HUFFMAN v. PURSUE, LTD.

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Argument of James J. Clancy

Chief Justice Warren E. Burger: We'll hear arguments next in Huffman against Pursue.

Mr. Clancy, you may proceed whenever you're ready.

Mr. James J. Clancy: Mr. Chief Justice, may it please the Court.

The appeal here in the Huffman versus Pursue Limited places before this Court two dominant issues.

The first is the question of the interference of federal courts in state judicial proceedings.

The second, concerns the question of the constitutionality of the padlock provision of the Ohio Public Nuisance Statute as applied in this case to a theater showing pornographic movies as a continuing regular course of business.

In this case --

Justice Potter Stewart: You'll get to the second point if we agree with you on the first, is that correct?

Mr. James J. Clancy: Yes, sir.

That's --

Justice Potter Stewart: Is that correct?

Mr. James J. Clancy: Unfortunately, yes sir.

Justice Potter Stewart: And why is that unfortunate?

Mr. James J. Clancy: Well, I --

Chief Justice Warren E. Burger: In some which way we can go on?

Mr. James J. Clancy: Well, that's -- what I'm saying here is, I would much prefer that the second issue also be decided but because of other --

Justice Potter Stewart: But the circumstances (Voice Overlap) --

Mr. James J. Clancy: I think the first is the more important issue.

Yes, sir.

Justice Potter Stewart: And if we do agree with you on the first issue.

We do not reach the second?

Mr. James J. Clancy: That's right Your Honor.

The particular situation here, involved the showing of 16 pornographic movies in approximately 10-week period.

Now withstanding the paramount importance of the second issue that is, that this Court should resolve the padlock provision.

Appellants would urge this Court to decide the matter on the appeal on points one and two in the brief, and hold that the Federal District Court had no jurisdiction, no subject matter jurisdiction to consider the merits of the courts below because of two things.

One, under the interim or res exception, the res was under the jurisdiction of the state court which had exclusive jurisdiction to decide that matter to the exclusion of the federal court system.

And two, under the lis pendens doctrine, Pursue Limited took its interest as an assignee with notice and was concluded thereby from filing a declaratory judgment action in the federal court.

Now, there are at least three reasons why the court should assign priority to the first and decide the case on the first issue.

First, this nation is at the present time faced with an alarming rate of growth of pornographic theaters.

They are in every hamlet, village, and township in this nation.

I'm sorry too, the statements in some newspapers, they are not in a decline.

I can explain why they are not in the decline.

Second, the public nuisance is the only way in which this vice operation can be brought under control.

And third, the defense tactics which were employed in this case if allowed to continue as a modus operandi for defense attorneys in such cases will destroy the efficacy of the public nuisance approach.

The opportunity for the defense attorneys to engage in a volleyball offensive by using the federal removal actions and to federal equitable interference as was accomplished in this case must be withdrawn.

It was never intended by Congress nor the constitution that the federal court system should sit in appellate review on state court decisions, particularly, when those state court decisions were final.

Similarly, the opportunity for defense attorneys to avoid public nuisance findings in state trial courts and to provide a springboard for a federal declaratory judgment action at law by successive assignments after they are in court on the merits has got -- as was accomplished in this case, also is got to be stop.

The solution to the above problems is to be found in the well-recognized and widely accepted legal principles cited in points one and two of appellant's brief.

One, reaffirmation of the interim or res exception which prevents federal interference where the state in action is in rem, will prevent the volleyball; offensive which has frustrated to public nuisance concept and I cite here Toucey versus New York Life, Orton versus Smith, Princess Lida of Thurn versus Thompson, and Donovan versus Dallas.

And in Donovan versus Dallas is applied to federal cases, this Court said that, it was a matter of power or a lack of jurisdiction.

In Orton versus Smith, that was a natural application or of -- or a consideration by this Court of a federal court saying that the state has the power -- has a res and it should stay out of it.

Recognition of the res --

Justice William H. Rehnquist: Well, what do you conceive the res or res to be here Mr. Clancy?

Mr. James J. Clancy: Well, Your Honors, it's the property involve the public nuisance concept, the tax of property itself, the business location.

In a lis pendens action, you're proceeding against the property.

You're required to precede against the property all owners and give notice that this action does affect the title and use of the property.

Chief Justice Warren E. Burger: You mean like padlocking the building, (Voice Overlap)?

Mr. James J. Clancy: That's the same thing.

When you padlock the building, you're telling them that you are withdrawing or you're forfeiting the lease for a year as is the penalty in all of these public nuisance statutes around the country.

They say that your proceeding against the place when you file a lis pendens, you give notice to all persons and assignees with notice that there's a quite -- there's a good possibility that if it is found that the public nuisance does exist, that they take with notice that the lease maybe forfeited for a year, and any person either the one who buys the property or the lease takes with notice of that.

Chief Justice Warren E. Burger: Is there no way they can purge themselves?

Mr. James J. Clancy: Well, there is under the statute.

Very definitely, they can post bond.

They can prove that the nuisance has been abated immediately.

If they're brought in under the preliminary injunction and there is a fine --

Chief Justice Warren E. Burger: Where was it, they came in with a -- by posting a bond and showing that they were going to run a -- build a garage there, they're selling automobiles, they don't (Voice Overlap) --

Mr. James J. Clancy: No question, but the Court would be forced to say that that use was entirely correct and permitted.

In fact, that is exactly what has happened in the Southern California District in the Orange County Courts which have applied it.

They have said that if the -- it's precluded for the use of lewdness but other uses are permitted.

I'm turning to a consideration the three-judge court opinion on the padlock provision, in essence, the opinion states that even accepting the fact that these 16 pornographic movie films were shown as a regular course of business over a 10-week period still the trial court could not padlock the premises for years of public nuisance because such would be precluded under Near versus Minnesota.

Justice Potter Stewart: Are you going to spend anymore time Mr. Clancy on the question of the propriety of the District Court's acting at all?

Mr. James J. Clancy: Yes, Your Honor.

I'd get back to that (Voice Overlap) --

Justice Potter Stewart: Is that it -- essential question, isn't it?

I don't want a -- of course you --

Mr. James J. Clancy: No, I just want to touch -- I'm just now touching upon why the opinion itself and why it is wrong?

Justice Potter Stewart: I see.

Mr. James J. Clancy: Then I'm going to comeback to the procedure --

Justice Potter Stewart: I see, fine.

Mr. James J. Clancy: Touching upon the -- my one answer to the opinion is that their legal reasoning is wrong and they asked themselves the wrong question.

Our remarks on the legal reasoning are cited from Brumbaugh, legal reasoning at pages 74 to 77 and we further point to the two cases cited by us in the appendix case A and D, Cincinnati Properties Inc. versus Lease, People ex rel. Hicks v. Sarong Gals, where we say the Court therein asked the property question and devoted its legal analysis properly to that question.

In the People of State of California ex rel. Hicks, the court said, “Of course just as a court order for the incarceration of a convicted law breaker impinges and all sorts of constitutional rights so does the abatement order, the order, shutting down the proffered, excepting for limited uses as specifically authorized however by Penal Code Section 11230 which permits the closing of the offending building against its use for any purpose for a period of one year.”

The question is therefore, not whether the order impinges unconstitutionally guaranteed rights but whether the statute constitutes a permissible exercise of the state police power.

