Appendix — Mitchum v. Foster
Supreme Court brief1972
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+ Supreme Court at the ite States
= ae OCTOBER TERM, 1970. : = et ee
> yo ites aad ake _NO. 876 ~ ebatig Ms
is aye | "APPELLANT;
Bs yiegebnicse E. -FOSTER: As Prosecuting ‘seus of
_ Bay. County, Florida; M. J. “DOC” D/ As:
" Sheriff - of ‘Bay County, Florida; and ° THE
oa WS "HONORABLE W. L. FITZPATRICK,’ As Circuit |
ve Judge of the Fourteenth Judicial or: in and.
We es ts ROBERT MInCHUM, d/b/a THE BOOK MART,
- for iad Comaty, eetoee a ee :
se | ‘APPELLEES. ;
oR ee TS _ON W APPEAL FROM THE UNITED STATES’ :
| DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA |
| eat. PENSACOLA DIVISION its. ,
eg ti Rie wonualle 1 OF WW VOLUMES ts
oe ner. INDEX \
ae “U.S. District Coutt docket entries... .....-.. 2
/_ Coniplaint for Preliminary Injunction, :
* Order of U.S. Dist. Court transferring this
es ag case from Marianna to Pensacola Division -
Eee MUG 55 oo ks eg SDs
-» Notice of Hearing filed 5/4/70......2.......
' ~ Deft. Foster’s Motion to Dismiss filed 5/11/70:
Order of U. S. Dist. Court denying motion to
——* He SPUNPWD sos occas wk vawk
e
‘Original ‘Print
99 85.
108. ae
-106" 92
108 ie
imi eer wre 7 Sa ey A eee
ee _ transmitting designation order-(COPY. ONLY oe
7 with copy of order attached ewes sss... ~ AIF 100°:
», Motion for | saad the Coraplaint ig iF ls :
<_-and-to ‘Add Party Defendant = filed 6/4/70 . 119 fo Gime
es Amended Complaint filed’6/4/70 . cre pee ‘122, ie 108 °
oer Plaintiff's Notice of Hearing for Temporary ae ae
Restraining Ord 6/4770... 25... ree wa mye .
+, Answer of Deft. Foster filed 6/5/70, ......:.-: .136 124
ay Temporary Restraining Order filed 6/5/70 ... 149. 131.
" Deft. Foster’s Notice of Hearing. filed 6/19/70... 142° 135.
' Defendants Foster and. Fitzpatri Notice. >
of Hearing filed 6/22/70 .....\f.i...... 143 - 136
Motion of defendants Foster and Fitzpatrick ae
to vacate temporary restraining orders — eo ng
Be 7), | eer eee Deca A |
Deft. Daffin’s Motion to Vacate filed 6/24/79... 147 .140
Deft. Daffin’s' Notice of Hearing filed 6/24/70 . 2148141
Plaintiffs Amended Notice of Hearing gre.
; ‘ filed 6/26/70... oe ee eee iene , eee ' 149
es Plaintiff's Motion for Leave to Filed Supple-
mental Complaint filed-7/2/70 :.2......2. 151
* Amended Complaint filed 7/2/70 - - .. -IS2
Plaintiff's Notice of Hearing filed 7/2/70 os 266
: Deft. Daffin’s Objection to Motion for Leave / :
She ere ere - ae. eacae
ALTO oo ogc ce ches pebegin wes os "269
* aa &
oe wee | Original --Print.
. Deft. . Daffig’ ’s Motion to shies filed 17/8/70... »~ 20. Be
a ‘Deft. Daffin’s Motion to Dismiss filed 7/8/70 2 257
| * Deft. Daffin’s Motion for Payment of Witness", -
| "Fee and Mileage filed 7/8/70 .:..<<..... 272 259.
§ Motion of defendants Fi ck and Foster ~~ ee
a | . ,to Dismiss fil i, See AB Sone ee iene 3k ee
; _ Order of U-S. Dist. Court granting plaintiff's Biber tg
& motion for leave to file supplemental com- es
— _ "paint entered and filed-7/8/70 ......... 294. . | 280
ie. E Order of U. S. Dist. Court re Hearing on ee ene
‘.|.‘...) Application and Motions before Threee5
one | _& Judge Court filed 7/8/70... ...6:...... -° 295 281
|, .. Court Reporter’s Transcript of Hearing on = a
OS, eee Temporary Restraining Order h 7/8/70 — Ga One
fe MAT eS 297 283
ay Answer of Deft.’Daffin filed 7 0/70. as eas 329... 306°
ogee | Cae “Opinion — Order of Three-J fige Court seal #5 reg
ee | Be 2 ie ae age ey ed ee 331 = :308
ieee * Plaintiff's Motion fo ‘Trial Conférence ig 5 eat
40 ee gee Final Hearing fied T24f10 >. 6.5... 3
ae "+ Plaintiff's Brief filed 7/29/70, . «. iy Sa Piet ae
- |p» Deft. Foster’s Motion to Dismiss filed 7/30/70... 380 * 369
ee -Brief of Deft. Daffin filed eager 382- 371-
Deft, Foster’s Memorandum in Support of Save pos.
Motion to Dismiss — filed 8/14/70 ©. ...... - 387 375:
Cf eee Plaintiff's Brief re this Court’ "s7/22(70 — pees Gee Be
DP. . 2, RMR BEING cos ces ioc? SEF 488
969 | eee - Plaintiff's Notice of Appeal to the Supreme. os gee
ai "Court of the United States filed 8/21/70... 561. | 503
ee Plaintiff's Request to Clerk For Certification Oy ne
of Record filed 9/4/70... .. weteavaes’. °° $63 504
Three-Judge.Court’s Order of-Dismissal > ie aie
. .. - Without Prejudice filed 9/15/70.:.:..:.... 570 © 512°
Se Volume I = - Documents numbered 1 through 30
1 7 ‘Volume II - Documents. numbered 34 } tharqugh 45
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Bi ‘s : "DOCKET ENTRIES.
- Apsil 30, * 1970. _ “Filed Complaint. ‘in Preliminary -
i _ Injunction, Permanent Injunction, * Declaratory Judgment, ©
Demers sat Combeation Sf Pane Seen. Gort:
a.
ce _ April 30, 1970 = ‘Summens issued ‘and handed to: us.
‘Marshal together with copies of complaint. for service on
x | defendants
e
Bah ow
' April 30, 1970 =~ Filed Order’ ‘Sreeieeting action nag ers
‘Petisacola Division and: that all. further pleadings be filed in
the, Pensacola ' Division .signed by Judge .Middlebtooks -this ._.
srs Ceitified copies of order handed to Marshal to. be served: :
3 . with complaint. (Certified copy mailed to plts’ atty.)
" Aptil 30, 1970 — Original‘ file mailed to Pensacola Clerk’s
__ Office together with certified copy of docket entries= te
« May 1, 1970 — Original file. received by Clérk’s Office i in.
- Pensacola — certified a Sony of. cont entries from Talla. office
“filed
-?
s
—
held _
: “May” 4, 1970 = ‘Filed & Entered: Notice of hearing, 2: 30:
pm’ S/T1/70 ee Satna
.May 11, 1970 — Deft. Motion ‘to Disiniss ee
_. May if; 1970 — Filed & Entered: Order denying Deft.
“motion to. Dismiss and defendants have’. 15 days to plead
_~ (Amew DJ.) Copies del'd to. counsel for deft. ‘and mailed to —=' ©
; ES Counsel for plaintiff. |
May 11, AID — Hearing on temporary restraining’ Order .
_ May 12,, 1970 — Filed & Entered: Temporary Restraining
‘ Order restraining defts ‘from, enforcing ordér dated 4/6/70 by.
Gir. Ct. of Judicial Circuit in case of State of Fla. vs. .
Robert et ‘al — order shall become effective upon
filing bond by Pit. in thé amt. of.$1,000-+ ‘shall remain in
"effect only until hearing by full court — copies to counse] ©
. May 12, ° 1970 ~ sDeposit of — by check by Paul. ;
Shimek? :
-- May 13, 1970 - Filed & ‘Eatered: ‘Gamecke. setnined e
Bec seghnm apathy, personal service in Panama
on 5/6/70; Clinton: E. Foster personel service in Panama
5/6/70 - Se :
May 13,,1970°— Filed & Entered: ‘Bond -of plain in |
mi 81080 ee Ce .
° Ye e: >»
/ _
i
_—— ye
ee May~ 22; 1970 ~ . Filed. & ‘Batered: “Order - designating”
' . 3-judge court ‘consisting of ‘Judges Amow, _ Scott» and
: “Simpson — copies to counsel of record. :
_- “May*22, “1970 — Copies of complete. court fite ‘oat 10
‘Judges Scott and. Simpson copy handed to Judge Amow-
fines 4,. 1970 — Filed & Entered: Motion for: Leave to
inl end-the e Complaint and to Add: Party Defendant = copies
Ys to a judges ° .
* June 4; 1970 — Filed’ & Entered: ‘Nesenitel Cotinbaiet ae
: Temporary * Restraining. Order Preliminary Injunction —
Permanent Injunction — copies to 3 judges"
June 4, 1976 . — Filed. & Entered: Notice of Hearing for
Temporary Restraining Order copies to 3 judges — copies of ©
notice. sent . registered mail to Governor ‘and — Gen. rinses
oC Fee
: June 5,:1970 — — & Entered: Answer of Deft. Clinton
tees * Foster.
"June 5, 1970 — Filed & Entered: Objection of. Clinton.
‘_ Foster to. joinder nae
*. June 5,- 1970 — Hearing on Motion and. objection and
~ Temp. Restraining Order :
June 5, 1970°— Plaintiff's Exh. 1. ‘admitted at hearing on
Temp. booger Order. (Order of Judge Fitzpatrick to show .
cause) , ¢.
June- 5, 1970 = Filed & Entered: Temporary Restraining
Ofder restraining Judge Fitzpatrick from: calling . or holding
, any contempt hearing based on inj. order of 4/6/70 — ‘order —
’ requires no bond and shall remain in force -only until‘ the
> hearing and determination by the full court — hearing to be
set, as soon: as reasonably ‘possible (Amow, D. cea -sadng
| judges counsé of record and = F itzpatrick :
[fo], 3] — : tA e Als
~ June ‘19, 1970 ; - _ Filed & Entered: Notice of - Hearing set
feel AM ‘on 6/26/70 ~ copies to 3 judges by regular mail
| ‘popes Gor. and Atty. Gen. St. of Fla. by.reg. mail |
ie
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“June 22, 1970 — Filed & Entered: ‘siete of. Hearingset
for 11 A.M. 6/26/70 — copies to 3 judges by regular mail and .
. copies to Gov. and Atty. Gen. State of Florida by reg. mail
June 22, 1970 — Filed & Entered: Deft. Foster and -
Fitzpatrick motion to vacate Temporary. restraining Orders -
* June. 24, 1970 — Filed & Entered: Motion to Vacate on. -
- -behalf of Deft. M..J. Daffin — copies to 3 Judges |
June 24, 1970 — Filed & Entered: Notice of-Hearing on” -
~ Motion: set for. 11 "AM on 6/26/70 — copies to 3’Judges — ~
copies to’ Gov. and Atty. Gen. State of. Florida by Certified
— Mail: : ™ 8
June 26, 1970: — Filed & Entered: Plaintiff's amended 3
_ Notice of Hearing
June 26,~1970. - Hearing heid by Judge. Amow on
motion to dissolve restraining order held —. under advisement
— counsel-to have until, Wednesday July 1, 1970 to file briefs
July 2, 1970 — Filed & Entered: Plaintiff uote for
‘leave to file supplemental Complaint ee :
July 2, 1970 — Filed’& Entered: Amended Coniplaint for |
temporary restraining Order, - preliminary ee. and .
permanent injunction oe
‘July 2;-1970 — Filed & Entered: Notice. of hearifig for
"temporary Restraining Order, contempt Order, return’ of
material’ — copies mailed to Governor and Attorney General
s
State of Florida by” Registered mail
July 8,.1970 — Filed & Entered:, Defts’ objections to |
plaintiff's motion for leave to file amended complaint.
July 8, 1970 — Filed &- Entered: Motion of deft M. J.
Beco Daffin, as Sheriff of Bay Count, Fla., to strike
*:July 8, 1970 — Filed & Entered: Motion of deft. M. J.
“Dee” Daffin, as Sheriff of Bay County, | Fia., to dismiss
“amended complaint
~Tuly 8, 1970 — Filed. & Entered: Motion of deft M. J:
- Boe Daffin, .as Sheriff of Bay County, Fla., for order fe. pay
ary gcresneaaeen manent eer iS lhe ah ‘
a es
<*
July 8, 1970 — Filed & Entered: Motion of defts Judge
Fitzpatrick and Clintori E. Foster, Prosecuting Atty of Bay -
County, Fla., to ‘dismiss the complaint as amended and/or | _
supplemented _ mag Se e oe: ee <3
_..July 8, 1970 — Hearing held by Judge Arnow and Order
filed and entered in open court granting plaintiff's motion for.
leave to file ‘supplemental complaint herein filed on 7/2/70. :
_Court announced that application for Temporary. estraining
Order, Preliminary’ Injunction, Contempt Order an motion .
_ for return of material will be heard by the Three-Judge Court
_ at Tallahassee, Fla., at’ 10:00 A.M., EDT, 7/16/70.
July 8, 1970 -— Copies of Order filed in open court
- mailed this date to all counsel and mailed and/or delivered to _
Three Judge Court. \ : ee x
July 8, 1970°— Filed & Entered: Order setting certain
applications and motions for hearing before the Three-Judge
Court at Tallahassee at 10 AM, 7/16/70. Copies mailed to all
counsél of _Tecord “and thailed/and/or delivered to the three
judges. Copies sent via registered ‘mail to Gov. Kirk & Atty
Gen. Faircloth. | ee ae pe
[fpl. 4] cabs f | ere
* July 10, 1970 — Filed & Entered: Reporter’s Transcript
‘of hearing on temporary Restraining Ordet — copies mailéd to
each of the Three Judges f°. | —
Ne,
“a
July 13, 1970 — Copies of .all the pleadings filed by
defendants on 7/8/70 mailed and/or delivered to each of* the
three judges I Be ge
July 16, 1970-‘—‘Hearingy held. by 3 Judge Couft in
Talahassee_ on Deft. Motion to strike and.on-Pitf’s application
for Preliminary Injunction and én Deft’s Motion to dissolve~ _
Temp. Restraining Order (Simpson, Scott and Arnow. Motion
to strike granted — others taken under advisement. ae:
July 20, 1970.— Filed & Entered: Answer of J. J.‘Daffin ©
1 ¢
(Copies mailed-to 3 judges)‘ di 3 a
. July 22,1970 — Filed & Entered: Order and opinion of 3
" judge: Court Application for Preliminary Injunction Denied; :
— 6.
Motion: to pawers T.R.O of §/12/70° and 6/5/70 siiiiied: i
- Motion to strike granted; Ruling on Motions to dismiss
deferred - pending filing of briefs on or before 8/15/70 a
" (Simpson, Scott & Arnow) — to all counsel and to eagh
- ‘(of the three judges oe cee
: 6 July 23,1970 — Filed & Entered: Plaintiff's 1 motion for oe
pre-trial conference “aia final ee Cope to > each os
three judges, — a
vo Sely 29, 1970 — Filed & Entered: Plaintiff's Brief on the os
Constitutionality of .§847.011, 823. 05 ‘and 60.05 — copies eee
each of the 3 judges | : gece
July 30, 1970 — Filed & Entered: Defendant Clinton’ E.
’ Foster’s motion to dismiss amended complaint and his answer :
“to amended complaint. Copies to each of the three: judges. oe
(COPIES DELIVERED TO JUDGES ON 7/31/70. ) . ‘
August 14, 1970 — Filed & ‘Entered: Brief od defendant
M. J. “Doc” Daffin as Sheriff of Bay County, Fe Copy to
| each of the three judges. “ a
. * August 14,° 1970 — Filed" & Entered: M jorandum in’
Support of Defendant’ s Motion to Dismiss Yor’ Lack of ‘e.
Jurisdiction..Copy to each of the three judges. . e
August 14, 1970 — Filed & Entered: Plaintiff's Brief ae |
this Court’s July 22, 1970 Order _ copy to each of the 3
~ judges os
August 21, 1970 — Filed & Entered: Notice of Appeal to -
the Supreme Court of the United States.
August 24, 1970 — Mailed: Copies of Notice of Appeal to
each of the three judges.
September 4, 1970.— Filed &. Entered: Request for .
certificate of record, proposed stipulation and contents of
record — _copy to each of 3 judges — Mek
September 15, 1970 — Filed -& Entered: Plaintiff's . .
application for a declaratory judgment is denied without
consideration of merits and this action is dismissed — Deft.
awarded Judgment of taxable costs to be assessed, by the
Clerk pa, Scott .and Amnow) Copies to Counsel
neers dismaes 4
doen Aig
fp AY ental inci vb apa ae ee ASe AN ot lieth dn enent tT Where seve
»
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ee 4 , September 15, 1970. _ Is. 6 prepared ‘a mated to cae
Clerk, Tallahassee, witnessed by Keller aes ;
September ‘30, 1970 — Record on Appeal vale =
delivered to Paul Shimek, counsel for Appellant, -
transmittal to the U. S. pares Court. 3
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pak Se feP eoyet o Gb
-, In the'United States District Court
For the Northern District of Florida
Babb 557s "Marianna Division
3 eee es s
-ejenene Saas ee,
. Robert Mitchum; d/b/a The Book Mart, Plaintiff.
oe - ioe
_ Clinton E. Foster, as Prosecuting Attorney.of --
Bay County, Florida, and M.J. “DOC” Daffin,
as Sheriff of sone County, Florida, Defesidants.
colePuAinT 1 FOR R PRELIMINARY INJUNCTION,
PERMANENT INJUNCTION, DECLARATORY JUDGMENT, ae
_ DAMAGES AND CONVOCATION OF THREE -
——
- _, IUDGE-COURT — Filed: Apr. 30, 1970.
__To the Honorable David L. Middlebrooks, Fudge of Said
= COMME ee . TS “
Complainant, by and. ~ en i attormey, Paul Shimek:
, Esquire, complains of the- Defendants. ay and
ie - srry, meagerireny alleges as follows:
L. This is a civil actions. whereby Plaintiff prays that a.
‘ preliminary injanction issue to‘ the Defendants, their
~ agents, servants, employees and/or attorneys, and each of
them from _ the continued suppression of presumptively
protected First ‘Amendment | materials. The Plaintiff further
"seeks a Declaratory Judgment that Section 847.011 et seq.,
pee titled. “Prohibition of Certain Acts in Connection with
é Obscene, Lewd, etc. Materials”, Section 823.05. and Section
60.05 of the Florida Statutes. Annotated relating to
- “Abatement of Nuisances”, and each and all be declared
| _, Sunconstitutional as written and/or as the same.have been and
continue to be applied in the results obtained and/or have
' Deen threatened’ to’ be applied by the es _—_-*
more fully set out herein.
& TAS eae tS ede Efe. 9?
a]
re se “ASS
" Plaintift prays further that a. preliminary and permanent %
prosecution ‘ailiae threats. of stosicutlons of the Plaintiff ha
- insofar as said criminal” prosecutions or threats’ of prosecution :
relate to the -sales and/or [fol. 6] seizures of presumptively :
: “protected First Amendment printed publications and materials ‘
not first adjudicated to be obscene after due notice and a
judicially’ superintended adversary ‘hearing. Plaintiff further
prays that a ‘preliminary - and permanent: injunction issue
_ enjoining - the Defendants from comme any criminal
prosection of and from _ any arrests, seizures and
suppressions rinted m material under color of enforcement S
- of’ the said. Bey statutes without first providing, before any
arrest, seizure and/or suppression, a judicially superintended
; adversary hearing; after notice to: the Plaintiff, ,0n the issue of .-
eS ‘obscenity , el - ‘non of in in. the Possession of the Pas
Ee: :
a Jurisdiction is aueiaiead on this boat for the~
: resolution | of the substantial constitutional questions herein
‘Presented by Title 28, .U‘S.C.A., Section 1343, Title 42, °
. US.C.A., . Section — 1983, Article -IIl, . ‘Section - 2 ‘of ‘the
= Constitution of the United States. ie |
as " «Prayer for declaratory relief i is founded on Rule 57. of the .
' Federal” Rules of Civil Procedyre as well as Title 28, USCA, )
ve Section 2201.
: Inijunctive reliéf is . sought under Rule 65 of the Federal :
Rules Rane Procedure, . !
