health or morality

is among the. most important duties of

government. .. . See James Phalen

v. The Commonwealth of Virginia, supra,

and that the jurisdiction of the Equity

Court to deal with the same is "salu-

tary." Mugler v. Kansas, 123 U.S. 205

(Dec. 5, 1887). In Mugler, supra, this

Court specifically held that Equity

Courts do have the power to enter sum-

mary interlocutory abatement "closure"

orders in proper cases. There, a

petition had been filed in the Kansas

State Court under the thirteenth sec-

.tion of a statute asking (1) that a

-~40-

group of buildings,. constituting the

brewery of the defendants, be adjudged

a common nuisance, and the sheriff

directed to shut up and abate the same,

and (2) that the defendants be enjoined

from using the premises. The petition

was thereafter removed to the federal

court and dismissed on the grounds that

the "closure" remedy violated due

process. On appeal, the U.S. Supreme

Court reversed, holding at page 214:

"Equally untenable is the prop-

osition that proceedings in equity

for the purposes indicated in the

thirteenth section of the statute

are inconsistent with due process

of law. ‘In regard to public

nuisances,' Mr. Justice Story says,

‘the jurisdiction of courts of equity

seems to be of a very ancient date,

and has been distinctly traced back

to the reign of Queen Elizabeth. The

jurisdiction is applicable not only

to public nuisances, strictly so

called, but also to purprestures upon

public richts and property. .. In 4

case of public nuisances, properly

so called, an indictment lies to

abate them, and to punish the offen-

ders. But an information also lies

in equity to redress the grievance

by way of injunction.' 2 Story, eq.

Section 921, 922. The ground of this

RMSE PCR ah hk Neh PRS on

-4)-—

jurisdiction in cases of purpresture,

as well as of public nuisances, is

the ability of courts of equity to

give a more speedy, effectual, and

permanent remedy than can be had at

law. They cannot only prevent nui-

gances that are threatened and before

irreparable mischief ensues, but

arrest or abate those in progress, and,

by perpetual injunction, protect the

public against them in the future;

whereas, courts of law can only reach

existing nuisances, leaving future

acts to be the subject of new prosecu-

tions or proceedings. This is a salu-

tary jurisdiction, especially where a

nuisance affects the health, morals

or safety of the community. Though not

freguently exercised, the power undoubt-

edly exists in courts of equity

thus to protect the public against

injury."

4. THE CLAIM THAT THE "CLOSURE" WHICH

WAS AUTHORIZED IN MUGLER V. KANSAS

CANNOT BE APPLIED TO A COMMERCIAL

BUSINESS WHICH HAS BEEN TRAFFICKING

CONTINUOUSLY IN LEWD CONDUCT OR

OBSCENITY IS A "MYTH".

The claim that the "closure" auth-

orized in Mugler v. Kansas cannot be

applied to a commercial business which

is trafficking in lewd conduct or

obscenity has been perpetuated by the

general reluctance of this Court to de-

-42- :

cide any issue in the abstract. This

Court's refusal to act on the absttact

issue has keen full blown into a myth

that has no basis in case law. See, for

example, the dissent of Associate Jus-

tice White on denial of Petition for

Writ of Certiorari in Avenue Book

Store v. City of Tallmage, Ohio, 459

U.S. 997.

In Art Theater Guild, Inc. v. Ohio

ex rel. Ewing, supra, this Court "dis-

missed for want of a substantial federal

question" an appeal from the Ohio Supreme

Court's decision in Ohio ex rel. Ewing v.

San iat Wa Ve hp Send a A oA BI NT NN Sw EE LO aS

"Without A Stitch," 307 N.E.2d 9ll. A

review of the Ohio Supreme Court decision

at pages 917-918, clearly shows that an

order closing a theater which exhibited

a single obscene motion picture fiim for

a substantial period of time is consti-

tutionally valid, at least where a good

faith owner could obtain a release by (a)

-43-

appearing in court, (b) filing a bond

in the full value of the property, and

would prevent the nuisance from being

reestablished (where the "nuisance" is

regarded as being the exhibition of the

particular film declared to be obscene).

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

592, 43 L.Ed.2d 482, 95 &.Ct. 1200,

this Court again had occasion to refer

to the "closure" provision of the Ohio

Statute. There, the Court noted at

page 497, that the narrowing construc-

tion of the Ohio Supreme Court in Ohio

ex rel. Ewing v. A Motion Picture Film

Entitled "Without A Stitch," supra,

avoided the constitutional difficulty

which concerned the federal trial court

in the Huffman case, and, that the case

did not fit "within the exception for

Statutes which are flagrantly and

patently violative of express consti-

-—AA~-

tutional prohibitions.'" See also Huff-

man v. Pursue Ltd., supra, footnote 23

at 420 U.S. 612, which comments

favorably upon the "closure" provision

of the Ohio Red Light Abatement Statute,

Ohio Rev. Code Section 3767.04 and Sec-

tion 3767.06.

The conclusion that, under no circum-

stances, may a "padlock" penalty be issued

Goes not follow from either of the above

decisions. Because this Court has said

that an activity is “presumptively pro-

tected" does not, in logic, require a

conclusion that the presumption is con-

clusive! The fallacy of applying such

a rule to businesses which continuously

exhibit lewd "conduct" is logically dem-

onstrated in the lengthy and compre- -:

hensive opinion of Associate Justice

Burke, which Amicus Curiae reccunendn

to the members of this Court as a clas-

Sical statement in this area of the law, ;

-45-

speaking for the majority of the New

York Court of Appeals in Trans-Lux

Dist. Corp. v. Bd. of Regents, 248 N.Y.S.

2a 857 (Mar. 26, 1964). See, for example,

at page 860:

"If we can accept the obvious

-- that sexual intercourse whether

pexformed in the park or simulated

on the stage or screen is in itself

a form of conduct (in which the

public have an interest), it is

apparent that when this defendant

chooses to use it as a vehicle for

the expression of art it has 'bri-

gaded' the communication (to the

extent that it is ‘communication’ )

with conduct completely. In so

doing the petitioner has subjected

itself to such regulations as are

appropriate to the conduct when

engaged in for reasons having

nothing to do with expression.

There is otherwise no difference

between advocacy and action.

(Compare Thornhill v. Alabama, 310

U.S. 38, 60 &5.Ct. 736, 84 L.Ed.

1093, with Local Union No. 10,

etc., Plumbers Union v. Graham,

Sao Uc BPae f3 Sct SED, 37

L.Ed. 946). ‘Freedom of expres-

sion can be suppressed if, and to

the extent that, it is so closely

brigaded with illegal action as to

be an inseparable part of it.'

(Douglas, J., dissenting in Roth

v. United States, 354 U.S. ‘476, 514,

77 S.Ct. 1304, 1324, 1 L.Ed.2d 1498)."

CONCLUSION

For the foregoing reasons, the City

of Paducah et al's. Petition for Writ of

Certiorari to the United States Court of

Appeals for the Sixty Circuit should be

granted as prayed for in the Petition.

