Kucharek v. Hanaway

• Decision Date: 12 June 1989
• Docket Number: No. 88-C-657 (JPS).,88-C-657 (JPS).
• Citation: 714 F. Supp. 1499
• Parties: William H. KUCHAREK; Shangri-La Enterprises, Inc., d/b/a Denmark Bookstore; Paradise One, Inc., d/b/a Paradise Video Store; and Gem Books, Inc., d/b/a Pure Pleasure II Bookstore, Plaintiffs, v. Donald J. HANAWAY, Attorney General of the State of Wisconsin, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

714 F. Supp. 1499

William H. KUCHAREK; Shangri-La Enterprises, Inc., d/b/a Denmark Bookstore; Paradise One, Inc., d/b/a Paradise Video Store; and Gem Books, Inc., d/b/a Pure Pleasure II Bookstore, Plaintiffs, v. Donald J. HANAWAY, Attorney General of the State of Wisconsin, Defendant.

No. 88-C-657 (JPS).

United States District Court, E.D. Wisconsin.

June 12, 1989.

COPYRIGHT MATERIAL OMITTED

Stephen M. Glynn, James A. Walrath, Shellow, Shellow & Glynn, S.C., Milwaukee, Wis., for plaintiffs.

Thomas J. Balistrieri, Asst. Atty. Gen., Wisconsin Dept. of Justice, Madison, Wis., for defendant.

STADTMUELLER, District Judge.

I. THE PARTIES

Plaintiff William H. Kucharek is employed as a clerk at the Denmark Bookstore. The Denmark Bookstore is owned and operated by plaintiff Shangri-La Enterprises, Inc., which has as part of its stock in trade audio-visual materials, including sexually explicit films and videotapes. Plaintiff Paradise One, Inc. operates the Paradise Video Store, which sells and rents videotapes, some of which are sexually explicit. Plaintiff Gem Books owns and operates Pure Pleasure II Bookstore, having as part of its stock in trade audio-visual materials that include sexually explicit videotapes.

Plaintiffs sue defendant Donald J. Hanaway in his official capacity as attorney general for the state of Wisconsin. By virtue of Wis.Stat. §§ 944.21(7) and 165.25(3m), he is responsible for determining whether state prosecutions for alleged violations of Wis.Stat. § 944.21 may be commenced.

II. THE STATUTE

Plaintiffs bring this action to challenge as unconstitutional Wis.Stat. § 944.21, relating to obscenity. Because plaintiffs challenge the statute on several fronts, the provision is printed here in its entirety:

944.21 Obscene material or performance. (1) The legislature intends that the authority to prosecute violations of this section shall be used primarily to combat the obscenity industry and shall never be used for harassment or censorship purposes against materials or performances having serious artistic, literary, political, educational or scientific value. The legislature further intends that the enforcement of this section shall be consistent with the first amendment to the U.S. constitution, article I, section 3, of the Wisconsin constitution and the compelling state interest in protecting the free flow of ideas.

(2) In this section:

(a) "Community" means this state.

(b) "Internal revenue code" has the meaning specified in s. 71.01(6).

(c) "Obscene material" means a writing, picture, sound recording or film which:

1. The average person, applying contemporary community standards, would find appeals to the prurient interest if taken as a whole;

2. Under contemporary community standards, describes or shows sexual conduct in a patently offensive way; and

3. Lacks serious literary, artistic, political, educational or scientific value, if taken as a whole.

(d) "Obscene performance" means a live exhibition before an audience which:

1. The average person, applying contemporary community standards, would find appeals to the prurient interest if taken as a whole;

2. Under contemporary community standards, describes or shows sexual conduct in a patently offensive way; and

3. Lacks serious literary, artistic, political, educational or scientific value, if taken as a whole.

(e) "Sexual conduct" means the commission of any of the following: sexual intercourse, sodomy, bestiality, necrophilia, human excretion, masturbation, sadism, masochism, fellatio, cunnilingus or lewd exhibition of human genitals.

(f) "Wholesale transfer or distribution of obscene material" means any transfer for a valuable consideration of obscene material for purposes of resale or commercial distribution; or any distribution of obscene material for commercial exhibition. "Wholesale transfer or distribution of obscene material" does not require transfer of title to the obscene material to the purchaser, distributee or exhibitor.

(3) Whoever does any of the following with knowledge of the character and content of the material or performance and for commercial purposes is subject to the penalties under sub. (5):

(a) Imports, prints, sells, has in his or her possession for sale, publishes, exhibits, or transfers any obscene material.