: * “Joriadicticn’ of the Court i is ha datoked pursuant to Title
28, U.S.C.A.,. Section 1331(a), this being a civil action.
wherein the matter in controversy: exceeds, exclusive of
interest and costs, the sum and.value of Ten Thousand Do
_ ($10,000.00) and applies undér the Constitution mi of «
the United States, ee ass ae
oe 10.
: Tutisdiction for convocation of | a Three-Judge ¢ Court is.
required by Title 28, U. Ss. C.A., Sections 2281 and 2284.
A. ROBERT. MITCHUM is the owner of. the oe
oprietorship known as THE BOOK MART. He is engaged in
’ the sale and offering for sale of books, cee oi newspapers,
aR States. Finasien operates. the store dispensing |
: ‘ate rps publications, setae [fol.7] to those declarednot
Court of the United States and
many \nferior ° Federal ‘Courts, and hence’ are protected —
expression under the First Amendment to the Constitution of
the Uni States to interested adults.. No sales or offering are
e Pla er ‘to minors under the age .of. a
the State fee includir rs
- Section 847.011 et seq., the ~
the Florida Statutes. .‘ ‘
- §. Upan information and belief, M. J. “DO se
the Sheriff of Bay County, Fie rates with
CLINTON E. FOSTER in’ unlawfully executing the wisties and .
- desires. of be arise E. FOSTER in. seizing materials,
} Florida Obscenity Statutes, |
ida_Nuisance Statutes, .
> Section 823 .05, and the Injunctive Statutes, I gajaeee 60. 05, of. °
. .
nS go
: . ‘
ee ee ae oe S ”
a. <<
-. €ffecting arrests, and in exercising prior int by threat of
- “arrest, by arrest, by seizure or by threat of seizure. =
: i je teh we. Ry” ee ;
6 At all times. relevant. hereto, the Defendants, separately
and in concert, were acting under color and pretense. of law,
to wit: Under color of ‘state statutes, custom and usage of —
Sectiont 847.011, Section 823.05, and. Sectign 60.06 of the
Florida Statutes, inclusive. ©... =
- 7. The Plaintiff at all times relevant hereto has operated —
the book store and retail newsstand known as THE BOOK
MART located at 19 Harrison Avenue, Panama City, Florida. . seh
* 8 On March 30, 1970, Clinton E. Foster, Prosecuting
Attorney for,Bay, County, Florida, filed in the Circuit Court,.
(fol. 8] Fourteenth Judicial Circuit in the State of Florida in
and for Bay County, a complaint, a copy of: which is hereto
' attached as. Plaintiff's Exhibit~ 1, wherein he asked the
Honorable: W. L. Fitzpatrick, Circuit Judge, to issue a -
. temporary injunction without bond against the Defendant '.
_ therein, your Plaintiff herein, ~from the. conducting - or —
* continuing -of a nuisarice and fro removing or in anyway
interfering with or mutilating the furniture, fixtures; and’
movable property including the inventory: used in the conduct
of the business located at 19 Harrison Avenue, known as The
Book Mart. The Defendant Foster prayed a final judgment be
made and entered declaring said business to B€ a nuisance and
abating said nuisance and directing the Sheriff of Bay County,
the Defendant, M. J. “Doc” Daffin, herein to dispose of same.
as may be ordered by Judge Fitzpatrick.’On March'30, 1970, -
a subpoena duces ,tecum was issued requiring the Plaintiff, .
ic. Robert. Mitchum, through his employee to ‘present a copy of «
- each and every book, magazine, ‘ periodical, pamphlet, etc. .
before the Court. Copy of’ said subpoena duces tecum and
_ summons herewith attached as Plaintiff's Exhibit 2.
*.
> ; ms fe j
ii ee
On or about March 30, 1970, the Defendant Foster isuued
a , note of beasing ini attached os Picbalthe: habe 6,
_ and “served Exhibits 1, 2, and 3 upon Plaintiff's employee le
the premises. Tpe Pyyintiff's ‘employee. soon after service .
placed into the mail to Paul Shimek, Jr., Plaintiff's attorney,
' the\ Exhibits 1, 2 and. 3,- ‘which were received by Plaintiff's
attorney was involved in a two hour hearing before The
‘Honorable Winston E. Arnow in a post-criminal proceeding
and arguments. thereon. On April ‘2, 1970, Plaintiff's attorney —
was involved in a jury criminal trial most of the day in the
Court of Record in and for Escambia County, Florida. On —
. April 3, 1970, Plaintiff's attorney. appeared and was involved —
“in three separate courts in Pensacola, Florida, including the
Court of Record, Circuit Court in and for Escambia County, -
“im the United States Disttict Court for the Northern: District
of Florida. At or about 2:00 P.M. after finishing hearings
‘before The Honorable: (fol. 9] Winston E. Arnow _ in. “gat
Federal Court, Plaintiff's attorney was required to forthwith
journey . -by verbal order of Judge Fitzpatrick to Panama City,
Florida, to "present arguments and evidence in the - cause. -
Plaintiff's attorney had orally requested from Judge
_ Fitzpatrick a continuance by telephone for the reason there ~
was insufficient time to communicate said" continuance in’ —
writing. The Court-denied the oral motion’ for: coritinuance,
At trial, Plaintiff's attorney again outlined the reasons he
~ could not proceed! on‘such short notice ‘as outlined in 823.05,
“which motions are recited in Exhibit.4, the transcript of the
record ‘of ‘that. trial. No answer has been filed’ to the _
_ Complaint in the Circuit Court: in and for Bay Cotrity, |
. Plaintiff's Exhibit 1... Plaintiff. made numerous objections to
the proceedings, reciting in detail the grounds remedies
‘Objections. During the. trial Thomas J. McAuley, Chief of
Police of Panama City, Florida, testified that in his opinion
most of the thousands of books in the:store but ‘not in the ’
courtroom at that timé were obscene, that he had talked to"
- Rumerous Tt who had —or ‘their attitude . toward’
*
+ -. °
4 5 ‘ s
* j ‘ cae ° . 4
pe : 1B
ay <
“hema ae wae badd etckan
like The Book Mart ‘being there, ‘they didn’t want it to be
_ there, and they. wanted to know ‘how: they ‘could help to
fe extricate it from the community. McAuley testifietl that the
. presence . of the’ Book Mart brought into being the. exercise of
- other, First Amendment. expression, — namely, ‘peaceful
_ picketing, -a religious | ralley, and * other exercise of . First
- Amendment. rights by the populace of the «community. The
only. testimony before the court which. might conceivably he’
_ “distorted in an arbitrary and abusive manner to be a basis for _
_, the detegmination that a nuisance exists was the testimony m.. .
+ Thomas J.- McAuley “found from: page .27 to page-41 of
Plaintiff's Exhibit. 4. The Plaintiff presented no testimony but -
~ ' moved to strike all the testimony before the court ® being.
biased’ and outrageously prejudicial. Twenty-five exhibits were’
i placed before Judge Fitzpatrick, six of which he declared to
-. be obscene’ and. suppressed forthwith. The other -nineteen
'- publications which had been ‘subpoenaed via | bpoena duces
+ tecum were placed. in: evidence in the bosum of/the.court-byt °
. - were not found to be obscene. Approximately [fol. 10] “50 to
75 other publications . ‘which | had been presented by the
Plaintiff's. employee in response to this subpoena. duces { tecum
_ as. representative of the thousands. of publications at The.
Book Mart ‘were not in evidence and were ej ae to
your Plaintiff. 2 ‘ |.
. ’
Le ; a
9. On the ‘Rin ob-te nt al ws i ee
finding of ' obscenity of six publications, the Honorable W. L..
-Fitzpatric on April 6, 1970, found that a nuisance existed and ne
issued his temporary injunction entitled order ‘under. Chapter
- 60.05, finding irreparable harm to the people of Florida, and ee
_ enjoining and shutting down ‘the iness.on the premises |
'. known as 19 Harrison Avenue and ght about a totaj and
~ complete suppression and prior restrajnt . of . piesumptively
protected materials. The record does not demonstrate that a
*, maleanee ets moe tthe: seeoemen, stabate constitutional
Op
' Plaintiff prayed to the First District Court-of Appeal fora. ~
‘bond and supersedeas and prayed that the First District Court:
-- of . Appeal review and reverse Judge Fitzpatrick’s order —
-. First District Court of Appeal on Apgil 21, 1970, denied your r.
Judge isu April. 6 1970, order is herewith ‘diteiee a
' a8 Plaintiff's Exhibit Reese: Wish
md
: 40. On’ April. 6. 1970, the Plaintiff Sree for a
suipersedeas staying the order pending Bg Ree motion’
for supersedeas was denied on April 9, 1970. upon your
denying motion for supersedeas, s see Plaintiff's Exhibit 6. The
= Plaintiff's. motion for a stay ee sopoe.
. 8
The sittirary al capricious abuse of discretion. and he
we absolute and total. suppression of First Amendment rights .by
the Circuit Court and by the Appellate Court’ of Florida
leaves no doubt that justice cannot be obtained in the lower
level nor. the appellate. court level: of the State of Florida and
_ . this requires the immediate presentation of ‘this - problem to —
the Federal District Court herein for. telief.' The ° entire
transcript of proceedings before Judge Fitzpatrick. is contained
-in Plaintiff's Exhibit 4. The Sheriff prevents the Plaintiff from
~prote: materials which, in law, have not been determined. ;
condueting business’ on his authority y bottomed on Judge .
+Fitzpatrick’s order. ‘Plaintiff is afraid to open: the premises -
because of fear. of immediate incarceration by — acne’
through: Prosécutor Foster. |
{fol ny RN
11..°The conduét of the Defendants: in _ procuring ‘the
order designating as | obscene and/or. a nuisance presumptively
be obscene in the constitutional sense, and from public
distribution, magazines, books and - ‘various other publications
and other First Amendment materials which have not beer
declared -to be. obscene after 4 pri judicially ‘superintended
adversary proceeding, has completely: dissipated thé efforts of :.
the” Plaintiff to have ‘the said —* sold one — as it
pe \
= 5 ¢
Se ee eee Gg 2
is mt citizens of the State of Florida as well as the chine of
‘the other 49 states visiting in Panama City, Florida, who 0 ge
personally- desire to purchase, view and receive the said
. . Publications and materials as may be offered for sale to adults
"only in a“non-obtrusive manner without evidence of the
“sort” of pandering. condemnéd by the Supreme Court in -
: Ginzburg vs. U.- SS 583 — 462, Pe ate York, 386
US. 767. Say oe ,
s
a Joe
~
12. -Thé aforesaid conduct of the Defendants in making
. the suppressions as aforesaid, as well as continuing to SUPPTESS .
the said publications afid materials is an. unlawful . “ prior
restraint” condemned by the Constitution of the United .
States, more particularly ' the First, Fourth, and Fifth .
Amendments thereof, as made obligatory on the states upder
the Fourteenth Amendment, and has had a “chilling effect” ‘.
on the exercise of) the First "Amendment “rights of the .
Plaintiff. The Plaintiff fas found it necessary to ‘temporarily
divest himself of all materials and has been fdrced to knuckle
under the police state tactics ‘of the — drunk es
wearing bangen and maa
43. As a remit of the condust of the Sieleethante: thin:
Plaintiff, has been intimidated in his trade arid business and
has suffered and continues: to suffer complete loss of profits
‘as well as damages as a result of the substantial interference '
with Plaintiff's advantageous business relations.
+
14, Asa further result of the enciciiatiipstjonad asians of
the Defendants, the Plaintiff has been required to retain an
attorney, to defend him - against unfounded criminal charges
and civil actions based upon 4 state obscertity law, Section
847.011, [fol. 12] as well as the state nuisance ‘statutes, Section
823.05, amt-Title 6, Section 60.05, of the Florida Statutes, ©
known by the Defendant? to ‘be unconstitutional as written ©
and/or as the same have been applied in a manner to obtain
_ results repugnant. to the United States Constitution | as
eevtala.
oe
erste hanna ial . Se Re Ste Bo REEDS RE IE EIN AEE ROTI
“s a . Ss -
ie
|
15. The Defendants unlawfully, déliberately, haveteaty, :
willfully and/or by reasons ‘of inexcusable. negligence, have ©
. deprived and continue to deprive the Plaintiff and thé.adult .
- public of their, respectiye rights, privileges and immunities
- secured to them “by the First, Fourth, Fifth and Fourteenth
‘ Amendments sto the Constitution of the United States under
color of enforcement of state statutes by:
’ A. Arbitrarily forbidding, contrary to the applicable’
: decisions of the Ynited States Supreme Court, various Federal —
Appellate, U.S. District Courts and other sate courts pf -
eompetent jurisdiction, as well as ‘the Constitution of the:
United States, the- right of. Plaintiff. to keep for sak,
. ‘distribution or offer for sale
‘distribution, publications and
materials. dealing with nudi and/or sex in a non-obscene
manner; and further : | — ~
B. By sxbitiartiy and. capriciously ‘deciding to act ands
| acting as censors of presumptively ‘protected publications and .
in .a manner contrary to law, which has had the effect of
depriving the citizens of the State of Florida and citizens of |
the other forty-nine states access to non-obscene publications
and materials Seating with metny and/or sex; and further _
¢. By suppressing ‘froin distribution ‘the jublications
' and materials | dealing with nudity and/or sex in an
nor-obscene manner, without a prior judicially superintended
' adversary hearing, [fol:. 13]. Defendants have caused Plaintiff to
_ Sustain untold ‘monetary damages - in addition’ to the -
substantial and irreparable damages occasioned by the wholly _ |
: unconstitutional ree S ‘of Defendants under color _of state
: statutes as aforesaid.
16. The stitintwiee provisions of the State obscenity law, U-
_, Section, 847.011 are tepugnant to the First, Fourth, Fifth,
we Sixth and Fourteenth Amendments to the Constitution of the
/
. i ;
Ma = ae |
“Ge . : /
United , Staten, oa should- be so “declared by this Court for
_ one — all of the meee reasons:
A. Said statutory provisions are void for vagueness in
that the same forbid or require the doing of an act in, tefms
so vague, fluid and indefinite that men of | mmon _
‘ intelligence ‘must necessarily guess-at the meaftyig and differ .
as to the application thereof, and as such are repugnant to-the
Due . Process provisions of thie Fifth, and Fourteenth —
Amendments to the Constitution of the United States; baci
further; .
‘B. Said statutory provisions are void for overbreadth -_
by means which sweep unnecessarily braadly_ and’ thereby
invade the area of .protected freedom in that said provisions
. set, forth standards for determining and regulatirig obsceni .
' variance with and insufficient for those minimum ais, i
prescribed by the United States Supreme Court in connection -
with publications: presumptively protected ‘under the First and
Fourteenth Amendments, and further; ;
. C. The’ said iteheingy ‘provisions - are void for
vagueness and impermissible overbreadth, in the area of. First
_ Amendment . freedoms, because the said provisions are:
Susceptible of sweeping and improper application ‘by - law
enforcement. officials and have a “chilling and ‘inhibiting
effect” ‘oh: the: exercise of the federal and state constjtutional
rights of citizens of Florida and the United [fol.. 14] States,
as well as Plaintiff, to publish, distribute, circulate, sell, receive -
and/or purchase Ptinted —— and further; : '
D. Sid statutory provisions are repugnant to the
substantive Due Process provisions of the Fifth and
_ Fourteenth Amendments to the United States Constitution
because they: permit deprivation of liberty and/or property *
interests for the exercise f First ‘Amendment rights by
—
18
unreasonable, arbitrary, and capricious means by law
enforcement officials of the State of Florida without a
showing of a real and substantial relationship to any: state
.subordinating interest which is compelling to justify, state
action limited First Amendment Freedoms; arid further; 7
* -E. Said statutory provisions are: impermissibly broad
_.. and repugnant to the procedural due process requirements of ~
the Fifth and Fourteenth Amendments-of the Constitution of .
the ‘United States by employing means lacking adequate
safeguards which Due Process demands to assure non-obscene
material the constitutional protection of the First Aniendment
| See. et teanecr
F. Said datatecy provisions are vdgue and
. impermissibly overbroad and thus repugnartt to the First,
- Fourth, Fifth, and Fourteenth Amendments to the:
_-Constitution of the United States in’ that said statutory
provisions permit unlawful prior. restraints by law enforcement
‘Officials . the State of Florida, ‘and further;.
i “, ‘Said statutory provisions are further void ‘for.
impermissible overbreadth in that there is no- scienter
requirement réquiring that .the party sought to be held
_Character of the er . the material ee and
further; “
[fol. as) . .
-H. Said Section 847.011 is void for ssapenmniantit a
"overbreadth in that it creates an unconstitutional presumption
“under Sub-Section dl) (b) that, “The knowing possession by
any person of six or more identical or similar
- materials... coming within the. provisions of .the foregoing —
paragraph (a) is presumptive evidence of the violation of said
paragraph,” which - presumption ‘could be applied by ‘4
“ -@
: °
area Te oe po SLE EP EL PELLET TEE IE OEE OEE IO EN YL I ME PRR TO a De gibi
A
criminally accountable have ‘knowledge’ of the fact and. a
. . : 19°
Defendants | to constitutional private. possession hes Stanley
vs. Georgia, 394 U.S. 557 (1969)) as well as to commercial ©
_. .possession for distribution to adults only in a non-obtrusive —
, manner, not encroaching on the rights of others who wish to
~ avoid. confrontation with ‘the adult-type - ‘materials.- Said
presumption permits - law enforcement officials—including
. Defendants, to charge citizens ‘of the State of Florida with
possession of purportedly. obscene materials where theré is no
direct — of any criminal biased ‘and further;
I. Said Section 847, O11 et seq. is void for vagueness
and violative of Due Process in that each Section doés not sed
out by its terms any constitutionally relevant and. permissible
definition of what constitutes “obscene matter”, and: further;
J, Said: “Si 847: Oli et. seq. is further void
‘ecuuas it fails to’ distinguish’ between constitutionally
protected personal possession and public possession of
. materials steed to be obscene, and — : :
°K. Said statutory provisions - are further void for
impermissible overbreadth and: repugnant ‘to the Constitution
as aforesaid in that. the determination of obscenity vel non is.
a question of law and not a eetation of. fact.
Ps
17. The provisions of ee 823. 05 and Title 6, Section
60. 05. relating to declaring a place to, be a nuisance and
providing for the abatement of , the same by using the
guidelines of “which tends. to annoy the community or
become manifestly injurious to the (fol: 16]. morals or manners
Of the people” as ‘applied by’ the Defen seeking .
' and/or obtaining a temporary restraining cicwhgheees’.
injunction are repugnant to the First; Fourth, Fifth, and
eo:
Fourteenth Amendments to, the Constitution of the United ° -
States as written and/or as the same have been employed and--
applied by said Defendants against — Plaintiff, in that>—_
- . .
i a a Oe a ee en ee ete 7 iE a an ek PRI
As Said statutes are ‘void because the. standards
therein permitting the maintenance or expression to be
| enjoined and. declared to be a nuisance solely on the grounds
that the same “tends to annoy the community or injure the
_ ‘health of, the community;-or become-manifestty, ‘injurious~to <n ek
” the. ‘morals of ‘the people” are unconstitutionally vague and
» broad and ‘therefore are in violation of the ‘First’ and.
Fourteenth Amendments | to’ the Constitution of the ‘United
States, and
B. Said statutes are . void because’ the terms —
“nuisance” and “annoy the community” and “injure the
health of the community” or “become manifestly injurious to .
‘the morals of the people” ‘contained therein are so vague,
* indefinite, and broad that they do not afford any reasonable
- standards for the imposition of. restraints upon freedom .of
_ expression and’ therefore are repugnant to the guarantees of
- the First and Fourteenth Amendments to the — of ~
_ the United. States; and,
¢ Said nuisance. statutes when applied to the |
operation of the place of ‘business by your Plaintiff, and the © |
_-__gubjegt ymatter sold. therein, violate the First and Fourteenth =
' Arhendments to’ the Constitution of the United States because
of the absence of the following procedural safeguards required
‘by the decisions of the U. Ss. “Supreme. Court and other federal .. .
- courts: * . "
kK There is no requirement or assurance therein,
_ OF in any .- -other provisions of the laws of Florida, for a
prompt judicial decision, including appellate .review, of. the —
. question of whether the actions {fol. 17] described in -Section
~ 823.05. is a “nuisance” which may be restrained
thereunder; and, ; es
7)
oe There - is no- provision in said statute, or
elsewhere in the laws of Florida, which requires Or assures ~*~ |
. that any restraint of the described, action of the said
Defendants shall be postponed ‘until a judicial determination.
