Motion to Dismiss — Hicks v. Miranda

SUBJECT INDEX

Page

Motion to Dismiss or Affirm ........-...-2--c0ce--.e-0--- 1

I, TN hii ie nsosceisaonevesneutensaiapsdebadesunes 2

I iio al 2

Questions Presented ............. SIRS ERE ee oe 2

Se BE i ichctdineivesscnicicncgisesrscicrnttdrendacnine 3

Statement of the Case ........c2---cescccescssesscseecsoeeeeoess 4

ALQUMENE ..........-.-..n2cnecneensseeneenssereeioesncenescsesecensnersetee 7

a iu sais uanlbiaomandasebuiaoabenenease 13

INDEX TO APPENDICES

Appendix A. Supplemental Memorandum Opinion

TABLE OF AUTHORITIES CITED

‘ Cases Page

Cinema Classics, Ltd. v. Busch, 339 F.Supp. 43

(C.D. Cal. 1972), affrmd. 409 U.S. 807

Gerstein v. Coe, 94 S.Ct. 2246

Gunn v. University Committee, 399 U.S. 383

Hamling v. United States, 94 $.Ct. 2887

Healy v. Pennsylvania Railroad Company, 181 F.2d

934 (3 Cir. 1950) ..:

Heller v. New York, 413 U.S. 483 .

“Marcus v. Search Warrants of Property, 367 U.S.

PORE. haiclecticadina sadaitsdpenisticaasabeberattilocsicicéniecsnenones 9

Miller v. California, 413 U.S. 15 Fe 333, 12, 13

People v. Enskat, 33 Cal.App.3d. 900, 109 Cal.

_ Rptr. 433 (1973) cert. denied 94 §.Ct. 3225

Perez v. Ledesma, 401 U.S. 82

Quantity of Copies. of Books v. Kansas, 378 U.S.

Rockefeller v. Catholic Medical Center of Brooklyn

and Queens, Inc., 397 U.S, 820 -

. Roe v. Wade,’ 410 U.S. 113

Samuels. vy. Mackell, 401 U.S. 66

Tucker v. Reading Company, 53 F.R.D. 453 (D.C.

Pa. 1971)

Turner v. HMH Publishing Company, 328 F.2d

136 (5 Cir. 1964) -..

United States v. Crescent Amusement Company,

323 US. 173 °

Younger v. Harris, 401 U.S. 37

iii.

Dictionary Page

Webster’s Third New International Dictionary, Un-

abridged (G.&C. Merriam Co., 1967) ................ 11

: Rules ©

Federal Rules of Civil Procedure, Rule 59 .......... 7

Federal Rules of Civil Procedure, Rule 59(a) .... 5

Federal Rules of Civil Procedure, Rule 59(e) ...... 5

Federal Rules of Civil Procedure, Rule 60(a) ...... 5

Federal Rules of Civil Procedure, Rule 60(b) .... 5;

Statutes

California Penal Code, Sec. 311 .o.sscccccccssssesessseeee 4

Colores Peel Code, Bic. S142 cc ccccsciccccericcccegs 4

I i scdiacahtemenewmeoamindaneals 11

ER TER be She ESE See ac onc ct 0 SORT 11

United Statés Code, Title 28, Sec. 1253 ............ :

CEL LEELA, EADS CoD ROTOR ie ee

United States Code, Title 28, Sec. 1331 -............... 4

United States Code, Title 28, Sec. 1343 ................ 4

United States Code, Title 28, Sec. 2281 ............. ee

United States Code, Title 42, Sec. 1983 ................ 4

United States Constitution, First Amendment ....5, 13

United States Constitution, Fourteenth Amendment

ESE SRE TENSE ICA NG RET OMS Ae SFE TORO ~ ee

Textbooks

9 Moore, Federai Practice, Sec. 203.11, n. 14... 7

11 Wright and Miller, Federal Practice and Pro-

ESS i EES Ee eee 7

IN THE

Supreme Court of the United States

October Term, 1974

No. 74-156

CECIL HICKS, District.Attorney of the County of Orange, State

of California; ORETTA SEARS, Deputy District Attorney of

the County of Orange, State of California; DUDLEY D.

GOURLEY, Chief of Police of the City of Buena Park,

County of Orange, State of California; ARTHUR FON-

TECCHIO, RICHARD HAFDAHL and DANIEL HARRI-

SON, Officers of the Police Department of the City of Buena

Park, County of Orange, State of California,

Appellants,

vs.

VINCENT MIRANDA, doing business as WALNUT PROPER-

TIES; and PUSSYCAT THEATRE HOLLYWOOD, a Cali-

fornia corporation,

Appellees.

On Appeal From the United States District Court for the

Central District of California.

MOTION TO DISMISS OR AFFIRM.

The Appellees move the Court to dismiss the appeal

herein on the ground that the appeal is not within the

jurisdiction of this Court because not taken in con-

formity with statute or rules of the Court or, in the

alternative, to affirm the judgment of the District Court

on the ground that the judgment, as amended on Sep-

tember 30, 1974, was clearly correct and that it is. mani-

fest upon the record herein that the questions on which

the decision of the cause depends are so unsubstantial

as not to need further argument.

patie

Opinions Below.

