Salt Lake City v. Piepenburg

Atty., City, Lake for plaintiff Salt and re- spondent. CITY, Plaintiff LAKE SALT Respondent, ELLETT, Chief Justice: appellant operates a film theatre and PIEPENBURG, D. Defendant

James charged was with and convicted of the Appellant. exhibiting pic- crime obscene motion No. 14688. ture. The charge was made under in the City ordinance and conviction had Supreme Court of Utah. taken to the appeal Court. An was then 28, 1977. Oct. where, upon District a trial de Third Court novo, again appellant convicted. appeals Supreme He now Court of assign- Utah where he makes a number of error, only cogni- ments of one of appeal, validity zable on to wit: ordinance under which he was tried and convicted. perform-

The ordinance defines “obscene ance” as follows: performance play, Obscene means dance, picture, motion show or pre- other sentation, pictured, whether animated or live, performed before an audience and which in whole or depicts or re- part conduct, nudity, veals sexual sexual ex- abuse, citement sado-masochistic which includes explicit obscenities or ver- description bal or narrative accounts of conduct. sexual picture exhibited revealed an The motion woman in various entirely naked man and (fellatio, cunnilingus, bug- sodomy acts of closeup gery) adultery shown —all photography. camera disgusting, depraved A sickening, more However, showing imagined. cannot be justices Supreme certain Court of -United have said that before a mat- States obscene, ter can be held to be it must be whole, “. . when taken as a lacks artistic, scien- literary, political, serious tific value.” part judges, acting Some state sycophants, echo that doctrine. It would ought only' that such an appear argument Lubeck, O’Connell, John D. Bruce C. Salt mentally defi-1 by depraved, to be advanced City, appellant. for defendant and Lake cient, who' mind-warped queers. Judges Cutler, permit find technical excuses City Atty., F. Lake seek to Roger Salt pre- under the pictures Lake to be shown Maughan, Paul Asst. Salt G. 1300 the trial of a misde- errors in alleged for value to it intrinsic finding

tense of some the Unit- case, go to his will have to to that returns dog are reminiscent of a meanor in the filth district of some morsel as the Supreme vomit search Court ed States to redeeming value which have some Constitution, highest is, by our court have not judges his own taste. If those in such errors in Utah to consider court their resign from good decency sense and cases. be removed they should positions judges, but aside long, is rather The dissent of the by the vote impeachment either bounds, it is constitutional being outside constituency. of their people decent reasoning. For convincing in its also in this case involved The ordinance instance, space is devoted great a amount to its in doubt as and no one can be clear attorneys, prosecuting that the to the fact showing of ex- meaning. proscribes It them, neighbors and inquired or some of It is nudity. sexual intercourse plicit juror as to whether religious leaders broad, counter to nor does overly run move and church. This is a smart attended The ordi- any prohibition. set of lawyers. all Each practice good a is valid. nance challenges for peremptory lawyers has some guilty on two was found appellant trying no reason. In give need first, City in the Court and trials: separate the claims appreciate will get second, He cannot in the District Court. lawsuit, party to be made claimed errors at raise in this Court blindly not be challenge should peremptory was his court of The District Court trial. defense can be sure that the taken. One errors, for all asserted save for last resort would (if good lawyer) he was a attorney the ordinance. The constitutionality prosti- among pimps, inquiry have made that court are final as to other rulings of homosexuals, members of tutes, and other VIII, 9 of claimed errors. see if community to pornographic provides: our Constitution favorably in- jurors might be prospective shall also lie from Appeals showing accused of protect clined to one justices of the judgment the final films. pornographic peace in civil and criminal cases to questions of District Courts on both law case, man choose every In this must fact, re- with such limitations and me, he wishes to take. As which stance law; provided by as shall be strictions respect I will enforce a valid ordinance the District Courts on and the decision of authority of final of the court judgment final, except in appeals shall be matters, invalidity to all save validity or constitu- involving cases ordinance. tionality of statute.1 court, is of the district judgment 1 below are to The cases cited footnote therefore, affirmed and the case is remand- from a court appeal the effect that an hereto- ed for the execution of the sentence justice as that from a is the same fore imposed. peace court. reverse the searching In for reasons to CROCKETT, in re- (concurring Justice Piepenburg, Mr. the dissent conviction of sult): errors that the court of attempts to find the ordinance holding concur in the I be non-existent. If last resort found to specific per- sufficiently clear and higher to a appeal there is to be Lee, 197, Robinson, City 78, Lake v. Utah 161 P. 926 Salt 49 1. See also State v. 23 Utah 2d Hoffman, Peters, 462, City (1916); State v. (1969); Utah Salt Lake 91 v. 457 P.2d 969 Granato, (1937); Bountiful v. (1969); 77 Utah State v. 449 P.2d 652 Utah 2d Perkins, City Lyte, (1930); Logan Lake v. (1930); Salt P. 205 P. 1006 75 Utah Blotter, (1929); 122 Utah 245 P.2d 1176 v. 75 Utah 284 P. 333 Brown, 75 Utah (1928); State 282 P. 785 HALL, result): Justice (concurring who desire to ordinary intelligence, sons of is, it, to abide know what the law and kind, In a case of this confu- oftentimes understanding difficulty have no appropriate sion arises as Court’s doing so I add the prohibited.1 what is prerogative role. It is not the Court’s following observations: give effect to our individual views on ob- Rather, it is in- scenity pornography. case of the- As indicated in our recent us to what the upon cumbent determine nature, own Phillips,2 same v. our State Constitution allows. Constitution, I, 1, State concerning a better and broader statement holding I concur in the of constitutionali- ty only freedom of and than the of the ordinance and that such is the thought expression Court, despite issue before the the fact First Amendment to the United Con- States there is serious as to defendant’s question provides stitution. Our section that: standing concurring before this Court. All men have the inherent inaliena- and observes opinion aptly of Justice Crockett' ble ... to communicate free- standing the defendant’s lack of to assail ly their thoughts opinions and vagueness light ordinance Notwithstanding that desirable and salu- obscene, his showing clearly conviction of assurance, tary expression, just freedom of pornographic only material and I wish to freedoms, subject like all other to reason- Tritt, 365, cite 23 Utah 2d 463 P.2d State able limitations where the protection of (1970) supports principle health, public safety requires. or morals so if a may even statute be unconstitutional Accordingly, even the most “liberal” and to certain or situations it applied individuals uninhibited concede that obscenity por- will not be stricken at the down behest nography subject to control law.3 adversely one who is not affected defect. Whatever else be said about lack Irrespective foregoing, assuming of the other certainty deficiency in the ordi- proper standing defendant has to attack the

