# Appendix — Mitchum v. Foster > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0040%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1972 - **Citation:** 407 U.S. 225 ## Text Sas ¢ ®. "Fey POE ETS AE TO NON Nae Rr oe 7 " — a og + 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 : 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 .:... 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 ue . ° . —_ . * . “ s: 1 io - J . “e eee > - - Se , ‘ . . ~ - Par . . bad - . . . . * ; ' . : . : - . 6 . > ' - , =” : ‘ ne ke ~ > > . == * . ' i ' Pi . be . g - - rd 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 %:* ‘- o ’ a “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 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 » ¥ 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 oN a : a NX ‘i Mad be 7 . . °. : —_— en aes 7 ? -_. ————" ° . ~. 4 = — e 7 a oe % ? wD. & 7 . ¢ . & 2 ° 7 . ; : @ 2 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. ; 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 —_ - . . 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 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 ... «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 a ‘ ° . a ; i, tes ‘ a . * . nag P : ‘ , te \ ‘ 4 - * ce = i $ . ~ . J a. \ . sy . . te . ‘ ss. . fae ‘ ye ¥ g . bio - - ‘ bad aw» & © 6 ° c . ° . . 2 , Bo iit sis hale Na ei ihe side ialcintinse lag peracetic nlp a . ° 5 3 : ° “ a . . u we ¥ A tesetennieatcs cibaainindaie > sire tinea Paaictianildis shir 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 - , 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 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 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. 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 = 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. . ‘ 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 ° ° ad ; : ~ e. a F oo . . . ; : ° : . e° -3 RRS prorat preere ee EO RS RARER RinispingeR ceinpnns niet xeemeratiacpneatentcnsmen mepneee aiiaieaiie . . . 3 : pein care gee aman Rneeorten marraeseseeitil ‘.« 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 “(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 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. D.Tex., 1969, °299 F.Supp. 479 (Civ.A. _ GS-206 SA) and Rodriguez v. San Antonio Indep. School Dist.. W.D.Tex., 1960, 279 F.Supp. 478 (68-175-SA) of May 12, 1969, aml the ultimate opinion expressly joined in by*Cirenit Judge Goklberg and District - Juige Roberts of June. 13, 1069, 300 F. Supp. 737. The first opinion stated: on: sonaliog segh ao ar jawige. not a three-judge matter; there- _ fore, this cnuse is remanded. to the pre- viding judge. who will proceed to initial- ly decile the case on ite meritx. Tlis juigment thereon will become final up- - on the” joinder, by concurrence or dis- "sent. of the other members of the panel. * An appeal tlrereaftet will also bring ainto review the correctness of our or- der of remand. But, in any event, no matter which way the appeligte review . Koen, whether to the Cirruit Court. or _ ultimately directly to’ pthe Supreme — Court, the entire case will be before the appellate court. for decision. Jack- = a oe oe ee “013.” In the second ense this was adapted to the nertis of thnt cnee: + “|Wihe ronchele, without a formal “conrt session, that, in the present pos- a | 2 ture of this, case, this is a one-judge, Jnot a three-jmige matter. def a‘ conse- quence, this cause in remanded to the presiding julge. who will initially de- cide. the! ense On its merits; provided, = prs that since the parties haye re- oral argument on penlipg mo- "amd the credibility of witnesses Sua any war ee ne aks ou on the merits. all members of this panel, ‘in order to keep themselves fully in- forme|, will assemble in one place to . convene coart formally at such time(s) . as shall be necessary to hear all oral ar- Fuments. to he submitted, and to try this ense’on its merits. The judgment of the presiding juige ‘will bécome final upon the jeinder, by concurrence or dixsent, of the other members of the panei: An appeal thereafter will also. bring into review the correcfness of our order of remand. - Bret, in any event, matter which way the appellate inane goes, whether to the Circenit Court, or , * ultimately directly to the Supreme ~ Court, the entire case will be before . the appellate court for decinion’. - See Rodriguez. ” Kro«n, 2 F.Supp. 479 . (WADTex.° May 12, 1969).” The finiat opinion (G4-20G-SA) ateeia to the earlier decision thet it wan a one- . dadge ense, but the Kolding on this and the merite. was e@ptensdy joined in by all three Javigen, 2 F Supp: 470. Virtant- ly without: more it is ripe for decision hy the Court of Appeals or the Supreme Court. * a= i . 