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SPOKANE ARCADES, INC. v. RAY

February 6, 1978

SPOKANE ARCADES, INC., a Washington Corporation, Plaintiff,
v.
The Honorable Dixie Lee RAY, as Governor of the State of Washington in her representative capacity only, the Honorable Bruce K. Chapman, Secretary of State of Washington in his representative capacity only, the Honorable Slade Gorton, as Attorney General of the State of Washington in his representative capacity only, and Donald C. Brockett, Spokane County Prosecuting Attorney in his representative capacity only, Defendants



The opinion of the court was delivered by: FITZGERALD

 The State of Washington, by initiative, *fn1" has adopted a broad and comprehensive law dealing with obscenity.

 Under Initiative 335, certain places are declared to be "moral nuisances" and, as such, injurious to public morals. Section 2 of the initiative lists the types of places which constitute a moral nuisance. Among the establishments listed are theatres which exhibit "lewd films" and book stores which deal in "lewd publications."

 Employing the procedures of Initiative 335, the attorney general, county or city prosecutors, or any private citizen may bring an equitable action to abate the alleged moral nuisance by filing a verified complaint. After the filing of the complaint with a request for a temporary injunction, the judge is required to grant a hearing within ten days. Upon application (but before any judicial determination of obscenity) the court can issue an ex parte order prohibiting anyone from removing the contents of the establishment pending the hearing on a motion for a temporary injunction. And even if the order banning removal should not extend to all goods in the establishment, the proprietor may be required to keep a full accounting of all business transactions. Summary contempt punishment is allowed for violations of any injunctions issued under Initiative 335.

 If on hearing for a temporary injunction it should be determined that a temporary injunction will issue and if the person controlling the alleged nuisance was given three days notice for the hearing, the issuing court may declare a temporary forfeiture of the real property involved until a final decision is made on a permanent injunction. After a final determination that a place is a moral nuisance, the judicially declared lewd matter is to be destroyed, funds received for the sale of such lewd matter is forfeited to the local government, and the real property where the nuisance was located may be closed to any purpose for up to one year.

 The plaintiffs operate movie houses and book stores where sexually oriented materials are exhibited or sold to the public. They have brought this case in federal court claiming violations of federal constitutional rights and demand injunctive and declaratory relief. The central issue is whether Initiative 335 is constitutionally valid.

 JURISDICTION

 The plaintiffs' amended complaint claims violations of the United States Constitution, principally of the First Amendment and the Due Process provision of the Fourteenth Amendment and additional violations of the Fourth, Fifth and Sixth Amendments.

 This court has jurisdiction under the provisions of 28 U.S.C. § 1343(3).

 STANDING

 The plaintiffs operate a number of movie houses and book stores located in various cities in the State of Washington. There can be little doubt that the authors and supporters of Initiative 335 intended to provide an effective and comprehensive means of controlling obscenity in Washington. It is to be expected that the state attorney general and the county prosecutors of Washington will faithfully and energetically perform their duties under the law. Should they fail to do so, private persons are authorized by the initiative to maintain an action.

 The plaintiffs' movie houses and book stores offer sexually oriented materials to the public which they contend are protected under the First Amendment of the United States Constitution. Threat of prosecutions is very real to the plaintiffs, and the consequences will be substantial. The initiative, by its terms, permits forfeiture of all money collected by admissions or sale, forfeiture of contents and fixtures of the place where any obscene materials are found, an order closing the place to any use for as long as a year, forfeiture of any lease on the premises, and an injunction perpetually enjoining the defendants from maintaining a nuisance anywhere.

 Normally, the mere possibility of erroneous initial application of constitutional standards by a state will not justify the enjoining of state statutory procedures. But statutes regulating expression must be narrowly drawn to avoid the jeopardizing of First Amendment rights. Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965).

 
It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society. [citations omitted] As a corollary, the Court has altered its traditional rules of standing to permit -- in the First Amendments area -- 'attacks on overly-broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.' Dombrowski v. Pfister. Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S. Ct. 2908, 2916, 37 L. Ed. 2d 830 (1973).

 Nor does Broadrick v. Oklahoma undercut Dombrowski, as the defendants contend. In Broadrick, the Court reviewed an Oklahoma law which prohibited certain political activity by state employees. The Court explicitly adopted the broad standing requirement of Dombrowski, at least as it pertains to speech or expression:

 
Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.
 
Broadrick v. Oklahoma, at 612, 93 S. Ct. at 2916.

 But the Court in Broadrick did qualify its broad standing requirements, noting that where conduct and not speech is regulated, statutory overbreadth must be not only real but substantial.

 It is plain that Initiative 335 is broadly drawn and purposely drafted to cast a broad net effectively prohibiting and deterring the dissemination of obscene material. The initiative exposes anyone who undertakes public exhibition or sale of sexually oriented material to the risk of losing not only condemned material but the proceeds of the business, and the place where the business is conducted if the material is later determined to be obscene. Beyond this, once proceedings have been filed, the court may enjoin disposition of the contents and materials which are in any way connected with maintaining a nuisance as defined under the law. The officer serving the restraining order is to inventory the contents and materials which appear to him to be connected with a nuisance. The owner may also be required to account for all transactions involving the stock in trade. *fn2"

 The punitive provision of the initiative would in all probability cause any reasonable person to avoid the risk of public exhibition or sale of any materials in which there was any real chance of an ultimate judicial determination of obscenity.

 I, therefore, conclude that Initiative 335 is overbroad and that the plaintiffs have standing in this case to attack the initiative on First and Fourteenth Amendment grounds.

 THE ABSTENTION DOCTRINE

 The defendants argue that the doctrine of abstention should be applied in this case. This issue was first considered by United States District Judge Marshall Neill when he heard the plaintiffs' motion for a restraining order. Judge Neill concluded that abstention was inappropriate. I agree.

 The defendants misconceive the policy reasons supporting the abstention doctrine. Once jurisdiction is established, a district court is under a heavy responsibility to go forward with the matter before it. The Supreme Court has noted:

 
The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest.
 
County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-189, [79 S. Ct. 1060, 1063, 3 L. Ed. 2d 1163] (1959).

 The abstention doctrine was recently considered by the Supreme Court in the case of Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 97 S. Ct. 1898, 52 L. Ed. 2d 513 (1977). The Court ...


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