Llewelyn v. Oakland County Prosecutor's Office, Civ. A. No. 5-71667.

• Citation: 402 F. Supp. 1379
• Decision Date: 10 November 1975
• Docket Number: Civ. A. No. 5-71667.
• Parties: James LLEWELYN and Studio Theatre Corporation, a Michigan Corporation, Plaintiffs, v. OAKLAND COUNTY PROSECUTOR'S OFFICE et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

402 F. Supp. 1379

James LLEWELYN and Studio Theatre Corporation, a Michigan Corporation, Plaintiffs, v. OAKLAND COUNTY PROSECUTOR'S OFFICE et al., Defendants.

Civ. A. No. 5-71667.

United States District Court, E. D. Michigan, S. D.

October 15, 1975.

Supplemental Memorandum Opinion November 10, 1975.

COPYRIGHT MATERIAL OMITTED

Marvin S. Shwedel, Faintuck, Shwedel, Roether, Wolfram & McDonald, Farmington Hills, Mich., for plaintiffs.

Frank K. Mandlebaum, Asst. Prosecuting Atty., Oakland County, Pontiac, Mich., for defendants.

MEMORANDUM OPINION

FEIKENS, District Judge.

I.

On August 27, 1975, Oakland County Prosecutor L. Brooks Patterson, defendant herein, conducted a search and made an arrest at the Studio North Theatre in the City of Ferndale. The search and arrest were made by agents of defendant pursuant to warrants issued by Judge Hunt of Michigan's 43rd District; a copy of a film entitled "Naked Came the Stranger" was seized and James D. Llewelyn, manager of the theatre and one of the plaintiffs herein, was placed under arrest and charged with showing an obscene motion picture in violation of M.C.L.A. § 750.343a. After arraignment, Llewelyn was released on bond.

On August 28, "Naked Came the Stranger" was again exhibited at Studio North and the theatre was again raided by defendant. A second copy of the film was seized and Llewelyn was again placed under arrest. This second raid was conducted pursuant to a warrant that was obtained by defendant from an Oakland County Circuit Judge after Judge Hunt had declined defendant's request for a second warrant.

On August 29, Judge Hunt held a hearing in which the subject film was viewed and arguments were heard from both sides. Judge Hunt made a preliminary finding of obscenity and ordered the case set down for trial. On the ground that Heller v. New York, 413 U. S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973) permitted the prosecutor to seize only one copy of an allegedly obscene motion picture (for evidentiary purposes pending a final adjudication of obscenity), Judge Hunt dismissed the prosecution arising out of the August 28 arrest, and ordered defendant to return the second copy of the film to Llewelyn. (This order was formalized by Judge Hunt in a document issued on September 11.)

Alleging that defendant refused to comply with Judge Hunt's order to return the second film to plaintiff, and that defendant had stated to the local media his intention of seizing a copy of the film each day it was played, plaintiff Llewelyn and his co-plaintiff, Studio Theatre Corporation, filed a complaint for injunctive relief in this court on the afternoon of August 29.

Plaintiffs' verified complaint raised a substantial question whether defendant had embarked upon a course of harassment through multiple raids upon Studio North. This court accordingly issued an order directing defendant to appear before it on September 2 and show cause why a temporary restraining order should not be issued.

At 4:54 in the afternoon of August 29, defendant commenced an action in Oakland County Circuit Court, alleging that the film was obscene and that its exhibition therefore constituted a public nuisance in violation of M.C.L.A. § 600.3801. Defendant asked that this alleged nuisance be abated by a permanent injunction and that the theatre's furniture, fixtures and contents be removed and sold. Pending a final adjudication, defendant asked that plaintiffs be temporarily restrained from maintaining a public nuisance at Studio North or elsewhere within the judicial circuit.

Circuit Judge Richard D. Kuhn (it later developed that the case was improperly assigned to Judge Kuhn), issued an ex parte temporary restraining order against plaintiffs, enjoining them from exhibiting the film anywhere within Oakland County, pending a final hearing on the nuisance action. Judge Kuhn's order was filed with the Oakland County Clerk at 5:49 in the afternoon of August 29, that is, some 55 minutes after the action had been commenced by defendant.

At a conference in chambers in this court on the morning of September 2, at which representatives of plaintiffs and defendant were present, defendant stated that in view of Judge Kuhn's order he had no present intent to make further raids upon Studio North. For this reason the show cause hearing scheduled for that day was adjourned until such time as further seizures might occur.

At a hearing in the afternoon of September 2, Judge Kuhn concluded that the public nuisance case had been erroneously assigned to him and ordered it transferred to Circuit Judge William R. Beasley.

