Orito v. Powers
| Decision Date | 30 August 1972 |
| Docket Number | No. 72-C-404.,72-C-404. |
| Citation | 347 F. Supp. 150 |
| Parties | George Joseph ORITO, by Robert E. Sutton, his attorney, Petitioner, v. Sanger POWERS, Administrator, State of Wisconsin Department of Health and Social Services, Division of Corrections, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Samson, Friebert, Sutton & Finerty by Robert E. Sutton, Milwaukee, Wis., for petitioner.
Robert W. Warren, Atty. Gen. by Thomas J. Balistreri, Asst. Atty. Gen., Madison, Wis., for respondent.
DECISION and ORDER
This petition for a writ of habeas corpus presents a threshold question as to the jurisdiction of this court and also a question as to whether a particular publication should be held not obscene as a matter of law.
As noted in earlier decisions of this court, the petitioner has been confined in the federal correctional institution at Sandstone, Minnesota, where he is serving a sentence upon a federal conviction entered in the federal court for the central district of California (Case No. 71-2506-FW). The latter conviction is now on appeal and in an order of Justice Blackmun dated August 5, 1972, Mr. Orito was admitted to bail in the latter case pending final disposition of such appeal.
Mr. Orito was also convicted in the circuit court of Milwaukee County for violation of § 944.21(1), Wis.Stats., and on September 20, 1971, was sentenced to an indeterminate term of five years. Although the Wisconsin authorities have not filed a formal detainer with the federal correctional institution at Sandstone, it is clear that the federal authorities have been notified of the state conviction and consider that notice to constitute a "hold" upon Mr. Orito.
In view of the admission to bail authorized by the United States Supreme Court, I conclude that the petitioner is in fact restrained of his liberty by reason of the conviction in the state court of Wisconsin. Thus, I find that this court has jurisdiction to issue a writ of habeas corpus under 28 U.S.C. § 2241(a).
Mr. Orito urges that the magazine in question "Riviera Girls" is not obscene as a matter of law and that the state court conviction affirmed by the Wisconsin supreme court cannot stand. See Orito v. State, 55 Wis.2d 161, 197 N.W. 2d 763 (1972). While a number of other issues are raised by the petitioner, it is my opinion that the writ may not issue unless this court is prepared to find as a matter of law that the magazine in question is not obscene.
There are few fields of law in which more uncertainty exists. A myriad of state and federal appellate decisions have explored this difficult topic, and have come up with irreconcilable results. There are presently a number of cases before the United States Supreme Court, the resolution of which might illuminate this shadowy corner of the law.
I have examined the magazine in question, as well as the decision of the Wisconsin supreme court. The leading United States Supreme Court decisions are Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414 (1967).
On each page of "Riviera Girls", there is a picture of a posturing, nude female. The extent of the nudity and the extent of the posturing leave nothing to the viewer's imagination. In the eyes of many, this would surely be of prurient interest. Nevertheless, under the first amendment of the United States Constitution and under the decisions of the United States Supreme Court, as I understand them, I hold that the state of Wisconsin could not constitutionally convict Mr. Orito for selling this magazine.
On the basis of Redrup, supra, the United States Supreme Court has summarily reversed, per curiam, several state and lower federal court decisions involving material nearly identical to "Riviera Girls". See, e. g., Bloss v. Dykema, 398 U.S. 278, 90 S.Ct. 1727, 26 L.Ed.2d 230 (1970), reversing Dykema v. Bloss, 17 Mich.App. 318, 169 N.W.2d 367 (1969); and Central Magazine Sales, Ltd. v. United States, 389 U.S. 50, 88 S.Ct. 235, 19 L.Ed.2d 49 (1967), reversing United States v. 392 Copies of Magazine Entitled "Exclusive", 373 F.2d 633 (4th Cir. 1967). The Supreme Court's action in these cases prompted one federal appellate court to state:
"We are obliged to conclude that no photograph of the female anatomy, no matter how posed if no sexual activity is being engaged in, or however lacking in social value, can be held obscene." Hunt v. Keriakos, 428 F.2d 606, 608 (1st Cir. 1970),...
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...state conviction and consider that notice to constitute a "hold" upon Mr. Orito.' " 479 F.2d 435, 437 (7th Cir.1973) (quoting 347 F.Supp. 150, 151 (E.D.Wis.1972)). The "hold" had an effect analogous to that of the warrant in Chung Young Chew. Similarly the Supreme Court in Braden decided th......
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