Amicus Curiae Brief — Kucharek v. Hanaway

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Text

ee In The

Supreme Court of the United States

October Term, 1990

’

WILLIAM H. KUCHAREK; SHANGRI-LA ENTERPRISES, INC., doing

business as DENMARK BOOKSTORE; PARADISE ONE, INC., doing business

as PARADISE VIDEO STORE; AND GEM BOOKS, INC., doing business as

PURE PLEASURE II BOOKSTORE,

Petitioners,

VS.

DONALD J. HANAWAY, Attomey General of the State of Wisconsin,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF OF AMICI CURIAE

CHILDREN'S LEGAL FOUNDATION, NATIONAL FAMILY LEGAL

FOUNDATION, AND MORALITY IN MEDIA OF WISCONSIN, INC. IN

OPPOSITION OF THE PETITION FOR WRIT OF CERTIORARI

JAMES P. MUELLER

2845 East Camelback Road, Suite 740

: Phoenix, Arizona 85016

(602) 381-1322

ALAN E. SEARS

3030 North Third Street, Suite 200

Phoenix, Arizona 85012

(602) 241-8520

Counsel of Record

Amici Curiae

—— =

TABLE OF CONTENTS

TABLE OF AUTHORITIES..........- ii

MOTION FOR LEAVE TO FILE

BRIEF AMICI CURIAE.....eeeeees

INTEREST OF AMICI CURIAE......

Pe py 8° | ty ol Pera

oy NN -

PN, rr eee ee ee

I. SECTION 944.21 IS NOT

UNCONSTITUTIONALLY VAGUE

AND MEETS DUE PROCESS

REQUIREMENTS OF FAIR

J gis rrr) Tr re 8

II. THE FOURTEENTH AMENDMENT’S

EQUAL PROTECTION CLAUSE

IS NOT VIOLATED BY THE

STATUTE’S EXEMPTION OF

SCHOOLS, LIBRARIES, AND

CONTRACT PRINTERS........- 16

COMTI LOmocccccecceeeeceeceeee 22

CERTIFICATE OF SERVICE........ 23

’

716 S.W.2d 190 (Ark.

EDEO Pe.cee ccvccveccceccccccce

Com. v. Bono,

Mass.App. 849, 384

7 ss

N.E.2d 1260 (1979)......ce0e

372 Mass. 379, 361

N.E.2d 1234 (1977).....2.0-

499 A.2d 308 (Pa.

Super 1986)... cccccccsccece

397 UeSe 471 (1970) scceeeeee

Fort Wayne Books. Inc. v.

indiana,

489 U.S. , 109 S.Ct.

916, 103 L.Ed.2d 34

Ol) Pr rTTrTerrrerrererre

100 Cal. App. 3rd 453,

161 Cal.Rptr. 53 (1979).....

902 F.2d 513 (7th Cir.

BPO U We cseteveceeceeccecooce

| rae aii

714 F.Supp. 1499,

1522 (E.D. Wisc.

1989) wccccccccccccccccccececs 21

721 F.2d 1281 (10th

Cir. L19SS) cccccccccccccccccs 18

Massachusetts Board of

427 U.S. 307 (1976)...------ 19

366 U.S. 420 CLSG6L) ecccccecs 16

413 U.S. 15 (1973)..eeeeeee- 10

48 N-Y.2d 408,

423 N.Y¥.S.2d 470,

399 N.E.2d 59 (1979)....---- 20

868 F.2d 1043 (9th Cir.

1969) wccccccccccccccccccccse 18

423 U.S. 48 (1975) eccccccece 9

711 P.2d 759 (Kan.

App. LOSS) ccccccccccccescece 19

State v. J.R._

82 Wash.2d 584,

512 P.2d 1049

CUFT Sadecwccucscorceceseeecesce 20

iii

121 R.1. 859, 404

A.2da 457 CIDTS) ccccccocccccecs

j ’

719 S.W.2d 522 (Tenn.

LHS} pe cccssccccvcccccccceccce

Turoso v. Cleveland

Municipal Court

674 F.2d 486 (6th

Cir. 4 er rrTrrTTrrrrT re

431 US. 767 (1976).ccceeece

fewer

MOTION FOR LEAVE TO FILE

BRIEF AMICI CURIAE

Children’s Legal Foundation, Inc.

