725 F.2d 482 (9th Cir. 1984), 82-3441, J-R Distributors, Inc. v. Eikenberry

Docket Nº:82-3441, 82-3442 and 82-3500 through 82-3504.
Citation:725 F.2d 482
Party Name:J-R DISTRIBUTORS, INC., Plaintiff-Appellant, v. Kenneth EIKENBERRY, in his official capacity as Attorney General for the State of Washington; Donald C. Brockett, in his official capacity as Prosecuting Attorney for Spokane County, State of Washington, James Sloane, in his official capacity as City Attorney for the City of Spokane, Washington, Jeffr
Case Date:February 06, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 482

725 F.2d 482 (9th Cir. 1984)

J-R DISTRIBUTORS, INC., Plaintiff-Appellant,

v.

Kenneth EIKENBERRY, in his official capacity as Attorney

General for the State of Washington; Donald C. Brockett, in

his official capacity as Prosecuting Attorney for Spokane

County, State of Washington, James Sloane, in his official

capacity as City Attorney for the City of Spokane,

Washington, Jeffrey C. Sullivan, in his official capacity as

Prosecuting Attorney for the County of Yakima, State of

Washington, and Fred Andrews, in his official capacity as

City Attorney for the City of Yakima, Washington,

Defendants-Appellees.

AZURE ENTERTAINMENT CORPORATION OF WASHINGTON, Plaintiff-Appellant,

v.

Kenneth EIKENBERRY, in his official capacity as Attorney

General for the State of Washington; Donald C. Brockett, in

his official capacity as Prosecuting Attorney for Spokane

County, State of Washington; and James Sloane, in his

official capacity as City Attorney for the City of Spokane,

Washington, Defendants-Appellees.

Jack R. BURNS, in his representative capacity as Executor of

the Estate of Selom F. Burns, Plaintiff-Appellant,

v.

The Honorable Kenneth EIKENBERRY, as Attorney General of the

State of Washington, in his representative

capacity only, Defendant-Appellee.

PLAYTIME THEATRES, INC., a Washington Corporation, Plaintiff-Appellant,

v.

The Honorable Kenneth EIKENBERRY, as Attorney General of the

State of Washington, in his representative capacity, only,

Donald C. Brockett, Prosecuting Attorney of Spokane County,

in his representative capacity only, and James Sloane,

Spokane City Attorney, in his representative capacity only,

Norm Maleng, Prosecuting Attorney of King County in his

representative capacity only, Defendants-Appellees.

KUKIO BAY PROPERTIES, INC., a Washington Corporation,

Plaintiff-Appellant,

v.

Norm MALENG, Prosecuting Attorney of King County, in his

representative capacity only, Defendant-Appellee.

SPOKANE ARCADES, INC., a Washington Corporation, Plaintiff-Appellant,

v.

The Honorable Kenneth EIKENBERRY, as Attorney General of the

State of Washington, in his representative capacity only,

Donald C. Brockett, Prosecuting Attorney of Spokane County,

in his representative capacity only, and James Sloane,

Spokane City Attorney, in his representative capacity only,

Defendants-Appellees.

The AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON; Madrona

Publishers, Inc., Superior Publishing Company; Washington

Library Association; Pacific Northwest Booksellers

Association; Motion Picturers Exhibitors of Washington,

Alaska, and Northern Idaho; Washington State Council of

Teachers of English; Washington Library Media Association;

and The Community College Librarian and Media Specialists

Association of Washington, Plaintiffs-Appellants,

v.

The Honorable Kenneth EIKENBERRY, as Attorney General of the

State of Washington, in his representative

capacity only, Defendant-Appellee.

Nos. 82-3441, 82-3442 and 82-3500 through 82-3504.

United States Court of Appeals, Ninth Circuit

February 6, 1984

Argued and Submitted May 6, 1983.

Page 483

[Copyrighted Material Omitted]

Page 484

John H. Weston, David M. Brown, G. Randall Garrou, Brown, Weston & Sarno, Beverly Hills, Cal., Carl Maxey, The Maxey Law Firm, Spokane, Wash., Jack Burns, Belleveue, Wash., Charles Stixrud, James Lowe, Seattle, Wash., for plaintiffs-appellants.

Kenneth O. Eikenberry, Atty. Gen., Christine O. Gregoire, Deputy Atty. Gen., Olympia, Wash., for defendants-appellees.

Richard C. Robinson, Spokane, Wash., for James C. Sloane.

David A. Saraceno, Spokane, Wash., for Donald C. Brockett.

Charles Hamilton, III, Deputy Prosecuting Atty., Seattle, Wash., for King County.

Jeffrey Sullivan, Prosecuting Atty., Yakima, Wash., for Yakima County.

Fred Andrews, City Atty., Yakima, Wash., for City of Yakima.

Robert Eugene Smith, Encino, Cal., for Playtime Theaters and Kukio Bay Properties.

