Warren E. Burger: We'll hear arguments next in 74-156, Hicks and others against Miranda.
Oretta D. Sears: Mr. Chief Justice --
Warren E. Burger: Mrs. Sears.
Oretta D. Sears: -- may the Court please. I think listening to the contempt case I have somewhat lost my voice but hopefully as I proceed it will become clear. What is before the Court today is a many issued case, however, I do believe that the Court indicated by the postponement of the jurisdiction to this day that it wish to hear argument on whether or not there was jurisdiction in this Court. In directing myself to that issue, I would like to proceed by arguing that both of the orders issued by the court below, be it the order of June 4th which required the people to return the movies or the films and the order of due of September 30th which ordered the -- defendant -- defendants in “good faith” petitioned the state court for the return of the film are injunctive in determining. First of all, I would like to argue that a declaratory judgment in the sense in an action that involves a state statute is to my way of thinking per se injunctive within the context of 1253, within the context of 2281 and 2283. A look at the birth of these statutes brings us back to ex parte Young. But when I read the ex parte Young and I started from there and I went back and reread a lot of the very brilliant decisions by members of this Court and by past members of the Court, I was impressed by one thing, that what ex parte Young dealt with was one portion of the Eleventh Amendment. Not really, not at all, the portion of whether or not the Court or the judicial, the federal court per se as the judicial system had jurisdiction over seven causes of actions. For indeed that's the first portion of the amendment but what that case dealt with I think is expressed best in the -- in Justice Harlan's dissent. It dealt with that second portion which said, ”And in those cases in which a state is a party, jurisdiction -- original jurisdiction shall be in the United States Supreme Court.” It was that second limitation that was argued in that case. The question was when there is a state statute that is at that through the Attorney General or through the state personnel representative is it the state that's being attacked or is the individual and the majority with an opinion --
Warren E. Burger: We'll resume there 1 o'clock Mrs. Sears. Mrs. Sears you may continue.
Oretta D. Sears: Yes. What I was trying to or attempting to point out is that in a very real sense what ex parte Young did was to take away a suit against the Attorney General of the state or state officer in which the declaration or a statute is being attacked for unconstitutionality from the original jurisdiction provision inherent in the Constitution which states that whenever the state is a party to a proceeding the jurisdiction of the Supreme Court is original jurisdiction. It was to remedy this particular ill that in 1911 the original three-judge court provisions were enacted. I think the -- probably the clearest showing of the intent of Congress at that time to provide full direct appeal in all of those cases where a decision was to be made by the three-judge court and where a finding of unconstitutionality was added, is found in the original provision in 1911th provision in which the three-judge court which was sought to be a panel was intended to be made up of at least of one judge plus two additional judges, at least one of whom was going to be either a Supreme Court judge or a Circuit Court judge. Now, quite obviously once the decision is issued from a three-judge court, at least one of whom but possibly two of whom are Supreme Court judges it would be rather in Congress. At that point to go to a Ninth -- or a Circuit Court to have that decision reviewed. Now, true today the Act has been modified so that it does not anymore say at least one of whom can be either a Supreme Court or a Circuit Court but it does still say at least one of whom and again at least one of whom shall be a Circuit Court judge. Arguably therefore one could have a three-judge court with two Circuit Court judges. I suppose one could go and go to the Ninth Circuit that demand a hearing and then but I would question the wisdom of trying to overrule a two-judge court decision with two judges from the Ninth Circuit sitting on it and deciding the case, it would make it somewhat in Congress. That's one of the points. The other point is that interestingly enough the Act does not say prohibit. It defines injunction within the Act. It says an injunction to restrain the enforcement and so on and so forth. It would restrain as this Court has recognized does not mean to just prohibit. It means anything less than an actual prohibition. It means anything which makes it difficult, which inhibits. I think this is true of the First Amendment cases and of all cases. It's certainly true that a bill quia timet for indeed that is what declaratory judgment is a restraint especially in view of some of the new decisions which have stated that recently I believe it was the Second Circuit or the Third Circuit stated that a -- after the declaratory judgment, a proceeding against the person involved contrary to the declaration of unconstitutionality was automatically an action which was in bad faith. Now, had I read that opinion, I would have been a lot more cautious if before ever bringing a state proceeding after the declaration of the three-judge court. So long as that opinion exists, I am restrained in the future from ever doing it again, even though in good faith I believe I am right. I still couldn't. So it is a real restraint. Finally, if we speak about a case in which the three-judge court is properly convened and if -- excuse me, and if we have a valid request for injunction and if the request for injunction is denied but the declaratory relief is granted. What are the results? The practical result is that the state who is the one that was sought to be protected, whose procedures was not to be speeded all the way to this Court will be the one defendant that will not be able to reach this Court directly. Whereas, if the relief had been denied, all of it and the Act had been found constitutional, the defendant, the individual, would be able to come directly to this Court. And I think this inconsistency is -- was not intended. I think that a declaration of unconstitutionality unless this Court is willing to say that beyond 1201 we take 1202 and destroy it. It