DATED: August 26, 1986

Respectfully submitted,

EDWARD COOPER,

Santa Ana City Attorney

JAMES J. CLANCY,

Counsel of Record for

Amicus Curiae

CERTIFICATE OF SERVICE

I, hereby certify that on this 26th

day of August, 1986, the original and 40

copies of the within Amicus Curiae Brief

of the City of Santa Ana, California,

were deposited in the United States Post

Office in Sun Valley, California with

first-class postage prepaid, and properly

addressed to the Clerk of the United

States Supreme Court.

I further certify that three (3)

ropies were also mailed, postage prepaid,

to the below listed parties to the pro-

ceedings and that ali parties required to

be served have been served.

Mr. James W. Utter

Post Office Box 2267

Paducah, KY 42002-2267

502-444-8506

(Attorney for Petitioners)

Mr. Joseph S. Freeland

Freeland, Granville and Megibous

910 Citizens Bank Bldg.

Paducah, KY 42001

(Attorney for Respondents)

EDWARD COOPER

Santa Ana City Attorney

JAMES J. CLANCY

Counsel for Amicus Curiae

City of Santa Ana

OO EEE —

APPENDIX "A"

COMPARISON OF SANTA ANA PUBLIC

NUISANCE ORDINANCE NS 1325 (INVOLVED

IN SANTA ANA, CALIFORNIA PUBLIC

NUISANCE LITIGATION) AND PADUCAH

PUBLIC NUISANCE ORDINANCE 83-6-2388,

SHOWING THE SANTA ANA AND PADUCAH

ORDINANCES TO BE .IDENTICAL.

(Reference: Amicus Curiae Brief of

the City of Santa Ana, California in

Support of Petitioners, at page 3,

line 18.)

COMPARISON OF -

SANTA ANA MUNICIPAL CODE: .

Section 12-102. LEWD FILMS AND

THEATRES EXHIBITING THE SAME DECLARED A

PUBLIC NUISANCE; ABATEMENT THEREOF.

(A) Any and every piace in the City

of Santa Ana where:

(1) lewd fiims are publicly

exhibited as a regular course of business,

Or possessed for the purposes of such ex-

hibition; or

(2) a lewd film is publicly

and repeatedly exhibited, or possessed

for the purpose of such exhibition, is a

public nuisance.

(B) Any and every lewd film which is

publiciy exhibited or possessed for such

purpose at a place which is a public

nuisance under this section, is a public

nuisance per se.

AND PADUCAH ORDINANCE 83-6-2388

Section 19-152. OBSCENE FILMS

AND THEATERS EXHIBITING THE SAME DECLARED

A PUBLIC NUISANCE PER SE; ADMISSION PRICE

RECEIVED AFTER SERVICE OF RESOLUTION TO BE

REGARDED AS A PUBLIC NUISANCE PER ACCIDENS.

The following are declared to be

public nuisances per se:

(A) Any and every place in the

City of Paducah where obscene films are

publicly exhibited as a regular course of

buisness, 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 exhibited, or

4 possessed for the purpose of such exhibi-

: tion; and

which is publicly exhibited or possessed

for such purpose at a place which is a

Public nuisance under this section.

COMPARISON OF -

SANTA ANA MUNICIPAL CODE: .. .

Section 12-104. ACTION TO BE TAKEN

BY CITY COUNCIL.

Upon a specific finding that a public

nuisance, as defined in Section 12-102

hereof, exists in the City of Santa Ana,

the City Council, in applying the pro-

visions of this ordinance to such nuisance,

shall provide for the, following by Re-

solution:

(A) peclare the fact that such nuis-

ance exists;

(B) Set forth the description or

legal description and street address of

the real property which constitutes the

nuisance;

upon which the City Council declaration

of nuisance is based;

(D) Order the revocation of all

licenses and permits which have been

PEP ee le ne ee ee ek ee AY ee ee

pinnae

ee ee —e pike

Pee en ee

ES EE

AND PADUCAH ORDINANCE 83-6-2388

Section 19-155. ACTION TO BE TAKEN

BY BOARD OF COMMISSIONERS.

Upon a specific finding that a public

nuisance, as defined in Section 19-152 or

Section 19-153 of the Code of Ordinances

of the City of Paducah, exists in the City

of Paducah, the Board of Commissioners, in

applying the provisions of this ordinance

to such nuisance, shail provide for the

following by resolution:

(A) Declare the fact that such

nuisance exists;

(B) Set forth the description or

legal description and street address of

the real property which constitutes the

nuisance;

upon which the Board of Commiss_oners'

declaration of nuisance is based;

(D) Order the revocation of all

licenses and permits which have been

COMPARISON OF -

SANTA ANA MUNICIPAL CODE: . .

issued as a part of the operation of such

business, subject to confirmation by the

Court in the judicial proceedings required

herein. Criminal proceedings for trans-

acting business without a license at such

address shall not be filed until the order

of license revocation by the City Council

has been confirmed by judicial order.

Section 12-105. ACi.ON TO BE TAKEN

BY CITY ATTORNEY.

Upon a specific finding by Resolution

of the City Council of the fact that a

public nuisance exists at a particular

location, the City Attorney shall:

(A) Forthwith, but not later than

five working days after passage of said

Resolution, commence legal proceedings

under Civil Code Sections 3491 and 3494

ana Code of Civil Procedure Section 73l,

‘

. |

8K eT PAG te ah)

(

)

. »« » AND PADUCAH ORDINANCE 83-6-2388

issed as a part of the opera SucrT

business, subject to confirmation by the

court in the judicial proceedings required

herein. Criminal proceedings for trans-

acting 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.

Section 19-156. ACTION TO BE TAKEN

BY DISTRICT ATTORNEY.

Upon a specific finding by resolution

of the Board of Commissioners of the fact

that a public nuisance exists at a par-

ticular location, the Corporation Counsel

shall:

(A) Forthwith, but not later than

five (5) working days after passage of

said resolution, commence legal

{

A-8

COMPARISON OF -

SANTA ANA MUNICIPAL CODE: . .

by the filing of a civil action seeking

the following relief:

(1) An Order that the motion

picture or pictures named by the City

Council are lewd, as defined herein;

(2) An Order that the place

named by the City Council where the film

or films are befiig exhibited is a public

nuisance and that the action taken by the

City Council to revoke the licenses

issued to that place of business was law-

ful.

- » »« AND PADUCAH ORDINANCE 83-6-2388

proceedings by the filing of a civil

action seeking the following relief:

(1) an order that the subject

matter identified by the Board of Com-

missioners in said resolution is obscene

as defined herein;

(2) an order that each piace

named by the iad of Commissioners 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.

APPENDIX "B"

DECLARATION OF JAMES J. CLANCY FILED

ON MARCH 25, 1986 IN CASE NO. 48-49-38,

SETTING FORTH THE MATTERS OF RECORD

IN THE TEN YEARS OF PUBLIC NUISANCE

ABATEMENT LITIGATION BETWEEN THE

CITY OF SANTA ANA AND THE MITCHELL

BROTHERS* SANTA ANA THEATRE.

(Reference: Amicus Curiae Brief of

the City of Santa Ana, California in

Support of Petitioners, at page 12,

line 10.