Appellants have appealed from a judgment of the

United States District Court for the Central District

of Califorr’ entered on July 4, 1974. The unreported

Memorandum Opinion of the District Court and the

Judgment appear as Appendix “A” to Appellants’ Ju-

risdictional Statement. The unreported Supplemental

Memorandum Opinion filed by the: District Court on

. September 30, 1974, appears as Appendix “A” hereto.

The Amendment to Judgment entered by the District

Court on September 30, 1974, amending the judgment

entered June 4, 1974, from which this appeal was

taken, appears as Appendix “B” hereto.

Jurisdiction.

It is respectfully submitted that the appeal herein is

not within the jurisdiction of this Court and is not

taken in conformity to statute or to the rules of this

Court. As discussed hereafter, reliance upon 28 U.S.C.

§1253 as purportedly conferring jurisdiction on this

Court of the appeal herein is unwarranted.

Questions Presented.

1. Whether the appeal should be dismissed as pre-

mature because Appellants filed Notice of Appeal to

this Court while their timely motions to amend the judg-

ment entered June 4, 1974, were pending, and where

subsequently the judgment was amended as to a matter

of substance on September 30, 1974.

2. Whether an appeal from a judgment of a three-

judge District Court granting a declaratory judgment

invalidating a state statute where no injunctive relief

was granted against the enforcement of the statute is

viediene

within the jurisdiction of this Court, or whether such

appeal lies only with the Court of Appeals.

3. Whether the judgment of the District Court, as

amended on September 30, 1974, was correct, where the

District Court found that Appellants, law enforcement

authorities, acting in bad faith and for the purpose

of harassment, seized four copies of a motion picture

film from Appellees’ theatre over a period of only two

days in violation of this Court’s ruling in Heller v.

New York, 413 U.S. 483, where the prosecution and

defense in the resulting state criminal prosecution stipu-

lated that all four copies were identical and that only

one Copy was needed for trial, and where the District

Court accordingly ordered Appellants to return to Ap-

pellees three of the four copies of the films seized.

4. Whether the judgment of the District Court, as

amended on September 30, 1974, was correct in declar-

ing the California obscenity statutes to be in violation

of the constitutional requirements enunciated by this

Court in Miller v. California, 413 U.S. 15, where the

District Court found that the state obscenity statutes,

on their face, are not limited to specifically defined

sexual conduct, and where the District Court found that

no limiting authoritative construction of the statutes

ever had been rendered by the state appellate courts.

Statutes Involved.

The provisions of 28 U.S.C. §§2281 and 1253, the

sections upon which Appellants rely to support their

jurisdictional claim are as follows:

§2281. An interlocutory or permanent injunc-

tion restraining the enforcement operation or execu-

tion of any State statute by restraining the action

jaa

of any officer of such State in the enforcement

or execution of such statute or of an order made

by an administrative board or commission acting

under State statutes, shall not be granted by any

district court or judge thereof upon the ground

of the unconstitutionality of such statute unless

the application therefor is heard and determined

by a district court of three judges under section

2284 of this title.

§1253. Except as otherwise provided by law, any

party may appeal to the Supreme Court from an

_ order granting or denying, after notice and hear-

ing, an interlocutory or permanent injunction in

any civil action, suit or proceeding required by

* any Act of Congress to be heard and determined

by a district court of three judges.

The pertinent provisions of the state obscenity stat-

utes, California Penal Code §§311 and 311.2, appear

in Appendix “E” to Appellants’ Jurisdictional State-

ment.

’ Statement of the Case.

On November 29, 1973, Appellees filed their Com-

plaint in the United States District Court for the Cen-

tral District of California, invoking the jurisdiction of

that Court under- 28 U.S.C. §§1331 and 1343. The

Complaint alleged that Appellants, law enforcement au-

thorities of the City of Buena Park and the County of

Orange, State of California, had acted to deprive Ap-

pellees, the owner of a theatre in Buena Park, his prop-

erty holding company, and the theatre corporation, of

certain constitutional rights (42 U.S.C. §1983). The

Complaint alleged that Appellants, acting under color

of the state obscenity statutes, seized four copies of a

scales

film from Appellees’ theatre within the space of two

days, prior to any judicial determination in an adver-

Sary proceeding that the film was obscene. It was al-

leged that the multiple seizures of the film, together with

seizures of all cash receipts present at the theatre, were

undertaken for the purpose of harassing Appellees and

suppressing exhibition of the film to the public. The

Complaint prayed for a declaratory judgment that the

state obscenity statutes violated the First and Fourteenth

Amendments to the United States Constitution, and for

the return of the seized property. A detailed statement

of the facts as found by the District Court appears in

the Court’s Memorandum Opinion (Appendix “A” to

Appellants’ Jurisdictional Statement, pp. 1-5).

Thereafter, a three-judge court was convened which

Court, on June 4, 1974, entered the judgment from

which Appellants have taken this appeal. The District

Court entered a judgment declaring the California ob-

Scenity statutes to be in violation of the mandate of

the United States Supreme Court as set forth in Miller

v. California, 413 U.S. 15, and ordered Appellants to

return to Appellees the property seized from Appellees’

theatre.

