State v. Johnson

Citation343 So.2d 705
Decision Date28 February 1977
Docket NumberNos. 58495 and 58496,s. 58495 and 58496
Parties2 Media L. Rep. 1866 STATE of Louisiana v. Stephen W. JOHNSON. STATE of Louisiana v. Kenneth V. HENSLEY.
CourtSupreme Court of Louisiana

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellant.

Jacques F. Bezou, Michael Silvers, New Orleans, for defendant-appellee.

DENNIS, Justice.

By separate and unrelated bills of information, the defendants in these consolidated appeals were charged with having violated La.R.S. 14:106, the Louisiana obscenity statute. Both defendants filed motions to quash the informations alleging the unconstitutionality of the obscenity statute, and the district judge sustained both motions. The State, in each case, has appealed.

After careful review of the judgments of the district court and of the arguments raised by appellees and upon full consideration of the limitations placed on government regulation of allegedly obscene materials by the United States Constitution, we are convinced that the judge below erred in ruling that La.R.S. 14:106 is unconstitutional in its entirety. For the reasons hereinafter set forth, we reverse the rulings of the lower court.

Stephen W. Johnson, docket number 58,495, was charged with having willfully and unlawfully participated or engaged in the exhibition and display of hard core sexual conduct in two untitled motion picture films; Kenneth V. Hensley, docket number 58,496, was charged with five counts of obscenity for having willfully possessed, 1 exhibited, and displayed obscene, lewd, lascivious, filthy and sexually indecent hard core sexual conduct in five different magazines. In both cases the district judge found that La.R.S. 14:106(C), a section of the obscenity statute which creates a limited immunity from conviction for theatre and bookstore employees acting within the course and scope of a bona fide contract of employment, was unconstitutionally vague.

La.R.S. 14:106(C) as approved and enrolled by the legislature provides:

'No theatre employee or bookstore employee acting within the course and scope of a bona fide contract of employment wherein such employee is employed by any person, firm or corporation exhibiting motion pictures or selling books, periodicals or other published materials pursuant to a license or permit to exhibit or sell the same issued by the State of Louisiana or any municipality, parish or consolidated city-parish government therein, shall be guilty of a violation of this section as a result of his possession, exhibition or sale within the course and scope of such employment provided such employee has no managerial duties and has no financial interest in the possession, exhibition or sale of any materials other than wages from his said employment, Unless there is no person having managerial duties or a financial interest in the possession, exhibition or sale of Obscure materials subject to immediate arrest and prosecution.' (Emphasis supplied.)

Appellees argued, and the district court agreed, that the presence of the word 'obscure' in this paragraph of the statute rendered the entire obscenity statute unconstitutionally vague, because a person of average intelligence, untrained in the law, could not, on reading the statute, determine the applicability of paragraph C, and thus could not ascertain whether contemplated conduct might subject him to criminal prosecution.

Theatre and Bookstore Employees

We reserve judgment on whether the district judge was correct in this ruling, because defendants on appeal have called our attention to a more serious flaw in paragraph C of the statute. The last clause of paragraph C, in effect, subjects to criminal responsibility non-managerial, non-proprietary theatre and bookstore employees if there is no person having managerial duties or a financial interest in the business 'subject to immediate arrest and prosecution.' Thus the meaning of this clause is of crucial importance to a small class of potential defendants in obscenity prosecutions.

Appellees argue that this clause is ambiguous and does not give fair notice of the circumstances under which a bookstore or theatre employee, having no managerial duties or financial interest in the business, may be penalized for exhibiting or selling obscene materials. They point out that to immunize the clerical employee the statute does not specify Where the managerial or financially interested superior must be in order to be 'subject to immediate arrest and prosecution': on the premises, within the parish, within the judicial district, or merely within the State? Additionally, we find the paragraph unclear because it does not say When this person must be 'subject to immediate arrest' in order to insulate the clerical employee from criminal liability. It could refer to the time at which the police first detect a violation of the statute at the premises, to the entire period during which the police have knowledge of violations there, to the time of the pre-arrest hearing if one is required by paragraph F(1) of the statute, to any time the police propose to make an arrest as a result of a violation on the premises, or to any time prior to the actual conviction of the clerical employee for obscenity.