"of the ‘question of nuisance (in this case applying the doctrine
Or” Obscenity “as~a~-muisance’ statute) following” notice and an
peter 4 hearing.
eee
; . Said nuisance statutes are void as written and as
applied ecsiain there has been established thereby no precise
- objective standards by which the work restrained or objected
to may be judged as well as procedural safeguards adequate to
insure that constitutionally protected expression will not be |
unduly .curtailed. The questionable determination of obscenity -
of six publications and the resulting suppression of thousands _
of publications never reviewed by the declaration | that there is
a nuisaance and the approval by state court on the trial level |
and appellate court of the procedure of refusing a. bond
pending “review where: both have before them .. the _ flimsy
records herein. described. as Plaintiff's’ Exhibit | 4 clearly -
: demonstrating the most’ abusive disregard of the law and this |
-court . should -déclare- such abuse to be -an unlawful prior
restraint with a freezing effect upon the exercise of any of
the Plaintiff's First Amendment tights, | Z
| 18 The transcript: of the cord has already been placed
in the hands of the Defendants and exhibit: 4.is accordingly
- not attached to any copies of this complaint. sectors) ,*
. “19. ‘Plaintiff: avers that the issuing of the mabpoens sues
tecum was an effort to lawfully bring about a massive’ seizure
which ‘temporarily shut down the premises. - The subsequent :
order in shutting down the premises has resulted in virtually ©
all of | the publications being completely and totally
suppressed in their distribution {fol. 18] . Plaintiff alleges that the
unlawful , and , abusivg order mores down the premises =
¢
‘ 4c. ae |
> Ks y .° : F ’ ‘ ad
has caused him ‘loss of substantial profit, that~the .
notoriety and publicity of the actions of the
‘Defendants have done irreparable harm and. injury to.
the business and ‘personal: reputation of the Plaintiff all -.
"60: his— daimage. The Plaintiff who ‘desires to open ~.
-cannot do so because of the presence of the Sheriff —
jenforcing an illegal order in .a deliberate sup ession ..of
"First Amendment cee Rar pete
2 Pibinyt a entitled to and /desires “that this .
Court enter -a declaratory» judgment on: final hearing |
- upon the provisions of 28 U.S.C. 2201 and Rule 57,
» Federal Rules of Civil- Procedure, declaring the State of
Florida obscenity. statute 847. O11 -and Section 823.05
and Title 6, Section 60.05, relating to- the abatement
of ~public nuisances to be unconstitutional as written
and/or as the ‘same have been and are being applied
to Plaintiff herein, |
1. The i ebeithy unconstitutional manner of
plication of the said statutory provisions of the State
Florida obscenity © statute, nuisance statute and
injunction statute, which statutory provisions: purport to
Tegulaje on or restrain the exercise of the freedom of
_* @xpression, freedom of press and ‘speech under the - First —
hg Amendment, undertaken by ‘the Defendants in bad faith
enforcement of the law, justifies and requires federal -
equitable relief from . the aforesaid unconstitutional |
pending state’ criminal prosecutions against the ; i
and based on publications and materials | oone
: - declared to” be obscene after. a. judicially supprt
3 “7. Plaintiff . is entitled . ‘to and desires that this
Court issue ‘a preliminary - injunction restraining and
" enjoining each of the Defendants" and persons in active ~-
concert with them from: _
5 - . -
eee aN ee ee ne Pee Se EOE TILT Ne TEES LPR ISI SD BME ee ATA I apne 8 et hae Ra A ——
a = e vate aie sa ite
Ul
So.
ee
y
A: Procuring an P order, bottomed “upon Ahe .
Loa nuisance and obscenity ' Statutes” directing the continued ;
m “in suppressjon of Pyplications and materials ‘by the closing
charge of its being a nuisance.
down of the premises on the false : and fraudulent
_ "" ,_B. Interfering in any way with “the instanter
reopening [fol. 19] of The Book Mart and the continued selling - -
of . presumptively protected materials. .
es Pee. oo : a ; : : \
C.. Further attempted or. continued suppression
- Of the publications and materiz at The Book “Mart
until. there has been a prior judiciaily _ superintended
adversary hearing on each and every’ publication which the
State of Florida desires to suppress and from enforcing in any
way whatsoever the State of Florida’s nuisance statute Section
823.05 - aff the injunction ‘statute, \ Section 60.05, in
_ combination ‘therewith. te eee
23. Plaintiff is “entitled further to-and applies for a
permanent injunction restraining Defendants, their agents,
servants, employees and attorneys, and -any and all other
persons acting under their direction and ‘control, and each of
them, and persons in active concert. or participation with
_them’ from continuing the following unconstitutional and’ .
unlawful acts, to-wit: aie
A. Enforcing the State of Florida. obscenity tute, _
Section 847.011 et seq. of the Florida Statutes AnnOtated .. °
because of the unconstitutionality of said Statute as ‘written
and/or as applied, in a manner repugnant to the constitutional
‘Tights of Plaintiff. = =
_ B. From enforcing -the State of Florida nuisance.
-” Statutes, Section. 823.05 and Title 6, Section 60.05: of the
Florida Statutes . Annotated, because of the . facial
$754 or ye,
Rae's
“unconstitutionality of each pon ran as ait hhs been wplied :
under the factual ee ee
"C. Engaging in Say” srigghs, rests, searches, seizures and
suppressions under color of any state law ly regulating
obscenity without first giving due noti¢ to Plaintiff and
| providing - for a judicially superin prior adversary -.
hearing on the issue of determination of the obscenity, vel non
“of the materials-sought to be seized suppressed or the
basis for-an arrest, and then only und procedural safeguards -
designed to. assure adequate vi ion of the Plaintiff's
constitutional ~ :
[fol 20] sree hate
‘24. As/a result of the wholly unconstitutional” conduct of
Defendants in depriving Plaintiff. of his: rights under the
_ Constitution and laws of the “United | States, Plaintiff: is .
: pH CIE : ioe
J | ee
5. [That the Plaintiff - upon’ ‘Sag ined ie .
pr -and permanent. - injunction by verified complaint, soe
restraining Defendants and/or their agents, servants, employees
and/or — attorneys, from | _enforcing the State of Florida .
obscenity statute as aforesaid because-—of the facial
unconstitutionality of each and/or as the same has been
unconstitutionally applied, as well as ‘a preliminary and .
permanent injunction restraining the enforcement of the. State
of Florida nuisance statutes as aforesaid because of the facial .
unconstitutionality of each and/or as the same has been
sciocation Gas applied, make application for the
convocation a three-judge court. as required by Title 28
U.S.C.A. Section 2281, and “request the ‘Chief Judge of the
_ , United States Court of Appeals for~ the . Fifth Circuit be
‘ notified putsuant to Section 2284 of Title 28, U.S.C.A., of
the presentation of Plaintiff’s application as aforesaid, in order
i
be had forthe Soteieiieiion of the substantial Constitutional te
aente Pemeaeee Oe Deahomeroneee:. 5 wager).
WHEREFQRE Plaintiff prays: Ei ae ie
‘s 1. That a preliminary . injunction po pia issue upon
hearing restraining Defendants .and/or their agents, servants,
_ employees and attorneys. pending a hearing and determination
"of Plaintiff's aetcntion for Permanent injunction from: ie
oe
Vc A. Picadas: an order bottiaed upon ‘the nuisance
‘and obscenity: statutes and materials by the closing down. of
._ the ‘Premises on the false and fraudulent charge of its being.
” nui ce. ye, 4 % ; . Soe $
‘. . gift;
B. ‘Solera in any way “with the instanter
reopening of The Book Mart. and the continued ting Ses
promanptively protected —
[fol.21] C. Further. attempted or continued suppression of the
publications and materials at The Book Mart until there has
beén. a prior "judicially superintended adversary: ‘hearing on
. each and every publication which ‘the State of Florida desires K
to suppress and from entforcing . in any way whatsoever the
State of- Florida’s nuisance statute Section 823. 05 and the .
injunction statute, Section 60.05, in combination re :
-D.. se any sienateh ot sensioes of ‘pabiications or
other materials in the possession of the ei are first
proceeding by way of*a judicially Superint adversary
" “proceeding on the issue of obscenity of the publications or
materials “sought: to be condemned, provided - ‘first that -
adequate notice be given to Plaintiff and: his attorney,
consistent with due process erin of. | the Fifth’
Se
” | ee
* ee . t .
> i j
- 6 #. : 7 ok
2. That Defendants, and éach of them; -be réquired to
forthwith: answer this complaint in conformance with the
i tubes and’ practices of this Honorable Court, and aoe :
and suppregsions under color of. any state »
_. [fol. 22] to regulate “obscenity, without
re superintended. prior adversary hearing on the issue of the
State of Florida’s. obscenity statute and the State of Fidrida’s -
- muisance statutes, as aforesaid, to be unconstitutional on their.
face and/or as the same have. been unconstitutionally applied.
to the controlled. distribution of adult-type miaterials in a
hom-obtrusive manner by Plaintiff herein; and :
“¢ That a ‘Giichiip court be convened dale tis il
+issue a pennanent injunction restraining _ and enjoining — a.
; Defendants arid/or their agents, servants and/or employees ©
_ >. ‘and/or persons acting under their direction or control from -
‘continuing the fo ewing ‘unauthorized and unconstifutional
acts, to-wit: : / ee ¢
Ss
A. Enforcing or exXequtits State of Florida obscenity
Sat Section 847.011 et‘ seq. of the Florida Statutes ak
due notice to Plaintiff and providing for a judici
determination of obscenity vel’non of ee sought to
be seized and suppressed or the basis for arrest, and thén-only
under procedural safeguards -designed to assure adequate
| vindication of Plaintiff's Constitutional rights.
WS
“gf That judgment be rendered herein for: ining 3 in hind
ane
. &§
4° . 3: That -a dechapabony judgment “ rendered declarhig the |
A.
|
"acer against Defendants , Foster and Daffin, in their —
‘Capacity as Prosecuting Attorney of Bay County, Florida, and’
. oe 27
.* . Se
; | ‘Sheriff. of Bay County, Florida, respectively, iolatty and
séverally, in the amount of One Hundred ‘Wusand Dollars
. ($100, 000. 00); and . . .
6. That the Clerk ‘give notice, w certified aa at the
"time of Plaintiff's application for preliminary injunction, and .
complaint and‘ notice of hearing, to His Excellency, Claude W.
Kirk, Governor of the State of Florida, and The Honorable
Earl Faircloth, Attorney General of the State of Florida, as
‘such notice is poqeies by law; and
3 That Plaintiff have such other and further relief as
may be appropriate under the circumstances in _ case
‘together with costs. .
Reapéctinlly Abe
‘Paul Shimek, Jr. ~
Attorney for:Plaintiff.
- [fol. 23} * Affidavit (Omitted when printed)
1d
-
- [fol. 24] . 308
| In the Circuit Court, Fourteenth Ju icial
Circuit of the State of Florida,
- In and For me Comaty
- State of Florida, Plaintiff, :
—
Robert — . al.; Defendants.
COMPLAINT
Comes ‘NOW the plaintiff; STATE ‘OF FLORIDA, by
~ and through its undersigned County Prosecuting ‘Attomey,
a
a te se *
; .
and files this, its complaint, for an injunction and declaration
of rights against the defe: ndants, and states:
1. This action is sous and srdeocuted for the purpose .
of enjoining and abating a certain public nuisance as defined ~~
by Section 823.05, Florida Statutes, and as authorized by
Section 60.05, Florida Statutes.
7 | 7 se
2. The defendant, ROBERT MITCHUM, is the owner of .
‘a businéss known as THE BOOK MART and is the lessor or
¥ehtor of a certain portion of land and building located at 19
Harrison Avenue, Panama City, Florida, upon which the
= business known -as “The Book Mart” is carried on and
maintained; and the defendant, CLARENCE HOWARD.
. CANTEY and | DAVE BALLUE, is thé employee, agent or -
servant of Robert Mitchum, and operates, maintains, and
carries on the ‘business known as “The Book Mart” located at. .
19 Harrison Avenue, Panama City, Florida. That the said
business known as “The Book Mart”. has been* operated,
carried on and maintained at 19 Harrison Avenue, Panama
City, Florida [fol. page since shortly prior to February 28, 1970.
3. Since eet prior to ee 28, 1970, up rentt the
- present time, the defendants have been using, occupying and
maintaining the premises known as 19 Harrison Avenue,
Panama City, Florida, for the purpose of selling, distributing,
transmitting, or. offering to sell, distribute or transmit, or
having in their possession, custody or control with the intent _
‘to sell, distribute or transmit, obscene, lewd, lascivious, filthy,
indecent, immoral, sadistic, or masochistic:books, magazines, _
_ periodicals, pamphlets, newspapers, comic books, story papers, -
written or printed ‘story or article, writing, “paper, cards,
pictures, drawings, or photographs. :
Sita isa ible ecies ANG LRA ak A orion!
i" a
hc AR an ae a
i tanto TE thd bana
.
. 29
4. That | on the Sth bf dey of March, 1970, the. defendants
“sold the following named magazines, to—wit: SILK & SATIN;
PLAYMATES, Vol. No. 1, No. 1; PLAYMATES, Vol. 1, No.
' 2; DEBUTANTES, Vol. 1, No. 1; THE NEWLYWEDS, Vol. 1,
No. 1; SHOCKING INTERVIEWS, Vol. :1, No. 1; that on the
6th day of March, 1970, the defendants sold the magazine .
described as WILD SCREEN REVIEW, Vol. 1, No. 5; that on
March 19, 1970, the defendants sold the magazines described
"as “DOUBLE UP and «AUTOFELLATIO AND
-MASTURBATION; that on the 24th day of March, 1970, the
defendants sold the magazines described as: ROULETTE, Vol.
3, No. 4; THE SPECIAL, No. 4; A STUDY OF GROUP |
SEXUAL -PRACTICES, ILLUSTRATED CASE HISTORIES,
Vol. 1, No. 1; and the newspaper, SCREW, ‘-FHE SEX
REVIEW, No. 24; that ‘on March’. 27, .1970,. the defendants
‘sold the magazines; DREAM BOY, No. 1; ESOTERIA, No.
10, and SIREN. .
5. That all of the aforesaid books and magazines depict
and portray » ‘nude males and females. engaged in lewd,
- lascivious, filthy and indecent sexual acts, and prominently
exposing © and displaying the genitalia and engaging in
_ unnatural “sex acts or suggested ‘unnatural sex acts, or
. homosexual acts. or supgested “homosexual -acts. The written |
_ and printed matter, if any, in all of the aforesaid magazines —
and newspapers is devoted predominently to describing
natural, {fol.26] unnatural, homosexual, incestuous and perverted
sexual activities by constant and repeated usage of four-letter
words of the filthiest and most vulgar kind. All of the .
aforesaid material is devoted predominantly, if not entirely, to .
the presentation and exploitation of illicit sex and passion and .
immorality to such an extent that to the average. person,
applying contemporary community standards, the dominent
theme of the material depicted and portrayed therein, taken
as a whole, ‘appeals to the prurient interest.
~
&
® *
6. “All of the sales alleged in pacueeanh .4 above were |
made by the defendants. at 19 Harrison Avenue, Panama City, _
Florida, and in addition thereto, plaintiff.aspon information
and belief. alleges that. the defendants between February 28,
1970 and the date of this complaint have sold numerous |
| other magazines from 19 Harrison Avenue, Panama City,
Florida, ‘the . names of most of. which are unknown to
plaintiff. - However, plaintiff upon information and. belief
. alleges that the said magazines were and are of the nature,
_ kind and. content as alleged in paragraph 5 above.
7. Plaintiff upon information and belief, alleges that the
: defendants have stored and displayed for sale at 19 Harrison -
Avenue, Panama City, Florida, various and numerous other.
books, -magazines, periodicals, pamphlets, newspapers, ‘comic
books, story papers, written or printed story, article, writing,
paper, card, pictures, drawings or photographs of the kind and
nature and content described in paragraphs 3 and ‘5 ‘above. -
That’ all of the -above described material is held by the
defendants for sale at 19 Harrisgn Avenue, Panama City,
- Florida and‘ unless enjoined by Court-they will sell said
_ material. That a subpoena .duces tecum should . be issued |
against the defendants requiring them to produce before this
Court at such time and-place as this Court may require, one
copy of each of thé books, magazinés; periodicals, pamphlets,
newspapers, comic books, story papers, written or printed.
story or article, writing, paper, card, picture, drawing, or
[fol. 27] photograph located on the premise of 19 Harrison
Avenue, Panama City, Florida so that. this court - may
_ make ‘an. inquiry into the nature ad~content ‘of said
~ materials. .
8. Plaintiff alleges that ‘the activities of the defendants at
19 — nee, —— City, Florida as above alleged
>.
a
have caused and will continue to cause. and result in -
immediate and irreparable harm and damage.-to the morals,
welfare and safety of the people of. the State of. Florida; and
that the present activity at 19 Harrison Avenue, Panama City,
Florida has caused arid. _ continues to cause immediate and 7
irreparable. harm and damage to the morals, welfare and safety
of the local communities -in- proximity to 19 diab Avenue,
Panama ay I Florida.
9. That the activities of the defendants at 19 Harrison
_ Avenue, Panama’ City, Florida ‘violate 847.011 Florida
Statutes and in addition thereto constitute a nuisance to the ~
people of the State of Florida under Chapter 823. Florida
_ Statutes for the following reasons:
A. Places where the laws: of the State. of Florida are
being violated and ‘buildings in which acts and conduct are
engaged in: which are manifestly injurious to‘ the morals and —
-Mmanners of the people are a nuisance. Such injury to the ©
“public morals is manifest from the defendants. acts and |
conduct in. selling, transmitting, offering: to sell or transmit
and exhibiting the materials described in paragraphs 3 and 5
above which are predominantly devoted to the presentation or
portrayal either by photographs © or - _ written, word of
&xaggerated attention to the genitalia, ‘unnatural sex acts or
suggested unnatural sex acts or homosexual acts or suggested
3 homosexua] acts, acts of incest and other perverted sex. acts
constitute conduct’ which degrade the’ sex function’ and is
contrary to good morals and public decency in that it is.
injurious to the overriding public interest and a strong family
__ Telationship as reflected by the laws of the. State of Florida
which in the furtherance of good morals and public decency
has confined the sex function to men{fol. 28] and women: of
certain maturity who are united in a permanent sexual —
relationship.
s
_.10. That the conduct and activities of the defendants as
above alleged all occurred at 19 Harrison Avenue, Panama
City, Florida, and is detrimental to the -public good and to |
the common welfare; such. acts are offensive to public”
decency, morals, peace and health and constitutea nuisance *
‘which is subject to abatement under Chapter 60, Florida
Statutes and should forthwith. be enjoined and abated; and ©
unless enjoined by the Court, the defendants, and. each of.
them by themselves or through their agents and
representatives will continue to carry on the, activity “above
. alleged at 19 Harrison Avenue, Panama a City, Florida.
11. That. the common theme and general feputation ‘of
‘the building and premises known as 19 Harrison ‘Avenue,
- Panama City, Florida, is that it is a place kept, conducted and
maintained for the purpose of selling and offering. for sale,
1 material Geactibed in Pee 3 and 5 above. °
- .®
12. ‘That. t plaintif is without an adequate remedy at. law:
13. That this Court should motein ‘pariediction: of - this
cause upon final hearing to enter such further and additional -
orders as the circumstances might require.
P - WHEREFORE, plaintiff prays:
A. That this court ‘make -a Siletiaimasi, as . to ‘the
o -nature and content of the magazines ‘specifically ‘described
- above, including those which may be brought before the.
Court pursuant to a subpoena duces. tecum except those
_-Magazines alleged to have been purchased on the 5th day of
_ March, 1970 and the 24th day of March, 1970 in ieee 4
of plaintiff's complaint.
