Spokane Arcades, Inc. v. Eikenberry

• Decision Date: 02 July 1982
• Docket Number: C-82-231 RJM,No. C-82-223 RJM,C-82-230 RJM,C-82-283 RJM and C-82-354 RJM.,C-82-240 RJM,C-82-239 RJM,C-82-223 RJM
• Citation: 544 F. Supp. 1034
• Court: U.S. District Court — District of Washington
• Parties: SPOKANE ARCADES, INC., a Washington corporation, Plaintiff, v. The Honorable Kenneth EIKENBERRY, as Attorney General of the State of Washington, in his representative capacity only; Donald C. Brockett, Prosecuting Attorney of Spokane County, in his representative capacity only; and James Sloane, Spokane City Attorney, in his representative capacity only, Defendants. J-R DISTRIBUTORS, INC., Plaintiff, v. Kenneth EIKENBERRY, in his official capacity as Attorney General for the State of Washington; Donald C. Brockett, in his official capacity as Prosecuting Attorney, Spokane County, State of Washington; James Sloane, in his official capacity as City Attorney for the City of Spokane, Washington; Jeffery C. Sullivan, in his official capacity as Prosecuting Attorney for the County of Yakima, State of Washington; and Fred Andrews, in his official capacity as City Attorney for the City of Yakima, Washington, Defendants. AZURE ENTERTAINMENT CORPORATION OF WASHINGTON, Plaintiff, v. Kenneth EIKENBERRY, in his official capacity as Attorney General for the State of Washington; Donald C. Brockett, in his official capacity as Prosecuting Attorney for Spokane County, State of Washington; and James Sloane, in his official capacity as City Attorney for the City of Spokane, Washington, Defendants. PLAYTIME THEATRES, INC., a Washington corporation, Plaintiff, v. The Honorable Kenneth EIKENBERRY, as Attorney General of the State of Washington, in his representative capacity only; Donald C. Brockett, Prosecuting Attorney of Spokane County, in his representative capacity only; and James Sloane, Spokane City Attorney, in his representative capacity only and Norm Maleng, Prosecuting Attorney of King County in his representative capacity only, Defendants. Jack BURNS, in his representative capacity as Executor of the Estate of Selom F. Burns, Plaintiff, v. The Honorable Kenneth EIKENBERRY, as Attorney General of the State of Washington, in his representative capacity only, Defendant. The AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON: Madrona Publishers, Inc.; Superior Publishing Company; Washington Library Association; Pacific Northwest Booksellers Association; Motion Picture Exhibitors of Washington, Alaska, and Northern Idaho; Washington State Council of Teachers of English; Washington Library Media Association; and the Community College Librarian and Media Specialists' Association of Washington, Plaintiffs, v. The Honorable Kenneth EIKENBERRY, as Attorney General of the State of Washington, in his representative capacity only, Defendant. KUKIO BAY PROPERTIES, INC., a Washington corporation, Plaintiff, v. Norm MALENG, Prosecuting Attorney of King County, in his representative capacity only, Defendant.

544 F. Supp. 1034

SPOKANE ARCADES, INC., a Washington corporation, Plaintiff, v. The Honorable Kenneth EIKENBERRY, as Attorney General of the State of Washington, in his representative capacity only; Donald C. Brockett, Prosecuting Attorney of Spokane County, in his representative capacity only; and James Sloane, Spokane City Attorney, in his representative capacity only, Defendants.

J-R DISTRIBUTORS, INC., Plaintiff, v. Kenneth EIKENBERRY, in his official capacity as Attorney General for the State of Washington; Donald C. Brockett, in his official capacity as Prosecuting Attorney, Spokane County, State of Washington; James Sloane, in his official capacity as City Attorney for the City of Spokane, Washington; Jeffery C. Sullivan, in his official capacity as Prosecuting Attorney for the County of Yakima, State of Washington; and Fred Andrews, in his official capacity as City Attorney for the City of Yakima, Washington, Defendants.

