State ex rel. Eckstein v. Midwest Pride IV, Inc., No. CA97-03-007

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtWALSH.
Citation128 Ohio App.3d 1,713 NE 2d 1055
Decision Date06 April 1998
Docket Number No. CA97-03-007, No. CA97-04-011.
PartiesThe STATE ex rel. ECKSTEIN, Appellee, v. MIDWEST PRIDE IV et al., Appellants.

128 Ohio App.3d 1
713 NE 2d 1055

The STATE ex rel. ECKSTEIN, Appellee,
v.
MIDWEST PRIDE IV et al., Appellants.1

Nos. CA97-03-007 and CA97-04-011.

Court of Appeals of Ohio, Twelfth District, Fayette County.

Decided April 6, 1998.


128 Ohio App.3d 5
Steven H. Eckstein, Fayette County Prosecuting Attorney, and James B. Grandey, Assistant Prosecuting Attorney, for appellee

Berkman, Gordon, Murray & Devan, J. Michael Murray and Jeremy A. Rosenbaum, for appellants.

128 Ohio App.3d 2
128 Ohio App.3d 3

128 Ohio App.3d 4
WALSH, Judge

Appellants, Geri Riley, as executor for the estate of Frank E. Findo, and Michele Moran ("owners"), are owners of real property in Washington Court House, Fayette County, Ohio in which defendant-appellant, Midwest Pride IV, Inc. ("Midwest"), operates an adult video store called the Lion's Den Adult Bookstore ("Lion's Den"). In June 1994, the Fayette County Prosecutor, Steven H. Eckstein, allegedly sent Midwest a letter in which, according to Midwest, he "threatened to pursue criminal and/or civil proceedings against [Midwest] for pandering obscenity if [Midwest] continued to rent certain unidentified videotapes containing any sexual depictions * * *." 2

On December 14, 1995, an investigator from the Fayette County Sheriff's Office purchased three videotapes from the Lion's Den. On December 20, 1995, prosecutor Eckstein filed a civil nuisance action, asserting that the three videotapes were obscene and that their sale constituted a "repeated violation" of R.C. 2907.32, which prohibits the pandering of obscenities.3 The prosecutor sought to have the tapes declared obscene, to enjoin the Lion's Den from showing, renting, or selling those tapes or any similar tapes, and to permanently close the Lion's Den on the grounds that it constituted a nuisance. Midwest moved to dismiss the complaint for failure to state a claim upon which relief can be granted. The

128 Ohio App.3d 6
Fayette County Court of Common Pleas denied the motion to dismiss. In July 1996, Midwest answered the complaint and filed a counterclaim pursuant to Sections 1983 and 1988, Title 42, U.S. Code and R.C. Chapter 2721. Midwest also moved to seat an advisory jury. On the state's motion, Midwest's counterclaim was dismissed. Midwest's motion for an advisory jury was also denied. In accordance with the nuisance abatement statute, the owners applied for release from an anticipated closure order

A trial was held before the court on February 11, 1997. A separate hearing on the application for release from closure took place on March 6, 1997. In the judgment entry, the trial judge found that the three tapes were obscene under Ohio law, that Midwest had been convicted previously of pandering obscenity under R.C. 2907.32 at the same location, and that together these actions were "repeated violations" which constitute a nuisance subject to abatement. The judge ordered Midwest to abate the nuisance, perpetually enjoined Midwest from disseminating the three tapes, ordered the premises closed for one year, taxed Midwest $300, and denied the owners' request for release from the closure order.

The owners appealed the portion of the trial court's judgment entry denying their application for release from closure and closing the premises for one year. The owners also moved to stay closure of the premises pending the outcome of this appeal. This court granted the motion to stay on March 13, 1997. Midwest also filed a notice of appeal. The two appeals were consolidated in April 1997. Together, appellants present six assignments of error for review.

I. The Application for Release from Closure

In their first and second assignments of error, appellants complain that the trial court erred in denying their application for release from the closure order. Appellants contend that the trial court denied their application on improper grounds, i.e., because the court was "not satisfied with the good faith of the owners." Appellants also assert that the closure order imposes an unconstitutional prior restraint in violation of the First Amendment to the United States Constitution.

