Modern Social Education, Inc. v. Preller

• Decision Date: 12 January 1973
• Docket Number: Civ. No. 72-1202-H,72-1203-H.
• Parties: MODERN SOCIAL EDUCATION, INC. and Maryland Adult Sex Education Club by its President, Richard Kivert, Plaintiffs, v. David PRELLER et al., Defendants. The AGE OF MAJORITY EDUCATIONAL CORPORATION and Glen Burnie Adult Sex Education Club by its President, David Wilder, Plaintiffs, v. David PRELLER et al., Defendants.
• Court: U.S. District Court — District of Maryland

353 F. Supp. 173

MODERN SOCIAL EDUCATION, INC. and Maryland Adult Sex Education Club by its President, Richard Kivert, Plaintiffs, v. David PRELLER et al., Defendants.

The AGE OF MAJORITY EDUCATIONAL CORPORATION and Glen Burnie Adult Sex Education Club by its President, David Wilder, Plaintiffs, v. David PRELLER et al., Defendants.

Civ. Nos. 72-1202-H, 72-1203-H.

United States District Court, D. Maryland.

January 12, 1973.

Burton W. Sandler and Sandler & Seekford, Towson, Md., and Mel S. Friedman, Houston, Tex., for plaintiffs.

Francis B. Burch, Atty. Gen. of Maryland, and Thomas G. Young, Asst. Atty. Gen., Baltimore, Md., for defendants.

HARVEY, District Judge:

The pending litigation is but another battle in the long standing war between enforcement officials of the State of Maryland and those who seek to show or distribute sexually oriented films or printed materials in the City of Baltimore.¹ At issue in the engagements to date and in these two cases is the constitutionality of Maryland's motion picture censorship and obscenity laws.

In Adler v. Pomerleau, 313 F.Supp. 277 (D.Md.1970), the proprietor of a so-called "adult book store" located in the City of Baltimore challenged the constitutionality of §§ 417, 418 and 551 of Article 27 of the Annotated Code of Maryland (1967 Repl. Vol.). Plaintiff there sought to enjoin the Baltimore City Police Commissioner and the State's Attorney for Baltimore City from making arrests or seizures of publications without a prior adversary proceeding on the issue of obscenity and from prosecuting certain criminal cases then pending in the Criminal Court of Baltimore City charging plaintiff with violations of the Maryland obscenity laws. The case was heard by a threejudge court in this District, and in an opinion by Judge Northrop the Court ruled that a state has the power to regulate obscenity, that the statutes in question were susceptible to a constitutional construction, and that injunctive relief against state enforcement of the laws in question was improper.² 313 F.Supp. at 287. The Court further ruled that before allegedly obscene printed materials could be seized, a prior adversary hearing on the issue of obscenity should be held. 313 F.Supp. at 286-287.

More recently in Star v. Preller, 352 F.Supp. 530 (D.Md.1972), the manager and operator of an establishment known as the Gayety Book Store, located at 407 E. Baltimore Street, challenged the constitutionality of various provisions of Article 66A of the Annotated Code of Maryland, which is the Maryland motion picture censorship law.³ At his Baltimore Street location, Al Star provided motion pictures in coin-operated machines to be shown to individuals in private booths.⁴ Plaintiff sought to enjoin the Maryland State Board of Censors, the Commissioner of the Baltimore City Police Department, the Attorney General of the State of Maryland and other officials from enforcing state censorship laws against him and his corporations.⁵ That case was likewise heard before a three-judge court.⁶ In an opinion by Judge Young, the Court found that Article 66A met constitutional requirements both on its face and as applied. The Court accordingly denied plaintiff's request for declaratory and injunctive relief against the State officials named as defendants.

Hardly was the ink dry on Judge Young's opinion in the Star case before efforts were undertaken to conduct operations at 407 E. Baltimore Street in a somewhat different manner than theretofore. Articles of Incorporation of Modern Social Education, Inc., one of the plaintiffs herein, were received and approved by the State Department of Assessments and Taxation of Maryland on October 31, 1972. The avowed purpose of such corporation was to provide adult sex education, and the charter further provided that the corporation was not organized for profit. Operations of the corporation were to be conducted at 407 E. Baltimore Street, the same premises previously occupied by the Gayety Book Store. At about the same time, one Al Star and certain others formed a new club called "Maryland Adult Sex Education Club." On October 28, 1972, such Club adopted a constitution and by-laws, and one Richard Kivert was elected president. The stated purposes of the Club were to provide an association of adult members in a forum whereby consenting adults might learn and understand more about sexual matters and sexual techniques. One of the locations utilized by the Club was to be 407 E. Baltimore Street.

