Hamar Theatres, Inc. v. Cryan

Eng- prosecutions by down on them Along lish-controlled courts. about INC., THEATRES, Plaintiff, HAMAR that time Letters of Junius were v. identity

written and the of their au- Individually CRYAN, John and as Sheriff day. thor is unknown Even County, of Essex of New State Papers, the Federalist written in fa- Jersey, al., et Defendants. adoption vor of the of our Constitu- tion, published were under fictitious CORPORATION, &C V THEATRE and plain anonymity names. It Jr., Plaintiff, Wilson, Edward N. has for sometimes been assumed purposes. most constructive Individually COLEMAN, Jr., M. James County as Prosecutor Monmouth recently We have had occasion to County, Jersey, al., State of et De- hold in two cases that there are times fendants. may and circumstances when States compel groups members en- Philip Guarino, A. Howard WEIN and J. gaged in dissemination of ideas to Plaintiffs, publicly be Rock, identified. Bates Little al., TOWN OF IRVINGTON et 480; for Ad- National Asso. Defendants. People vancement of Colored v. Ala- 472-73, A. Civ. Nos. 496-73 and 585-73. bama, 2 L.Ed.2d 1488. The for those reason Court, United States District holdings Jersey, was that identification D. might reprisal perfectly Civil Division. fear peaceful deter July 26, public matters discussions importance. This Los An- broad geles subject ordinance is same infirmity. it, We hold that like the Griffin, Georgia, ordinance, is void

on its face. contend the Tal- defendants

ley finding requires case that the stat- However,

ute is void on its face. there Angeles

is a distinction between the Los ordinance and The ordinance § barring

was a broad one distribution any place, handbills

any circumstances, without attribu- an statement. Section on the oth- hand, applies only

er to statements relat- ing concerning to or a candidate

President, Vice-President of the United

States, Representative a Senator or Congress.

Resident Commissioner That therefore limited

coverage requiring in federal fairness preclude anony-

elections and does not oppressive practices

mous criticism majority

and laws referred Talley; therefore, it is

Ordered motion to dismiss be hereby denied. Podvey Podvey, on Robert L. tion was based 42 U.S.C. & Sachs § Following plaintiff, 1343(3). J., Newark, for hear N. Hamar U.S.C. § ings complaints Theatres, of the three Inc. each convening concerning necessity Sodowick, Litt, V. S. Charles Michael three-judge three-judge panels, Newark, J., plaintiffs, N. for C & V pursuant court convened to 28 U.S. was Corp. Wilson, N. Theatre and Edward C. and 2284 to consider §§ Jr. three actions a consolidated matter.2 Harvey Weiss, Stern L. Weiss & complaint A consolidated amended J., Maplewood, plaintiffs, for N. Howard July filed in of 1973. Philip A. Wein and J. Guarino. Baime, Deputy Atty. Gen., David S. Jersey, Div. Crim. Jus- State New PARTIES tice, J., Orange, defendant, East N. for Theatres, Inc., Plaintiff Hamar a New George Attorney Jersey, of New General Jersey corporation, operates motion Kugler. F. picture as the Treat The- theater known Ralph Jabbour, Prosecutor, Asst. J. Newark, Jersey. Hamar atre Newark, J., defendant, Joseph N. P. sexually past has in orient- exhibited Lordi, County Essex Prosecutor. continue ed adult films and intends to MacDuffie, County Jr., Prosecu- Allen It is un- such the future. exhibitions defendant, tor, Freehold, J.,N. April 1973, 5, eontested that on a certain Coleman, County Monmouth