(CLF), National Family Legal Foundation

and Morality in Media of Wisconsin,

Inc., respectfully move for leave to

file the attached brief amici curiae.

The written consent of the attorney for

Respondents has been obtained. The

consent of the attorney for Petitioners

was requested telephonically and consent

was refused. :

The interest of the amici curiae is

set out below.

Respectfully submitted,

cunsel for Amici Curiae

2845 E. Camelback Road

Suite 740

Phoenix, AZ 85016

(602) 381-1322

INTEREST OF AMICI CURIAE

Children’s Legal Foundation, Inc.

(CLF), formerly Citizens for Decency

through Law, Inc., is a non-profit legal

organization founded in 1957. The

Foundation exists to assist public

officials in the enforcement and

drafting of constitutional obscenity and

child pornography laws. It also

provides legal assistance to victims of

pornography, especially child victims.

CLF provides public information on legal

and social issues related to

pornography, and on sexual exploitation

and victimization by pornographers. The

Foundation has a legal staff of

attorneys practicing exclusively in the

First Amendment/pornography area. CLF

has filed more that 50 amicus curiae

briefs with the United States Supreme

Court on virtually every major obscenity

and child pornography issue before it in

the past three decades. CLF attorneys

have participated in trials and appeals

in more than 40 states. It has more

than 120 affiliated chapters across the

nation representing approximately

100,000 supporters.

National Family Legal Foundation is

also a public interest organization,

providing legal assistance to

individuals, organizations, prosecutors

and other public officials concerned

about the harmful impact of pornography

on the quality of life. The

Foundation’s Executive Director Alan E.

Sears is the former Executive Director

of the Attorney General’s Commission on

Pornography. In that capacity he

oversaw and supervised the drafting of

that Commission’s Final Report, with its

Recommendation Number 7 that state

legislature should amend obscenity

statutes to conform with the current

standard enunciated by the Court in

Morality in Media of Wisconsin,

Inc. (MMW) is a non-profit, non-

denominational state organization

affiliated with the national Morality in

Media, Inc. MMW’s goal is to stop the

trafficking of hard-core pornography by

providing education, communication and

support for concerned Wisconsin

communities and victims of pornography,

and as an umbrella organization bringing

together into a coalition over 50 state

organizations and contacts concerned

with the same issues and problems of

pornography in Wisconsin. MMW was the

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prime coordinator for passage of Section

944.21, the obscenity law at issue in

this case.

Children’s Legal Foundation,

National Family Legal Foundation and

Morality in Media of Wisconsin are

profoundly concerned with the

distribution of obscene materials and

its detrimental effect on children and

society in general. They believe the

Wisconsin law at issue is a

constitutional and a necessary method of

deterring and eliminating the

distribution of obscene materials. CLF

filed an amicus curiae brief in this

case before the Seventh Circuit.

INTRODUCTION

Petitioners are seeking review of

the Seventh Circuit’s decision upholding

Wisconsin’s obscenity statute as

constitutional against both due process

and equal protection challenges.

Kucharek v. Hanaway, 902 F.2d 513 (7th

Cir. 1990).

The Seventh Circuit held that

Section 944.21 of the Wisconsin Statutes

Annotated might contain an ambiguity as

to whether simulated, as well as actual,

sexual activities are forbidden.

However, the court found that "this will

not in itself make the statute vague,”

and “once the issue is resolved by the

Wisconsin courts, the ambiguity will be

dispelled, (and) the discretion of the

law enforcement authorities of Wisconsin

canalized." Id. at 519. The court

concluded: "There is no failure of fair

notice” to defendants and thus no due

process violation. [d.

