State v. Allen, 48396

• Citation: 562 P.2d 445,1 Kan.App.2d 32
• Decision Date: 25 February 1977
• Docket Number: No. 48396,48396
• Parties: STATE of Kansas, Appellee, v. Dean ALLEN and D. E. Rosebaugh, Appellants.
• Court: Court of Appeals of Kansas

Page 445

562 P.2d 445

1 Kan.App.2d 32

STATE of Kansas, Appellee, v. Dean ALLEN and D. E. Rosebaugh, Appellants.

No. 48396.

Court of Appeals of Kansas.

Feb. 25, 1977.

Syllabus by the Court

1. A statute which is overbroad makes conduct criminal which is constitutionally protected.

2. A statute which is facially overbroad may be authoritatively construed to cover only conduct which is not constitutionally protected, and as so construed it will thereafter be immune from attack on the grounds of overbreadth.

3. A statute which is facially overbroad in restricting rights under the First Amendment cannot be applied in a criminal case to conduct occurring before the apparent overbreadth is removed by authoritative judicial construction.

4. Where First Amendment rights are involved, the fact that a defendant's conduct would be constitutionally subject to regulation or prohibition by a statute drawn with the requisite narrow specificity does not preclude him from raising the constitutional issue of overbreadth as the statute may be applied to others.

5. In a prosecution for promoting obscenity under former K.S.A.1973 Supp. 21-4301 it is held: (a) prior to the decision of the Kansas Supreme Court in State v. Motion Picture Entitled 'The Bet,' 219 Kan. 64, 547 P.2d 760, the definition of 'obscene' found in the former Kansas statute was unconstitutionally overbroad; (b) the construction of the statute adopted in that case in 1976 cannot be applied to the conduct of the defendants which occurred in 1974.

Lawrence P. Ireland, Topeka, for the appellants.

Albert D. Keil, Asst. Dist. Atty., Curt T. Schneider, Atty. Gen., and Gene M. Olander, Dist. Atty., for the appellee.

En Banc.

FOTH, Judge:

Defendants Dean Allen and D. E. Rosebaugh were convicted by a Shawnee county jury of promoting obscenity. Each was sentenced to six months in the county jail and fined $1,000, and each was paroled from the jail term and ordered to pay one-half the costs. They appealed their convictions to the Supreme Court, which transferred the case to this court for hearing and determination under K.S.A.1976 Supp. 20-3018(a).

The convictions arose out of defendants' operation of Dean's Bookstore in Topeka in the summer of 1974. In June, July and August of that year plainclothes detectives of the Topeka Police Department made a series of 'buys' from the book store. The materials purchased were presented to a district judge in an application for a search warrant. The judge heard sworn testimony from one of the officers, which was duly recorded and transcribed, and issued a search warrant for the defendants' premises. Officers executing the warrant seized publications thought to be obscene which, together with the 19 previously purchased, brought the total to 158. Multicount informations were initially filed against each defendant, but these were later dismissed. They were replaced by the present information which, in one count, charges both defendants with promoting obscenity based on 144 named booklets and magazines.

Defendants filed two pretrial motions. The first was to suppress the exhibits seized under the search warrant, based on alleged irregularities in the application procedure. The denial of this motion was designated as a point on appeal and was briefed, but the point was specifically abandoned at oral argument and will not be considered further.

The second motion was to dismiss the information, based primarily on the alleged unconstitutionality of the statute under which the defendants were charged. The allegation is that the statute was overbroad and too vague to support a conviction. The trial court overruled the motion, and the correctness of this ruling is, on our view, the dispositive issue on appeal.

The obscenity statute then in force, K.S.A.1973 Supp. 21-4301, made it a class A misdemeanor under subsection (1)(b) to knowingly or recklessly possess any 'obscene' material with intent to sell or otherwise disseminate it. The definition portion of the same statute, subsection (2)(a), provided 'Any material or performance is 'obscene' if, considered as a whole, its predominant appeal is to prurient, shameful or morbid interest in nudity, sex, excretion, sadism or masochism, and the material is patently offensive and utterly without redeeming social value. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be intended for distribution to children or any other especially susceptible audience.'

