292 F.Supp. 185 (N.D.Ill. 1968), 68 C 1714, Cambist Films, Inc. v. State of Illinois

Docket Nº:68 C 1714.
Citation:292 F.Supp. 185
Party Name:CAMBIST FILMS, INC., a New York corporation, Plaintiff, v. STATE OF ILLINOIS, George Sangmeister, State's Attorney of Will County, Illinois, Martin Jackson, Sheriff of Will County, Illinois and Dennis Jaskoviak, Chief Deputy Sheriff of Will County, Illinois, Defendants.
Case Date:October 21, 1968
Court:United States District Courts, 7th Circuit, Northern District of Illinois

Page 185

292 F.Supp. 185 (N.D.Ill. 1968)

CAMBIST FILMS, INC., a New York corporation, Plaintiff,

v.

STATE OF ILLINOIS, George Sangmeister, State's Attorney of Will County, Illinois, Martin Jackson, Sheriff of Will County, Illinois and Dennis Jaskoviak, Chief Deputy Sheriff of Will County, Illinois, Defendants.

No. 68 C 1714.

United States District Court, N.D. Illinois, Eastern Division.

Oct. 21, 1968

Oct. 16, 1968

Page 186

Russell G. Miller, Mass & Miller, Chicago, Ill., Jerald S. Galowich, Galowich, Galowich & McSteen, Joliet, Ill., for plaintiff.

William G. Clark, by Michael Lyons, Chicago, Ill., for defendants.

FINDINGS OF FACT and CONCLUSIONS OF LAW

WILL, District Judge.

This is an action brought under the Civil Rights Act, 42 U.S.C. § 1983, in which plaintiff, Cambist Films, seeks injunctive relief from the seizure of a motion picture and from a criminal prosecution based on the alleged offense of obscenity. The Court, having considered the pleadings, exhibits and statements of counsel, and after having viewed the motion picture film entitled 'Aroused', hereby enters the following Findings of Fact and Conclusions of law.

Findings of Fact

1. Plaintiff, Cambist Films, is a corporation duly organized and existing under the laws of the State of New York, and owns, licenses, distributes and makes moving picture films.

2. The individual defendants, George Sangmeister, Martin Jackson, and Dennis Jaskoviak are citizens of the State of Illinois and officials of the State of Illinois.

3. This Court has jurisdiction of the subject matter of this action under 42 U.S.C. § 1983.

4. On or about June 1, 1968, defendant George Sangmeister, together with Will County Circuit Judge Michael A. Orenic, Will County Magistrate Thomas Wilson, and defendant Dennis Jaskoviak viewed the film 'Aroused', as patrons of the Princess Theatre, 62 North Chicago Street, in Joliet, Illinois.

5. After viewing the film 'Aroused' and without notice to the owner of the film, Cambist Films, or to the exhibitor, Princess Theatre, or to its Manager, Aaron E. Tribbett, and without their consent, and without affording said persons an opportunity to be heard or be present, on June 1, 1968 defendant Jaskoviak signed a criminal Complaint asserting that he had viewed the film, that the film was obscene, and that the film was showing at the Princess Theatre in Joliet, Illinois.

6. Pursuant to the filing of said criminal Complaint, a warrant for the arrest of Aaron E. Tribbett, Manager of the Princess Theatre, was issued on June 1, 1968, by Thomas Wilson, Magistrate in the Circuit Court of the 12th Judicial District, Will County, and a search warrant was also issued directing that the Princess Theatre in Joliet, Illinois be searched and that all prints of the film 'Aroused' found therein be seized.

6. On June 1, 1968, defendants Jaskoviak, Sangmeister and other persons entered onto the premises of the Princess Theatre, 62 North Chicago Street, Joliet, Illinois, and seized the print of the moving picture 'Aroused' consisting of four reels of film, pursuant to the search warrant issued by Magistrate Wilson. Defendants also arrested Aaron E. Tribbett, Manager of the Princess Theatre, pursuant

Page 187

to the Warrant of Arrest issued by Magistrate Wilson.

7. The seizure of the film 'Aroused', and the arrest of Mr. Tribbett, were accomplished without any prior adversary hearing on the question of obscenity.

8. In Metzger v. Illinois, Civil No. 67 C 2194 (N.D.Ill. filed June 19, 1968), a judge of this court enjoined the seizure of the film 'I, A Woman' and related criminal prosecution by officials of the State of Illinois, on the ground that there had been no adversary hearing on the question of obscenity prior to the seizure and arrest. On October 3, 1968, defendant Sangmeister was joined as party defendant in the Metzger case and was ordered to return the film 'I, A Woman' to the persons from whom it had been seized, and was restrained from taking any further steps, other than to ask for dismissal, in the criminal prosecution entitled People v. Margaret Scalan, W 67 C-47, which was then pending in the Circuit Court of the 12th Judicial District, Will County, Illinois.

Conclusions of Law

1. The Court has jurisdiction of the subject matter and jurisdiction over the parties.

2. Plaintiff has standing to bring this action and the complaint states a claim on which relief may be granted.

3. The seizure of the print of the motion picture 'Aroused' made pursuant to the search warrant executed by Magistrate Wilson on June 1, 1968, was made in violation of the First Amendment of the Constitution of the United States.

4. Because the motion picture 'Aroused' is not obscene and because defendants have engaged in a continuing course of conduct in violation of the Constitution of the United States, this Court must enjoin defendants from any criminal prosecution based on the alleged offense of obscenity.

OPINION

This is an action brought under the Civil Rights Act, 42 U.S.C. § 1983, in which plaintiff asks for equitable relief from the seizure of a motion picture film ubiquitously entitled 'Aroused', and for an injunction against a criminal prosecution on the charge of obscenity for exhibiting the film in question. The undisputed facts of this case are that prior to the seizure of the film, the State's Attorney of Will County, Illinois, a Magistrate to Will County, a Circuit Judge of Will County, and defendant Jaskoviak, viewed the film while it was showing at the Princess Theatre, in Joliet, Illinois. A criminal complaint was subsequently executed and filed on June 1, 1968, against Aaron E. Tribbett, Manager of the Princess Theatre, in the Circuit Court of the 12th Judicial District of the State of Illinois, Magistrate Division, and a warrant for the arrest of Mr. Tribbett was issued. Simultaneously a search warrant was also issued directing that the Princess Theatre be searched and all prints of the film found therein be seized. The arrest and search warrants were executed on the same day, June 1, 1968.

The seizure of the film and the related criminal prosecution were undertaken in clear violation of the First Amendment of the Constitution of the United States. It is well established that prior to suppression by law enforcement officials of allegedly obscene material there must be an adversary hearing on the question of obscenity. The law demands this procedural safeguard to ensure against the prior restraint and suppression of constitutionally protected expression. 1 A Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 211-222, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964) ;

Page 188

Metzger v. Pearcy, 393 F.2d 202 (7th Cir. 1968). Defendants contend that the constitutional requirement of an adversary hearing was satisfied in this case by virtue of the informal gathering of the prosecuting authorities, a local Magistrate and a County Circuit Judge in the Princess Theatre, which took place before the film was seized. But there is no due process, constitutional or otherwise, in such a gathering. A judge is not discharging the duties of his office or conducting court when he attends a movie theatre as a paying patron....

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