B. That a ‘temporary. indeniction issue without bond
against the defendants _ each of them until further order ‘of —
Tae Sen
<% *
nS «
this Court; from’ continuing ‘such nuisance and tei removing :
-Or in any way interfering. ‘with or mutilating the furniture,
_ fixtures and movable property [fol. 29) including inventory
used in the conduct of such nuisance as herein d d,
regardless of who the owner may ‘be or whethe he
owner had ‘notice of this action, and. that said —~
defendants be restrained from in any way or -manner,
personally or through any agent, _ ‘servant, tenant, -
' representative or employee, either directly or indirectly
in any manrier whatever from erecting, establishing,
continuing, “using, owning or ‘releasing said premises and
: building known ‘as 19 Harrison: Avenue, Panama City, Florida,
to further use for the activities and conduct alleged in this
a — } 2k Ew
| “C. That upon final acacia herein and as a_ part
thereof, a final judgment shall be made and entered abating.
said nuisance, which said order shall direct the Sheriff of. Bay
County, Florida to remove from the building and property
herein described all furniture, fixtures, and movable personal
. property of whatever kind or nture used in conducting and
maintaining said nuisance and directing the Sheriff to dispose
_ Of same in the manner ordered ‘by this Court and direct said
- Sheriff to effectually close the building and premises known
as 19 Harrison Avenue, Panama City, Florida against its use
_ for any purpose prohibited by order of this Court. That this _
Court grant the plaintiff such other and further relief in the .
premises - as may. be just and equitable and that all costs be
‘assessed against the defendants. That this Court _retain
jurisdiction for the purpose of entering such further. and °
additional orders as the circumstances might require. —
‘CLINTON E. FOSTER,
Prosecuting Attorney
[fol. 31]
In the Circuit Court, Fourteenth Judicial Circuit ©
Of the State of Florida, In and For Bay County . -
‘State of Florida, Plaintiff,
v.-
Robert Mitchum, Dave Balue, Clarence Howard
a Cantey, .a business known as The Book Mart, a
+. certain portion of land and building located at
*. 19 Harrison Avenue, Panama City, Florida, and all,
other persons claiming any right, title or interest
in the property affected by this action, , Defendants.
SUBPOENA DUCES aerial
STATE OF FLORIDA
FQ: Robert Mitchum, Dave Ballue, Clarence hiwaid raeey i
a business known as. THE BOOK MART, a certain |
portion of land and building located at 19 Harrison
Avenue, Panama’ City,. Florida, arid all other persons
‘claiming any. right, title or ‘interest, in the. Property
- affected by. this action: — ,
YOU ARE HEREBY COMMANDED to appear Saliee the a
Honorable Warren L. Fitzpatrick, Judge of said Court at the
_ Bay County Courthouse, Panama City, Fiprida, on the 3rd
_ day of April, 1970. at 1: :30 o’clock, P.M., to testify in the ‘
"above ‘styled cause and to have with you at said time and a
‘place the followirig:
A. One copy of each ‘Goak: magazine, - periodical, —
‘pamphlet,~ newspaper, comic book, story paper, ‘written or
printed story, article, writing, paper, card, picture, drawing or-
9 photograph located upon the premises of 19 Harrison ee
Rvs: Dory:
| as 7
. Panama City, Florida, at the ‘time this subpoena duces tecum
is served upon you.
If you fail to appear or have with you the above named
items, you, may be in oe ere of Court.
[fol..32] ,
the Court, you shall respond to this subpoena as directed.
-, You are subpoenaed to appear by the following attorneys,
‘isd ‘unless excused from this subpoena by these attorneys: or.
WITNESS my hand and the seal of this Court on ,
the 30th day of March, 1970.
; ’ BRUCECOLLINS,.
Clerk of Circuit Court ro
Bay. County, Florida Loe
_ By Mary Lou ‘Self, _
_ —Depirt}- C1 Clerk ~*~ _
: a \oow |
j ele Te,
j
. |
° _ eer whit a s# | ae seecape a a ean ae Di lita Se eee Ee
. [
[fol. 33] . perenne |
pact - SUMMONS |
5 " Inthe Circuit Court...
-{ . 14th Judicial Cireuit-of Florida,
! + . Bay County, Florida
ee 7 ~“Casé' No. 70-292.
\ . ‘ Division B-—J udge Fitzpatrick
\ ie " . 3 | 7
STATE OF FLORIDA, Plaintiff, ~ \.
\ | oh, 2 }
— ROBERT MITCHUM, DAVE BALLUE, et at: Bedendant\ : y
* . 7 :
‘THE STATE F FLORIDA: . :
To To All and Sina the Sheriffs of said State: |
3 “YOU ARE eK COMMANDED to. serve this .
‘summons and a copy \ of: the complaint or vetition in the
above _Styled--cause upon: the defendant Dave Ballue,
individually, and as Agent, for Robert Howard, rues a
non-resident. : ee: “
: Each. defendant is hereby” required to serve written
'». “defenses to said complaint or petition on Hon. Clinton E.
Foster, plaintiff's attorney, whose * address is 1610 Beck
- Avenue, Panama City, Florida, within 20 days after service if
| this summons upon you, exclusive of the day of service, and
P to file the ggiginal ‘of said- writtén defenses with the clerk of
said court either’ before ‘service on satan ty ater or
Pears threafter. If oh fail to do so, a kok will be
entered against you for the relief demanded in - complaint
or —
&
~ °
WITNESS my hand and the seal of said Court on March —
30, 1970.
Gee er | Sor tor again sc :
Beka se <5 As Clerk of Said Court -
ee ee
ee os 0.” “As Deputy Clesk = |.
In the Circuit Court,. Fourteenth Judicial Circuit
| - Of the State of Florida, In and For Bay County -
oe
ae State of Florida, Plaintiff, _
- a” . oe rs : : 7 “*,
Robert Mitchum, Dave Balue, Clarefice Howard
- Cantey, a business known ‘as The Book Mart, a |
_ certain portjon of land and building located at
; 19 Harrison Avenue, Panama City, Florida, and .
“all other persons claiming any right, title or
"interest in the praperty affected by this tion, -
nies 34]
oe. NOTICE oF HEARING
To: Robert. Mitchum; Dave Ballue, \Chdonce Sivas Cantey,
a business known as THE BOOK MART, a certain.
_ portion of land and building . located at 19 Harrison
you WiLL. PL
ete will call /on
ees a. temporary -injur
4 ~ Fitzpatrick I
>... «Panama City,
8 “hour of |: sit
be ON
i shy of
wih oc > tia phan) esi ENG
.
City, ‘Florida; and all other . piped:
a title or interest. in. the property |
{ASE TAKE’ NOTICE .that the
tion ; ‘béfore the Honorable Warren L.
his c rs at th ‘Bay County. Courthouse,
PLEASE BE GovERNED ACCORDINGLY.
5 an =~, a
- ee > ®
: eee Th - Clinton E. fist.
PR ig Se tig Prosecuting Attorney for. .
rn
oy Ant ‘ Rey bsamnanionans
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n for hearing plaintiff's application for.
rida on the 3rd day. of: April,. 1970 at. _
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39
~ In the Circuit Court, Fourteenth Judicial Circuit,
tS _._, in and For Bay County, Florida.
Case No.
State of Florida, Plaintiff,
. v. ; °
Robert. Mitchum, et al., Defendants.
~
~
‘This cause. came on before the Honorable th ee
'. Fitzpatrick, Circuit Judge of the ee
. Of Florida, in open court at. the Bay~ ounty
' - Courthouse, Panama City, Florida, on the 3rd day of
—
.
*. April, 1970,
(fol. 37] (The Court) Mr. Foster, you may proceed.’* *
. (Mr. Shimek) Your Honof, before Mr. Foster proceeds
may I make a couple of motions just for the record? ° .
- , (The Cast) Yes, sit: ag
~ (Mr. - Shimek) First of all, Your ‘Honor, I received his
‘complaint as soon as it.was placed in the mails and I received .
it on Wednesday byt at which time I ‘was before Judge Arnow
. which brought about the scheduling for today. Yesterday, tht
: 2nd,-I was in a jury trial; State versus Taylor, and I was
'. unable to respond in ‘writing. Of course I made my oral °
motion :for continuance based upon my being crammed in.my
schedule. As a’ matter. of fact, this. morning I was in Judge a
Masce’s Court at 9:00, ‘Court of Record ut 9:30, Judge
. Arnow at 10:30, until we called you. I sebmit —
¢“~
(The Court) You ae a partner; don’t you.
(Mr. Shimek) Yes, Your Honor, he was busy too. So on
‘the basis of that I. would move for a continuance ‘on the
’ grouhds. I. am not properly prepared. I- recognize the Court.
will proceed howevVvér in light of its. being a nuisance.
(The Court) Well, I couldn’t permit the people of Bay
ounty,to be subjected to something that should abated if
it. should because your schedule is tight, Counsel. Of course I .
will extend you every courtesy ‘I can.
(Mr. Shimek) Thank you, Judge. The second motion I
would make ‘would be a motion ([fol. 38] to quash the °
subpoena duces tecum. I would like to announce to the Court
and as an officer of the Court I understand it to be the law
that~ there. can be no suppression of publications that are °
- presumptively protected by the First Amendment until first
of all there.has been a judicial determination of obscenity of
those publications and I cite Delta Book’s eee copy of:
the case of which I would — :
a submit that the requiring of a jadicigl requirement, an\’
‘order, a subpoena duces tecum, requires a—is:a judicial
- seizure in the sense that it is required that I present them and -
I am held under contempt if I da not. I wguld suggest, and
not facetiously but in all candor, that these books that: are .
here today either have to be purchased by the State if they’re.
going to use them or that otherwise a judicial: seizure has
occurred and there has not been a judicial determination of.
obscenity prior to ye or judicial procedure.
| have riothing further: ‘in the sense of presenting - _
(The Court) | wonld iis that motion dade advisement.
pending the oe of the evidgnce by the State. _
(Mr. Shimek) Yes, sir. Will the" Court hear one more
motion?
(The Court) Yes.
[fol. 39] (Mr. Shimek) As the. Court asiee: it was filed in
Pensacola in Federal Court question as to whether or not the
statute. under which we’re proceeding today, the Nuisance
Statute, 823.05, and the accompanying Injunction Statute,
60.05, is constitutional as- applied and constitutional .on its
face.» | . °
.
_*
(The. —_— Did you put 847 in that same —
(Mr. Shimek) 847. 011. Of. course it’ s being — _
(The Court) ‘That contains an injunctive procedure in it
too.
(Mr. Shimek) Yes, Your Honor, and I understand ‘that
we’re here today to determine if a nuisance’ is to be abated on
a temporary — the Nuisance Statute is 823.05 and I’m raising
the . constitutionality of. that statute.. And I say that’s .
unconstitutional, Your Honor and I have about six reasons if
_ } may recite them, unless you —— me simply to read them
into the record later.
(The Court) I would like you to do that if you would
(Mr. Shimek) All right.
(The Court) 847 has almost identical provisions except it”
gives the owner more protection in the injunctive proceedings,
as fe Nuisance Section. I don’t know what section Counsel is
proceeding under. He quotes all of these . statutes I. just
mention that. Did you attack that section also i in your [fol. 40]
federal suit?
.
” __ (Mr. Shimek) Yes, Your ase We have already attacked
847.011. There are two three-judge courts sitting in’Pensacola _
and there are three others in the State of Florida.
(The Court) What. rm trying to be sure of is that ail the
Florida Statutes are under. attack that might apply to this
_—.
ec
*
42. 8
_ (Mr. Shimek) Oh no. There is only 823.05, which.is the
- Nuisance Statute, and 60.05, which accompanies. it by
injunction, is under attack only in one place. A three-judge
- ‘Federal Court out of Sarasota, I think it’s in the Tampa
Division, entitled. Robert Mitchum vs. Frank Schwab
(phonetic) — I-don’t have the number but it’s United States —
District Court. in the Middle District of Florida in the Tampa
Division. The three-judge court has already convened, Judge
Dyer presiding, « and the question. of the emer d of
~ . 823.05-is now being reviewed.
a
I will read into the record later, if it. please the Court, 7
_ have many reasons why we say it is unconstitutional. If you’ll :
permit it to be retroactive then I'll do it- later because of *
time.
a
(The Court) All right.
(Mr. Shimek) And we are bine son protest, Your’
Honor, because we haven’t had the time, we think the [fol. 41]
’- statutes unconstitutional. We think that the Court ought to
review: that matter first, and I’m ready to proceed under that .
. protest. Thank you, Salas.
(The Court) Will admit that you have the right to attack .
that statute without _ the chance of being prosecuted
under the first. g
> (Mr. Shitnek) Thank you, Judge.
(The Court) All right, Mr. Foster,.you may proceed,
(Mr. Foster) Mr. Shimek, can we stipulate that items — -
mentioned in Paragraph 4 of the complaint were sold on
premises of 19 Harrison Avenue by Mr. Cantley? “tbe
(Mr. Shimek) Are those’ items that there: ‘has: en. a
hearing to determine if there was cause to believe that there
eeueicabell:
(Mr. Foster) Most of shite ‘are.
; Sas
bie Sahl a nelibA PDasad wii nai ne areal
ea a a i Oa a aS
(Mr. Shimek) If you’ll announce to the Court those that .
have been some hearing on already, Ill stipulate with you.
Before Judge Mathis, total eight — six. publications? I would -
stipulate with ye.
. "(The , Court) Judge Arnow still have that question under
_, advisement or did he just deny the application?
7 (Mr. Shimek) Until Tuesday, Your Honor, it’s still under
advisement. However I have a rightto submit a [foi. 42] brief. —_-
‘ However at that time if-I have not and cannot find my proper
authorities he’ probably will deny my petition to amend. That
was the only question, whether or not the case there should
be amended to. bring in the governor and the attorney general
and whether or not this particular statute, 823.05 and 60.05 -
or .06 should brought into the same three-judge court which
presently is reviewing 847.011. (unintelligible words)— .
proceeds to follow new suit. on this question as opposed to -
- tying that three-judge court with more questions. Hé feels
that that court is already burdened with two cases and subject
.to ger brief he will withhold his ruling until icc de ..
: (The Court) I would like counsel, since I’m not familiar
with the history of this case other than what I have seen in
the newspaper to. advise. the Court in the record whether or
not any of the federal courts have placed any restraint —
- whatsoever on. the state courts im connection with this
— matter under consideratign. |
(Mr. Siimek) Yes, Your Honor, i’ Ss my ‘endetitendinig
that Judge Arnow has permitted Mr. Foster to do anything |
“that he wishes within the law except to have criminal trials. Is
_ that right? That’ S what my understanding i is. ee
' (Mr. reer if that is’ your uriderstanding, Mr. Shimek, ae
that’s an erroneous understanding. Judge. Arnow at this point
has ordéred_ me to—he’s entered no orders [fol. 43] against me.:
There is a nebulous understanding that no ‘criminal
" prosecutions, no criminal cases will be tried prior to June the
first of this. year, but I’m under no order and I am not
‘a committed.
44
l crhe Court) I do not want any conflict in jurisdiction.. I
-certairily don’t want to enter an order here eacuaide to
_ another court’s order. ° a
- (Mr. Shimek) Let me. caus the Court t precisely then hat .
came ‘about. |
"(The Court) That’ 's all right, I just waht your. assurance
that there will not be any conflict. There may be a conflict.
later, I understand that. But at: this point ‘we’ re under no .
restraint to proceed. .
(Mr. Shimek) No, we are not: under any. restraint at. this
_ particular proceeding. to <snmaeas .
“(The Court) All right. You mad ‘eiéiend..
(Mr. Foster) I don’t: propose ‘0 offer into ntibeatin all the
books that are involved in the criminal proceedings, but the
ones that I propose to submit for the Court’s consideration
- were the ones involved in the last criminal case made where
there was an-exparte hearing before the county judge for the
purpose of:determining whether or not there was probable
cause to believe. them nein ‘
‘Those’ are “Roulette”, cinco a Neier 4; “Especial”,
_ Number 4; and “A Study of Group Sex Practices [ fol. 44] -
Illustrated, ‘Com Histories,” Volume 1, Number s
_ ote (Me. Shisaek’ Is this the one where ion was an- -arrest
warrant, was that the sixth arrest? Me % ‘
_ (Mr. Foster) Itv was the last arrest.
(Mr. Shimek) Was the arrest of Mr. Cantley? . ,
(Mr. Foster) Right. |
(Mr. Shimek) Mr. Cantley is ‘oi: De you recognize the
ikea kaddpeaeing —a
45 a LX oH
| (Mr. Cantley) Which ones? The ones that were pufchased |
on Saturday night by policemen: were not invoived in the .
adversary hearing and the last three magazines and newspaper
that was purchased by you and the bailiff were not in the |
ee hearing. . tae e ad: oe
Mr, a If you ‘would be more specific, I would
permit — . ier ;
(The Court) Show. the ones you have in tiled to Cantley ;
a let him show —_ —".- Y
(Mr. Foater) I’ve. got a witness here that’ will testify to it.
| thought” we would save that much time. .
‘(The Courty All you’re aking is stipuation of whether or
not those were sold during the time covered’in the complaint? ©
(Mr. Foster) Those were purchased, correct? They. were
purchased. from you. These were the ones that we were before
‘Judge Mathis exparte for.
» [folk 45] (Mr. Shimek) (Exhibiting to Defendant Cantley) I- ©
will stipulate that these three magazines were purchased. at the a
Panama City Book. Mart. e
(The Court) They will be Exhibits 1; 2, wal 3. on
. (Mr. Foster) Your Honor, I want to. _ these ws
. (The Court) Deri the period eben by the poser
(Mr. Foster) I want to offer these for the Court’ s
: consideration and I don’t: want these specific magazines
admitted into evidence pettinse _— will also be —— in a~
criminal prosecution. :
- (The Court) Be agreeable with you to substitute copies? =
(Mr. Shimek) Your Honor, I would object. First of all —
46
- (The Court) Is there a siatiaaien reason for this particular
volume to be used in a particular case? Sey
(Mr. Shimek) I think that we “have ‘had an illegal seizure
_and I move for ‘the suppression of that evidence. If. he’s going
to offer it into evidence. If it’s going tagbe brought: before the
-Court -for any. reason I move that it be suppressed, and the
basis for the motion for suppression is that there was no prior -
judicial determination that these magazines are obscene. And
-- therefore they are not available tobe used for any purpose.
' And that would be the ‘bosis ‘of [fol. 46] sa motion to -
os Suppress.
ba
| Mr. Foster) Your Honor, these ‘Magazines were ites
“The Court) That was my understanding.
(Me: Foster) It jane -happened ‘that these magazines are ©
also being used as evidence in a criminal prosecution and I
" know: of ‘no. reason sey they, ene also be used as. s. evidence
in this case. : op aa “
(The Court) I don’t either. If you want them, ‘echoiaed
later on — = Ss aes:
(Mr. — We would like to offer them. _
(Mr. Shimek) I ot stipulate that these were purchased by
whom?
(Mr. Foster) By Willie Barfield.
- (Mr. Shimek) By Willie Barfield.
(Mr. Foster). Your ‘Honor, I’m going to ‘call several
witnesses and Mr. Shimek may ‘want these witnesses under the .
tule. Primarily all they’re going to testify to is the Purchase of
materials. Do you want them under the rule?”
(Mr.. Shimek) If you lee | to me that that’ s all
they’re going to testify to I will not invoke the tule. However?
“ @
of eile Sad QAM atthe rand nnany
Oe ee me a Ere ee ee awe
; City Police Department.
; 47
any iets that will testify to anything other a, a purchase
I would invoke me rule.
(Mr. Foster) ‘Let’ S ames the rule on Mr. fo 47}
Burroughs, Mr. McCauley, and Mr. Mathis.
(The Court) Those witnesses come forward, please. .
@ : : ; ;
(Mr. Foster) And Mr. Barfield. of a a ae
(The Court) The witnesses are instructed that you pan
remain ‘outside the hearing: of. the taking of the evidence in... ff
this cause. You must. not .talk about this case~ among fe :
yourselves or with any person other than one of the attorneys”
involved in the trial and then not in the-presence of any-other
party. You will be under these instructions until the case. is.
. finally concluded. Py go aah , a
(Rhine. ‘the witnesses retired from the courtroom. )
~ (Mr. Foster) 1 would like +0 have Mr. Burroughs.
(fol. 48]: BOBBY W. BURROUGHS
7 ‘ . —>-
, DIRECT EXAMINATION
By ar. Foster:
Q” ° Would you state your name and address, please. °'d | |
Bobby W. Burroughs, 606 East Fourth —_ Panama City, |
Florida. ies ; i ae
Q: What is your occupation. A. P'm a sergeant, Panama
Q. Are you familiar with the business known. as the
“Book: Mart” located at 19 Harrison Avenue, Panama City?-A.
Yes, I am: :
OQ. Have you: ever _ been ‘in that establishment? A. ou Ca
time, “yes, ‘Sir. - , ‘
- : ss
Q. Mr. Burroughs, I hand you three articles and ask you
can you tell us what they- are and identify them. A. This is
three books that I- purchased: from: this book, store at 19.
Harrison Avenue, at 5:30 P.M., on the, 19th of March, 1970.
QO. And ‘would you read us the title of! thoes. A. “Sun
Youth, “y Volume 1, Number Ss “Auto-fellatio and
Masturbation,” and, “Double. Up. og
rae iS How long. were you on the Book Mart: premises Mr.
_ Burroughs? [fol. 49] A. For approximately five minutes.
eM, Shim
Burroughs? A. 7% sir, I did.