On the equal protection issue, the

Seventh Circuit found a rational basis

existed for the statutory exemptions

being challenged and that no equal

protection problems existed. Id. at

520-21.

The essence of the court’s decision

was that it was a matter of state

statutory construction, best left for

Wisconsin courts, and that no federal

constitutional questions were at issue.

Amici urge the Court not to grant

the Petition for a Writ of Certiorari

filed by the petitioners. The Seventh

Circuit’s decision is not in conflict

with any other court of appeals, is not

in conflict with a state court of last

resort, does not depart from accepted

and usual course of judicial

proceedings, and has not decided an

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important question of federal law which

has been unsettled or is in conflict

with this Court’s decisions (nor do the

petitioners allege otherwise. )

Additionally, as the brief argument

which follows demonstrates, the

petitioners are incorrect on the merits

of the case.

Section 944.21(2) of the Wisconsin

Statutes Annotated defines obscene

material to mean:

[A] writing, picture, sound

recording or film which:

1. The average person,

applying contemporary

community standards, would

find appeals to the prurient

interest if taken as a whole;

2. Under contemporary community

standards, describes or shows

sexual conduct in a patently

offensive way; and

ae Lacks serious Literary,

artistic, political,

educational or scientific

value, if taken as a whole.

Subsection (e) of that same section

states:

“Sexual conduct" means the

commission of any of the

following: sexual

intercourse, sodomy,

bestiality, necrophilia, human

excretion, masturbation,

sadism, masochism, fellatio,

cunnilingus or lewd exhibition

of human genitals.

The “fair warning requirement /

prohibits the states from holding an

individual ‘criminally responsible for

conduct which he could not reasonably

understand to be proscribed.’" Rose v.

Locke, 423 U.S. 48, 49, (1975)

(citations omitted). The Court went on

to say:

But this prohibition against

excessive vagueness does not

invalidate every statute which

a reviewing court believes

could have been drafted with

greater precision. Many

statutes will have some

inherent vagueness, for ‘[iJn

most English words and phrases

there lurks uncertainties.’

- » Even trained lawyers

may find it necessary to

consult legal dictionaries,

‘treatises, and judicial

opinions before they may say

with any certainty what some

statutes may compel or forbid.

423 U.S. at 49-50 (citations omitted).

In Miller v. California, 413 U.S.

15 (1973), the Supreme Court set forth

guidelines to lead the states in

defining obscenity. However, nothing in

Miller ie meant to be “magical language”

which all state statutes must mirror.

The Court in Miller specifically stated

that: “We emphasize that it is not our

function to propose regulatory schemes

for the states." Id. at 25.

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A state law that regulates obscene

material which is limited, as written or

construed, by the following guidelines

is constitutional. The basic guidelines

for the trier of fact must be: (1)

whether the average person, applying

contemporary community standards would

find that the work, taken as a whole,

appeals to the prurient interest; (2)

whether the work depicts or describes in

a patently offensive way, sexual conduct

specifically defined by the applicable

state law; and (3) whether the work,

taken as a whole, lacks serious

literary, artistic, political, or

scientific value. Miller, 413 U.S. at

24.

The Wisconsin obscenity act is

closely tailored to conform to the

Miller standards. The petitioners are

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inviting the Court to revisit Miller,

but as the Court previously noted:

"Yet, this is nothing less than an

invitation to overturn Miller -- an

invitation that we reject." Fort Wayne

Books, Inc. v. Indiana, 489 U.S. __,

109 S.Ct. 916, 103 L.Ed.2d 34 (1989).

The Wisconsin statute specifically

defines what sexual conduct falls within

its reach: sexual intercourse, sodomy,

bestiality, necrophilia, human

excretion, masturbation, sadism,

masochism, fellatio, cunnilingus, or

lewd exhibition of human genitals. Wis.