AZURE ENTERTAINMENT CORPORATION OF WASHINGTON, Plaintiff, v. Kenneth EIKENBERRY, in his official capacity as Attorney General for the State of Washington; Donald C. Brockett, in his official capacity as Prosecuting Attorney for Spokane County, State of Washington; and James Sloane, in his official capacity as City Attorney for the City of Spokane, Washington, Defendants.

PLAYTIME THEATRES, INC., a Washington corporation, Plaintiff, v. The Honorable Kenneth EIKENBERRY, as Attorney General of the State of Washington, in his representative capacity only; Donald C. Brockett, Prosecuting Attorney of Spokane County, in his representative capacity only; and James Sloane, Spokane City Attorney, in his representative capacity only and Norm Maleng, Prosecuting Attorney of King County in his representative capacity only, Defendants.

Jack BURNS, in his representative capacity as Executor of the Estate of Selom F. Burns, Plaintiff, v. The Honorable Kenneth EIKENBERRY, as Attorney General of the State of Washington, in his representative capacity only, Defendant.

The AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON: Madrona Publishers, Inc.; Superior Publishing Company; Washington Library Association; Pacific Northwest Booksellers Association; Motion Picture Exhibitors of Washington, Alaska, and Northern Idaho; Washington State Council of Teachers of English; Washington Library Media Association; and the Community College Librarian and Media Specialists' Association of Washington, Plaintiffs, v. The Honorable Kenneth EIKENBERRY, as Attorney General of the State of Washington, in his representative capacity only, Defendant.

KUKIO BAY PROPERTIES, INC., a Washington corporation, Plaintiff, v. Norm MALENG, Prosecuting Attorney of King County, in his representative capacity only, Defendant.

Nos. C-82-223 RJM, C-82-230 RJM, C-82-231 RJM, C-82-239 RJM, C-82-240 RJM, C-82-283 RJM and C-82-354 RJM.

United States District Court, E. D. Washington.

July 2, 1982.

COPYRIGHT MATERIAL OMITTED

Jack R. Burns, Hubbard, Burns & Meyer, Kirkland, Wash., Robert Eugene Smith, Encino, Cal., for plaintiff in No. C-82-223.

John H. Weston, David M. Brown, Brown, Weston & Sarno, Beverly Hills, Cal., Carl Maxey, The Maxey Law Firm, Spokane, Wash., for plaintiffs in Nos. C-82-230 and C 82-231.

Jack R. Burns, Hubbard, Burns & Meyer, Kirkland, Wash., for plaintiff in No. C-82-239.

Charles Stixrud, Seattle, Wash., Jack R. Burns, Hubbard, Burns & Meyer, Kirkland, Wash., for plaintiff in No. C-82-240.

James Lowe, Bogle & Gates, Seattle, Wash., for plaintiff in No. C-82-283.

Jack R. Burns, Hubbard, Burns & Meyer, Kirkland, Wash., for plaintiff in No. C-82-354; Robert Eugene Smith, Encino, Cal., Arthur Schwartz, Denver, Colo., of counsel.

Jeffrey C. Sullivan, Pros. Atty., Yakima, Wash., for defendant Sullivan.

Kenneth O. Eikenberry, Atty. Gen. of Wash., Christine Gregoire, Sr. Asst. Atty. Gen., Thomas F. Carr, Asst. Atty. Gen., Spokane, Wash., for defendant Eikenberry.

Donald C. Brockett, Spokane County Pros. Atty., Spokane, Wash., for defendant Brockett.

Richard C. Robinson, Asst. Corp. Counsel, Spokane, Wash., for defendant Sloane.

Charles S. Hamilton, III, Deputy Pros. Atty. Civ. Div., Seattle, Wash., for defendant Maleng.

MEMORANDUM DECISION

ROBERT J. McNICHOLS, Chief Judge.

The issue in these consolidated cases¹ is the constitutionality of House Bill 626, an Act passed by the Washington Legislature regulating pornography and moral nuisances.² Plaintiffs have asked for extraordinary relief declaring the statute unconstitutional and enjoining its enforcement. Specifically, it is argued that provisions of the Act are overbroad and vague, and that the statute is more restrictive than the standard mandated by the United States Supreme Court, that it has a chilling effect on First Amendment freedoms, imposes cruel and unusual punishment, and is framed in violation of Washington State's constitution.