(The Court) Who did you purchase them froin? S
~ (The Witness) The ee sitting down here in the "as
dark coat. :
-Q. (Mr. Foster cinitenisie’ Do you know his name? PS oe
don’t know 19 16% personally. Sah,
k) Cantley.
é -*
_(The Court) All right.
Q.: Did you <a rt those books on. the premises, Mr.
Q 1 said dia you an all the books that he had in si ae
a ATE bought these. three books on the premiees. i.
ase abt your. question.
o- But did you buy all the books that he. ‘had | Aisplayed
for sale? A. eae
Q. ae would you. describe the number of ada hea had ae
‘displayed for sale, Mr. Burroughs? A. It would be hard to say -
‘ how. many ‘books was in there. I think I would be safe’ in
he
saying that I could nothing like haul’ them off im my. pickup: Z
9. There were a ‘iad ‘number of books for [fol 50] sale?
A: os sir, a great number of. — Aare
4
49) : 3 o
2 Mr. iota generally what type of books were ng
\affered for/sale or available to display for sale? A. This is the ._
‘type book that pretty well generalizes as far as the big cover.
magazines goes, in _my opinion, in there. And there was
numerous what we call —. ‘ 1 he 7
pee Shimek). Objection, ae ae Honor. 1 move to a:
anything that he- gives as his opinion. Like only response to
the question as to his personal observation.
7 (The Court) ‘The objection is sustained,
(Mr. Foster) Your witness, Mr. Shimek
(Mr. Shimek) I have ‘no pera ee :
(The Court) Did you offer those in evidence?, -
(Mr. Foster) No, sir, but I will.” 2
(The Court) These are 4,5, and 6.
_ (Mr. - Foster) David Ballou. tein’ Your ‘Honor, Mr .
Ballou is orie of the Defendants and I call: him as an adverse
witness:
msi “CLAUDE D, BALLOU |
| DIRECT "EXAMINATION
es |
By Mer Fostef? : : oe
~\
) Oo Mr. ‘Siado would you state your } name and residence,
please. A. ‘Name is C. D. -Ballou, Claude D. Ballou, and I'm
living in the apartments, J-202. I’m not even familiar — let me
check the apartment name. (Referring to — Landmark
Apartments. ° .
Q. What is four occupation? A. Pm a book stor aihek
Q. And ‘it re do you work? A. I’ve ata working for the
past. week at | Harrison Avenue. — ae
-
.Q. The Book Mart? A. The Book Mart, es, sit.
ve Se ors Sot
a. In the response to ~~
dfternoon? A. I.
Q. “Dia you bring a a copy. of each magazine. on. the. book ;
store premises as ditected by the subpoena ducts tecum? [fol
52] A. I brought what -I >was: instructed. to bring by ‘my
lawyer. He ‘said bring what I can carry since as you "ve
admitted ‘there is. numerous copies of all types of magazines
— I brought the. presentations lof these as best I could. a
Q. And is the, reason that you did not bring ‘a copy of -
. each one of. them was on the advice of your counsel? A. This
‘ . too, yes, ee since I didn’t have : a truck to haul them in.:
Honor?
Ss «
(The Court) Clinton, I don’t believe ‘you ‘knew sbout it..
“Mr. Ballou called Pet ts the.
week in connection with having to: bring eyerything t and
I told him ftiat for the purposes of this hearing that I didn’t
- feel that we would: require that everything in the book store.
be. brought. On a temporary hearing of course. you" re not
required to prove your case conclusively as. you are on final
bos hearing. So for that reason’ I may be myself respdnsible. for
“i but if it ‘is for tis own h pratection: because when a
_ not having the witness produce a,copy of everything jin his .
. Store. It would be: eee: aaueertad ‘short notice, and
this type OF thing.
(Mr. Foster) Yes, sir, it” would be ‘extremely burd
constitutional Fehiaete will: be protected. “And that is the reason.
that I had the subpoena. duces tecum L eeety a copy of each |
_- Magazine. ea ; ks
. na ik eae we :
. bring certain mapntines before - Court®this
did, oe cat: eas Co. Fin ee
. (Mr. Shi k) May 1 interrupt just for" ‘the record, Your cy
‘ Be wae rats <a ? poet
. ¥ ° . - < Re p a : . .
. ‘ Sa »°** is 5 -
* . ‘ : a 7 Riedie 17 _ .
. est : ’ ‘ : te on * ‘ .
iN . ‘ “ 3 ae : : . : .
ESS oe : a eee Bel P SS Ae
: “i: 9 ; Ss i oa
‘ o
°
poe
ea (The Court) ‘You’ “have: protected, him in ‘that respect
adequately. ae ne 3
2. (Mr. Foster odimaaas Mir. Bellon, what’ ‘ims
- magazine ot book does the Book Mart sell with reference*to
"the nature or content of the oo or books? .
(Mr. Shimek) Your Honor,’ I wosld suggest’ that the books _
speaks for themselves. Any comments by ‘the person who sells
~—~them or distributes them without : opportunity to. talk. to
_, Solipet as to proper responses can lead to disastrous results.
' For ‘instance, it” maybe a Fifth ent problem which |
haven’t had an opportunity to talk
_ him until just this moment. He may¥very. “well say, “Yes, this |
“> affronts community _—-: or it is offensive or. “it—is ds .-
enna : =
. (The Court Are you ‘making a speech for the benefit of :
_. the witness? - : ; ane
er + *
; and I’ve never met .~_
(Mr. Shimek) No, no, Your’ Honor, Tm sorry. But ‘the 2
* point- is he. should not be required to respond: The. best .
‘vidence is the material themselves and other witnesses. I
would invoke the Fifth Amendment. for his protection —
_ because I’ve never talked to him and I have no idea as to his
expertise { fol. 54] on giving an —
‘(The Court) The objection i is ‘ated. ye
-
@Q. (Mr. Foster continuing) Mi. Ballou, on: nature to
content, what kind of books or magazines do you’ sell at the ©
- Book Mart? A. You: re axing for an opinion, sir? eke
aS -Q: No, sir, rin ‘ane you for — to Sistah dais’ What
_.”’ kind of material is it? A. I really am not qualified to do so, -
‘Sir, because “I don’t read the material. I haven't Tead the «>
: material. bee :
Q: Some of it you can tell the contents of it ‘by the title ;
and the covers, can’t you, Mr. Ballou? A. It doesn’t suggest. -
— to.me other than. it’s adult type literature, sir. ;
° ae a . BEN Sa : ® e
: . > 2
ry : ye 2 " .
° “ 4
: -
ee I ho shee ; ‘ a ae
-Q. Mr.: Ballou,. _ this is.a magazine .entitled “Femme and -
Figure”, Number. 18. ‘Is this‘ ene-of the magazines that you .
6 brought to Court this afternoon in: response to the ee:
- duces tong? A. From all SPpearANCes, yes; sir. ‘
fe ina bolas 0s tend es ata hats Sa
you to look at them. I'll identify them, then when we —-
identifying: them I will. ask’ you a similar question.
; “Escape”? cet Escape, Number Age (Witness examining)
Q “Girl Friend,. Number I,” {fol 591 A (Examining) a
Qe “Jay Bird Soene, ‘Number 3.” A. (Examining) mane
e The Jay Bird Ero, Number 2.” A. (Examining)
ee Q. “Garter Girls, Volume 3, Number 6.” A. (Examining)
°: eS “Scandia, Number 10" A. (Examining) °
we SE a9 Men at Home and Play.” ‘. (Examining)
ed 2 “Informal.” A. (Exainining) ree as
Qarotiee, Volume’ 1, Nomber 1." A. (Examining:
= “Kitty, Rumber i; A. (Examining) .
~ | Q “Aloha, Volume L, Number 1: A. . (Examining)
1 “Sisters.” A: (Examining)
Q.. “Beaver Colorama, Volume l, Number ge: >
(Examining) * oe
-.Q “Vision, Number 2.” A. . (Examining) Ra gr i eee
- [fol 56] Q. “Twin-Pak.” A. (Examining) er
‘ Q. “New Cover Girl” A. (Examining)
8 “Exclusive Encores” A. (Examining)
2 And “Exciting” A (Examining a fe
@. Did you. produce all thoes books. pute. to the
subpoena’ duces ‘téoum?- A. They look like the ones, yes, sir. I
- picked the magazines at random to meet what was in the -
store, so — 4 ‘
.Q. Were you told any particular titles to: ick? re No, sir,
.. Iewasn’t. He said pick a —t and . vent — the
: shelves. at random. . . | Se
~Q. You sell at this store heres magazines of: the
2 pictorial type .such as “‘Twin-Pak” that I’m holding before _
you? “A. That looks like one of the copies, yes, sit - |
5 } pee
eee | Fig 9 OP pee SAGER SEI
: Q. Do you also sell paperback book ‘materift, What we
commonly call a paperback book? A. Yes. - oe
Q Is ‘the vast majority ‘at the ‘ite Yhat [fol 57] you
ae sell in your store and have displayed for sale in-your store of |
_ the type of the “Twin-Pak”. that I have. showed you a ~
-- moment ago? A. (Examining)
PS WR. -Q. ~Of a ae a ce SOP ee
SX Se ee ane eens <a NE aes | x
~ the store, yes, sit. 7
@. And where exactly, in the ‘store “ai you oe ‘these
- ‘magazines from? A. Well, you mean how did. I -. a
— the literature?
_, _ Picking —
Q. What : ‘shelves? > A. The ahslves these magazines came
| from were on the right of the store as you go in.
o
Qo!
Q. And is that a display. rack? A. Yes, sit... %
Q. Were’ these magazines on an: ait vila for the
purpose of selling them? A. They were on display for the’
‘once sabamva Soma . Vara o =a
ree ee .
Q. “St A. I just went devin: the shelves at randém
e:
/
| ae 3 that week os me sea azines to’
eS customers that came into the
-, Clerk in the store for the past week. -
se 4
».-
aS |. Have you sok magazin’ sir to the type that I
have named, and have identified as being yroguced |
pursuant to the subp ena? A. I would say so, yes, sir.
a Q. How ‘mally would you. estimate that pstaas have sold,
. Me Ballou? A. I have no idea; sir. Ow ez:
_ the past week? A. I do not, not offhand. I could probably ~
. total: them and tell ‘you.
: ee 3 we
Q: Do you —_ ‘what your gross receipts average ‘for a
: oat I really don’t. | a
aa: Do you-lthow whettier or not you sill more or less
Ho of these ee + Oe: Seen | ‘aeh a
number of. magazines that he might | ll, presumptively taken
material, there_having been no determination of something
{fol 59}. obscene, I think it has no relevance. He. could sell
fe he could sell 200. I fail to see how it-could be material
a and relevant and move that it be stricken-on that ground.
ce _ (The Court) They're all ‘offered for sale; are they not, ”
: Counsel? -
> tite JB ae
. ; ae ee ra =
<<
aes ~ Sik) Yo, si, they're al available.
_ (The Court) 1 I don’t thick woucen:ab any: further, Mr.
Oe. Foster) Your. Honor, I move -the Court that these
"magazines be introduced in evidence,
8? A. gene “vi yo bean. the :
Q. Bo yun bebe: ni out pebeeaieabiaaskeeer hoon. ioe
*
-
e@
ae oe ols Lanisan be he eas tn ea = 2
-submit that it is not admissible in evidence for any purpose as eta
a es
* peoperly, procured. | |
: (The: Court) ‘The: siotion aN denied. Does‘ ‘Counsel
object. if we mark ‘all these as one coempnetie asa! They
| are identified in the record. .
Mr, Shimek) I have nO objection, Your ton
e “Cte Coutt) Save a lot of time and trouble.
| Z : “Qe: Foster) That's all. A Tehcaiee aie od - > a
(Mr. Shimek) Willow cota ans. a seat. |
(Mr. Foster) ‘Like to call Tom McAuley. —
ina 60] (The Court). Anca did. you: he
' Mr. Foster) 1 don't ety
" (The Witness) (Mr. Ballou) No, sit. |
(The Court) All right, take the stand again and we'll go
back :thantale Mt, janless.cotemeel: Wit agree thea t he be sworn a
_ and he testified — -
Pe;
(Mr. Shimek) I will aaa that what he testified ‘to
S eee a
_ (The Com): This agreeable with the witness? :
a (The Witness Yes oo |
_ (The Cort) All ih. cat a winds wc es ee
[fol.61] THOMAS J. McAULEY. eral
oe pre, pia a : we
: ‘By Mr. Foster, Pees \ 2
we
2 Will you state scsi iesels alk oacealbiaas: A. Thomas”
eS “Meh. Ci of Flies, Panama City, Florida. t oe
Q. ‘Are you fabian? With: the ‘peienines lncepbd at 19°
Harrison Avenue, Panama sat known as the Book Mant? A. ew
Yes, Lam." ze | Py Splice eh
cai rea =
LQ, Have you ever been in the stabli
a ae is : |
\ + ‘ Nae? * é oS ese : Pp eon
. __Q*:On ‘how many occasioris? A. Probably stogether set
~~ “or ten occasions. ie as PEE S| EA fs ses
"Q. And fave you been in there in’ the store since
February 28, 19707-A. Oh yes » AR ase poke Bee ee Mt
a2
- Q How ‘many times‘have you becnt in since that- date if
know, Mr. McAuley? A. Eight or ten, approximately.
“Qt ant of rueéa tu: micelle = -what ta’ 19
\ Harrison Avenue used for? What. kind of business is carried on .
thee A. The name of the’ i is the Cis tee gem ee
" > Mart.” ae o 9: 2 -
: * “¢ .
[fol 62) Q. What kind of business s is conducted there? AS
i Weed pou eh ink Wl details tes eeeitn
being sold there? A: Well, the ones I’ve seen, and I’
most of them, are what I would consider to be o e or
Sl pornographic type books. Most of the— as you the. -
- . front door most of the wall on the right hand and the -
rear walls are covered with magazine types, most of the wall
On the left is eet with. what we > might term pan book’:
os aware of ‘the er. of
(Mr. Shimek)
ae gee me Beek neriet
- is the main street of town, approximately half a block.from." ~
Ae i ance i eupriigt amar ieghenar- anon itar
Has 9 preeepetata tad tet aes yh,
© @ And on-the magazine type, ‘what kind of magazines are ie
they? A. Magazines depicting people in all sorts’ of postures" :
and. ord and, rts, He — oes | indecent~poses.
*e. .
‘
<e "is dk se 6 iene ee
“McAuley, ‘or any similar to. those?’ A. I have. seen all. these ae
"previously and T've seen many similar to them. ee of
Q. Did you state your occupation? A. Chief of Police”
i 63] How Tong. ‘have you been in Panama City? A. ar
‘Sig June 27,1961.
ce ait ts ek ai ie By
< paleacigee nut cis
“2. Do you know whe
its——
yection, ‘You: Honor. Has no selneaice. ;
We all know it exists. We’ve admitted that. He's giving
5 a2 ee
- (The Court)’ You might ask him ° in ad to what rg Se
"location it the city is. What does it pose to the public — bi
‘Q (Mr. Féster continuing) Could you ‘ell. on when its
located, Mr. McAuley? A. Located 19 Harrison Avenue wiitch
the city hall. It’s approximately I would say about two and a
half blocks from the polite department. - weal Ee
34 Q: if you know, Mr. McAuley, tell us what the attitude
Book Mart. 71 ; , | +
(Me. ‘Shimek) - Otpectinn;: ‘Moiah teeeca, thane. ane.
indication that he knows. what that attitude is. He hasn't laid
i." connection with thg operation of the Book Mart in the last ;
Ps Se ee fi . Bee 88 3
~~ “shit 3 aoe
n=
" (The Court), ‘You'll have’ to. go. into it Cotnsel ‘How 3
many - people have you talked ‘to, 3 comm 64]:
ee oo ae
“(The Witness)-I would estimate that I have’ talked to or ae
have had people talk to me_ concerning that ‘operation .
' probably, oh, 150, maybe 175 people'all together?
| (he Couit) Over hat period of time? 8
(The Wie) Over the past feo six wks, 1 would ;
_ say.
The Court) Aus sake location i in the community or ae
"were they scattered fhroughout the community?” =. ee
(the Witness) Just all kinds of etay Your Desc: Not™ es
Be 8 gieogme sng soy Ammer aed poeta eres dean :
., People, of-all aese Naas colors. . :
°
he Capit) All right, COunsel, you _— proceed.
a . Foster continuing) Did these people express to ———>
yeu - attitudes, or their — ‘owned the Rock Mart or
its activities? « | bt ae Ais
(Mi. Shimek) Your Honor, ‘I would pnjenice thc penn
of its. being hearsay. People don’t like something, whether it’s
_; Communist or murder, the mere fact they don’t like it or —
* somebody. talks about” it is strictly hearsay and has nothing to
er ee ee oa es
"(The Court) The objection ia overruled. ae ba eee
- [fol. 65] (The Wiest) Yeu, they have Many of them. In : .
ee nich ect task as "t want it, they want
aay tet cas SS He i eee help, ao
-- so forth, — eis : 7
“ Q. (Mr. Foster contimuind) Did they state ter reasons” oe
_ A. Sure-they state their‘reasons.. ste , }
Ne -Q. What remons do: they site? A. Many of them
express. | fe ay eee pores
(Mr. “ Shimek) " wathcait being cette’ and mt bes the.
" Court’s pardon, I object to “violently”.
3 | (The om). You have a ‘continuing, objection to his |
ee Mer. ‘Shimek) Thank yu: “Let the" recon) reflect a
(The: Witnéss) Many. of the 1 reasons s that were stated to me
‘ga rot antae pat Sr a
ved community in general. Ps Ae ahah Z Asa
Q (Mr. Foster CES See caciiilg, ise.
activity taken placé in the immediate proximity of (fol. vel
the Book Mart, Mr. ‘McAuley? A. Yes, several: things.
Oe ee an gor Gk tear eo eat Gan deat
‘across the ‘street. that has been there for some two weeks now
* with quite extensive attendance to. that,’ almost nightly. :
-*Secondly, there are almost daily pickets in. that area.
oo displaying signs saying Bean Mothers” or “Concerned °
Parents”.. Thirdly, . with regard to the: establishment itself
‘we've had «some gis bombs, bottled® gas, gasoline bombs, .
thrown: into the building which fortunately didn’t explode.
, Tie ee ame oo ee eae et Neve Hommes: é \.
i ae McAuley, “o_you. know. of : this’ comminity’s |
Se) es See ee Oe | oS
ae -Q. [And whitt.is the basis of this? “A. The basis of it would -
be the years that I’ve been here, the number of people that.’
Fm acquainted with. sept ed Je agers caine
os Poe ee ee to i think, ‘ta. make @ estimate evaluation a
a oe ate . |
“450° lq. Gémeraity, Mr: sickakey: would ou say thatthe books :
eS a Re ed he
-
(Mr. Shimek) Objection as being leading, Yur Honor.
“AThe Court) Sustained.
0. (Mr. Foster continuing) Mr. Wicker’ are fot 67] the:
>. books and. merchandise being sold at the Book Mart at. 19.
’ Harrison Avenue, - Panama City, Florida, above or below the
standards of ‘the community general as to morality, and
“decency? A.: Far below their standard as to, mney and
. decency. = acre “
> tle "ee ‘ ya .
° _ .
Mr. Foster) Your Withess. esc. a! Be 2
By Me Shimek: fps eat Nt as = &
| : Q. Chief, you . talk pea ‘children, have dard ever seen a.
ere child in that place? “Yes or no. A. No.
@. You" ve ‘ned —— police constantly s survey it, haven’ t
you. AT haent had my pice constantly vey, ve had
ay cred survey quite a bit of the time.
x “Q. Most of the tinie that it's.open. A. Most of the time,
2, All tet, have they ever tunedin report that «chil x
—_ gone i in there. and | neanctaing! A. ert kane
=”? *
F..
weets Sie Lor quagsrarerete en
statement nt toe? (OL 6 68]. Aet.believe it to be so.
“oO Has there been ninyoide that: ver reported to you that
_ their privacy for some reason has been tee by Mr.
~ Cantey or by Me Ballou? A. No. ead
ve
=
matetial\, forcing them to buy, requesting them.to buy, or
annoying g them to vy, or -anything like that? A Not to my 23
a ——
s
ANG a ; Me
. Now, you say there’ sa — of ‘secigit in sxteiiilincs out:_
: : there, -Fhis is a religious asad I take it, a revival. me that what
you stated? A. Yes. Shah |
ot
Boe ‘Would Jou recone it; :sir, as an expression of the
: First ‘Amendment, right © — - sort k - x
a - “Yes, 1 _ so,
ee es leeed ee, WY giedange al aed forced: :
upon “any person .in this county to your knowledge This _
9
Q: Why. ‘haven’ t you done + something about ‘the. religious :
2. ‘What - did he want to do? { fol: 691 A. To conduct a
revival. -
Q. ‘All right, gabled A: At the comer of Beach Drive
and Harrison Avenue.