James M. being ex- film entitled “Fast Ball” then Prosecutor. Theatre, seized the Treat hibited at was Legal Rosenberg, Daniel A. Asst. by County Essex un- Sheriff’s detectives Prosecutor, Irvington, J., for N. defend- County der the direction of Essex Sher- Irvington ants, Town of and others. Cryan County iff and Prose- John Essex Joseph Lordi, cutor P. both defendants Judge, ADAMS, and Before Circuit in this action. The films were seized Judges. GARTH, and District BARLOW by pursuant search issued warrant Fusco, Ralph L. New Jer- the Honorable Judge: GARTH, District sey Superior Judge, the by strength fil commenced the of an of a This action was affidavit Sheriff’s Judge ing separate complaints seizure, in detective. Prior to the of three challenged Moreover, 1973,1 April of all of which Fusco had not seen the film. constitutionality prior adversary hearing the of the New no held as anti-obscenity statute, propriety 2A:115-1 of» the seizure. procedures seq. followed et as well as search warrant mentioned no individuals state, county conjunction by munici or action and was not issued in each seizing publi any complaint. pal films criminal No criminal authorities thought complaints or returned Jurisdic indictments were cations be obscene. Cryan al., three-judge 1, panel Theatres, et convened on 1. Hamar Inc. v. June April 6, 1973; 472-73, 1973, restraining April C & orders of No. filed Civ. al., April Corporation v. et Coleman 30 were continued as to V Theatre 1973; 11, April plaintiffs 496-73, filed certified on that date. No. class of Civ. Irvington opinion p. Following et Town of See & Guarino v. Wein infra. 30, April 585-73, al., 1973. filed decision of the United States No. Civ. California, 413 in Miller v. applications Pending hearing County (1973), Prosecutor, by three-judge panel, were defendants the Essex joined by Attorney General, instituting contem- the State restrained against proceedings then-existing plated re- moved to vacate criminal April plaintiffs. argument Orders straints. Oral was heard on individual July April 30, No re- reserved. The and decision currently against light is denied in issued defendants’ motion straints were pending prosecutions. the determination herein. When criminal respect to that seizure and prior of Hamar’s criminal the commencement prosecution. (now Tr. separate here- June at 18. consolidated action County Sheriff, alleges, however, in) against Plaintiff C V Essex & subsequent “Deep to the Prosecutor, Attor- Throat” inci- and the New dent, County the Monmouth officials ney General. who had been made defendants C & seizure, plain- April Prior separate complaint, initial V’s and who experienced film other had tiff Hamar appear now as defendants in the consoli- County authori- the Essex seizures complaint, dated amended informed C & May of a seizure As a result ties. they V would continue to review guilty pleaded plaintiff Hamar sexually oriented films to adult “Maintaining a Nui- an accusation plaintiff’s exhibited theater the film sance.” March On seize films considered obscene “Deep seized defendants Throat” was appropriate with a view toward criminal authority Munic- under the of a Newark proceedings. Plaintiff C & V seeks the adversary prior ipal ordinance without requested by plaintiff same relief Following alleged hearing. harassment Hamar. of a the defendants and issuance restraining defend- federal court order Guarino, Plaintiffs Wein and are own of the from further harassment ants operators ers and of a book store known plaintiff pleaded plaintiff Hamar, Adult “Best Book located Store” guilty Mu- to violations the Newark County, Jersey, Irvington, Essex dealing nicipal with obsceni- Ordinance books, sexually oriented adult currently Although ty. no there are magazines films, and novelties are ex proceeding Ha- actions criminal April hibited and sold. On allegedly past mar, seizures have alleged Irving- that a member among great perturbation Ha- caused advising Department, Police ton without disrupted employees and have mar’s officer, plaintiffs police that he was a business. magazine purchased defendants, from to continue intends Plaintiff Hamar left, later returned and a few minutes genre sexually the same exhibition police other officers who this with some Among re other oriented adult films. time identified themselves as such and judg declaratory lief, seeks a Hamar plaintiffs the demanded return that invalidating Jersey anti- the New ment pur the initial marked with which bill obscenity an also seeks statute. Hamar magazine made. of the had been chase enjoining from en the defendants order 26, April 1973, plaintiffs were served On anti-obscenity forcing this charging complaints them with criminal particular, prelimi any fashion, and Jersey of the anti- with violations prohibiting nary injunction defendants complaints obscenity statute, are which making seizures unconstitutional from 17, pending. Tr. June 1973 at still exhibiting.3 will be of the films is and allege they told that were 18. Plaintiffs Irvington Corporation by Deputy of the the Chief Theatre Plaintiff C & V they Department if were to operates exhibits Police theater which also Irvington business, open the March for sexually films. On remain oriented adult daily County Department issue 6, 1973, officers would Police Monmouth against Throat”, complaints “Deep then them criminal film the seized anti-obscenity being statute. crimi- the New its theater. A exhibited at allege representations against plaintiff similar C & Plaintiffs prosecution nal Irvington upon to them other the were made based commenced has been V officials. Plaintiffs cur- enforcement “Deep and is law Throat” exhibition of against basically the relief same rently state seek pending in the New Irvington municipal enforcement sought law here with relief is courts. No print costs. and to be awarded of “Fast Ball” returned to have its. 3. also seeks Hamar County Prosecutor officials, the Essex (1973). Attorney of New General and plaintiffs sought by Hamar as is argument At oral on June all respective against their and C & Y agreed parties no evidence other and Guar defendants.4 Plaintiffs Wein stipulations already than the filed defendants to restrain ino also seek court, presented would be and that prosecution criminal further from argument would consti June outstanding against complaints presently hearing tute the final the three- before them. panel judge in this action.5 argument panel Also at oral relief this To the extent granted plaintiffs sought a motion and Guarino Wein Municipal proceed respect Irvington, to the as a class with Town challenged constitutionality Irvington, anti- and the Town of the Town of Irvington Department, panel The denied statute. so Police sought jurisdiction much of under 42 U.S. that motion as to estab- court has no and matter lish or to have certified a class as to the to consider the C. § illegal allegedly procedures from dismissed seizure these defendants shall be Bruno, City vary considerably of Kenosha which found to the action. were magazine Allegations com- in Wein and and 4. Guarino’s three novelties pertaining plaint seizure of novel- the Best Adult Book Prospect located at Store damages Street, aban- were Irv- a claim for Avenue and 43rd ties and panel argument ington, Jersey, before for the sum of $10.- in oral doned at 14-16. 51. The officer tendered a bill $10.00 Tr. June plaintiffs bill to Wein and $1.00 change. Tr. at 3. Guarino and received He then 5. of June See plaintiff premises stipulation between left but returned a few pro- police and the defendants minutes later with Hamar Theatres two other who, identifying officers selves, after them- vides : pol- they uniform statewide “1. There is no told Wein Guarino allegedly icy regarding charged selling [sic] the seizure of ob- prior they ap- ad- materials without a scene material and obscene asked that hearing. pear police versary at the station at A.M. 10:00 approximately following April April 5, 1973, day, They On acting detectives, P.M., also advised them that bill $10.00 3:55 Sheriff’s Oryan defendants was marked and under the direction of demanded that it be Theatre, plaintiffs Lordi, them, the Treat returned to entered did. following morning mm color The and seized the 35 the materials Newark picture, Kinney, This ac- “Past Ball”. were examined Judge Alfred R. motion pursuant Irvington Municipal taken to a search of the tion was April 1973, by who, determining the after warrant issued that there Judge probable Ralph Pusco, L. of existed cause to believe that Honorable Jersey. Superior the New the Court of materials were obscene and were by plaintiffs Judge contrary law, after issued the warrant sold Pusco to perusing Detective ordered that the affidavit of warrants issue for their Casey County Complaints the Sher- arrest. James of Essex were filed and serv- (which pur- Department ed affidavit and Wein and iff’s Guarino were ar- ported raigned Judge Kinney. They of the mo- to detail the contents before picture, Ball”). Judge pleas guilty The then entered “Past of not and preliminary hearing. ad- did the film or hold an waived a not view The versary hearing.” matter was thereafter referred to the stipulation County and Essex The between Wein Prosecutor’s for Office provides: presentment County the defendants the Guarino and to Essex Grand Jury.” “1. There is no uniform statewide policy allegedly regarding right & seizure of C V reserved the to adduce evi- prior respect procedures a ad- dence with obscene materials without versary hearing. to seizure necessary. should it become Tr. of June April 25, 1973, of the at 12. On member Department Irvington purchased Police they (1961), present L.Ed.2d 989 differ- and thus to case in each challenge standing its not legal do have to best resolved issues and ent factual validity. case-by-case certi- class basis. aon 23(b)(2) panel Rule fied argument with Defendants’ is opera- theater of all movie the class in Poe out the merit. Unlike situation Jersey that ex- New in the of tors State Ullman, anti- in which Connecticut’s sexually oriented “X”-rated hibit and/or contraceptive enforced statute had been of all bookstore films and the class adult against only nurse one two doctors and New of the State ' owners (in 1940) since enactment its sexually adult books oriented sell prospect en no of its and there existed magazines. therein, against plaintiffs forcement Jersey’s question there is no that New STANDING anti-obscenity and will statute has been interpretation or one be enforced —under plaintiffs contend that Defendants against plaintiffs. the within another — challenge standing do not have to prose applied by That the standard anti-obscenity since statute cutor’s office under its enforcement new statute, written, not en will policy may irrelevant be constitutional plaintiffs. After forced Standing standing. question to three-judge panel for the District challenge petitioners accorded to Jersey declared they subject en statute are to its where 20, 1972 because invalid on November they demon forcement, and where can include the failure they directly are strate that affected redeeming “utterly social value” without thereby. Bolton, Doe obscenity, Cine-Com definition of in its Ep (1973); .S.Ct. 35 L.Ed.2d 201 States, Lordi, Inc. v. Theatres Eastern person Arkansas, F.Supp. (D.N.J.1972), the Attor (1968). The direct ney of New the State General petitioners may effect to which be sub policy the State’s enforcement modified ject depend upon the constitu does include so as to the “social-value” test tionality upon statute but rather apply when definition of practical nexus between its enforce ing seq. prose et N.J.S. 2A:115-1 petitioners’ ment and or activities investigations, arrests, cutors’ livelihood; consideration the constitu argue indictments.6 Defendants tionality policy of the enforcement plaintiffs investigated, ar since will be the statute itself must be reserved rested and indicted under standard mer consideration case on its approval in which received constitutional standing once issue of has been Cine-Com, prosecu and since all formal independently resolved. abeyance pending tions will be' held determination of alleged Cine-Com herein suffi- Plaintiffs have Circuit,7 appeal now the Third they before cient will facts demonstrate that plaintiffs subject are not direct adversely directly affected injury of a result of the enforcement in enforcement continued of the statute Attorney under the any statute General’s guise, and are entitled to therefore policy, therefore, under the standing. doctrine Cine-Com, supra, F. See 351 Ullman, 497, 504, Supp. 81 44, of Poe v. 367 U.S. prosecu- The at 45. fact ingenious justifications F.Supp. 49; 48, 6. Various 351 are of at 2A :115- by (Supp.1973). propriety fered in defendants of 1.1a defense The reading policy, their the “social-value” test into in State’s new enforcement event; upon spite standing N.J.S. 2A.115-1.1 does not bear aspect of the fact of the defi issue as the textual will demon discussion explicitly nition of had been strate. expunged Jersey Legislature Cine-Com, supra, 1, 1973, 36, 37, 56, from the statute. See 7. Tr. of June at 57. 1320 may abeyance (1973). tions be held under the 147 Dr. in Roe had Hallford

