State ex rel. Kidwell v. U.S. Marketing, Inc.

Decision Date29 May 1981
Docket NumberNos. 12867 and 12910,s. 12867 and 12910
Citation631 P.2d 622,102 Idaho 451
Parties, 25 A.L.R.4th 381 STATE of Idaho ex rel. Wayne L. KIDWELL, Attorney General; and David H. Leroy, Ada County Prosecuting Attorney, Plaintiffs-Appellants, Cross Respondents, v. U. S. MARKETING, INC., an Idaho corporation, 4094 Chinden Blvd., County of Ada, State of Idaho, Lot 34, Block 6, Fairview Acres Subdivision # 1; Lamar Larsen, Manager and Property Incorporator, Jean Larsen, Manager; Don Cossette; Tom Shaw, Owner and Incorporator; David Burton, Clerk; Jerry Van Camp, John M. Southworth, Individually, and as Contract Property Owners; John Doe # 1, Arcade Machine Owners or Lessors; John Doe # 2, Security Interest Holder; John Does # 3-10, Defendants-Respondents, Cross Appellants, and Niks & Naks Adult Bookstore, a business, 3988 Chinden Blvd., Garden City, County of Ada, State of Idaho, Lot 34, Block 7, Fairview Acres Subdivision # 1; Robert S. Loya, Owner; Joseph E. Osco, Betty Osco, Owner, Managers; Melvin Winn, Clerk; Cecil Andrew Johnson, Jr., and Helen M. Hanson, Property Owners; John Doe # 1, Arcade Machine Owners or Lessors; John Doe # 2, Security Interest Holder; John Does # 3-10, Defendants-Respondents, Cross Appellants. STATE of Idaho ex rel. Wayne L. KIDWELL, Attorney General; and David H. Leroy, Ada County Prosecuting Attorney, Plaintiffs-Respondents, Cross Appellants, v. U. S. MARKETING, INC., an Idaho corporation, 4094 Chinden Blvd., County of Ada, State of Idaho, Lot 34, Block 6, Fairview Acres Subdivision # 1, County of Ada, State of Idaho; Lamar Larsen, Manager and Property Incorporator; Jean Larsen, Manager; Dan Cossette; Tom Shaw, Owner and Incorporator; David Burton, Clerk, Defendants-Appellants, Cross Respondents, and Jerry Van Camp, John M. Southworth, Individually, and as Contract Property Owners; John Doe # 1, Arcade Machine Owners or Lessors; John Doe # 2, Security Interest Holder; John Does # 3-10, Defendants, and Niks & Naks Adult Bookstore, a business, 3988 Chinden Blvd., Garden City, County of Ada, State of Idaho, Lot 34, Block 7, Fai
CourtIdaho Supreme Court

David H. Leroy, Atty. Gen., Lynn E. Thomas, Timothy M. Walton, Deputy Attys. Gen., Boise, for plaintiffs-appellants, cross respondents.

David W. Cantrill, Cantrill & Skinner, William J. Tway, Tway & Tway, Boise, for defendants-respondents, cross appellants.

BAKES, Chief Justice.

The state commenced this action against two Garden City adult bookstores under the provisions of the Idaho Moral Nuisance Abatement Act. I.C. §§ 52-401, et seq. Named as defendants were two business entities, U. S. Marketing, Inc., and Niks & Naks Adult Bookstore; their managers, owners, officers and incorporators; and those individuals who owned the two parcels of property upon which the bookstores were located.

The state sought to have some of defendants' films and publications declared obscene. The state asked for injunctive relief abating the alleged nuisance; a one-year forfeiture of the use of the real property in question; and an award of the costs of abatement including, but not limited to, investigative costs, court costs and attorney fees. The state also requested other relief not relevant on appeal.

Responding to a motion to dismiss, the trial judge disposed of several threshold constitutional issues. The judge held that nuisance abatement proceedings are a proper and constitutional method of attempting to control the sale and distribution of obscene materials. He concluded that the defendants could be enjoined from further sale and distribution of those materials adjudicated to be obscene. However, the judge held that those statutory provisions which permit any forfeiture or closure of the physical premises and real property, see I.C. §§ 52-406 and -412, constitute an unlawful "prior restraint" on free speech and a violation of due process.