2
| Q. scale a yet thes oie Beenie W's eee
he.tald them when he would like to get started and he
wanted to know if there was anything that he had to‘do in
_ terms of applying f for a license or permit and so on. And then
he’ asked for the more. or less asked for. the — from
the commission and it was granted. .
a Fine: So what'¢/hie- hame? A. Réverend =
0. So the city ranted Reverend Hunt a license, didn’ aN 3
a A. No. a
Q. Or ‘a aaah a oe permit.. A. ‘They gave .
| permission for him to conduet such « evi.
62. |
a
Q: Is ita temporary permit? ] mean 20 day = A.
No, actually there was no time limit specified. , .
Q. Oh, an unlimited permit, A. Um hum.
: ‘[fol: 70) Q. Is that right? A. 1 don’t recall any time limit
- being specified. |
ue Q Are you aware that this same city gave the book. store ;
_ “an unlimited license? A. I don’t think this. city gave this book
store an unlimited license. eke
ee Do they have ‘limited license? A. I think anyboly hes
a limited license.
a All right. A. Depends 0 on what he does with it. *
Si, a Do you have any knowledge as to ‘ehadiee or not that
license has been revoked? A. It nes — revoked.
. vQ.. And do you. know what the reason for its being :
: revoked was? A. ee.
: a. What was it? A. Well, first hen are two reasoins. First
of all, he’s running an illegal operation, or it was considered ~
‘ that he was running an illegal operation. ‘Secondly: — I want
- to amswer your question if you'll let me. Secondly, the man
‘ obtained a license under false pretenses in the first place. el
cae Wea.
we Now have you made charges nina ‘him to ‘verify your
accusations in this Court pOmny [fol. 71) A. Yes. ) *
| } es e 3
: Q. You have filed citadel proceedings or municipal.
_ proceedings charging him with the fraudulent procuring.of a
license? A. No. I have not.
. ~ -Q. Has anyone? A. Not to this date.
Q: As a siatier of fact, the license was yanked by. one of
- the Defendants in the case in the Federal Court. Isn’t that so?
It appeared in Tallahassee? A. Mr. Wilxoc, that’s « correct.
oy -4
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‘.« e . e .~) ry ’
: . °
4 a ; .
‘ : . e
reel ae
©. That under the instructions or the city manager demic
»mayor or one of the —. officials. Isn’t: that correct? A.
That's. correct. . :
a kat the reason was they. iin the books that were
is were Obscene. As. that correct? A: That’s part of the
reason raw
~ You ails sibigincatty been edviead that every: bit of
*.that material has been returned because there was no
~ judicially supervised apron: hearing, isn t that axe 4. ~
that again? Sy :
Q. All this material was returned and he was permitted to,
continue business because there had been no hearing as to the’ a
' seizures and as to the arrest..Isn’t that so. [fol. 72} A. Well, —
not exactly, no. That’s not exactly so. The reason the
‘material was returned was because of the attorneys that the
. city has employed thought it advisable. — it best to do. ;
so. We a their — :
Q. Would you sists iptveddije if the Court said it would |
¢ issue an injunction if they didn’t? As.The Court didn’t tell.me _
% anything like that. I don’t know. v. Maybe they ‘did...
Q. Now in. any of these magazines ioe you ‘seen os ;
showing: sexual activity? A. I ont see any sexual coritact, if ~
that’s what you. mean, but— . -
.. Q. All right — A. rs me finish. I ine plenty Se sitagnit
sexual activity about to take place, “just having taken panes,
and I see ‘Plenty: +o: indicate oe <7 .
“e
“ - °Q. What do you mean “perversion”? A. ‘I mean acts of
— for instance. »:. ; 77s
Q. What do you mean hs “fellatio ”°? A. I mean a man’s
_ Penis being placed into a woman’s mouth. oo |
me) ~ hag ib ah orem
on a woman.
Spa tester ecm j vee
_ 64
Q. All right. [fol. 73) A. Anions other things.
Q. Let’s: - stop right here. Vavasion you’ve Pea
_ particularly fellatio and you're talking about cunnilingus and
_. the oral genital contact. That’s what you’re saying, isn’t it. A.
“3 ‘When a! ’s displayed. like this, that’s exactly what I’m saying.
@ And do you have such oral genital cnatactt Let me see -
it. A..I didn’t say you had contact. I said about to. take nec
or appearing to just having taken: a”
* Q. Isn’t this really a conclusion on your part; sir? A. Yes, .
it is 4.conclusion.
Q. It might very well be sanctly what it Daas a picture
of the genitalia? A. No. ©
Q. "Or with something else. «A. You asked me if it was a
conclusion -. it is, on my part. .
‘Q. All ‘right. Now, the picketing that? Ss ‘going on down .
there, you recognize that also as a a of expression,
-.° don’t you. A. Yes. ose — rN
Q. Now, you’re not ssilichiting to this Cont [fol. 74] that
because people who are exercising their right of picketing,
‘ because people. who -are exercising their right to have a revival
that this suddenly creates such -a situation that the man
'. exercising his rights to sell. material is creating the. nuisance,
are you? A. (No sesciar nade
Q. Which one is creating the nuisance? The picketing, the
| _- revival, or the selling? A. It's pretty obvious.
Q. What.is it? Tell me. A. Were it not for ‘the book store
. being ‘there. you and_I both know that the other. two would
7 probably not be taking place.’ ¥ : . 3
Q. ia Sk ened. Se Ge hin 1 Gs & $0 sdaweee ox: a
extricate one of the three, namely the book store. Isn't that
Tight? A. — the book. store. 4
os yea § has ae ‘\ rele
, Q--And/that’s what you want to do, isn’t it? i. ‘Yes, Ldo.
how oe, : : ey ata
Q. And you baven’t bien able™ to 0 doit so faP%n a any - h
oo have you. A. Not so far. 4
iQ. Sir, would_you ‘say that many of these iscsi. depict a
collection - of. young. women demonstrating clearly their
genitalia expdsed? [fol. 75] A. ThaP3 part of what’ they.
- display. Some of them, not exactly young women. Some of :
them are fairly young, some of — are not so young. os
X
@. .Would you ‘say that the camera is focused searchingly :
on the rectal or the penis or, the ‘genital, area? A. ‘Yes, =m
; instances it is. fee as eas
- Q. Add you consider this obscene. A. _ Yes, I do: ;
@. What I’m concemed about: sir, is what you , a
obscene and whether or: not, you’re able to be in a position to
/. tell this Court what is obscene: Let me read to you from the ~
Supreme Court opinion which. I have just already asked you.
And ask. you if .you’ve heard about this. This is Judge —_.--
‘Hayniesworfh speaking and he says that—- Niele <a
"ll. Postel) “Yous ‘Hamat, 1° obiect ito” this as - of
questioning. The Supreme Court decisions speak for
‘themselves. © trea Recess.
(The Court) The objection. is sustained. Don’t argue your ._
case, Counsel, in the guise of gio mesgae of the witness. _ _
(Mr. Shimek) Okay. . i Pe we
| Your tionor, I would move to strike’ the testimony of this’
witness as on the grounds that everything he has stated as far
as standards are concerned are hearsay. There is no proper
"predicate: laid that’ in. fact knows what the [fol 76]
standard -is and I mé@4n. a statewide standard ora national
standard because what we have here it is a First Amendment,
an amendment ‘o° the constitution of national — and *
pinee
<a
EE rep seinen, Sadiaiateacaitdeiea a i: taadieiidiiaesia wae Hateanenieitidie aio
:
We fe :
66
- there’s no. indication that he has any idea what the standards
of the community, namely the national or the, state
community, is. Further, he has fot testified as to whether his *
-opinion arid based upon’ a predicate whether. or not“has a
“redeeming social value or any of thie other elements that are
egulent SoS Selitied tp telons en epee cop ba ghee to
detenuinn St spaatiing & in Teck Wenge Bees. 4
. Se:d secuiidsapapetetidhy ahcvle Woes cuales suetieaie, bs E
strikcen ‘as it would relate to the _— of — arnt...
. something is “obscene. :
* ;
(Mie Court) Have you finished your cross examination?
(Mr. Shimek) rm sorry. ‘Yes, Your Honor. ’
/ (The Court) All right. The motion ‘is denied. Call “your
next witness. | ,
: (Mr. Foster) Like ‘to call Mr. Cantey as an ps a
witness. -
(The Court) What you vant to prove by him? Counsel
might agree with you. ; fe
Gi Raid Seotcesten vate tien caplet anion
concerning whether or not there’ were any criminal .
proceedings pending against him in. Bay County accusing him
o 77}- selling Sbecene material. : :
-Qatr. Shimek) I = he —-~ But I think | that’s
: totally — Your Honor.
: (The Court) In the event it’s material you will agree that er
‘he could introduce copies of « record.
—— Shimek):Oh yes, certainly. eoccs t bee nce
adding geilt tay smocintion..Beon:ao:-comictinn of a crime:
(The Court) I'm going to ask Clinton ihe some of thees-
. Cases have not been tried, some of the criminal cases. :
until
ee
(Mr. Foster) Asking why they haven't been tried? nik
*.
“he Court) Just asa mattet of information.
(Mr. Foster) As a matter. ae idemmation, there 2 are tio: Be
» reasons, One is that the cases are of relatively recent origin. _
..One was made the 24th day of March, one was made the-
13th of March, one made the 28th day. of February. And in:
; the rformal ‘course of events these cases would not even be . :
, called up for trial until the Jatter- part of this month. _ Nee
The second ‘anita. ioitg een aie "io
: che y in the bosum of the federal court. The
» judge has ti atened to enjoin me if I proceeded, and up to
* this point y haven’t been put in the position of having to —
_ say — ; for trial. They probably won’t be set for-trial —
ys 14th of: April, which is a "weak from t next Tuesday. .
(utr. Shimek) May I add. one thing ay an “either {fol. 78]
the Court, Your Honor.. I represent to this Court that-if he
tries to try a case before 15th of June that an apace = _
issue from Judge Amow>
“(The Court) Well, this is up to— =. Z
ASS (Mr. “Shimek) Yes, sir, but you wanted to know Petes He 7
can’t do anything about it
- (The Court) I'm not families with this matter pe asI-
* Si vom from what - ve‘stenin the ‘newmpapets end that's:
the reason I was asking. sihs¥é .
= )
eee
(Mr. Shimek) I speak asan officer of the Court in
sopacuelinins, Cee exinrtisn ry | Li
(The Court) He agreed that you ‘may. introduce copies of
an ane Senet eae: Wii
(Mr. Shimek). If = announce what they are,
e°
(Tie Court) In the erent they/te material. :
_ (Mr. Shimek) Yes. ae
~
(The Court) Do. you have any farthe?. evidence to offer,
Counsel? Wigrnts
t , : ; 4
(Mr.. Fotter) With this reservation, Your Honor, I will rest >
and it is my understanding of the law that in cases of :
a . (The Court) Befc we get on the law let's find out if we
is ‘have any evidence f ‘the Defense: :
er. Shimek) No.
; (ur. Foster) 1 am resting on this basi, that [fol 79) it is
a Ce dressed Hats .
7 (The Court) ib baie w ehesic: Counsel, you're not going’.
to have any conditional rest. You're wlhies going to rest or oe
not ret. Fao ha ae
| Foster) I'l rest. Loses:
‘(The Court) Mr. Shimek, do you have any evidence? ae
et ae (Mr. Shimek) I have itthinas to sibint: Your Hosor.
ere iSonic
ee you've been having have briefed rather éxtensively the .
: question of what is and what is not appealing to the prurient.
interest, what ‘is and is not obscene. I don’t propose at this
time of day after haying worked a full schedule to sit here
and look through all. this stuff and render a decision
immediately. I: will render one by Monday morning. I would
- like it if you’re able at this time to give me copies of any
__ brief that you may have filed ‘elsewhere-defining those terms. -
ee eens the :
‘ 69
ere
Supreme Court of ‘the United. States, has made deeenn:
definitions. I’m familiar with any idea of what is obscene and
.what appeals to prurient interests but that is immaterial in
. this case and I would. like to know what the law is. If you’
eee ee :
e (Mr. Shimek) Your: ‘Honor, I happen | td. have a. couple of.
cases which I’ could leave with the Court, epee.
- [fol 80} (The Court) Do you Nie any, , Clinton? .
Mer, Foster) Yes.
. (The Court) All right, if se no further “est on
» don’t we go-into chambers and you can give mé- —
citations. Pll take the whole works with me, °° :
(Mr. Shimek), Your . ones,” will you permit me now to
wi into the record. as you indicated you would earlier ad
objection to the constitutionality? :
a " (The Court): Yes,’ rt. say thie Mr. pris if you
overlook anything detween now ‘and coe you can an it
OMe Shimek) Thank you, Judge.
Your Honor. | we object to the hearing on the- baiis that ,
‘Section 823.05. is. unconstitutional Dts face for the
a er eis -* a,
a
. The statute fails to: describe. the standards which. will
determine what “tends to annoy the community\or injure the
health of the community” ‘or what standards ‘det ie what.
will * hace siallnally: SPRIEE 0 sie minelly Sedans :
‘the poche as described in the statute.
.
¢
\ sch," ‘petaine oitiied 1 ths 5 aa ae :
provide ptaie parece Ses
Pre : : : |
- in that. it does pang for a prompt ‘jadicial declaration es
of what .a. .is and there are no provisions for -the
postponement of the abating itself [fol.. 81] prior to a final
Bae prsasr is determination of what is a nuisance resulting 1
: tecsmelin Sepeadare which chills the right. of :
: fee exp 1.
‘The procedure itself exerts ‘pieaideeilile inforoual pressure he
on .all retailers of presumptively - protected material to
withdraw. objectionable -material from their newstands and: this
constitutes a prior ‘restraint, which is inpermissible ‘under
Bentem Books, a case ‘which I will cite later, eee | Court
case. : ct ne é
(The Court) Are you going to submit all of thit? You .
going to read-the whole— - . eae
A
(Mr. Shimek) Just a page. Re eS
~The Court) Oh, al right.
-- (Mr. Shimek): Next, .the aeatieadl of nuisance in the —
statute does not include anywhere. thé requirement that
presumptively protected material be ‘obscene before it may be
enjoined.. The statute de ’t provide in the definition of
_ abating a nuisance invo presumptively protected material
_ as we have here today; that the material (1) must appeal to .
.the prurient ‘interests, (2) that it must be patently offensive,
thirdly beutterly without redeeming scoial value, (4) that” a
there must be evidence of ree or invasion of privacy or
children involved. :
“4 ” Next, the statute pianiiie no: imposition of restrictions
“upon the power of the police’ to arrest those . [fol.. 82]
colorably exercising First Amendment rights, te
|.’ Section 823.05 and Section 60.05 in. combination. Py. *
. singularly lends itself to a substantial number of impermissible ©
SPIE AR OPE A, Ia Ann Soe aOR: Pd
atid (4 i* r. »
. ' * c .
os : Tk se aE ee es o
overbreadth. The. area of impact of a hae statutes, Your
‘Honor, is the ‘ area. which. substantially involves First
- Amendment rights. The conduct. ‘which is.affected by these’ - ©
'. Statutes is to a substantial extent the kind of, expressive and -
associational behavior which at att. has a: en claim on
Reo Ameaimet eae eae .
. . . ; » ;
_ The tutaiee ‘in combination are * nniepédad. "by the ~.,
; availability of ‘judicial techniques for excising - -speedily and- -
: effectively the ‘Potential bad applications of an overbroad law.
Knd lastly, the statutes acting in ‘combination® fen.
“okt are ‘facially. vague and suffer from a lack of fair
- warning to the actors involved, suffers from lack of: adequate’
standards to guide ertforcement agents, fact _ fMders,- and
ae Courts on the question of what. is a nuisance P under these © sha
"That will bes my objection to the See re
; . (The. Court) 1 ‘think. you've: “covered e ‘grounds rather a:
adequately, papel, | oe ’
“eM, Shimek) Thank you.
‘
phat -
. (The: Court) Let’ s qetiee to’ Santioes and you. [fol B3y.. se
‘can give me > the authorities, is \ . feet
bd a) oe + ,
, nee eee eee BES elaacia ae
o* WE Biarieanoie ike om a - a ° 4
’ "“ HERE ENDED THE PROCEEDINGS | ee
‘ de » cP ‘ oe m ~
“fol 34) Certificate of Service (Onited in Printing)
ee 4 “4 3% 4 , : ¢ os ‘ > és
7 ae |
tro. 851. , 3 |
_ In the Circuit font, Fourteenth Judicial Circuit
Of the. State of Lacon 6 and For wey a
| (70-2928) yt
April 6, 1970, 8:37 A.M.
State of Florida, Plaintiff,
Sea ) ae ok i act
: Robert Mitchum, et al, Defendants. Skt aaa | 4
: _: ORDER =
THIS CAUSE “came on for ‘thiciling ‘upon: plaintiff's
application for a ‘temporary injunction pursuant to Chapter
60.05 « Florida Statutes, and thé Court has’ considered
Plaintiff's swom complaint, heard the testimony of plaintiff's
_ “27 witmesses, and has considered: the magazines received into
a een and: We hound spument.of conse for plaintiff and
ee - defendants'and finds as follows: — aa
c ~~ i, This Court has juriniiction of the subject matter.
: elie and. the :parties hereto except. the defendant,
. CLARENCE HOWARD CANTEY, on whom no return of
procéss has ‘been filed, however, the Court notes that the
Binge Cantey was present before the Court and therefore
Ae ocgr viags wha gate ae we
a That. during the tinid herein inaterial, the ecbadiias
ROBERT MIFCHUM, _was and is' the owner of the business e
known as “THE BOOK MART”, located and operated at 19
oe Ar. PE Hn, sa te detente,
~
CLARENCE HOWARD CANTEY’ ad DAVE BALLUE, are
employees, agents or servants of Robert Mitchum and operate,
-. maifitain or carry on The Book Mart business -at 19. Mectione. :
~ - Avenue, Panama City, Florida. .
pics 3. That “on March ae, “the — magazines 3
. AUTOFELLATIO AND hattseeneate DOUBLE UP and |
SUN YOUTH, :Vol. 1. No. 4, were sold. by the Book Mart at - ‘
19 Harrison. Avenue, Panama City, Florida; and that on March
24, 1970, the magazines ROULETTE, {fol. 86] ‘Vol. 3, No. 4;° .
THE SPECIAL, No. 4, and A STUDY. OF. GROUP" SEXUAL »
PRACTICES, ILLUSTRATED ‘CASE HISTORIES, Vol. 1, No.
1, were sold by The Book Mart at 19 Harrison Avenue, . :
o Panama City, Florida. nae ig 3
e bed f
ell is thos has curppee ek Dacia pies ns
ve six magazines. naméd above: and finds that said magazines
prominently and morbidly display ‘the pubic and anal area of -
_ the human body. ‘That said magazines show nude males and =a
|: females in a variety of suggestive positions with motbid
_-attention focused on the genitalia. They show nude males’and
_ females in -postures and positions which clearly and without _
doubt suggest that. . natural, unnatural, © perverted or
~- homosexual sex acts have or about to occur. The printed.
‘matter in these’ six magazines, if any, is ‘predominantly
-.. devoted to describing matters relating to sex by tlie constant ©
use of four-letter words of the most vile and vulgar variety,
_ describing sex acts, sex functions, ‘and the genitalia. The sex.
_ Me thew megetinn he cee, ans wt intinenetle, :
: $. The Court conchedie that each of. the above named ,
' Magazines are obscene; that their ‘dominant theme, when
taken as a whole appeals to prurient interest, in that their.
main and only attraction ary for those. who are perverted, or
are morbidly or abnormally curious about sex. The Court -
further concludes that. — have no redeeming social value . -
714 tee pee
‘ g*. ‘ 4 ‘
_ and are patently offensive because they affront contemporary
, community « standards’ relating to the description or .
pe cyeacrome of sexual matters. ;
6. On the basis of evidence submitted, this Court
concludes preliminarily. that ‘the defendants’ objective at 19
+ Harrison. Avenue, Panama City, Florida is the selling of
-- obscene, lewd and indecent material for profits (the court
notes - the -apparent exorbitant prices at which these
. publications are offered for sale); to paying ‘customers who
have a perverted, abnormal or morbid sexual curiousity and
2
‘erotic appetite. That the activities of the defendant at 19
’ Harrison [fol. 87]. Avenue, Panama City, Florida prima
_. facie, injurous and damaging to the morals ahd manners to
the people of the State of Florida: and are prima fatie -
subversive to public “order and decency and prima facie
constitute a public nuisance. Plaintiff has demonstrated prima ate
facie irreparable harm and damage. to the morals and ‘welfare
and safety of the people of the State of —
7. That toes enjoined by this + Court, the activities and.
, cclaitt of the. defendants at .19 Harrison Avenue, Panama
‘City, Florida will. continue and a aaa injunction should «
issue.