On June 14, 1974, Appellants filed timely motions

to amend and alter the judgment and for other relief

pursuant to Federal Rules of Civil Procedure, Rules

59(a) and (e), and Rules 60(a) and (b). While the

motions were still pending before the three-judge court,

Appellants filed Notices of Appeal to this Court on

July 5, 1974.* Appellants Hicks and Younger filed

Applications for Stays of the June 4 Judgment, which

*Appellants also filed Notices of Appeal to the Court of Ap-

peals for the Ninth Circuit.

pill

were denied by Mr. Justice Douglas on August 8 and

10, 1974.

On September 30, 1974, the District Court filed a

Supplemental Memorandum Opinion (Appendix “A”

hereto) setting forth its findings and conclusions with

respect to Appellants’ post-trial motions. Also on Sep-

tember 30, 1974, the District Court entered an amend-

ment to the Judgment entered June 4, 1974 (Appen-

dix “B” hereto). The Amendment deleted Paragraph

2 of the June 4 Judgment, requiring the return to Ap-

pellees of all four seized films and cash and added a

new Paragraph 2 to read as follows: That “The de-

fendants [Appellants] shall in good faith petition the

Municipal Court of the North Orange County Judicial

District to return to the plaintiffs [Appellees] three of

the four film prints seized from the plaintiffs on Novem-

ber 23 and 24, 1973 in the City of Buena Park.”

man, ea

ARGUMENT.

1. The appeal herein . from the judgment of the

District Court entered J une 4, 1974, is premature and,

it is submitted, should be dismissed. Prior to filing their

Notices of Appeal, Appellants filed timely motions to,

inter alia, amend or alter the judgment entered June 4,

1974. The motions raised matters of substance, not

form. Thereafter, on September 30, 1974, an amend-

ment to the judgment was entered substantively chang-

ing the origina] judgment. Where a timely motion under

Rule 59 of the Federal Rules of Civil Procedure has

been made and not disposed of, the judgment is not

final. Accordingly, the subsequent filing of a notice of

appeal is a nullity and does not deprive the trial court

of power to rule on the motion. Where the motion is

not addressed to mere matters of form but rather raises

questions of substance, e.g., if it seeks reconsideration

of basic findings of fact and conclusions of law, the’

purported appeal is premature and should be dismissed.

See, United States v. Crescent Amusement Company,

323 U.S. 173, 177-178; Turner v. HMH Publishing

Company, 328 F.2d 136 (5 Cir. 1964); Healy vy.

Pennsylvania Railroad Company, 181 F.2d 934 (3

Cir. 1950); Tucker v. Reading Company, 53 F.R.D.

453 (D.C. Pa. 1971); 11, Wright and Miller, Federal

Practice and Procedure §2821; 9, Moore, Federal Prac-

tice, §203.11, n.14.

2. An appeal from the judgment of the District

Court, as amended on September 30, 1974, is not with-

in the jurisdiction of this Court, but lies only with the

Court of Appeals to which Appellants also have filed

Notices of Appeal. In their Jurisdictional Statement, ad-

dressed only to the District Court’s judgment entered

icles

June 4, 1974, Appellants argued in essence that this

Court has jurisdiction over the appeal by virtue of that

portion of the June 4 judgment ordering the return to

Appellees of all four copies of the film seized from Ap-

pellees’ theatre. Relying upon Perez v. Ledesma, 401

U.S. 82, Appellants appear to contend that the order

to return all copies of the seized film operated to termi-

nate a pending state criminal prosecution and, accord-

ingly, constituted “an order granting . . . [a] permanent

injunction in any civil action, suit or proceeding re-

quired by any Act of Congress to be heard and de-

¢termined by a district court of three judges,” within

the meaning of 28 U.S.C. §1253. However, the amend-

‘ment to the June 4 judgment, entered September 30,

1974, deleted that portion of the original judgment re-

lied upon by Appellants as conferring jurisdiction upon

this Court to hear the appeal, and instead amended

the judgment to provide that “The defendants [ Appel-

lants] shall in good faith petition the Municipal Court

of the North Orange County Judicial District to return

to the plaintiffs [Appellees] three of the four film

prints seized from the plaintiffs on November 23 and

24, 1973 in the City of Buena Park.” [See, Appendix

_. hereto].

In its Supplemental Memorandum Opinion [ Appen-

dix “A” hereto}, the District Court noted that the

prosecution and defense in the state criminal prosecu-

tion arising out of the seizures had stipulated that all

four copies. of the film seized from Appellees’ theatre

were identical and that only one copy was needed for

trial. As a result, the amendment to the judgment per-

mitting Appellants to retain one copy of the film fore-

closes any contention that the District Court’s judgment

as amended will terminate or disrupt any state criminal

aii eeni

prosecution. Aside from the order to return three of the

four copies of the film seized, the judgment of the Dis-

trict Court grants only declaratory relief with respect to

the state statute involved. 28 U.S.C. §1253 does not

authorize an appeal to this Court from the grant or

denial of declaratory relief alone, but such appeal lies

only with the Court of Appeals. Gerstein v. Coe, 94

S.Ct. 2246; Gunn v. University Committee, 399 U.S.

