Piepenburg v. Cutler

• Decision Date: 21 May 1981
• Docket Number: No. 80-2317,80-2317
• Citation: 649 F.2d 783
• Parties: James PIEPENBURG, Appellant, v. Roger CUTLER, City Attorney of Salt Lake City, Utah, and E. D. Hayward, Sheriff of Salt Lake County, Utah, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 783

649 F.2d 783

James PIEPENBURG, Appellant, v. Roger CUTLER, City Attorney of Salt Lake City, Utah, and E D. Hayward, Sheriff of Salt Lake County, Utah, Appellees.

No. 80-2317.

United States Court of Appeals Tenth Circuit.

Argued and Submitted March 17, 1981.

Decided May 21, 1981.

Jerome H. Mooney, Salt Lake City, Utah, for appellant.

Paul G. Maughan, Salt Lake City, Utah (Stanley H. Olsen, Salt Lake City, Utah, with him, on brief), for appellees.

Before SETH, Chief Judge, and DOYLE and McKAY, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

The defendant Piepenburg was convicted in the District Court in the State of Utah for three violations of the state statute § 76-10-1204, Utah Code Annotated (1953). This particular provision prohibits the exhibition of pornographic films. The defendant appealed his conviction to the Utah Supreme Court; that Court unanimously confirmed his conviction. State v. Piepenburg, 602 P.2d 702 (Utah 1979). Mr. Piepenburg did not pursue the matter to the Supreme Court of the United States. Having exhausted his state remedies, he was at liberty to pursue the cause pursuant to 28 U.S.C. § 2254. He filed a petition for writ of habeas corpus. This was denied in the United States District Court, 507 F.Supp. 1105, and defendant has appealed that judgment. He contends, of course, that his custody is in violation of the Constitution of the United States. This court granted the certificate of probable cause.

On May 27, 1977, a Utah magistrate issued a warrant to seize films which were then being shown at the Gallery Theater in Salt Lake City, Utah. The warrant had an appended affidavit of a police officer who had reviewed the films after buying a ticket at the theater. A preliminary hearing was held June 21, 1977, before the state magistrate.

On November 15, 1977, the Utah District Court ordered the case remanded to the magistrate for a proper preliminary hearing and determination that a crime had been committed. The transcript of that hearing which was held February 1, 1978, suggests some confusion as to the purpose of the remand and what the magistrate was to do. In any event, the films were viewed and the magistrate bound the defendant over for trial. The magistrate had not viewed the films at the first preliminary hearing.

The trial started on May 16, 1978. After the voir dire there were challenges for cause, and the defense counsel in the case requested that the challenges should be made out of the presence of the jury in order to avoid animosity between the jurors and the defendant or his counsel. This request was denied. The judge ruled that the procedure in Utah called for the challenge of jurors in open court and in the presence of the jurors. The defense counsel then elected not to challenge for cause, and he contends that two of the potential jurors gave equivocating answers as to whether they could fairly consider the case.

Each side presented its case and closing arguments were heard. There were several objections and interruptions by opposing counsel during each side's argument. Petitioner excepted one interruption in particular; in that one the trial judge admonished defense counsel for misstating the law relative to proof of community standards.

The jury convicted the petitioner on all counts. He was sentenced to pay a fine of $1,000 and to serve six months on each count. The sentences were to run concurrently.

The contentions on review are these:

1. Whether the affirmative defense provision contained in the Utah obscenity statute is unconstitutionally vague.

2. Whether the affirmative defense statute creates impermissible classes and thereby denies equal protection of the law.

3. Whether the magistrate properly refused a request for a prompt adversary hearing on the issue of obscenity of the films.

4. Whether defense counsel was improperly denied the opportunity to challenge the jurors for cause outside their presence.

5. Whether the trial judge's interruption of counsel during closing arguments misstated the law to the jury and reversed the burden of proof from the prosecution to the defendant.

A question which is present in each of the foregoing contentions is whether any violations of defendant's rights are also constitutional violations.

The relevant statute provides that expert testimony is not necessary in order to establish whether the material is harmful to adults or minors or to establish any element of the definition of pornographic, including contemporary community standards. Section 76-10-1208, entitled "Affirmative Defenses" provides that it is an affirmative defense to the prosecution that the distribution of pornographic material was restricted to institutions or persons having scientific, educational, governmental, or other similar justification for possessing pornographic material.

