Grove Press, Inc. v. State of Kansas
| Decision Date | 06 October 1969 |
| Docket Number | KC-2997.,No. KC-2992,KC-2992 |
| Citation | 304 F. Supp. 383 |
| Parties | GROVE PRESS, INC., Plaintiff, v. STATE OF KANSAS, James W. Bouska and Herbert W. Walton, Defendants. LAKESIDE DRIVE IN THEATER, INC., Plaintiff, v. Francis D. MENGHINI, Individually and as County Attorney of Wyandotte County, Kansas; O. Q. Claflin, III, Judge of the District Court of Wyandotte County, Kansas, Division 1; Harry G. Miller, Judge of the District Court of Wyandotte County, Kansas, Division 3; Leo J. Moroney, Judge of the District Court of Wyandotte County, Kansas, Division 5; and the State of Kansas, Defendants. |
| Court | U.S. District Court — District of Kansas |
Stuart D. Mitchelson, of Pflumm, Mitchelson & Amrein, Shawnee Mission, Kan., Walter J. Kennedy, of Hoskins, King, Springer, McGannon & Hahn, Robert B. Olsen, of Olsen & Talpers, and Irving Achtenberg, of Achtenberg, Sandler & Balkin, Kansas City, Mo., for plaintiff Grove Press, Inc.
Kent Frizzell, Atty. Gen., and Richard H. Seaton, Asst. Atty. Gen., Topeka, Kan., for defendant State of Kansas.
James W. Bouska, County Atty., Olathe, Kan., pro se and for defendant State of Kansas.
Bernis G. Terry, Asst. County Atty., Olathe, Kan., for defendants James W. Bouska and State of Kansas.
Eugene T. Hackler and Robert C. Londerholm, of Hackler, Anderson, Londerholm, Speer & Vader, Olathe, Kan., for defendant Herbert W. Walton.
Charles P. Fleming, Jr., Mission, Kan., and Kenneth E. Bigus, Kansas City, Mo., for plaintiff Lakeside Drive In Theater, Inc.
Francis D. Menghini, County Atty., Kansas City, Kan., pro se, and with Jerome S. Koehler, Jr., Asst. County Atty., Kansas City, Kan., for defendants O. Q. Claflin III, Harry G. Miller and Leo J. Moroney.
Before HICKEY, Circuit Judge, and STANLEY and THEIS, District Judges.
In each of these cases the same statutes of the State of Kansas are challenged as violative of the Federal Constitution. A three-judge court of identical composition has been constituted in each case. By agreement of the parties, the cases were consolidated for hearing and decision.
In this action, the plaintiff seeks a judgment declaring K.S.A. 21-1102 and K.S.A. 21-1102c1 unconstitutional, and enjoining proceedings brought in the District Court of Johnson County, Kansas under those statutes against a motion picture entitled "I Am Curious (Yellow)," made in and imported from Sweden.
Grove Press, Inc., a New York corporation, is the national distributor of the motion picture. Dickinson Operating Co., Inc., a Kansas corporation, operates the Kimo South Theater in Overland Park, a city in Johnson County, Kansas. Grove and Dickinson are parties to a licensing agreement whereby Grove granted to Dickinson the right to exhibit the motion picture at its theater for a period of six weeks, with "(a)dditional time to be negotiated."2 The defendant James W. Bouska is the County Attorney of Johnson County, Kansas, and the defendant Herbert W. Walton is a Judge of the District Court of Johnson County, Kansas.
Bouska, having himself seen the picture, on June 22 filed in the District Court of Johnson County, Kansas an information under the provisions of K.S.A. 21-1102c, alleging that the film was obscene and requesting the entry of an order directed to persons having an interest in the film or its exhibition to appear on June 23 and show cause why a seizure warrant should not issue. The requested order was entered by Judge Walton and copies served on representatives of Dickinson. At the appointed time, attorneys for Dickinson appeared and Dickinson was permitted to intervene; the film itself was introduced in evidence together with the opinion of the United States Court of Appeals, Second Circuit, in the case of United States v. A Motion Picture Film, 404 F.2d 196 (1968). Arrangements were made for Judge Walton to view the film that evening at a private showing.
The hearing on the information was set successively for June 23, June 24, June 25, July 1 and July 2. At each of the first three appearances (June 23, 24 and 25) Bouska announced that the state was ready to proceed with the hearing. At each of those appearances Dickinson's attorneys requested and were granted postponement so that they might have further time to prepare for the hearing. The taking of testimony commenced July 1 and was concluded July 2. Dickinson's attorneys requested that the matter be briefed, with oral argument to follow. The request was granted and a briefing schedule agreed upon, with argument set for August 27.3
At the June 23 hearing, Bouska had proposed that Dickinson voluntarily suspend public showing of the film until the question of its obscenity could be judicially determined. The attorneys for Dickinson replied that their client would be consulted and Bouska did not then press for interlocutory relief, conceding that counsel for Dickinson needed more time for preparation. On the 24th, Bouska moved for issuance of a restraining order. The motion was taken under advisement by Judge Walton and on the 25th, Dickinson having declined to suspend the showing, the order was issued. It was not until July 25, the third date set for a hearing, and not until after the film had been introduced in evidence and had been viewed by the judge, that the state court entered a temporary restraining order forbidding its further public showing. It was publicly exhibited June 20, 21, 22, 23 and 24, and was viewed by approximately 4,000 persons.4
On June 24, while the state court proceedings were pending, this action was filed on Grove's behalf by the same attorneys who represented Dickinson in the state court.5 This action has been dismissed as to the State of Kansas, originally named as a party defendant. The Attorney General of Kansas, since a state statute is under attack, has been permitted to appear as amicus curiae.