383; Mitchell v. Donovan, 398 U.S. 427; Rockefeller v.

Catholic Medical Center of Brooklyn and Queens, Inc.,

397 U.S. 820; see also, Roe v. Wade, 410 U.S. 113,

123.

In the light of the foregoing, the Appellees submit

that the motion to dismiss the appeal upon the

ground that the appeal is not within the jurisdiction of

the Court should be granted.

3. In the alternative, the judgment of the District

Court, as amended, was clearly correct in all respects.

The essentially undisputed facts established that in the

two days after Appellees commenced exhibiting the film

in question at their theatre, Appellants seized in suc-

cession four copies of the film and all cash receipts at

the theatre. The four seizures were made pursuant to

search warrants issued ex parte, prior to any judicial

determination in an adversary proceeding that the film

was obscene.’ Immediately following the last of the

four seizures, the theatre ceased exhibition of the film

‘in question. Appellants never have contended that four

copies of the film were necessary as evidence in the

single state misdemeanor prosecution arising out of ex-

The adversary hearing a the alleged obscenity of the

film to which Appellants refer in their Jurisdictional Statement,

occurred only after gems multiple seizures of the film. See, Quantity

oy Copies of Books v. Kansas, 378 U.S. 205; Marcus v. Search

Warrants of Property, 367 U.S. 717.

eee

hibition of the film. Nor have Appellants ever sought

to justify seizure of all cash receipts from the theatre.

The massive seizures, prior to a judicial determination

of obscenity in an adversary proceeding, were under-

taken in clear violation of this Court’s ruling in Heller v.

New York, 413 U.S. 483. The District Court was mani-

festly correct in concluding that “the pattern of seizures

of the plaintiffs’ cash receipts and films demonstrate

that the police were bent upon a course of action that,

regardless of the nature of any judicial. proceeding, ©

would effectively exercise the movie ‘Deep Throat’

eout of Buena Park.” [Appendix “A” to Appellants’

Jurisdictional Statement, p. 18]. Such conduct, the Dis-

trict Court found, constituted law enforcement under-

taken in bad faith for the purpose of harassing Ap-

pellees in the exercise of their freedom of speech and

press.

The judgment of the District Court, as amended

September 30, 1974, appropriately ordered Appellants

to petition the state court to return to Appellees three

of the four seized copies of the film, the cash receipts

previously having been returned by means of a similar |

petition. Since it was stipulated that all four copies of

the film were identical, and that only one copy was

necessary as evidence in. the state criminal prosecution,

the District Court’s amended judgment granted ap-

propriate relief in the light of Heller v. New York, supra,

while refraining from terminating or disrupting the state

criminal prosecution. See, Cinema Classics, Ltd. v.

Busch, 339 F.Supp. 43 (C.D. Cal. 1972), affrmd.

409 U.S. 807.

4. Appellees submit further that the District Court

was correct in entering a declaratory judgment that

the California obscenity statutes, Penal Code §§311

i

On, ae

, and 311.2, are unconstitutional in the light of this

Court’s decision in Miller y. California, 413 U.S. 15.2

The California obscenity statutes, it is conceded, do

not specifically define any physical sexual conduct al-

legedly subject to regulation. On‘ their face, the state

statutes proscribe only expression. In this Court’s de-

cision in Miller y. California, 413 U.S. 15, the Court

made clear that state statutes designed to regulate

obscene materials must be carefully limited. The per-

missible scope of such regulation must be limited to |

works which depict or describe sexual conduct. “That

conduct must, be specifically defined by the applicable

state law, as written or authoritatively construed.” (413

U.S. at 23-24). The Court emphasized that under “the

holdings announced today, no one will’ be subject to

prosecution for the sale or exposure of obscene ma-

terials unless these materials depict or describe patently

offensive ‘hard core’ sexual conduct specifically defined

by the regulating state law, as written or construed.

' We are satisfied that these specific prerequisites will

| provide fair notice” (413 U.S. at 27). “Prerequisite” is’

defined as something that is “required beforehand; neces-

sary as a preliminary condition.” Webster’s Third New

International Dictionary, Unabridged (G.&C. Merriam

Co., 1967). : !

Since the California obscenity statutes are not on their

face limited to specifically defined sexual conduct,

‘the issue presented is whether the statutes as construed

*Threshold questions relating to the equitable principles ex-

pressed in Younger v. Harris, 401 U.S. 37 and Samuels v. Mack-

ell, 401 U.S. 66, and the doctrine of abstention are discussed in

detail in the District Court's Memorandum Opinion [ Appendix

“A” to Appellants’ Jurisdictional Statement] and in the District

Court’s Supplemental Memorandum Opinion funy “A”

urt’s discus-

hereto]. Appellees respectfully adopt the District

sion of these issues. , |

—12—

satisfy the criteria of Miller. Following this Court’s de-

cision in Miller, a California Court of Appeal impliedly

_ conceded that the statute as written does not meet the

Miller test, but nevertheless stated that the statute had

been authoritatively construed in the past so as to limit

its reach to specifically defined sexual conduct. People

v. Enskat, 33 Cal.App.3d 900, 109 Cal.Rptr. 433

(1973) (hearing denied by the California Supreme

Court, October 24, 1973) (cert. denied 94 S.Ct.

