State Ex Rel. Oakland Prosecuting Attorney v. Alray Northcrest Plaza

1985]

STATE rеl ex OAKLAND PROSECUTING ATTORNEY v PLAZA; ALRAY NORTHCREST STATE ex rel OAKLAND PROSECUTING ATTORNEY v BEECH PLAZA ASSOCIATES LIMITED PARTNERSHIP 78544, 17, April Docket Nos. 78974. Submitted at Detroit. 22, 1985. appeal denied, Decided October Leave to —. Prosecuting County Attorney separate The Oakland filed nui- prevent allegedly sance abatement actions to indecent and during obscene conduct semi-nude contests held at the Northcrest and Cabaret The Theaters. named owners, lessees, management person- defendants were the prosecutor’s theory nel of the two theaters. The was that the disorderly persons meaning dancers were within the Code, places Penal the theaters were those persons, thereby statutory and the theaters fell within the of a definition nuisance which was to abatement. parte In each case the Oakland Circuit Court issued ex re- straining restraining orders indecent and obscene conduct. In subsequently Northcrest Theater case the order was contin- summary ued and the judgment defendants’ motion for was denied, Gage, appealed Hilda R. J. The in that defendants case (Docket 78544). granted leave No. In the Cabaret Theater case, judgment summary the defendants’ motion was denied preliminary injunction entered, and a enjoining obscene conduct, LaPlata, George indecent H. J. The defendants _and ^{[2] [4] [3]} [1, ^[5] Am Jur Porno See the Exhibition of obscene motion Am Jur Am Jur Am Jur Am Jur nuisance. 58 ALR3d 1134. sances. dards and of Am Jur right shops 2d, Lewdness, Indecency, annotations in the ALR3d/4th 2d, Lewdness, Indecency, 2d, 2d, 2d, Court’s of free 2d, principles determining concept Breach of Nuisances Constitutional Law 512. or similar References Nuisances speech. development, Peace and §§ places 41 L Ed 2d 1257. §§ for Points in Headnotes 98 et 85.5, pictures since Roth v United seq. disseminating § Disorderly 86.5. as nuisance. 50 ALR3d 969. Obscenity Obscenity Quick Conduct obscene materials as §§ Index under Nui- § 17.5. 30-42. States, §§ 28 et in context of stan- seq. App 146 78974). (Docket appeals granted The appealed by No. leave Appeals. Held: the Court were consolidated designed to eliminate nuisancе statute is 1. The prostitution, property for or in connection use of intoxicants, possession of not to or transfer illicit and the obscenity. prosecutor filed state a claim has to The eliminate public has he not nuisance because for the abatement of a engaged in alleged those those were used that the theaters activities. disorderly persons should definition of 2. The Penal Code’s public incorporated nuisance so as to the not be into finding public without that the of a nuisance evidence allow the prostitution, place the was or use of involved possession of intoxicants. or illicit transfer entry summary judgment for of Reversed remanded defendants. J., express separately wrote to Martin, R. B. concurred. He that, obscenity protected by the First the while is not concern Amendment, provides the of safe- the nuisance statute none rights required guards state First where a has of Amendment judicial power possible rights prior to full to restrain the Further, Legislature there is no indication that the review. public statute as a means of the use of the nuisance envisioned disorderly person abating by the statute. conduct described

Opinion of Court —Obscenity. 1. Nuisance —Public Nuisance public designed to eliminate the use of The nuisance statute prostitution, gambling property in for or connection intoxicants, possession transfer not to eliminate the illicit of 27A.3801). (MCL 600.3801; obscenity MSA Disorderly — — 2. Nuisance Nuisance Persons— Obscen- Publiс ity. "disorderly person” in the Code as one The definition of a Penal place public engaged is in conduct in a who indecent obscene may incorporated into the nuisance statute so as not be bring a in which within definition a nuisance theater dancing, thereby subjecting persons engage allegedly in obscene (MCL the theater to closure 27A.3801, 27A.3805, 600.3801, 750.167[f]; 600.3805, 28.364[fj). R. B. — — 3. Nuisance Abatement of Nuisance Public Nuisance. law, Courts, applying look nuisance abatement State v Northcrest Opinion of the Court principal purpose place question determining place whether the is a nuisance. Expression — — 4. Constitutional Law Protected First Amend- ment. protected expression Live non-obscene is a form of under the First and Fourteenth Amendments. Obscenity — — First Amendment Prior Restraints. 5. Obscenity protected however, Amendment; is the First if a possible rights is state to have restraints on First Amendment prior judicial review, safeguards to full certain are essential: instituting judicial proceedings proving the burden of and of unprotected censor, that material any rest on must prior judicial imposed only restraint review can be for a speciñed only preserving brief time and for the quo, prompt judicial status determination of must be assured. Patterson,

