People ex rel. Tooley v. Seven Thirty-Five East Colfax, Inc.

Citation697 P.2d 348
Decision Date25 February 1985
Docket NumberNos. 82SA212,THIRTY-FIVE,83SA83 and 83SA99,s. 82SA212
PartiesThe PEOPLE of the State of Colorado, ex rel. Dale TOOLEY, District Attorney, Plaintiff-Appellee, v. SEVENEAST COLFAX, INC., a Colorado corporation, d/b/a Kitty's Pleasure Palace, Defendant-Appellant. The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gordon MIZELL, Lloyd Leatherwood, Mark Lange, Mitchell Kelloff, Louis Lawver, Douglas McClure, Marquis Ford, Modern Books of Colorado, Inc., Patty Deighton and Darrell Deighton, Defendants-Appellees. ADULT LITERARY GUILD, INC., a Colorado corporation, d/b/a Washington Bookstore; Adult Literary Guild, Inc., a Colorado corporation, d/b/a Katy's House of Pleasure; Santana Sales, Inc., a Colorado corporation, d/b/a Adult World; Record Land Co., Inc., a Colorado corporation, d/b/a Friends and Lovers Motel; Cliff Story, d/b/a Courtesy Motel, Plaintiffs-Appellees, v. Paul Q. BEACOM, in his official capacity as District Attorney for the County of Adams; Bert Johnson, in his official capacity as Sheriff for the County of Adams; Ben Blake, in his official capacity as Chief of Police for the City of Aurora, Defendants-Appellants.
CourtColorado Supreme Court

Norman S. Early, Jr., Dist. Atty., Michael Kane, Deputy Dist. Atty., Denver, for plaintiff-appellee.

Arthur M. Schwartz, P.C., Arthur M. Schwartz, Irvin Borenstein, Denver, for defendant-appellant.

L. Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., John Milton Hutchins, Asst. Atty. Gen., Denver, for amicus curiae, Colorado Atty. Gen.

Robert L. Russel, Dist. Atty., Daniel C. Zook, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.

Arthur M. Schwartz, P.C., Arthur M. Schwartz, Irvin Borenstein, Denver, for defendants-appellees.

Arthur M. Schwartz, P.C., Arthur M. Schwartz, Denver, for plaintiffs-appellees.

Christian M. Lind, Asst. City Atty., Brighton, Claybourne M. Douglas, Asst. City Atty., Aurora, Steven L. Bernard, Chief Trial Deputy, Brighton, for defendants-appellants.


These appeals concern the constitutionality of the Colorado obscenity statutes (the Act), sections 18-7-101 to -105, 8 C.R.S. (1984 Supp.). 1 Although each of the three cases arises from a distinct fact pattern and in a different procedural posture, we have elected to consolidate them for one opinion because each appeal involves challenges to the validity of the Act based upon the first amendment to the UNITED STATES CONSTITUTION, ARTICLE II, SECTION 102 of the Colorado Constitution, 3 and the due process clauses of each constitution. 4 We hold that the word "accredited" used in section 18-7-104 is unconstitutionally vague because it is undefined and that the definition of "patently offensive" in section 18-7-101(4) is unconstitutionally overbroad because those words are defined in terms of community standards of decency. We also conclude that the presumption of knowledge contained in section 18-7-102(3) violates due process requirements and that the statutory scheme proscribing "obscene devices" impermissibly burdens the right of privacy. We reject the other attacks on the statutes, find that the offending provisions are severable and uphold the remainder of the Act.


In People v. Seven Thirty-Five East Colfax, Inc., the People instituted a civil action for injunctive relief seeking to have certain items declared obscene pursuant to section 18-7-103, 8 C.R.S. (1984 Supp.). The defendant, Seven Thirty-Five East Colfax, Inc., 5 filed an answer in which it alleged that the Act is unconstitutional on numerous grounds, both facially and as applied. 6 For purposes of the case, the parties stipulated that the items would be obscene if the Act is constitutional. The trial court found the word "accredited" contained in section 18-7-104, 8 C.R.S. (1984 Supp.), to be unconstitutionally vague. 7 The court upheld the remaining provisions in the Act and denied the defendant's request to dismiss the complaint. The defendant appealed after its motion for a new trial was also denied. However, the People have not cross-appealed the trial court's determination that the word "accredited" as used in the Act is unconstitutionally vague. 8

