Olsen v. Doerfler, Docket No. 2579

• Decision Date: 29 November 1968
• Docket Number: Docket No. 2579,No. 1,1
• Citation: 165 N.W.2d 648,14 Mich.App. 428
• Parties: Samuel H. OLSEN, Prosecuting Attorney for the County of Wayne, Plaintiff-Appellee, v. William DOERFLER and Royal News Company, a foreign corporation, Defendants- Appellants
• Court: Court of Appeal of Michigan — District of US

Page 648

165 N.W.2d 648

14 Mich.App. 428

Samuel H. OLSEN, Prosecuting Attorney for the County of Wayne, Plaintiff-Appellee, v. William DOERFLER and Royal News Company, a foreign corporation, Defendants- Appellants.

Docket No. 2579.

Court of Appeals of Michigan, Division No. 1.

Nov. 29, 1968.

Released for Publication March 19, 1969.

Ernest Goodman, Goodman, Eden, Robb, Millender, Goodman & Bedrosian, Detroit, for appellants.

Aloysius J. Suchy and George H. Cross, Asst. Pros. Attys., Detroit, for appellee.

Before T. G. KAVANAGH, P.J., and BURNS and FITZGERALD, JJ.

FITZGERALD, Judge.

A quotation from the plaintiff's reply brief to the defendant's supplemental brief seems particularly appropriate to set the tenor of this appeal, expressing as it does the miasma into which we descend:

'It was once said that the law is a seamless web. The law is nowhere more seamless than in the area of obscenity. While all courts agree that obscenity is not protected by the First and Fourteenth Amendments to the Constitution, what is obscene or not obscene has traveled the crooked mile from the exposure of the female ankle which was obscene to the exposure of the male and female genitalia which apparently sometimes is not. It is not that that which was obscene Per se has changed but rather interpretation of constitutional rights that have been broadened by the courts to the end that in the final analysis, nothing is impermitted under certain circumstances. Obscenity is still obscenity. It is only that obscenity is now permitted, encouraged, and financially rewarded and, therefore, by interpretative innuendo, that which was obscene sometimes appears no longer to be so.'

To lighten the burden of the reader, we will not attempt a weary description of the magazines here involved. A random selection of titles will suffice to present a kaleidoscope of the Genre we here deal with: Black Satin, The Body Shop, Busty, Cuddle Bug, Diamond Stud, Frenchy, Hip & Toe, Imp, Man's Favorite Pastime, Masher, Nymph, Pagan, Sultry, Slave, Undie World, and last but far from least, Wow! Multiply these titles by the proliferation of other titles and it is not difficult to fathom the spectrum placed before the jury in this action.

Agreed as both bench and bar must be, that the area of obscenity produces as many views as there are legal minds at work, ¹ we

find that even the statement of facts of this particular appeal produces fundamental divergences as to the true meaning and thrust of this case. To set out the controverted factual situation, we reproduce first the defendants' view, then the plaintiff's, both paraphrased in style, but demonstrating their respective positions:

STATEMENT OF FACTS BY DEFENDANTS

Defendant Royal News Company is an Ohio corporation engaged in the business of the distribution and sale of books, magazines and periodicals. It operated a warehouse and office in Detroit of which defendant Doerfler was manager.

On the basis of a complaint obtained by the officers of the censor bureau of the Detroit police department from one Albert Goldbaum, a retailer in the city of Detroit, alleging the sale to him of 81 different titles of magazines by defendant Doerfler, a warrant was issued out of the recorder's court for the city of Detroit on July 30, 1963, for his arrest.

On the same day, several police officers went to the warehouse and arrested Doerfler upon the warrant. Upon inquiry of the prosecuting attorney for Wayne County as to 'exactly how far we could go legally', the police officers were instructed: 'to clean the place out'. Thereupon, they instituted a search of the warehouse and seized approximately 289 different magazines totaling over 20,000 copies. ²

Although an examination was held in the recorder's court upon the complaint and warrant, the magazines seized from the warehouse were not offered in evidence or relied upon by the prosecutor in that proceeding.

Instead, on August 19, 1963, appellee filed the complaint in this case under C.L.S.1961, § 600.2938 (Stat.Ann. § 27A.2938), seeking an adjudication that the 289 titles were obscene and an injunction permanently restraining their possession, distribution or sale. An Ex parte preliminary injunction was issued restraining defendants from possessing, distributing or selling any of the 289 magazines.

