Miller v. Robert Emmett Goodrich Corp.

• Decision Date: 02 May 1974
• Docket Number: Docket No. 18420,No. 3,3
• Citation: 53 Mich.App. 267,218 N.W.2d 771
• Parties: James K. MILLER, Kent County Prosecutor, and George Weible, City Attorney for the City of Grand Rapids, Plaintiffs-Appellees, v. ROBERT EMMETT GOODRICH CORPORATION, d/b/a Savoy Theatre, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 771

218 N.W.2d 771

53 Mich.App. 267

James K. MILLER, Kent County Prosecutor, and George Weible City Attorney for the City of Grand Rapids Plaintiffs-Appellees, v. ROBERT EMMETT GOODRICH CORPORATION, d/b/a Savoy Theatre Defendant-Appellant.

Docket No. 18420.

Court of Appeals of Michigan, Division No. 3.

May 2, 1974.

Released for Publication June 19, 1974.

John D. Tully, Warner, Norcross & Judd, Grand Rapids, for defendant-appellant.

James K. Miller, Pros. Atty., Donald A. Johnston, III, Chief App. Atty., George A. Weible, City Atty., Grand Rapid, for plaintiffs-appellees.

Before T. M. BURNS, P.J., and HOLBROOK and McGREGOR, JJ.

McGREGOR, Judge.

On October 3, 1973, the defendant owner-operator of the Savoy Theatre in Grand Rapids began showing the film, 'The Devil in Miss Jones.' That same day, the Kent County Prosecutor and the Grand Rapids City Attorney filed a complaint seeking a temporary and permanent injunction against further showing of the film, pursuant to Michigan's civil obscenity statute, M.C.L.A. § 600.2938; M.S.A. § 27A.2938. Based on this complaint, the trial court granted a temporary injunction on October 4, 1973, and set trial for October 10, 1973. Defendant waived his statutory right to a hearing within one day. M.C.L.A. § 600.2938(4); M.S.A. § 27A.2938(4).

For purposes of the action in the lower court, the parties stipulated that the film depicted patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, and patently offensive representations or descriptions of masturbation, excretory functions and lewd exhibitions of the genitalia. The parties further stipulated that the film's predominant appeal is to prurient, shameful, and morbid interest in nudity, sex, and excretion, which went substantially beyond customary limits of candor in the community in describing or representing such matters. Finally, it was stipulated that the movie lacks serious literary, artistic, political, or scientific value.

After hearing the oral arguments of the parties, reviewing the memorandums of law submitted by the parties, and after personally viewing the film, the trial court permanently enjoined the showing of the film. The defendants were granted a stay of the injunction pending appeal.

The sole question on appeal is whether the injunction was proper, in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

In June of 1973, the United States Supreme Court handed down a series of decisions re-examining the nebulous area of obscenity regulation. In Miller v. California, Supra, Chief Justice Burger, for a majority of the Court, spoke of the dangers in attempting to regulate expression:

'State statutes designed to regulate obscene materials must be carefully limited. (Citation omitted.) As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. The conduct must be specifically defined by the applicable state law, as written or authoritatively construed.' 413 U.S. 15, 23--24, 93 S.Ct. 2607, 2614--2615, 37 L.Ed.2d 419, 430 (1973). (Emphasis added.)

Miller sets down three alternatives under which the Michigan statute could be deemed constitutional: (1) The statute must specifically define the prohibited sexual conduct. (2) The statute as heretofore authoritatively construed must specifically define the offensive conduct. (3) The statute as hereafter authoritatively construed must specifically define the prohibited sexual conduct.

The Michigan civil obscenity statute, M.C.L.A. § 600.2938(1); M.S.A. § 27A.2938(1) regulates conduct:

'* * * 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 purpose.'

This statute is conched in terms of expression rather than specifically defined sexual conduct, as required by Miller. A cursory examination of the Oregon ¹ and Hawaii ² statutes referred to approvingly in Miller points out the inadequacy of the Michigan statute.

Cases decided prior to Miller are of little help in deciding this issue, given the new requirement of specificity as set out in Miller. Research fails to turn up any case heretofore decided which would meet the new standards. At any rate, that problem is not before us, as the trial judge attempted to 'authoritatively construe' the statute himself.