present sought policy “distinguish enforcement does not di to his as a status present present plaintiffs lute the stake that the defendant from status state his ” litigation.8 ‘potential have the outcome of this as a The defendant.’ future Supreme Investigations, rejected seizures and indictments that distinction operators of theater and bookstore and remitted own Dr. Hallford to his defens- proceedings. ers for the legedly es in exhibition sale of al the state criminal and/or however, possess, Specifically, Supreme obscene materials themselves, disruptive po question Court did not of sufficient consider the plaintiffs’ result, any, of tential to afford “what if fol- businesses different would standing. pendency if them prosecutions The of such low Dr. were Hallford’s intervention may chill in themselves behalf of a 93 class.” 714. S.Ct. rights. exercise of First Amendment present fact that ac tion is a class action modifies to cer YOUNGER ABSTENTION Younger tain extent usual considera least Defendants contend that at First, tions. it should be that as noted respect plaintiffs, to three of the named Hamar, Younger plaintiff absten Corporation, —C & V Theatre Wein and inappropriate tion since is no criminal should defer to a against prosecution pending Guarino—this Lew it.9 plaintiffs’ court of Kugler, State determination is v. (3d 446 F.2d 1343 Cir. equitable of absten- 1971). claims matter prove It anomalous Younger Harris, grant tion under v. 401 U.S. relief to Hamar to the class of 37, 746, (1971). 91 S.Ct. 27 L.Ed.2d 669 rep theater owners which Hamar is although V, As to C in this action it excepting & only resentative plaintiff therefrom challenge pending prosecu- does not prosecu C & asV future tion for merely State its exhibition prosecution tions because a argue “Deep Throat”, that it currently pending defendants it. Where logic thereby escape cannot sought, such class relief is it furthers Younger. point Defendants out that purposes C adjudication the tinguish to dis class occupies position & Y the identical occu- between C & V’s status as a pied Wade, Dr. Hallford Roe v. present criminal state and its defendant 113, 705, potential 410 35 L.Ed.2d status as a future U.S. 93 S.Ct. defendant. plaintiffs right exercise their assurance that an individual whom Should speedy outstanding property op under such trials indict seized will have the portunity abeyance, challenge ments held in v. Strunk United constitutional States, 434, ity 2260, proceeding 412 93 of the state or the U.S. S.Ct. 37 (1973) ; Wingo, 56 v. under such L.Ed.2d Barko seizure was authorized 514, 2182, may proceeding 92 L.Ed.2d because no criminal 407 U.S. S.Ct. 33 en prospect (1972), they Montemuro, 101 face the sue. Conover v. F. See 477 —de creased, (3d perhaps, 1972), since 2d filed 1073 Cir. Dec. opinion California, Miller en Court’s resubmitted banc March (filed May 8, 1973). 37 L.Ed.2d It is not sufficient (1973) judicial argue purposes Younger an adverse de for absten —of interpretation an termination such individuals raise could questions proceedings the statute declared unconstitutional these in state court Cine-Com, supra. See, g., property e. State return their for a Shapiro, N.J.Super. declaratory judgment. 300 A.2d Lake Carriers’ (Law 1973). Div., MacMullan, Ass’n v. (1972) ; S.Ct. regard Koota, film “Past seizure of the Zwickler We evidentiary (1967). Ball” as an seizure and not prosecution Younger application as the of a has no commencement where no prosecution Younger pending. did the sense. The warrant not state is Lewis v. any individuals, Kugler, 1343, (3d it name nor was issued 446 F.2d Cir. conjunction 1971). criminal kind of with process. situation, In such there no Younger may prescribed toas the effect interests to class action inter Relief be ests, seq. validity et we find this to be a “distinction 2A:115-1 and of N.J.S. may respect the of all Relief to class without difference.” be equally with sexually-ori granted respect prospective pro with to exhibit owners that theater ceedings against all adult films and threatened Wein and or “X”-rated ented Guarino, sexually plaintiffs ori who sell but the and Wein bookstore owners magazines to their ented and without Guarino will remitted defens adult books interfering pending proceedings proper in the course es state against against prosecutions pending indi them.12 state limiting plaintiffs relief vidual such Restricting only. PULLMAN prospective ABSTENTION to matters accommodates class relief in this fashion argue that this Defendants adjudication class on interests of deciding should from abstain consti doing to the one hand10 without violence tutionality (Supp. of N.J.S. 2A:115-1.1 comity principles other.11 1973) under doctrine enunciated Justice in Railroad Frankfurter Comm’n plaintiffs As to the Wein Guari- 496, Co., Pullman slightly no, they occupy posi- S.Ct. different they actively (1941) because the L.Ed. 971 & V since seek than C “saving susceptible against prosecution to a con injunction an modify against struction” avoid or currently that would pending them. presented.13 view, however, question of our accommodation the constitutional ported by proofs, allegations 23(b)(2) proper purport Rule such The present exception to another to Federal Rules of Civil Procedure is equitable possible declaratory injunc Younger, and no abstention render and/or respect an entire class would need be exercised with to tive relief as to where to pending question legality proceedings. The of behavior of state record State, presently us, however, party (the example) does one for vis before support As class is unsettled. See Advis such abstention. was stated a-vis that ory Kugler, in Lewis Notes to 1966 Amend 446 F.2d Committee (3d purpose 1971) ; no That Cir. indication “[T]here ments of the F.R.C.P. prose state to the extent that class defense of the criminal would be thwarted adequate all cution will vindica for members of the not assure relief would obtain prosecutions plaintiffs except tion of their in the federal [the those with state class currently pending against rights. injury action] them. Assum constitutional they ing solely face is ‘that incidental the moment Court were every proceeding brought enjoin to criminal law the future enforcement of the fully faith,’ they anti-obscenity against good and in law are equitable “Younger” therefore include not entitled to relief.” class which did not (Lee illegal plaintiffs, The issue of seizure Art would still free State Virginia, prosecute Theatre v. such individuals in future U.S. S. prosecutions (1968) and, Ct. 20 L.Ed .2d 1313 while the same time it recently, Kentucky, enjoined prosecuting most Roaden all other But of the class. members to futur e (1973)) plaintiffs prosecutions, “Younger” raised in the must also be state stand proceeding by plaintiffs precisely criminal same status as Wein do mem against bers of those Guarino. class whom prosecutions may future be imminent but pro- 13. N.J.S. 2A :115-1.1 against present prosecutions whom no are : vides pending. “Obscene” defined ap- “The ‘obscene’ wherever word opinion 11. We intimate no here as to the pears chapter to which this act propriety an of such accommodation were supplement mean that is a shall proceedings pending against criminal all person, applying average con- representatives named the class. standards, temporary community when whole, allege has as domi- considered and Guarino Plaintiff Wein appeal purpose prosecutions instigated nant an theme have been prurient interest. faith so them bad as not L.1971, convictions, § c. eff. Amended secure valid but rather put sup plaintiffs Feb. 1972.” out of business. If 1322 three-judge susceptible On “The statute is November thus to only Jersey interpretation, panel interpreta- in the District New one an challenged rejects identical tion validated the which the social-value doing, here, and in so that determined Jersey test. no Since New court could

