Kent County Prosecutor v. Robert Emmett Goodrich Corp.

• Citation: 240 N.W.2d 242,396 Mich. 253
• Decision Date: 01 April 1976
• Docket Number: N,No. 2,2
• Parties: KENT COUNTY PROSECUTOR, Plaintiff-Appellant, v. ROBERT EMMETT GOODRICH CORPORATION, Defendant-Appellee.
• Court: Supreme Court of Michigan

Page 242

240 N.W.2d 242

396 Mich. 253

KENT COUNTY PROSECUTOR, Plaintiff-Appellant, v. ROBERT EMMETT GOODRICH CORPORATION, Defendant-Appellee.

No. 2, Nov. Term 1975.

Supreme Court of Michigan.

April 1, 1976.

Donald A. Johnston, III, Chief Asst. Pros. Atty., Kent County, Grand Rapids, for plaintiffs-appellants.

Stephen M. Taylor, Detroit, for defendant-appellee.

LEVIN, Justice.

The issue is whether the civil obscenity statute may be applied to bar the showing of the film 'The Devil in Miss Jones.' ¹

The statute provides:

'The chief executive or legal office of any city, village or charter township or prosecuting attorney of the county may institute and maintain an action in the circuit court against any person, firm or corporation to enjoin and prevent the sale or further sale or the distribution or further distribution or the acquisition or possession of any book, magazine, pamphlet, comic book, story paper, writing, paper, picture, drawing, photograph, figure or image or any written or printed matter of an indecent character, which is obscene, lewd, lascivious, filthy, indecent or disgusting, or which contains an article or instrument of indecent or immoral use or purports to be for indecent or immoral use or purpsoe.' M.C.L.A. § 600.2938; M.S.A. § 27A.2938.

The statute is aimed at the 'sale,' 'distribution,' 'acquisition or possession' of written or printed paper materials, not the exhibition of a motion picture film.

Read in context ('book, magazine, pamphlet, comic book, story book, writing, paper, picture, drawing, photograph, figure or image or any written or printed matter') the words picture, photograph, figure or image mean a picture, photograph, figure or image on paper--writing paper, book paper, magazine paper, photographic paper.

Our construction of the statute is reinforced by the use of the verbs 'sale,' 'distribution,' 'acquisition or possession.' Those words do not describe the showing of a motion picture film. A film is distributed or licensed by a producer directly or through a distributor to an exhibitor who shows or exhibits the film to the public. An exhibitor does not 'sell' or 'distribute' the film to the viewing public.

The words 'acquisition or possession' in context appear directed at the permanent acquisition and possession ² of the prohibited material rather than the temporary possession of one who, like a motion picture exhibitor, does not at any time acquire or possess any interest in the material and who is required to return it shortly.

In this connection it is significant that the gist of the complaint against a motion picture exhibitor is the showing of the allegedly obscene material, not its mere acquisition and possession.

Michigan's criminal obscenity statute reveals its purpose to cover the exhibition of motion picture film by the inclusion of the verb 'show' and the noun 'motion picture film.' ³

The criminal obscenity statute took its present form in 1957 (1957 P.A. 265). ⁴ The civil obscenity statute was first enacted in 1958 (1958 P.A. 126). ⁵ The earlier criminal statute expressly covers 'phonograph record,' 'motion picture film,' 'wire or tape recording,' or 'recorded matter.' The civil obscenity statute significantly does not include those words. This is even more striking when the descriptive language of the two acts is placed side by side and it is seen that the wording of the materials covered in the civil statute follows in precise sequence the language of the criminal statute with the noticeable elimination of 'newspaper' ('comic book' substituted), 'phonograph record,' 'motion picture film,' 'wire or tape recording' 'or recorded matter.' Whether these deletions were because proceedings under the civil statute may be maintained by '(t)he chief executive or legal officer of any city, village or charter township' as well as the prosecuting attorney does not appear; whatever the reason, it is apparent that the Legislature chose to limit the operative effect of the civil obscenity statute.

The civil obscenity statute is not directed to the exhibition of a motion picture film.

The Court of Appeals is affirmed.

T. G. KAVANAGH, C.J., and WILLIAMS and FITZGERALD, JJ., concur.

RYAN, J., not participating.

LINDEMER, Justice (dissenting).

The construction of criminal statutes is always more rigidly examined than that of civil statutes. Justice Levin asks us to believe that the legislature desired to regulate that which is obscene, lewd, lascivious, filthy, indecent or disgusting more extensively through the criminal process than the civil. It is my opinion that the statute's distribution of such material covers the exhibition of 'The Devil in Miss Jones'. It is my further opinion that the reading of the statute to eliminate motion picture film is strained. The statute does not say that the words 'picture, photograph, figure or image' mean a picture, photograph, figure or image on writing paper or book paper. To so hold brings to mind Mr. Bumble who remarked:

'If the law supposes that, * * * The law is a ass, a idiot.' Oliver Twist by Charles Dickens.

Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), establishes the standards applicable here. The civil obscenity statute is directed to the exhibition of a motion picture film.

The Court of Appeals should be reversed.

COLEMAN, J., concurs.

1 The trial court permanently enjoined the showing of the film. The Court of Appeals reversed, declaring:

'It is our conclusion that the injunction was improperly granted since there is no state law, either statutory or judicial, which 'specifically defines' the depictions of sexual conduct which the state may regulate. The trial judge lacked the power to authoritatively construe the statute.' 53 Mich.App. 267, 275, 218 N.W.2d 771, 775 (1974).

Our disposition makes it unnecessary to consider this question. Neese v. Southern R. Co., 350 U.S. 77, 78, 76 S.Ct. 131, 100 L.Ed. 60 (1955); Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 132, 67 S.Ct. 231, 91 L.Ed. 128 (1946).

2 In Stanley v. Georgia, 394 U.S. 557, 568, 564, 89 S.Ct. 1243, 1250, 1247, 22 L.Ed.2d 542 (1969), the United States Supreme Court held that the states' power to...