JAMES J. CLANCY

Attorney at Law

9055 La Tuna Canyon Road

Sun Valley, California 91352

FILED

(818) 352-2069 MAR. 25, 1986

GARY L. GRANVILLE, County

Attorney for Plaintiff Clerk

By Deputy

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF ORANGE

PEOPLE OF THE STATE OF ) NO. 48-49-38

CALIFORNIA ex rel. EDWARD) DECLARATION OF

COOPER, CITY ATTORNEY FOR) JAMES J. CLANCY

THE CITY OF SANTA ANA, ) AS TO MATTERS

CALIFORNIA, ) OF RECORD IN

. : ) OTHER CASES ON

Plaintiff,) FILE IN THIS

) COURT, IN SUP-

V. ) PORT OF PLAIN-

) TIFF'S MOTION

MITCHELL BROTHERS’ SANTA ) FOR A PRELIM-

ANA THEATRE located at ) INARY INJUNC-

1565 West 17th Street, ) TION

Santa Ana, County of )

Orange, California; ) DATE: April 29,

CINEMA 7, INC., a Cali- ) 1986

fornia corporation, M.B.-) TIME: 9:30 a.m.

F.G. THEATRE CIRCUIT, )

INC.; and DOES 1 through ) DEPT: 21

5, inclusive, )

)

Defendants.)

)

on —O

DECLARATION OF JAMES J. CLANCY IN SUPPORT |

OF MOTION FOR A PRELIMINARY INJUNCTION

I, JAMES J. CLANCY, declare:

As I am the attorney for the Plain-

tiff in the above-entitled action. I make

this declaration in support of Plaintiff's

Motion For a Preliminary Injunction, on

file herein.

ae On November 27, 1976, People of

the State of California ex rel. Gow, City

Attorney of the City of Santa Ana, Califor-

nia v. Mitchell Brothers' Santa Ana Theater,

et al., Civil Actwzan No. 25-65-30 was

filed in the Orange County Superior Court,

alleging among other things that the real

estate known as the Mitchell Brothers'

Santa Ana Theater at 1565 West 17th Street

was a public nuisance under Santa Ana

Ordinance No. N.S. 1325, as amended by

Ordinance No. N.S. 1452, in that the

theater exhibited obscene motion pictures

as a continuing course of conduct.

B-3

Although Plaintiff, in that case, alleged

the manner of operating the theater in-

velved a continuing public nuisance and

that all of the films being exhibited were

obscene, the trial court ruled that, for

procedural purposes of trial, a cut off

date would be established. (See Report-

er's Transcript for January 12, 1977 at

pages. 65-67, line 6 and Reporter's Trans-

cript for January 28, 1977, at page 5,

lines 1-8).

Je Thereafter, and for the ame

procedural reasons, three additional com-

plaints were filed to litigate the obscen-

ity of other films being shown at the

Mitchell Brothers‘ Santa Ana Theater,

known as No. 28-12-14, No. 29-91-83 and

No. 31-55-93, as follows:

CASE NO. AND DATE FILED PERIOD COVERED

FILMS INVOLVED

25-65-30 11/02/76 9/3/75-4/12/77

25 programs

(41 films)

28-12-14 12/20/77 4/13/77-7/15/78

12 programs

(24 films)

29-91-83 10/03/78 7/16/78-10/26/78

13 programs

(26 films)

31-55-93 06/21/79 11/6/78-8/21/79

26 programs

(46 films)

total: 137 films

4. In all of the above lawsuits,

Plaintiff has steadfastly contended and

does now presently contend herein that

Plaintiff has stated one cause of action

for a continuing public nuisance. See

Baker et al. v. Burbank-Glendale-Pasadena

Airport, 39 Cal.3d 862, 218 Cal.Rptr. 293

(Sept. 23, 1985)

5. The titles of the 41 films in

Case No. 25-65-30 are listed in the Com-

plaint in Case No. 45-80-37 at pages 1-2

<< a

of Exhibit 3 (Surveillance Code No. 1-24).

On January 12, 1977, Orange County Superior

Court Judge Jerroid S. Oliver granted

Plaintiff's motion to consolidate the final

injunction and the preliminary injunction,

which obviated the need for a separate

hearing on the preliminary injunction.

(See the Reporter's Transcript for January

12, 1977, referred to above, at page 7l,

lines 16-23). A judgment in No. 25-65-30

was filed by Judge Weeks on June 6, 1978

and chisebafter, the trial court's findings

in No. 25-65-30 that 11 films were obscene

beyond a reasonable doubt were affirmed

upon appeal. People of the State of Cali-

fornia ex rel. Edward Cooper v. Mitchell

Brothers' Santa Ana Theater et al., 128

Cal.App.3d 937, 940 180 Cal.Rptr. 728, 730

(1982).

6. Four appellate opinions have been

filed in Case No. 25-65-30 as follows:

People ex rel. Gow v. Mitchell Brothers'

B-6

et al., 114 Cal.App.3d 923, 171 Cal.Rptr.

85 (Jan. 20, 1981); reversed in California

ex rel. Edward Cooper v. Mitchell Brothers’ |

Santa Ana Theater, et al., 454 U.S. 90, 70 |

L.Ed.2d 262 (Nov. 30, 1981); People ex rel.

Edward Cooper v. Mitchell Brothers' Santa

Ana Theater et al., 128 Cal.App.3d 937,

180 Cal.Rptr. 728 (Feb. 18, 1982). (decision

on remand) and People ex rel. Cooper v.

Mitchell Brothers’ Santa Ana Theater, 165

Cal.App.3d 278, 211 Cal.Rptr. 501 (Mar. 7, ~

1985) (decision on attorney's fees on )

appeal). |

qe Case No. 28-12-14 was filed on

December 20, 1977, after the jury returned

its verdicts in Case No. 25-65-30 that ll

films were obscene under California law.

The titles of the 24 films in Case No.

28-12-14 are listed in the Complaint in

Case No. 45-80-37 at pages 2-3 (Surveil-

lance Code No. 25 through 36). No motion

for preliminary injunction was made in

——————

B-7

Case No. 28-12-14. Subsequently, Case No.

28-12-14 was consolidated for trial with

Case No. 29-92-83.

8. The titles of the 26 films in

Case No. 29-92-83 are listed in the Com-

plaint in Case No. 45-80-37 at page 4 of

Exhibit 3 (Surveillance Code No. 1-78

through 13-78). on November 2, 1978,

Orange County Superior Court Judge Richard

D. Hamilton granted a preliminary injunc-

tion against exhibiting the 26 films after

a four-day hearing. The preliminary in-

junction was affirmed in People of the State

of California ex rel. Gow v. Mitchell

Brothers' Santa Ana Theater, et al., 101

Cal.App.3d 296, 161 Cal.Rptr. 562 (Jan. 22,

1980, hearing denied May 7, 1980).

9. The titles of the 46 films in

Case No. 31-55-93 are listed in the Com-

plaint in Case No. 45-80-37 at page 5

(Surveillance Code No. 14-78 through 23-78)

at page 7 (Surveillance Code No. 13-79

through 16-79) and at pages 7-8 (Surveil-

lance Code No. 22-79 through 30-79). On

January 24, 1980 after a 9-day hearing,

Orange County Superior Court Judge Lester

Van Tatenhove granted a preliminary injunc-

tion against exhibiting 46 films and 8

previews. The preliminary injunction was

affirmed in People of the State of Cali-

fornia ex rel. Gow v. Mitchell Brothers'

Santa Ana Theater, et al., 118 Cal.App.3d

863, 173 Cal.Rptr. 476 (Apr. 16, 1981).

