State v. Gulf States Theatres of La., Inc.

• Decision Date: 16 November 1971
• Docket Number: No. 11746,11746
• Citation: 255 So.2d 857
• Parties: STATE of Louisiana and Parish of Caddo, Plaintiffs-Appellees, v. GULF STATES THEATRES OF LOUISIANA, INC. et al., Defendants-appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 857

255 So.2d 857

STATE of Louisiana and Parish of Caddo, Plaintiffs-Appellees, v. GULF STATES THEATRES OF LOUISIANA, INC. et al., Defendants-appellants.

No. 11746.

Court of Appeal of Louisiana, Second Circuit.

Nov. 16, 1971.

En Banc. Rehearing Denied Jan. 4, 1972.

Writ Granted Feb. 11, 1972.

Wilkinson, Woods, Carmody & Peatross, by Arthur R. Carmody, Jr., Shreveport, Breazeale, Sachse & Wilson, by Hopkins P. Breazeale, Jr., Baton Rouge, for defendants-appellants.

John A. Richardson, Charles R. Lindsay, Shreveport, for plaintiffs-appellees.

Before AYRES, BOLIN and HEARD, JJ.

HEARD, Judge.

This is a devolutive appeal from a judgment permanently enjoining Gulf States Theatres, Inc., Greater Broadmoor Theatres, Inc., Joseph Gianforte, and their agents and employees from showing a motion picture entitled 'The Stewardesses' at any and all locations in Caddo Parish, Louisiana.

The State of Louisiana and the Parish of Caddo obtained a temporary restraining order against the showing of this movie pursuant to LSA-R.S. 13:4711--13:4717. A rule to show cause why a final judgment of injunction should not be rendered issued at the same time as the restraining order. Evidence was taken at the hearing on the rule and judgment of permanent injunction was rendered.

Gulf States Theatres, Inc., et al are asserting in this court that the statute pursuant to which the injunction has issued is unconstitutional as applied to expression. They further assert that the statute is unconstitutional because the title is not indicative of its object. In addition to the attack on the constitutionality of the statute, Gulf States Theatres, Inc., et al assert that the movie is not obscene as that term is defined by the Supreme Court of the United States.

The Constitutionality of the Statute

In general, LSA-R.S. 13:4711 declares any structure in which assignation, prostitution, or obscenity is carried on to be a nuisance. LSA-R.S. 13:4712 provides the procedure for enjoining the nuisance. It reads as follows:

'Whenever a nuisance is carried on, conducted, continued or permitted or exists, as defined in R.S. 13:4711 through 13:4717, the district attorney in the name and on behalf of the parish and without the payment of any costs, the sheriff or the parish governing authority through its parish attorney or other designated representative, in the name and on behalf of the parish and without the payment of any costs, any corporation or association formed in this state for the suppression of vice, and any citizen of the parish may maintain in a court of competent jurisdiction an action to enjoin and abate the nuisance perpetually. Such action may also seek to enjoin the lessee, sublessee or other occupant or inmate from carrying on or conducting the same anywhere within this state, and may seek to enjoin the woner or the officers of any corporation which is the owner or agent of the building, structure, land or other place in or upon which or in or upon any part of which the nuisance exists, from permitting the continued existence of the nuisance. Upon the presentation of the petition for injunction alleging that the nuisance exists, verified by the affidavits of at least two persons, or verified by the affidavit of the district attorney or other parish official hereinabove designated on information and belief, the judge, during term or in vacation, shall grant a temporary injunction without bond. Such temporary injunction shall have the effect also of restraining and enjoining the removal of any personal or other movable property on the premises, and shall issue a rule nisi, returnable in five days, and a hearing shall be had thereon and judgment rendered during term or in vacation. No action shall be brought under R.S. 13:4711 through 13:4717 by any one other than the district attorney or other parish official hereinabove designated until the applicant has obtained from the judge of any district court a certificate that in the opinion of the judge the applicant is acting in good faith and not for any improper purpose. An action for injunction filed by a citizen or citizens under the provisions of R.S. 13:4711 through 13:4717 shall not be dismissed except upon motion accompanied by the sworn statement made by petitioner and his attorney setting forth the reasons why the action should be dismissed. This motion shall be tried contradictorily with the district attorney or other parish official bringing the action and with all other parties plaintiff, if any, and if the court is of the opinion that the action ought not to be dismissed, the district attorney or other party or parties plaintiff, if any, shall prosecute it to judgment. If the action is not tried within thirty days from the return day, unless failure to try it was caused by circumstances beyond the control of the petitioner or petitioners and the time is extended by the court, the clerk of the court in which the action is pending shall give formal notice to the district attorney or other parish official bringing the action, who shall prosecute the action to judgment.'

Gulf States attacks this statutory procedure on numerous grounds. Firstly, they argue that it is unconstitutional for the reason that the trial judge presented with a verified petition for injunction has no discretion as to whether or not to issue a temporary injunction. We agree. It cannot be disputed that states may regulate the dissemination and exhibition of obscene material, for obscene material does not enjoy the protection of the First Amendment. But '* * * a State is not free to adopt whatever procedures it pleases for dealing with obscenity * * * without regard to the possible consequences for constitutionally protected speech.' Marcus v. Search Warrants of Property at 104 East Tenth Street, Kansas City, Missouri, 367 U.S. 717, 81 S.Ct. 1708, 1716, 6 L.Ed.2d 1127 (1961). We are aware of the United States Supreme Court decision in Kingsley Books,...