State v. Book-Cellar, Inc.
| Decision Date | 19 January 1984 |
| Docket Number | No. 8,No. 4,CA-CIV,No. 7,BOOK-CELLA,INC,No. 1,7,8,4,1 |
| Citation | 139 Ariz. 525,679 P.2d 548 |
| Parties | STATE of Arizona, Plaintiff-Appellant, v., a California corporation, dba Book-Cellar/Modern Book Store, Book-Cellar/Glendale Book Bar and Book-Cellar/Venus Bookstore, Defendant-Appellee., a California corporation, dba Book-Cellar/Modern Book Store, Book-Cellar/Glendale Book Bar and Book-Cellar/Venus Bookstore, Counterclaimant-Appellee, v. STATE of Arizona, William E. Farrell, in his official capacity as City Attorney of the City of Glendale and George Renner, in his individual and his representative capacity as Mayor of the City of Glendale, Counterdefendants-Appellants. 6390. |
| Court | Arizona Court of Appeals |
At issue is the constitutionality of Arizona's Obscene Movie and Obscene Pictorial Publication Abatement statutes. The trial court found the statutes unconstitutional both on their face and as applied and awarded appellee (Book-Cellar) nominal damages and reasonable attorney's fees.
On June 9, 1981, the City Attorney for the City of Glendale brought this action in the name of the State of Arizona seeking to abate an alleged nuisance and to enjoin the maintenance thereof pursuant to A.R.S. §§ 12-811 et seq. 1 The complaint alleged that Book-Cellar sold and/or distributed certain obscene motion picture films and certain obscene pictorial publications. It requested that the trial court issue both a preliminary and a permanent injunction enjoining the maintenance of the alleged nuisance.
On June 11, 1981, the state applied for and obtained an ex parte temporary restraining order from the trial court purportedly pursuant to A.R.S. § 12-814(B) and Rule 65(d), Arizona Rules of Civil Procedure (Rule), restraining and enjoining Book-Cellar from:
...removing or in any manner interfering with any obscene motion picture film or obscene pictorial publication or other item directly related to the conduct or maintenance of the premises described in exhibit A attached hereto, including but not limited to the films and publications described in exhibit B attached hereto until further order of this court. 2
Book-Cellar answered and counterclaimed and also obtained leave of court to add as additional counterdefendants William E. Farrell, in his official capacity as Attorney for the City of Glendale, and George Renner individually and in his official capacity as Mayor of the City. The counterclaim alleged that the nuisance abatement statutes, pursuant to which the complaint had been filed, were unconstitutional both on their face and as applied and requested that enforcement of the statutes be enjoined. The counterclaim also requested an award of damages for violation of Book-Cellar's civil rights pursuant to 42 U.S.C. § 1983 and reasonable attorney's fees pursuant to 42 U.S.C. § 1988.
On July 2, 1981, the trial court quashed the show cause order relating to the requested preliminary injunction. 3 The court also granted Book-Cellar's motion to quash the temporary restraining order on both procedural and substantive grounds. The court first noted that the temporary restraining order did not comply with Rule 65, and that there was no basis in the record for concluding that irreparable injury would result if the temporary restraining order were not issued. The court further found that First Amendment considerations required that the temporary restraining order be dissolved because it either amounted to a prior restraint on the sale or exhibition of allegedly obscene materials or was unconstitutionally vague in failing to fairly apprise Book-Cellar as to the conduct which was prohibited.
The trial court thereafter granted Book-Cellar's motion to dismiss the complaint finding that the nuisance abatement statutes were unconstitutional on several grounds. The court found that the ex parte temporary restraining order provision, A.R.S. § 12-814(B), and the preliminary injunction provision, A.R.S. § 12-814(E), were unconstitutional in authorizing a prior restraint without assuring a prompt final judicial determination of obscenity, and that they were unconstitutionally vague with regard to the conduct which may be restrained. The court further found that the final judgment provision, A.R.S. § 12-815(B), and the provision for an order of abatement, A.R.S. § 12-816, were overbroad and constituted an illegal prior restraint because they authorized the seizure and destruction of items which had not been adjudged to be obscene.
Book-Cellar then filed a motion for summary judgment on its counterclaim, waiving damages with the exception of nominal damages, and seeking an award of attorney's fees. The trial court found, as a matter of law, that Book-Cellar was entitled to one dollar as nominal damages under 42 U.S.C. § 1983 and awarded attorney's fees in the sum of $7,000 pursuant to 42 U.S.C. § 1988. A formal judgment was thereafter filed and this appeal followed in a timely manner.
We begin by emphasizing that there is a strong presumption in favor of the constitutionality of a legislative enactment, and the party challenging its constitutionality bears the burden of proving that the statute infringes upon a constitutional guarantee or that it violates a constitutional principle. State v. Yabe, 114 Ariz. 89, 559 P.2d 209 (App.1977). We will not declare an act of the legislature unconstitutional unless we are satisfied beyond a reasonable doubt that the act is in conflict with the federal or state constitutions. Chevron Chemical Co. v. Superior Court, 131 Ariz. 431, 641 P.2d 1275 (1982); Litchfield Elementary School Dist. v. Babbitt, 125 Ariz. 215, 608 P.2d 792 (App.1980). In interpreting a statute the courts should, if possible, give the statute a constitutional construction. Mardian Constr. Co. v. Superior Court, 113 Ariz. 489, 557 P.2d 526 (1976). It is our duty to uphold statutes, if their language will permit, even though the statute may not be "artfully drawn". State v. Grijalva, 111 Ariz. 476, 533 P.2d 533, cert. denied, 423 U.S. 873, 96 S.Ct. 141, 46 L.Ed.2d 104 (1975). Judicial interpretation adds meaning to a statute as certainly as if the words were placed there by the legislature. State v. Bateman, 113 Ariz. 107, 547 P.2d 6 (1976), citing Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973).
We also stress that obscenity is not within the area of constitutionally protected speech or press and may therefore be regulated by the state. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). The state can impose regulations on the use of obscenity in local commerce and in all places of public accommodation, so long as those regulations do not run afoul of specific constitutional prohibitions. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). Moreover, the Supreme Court in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957) expressly approved the state's use of the injunctive remedy to restrain a book dealer from displaying or distributing particular materials which had been adjudged 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.
354 U.S. at 441, 77 S.Ct. at 1327-28. Thus, the states have considerable leeway in attempting to regulate the dissemination of obscenity. While punishment after the fact is clearly permissible for purveyors of illegal pornography, the courts have exhibited a marked repugnance for restraining even unprotected obscenity prior to a determination of its obscene character. The Supreme Court has said that "[a]ny system of prior restraints of expression comes to this court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584, 593 (1963). In this regard, the Supreme Court has held that there are three fundamental procedural requirements which must be met prior to the imposition of any restraints upon the dissemination of obscenity:
First, the burden of instituting judicial proceedings, and of proving that the material is unprotected [obscene], must rest on the censor.
Second, any restraint prior to judicial review can be imposed only for a specified brief period and only for the purpose of preserving the status quo.
Third, a prompt final judicial determination must be assured.
The relevant Arizona nuisance abatement statutes provide for a number of procedural steps, the constitutionality of which were challenged by Book-Cellar in the trial court and are similarly at issue on appeal. We will consider each in turn.
A.R.S. § 12-814(B) provides that the court may issue an ex parte restraining order "restraining the defendant from removing or in any manner interfering with" the alleged obscene material.
Book-Cellar contends that this statute unconstitutionally restrains the sale or exhibition of allegedly obscene material prior to an adversarial hearing on whether the material is in fact...
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