10. The above lawsuits were filed

at the direction of the City Council,

which acted by formal resolution after

considering evidence in the form of the

following time and motion studies and con-

tinuities which had been prepared from

surveillances of films exhibited at the

Mitchell Brothers' Santa Ana Theater:

ae, SPB Att Sa Ee

CASE NO. AND DATE OF

FILMS CONSIDERED RESOLUTION NO. ACTION

25-65-30 76-134 10/26/76

13 programs

(25 films)

Time-motion studies

28-12-14 77-144 12/12/77

12 programs

(24 films)

Time-motion studies

29-91-83 78-131 10/02/78

6 programs

(12 fiims)

Time-motion studies/continuities

31-55-93 79-98 06/18/79

14 programs

(28 films)

Time-motion studies/continuities plus

judicial decisions in 2 State Courts and

1 Federal Court proceedings

:3 on In the first three of the above

four cases, the City Council acted upon

photographic evidence in the form of time

and motion studies of the films which had

been exhibited to the date of the City

Council's action. In the last case (Case

No. 31-55-93), the City Council in Resolu-

tion 79-98 also had before it the Findings

of Fact and Conclusions of Law in Case No.

25-65-30 that 11 films were obscene, the

preliminary injunction of Orange County

Superior Court Judge Richard D. Hamilton

that the 26 films in Case No. 29-91-83

were obscene, and the verdict of the fed-

eral jury in the copyright case that five

fiims ("Behind the Green Door’, "Resur-

rection of Eve", "Inside Marilyn Chambers",

“Autobiography of a Flea" and “Sodom and

Gomorrah") which the Mitchell Brothers had

produced, directed, distributed and exhi-

bited at the Theater were obscene under

federal law.

i2. On Monday, May 6, 1985, the Santa

Ana Council adopted Resolution No. 85-58

and ordered the City Attorney to take

further legal action to enjoin and abate

the motion picture films being exhibited

at the Mitchell Brothers' Santa Ana Theatre

from the date of its opening in 1975 in-

cluding the films which were then being

exhibited on the date Resolution No. 85-58

was adopted. Pursuant to that directive,

People of the State of California ex rel.

i ena a, el Ra artis Ib ic

)

B-ii

Edward Cooper, City Attorney for the City

of Santa Ana, California; City of Santa Ana,

a Municipal corporation, Plaintiffs v.

Mitchell Brothers’ Santa Ana Theatre, et al.,

No. 45-80-47, was filed on May 9, 1985.

L3« The City Attorney now brings this

motion for a preliminary injunction as to

the motion picture films which are present-

ly being exhibited at said theater during

the weeks subsequent to February 3, 1986.

Subpoenaed 35MM prints, used in the projec-

tion of such motion picture films, will be

offered in evidence for the Court's viewing

at the hearing on Plaintiff's Motion fora

Preliminary Injunction. -Video tape copies

of such films will also be offered as

secondary evidence.

14. I further say that f have been

the attorney of record in the above-described

lawsuits and have been in overall charge of

the weekly surveillances at the Mitchell

Brothers’ Theatre since the filing of the

B-12 .

first lawsuit on November 27, 1976. The i

content and character of the three features

shown at this location during the past 10

years is the same. In particular , the

content and character of the motion picture

films shown on March 19, 1986, is the same

as the motion picture films which were sur-

veilled at the same location and autopti-

cally recorded on previous occasions, and

Subsequently judged to be obscene under

California law at two preliminary injunction |

hearings before Onange County Superior

Court Judge Richard Hamilton and Lester Van

Tatenhove in Case Nos. 29-91-83 and

31-55-93, and at four Court trials before

-Orange County Superior Court Judge Marvin

Weeks in Case No. 25-65-30 (eleven [11]

motion picture films judged obscene), and

before Orange County Superior Court Judge

Claude M. Owens in Case No. 29-91-83 (six

{6] motion picture films judged obscene)

and in Case No. 31-55-93 (thirty-four [34]

motion picture films and eight [8] previews

Rede a nd CoN eter aw

PaO Re te Wad RECS ORG ales Red att, BR: ok wae

B-13

judged obscene). The films and previews

which were judged to be obscene in the

three court trials to date are:

Case No. 25-65-30

(1) Sodom and Gomorrah

(2) Behind the Green Door

(3) Inside Marilyn Chambers

(4) Autobiography of a Flea

(5) Sensations

(6) Teenage Fantasies

(7) Teenage Cruisers

(8) French Classmates

(9) Love in Strange Places

(10) Story of Joanna

(11) Hungry Mouth

Case No. 29-91-83

(1) Teenage Pajama Party

(2) Breaker Beauties

(3) A Formal Faucett

(4) Kinky Tricks

(5) Deep Throat

(6) Devil in Miss Jones

Case No. 31-55-93

(1) The Last Fox Trot In Burbank

(2) Reflections

(3) Lollipop Palace’

(4) A Taste of Sugar

(5) The Erotic Adventures of Candy

(6) Moonshine Girls

(7) Slippery When Wet

(8) French Shampoo

(9) Honey Cup

(10) Anita, The Swedish Nymphet

(11) Candy Stripers

(12) My Wife The Hooker

(13) Confessions of Linda Lovelace

B-14

(14) Visions

(15) Once Over Nightly

(16) Salon D'Amour

(17) Hot Cookies

(18) Mash'D

(19) Barbie's Fantasy

(20) C.B. Mamas

(21) Resurrection of Eve

(22) Dear Pam ‘

(23) Slave of Pleasure

(24) It Happened in Hollywood

(25) Prisoner of Love

(26) Abduction of Lorelei

(27) Made in France

(28) Born Erect

(29) Another Love-Another Place

(30) Unwilling Lovers

(31) Come With Me My Love

(32) Souperman

(33) Teen Pony Girls

(34) One Of A Kind

Eight Previews:

(1) Candy Goes to Holiywood

(2). Hungry Young Women

(3) Candy Stripers

(4) A Taste Of Sugar

(5) Visions

(6) French Shampoo

(7) Blonde Velvet

(8) The Erotic Adventures of Candy

In no case, in either the two injunction

hearings or the four trials to date, is

there a judgment of a triaicourt that any

one of the films which have played at the

Mitchell Brothers' Theatre is not obscene.

All of the judgments, to date, have been

B-15

that the films viewed by the Court and tried

on the merits are obscene.

RE THE DEFENDANTS' OBJECTION

TO THE INTRODUCTION OF EVI-

DENCE OF “OBSCENITY" UNDER

THE “BEST EVIDENCE" RULE AND

THE TIME AND MOTION STUDY AS

SECONDARY EVIDENCE ISSUE

iS At the trial, after lengthy argu-

ments, Judge Weexs admitted the time and

motion studies in Case No. 25-65-30 as

secondary evidence and granted a stay of

the trial to permit the Mitchell Brothers

to test that ruling in the Court of Appeal

by prerogative writ in Mitchell, et al. v.