nance’s defining pornography, this de- ordinance, be in- every presumption must fendant is in position complain no there- dulged constitutionality in favor of There can question of. be no whatsoever act doubt resolved in every reasonable fair minded person with com- validity.1 favor of its mon sense would know and admit that the published porno- material was obscene and primary Defendant’s claim is that The mere that in graphic. fact the abstract unconstitutionally vague ordinance is might adversely the ordinance affect some- that it fails to adhere to the overbroad and one else in different circumstances does not set forth in Miller v. California2 standards advantage.4 redound to defendant’s which are as follows: Packard, respecting rights similar in other individuals 1. See State v. Utah 250 P.2d society generally.” 561. 540 P.2d and the welfare of at 939. Utah, 936; 2. if it is the desire of the case, Phillips dissent to characterize this California, 3. Ibid.: and see Miller v. 413 U.S. by looking at one fairness it should be done 2607, 37 419 and cases L.Ed.2d pornogra- facet thereof. The case dealt with therein cited. phy. regard application to whatever United First Amendment of the States Consti- Am.Jur.2d, Const.Law, See 16 Sec. stated, issue, writer tution has to that ‘right’ spew “What the claimed the filth of pornographic Packer, and obscene materials on one’s 1. State v. 77 Utah 297 P. 1013 political Gibson, (1931); fellow man has to do with gious liberty and reli- Broadbent v. 105 Utah perceive.” is difficult to And fur- P.2d 939 ther stated: “. . we have no desire to every person disparage the idea that should 37 L.Ed.2d 419 2. 413 U.S. S.Ct. highest possible degree of freedom of thought, expression with and action consistent difficulty position criminal. The for the trier of fact guidelines The basic (a) average per- proper provi- whether ‘the is that construction must be: son, community contemporary requires that as a applying sions considered work, standards’, find that the tak- whole.3 whole, appeals prurient en as a viewed, general When thrust of so interest; (b) depicts whether the work readily becomes apparent the ordinance describes, way, in a offensive which is prohibit dissemination defined specifically sexual conduct lan- limiting “obscene” material and the law; (c) whether the applicable state lan- nearly verbatim the guage, follows whole, lacks lit- work, taken as a serious Miller, note 2. The guage supra defini- artistic, erary, or scientific val- political, tive must be read into language necessarily ue. parts all where the word ordinance violating Defendant was convicted Sec. used, doing so “obscene” and in it ade- Revised Ordinances of 32-1-10(3) of the so as application to meet quately limits 1965, which it un- City, declares Salt Lake safeguards.4 knowingly to show a wilfully lawful to or makes other constitutional Defendant represents or de- “depicts movie or which be met. challenges should His asser- conduct, sexual an obscene scribes obscene expression should be tion that freedom of

performance or obscene sado-masochistic very adequately by covered absolute was advertising for abuse or obscenities concurring opinion Justice in his Crockett purposes.” 32-2-10.1 of said ordi- Section subject to and indeed it must be reasonable terminology nance set forth defines limitation; of violation of his assertion 32-2-10.1(14) therein provides: and Section virtue of privacy by fails the fact act, mean de- (14) shall Obscene as a movie was shown commercial piction, representation, description, per- the scope outside clearly venture which is item, formance, or or other material truly private those activities warrant described, in this chapter conduct wheth- of violation of protection,5 his assertion form, er or simulated in which: actual protection fails since there is equal also whole, (a) the average per- Taken as a treating for law clearly reasonable basis son appeals prurient would find educational institutions enforcement or applying contemporary interest when pursuits with bona and intentions dif- fide standards; and community ferently profit-making than commercial (b) Depicts, portrays describes or sexu- pursuits ventures unlawful and inten- with conduct, al in subparagraph as defined is rationally Such a classification tions. (12) above, in way; offensive public legitimate related to state and in- sustainable;6 finally, terest and his as- (c) whole, as a lacks lit- Taken serious impartial sertion of a denial of trial artistic, erary, political or scientific value. clearly not reviewable here under Constitution,8 law7 case and the Utah be- Defendant maintains definitions are is the court protected activity so as to render cause district court of last broad 369, Utah, Stone, Packard, (1975). 250 3. 533 State v. Utah P.2d 561 Buhler v. P.2d 292 6. 122 Dukes, 297, (1952); v. 427 New Orleans U.S. 96 2513, (1976). 49 L.Ed.2d 511 S.Ct. Oklahoma, 601, v. 413 U.S. Broadrick 2908, 37 L.Ed.2d 830 Robinson, 2d 7. State v. 23 Utah (1969) the numerous cases there 969 cited Reidel, 5. U. 402 U.S. 91 28 S. v. S.Ct. Critton, in, recently by City Vernal v. followed (1971); Paris Adult L.Ed.2d 813 Theatre v. Sla Utah, (1977); City 565 Salt Lake P.2d 408 ton, 413 U.S. S.Ct. L.Ed.2d Perkins, 122 Utah 245 P.2d 1176 VIII, providing appeal for Section justice all court to district court decisions has no lines was unconstitutional. court did appeals and Court resort on such ordinance, not construe the but denied de- jurisdiction.9 appellate motion, case. fendant’s as it related to his MAUGHAN, (dissenting): Justice “It shall un- The ordinance declares: be in a proceeding a criminal wilfully knowingly lawful or any person a violation of charged with defendant was to either: Lake 32-2-10(3), Rev.Ord. Salt (3) write, Import, compose, stereotype, charged he was (1975). Specifically, draw, paint or other- print, design, copy, depicting exhibiting picture a motion sell, sale, prepare, publish, offer for wise found conduct. He was obscene sexual display, exhibit machine otherwise court. He to the district guilty. appealed any writing, pa- or distribute or furnish novo, he was convicted a trial de Upon book, picture, drawing, magazine, per, reverse. We should jury. appeals. He design, figure, still or pamphlet, print, many; picture, photograph negative reasons for reversal motion jurisprudence. thereof, our re- photocopy, engraving, sound are fundamental card, egregious. cording, infirmities are instrument or other such depicts represents article which or de- any defense based Defendant waived conduct, an ob- scribes obscene sexual value; because he considered artistic upon performance, obscenities or obscene scene misconduct, and the con- prosecutorial with the intent to sado-masochistic abuse ordinance, infirmities of stitutional distribute the same. require reversal. magnitude of such contentions. agree 32-2-10.1, with both provides: We should Definitions as chapter used in this un- issue; First, I address the constitutional requires less the context otherwise: giving misconduct prosecutorial then the of an impartial the claim of denial rise to

jury. sell, rent, (6) give, Furnishes means to provide. or otherwise loan majority does not appear

