County of Kenosha v. C & S Management, Inc., No. 97-0642

• Court: United States State Supreme Court of Wisconsin
• Citation: 223 Wis.2d 373,588 N.W.2d 236
• Decision Date: 22 January 1999
• Parties: COUNTY OF KENOSHA, Plaintiff-Respondent, v. C & S MANAGEMENT, INC., d/b/a Crossroads, Defendant-Appellant.
• Docket Number: No. 97-0642

Page 236

588 N.W.2d 236 223 Wis.2d 373 COUNTY OF KENOSHA, Plaintiff-Respondent,
v.
C & S MANAGEMENT, INC., d/b/a Crossroads, Defendant-Appellant. No. 97-0642. Supreme Court of Wisconsin. Argued Sept. 10, 1998.
Decided Jan. 22, 1999.

Page 240

[223 Wis.2d 376] For the defendant-appellant there were briefs (in the court of appeals) by Stephen M. Glynn, Robert R. Henak and Shellow, Shellow & Glynn, S.C., Milwaukee and oral argument by Robert R. Henak.

[223 Wis.2d 377] For the plaintiff-respondent there was a brief (in the court of appeals) by Angelina Gabriele, assistant district attorney and oral argument by Susan L. Karaskiewicz, assistant district attorney.

¶1 DONALD W. STEINMETZ, J.

This case raises a number of issues for review:

(1) Does Wis. Stat. § 944.21, prohibiting the sale of obscene material, violate the federal and Wisconsin Constitutions in being too vague and overbroad? We hold that it does not.

(2) If the Wisconsin standard of obscenity is that stated in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), were jury instructions which expanded the Miller "prurient interest" standard to material that "appeals generally to a shameful, unhealthy, unwholesome, degrading ... interest in sex" and added the word genuinely to the Miller "serious value" definition erroneous? (emphasis added.) We hold that they were not.

(3) What motion allegations sufficiently support a prima facie showing that a hearing is required to resolve issues of impermissible discrimination based on selective prosecution in constitutionally sensitive prosecutions? We hold that a prima facie showing requires a defendant to provide evidence of a discriminatory effect and a discriminatory purpose to defendant's prosecution.

(4) Whether the circuit court erred in excluding a survey, expert testimony, and allegedly comparable videotapes available in Kenosha County as evidence of prevailing community standards with respect to obscenity. We hold that the circuit court did not erroneously exercise its discretion.

[223 Wis.2d 378]

¶2 This case is before the court on certification from the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (1995-96). Defendant-appellant appeals decisions by the Honorable Bruce E. Schroeder, Kenosha County Circuit Court.

I

¶3 The relevant facts in this appeal are not disputed by the parties. C & S Management, Inc., operates Crossroads News Agency (Crossroads), an adult bookstore in Kenosha County located along Interstate Highway I-94. It was charged in four cases with a violation of Kenosha County, Wis., Municipal Code § 9.10.2 ¹ [hereinafter "Kenosha County Ord. § 9.10.2"] for selling videotapes alleged by the county to be obscene. ²

¶4 Crossroads filed two related motions seeking dismissal of the case on the grounds that Kenosha [223 Wis.2d 379] County had engaged in selective and discriminatory prosecution. In its first motion, Crossroads argued that the county had impermissibly singled out for prosecution Crossroads and two other adult-oriented bookstores for the non-obscene sexually explicit nature of their inventories and their locations along Interstate 94, while at the same time allowing other businesses in the community to sell materials virtually identical to those videos for which they were being prosecuted. In a second motion, Crossroads argued that the express purpose of the prosecutions was not to prosecute obscenity but to close down completely all of the adult bookstores in the county.

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¶5 At a hearing on the motions, the circuit court denied Crossroads' motions without providing Crossroads with an evidentiary hearing. The district attorney asked the circuit court to accept as true all of the allegations contained in Crossroads' motions, and in doing so the circuit court found that Crossroads had failed to make a prima facie showing of discriminatory prosecution and denied its motions to dismiss the charges against Crossroads without holding an evidentiary hearing. Crossroads petitioned for leave to appeal the circuit court's denial of its motions, which the court of appeals denied.

¶6 Three of the four cases against Crossroads were dismissed on summary judgment. A fourth case, involving Crossroads' sale of the videotape entitled "Anal Vision No. 5," proceeded to a jury trial which began January 27 and ended January 29, 1997. At the trial, Crossroads stipulated to the fact that the videotape was sold for commercial purposes and that it knew the tape was sexually explicit. The only contested issue was whether the tape was "obscene" under Kenosha County Ord. § 9.10.2.