Superior Court, 4 Civ. 19503. After the

Court of Appeal denied the writ on October

28, 1977, and a Petition for Hearing was

denied by the California Supreme Court on

November 2, 1977, the defendants voluntarily

produced 17 of the films in evidence and

then refused to bring in the rest. Judge

Weeks then reversed his ruling and excluded

Plaintiff's "secondary evidence" as “preju-

dicial.*

B-16

16. In Case No. 31-55-93, Judge Van

Tatenhove admitted the time and motion

studies as secondary eviliedas at the hear-

ing on the preliminary injunction. At the

trial, however, Judge Owens excluded the

time and motion studies as secondary evi-

dence, but admitted the same as foundational

evidence to authenticate the videotape

cassettes, which had been purchased upon

the _— market, as "copies" of the films

which had been exhibited at the Mitchell

Brothers’ Santa Ana Theatre.

THE TRIAL OCF CASE NOS.

28-12-14, 29-91-83 AND

xp a ae

iL? The trial of Case Nos. 28-12-14

and 29-91-83 was held in Department 17

(Judge Owens) on June 2, 3, 8, 15, 17, 18,

22, 23, 25, 29, 30 and July 1, 1981. The

Mitchell Brothers moved for a nonsuit pur-

Suant to Civil Code, Sections 581 and 631.8

as to Case No. 28-12-14 and as to all of

the films in Case No. 29-91-83, except the

B-17

six which were viewed by the Court. The

Court granted the nonsuit as to Case No.

28-12-84 on the ground that since no evi-

dence of the motion picture films or secon-

dary evidence had been received, there was

no evidence of obscenity and, without such

evidence, the Court could not make an ad-

judication. The Court denied the motion

for nonsuit as to Case No. 29-91-83.

18. On July 31, 1981, Judge Owens

*/ In adopting Resolution No. 78-131, which autho-

rized Case No. 29-91-83, the City Council considered

and acted upon time and motion studies of 6 programs

(12 films and assorted previews). Thereafter, Judge

Hamilton considered 13 programs (26 films and as-

sorted previews) which included 8 films which were

subpoenaed after the preliminary injunction hearing

had been set ("Teenage Pajama Party," "Breaker

Beauties," "Kinky Tricks,” "A Formal Faucett,”"

"Roller Babies," "Summer of Laura," "Deep Throat,"

"Devil in Miss Jones") and 18 time and motion

studies which had been prepared from films exhibit-

ed before such hearing date). At the hearing on

the preliminary injunction, the Parties stipulated

that there was no substantial difference between the

8 films in the four programs which were viewed by

Judge Hamilton and the 18 films in the other nine

programs. Judge Owens, however, refused to take

judicial notice of the stipulation nor would he

view the two films "Roller Babies” or "Summer of

Laura," which had been the subjects of one of the

controversies in the appeal of Case No. 25-65-30.

filed his "Memorandum of Intended Decision"

in Case Nos.

that decision,

28-12-14 and 29-91-83. In

he ruled as follows:

(1) The six films which were viewed

by the Court were obscene beyond

a reasonable doubt. The films

were hard-core pornography.

(2) Because the advertising and pub-

lic exhibition of the films con-

stituted a public nuisance, the

City was entitled to an injunc-

tion.

(3) License revocation was denied

because:

(a)

(b)

(c)

None of the films upon which

Resolution 78-131 was based

were received in evidence.

There could be no judicial

determination. Without such

determination the purported

revocation could not stand.

The resolution applied the

wrong standard. Because the

wrong standard was applied,

the City had not made a

valid finding to support a

license revocation.

Even if the resolution were

valid, the purported license

revocation constituted a

prior restraint.

(4) There was no difference between

judicial restraint and legis-

lative restraint.

B-i5

(5) The Court noted but would not

follow Associate Justice Burke's

dissent at footnote 4 in Perrine

v. Municipal Court, 5 C.3d 656,

668.

(6) Plaintiff was entitled to costs.

L3. The trial of Case No. 31-55-93

was held in Department 17 (Judge Owens) on

September 1, 2, 3, 8, 10, 14, 25, £6; 7%

21, 22, 23, 24, 1981, and October 15, 19,

and 20, 1981. The trial facts in Case No.

31-55-93 differed substantially from the

trial facts in Case Nos. 28-12-14 and

29-91-83.

20. In Case No. 28-12-14, no films

were received in evidence and only the time

and motion studies and continuities of 12

programs were before the trial court. In

Case No. 29-91-83, Judge Hamilton viewed 8

films which had been subpoenaed (programs

10-13) subsequent to the action by the City

Council and there had been a stipulation

that the other films (programs 1-9) were

substantially similar to the eight which |

- B-20

had been viewed by Judge Hamilton. In con-

trast, Judge Van Tatenhove received in evi-

dence and viewed, in addition to the time

ahd motion studies and continuities for pro-

grams 1-14 (28 films) which had been before

the City Council, 15 films and & previews

(programs 15-23) which had been subpoenaed

for the hearing on the motion for a prelim-

inary injunction which was set subsequent

to the City Council's action. In granting

the preliminary injunction, Judge Van Taten-

hove ruled the time and mction studies and

continuities for programs 1-14 were admis-

sible in evidence against the Mitchell

Brothers' “best evidence" objection. That

preliminary injunction had been affirmed

upon the appeal which was final. Overrul-

ing a "law of the case" objection, Judge

Owens refused to follow that ruling and

admit the copies, ee the time and

motion studies in evidence to "“authenti-

cate” the videotapes as "copies" upon which

B-21

he thereafter ruled. Judge Owens also

granted the City's request that the Court

take judicial notice of Finding of Fact

#19 in Case No. 25-6-530, Plaintiff's Ex-

hibit 15 (testimony of Dr. Anchell and Dr.

Van den Haag re "harm" to the City).

Gin On October 20, 1981, Judge Owens

announced his "Intended Decision" from the

bench in which he ruled that all of the

films which had been viewed by the Court

either in 35mm or videotape cassette form

were obscene under California law.

22. By an order filed on January 22,

1982, Judge Owens approved a stipulation

between the Parties and granted a stay of

proceedings re settlement of the proposed

findings of fact and conclusions of law in-

Case Nos. 28-12-14 and 29-91-83 (consoli-

dated), and Case No. 31-55-93, pending the

appeal in Case No. 25-65-30. A hearing on

the settlement of proposed findings of fact

and conclusions of law in those cases has

B-22

been set by Plaintiffs for May 6, 1986, at

9:00 a.m. in Department 18.

I declare under penalty of perjury that

the foregoing is true and correct and was

executed on this 25th day of March, 1986,

at Sun Valley, California.

Jam be J. Fy (°

Attorney for Plaintiff

APPENDIX "Cc"

Partial Reporter's Transcript for

July 31, 1986 in People ex rel. Gow,

City Attorney of the City of Santa Ana

v. Mitchell Brothers' Santa Ana Theatre

et al., Nos. 28-12-14, 29-91-83 and

31-55-93, on the issue of "prevailing

party" pursuant to Civil Code Section

3496, before Orange County Superior

Court Judge Claude M. Owens.

(Reference: Amicus Curiae Brief

of the City of Santa Ana, Calif-

ornia in Support of Petitioners

at page 22, iane 22.

Partial Reporter's Transcript

for July 31, 1986 in People ex

rel. Gow, City Attorney of the

City of Santa Ana v. Mitchell

Brothers' Santa Ana Theatre et al.,

before Orange County Superior

Court Judge Claude M. Owens.