It would any matter (7) uncovered, a First Amendment Nudity accord means or less any covered, than other. If such is greater strength opaquely genitals, than human Phillips,1 areas, v. where this pubic done under State the human female breast be- the First Amendment was noth- point immediately top Court said low a above the upon areola, more than a limitation Con- ing or the covered human male powers and the gress of the United States genitals discernibly turgid in a state. government; definition, or under purposes federal For a female this guise, I submit it cannot withstand nip- other uncovered if the breast considered analysis. only or the areola are ple nipple only covered.

The Constitutional Issue (8) performance play, Obscene means a dance, picture, pre- motion show or other urges throughout proceed- Defendant sentation, whether animated or facially pictured, was unconstitu- ings ordinance live, performed before an audience and overbreadth. The ground tional on the part depicts which in whole or in or re- insofar as the ordi- trial court ruled conduct, sexual ex- nudity, v. veals sexual to Miller California2 it nance conformed abuse, or constitutional, citement or sado-masochistic portion and that explicit obscenities or ver- guide- to those includes which did not so conform Utah, final, involving validity except 540 P.2d 936 cases constitutionality of a statute. or L.Ed.2d 419 2. 413 U.S. Brown, (1928); P. 9. State v. 75 Utah Lee, Lake 49 Utah 161 P. 926 Salt portrays or sexu- (b) Depicts, describes or accounts of description narrative bal conduct, subparagraph as in defined al conduct. sexual above, way; in a offensive (12) slang those means (9) Obscenities rejected for currently generally words whole, serious lit- as lacks (c) Taken that are society, use mixed regular artistic, value. political or scientific breasts, erary, genitals, female to refer used functions or excretory or mean conduct shall (15) sexual Prurient interest mean- no other either in nudity, or interest products, morbid shameful clearly used for that in ing sex, or context or excretion. meaning. excretory bodily,