The court then goes on to say the provision in Penal Code Section 11230 authorizing closure of the offending property to all uses for a period of one year while harsh is constitutionally permissible.

It then says it has to be remembered that to (Inaudible) abatement procedures are directed against the offending property itself.

Their purpose it has been said is to the -- in fact the reformation of the property itself.

In the Cincinnati case, similarly, they directed their analysis to the proper question and they said, “Their being no question of fact that a business of obscenity was carried on.”

The question in this case is therefore, really, whether the State may validly define the operation and the places nuisance and close it for a year, padlock it on that basis.

The court then went on to consider the issue itself and it said the constitutional power of the state to abate, what is appropriately been defined as a public nuisance is never been seriously questioned.

Padlock remedies have been consistently provided for by most states in the areas of prostitution, gambling, and liquor violations.

It is not for us to conclude that one of the other, these subjects, vis-à-vis, the state's padlock power should be classified differently than obscenity.

It then cite Mugler versus Kansas and --

Justice William H. Rehnquist: Mr. Clancy, there is some difference between abating a whorehouse or speak easy and abating something that sells books just because of the First Amendment, isn't there?

Mr. James J. Clancy: No, not necessarily Your Honor, if you say that, the public nuisance that you're going against is the course of business and you limit it to a type of situation where the entire business or that part of business is -- the substantial portion of it is directed entirely to purposes of lewdness then you have proceeded against on a proper manner.

If you would apply it on the sale of one book, then, of course, you'd be in trouble.

But where your proof and it's purely and simply a question of what is your proof at the trial level?

Have you established the public nuisance?

If you go in to the trial court level in the preliminary injunction, you show them that this is nothing but an eight-by-ten building room with nothing but pornographic books, devices, films, etcetera.

Then you have met your burden a proof under the red light abatement or lewdness statute.

Then, it's a question of them coming forward in saying that, this is not a public nuisance or if it was a public nuisance that it has been abated.

It's simply -- purely and simply a matter of proof at the trial level.

Now, if at the trial level, if you plead a public nuisance or a red light abatement action and you go onto the preliminary injunction with no more proof then you made a purchase of one book, you're in trouble or two books.

If you don't show what is a -- course of the conduct which shows clearly that this is nothing more than a house of lewdness or a house of prostitution or a whorehouse.

It's purely and simply a matter of proof.

It's not a question of whether or not the statute can be applied.

It's a question of how the prosecutor directs his -- a tactical evidence.

Does he show the court that this in truth is a house of lewdness?

If the court was to fasten its attention on the opinion alone, it would not get -- really get a true picture of what this appeal is all about.

The opinion itself only concerns itself with whether or not the padlock provision can be provided -- can be applied in view of Near versus Minnesota.

The Court did not consider any of the other matters which were before it.

So that, if you want to see what the true nature of this appeal is about, you've got to go to the record and to see what was before the court.

The rec --

Chief Justice Warren E. Burger: I take it what you're saying Mr. Clancy that while there maybe a difference between the First Amendment case and some other kinds of cases, that once you have demonstrated the obscenity factor, then it's outside the protection of the First Amendment as this Court has held and it's like any other case.

Mr. James J. Clancy: Oh, absolutely, they'll come in the court every time and say presumptively as First Amendment.

The presumption means nothing when the burden of -- when you're entire evidence shows that the presumption doesn't apply.

Chief Justice Warren E. Burger: You concede that there was a presumption against prior restraint here but you've overcome it, is that your claim?

Mr. James J. Clancy: Granted, yes sir.

Chief Justice Warren E. Burger: By proof.

Mr. James J. Clancy: Yes, sir.

Now, the record in this case, however, it shows that the Court avoided all discussion, of those important facts of the case which give the case meaning, matters which were brought to the court's attention repeatedly in the trial brief, I'm talking now about the Federal District Court was brought to the court's attention in the trial brief.

In oral argument, in motions for an immediate hearing on motions to dissolve the temporary restraining order, to dismiss the complaint as being a sham pleading, and dismiss the complaint as failure to state a cause of action and in two motions for an immediate hearing seeking or remand to the state court which had reach final judgment.

It's remanded back to the state trial court.

See, here for example, the entire history of the state court proceedings that were cited in the trial brief and the copy of the supporting papers there are two files, there's an appendix to the trial brief.

See also, the lis pendens arguments made to the court in the trial brief at page 13 and 14 and 22, and in the oral argument in the transcript at pages 33 and 34.

The argument about lis pendens completely went over the head of the Federal District Court.

It paid no attention to it.

Those matters however do appear in the -- do not appear in the court's opinion and as to this matters that I would now like to direct this Court's attention.

Passing onto the action that was filed, this matter began two years ago, September of 18, 19 -- September 18, 1972 with the prosecuting attorney of Allen County, Ohio, filing an action in the Common Pleas Court against Dakota and everyone who had any kind of an interest in that property, the real property owners, the known lessee, everyone that could possibly be identified as holding a recorded interest.

In his allegations, he stated that the Cinema I Theatre which was being operated on that real property was engaged in violation of the public nuisance statute and was showing obscene films.

At paragraph 70, alleged that for a period of 10 weeks, the Cinema I Theatre had consistently shown obscene pictures and then recited in detail not as an -- an application for a search warrant at Lee Art Theatre versus Virginia where they just said, “We have seen an obscene film and this is it, we want to pick it up.”

He said, “These are the films that were shown.

This is a period they were shown and this is what they show.”

They described in detail what the films were and in addition at the paragraph -- in the same paragraph, incorporated by reference, time motion studies of approximately 10,000 photographs which made a time motion analysis of what goes -- what was depicted in those films.

It went on to allege at paragraph 10, that the exhibition of the said motion picture films at the Cinema I here and above alleged constitutes a public nuisance as described in the public nuisance statute, State of Ohio.

He then went on further to say that for the following reason and explained what depictions were in violation of these -- specific depictions were in violation of the state statutes and those are recited in detail at pages, C pages, C 12 through C 13 of the appendix.

Now, having stated what the films were, what they -- having shown pictorially what they were, having described the acts which were contained therein which were in violation of the state law, he then asked for the following prayer that the nuisance before it was abated by order of the court and that the defendants and all of them, and all persons acting by or through them be restrained from exhibiting said motion picture films in the State of Ohio.

At the same time, having filed the civil action, he asked for a provision or remedy which is allowed under the statute and that is the motion for preliminary injunction.

If filed, the hearing must be had within 10 days and upon five days notice.

He did file the motion for a preliminary injunction and the matter did come up for a hearing which time the court viewed four films which had been under subpoena.

The court viewed the entire four films and on October the 24th, issued and this was in an adversary hearing in which the defense counsel appeared, and responded and provided and offered their defense.

The court issued -- filed its order in October the 24th in which he said that the nuisance does exist as alleged by the prosecutor.

He then ordered the Cinema I Theatre closed forthwith for any purpose of lewdness to with the projection of screening of lewd, indecent, lascivious or obscene films.

But in addition, having closed it temporarily, he said that the Court orders that the defendant shows cost if only they can, why this closing order should not be made permanent as of this date.

Having found that the public nuisance did exist after a trial in the merits, the court under the statute was required -- the defendants were required to come forward and show that the nuisance have been abated or give on.

And the order on October 24th to the defendants was to come forward and show either that the nuisance had been abated or wandered -- come forward with some other remedy you may have under the statute.