Santa Ana, California, Thursday, July 31,

1986; 9:00 a.m.

(Whereupon all parties were then

and there present, the following pro-

ceedings were had, to wit:)

(Partial Transcript.)

The Court: This is the Mithcell

(sic) Brothers case.

(Partial Transcript.)

The Court: Regarding the objections

to the proposed judgment for attorney's

fees and the three cases pending, the

Court rules as follows:

Case number 28-12-14, the Defendants

are encitled to attorney's fees under

Civil Code section 3496 as the prevailing

party.

Under cases 29-91-83 and case 3l-

55-93 neither side is entitled to fees.

Neither side prevailed.

Miss clerk, that will be the extent

of your minute order.

Now, the Court will explain its

reasons, and the reporter will make a

transcript of these remarks and they

will then be filed in the file.

The rulings are based on these

reasons.

Generally, attorney's fees may be

recovered only when agreed to or when

allowed by statute (CCP Section 1021;

Nasser vs. Superior Court, 156 CA3 52,

56; 1 Witkin, Procedure, 3rd Edition,

151). In these cases there is no

agreement for fees.

Of three possible statutes, only

Civil Code 3496 is relevant.

C-3

CC 1717 is not relevant because

these cases are not contract cases --

the prerequisite for that section.

C.c.P. 1021.5 is not relevant he-

cause no significant benefit is con-

ferred on a large class of persons by

the rulings in defendant's favor -- the

prerequisite of subsection (a) of that

section (Woodland Hills Retirement

Association vs. City Council, 23 C3 917,

940; Pacific Legal Foundation vs.

California Coastal Commission, 33 C3 158,

166; See the dissent in Press vs. Lucky

Stores, 34 C3 311, 325, and qualification

at footnote 7, of the majority's

"assumption").

The benefit conferred by the rulings

in defendants' favor was to permit the

moving picture theater to continue to

show obscene films. This is not a

"significant benefit to a large class

of persons."

C.C. Section 3496 does apply.

That section requires that a party

prevail to be entitled to fees.

In case number 28-12-14, defendants

prevailed. The case was dismissed on

motion for nonsuit for lack of evidence

(s2e Palimer vs. Agee, 87 CA3 377).

In cases number 29-91-83, and 3l-

55-93, neither sic . prevailed, for both

sides only partially recovered what they

sought (Nasser, supra, page 58; See Reid

vs. Vailey Restaurant 48 C2 606).

Plaintiff succeeded in having

enjoined the showing of many films. This

took most of the triai-time. Defendants

succeeded in having the prayer for

license revocation denied.

Which aspect was more significant

would depend on one's point of view.

Gentlemen, thank you.

APPENDIX "D"

Orange County Register News articles dated

Sunday, August 17, 1986, reporting on City

of Santa Ana Mitchell Brothers' Santa Ana

Litigation, entitled: "After 10 years,

Santa Ana questions its fight." And "The

Mitchell Brothers: From Smail-Town U.S.A.

to Big-Time Pornography."

(Reference: Amicus Curiae Brief of the

City of Santa Ana, California in Support

of Petitioners, at page 24, line 18 herein).

D-1

The Orange County Register

Sunday, August 17, 1986

After 10 years,

Santa Ana

questions its fight

By Anita Snow

The Register

SANTA ANA — Ten years and

more than $300,000 later, some City

Council members are beginning to

~wonder if they haven't been wast-

ing their time trying to shut down

the X'teted Stehed Brothers The-

ater.-

' “I'm: “ready or us to do some-

thing about scien at 5 ‘City ,Council-

‘woman Patricia McGuigan said.

“I feel we've been spending a lot of

money “on this and 1.don’t think

anything is coming of this.

“I'm beginning to think we're

pouring water down an empty

e oe

Council “members on Monday

will- get a chance to re-evaluate

their earlier support of a plan to

revoke the theater's business li-

During a closed session, the

group is scheduled to discuss an

Orange County Superior Court

judge's ruling earlier this month

that Santa Ana must pay the the-

ater’s legal fees, estimated at $1.2

million, in a 1976 case.

Later that evening, a group of

Santa Ana residents is scheduled to

present council members with a

petition encouraging continuance

of the lega) battle to kick the Mitch-

ell Brothers out of town.

' “We're very concerned about

it,”’ said Gloria Turtenwald, who is

among the residents who live north

of the theater planning to show up

for the Monday night City Council

“‘We think this could be a test

case-and we don’t want them to

give it up,” Turtenwald said.

' Some council members’ con-

cerns that too much money has

been spent and some residents’

fears that the battle may be

dropped stem from an Aug. 6 Or-

ange County Superior Court ruling

in which Santa Ana was declared

the loser.

Judge Robert J. Polis ordered

Santa Ana to pay Mitchell Broth-

‘ers’ legal fees they have incurred

fighting a lawsuit the city filed in

1976 in hopes of closing the theater.

Although Mitchell Brothers’ at-

torneys have estimated that those

fees could run as high as $1.2 mil-

lion, Polis must later approve that

figure.

D-2

"™*Those kinds of dollars just

aren't around,” Ceuncilman Rob-

ert Luxembourger said: **There’s

no point in spending that kind of

money on creating case history.”

| Like McGuigan, Luxembourger

said that ruling has forced him to

begin to rethink his earlier support

of the court battle. Earlier this

year, even before the ruling, Vice

Mayor P. Lee Johnson said he was

concerned too much money and

time had been spent on the case.

» Mayor Dan Griset and Council-

men Wilson Hart and Dan Young

have declined to comment on the

ruling until they have a chance to

discuss it with City Attorney Ed

Cooper.

. Only Councilman John Acosta

thas said he is committed to con-

tinuing the battle against the

‘Mitchell Brothers, regardless of

cost. ‘‘Morality does not have a

price,”’ Acosta said. ‘“We must pro-

tect the moral values of the com-

munity. ”’

- To wage its war, the city con-

tracted with. attorney James

Clancy in 1976. Clancy has said he

would appeal the most recent rul-

ing and is worried the. city may

give up the battle. . -—

' “The Mitchell Brothers’ attor-

neys just made that ($1.2 million

figure) up for the headlines,”

Ciancy said. “‘They are just trying

to scare the city into changing its

mind.”

Santa Ana already has spent

$308,000 during the past decade to

fight Mitchell Brothers, City Attor-

ney Ed Cooper said.

Clancy estimated that about 60

percent of that figure has gone to

pay for ‘‘out-of-pocket expenses,”

such as the purchase and process-

ing of film used by a retired Los

Angeles police officer to take pic-

tures surreptitiously of the the-

ater’s movies to provide evidence

in the 10-year court battle.

* Clancy said he received the rest

to represent the city in court. He

filed five lawsuits against the the-

ater between 1976 and 1985 and has

filed one a week for each new film

shown there since February.

» The city initially paid Clancy $25

an hour in 1976 and is paying him

$50 an hour today, Cooper said.

Council members said that any

decision they make on the Mitchell

Brothers case could be a politically

dangerous one. They worry that

some taxpayers will think they are

spending too much money if they

continue the battle and offend the

moral sensibilities of others if they

decide to throw in the towel.

