City of Urbana ex rel. Newlin v. Downing

Citation539 N.E.2d 140,43 Ohio St.3d 109
Decision Date24 May 1989
Docket NumberNo. 88-30,88-30
PartiesCITY OF URBANA, ex rel. NEWLIN, Dir. of Law, Appellee, v. DOWNING et al., Appellants.
CourtUnited States State Supreme Court of Ohio

Syllabus by the Court

1. The determination of whether a magazine is obscene must be directed solely to each particular magazine at issue and procedural safeguards must be followed that are "designed to focus searchingly on the question of obscenity." (Marcus v. Search Warrant [1961], 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 followed.)

2. In an obscenity trial, the trier of fact must determine, among other factors, whether the average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest. The term "average person" does not include any number of people, the majority, or a few, or some, but is a term connoting a composite or synthesis of the community. (Miller v. California [1973], 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, followed; United States v. Treatman [C.A. 8, 1975], 524 F.2d 320, approved.)

3. When the judge is the trier of fact in an obscenity case, he must gauge the reaction of the community when and as if the "average person" viewed the material.

4. If the materials alleged to be obscene are admitted into evidence, there is no need for lay witnesses to testify on whether they think those materials are obscene. (Paris Adult Theatre I v. Slaton [1972], 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 followed.)

5. An appellate court must conduct an independent review of the record in a First Amendment case. (Bose Corp. v. Consumers Union of the United States, Inc. [1984], 466 U.S. 485, 104 On December 3, 1985, the Director of Law of the city of Urbana brought an action for declaratory judgment in the Urbana Municipal Court pursuant to R.C. Chapter 2721, Civ.R. 57 and Section 133.014 1 of the Urbana City Code ("U.C.C."). Plaintiff was seeking a determination that five "male sophisticate" magazines sold by the defendants were obscene. The magazines challenged are the January 1986 editions of "Juggs," "Nugget," and "Velvet"; the December 1985 edition of "Oui"; and the March 1986 edition of "Big Boobs." The defendants waived a jury trial and after three days of hearings, the trial court determined that the magazines were obscene. The court of appeals affirmed that decision.

S.Ct. 1949, 80 L.Ed.2d 502 followed.)

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Joseph A. Palmer, Urbana, for appellee.

Michael W. Hemm, Piqua, Shulman & Hall and Thomas G. Kramer, Dayton, for appellants.

Paul F. Moke and Elinor R. Alger, urging reversal for amicus curiae, American Civ. Liberties Union of Ohio Foundation, Inc.

WRIGHT, Justice.

The defendants-appellants raise ten propositions of law, including challenges to the jurisdiction of the Urbana Municipal Court to rule whether the five magazines at issue are obscene. For the reasons that follow we affirm the lower court's rulings.

In their first and third propositions of law, the defendants-appellants challenge the subject-matter jurisdiction of the Urbana Municipal Court to hear this declaratory judgment action. The trial court denied defendants' motion to dismiss based upon the same arguments regarding subject-matter jurisdiction. The defendants then filed their answer and asserted counter-claims which alleged damages of fifteen thousand dollars. The counter-claims were dismissed without prejudice by the defendants before the plaintiff's answer could be filed, pursuant to Civ.R. 41(A)(1) and (C). The plaintiff in this action seeks only declaratory relief.

A municipal court is a court of record which has the power to grant declaratory relief provided it has subject-matter jurisdiction over the underlying action. R.C. 2721.02; State, ex rel. Foreman, v. Bellefontaine Municipal Court (1967), 12 Ohio St.2d 26, 28, 41 O.O.2d 159, 160, 231 N.E.2d 70, 71; see Ryan v. Tracy (1983), 6 Ohio St.3d 363, 367, 6 OBR 416, 419, 453 N.E.2d 661, 664. R.C. 1901.18 sets forth the subject-matter jurisdiction of the municipal courts. It provides in pertinent part:

"(A) Subject to the monetary jurisdiction of municipal courts as set forth in section 1901.17 of the Revised Code, a municipal court has original jurisdiction within its territory * * *:

"(1) In any civil action, of whatever nature or remedy, of which judges of county courts have jurisdiction * * *." (Emphasis added.)