their sexual or the ordi- appeal defendant contends On means abuse (10) Sado-masochistic face, its in that unconstitutional on nance is upon per- or torture or flagellation the First Amendment it violates undergarments who nude son or clad applied to the Constitution United States or or costume revealing bizarre or States; Amend- through the Fourteenth fettered, being bound oth- condition of standing to raise urges ment. He he has part on the physically restrained erwise the doctrine under constitutional issue one so clothed. overbreadth, the ordinance in and that pos- (11) Distribute means to transfer by judi- form limited present cannot be viewed, heard permit of or to be session comply with the cial construction so as to examined, considera- with or without set forth standard tion. Supreme Court. United States means human (12) conduct Sexual regu- government attempts When the masturbation, sexual intercourse here, rigorous constitu- expression, late or uncovered touching covered Where First apply. standards tional breast, pubic ar- human genitals, female are at stake Amendment freedoms male or or buttocks of the human eas repeated- Supreme Court United States mem- female, or between whether alone drafting emphasized precision ly sex or be- opposite of the same or bers clarity of are essential.3 purpose an act humans and animals tween Therefore, . context, in the Amendment First gratifica- sexual or apparent stimulation standing overly has to attack person a include, but not tion, which term shall be statute, demonstrating that, without broad fellatio, cunnilingus, pederasty limited to fact, protected. specific his conduct was bestiality. First overbreadth The Amendment the con- means (13) Sexual excitement doctrine, departure however, represents genitals human female dition of male or person that a from traditional rule when in of the female or the breasts on the may challenge a statute stimulation, or the sensual state of sexual applied be unconsti- ground might in or engaging of humans experiences other than tutionally circumstances nudity. sexual witnessing conduct those before court. [Citations] act, de- mean an (14) shall Obscene rule in First special reason description, per- representation, piction, apparent: is over- Amendment cases item, formance, material or any other protect- to chill statute serve might broad described, wheth- in this chapter conduct interests speech. ed First Amendment form, which: or simulated in er actual interests, person and a who fragile are protected activity might be whole, average per- contemplates Taken as a (a) effect by the in terrorem prurient distouraged would find to appeals son Indeed, such statute. contemporary when applying interest [Citation] standards; speak not to because person might choose community 217-218, Jacksonville, 45 L.Ed.2d 125 3. Erznoznik v. U.S . depict works which or describe sexual privi- claim of whether his uncertainty specifi- The use That conduct must be challenged. if conduct. lege prevail law, the con- analysis applicable reflects state cally of overbreadth defined society harm to possible clusion that authoritatively as written or construed. go to allowing unprotected speech offense must also be limited to A state possibil- outweighed is unpunished which, whole, appeal taken to works will be muted.4 protected speech ity sex, por- interest in prurient sexual conduct in a offen- tray area, any Amendment en- In the First which, whole, taken as a do way, sive at issue is placed of a statute forcement artistic, literary, politi- serious limiting until and unless a forbidden totally cal, or scientific value.9 invalidation so nar- partial construction threat or seeming it as to remove the rows Thus, to attempt by the state constitutionally protected ex- deterrence materials, form of ex- obscene regulate pression.5 First is under pression protected challenge the standing Defendant applicable Amendment as States grounds Amendment on First ordinance Amendment, through the Fourteenth unless overbroad, whether or not his own facially permissible the material falls within the constitutionally priv- is shown to be activity in Miller. scope regulation as set forth overly broad statutes Attacks on ileged. facially overbroad in Is the ordinance no that the requirement permitted attempts regulate protected ex- that his own conduct demonstrate party survey A of the ordinance com- pression? a statute drawn regulated by not be could an affirmative answer. pels specificity.6 narrow requisite with the in subsection proscribed expression analysis, the court In an overbreadth (3) includes all where there is an situations the constitutional should first delineate 10.1(11) In subsection intent distribute. ex- protected unprotected bounds term in all en- “distribute” defined Then it should be determined pression. compassing beyond terms and extends facially challenged whether the statute scope permissible pro- regulation. question to be re- Finally, overbroad. scription against exhibition or distribution limiting whether a construction solved is confined to of obscene material is no where challenged on the statute to placed public ac- places local commerce and infirmity.7 cure its constitutional commodation, in- but extends to all areas reiterated that ob- In Miller8 the court poten- cluding places the home and other unprotected by the First material scene privacy. within the zone of tially protected Amendment. ob- Stanley Georgia,10 the court however, acknowledge, We governmental in- served that asserted to dangers undertaking of the inherent dealing problem in with the of ob- terest expression. form of State regulate any insulated scenity every cannot in context be ma- designed regulate to obscene statutes The protections. all constitutional carefully limited. terials must be [Cita- interest in result, important has an government we now confine the As a tion] distribution regulation the of commercial of regulation permissible scope of Colo., 1278, Arizona,-U.S.-, People, P.2d Hansen v. The 548 4. Bates v. State Bar of 2691, 2707, -, (1976). 53 L.Ed.2d 810 1280-1281 97 S.Ct. (1977). supra. 2 8. Note 613, Oklahoma, 601, 413 U.S. 93 5. Broadrick v. 37 L.Ed.2d 830 S.Ct. U.S., pp. p. 2614 of 93 S.Ct. 9. at 23-24 of 413 at Virginia, Bigelow 421 of v. Commonwealth 1243, 22 542 10. 394 U.S. L.Ed.2d S.Ct. (1975); 44 L.Ed.2d 600 U.S. Inn, Inc., Salem U.S. S.Ct. Doran v. 45 L.Ed.2d hand, equate On the other privacy of home relied on in material. obscene right to be with a zone of that Stanley, privacy the fundamental follows individual distributor, a or of mate- circumstances, consumer obscene- limited free, very in except rial, fact, In the idea of goes. wherever he intrusions governmental from unwanted place public of a ac- privacy and of in the especially privacy privacy, into one’s are, context, mutually commodation in this mere catego- Thus own home. of one’s ruled: exclusive. constitutes obscene rization of material . In this case we that the for invasion of hold justification an insufficient regu- States in legitimate interest by the guaranteed personal liberties one’s in obscene lating commerce material and Amendments. and Fourteenth First regulating in exhibition of mate- obscene court stated: places accommodation, in public rial may justifi- be Whatever . including so-called ‘adult’ theaters from ob- regulating statutes other cations for which minors are . . .14 excluded. they reach into not think scenity, we do ,11 home. matter, . privacy overly of one’s own In this the ordinance is scope in that regulation broad is not exploitation confined commercial of de- that can issue with Certainly, one take no pictions, descriptions, or exhibitions of ob- holding. scene conduct on premises open commercial in Mil- Throughout majority opinion public. to the adult ler, permissi- that the emphasized the court city urges that its definitions of “ob- regulation encompasses scope ble of state comply scene” and “sexual with conduct” viz., or nudity sex exposure, commercial set forth standards pictures or may exploited by films Miller. public accom- places exhibited sold in First protection modation. The requisite to consti- One elements to the public not extend Amendment does obscenity tute under the Miller standard is its core sexual conduct for portrayal of hard depicts the work describes ensuing commercial sake and for patently way spe- own offensive sexual conduct court stated: holding, In gain. applicable defined law.15 cifically state cited examples type The court these We are satisfied sexual conduct which state could define no- provide will fair specific prerequisites regulation. his in such materials that tice a dealer (a) activities public Patently repre- and commercial offensive bring prosecution.12 [Emphasis descriptions sentations or ultimate sex- added.] acts, perverted, ual normal or actual or Slaton,13 I v. Adult Theatre Paris simulated. Miller, the court companion empha case of (b) Patently offensive representations had a long-recognized sized the states descriptions masturbation, excretory use of legitimate regulating interest functions, geni- lewd exhibitions materials local commerce and all obscene tals.16 accommodation. The court places public unavailing compare observed In Jenkins v. Georgia17 was held that theater, fee, public for a open foregoing examples, although were private Stanley Georgia. purported home to be an catalog exhaustive conduct, The court out it had declined to offensive sexual pointed were U.S., U.S., p. p. p. p. 24 11. at 565 of 394 at 1248 of S.Ct. at of 413 at 2615 of 93 S.Ct. 89 U.S., p. p. 12. at 27 of 413 at 2616 93 S.Ct. U.S., p. p. 25 of at at 413 2615 of 93 S.Ct. 49, 2628, 13. 413 U.S. 93 S.Ct. 37 L.Ed.2d 446 153, 160-161, 2750, 17. 418 U.S. 94 41 S.Ct. (1973). . (1974) 642 L.Ed.2d U.S., p. p. 14. at of 413 2642 of 69 at 93 S.Ct.

1307 10.1(12),there would be a perplex- section substantive constitutional to fix intended subject overlapping, which would cause confu- ing of material type limitations on any attempt interpretation. in at a determination. sion to such set forth in examples to the an obscene proscription against per- In reference Hamling v. United Miller, court said in any nudity. includes An ordi- formance States:18 nance of similar breadth was declared un- constitutional in Erznoznik v. of Jack- particular descrip-