Instead, the defendants marched over to the federal court and file an action, William Dicota versus Faren Gaelach (ph), the investigators involved in which they pleaded the complaint itself.

So, they set before that the Federal District Court a complete recitation of what was involved in the state court proceeding.

The Federal District Court knew exactly what was in the state court.

Justice William H. Rehnquist: Does the Federal District Court in this case set in Lima or do you have Toledo?

Mr. James J. Clancy: Toledo, Your Honor.

Justice William H. Rehnquist: But in the Allen County proceeding, the state proceeding was in Lima?

Mr. James J. Clancy: Yes Your Honor.

In this action, a hearing was held before -- correction, the matter came up and the -- out of that hearing an order was issued by Judge Walinski interfering with the preliminary injunction which is issued by the state court and he ordered that the state injunction be stayed, insofar as it affect that showing films which have not been held to be obscene or prior adversary hearing.

So, he said, “You can't padlock it.”

So, at that point, the prosecutor went in and filed a motion and he said, he brought before the Court two other films, Sexual Freedom Now and Shootout at Beaver Halls, and started another proceedings forgetting all about the preliminary injunction.

At the end of other adversary hearings in which the defense counsel was present and after presentation of evidence and 12 additional films, the Court entered its final injunction on November the 30th, finding the allegations of the plaintiff's complaint, verified complaint true.

And finding that in -- had engaged in a course of conduct of displaying motion picture films at the Cinema I Theatre which were obscene and that the course of conduct in the continuing exhibition of the films constituted nuisance under the statute he permanently enjoined and restrained them from conducting the said nuisance and he continued, he continued paying no attention what the federal court did.

He continued his order, the padlocking.

Thereupon in having filed the final order, the defendants could've taken an appeal but no, they left that matter stand and they went back into the federal court, this time with a different defendant, Pursue Limited, saying that Pursue Limited is a new assignee.

He purchased his interest in November the 17th while this matter was entrained and now he wants to litigate the same thing over.

Well, thereafter, Mr. Huffman in a series of most and what he moved for a further relief, he was completely frustrated.

Out of that -- having filed that on December the 1st, the Court issued a temporary restraining order, once again nullifying the padlock provision.

Now, following that then the prosecutor went back again in the state court and started hearings again and what did the defense counsel do -- but he removed the case entirely to the federal court again, so the state court couldn't do anything.

And --

Justice William H. Rehnquist: What was -- was their a motion to remand made?

Mr. James J. Clancy: There were two, not one but two.

There was motion to remand and a motion for an immediate hearing made on December the 18th, nobody paid any attention to it.

On February, two months later, in February the 12th, another motion for immediate hearing under remand, nothing was ever done to it.

That case was not remanded.

It was dismissed under the Pursue Limited decision and that case now is on appeal to the Court of Appeals.

In addition on the motion for -- the motion to dismiss a complaint as a sham pleading, the prosecutor made the claim.

He said this is a sham pleading, you have before you the complaint in the trial court, you know what the evidence was in the trial court, you know what has been shown by the defendants under the federal court order restricting the state action, they continued to show the pornographic films.

He took time motion studies and brought them before the federal court and said here's what they're showing under the cover of your order and still nothing was done by it.

Chief Justice Warren E. Burger: It may appear somewhere in this record voluminous as it is but I have missed it, is the state Attorney General figure in these proceedings or as each County or District autonomous?

Mr. James J. Clancy: He took no part Your Honor.

He is required to --they require to name him under the -- under the attack in the stature but he took no active part, no Your Honor.

Justice Potter Stewart: The statute, the prosecuting attorney can initiate the action or any private citizen?

Mr. James J. Clancy: That's correct Your Honor.

Justice Potter Stewart: But not the state attorney general, excepted so far as he may be a private citizen?

Mr. James J. Clancy: That's right.

Oh, I see, you mean as in the original --

Justice Potter Stewart: As in -- initiating this --

Mr. James J. Clancy: Prior to --

Justice Potter Stewart: -- nuisance abatement action.

Mr. James J. Clancy: No, I was thinking -- I was thinking about a different --

Justice Potter Stewart: That can be done by any county prosecutor --

Mr. James J. Clancy: A private citizen.

Justice Potter Stewart: Or a private citizen.

Mr. James J. Clancy: Or a prosecutor.

Justice Potter Stewart: Correct?

Mr. James J. Clancy: Yes Your Honor.

Chief Justice Warren E. Burger: Then Ohio is like the majority of the states that the Attorney General does not control all the litigation in all of the counties and districts?

Mr. James J. Clancy: That's right Your Honor.

Chief Justice Warren E. Burger: The prosecuting attorney is in control.

Mr. James J. Clancy: Yes sir.

Oh, Justice -- this honorable Court, the history of this line of action which have just recount in September 18, 1972, over two years ago, those matters are not yet resolved and this is not an exceptional case.

It's the modus operandi for defense attorneys all around the country.

The -- there's carbon copies for this in every state in the union, really.

And I think, this -- I know from personal example that the State of California and the County of Los Angeles is in a similar mess and this Court has just noted the jurisdiction of a similar case, Hicks versus Miranda.

Now, the jurisdiction on that case would not begin to recount the events which are accounted -- which are occurring in the Federal District Court there.

That's simply a limited question on peripheral matters.

I think as I said before, this is not an exceptional case and I think that the -- it is in the essence that the prosecutors here have stayed with it, Mr. Huffman and Mr. Herman, they really stayed with it (Inaudible) through all of the federal interference and have pushed it along as they have.

In my opinion, they do not -- they should not be treated as they have in the federal Court.

As for example, being brought before that court and an order to show cause why they should not be held in contempt when following this Court's decision in June of 1973 and the failure of this Court to give them extra ordinary relief.

They came back and they said to the Court, they filed another action and attempted once again.

They were stopped immediately on an order to show cause why they should not be held in contempt.

It seems unbelievable to me that such a result should be obtained under the Civil Rights Act of 1871 when this Court in 1850 just 21 years before the Civil Rights Act was adopted; (Inaudible) versus Commonwealth, the suppression of nuisances in juries to public health and morality is amongst the most important duties of the Government.

It is the principle of the common law that the king cannot sanction a nuisance.

The autoptical evidence which was before the court below and the motion to dismiss the complaint as a sham pleading etcetera, brought to the Federal District Court clear knowledge of what was involved in the Allen County Common Pleas Court.

And it seems to me that the federal -- if this condition is to prevail, then it must be concluded the federal system of justice is underwriting to put it crudely and bluntly, cock sucking, and whore maundering which to me is completely in violation of my thinking of an American way of life and the American justice.

Now, that's the first time I've ever used those words in my entire life and you know, I think it's appropriate that I use it now so that this Court understand what is occurring in the federal court system.

I say the majority of this Court does not want this to come about.

I know the Miller decisions in '73 and the Hamlin decision clearly say this is not the way it should be.

They've cut the defenses away from all of the defense attorneys.

They've taken away everything they have and I just hope that they will recognize the sincerity of this appeal.

And do likewise, and see that the defenses are taken away from -- I mean, the public nuisance --

Justice Potter Stewart: Mr. Clancy, you didn't -- I don't think I heard you mention that the case of Younger against Harris, do you think that's --

Mr. James J. Clancy: No Your Honor.

I think that its --

Justice Potter Stewart: It has nothing to do with this.

Mr. James J. Clancy: -- should be decided on the matter of the res exception which is a jurisdictional matter.