3225). In its Memorandum Opinion, the court below

analyzed the Enskat decision and reached the contrary

conclusion that no California appellate court ever had

authoritatively construed the state obscenity statutes to

confine their ambit only to specifically defined kinds of

sexual conduct {Appendix “A” to Jurisdictional State-

ment, pp. 12-15]. Moreover,-the Enskat decision itself

did not even purport to read into the state obscenity

Statutes as a limitation the examples of specific sexual

conduct referred to by this Court in Miller (413 U.S.

at. 25), nor any similar definitions. In its Supplemental

Meniorandum Opinion, the’ District Court noted that in

Hamling v. United States, 94 S.Ct. 2887, this Court up-

held the constitutionality of a federal obscenity statute

by construing that statute so as to limit its reach to

the examples of specific sexual conduct given by Miller.

As the court below noted, the California appellate court

in People v. Enskat, supra, rendered no such authorita-

tive construction of the California ae :* statute

[Appendix “A”, pp. 5-6].

Accordingly, because the California obscenity stat-

' utes on their face do not proscribe only sexual conduct

defined with specificity, and because the California ap-

pellate courts never have placed a satisfactory judicial

gloss upon the statutes, the District Court correctly con-

ee ae

cluded that the statutes do not provide fair notice of

what conduct is within their ambit, and thus do not

satisfy the First and Fourteenth Amendment standards

laid down by this Court in Miller.

Conclusion.

Wherefore, Appellees respectfully move the Court to

dismiss the appeal herein on the ground that the ap-

peal is not within the jurisdiction of this Court because

not taken in conformity to statute or rules of the Court,

or, in the alternative, to affirm the judgment of the Dis-

trict Court, as amended on September 30, 1974, on

the ground that the said judgment was clearly correct

and that it is manifest under the record here presented

that the questions on which the decision of the cause

depends are so unsubstantial as not to need further argu-

ment.

Respectfully submitted,

STANLEY FLEISHMAN,

Davip M. Brown,

FLEISHMAN, MCDANIEL, BROWN &

WESTON,

Counsel for Appellees.

SAM ROSENWEIN,

Of Counsel.

APPENDIX “A.”

Supplemental Memorandum Opinion.

United States District Court, Central District of Cali-

fornia.

Vincent Miranda, doing business as Walnut Proper-

ties; and Pussycat Theatre Hollywood, a California

corporation, Plaintiffs, v. Cecil Hicks, District Attorney

of the County of Orange, State of California; Oretta

Sears, Deputy District Attorney of the County of

Orange, State of California; Dudley D. Gourley, Chief

_ Of Police of the City of Buena Park, County of Orange,

State of California; Arthur Fontecchio, Richard Haf-

dahl, and Daniel Harrison, Officers of the Police Depart-

ment of the City of Buena Park, County of Orange,

State of California, Defendants. No. 73-2775-F.

Filed: Sept. 30, 1974.

Before Honorable Walter Ely, Circuit Judge, Honorable

William G. East, and Honorable Warren J. Fergu-

son, District Judges.

The defendants have filed appropriate motions to

amend the judgment in this case which was filed June

4, 1974.

They allege that: (1) this court was factually in

error when it held that the plaintiffs were not defend-

ants in a criminal prosecution; (2) the judgment is

contrary to the holding of the Supreme Court in Ham-

ling v. United States, .... U.S. ...., 42 U.S.L.W. 5035

(U.S. June 24, 1974); and (3) the injunctive part of

the judgment should be modified because (a) the mon-

ey seized has been returned to the plaintiffs and (b)

_ the films are under the custody of the Municipal Court -

= which is not a party to these proceedings.

cin

I

The first issue is one of serious consequence, for

it goes to the heart of the court’s reasoning on the

issue of abstention. The court bottomed its decision

on the abstention issue on the fact that no criminal

proceedings had been instituted in state court against

the plaintiffs by the date on which they filed their com-

plaint in this court.

The evidence submitted by the defendants here re-

veals the following: .

1. On the date of the filing of the complaint in

this case, November 29, 1973, there was pending in

the state municipal court an 8-count misdemeanor com-

plaint against Edward Lee Bailey and James Samuel

Lytell im connection with the exhibition of “Deep

Throat” in Buena Park.

2. Copies of that complaint were furnished this

court on December 3, 1973.

3. Neither Mr. Bailey nor Mr. Lytell are parties

to this action.

4. The complaint in this action was served upon

the District Attorney of Orange County by a deputy

United States marshal on January 14, 1974; the other

defendants had been served a few days before.

5. On January 15, 1974, a day after that service,

the criminal complaint in the state municipal court was

amended by the District Attorney of Orange County

to include Vincent Miranda and Walnut Properties,

Inc., plaintiffs in this action.

6. The defendants rely on the amended state

criminal complaint and urge abstention.