In People v. Mizell, ten defendants were separately charged with promotion and possession with intent to promote obscene materials and obscene devices in violation of section 18-7-102(2)(a)(I) of the Act. The cases were consolidated in the district court. Each defendant filed a motion to dismiss in which it was claimed that the Act was unconstitutional on grounds similar to those alleged in Seven Thirty-Five East Colfax, Inc. The trial court held that the entire Act was invalid because four provisions were constitutionally infirm: the definition of "patently offensive," the definition of "promote," the presumptions found in section 18-7-102(3) and (4), 8 C.R.S. (1984 Supp.), and the term "accredited." However, the trial court did not dismiss the charges against the defendants; rather, it stayed the effect of its ruling to allow the People to appeal to this court.

In Adult Literary Guild v. Beacom, the plaintiffs, Adult Literary Guild, et al., sought a preliminary and permanent injunction against the enforcement of the Act by the district attorney and certain police agencies in Adams County. After several hearings, the trial court entered its final order ruling that the plaintiffs had standing to challenge the Act and declaring the Act unconstitutional. The court found that the "accredited" exception was vague and violated equal protection guarantees and that the prohibition against the promotion of obscene devices violated the right to privacy. The court also held the words and phrases enumerated in section VII of this opinion unconstitutional. The trial court permanently enjoined the enforcement of the Act.


We are once again requested to pass upon the constitutionality of statutes regulating obscenity, sections 18-7-101 to -105, 8 C.R.S. (1984 Supp.). The majority of these provisions were enacted by the legislature in 1981, and represent the General Assembly's latest effort to control obscenity. Ch. 223, sec. 1, §§ 18-7-101 to -105, 1981 Colo.Sess.Laws 998-1002. See also, supra note 1. Earlier statutory enactments were declared unconstitutional by this court in People v. New Horizons, Inc., 200 Colo. 377, 616 P.2d 106 (1980), and People v. Tabron, 190 Colo. 149, 544 P.2d 372 (1976). 9 We appreciate, as Justice Harlan noted, that obscenity is an intractable problem. Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 704, 88 S.Ct. 1298, 1313, 20 L.Ed.2d 225 (1968) (Harlan, J., concurring and dissenting). Moreover, we recognize the frustration experienced by the General Assembly in discharging the difficult task of "trying to define what may be indefinable." Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1964) (Stewart, J., concurring). That these observations are accurate is amply demonstrated by the diverse reasons given by the respective district judges for declaring all or part of the present statutory scheme unconstitutional as a result of the broad-based attack on the Act. Before addressing the merits of the vagueness, overbreadth, and due process issues, it is necessary to briefly consider the question of standing and the general principles governing obscenity legislation.


The question of standing is raised only in Adult Literary Guild. In their amended complaint, the plaintiffs alleged that their businesses sell materials that are "sexually explicit in nature and depict various physical displays of the anatomy and sexual conduct which conceivably come under the purview of the statute challenged herein because of their graphic nature." The government officials, who are the defendants-appellants, characterize this allegation as a concession that the plaintiffs' materials are obscene. 10 The officials conclude that since obscene materials are not protected by the constitutional guarantees of free speech, the plaintiffs lack standing to attack the Act on "facial overbreadth or vagueness grounds since the materials they purvey clearly fall within the statutory proscriptions."

As a general rule, questions of standing present a two-pronged inquiry: (1) Whether the plaintiff has suffered actual injury from the challenged government action; and (2) whether the injury is to a legally protected or cognizable interest. Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977). Beginning with Bolles v. People, 189 Colo. 394, 541 P.2d 80 (1975), however, we recognized that the limitations on third party standing have been substantially relaxed in the context of first amendment claims. We stated:

Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court. Not so, however, where, as here, we are dealing with First Amendment protections. Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908 [2914], 37 L.Ed.2d 830 [ (1973) ]; Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 [ (1975) ].

In Broadrick, supra, the Court noted that in statutes seeking to regulate only speech or written words, claims of facial overbreadth should be entertained as an exception to the general rule. This is because "the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes." Id. 413 U.S. at 612; Bigelow v. Virginia, supra.

Bolles, 189 Colo. at 396, 541 P.2d at 82. Our most succinct pronouncement on the issue of third party...

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