As I understand, Younger versus Harris has to do with -- we have jurisdiction but we -- you're not to exercise it.

As the matter, the case is properly before the federal court, I'm saying that it's not properly in that court.

There's no power.

In Donovan versus Dallas, this Court so held that the power of the federal -- that state court -- when it's in the federal court, the state head court has no power to act in that case.

Similarly, Orton versus Smith, they said, “When the state court has it, the federal court has no power.”

And that effect of this will be to permit the prosecutors to take this in the state court and to take it up through the United States without interference and this thing has got to come about if this is going to be whipped.

Justice Potter Stewart: So, you don't think Younger against Harris has any relevance here?

Mr. James J. Clancy: Why -- if you abandoned my -- I think it does.

That's another argument but I would prefer to place all of my way down in the res exception because the entire body of the law in this area says that that is the law.

And I think that if this Court does follow with the lies on this matter, it has to apply it.

Chief Justice Warren E. Burger: Mr. Deitch.

Argument of Gilbert H. Deitch

Mr. Gilbert H. Deitch: Mr. Chief Justice, and may it please the Court.

First of all, firstly on Mr. Justice Stewart, the Attorney General of the State can bring the action to abate a nuisance under .03 of this statutory scheme, either the Attorney General of the State, the prosecuting attorney or a private citizen.

Chief Justice Warren E. Burger: Ordinarily, is it true in Ohio as it is in most states that the Attorney General leaves it to the local prosecution?

Mr. Gilbert H. Deitch: Honestly, Mr. Chief Justice being a Georgia lawyer and not an Ohio lawyer, I don't know but upon an advice of Ohio counsel that is the case.

Briefly, with regard to this action, Mr. Huffman as prosecuting attorney filed the suit to close Cinema I Theatre in Lima, Ohio, under the 3767.01 and following statutes.

Interesting to note -- it is interesting to note that under the Ohio's scheme, a tenant, a pure tenant has no right once a temporary injunction is issued to abate.

Has no right to get bond, only one, the real property owner or two, a personal property owner.

So, if Pursue Limited or United Artist has a right only to do business within the theater once a temporary injunction is issued that entity is foreclosed pending a final decision.

This is exactly what happened in the state action.

Once there was a hearing, a temporary injunction issued.

Mr. Dakota went in to federal court because he had no relief in a state court.

Justice William H. Rehnquist: Well, don't you have a right to appeal from the order of the Court of Common Pleas granting the injunction to the Ohio Court of Appeals?

Mr. Gilbert H. Deitch: Not a temporary injunction Your Honor.

Justice William H. Rehnquist: Not a temporary injunction?

Mr. Gilbert H. Deitch: No, sir.

And according to -- I think at the C-22 of the appendix, there was a motion made by Mr. Dakota's counsel to stay the order, the temporary injunction which was denied.

Justice William H. Rehnquist: Well, of course you can apply to an appellate court for a stay and it can be denied and that doesn't mean that you don't have a right to appeal in the normal courts even if the appellant court won't grant you a stay?

Mr. Gilbert H. Deitch: The Supreme Court of Ohio in 1973 in State ex rel. Ewing versus “Without a Stitch” said that, “It was error for the trial judge to allow a motion picture to continue to show pending after a temporary injunction pending appeal.”

So, if a rationale is carried to a whole establishment, then it is error to allow the establishment to stay open or to grant a stay pending final determination.

Justice Potter Stewart: But that doesn't go to my Brother Rehnquist's question as to the right of appeal.

Does it?

Mr. Gilbert H. Deitch: It's my understanding of Ohio law that there is no right of appeal at this stage of the proceedings.

Justice William H. Rehnquist: It'd be one of the very, very few jurisdictions I've ever heard on for after a temporary injunction was issued on the hearing, you didn't have a right of appeal.

I don't claim to know Ohio procedure --

Justice Potter Stewart: I passed the Ohio Bar exam once and the -- unless the law has change that was my impression there was right of appeal.

Mr. Gilbert H. Deitch: At this point in time, when the federal law suit was filed.

It was -- there were theaters which had been closed, I think it was a case of first impression before the Lima of the Allen County Court of Appeals but the appeals court sitting in that had countered and it is purely discretionary with that court whether to grant a stay of the trial court's order or not.

Justice Potter Stewart: Well, that's something --

Justice Harry A. Blackmun: It seems (Voice Overlap) if we have a -- an Ohio -- a case involved in Ohio statutory or Ohio procedure with a California lawyer on one side and a Georgia one on the other?

Mr. Gilbert H. Deitch: Well, let me explain this, Mr. Justice Blackmun.

Mr. Dakota was not represented by myself.

Mr. Dakota in November transferred his right to do business to my client, Pursue Limited.

Justice Harry A. Blackmun: Well, frankly, I'd like to know whether under the Ohio procedure there is a right of appeal here and all you're able to say, according to your understanding, there is not.

Now, what is the answer to that question?

Justice Thurgood Marshall: Except, but we all have to look at that?

Mr. Gilbert H. Deitch: Or I will provide to the court an interpretation (Voice Overlap) --

Justice Thurgood Marshall: It is your position that --

Mr. Gilbert H. Deitch: Legislative or judicially.

Justice Thurgood Marshall: When you have an abatement of the nuisance there's no right of appeal, that's what you say?

Mr. Gilbert H. Deitch: Yes, sir.

Justice Potter Stewart: Well, a lot of Stitch case did go all the way to Ohio Supreme Court, it didn't get -- it had to get there somehow presumably.

Mr. Gilbert H. Deitch: On permanent injunction, yes sir.

Justice Potter Stewart: That was after a permanent injunction.

Mr. Gilbert H. Deitch: Yes, sir.

Justice Potter Stewart: I think if I'm not mistaken we have another petition for certiorari pending here, maybe is that case from the Higher Supreme Court involving the same nuisance statute?

Mr. Gilbert H. Deitch: Possibly but its position with regard to Younger versus Harris that which I -- Your Honor has been inquiring to Mr. Clancy.

His position of the appellee in this case, that now Younger will not apply -- notwithstanding whether it's a quasi act or criminal activity or civil activity, the Ohio Supreme Court has held this very statutory scheme to be constitutional based as Mr. Clancy said, “Because trouble upon one motion picture.”

And it said that, if that motion picture is shown to be obscene, that the court shall issue a temporary and then shall issue a permanent injunction.

Closing the theater, selling the assets and permanently -- well, for one year, closing the premises down.

Upon temporary and permanent injunction or permanent injunction the real estate, the real property owner or the personal property owners can come in and at the discretion of the trial court, they can be released of the lease or the personal property such as a popcorn machine or book racks or whatever if it is a magazine or a bookstore or a theater.

Now, with regard to the state proceedings when this civil case was filed against Mr. Dakota by the prosecuting attorney, once the temporary injunction was filed his counsel based upon the fact that he had no standing as purely the licensee or the lessee to seek a bond from the trail court.

He did ask for stay which was denied and the question of appeal at that point is -- I will admit open.

However, at that point in time his attorney had to make a choice.

What do I do now to keep this padlock provision from coming into play?

So, you went to Judge Walinski.

He went to Toledo and Mr. Justice Rehnquist, I have made the trip.

It's about an hour by car.

The district judge upon an 1983 action did not stay or enjoin any criminal prosecution.

He did not enjoin the -- our state injunction against certain motion picture films.