The operation of the abstention doctrine when crim-

inal charges are pending is outlined in a trilogy of

indies

cases decided in 1971: Younger v. Harris, 401 US.

37 (1971); Samuels v. Mackell, 401 U.S. 66 (1971);

and Perez v. Ledesma, 401 U.S. 82 (1971): In each

of those cases, a criminal indictment or information

had been filed against the plaintiff before a complaint

was filed in the federal district court. When no crim-

inal charge is pending, however, the case is governed

by the doctrine of Steffel v. Thompson, .... US.

42 U.S.L.W. 4357 (U.S. March 19, 1974). There, the

Court noted:

When no state criminal proceeding is pending at

the time the federal complaint is filed, federal in-

tervention does not result in duplicative legal pro-

ceedings or disruption of the state criminal justice

system. . . . 42 US.L.W. at 4360 (emphasis

added )

It is clear that for purposes of the abstention doctrine,

a determination of whether there is an “ongoing state

criminal prosecution” against the plaintiff is measured

as of the time of the filing of the complaint in federal

court. The fact that the defendants filed criminal

charges against the plaintiff after the instant case was

under consideration does not alter this court’s duty

to decide the controversy before it.

Furthermore, the later criminal charges would seem

to supply added justification for action by the, court.

The Chief. Justice, in a recent and extensive Separate

opinion, commented about the burdens and possible

ramifications of Younger v. Harris. See Allee v. Med-

rano, 42 U.S.L.W. 4736 (U.S. May 20, 1974) (Burg-

er, C. J., concurring in part and dissenting in part.)

He there noted that inferences of bad faith can arise

from the common activity of the prosecutors and the

BEM ora

police, inferences that the state may have had reasons

for bringing a prosecution other than an expectation of

securing a valid conviction. While the strict require-

ments of Younger are only of tangential relevance to

the prior opinion of this court, the evidence brought to

light by the petition for rehearing only serves to

strengthen the previous finding of bad faith and har-

assment. Reasonable people could certainly infer pros-

ecutorial misconduct from the course of action revealed

in the latest petition.

No explanation is given why criminal charges were

not instituted against the plaintiffs here until after the

filing and service of the complaint in this action. With-

out such an explanation it is reasonable for the court

to conclude that the institution of the criminal pro-

ceedings was in retaliation for the attempt by plain-

tiffs to have their constitutional rights judicially de-

termined in this court. That conclusion surely removes

this case from the abstention doctrine of Younger

and Mackell.

II

Defendants have requested that this court reconsider

its holding in light of the recent decision of the Su-

preme Court in Hamling v. United States, .... US. ....,

42 U.S.L.W. 5035 (U.S. June 24, 1974). There, the

Court upheld the constitutionality of a federal statute

which prohibits the mailing of obscene matter, holding

that the statutory language as construed met the specif-

icity test of Miller v. Caliornia, 413 U.S. 15 (1973).

More exactly, Justice Rehnquist referred to footnote

7 of United States v. 12 200-ft. Reels of Film, 413

U.S. 123, 130 (1973) as authority for the construc-

tion the Court offered in Hamling; i.e., that the terms

ae oe

“obscene”, etc., include the specific “hard-core” matter

as described in Miller at 25:

“(a) Patently offensive represengations or de-

scriptions of ultimate sex acts, normal or perverted,

actual or simulated.

(b) Patently offensive representations or de-

scriptions of masturbation, excretory functions,

and lewd exhibition of the genitals.”

See 42 U.S.L.W. at 5043. That such a construction

would be possible was noted by this court in its original

opinion; there is nothing in Hamling v. United States

to suggest that the Supreme Court there did anything

more than exercise its authority to construe federal

Statutes, an authority alluded to in that same footnote

7 of 12 200-ft. Reels. See United States v. Thirty-seven

Photographs, 402 U.S. 363 (1971); compare the dis-

senting opinion of Black, J., id. at 384.

More importantly, there is nothing in Hamling which

would lead this court to believe that the specificity re-

quirements of Miller have been overruled. The tenets

of Miller have not been met, either by the California

statute on its face or as construed, either pre-Miller

or in Enskat. There has been no construction by the

California courts of an obscenity standard based upon

specific acts, nor any formulation comparable to that

added to the federal statute in Hamling. The Supreme

Court in Hamling, in fact, points out in detail the in-

firmity of Enskat. In Hamling the Court set forth with

regard to the federal statute a specific jury instruction

which meets the specificity test of Miller. However, no

such specific instruction is found in Enskat, nor can

one be inferred. Nothing in that opinion contains lan-

guage from which an instruction to a jury could be

ce Ne

drawn as to what specific conduct may be constitution-

ally proscribed.

This court is also faced with the recent dismissal by

the Supreme Court of Miller v. California,

jee , 42 U.S.L.W. 3711 (U.S. July 25, 1974) (Miller

Il), “for want of a substantial federal question.” When

Miller v. California, 413 U.S. 15 (1973) (Miller I)

was decided in the 1973 term of the Court, the case

itself was remanded to the state courts in light of the

new obscenity standards developed therein. Upon re-

mand, the case was reaffirmed by the Appellate Depart-

ment of the California Superior Court of Orange

County with the following notation: “affirmed, People

v. Enskat (1973) 33 Cal.App. 3d 900”. People v.

