Star-Satellite, Inc. v. Rosetti, Civ. A. No. 3883.

• Decision Date: 09 April 1970
• Docket Number: Civ. A. No. 3883.
• Citation: 317 F. Supp. 1339
• Parties: STAR-SATELLITE, INC., Plaintiff, v. Louis ROSETTI et al., Defendants.
• Court: U.S. District Court — Southern District of Mississippi

317 F. Supp. 1339

STAR-SATELLITE, INC., Plaintiff, v. Louis ROSETTI et al., Defendants.

Civ. A. No. 3883.

United States District Court, S. D. Mississippi, S. D.

February 27, 1970.

Supplemental Opinion April 9, 1970.

Frederick L. Donahower and Billy F. Brown, Biloxi, Miss., for plaintiff.

Lyle Page and Ronald Peresich, Biloxi, Miss., for defendants.

OPINION OF THE COURT

DAN M. RUSSELL, JR., District Judge.

This matter is before the Court on plaintiff's motion for preliminary and permanent injunction, and on defendants' motion to stay in view of the pendency of state court criminal proceedings. By virtue of the pleadings on file, including the complaint, motion to stay, and answer of the defendants, and two hearings, held successively on February 2 and 18, 1970, during which there were offered stipulations of facts, oral and written, exhibits, briefs and oral arguments, the Court has treated the defendants' motion as one to dismiss. At the first hearing, noticed on plaintiff's motion for a temporary restraining order, which was withdrawn, there was introduced a written stipulation of facts and a transcript of the record of a hearing and ruling thereon by Judge Walter L. Nixon, Jr., in a prior suit on the docket of this Court, Civil Action No. 3726, involving substantially the same parties, and which suit gave rise to the present action. At the second hearing plaintiff urged its motion for injunctive relief and defendants their motion to stay. Jurisdiction of the Court is invoked under 28 U.S.C.A. § 1343, and 42 U.S.C.A. § 1983.

The facts as stipulated show that plaintiff, a Mississippi corporation, operates a news store in Biloxi, Mississippi. On January 7, 1970, police officials of the City of Biloxi lawfully purchased five specifically identified magazines and one eight-millimeter film from this news stand. It should be injected here that in April 1969, as shown in the complaint, police officers of Biloxi seized a number of plaintiff's publications, and arrested plaintiff's employees for alleged obscenity and displaying and selling such publications to the public. This was done without a judicial determination of whether or not the publications were obscene and without a search warrant or warrant of arrest, as the result of which plaintiff filed the aforesaid suit, Civil Action No. 3726, alleging violations of First, Fifth and Fourteenth Amendments. As shown by the transcript of that case, on file herein, Judge Nixon granted relief to those plaintiffs, holding that there cannot be a search and seizure of materials of this type without a valid search warrant, and there cannot be a valid search warrant without the prerequisite of a judicially superintended adversary hearing. Pursuant to this decision, and continuing with the stipulated facts, following the purchase by the police officers on January 7, 1970, of the aforesaid magazines and movie film, the City of Biloxi, through its Chief of Police, filed a complaint in its municipal court seeking an adjudication that the magazines and movie were obscene. Notice of a hearing was mailed to plaintiff on January 10, 1970, and hearings were held in Municipal Court on January 22 and February 2, 1970. An attorney for plaintiff was present pursuant to the notice. According to his affidavit, the Municipal Court received the alleged obscene materials into evidence without testimony. This attorney also filed a motion to dismiss on the grounds that the Municipal Court has no jurisdiction over the adversary procedure. At the second hearing herein, he orally stipulated that the motion was overruled. Attached to the written stipulation herein are copies of the complaint filed in the Municipal Court, a copy of the notice mailed to plaintiff, and a copy of that court's order, dated February 2, 1970, finding that said magazines were legally obscene, all being on file herein.

On the same day the magazines and movie film were purchased by the police officers, to-wit, January 7, 1970, these same officers and other city officials, according to the stipulation, observed eight coin operated movie machines in plaintiff's establishment, seven of which were operational. They inserted the required coins, viewed the movies exhibited therein, determined in their opinion that the movies were obscene, arrested the employee and manager of the newsstand and seized the seven machines and films therein.¹

The parties, following the initial hearing herein on February 9, 1970, have agreed that plaintiff will remove from its stand all questionable magazines and movies. Defendants, in turn, have agreed to withhold pending prosecution and future arrests and criminal procedures, pending a decision from this Court.

Although plaintiff has withdrawn its request for a temporary restraining order against defendants, it does seek a preliminary and permanent injunction restraining defendants from arresting plaintiff's employees or seizing plaintiff's movie machines and films for alleged criminal violation of the Mississippi obscenity laws, Sections 2286 and 2288 of the Mississippi Code of 1942, in the absence of an adversary hearing; requiring the return of all materials taken from the newsstand on January 7, 1970; restraining defendants from conducting an adversary judicial hearing on the alleged obscenity of plaintiff's publications in the absence of statutory procedures;² and a jury trial for damages.

Defendants, in behalf of their motion to stay, urge that the adversary judicial proceeding conducted in and by the Municipal Court of Biloxi met all constitutional requirements as ruled necessary by Judge Nixon's order in Cause No. 3726 and other federal cases similarly ruling; that the city should be permitted to proceed with its state court criminal remedies without the interference of this Court, and that by virtue of the rulings in McGrew et al. v. City of Jackson et al., 307 F.Supp. 754, and Hosey et al. v. City of Jackson et al., 309 F.Supp. 527, recently decided by three-judge courts sitting in the Jackson Division of this Court, an adversary proceeding as to movies is not required, and no injunction should issue. Both of these cases found Section 2286 of the Mississippi Code of 1942, which applies to movies, constitutional on its face, no injunctive relief was given, and the complaints were dismissed.

In response, plaintiff in the oral argument at the hearings and by brief renewed its contention that the alleged adversary hearing in the Municipal Court was without statutory authority, that the seizure of the movie machines and films therein and arrest of the employee-manager were illegal in the absence of a proper judicial hearing, and that plaintiff has suffered and will continue to suffer irreparable damage should this Court refuse relief. At the same time plaintiff admitted at the second hearing that the complaint alleging bad faith against the defendants was filed prior to the knowledge of the decisions in the McGrew and Hosey cases.

At the outset, the Court points out that the constitutionality of the pertinent Mississippi statutes is not in issue herein, nor is the question of whether the magazines and movies are obscene. The Court has not viewed either. The sole issues are whether the municipal court adjudication of the obscenity of the magazines met the required constitutional...