“It’s a sticky political situation.”

McGuigan said. ‘“You're either for

pornography or you're for wasting

the taxpayers’ money.

*‘Which is worse?”

Despite the political risks, two

men who were on the City Council!

when the battle first started a de-

cade ago think its time the current

council members re-evaluate their

former support of the battle to shut

down the theater. .. _.

. “It's astonishing to me how

they've gone on and on,”’ Vern Ev-

ans said. ‘‘When we first started,

we felt confident that the judges

and courts would be in support of

trying to stop all this nonsense. It

just didn’t work out that way.”’

- Gordon Bricken, who was among

those who marched in protest out-

side the theater in late 1975 and

early 1976, said: “They've been do-

ing it for so long, I don’t think any-

one, including the council, the

courts and everyone else, is sure

why they're even doing it any-

more.

It's time, Bricken said, that the

city give up the battle.

“It has lasted 10 years only be-

cause we've failed to be success-

ful.”

D-3

The Mitchell brothers:

From : small-town U.S.A.

to. big-time pornography

by cmaiy Sonege

fine Fengpter:

' SAN FRANCISCO — Missy Man-

ners blinks her brown eyes atten-

tively, shifting her figure beneath

a clinging, transparent gown, and

strains to answer over the din of an

opening-night celebration of por-

sograpby..

> **{ would not work with anyone

base in the adult film industry be-

sides the Mitchell brothers,” said

the 24-year-old former Senate page

and campaign worker for Presi-

dent Reagan. eS

+ The vosomy right-wingers deci-

tion t bare ali for Jim and Artie

agro itppet <> ene

to the wall.

| While’ the “television cameras

ogied her arrival for the premiere

earlier this month at the Mitchells’

she Degan

nography.

like proud papas.

. It wasn’t just.the publicity. She

was thumbing her nose at the rul

ing class and that has been a popu

lar pastime for the two middle-

aged siblings who are among the

most successful pornographers in

the country.

The Mitchells’ non-conformity

has served them well in their nev-

er-ending task of defending their

Pou en eo

la ts ts

vocation in courtrooms trom itcaa>

to Santa Ana, where their X-rated

theater has been under legal siege

by the City Council since 1975.

In his rimless glasses, the bald-

ing, mustachioed Jim, 42, is the

perennial civil dissenter, who

forged a steely irreverence and

rock-hard resistance to estab-

lished authority during his ‘60s-

protest years at Berkeley. He and

his younger brother by two years,

who shares a similar, if less heady

version of dissidence, are rem-

nants of the flower generation.

.. Perpetual protesters though they

may be,’ Jim and Artie also are an

story. The two

are products of enefil-ecm U.S.A.,

Sao parlayed a $10,000 loan in 1969

into a porn empire that has gener-

ated millions. (They're evasive on

specifics.) The Mitchells regularly

outspend their competitors to

make their movies and they are

unafraid .at at dropping a similarly

sized bundle to stop legally the rip-

off artists and to fight city. halls.

“We've always been in an inde-

pendent mode from the rest of por-

nography,”” Jim said. ‘“‘We don't

think we're any better than anyone

else. But we always cared about

what we were doing.”

Apart from the business, the

Mitchells contribute to a variety of

San Francisco charities, including

Save the Cable Cars. Proceeds f~r

the most recent premier went to a

oe program for victims of

When they’re not on an occasion-

al holiday with their children, they

fish commercially each morning

near the Golden Gate Bridge and

tend to the pornography in the af-

ternoon. Artie’s a Democrat;

Jim's a Libertarian. Both drive a

Mercedes.

They share a strong love for their

children,.10 in all, and they have a

unigue appreciation and close reli-

ance upon one another as brothers.

‘Actually, he’s a good brother.

Took me everywhere. Took good

care of me,” Artie said.

“We're 50-50 partners,”

said.

They don't fit the stereotype of

pornographers. There are no gold

chains and polyester suits. Both

are a compact 5 feet 9 inches and

they are comfortable in denim, cot-

ton pullovers and running shoes.

For the gala event at the O’Farrell

theater, Artie opted for a conserva-

tively cut gray suit, white shirt and

purple tie. Jim stayed casual.

Artie, with his neatly trimmed

beard and deepening crow’s feet, is

more weathered and the freer spiu-

it of the pair.. He starred in their

first porn film (the male lead failed

to show), has shed two wives while

Jim is on his second, and outlasted

his older brother on opening night,

partying to 6 a.m.

“They are’ very fun and they're

very bright,"’ Manners said, sip-

ping champagne from her perch

atop a carpeted dance pedestal in

the theater's garishly decorated

Green Door room.

Jim and Artie plan to market her

schoolgirl exuberance in their lat-

est release, “‘Behind the Green

Door — the Sequel,”’ in every sex-

hungry corner of the land, includ

ing Santa Ana.

‘She doesn't have that gloss),

hard look,”” said Jim of his new

star, who appears in a fleshy scene

with three men on a trapeze and

who later encounters a hard-

Jim

breathing satyr, a half-man, half-

. Poat. -

The movie is billed as a sled to

the brothers’ fabulously successful

original *‘Behind the Green Door,”’

which starred Ivory Snow deter-

gent-box cover girl Marilyn Cham-

bers. The new version has a novel

theme: safe sex. Virtually. every

intimacy is separated by some

form of latex. |

“It’s supposed to be a primer for

other Pornographers to follow,’

Jim said.-

“The film has a decidely clinical

flaver with all the squeaky rub-

ber,”’ noted Chronicle critic Gerald

Nachman, in what was not the only

negative review of the new release.

**I’'ve been more turned on at Wal-

greens.” :

But Manners, whose real name

is Elisa Florez, was undeterred.

_ “I hope to come down to Santa

Ana and do a premier like this,”

she said, surveying the eclectic

containing

pletive, was borne of confidence

that came easily as she iounged on

her opening night in the brothers’

citadel of seduction. -

- This emporium of erotica on

O'Farrell Street — with its maze of

entertainment rooms — offers X-

rated films, striptease acts and

‘simulated sex shows for a $2S entry

fee during evening hours.

After 18 years of nearly uninter-

rupted be plang — despite on-

again, off-again run-ins with City

Hali — the brothers have earned a

grudging acceptance by many in

the city.

/ “We sort of take, them for grant-

ed now. They’ re part of the scener}

. part of the cultural activities,

San Francisco iner colum-

nist Herb Caen observed after

dropping in on the premier. —

in Santa Ana

are known by only their last name,

their dirty-movie theater at the

Honer Plaza shopping center and

the city’s current legal war — its

latest strategy is filing a lawsuit

per week — aimed at closing them

down.

eowwre a Bee me Ghanem Sie Canta

“Wal BAppCus wcrc 421 Vama

Ana) is very convoluted. It doesn't

make any sense,’ Jim said. ““We

were warned when we went into

‘Santa Ana (in 1975). It basically

Jhas a real tough reputation, as

stough as some of the Southern

itowns in the early desegregation

‘batties.

