Maita v. Whitmore

• Decision Date: 09 November 1973
• Docket Number: No. C-72-1203-OJC.,C-72-1203-OJC.
• Citation: 365 F. Supp. 1331
• Court: U.S. District Court — Northern District of California
• Parties: Philip Joseph MAITA, Petitioner, v. Earl WHITMORE, Respondent.

365 F. Supp. 1331

Philip Joseph MAITA, Petitioner, v. Earl WHITMORE, Respondent.

No. C-72-1203-OJC.

United States District Court, N. D. California.

November 9, 1973.

COPYRIGHT MATERIAL OMITTED

Donald A. Tenenbaum, San Jose, Cal., for petitioner.

Evelle J. Younger, Atty. Gen., Thomas A. Brady, Deputy Atty. Gen., San Francisco, Cal., for respondent.

MEMORANDUM AND ORDER

OLIVER J. CARTER, Chief Judge.

Petitioner has filed a petition for writ of habeas corpus which challenges the constitutionality of four contempt convictions stemming from violations of a temporary injunction issued by the Superior Court of San Mateo County. Jurisdiction is based upon 28 U.S.C. § 2254 in order that the Court may consider the federal constitutional issues raised.

There is no dispute as to the essential factual issues of the case. Petitioner operated "The Easy Street," a nightclub located in San Mateo, California. That establishment presented both live and cinematic entertainment and offered alcoholic beverages to its customers served by nude and partially nude waitresses.

On December 11, 1969, the District Attorney of San Mateo County, pursuant to Section 11226 of the California Penal Code, filed a civil complaint alleging that certain entertainment presented on the above-mentioned premises was lewd and therefore constituted a public nuisance. The complaint requested injunctive relief to abate the alleged nuisance.

After a ten day hearing on the matter, the San Mateo County Superior Court issued a temporary injunction on January 27, 1970 which enjoined petitioner from presenting on The Easy Street premises certain types of entertainment and engaging in certain modes of conduct that the court had determined to be "lewd". Petitioner challenged the injunction in both the California Court of Appeal and the California Supreme Court without success.

On September 14, 1971, the temporary injunction was modified pursuant to a stipulation by the parties. Said stipulation listed the conduct prohibited and resulted in the hearing on the plea for abatement being taken off calendar until deemed necessary by the parties.

After a period of some four and one-half months, petitioner was ordered to show cause why he should not be held in contempt for willful violation of the temporary injunction as modified by the September 14, 1971 stipulation.

The hearing on the order to show cause was held on February 18 and March 2 and 3, 1972 and the court, despite petitioner's request for a jury trial, determined that the conduct of the petitioner violated the terms set forth in the injunction. Petitioner was convicted of four counts of contempt — one for each of the days the proscribed conduct occurred (January 21, 22, 23, 24, 1972) — and was ordered to pay a fine of $1,000 and sentenced to six months in the county jail on one of the counts and was fined $500 and sentenced to sixty days in the county jail on each of the remaining three counts. Four months of the six month sentence were suspended and the jail sentences on all counts were ordered to run concurrently.

Petitioner again sought relief from the California Court of Appeal and the California Supreme Court and, his claim denied in those forums, petitioned the United States Supreme Court for a writ of certiorari.

His petition having been rejected by the United States Supreme Court, petitioner now seeks federal habeas corpus relief citing, as noted above, the constitutional issues involved.

Petitioner has presented to the Court two basic constitutional issues. The first, relating to the question of prior restraints under the First Amendment, goes to the substance of the conviction itself. The second issue involves the procedural aspects leading up to petitioner's conviction — his right to a jury trial when charged with four contempt citations.

PRIOR RESTRAINT ISSUE

The "Red Light Abatement Act," California Penal Code § 11255 et seq., sets forth a civil procedure designed to abate certain activities considered to be public nuisances. Included within the statute's regulatory parameters are those buildings or places used for the purpose of "lewdness" or where acts of "lewdness" are held or occur.

Petitioner alleges that he is attacking, not the Red Light Abatement Act itself, but the constitutionality of the injunction issued pursuant to the Act's proceedings¹ and the resultant contempt convictions.² The injunction, petitioner argues, constitutes a prior restraint insofar as no judicial determination of the First Amendment characteristics of the enjoined activities was made, and the injunction thereby prohibited protected as well as non-protected speech.