Enskat was docketed with the Supreme Court sub nom.

Enskat v. California; the writ of certiorari in that dis-

cretionary appeal was denied: 42 U.S.L.W. 3712 (USS.

July 25, 1974).

Enskat is the case discussed and analyzed in the

original opinion in this case. The denial of the writ of

certiorari in that case does not operate as a decision on

the merits. See Polites v. United States, 364 U.S. 426,

433 n. 9 (1960); United States v. Shubert, 348 US.

222, 228 n. 10 (1955). The appeal in Miller, however,

was taken under 28 U.S.C. § 1257(e) as an appeal of

right. This court must now ascertain whether the sum-

mary action in Miller II operates as a decision on the

merits of the challenge to the constitutionality of the

California obscenity statute.

The question is one which has led to commentary by

many of this country’s preeminent Federal Jurisdiction

and Constitutional Law scholars. Professor Bickel would

characterize a dismissal for lack of a substantial fed-

— :

eek, Me

eral question as a refusal by the Court to exercise its

jurisdiction; a reflection of pragmatic considerations

and institutional expediency, but not necessarily a de-

cision on the merits. A. Bickel, The Least Dangerous

Branch (1962). Professor Wechsler, however, feels that

the Court should not have the option to decide or reject

those cases before it on appeal as of right. H. Wechsler,

Towards Neutral Principles of Constitutional Law

(1961). Professor Gunther sides with the antidiscre-

tion forces, terming those instances in which the Court

has clearly ducked a substantial federal question as

“aberrations.” Gunther, The Subtle Vice of the “Pas-

sive Virtues’—A Comment on Principle and Expedi-

ency in Judicial Review, 64 Colum. L. Rev. 1, 12

(1964). |

Defendants have mistakenly asserted that Justice

Brennan’s separate opinion in Ohio ex rel. Eaton v. ~

Price, 360 U.S. 246 (1959) forecloses the question and

definitely establishes that such a dismissal is on the

merits. Justice Brennan was not there speaking for the.

Court, which itself had done no more than note prob- .

able jurisdiction of the case on the basis of a 4-4 vote.

Rather, he was expressing his personal displeasure at

the decision of four of his colleagues to make known

the reason for their votes against noting jurisdiction.

His statement were, therefore, no more than one justice’s

passing comments on an issue not before the Court.

It should be noted tangentially that quite a different

issue arises when, after deliberation, the Court affirms

a decision below by a 4-4 vote, as happened after oral

argument in the Eaton case. 364 U.S. 263 (1960). Be-

cause of lack of agreement by a majority of the Court,

many people, including Justice Brennan, feel that such

affirmances, while binding on the parties, have no

nieces

value as precedent. See 364 U.S. at 264; United States v.

Pink, 315 U.S. 203, 216 (1942); Hertz v. Woodman,

218 U.S. 205, 212-14 (1910).

Thus this court can do no more than take note of |

Justice Brennan’s statement on the dismissal question,

and perhaps contrast it with the apparent thrust of Jus-

tice Harlan’s dissent in Redrup v. New York, 386 US.

767, 771 (1967) at 772, in which he seemed to em-

brace the Bickel view and equate dismissal of a writ of

certiorari as improvidently granted with a dismissal of

an appeal for want of a substantial federal question.

+More recently, Justice Rehnquist, writing for the Court

in Edelman v. Jordan, 94 S. Ct. 1347, 1359-60

(1974), suggested that a summary affirmance would

carry less weight as precedent than a written affirmance

after deliberation. See Jordan v. Gilligan, .... F.2d ....

(No. 73-1973) (7th Cir. July 19, 1973).

The Courts in several circuits have been confronted

with the problem: see, for example, Ahern v. Murphy,

457 F.2d 363 (7th Cir. 1972); Hall v. Thornton, 445

F.2d 834 (4th Cir. 1971); Heaney. Allen, 425 F.2d

869 (2nd Cir. 1970); Cross v. Bruning, 413 F.2d 678

(9th Cir. 1969); Port Authority Bondholders Protec-

tion Committee v. Port of New York Authority, 387

F.2d 259 (2nd Cir. 1967). Uniformly those courts

have held that they will not themselves hear a question

the Supreme Court has previously branded as “insub-

stantial.” Two of these courts relied in part on Justice

Brennan’s opinion in Eaton, supra, giving it what this

court has discussed above as erroneous precedential

value. See 457 F.2d at 364; 445 F.2d at 835. A widely

cited student law review article, however, has criticized

the Port Authority decision, pointing out that the prase

“want of a substantial federal question” can have sev-

i. Tig Se —s

oe

eral meanings, not all of which should foreclose an-

other federal court from exercising jurisdiction: “Where

the Court was presented for the first time with a non-

frivolous federal claim, and dismissed it summarily, it

would be excessively harsh to hold that no lower fed-

eral court could thenceforth rule in favor of the argu-

ment advanced.” Comment, The Significance of Dis-

missals “For Want of a Substantial Federal Question”:

Original Sin in the Federal Courts, 68 Colum. L. Rev.