On September 3, at a hearing convened at the request of plaintiffs, Judge Beasley reaffirmed the validity of the restraining order and continued it in effect.

On September 9, acting in response to an emergency appeal filed by plaintiffs, the Michigan Court of Appeals vacated Judge Kuhn's restraining order on the ground that it constituted "a forbidden prior restraint on activities presumptively protected by the First Amendment by enjoining the showing of the named motion picture film without first having conducted an adversary proceeding at which such film must be submitted as evidence to the trier of fact pursuant to Miller v. California, 413 U.S. 15, 24-25, ,93 S.Ct. 2607, 37 L.Ed. 2d 419 . . . (1973) to determine whether said film is obscene". State ex rel. Patterson v. Ealand, No. 25521 (Sept. 9, 1975).

Upon being informed that the restraining order had been vacated, plaintiffs resumed exhibition of the subject film on the evening of September 12. Defendant then approached Judge Hunt and requested a warrant directing seizure of the film. When this request was denied, defendant requested a similar warrant from some six other district judges in the 43rd District, all of whom likewise denied the request. Finally, defendant succeeded in obtaining the desired warrant from Oakland County Circuit Judge James S. Thorburn, and conducted a raid on Studio North on the night of September 12. A third copy of the film was seized and plaintiff Llewelyn was incarcerated in the Oakland County Jail until the morning of September 13.

Exhibition of the film was resumed on September 13 and defendant sought and obtained yet a fourth search warrant, this time from District Judge John Osgood. A raid was conducted by defendant's agents that evening, a fourth copy of the film was seized and plaintiffs' projection equipment was removed from the theatre.

This court was approached immediately after that raid with a request for a temporary restraining order. On a finding as required by Rule 65(b) that the activities of defendant had resulted and would continue to result in immediate and irreparable injury to plaintiffs' first and fourteenth amendment rights, the court issued a temporary restraining order enjoining defendant from further arrests or seizures and ordering that the projection equipment be returned forthwith to plaintiffs. The court further ordered defendant to appear at a hearing on September 16 to show cause why the restraint should not be continued.

On September 15, Robert J. Turner, the City Attorney of Ferndale, filed an action in Oakland County Circuit Court to enforce Ordinance No. 610 (enacted on July 30, 1973 as an amendment to Ordinance No. 525), a zoning ordinance prohibiting the establishment of an "adult motion picture theatre" within 1,000 feet of any residence unless 51% of those residing within the 1,000 feet of the theatre sign a petition approving such use. The complaint alleged that under this ordinance in conjunction with M.C.L.A. § 125.587 Studio North constituted a nuisance per se, and asked for an ex parte temporary injunctive order pending a final hearing on the merits. Judge Beasley, to whom the case was assigned, heard argument on this motion from Turner and Robert H. Roether, a partner in the law firm that represented plaintiffs, who happened to be present in Judge Beasley's court on another matter. After argument, but without viewing the film, Judge Beasley issued a temporary restraining order, but stayed its effect until September 19 in view of the hearing scheduled for September 16 in this court.

On September 16, a show cause hearing was held in this court. Frank K. Mandelbaum appeared on behalf of defendant Patterson and urged that federal court abstention was appropriate in view of the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 29 L.Ed.2d 669 (1971), and related cases. In essence, he argued that the pattern of raids upon Studio North did not come within the Younger exception for harassment because each arrest and seizure was made pursuant to a warrant issued by a state judge. Hicks v. Miranda, 43 U.S.L.W. 4857, 95 S.Ct. 2281, 45 L.Ed.2d 223 (U.S. June 24, 1975) was cited for the proposition that seizures and arrests pursuant to judicial warrants cannot constitute bad faith or harassment. This issue will be discussed later in this opinion. Suffice it to say at this point that the court found defendant's conduct of multiple seizures and arrests to be harassment within the Younger exception, particularly in light of Mandelbaum's forthright admission in the course of argument that further raids were contemplated in the event this court's restraining order should be dissolved. It is evident that defendant's objective in this series of raids has been to effect a restraint upon the exhibition of a motion picture prior to an adjudication that the film is obscene. This was done in violation of the spirit if not the letter of a decision of the Michigan Court of Appeals. Accordingly, the restraining order was continued in effect and plaintiffs' motion for a preliminary injunction was taken under advisement. The parties were asked to return to this court on September 18 to report on which of the three actions against plaintiffs (that is, the criminal prosecution, the public nuisance action or the zoning action) would be pursued and when it would come to trial....