Pullman-type appropriate. not abstention was interpret thus the statute so as to e-Com, Eastern Theatres Cin question, avoid the Constitutional ab- (D. States, F.Supp. Lordi, Inc. 42 351 improper, is stention is the and it Cine-Com, N.J.1972). the Court duty the federal court decide to Legislature that the found or whether not the statute is Constitu- explicitly expunged defini had from tional.” obscenity in N.J.S. (Supp.1973) requirement the that to be supra, Cine-Com, F.Supp. 351 at 49. published had to obscene material filing deci Since Cine-Com redeeming “utterly value” without social sion, Supreme United Court States termed the “Memoirs so [hereinafter promulgated of ob has a new definition requirement The cial-value or test”]. scenity Miller premised California, in Court on a its determination 413 U.S. 15, 2607, legislative incorporated 93 specific finding S.Ct. 37 419 L.Ed.2d into statute to that the effect (1973), Paris I v. and Adult Theatre Legislature plu did not believe that Slaton, 49, 2628, 413 U.S. S.Ct. opinion rality in Massachu Memoirs v. (1973). Moreover, prior to L.Ed.2d 446 975, setts, S.Ct. adoption of a new of ob definition proper (1967),14 expressed scenity Supreme by the United States standard, in or Constitutional and subsequent Court but the decision obscenity prosecutions, der to facilitate Cine-Com, Jersey Chancery Court Legislature constitutionally could defining 2A: construed N.J.S. 115-1.1 as require strike Memoirs social-value obscenity according prong to the three obscenity. from ment its definition of supra. Memoirs, test Cole set forth Cine-Com, 47-49; supra, F.Supp. at Wilson, N.J.Super. man 2A: 115-1.1a.15 The Cine-Com N.J.S. (Ch., 1973).16 de- court concluded: A.2d new These opinions definition, 14. influential “Under as elaborated authored subsequent Supreme cases, three elements must States Court certain United however, justices; language, coalesce: it must be which established (a) represent binding majority material dominant theme of the does prurient appeals Supreme and, taken as a whole decisions sex; (b) Legis- accordingly, interest material is need not bind the patently Judiciary offensive it affronts or the because lature of this State. contemporary community Legislature re- further standards The finds that lating description representa- binding recent ‘ob- most definition of (c) matters; scenity’ tion of sexual and enunciated the United States utterly redeeming represented material without sec- chapter social value.” tion 1 of laws of prior subsequent amendments; at ought subsequent that said amendments pro (Supp.1973) 15. N.J.S. 2A:115-1.1a repealed in to be order to reestablish : vides ‘obscenity’ definition workable within “Legislative findings statutory law, the framework of our Legislature The the stand- finds that changes certain other should ards of enunciated now purpose in other made statutes for the chapter 115 of Title 2A of the New consistency. sup- Statutes amended L.1971, c. § eff. Feb. 1972.” plemented years in recent unneces- sarily permissive and a hindrance 2A :115-1.1 legal effective action obscene construed Coleman v. Wilson define Legislature only matter. finds further such as obscene matter: unnecessary permissiveness “(a) such the dominant theme of tak- incorporation ing appeals has resulted from the in- matter to a whole language prurient sex; to New Statutes interest protec- value to merit Amendment First reconsideration merit cisions tion.” Id. determination PwKmem-abstention Cme-Uora.17 comparing three-prong In supra, California, the Su- In Miller v. (See su definition of Memoirs note 14 obscenity fol- as preme redefined pra) Miller; an with that of we note lows : significant Miller other The difference. guideline trier of for the “The basic Memoirs, definition, re unlike that ‘the (a) whether be: fact must quires obscene, that to be material must contempo average applying person, depict patently describe, or in a offen community find would rary standards’ specifically way, sive conduct de “sexual whole, ap work, as a taken applicable (em state law” fined interest, prurient v. Kois peals phasis supplied). examples Possible supra, [229], Wisconsin, at what a state could define con as sexual [2245], L. at 2246 [33 230, 92 S.Ct. prong duct under the of Mill second (1972), quoting Roth v. Ed.2d 312] opin er definition are set forth [476], supra, States, United ion: [1304], at 1311 L. [1 at 77 S.Ct. “(a) Patently representa- offensive (b) (1957), whether Ed.2d 1498] descriptions tions or of ultimate sex- patent describes, depicts in a or work acts, perverted, ual normal or actual spe ly way, conduct sexual offensive or simulated. applicable cifically by the defined work, law, (c) whether state (b) Patently representa- offensive whole, liter serious lacks taken descriptions masturbation, tions or artistic, political, ary, or scientific excretory functions, and lewd exhibi-