Subsection (3) of § 76-10-1212 deals with search and seizure, hearings upon a claim that material seized is not pornographic, and sets up procedures for such a claim. This is included in one of the subjects of this appeal. That subject is the request for a hearing by the accused on the issue of whether the films are pornographic, and a demand for the return of the films. This all assumes a judicial ruling that the items were not pornographic. ¹

The accused has argued that the provisions in the affirmative defense section referred to above render the statute unconstitutionally vague, and furthermore, that it would not help to sever this section because this would broaden the class of violators after the action alleged to be criminal had taken place. It would make conviction of Piepenburg unconstitutional.

Another complaint against the statute is that it establishes unreasonable classes of people who may distribute the film legally; thereby denying the defendant's class equal protection of the law. In support of the vagueness argument the defendant cites several Sunday closing statute cases which found language similar to that complained of to be unconstitutionally vague. For example, Skaggs Drug Centers, Inc. v. Ashley, 26 Utah 2d 38, 484 P.2d 723 (Utah 1971); State v. Hill, 189 Kans. 403, 369 P.2d 365, 91 A.L.R.2d 750 (1962).

Two states besides Utah have dealt with challenges to obscenity statutes containing the same provisions as appears in Utah's statutes: People v. Illardo, 48 N.Y.2d 408, 423 N.Y.S.2d 470; 399 N.E.2d 59 (1979); State v. Next Door Cinema Corp., 225 Kans. 112, 587 P.2d 326 (1978). Illardo held that the statute in question was constitutional, and Next Door Cinema held that it was invalid. The Next Door Cinema case severed the offending language and held that it neither added to nor detracted from the three classes mentioned. As a consequence of this holding it was possible for the Kansas court to determine that there was no change in the class of people the statute included. Illardo held the language merely grayed the edges allowing the borderline case to assert the defense, a situation upon which the New York court chose to wait for lower application rather than to try to determine the due process issue in a hypothetical situation. Utah in the instant case adopted the reasoning of the New York Court of Appeals. See State v. Piepenburg, 602 P.2d 702 (Utah 1979); State v. Haig, 578 P.2d 837 (Utah 1978). The Utah Court said:

It cannot be logically argued that these words are vague when such words as "literary", "artistic" and political" all pass constitutional muster. (Citing Miller v. California, 413 U.S. 15 (93 S.Ct. 2607, 37 L.Ed.2d 419) (1973)). The word "similar" is limited to and modified by the three specific terms immediately preceding it (scientific, educational and governmental), and should not be significantly expanded beyond these three basic legitimate reasons for possessing pornographic material.

602 P.2d at 704.

The United States Supreme Court has recognized the importance of state courts being able to authoritatively construe state obscenity statutes. This was in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). The Court there said:

We made it clear in Miller (cites omitted) that our decision was not intended to hold all state statutes inadequate, and we clearly recognize that the existing statutes, as construed heretofore or hereafter, may well be adequate. That recognition is emphasized in our opinion in United States v. 12-200 Ft. Reels of Film (413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500).

418 U.S. 112-13, 94 S.Ct. 2905.

The Supreme Court in Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) said:

(A) state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts (cites omitted), and its deterrent effect on legitimate expression is both real and substantial.

422 U.S. at 216, 95 S.Ct. at 2276.

I. The vagueness argument.

Can it be said that the construction given by the Utah Supreme Court in respect to the Utah statute will have a deterrent effect on legitimate expression?

We conclude that it will not. The statute makes what would otherwise be unprotected speech legitimate because of its use and not its content. The statute under attack provides affirmative defenses and allows uses of unprotected speech for legitimate reasons. The speech in its entirety does not as a result become protected by the first amendment. The protection is due to the state's thinking that the selected uses were sufficiently important to outweigh other enforcement considerations. Because obscene material is of the unprotected class, this court is not in a position to examine the statute except under normal standards of vagueness for criminal statutes. United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975). As we review it, the Utah Supreme Court and the U.S. District Court for the District of Utah have applied the standard properly, and accordingly, as against the attack of...