The origins of this statutory language were recently reviewed at length by our Supreme Court in State v. Motion Picture Entitled 'The Bet,' 219 Kan. 64, 547 P.2d 760 (1976). They need not be reviewed here except to note that the language was designed and intended to comport with the obscenity definition first announced in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and reformulated in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). At the time the statute was adopted in 1969, Memoirs was the latest word from Washington on what could and what could not be prohibited as 'obscene' under the First Amendment, as made applicable to the states through the Fourteenth.

Since then the United States Supreme Court has further refined its thinking in this area, most notably in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). That case altered the tripartite Memoirs definition of obscenity, as incorporated in our statute, in two respects. Essentially unaltered is the requirement that the material, taken as a whole, appeal to prurient interest according to an average person applying contemporary community standards. But as noted by our Supreme Court in 'The Bet,' the high court in Miller abandoned the requirement that the material be found 'utterly without redeeming social value.' Instead, it is enough that the material, 'taken as a whole, lacks serious literary, artistic, political, or scientific value.' (413 U.S. at 24, 93 S.Ct. at 2615.) To this extent the prosecutor's task is made easier; a mere modicum of social value will no longer 'redeem' an otherwise obscene work.

That change does not concern us here; the one we are concerned with is the change which presented the chief issue in 'The Bet,' i.e., the new constitutional requirement that to be obscene the work must depict or describe in a patently offensive way 'sexual conduct specifically defined by the applicable state law.' (Ibid.)

Our statute, as written, did not meet this portion of the Miller standards, arguably in two respects. First, it was not clearly restricted to sexual conduct, but apparently included nudity, among other things, without requiring any sexual connotation. Second, the conduct whose description or depiction would fall beyond the pale was not 'specifically defined.'

This, however, was not necessarily fatal. The Miller Court said that the required specificity could be found in a state statute as written 'or authoritatively construed.' (Ibid.) The conviction in Miller was vacated and the case remanded for a state court determination of whether the California statute there in question could be construed to meet the newly announced standard. The Court also noted that '(o)ther existing state statutes, as construed heretofore or hereafter, may well be adequate.' (413 U.S. 24, n.6, 93 S.Ct. 2615. Emphasis added.)

In 'The Bet' the Kansas Supreme Court accepted this invitation to state judicial action and 'authoritatively construed' the statute involved here to incorporate the Miller standards, including a list of 'specifically defined' representations or descriptions which are to be deemed obscene. (The 1976 legislature also acted, amending 21-4301 to incorporate at least some of the conduct proscribed under the statute as construed in 'The Bet.' Laws 1976, ch. 159, § 1.)

Defendants' argument is this: their conduct occurred in 1974; the Miller requirement of specificity, either statutory or judicial, had been enunciated in 1973; the Kansas Supreme Court did not read the required specificity into the Kansas statute until 'The Bet' was decided in 1976. Hence, they argue, at the time they acted the statute was overbroad and did not give them the 'fair notice' they were entitled to under the due process clause of the Fourteenth Amendment. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110; Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214; Palmer v. City of Euclid, 402 U.S. 544, 29 L.Ed.2d 98, 91 S.Ct. 1563. To apply the 1976 construction found in 'The Bet' to their 1974 conduct, they say, would be a retroactive application which would deny them due process of law.

The state's response to this argument (and the trial court's in overruling the defendants' motion to dismiss) is that the statute had previously been 'authoriatively construed' to meet the Miller standards in State ex rel. v. A Quantity of Copies of Books, 197 Kan. 306, 416 P.2d 703 (1966). In that case, operating without a statutory definition, the court was required to determine whether the books in question were 'obscene' under the then effective statute, K.S.A. 21-1102. It applied the definition which had but recently been formulated in Memoirs and, characterizing the books as 'hard core pornography,' found them obscene under the Memoirs standard.

We are hard pressed to see how that case helps the state here. It was summarily reversed by the United States Supreme Court in A Quantity of Copies of Books et al. v. Kansas, 388 U.S. 452, 87 S.Ct. 2104, 18 L.Ed.2d 1314, with no reason given except a reference to Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515. From an examination of the latter we can only surmise that in the high court's view the books in question were not obscene, but instead were immune from seizure under the ...