He merely said that as far as the closing of a theater I'm going to stay that portion of the injunction until abstention or -- considering abstention this is in his order, until the trial court has a final hearing and looks at this case in light of Near versus Minnesota.

So, the state was free to prosecute, the state was free to file contempt charges for showing certain motion pictures at that point in time.

This is in October 26, Justice -- Judge Walinski issued this order.

Justice William H. Rehnquist: But it wasn't free to enforce its temporary injunction?

Mr. Gilbert H. Deitch: Not to close -- to padlock the theater which it did.

The sheriff of Allen County went out to put a padlock around on the doors when Judge Walinski's order was issued.

They were taken off and the Motion Picture Theater continued to do business under the stay.

Thereafter --

Justice Thurgood Marshall: You said (Inaudible) was free to bring contempt charges?

Mr. Gilbert H. Deitch: For a certain Motion Pictures which had been found to be obscene by the trial court, the state trial court.

Justice Thurgood Marshall: I thought the injunction was against for the stayed action?

Mr. Gilbert H. Deitch: No, sir.

It was against the --

Justice Thurgood Marshall: Padlock.

Mr. Gilbert H. Deitch: -- closure -- purely, the padlock.

Justice Thurgood Marshall: They continued padlocking?

Mr. Gilbert H. Deitch: No, once Judge Walinski's order was issued, the padlock was taken off.

Justice Thurgood Marshall: What, the padlock is taken off, then how can you get contempt?

Mr. Gilbert H. Deitch: Well, as Judge Walinski said this doesn't affect an injunction against exhibits A through Z or exhibit 1 through 45 which the trial court found to be obscene.

Only against those movies which had not been adjudicated to be obscene.

Justice Thurgood Marshall: And that's final now, isn't it?

Mr. Gilbert H. Deitch: Well, after Judge Walinski issued this order.

Justice Thurgood Marshall: Without this Federal Court order, that injunction is final.

Mr. Gilbert H. Deitch: No, that was a temporary injunction, at that point in time.

Justice Thurgood Marshall: Well, this -- well it -- have they had any hearing since then?

Mr. Gilbert H. Deitch: Yes, sir.

Justice Thurgood Marshall: Once, Judge Walinski issued his order.

Mr. Gilbert H. Deitch: Then it came on --

Justice Thurgood Marshall: How long did the temporary injunction enforced -- applied, I was going to ask you how long is a temporary injunction by the law --

Mr. Gilbert H. Deitch: Well, the temporary injunction was issued on December --

Justice Thurgood Marshall: How long is it valid in Ohio?

Mr. Gilbert H. Deitch: Until the final hearing on the permanent injunction.

Justice Thurgood Marshall: It lasts forever?

Mr. Gilbert H. Deitch: Well, the statutory scheme says, this -- this case shall not -- you don't have to bring it on within 10 days or with 15 days.

It merely has priority over all cases except criminal cases and a few others listing those cases.

Justice Thurgood Marshall: And so, still in effect except for the Federal Court order?

Mr. Gilbert H. Deitch: Well, it was still in effect at that time except for the padlocking --

Justice Thurgood Marshall: How about now?

Mr. Gilbert H. Deitch: Well, since that time, the matter came on for permanent injunction.

Justice Thurgood Marshall: That's what I thought.

Mr. Gilbert H. Deitch: Right, but before the permanent injunction, Mr. Dakota transferred the lease to Pursue Limited.

And then at the permanent injunction hearing Judge Lieb not withstanding Judge Walinski's order issued upon an injunction closing the theater for one year in ordering the $300.00 taxation --

Justice Thurgood Marshall: Well, how does that stand now?

Mr. Gilbert H. Deitch: So, after that permanent injunction, Pursue Limited went back in the federal court as party plaintiff and sued Mr. Huffman and noticed the Attorney General not naming him as a party defendant and asked for declaratory relief and injunction not against criminal prosecution but only against the padlock provisions of 3767.01 et seq. and the three-judge court declared only 3767.04 and .06 to be unconstitutional that is the padlock provisions.

And it left open an injunction against a named motion picture which could be brought by Mr. Huffman enjoining the showing of a named motion picture upon proof, and it left -- it didn't affect any criminal prosecution whatsoever.

It's our position at under this statutory scheme, it says that, “this is -- it follows a civil procedure and at Subsection 11, the sta -- legislative enactments says that this -- these procedures can come into play after a criminal prosecution.

So, if one motion picture film is -- the individual is indicted for showing a motion picture film and convicted then the entire theater can be closed.

Justice Potter Stewart: Under the statute, it's not -- I didn't find it in the appellant's brief, is it where it ought to be?

Mr. Gilbert H. Deitch: It's in the --

Justice Potter Stewart: I think its there?

Mr. Gilbert H. Deitch: --appendix, Your Honor at page b (3).

Justice Potter Stewart: B (3).

Mr. Gilbert H. Deitch: Through b (10).

Justice Potter Stewart: Thank you.

Justice William O. Douglas: I take it for after the permanent injunction before the -- after that the case was started in the district -- Federal District Court, it might have been an appeal where the Court of Appeals in Ohio?

Mr. Gilbert H. Deitch: Yes, sir, there could have been an appeal from the permanent injunction.

However --

Justice William O. Douglas: And that was what?

It could have been and that was not taken, I take it.

Mr. Gilbert H. Deitch: No, because when Mr. Dakota filed his suit, when he was the tenant the Court issued that the injunction for temporary restraining order and then once permanent injunction came down, Pursue adopted in our complaint the allegations and we're -- were said to be bound by lis pendens, then we assume the same position --

Justice William O. Douglas: But Pursue at that juncture -- after the permanent injunction have appealed the permanent injunction of the higher Court of Appeals?

Mr. Gilbert H. Deitch: It could have -- well, it wasn't the name defendant, merely served with papers by the sheriff.

It was not named as a party defendant in the state action.

Justice William O. Douglas: Well, who could have appealed the permanent injunction?

Mr. Gilbert H. Deitch: Well, I would imagine that Mr. Dakota could have appealed in name sake only or --

Justice William O. Douglas: Now Pursue went into the federal court, is that it?

Mr. Gilbert H. Deitch: Yes, sir.

Justice William O. Douglas: And sought a restraint against enforcement of the padlock injunction?

Mr. Gilbert H. Deitch: Yes, sir.

Merely the padlock not to enjoin --

Justice William O. Douglas: Well, you could've gone in the federal court to do that.

Mr. Gilbert H. Deitch: I beg your pardon.

Justice William O. Douglas: If you could go under the Federal Court as you did, why couldn't you have taken on the appeal from the permanent injunction?

Mr. Gilbert H. Deitch: Because of the manner of the First Amendment and the discretionary aspect of the Court of Appeals --

Justice William O. Douglas: That doesn't answer my -- may I suggest, why could you not -- Pursue not have appealed --

Mr. Gilbert H. Deitch: Technically --

Justice William O. Douglas: -- for permanent injunction?

Mr. Gilbert H. Deitch: Technically --

Justice William O. Douglas: Not technically, could it have?

Mr. Gilbert H. Deitch: It could have appealed.

Justice William O. Douglas: But chose not to but to go to the federal court.

Mr. Gilbert H. Deitch: It chose the federal forum to ask for declaratory relief and injunction against the padlock provisions.

Justice William O. Douglas: Does that raise a Younger question?

