# Amicus Curiae Brief — City of Paducah v. Investment Entertainment, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2382%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1986 - **Citation:** 479 U.S. 915 ## Text 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 . 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, 29 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- t- 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 | 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 "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- t 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- 2 3 . 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. 3 ‘ 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. « +” See also Harris v. U.S., 315 A.2d 569 at 572 footnote 9 (February il, 1974), wherein an en banc District of Colum bia Court of Appeals, in facing a 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 (c) demonstrating to the Court that he 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 (C) Any and every obscene fiim 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; (C) Set forth a statement of facts 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 ao 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; (C) Set forth a statement of facts 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, : i 3 4 3 3 3 : 3 : ‘ . | 8K eT PAG te ah) Re : ( ) | . »« » 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 **{ 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.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2382%3A4. Public record. Not legal advice.