State ex rel. Leis v. William S. Barton Co., Inc.

• Decision Date: 15 September 1975
• Citation: 344 N.E.2d 342,74 O.O.2d 387,45 Ohio App.2d 249
• Parties: , 74 O.O.2d 387 The STATE ex rel. LEIS, Appellee, v. WILLIAM S. BARTON CO., INC., et al., Appellants.
• Court: Ohio Court of Appeals

Page 249

45 Ohio App.2d 249

344 N.E.2d 342, 74 O.O.2d 387

The STATE ex rel. LEIS, Appellee, v. WILLIAM S. BARTON CO., INC., et al., Appellants.

Court of Appeals of Ohio, First District, Hamilton County.

Sept. 15, 1975.

Syllabus by the Court

In an action concerning the sale of obscene materials, it is error for a trial court to deny, or unreasonably curtail a defendant's right to introduce into evidence competent and non-repetitive testimony or exhibits which directly relate to or bear upon any or all of the elements of the obscenity test specified in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419.

Simon L. Leis, Jr., and Arthur M. Ney, Jr., Cincinnati, for appellee.

Andrew B. Dennison, Cincinnati, for appellant Terry L. Barnett.

Allen Brown, Cincinnati, for appellant William S. Barton Co., Inc.

PER CURIAM.

This cause came on to be heard upon the appeal; the transcipt of the docket, journal entries, and original papers from the Hamilton County Common Pleas Court; the transcripts of the proceedings; the exhibits; and the assignments of error, briefs and arguments of counsel.

The defendants, Terry Barnett and the William S. Barton Company, appellants herein, at all times pertinent to this appeal, were the lessee and lessor respectively of the Adult Book Store located at 721 Vine Street in Cincinnati. On March 29, 1974, the Hamilton County prosecuting attorney filed this civil action against them to abate a nuisance consisting of the sale of allegedly obscene material at that location. A trial was had, and included in the evidence there adduced were six magazines and two films, all of which were found to be obscene by the trier of fact. Thereafter, in accordance with the statutory 'padlock' scheme of R.C. 3767.01 et seq., and pursuant to a judgment entered in favor of the prosecutor on May 22, 1974, the store was closed by order of court for a period of one year.

Immediately following the closure order, defendants filed a motion purporting to invoke the release provisions of R.C. 3767.04, and thereby seeking to continue sales operations at the store during the pendency of this appeal. That motion was denied on May 22 after a hearing of even date.

In the interim, however, the defendant had filed an injunctive action in federal court seeking to prevent the state from proceeding against them in the instant cause. When that litigation ended on August 28 in the decision of a three-judge panel upholding ¹ the constitutionality of the Ohio nuisance abatement laws and dismissing the federal complaint, the Barton Company (having found another tenant) again sought relief from the closure order. In state proceedings which commenced on October 24, the lessor company demonstrated to the satisfaction of the court its compliance with the statutory requirements for reopening padlocked premises before the year of closure had run. The lessee, Barnett, having formally abandoned his interest in the premises because of the impact of the closure itself, was neither a party to nor present at these later proceedings. The court thereupon, and without objection from the Barton Company, as to the terms of the covenant of abatement, ² granted the company's application to reopen the premises, releasing the order of closure by entry of December 30.

That action notwithstanding, both defendants perfected timely appeals from the judgment below and the closure order of May 22, and present herein for our review six joint assignments of error. Stripped of their redundant or plainly unmeritorious aspects and thus reduced to that which is both relevant and essential, these raise two questions which we deem critical to a disposition of the cause: (1) whether the terms of the covenant to abate, insisted upon by the trial court, included an impermissible prior restraint in violation of the First and Fourteenth Amendments to the United States Constitution and to the Ohio Constitution; and (2) whether the trial court's blanket exclusion of evidence as to 'contemporary community standards' and 'prurient appeal' was prejudicial error.