Mr. Gilbert H. Deitch: I believe at Younger is not applicable because this is purely civil proceeding and this Court left the question open in Younger.

Justice William H. Rehnquist: But hadn't all these issues that you raised in the federal court already been decided in the state court, why should you have enough doing relitigate them in the federal court?

Mr. Gilbert H. Deitch: Well, the matter we were -- as Dakota was already in the federal court, he chose his forum where to be heard.

He could have filed the suit declaratory judgment in a state court.

Justice William H. Rehnquist: Well, but quite a part from his filing a suit, weren't these issues litigated in the nuisance proceeding?

Didn't you raise these defenses there?

Mr. Gilbert H. Deitch: No, not Pursue Limited because I as counsel for Pursue appeared at the permanent injunction hearing and Judge Lieb asked me if I was a member of --

Justice Byron R. White: (Voice Overlap) lets just assume the property hasn't changed then?

Mr. Gilbert H. Deitch: Yes sir, yes sir.

Justice Byron R. White: Well, didn't -- was there a final judgment in the --

Mr. Gilbert H. Deitch: But the federal litigation had been commenced before final judgment.

Justice Byron R. White: I know but what's the rule on res judicata?

The state proceeding in the state's nuisance statute finished before the federal action?

Mr. Gilbert H. Deitch: No sir, the federal action was started before the permanent injunction.

Justice Byron R. White: Well, and -- but what include it?

Mr. Gilbert H. Deitch: No.

There was a temporary restraining order.

Justice Byron R. White: Well, if they're two suits going on at the same time, probably the same issue but the one that finishes first normally becomes res judicata, the other?

Mr. Gilbert H. Deitch: Then, if that's the rationale then --

Justice Byron R. White: What (Voice Overlap) --

Mr. Gilbert H. Deitch: -- Pursue or Dakota would be precluded from -- if they file an appeal then the federal court would say, “Well, you're going up on the state ladder.”

Justice William H. Rehnquist: So as every other party that once litigates and once for one firm and seeks to transfer in mid-stream to another.

Justice Byron R. White: (Voice Overlap) res judicata.

Justice William J. Brennan: Well, did Huffman interpose as a defense to the federal suit res judicata?

Mr. Gilbert H. Deitch: Not to my knowledge, no sir.

Justice William J. Brennan: Well, I supposed that's the answer, the res judicata question, isn't it?

Mr. Gilbert H. Deitch: I don't --

Justice William J. Brennan: It's the defense isn't it, that either had to interpose?

Mr. Gilbert H. Deitch: I do not believe he raised that as a defense entered in the court.

Justice William J. Brennan: But if he didn't then I supposed that's out of the case but that doesn't take the Younger question out, does it?

Mr. Gilbert H. Deitch: It's our position -- there is a Younger question -- the following Younger --

Justice William J. Brennan: It's your -- your position is that the Younger principles apply only to pending criminal prosecutions.

Mr. Gilbert H. Deitch: That's correct.

Justice William J. Brennan: And not to this civil.

Mr. Gilbert H. Deitch: And if the court would --

Justice William J. Brennan: I know as I understand it this civil if that's what it is.

Mr. Gilbert H. Deitch: Yes, sir.

Justice William J. Brennan: Our proceeding is in aid of a possible criminal prosecution, isn't it, under that statute?

Mr. Gilbert H. Deitch: Now, it separate and distinct from a criminal prosecution.

Justice William J. Brennan: Not in aid of?

Mr. Gilbert H. Deitch: Well, it refers in the last subsection that this is a separate procedure from criminal procedure.

So, it is our position that if the court says, this is a “court criminal proceeding” then Younger -- the exceptions we would submit under Younger versus Harris --

Justice William J. Brennan: Which one?

Mr. Gilbert H. Deitch: -- are there.

That is a great and immediate irreparable harm.

That is --

Justice William J. Brennan: First Amendment argument?

Mr. Gilbert H. Deitch: Yes, sir, the closing of the theater.

Chief Justice Warren E. Burger: Well, did -- to what extent was that tried out to where it was, the content of these films tried out in the state courts?

Mr. Gilbert H. Deitch: The content of the films with what -- at this point in time at the filing of Mr. Dakota's complaint, at the filing of Pursue's complaint to final judgment and by the federal court on April the 20, 1972, the only procedures to my knowledge against the defendants in the state action was a civil proceeding which doesn't allow them --

Chief Justice Warren E. Burger: Well, did they try out the issue of obscenity of the film?

Mr. Gilbert H. Deitch: The judge sitting without a jury did say these films presented to me are obscene.

Chief Justice Warren E. Burger: And that's his final judgment?

Mr. Gilbert H. Deitch: That was his judgment.

Now, the question is mere -- allowing the state to go through the civil proceeding, one changes the burden of proof, and two disallows the defendants in the state action, a right to a jury trial and this Court is set, part of the test of obscenity to be the contemporary community standard.

So at least this should allow -- that should not be allowed with regard to this case for a judge to say, to rubberstamp, this is obscene, this is obscene, this is obscene.

We should have a right to a jury trial.

Justice William H. Rehnquist: Well, do you read the community standard language in the various obscenity opinions of this Court as mandating a jury trial in the civil proceeding where the state doesn't choose to provide one?

Mr. Gilbert H. Deitch: I'm saying that to allow the state court to padlock an establishment based upon one judge --

Justice William H. Rehnquist: Are you going to answer my question?

Mr. Gilbert H. Deitch: I'm sorry Your Honor -- Mr. Justice Rehnquist, would you please repeat it?

Justice William H. Rehnquist: Yes.

Do you read the community standards language of the various opinions of this Court dealing with obscenity as mandating a jury trial in a civil proceeding where the state doesn't choose to provide one?

Mr. Gilbert H. Deitch: Not -- no sir.

But I'm saying that at least that the members of the community should the opportunity to pass upon the motion pictures not merely a judge --

Chief Justice Warren E. Burger: But they have through the state -- they have indirectly as Mr. Justice Rehnquist suggest, by the state legislature having vested the power to decide that factual issue in a single judge instead of a jury of six or 12 people?

Mr. Gilbert H. Deitch: In a single judge for the motion pictures presented to him.But then you get to the question of the over breadth of the statutory scheme and his order, closing in future, in future of the showing of any motion picture --

Justice William J. Brennan: Well, I know some have argued that the First Amendment requires a jury trial.

You can't say in a civil proceeding the Seventh Amendment has never been extended to the state but there have been some who have argued that because of the First Amendment overtones of the obscenity here, that there is a constitutional First Amendment requirement of a jury trial.

This Court's never said that, has it?

Mr. Gilbert H. Deitch: I don't believe so.

Now with regard to Younger versus Harris, I'd like to reiterate that the State Court of Ohio, the State Supreme Court in syllabus four of State ex rel. Ewing versus “Without a Stitch” and the syllabus or the syllabi in the opinions of the opinions are the law of the state has ruled that the theater can be -- a theater can be padlocked based upon that one motion picture film.

Therefore, to send the matter down, back down to the District Court to say a way the state court proceeding, this is futility because the state court has passed upon the statutory scheme.

And as early as 1971, the Supreme Court of Ohio --

Justice Potter Stewart: In other words that -- the litigant of that case I gather did not go to a federal court, he just went up through the state court system, is that right?

Mr. Gilbert H. Deitch: Yes, sir.

Justice Potter Stewart: And now as petition for certiorari here, is that correct?