At about the same time, a separate corporation with similar stated objectives was formed entitled "The Age of Majority Educational Corporation" and a separate club was organized called "Glen Burnie Adult Sex Education Club." The charter of such corporation and the constitution and by-laws of such Club are practically identical to those of the corporation and Club mentioned in the preceding paragraph. However, such corporation and such Club was to occupy the premises at 115 Crain Highway, Glen Burnie, Anne Arundel County, Maryland.

On November 24, 1972, two separate civil actions were filed herein, these being the cases presently before the Court. In both actions, the named defendants were the Maryland State Board of Censors, the Commissioner of the Baltimore City Police Department, the Attorney General for the State of Maryland and the State's Attorney for Baltimore City. In Civil No. 72-1202-H, the plaintiffs are Modern Social Education, Inc., and Maryland Adult Sex Education Club. In Civil No. 72-1203-H, the plaintiffs are The Age of Majority Educational Corporation and Glen Burnie Adult Sex Education Club.⁷ Local counsel for the plaintiffs are the same as in the Star case. In these two cases, the plaintiffs challenge the constitutionality of both Article 66A of the Annotated Code of Maryland and of § 418 of Article 27 of the Code. In complaints that are almost identical, plaintiffs allege that over the past two years there has been a history of arrests and seizures of books, magazines and films at the two locations at 407 E. Baltimore Street and 115 Crain Highway, that recently the Attorney General has obtained authority from the Governor of the State to prosecute alleged obscenity and movie censorship violations, and that various police officers and state officials have recently raided various book stores and film arcades in the City for the purpose of prosecuting the owners thereof. As relief, plaintiffs in these two actions seek a temporary restraining order, a preliminary injunction and a permanent injunction enjoining and restraining the defendants from issuing criminal process including search warrants, from making arrests, seizures or prosecutions against plaintiffs and "from engaging in any conduct which might in any way interfere" with operations of plaintiffs. The plaintiffs also seek a declaratory decree to the effect that various provisions of Article 66A and of Article 27 are unconstitutional. Plaintiffs have further prayed for the convening of a three-judge court under 28 U.S.C. § 2281 et seq.

On December 8, 1972, a hearing was held on plaintiff's motion for a temporary restraining order. After hearing argument, this Court ruled that plaintiffs had not met their burden of showing irreparable injury. An Order denying the motion was thereupon entered.

That same day, December 8, 1972, defendants filed motions to dismiss in both cases, together with supporting affidavits. The Court directed the plaintiffs to file oppositions to such motions and agreed to hear arguments on defendants' motion before deciding whether to certify this case to the Chief Judge of the Fourth Circuit for the convening of a three-judge court.

On December 11, 1972, certain police officers of the Baltimore City Police Department obtained a search and seizure warrant from Judge John Hargrove of the District Court of Maryland authorizing a search of the premises at 407 E. Baltimore Street and the seizure of films being displayed in coin-operated machines there, allegedly in violation of Article 66A. Such warrant was served upon representatives of the plaintiffs that same afternoon, and, acting pursuant thereto, police officers entered the premises and seized 13 films from coin-operated machines located inside. On December 12, 1972, plaintiffs filed a second motion for a temporary restraining order, reciting these facts, claiming that entry into their premises had been forcibly made and again asking this Court to enjoin defendants from making further arrests or seizures at the premises in question.⁸ Another hearing was held with counsel for both sides in attendance, and again this Court declined to sign a temporary restraining order.

On December 15, 1972, officers of the Baltimore City Police Department secured another search and seizure warrant from Judge Roland J. Gerstung of the District Court of Maryland, again entered the premises at 407 E. Baltimore Street and on this occasion seized 11 films from the coin-operated machines located there.⁹ On December 20, 1972, plaintiffs filed a third motion for a temporary restraining order.¹⁰ At a conference with counsel held immediately after such filing, defendants agreed that there would be no further seizures until a hearing could be held on defendants' motions to dismiss. It was further agreed that plaintiffs' third motion for a temporary restraining order would be heard at the same time as the motions to dismiss. The hearing was thereupon scheduled for December 28, 1972.

When the President by Executive Order declared December 28, 1972 to be a National Day of Mourning for former President Truman, the hearing was cancelled and rescheduled for January 5, 1973. On December 29, 1972, plaintiffs filed an amended complaint which sought to add as additional parties defendant six Baltimore City police officers and State Judges Hargrove and Gerstung. When the amended complaint was brought to the attention of the undersigned judge on January 2, 1973, the Clerk was...