Amato v. Ruth

• Decision Date: 16 January 1970
• Docket Number: No. 69-C-303.,69-C-303.
• Parties: Myron M. AMATO, Plaintiff, v. Robert RUTH et al., Defendants.
• Court: U.S. District Court — Western District of Wisconsin

332 F. Supp. 326

Myron M. AMATO, Plaintiff, v. Robert RUTH et al., Defendants.

No. 69-C-303.

United States District Court, W. D. Wisconsin.

January 16, 1970.

Jerome Elliott, Beloit, Wis., for plaintiff.

Robert Ruth, Dist. Atty., Janesville, Wis., William Eich, Asst. Atty. Gen., Madison, Wis., T. P. Bidwell, City Atty., Nicholas Jones, Asst. City Atty., Janesville, Wis., for defendants.

OPINION AND ORDER

JAMES E. DOYLE, District Judge.

This is an action in which the plaintiff seeks (1) injunctive relief to prevent the defendants from proceeding with the prosecution of plaintiff for violation of Section 944.21(1) (a) of the Wisconsin Statutes and from proceeding with the prosecutions of plaintiff Amato, Robert Petitt, Maynard Miller and Frank Ryden for violations of Sections 9.07(2), 20.08, 20.09 of the Ordinances of the City of Janesville until such time as this court determines the constitutionality of said statute and ordinances; (2) injunctive relief to prevent the defendants from making any arrests under the "obscenity" statute or ordinances and from making any further seizures of matter they believe obscene, unless prior to such arrest or seizure the matter in question is determined to be obscene at an adversary hearing; (3) an order requiring defendants to return to plaintiff all books, magazines, movies and miscellaneous items seized; (4) a declaratory judgment that the above mentioned statute and ordinances are unconstitutional.

The court has before it the plaintiff's complaint; the affidavits of Wayne Udulutch and Leonard Nelson, police officers of the City of Janesville, Wisconsin; a copy of Section 9.07 of the Ordinances of the City of Janesville; and copies of the complaints charging plaintiff with violations of Section 944.21(1) (a) of the Wisconsin Statutes and Sections 9.07, 20.08 and 20.09 of the Ordinances of the City of Janesville. The facts as alleged in those documents are, as yet, uncontradicted and will be used for the purposes of deciding this motion:

On October 16, 1969, defendants Cochran and McDonnell, police officers of the City of Janesville, Wisconsin, entered plaintiff's book store and took from it, despite the objections of plaintiff, ten magazines, one paperback novel and two movies. The items were not paid for. No one was arrested. On October 17, 1969, a Janesville police officer, John Carter, and one Gary Brayshaw entered plaintiff's book store where each purchased a magazine from Amato. On the basis of those purchases, Amato was arrested and charged with two violations of Section 944.21(1) (a) of the Wisconsin Statutes. On October 20, 1969, various Janesville policemen entered plaintiff's store and removed from it 409 magazines, 401 paperback novels, 8 decks of playing cards, 3 8mm movies and 2 vibrators. The officers advised Amato to appear the following day in County Court, Branch 2, Rock County, Wisconsin. Amato appeared and was charged with violating Sections 9.07(2), 20.08 and 20.09 of the Ordinances of the City of Janesville. On October 21, 1969, 1 vibrator, 1 novel and 191 magazines were returned to Amato. On December 5, 1969, Janesville police officers entered the plaintiff's store. Maynard Miller and Robert Petitt were working as employees at the time. The officers took an undetermined number of books, magazines and movies, some of which were returned several hours later. Miller and Petitt were advised to appear in court on charges of violating certain ordinances of the City of Janesville. On December 10, 1969, Janesville police officers entered plaintiff's store and removed an unknown quantity of books and magazines. Plaintiff's employee, Frank Ryden, was taken to jail on unknown charges. On none of the occasions when Janesville police officers seized items from Amato's store did they have search warrants. At no time was there an adversary hearing to determine the obscenity of the items taken prior to their seizure by City of Janesville policemen.

On December 15, 1969, this court issued an order which directed defendants to return to plaintiff certain seized matter and temporarily restrained them from making any further seizures without a prior adversary hearing.