L. Brooks Prosecuting Attorney, Rob- Williams, ert C. Counsel, Chief Appellate Browne, Richard H. Assistant Prosecuting Attor- ney, plaintiff. for Rubin,

Taylor & P.C. M. (by Stephen Taylor), Wilson, defendants Norman David R. Prager and George G. Brady.

Faintuck, Shwedel & Wolfram Rhonda L. (by Klein), for defendants Beech Plaza Assoсiates Lim- ited Partnership and Eccleston Properties Ltd. Gribbs, P.J.,

Before: and T. M. R. Burns and B. Martin,* JJ.

Per Appellants Curiam. appeal from the circuit court’s orders denying their motions for summary judgments pursuant 1963, 117.2(1), to GCR enjoining alledgedly indecent and obscene conduct during nude ‍‌​​​‌​​‌​​‌​‌‌​​​​‌‌‌​​​‌‌‌​​‌‌​‌‌​‌‌‌​​‌​​​​​‌‌‍ performances semi-nude dance at appellants’ theaters. We reverse._ * judge, sitting Appeals assign- Former circuit on the Court of ment. Opinion of the Court separate ac nuisance abatement

Plaintiff filed pursuant 600.3805; to MCL 600.3801 tions prevent allegedly to 27A.3801 and 27A.3805 weekly during conduct indecent and obscene at the North- contests held and semi-nude 78544) (Docket (Docket Cabaret No. No. crest 78974) case, In the Northcrest Theater Theaters. parte temporary an ex circuit court issued day restraining 16, 1984, order on March complaint filed, based on the affidavits was appellants’1 police officers, motion and denied on amended the order. The order was set aside May 8, 1984, 19, 1984, on and continued March summary judgment apрellants’ motion after 117.2(1) pursuant 1963, denied. The was to GCR conduct, and obscene order restrained indecent vaginas including performers’ exposing their to the audience. anuses case, Theater the circuit court In the Cabaret restraining parte temporary issued a similar ex police April 17, 1984, on affidavits on order based complaint day filed, re- but the same April pending hearing 18, 1984, a on scinded it on Appel- appellants’ summary judgment motion. pursuant summary judgment lants’ motion for 117.2(1), Mаy 1984, 8, 1963, on was denied GCR and and indecent conduct was entered injunction enjoining preliminary obscene

on June 1984. granted Appellants appeal, their were leave but stay pending appeal motions for this Court. Their Court. We reverse the circuit court and remand were denied

appeals by this were consolidated court, irregularities pleading procedures Due to in the circuit Partnership Beech Plaza Associates Limited and Eccelston defendants Ltd, appellees Properties, although in Docket No. 78974 have been labeled defendants-appellants position appeal their on is that conciseness, Brady. George For our Norman Wilson and references to Gerald appellees appellants instant case will include Properties. Beech Plaza Associates and Eccelston Opinion op the Court for entry of summary judgment for appellants both cases.

The public 600.3801; MCL MSA 27A. public defines nuisances as: vehicle, boat, "Any building, place aircraft or used for lewdness, the gambling, assignation prostitution or or by, or used or prostitutes for the use of persons, or other or the unlawful manufacture, storing, possessing, sale, transporting, keeping sale, giving away, bartering, furnishing or disposing any otherwise as defined narcotic hypnotic drug and/or by spirituous vinous, malt, brewed, any law or of fermented, intoxicating liquors or or any liquors beverages, part mixed cating, any of which is intoxi- ** hereby is (Emphasis decared a nuisance *.” added.) Any such nuisance may be abated permanently law”, pursuant to the Michigan "padlock MCL 600.3805; MSA 27A.3805.