The prior restraint issue presented by petitioner is therefore twofold: were adequate hearings provided to petitioner, and if so, was the judicial determination that petitioner's activities were not protected by the First Amendment correct?

Adequacy of Hearing

Although the scope of the First Amendment as applied to certain types of expression is often uncertain, the Supreme Court has been quick to strike down governmental attempts to limit speech before it is uttered or before it is found to be offensive. Niemotko v. Maryland, 340 U.S. 268, 273, 71 S.Ct. 325, 95 L.Ed. 267 (1951); Near v. Minnesota, 283 U.S. 697, 713, 51 S.Ct. 625, 75 L.Ed. 1357 (1930). Accordingly, the necessity for a prompt adversary hearing prior to the abatement of any type of speech has become a cornerstone of First Amendment law. Carroll v. Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S.Ct. 631, 9 L.Ed.2d 584 (1962); Kingsley Books, Inc. v. Brown, 354 U.S. 436, 440, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957). The extent of judicial scrutiny of those statutory schemes intended to curtail freedom of expression was sharply delineated by the Supreme Court in the Bantam Books, Inc. case supra. Justice Brennan, speaking for the Court, stated that "any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity citations. We have tolerated such a system only where it operated under judicial superintendence and assured an almost immediate judicial determination of the restraint." Bantam Books, Inc. v. Sullivan, supra, 372 U.S. at 70, 83 S.Ct. at 639.

It is the quality of the above-mentioned "judicial superintendence" that is presently under attack; petitioner alleges that no judicial officer has ever declared the activities upon which the contempt convictions were based to be obscene and that he has been afforded no opportunity to prove that the conduct for which he is being punished is, in fact, protected speech. In support of his contentions, petitioner stresses the refusal of the court to consider the obscenity issue at the contempt hearings.

Petitioner is very much in error when he alleges that no hearings were held in order to determine the obscenity of the conduct in question. Pursuant to § 11227 of the California Penal Code, petitioner was allowed a full adversary hearing on the obscenity issue.³ The evidence clearly indicates that petitioner took full advantage of the opportunity — he presented twenty-one witnesses and numerous exhibits over a two week span that concluded on January 8, 1970. When the hearings were terminated, the trial judge issued a memorandum decision incorporating the law and the facts in support of its determination that petitioner's conduct was obscene. Petitioner challenged the temporary injunction issued as a result of the above-described hearing by seeking a writ of prohibition in the California Court of Appeal and, when his petition was denied, sought without success a hearing in the California Supreme Court.

Upon his failure to have the injunction overturned by the appellate courts, petitioner voluntarily entered into a stipulation whereby he agreed to abide by the provisions of the temporary injunction as modified and the District Attorney would remove the hearing on the plea for abatement from the calendar.⁴

The hearings provided to petitioner more than adequately meet the standards delineated by Bantam Books, Inc. v. Sullivan, supra and Kingsley Books, Inc. v. Brown, supra. Petitioner received prompt notice, a specific complaint, an adversary hearing, and an opportunity to contest the outcome of the hearing in the appellate courts. That such a hearing sufficiently meets constitutional standards is made clear by the Supreme Court when it recently approved a scheme involving civil injunctions that is very similar to the Red Light Abatement Act. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973).

Petitioner apparently believes that the First Amendment entitles him to litigate the obscenity issue twice — once at the time the temporary injunction is issued and once at any subsequent contempt hearing.⁵ As was discussed above, petitioner's hearing prior to the issuance of the temporary injunction was sufficient to satisfy the constitutional provisions relating to freedom of expression. Once such a determination of obscenity is made and an injunction properly issued, the only consideration before the court in a contempt proceeding is if petitioner in fact violated the terms of the injunction. Cf. Walker v. Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967).

Accordingly, the judge's failure to allow petitioner to litigate the obscenity issue at the contempt trial did not deny petitioner a hearing on that issue and does not constitute a prior restraint.

Determination of Obscenity

The injunction having been properly issued, the remaining question relating to the First Amendment involves the sufficiency of the issuing court's determination that petitioner's activities were obscene. Petitioner clearly cannot be punished for dissemination of speech that is constitutionally protected. Cf. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940)....