Yuclan Enterprises, Inc. v. Nakagawa

• Decision Date: 04 May 1984
• Docket Number: Civ. No. 78-0268,80-0127.
• Citation: 583 F. Supp. 1574
• Parties: YUCLAN ENTERPRISES, INC., a Hawaii corporation, and Yuclan International, Inc., a Hawaii corporation, Plaintiffs, v. Togo NAKAGAWA, individually and in his capacity as Prosecuting Attorney, and Francis Keala, individually and in his capacity as Chief of Police, City and County of Honolulu, Defendants, and Waikiki Liquors Incorporated, a Hawaii corporation, Penthouse Forty-One Incorporated, a Hawaii corporation, Alvin G. Nunes dba Playboy Theater and AAA Trading Center Theatre, and Quindo Pinzari dba Lido Theatre, Interveners.
• Court: U.S. District Court — District of Hawaii

583 F. Supp. 1574

YUCLAN ENTERPRISES, INC., a Hawaii corporation, and Yuclan International, Inc., a Hawaii corporation, Plaintiffs, v. Togo NAKAGAWA, individually and in his capacity as Prosecuting Attorney, and Francis Keala, individually and in his capacity as Chief of Police, City and County of Honolulu, Defendants and Waikiki Liquors Incorporated, a Hawaii corporation, Penthouse Forty-One Incorporated, a Hawaii corporation, Alvin G. Nunes dba Playboy Theater and AAA Trading Center Theatre, and Quindo Pinzari dba Lido Theatre, Interveners.

Civ. Nos. 78-0268, 80-0127.

United States District Court, D. Hawaii.

May 4, 1984.

Evan R. Shirley, Wesley H. Ikeda, Honolulu, Hawaii and Guillermo M. Canlas, Honolulu, Hawaii, for plaintiffs.

Barry Chung, Randolph R. Slaton, Arthur Ripley, Jr., Corp. Counsel, City and County of Honolulu, Honolulu, Hawaii, for defendants.

OPINION

PENCE, Senior District Judge.

Plaintiffs, Yuclan Enterprises, et al. ("Yuclan") are owners and employees of several adult movie theatres in Honolulu. Defendants are the Chief of Police and the Prosecuting Attorney of the City and County of Honolulu.

On April 21, 1980, this court granted an Amended Permanent Injunction ("Injunction") in favor of the plaintiffs and against the defendants. The Injunction enjoined the seizure of allegedly obscene motion pictures by the defendants from the plaintiffs' premises unless the following conditions were met:

1. Seizure must be preceded by an adversary hearing to determine whether the films are unlawfully obscene, and written notice of the hearing must be given to interested parties at least 48 hours prior to the hearing;

2. A post-seizure hearing must be held within 120 hours after the seizure and finished within 240 hours after the seizure. Again, 48 hours' notice must be given to the interested parties;

3. Seizure of any film must be contemporaneous with or subsequent to a filing in court of an arrest warrant, indictment, complaint or oral charge accusing the defendant of a crime, in order that the defendant may prepare for the post-seizure hearing;

4. Seizure of more than one copy of a film is prohibited unless the film is judicially determined to be unlawfully obscene;

5. If the film is declared to be obscene at the adversary hearing, the police may keep the film for evidence.

A Consent Decree ("Decree") later entered into by the parties incorporated the Injunction into its terms. The Decree was approved by this Court on May 1, 1980.

Defendants now move for a dissolution of the Injunction and Decree in light of the Hawaii Supreme Court's opinion in State v. Bumanglag, 63 Haw. 596, 634 P.2d 80 (1981), which set up constitutional procedures for the seizure of allegedly obscene films in Hawaii.

In that opinion, the court recognized that the situation in Hawaii called for an "authoritative judicial construction of the obscenity statute to supply procedural safeguards ...." Id. at 609, 634 P.2d 80. To that end, the Hawaii Supreme Court instituted the following procedures governing the seizure of allegedly obscene materials:

1. A warrant to seize allegedly obscene materials must be issued contemporaneously with or subsequent to the filing of an arrest warrant or charge in a case;

2. A warrant for seizure may not be based solely on the conclusory opinion of a police officer;

3. A warrant for seizure may be granted after an adversary hearing on the obscenity issue or ex parte;

4. If the warrant is granted ex parte, it must contain a notice to the following effect:

a. An interested party may move to have the issue of obscenity determined promptly in an adversary hearing, with written notice to all interested parties of at least 48 hours; and

b. An interested party must move for an adversary hearing within 10 days of seizure or within 5 days of arraignment or the party waives his right to such hearing.

5. If a party moves for a hearing, the hearing must be held within 7 days of the filing of the motion and a decision must be made within 10 days thereafter (unless justice demands otherwise);

6. If a determination of obscenity is made, the State can keep the films for evidence;

7. The accused may copy the seized film prior to a hearing on the obscenity issue if it was the only copy of the film in his possession.

Plaintiffs argue that the Bumanglag procedures are constitutionally inadequate to protect persons such as plaintiffs from illegal seizure of property. Plaintiffs oppose any dissolution of the Injunction or Decree until the procedures in Hawaii conform to the Injunction's terms.

The Hawaiian procedures do not differ significantly from those imposed by this court's Injunction. The only departures from the Injunction procedures are:

1. A party must move for an adversary hearing on the alleged obscenity of the seized materials rather than automatically receiving such a hearing; and

2. The deadlines for such an adversary hearing are slightly longer.

As to the first, in Heller v. New York, the Court held that

If such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary

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