Plaintiff contends referred to in public the above-cited nuisance stat ute, 600.3801; 27A.3801, MCL are defined by 750.167; MCL MSA 28.3642 of the Penal Code 2"(1) person disorderly person person any A is a if the following: "(a) person ability neglects support A of sufficient who refuses or family. his or her "(b) prostitute. A common "(c) peeper. A window "(d) person "(e) person engages illegal occupation A who in an or business. public place A who is intoxicated in a and who is either endangering directly safety person property of another or of or is acting in a manner that causes disturbance. "(f) engaged A iswho in indecent or obscene conduct in a place. "(g) vagrant. A "(h) person begging public place. A found in a "(i) person loitering prostitution A found in a house ill fame or place allowed. prostitution practiced, encouraged where or lewdness is App 595 146 Mich Opinion of the Court to include:

which defines "(f) or obscene person engaged is in indecent A whо ” added.) (Emphasis place. in a conduct thereof, dancing, portions or the

Characterizing obscene, inductively ar- plaintiff as indecent disorderly persons, were performers the gues buildings places or were the theaters and that persons, of disorderly for the use or statutory within the the theaters fell therefore to abate- and were of nuisance definition interpreting law review of case ment. Our disagree. leads us to public nuisance 389, Acts 1925 purpose Act Public [MCL "Thе No. effectively, by 600.3801; 27A.3801], is to eliminate per procedure, property, real or statutory sonal, the use of prostitution, and gambling, in connection[3] People, Wayne liquor, cetera.” ex rel illicit sale of et Sill, 575; 17 Prosecuting Attorney v 310 Mich (1945). NW2d of obscene Sill made no mention The Court public nui- targeted by an activity conduct as statute. sance v Prosecutor Wayne County

In State ex rel 244; 240 Corp, Diversiñed Theatrical 396 Mich (1976), held that Court NW2d place "(j) person knowingly an who loiters in or аbout a where A illegal occupation being or conducted. business "(k) station, person police police A about a who loiters or headquarters jail, hospital, building, building, county court other place soliciting employment public building legal for the upon recognizances. criminal services or services of sureties “(1) crowding jostling roughly people A who is found unnecessarily public place.” a Prosecuting Wayne rel But Justice Levin’s dissent in State ex see (1979), 455, 473; Levenburg, Attorney NW2d require arguing this for a stricter construction of statute to them, activities, merely related to those connected or condemned premises. occur on op Opinion the Court originally which was light” applicable statute,4 "red was not showing Court, a theater obscene films. The citing above-quoted language supra, Sill, jurisdictions, recognized and from cases other that the prostitution of the statute towas houses of abatement, and thus declined ‍‌​​​‌​​‌​​‌​‌‌​​​​‌‌‌​​​‌‌‌​​‌‌​‌‌​‌‌‌​​‌​​​​​‌‌‍to showing it extend to theaters obscene films.5 Wayne County Prosecuting In State ex rel Attor Levenburg, ney v 455; 406 Mich 280 NW2d 810 (1979), deciding prosti by whether a bar used accosting soliciting statutory tutes for and awas Supreme nuisance, the Court reexamined its deci (Diversified, supra. sion The Court found that the Diversified decision was based on a review of jurisdictions’ holdings obscenity other that did not purview assignation lewdness, fall within the of prostitution. Levenburg, p Levenburg 463. The language Court labelled as dictum in Diversified stating that the nuisance abatement statute apply prostitution. was intended to to houses of Levenburg, p supra, pp Diversified, 463; but see holding (specifically ap 246, 250 that the statute plies only prostitution). to houses of The Court in Levenburg found that the nuisance statute ex places substantially tended to where conduct con prostitution nected or related to occurred. Leven burg, p 465.6The Court thus held that a bar used 4 original light statute, 272, The red 1915 PA made no despite reference to persons assignation of existencе only places lewdness, declared as nuisances prostitution. portion The and intoxicants by 389, the statute were added 1925 PA which also added the disorderly persons language. 5 People 307; Books, Inc, See ex rel v Arcara Cloud NY2d 65 491 (1985), expansive NYS2d interpretation NE2d 1089 and its a similar nuisance statute. Levenburg interpretation We find the Court’s of Diversiñed con fusing light express statement the Court in Diversiñed considering that it was not equivalent whether lewdness was Diversified, obscenity, 14, specific 396 Mich fn holding аnd its that applicable only nuisance abatement statute was to houses of Opinion op the Court (assigna- soliciting accosting prostitutes tion) public nuisance the ambit of fell within subject to abatement. and was Attorney Prosecuting Saginaw