Plaintiff's additional requests for temporary relief; the motions of defendants Cochran, McDonnell and Bidwell to dismiss this action in part and to amend the temporary order of December 15, 1969; and the motion to dismiss of defendant Ruth are all presently before the court and will be more particularly outlined in the body of the opinion.

No jurisdictional allegation is made in the complaint, but jurisdiction of this action seems proper under 28 U.S.C. § 1343; 42 U.S.C. § 1983; and the Constitution of the United States and more particularly the First and Fourteenth Amendments thereto.

Prosecution Under Section 944.21 (1) (a) of the Wisconsin Statutes

Plaintiff requests that this court ultimately declare Section 944.21(1) (a) of the Wisconsin Statutes to be unconstitutional. He presently pursues entrance of a temporary order restraining his prosecution under the statute until such time as this court determines the statute's constitutionality. Defendant Ruth, District Attorney for Rock County, Wisconsin, moves to dismiss the action against him on the ground that the complaint fails to state a cause of action on which relief can be granted.

Amato's constitutional challenge is insubstantial. Defendant Ruth's motion to dismiss must be granted.

Amato first contends that in not defining "obscene" or "indecent", § 944.21(1) (a) is unconstitutionally vague. Plaintiff maintains that if the statute is intended to automatically comply with the definition of obscenity as set out by the United States Supreme Court, that fact should appear in the statute if it is to avoid unconstitutional vagueness.

Plaintiff's argument is not persuasive. The United States Supreme Court has upheld statutes with similar language when under the interpretation given the statute by state courts the proper standard for judging obscenity is applied. Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966); Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).

In Mishkin v. New York, supra, Mishkin was convicted of violating § 1141 of the New York Penal Law, McKinney's Consol.Laws, c. 40 for publishing, hiring others to prepare, and possessing with intent to sell obscene books. Among other grounds, § 1141 was attacked as invalid on its face in that it exceeded First Amendment limitations by proscribing publications that were "obscene", allegedly an impermissibly vague term. In resolving the attack, the United States Supreme Court looked to the interpretation placed on "obscene" by the New York courts:

"* * * The contention that the term `obscene' is also impermissibly vague fails under our holding in Roth v. United States, 354 U.S. 476, 491-492 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498. Indeed, the definition of `obscene' adopted by the New York courts in interpreting § 1141 delimits a narrower class of conduct than that delimited under the Roth definition, People v. Richmond County News, Inc., 9 N.Y.2d 578, 586-587 216 N.Y.S.2d 369, 175 N.E.2d 681, 685-686 (1961), and thus § 1141, like the statutes in Roth, provides reasonably ascertainable standards of guilt." 383 U.S. at 506-507, 86 S.Ct. at 962.

Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), concerned, inter alia, the validity of a federal obscenity statute which made punishable the mailing of material that was "obscene, lewd, lascivious, or filthy * * * or other publication of an indecent character" and the validity of a California statute which made punishable the keeping for sale of advertising material that was "obscene or indecent". In holding that both statutes withstood the attack that neither provided reasonably ascertainable standards of guilt and therefore violated the constitutional requirements of due process, the Court stated:

"Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. `* * * The Constitution does not require impossible standards'; all that is required is that the language `conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices * * *.' United States v. Petrillo, 332 U.S. 1, 7-8 67 S.Ct. 1538, 1542, 91 L.Ed. 1877. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark `* * * boundaries sufficiently distinct for judges and juries fairly to administer the law * * *. That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense * * *.' Id., at 7, 67 S.Ct., at page 1542. * * *

"In summary, then, we hold that these statutes, applied according to the proper standard for judging obscenity, do not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited." 354 U.S. at 491-492, 77 S. Ct. at 1312.

A proper standard for judging obscenity has been made a part of § 944.21(1) (a) of the Wisconsin Statutes by action of the Wisconsin Supreme Court.

Section 944.21(1) (a) has been upheld by the Wisconsin Supreme Court over constitutional objections based upon the First and Fourteenth Amendments to the United States Constitution. State v. Chobot, 12 Wis.2d 110, 106 N.W.2d 286 (1960), appeal dismissed, 368 U.S. 15 (1961). In McCauley v. Tropic of Cancer, 20 Wis.2d 134, 121 N.W.2d 545 (1963), the same court upheld a companion statute, Section 269.565, which provides a civil remedy against the dissemination of obscene material. In neither sta...