Appeal from the United States District Court for the Eastern District of Washington.

Before GOODWIN, WALLACE, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Plaintiffs in these consolidated appeals challenge the constitutionality of Washington state's comprehensive anti-obscenity statute. Plaintiffs contend that various provisions of the statute are unconstitutionally overbroad or vague; that the statute's definition of obscenity varies impermissibly from that established by the Supreme Court; that the statute's penalty provisions and lack of procedural safeguards serve to chill protected first amendment expression; and that the sanctions imposed by the statute violate the eighth amendment's prohibition against cruel and unusual punishment. After a trial on the merits, the district court rejected plaintiffs' challenges and refused to enjoin enforcement of the statute. We find that the anti-obscenity statute is unconstitutional and reverse.

BACKGROUND

In 1977 the voters of the state of Washington adopted an initiative measure that established procedures to temporarily and permanently enjoin the operation of moral nuisances. Wash.Rev.Code Secs. 7.48.050-100 (West.Supp.1980). In a decision affirmed by the Supreme Court, we found that this moral nuisance law was unconstitutional because it failed to provide procedural safeguards necessary for the protection of first amendment freedoms. Spokane Arcades, Inc. v. Brockett, 631 F.2d 135, 137-39 (9th Cir.1980), aff'd, 454 U.S. 1022, 102 S.Ct. 557, 70 L.Ed.2d 468 (1981).

Apparently in response to the fact that the voters' initiative measure had been declared unconstitutional, the Washington state legislature enacted into law the statute that plaintiffs challenge here. This statute, known as House Bill 626, 1 establishes a dual system of civil and criminal penalties for those who maintain "moral nuisances" as defined in Section II.

House Bill 626 became effective on April 1, 1982. On April 5, 1982, plaintiffs J-R Distributors and Azure Entertainment

Page 485

Corporation filed separate suits in the United States District Court for the Eastern District of Washington. These suits, brought pursuant to 42 U.S.C. Sec. 1983 (Supp. IV 1980), sought declaratory and injunctive relief against the statute's enforcement. Subsequently, the five other plaintiffs filed similar law suits. All seven cases were consolidated by the district court. 2

On April 13, 1982, the district court issued a preliminary injunction against enforcement of House Bill 626. The case proceeded to trial before the district judge, and on July 2, 1982, the court rejected plaintiffs' challenges and affirmed the constitutionality of House Bill 626. Spokane Arcades, Inc. v. Eikenberry, 544 F.Supp. 1034 (E.D.Wash.1982). Although the district judge denied plaintiffs' motion for an injunction pending appeal, he did stay his judgments to allow plaintiffs to seek a stay pending appeal from this court. Ninth Circuit Rules of Appellate Procedure, Rule 6(i). On October 13, 1982, we granted the motions of plaintiffs J-R and Azure and enjoined the enforcement of House Bill 626 pending resolution of this appeal.

We exercise jurisdiction under 28 U.S.C. Sec. 1331 (1976), because plaintiffs' claims raise federal questions, and under 28 U.S.C. Sec. 1343(3) (1976), because plaintiffs allege civil rights violations under section 1983. 3

FACIAL CHALLENGES TO ALLEGEDLY UNCONSTITUTIONAL STATUTES

Plaintiffs' constitutional attacks on House Bill 626 were launched almost immediately

Page 486

after the statute became effective. Prior to trial, the district court issued an injunction against enforcement of the statute, and we have done the same for the pendency of this appeal. Consequently, Washington state, county and city officials have not yet had the opportunity to enforce House Bill 626. 4 Plaintiffs' suits thus constitute facial challenges to a statute that has yet to be authoritatively interpreted or enforced.

The Supreme Court has consistently entertained facial challenges when first amendment rights have been at stake. As Justice Marshall recently emphasized, the Supreme Court has "repeatedly recognized that a statute which sweeps within its ambit a broad range of expression protected by the First Amendment should be struck down on its face." United States v. Grace, --- U.S. ----, ----, 103 S.Ct. 1702, 1712, 75 L.Ed.2d 736 (1983) (Marshall, J., concurring in part and dissenting in part) (footnote omitted). See, e.g., United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Keyishian v. Board of Regents, 385 U.S. 589, 609-610, 87 S.Ct. 675, 687-688, 17 L.Ed.2d 629 (1967); Elfbrandt v. Russell, 384 U.S. 11, 19, 86 S.Ct. 1238, 1242, 16 L.Ed.2d 321 (1966); Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22 (1965); Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093 (1940); Lovell v. Griffin, 303 U.S. 444, 451, 58 S.Ct. 666, 668, 82 L.Ed. 949 (1938). Specifically, the Supreme Court has upheld such overbreadth challenges in cases involving the regulation of obscenity. See, e.g., Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959).

Were facial challenges not permitted, overbroad statutes would often restrict protected expression, even though they might ultimately be declared unconstitutional. To begin with, first amendment freedoms "are delicate and vulnerable,"...

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