The owners of the two parcels of property in question were then dismissed from the lawsuit. Two of those individuals, defendant respondents Cecil Johnson and Helen Hanson, lease their property to Niks & Naks. Johnson and Hanson were dismissed presumably because the remedies available against the real property were held to be unconstitutional. After granting the motion to dismiss, the trial judge awarded costs and attorney fees to Johnson and Hanson. The state objected to the award below and raises that issue again on appeal.

A trial on the merits was held before the district judge, who found that the majority of the exhibits introduced by the state were obscene. The court entered judgment accordingly and enjoined the remaining defendants from further sale and/or exhibition of any of the materials found obscene.

The state then attempted to collect the "costs of abatement" pursuant to I.C. § 52-415. The trial court awarded the state only a limited amount for attorney fees, stating, among other things, that the state's attorneys did not keep adequate hourly time records.

The state appeals, contending (1) that the one-year forfeiture or closure order sought by the state is not an unconstitutional prior restraint upon free speech; (2) that the trial court's reduced award for abatement costs against the remaining defendants was in error; and (3) that it was error for the court to grant costs and attorney fees to dismiss defendants Hanson and Johnson. The trial defendants cross-appealed, alleging that the state was not entitled to any abatement costs.

I

Before turning to the merits, it is essential that we articulate the limited context in which defendants' first amendment claim comes to this Court. The sole constitutional question presented in this appeal is whether a district court may impose a one-year forfeiture of the use of real property upon a finding, made pursuant to constitutionally acceptable procedures, that obscene materials were disseminated on the property. Defendant respondents contend that such a closure order or forfeiture constitutes an unlawful prior restraint upon the exercise of free speech insofar as it affects materials not determined to be obscene. We disagree for reasons set forth later in this opinion.

The defendants do not, however, contest the lower court's finding of obscenity. Nor do they contest the standards which the lower court applied in making that determination. See Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The fact of obscenity is therefore not an issue in this appeal.

More importantly, this appeal involves no procedural issues. The United States Supreme Court has imposed a number of procedural requirements upon the states' efforts to regulate dissemination of sexually oriented materials. 1 See Vance v. Universal Amusement Co., Inc., 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980); Southeastern Promotions, Ltd., v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957). Idaho's moral nuisance statutes, I.C. §§ 52-401 et seq., contain a relatively extensive and rather complex procedural blueprint for nuisance actions of this type. For purposes of this appeal, we need only observe that the nuisance statutes do not provide for or allow any restraint upon dissemination prior to a judicial determination of obscenity. See State ex rel. Ewing v. "Without a Stitch," 37 Ohio St.2d 95, 307 N.E.2d 911, 914 (1974), dismissed for want of substantial federal question sub nom. Art Theatre Guild, Inc. v. Ewing, 421 U.S. 923, 95 S.Ct. 1649, 44 L.Ed.2d 82 (1975).

We stress the limited scope of this appeal because the United States Court of Appeals for the Ninth Circuit has recently struck down, on procedural grounds, certain Washington moral nuisance statutes identical to Idaho's. Spokane Arcades, Inc. v. Brockett, 631 F.2d 135 (9th Cir. 1980). The Ninth Circuit did not reach the issue presented by the instant appeal, 2 nor has, to our knowledge, any United States Supreme Court case. 3 By the same token, we do not reach those procedural issues resolved in Spokane Arcades. 4

II

In the last few decades, the Supreme Court of the United States has often spoken to the issue of obscenity and the first amendment. Several fundamental principles have emerged. First, and perhaps foremost, obscenity is not protected by the first amendment. E. g., Paris Adult Theater I v. Slayton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Hence, the states have considerable leeway in attempting to regulate the dissemination of sexually explicit materials which are obscene.

"We need not linger over the suggestion that something can be drawn out of the Due Process Clause of the Fourteenth Amendment that restricts New York to the criminal process in seeking to protect its people against the dissemination of pornography. It is not for this Court thus to limit the State in resorting to various weapons in the armory of the law. Whether proscribed conduct is to be visited by a criminal prosecution or by a qui tam action or by an injunction or by some or all of these remedies in combination, is a matter within the legislature's range of choice." Kingsley Books v. Brown, 354 U.S. at 441, 77 S.Ct. at 1327.

It is also clear that the states have the power to punish purveyors of illegal pornography. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Smith v. People, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). 5 However, while punishment after the fact is...

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