City of Duluth v. Sarette

Decision Date31 August 1979
Docket NumberNo. 48920.,48920.
Citation283 NW 2d 533
PartiesCITY OF DULUTH, Respondent, v. John William SARETTE, James Leroy Pichotta, and Robert Bernard Fox, Appellants.
CourtMinnesota Supreme Court

Houge & Mosher and Benjamin S. Houge, Minneapolis, for appellants.

William P. Dinan, City Atty., and Timothy O. Lee, Asst. City Atty., Duluth, for respondent.

Heard before ROGOSHESKE, PETERSON, KELLY, and YETKA, JJ., and considered and decided by the court en banc.


Defendants were charged with six separate violations of Duluth City Code, § 34-12, which makes it unlawful for any person "* * * knowingly to exhibit, sell, print, offer to sell, give away, circulate, publish * * * any obscene book, magazine, * * * motion picture film, * * * or other article which is obscene."1 After summary trials to the county court, they were found guilty and fined $300 per violation.2 Defendants appealed to a three-judge panel of the district court, challenging the constitutionality of the ordinance, denial of a jury trial, and the impartiality of the trial judge. The panel, finding neither constitutional nor procedural infirmities, affirmed the convictions. Defendants then petitioned this court for permission to appeal on the ground that the cases presented important constitutional questions. We granted discretionary review. The principal issues on appeal are: (1) Whether a provision of Duluth City Code, § 34-12, exempting certain recognized schools, museums, churches, governmental agencies and physicians from its coverage is facially unconstitutional by reason of the equal protection clause, and (2) whether the defendants were entitled to a trial by jury, although under Duluth City Code, § 34-12, there was no possibility of incarceration. We conclude that the exemption violates the equal protection clause but that the main portion of the ordinance, which adopts the obscenity criteria set out in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1966), is not rendered void by the impermissible exemption. We further conclude that defendants were entitled to a jury trial. Accordingly, we reverse and remand.

Defendants first contend that the exemption provision of § 34-12 constitutes a denial of equal protection because it affords disparate treatment to similarly situated groups and individuals.3 The challenged exemption reads as follows:

"The following are exempt from the provisions of this section:
"(a) Recognized and established schools, churches, museums, medical clinics, hospitals, public libraries, governmental agencies or quasi-governmental sponsored organizations, and persons acting in their capacity as employees or agents of such organizations and a licensed physician or psychiatrist while engaged in his practice. For the purpose of this section `recognized and established\' shall mean a school having a full-time faculty and diversified curriculum; a church affiliated with a national or regional denomination; a medical clinic comprised of licensed physicians or psychiatrists; and in the case of all other exempt organizations shall refer only to income tax exempt organizations which are supported in whole or in part by tax funds or which receive at least one-third of their support from publicly donated funds.
"(b) Parents disseminating material to their children."

A careful reading reveals that the ordinance places no limits on the uses to which obscene material may be put by exempt organizations. Defendants assert, therefore, that exempt organizations under the ordinance may without criminal liability freely disseminate, sell, and profit from precisely the same material which they here sold.

It has long been established that not all legislative classifications are constitutionally infirm. In McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), the United States Supreme Court faced an equal protection challenge to a "Sunday closing law" which clearly did not treat all retail stores alike. In upholding the statute, the court stated:

"* * * Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State\'s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." 366 U.S. 425, 81 S.Ct. 1105, 6 L.Ed.2d 399.

Accord, State v. Reps, 302 Minn. 38, 223 N.W.2d 780 (1974); Anderson v. City of St. Paul, 226 Minn. 186, 32 N.W.2d 538 (1948). Here, the city asserts that the exemption serves the important function of permitting the exempted organizations to disseminate or utilize obscene material for legitimate educational, scientific, or artistic purposes without fear of criminal prosecution. We believe that such an objective is justified and rationally related to a legitimate governmental purpose. It is essential that governmental units, by prohibiting the sale or dissemination of obscene materials, do not at the same time stifle scientific, medical, educational, or other bona fide uses.

The question for our determination is whether the challenged exemption is a reasonable means of attaining the legitimate end of safeguarding constitutionally protected expression. We believe that the exemption is deficient in that by providing total immunity for particular groups and institutions regardless of their use of the material or the context in which it is used, the city necessarily created arbitrary and over-broad classifications which have little relevance to the exemption's ultimate purpose. In particular, we are disturbed by the latter portion of the exemption defining "quasi-governmental sponsored organizations" as "income tax exempt organizations which are supported in whole or in part by tax funds or which receive at least one-third of their support from publicly donated funds." The phrase "income tax exempt organizations" is ambiguous as to which organizations are exempt under the ordinance. Clearly, many public and private colleges and universities, welfare organizations, public service groups, and organized religions conduct activities that are taxable and at the same time own or use property or engage in activities that are clearly tax exempt. We agree with the Supreme Court of Tennessee that: "* * * The use of taxable entity for inclusion and nontaxable entity for exclusion is too nebulous, too lacking in definite limits, and too vague to inform men of common intelligence who is included and who is exempt from the criminal penalties * * *." Leech v. American Booksellers Assn., Inc., 582 S.W.2d 738, 755 (Tenn.1979).

The exemption's deficiency is exacerbated by the portion which arbitrarily excludes from prosecution organizations which receive at least one-third of their support from publicly donated funds. We see no rational basis for such a distinction. It is not apparent that an organization receiving more than one-third of its support from publicly donated funds is more likely to have a legitimate need to disseminate the materials in question than one receiving only 25 percent of its support from the public. Moreover, there are undoubtedly organizations which could conceivably obtain tax-exempt status and muster support from the public, but whose objective in distributing such material would have no purpose other than an appeal to the prurient interest; yet, under the exemption, such an organization would be afforded protection from prosecution. We foresee not only enforcement problems but, because of the ordinance's vague attempt to immunize particular distributors rather than to safeguard the allegedly obscene material itself, confusion as to who must adhere to this law. As a result, the unwarranted deterrence of the dissemination of constitutionally protected materials may well...

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