. While sonville, not intended where the court said: there contained were tions exhaustive, clearly indicate to be . The ordinance is not directed neither beyond a limit which that there is against sexually explicit nudity, nor is it juries may go nor legislative draftsmen Rather, sweepingly otherwise limited. material particular concluding display containing any forbids of all films meaning offensive’ within ‘patently breasts, irrespec- uncovered buttocks or forth in the obscenity test set ,19 tive of context or . pervasiveness. . . Miller cases. offensive sex- patently definitions of 10.1(8), (9), the definitions under Since 10.1(12) includes ual conduct subsection conduct, (10) attempt to which is proscribe constitutional acts outside substantive type subject regulation under of material type limitations as to standard, they the Miller the strin- exceed touching of but- regulated. The may be set gent constitutional limitations forth. uncovered, breasts, covered or tocks and 2—10.3,provides: Section 32— many, offensive although subjectively judge Trier. The or the shall Sole core” sexual conduct type of “hard be the sole trier of what is obscene. It under Miller. subject regulation to state California,20 In Miller v. the court stated there are in- acknowledged that should be following guidelines are as the basic for the the definition acts which within cluded the subsection is trier of fact: subject regulation, pro- areas of broad and extends into overly (a) average per- . whether ‘the tected expression. son, applying contemporary community work, standards’ would find the taken as (3) further ordinance Subsection whole, interest, appeals prurient performances,” “obscene sexual prohibits (b) depicts whether the work [Citations] “obscenities,” sado-masochis- and “obscene describes, way, in a offensive tic abuse.” specifically conduct defined sexual that the definition of urged law; (c) whether the state applicable 10.1(14) would cure “obscene” subsection work, whole, lacks serious lit- taken as a in the defini- infirmity constitutional artistic, scientific val- erary, political, or 10.1(8),(9), (10). tions in ue. “obscene” and “sado-masochis- Although permitted the trier of fact is Thus defined, the are defi- separately tic abuse” concerning ele- certain facts determine performance” sexual nitions of “obscene obscenity, but whether material is ments of complete without and “obscenities” of law of question remains a “obscene” of “obscene.” to the definition reference magnitude. Furthermore, of “ob- since the definition urged the state Georgia21 one of its ele- In Jenkins expressly includes as scene” review of jury’s precluded verdict conduct” as set forth sub- ments “sexual 20. 413 U.S. 18. 418 U.S. 2615, 15, 24, 2607, 2887, 2906, 37 93 S.Ct. 94 S.Ct. L.Ed.2d 419. L.Ed.2d 590 21. 418 U.S. 19. 422 U.S. 2750, 2755, 2268, 2274, 94 S.Ct. L.Ed.2d L.Ed.2d of his exhibition not and could usurp preroga- that would the assertion appellant’s First and by legislature the the protected by supplying tives of essen- film was the Amendments. which by Fourteenth tial elements had been omitted body. It cited a juris- that number of other responded: court The dictions, wherein the courts had declined to ap- of though questions Even . judicially construe or rewrite their statutes patent or of interest’ ‘prurient to the peal to comply so as with Miller. It held: ‘essentially questions are offensiveness misreading of We deem it more fact,’ important it would be a serious to adhere have unbri- juries to conclude principles statutory Miller to well-founded determining what construction, dled discretion recognizing the fundamen- we only did offensive.’ Not ‘patently separation doctrine of than powers, tal ‘the values say there First Amendment police ‘to defend the of the state power through the applicable States arbitrarily by restricting operation the adequately Fourteenth Amendment general present the words of statute.’ our power appel- the ultimate protected . . .23 [Citation] re- independent courts to conduct an late aspect Another which merits considera- neces- claims when of constitutional view tion is that ordinance bears the date of U.S., at sary,’ S.Ct. 1975. Miller was decided June 1973. holding plain made it that under we ample The had to draft an opportunity prosecution to subject ‘no one will be fully complied ordinance that with the Mil- materials exposure of obscene the sale ler standards. depict or describe unless these materials sexual offensive “hard core” People,24 In Hansen v. the court dealt Id., . .’ at S.Ct. conduct a section of the with Criminal Code which had legislature legisla rewritten. The it a ture had before proposal at- as an 32-2-10.3 is unconstitutional brought compliance statute in full preclude to review as to tempt appellate with constitutional of the First mandate is enti- issue of whether material ultimate legisla Fourteenth Amendments. And protection under the First tled language ture omitted the from essential Fourteenth Amendments. enactment. The court ruled foregoing analysis attempted positive of the legisla view action illustrate, although exhaustively, some ture, the court was con foreclosed from that are provisions the ordinance sidering application of a doctrine limit ordinance, facially May overbroad. ing construction of the statute. nevertheless, be so as to cure construed important inhibiting not think so. The most factor infirmity? I do comprehensive undertaking Supreme Court was con The Colorado is the mandate redrafting ordinance People fronted with a similar issue V, Constitution in The court it was not Tabron.22 stated Utah. to redraft statute enacted clined powers government legislature compliance to insure its with shall of Utah be divided into three Supreme State States Court standards. United departments, Legislative, distinct prosecu The court observed that what the Judicial; Executive, per- and the no urged guise tion under of “authoritative was, fact, a re charged powers construction” “wholesale son the exercise of writing” Obscenity properly belonging Colorado Stat one of these de- It then said partments, utes. that the function of shall functions exercise others, interpret court was to a statute and that appertaining either of the ex- Colo., 24.Colo., 544 P.2d 372 1281-1282 pp. 23. at 379-380 of 544 P.2d misconduct, which had the effect of directed rial expressly cases the herein

eept in influences. suggested.] jury the to outside subjecting [Emphasis permitted. recently in the is applied The misconduct principle prosecutorial was asserted This of Firefighte Lake v. I. A. City Deputy of Salt actions of the then case based on the General, Hansen, rs.25 who as- Attorney Robert an in this prosecutor act is Severability, part where sociated with the trial, unconstitutional, a matter of course two primarily During is case.26 of the . where legislative they intent. to the trial had jurors reported judge interrelated, are not with- a provisions concerning pretrial information obtained court’s function scope of the At- investigation by in of them conducted of the act and valid portions select torney General’s office. conjecture legislature intended make in- neighbor testified Pappas Juror her por- of the independent they should stand Attorney a contact by formed her of tions which invalid. neighbor was asked General’s office. comprehensive a City Lake enacted Salt Pappas? was Mrs. person what kind of a certain con- statutory setting scheme forth out and go Did she Did she live alone? court conceded as criminal. The trial duct a party lot? in the ordi- many of the provisions that the ward27 testified that Juror Wardle Nevertheless, nance were unconstitutional. his in the ward of secretary (an officer ruled, attempt making without at was church) inquiry contacted and was construction, limited that a few definable Mr. went as Wardle made to whether constitutional char- conceivably kernels church; he was whether honest? gleaned plethora be acter could jurors two interrogation these chaff. This rul- unconstitutional in-No in the court’s chambers. conducted V, contrary to 1 of our ing is Article Section to wheth- jurors these quiry was made of It function is not the Constitution. investigation knowledge er their this process in a selective