' “It’s good business is why we

went to Santa Ana and stayed,”” he

‘added. ‘‘Santa Ana runs the risk of

ibecoming either a model (at com-

ting pornography) or the laugh-

ling stock of the nation on how not to

} it.” aa : > a

[ars a personality trait of the old-

er brother that he taunches into a

sarcastic analysis on those govern-

ment authorities who label their

craft “‘obscene” and the brothers

*‘smut kings.”

“We're at the very bottom.

We're the muck that they have to

get rid of,’’ he said.

It’s like -he’s hack at Berkeiey,

fist still raised, fighting for the

cause. Only this time, it isn't anti-

war, it’s pro-First Amendment and

its guarantee of free expression.

“If they can get us, I'll guarantec

you (in the press), you're not fz:

behind,”’ he said. *‘We're going to

go on the (legal) offense only be-

cause we know there’s nobody

waiting in the wings te save Amen-

ca.

And what of the current adminis-

tration with its porno-fighting at-

torney general and Supreme Court

nominees?

' **They've got to be careful or

they're really going to wreck a cou-

ple of hundred of years of Constitu-

tion,” Jim said. ‘“When you take

anything, your court or any of your

government, and you swing it over

to one side it goes to (expletive).

They're too greedy. They go, ‘We

want it all,” and you don't get it

all.”

_ James Lloyd and Artie Jay

Mitchell believe they have some-

thing to lose.

They were born of Scottish, Imsh

and American Indian heritage

(Choctaw and Cherokee). Thev

were the only children of an ele-

mentary school teacher ana a pro-

fessional gambler who skirted the

law and spent time on a Texas

chain gang before he came west.

Georgia Mae was 19;.Bob was 35

Dad taught the boys a few harc

lessons, such as there’s no fret

lunch; mom took them to church —

a fundamentalist Assembly of Goc

chapel in Antioch.

| “By the time we were 9 or 10,

they couldn’t make us go,” Jim

said.

} Both parents left them with hon-

est, uninhibited notions about sex.

Artie is convinced it’s one secret

to their pornographic success.

“I don’t feel guilty about sexuai-

ity or pictures of it,”’ he said. ‘'!

realize there are people ... who get

a terrible knot in gheir stomach

that they can never get rid of and !

feel sorry.”

Their father died in 1973 of a

heart attack. Their mother is re-

tired and lives near Sacramento

“Our family was always tight.”

Jim said. ‘‘Whatever we did would

be fine, as long as you calied

home.”’

Antioch was a village of oniy a

few thousand in those days and

there was one sure way of escape.

Both boys joined the Army, J:m

first and Artie after he got an asso-

ciate degree at Diablo Valley Col-

lege in nearby Concord.

' When Jim was discharged in the

early ‘60s, he enrolled at the Uni

versity of California, Berkeley, a

political science major with a mi-

nor in film.

In the midst of the Vietnam anti-

war protest during his senior year,

Jim joined a student body strike

and left school.

“‘] remember the last day, they

(the police) were chasing us with

their batons and we'd been throw-

ing rocks at 'em to get them start-

ed. We had taken over the admunis-

tration building, shut ‘em down.

We were anti-war, the revolution

was now.”

Viewing the televised carnage in

Vietnam, -Jim had little difficulty

in cultivating an irreverent dislike

for government.

He took a job part-time ai a San

Francisco theater showing black-

and-white adult movies.

“In those days ... you didn’t see

too much mixing up in it,” he re-

calls. “‘That gave us a little idea

that anybody could do a better job

at this.”

Who was going to tell them it was

morally wrong, he asked, a gov-

ernment knee-deep in Vietnam?

When Artie was discharged after

serving much of his tour in West

Germany, he and Jim enlisted a

small group of Antioch high-school!

chums and started the business.

The Mitchell Brothers’ O'Farrell

Theater, at 895 O'Farrell St.,

opened on July 4, 1969. He was 26;

Artie, 24.

In the beginning, improving the

art form was simple.

‘All the girls in the movies were

hippies and they all had dirty

feet,’’ Jim recalled. ‘‘The big thing

became to have a girl without dirty

feet.”

“(So) we would have her wash

her feet,”’ Artie said.

D-6

They say they’ve always drawn

the line at child porn, bestiality and

violence. But there was one area

they embraced early on: hard-core

SEX. -

“We knew the people wanted

that,”’ Artie said. “Business was

phenomenal.”

Despite intermittent raids by

San Francisco police, the brothers

undertook a hectic pace of produc-

ing two X-rated films every week.

They would ultimately introduce

or employ such porno stars as Eri-

ca Boyer, Harry Reems, John

Holmes, Annette Haven and

Ginger Lynn.

(Even porn queen Traci Lords

participated in a 1985 Mitchell

brothers’ film. The young Star

made national news when it was

revealed she was under age. The

brothers quickly trimmed her

eight-minute appearance from the

movie when the news broke. )

By the time they made the origi-

nal “‘Behind the Green Door’’ in

1973, it was their 332nd production.

‘The $86,000 film is estimated to

have earned $25 million since its

welease in 1973.,. ~

t Not much of that filtered back to

the brothers, they said. Their on-

‘again, off-again business sense and

never-ending legal costs have com-

bined to keep them from becoming

millionaires. .

“T've never seen them wanting

for money,” business associate

Jeff Armstrong said.

But, adds business manager

Vince "Stanich, “‘A lot of money has

come in and a lot has gone out.”

The Mitchells tried to avoid pay-

ing taxes on the huge income

spawned by the orginal “Green

Door” by plowing proceeds into

new productions. They spent a re-

me $450,000 on “Sodom and Go-

morrah” and created a flop.

| In the late "70s, the Mitchells re-

‘duced thejr string of theaters from

“Sometimes it's real nice out

there,”’ Artie said of fishing off the

coast for halibut.

“It Keeps you alive for the fight,”’

Jim said.

During the early "70s, when the

bootleggers tried to capitalize on

the success of such Mitchell broth-

ers’ films as “‘Green Door,’ the

chose a tactic that was un-

heard of in pornography: copy-

right.

After six years of litigation, fed-

eral appeal judges granted them

their copyright in 1979 and the U.S.

Supreme Court left the decision

alone. The Mitchells had made

case law.

“That’s a great one,” Jim said.

“When that one came in we ali had

3 seconds of silence.”

Theré also were legal upsets.

.. When a San Francisco judge found

them in contempt of court in 1982

and sentenced them to jail for al-

lowing their dancers to engage in

prostitution at the O’Farrell, the

brothers appealed. The case is be-

fore the state Supreme Court,

housed just four blocks from the

O’Farrell theater.

. With the millions of videocas-

sette recorders in American homes

today, the b:..::ers started making

““Greeu Door” scquel is their sec-

wd feawn comeback production.

They wani io bring the film to

Sant: ~ . *-ve their lease runs

out 0. ~ ~~ ™, 1990. The brothers

see rencwa! 2s doubtful. The notion

is enough to spark the Mitchells

into a little stand-up comedy.

collecting the millions they owe us

(in attorneys’ fees).”

Jim, (with exaggerated ef-

fect):*‘Ha, ha, ha. Yeah, we'll take

the Greyhound down, right?”

Artie:* “Yeah, Pll volunteer to

come down and see how our case is

going ... we’re not about to walk

away at this point.”

. Jim: “‘We'll be there with walk-

Artie: “‘I wish they had a few

more restaurants in Santa Ana.”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.