Cactus Corp. v. State ex rel. Murphy, 2

• Decision Date: 09 February 1971
• Docket Number: No. 2,CA-CIV,2
• Parties: CACTUS CORPORATION, dba the Apache Drive-In Theatre, Appellant and Cross-Appellee, v. STATE of Arizona, ex rel. Lewis C. MURPHY, City Attorney, City of Tucson, Appellee and Cross-Appellant. 835.
• Court: Arizona Court of Appeals

Page 375

480 P.2d 375

14 Ariz.App. 38

CACTUS CORPORATION, dba the Apache Drive-In Theatre, Appellant and Cross-Appellee, v. STATE of Arizona, ex rel. Lewis C. MURPHY, City Attorney, City of Tucson, Appellee and Cross-Appellant.

No. 2 CA-CIV 835.

Court of Appeals of Arizona, Division 2.

Feb. 9, 1971.

Rehearing Denied March 15, 1971.

Review Denied April 20, 1971.

Brown & Finn, by Michael J. Brown, Tucson, for appellant and cross-appellee.

Lewis C. Murphy, Tucson City Atty. by William E. Hildebrandt, Asst. City Atty., Tucson, for appellee and cross-appellant.

PER CURIAM.

This appeal is from a judgment in the trial court which permanently enjoined the appellant and cross-appellee (hereinafter referred to as the defendant) from displaying, showing or running a motion picture film entitled 'Lysistrata', or any other motion picture film of the same character, on the screen of a drive-in movie operation, so as to be visible from a nearby public highway, and/or right-of-way, and/or the nearby neighborhood, on the basis that such activity is or would be a public nuisance as defined by A.R.S. § 13--601 (1956). ¹ The film 'Lysistrata' contains scenes of nudity, apparent heterosexual intercourse, female homosexual acts, and female autoeroticism. The appellee and cross-appellant (hereinafter referred to as the plaintiff) is the Tucson City Attorney. The cross-appeal is from the trial court's conclusion of law that A.R.S. § 13--535 (Supp.1970), a statute providing for an injunction against the sale or distribution of certain obscene items, does not apply to motion picture films.

The facts in the case before us are that between and including the evenings of September 2 and 13, 1969, the defendant exhibited the motion picture film 'Lysistrata' at its place of business at 1600 East Benson Highway, known as the Apache Drive-In Theatre, in Tucson, Pima County, Arizona. The plaintiff filed the complaint herein on September 5, 1969, after a Tucson police lieutenant had viewed the movie. This complaint sought an injunction against the defendant on the basis that the exhibition of this film was in violation of Arizona's obscenity statute, A.R.S. § 13--532 (Supp.1970), and should be enjoined under A.R.S. § 13--535 (Supp.1970), as well as that the activity herein was a public nuisance, as defined by A.R.S. § 13--601 (1956). The trial court dismissed the portion of the complaint as to the obscenity of the film, upon the defendant's motion, on the ground that A.R.S. § 13--535 (Supp.1970), does not apply to motion picture films.

The film here was advertised as 'X' rated and that persons under 18 years of age would be excluded from viewing it. The defendant had exhibited movies with similar quantities and/or types of nudity and/or sexual activity at this drive-in theatre during the three years prior to this action. The defendant's movie screen is clearly visible from nearby public highways, streets, rights-of-way, residences, and business establishments. In addition, there was proof that children under 18 years lived in certain of the nearby residences and frequented certain of the business establishments under adult supervision. Children under 18 also went to the area of the drive-in theatre while 'Lysistrata' was being exhibited and apparently watched the film from outside the theatre.

There are five questions presented to us in this appeal and cross-appeal. The defendant has raised four questions in its appeal: (1) Was the defendant denied due process of law by the procedure in the trial court wherein he did not obtain a jury trial? (2) Was the trial court's ruling that the film here caused immediate and irreparable damage supported by the evidence? (3) Were the trial court's rulings that the showing of this film and others like it was a public nuisance, and that the nuisance be abated, supported by the evidence? (4) Was the judgment below in violation of the First and Fourteenth Amendments of the United States Constitution and the Second and Sixth Articles of the Arizona Constitution?

The plaintiff has raised one question in his cross-appeal: Whether or not the injunction provisions of A.R.S. § 13--535 (Supp.1970), apply to motion picture films?

As to the defendant's first contention of error, in regard to the denial of a jury trial, we discover that the only reference in the record here to a jury trial is in the defendant's Motion to Quash and Dismiss, in the portion thereof, relating to the alleged unconstitutionality of A.R.S. § 13--535 (Supp.1970). At no other place in this record, particularly neither in the transcript of the proceedings below nor in defendant's Motion for a New Trial, does mention of a jury trial appear. More simply put, since the defendant's motion to dismiss as to the obscenity portion of this action, involving A.R.S. § 13--535 (Supp.1970), was granted, defendant was successful below, has not been prejudiced and has no appeal. Further, no written demand for a jury trial was made pursuant to 16 A.R.S. Rules of Civil Procedure, Rule 38(b) (Supp.1970), which constitutes waiver of such a right, even in the case of an oral request. Smith v. Rabb, 95 Ariz. 49, 386 P.2d 649 (1963); 16 A.R.S. Rules of Civil Procedure, Rule 38(d) (1956). The trial court did not err in respect to not holding a jury trial.

The defendant's second contention is that the trial court erred in ruling that the factual situation here showed immediate and irreparable damage, because this ruling is not supported by the evidence. We find that there is reasonable evidence in this record that such damage had occurred, and would continue to occur, from the situation here, and must affirm in this respect on that basis. There was proof below that the film here, and films of this type, are harmful to children who were able to view it.

Dr. McCabe, a child psychiatrist who had viewed the movie testified:

'I would consider this material as I saw it to be potentially harmful to any minor child, in that children are particularly sensitive to assuming that what they see portrayed or demonstrated by adults is somehow or other right or normal in the adult world. A minor child has no choice but to assume that a movie projected on a large screen is a work of adults. As such he must then, he then also is in a position to assume that this is what the adult norm stands for. The motion, I would say roughly, doubles the significance of the impact over still photography of the same sort, leaving very, very little to the imagination. Reading pornography requires at least the individual understand what he is reading.

Reading requires the individual to use his intelligence and imagination. He must at least understand what he reads and he must be able to imagine what the printed word means. When an individual sees something acted out in absolute realism, with no distraction, that leaves nothing to the imagination and has a much greater impact, and this is truer the younger the child.'

Further, there was proof that this film and films of this type were offensive to nearby residents. There was also proof that the screen of this drive-in theatre and the images thereon, could be clearly observed from the nearby highway, with a distracting effect.

The legal basis for a decision that the activity here is harmful and subject to abatement is both broad and sound. The United States Supreme Court has recognized the right of a State to protect its children from material harmful to them, but not necessarily 'obscene.' Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). The Arizona obscenity statutes dealing with minors appear to have been taken verbatim from the New York statutes approved in Ginsberg. Secondly, the abatement of a public nuisance, as defined by A.R.S. § 13--601 (1956), has long been recognized as the right of public agencies, as well as private citizens, by injunction. Engle v. Scott, 57 Ariz. 383, 114 P.2d 236 (1941).

In the case at bar, there is no necessity for a finding of damage in that the activity in question is a public nuisance Per se, which produces such annoyance, inconvenience and discomfort that the law presumes damage. City of Phoenix v. Johnson, 51 Ariz....