judiciary engage verdict. their affect legislative body speculate that portions only, the valid would have enacted concerning said Hansen Attorney comprehensive enact- integrated in some- jurors, of the background check ment. in the inquiry one his direction made under he or his He stated that if neighborhood. Misconduct Prosecutorial in the know someone associates did not accounting actions claim on the the individual neighborhood of bruising qua to a sine non of strike a blow case), usual his office (which list was the were system jurisprudence. They our (the high- bishop of ward contacted ill-conceived, misguid- totally unnecessary, division). authority est ecclesiastical ed, require as. magnitude and of large percent- Mr. Hansen stated Standards, infra.) (See A. A. B. reversal. know the bishops do not age cases involved, know some- do individual he was denied a trial Defendant contends they could who lives close whom one guaranteed by “impartial jury,” bishops explained the contact. Hansen of the Consti- the Fourteenth Amendment information; and his I, were source States, and tution of United because simple expedient, method was Constitution Section did not organization. Hansen prosecuto- on of the church claim predicated His Utah. Utah, a small territorial division 27.A ward is Latter-Day Saints Church of Jesus Christ (Mormon) presided bishopric. Prosecutor, It is over 26. It should here noted Cannon, parish any participation of other churches. similar to disclaimed Theodore he intimated did in the misconduct and Deputy Attorney want the association cases. future General turn, probably prosecution, contacted the favorable to the bishop, if the know for a probably and two would hold out individual. acquit Piep- hung jury they before of misconduct was allegation The second enburg. giv- the basis of an interview predicated on circumstance, the court Hansen, Referring to this during en the course of the trial, later said: to a local television news station. the entire jurors pro-

Three of the observed thing I can indicate only The Court: jurors part two other observed gram; is, extremely No. the Court is you jurors testified the event. All five of about the comments made to concerned program would not affect their reporter the news from KUTV. No. specifically verdict. The trial court had not lawyers engaged who are in the trial jury admonished the not to read or watch go don’t out and make those state- trial, concerning although news people. ments to proceedings generated had local interest circumstance, Another which must be being and were covered the news media. events, considered in the evaluation of these A of the script broadcast was entered in eight jurors of the was the fact that four evidence, the following are some of the newspaper, had the local read the articles in pertinent portions: Church, during sponsored by the Mormon

Recently Attorney the Utah crusade. anti-pornography Seven General’s articles, began January office assistance to these lending dating April 30, in were entered in county prosecutors pornography theater were cases. Part of that assistance included evidence. Defendant and his potential jur- Opinions information about in several. were ex- getting mentioned pressed organized crime and the Mafia ors. pornographic from the reaped profits The list of potential jurors trade. article a local leader as quoted One available late Friday, became several in a case difficulty prosecuting to the be- attorney general’s members of office pornographers represented by cause the spent phone the weekend on the finding “$5,000 day lawyers Mafia who have they out whatever could about them. great skill.” Deputy Attorney General Robert Hansen when questioning about were was satisfied the cutors were were ipate, though in getting the information. directed the effort. Hansen says al- Hansen turn, Judge Peter jurors’ pro workers used the church never contacted it, defense the Mormon Church didn’t supplied he blew or anti pornography. says wards were trying attorney other leads. The jury Leary’s up. to learn jurors by had not been tam- jurors themselves After conferences called, by anyone, O’Connell chambers, if Bishops (members) Leary, partic- jurors prose- heard they, he background tional structure of the church to make a phy, cumstances, viz., the active leadership role and revered President of the revolution. value. It was within the context of these cir- to do all in their One It is that Mr. Hansen utilized the n L.D.S. of the utterly . We call check of the n : Church to eradicate pornogra- articles without power ^[*] upon quoted jurors.28 ^[*] to offset this redeeming all L.D.S. of our the beloved sfc organiza- Church: people social ^[*] ugly jury After the pered with. selected Defense counsel made a motion for mis- Hansen felt morning, pleased by ground prosecutorial trial on the miscon- jurors He five of the grounds efforts. said were duct. One of the asserted was the I take no atmosphere generated, issue with news media’s First to show the ambient publish right jury Amendment nor to the and how was used in relation to the trial. opinion. one to one’s The facts are recounted

13H jurors they were whereby the advised that investigation violated pretrial method watched. being Administration of were A.B.A. Standards 5.3(b), pro- Justice, Criminal court, argument point, At one vides: was not prosecutor asserted neces- appears cases where In those point where can't ren- “tainted pretrial investigation sary to conduct impartial judgment.” der a fair and jurors prosecutor background responded: to investigatory himself should restrict in connec- problem the court has unduly will not harass or methods which it, point, a its tion with it isn’t tainted to their jurors invade potential embarrass “tainted.” and, he should possible, whenever privacy so, Even the court defend- later denied to records and investigation restrict his mistrial, saying ant’s motion for a there in exist- already sources of information that, of the inves- was no evidence because ence. tigation jurors the be influ- decision would that the contact urged counsel Defense I conjecture enced. A with which cannot neighbors and consti- personnel church with agree. jurors. the privacy of tuted invasion In to the Prosecution the introduction that the television further stated Defendant Function, A.B.A., Standards, the Adminis- mentioned the by Hansen given interview Justice, of Criminal stated: tration involvement, that the At- and church’s with resist- began . Our nation background the office in torney General’s oppressive official conduct and ance to jury the knew Defendant contended check. traditions, the our embodied in national knew in- jury watched. The being it was constitutions, that the state demand kind had made as to what been quiry all prosecutor accord basic fairness to were, viz., they they party, did were people wields, the he persons. power Because of An influence had been they moral? outside special duty we on a impose pro- him to jury, they on were made g., the e. exerted safeguard tect the innocent and to the governmental feel that the to authorities — all, including rights guaranteed to those church expected moral and ecclesiastical— bemay guilty. conflicting who de- to arrive at a certain verdict. people going defendant, prosecutor pres- on a exert jury might the feel mands According to verdict, him his of fairness a other- sures on sense compelled to render certain public re- wise, explain they lawyer rejects. how as a Both his they would have expected. obligations as his sponsibilities had not ruled as as well people as moral require was entitled more than Defendant asserted he a member of the bar taint; which, course, winning he free from intent on jury partisan advocate was. cases.29 here, all our institutions the is most appear Deputy

Of It Attor- preserve impartiality democratic. To have bent his efforts ney General should It occurrences, must be free from outside influence. rather than to prevent Here, voluntary, independent. must be in them. As officer voluntarily engage process, overt introduction into case he could counsel government coupled pressure from Macbeth who well have taken counsel persuasion, force ren- of ecclesiastical of Duncan contemplating murder when intolerable; resulting ders the situation said: constitutionally infirm. subject am kinsman and his First, as I his deed; then as his against both Strong quandry was in a The trial court said it host, jury, trial had com- after because his shut the against murderer Who should menced, inquiry received information door, The court characterized had been made. myself. subtle Not bear knife problem persuasion, as one of pp. 77-78.