8. This Court . is mindful of the important ‘First.
Amendment rights of the defendants under the United States
Constitution and-for the protection of those rights, this cause
will-be given a top priority in this Court’s: schedule and a final
adjudication will be expedited in any manner the defendants
may reasonably. Tequest.. . |
. 9. It is upon consideration thereof. -
7 a a a ae en
ORDERED: .
1, That. the defendants, Robert Mitchum, Clarence
Howard Cantey and Dave Ballue and their agents, employees,
servants, graritees, assigns: and “SUCCESSOTS be, anf . they are
‘hereby -enjoined from operating and m any business
on the premise known as 19 Harrison -Ave ie, Panama City,
‘Florida and they are further enjoined from ‘removing any °
property or thing from or off the premise of 19 Harrison |
-Avenue, Panama City, Florida until Septhes order of this
Court.
= DONE and ordered: within tir Fourtecuth: Judicial Circuit
‘of the State of Sneite, this 6th day of April, 1970.
W. L. FITZPATRICK,
_ Circuit Judge
J /
| 16
[fol. 88] In The District Court of Appeal,
- First District, State of Florida
- Docket No. N-270. -
- . Robert Mitchum, et. al:, Appellants,
ine ; a
+ ~ State of Florida, Appellee. ~
' MOTION TO REVIEW AN ORDER DENYING |
, . MOTION FOR SUPERSEDEAS . oF
. Come now. the ‘Appellants, Robert ‘Mitchum, Dave Ballue,
Clarence Howard Cantey, a business known -as The Book .
Mart, a certain portion of land and building located at 19 -
Harrison Avenue, Panama City, Florida, and all other persons
claiming any right, title or interest in the property affected by
_this action, in the above dies case and file this Motion‘and
"say: ieee 4 tee
1. On April 6, “1970, the Honorable W. L Fitzpatrick,
_ Circuit Judge, entered his Order enjoining the operating and
maintaining of any business on: the pees known’ as 19
Harrison Avenue, Panama City, Florida.
2 On Aprit 1, 1970, ‘this appeal was filed in the Circuit
Court in Bay County, along with a Motion for —
’ ‘pending smaate on appeal.
BS. On April 9, 1970, the Honorable W. L. rig iy <*
denied said Motion. | ; | EN
- WHEREFORE, Appellants move this Sionorable Court i‘ eee
review Judge Fitzpatrick’s April 9, 1970 Order of -denial of
- Appellants’ Motion for Supersedeas and: move that this Court ay
* stay execution of the Judgment in this cause ‘for a [fol. 89]
period of ten days’ in order that Appellants might procure a
. Supersedeas Bond provided for by law with respect to-such:
Interlocutory ‘Appeal; and. Appellants further move that this .
Court fix the amount of that bond. . . :
PAUL SHIMEK, m;~ erie
Attorney for Appellants. 2h
Certificate of Service (omitted i in printing).
i eee
.-> 78
‘{fol. 90] "In The District Court of Appeal
First District, State of Florida
7 January Term, A.D. 1970: +.
Case NO N27.
“Not Final Until Time Expires To File’ Rehearing Petition andDis-
- _ Position Thereof - Filed.
. Robert Mitchum, Dave Ballue, Clarence Howard
- Cantey, a business known as The Book Mart, a -
certain portion of land and building located at ©
_ 19 Harrison Avenue, Panama City, Florida, and
all other persons claiming any right, title or _
interest in the property affected by this action,
Os staan
M138 State cash een OER
so iP
- Opinion Filed April: 21, 1970.
**An Tnteslocutory Appeal _ from the Circuit Court for ass ny
varies Ww. L. eee Judge. ’
a
- Pau) Shimek, it, for Appellint.
Bart Faircloth, Attorney Cieaiil: ‘hebiinad L. Marky,
ae Assistant Attomey General, for Appellee.
7 SPECTOR, J.
ON MOTION TO. REVIEW. ORDER DENYING
oe _ MOTION FOR SUPERSEDEAS .
-_ *
9.
pending determination of an interlocutory appeal to review an’
- order entered against them .by the trial court by which
appellants are enjoined from operating and maintaining a -
business known. as The Book Mart in Panama City, Florida.
-[fol. 91] F.A.R. 5.1 provides that the question of supersedeas,
pemding~-initerlacutory . appeal is one’ within” the sound
_ discretion of the trial judge. F.A.R. 5.10 pravides that where
the ower court refused to grant a supersedeas or stay, as has
’ occurred in the case at bar, the said refusal may be reviewed —
- and/ overruled, modified or discharged by the appellate court
"if the order. denying supersedeas is determined to be arbitrary
or unreasonable or is for any other reason #mproper. = :
‘In the lower ‘court’s temporary injunction order, the
following recitation appears: Te eA i
“On the basis of evidence submitted, this Court |
concludes preliminarily that the defendants’ objective .
‘at 19 Harrison Avenue, Panama City, Florida is the _-
selling of obscene, lewd and indecent material for
; profits (the court notes the apparent exorbitant pri ba
at which these publications are'offered for sale), to
paying customers who have a perverted, abnormal or. |
morbid: sexual curiosity and erotic appetite. That the
activities of the defendant ‘at 19 Harrison Avenue,
Panama City, Florida are prima facie, injurious and
_ damaging to the morals and manners to the people of
the State of Florida and are prima facie subersive to _
public order and decency and prima facie constitute a.
public nuisance. Plaintiff has demonstrated ‘prima °'
facie irreparable harm and damage to the moralsand)
_ welfare, and safety of. the people. of the State of - -
Fl orida.” : - e ; . é e
The above paragraph is preceded by findings which describe .
the ‘nature of the materials submitted. to the. trial judge as
_being representative of the books and magazines being sold by.
appellants. pinta te Sas eae a
In view of the court’s findings of fact and cenclusions_as
above set out; it cannot be said that the lower court acted
> *
> . » @ . ‘
“ id . - -
ee a are eee aces a
\ os io a 80 Aes
. gsbitenaity, sntensbeahiian sialtitanibr in dniuting scettante?
' motion for supersedeas pending this interlocutory appeal. The
: - trial’ judge’s denial -of supersedeas fell. well . within the
- Sncaneitnery: exthealey sapoaad ta: eiet oy, BAR B.A:
[fol 92] Appellants. having failed to demonstrate error in :
the order being reviewed, the motion for super:
ail ok Seas aie ~~ JOHNSO - Chief Judge
ve |»... RAWLS, J., CONCUR.
\ ae . ; ”
\ ae 3 : Ve ;
[fol 93]. - In The United States District Court
a” for the Northern ‘District of Florida .
aeons Helen ee
~ Sfarianna Civil ‘Matbel No. 799
, Filed: nes 30, 1970 |
_—
*
\
" Robert Mitchum, Spa xe
_ The Book Mart, Plaintiff,
if ton E. roses, ‘ al. endants.
poe \
Boe: pending the Pensacola Division of the United .
alleged to be unconstitutional, it is
for the Northern District of Florida, in
the ‘same Florida Statutes are
4 Le Nie | ’
6 \
% \
epee as as cis Gt ww cd re
to the Pensacola Division of the United States District pcan
for the Northern District of Florida. It is further ;
a
ORDERED that fiffther platings be filed in ‘the :
_. Pensacola Division of the United States District Court for,
Northern District of Florida. ie 3 . a
' [fol. 94) DONE and “ORDERED in Chambers in
Tallahassee, Florida, this ag: day of Api, Ly ee
: David . Middlebrooks,
United States District Judge —
Pa
| ad es
(fol. 95]. ‘In the United States District Court |
sie Maik for the Northern District of Florida”
_ Pensacola Division
Transferred from’ Marianna Civil Agtion No. 799
Filed: May 4, see bs
aod
ly
y
Clinton E, Foster, ‘al, Defendants.
Y .
| he :
‘ He y) preps Fe. .
i "NOTICE OF HEARING Soe si
PLEASE TAKE Notice that. the Plaintiff, iby his
attorney, will call on the above styled cause for
te hearing upon the prayet inthe complaint for a Temporary
Order, restraining the Defendants from interfering
the. opening of The Boo! ggg 19 Harrison’ Avenue,
nee from enforcing , any / otders 3 enting” the conducting of.
‘business thereat. unless there is held a prior judicially
superintended adversary hearing declaring specific publications
obscene before the enjoining of their sale, at 2:30 P.M. on
Monday, May 11, 1970, before The Honorable Winston E..
‘Amow, in Chambers at the United States District er
in n Pensacola, Florida... -
a [fof 6] PLEASE BE GOVERNED ACCORDINGLY.
=.
é cae
ee A ee
t .
I HEREBY CERTIFY: that. a sae copy of the soltebinie
_. was furnished the above-named roreense) by Vein States -
Mail this Ist. day of ea: 1970, A.D.
ee titres ee
Pay i ae eee :
[fol 97]. ° In the United States District Court '
eae in _. Northern District of Florida
. -' Marianna Division
- ‘Marianna Civil Action No. 799:
’ Filed: May HH, 1970 i ae
oats
Robert. Mitchum, d/b/a
The Book Mart, Plaintiff,
caer
‘Clinton E. Foster, et al., Defendants. :
we
MOTION TO DISMISS Wiese dati, I
“COMES: ‘NOW ‘the Jehintust, CLINTON E. FOSTER, as
Prosecuting Attorney for Bay County, Florida and moves this
Court to dismiss Pleintift's orenmyaint in the coptiogen matter’
Decue fy. . ,
_ A. This Court lacks jurisdiction over : the. subject pn:
hereof.
B. ‘This Court t lacks jurisdiction 0 over ‘this defendant.
Respectfully submitted,
as
Porte eg hie ss) Oe: -
-1DO ceRnFY’ that a pore hereof ia ices furnished _
delivery to Hon. Paul Shimek, Amey. for Plaintiff, this
ith day of May, 19,70.
—e Clinton E. Foster, ae
SR Prosecuting Attorney for
hs Pe
_ [fol. 98] "In the United States District Court
ae 7 for the Northern District of Florida —
- Pensacola Division _
Filed: May-11, 1970
| \ . . Robert Mitchum, d/b/a__-
\. The Book Mart; Plaintiff, ~~
™“
| *—vs.— Me
~ Clinton
Foster. et al, Defendants. ;
tare e ; : 7 + ve "
= ott with which to serve, and at sal in of 0
_ imm wot di —e, aie, answer or a. henge
: pleading. hess 7
" DONE’ AND ORDERED ‘thi llth aia of May, 1970,
nf a a aaa Winston E. Arapw, : se
SE. pie, «nee ee hs walieiaad :
-
: “
ae t . sais
7 a
oe
ante >
° ? .
‘ os :
— mpncenreney ae ao
- =e FWag' "on rN ee ean, basil + —
85
.. In The United States District Court For the
.. | Northern District Of Florida
Pensacola Divisiog)
” Filed: _— 12, 1970
‘2
Robert Mitchum,d/b/a The Book Mart, Plaintiff,
- V.
Clinton E. Foster, as Prosecuting Attorney of .
Bay County, Florida, and M.J. “DOC” |
Daffin, As Sheriff of Bay County, Florida,
Defendants. |
eo :
TEMPORARY RESTRAINING ORDER
. [fol. 99]
This cause came on to be heard ont Plaintiff's aeuleain:
for temporary restraining order. Defendants filed motion to
dismiss complaint which, . after — the Court denied.
interfering with the operation. of Plaintiff business in Panama
City, Florida, and from. enforcing: any
conduct of. such business without there being first held a prior
judicially superifitended adversary ‘hearing declaring specific
_ publications- obscene before the enjoining of their sale. -
Plaintiff seeks sane costae Hf Defendants from
%
County, Florida; filed. in the Circuit, Court of the Fourteenth
Judicial Circuit.in and for Bay County, Florida, hereinafter
3 called Circuit Court, a. complaint wherein he requested that
ers preventing the .
‘On ‘the undisputed facts before the Court, on March 30,
1970, Clinton E:° Foster, Prosecuting Attorney for. Bay .
.
“
Circyit Court, to’ issue. a ‘temporary injunction without bond
~ against ‘the Plaintiff for the conducting or continuing of ‘a
nuisance and from. removing or. in any way interfering with or
mutilating si furniture, anes and [fol. 100] .and movab ae
86
property « including’ inventory used in the conduct of the
business located at 19 Harrison Avenue, known as The Book
_ Mart, Panama City, Florida. On April 3, 1970; pursuant to
‘three days notice, a hearing was held wherein 25 publications —
were entered into~evidence as exhibits befére the Circuit
- Court. Six of the 25 exhibits presented were declared to be
obscene by the Circuit Court. No determination as to ‘the:
obscenity vel non of the other 19 Constitutionally
presumptively protected publications’ was made. The order
reciting the determination of obscenity of six publications. was
rendered on April 6, 1970, and in addition to the finding of
obscenity of the six publications the Circuit Court found that
the activities of the Plaintiff at 19 Harrison Avenue, Panama
City, Florida, were prima facie;-injurious and damaging to the
morals and manners of the people of the State of Florida and |
were. prima facie subversive to public order and decency and
prima facie. constituted a public nuisance, The Circuit Court.
‘ issued a temporary injunction against Robert Mitchum, his _
". agents, employees, grantees, _assigns and successors from. .
. operating and maintaining any business on ‘the premises
-.-known as 19 Harrison Avenue, Panama City, Florida, and.
‘enjoined Robert Mitchum and his agents, employees, servants, —
_ grantees, assigns and successors from removing, any .property
or thing from or off the premises of 19 Harrison Avenue,
Panama City, Florida, until further order of that court.
> Plaintiff's motion for supersedeas pending determination
‘of interlocutory appeal was denied by the trial court and also
Ai First District Court of Appeal of Florida.
[fol 101] Before this Court, it is ” established by
uncontroverted swom complaint that Plaintiff sells, at this.
_ location, other materials besides those held obscene; at least
‘on the record before this Court, that evidence was not
presented in any of tlie state’ court proceedings h held thus far.
The state’s action is brought and the state’ “Court’s order °
entered in the suit seeking, under the Florida Statutes,
abatement as a nuisance. Florida Statute 60.05 provides — dq
87
“injunction shail not preclude the “operation of any lawful
. business not conducive to the maintenance: ‘of. the nuisance™.
The constitutional right of Plaintiff to sell material unless and :
until it. has: been determined obscene ‘in a prior adversary
judicial hearing, . pursuant to due notice, is now well
established. See, among others, H MH Publishing Co., Inc. v.
Oldham, 306 F. Supp. °495 (M.D: Fla. 1969), and cases -
therein, ‘cited. Under principles enunciated in Dombrowski v. --
Pfister, 380 U.S. 479 (1965), and its progeny, the state court _
order’ here involvéd preventing operation of Plaintiff's.
presumptively lawful business does present irreparable harm:
and injury, and it appears to be the kind that, in this early
stage in the state court proceedings, requires the action taken
by this Court in this order. The attacks on the Florida
“Statutes involved as- being unconstitutional are serious, and
not frivolous.
Meootdinaly, it is
R ORDERED:
1. Defendants, their agents, servants, employees and
attorneys, and all persons: acting under their direction and
‘control, [fol. 102] or in active concert or participation with
them, are hereby temporarily restrained from enforcing or
seeking to enforce that certain order dated April 6, 1970,
‘entered by the Circuit Court. of . the Fourteenth Judicial
- Circuit for the State of Florida, in and for Bay County, in the
case. styled State of Florida, Plaintiff, v. Robert Mitchum, et
al., Defendants, being Case 79-292(B), except to the extent
such order prevents the sale, on Plaintiff's premises referred to
' therein, of any material determined: to be obscene in‘a prior
—_ judicial nentig held — to due notice. OS
- 2, This order shall: boosie elféctive. upon the filing by -
Plaintiff of a good and sufficient bond jn thé penal sum of |
- $1,000.00 approved by the Clerk of this Court, conditioned *
‘that Plaintiff shall’ pay to Defendants the ammount of any
88 - — “1 a
damage sustained by Defendants should it Mater be found this
_ order. was. wrongfully issued. Unless previously revoked by the
‘undersigned, this order shall remain in force only until the
hearing and determination by the full court. —
. DONE AND ORDERED. this- 12th day of May, 1970.
. aan Winston E. Arnow ’
Chief Judge
w
[fol. 103] .: 4. 4% 6
veces - _ nfm on sence oF wr FILED.
. a . MAY 1 97)
. i
et . _Mexthern __ Disruict or __Florida 1 :
OFFICE OF CLER
; . U. S. DISTRICT CO! T
77 , : . = NORTH. Dist. FLA.
ROBERT MITCHUM, d/b/a ‘The Book Mart Clerk’s No. _Ms- Civ. 799
CLINTON. E. FOSTER, as Prosecut ing Attorney ~ -_ + ‘
> Bay County, Florida, and M, J,"DOC" U.S. Marshal’s No. 3637
DAFFIN, as Sheriff of Bay County, Fla. e
, . SBRVICE COMPLETED or ENDEAVOR TO SERVE
: enxinoworest ta c2KWx
I hereby certify and return that I peter the annexed _Summona.& Complaint .
on the therein-named ——M.1"Doc" ._Daffin as Sheriff of Ray county, Florida.
(Matne of eee company,
|
: . Be . '
by handing to and leving a tru ad correct.copy thereof with (if endeavor—descrbe what was |
done in endeavoring to serve) Ms. ~"Doe™. Daff£in we F l L E D
; : of individual or agent of company, serporation, ote.)
° : . } hows
personally st (if endeavor—show addresses where endeavors made) ——_e9nee-Cr- me °
-U, & DIST. COURT, NOR. DIST. FLA
-— Count .
7 Bay County. Jat) rerel route, ote.) | “PENSACOLA,
| Fanaa! City, . Florida — in the said District |
4 ‘ : ba
at Renee a.m.-p.m:, on the 6th ee
Date
| T hereby certify and return, that on the _" day of - , 19__,
received the within . a _ _ ena that after:
igen sare, am unable to find the within named aie elated
R __. within said district. .
a __ Re k. SHELBY am
Marshal's fees $3.00 _ Te Usd Ses Marsha
Mileage \. enn LV DG ee
"Villiom A. Joyce a Raw;
) :
{fol. 104] .
Euited States of America
___Morthern_- Disrmcr or _ Florida {LED
ROBERT MITCMM 4/b/e The Book Mart -
cupwros E. FOSTER, cs Prosecuting Attorney
of Bay County, Florida, and M. J. “poc” US. Marshal's No. 3637
DAFFIN, as. Sheriff of Bay County, Fla.
ar 4
SERVICE COMPLETED or ENDEAVOR TO SERVE
(Meme of individual, eumpeny. corporation, ote.)
Comey, Florida
rs RP what was
_ Thereby certify and retara that I sniemencitomers the annexed femmuna snd Senplain
"| é everin Clinton E.’ Fost .
done in endeavoring to serve) ej ee ene — FILL EF p—
rsa
pereenaly ot (if endenvor—show addresses where endeavors mace)
Pay, Seem Jett YW & best. oF Cam
Aber eet weir. sgertmeet rember, rere: rete, ste.) roaaccun —
at _____ am-pm, on the . day of May 1970
Date
| Thanh etity and retera, hat oa the —__ day of atin , 1%.
1 received the within - ‘
Sh rm ef th within mee aie
co eee
aN "el Bas HL :
Menge 24.00 wy Sason tyke —
. . aan ' “William A. Joyce \ Deputy. -
&
[fol 105]
ROBERT MITCHUM; G/b/a The Book Mart,
CLINTOM BE. FOSTER, as Prosecuting —
Attorney of Bay County, Florida, and
M. J. “Doc” Daffin, as Sheriff
of Bay County, Florida,
To the above named Defendant #:
You are bray semmened snd reid to save von Paul Shimek, Je.
o ‘
plaintiff's attorney ,whesesddress —. P.
©. Box 661
Pensacola, Plorida 32502
an anewer to the complaint which is herewith’ served upon you, within 20 days after service of this
susmone upon you, exclusive of the day of service. Ht yom fal todo om, judgment hy detealt will be takes
eqntagh pm ter Gan citiat Gempantel tn Geo compat.
Dete: April 30, 1970
Netes—This summens ie issued puresent to Role 4 of the Federal Rules of Civil Precédare.