value.” genitals.” tion of the explicitly The Court at 2615. 2615. These definitions are “utterly rejected without the Memoirs only examples meant kinds redeeming in its test” and social value explicit description of sexual conduct adopted test a new “social-value” stead required as a constitutional minimum as a whole the work taken —“whether regulation purportedly obscene artistic, political, literary, lacks serious materials and do not foreclose states re- scientific value” or [hereinafter definitions, adopting if from their own opin- to, purposes of this ferred sufficiently explicit. “At ion, the Miller social-value test]. as Court, “prurient, minimum,” purposes said For of Pullman-ab descrip- patently depiction stention, or inquire offensive then as to we shall conduct must have serious tion of sexual 2A:115-1.1 whether N.J.S. embody literary, reasonably artistic, political or construed to scientific can (b) patently requirement it af- concluded because social-value but offensive (na- community requirement contemporary that no such social-value fronts relating required. Judge tion-wide) constitutionally to the Lane of standards description representation County Chancery of sexual Division the Monmouth matters; Wilson, supra, had deter- Coleman (c) utterly redeeming Memoirs social- social mined that without without requirement, value N.J.S. value.” Wilson, supra, (Supp. 1973) A.2d at be unconstitutional. Coleman N.J.Super. Supreme Shapiro, in Miller 17. The Court decisions State (Law 1973), I handed A.2d 595 Div. and Paris Adult Theatre were subsequent argument subsequent to oral also decided to Cine-Coin and down thereupon promulga- prior re- this matter. The Court Court’s standard, Judge quested additional submissions tion of a new County parties decisions as the effect of fílese McGann of the Monmouth Su- upon challenge perior 2A to the statute. Court construed :115-1.1 (Supp. 1973) excluding the Memoirs Stynch Speckled obscenity.18 (1971); Bird v. De Great the Miller definition (N.D.Ga. combe, F.Supp. primary in fendants contend court). Legislature 1969) (three-judge basis tent of the New construing language enacting “pro the Roth as em was to N.J.S. bodying Memoirs standard in all the to the fullest ex scribe obscene matter Supreme possible Amend above cases was that the tent under the First stated in Memoirs the three- at It was had ment.” Defendant’s brief 41. legislative intent, prong always Memoirs test had been this construction of Judge part 418, 419, say defendants, Lane of Roth. that led 383 U.S. 86 construing Wilson, supra, to construe S.Ct. 975. In the state stat Coleman v. containing language conformity with utes Roth em 2A:115-1.1 in N.J.S. bodying definition, judged Memoirs then the constitu the var what was merely three-prong defini ious courts referred tional standard —the above argue adopted already Accordingly, adopted tion in Memoirs19 the construction Supreme defendants, sus the statute is now the Roth lan guage. ceptible keeping construction in