Mr. Gilbert H. Deitch: Yes, sir, yes sir.

Justice Potter Stewart: And presumably if this Court should find the question to be a worthy of a grant of certiorari, we would grant it and decide the constitutionality of it, correct?

Mr. Gilbert H. Deitch: That's correct.

But the highest judicial body of the State of Ohio has ruled.

Justice Potter Stewart: Subject to --

Mr. Gilbert H. Deitch: Subject to review by this Court.

Justice Potter Stewart: Our certiorari jurisdiction?

Mr. Gilbert H. Deitch: Yes, sir.

Justice Potter Stewart: And I think a petition for certiorari has been filed and is pending, isn't it?

Mr. Gilbert H. Deitch: I do not know.

Justice Potter Stewart: In other words, the very -- the fact that the Highest Court of the state has ruled against you, hardly in and of itself makes it appropriate for the Federal District Court to rule, does it, under the --

Mr. Gilbert H. Deitch: Well, it's my understanding that as far as an authoritative judicial construction by the Highest Court of the state, if this Court says that court is wrong, that would change.

However, at this point in time until this Court says that, if the District Court was said to -- this Court order the District Court to abstain or dismiss the case then there would be an immediate re-imposition of the padlock provisions until this Court passed upon --

Justice Potter Stewart: Under the law of Ohio which is the law of that state and until or unless it's reviewed and they revised or reversed by this Court, isn't that right?

Mr. Gilbert H. Deitch: Yes, sir, yes sir.

Justice Thurgood Marshall: Or if continued by that court.

Justice Potter Stewart: By the Highest Supreme Court.

Justice Thurgood Marshall: Yeah.

Mr. Gilbert H. Deitch: On remand it could.

Justice Thurgood Marshall: No.

It might change it to this case?

Justice Lewis F. Powell: In the decision of the Ohio Court in the case “Without a Stitch” this statute was construed more narrowly than it had been construed previously, was it not?

Mr. Gilbert H. Deitch: Your Honor, reading the syllabus four -- maybe I don't understand the import of --

Justice Lewis F. Powell: Well --

Mr. Gilbert H. Deitch: -- your question Mr. Justice Powell.

Justice Lewis F. Powell: Wasn't the original state injunction directed not nearly to films that had been found to be obscene but also to any films that might be shown in the future?

Mr. Gilbert H. Deitch: And without --

Justice Lewis F. Powell: It was the original injunction, wasn't it?

Mr. Gilbert H. Deitch: In Lima, is that what Your Honor is referring to?

Justice Lewis F. Powell: The case that's before us today.

Mr. Gilbert H. Deitch: Yes, sir, yes, sir.

Justice Lewis F. Powell: Now, the Ohio Court in the case that I referred to, “Without a Stitch” as I read that opinion, limited the effect to the statute only to films that had been found to be obscene, is that correct?

Mr. Gilbert H. Deitch: No, sir.

I don't read the opinion as that limited.

It said that film is obscene and that film is enjoined.

However, the statutory scheme in Ohio says, “The court shall issue an order closing the theater and selling the personal property, imposing a tax of $300.00.”

And sells --

Justice Potter Stewart: Closing the theater for a year.

Mr. Gilbert H. Deitch: That's correct.

Justice Potter Stewart: Subject to -- in a bond and then the property owners could come in during the year and say that they're repented and they are not going to do this anymore.

Mr. Gilbert H. Deitch: The property owners but not the tenant who doesn't have any interest in the property in the theater.

And with regard to appealing the matter through the state channels, it could be argued by the state but if the dockets being heavy, the matter may take more than a year to reach the final resolution and become moot.

Justice William J. Brennan: But are you arguing Mr. Deitch that you didn't go to the Supreme Court of Ohio with this case because the result was a foregone conclusion after the Supreme Court of Ohio's decision in “Without a Stitch”?

Mr. Gilbert H. Deitch: No, at the time this permanent injunction was issued, I -- we felt that to go in the federal court because the Supreme Court of Ohio in an early case in 1971 it said, “A motion picture film can be enjoined and the nuisance provisions under these schemes can be invoked.”

Justice William J. Brennan: Well, that's --

Mr. Gilbert H. Deitch: So, based upon that judgment --

Justice William J. Brennan: Or maybe I have the wrong reference that was not in the “Without a Stitch” decision but in another decision of the Ohio Supreme Court?

Mr. Gilbert H. Deitch: Yes, sir and --

Justice William J. Brennan: But many events it's because of that decision that you went into the federal forum instead of going to the Ohio Supreme Court?

Mr. Gilbert H. Deitch: That was part of the rationale and once the temporary opinion and order of Judge Walinski was entered staying the closure there wasn't -- we felt there's no reason to go in to state court and have the state come in and say, “Look, they've appealed in the state court, dismiss it for this reasons.”

We chose our forum.

Justice Potter Stewart: The “Without a Stitch” decision, it was announced by the Supreme Court of Ohio on February 27th of this year, you didn't have the benefit of that at a time?

Mr. Gilbert H. Deitch: No, sir.

Justice Potter Stewart: In -- this litigation in Lima, Ohio, did you?

Mr. Gilbert H. Deitch: No, sir.

Part of the rationale was State ex rel. Keating versus Vixen.

Justice Potter Stewart: Oh, yes.

Mr. Gilbert H. Deitch: It was a per curiam opinion and the Court said that, “They could enjoined the showing of Vixen and apply the 3767 Provisions which they said .02 et Seq. which included the abatement.

Justice Potter Stewart: In contrary to a suggestion in the question of my Brother Powell instead of a narrowing this business statute the Supreme Court of Ohio in the “Without a Stitch” case, if anything seems to broaden it, if I read paragraph one of the syllabus correctly, it says, “The exhibition of a single obscene motion picture is sufficient to render a theater a nuisance as defined in Revised Code, no numbers, which means that on the basis of a showing of a single picture this place could be showed -- closed up for a year.

Mr. Gilbert H. Deitch: That syllabus --

Justice Potter Stewart: That's syllabus four --

Mr. Gilbert H. Deitch: Syllabus 4 says, “It -- the Court shall issue an order --

Justice Potter Stewart: Right.

Mr. Gilbert H. Deitch: -- permanently closing it.”

And it construed in “Without a Stitch” shall mean just that.

Justice William J. Brennan: You're not an Ohio lawyer I understand but I understand the syllabus is the law.

Justice Potter Stewart: Yes, he told us (Voice Overlap).

Mr. Gilbert H. Deitch: Yes, sir.

With regard to the merits of closing a theater, I think that Mr. Clancy's position is abominable.

I don't agree with that at all.

How can you label a theater nuisance and enjoin justice in Near, the showing of any motion picture.

In Near said -- it said whether it's a rise of the problem whether it's personal property problem enjoining people.

Near said, “Look at the substance.

Look at the substance of what injunction is and obviously the injunction is against people, people showing motion pictures.”

And if the court feels that, it should pass upon the merits as I think it should, I think the trial court -- the three-judge court properly passed upon the merits.

I think the decision of that court was proper.

I think this Court should affirm that decision based upon prior restraint and this statutory scheme being in violation of the First Amendment and the Fourteenth Amendment of the constitution.

Justice Byron R. White: Can I ask you -- Could I ask you, I see on -- in the appendix, page O18 and O19.

Does it -- on November 30, 1972 the Court of Common Pleas issued a permanent injunction closing this theater.