29. at nature, states that at runs counter to human and he can- further introduction impartial. not be deemed indifferent or level, the sanction of reversal appellate penalty is the ultimate convictions Maxwell,33the court Sheppard In ob- against prosecutors. involv- although in most cases served Advisory of this Commit- The mandate process deprivations, claims of due ing prejudice include the recommendation showing tee does not of identifiable require accused; a procedure the standards there are times pro- to enforce of sanctions prob- involves such a employed by state strongly be too mulgated, but it cannot result that it is ability prejudice will willingness without emphasized that inherently lacking process. in due deemed respon- to assume the and the bar judges system always ‘our of law has “. . enforcement, canons and codes sibility prevent probability even the endeavored such as recom- conduct and standards ” of unfairness.’ reports the other mended in this and .30 Project hortatory. will remain an anal- Sheppard the court undertook It of the circumstances. ysis totality jurors subjected were to news- observed of Mr. Hansen was a fla- The conduct radio, coverage and television of paper, 5.3(b). of grant violation Standard Section jur- give trial. The trial court did not and his methods were de- His statements not to read or listen adequate ors directions signed unduly po- to harass and embarrass concerning the case. The court anything well as to invade their jurors tential the facts of record indicated serious noted their verdict were not in the privacy. If juror’s privacy. Its observa- threat to the favor, message was prosecution’s tion was: by would be branded their clear— requires that the process . Due predomi- members of the neighbors and the by impartial receive a trial an accused neighborhoods im- religion nant of their ,34 jury free from outside influences. . moral, dishonest, pro-pornography, dissi- challenging leadership dents moral of tri- appellate The court admonished that community campaign against in its this duty indepen- have the to make an bunals revolution.” “ugly The dent evaluation of circumstances. Florida,31 reiterat- Murphy In v. the court publicity during court advised that if fair- ed that the constitutional standard of of threatens the fairness proceedings panel ness that a defendant have a requires trial, trial be ordered. a new should jurors. impartial, of indifferent The courts must take such v. Brooks32 this Court stated State steps by regulation rule and that will that is a technical “impartiality” not con- their protect processes prejudicial mind; but it is a mental cept is a state prosecu- outside interferences. Neither Al- appropriate attitude of indifference. tors, defense, accused, counsel for different, the rationale of

though factually witnesses, court staff nor enforcement requires here. The law applicable Brooks is coming officers jurisdiction under the between the juror to stand indifferent permitted the court to frustrate should be Although juror state the accused. function. between Collaboration is sincere in his statement that his wholly counsel and the press as to information aby personal affecting not be affected the fairness a criminal trial decision will accept, only subject regulation, it is difficult to for it is is relationship, 333, 352, p. 33. 384 U.S. 86 S.Ct. 30. at L.Ed.2d 600 794, 799, 31. 421 L.Ed.2d U.S. U.S., p. p. at 362 of 384 at 1522 of 86 S.Ct. 32.Utah, 799, 801, discipli- unconsciously, tend worthy consciously to influ- censurable

highly judgment juror ence the authorizes nary measures.35 trial, requires granting new matter of that is a city urges The proof unless there is affirmative that the as to by judge the trial exercised discretion in no judgment juror way af- granted, and a mistrial should be whether fected. shown an abuse thereof. has not defendant case, After a review the record this mistrial, court, a motion for upon compelling that conclusion defendant danger prejudice weigh the must right was denied his constitutional to be practicability reduc- against the defense impartial jury. tried danger by choosing eliminating ing VIII, urges under Article discre- jury. judicial The essence of a new Utah, the assert- Section Constitution is to with misadventure so dealing tion ed denial of defendant’s be tried danger of manage as to control the matters impartial jury cannot be reviewed prejudice practicable.36 to the extent Court, since does involve the a court of law is unattaina- Perfection in validity of a constitutionality statute or ble, of human factors are where multitude ordinance. involved; and neither the state nor defend- of Justice dissent Crockett State perfect ant is entitled to a trial. here: applicable Robinson39is possible, In so far as how- When a case before this ever, defendant both the State and the proper ground, court on a impartial jury. to a fair and are entitled whatever other the court should review an irrevoca- When events occur cast the interest assignments of error it thinks jury’s cloud fairness and ble over justice requires. . grant far better to the impartiality, it is here on a constitutional proper This ease is for a mistrial and start over motion ground. taken action should not be again. The justice but the interest of so

lightly, when the by City cre- interpretation urged demands, it nevertheless be done.37 should process, the for judicial in ates hiatus through appel- no means the there would be Anderson38 this Court set In State v. judicial system of our to cor- late structure following the test as whether the forth by error a trial prejudicial rect committed had an im- accused been denied trial in proceedings. court its I, jury guaranteed by as Article partial 12, Furthermore, Constitution Utah: finality judgment Section if the 9, VIII, is con- of Article Section provision . facts Under state of can [the] City, as there literally, urged strued said appellant it be had full strong case conflict with emerges in this impartial trial an and benefit 3, 7, 12, I, Constitution Article Sections except by in no way one influenced Utah. the instructions of court evidence and to the facts applicable to the law

relative 3, I, provides: Article Section in the case? inseparable is an Utah State and the Federal Union Consti- part that all Anderson this Court observed is the su- the United States or rela- tution of conduct agree authorities [Emphasis add- preme to an law of land. tionship juror party between a and a might, during trial action ed.] 415, 419, 941, (1925). U.S., p. p. 237 P. 943 at of 86 38. 65 Utah at 363 384 1522 S.Ct.