[fol 106] May 13,1970 5
The Honorable John R. Brown, Chief Judge
pan United States Court of Appeals for the Fitth Circuit.
‘United States Courthouse
Houston, Texas .
Re: * ‘
Robert ‘ict d/b/a The Book Mart, v. Clinton E.
Foster, as Prosecuting’ Attorney of Bay County, Florida,
- and M. J. “DOC” Daffin, as Sheriff of Bay County,
- Florida — PCA 2224
none Chief es ecwa:
| ‘In this suit, the aiieeauie of Florida statutes is |
challenged, and judicial declaration of unconstitutionality is.
‘ -sought. ‘There is also sought “injunctive relief against the’
. enforcement and execution of the statute and .application is -
made for a er court.
eg a my opinion, - the constitutional issue raised. is
. ,, Substantial. ea
Accordingly, as required: by 28 U.S.C. §2284(1), I notify
you of the foregoing, so that you may proceed with the
—— of those to: serve on the three-judge court jn this
suit.
This suit, like others presently pending in the Northern —
District of Florida in which three-judge courts have been
convened, deals, generally, with Florida’s obscenity and other
' related statutes..I suggest to you the procedure followed in
these other cases should be follows, if at all feasible; and that
‘is, appoint the same three-judge panel, so that this case may
be considered along with the others. The three judges in the.
. prior pending suits are Judge Bryan Simpson; — Charles. ,
R. Scott, and myself. “.
Be ae a iy fos aoe
{fol. 107] I am mindful of your letter of April 30, 1970.
As stated, the Florida Statute here under attack is the same
obscenity statute that is being attacked in the other cases in
-this district in which this three-judge panel has been
convened. .In addition, there is challenged in this: suit .
proceeflings under which injunction is sought to abate the
Plaintiff’s.. operation under Florida’s nuisance statute, and
_ there is serious question in-my mind whether -that. kind of
‘statute can be held to apply to a situation of this kind.
| Sincéealy yours, as
‘Winston E.Amow ...: ”
aed oe
. The Honorable Bryan Simpson —
_ The Honorable Charles R. Seott op
The Honorable D. L. Middlebrooks
: {fol. 108] In.the United States District Court *
for the Northern District of F lorida
_ Pensacola Division :
Rober} Mitchum d/b/a The Book Mart, Plaintiff,
V8.
‘ Clinton E. Foster, et.al., Defendants:
$1,000.00. CASH BOND FOR DAMAGE:
FOR WRONGFUL ISSUANCE
"Filed: May 13 1970, 11:05 A.M.
2 \sKNOW ALL MEN BY. THESE PRESENTS, that. R BERT |,
MI M d/b/a THE BOOK MART is held and irmly ~
bound ‘unto CLINTON E. FOSTER, as Prosecuting attorney.
of Bay ounty, Florida, and ‘M. J.. “DOC” DAFF
_ Sheriff ‘of Bay County, Florida, their executors, administrators
‘or assigns, in the penal sum of. One Thousand and 00/100 —
Dollars. ($1,000.00) lawful money of the United States of
: America, to be paid unto the.said CLINTON E. FOSTER and.
_- BMD J. “BOoc" IN, their executors, administrators, =
' assigns,.to which p: ent well-and truly to be made, I do
bind and oblige myself: and my heirs, executors, and
- administrators, pate and ¢ severally by these presents. ees .
Sealed with my seal and dated this 13th day of May, co
A.D., 1970... Nn ee ae
- WHEREAS, "thie shove-aanied ROBERT MITCHUM, -
. ° heretofore a citizen of the State of Georgia commenced an ~
+> action in the United States District. Court; in and for the —
NorthernDistrict of Florida; Pensacola. Division, against the _
said CLINTON E. FOSTER and M. J.:“DOC” DAFFIN._
ee lie og
ea
NOW THEREFORE THE - CONDITION OF: THIS —
- OBLIGATION. is such that if. the above-named ROBERT
MITCHUM in; the said action shall pay on demand to the
Defendants herein ‘the amount of any damage sustained by |
_ said Defendants should it later be found that ‘the temporary .
restraining order entered’ on ‘May 12, 1970, by The Honorable
Winston E. Arnow, Chief Judge of the above entitled Court’
was wrongfully issued, and Said. $1 000. 00 deposited as surety
“ for that purpose, then this obligation shall be void; otherwise‘
‘ the -;same-[fol. 109] ‘shall be and remain in full fone and
| effect. ;
Robert Mitchum 7
- APPROVED BY me as the Clerk of the above. entitled
Court this 13th day of _— 1970.
a - “ §
J. M. : ee ee
Dept. Clerk, ‘United States
District Court’ |
- Northern’ District of Florida .
_ Pensacola Division
In the “United States District Court\ ony a
oe eeaians Hien Wf Eee At
i Marianna Civil Aition No. 799
‘ Filed: ow %, 1970 |
‘The Book Mart, Plaintiff,
Lae, Wet
4
i Ki ee ‘lint on’E..Foster, et al, Defendants. * ,
} COMES Now. the’ vars M. Je “poc” DAFFIN, : _ ae
Sheriff of Bay County, ‘Florida, “and for a acta ‘to the _
Complain says: = . 2
ing: tt es vt . \ , " ai
-
5a? 1. As to: “Paragraph 1 ‘this Defendant admits: that the
ine : Plaintiff f prays. for:a pteliminary injunction. but the allegations
eas of f the reinainder of the Paragraph are denied. .
: Se | “9 The. allegations. of - Paragraph 2 of the Complain are .:
dei: . . 1 err ee wo
: 8 f eae 3 ays : “ { “4
mas & ‘The clhistioes of. Paragraph 3 are “denied. his
om ~~ Defendant. says that the Plaintiff's entire operation is generally
~ directed . toward ‘the: sale of lewd, ‘Tucivious mefchandise and ~
_——— —s
‘
4. Poy to: Paragraph 4, it is admitted | that . CLINTON
FOSTER is the prosecuting attorney of Bay County, Florida,
and as such. is entrusted ‘to: the investigation and: prosecutorial —
enforcement. of cases brought to his attention or alleging
. Violation of the Penal Laws of Bay, et. Florida. The
’ * remaining allegation is dented, : ;
5. It is admitted that M. J. “DOC” DAFFIN is the
Sheriff of Bay ‘County, Florida, and that CLINTON FOSTER —
. >is the prosecuting attorney for’ Bay County, Florida. The pete ;
remaining oe of Paragraph. 5 are denied.
6. As to iene 6, this Defendant says that all actions
he. has taken have been in strict accordance of law and the :
ee corted allegations ‘of — 6 are denied.
. The allegations of Paragraph 7 are atiaitied we as
"4 me Wi to the ownership and this Defendant has no —
_knowledge, as to the true ownership of sam¢ but does not
~ believe that the. Plaintiff is: the. real owner thereof and:
‘demands strict proof. Ce ee . ae
.Y eS admitted: that the. - Complaigg for temporary
' injunction was filed as alleged and that a Judgment was
‘entered therein as alleged but it is denied that the: Judgment
“directing the Sheriff of-Bay County, Florida, the Defendant,
-M. J. “DOC” DAFFIN herein to dispose of. same 4s. may be ote
’ ordered by Judge Fitzpatrick”. and it Was not so ordered and
a copy of the Order is attached to the Complaint and ‘speaks
for itself and it is admitted that, the Sheriff’ served a civil
subpoena as. required by law and the Sheriff allegés that he
was hot otherwise involved | in said proceeding. All of the
7 Suseee sin allegations of Paragraph 8 are dnied.
h 9. It is admitted that Judge Fitzpatrick. found a nuisance ~
/ existed and issued a temporary injunction or ; oe :
‘.
-—.
98
Order, copy of which is attached to the Poaeleiat: The ~
remaining oe of ' Paragraph-9 afe. denied.
10 It is admitted ‘that, the | Defendant sought a
bitin hoe from Judge Fitzpatrick which was denied but the —
— allegations of anys denied. |
1. The allegations of ec 11 are denied.
“12, The bit en of Paragraph AZ are denied,
13. The allegations of Paragraph 13 are. dente and this
" Defendant says that the Plaintiff has been. conducting | an
unlawful. business which has now been restrained by -the
Circuit Court. ;
- 14. The allegations of Paragraph 14. are denied. -
ee. | |
~ 4S. The allegations of Paragraph 15 are denied.
16. The: allegations of Paragraph 16 a are —
1 The allegations of Paragraph 17 are. denied,
18. The allegations of Paragraph $5 are denied. — ,
19. The allegations of Pansreph ea denied. |
20.. The allegations of Paragraph 20 are ® denied,
.
21. The allegations of Paragraph 21 are + elk
‘22. The legation of Paragraph 22 are denied. |
[fol. 112]: 23. The allegations of Paragraph’ 23 are
” denied.
24. The allegations of Paragraph 24 are denied.
99°
- 25. The allegations of Paragraph 25 are denied. = *
' - . . ” *
26. Now having fully answered the Complaint ‘as ordered
‘by the Court this Defendant says that the Court has no —
jurisdiction of this cause and that jurisdiction is vested now in
the District Court of. Appeal in the injunction case pending in
Bay County, Florida, and that the Plaintiff has not exhausted
his ‘State Remedies. : oe
Respectfully ‘submitted,
Davenport, Johnston & Harris
Bae dk te Attorneys for Defendant
7m -M. J. “DOC” DAFFIN
By Mayo C. Johnston |
.-* Certificate of Service (omitted in printing)
[fol 113] United States Court of Appeals-
| Fifth Circuit |
¥00
- May 19, 1970
Mr. Marvin S. Waits, Clerk
Northern District of Florida
P. O. Box 958
» Tallahassee, Fla. 32302 _
PCA 2224 — Mitchum v. Foster
“My dear Mr. Waits: _
In response to the request of Judge _Amow, ‘I have
constituted the Court in accordance. with the enclosed
designation order which I request you to file.
Copies of this order are being sent to the Judges.
Sincerely youp
Enclosure
cc: a
‘Hon. Bryan Simpson
Hon. Winston E.. Arnow
Hon. Charles R. Scott
°
101
In The United States District Court
For The Noe District- of Florida
- Civil Action No. 2224"
__ Filed: May 22, 1970
r
Robert Mitchum, d/b/a. (1) Requesting Judge: Honorable
The Book Mart - — . Winston E. Arnow.
_ Northern District of-Florida |
“y, | )
= 7 (2) District Judge:Honorable
‘Clinton E. Foster,’ ~ . ‘Charles R. Scott
Prosecuting Attorney of . Middle District of Florida
Bay County, Florida, and . 4S a
M.J. “DOC” Daffin, as ©. (3) Circuit Judge: Honorable
Sheriff of Bay County, Florida __. Bryan Simpson _
e
_ Fhe Requesting Judge (1) above’ named to whom an
application for relief has been presented in the above cause
having notified me that the action is one required by. Act of
- Congress. ‘to be heard and determined by a District Court .of .
three Judges, I, John R. Brown, Chief Judge of the Fifth
' Circuit, hereby designate the Circuit Judge (3) and District
Judge (2) named above to serve with the Requesting Judge |
- (1) as members of, and with him to. constitute the said Court
to hear and determine. the action.
- This designation ‘and simapueitiis of the three-Judge. court ,
is $ not a prenatement, Pxpress | or implied, as to whether cal is
(4) Date of Order:,May 19, 1970 -
102
ite a case: for a "thee Judge sali than a series
court. This is a matter best determined by the three-Judge
Court as this enables a siniultaneous appeal to the Court of
Appeals: and to the Supreme Court without: the delay, [fol. |
115] awkwardness, and administrative insufficiency of a
proceeding. by way of mandamus from.either the Court of
_ Appeals, the: Supreme Court, or both, directed against the
' Chief Judge of the Circuit, the presiding District Judge, or
both. The parties will be afforded the’ opportunity to brief
and -argue all such questions before the three-Judge ‘panel
either preliminarily or on the trial of ‘the merits, or otherwise,
as’ that Court thinks appropriate. See Jackson v. Choate, 5
Ce, 1968, 404 F.2d 910,. Jackson v. Department of Public .
Welfare of the State of Florida, S. D. Fla., 1968, 296 F.Supp.
—~1341; City of Gainesville, Georgia v. Southern Railway —
' Company, N.D..Ga., 1969, 296 F.Supp. 763; Smith v. Ladner,
S.D. Miss., 1966, 260 F.Supp. 918; Hargrave v. McKinney,
M.D. Fia., 1969, 302 F.2d. 1381; Langford.v. Barlow [No.
— 26770), ‘5 Cir., 1969, 417 F.2d. 628, Langford _ v. Barlow,
_W«.D. Tex., 1969, 304 F.Supp. 657;
5 Js JOHN R. BROWN.
te bs Chief Judge —
a Fifth Circuit -
[fol. 116]
° ‘
HARGRAVE v. McKINNEY ‘
103
1381 -
Sontnenan 1381 (1969)
v. “ne :
Shellie McKINNEY et al, Defendants.
Civ. A. No. 68-463-CIV-Tampa.
United States District Court
'M. D. Florida.
June 27, 1969.
.
Action wherein plaintiffs requested
certification of case to Chief Judge of
circuit to convene three-judge court. The
District Court dismissed the case for
lack of jurisdiction and the Court of
Appeals, 6 Cir-, 413 F.2d 320 remanded to
District Court with directions to take ap-
_ propriate steps to cohvene three-judge
‘court. The District Court, John R.
| _ Brown, C. J., held that order constituting
three-judge. court would be entered.’ ~
Order accordingly.
~
L Courts 161 ©
* . Doubts about necessity for three-
judge court should be resolved in favor -
of constituting such a court. 28 U.S.C.A.
if 2281, 2284.
- indicate a joinder in that holding
also the -ho'ding on the merits by
‘single judge to whom case c
Court of Appeals will then have
tire case before it. —
* 2234.
—-_-———
‘Frank & Grandoff,
. Glasaie, Pewett, Beebo & Shanks, Wash-
Jnnten, D D. C., for plaintiffs.
“a
V. .Carréll Webb, Gen. Counsel. and
Larry Levy, Asst. Gen. Counsel, Office of
Comptroller, Tallahassee, Fia., W. Crosby
Few, Tampa, Fla., for the State.
Robert L. Nabors, Titusville, Fia., for
defendant J. D. Nash.
David U. Timin, Tallahassee, Fia., for
. defendant H. S. Albury.
John W. MeWhirter, Jr., ‘Tampa, Fis.,
for defendant K. C. Bullard. : :
John L. Graham, Jr., Orlando, Fia., for
defendant Ear] K. Wood.
William B. Sherman, Deland, Fla., for
defendant Dorothy Matt ‘Mills. ~
.Wayne M. Garlisle, Gainesville, Fla.,
for defendant Shellie McKinney.
J.T. Chancey, Fort Lauderdale, Fla.,
for defendant W. H. Meeks, Sr.
James R. Adams, Naples, ‘Fla, for
defendant A. P. Ayers. — is
Ww. J. Vieainiais, tatieties, Hi tae do.
‘fendant Alvin C. Hosford.
- F. E. Steinmeyer, III, Lcmennadl
Fla. for defendant Roy Lett.
Thomas J. Shave, Jr,,. eee
Beach, Fla., for defendant Ira W. Hall. ©
Harold F, Johnson, Sanford, Fia., for
- defendant G. Trey Ray, Jr. eee
Clyde B. Wells, Defuniak Springs, Fla.,
for defendant Jack Little.
’ Thomas C. Britton, and Stuart gimon,
Miami, Fla., for defendant R. K. Over-
Jack A. Harnett, Quincy, Fla., for de-
fendant W. A. Summerford.
. William J. Rish, Port St. Joe, Fla., for
defendant Harland O. Pridgeon.
‘Before JOHN R. BROWN, Chief
Judge, United States Court of _—
for the Fifth Cireuit.
JOHN R- BROWN, Chief Judge:
* [1] This case proves again the wis-
dom of resolving in favor of constituting
a 3-Judge Court the initial doubts about ~ °
the ‘necessity for such a Court, as out-
lined in Jackson v. © — - Cir.; 1968,
; spina tans icin, pie na lace sbi ts
ee
[fol. 117]
1382 ©
404: F 2d 910; Jackson v. Departasent of
Public Welfare of State of Florida, S.D.
* Fla, 1968, 296 F.Supp. 1341, and dis-
cussed further in City of Gainesville v.
Southern Railway, N.D.Ga., 1969, 296
F.Supp. 763. Now—nine months later
and after. requiring the judicial energies
of the Court of Appeals and excluding
from a place on the calendar an older case
deserving oral argument as a resuit of
expediting this case—it must go back to
start all over again as a 3-Judge case.!
Plaintiffs here formally réquested the
District Judge before whom this case was
‘pending to certify the case to the Chief
Judge of the Citeuit to convene a 3-Judge
Court pursuant to 28 U.S.C.A. §§ 2281,
2284. The
_s0 and, acting only- as a single Judge,
dismissed" the case. for, lack of jurisdic-
; tion.*. .
On appeal thé Court of niet: by a
divided ,panel, reversed the District ©
Court’s dismissal and held that (1) there
was no. § 1341 jurisdictional bar to the
maintenance of the action, and (2). the
constitutional question presented was
“substantial” within the meaning of Ex
parte Poresky, 1933, 290 U.S. 30, 54 S.Ct.
3, 78 L.Ed. 152. Hargrave v. McKinney,
5 Cir., 1969,°413 F.2d 320. Accordingly,
1. Case commenced: / October 31, 1968
. Dismixsed : * December 13, 1968
Expedited and d
ealendared for: March 18, 1969.
. Court of Appeals :
’ decision y
(Ne. — June 9, 1900
Judge declined to do ©
‘3Judge status.
104
2 «
the. case was remanded to the District «
Court with directions to take appropriate —
eps to convene a 3-Judge Court.
This prologue serves to illustrate once
_again the usefulness of the procedure of ~
Jackson vy. Choate, supra. Much precious
time and energy might have been saved
if that procedure had been adopted in
the instant case
For’examplle,. in this case the ptelimi-
nary questions were first considered and
resolved by a single District Judge; then
reevaluated and resolved differently by
an appellate panel of three-Judges. Be-
cause of their reversal, the case must now
return for consideration of some of the
_ Same hasie” questions by still another
, panel of three Judges under 28 U.S.C.A.
§§ 2281, 2284. Only after their decision.
will the ease be ripe for whatever further
appellate consideration might be ae
‘by the parties. ;
{2i With such a result it is. readily
- apparent that neither time nor judge-
‘power has been conserved ‘by this cir-—
‘cuitous process. -
‘peals was divided only augments the
.That‘the Court of Ap-
practical disadvantages of a decisive
initial . prediction of the ‘one-Judge -or ;
In contrast, if the
3-Judge panel had been convened at -:
2: Specifically, the District Court held that
the suit was barred by. 23 ‘UBC.A. § -
1341.
2. Pe Sere 3-Juge canen continue to be big businens in the #ifth | Cie-
cuit an thio tafe covering my tenure'en Chief Jedge reflects:
Total Designated 3-Jorige Cases f =e
(7/17/81 to 6/30/00)
Districts :
State Northern Mickile Southera assent Wentere Total” z
Alabama 7 13 a a Rag 24
Fleriia a 4 10 : 7
Cleorgin 21 a “ . ™
faml inne ae ee Gaia ae
> Misael yg 12 ae 5 in .
‘Trsee 13 ” ” Se uy
DESIGNATED SINCE JULY 17, 197
eT
=
(fol. 118]
HARGRAVE v. McKINNEY.
_ Elke ax 302 F_Supp. 1341 (1909) a °
that panel ‘would have
the outset,
‘had open to. it all’ the alternatives
outlined in Jackson v. Choate, supra, and
substantial amounts of valuable Court
and lawyer time might have been saved.
And the’ possibilitygseven: a frequent
possibility—of the result being otherwise
does not bring about burdens outweigh-
ing the advantages. Many times physj-
- cally assembling the Judges is neither
inconynient nor necessary. .And if a
decision is initially reached by the 3-
Judge Court that it is a one-Judge matter
so that the 3-Judge Court is to be: dis- _
solved, it is a simple thing to have all
three Judges (or a majority of them) join
in the ultimate opinion so that little, if
any, is Ieft in the event the Court of Ap-
peals subsequently. reverses the holding
that ft isa one-Judge case.*’ :
Order constituting a 3-Judge. Court is
‘now entered. : ;
yY
“+ -@ Thix sort ot lagenalty in reflected in.
Chief Judge Spears’ opinions for himself
- and Cirenit Judge Goklberg and. District
Judge Roberts in Rodriguez v. Itrown, W.
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