La Rue v. State of California
Decision Date | 07 April 1971 |
Docket Number | Civ. No. 70-1751-F,70-1770-F and 70-1782-F. |
Court | U.S. District Court — Central District of California |
Parties | Robert LA RUE, dba the Buckit, et al., Plaintiffs, v. STATE OF CALIFORNIA, and Edward J. Kirby, Director of Alcoholic Beverage Control, Defendants. Don MacLEAN, dba the Scorpio, et al., Plaintiffs, v. The DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL OF the STATE OF CALIFORNIA, Defendant. Jerry D. JENNINGS, dba Sugar Shack, Erwin A. Rohm, dba Chee Chee, Raymond Rohm, dba Firehouse, Richard Carson and Robert A. Warner, dba Tuscan Room, Seemaygro, Inc., a California Corporation, dba Sarong Gals, Robert E. Poff, dba 1st King, Edward Grimes, dba the Circle, Harry J. Coleman dba Hi Dollie and Everett L. Butts, dba the Worlock, Plaintiffs, v. Edward J. KIRBY, Director of the Department of Alcoholic Beverage Control of the State of California, John J. Canney, Assistant Director of the Department of Alcoholic Beverage Control of the State of California, John A. Kelly, Orange County District Administrator of the Department of Alcoholic Beverage Control of the State of California, James F. Meehan, Long Beach District Administrator of the Department of Alcoholic Beverage Control of the State of California, Kermit Q. Greene, Crenshaw District Administrator of the Department of Alcoholic Beverage Control of the State of California, Defendants. |
Harrison W. Hertzberg, Los Angeles, Cal., for Robert LaRue, dba The Buckit and others.
Warren I. Wolfe, Donald J. Boss, Los Angeles, Cal., for Don MacLean dba The Scorpio and others.
Berrien E. Moore, Kenneth Scholtz, Gardena, Cal., for Jerry D. Jennings dba Sugar Shack and others.
Evelle J. Younger, Atty. Gen., Los Angeles, Cal., L. Stephen Porter, Deputy Atty. Gen., San Francisco, Cal., for defendants.
Before ELY, Circuit Judge, and GRAY and FERGUSON, District Judges.
In 1967, the California Supreme Court, in an obscenity case, declared:
After that statement by California's highest court, it is somewhat surprising that a federal district court four years later is called upon to determine whether a state administrative agency may require "fig leaves" to be worn by entertainers in California.
These three actions are brought pursuant to 28 U.S.C. §§ 1331, 1343, 2201 and 2202, and 42 U.S.C. § 1983, by various holders of California liquor licenses and dancers at licensed premises. A three-judge court was convened in accordance with 28 U.S.C. §§ 2281 and 2284. The actions seek to enjoin the enforcement of certain statewide rules adopted by the Department of Alcoholic Beverage Control and Edward J. Kirby, its director. The parties, by pre-trial stipulations and orders, have acknowledged proper jurisdiction and venue in this court.
The Department is established pursuant to Article 20, Section 22 of the California Constitution. That section provides in part:
That paragraph of the state constitution has been interpreted to reject the contention of the Department that its power over denial, suspension and revocation of liquor licenses is limitless and absolute. It was held that the Department's power over such matters is subject to reasonable legislative enactment. Kirby v. Alcoholic Beverage Control Appeals Board, 71 Cal.2d 1200, 81 Cal.Rptr. 241, 459 P.2d 657 (1969); Samson Market Co. v. Alcoholic Beverage Control Appeals Board, 71 Cal.2d 1215, 81 Cal.Rptr. 251, 459 P.2d 667 (1969); Big Boy Liquors, Ltd. v. Alcoholic Beverage Control Appeals Board, 71 Cal.2d 1226, 81 Cal.Rptr. 258, 459 P.2d 674 (1969).
The Department adopted Rules 143.2, 143.3, 143.4 and 143.5, effective August 10, 1970. The Rules, which are set forth in Appendix A, state generally that certain entertainment on premises licensed by the Department is contrary to public welfare and morals and no liquor licensed may be held at any establishment where such entertainment is permitted. In summary, they provide:
The plaintiffs originally challenged all four Rules. However, at oral argument they withdrew their objections in these actions to the Rules which (1) prohibit topless waitresses, (2) permit local regulations, and (3) require certain entertainers to be on a stage. The plaintiffs thus concede that topless waitresses are not within the protection of the First Amendment; that local ordinances must be independently challenged depending upon their content; and that the requirement that certain entertainers must dance on a stage is not invalid.
The court is, therefore, required to determine (1) whether Rule 143.4, which regulates the content of movies, is unconstitutional, and (2) whether those portions of Rule 143.3 which regulate the content of live entertainment are prohibited by the First, Fifth and Fourteenth Amendments.
Prior to the determination of the merits of the litigation, it must be determined whether this court should stay its hand pending state court determination. In Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (Jan. 19, 1971), the Supreme Court invalidated a state law relating to liquor matters due to constitutional infirmities. Under ordinary circumstances, this court might have adopted the reasoning of Mr. Justice Black in his dissenting opinion, when he stated: "I believe it is unfair to Wisconsin to permit its courts to be denied the opportunity of confining this law within its proper limits if it could be shown that there are other state law provisions that could provide such boundaries." 400 U.S. at 444, 91 S.Ct. at 513.
However, certain of the plaintiffs in this action have been to state court on many occasions to challenge the Rules, but the state courts have refused to assume jurisdiction over their complaints. The California Attorney General has requested the state courts to assume jurisdiction over the litigation presented here, but, rejecting that request, the state courts have refused. The Attorney General, furthermore, has asked that this court not abstain but decide the merits of the litigation.
It, therefore, appears that the doctrine of abstention should not be applied, and this court has the obligation to decide another state obscenity case before the state courts have ruled.1 However, in order to place the litigation in proper focus, a discussion of the obscenity laws as pronounced by the California Supreme Court, as well as the United States Supreme Court, is necessary.
In 1965, a dancer in a California nightclub danced with her breasts exposed. The California Supreme Court, in In re Giannini, 69 Cal.2d 563, 72 Cal. Rptr. 655, 661, 446 P.2d 535, 541 (1968), held that she could not be convicted of either lewd conduct or indecent exposure in the absence of proof that her dance was obscene. The court stated:
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