In passing upon the constitutionality of this Act, I have broken down discussion into three broad generic topics: (1) the substantive provisions, particularly in terms of the definitions employed; (2) the procedural aspects with emphasis on due process requirements; and (3) state constitutional questions.

Jurisdiction is founded on the Federal Question Statute, 28 U.S.C. § 1331. It should be noted at the outset that defendants' arguments in favor of general abstention are rejected. Where a claim is predicated upon alleged abridgement of First Amendment rights, a federal court should abstain only in the face of special circumstances. Zwickler v. Koota, 389 U.S. 241, 252, 88 S.Ct. 391, 397, 19 L.Ed.2d 444 (1967). The extenuating factors referenced in that decision are not present here.

Second, I adhere to the well settled proposition that statutes, when tested for constitutionality, must be construed in a common sense rather than hypertechnical fashion. See United States Civil Service Comm. v. Natl. Ass'n of Letter Carriers, 413 U.S. 548, 579, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796 (1973); United States v. Vuitch, 402 U.S. 62, 72, 91 S.Ct. 1294, 1299, 28 L.Ed.2d 601 (1971).

I. SUBSTANTIVE PROVISIONS

Since Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), there can be no question but that society has the right to regulate, or to proscribe completely, the dissemination of sexually oriented material found repugnant to prevailing moral standards. Miller mandates that such matter, in order to fall outside the ambit of protected speech or activity, must fail a tripartite test:

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.

413 U.S. at 24, 93 S.Ct. at 2614 (citations omitted).

The parties are in solid agreement that this test is the well established law of the land and is unquestionably controlling in the instant case. Somewhat less mutuality of thought is apparent with regard to application of the individual prongs to HB 626, with the plaintiffs arguing that the Act deviates significantly from settled definitions accorded a number of instrumental terms, and is thereby impermissibly both overbroad and vague.

With Miller as the analytical cornerstone, the task before the Court is to weigh plaintiffs' objections in light of the evolving body of case law springing forth since that seminal decision.

Plaintiffs attack the statute's definitions on a number of fronts. The textual portion of HB 626 which restates the Miller test³ does exhibit some deviation from the language employed by the Supreme Court. Section 1(2), for example, reads: "`Lewd matter' is synonymous with `obscene matter' ...." Section 1(3) is worded: "`Lewdness' shall have and include all those meanings which are assigned to it under the common law." Reading these sections together, it may appear at first blush that the statute purports to impose a common law definition of obscenity in derogation of well-settled precedent. A careful reading of the bill, however, reveals that neither the terms "lewd" nor "lewdness" are employed in any substantive manner. In no way do they alter or impair the test for obscenity. Rather, these appellations are merely descriptive in nature. Indeed, under the statute's own terms, one must mentally substitute "obscene" wherever the term "lewd" is used.

Section 1(2)(a) is a virtually verbatim adoption of the first prong of the Miller test. Section 1(8), however, arguably impacts the integrity of that prong by defining "prurient" as "that which incites lasciviousness or lust." Plaintiffs contend that "prurient" has a more circumscribed meaning, and point to case law noting in dicta that prurient interest entails "a shameful or morbid interest in nudity, sex, or excretion." Roth v. United States, 354 U.S. 476, 487 n.20, 77 S.Ct. 1304, 1310 n.20, 1 L.Ed.2d 1498 (1957). At the same time, however, Roth in actuality settled upon a shortened definition, i.e., "material having a tendency to incite lustful thoughts." Id.⁴

At the risk of becoming enmeshed in semantical nitpicking, it should be noted that section 1(8) does not define what is obscene. That is a function of the conjunctive tripartite test. Rather, the section defines what is pornographic.

The material we are discussing in this case is more accurately defined as "pornography" or "pornographic material." "Pornography" derives from the Greek (porne, harlot, and graphos, writing). The word now means "... a depiction (as in writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement."

Miller, supra, 413 U.S. at 19 n.2, 93 S.Ct. at 2612 n.2.

Contrary to the layman's conception, "pornography" and "obscenity,"...