Salt Lake City v. Piepenburg

• Decision Date: 28 October 1977
• Docket Number: No. 14688,14688
• Citation: 571 P.2d 1299
• Parties: 3 Media L. Rep. 1211 SALT LAKE CITY, Plaintiff and Respondent, v. James D. PIEPENBURG, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1299

571 P.2d 1299

3 Media L. Rep. 1211

SALT LAKE CITY, Plaintiff and Respondent, v. James D. PIEPENBURG, Defendant and Appellant.

No. 14688.

Supreme Court of Utah.

Oct. 28, 1977.

Bruce C. Lubeck, John D. O'Connell, Salt Lake City, for defendant and appellant.

Roger F. Cutler, Salt Lake City Atty., Paul G. Maughan, Asst. Salt Lake City Atty., Salt Lake City, for plaintiff and respondent.

ELLETT, Chief Justice:

The appellant operates a film theatre and was charged with and convicted of the crime of exhibiting an obscene motion picture. The charge was made under a city ordinance and conviction had in the City Court. An appeal was then taken to the Third District Court where, upon a trial de novo, the appellant was again convicted. He now appeals to the Supreme Court of Utah where he makes a number of assignments of error, only one of which is cognizable on appeal, to wit: the validity of the ordinance under which he was tried and convicted.

The ordinance defines "obscene performance" as follows:

Obscene performance means a play, motion picture, dance, show or other presentation, whether pictured, animated or live, performed before an audience and which in whole or in part depicts or reveals nudity, sexual conduct, sexual excitement or sado-masochistic abuse, or which includes obscenities or explicit verbal description or narrative accounts of sexual conduct.

The motion picture exhibited revealed an entirely naked man and woman in various acts of sodomy (fellatio, cunnilingus, buggery) and adultery all shown with closeup camera photography.

A more sickening, disgusting, depraved showing cannot be imagined. However, certain justices of the Supreme Court of the United States have said that before a matter can be held to be obscene, it must be ". . . when taken as a whole, lacks serious literary, artistic, political, or scientific value."

Some state judges, acting the part of sycophants, echo that doctrine. It would appear that such an argument ought only to be advanced by depraved, mentally deficient, mind-warped queers. Judges who seek to find technical excuses to permit such pictures to be shown under the pretense of finding some intrinsic value to it are reminiscent of a dog that returns to his vomit in search of some morsel in the filth which may have some redeeming value to his own taste. If those judges have not the good sense and decency to resign from their positions as judges, they should be removed either by impeachment or by the vote of the decent people of their constituency.

The ordinance involved in this case is clear and no one can be in doubt as to its meaning. It proscribes the showing of explicit sexual intercourse and nudity. It is not overly broad, nor does it run counter to any constitutional prohibition. The ordinance is valid.

The appellant was found guilty on two separate trials: first, in the City Court and second, in the District Court. He cannot raise in this Court any claimed errors at trial. The District Court was his court of last resort for all asserted errors, save for the constitutionality of the ordinance. The rulings of that court are final as to other claimed errors. Article VIII, Section 9 of our Constitution provides:

. . . Appeals shall also lie from the final judgment of justices of the peace in civil and criminal cases to the District Courts on both questions of law and fact, with such limitations and restrictions as shall be provided by law; and the decision of the District Courts on such appeals shall be final, except in cases involving the validity or constitutionality of a statute. ¹

The cases cited in footnote 1 below are to the effect that an appeal from a city court is the same as that from a justice of the peace court.

In searching for reasons to reverse the conviction of Mr. Piepenburg, the dissent attempts to find errors that the court of last resort found to be non-existent. If there is to be an appeal to a higher court for alleged errors in the trial of a misdemeanor case, it will have to go to the United States Supreme Court as the district court is, by our Constitution, the highest court in Utah to consider errors in such cases.