785, 791 (1968).

The highly speculative nature of lower court pro-

nouncements about the import of Supreme Court sum-

mary procedures is made evident even in Judge Friend-

ly’s opinion in Port Authority, 387 F.2d at 262 n. a

therefore it seems to this court safe to say that there is

at least equal merit in a position opposite to that taken

in the cases discussed above.

It is apparent that only the Supreme Court itself can

resolve the dilemma. When this court considered the

problem of the constitutionality of the California obscen-

ity statute and the construction rendered by the state

court in Enskat, there was certainly a substantial federal

question presented. Since the summary treatment of

Miller II upon remand is inextricably tied to Enskat,

a case in which there was merely a denial of certiorari,

this court cannot attach plenary precedential value to

the summary treatment. There have been no doctrinal

changes in the time between the original decision here

and this petition for rehearing which should alter the

previous determination.

ee ae

: Ill *

All parties concede that the money seized from the |

theater has now been returned, and therefore it is

proper that that requirement be eliminated from the

judgment of June 4, 1974.

_ With reference to the return of the four films, the

evidence presented to this court shows the following:

1. On January 29, 1974 at pre-trial hearings in

the state municipal court, the Assistant District At-

torney of Orange County stipulated that all four of the

prints seized were identical. That stipulation was ac-

¢Cepted by defense counsel. The court stated “the stipu-

lation will be received.”

2. The Assistant District Attorney stated that

“Well, I think we’re trying to resolve the problem in a

practical fashion, Your Honor—lIt’s not our desire to

have to show more than one of those films at the time

of trial if we can avoid it.”

3. Plaintiffs’ counsel have stated that they ills to

honor that stipulation and therefore do not oppose the

state officials’ retaining one copy of the film.

Technically the defendants may be correct in saying

that they have no power to return the film since it is

in the custody of the Municipal Court. However, there

was apparently little or no difficulty encountered by

anyone .involved in returning to the plaintiffs their

money. At the January 29th proceeding in the Munici-

pal Court, the Assistant District Attorney stipulated

with defense counsel that the money would be returned

to the plaintiffs here on their agreement that the police

could make copies of the bills and cash and that the

copies could then be admitted at trial. The Municipal

Court judge agreed that “the stipulation will be re-

ceived as stated.” The money was thereupon returned.

—— . sete amen

inal Tia,

It appears that there should be no difficulty what-

soever in following a similar approach in returning

three of the films to the plaintiffs. If that transaction

will require petitioning the state court to release the

films, the burden is upon the defendants to So petition.

Paragraph two of the judgment of this court will be

amended to read as follows:

2. The defendants shall in good faith petition

the Municipal Court of the North Orange County

Judicial District to return to the plaintiffs three of

the four film prints seized from the plaintiffs on

November 23 and 24, 1973 in the City of Buena

‘Park. |

Except as \ the judgment will be so modified, the mo-

tions of the defendants are denied.

Dated this 30 day of September, 1974.

/s/ Walter Ely |

WALTER ELY

United States Circuit Judge

/s/ William G. East

WILLIAM G. EAST _

United States District Judge .

/s/ Warren J. Ferguson

WARREN J. FERGUSON

United States District Judge

/

pore |, Veen

APPENDIX “B.”

Amendment to Judgment.

United States District Court, Central District of Cali-

fornia.

Vincent Miranda, Pave business as Walnut Proper-

ties; and Pussycat Theatre Hollywood, a California

corporation, Plaintiffs, v. Cecil Hicks, District Attorney

of the County of Orange, State of California; Oretta

Sears, Deputy District Attorney of, the County of

Orange, State of California; Dudley D. Gourley, Chief

, of Police of the City of Buena Park, County of Orange,

" State of, California; Arthur Fontecchio, Richard Haf-

dahl, and Daniel Harrison, Officers of the Police De-

partment of the City of Buena Park, County of Orange,

State of California, Defendants. Civil No. 73-2775-F.

Filed: September 30, 1974. a

Before Honorable Walter Ely, Circuit Judge, Honorable

‘William G. East, and Honorable Warren J. Fergu-

son, District Judges. :

The court having heretofore issued its Supplemental

‘Memorandum Opinion, said opinion constituting its

findings of fact and conclusions of law in accordance

with the provisions of Rule 52(a) of the cena es

Rules of Civil Procedure,

IT IS DECREED as follows:

1. Paragraph two of the judgment of this court

filed June 4, 1974 in this ene is amended to

read as follws:

2. The defendants shall in a faith petition |

the Municipal Court of the North Orange County

Judicial District to return to the plaintiffs three of

ae, eee

the four film prints seized from the plaintiffs on

November 23 and 24, 1973 in th. City of Buena

Park.

Dated this 30th day of September, 1974.

/s/ Walter Ely

WALTER ELY

United States Circuit Judge

/s/ William G. East

WILLIAM G. EAST

United States District Judge

/s/ Warten J. Ferguson

WARREN J. FERGUSON

United States District Judge