State ex rel. Cahalan v. Diversified Theatrical Corp.

• Citation: 229 N.W.2d 389,59 Mich.App. 223
• Decision Date: 04 March 1975
• Docket Number: Docket No. 20165,No. 1,1
• Parties: STATE of Michigan ex rel. William L. CAHALAN, Wayne County Prosecuting Attorney, Plaintiff-Appellee, v. DIVERSIFIED THEATRICAL CORPORATION, a Michigan Corporation, et al., Defendants- Appellants
• Court: Court of Appeal of Michigan (US)

Page 389

229 N.W.2d 389

59 Mich.App. 223

STATE of Michigan ex rel. William L. CAHALAN, Wayne County

Prosecuting Attorney, Plaintiff-Appellee,

v.

DIVERSIFIED THEATRICAL CORPORATION, a Michigan Corporation,

et al., Defendants- Appellants.

Docket No. 20165.

Court of Appeals of Michigan, Division No. 1.

March 4, 1975.

Rehearing Denied April 15, 1975.

Released for Publication June 4, 1975.

Leave to Appeal Granted July 22, 1975.

Taylor & Rubin by Stephen M. Taylor, Detroit, for defendants-appellants; Ivan E. Barris, Detroit, of counsel.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Detroit, for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and J. H. GILLIS and BASHARA, JJ.

V. J. BRENNAN, Presiding Judge.

Defendants, individually and as corporate entities, own, lease, conduct, maintain and/or operate motion picture theatres in the County of Wayne.

On July 5, 1973, plaintiff, William L. Cahalan, Wayne County Prosecutor, filed an action against defendants herein, and others, under the provisions of M.C.L.A. § 600.3801 et seq., M.S.A. § 27A.3801 et seq.; generally known as the public nuisance act. The complaint alleged that the said theatres were exhibiting 'lewd' motion pictures, and, as such, the defendants were subject to a one-year padlocking as a public nuisance pursuant to M.C.L.A. § 600.3801 which provides in pertinent part:

'Any building, vehicle, boat, aircraft or place used for the purpose of Lewdness, assignation or prostitution or gambling, or used by, or kept for the use of prostitutes or other disorderly persons, or used for the unlawful manufacture, storing, possessing, transporting, sale, keeping for sale, giving away, bartering, furnishing or otherwise disposing of any narcotic and/or hypnotic drug as defined by law or of any vinous, malt, brewed, fermented, spirituous or intoxicating liquors or any mixed liquors or beverages, any part of which is intoxicating, is hereby declared a nuisance and the furniture, fixtures and contents of any such building, vehicle, boat, aircraft, or place and all such intoxicating liquors therein are also declared a nuisance, and all such narcotic and/or hypnotic drugs and nuisances shall be enjoined and abated as hereinafter provided, and as provided in the court rules. Any person, or his servant, agent or employee who shall own, lease, conduct or maintain any building, vehicle or place used for any of the purposes or by any of the persons above set forth or where any of the acts above enumerated are conducted, permitted or carried on, is guilty of a nuisance.' (Emphasis supplied.)

Attached to the complaint were the affidavits of several police officers representing in their official capacities the various communities wherein the alleged acts of 'lewdness' were committed. The acts set forth in these affidavits described in each instance the various sexual acts depicted in the films occurring between nude persons of both sexes.

The prayer of the complaint requested that the court find in respect to each defendant that a nuisance was being permitted and maintained on the various premises and that the court enter an order perpetually enjoining the various defendants from permitting or suffering a continuance of the nuisance and, further, that an order of abatement be entered in respect to each building directing the removal of all furniture, fixtures and contents from the buildings and directing the sale thereof in the manner provided for in M.C.L.A. § 600.3825; M.S.A. § 27A.3825. An order closing each of the buildings for a period of one year was also sought. It was further requested, and the trial court granted, an order restraining each of the defendants and their servants, agents or employees from removing, selling, pledging, bartering, granting a security interest in, giving them by gift or otherwise disposing of, or alienating any interest in the furniture, fixtures and contents of the buildings, including motion picture films. The plaintiff also requested such other and further relief as was agreeable to equity and good conscience.

The defendants filed answers and motions for summary judgment. The motions were denied by the Honorable Thomas J. Foley, Wayne County Circuit Judge, on April 17, 1974. On the same date trial commenced before Judge Foley sitting with an advisory jury. The advisory jury was impaneled for the purpose of determining whether the films in question were obscene. On the issue of obscenity, the plaintiff introduced the several films in question, namely, 'The Devil In Miss Jones', 'It Happened In Hollywood', 'Deep Throat', and 'Little Sisters'. The defendants called Dr. John Jacob Hartman, a psychologist and assistant professor at the University of Michigan.