3 : 106 - : : a : pe i [fol. 119] . In The United States District Court | _" ™. . For The Northern District of Florida Pensacola Division "Robert Mitchum, d/b/a, The Book Mart, Plaintiff, @ *—VS— " ad \'s _. Clinton E. Foster, as Prosecuting Attorney of Bay County, Florida, and M.J. “DOC” Daffin, as Sheriff of Bay Copaty, Florida, Defendants. : 4 A Wie pee AOS MOTION FOR LEAVE TO AMEND THE COMPLAINT AND TO ADD PARTY DEFENDANT - Filed: June 4, 1970 : ey THE HONORABLE WINSTON E. ARNOW, : UNITED STATES DISTRICT JUDGE: ie Coinpliigient, by and ‘oi wo] sar oe - attorney, move the Court » for leave ‘to amend the complaint is filed herein and to add an additional Court II to the amended complaint filed ‘herein, a copy of said Count. II is attached "Shereto,and to add an additional party, The Honorable W. L., _ Fitzpatrick, it his capacity as Circuit Judge of the Circuit Court of. the. Fourteenth Judicial District in: and for Bay County, Florida; all pursuant to the Federal Rules. of Civil Procedure and ‘Particularly Rules 15 and 21 ‘upon the* wns Eee: ss Rs ie Bi "4. Jurladliction #0 requires. and no prejudice will résult to any of the parties herein, especially Clinton E. Foster. 2. The ‘aforesaid additional party is necessary and proper s as -appears from the order entered by ie & Fitzpatrick, 2 | nt Judge on April 6, 1970, and his subsequent Order to \: show cause dated May-29, 1970, and received. at 10:00 gS _on June 2, 1970. The aforesaid additional party, is subject to. ‘the jurisdiction of this Coutt and. can be made a party to the Es - Defendants without depriving this Court of jurisdiction. — . 3. “There - ne Sola: no answer .filed in the original complaint. by, Clinton E. Foster, emenine Attorney of Bay. County, Florida. aes ar oe J HEREBY CERTIFY that' a true copy of the foregoing. _.was furnished: by delivery to Clinton E, Foster, Esquire, Prosecuting {fol.. 120] attorney ‘of Bay County, Bay County ‘Courthouse, Panama City, Florida; Joe J. Harrell, Esquire, of _ Harrell, Wiltshire, Bozeman; Clark and Stone, 201 East’ Government Street, Pensacola, Florida; Honorable W. L. . Fitzpatrick, Circuit Judge, Bay County Courthouse, Panama; : City, Florida; Honorable M. J. “‘Doc’”’ Daffin, Sheriff of Bay ~ . County, Sheriff's Department, Panama City, Florida; this 2nd day of June, 1970; and will be delivered to Raymond . Marky, Esquire, Attorney General’s Offices The Capitol, TaNahassee, Florida, on the 3td day of June, 1970. : : oe, _ /s/ Paul Shimek, Jr. hee _. °. §17.North Baylen Street ee - * Pensacola, Florida — pe {fol 1211 Zt “In the United States Distritt Court for the 8 eaten District of Flotida, 2 + e. : cola Division - oe Jee me _ Robert Mitchum d/b/a ‘The Book Mart, — Plaintiff, | : Agee. et ok Ginton E. Foster, as Prosecuting ~ - " Attorney of Bay County, Florida, _M. J. “Doc” Daffin, as Sheriff of Bay County, : -Florida,‘and The _ Honorable Wy. 1. Pigpitrick; es: CC A SR * Circuit Judge ofthe Fourteenth .- AE Judicial Circuit in and for Bay ae as _ County, Florida, » eS Sek, cite Gee vce BOS ‘Defendants. oa get ue PCA 2224" . ‘AMENDED COMPLAINT FOR TEMPORARY RESTRAINING - _._+ ORDER, PRELIMINARY INJUNCTION, AND | PERMANENT INJUNCTION — — Filed Juite 4, 1970 : COUNT Ii SS ee S. “To THE HONORABLE WINSTON E. ARNOW, Lae UNITED STATES DISTRICT JUDGE: = oe Rey ntiff, by his cntuines attorey,. ath of. ie ‘the Defend at, THE HONORABLE W. L. peameease in oe ei \ . o . « Ne his coin. as. 5, Circuit Judge of the Fourteenth Judicial Gircuit gf the ‘State of Florida, in ahd fot. me Coumy, . 7. «Florida, respectfully: ae as follows: s sae oo The Plaintiff. herein - realleges the dailies Eebialands in hee 1 through 5. of the priganl complaint: 2: “Defendant; ‘THE. HONORABLE. We ae o eREZPATRICK is made a Defendant in his capacity as Circuit ‘Judge: of - the_ Fourteenth. Judi Circuit: fei the pee of a Fiptida in and for Bay er se = oe. Se a . Fe a 3. The Plaintiff herein sailigiee the allegations contained . in Paragraph 6 6. of the scene complaint. — 4 P 4.. At all times - Sianiil mentioned | the riignatwie: THE “ HONORABLE W. L. ‘FITZPATRICK, in his - capacity as. Circuit. Judge: of the Fourteenth Judicial Circuit of the State -. of Florida in and for Bay County, ‘Florida, acting under color - _ and pretense. of state. law and under the color of statutes, . regulations, customs and usage of the State of Florida, and . _: more particularly ‘Florida’s | obscenity. statute 847.011, AUTOFELLATIO AND. MASTURBATION, DOUBLE.UP and —- SUN YOUTH, Vol. 1, No. 4, were sold by the Book. Mart at: \ \ . . = \ ‘e owen Conniy alll Deve Ballue, are. anitoyen, ate: or. 3 The. Book Mart business at 19 Harrison Avenue, Panamia ‘City, ee oe Florida. Sy: 7 "24, 1970, the magazines‘ ROULETTE, [fol. 131] Vol. 3, No. a.” * 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 e Avenue, Panama City,. Florida. Sik Six magazines named above and. finds that said. magazines : ‘prominently and morbidly display the pubic ‘and .anal area.of. ee ‘human bogy. That ‘said magazines show nude males and .*, females in y ‘vaitety of suggestive positions - with “morbid .. + attention focused on the genitalia. They show nude males and ;- "doubt ~ suggest . that - natural,. unnatural, | perverted or 3° 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 the constant _ use of four-letter, words of the most vile and vulgar variety, ° _ describing, sex acts, sex functions, and the genitalia. The sex in sie migerins sitet, strong and inescapable. : ‘Magazines are obscene; [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0040%3A1. Public record. Not legal advice.