At this point, defendants removed the case to the Federal district court, but on motion of plaintiff, the case was remanded to the circuit court on January 6, 1964.

A motion to disqualify the trial judge, with supporting affidavit, was then filed by defendants. The motion was denied by the trial judge and, again, in a written opinion by another circuit judge to whom the motion was assigned.

A motion for summary judgment (originally filed as a motion to dismiss), asserting the unconstitutionality of the Michigan obscenity statute and the search and seizure of the magazines, was then filed, heard and denied by the trial judge. On December 21, 1964, defendants filed their answer to the complaint.

On the opening of the trial, May 16, 1966, a motion to postpone trial was filed by defendants, based upon a claim of prejudice arising out of a series of TV programs broadcast in the community during the week immediately proceding the trial, entitled 'Expose : Smut'. The motion was denied.

During the course of the 2-week trial, motions for mistrial were made by defendants by reason of continued TV broadcasts, a TV interview with the trial judge, the massing of the 20,000 magazines in boxes behind defendants and their counsel, and the injection into the testimony of the issuance of a Federal indictment against a 'principal' of defendant corporation. All motions were denied.

Other rulings of the trial judge, particularly those which excluded certain magazines sought to be used by defendants for the purpose of comparison on the issue of community standards, and the trial judge's charge to the jury which permitted it to consider the effect of the magazines on children over 13 years of age, were made over objection by defendants.

The jury began its deliberations on May 26 and returned its verdict on June 23. It found 141 magazines obscene, 63 not obscene, and 33 on which it could not agree.

A judgment was entered on August 12, 1966, permanently enjoining the sale or distribution of the 141 magazines which were found obscene, and of identical magazines, and directing the sheriff to destroy them; and ordering the return of the 63 magazines found not obscene as well as the 33 magazines on which the jury was unable to agree.

A stay of proceedings was entered by the trial judge on August 23, 1966, to hold up the destruction of the 141 magazines during the appeal.

COUNTER STATEMENT OF FACTS BY PLAINTIFF

Defendants' statement of facts relates matters not material to this action. Without attempting to correct any misstatements made therein, plaintiff affirmatively states that the only material fact, which incidentally is not in dispute, is that certain enumerated magazines were brought before the Wayne County circuit court in this action pursuant to provisions of the Michigan statute (cited Supra) and a determination sought as to their obscenity. This issue was the sole issue contemplated by the statute and was the sole issue determined in this action. All other issues attempted to be injected into this action by the defendants were correctly ruled not material and excluded.

The statute provides (paraphrasing) that the prosecuting attorney of the county may institute and maintain an action in the circuit court against any person, firm, or corporation to enjoin and prevent the sale or distribution of any * * * magazine * * * of an indecent character which is obscene, lewd, * * * which contains an article * * * of indecent or immoral use or purpose.

A jury was empaneled and the magazines offered to the jury for a factual finding of obscenity.

Of the 237 separate and distinct issues so offered, the jury found 141 obscene, 63 not obscene, and 33 on which they could not agree.

As a result of said finding, the court, pursuant to the statute, entered an order so declaring; further ordering the destruction of those found obscene, and ordering the return to the defendants of the rest and remainder. Subsequently, upon defendants' claim of appeal, a stay of proceedings was ordered on those previously ordered destroyed.

Other facts and other issues have been raised by the defendants both here in this action and in other actions in the recorder's court for the city of Detroit and in the United States District Court. Those actions are dispositive of all other issues. Those decisions are and will be Res judicata in those cases. They are not material to this action and their interjection into these proceedings is designed solely to confuse the real issue, to wit: obscenity of the magazines.

STATUTE

The pertinent portions of C.L.S.1961, § 600.2938, upon which the complaint in this proceeding is based, are as follows:

'(1) The chief executive or legal office of any city, village or charter township or prosecuting attorney of the county may institute and maintain an action in the circuit court against any person, firm or corporation to enjoin and prevent the sale or further sale or the distribution or further distribution or the acquisition or possession of any book, magazine, pamphlet, comic book, story paper, writing, paper, picture, drawing, photograph, figure or image or any written or printed matter of an indecent character, which is obscene, lewd, lascivious, filthy, indecent or disgusting, or which contains an article or instrument of indecent or immoral use of purports to be for indecent or immoral use or purpose.

'(4) A preliminary injunction or restraining order may be issued upon or at any time after the filing of the complaint. The person, firm or corporation sought to be enjoined is entitled to a trial of the issues within 1 day after joinder of issue and a...