Under Ohio's nuisance abatement scheme, if the existence of a nuisance is admitted or established in a civil action, the trial court must enter a judgment that perpetually enjoins the defendant from maintaining the nuisance and that includes an order of abatement. R.C. 3767.05(D); 3767.06(A)4. If no closing order has been issued previously, the abatement order must include, inter alia, a

128 Ohio App.3d 7
directive closing the "place where the nuisance is found to exist" for a period of one year. R.C. 3767.06(A). Under R.C. 3767.04, the owner of real property may obtain a release from the closure order in the following manner:

"[I]f all costs incurred are paid and if the owner of the real property files a bond with sureties approved by the clerk, in the full value of the real property as ascertained by the court * * * and conditioned that the owner of the real property immediately will abate the nuisance and prevent it from being established or kept until the decision of the court or judge is rendered on the complaint for the permanent injunction, the court or judge * * * if satisfied of the good faith of the owner of the real property * * * shall deliver the real * * * property * * * to the respective owners and discharge or refrain from issuing * * * any order closing the real property * * *." (Emphasis added.) R.C. 3767.04(C).

The Ohio Supreme Court has determined that R.C. 3767.01 et seq. sets forth a constitutionally permissible means of controlling obscenity. State ex rel. Ewing v. Without a Stitch (1974), 37 Ohio St.2d 95, 66 O.O.2d 223, 307 N.E.2d 911, paragraph three of the syllabus, dismissed sub nom., Art Theater Guild, Inc. v. Ewing (1975), 421 U.S. 923, 95 S.Ct. 1649, 44 L.Ed.2d 82. The release provisions of R.C. 3767.04, which ameliorate the "harsh penalty" of the closure order, are, however, critical to that determination. Id. at 105, 66 O.O.2d at 229, 307 N.E.2d at 917-918. In Without a Stitch, which involved a civil abatement action against the exhibiting of an obscene film, the court emphasized the importance of the release provisions in cases involving expressive material. In that context, the court held that the release of a closure order was mandatory—and thus outside the trial court's discretion—once the owner of the premises "pays the cost of the abatement action, files a bond in the full value of the property, and demonstrates to the court" that he will not exhibit the obscene material. (Emphasis added.) Id., paragraph five of the syllabus. In an obscenity/nuisance context, the nuisance is the material determined to be obscene. See id. at 105, 66 O.O.2d at 229, 307 N.E.2d at 918 ("The release provisions do not * * * require the owner to show that no film to be exhibited during the one-year period will be obscene. Such a requirement would not only be impossible, as a practical matter, but also would be an unconstitutional prior restraint on an activity generally protected by the First Amendment").

Ohio's First District Court of Appeals considered the nuisance abatement statute in the context of the sale of obscene magazines and films in State ex rel. Leis v. William S. Barton Co., Inc. (1975), 45 Ohio App.2d 249, 74 O.O.2d 387, 344 N.E.2d 342, and again emphasized the critical role of the release provisions in cases where a prior restraint might otherwise result ("but for their release from the closure provision, the Ohio padlock statutes would impose an unconstitutional

128 Ohio App.3d 8
prior restraint * * *"). Id. at 253, 74 O.O.2d at 390, 344 N.E.2d at 346. Barton provides further clarification of the release provisions where the First Amendment is implicated:

"[W]here the property owner undertakes or proffers the undertaking of three actions—(1) payment of the tax and costs of the abatement action, (2) the filing of a bond in the full value of the property, and (3) a demonstration that he will not exhibit the particular items declared to be obscene—the trial court must release the closure order." (Emphasis added.) Id. at 254, 74 O.O.2d at 391, 344 N.E.2d at 346.

The court specified that "any enlargement of the foregoing undertakings required of the owner would be impermissible under the statute and, if such enlargement related to a requirement that the owner refrain from exhibiting materials not judicially determined to be obscene, would additionally amount to a constitutionally impermissible prior restraint on the defendant's rights under the First Amendment." Id. (Emphasis sic.)

To summarize, this court's understanding of the combined effect of Without a Stitch and Barton is that in this particular context, i.e., a civil nuisance abatement action involving material presumptively protected by the First Amendment, a trial court may not deny an application for release from a closure order once the three conditions set forth in Without a Stitch and Barton have been met.5 This is so notwithstanding the statutory language of R.C. 3767.04(C) vesting a trial court in an ordinary nuisance action with the discretion to consider whether an applicant is acting in "good faith."6 In this context, common law supersedes the statute. See Vance v. Universal Amusement Co., Inc. (1980), 445 U.S. 308, 315-316, 100 S.Ct. 1156, 1161, 63 L.Ed.2d 413, 420, rehearing denied (1988), 446 U.S. 947, 100 S.Ct. 2177, 64 L.Ed.2d 804 ("[t]he regulation of a communicative activity such as the exhibition of motion pictures must adhere to more narrowly drawn procedures than is necessary for the abatement of an ordinary nuisance * * *").