We are asked to invoke the precepts of our recent decision in Connick v. Lucky Pierre's, 331 So.2d 431 (La.1976) and find that the statute 'fails to fulfill the due process requirement that statutes be sufficiently definite to give notice as to what conduct is necessary to avoid legal sanctions.' However, La.R.S. 13:4711 et seq., the statute we declared unconstitutional in Lucky Pierre's, suffered from a greater degree of vagueness than La.R.S. 14:106(C). La.R.S. 13:4711 et seq. attempted to require owners, lessees, sublessees, employees and those persons acting in concert with them to institute and proceed with 'legal action necessary to enjoin' any acts of prostitution, assignation or obscenity which they knew were taking place in a building over which they had control or in which they were employed. As pointed out in our opinion in that case, the possible interpretations of the phrase, 'legal action necessary to enjoin,' as well as the persons against whom the actions should be taken, were multitudinous, and the vagueness struck at the very heart of the legislation so as to render it impossible to determine the acts or omissions which the legislature sought to prohibit. See, Connick v. Lucky Pierre's, supra.

The issue here is distinguishable because the obscenity statute is sufficiently definite to give notice as to what conduct is necessary to avoid legal sanctions. See, State v. Amato, 343 So.2d 698 (La.1977), decided this day. The uncertainty with which we are now dealing is crucial only to determining which non-managerial, non-proprietary bookstore and theatre employees are to be subjected to criminal sanctions because of the absence of someone having a financial or executive interest in the business. Because the ambiguity affects a subsidiary portion of the statute, it would perhaps be permissible to save the provision by construing it as strictly as possible in favor of defendants.

However, under any saving construction of the words 'subject to immediate arrest and prosecution,' some clerical bookstore and theatre employees would be subjected to criminal proceedings whereas others would not, depending on whether their superiors are subject to immediate arrest and prosecution. Thus the law does not afford all such employees equal treatment, and raises a question as to whether the distinction between the two classes of clerical employees has been drawn upon a reasonable basis. We do not think that it has. To make a person's exposure to a possible fine of $2,000 and possible imprisonment at hard labor for five years completely dependent upon whether another person is subject to immediate arrest and prosecution seems to us entirely unfair and unreasonable. Accordingly, we conclude that the last clause of La.R.S. 14:106(C) is unconstitutional because it denies equal protection of the law to one class of clerical bookstore and theatre employees. U.S.Const. amend. XIV, § 1; La.Const. art. 1, § 3 (1974).

Nevertheless, we do not agree with the defendants-appellees that a judicial determination of partial invalidity of the statute in this respect so disembowels the legislation that it must fall as a whole. Instead, we conclude that the repugnant provision is separable from the remainder of the statute, which it is therefore our duty to uphold.

The obscenity statute was enacted by Act No. 274 of the 1974 regular session of the legislature, and included the following severability clause:

'If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items or applications of this Act which can be given effect without the invalid provisions, items or applications, and to this end the provisions of this Act are hereby declared severable.'

Since the balance of the statute can be given effect without the invalid provision, the requirements of the severability clause have been met. Notwithstanding this, there are well recognized precepts of statutory construction which also must be considered.

'To be capable of separate enforcement, the valid portion of an enactment must be independent of the invalid portion and must form a complete act within itself. The law enforced after separation must be reasonable in light of the act as originally drafted. The test is whether or not the legislature would have passed the statute had it been presented with the invalid features removed.' 2 Sutherland, Statutes and Statutory Construction, § 44.04 at 341--42 (Sands 4th ed. 1973) (footnotes omitted).

'A further inquiry which courts make in determining legislative intent in regard to the separability of statutes is into the...

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  • State in Interest of A.C.
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    ...have passed the statute with the offensive portions removed, given the dominant purpose of the enactment. See Lauga, supra; State v. Johnson, 343 So.2d 705 (La.1977); Roy v. Edwards, 294 So.2d 507 (La.1974); and Gaudet v. Economical Super Market, 237 La. 1082, 112 So.2d 720 As mentioned pre......
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