(b) Produces or performs in any obscene performance.

(c) Requires, as a condition to the purchase of periodicals that a retailer accept obscene material.

(4) Whoever does any of the following with knowledge of the character and content of the material is subject to the penalties under sub. (5):

(a) Transfers or exhibits any obscene material to a person under the age of 18 years.

(b) Has in his or her possession with intent to transfer or exhibit to a person under the age of 18 years any obscene material.

(5)(a) Except as provided under pars. (b) to (e), any person violating sub. (3) or (4) is subject to a Class A forfeiture.

(b) If the person violating sub. (3) or (4) has one prior conviction under this section, the person is guilty of a Class A misdemeanor.

(c) If the person violating sub. (3) or (4) has 2 or more prior convictions under this section, the person is guilty of a Class D felony.

(d) Prior convictions under pars. (b) and (c) apply only to offenses occurring on or after June 17, 1988.

(e) Regardless of the number of prior convictions, if the violation under sub. (3) or (4) is for a wholesale transfer or distribution of obscene material, the person is guilty of a Class D felony.

(5m) A contract printer or employe or agent of a contract printer is not subject to prosecution for a violation of sub. (3) regarding the printing of material that is not subject to the contract printer's editorial review or control.

(6) Each day a violation under sub. (3) or (4) continues constitutes a separate violation under this section.

(7) A district attorney may submit a case for review under s. 165.25(3m). No civil or criminal proceeding under this section may be commenced against any person for a violation of sub. (3) or (4) unless the attorney general determines under s. 165.25(3m) that the proceeding may be commenced.

(8)(a) The legislature finds that the libraries and educational institutions under par. (b) carry out the essential purpose of making available to all citizens a current, balanced collection of books, reference materials, periodicals, sound recordings and audiovisual materials that reflect the cultural diversity and pluralistic nature of American society. The legislature further finds that it is in the interest of the state to protect the financial resources of libraries and educational institutions from being expended in litigation and to permit these resources to be used to the greatest extent possible for fulfilling the essential purpose of libraries and educational institutions.

(b) No person who is an employe, a member of the board of directors or trustee of any of the following is liable to prosecution for violation of this section for acts or omissions while in his or her capacity as an employe, a member of the board of directors or a trustee:

1. A public elementary or secondary school.

2. A private school, as defined in s. 115.001(3r).

3. Any school offering vocational, technical or adult education that:

a. Is a vocational, technical and adult education district school, is a school approved by the educational approval board under s. 38.51 or is a school described in s. 38.51(9)(f), (g) or (h); and

b. Is exempt from taxation under section 501(c)(3) of the internal revenue code.

4. Any institution of higher education that is accredited, as described in s. 39.30(1)(d), and is exempt from taxation under section 501(c)(3) of the internal revenue code.

5. A library that receives funding from any unit of government.

(9) In determining whether material is obscene under sub. (2)(c) 1 and 3, a judge or jury shall examine individual pictures or passages in the context of the work in which they appear.

(10) The provisions of this section, including the provisions of sub. (8), are severable, as provided in s. 990.001(11).

III. PLAINTIFFS' ALLEGATIONS

Plaintiffs allege that § 944.21 is violative of the equal protection clause of the fourteenth amendment to the United States Constitution in that it distinguishes between two similarly situated parties without either a compelling reason or a rational basis for such distinction. Specifically, plaintiffs allege: (a) section 944.21(2)(c) criminalizes transactions in allegedly obscene film but not in allegedly obscene videotapes; (b) section 944.21(5m) exempts contract printers from prosecution when they are without editorial review or control over what they print, while at the same time authorizing prosecution of bookstore and video store clerks who are without editorial review or control over what they sell or rent; (c) section 944.21(7) prohibits proceedings under the statute in the absence of a determination by the attorney general that such proceedings may be commenced, while allowing proceedings under identical county ordinances without such a determination and even despite a determination against such a proceeding; and (d) section 944.21(8) exempts from prosecution persons and agencies engaged in the same activities as plaintiffs while subjecting plaintiffs to prosecution for those activities.

Plaintiffs further allege that Wis.Stat. § 944.21 is violative of the due process clause of the fourteenth amendment to the United States Constitution in that: (a) section 944.21(2)(c)(3) renders unconstitutionally vague the test for obscenity as established in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); and (b) section 944.21(2)(f) punishes as felonious "wholesale transfers" the delivery of a single item of allegedly obscene material even though at the time of delivery the actor is without knowledge that the delivered material is intended for further delivery to another.

Plaintiffs seek preliminary as well as permanent...