Stat. Section 944.21(2)(e). It is the

description or showing of the commission

of said specific acts which are

prohibited. There can be no doubt as to

what kind of sexual conduct, if shown,

this statute intends to reach.

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The Supreme Court in Ward v-

Illinois, 431 U.S. 767 (1976) found that

state courts may “authoritatively

construe” an otherwise defective statute

to conform to the Miller requirements.

An argument could be made, and the

Seventh Circuit so found, that if

allowed the Wisconsin Supreme Court

could construe Section 944.21(2) in pari

materia with the requirements of Miller

(See, Turogo v. Cleveland Municipal

Court, 674 F.2d 486 (6th Cir. 1982)],

and as a result “patently offensive

representation or descriptions of

ultimate sexual acts, normal or

perverted, actual or simulated” would be

prohibited. But absent the Wisconsin

court’s opportunity to do so, there is

no question that the showing or

describing of actual sexual conduct is

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prohibited.

The petitioners can not argue with

any credence that they do not have fair

notice of what conduct is proscribed.

They know that the distribution of hard-

core pornography may bring prosecution.

This Court recognized the problems of

defining “obscenity,” but yet held that

dealers had been given fair notice when

it came to hard-core pornography:

If the inability to define

regulated materials with

ultimate, god-like precision

altogether removes the power

of the States and Congress to

regulate, then ‘hard core’

ape yO may be exposed

without limit to the juvenile,

the passerby and consenting

adult alike...

Miller, 413 U.S. at 27-28.

The Seventh Circuit found that a

possible ambiguity might exist in

Section 944.21, but that any ambiguities

“can be dispelled at a stroke by

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interpretation” and thus not vague in a

constitutional sense:

Either the Wisconsin statute

forbids realistic simulations

of sex along with actual

depictions (provided of course

that the simulation as well as

the actual depiction is

_ patently offensive), or it

does not; once the Wisconsin

courts resolve chat issue, the

ambiguity will he dispelled,

-the discretion of the law

enforcement authorities of

Wisconsin canalized.

Kucharek, 902 F.2d at 519.

The issues raised by petitioners

are appropriate for the Wisconsin courts

to resolve, in that they involve

questions of state statutory

construction. But in the meantime, even

without a judicial opinion construing

it, the plain language of Section

944.21(2) provides “fair notice” to

dealers of the proscribed materials and

satisfies constitutional due process

requirements.

II. THE FOURTEENTH AMENDMENT’S EQUAL

PROTECTION CLAUSE IS NOT VIOLATED

BY THE STATUTE’S EXEMPTION OF

SCHOOLS, LIBRARIES, AND CONTRACT

PRINTERS.

Petitioners also complain that the

statute exempts schools, libraries,

other similar institutions, employees

thereof, and contract printers. This,

they argue, violates the equal

protection clause.

Petitioners’ argument is without

merit. The traditional yardstick for

measuring equal protection claims is the

“reasonable basis" test. This standard

was set forth in McGowen v. Maryland,

366 U.S. 420, 425-26 (1961):

The constitutional safeguard

is offended only if the

classification rests on

grounds wholly irrelevant to

the achievement of the State’s

objective. State legislatures

are presumed to have acted

within their constitutional

power despite the fact that,

in practice, their laws result

in some inequality. A

statutory discrimination will

not be set aside if any state

of facts reasonably may be

conceived to justify it.

In Dandridge v. Williams, 397 U.S. 471,

485 (1970), it was stated:

If the classification has some

“reasonable basis," it does

not offend the Constitution

simply because the

classification “is not made

with mathematical nicety or

because in practice it results

in some inequality."

While a more stringent standard is

applied in cases involving either a

suspect class or a fundamental right,

the appropriate standard for review of

statutory classifications in obscenity

statutes is the “reasonable basis" test.

The statutory classification herein does

not involve a suspect class, e.g., race

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or alienage, nor does it interfere with

any fundamental right. Obscenity is not

protected by the First Amendment.