The dissent is rather long, but aside from being outside constitutional bounds, it is also not convincing in its reasoning. For instance, a great amount of space is devoted to the fact that the prosecuting attorneys, or some of them, inquired of neighbors and religious leaders as to whether the juror attended church. This is a smart move and a practice of all good lawyers. Each set of lawyers has some peremptory challenges for which they need give no reason. In trying to get a jury that will appreciate the claims to be made by a party to a lawsuit, the peremptory challenge should not be blindly taken. One can be sure that the defense attorney (if he was a good lawyer) would have made inquiry among the pimps, prostitutes, homosexuals, and other members of the pornographic community to see if any prospective jurors might be favorably inclined to protect one accused of showing pornographic films.

In this case, every man must choose which stance he wishes to take. As for me, I will enforce a valid ordinance and respect the judgment of the court of final authority as to all matters, save the invalidity of the ordinance.

The judgment of the district court, is therefore, affirmed and the case is remanded for the execution of the sentence heretofore imposed.

CROCKETT, Justice (concurring in result):

I concur in the holding that the ordinance is sufficiently clear and specific that persons of ordinary intelligence, who desire to know what the law is, and to abide by it, would have no difficulty in understanding what is prohibited. ¹ In doing so I add the following observations:

As indicated in our recent case of the same nature, State v. Phillips, ² our own State Constitution, Article I, Section 1, has a better and broader statement concerning freedom of thought and expression than the First Amendment to the United States Constitution. Our section provides that:

All men have the inherent and inalienable right . . . to communicate freely their thoughts and opinions . . .

Notwithstanding that desirable and salutary assurance, freedom of expression, just like all other freedoms, is subject to reasonable limitations where the protection of the public health, safety or morals so requires. Accordingly, even the most "liberal" and uninhibited concede that obscenity and pornography are subject to control by law. ³

Whatever else may be said about any lack of certainty or other deficiency in the ordinance's defining of pornography, this defendant is in no position to complain thereof. There can be no question whatsoever but that any fair minded person with common sense would know and admit that the material published was obscene and pornographic. The mere fact that in the abstract the ordinance might adversely affect someone else in different circumstances does not redound to defendant's advantage. ⁴

HALL, Justice (concurring in result):

In a case of this kind, oftentimes confusion arises as to the Court's appropriate role. It is not the Court's prerogative to give effect to our individual views on obscenity and pornography. Rather, it is incumbent upon us to determine what the Constitution allows.

I concur in the holding of constitutionality of the ordinance and that such is the only issue before the Court, despite the fact there is serious question as to defendant's standing before this Court. The concurring opinion of Justice Crockett aptly observes the defendant's lack of standing to assail the vagueness of the ordinance in light of his conviction of showing clearly obscene, pornographic material and I only wish to cite State v. Tritt, 23 Utah 2d 365, 463 P.2d 806 (1970) which supports the principle that even if a statute may be unconstitutional as applied to certain individuals or situations it will not be stricken down at the behest of one who is not adversely affected by the defect.

Irrespective of the foregoing, assuming defendant has proper standing to attack the ordinance, every presumption must be indulged in favor of constitutionality of the act and every reasonable doubt resolved in favor of its validity. ¹

Defendant's primary claim is that the ordinance is unconstitutionally vague and overbroad and that it fails to adhere to the standards set forth in Miller v. California ² which are as follows The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards', would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Defendant was convicted of violating Sec. 32-1-10(3) of the Revised Ordinances of Salt Lake City, 1965, which declares it unlawful to wilfully or knowingly to show a movie which "depicts or represents or describes obscene sexual conduct, an obscene performance or obscene sado-masochistic abuse or any obscenities for advertising purposes." Section 32-2-10.1 of said ordinance defines the terminology set forth therein and Section 32-2-10.1(14) provides:

(14) Obscene shall mean an act, depiction, representation, description, performance, or any other item, material or conduct in this chapter described, whether actual or simulated in form, which:

(a) Taken as a whole, the average person would find appeals to the prurient interest when applying contemporary community standards; and

(b) Depicts, describes or portrays sexual conduct, as defined in subparagraph (12) above, in a patently offensive way; and

(c) Taken as a whole, lacks serious literary, artistic, political or scientific value.

Defendant maintains the definitions are so broad as to render protected activity...