is there. A Court who has the power to issue declaration also has the power to enforce that declaration under 1201 and probably within the purview of 2283 as well. And it seems to me that then in that case we have a bypassing of the totality of the procedures. Now, a point that is also somewhat important is the fact that there is another strength, there is a possibly res judicata restraint. Now, that too is a restraint because if the state court feels that -- if the people feel that the declaratory judgment is going to be res judicata in the state court really there isn't much point in bringing the proceeding. So therefore, I would submit that if we are going to allow a declaratory judgment to be given in these cases and I think we have to, I don't think that's open for question then I think that the Court must preserve the rights to appeal by declaring that the declaratory judgment is per se in these type of cases injunctive and that it restraints. The second point of course is that both of these as far as the first order, the order to return it's obvious under the Ledesma rationale that it is injunctive but the second order is probably even more injunctive to my mind. It opens me to a contempt to which I almost find inescapable. I cannot in good faith, that's the impossibility in good faith do that which I do not believe in, how do I in good faith petition my Court whom I have asked to do something and who has issued a valid order and has rendered a valid judgment. Now I have to go back and say “I don't believe I'm wrong but they tell me I have to do it in good faith so Your Honors, I will do it!”
Potter Stewart: Now you're talking about the second order.
Oretta D. Sears: That's correct. This type of a situation puts an immediate burden upon the individual and upon the Office of the District Attorney. In California, the District Attorney is an elected official. In California, the District Attorney shall file all complaints. If a complaint, the people of the State of California under our Constitution have the right to have the discretion of the District Attorney exercised and my Government says, “I shall attend the Court, the Superior Court, the trial court on the help of the people.” How can I go into one of those courts representing a party not the people and in this case if I go in petition I would be representing a party not the people.”
Potter Stewart: The District Attorney in -- there's one District Attorney in each California County?
Oretta D. Sears: That's correct.
Potter Stewart: Elected by the people for about a four-year term of office?
Oretta D. Sears: That's correct Mr. Justice.
Potter Stewart: And then the deputies and the assistance are appointed by him?
Oretta D. Sears: That's correct, and that only with his -- in his name. They are alter egos totally. Those are the considerations that I felt were probably most important. I do realize that there had been problems, procedural problems, rule problems. A petition was filed under Rule 60 noticed however for July 1, unless I have read as much as time and physical limitation allowed as many of the opinions and I came to the conclusion that the rule part of the problem did not seem to be so achieved perhaps I am wrong but I felt that since the case is here totally and there is nothing more to be done downstairs at any event, I did not feel that that I need to go too much into that point. And if the Court feels that I should quite then I will address it more specifically. Now, the one point that I would like to make is the facts of this case. The state court magistrate issued for search warrants for I as the head of the written appeals section automatically direct my deputies. They will issue it over the weekend however, or a Thursday or Friday any weekend interferes on Monday. I felt very strongly that the mandate of this Court require an immediate hearing as soon as possible and I felt very strongly that under Rule 41 analogy, Rule 41 and 1538.5, I should premise are almost identical, if not identical in scope and language and I know many cases the Second Circuit cases and other cases that have held that Rule 41 does allow the Court to have that kind of a hearing at the instance of the District Attorney. And so I asked for that kind of a hearing. The defendants in the state action or in -- at that hearing arrived and said “begging your pardon Court you have no jurisdiction, goodbye!” Well, at that point we proceeded with the hearing. Right or wrong, I feel very strongly that that kind of issue belonged in the state court. And that the Court in granting relief actually showed itself totally opposed to allowing the courts to do their job, the state courts. In addition, if we are ever going to have the resolution of this issue, I tried it again and again. They come in and said “begging your pardon, but we don't feel bound by this Court.” I think the hearing of August 12 which has been brought up as part of the record by the appellees is graphic of what has been happening. The federal court in that case although it did not pursue the issue further asked the defense or the plaintiff's counsel, “Why didn't you appeal? Did you -- don't you think the Courts of the Supreme Court of the State of California would have gone your way?” He says, “Yes!” He thought that he would have won. He thought that this procedure was something that was wrong and that the state courts would have gone his way and he was asked, “Well, why didn't you do it?” and he said, “Because I have a choice and I choose to go to the federal court; I just didn't want to proceed in this Court.” And that is part of the problem. I would submit that this type of action does frustrate the relationships between the courts especially when then you have a proceedings that in the Municipal Court at the same time. Now, there are many factual points that counsel has made. I don't think they're relevant. First of all, there are points of California law and they are points that should have been made in the state court but were not made. I don't know under what provision he has a choice to argue the validity of a search warrant either prospective or already issued before a federal court rather than before a state court. I have found no case that indicates that this is the law. Perhaps I have overlooked something. Since I would like to retain a few minutes for rebuttal and I would like to defer to the Attorney General list to the questions, I would --
Warren E. Burger: Very well. Mr. Smith.