In State ex rel App 16; 314 Investments, Inc, 111 Mich Bobenal (1982), (1981), lv den NW2d question offering theaters was whether this Court before fell within the live buildings places for the as nuisance statute purpose examining After of lewdness. supra, Diversiñed, Leven- Court’s decisions burg, suprа, the trial court this Court found concluding the term lewdness erred erroneously synonymous ex- panding necessarily to include its activities definition pp prostitution. Bobenal, 24- related alleged plaintiff in its com- had not 25. Since plaint accosting prostitution activities or the related soliciting theater, in the occurred and plaintiff’s complaint had this Court that found upon which action to state a cause of relief failed granted 600.3801; MCL under could be p Bobenal, 26. 27A.3801. apparently bar, to avoid our at

In the case supra, argue plaintiff Bobenal, does not in decision equivalent indecency are public purposes the nuisance abate- for lewdness argues plaintiff the ment statute. Instead they public were nuisances because theaters are disorderly persons, kept use of used engaging con- in indecent and obscene i.e. those agree. 750.167; MCL MSA 28.364. We cannot duct. designed public First, nuisance statute was property for or connec- to eliminate the use of gambling prostitution, tion with possession illicit intoxicants, elimi- not to or transfer of Diversified, 246, 250; supra, p Levenburg, supra, pp prostitution. see disenting). (Levin, State v Northcrest Opinion Court Sill, Bobenal, supra; supra; obscenity.7 nate see Diversiñed, Levenburg, supra; supra. Plaintiff has alleged instant case the theaters were for or used those engaging activi prostitution, ties related to gambling or intoxi cants, and has thus failed to state a claim for Bobenal, abatement оf a public nuisance.

App 26.

Secondly, incorporation the Penal Code’s definition of persons into the disorderly public nuisance as argued for by plaintiff, would lead to absurd results. For example, disorderly persons jostle include those who or roughly crowd people public places. unnecessarily MCL 28.364(1)(l). 750.167(1)(l); MSA Shoppers descend ing upon clearance shopping during sales at malls the Christmas rush fall into such may categories. premises padlocked pursuant Could those bе 600.3805; MCL MSA 27A.3805 because are they persons these because store or mall acquiesce owners know in the their premises use of by these disorderly persons? Or, example, police is a station to the padlock nuisance and statutes when bonds men and lawyers premises loiter on the to solicit business, since such come within Pe nal Code’s definition of persons? MCL 28.364(1)(k). 750.167(1)(k); MSA We think In not. view, our such far activities fall the intent outside statute which concerns itself with prostitution, intoxicants._ 7 places purposes If used for of are to to to obscene conduct be nuisances, public Legislature’s

abatement as enact or it function expand provisions, taking they pass such care that constitu- Plaintiff, sentiment, tional muster. to ever-attuned cannot use prevent utilizing the courts to statutes not enacted for that any of activities to distasteful course, purpose. may, Plaintiff utilize currently Legislature, e.g., prosecution measures afforded engaging those obscenе conduct. Martin, J. R. B. plaintiff definition of related the has not

