Jacob Weinberg News Agency, Inc. v. City of Marion

• Decision Date: 10 February 1975
• Docket Number: No. 2--273A40,2--273A40
• Citation: 163 Ind.App. 181,322 N.E.2d 730
• Parties: JACOB WEINBERG NEWS AGENCY, INC., Appellant, v. CITY OF MARION, Indiana, et al., Appellees.
• Court: Indiana Appellate Court

Page 730

322 N.E.2d 730

163 Ind.App. 181

JACOB WEINBERG NEWS AGENCY, INC., Appellant, v. CITY OF MARION, Indiana, et al., Appellees.

No. 2--273A40.

Court of Appeals of Indiana, Second District.

Feb. 10, 1975.

Paul G. Roland, Rex P. Killian, Ruckelshaus, Bobbit & O'Connor, Indianapolis, James R. Browne, Gemmill Browne Torrance Morin Spitzer & Herriman, Marion, for appellant.

Patrick N. Ryan, Jack B. Welchons, Ryan & Welchons, Marion, for appellees.

WHITE, Judge.

The Jacob Weinberg News Agency, Inc. (Weinberg) brought suit against the City of Marion and its enforcement officials (City) seeking a judgment declaring a city ordinance unconstitutional as an abridgement of plaintiff's free press and property as a wholesale distributor of magazines and enjoining its enforcement. The Court dismissed the action for the stated reason that '(e) nforcement of the Ordinance would not limit any of plaintiff's legal rights in such a manner that he is entitled to challenge the constitutionality of the Ordinance by way of declaratory judgment pursuant to TR. 57.' ¹ We reverse.

The ordinance purports to define 'pornographic materials' and then to make it an offense, punishable by fine not exceeding $300.00 and/or imprisonment not exceeding six months, (1) for anyone in charge of a store or retail outlet to knowingly permit a minor (meaning a person under eighteen years of age) to enter upon the premises of a business establishment which sells or displays pornographic materials, (2) for a minor knowingly to enter upon such premises or for his parents knowingly to permit him to do so, and (3) requires any merchant knowingly selling or displaying such materials to have a sign visible from the outside reading, in letters two inches high, 'Persons Under the Age of Eighteen (18) Years Prohibited from Entering These Premises' on each door of the premises available for public entry.

Plaintiff-appellant Weinberg's amended complaint alleges, in addition to the enactment of the ordinance and its verbatim text, the following:

'1. For more than 10 years immediately last past Plaintiff has been the sole authorized wholesale distributor in and around the City of Marion, Indiana, of nationally distributed magazines and publications entitled to 2nd class mailing privileges under the laws of the United States of America, and particularly those hereinafter identified and described.

'2. * * *

'3. Said Ordinance is unconstitutional in that among other things it violates the First and Fourteenth Amendments to the Constitution of the United States of America and Article 1, Section 9 and Article 1, Section 12 (Bill of Rights) of the Indiana Constitution.

'4. * * * (Alleging a theory of invalidity by reason of a contention that a state statute had pre-empted the field.)

'5. Between July 1, 1972, and the date of filing hereof Defendants have threatened to prosecute certain retailers in said CITY served by plaintiff with prosecution for the alleged violation of said Ordinance unless they complied specifically with same in offering for resale the following described publications, among others, distributed to said retailers by Plaintiff and determined solely by Defendants to be pornographic, to-wit: Playboy, Dude, Cavalier, Caper, Adam, Penthouse, Stag, Male, Sexology, Modern Man.

'6. As a proximate consequence of said threats, said retailers have ordered Plaintiff to remove said publications from their sales racks, and Plaintiff's sale thereof has been and will continue to be drastically curtailed if not wholly impeded so long as Defendants are permitted directly or indirectly to influence said retailers or others of their class via the utterance of exercise of such threats. Accordingly, Plaintiff has and will sustain inestimable and irreparable damage, for which it has no adequate remedy at law.

'7. Defendants said acts obviously are arbitrary, capricious and oppressive and deprive Plaintiff of his rights and property without due process and by reason of the premises an emergency exists wherey (sic) Defendants should be enjoined without notice pending a hearing to be set on Plaintiff's application for temporary injunction.'

A restraining order was issued when Weinberg filed a $5,000.00 'Injunction Bond'. Thereafter the City (i.e., all defendants) filed a four part pleading which combined (I) a motion to dismiss, (II) a motion to dissolve the restraining order and to forfeit the bond, (III) an answer denying all allegations of the complaint except the enactment of the ordinance, and (IV) a request for jury trial.

City's motion to dismiss reads:

'I

'Come now defendants herein by their attorney, Patrick N. Ryan (Assistant City Attorney), and for their motion to dismiss under Trial Rule 12 say that:

'1. Plaintiff does not have standing to bring this action, since General Ordinance 9--1970 does not affect him.