Before proceeding to a discussion of these questions, we note the presence of an issue raised sua sponte by the Court, and argued by supplemental briefs submitted by counsel, consisting of the possible mootness of the questions on appeal resulting from the post-judgment application for release from the closure order by the Barton Company, the trial court's grant thereof, and defendant Barnett's abandonment of his leasehold interest, together with the fact of the expiration of the year of closure. State v. Wilson (1975), 41 Ohio St.2d 236, 325 N.E.2d 236. We conclude, however, that since stays of execution pending appeal are not possible in cases of this sort, ³ a defendant's only access to judicial relief during the year following a closure order lies in the release provisions of R.C. 3767.04, which serve the role, among other things, of substitutes for stays pending a resolution of an appeal. To hold, under these circumstances, that a defendant who avails himself of this remedy thereby forsakes his right to appellate review of the rectitude of the judgment and closure order itself would, in our view, not only shrink the meaning of the due process clause, but would suggest an indirect curtailment of certain individual rights protected by the First Amendment, which is of equal importance. Accordingly, we hold on this score that none of the factual occurrences post-dating the order complained of in the instant cause terminated the defendant's right of appeal.

I.

The issue of whether R.C. 3767.01 et seq. affects an unconstitutional prior restraint of the First Amendment rights of freedom of speech and press was decided by the Supreme Court of Ohio in State ex rel. Ewing v. Without A Stitch (1974), 37 Ohio St.2d 95, 307 N.E.2d 911. Stated simply, the statutory scheme in question provides for the closure, for a period of one year, of premises judicially determined to have been the site of a nuisance. Where the asserted nuisance is the sale or exhibition of obscene literature, or other material arguably protected by the First Amendment, a judicial determination of obscenity must be had as a condition precedent to the declaration of a nuisance. In determining whether or not given materials are indeed obscene, the trier of fact must be guided by the definitions of the criminal code, which have been held to comport with the constitutional standards of Miller v. California (1973), 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; State ex rel. Keating v. Vixen (1973), 35 Ohio St.2d 215, 301 N.E.2d 880. ⁴

Following the mandatory closure order which is issued as a consequence of the findings of obscenity and nuisance, the defendant may make an application for release from the closure order pursuant to R.C. 3767.06 and 3767.04. The significance of the release provisions in deciding the prior restraint question cannot be overemphasized. The Supreme Court of the United States noted their importance in a recent decision on a collateral matter under the Ohio padlock laws, as follows:

'In 'Without a Stitch' it was decided that the closure provisions of the Ohio Rev. Code Ann. § 3767.06 were applicable even if a theatre had shown only one film which was adjudged to be obscene. However, the Ohio Supreme Court was concerned with the constitutional implications of prior restraint of films which had not been so adjudged. In narrowing the statute the court noted that § 3767.04 specifies conditions under which a release may be obtained from the closure order: the property owner must appear in court, pay the cost incurred in the action, file a bond in the full value of the property, and demonstrate to the court that he will prevent the nuisance from being re-established. The Court then made this critical clarification: 'The nuisance is the exhibition of the particular film declared obscene. The release provisions do not, as appellants contend, 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. * * *' 37 Ohio St.2d, at 105, 307 N.E.2d, at 918.' Huffman v. Pursue, Ltd., 420 U.S. 592, 612, 95 S.Ct. 1200, 1212, 43 L.Ed.2d 482, 43 U.S.L.W. 4379, 4385, note 23 (1975). (Emphasis added.)

Thus, we arrive at defendants' major premise, which we find to be well taken, and upon which this aspect of the appeal is founded: that, but for their release from the closure provision, the Ohio padlock statutes would impose an unconstitutional prior restraint, and that such unconsitutionality can be avoided only where the terms of a defendant's covenant to abate are narrowly confined to materials which have already been judicially determined to be obscene.

The defendants' minor premise in the instant cause turns on the arguably improper terms of the covenant to abate insisted upon by the trial court in granting the release from closure. The permissible limits of the restriction are contained in the language of the fifth paragraph of the syllabus of Without a Stitch, as follows:

'The one-year closing order mandated by R.C. 3767.06 must be released by the trial court if 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 particular film or films declared to be obscene.' (Emphasis added.)

Accordingly, where 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. Any enlargement of the foregoing undertakings required of the owner would be impermissible under the statute...