Since prostitution, disorderly persons to alleged possession intoxicants, nor or transfer occurred or related activities activities that such in either plaintiff theater, has failed to state at bar. in either case claim nuisance abatement appellants Summary judgment should have for 117.2(1), pursuant granted now to GCR been 2.116(C)(8). entry for and remand We reverse MCR of appellants, summary judgment which will restraining result in the dissolution alsо injunction. preliminary order and disposition Although it this case renders our appellants’ unnecessary First Amend address incorporation claims, we foresee ment disorderly persons penal the nuisance statute into alleg permit enjoinment of abatement scheme edly present dancing could or obscene indecent Although plaintiff problems. constitutional serious argues speech, is conduct and protected by Four the First and therefore not Amendments, nude danc live non-obscene teenth protected expression ing under the is a form of Mt. Amendments.8 Schad v First and Fourteenth Ephraim, 68 L Ed 2d 61; 101 S Ct 2176: 452 US (1981). Judge agree concur 671 ring opinion presumptively protected quate ‍‌​​​‌​​‌​​‌​‌‌​​​​‌‌‌​​​‌‌‌​​‌‌​‌‌​‌‌‌​​‌​​​​​‌‌‍procedural We Martin’s judicially-imposed restraint of

expression ade without appel safeguards violate would rights. lants’ constitutional Reversed and remanded. (concurring).

R. B. I with the agree slightly opinion but majority results of the instances, may, Michigan protections in certain The cоnstitutional However, appears protection. it than federal constitutional be broader that with thereof, protections, regard or lack these constitutional Neumayer, People 275 NW2d coincide. See (1979). 605 R. B. J. Concurrence PA different reasons. 1925 389 amended the law to include not only building nuisance "[a]ny * * * lewdness, for assignation or prostitution gambling, kept or used by, * * *” prostitutes the use of but to include build- * ** ings by, "used use of other persons”. Reading the as it disorderly language written, it would seem thе Legislature aiming padlock law at other than disorderly persons prostitutes and gamblers. prior appellate

Our never really cases have ad question dressed the as to whether "other persons” disorderly referred to those described as by the disorderly disorderly person MCL 750.167; MSA 28.364. The issue was not raised State ex rel Wayne County Prosecutor v Diversif ied Theatrical Corp, 244; 396 240 Mich NW2d 460 (1976); State ex rel Wayne County Prosecuting v Levenburg, Attorney 455; 406 Mich 280 NW2d State rel Saginaw (1979); ex Attor 810 Prosecuting Investments, Inс, v ney Bobenal 111 App 16; Mich (1981), 314 NW2d 512 or People, ex rel Wayne Prosecuting Sill, v Attorney 570; (1945). Diversified, supra, even cited NW2d 756 Productions, Inc, v with approval Harmer Tonylyn (1972), Cal Rptr 3d 100 Cal wherein the light California red law by judicial applied construction was stage lewd live shows and but exhibitions still or motion DiversiGed, pictures limited to closed theaters. Bobenal Levenburg dealt question whether the words "lewdness” and "assignation” referred to separate acts from apart prostitu tion. not question These cases did "other whether persons” could be someone other than prostitutes or gamblers.

There need be fear including statutorily no defined in the abate- App 146 Martin, R.B. as absurd results such would cause

ment statute intoxicated individ- public places where padlocking distur- gather and cause uals sometimes State, English Fanning, rel ex Neb bances. Diversi- (1914), 224, 228; 149 cited NW ñed, the applying our courts abate- indicates the the of principal ment law look at places involved: regulating

"The statute is not intended as a means individuals, prevent nor to immo- private the morals of rality of hotels, to the mainly devoted accommodation moral, people.” well-behaved families principal In case the if not ‍‌​​​‌​​‌​​‌​‌‌​​​​‌‌‌​​​‌‌‌​​‌‌​‌‌​‌‌‌​​‌​​​​​‌‌‍the sole use of our premises dancing allegedly the was for nude which thought po- the proprietor became obscene when also State ex rel Wayne lice present. were See Weitzman, Prosecuting Attorney v (1970). 705; 176 NW2d 463 Legisla The real the difficulty sаying ture intended to control other prostitutes gamblers than with the nuisance the nuisance is the fact provision protect statute makes no whatsoever person’s the First Amendment allegedly disorderly if rights using premises the is accused of in a public place. indecent obscene conduct pro Live form of non-obscene nude is a tected Fourteenth expression under the First and v Mt Ephraim, Schad 61; Amendments. 452 US (1981). 2176; 101 L S Ct Ed 2d 671 The United severely States Court has frowned always Near v prior protected speech. on restraints Minnesota, 625; 75 L 697; 283 US 51 S Ct Ed Arcades, Brockett, (1931); Spokane Inc v F2d (CA 9, 1980), aff'd 454 US 1022; S Ct (1981). 557; L70 Ed 2d 468 Plaza by R.B. In cases ex parte restraining our orders were complaints the days issued on were filed and injunctions were later While temporary signed. specific order in injunctive Beech conduct, defining enjoined obscene fact questions what occurred the defendants’ places of business have never been by resolved although trial orders injunctive continue. It true that is not protected by is First Amendment: consistantly