Dr. Hartman testified that he had seen the four movies involved herein. He indicated that he was familiar with the test of obscenity and was requested to apply the guidelines to each of the works in question. Doctor Hartman testified that the films in question were no obscene; that the average person, applying contemporary community standards would find that the films, taken as a whole, did not appeal to the prurient interest; that the films, taken as a whole, did not depict or describe sexual conduct in a patently offensive way; and that the films, taken as a whole, had serious literary and artistic value. On cross-examination, Doctor Hartman testified that different people would have different opinions about a film and that artistic value depended on each person's subjective standard or individual taste. In addition to Doctor Hartman's testimony there were several stipulations at the trial. The stipulations established ownership and established that the police officers who signed the affidavits in the complaint were over the age of 18 and paid admission to see the films in question. It was further stipulated that on the date in question a person had to be 18 to properly gain admission to the defendant theatres to see the films which are the subject of this action.

At the close of plaintiff's case, the defendants moved to dismiss, alleging that the public nuisance act, on its face and as construed and applied, violated constitutional guarantees of both the Federal and state constitutions. The trial court denied the motion.

On April 24, 1974, the case was submitted to the jury. The trial judge instructed the jury that the term 'lewdness,' as used in M.C.L.A. § 600.3801; M.S.A. § 27A.3801, was synonymous with obscene and then proceeded to instruct the jury on the three-prong test of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), providing the jury with specific examples of the type of sexual conduct prohibited from being portrayed.

The jury found each of the four films, 'The Devil In Miss Jones', 'Deep Throat', 'It Happened In Hollywood' and 'Little Sisters' to be lewd.

On May 1, 1974, Judge Foley issued a judgment and order pursuant to M.C.L.A. § 600.3801 et seq.; M.S.A. § 27A.3801 et seq., wherein he ordered, Inter alia, that the furniture, fixtures and contents of the buildings and places known as Krim I and Krim II Theatres, Pussycat Theatre, Penthouse, Theatre, Lido Theatre, and Hiland Theatre be removed and sold in the manner provided for the sale of chattels under execution, and that the buildings and places be effectually closed against their use for any purpose and be kept closed for a period of one year, unless sooner released pursuant to the provisions of M.C.L.A. § 600.3801 et seq.; M.S.A § 27A.3801 et seq.

On May 1, 1974 the defendants filed a claim of appeal in this Court, together with a motion for a stay of execution of judgment pending appeal and a motion for immediate consideration. On May 6, 1974, this Court granted the stay only insofar as the judgment ordered the removal and sale of the furniture, fixtures and contents of the buildings. This Court refused to stay that portion of the judgment padlocking the theatres for one year. On May 10, 1974, the Michigan Supreme Court granted a stay of the judgment. The order granting the stay provided that the motion for a stay of judgment pending appeal to this Court be granted in its entirely, on the condition that defendants pursue their appeal timely, in accordance with this Court's order of May 6, 1974. This they have done.

Defendants first argue that the statute here involved, M.C.L.A. § 600.3801 et seq.; M.S.A. § 27A.3801 [59 Mich.App. 230] et seq., does not apply to motion picture theatres exhibiting obscene films. We find defendants' arguments in this regard totally unpersuasive. M.C.L.A. § 600.3801; M.S.A. § 27A.3801 provides, in relevant part:

'Sec. 3801. Any building, * * * used for the purpose of lewdness, assignation or prostitution * * * is hereby declared a nuisance and the furniture, fixtures and contents of any such building, * * * are also declared a nuisance, and all such * * * nuisances shall be enjoined and abated as hereinafter provided, and as provided in the court rules.'

The statute, by its own terms, refers to a building 'used for the purpose of lewdness'. Does the showing of obscene films fall within the meaning of lewdness? We believe it does. 'Lewdness' is defined as 'the quality or state of being lewd'. Webster's Third New International Dictionary (1965), p. 1301. 'Lewd' is defined as: 'sexually unchaste or licentious; dissolute, lascivious; suggestive of or tending to moral looseness; inciting to sensual desire or imagination; indecent, obscene, salacious.' Webster's Third New International Dictionary (1965), p. 1301. Furthermore, Black's Law Dictionary (4th Ed., Revised), p. 1052, defines 'lewd' as 'obscene'.

From the above it can clearly be seen that lewd and obscene are synonymous. Indeed, we believe that this is the generally understood meaning of the term. For us to say that the showing of obscene films does not fall within the meaning of 'lewdness' would...