with the definition Miller. new present situation, however, not quite instance, apposite. In the first statutory con As a matter Supreme Court in Miller not does circumstances, we in certain struction agree contend that the Miller definition is in- can be construed that a statute herent in or embodied Roth or in embody sub constitutional formulation previous obscenity. other definition of Supreme promulgated sequently Second, statutory legislative as the example, the Memoirs For after Court. history of demon- N.J.S. 2A:115-1.1 decision, construed state various courts strates, language adopted the Roth adopted the definition of statutes which Jersey susceptible the New statute not obscenity forth in Roth v. first set Unit construction, even to the Memoirs be- States, 1 ed 77 S.Ct. 20 Cine-Com, cause as was determined (1957) comport so as to L.Ed.2d 1498 Legislature three-prong turned its of Memoirs?21 with the test Ventures, g., See, Inc. specific e. Entertainment in- back Memoirs with the Brewer, F.Supp. 815 306 excluding regarded tent of what as the court); (M.D.Ala.1969) (three-judge too-permissive Memoirs standard. Cine- Distributors, v. Cron Delta Book vich, Inc. Com, supra, F.Supp. 342 at 49. (E.D.La.1969) F.Supp. 304 662 present When the definition of ob- court), (three-judge on other reversed scenity adopted by grounds Ledesma, the New sub Perez nom. Legislature L.1971, 27 L.Ed.2d 701 c. S.Ct. the law argument pres- argument (see 18. Defendants’ if the Defendants’ “severance” obscenity :115-1.5) 2A:- 2A ent definition of in N.J.S. N.J.S. is also without merit. (see supra) 115-1.1 note 13 Should the definition unconstitutional, prior unconstitutional, operative is found to be found sec- (incorporating depending upon the Memoirs tions definition of the statute standard) springs existence is back into definition will also fall. argument merit. That relies without upon analogy supra. an 19. to certain old See note 14 holding cases where completely repealing prior average person, apply- 20. law is itself “Whether to the original repealed, thereby ing contemporary community standards, act re- Lippincott, N.J.Eq. 343, vived. re dominant theme of the material taken (Oh. 1936) ; appeals prurient A. 622 Wallace whole in- Bradshaw, 54 N.J.L. A. terest.” (E. 1891). & A. These cases have been :l-3.2, supra. enacted See note overruled legislative they already pur- the ‘law were decision contained a statement action, further pose the land’ without as follows: already they (b) if were former deleted “The 1971 amendment binding, thus their enactment would L.1971, 449, con- (b). c. subsection unnecessarily hinder law enforce- fol- read as a statement tained ment. lows: Subsequent experience has shown States ‘In United particu- additional that the larly ‘tests’— (in Roth v. United Court enunciated States, requires that an that which 1304, 1 [77 redeeming ‘utterly item be without only 1498]) definition insu- an social value’—erect perable almost “obscenity” majority of its in which a prosecution, and barrier to viz., have ever members concurred— objectionable materi- allow most pre- that which that the “obscene” is unhampered. als to Mean- circulate dominately prurient inter- “appeals to while, jurisdictions, which other Legislature, in two In est.” ‘tests,’ adopted the added never incorporated into that definition acts, to make convictions have been able (where previously had our statutes it Recently, example, stick. nearly undefined). identical In stood language, P.L.1962, Supreme Court United States and P. e. 1§ Maryland adju- refused to reverse a L.1962, as 2 defined the term c. 166 § obscenity film dication of the of a follows: (cid:127) —-the film same which a New Jer- ‘The word ‘obscene’ sey Superior judge in ' to the shall mean that which regret’ ‘reluctantly found and with average contempo- person, applying necessary it rule not obscene be- rary, community standards, when possess cause a modicum it ‘does whole, a has as its as considered social value.’ ap- purpose an dominant theme or This bill return Jer- would New peal prurient interest.’ sey pre-1966 law the standard —a Supreme Federal ‘Since then the constitutionally standard which is deciding fragmented in Court has permit viable would ac- and which agreeing cases, obscenity several tion to be taken the accumu- upon results, a but to reach unable lating flood of salacious films single commanding majority opinion years literature in recent has which agreement. nonmajority opin- Such seriously alarmed our citizens. binding ions do not upon law constitute To conform reestablished to the In how- lower courts. standard, repeal this bill also binding opinion ever, one such P.L.1966, (C. c. 2A:115-1.- 2§ proved influential; highly in that 2), merely rule which establishes ‘Fanny opinion (in so-called concerning the ‘social evidence case, Hill’ [86 test; P.L.1962, value’ c. § justices 1]) three (C. 115-1.1), is a need- 2A: which proposed of ‘obsceni- test language already duplication of less elements, ty’ comprise three should P.L.1962, found in 1 and c. § being ‘prurient appeal’ only one applying chapter in Ti- all The other two tests were them. tle 2A.” as those have become known which (legisla- (Supp.1973) N.J.S. 2A:115-1.1 ‘patent and ‘so- offensiveness’ commentary). tive cial value’ tests. Some States— legislative Jersey This statement demon- New included—hastened Legislature Jersey incorporate supposed strates that the ‘tests’ these statutory re- wished to define N.J.S. law, into their flecting without (Supp.1973) (a) 2A:115-1.1 in accordance if the tests were binding part prong with the first of the Memoirs def- of a “patently offen include the strued to of the other two exclusion inition to the apparent prong prongs.22 the first It in the test embodied second sive” Memoirs, prong prong the first of Memoirs and carried forward (Supp. Miller, 115-1.1 2A: N.J.S. exacting as the second more fashion Legislature Jersey 1973), the New prong under of Miller. Proscribed N.J. contain construed has intended to be result, S. 2A:115-1.1 obscenity.23 the identical definition ap taken as a are materials which whole Legislature effect, interest, peal prurient to the but obscene, suf it will has stated that to be may depict patently or describe (Supp. fice way offensive sexual conduct. On this whole, 1973), if material taken as alone, no the New basis construction of prurient appeals interest without satisfy Miller Statute could therefore, instance, In the more. first Moreover, point out that standard. we as em cannot be construed bodying Memoirs or Miller so either the nowhere does the New Statute To construe the stat cial-value test. so specifically define the sexual conduct imply tests ute would those two description depiction of which is to prong were embodied the first proscribed required as also the sec respec Miller definition in Memoirs and Although prong ond of Miller. Justice tively, such a construction would but Burger speaking for the entirely superfluous third the render majority obscenity intimated that state prongs Miller which of Memoirs might capable statutes of a construc respective tests.24 contain the social-value embodying specification pro tion a of reason, For much the same N.J.S. conduct,25 (Supp.1973) con- cannot be scribed sexual 2A:115-1.1 no such con- “patently prurient 22. and the offensive” test tó the interest. It will be re- rejected enacting in test which are called that in 2A :115- “social-value” N.J.S. commentary (Supp. legislative 1973), Legislature the to N.J.S. 1.1 the had (Supp. 1973) are the second the in 2A:115-1.1 reacted to result Lordi UA New prongs, respectively, Jersey Theatres, Inc., N.J.Super. 19, the and third of 108 supra. (Ch. 1969) 14 Memoirs definition. See note 259 A.2d in which “reluctantly regret” the court and with necessary companion found it to rule the film “I 23. In in his dissent case to Miller, am Curious Yellow” not obscene because Brennan Justice observed: possess it a “does modicum of social “The differences between this formula- Legislative Commentary value.” quoted See [that Miller] and the three- p. pronged are, in full at 1325 of the text. Memoirs test for the most Jersey case, part, In the UA Theatres academic. The first element of virtually the court found that the dominant theme the Court’s test is identical film, whole, appealed requirement of the taken as a the Memoirs to that ‘the prurient interest, that the film dominant theme of the material taken patently appeal] prurient it offensive because affront- as a whole [must ” community contemporary ed standards interest in sex.’ representa- relating description Slaton, or I Adult Theatre Paris matters, (1973). tion of sexual but because value, film social it was not contained Judge Shapiro, obscene. 259 A.2d at The New 24. 739. McGann State Legislature (Law argues Div., 1973), wished to ban such A.2d film, end, “literary, that it arid to struck scientific or artistic values requirement comprehended in the third theme social-value are the dominant prong supra. requirement of the Memoirs definition. It Roth.” See note 20 wholly construing Ilowéver, therefore Legislative inconsistent with 2A :115- N.J.S. (Supp. 1973), intent to construe the social- 1.1 construe we do not requirement being language Roth, adopted as inherent value but rather after language Jersey Legislature rejected the “dominant theme” of N.J.S. the New three-pronged (Supp. 1973). 2A:115-1.1 Memoirs of ob- definition scenity specific intent to exclude literary, California, possibility supra, 25. Miller v. that material with at 24 n. n. scientific or artistic merit could still be S.Ct. 2607 protected appealed if theme its dominant is meant and thus would free from struction Statute Legisla infirmity. possible the New constitutional because of the ture the exclusion second true, It is as Justice Frank prongs defini third of Memoirs from its respect furter to a federal said with adopt purposefully tion of has statute, court’s construction of a state generalized ed a statute.26 judg that “no matter how seasoned A construction N.J.S. may be, ment the district court embodying (Supp.1973) the Miller escape being cannot a forecast rather upon the standard would have to stand than determination.” Railroad premise that a state can enact a statute Co., Comm’n v. Pullman intending which, although specifically 61 S.Ct. at Pullman-abstention sexually-oriented proscribe certain mate situations, inquiry of the federal rial, proscribe “intend” to some would inexorably court is reduced to a forecast thing if the intend less standard it had prediction possible construc ed to turned out create to be unconstitu question tions of the that are permit statutory tional. To this kind of above, available to state As seen courts. construction, however, equivalent already concluded, we have as a matter condoning a criminal statute prediction, did the court in federal prohibit expression permitted “all Cine-Corn, cannot the state courts the First Amendment.”27 The offense give saving 2A :- construction vague process to due inherent in such a 1973). (Supp. 115.1.1 How then is legislative apparent.28 enactment For Chancery fact State determining purpose proprie proved “prediction” Coleman Cine-Com’s ty Pullman-abstention, we cannot sub wrong prediction to affect this Court’s scribe to the view that N.J.S. 2A:115-1.- of the kind of construction available for can be construed to for light (Supp. 1973) in N.J.S. permissible bid to fullest of Miller are ? Our answer is that we extent. very not in a much different situation argue finally Defendants that even as- in at than was the Court Cine-Corn suming given that the construction time no state court had construed (Supp.1973) First, N.J.S. in 2A: 115-1.1 Cole- the statute. the decision since Wilson, supra, justifiable, fact, Miller, has, man v. not in is no state court in possible although Second, it is the New Su- construed the statute. preme adopt Court could the construc- on the hand one Coleman construed adopted Jersey anti-obscenity tion in Coleman and thus find as law Cine- Jersey anti-obscenity construed, predicted that the New stat- Corn it be could not comports ute Shapiro, with the constitutional re- another state court in v. State quirements case, (Law of Miller. In N.J.Super. such a 122 A.2d saying Div., in 1973) pre defendants are correct that the vindicated Cine-Com’s construed, by concluding statute so would mean what diction 2A:- that N.J.S. Jersey Supreme the New (Supp.1973) Court said it 115-1.1 intended to exclude Slaton, process problem 26. See Paris Adult I Theatre v. In addition to the due supra, construction, 95 n. 93 S.Ct. inherent such a practical (Brennan, matter, permit 2628 n. 37 L.Ed.2d such a con- J., dissenting). effectively struction would dictate absten- every instance, since a state stat- spirit It is in this the New always suscept- ute so construed would Chancery Court read the Memoirs social- ible to a constitutional construction. We ¡115-1.1 value test back into 2A N.J.S. find it difficult Pull- believe that (Supp. 1973), admitting after it had man doctrine was intended to enable expunged: literally been “The intention state thus to insulate its statutes Legislature was to forbid obscene by constitutional review federal courts permissible matter to the fullest extent the First Amendment.” Coleman Wilson, supra, 302 A.2d at 559. Thus, (Supp.1973) reasonably likely test.29 1.1 social-value is Memoirs now, the lower State in the future. As the the situation stands obtain cases clear, divided, has not make where no reasonable likeli Courts are saving exists, by Appellate yet Di hood of it construction been construed .a upon Jersey, and there is little incumbent a federal court to de vision in New adjudication issue, especially cide the constitutional likelihood of a definitive rights weigh Jersey Supreme where Amendment Court be First from the New may adversely the mere balance and affect fore observe that 1974. We delay.30 Koota, proceedings ed pendency could Zwickler state presented settle the to the federal U.S. issue (1967). court does not mandate Pullman-absten Berryhill, tion. Gibson (1973). L.Ed.2d 488 CONSTITUTIONALITY OF THE being This a First Amendment situation STATUTE delay expres protected where could chill being equal, three-judge sion and all other factors court weighs against supra, Cine-Corn, F.Supp. balance abstention. at 50 this, held: a situation such as relegated guidelines pre the same explicitly “Until Memoirs is overruled dicting statutory what reasonable con Court or Constitu- may struction be arrived at as it would Amendment, tional sets the Consti- no had lower court cases been decided. holding, tutional standard. Under its present definition of A federal cannot court abstain obscenity, (Supp. N.J.S. 2A: 115-1.1 grounds merely on Pullman because 1972) cannot stand.” possibility there exists the distant that a explicitly state court will construe a Now Miller statute so as v. California has to avoid a constitutional issue. overruled Memoirs That and has established a possibility every present However, obscenity. distant new standard for case, justifies abstention, and if it then for the reasons set forth in the discus- above, no federal court would ever be called sion Pullman-shstention upon constitutionality to decide the 2A: 115-1.1 has no more plain light validity state statute. was not the Such a claim to constitutional meaning inherent scheme estab of Miller than it did when evaluated lishing against obscenity review federal courts of the the definition of constitutionality sum, of state statutes. hold Memoirs. we that N.J.S. U.S.C. (Supp.1973) The rule of 2A:115-1.1 is §§ unconstitu- predicated (1) proscribe Pullman-abstention must be tional it would because upon prediction by possessed literary, the federal courts material that serious possibility artistic, value; political that there exists not distant or scientific (2) but proscribe rather a reasonable likelihood that a it would material that did depict state statute can construed a man not or describe conduct sexual patently manner; ner (3) which avoids the constitutional is and offensive sug specifying sue. find that the We construction cannot be construed as gested by of depiction defendants N.J.S. 2A:115- kind of sexual conduct the of Shapiro concluded, however, appeal 29. The court outcome of Cine-Com (Supp. 1973) States, Lordi, N.J.S. Theatres Eastern Inc. v. presence F.Supp. (D.N.J.). constitutional without of a no We see “redeeming purpose by delaying social value test.” note See useful served supra. decision, especially of First view potential Amendment character and the argue delay might bring 30. Defendants that as a matter of harm that about. comity Circuit, Moreover, principle to Third this Court we know of no of determination, comity reserving should abstain from its that dictates decision or stay proceedings, pending staying proceedings or these in such circumstances. any V, Guarino, nor to proscribed Miller. C & Wein and can which against proceedings pending Jersey’s criminal anti-ob that New the extent To any plaintiffs upon other in the class depend definition within scenity laws therein, which are as of the date on obscenity those laws June of opinion ex Defendants is class was certified. No unconstitutional.31 respect from however, shall restrained insti- likewise be pressed, tuting any Jersey’s proceedings or constitutionality anti- civil seizures authority pursuant or under the applied to minors since as laws (Supp.1973). en their 2A: 115-1.1 laws and N.J.S. propriety of those against not chal minors is forcement plaintiffs named The individual lenged present action.32 in the class,34 herein, proceeding have sought ruling as to the constitu also RELIEF tionality film As seizures. book authority filing opin under the Pending to seizures effected of this anti-obscenity the New ion, has been of New the State herein, the individual enforcing invalid declared from restrained protected. against plaintiffs adequately As are 2A:115~1.1 authorized, how plaintiffs.33 seizures otherwise From within class of ever, pursuant against to munici activity such those flurry prosecutorial pal anti-obscenity the validi precipi ordinances allegedly materials obscene upon ty passed gave have not been rise tated this action and here,35 restraints, existing a different issue raised. We presently it would prospective irrep noted that the claims earlier appear plaintiffs will suffer plaintiffs Y, injunction of the C & Wein and Guar not is harm if an arable recognized spite defendants, of the ino could be Accordingly, their sued. proceedings pendency acting of state criminal agents persons in active and all against of the class action subject them their su because them or concert with challenge Jersey’s to New nature pervision restrained or control shall be anti-obscenity respect any instituting law.36 With prosecuting ac or challenge procedures, against to seizure how tion, proceeding prosecution ever, certified,37 no plaintiffs class has been under the the within class of Y, plaintiffs therefore, anti-obscenity as to C & Wein herein law Guarino, must abstain on no this court and of to be unconstitutional declared Younger grounds. Wade, extend, Roe v. 410 U. injunction shall not effect. This 35 L.Ed.2d 147 however, prosecutions S. to the criminal (1973).38 plaintiffs pending currently supra. opinion 37. See note here as to We intimate no municipal constitutionality ordi- respect Y, Wein, 38. Abstention with to C & purport to deal with obscene nances Younger and Guarino abstention: propriety materials, of such since the “It is not abstention the Pullman challenged plead- in the is not ordinances sense, because it a decision on involves any event, proper- ings, would not equitable tlie merits of claim for re- the Moody Flowers, ly 387 be before us. remedy adequate lief there is an 1544, 97, L.Ed.2d 643 S.Ct. 18 U.S. 87 law in the state courts and that at (1967). equitable is in- therefore federal relief appropriate.” has no effect 32. decision therefore This Montemuro, F.2d at 2A¡115-1.7(a) (Supp.1973). Conover v. 477 1080 upon N.J.S. (3d 20, 1972), filed Dec. resubmitted Cir. July 1, 1973; filed Order effective June May 8, banc, (filed en March 6, 1973. 1973). dealing here Since we are not abstention, Pullman this with Court 34. No been certified as to the class has jurisdiction against procedures.' challenge of the matter. need not retain made seizure Lawyers Compare p. Trial Ass’n American See 1318 of the text. Jersey Supreme Court, 409 v. New U.S. supra. note See 31 627, (1973) 467, 93 S.Ct. 651 (per curiam). pp. 36. See of the text. 1320-1322 by may displaced application the to the tomorrow ute] As which be 3a Beyond by adjudication.” plaintiff return of its can Hamar for the a state defendants, judicial procedure, by no state ons of absten film seized the sound pending. proceedings important Be inter are serves the national criminal plaintiff’s under est in “the avoidance of needless friction cause the statute 4a “scrupulous policies,” copy has now film seized with state and a sole its by regard rightful independence of this unconstitutional for the been declared 5a improper governments.” court, and the the state the seizure plaintiffs. the returned to film must be Against weigh these considerations one shall have week Defendants litigant particular who the claims of the copy filing opinion to make a of this jurisdiction properly has invoked purposes be for of the film evidential possibly would federal court who returning plaintiff Hamar. fore delay subjected were the be to extensive designed adopted procedure here is The federal to abstain.6a court recently taken to accord with view Analyzing present the facts here and by in Heller v. New sorting recepta- into the two then them 2789, 483, York, L. 93 S.Ct. U.S. Court, cles of the dictates that this scale (1973). Ed.2d 745 time, stay at this its hand. least at consistent An order shall be submitted in favor of an immediate The factors opinion, to as this consented prepon- decision of matter are parties, weeks. two form all within agreed that an derant. The state has granted. costs will be highest No interpretation by court state