"This Court has held that obscene mate- protected by rial is not the First Amendment as a power on police limitation the state virtue I Fourteenth Amendment.” Paris Adult Theatre Sla- (1973). ton, 49, 54; 413 US 92 S Ct 37 L Ed 2d categorically "This much has been settled Court, unprotected that obscene material the First California, 15, 23; Amendment.” Miller v Ct 413 US 93 S (1973). 2607; L37 Ed 2d 419 However, United States Court has been extremely permit reluctant to parte proce- ex dures to stifle written material even if it is later found to be obscene. A Quantity of of Books Copies Kansas, 378 205; US 84 S Ct L 1723; 12 Ed 2d (1964).

Again we recognize, appellees argue, as that when we performances consider nonverbal as com- pared works, to written the state is permitted more latitude in controlling it. "But expression as the mode of from the moves printed page to the commission of that may acts statutes, penal scope

themselves violate valid permissible regulations state significantly increases. may proscribe States expression sometimes that is di- R.B. the State accomplishment to the of an end rected consists, illegal expression such declared to be when has * * California v part, of 'conduct* or 'action’ 109, 117; 390; LaRue, 34 L Ed 2d 342 409 US S Ct (1972). possible to restraints on First If the state is have review, full rights prior judicial Amendment to (1) The burden of safeguards certain are essential: proceedings proving and of instituting judicial censor; unprotected must rest on the material (2) review can be Any prior judicial restraint time imposed specified only for a brief only (3) A quo; the status preserving determination must prompt judicial Maryland, be assured. Freedman v 51; US (1965). Southeastern 734; S Ct 13 L Ed 2d 649 Promotions, Conrad, Ltd v 420 US 95 S Ct (1975). 1239; 43 L Ed 2d 448 Michigan public Neither nuisance statute pro- nor explicitly in our cases safeguards. vides such Note temporary injunctions by statutory unfettered safeguards year have lasted well over one determination of the factual situation has judicial occurred. yet If had conduct Legislature wanted described statute to disоrderly person as be the use of the Legislature would have had give impact some consideration to the prior federal and state constitutions on restraints might conduct considered obscene by which be be the First prosecutors protected by but would courts. There is no according Amendment to the this considered legislative history indicating subsequent in 1925 or at time thereto. Cer- any if tainly Legislature wanted obscene R.B. dancing to be to the it could have easily been speсific and could have provided the necessary safeguards of the First rights Amendment as required by our United States Supreme ‍‌​​​‌​​‌​​‌​‌‌​​​​‌‌‌​​​‌‌‌​​‌‌​‌‌​‌‌‌​​‌​​​​​‌‌‍Court. Apparently since 1925 no action other than these two commenced in 1984 has attempted to combine these statutes. There- fore, it might well be concluded that prosecutor no from 1925 to 1984 thought the disorderly person statute applied to the padlock law and no appellate court any multitudinous abate- ment, or obscenity cases even hinted it could applied. be

The Legislature did not envision the use of the public nuisance as a means of abating conduct described disorderly person statute.

Case Details

Case Name: State Ex Rel. Oakland Prosecuting Attorney v. Alray Northcrest Plaza

Court Name: Michigan Court of Appeals

Date Published: Oct 22, 1985

Citation: 381 N.W.2d 731

Docket Number: Docket 78544, 78974

Court Abbreviation: Mich. Ct. App.