Lakeside Drive In Theater, Inc., a Kansas corporation, operates an open air drive-in theater in Wyandotte County, Kansas. The defendant Francis D. Menghini is County Attorney of Wyandotte County and the defendants O. Q. Claflin III, Harry G. Miller and Leo J. Moroney are Judges of the District Court of Wyandotte County, Kansas. The action has been dismissed as to the defendant State of Kansas and, since the constitutionality of Kansas statutes is under attack, the Attorney General of Kansas has been permitted to appear as amicus curiae.
The screen of Lakeside Theater is easily visible for a distance of about one-half mile from points on two intersecting public highways, one being Kansas State Highway No. 5 and the other the road leading into the Wyandotte County Park, which contains family recreational facilities, including baseball diamonds, picnic grounds and boating. Users of the park facilities and travelers on the highways complained to Menghini that offensive films were being exhibited by Lakeside and were visible to persons not patrons of the theater. After assistant county attorneys had viewed various films, Menghini filed in the District Court of Wyandotte County informations pursuant to K.S.A. 21-1102c, charging that five motion pictures being exhibited by Lakeside were obscene within the meaning of K.S.A. 21-1102.
In each case an order was entered by one or the other of the defendant judges directing that persons having an interest in the named film appear and show cause why a siezure warrant should not issue. In each instance the film was viewed by an assistant county attorney before the information was filed, and in each case, after an ex parte hearing, the order to show cause was issued by the court and served on Lakeside. In none was the seizure warrant issued until after a hearing by the court at which attorneys for Lakeside appeared and Lakeside was permitted to intervene. At each hearing the court found that there was probable cause to believe that the film in question was obscene and ordered its seizure. At each hearing the court heard evidence of the assistant county attorney who had viewed the film, and each judge himself viewed the preview of the film under consideration. Lakeside offered no evidence at any of the hearings. All of the films are now in the custody of the state court.6
The defendants in each case moved to dismiss on several grounds. It is these motions which we first consider.
Defendants urge initially that, in their capacities as public officials, they are immune from suit. However, state officials, as distinguished from the state itself, are not immune from actions to restrain them from enforcing, or attempting to enforce, state laws which violate the United States Constitution, or from taking unconstitutional action under color of state law. See Georgia R. R. & Banking Co. v. Redwine, 342 U.S. 299, 304, 72 S.Ct. 321, 96 L.Ed. 335 (1952); Pennoyer v. McConnaughy, 140 U.S. 1, 11 S.Ct. 699, 35 L.Ed. 363 (1891); Warner v. Board of Trustees of Police Pension Fund, 277 F.Supp. 736, 739 (E. D.La.1967). Thus, this action, not being one seeking money damages, is not barred.
The defendants next assert that plaintiffs failed affirmatively to show jurisdiction under 28 U.S.C. §§ 1331, 1332 and Rule 8 of the Federal Rules of Civil Procedure, because they fail to show both a matter directly in controversy and the requisite amount of money in controversy.
It is clear from the stipulations of the parties, however, that Grove Press has a contract with the local exhibitor which vests in them a continuing direct financial interest in exhibition of the film. Ample demonstration was made of the fact that upon continued showing of the film receipts to Grove Press would probably exceed $10,000. The evidence with respect to Lakeside Theater's interest in the exhibition of the films involved in that case sufficiently establishes the existence of controversy and the requisite jurisdictional amount.
We hold that we have jurisdiction under 28 U.S.C. §§ 1331 and 1332, and therefore find it...
To continue reading
Request your trial
-
State ex rel. Stephan v. Kansas House of Representatives
...action under color of state law, and therefore actions not seeking money damages are not barred. See Grove Press, Inc. v. State of Kansas, 304 F.Supp. 383, 388 (D.Kan.1969). Moreover, the mere existence of other actions heard by this court in the nature of quo warranto or mandamus against o......
-
Alexander v. Thornburgh, Civ. No. 4-88-526.
...in a manner consistent with standards required by the Constitution as interpreted by the Supreme Court. See Grove Press, Inc. v. Kansas, 304 F.Supp. 383, 390 (D.Kan.1969) (constitutional standards promulgated by the Supreme Court, though not literally present in the statute, are to be impli......
-
Wagonheim v. Maryland State Bd. of Censors
... ... 255 Md. 297 ... 258 A.2d 240 ... Howard WAGONHEIM, Agent; Grove Press, Inc.; 5 West Amusement Co., Inc ... MARYLAND STATE BOARD OF ... impaired by the findings by the District Court of Johnson County, Kansas, in a recent case entitled 'The State of Kansas v. A Motion Picture Film ... ...
-
United States v. 50 MAGAZINES
...a type of judicial constructive seizure of the 50 magazines which I expressly deny, I agree with the court in Grove Press, Inc. v. State of Kansas, 304 F.Supp. 383 (D.Kan.1969) which reasoned that a claimant must simply be afforded a reasonable opportunity for an adversary hearing prior to ......