[223 Wis.2d 380]

¶7 The jury returned a non-unanimous verdict of guilty and the court imposed a $4,000 fine and costs of the trial. Crossroads appealed the verdict on numerous grounds, including the four issues stated. The court of appeals certified the first three to this court. As the parties fully briefed the certified issues, as well as the question of whether the circuit court erred in disallowing Crossroads' evidence of community standards, we address all four issues below.

II

Standard of Review

¶8 The defendant has challenged Kenosha County Ord. § 9.10.2, and by implication Wis. Stat. § 944.21 (1995-96), ³ upon which the ordinance is [223 Wis.2d 381] modeled, as being unconstitutionally overbroad and vague under the First and Fourteenth Amendments

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of [223 Wis.2d 382] the United States Constitution and Article I, §§ 1 and 3 of the Wisconsin Constitution. The constitutionality of [223 Wis.2d 383] a statute is a question of law that this court reviews de novo, without deference to the circuit court or the court of appeals. State v. Janssen, 219 Wis.2d 362, 370, 580 N.W.2d 260 (1998). Ordinances and statutes normally are the beneficiaries of a presumption of constitutionality which the challenger must refute. Lounge Management, Ltd. v. Town of Trenton, 219 Wis.2d 13, 20, 580 N.W.2d 156 (1998). "However, where an ordinance regulates the exercise of First Amendment rights, the burden shifts to the government to defend the constitutionality of that regulation beyond a reasonable doubt." Id. (citations omitted.)

Overbreadth under the Federal Constitution

¶9 Crossroads appropriately makes no serious attempt to argue that the Kenosha Ordinance is at odds with the protections afforded by the First and Fourteenth Amendments under United States Supreme Court precedent in the area of state regulation of obscenity. It is clear from Crossroads' brief that it fundamentally disagrees with that Court's obscenity [223 Wis.2d 384] jurisprudence, but in the end must (and does) admit that for the purposes of its overbreadth claim under the federal constitution, the Kenosha ordinance must be sustained.

¶10 The Supreme Court in a line of cases culminating in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), then declared categorically settled "that obscene material is unprotected by the First Amendment." Id. at 23, 93 S.Ct. 2607 (citing Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972); United States v. Reidel, 402 U.S. 351, 354, 91 S.Ct. 1410 (1971); Roth v. United States, 354 U.S. 476, 485, 77 S.Ct.

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1304, 1 L.Ed.2d 1498 (1957)); see also Paris Adult Theatre I v. Slaton, 413 U.S. 49, 54, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) ("This Court has consistently held that obscene material is not protected by the First Amendment as a limitation on the state police power by virtue of the Fourteenth Amendment.")

¶11 Acknowledging first the "inherent dangers of undertaking to regulate any form of expression," the Court explicitly provided that states could regulate obscene materials so long as their statutes were carefully limited. Miller, 413 U.S. at 23-24, 93 S.Ct. 2607. In the Court's view, a carefully limited regulation would be sufficiently protective of First Amendment values applicable to the states through the Fourteenth Amendment. Id. Under the tripartite test it then enunciated, a state may regulate materials as obscene if:

(a) [ ] 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, [408 U.S. 229, 230, 92 S.Ct. 2245 (1972) ], quoting Roth v. United States, [354 U.S. 476, 489, 77 S.Ct. 1304 (1957) ]; (b) [ ] the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) [ ] the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

[223 Wis.2d 385] Miller, 413 U.S. at 24-25, 93 S.Ct. 2607.

¶12 This court has adopted Miller in its evaluations of state obscenity statutes under the federal constitution, see State v. Princess Cinema of Milwaukee, 96 Wis.2d 646, 292 N.W.2d 807 (1980) (the Miller standard was used to invalidate, for the violation of First Amendment rights, the forerunner to the current Wis. Stat. § 944.21, enacted in 1988), and the standard was recited by this court with approval as recently as 1994. See State v. Thiel, 183 Wis.2d 505, 523, 515 N.W.2d 847 (1994) (upholding Wis. Stat. § 948.11, Exposing a child to harmful material, as a constitutionally valid adaptation of the Miller obscenity test).

¶13 Further, in our assessment of Wis. Stat. § 944.21 under the federal constitution we are bound by Miller, for "[w]hen assessing any First Amendment challenge to a state statute, we are bound by the results and interpretations given that amendment by the decisions of the United States Supreme Court." Jackson v. Benson, 218 Wis.2d 835, 855, 578 N.W.2d 602 (1998) (citing State ex rel. Holt v. Thompson, 66 Wis.2d 659, 663, 225 N.W.2d 678 (1975)); see also State v. Pitsch, 124 Wis.2d 628, 632, 369 N.W.2d 711 (1985) ("when this court interprets a provision of the federal constitution, this court is bound by the interpretations which the United States Supreme Court has given that provision"). Miller...