of the statute here assailed expects sought, expeditiously will be Judge (dissenting): ADAMS, Circuit argument Sep- held that oral will be enunciated The doctrine of abstention during pendency Moreover, tember. ad v. Pullman Co.1a Railroad Comm’n Attorney- proceedings, of the state that, certain circum monishes at has indicated General of New postpone stances, federal court should argument prosecutions will not oral challenge the constitu resolution clearly processed. These two items there tionality until of a state plain- possibility diminish the construction been a definitive has class, of their will tiffs or members court.2a the state that statute injured by decision to the federal court’s making whether the determination abstain. engage abstain, bal- a court must militating ancing weighty Compared On elements concerns. suggesting possibility abstention, those side of abstention is the large. proper the state loom rendered construction that abstention modify Superior has the consti- of New court would avoid or deferring challenge ques- By interpreted posed. recently the statute tutional might decision, which, inter- court but the federal tion in a fashion having vening facts, an- as- tentative have avoided avert “mak[e] constitutionality meaning state stat- swer [on saults on quoting 1a. 312 U.S. L.Ed. 5a. Id. at 61 S.Ct. Ass’n., (1941). Ins. v. Camden DiGiovanni L.Ed. 47 56 S.Ct. g. NAACP, 2a. See e. Harrison v. (1935). (1959). Koota, ,6a. 389 U.S. See Zwickler 241 Co., 3a. Railroad Comm’n v. Pullman 312 (1967). 248, 391, 444 88 S.Ct. 496, 500, U.S. 61 L. S.Ct. 85 Bd, England v. Louisiana State Cf. Medical (1941). Ed. 971 411, Examiners, 84 U.S. 375 461, (1964). 4a. Id. 11 S.Ct. L.Ed.2d 440