35. Thomas, 178, People v. Cal.App.3d 47 120 36. 83, 969, 78, (1969). 972 23 2d 39. Utah Cal.Rptr. 637 Reynolds, Ariz.App. 37.State P.2d courts infe- contemplated This section of a funda- deprivation serious aWhen be courts Courts would to the District rior only by right guaranteed mental appeal requires The section of record. Constitution, by the Constitution State in the court below. record made on the to be States, presented is United on appeal present could one How else here) they are (if such Court, the strictures law and fact? questions applicable. VIII are Article of Section novo in de process of due make such violation elected not to

A this state When record, court has the courts, provided the district before courts of inferior proceeding infirmity of a is no mention novo:41 There magnitude a trial de same statute, VIII, ordinance or in Article Section invalidity of an trial de novo as practice pursuant novo permitted.40 is The trial de of which review City Courts is prevailing this state reasons to en- foregoing from Aside See in our U.C.A.1953. now found 78-4— view, need my we appeal; tertain Registration, Department Baker v. and our constitution than look no further 424, 440, 3 P.2d 1082 Utah thereof, appeal to see statutes, aid Chap- originally appeared That statute look first to Let us us. before properly 1901,and of Utah ter Laws Section VIII, remained un- significant provisions given section there In that several amendments changed, through of the dis- judgments final from all appeal statutes removed These reenactments. courts; orders and decrees from final trict when courts inferior to created hiatus of dece- in the administration of the Court courts of were not made District Courts estates, guardianship; cases of and in dents provision is: significant such record. One justices of judgment of the final of a judgments all final From peace: new trial be a motion for a court criminal cases . in civil and taken . made, appeal may on questions of Courts on both the District and from court . to the district fact, with such limitations law and in the district courts judgments all final law; provided by shall be restrictions appeal upon appeals, such rendered on the District Courts the decision of court in like supreme taken to the may be final, except appeals shall be originally as if said actions were manner validity or constitu- involving the cases in the district commenced [there of a statute. tionality follows the $100 limitation] validity or involving the in all cases that be appeal describes the to The section statute, there the constitutionality of wit, shall be on the appeal had. To the supreme the to right appeal a shall be below, and under record made in the court court. by law. may provided be regulations whether the clearly say to may be on both This seems equity appeal In cases the $100; or less than fact; controversy is amount in in law cases on questions of law and lies, or constitu- validity if not, appeal law alone. questions of Supreme my inferior to the Court. this can of other courts no doubt in mind Court 40. There is contemplated argued that the framers proceeding It can be before review errors in a de novo courts, VIII, inferior to of other de- the establishment Article Sec. the district court. appellate subject to jurisdiction the district court the district court as scribes the jurisdic- jurisdiction, a much broader “appellate jurisdiction but with all inferior courts peace. contrast, justices If the of the than the the limitation of tion and tribunals.” In 9, literally finality intend- VIII, “jus- were indeed expressly limited to element Article Sec. is applied courts and “all inferior peace.” in lan- ed to be tribunals,” to The distinction tices of the why phraseol- inexplicable this advisedly by it is certainly guage the used was repeated VIII, ogy than in Sec. 9 rather was Article Sec. framers of the Constitution. peace.” “justices of the provides legislature restrict the that the jurisdiction peace. justices Article of the VIII, 77-57-43, permits establishment law Sec. the U.C.A.1953. issue; Lyte, recognized event in In this there were and in Court is an tionality power wherein it had the to in- situations cases. criminal judgment with a from the terfere final Hence, an appeal. de is not A trial novo VIII, Article court under district Section one to the statutory provide to provision to power analogous This is the matters said manner as if court “in like supreme under a for a writ of petition reviewed commenced in originally were actions viz., where one is restrained corpus, habeas court; Otherwise, the district juris- liberty of his where there existed no entity performance able to review only where authority, require- or or diction court is the district district court so or ignored ments of law been can only record which It itself. makes party substantially that the is distorted judgment it to sit in To allow be reviewed. is in the effectively denied what included performance is not consonant its own process term due of law.44 written, pro- law, as it with our Lyte claimed.42 Whether statements be express implied either an state- deemed consistently view, my this Court this Court a power ment of the to review VIII, 9, while misconstrued court, the district where judgment final 78-4-17, prede- and its little heed to paying right a has been it is asserted constitutional cessors. the trial de proceedings denied case is that of State illuminating An novo, there has there no basis assert a motion There defendant resisted Ljte.43 precedent long established in this been state, pursuant to dismiss made deny under circum- Court review finality judgment of the district Furthermore, it would an anom- stance. be VIII, De- Section 9. under Article court alous situation to inform defendant his novo that at trial de fendant contended him was and he judgment as to final court, guaranteed his consti- in the district extraordinary must resort writ to jeopar- right put to be twice tutional flagrant assert serious and denial denied and for the same offense was dy proc- under the rights guaranteed him due although argued that invaded. Defendant and federal constitu- ess clause the state as to involve appeal question did not his tions. ordinance, this validity of a statute Court, power, of its inherent exercise WILKINS, com- (concurring Justice and to wrongs authorized to redress dissenting opin- Maughan’s ments to Justice rulings the district relief where the grant ion.): right deprived guaranteed him of Maughan with Justice I concur viz., Constitution, not to under of the ordinance and unconstitutionality put jeopardy. twice in warrant a reversal prosecutorial misconduct case make these comments. in this responded:

This Court rulings com- in this If therefore fact that the film case would involve there to a plained jeopardy, revolting do not be considered trash probably way in no removes necessity pow- large people is no to here consider our number of the matters of misconduct er, now us— the need in such a case as before uneonstitutionality meaningfully ad- and judgment where district against plaintiff re- dressed—and nonappealable grant final and resolved —to submit, are, respectfully in such I rights when constitutional because lief meritorious. are invaded. particular Drugs et Utah P. 1006 v. Kleeb 43. 75 284 42.See: Schramm-Johnson al., 159, 164, (1917), P. and 51 Utah Taylor, Turner, 273 P. 515 Gallegos Moss v. 73 Utah 17 Utah 2d v. Turner, Bryant (1965); 19 Utah 2d v. P.2d 121 been and can be suc- Pornography com- by conduct which

cessfully prosecuted traditionally established rules

ports ordinances and drawn properly

and under must pornography

statutes, but aversion legal mar our instrument

not become an a fair trial.

system’s commitment criminal, trials, and civil many distress, dishonesty, involves

controversy all filth, indeed violence—involves

brutality, But unpleasant matters. ugly

types does permit system’s commitment

our against even the

imposition of sanctions observing without despicable”

“hated processes and standards. proper legal that our legal system,

And not think I do standards, promotes these requires futility. or results nonsense vast

technical imperfect

It and solves—in this rather aids it hinders fails.

world—-more than CITY, Municipal Corpora-

FILLMORE Appellant,

tion, Plaintiff Reeve, and Alda A. REEVE E.

Thomas Respondents.

Defendants

No. 14697.

Supreme Court Utah. 31, 1977.

Oct.

Case Details

Case Name: Salt Lake City v. Piepenburg

Court Name: Utah Supreme Court

Date Published: Oct 28, 1977

Citation: 571 P.2d 1299

Docket Number: 14688

Court Abbreviation: Utah