And then on December 1, the federal court issued a temporary restraining order ordering that there be some adversary hearing?

Mr. Gilbert H. Deitch: That the order -- padlocking order be stayed pending a three-judge court hearing, just the padlock provision.

Justice Byron R. White: Well --

Mr. Gilbert H. Deitch: That the order closing the theater.

Justice Byron R. White: I'm just saying – I'm just saying I'm saying on though the three-judge court issued it's a -- issued it's an injunction on December 1st?

Mr. Gilbert H. Deitch: That's correct.

Justice Byron R. White: And it ordered some adversary hearings in the state court?

Mr. Gilbert H. Deitch: No, sir.

Justice Byron R. White: But that what's this motion says, you agree with this recitation?

Mr. Gilbert H. Deitch: The federal court on the December 1st merely stayed the padlocking.

It didn't order the Court to have adversary hearings, it said that there's an injunction --

Justice Byron R. White: Unless there are some --

Mr. Gilbert H. Deitch: If their adversary hearing is as the motion pictures that injunction is not bothered at all.

Only the padlocking provisions pending the three-judge court.

And on November 30th, after I --

Justice Byron R. White: But anyway on November the 30, I take it there was a permanent injunction?

Mr. Gilbert H. Deitch: Yes, sir, issued by the state court.

Justice Byron R. White: And the --

Mr. Gilbert H. Deitch: After Judge Walinski said --

Justice Byron R. White: And don't you think that was appealable?

Mr. Gilbert H. Deitch: Well, based upon the fact --

Justice Byron R. White: Well, was it or not?

Mr. Gilbert H. Deitch: That order was appealable but based upon the fact we were already in the federal court.

Justice Byron R. White: Yeah, while you preferred to get in an injunction the next day?

Mr. Gilbert H. Deitch: That's right.

Rather than go to the discretionary -- discretion of the appellate courts to grant us a stay and the time limits -- that was a decision made to go in the court based upon what Judge Walinski had earlier ruled.

Chief Justice Warren E. Burger: What is the --

Justice Lewis F. Powell: But Younger against Harris applies to a civil action?

Mr. Gilbert H. Deitch: I beg your pardon?

Justice Lewis F. Powell: You see, if the Younger against Harris principles apply on the civil side, are you in difficulty?

Mr. Gilbert H. Deitch: No, sir.

I believe we have the requisite great and immediate danger.

Obviously, the judges used an order two o'clock and the theater is disclosed by three o'clock to be chained.

Justice Lewis F. Powell: Despite the right to appeal from the permanent injunction issued in November 30th?

Mr. Gilbert H. Deitch: Yes, sir.

Justice Lewis F. Powell: Are you in difficulty?

Justice William H. Rehnquist: Younger against Harris itself, was it -- involved First Amendment claims?

Justice Potter Stewart: Well, you're --

Mr. Gilbert H. Deitch: Well, relating to criminal prosecution.

Justice Potter Stewart: As I understand your argument is that you clearly within the exceptional circumstances envisioned in Younger against Harris even assuming Younger against Harris applies?

Mr. Gilbert H. Deitch: Yes, sir.

Chief Justice Warren E. Burger: What is the situation right now, are the movies -- is it operating or isn't it operating?

Mr. Gilbert H. Deitch: I don't believe Pursue is operating in Lima at this time.

I believe the corporation still qualified to do business in the state.

Justice William H. Rehnquist: Is anybody operating the theater again?

Mr. Gilbert H. Deitch: I think the theater is in operation.

There is one other theater in Lima and if the argument is -- well, the theater -- the corporation can go elsewhere and show the movies.

That theater was well engaged and showing, I believe, Last Tango in Paris.

So, we'd be precluded there is but one other walk-in theater in the town of Lima, Ohio.

Chief Justice Warren E. Burger: You have two minutes, Mr. Clancy.

Rebuttal of James J. Clancy

Mr. James J. Clancy: Yes, Your Honor.

I'd like to make something clear about how this preliminary injunction issues and I'm reading now from b (5), I think the court has a misconception of what happens.

It says here, if at the time a granting a temporary injunction, it further appears that the person owning and control or in charge of the nuisance so enjoined had received five days notice of the hearing and unless such person shows to the satisfaction of the court of judge that the nuisance complained of is abated, then he issues the injunction.

But at the time he finds that there is a public nuisance exists, the defendant can abate say, “I've abated it.

I have withdrawn the film.”

Now on the case of “Without a Stitch” the defendant there notwithstanding the trial judge finding that it was an obscene film continued to show it and the court said, “Well, you can't do it.”

So, I suggest that under the circumstance in this case had the defendants come forward and said, “We're going to stop showing these pornographic films.”

They would not have been foreclosed because they would've shown to the -- at least they could have told or given some evidence to the judge that the public nuisance complained of have done abated.

The Ohio Supreme Court has said that, “If the defendant comes forward and does not show “Without a Stitch”, then that nuisance has been abated and the place cannot be padlock.

But it said that, “If there is a finding by the trial judge that a public nuisance does exist then he must padlock it.”

Now, there's been at least three cases filed in Toledo area, one is the “Deep Throat”, the other is the “Stewardess”, and the other is “Without a Stitch”.

All three of those have gone through the system and the Westwood Theater is still in operation.

It has even -- notwithstanding the fact that the order stands that it must be abated.

That theater has not been closed.

Justice Stewart was asking whether or not a state would prevent the business from being closed.

Now, taking a look at 3767.11 as to whether or not this is in aid of the statute 37 -- of -- in aid of the criminal law, 3767.11 says, “Procedure on nuisance establishing criminal proceeding, in a case the existence of a nuisance is established in a criminal proceeding, the public -- the prosecuting -- the attorney shall proceed promptly under Section 3767.01, which clearly says it's in aid of.

Justice Potter Stewart: Now the problem, as I understand your Brother on the other side, he says that the, “Going up through the state court system as -- gives him insufficient remedies, assuming that he has a good First Amendment claim because the State of Ohio Supreme Court has held that under this statute, it is error for the trial court to permit the continued showing of the movie pending appeal.

And that was held in this “Without a Stitch” case.

Mr. James J. Clancy: Well, what I'm saying that there's no right to show under constitutional principles.

Justice Potter Stewart: I know it's what you're just saying but --

Mr. James J. Clancy: To show after the trial court finds --

Justice Potter Stewart: Right.

Mr. James J. Clancy: -- that “Without a Stitches” is obscene.

Justice Potter Stewart: And pending --

Mr. James J. Clancy: The trial court finding is the determination.

Justice Potter Stewart: And pending an appeal from that finding the Supreme Court of Ohio says, “Its error under the statute to grant any sort of a stay and to permit these continued showing of the film.”

And reading it from the 37 Ohio State 2nd, page 104.

Mr. James J. Clancy: Right, I'm saying that the Ohio Supreme Court says, after the trial court finds that “Without a Stitch” is obscene.

Justice Potter Stewart: Right.

Mr. James J. Clancy: There's stay from it.

Justice Potter Stewart: Right and its error to grant a stay?

Mr. James J. Clancy: Yeah, that the theater owner has got to pull it then.

He's had his day in court.

You got to take it up on appeal.

That's the only thing that the Ohio Supreme Court has said.

Justice Potter Stewart: That's what I -- you're arguing.

Chief Justice Warren E. Burger: Case is submitted.