1331 Although principle specific the decision of the cause of this and the statute.7a final, case, my judgment is not a de facts in tribunal this which statute, interpretation decision, of the do finitive not demand immediate ab statutory flexibility especially appropriate stention illustrates here.14a permitted to the courts construction

the state. 1973, importantly, 21,

More June Supreme decid Court

the United States case, In that

ed Miller v. California.8a Court, time

majority of the for the first States,9a “agree [d]

since Roth v. United on a to determine what consti standard Philip Joseph MAITA, Petitioner, obscene, pornographic material tutes subject regulation State’s 10a police power.” WHITMORE, Respondent. Earl No. C-72-1203-OJC. in Miller The standard established change represented from the earlier Court, United States District pattern most states had N. D. California. interpreted their statutes. enacted and 9, Nov. recognized Supreme vari legislation yet ance made clear that new necessarily required not Rather, “authoritatively states. statutes 11a comport

construed” the new acceptable .12a

standards would deemed “authoritatively

This Court cannot stat

construe” the New highest

ute. The court of New just

can do that.13a salutary

A the wise rule of caution is ancient that a court ad- doctrine except

judge validity of a statute necessity, every doubt

manifest extinguished explored before

moving grave Be- to that conclusion. 310, Wilson, N.J.Super. 2665, 7a. 123 (1973), Coleman v. L.Ed.2d 500 (N.J.Super.1973). clearly A.2d the inter- indicated pretation be made should L.Ed. 8a. S.Ct. bv the state court. (1973). 2d 419 that, “We further note we while must 9a. U.S. 77 S.Ct. leave to state courts the construction (1957). legislation, duty of state we do have a authoritatively construe federal 1 0a. at 2614. 93 S.Ct. . statutes. .”93 n. S.Ct. 11a. Id. deciding abstain, 14a. In I would re- hold, 12a. as Mr. Justice “We do not jurisdiction pending tain of this case dis- intimates, that all other Brennan States position by system. the state court See Oregon ob- now enact new than must Koota, Zwickler v. 244-245 existing scenity Other state statutes. (1967). n. 19 L.Ed.2d 444 statutes, here- as construed heretofore or delay developed, If undue court adequate.” after, may Id., n. 6. well be proceed adjudication. could then with an Reels of 12 200-ft. 13a. United States v. Super Film, 8mm.

Case Details

Case Name: Hamar Theatres, Inc. v. Cryan

Court Name: District Court, D. New Jersey

Date Published: Jul 26, 1973

Citation: 365 F. Supp. 1312

Docket Number: Civ. A. 472-73, 496-73 and 585-73

Court Abbreviation: D.N.J.