What is 'authoritative construction' of the statute? Can a circuit judge's interpretation of the statute be considered 'authoritative'? While the United States Supreme Court has frequently used this term in First Amendment cases going back several years, the Court has never defined exactly what it meant by the term. United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). Placed in context, however, the reference was always directed at the state Supreme Court.

One of the best discussions of 'authoritative construction' can be found in Gooding v. Wilson, Supra, in which the Court considered a challenge to a Georgia statute making it a misdemeanor for any person, without provocation, to use certain words or abusive language causing a breach of the peace. In discussing the constitutional challenge to the statute, the Supreme Court stated:

'It can therefore withstand appellee's attack upon its facial constitutionality only if, as Authoritatively construed by the Georgia courts, it is not susceptible of application to speech * * * protected by the First and Fourteenth Amendments.' 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408, 413 (1972).

Also in Gooding, the Supreme Court referred approvingly to the New Hampshire Supreme Court's limiting construction of their statute. That Court construed their statute to prohibit only 'fighting words.' The Court stated that, in view of this 'authoritative construction,' the statute was not constitutionally infirm.

Gooding refers to an authoritative construction by the Georgia Courts. In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), Justice Burger also made a reference to this authoritative construction by the state Courts. It can be argued that this reference to Courts indicates that a trial court could 'authoritatively construe' the statute. This contention can be laid to rest by an examination of a key footnote in Gooding.

In Gooding v. Wilson, Supra, reference was repeatedly made to the construction given to the statute by the Georgia appellate courts. The Supreme Court accepted the interpretation by the Georgia appellate bench as being authoritative in the following footnote:

'We were informed in oral argument that the Court of Appeals of Georgia is a court of statewide jurisdiction, the decisions of which are biding upon all trial courts in the absence of a conflicting decision of the Supreme Court of Georgia. Federal courts therefore follow these holdings as to Georgia law.' 405 U.S. 518, 525, 92 S.Ct. 1103, 1107--1108, 31 L.Ed.2d 408, n. 3 (1972).

The clear import of this footnote is that an appellate court with statewide jurisdiction could render an authoritative construction of a state statute. However, a local trial court could not do so.

In Michigan, this Court is of statewide jurisdiction and in many cases is the court of last resort. As such, this Court would be capable of making an 'authoritative construction' of the statute in question. A circuit judge, whose jurisdiction is limited to the county in which he sits, cannot qualify to 'authoritatively construe' state issues. The key word is 'authoritatively', for there is no question but that trial courts can and do construe state statutes. The Supreme Court's use of the term 'authoritatively' implies either the highest court in the state or a court of last resort, I.e., the Michigan Court of Appeals.

Since the decision in Miller, several state courts have had occasion to interpret their respective statutes in light of the new standards. State v. J--R Distributors, Inc., 82 Wash.2d 584, 512 P.2d 1049 (1973); Keating v. Vixen, 35 Ohio St.2d 215, 301 N.E.2d 880 (1973); Rhodes v. State, 283 So.2d 351 (Fla.1973); Stroud v. State, Ind., 300 N.E.2d 100 (1973). The Supreme Court of Washington and the Florida Supreme Court 'authoritatively construed' their statutes according to the requirements of Miller. The Ohio Supreme Court felt that their statute, as theretofore construed, was constitutional, and the Indiana Supreme Court stated that their statute was too general and thus constitutionally vague.

It is important for this Court to note that it was the highest court in all four states which construed the respective statutes in light of Miller. It does not follow, as the plaintiffs argue, that since other state supreme courts could 'authoritatively construe' their statutes, the trial judge in the instant matter had the power to do so. The only logical conclusion to be drawn from the Post-Miller cases is that an appellate court of statewide jurisdiction is the proper body to 'authoritatively construe' the state obscenity statutes.

The Louisiana Supreme Court recently held that the requirement of Miller v. California, Supra, that prohibited conduct be specifically described in statutory language cannot be supplied by mere construction of an unspecific Pre-Miller obscenity statute. The Louisiana Supreme Court thus struck down the state's obscenity law and advised the Legislature to get to work. State v Shreveport News Agency, 287 So.2d 464 (La.1973).

The Louisiana Supreme Court holds with the Indiana Supreme Court, that to 'construe' specific descriptions of prohibited sex acts into a simple obscenity statute that has already been judicially narrow to satisfy the Roth-Memoirs test would be to err on the side of judicial activism. It is one thing to interpret a...