In reaching this conclusion, we rely also on First Amendment jurisprudence disfavoring prior restraints. Motion pictures, like other types of speech,

128 Ohio App.3d 9
are entitled to protection from prior restraint. Freedman v. Maryland (1965), 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649; Joseph Burstyn, Inc. v. Wilson (1952), ...

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7 practice notes
  • Peoples Rights Org., Inc. v. Montgomery, No. CA2000-04-018.
    • United States
    • United States Court of Appeals (Ohio)
    • April 9, 2001
    ...at 606. 142 Ohio App.3d 481 This court addressed the effect of Okure in State ex rel. Eckstein v. Midwest Pride IV, Inc. (1998), 128 Ohio App.3d 1, 713 N.E.2d 1055, wherein we "R.C. 2305.09(D) contains a residual statute of limitations; however, it is apparent to this court that R.C. 2......
  • Peoples Rights Organization, Inc. v. Betty D. Montgomery, Ohio Attorney General, 01-LW-1390
    • United States
    • United States Court of Appeals (Ohio)
    • April 9, 2001
    ...Id. at 250, 109 S.Ct. at 582. This court addressed the effect of Okure in State ex rel. Eckstein v. Midwest Pride IV, Inc. (1998), 128 Ohio App.3d 1, appeal dismissed (1998), 85 Ohio St.3d 1454, wherein we reasoned: R.C. 2305.09(D) contains a residual statute of however, it is apparent to t......
  • Lutz v. Chesapeake Appalachia, L.L.C., Nos. 10–4538
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 29, 2013
    ...to any of Vitek's claims [alleging breach of contract and tortious interference].”); State ex rel. Eckstein v. Midwest Pride IV, Inc., 128 Ohio App.3d 1, 713 N.E.2d 1055, 1064 (1998) ( “Although the [continuing violation] theory can be used in contexts other than Title VII or employment dis......
  • Theresa A. Fowler v. Carl Coleman, 99-LW-6002
    • United States
    • United States Court of Appeals (Ohio)
    • December 28, 1999
    ...R.C. 2305.10 is the proper statute of limitations for Section 1983 claims. See State ex rel. Eckstein v. Midwest Pride IV, Inc. (1998), 128 Ohio App.3d 1; Gaston v. Toledo (1995), 106 Ohio App.3d 66; Francis v. Cleveland (1992), 78 Ohio App.3d 593; Archer v. Payne (Sept. 17, 1999), Muskingu......
  • Request a trial to view additional results
7 cases
  • Peoples Rights Org., Inc. v. Montgomery, No. CA2000-04-018.
    • United States
    • United States Court of Appeals (Ohio)
    • April 9, 2001
    ...at 606. 142 Ohio App.3d 481 This court addressed the effect of Okure in State ex rel. Eckstein v. Midwest Pride IV, Inc. (1998), 128 Ohio App.3d 1, 713 N.E.2d 1055, wherein we "R.C. 2305.09(D) contains a residual statute of limitations; however, it is apparent to this court that R.C. 2......
  • Peoples Rights Organization, Inc. v. Betty D. Montgomery, Ohio Attorney General, 01-LW-1390
    • United States
    • United States Court of Appeals (Ohio)
    • April 9, 2001
    ...Id. at 250, 109 S.Ct. at 582. This court addressed the effect of Okure in State ex rel. Eckstein v. Midwest Pride IV, Inc. (1998), 128 Ohio App.3d 1, appeal dismissed (1998), 85 Ohio St.3d 1454, wherein we reasoned: R.C. 2305.09(D) contains a residual statute of however, it is apparent to t......
  • Lutz v. Chesapeake Appalachia, L.L.C., Nos. 10–4538
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 29, 2013
    ...to any of Vitek's claims [alleging breach of contract and tortious interference].”); State ex rel. Eckstein v. Midwest Pride IV, Inc., 128 Ohio App.3d 1, 713 N.E.2d 1055, 1064 (1998) ( “Although the [continuing violation] theory can be used in contexts other than Title VII or employment dis......
  • Theresa A. Fowler v. Carl Coleman, 99-LW-6002
    • United States
    • United States Court of Appeals (Ohio)
    • December 28, 1999
    ...R.C. 2305.10 is the proper statute of limitations for Section 1983 claims. See State ex rel. Eckstein v. Midwest Pride IV, Inc. (1998), 128 Ohio App.3d 1; Gaston v. Toledo (1995), 106 Ohio App.3d 66; Francis v. Cleveland (1992), 78 Ohio App.3d 593; Archer v. Payne (Sept. 17, 1999), Muskingu......
  • Request a trial to view additional results

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