Miller, 413 U.S. at 23. The application

of the “reasonable basis" standard has

been utilized in and is consistent with

those jurisdictions addressing statutory

exemptions in obscenity statutes. See,

e.g-, Ripplinger v. Collins, 868 F.2d

1043, 1051 (9th Cir. 1989) [validating a

cable television exemption]; M.S. News

Co. ve. Casado, 721 F.2d 1281, 1291 (10th

Cir. 1983) [validating an exemption for

“school, church, museum, medical clinic,

hospital, public library, governmental

agency, quasi-governmental agency"].

The Supreme Court has held that the

"reasonable basis" test “employs a

relatively relaxed standard reflecting

the Court’s awareness that the drawing

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of lines that create distinctions is

peculiarly a legislative task..."

Massachusetts Board of Retirement v.

Margia, 427 U.S. 307, 314 (1976).

| Although it may not have been wise

to exempt these classes, that is a

decision best left to the legislature.

Such exemptions are not uncommon in

obscenity statutes. Appellate courts

routinely uphold exemptions from

obscenity statutes. For example, the

following cases have upheld sundry

exemption for clerks, projectionists,

churches, schools, universities,

libraries and museums on any one of

several legislative goals. State v.

Martin, 719 S.W.2d 522 (Tenn. 1986);

4000 Asher, Inc. v. State, 716 S.W.2d

190 (Ark. 1986); Com. v. Stock, 499 A.2d

308 (Pa.Super 1985); State v. Baker, 711

P.2d 759 (Kan.App. 1985); Com. v. Ferro,

372 Mass. 379, 361 N.E.2d 1234 (1977);

In re Kimbler, 100 Cal.App.3rd 453, 161

Cal.Rptr. 53 (1979); Com. v. Bono, 7

Mass.App. 849, 384 N.E.2d 1260 (1979);

People v. Illardo, 48 N.Y.2d 408, 423

N.Y¥.S.2d 470, 399 N.E.2d 59 (1979);

State v. Lesieure, 121 R.I. 859, 404

A.2d 457 (1979); State v. J.R.

Distributors, Inc., 82 Wash.2d 584, 512

P.2d 1049 (1973). Indeed, various

exemptions from state obscenity statutes

are the rule, not the exemption. The

A.L.I. Mode] Penal Code and Commentaries

specifically exempts “institutions or

persons having scientific, educational,

governmental or other similar

justification for possessing obscenity

material" and “non-commercial

dissemination to personal associates of

the actor." Section 251.4(3), Model

Penal Code.

In any event, as the district court

correctly pointed out, these exemption

provisions are severable from the

remainder of the statute and the statute

would be fully operable without them.

Kucharek v. Hanaway, 714 F.Supp. 1499,

1522 (E.D. Wisc. 1989).

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CONCLUSION

For the foregoing reasons, Amici

urge the Court to not grant a Writ of

Certiorari in this matter.

Respectfully submitted,

MUELLER

E. Camelback Road

Phoenix, AZ 85016

(602) 381-1322

Mw, See

ALAN E. SEARS

3030 North 3rd Street

Suite 200

Phoenix, AZ 85012

(602) 241-8520

Counsel of Record for

Amici Children’s Legal

Foundation, National

Family Legal Foundation

and Morality in Media

of Wisconsin, Inc.

CERTIFICATE OF SERVICE

I hereby certify that three copies

of the foregoing "Brief of Amici Curiae

Children’s Legal Foundation, National

Family Legal Foundation, and Morality in

Media of Wisconsin, Inc. In Opposition

Of The Petition For Writ Of Certiorari"

has been sent by U.S. Mail, Postage

Prepaid, on this 7 day of November,

1990 to:

Stephen Glynn, Esq.

Shellow, Shellow & Glynn

222 East Mason Street

Milwaukee, WI 53202

Tom Balesteri, Esq.

Assistant Attorney General

P.O. Box 7857

Madison, WI 53707

ae CY Nw e_—

S P. MUELLER

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.