R.C. 1901.17, referred to above, limits the subject-matter jurisdiction to "those cases where the amount claimed by any party, or the appraised value of the personal property sought to be recovered, does not exceed ten thousand dollars. * * * "

Although defendants voluntarily dismissed their counterclaims, they argue that their damages would exceed ten thousand dollars should the plaintiff prevail and prevent the defendants from selling magazines such as those that are challenged in this action. Allegation alone is insufficient to divest a municipal court of jurisdiction based upon the amount of damages at issue unless the allegation is in a formal claim or counterclaim. Accordingly, the Urbana Municipal Court is not deprived of subject-matter jurisdiction upon this basis.

Furthermore, R.C. 1901.20(A) provides that:

"The municipal court has jurisdiction of the violation of any ordinance of any municipal corporation within its territory, * * * [exceptions omitted]. In all such prosecutions and cases, the court shall proceed to a final determination of the prosecution or case."

The action at bar does not fall within any of the exceptions set forth in R.C. 1901.20, nor does it violate any of the other general jurisdictional statutes concerning municipal courts. If the magazines challenged are declared obscene, then the defendants could be subject to prosecution for the "(C) An action for a declaratory judgment pursuant to division (A) of this section shall not be brought during the pendency of any civil action or criminal prosecution, when the character of the particular materials or performances involved is at issue in the pending case, and either of the following apply:

misdemeanor offense of pandering obscenity. U.C.C. Section 133.014 is virtually identical to R.C. 2907.36 in its provision that there will be only one judicial determination whether certain materials or performances are obscene. U.C.C. Section 133.014 provides in part:

"(1) Either of the parties to the action for a declaratory judgment is a party to the pending case;

"(2) A judgment in the pending case will necessarily constitute res judicata as to the character of the materials or performances involved.

"(D) A civil action or criminal prosecution in which the character of particular materials or performances is at issue, brought during the pendency of the action for a declaratory judgment involving the same issue shall be stayed during the pendency of the action for a declaratory judgment.

"(E) The fact that a violation of sections 133.011 or 133.012 occurs prior to a judicial determination of the character of the material or performance involved in the violation, does not relieve the offender of criminal liability for the violation, even though prosecution may be stayed pending the judicial determination."

For example, if a misdemeanor prosecution for pandering obscenity is initiated first, then that proceeding will determine whether the materials or actions at issue are obscene. That prosecution would take place in municipal court. Subsection (C) precludes a collateral attack in a declaratory judgment action. Likewise, subsection (D) provides that if a declaratory judgment action has been first initiated, then it cannot be collaterally attacked in a simultaneous proceeding. It would make no sense to allow the municipal court to determine whether material is obscene during a misdemeanor prosecution, but preclude such a determination in a declaratory judgment action. For all the above reasons, appellants' propositions of law concerning the alleged lack of subject-matter jurisdiction of the Urbana Municipal Court to hear this action are without merit.

Appellants in their seventh and eighth propositions of law assert that there is no case or controversy here, or if there is, this court should not render a declaratory judgment since it would not terminate the uncertainty or controversy giving rise to the proceeding. Appellants base this argument on the fact that a magazine is sold only for a limited period of time, and it is, in the normal course of business, removed from the market before all judicial proceedings can be terminated.

Such an argument, if accepted, would preclude a court from ever rendering a declaratory judgment as to whether a magazine is obscene. The determination of whether a magazine is obscene must be directed solely to each particular magazine at issue and procedural safeguards must be followed that are "designed to focus searchingly on the question of obscenity." Marcus v. Search Warrant (1961), 367 U.S. 717, 732, 81 S.Ct. 1708, 1716, 6 L.Ed.2d 1127. For example, "[w]hile a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary Appellants assert in their fourth proposition of law that the trial court erroneously admitted the testimony of plaintiff's lay witnesses in violation of Evid.R. 701, which provides:

                hearing."  Fort Wayne Books, Inc. v. Indiana (1989), 489 U.S. 46, ---, 109 S.Ct. 916, 927, 103 L.Ed.2d 34, 51-52.   In other cases involving important First Amendment rights this court has held that a case or controversy is not moot if the issues involved are "capable of repetition, yet evading review."  State, ex rel. The Repository, v. Unger (1986), 28 Ohio St.3d 418, 420, 28
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