'2. Plaintiff is not the real party in interest.

'3. Said Ordinance affects only certain retail merchants. Plaintiff is not a retail merchant.

'4. This Ordinance does not restrict plaintiff's right to speak, write, or print. It does not limit plaintiff's alleged right to distribute smut and pornographic magazines.

'5. Plaintiff has failed to serve due notice of this suit upon the Attorney-General.

'WHEREFORE defendants move the Court to dismiss this action and for all other proper relief.

'MEMORANDUM

'Plaintiff, in its complaint, asks the Court to declare General Ordinance 9--1970 unconstitutional. This Ordinance excludes children from rooms where pornographic magazines are sold or displayed. Specifically it (1) provides that no retailer shall knowingly permit children to enter such a room, (2) forbids children to enter such a room, and (3) requires each retailer to post a sign excluding children from such room.

'The Court should dismiss this complaint for the following reasons:

A. Plaintiff has no standing to bring this suit. It is not the real party in interest. The Ordinance does not affect plaintiff corporation, a wholesale distributor of pornographic magazines. It affects only retailers. Plaintiff stands in no danger of prosecution; the Ordinance does not limit any of plaintiff's legal rights.

B. The Ordinance does not restrict plaintiff's freedom to speak, write or print. It does not deny this corporation due process or due course of law. This Ordinance is so clearly constitutional that plaintiff's complaint, on its face, does not state a viable claim.

C. Plaintiff has failed to serve due notice upon the Attorney-General. Because of this failure, the Court lacks jurisdiction of the suit.'

On August 3, 1972, oral argument and evidence were heard on Weinberg's request for temporary injunction and on the City's motions. Both the hearing and the restraining order were continued until August 9, 1972. On that date Weinberg filed a motion for summary judgment, further evidence and argument were heard and concluded, and all pending motions were taken under advisement. Also, the restraining order was continued in effect until further order and City was ordered to respond before August 23, 1972, to Weinberg's motion for summary judgment.

On August 17, 1972, City responded to Weinberg's motion for summary judgment and on September 7, 1972, a letter from the Attorney General was filed which stated he would not appear 'due to the local nature of said cause.' A further entry on that date reads:

'Comes now the Court and files its Order of Dismissal, which order reads in the words and figures following, to wit:

(caption omitted)

'ORDER OF DISMISSAL

'This action is brought pursuant to TR 57, Indiana Rules of Procedure, which sets out in a very general way the Indiana rule concerning declaratory judgments. Declaratory relief has been denied in Indiana where it involves determination of serious criminal liability. Bryarly v. State, 232 Ind. 47, 111 N.E.2d 277 (1953) Plaintiff claims he has a right to bring this legal action because proceeds from the dales of his magazines have been diminished by the threat of enforcement of General Ordinance 9--1970 of the City of Marion, Indiana. This is an ordinance providing criminal penalties against retail merchants who violate the provisions of the Ordinance. This Ordinance pertains to premises where allegedly pornographic magazines are displayed or sold. Secifically it (1) provides that no retailer shall knowingly permit minors under the age of eighteen years to enter such premises operated by him, (2) forbids minors under the age of eighteen years to enter such premises, and (3) requires each retailer to post a sign prohibiting entry by minors under the age of eighteen years.

'Plaintiff is not a retail merchant, but is a wholesale distributor. Enforcement of this Ordinance could not result in criminal penalties against plaintiff. Plaintiff as a wholesale distributor cannot be prosecuted for violation of this Ordinance. Enforcement of the Ordinance Enforcement of the Ordinance would not limit any of plaintiff's legal rights in such a manner that he is entitled to challenge the constitutionality of the Ordinance by way of declaratory judgment pursuant to TR 57. There are no retail merchants, who might be prosecuted under this Ordinance, who are joined as parties in this action. King v. Harris (1965) 140 Ind. (App.) 9; 212 N.E.2d 387; 10 I.L.E. Declaratory Judgment, Sec. 13 p. 71; 2 Bobbitt, Works' Indiana Practice, Sec. 30.4, pp. 501--502.

'WHEREFORE, this action is dismissed under TR 12, the restraining order issued herein is dissolved, and plaintiff's bond is forfeited. Judgment against plaintiff for costs.

(Judge's signature and date omitted)

and this action is dismissed under TR 12, the restraining order issued herein is dissolved, and the plaintiff's bond is forfeited. Judgment against plaintiff for costs.'

To dismiss an action (or a complaint) pursuant to a Rule 12 motion it must appear to a certainty that the plaintiff would not be entitled to relief under any set of facts provable under the...