Arlo E. Smith: Mr. Chief Justice and may it please the Court. This is a complex case. In fact, there would be a public plot for a Gilbert and Sullivan parody on the administration of justice and by that I mean no disrespect for either the federal court or the state court because it presents the very fundamental problem of the jurisdiction in authority of federal courts to interfere with the administration of state justice. Mrs. Sears has briefly outlined the facts and I hope to outline them a little more fully. I would like to address myself to two problems. First, the application of the doctrine of the cases of Younger versus Harris to this matter, since that the three-judge court felt that this was not that type of case. Secondly, I would like to address myself to the question of harassment which the Court found without a hearing. Let's start as Mrs. Sears did, on Friday, November 23rd, a magistrate California in this four-court judge issued three warrants. In each instance on sufficient affidavits and twice on the viewing of the films involved here as to their obscenity, a practice under California law which indeed was brought about by a case Flack versus Municipal Court which counsel for the plaintiff's here instituted.
Potter Stewart: Did the magistrate had herself viewed the film?
Arlo E. Smith: Himself.
Potter Stewart: Yeah.
Oretta D. Sears: That's correct. There are two occasions and this is the procedure under California law which is designed to protect the defendant and particularly protect the possibility of a First Amendment right. He cannot -- in California an officer may not seize a film as obscene on an arrest. It must be pursuant to a search warrant. Secondly, the magistrate cannot issue that warrant without either one, personally viewing the film or other material or two, without an affidavit that is specific in terms of the nature of that material. On Saturday, a fourth warrant was issued and in each instance the warrant were sited that there were differences in these films.
Potter Stewart: Same title though?
Arlo E. Smith: Of the same titles --
Potter Stewart: Yes.
Arlo E. Smith: But different content. On Monday the 26th the District Attorney instituted a proceeding which has been characterized variously as injunctive restraining whatever but a proceeding quasi-criminal in nature designed to lead to an order of seizure of these films.
Potter Stewart: Under statutory proceedings?
Arlo E. Smith: No, it is not. No it is not but our -- the California law on that I think is unclear that's quite correct. But the point is that under the procedure has alleged in this complaint, the defendants here Miranda Walnut Properties, Pussycat Theatres, have an opportunity to come into the Superior Court of California and raise every objection that they made in the Federal District Court, the constitutionality of the state statute, the validity of the procedures in that Court, the validity of the seizure, the validity of the -- the question of the identity of the films, indeed they could raise the obscenity question. They refused to take part in that proceeding. They appeared and contested the jurisdiction of the Court and walked out.
Potter Stewart: And the object -- the element object of that proceeding would have been the permanent what, the destruction of the film?
Arlo E. Smith: It would have been. It read, no. Indeed it will result in the seizure of those films and held that the Pussycat Theatre.
Potter Stewart: As ancillaries to some other proceeding or is it end of itself?
Arlo E. Smith: Well, either way. I don't think it makes any difference. The question presented here, there was an adversary hearing offered under this proceeding prior to the restraining order issued. There are questions of California law. I can see that that is precisely why the federal court should have abstained precisely why. All of these questions could have been raised in the appellate courts of California and including the Supreme Court of California. Finally of course, one of the -- and they make the complaint that it is completely unfounded, they refer to some abatement cases and it's correct that our courts have held that the Red Light Abatement Action is not applicable to films, only live conduct. But of course, they don't point out that the California Supreme Court has before it now a case involving the nuisance type injunctive proceedings under 370 of our penal code, Basic Nuisance Action. The Los Angeles Court of Appeals in Los Angeles for the second appellant district held the procedures utilized by the Los Angeles District Attorney to be proper under California law. Two weeks ago our Court, Supreme Court granted a hearing in that case, some of the very issues that they raised here. Finally, two days after this hearing of which counsel walked out, they filed a complaint in the federal court. The allegations are that this proceeding that we have just discussed violated their rights. Secondly, they complained that the seizures pursuant to the warrants violated their rights. It was assigned to and immediately prior to that, of course complaints were filed against the theatre manager of Pussycat Theatre, the managers who were exhibiting the film. A hearing was held before Judge Lydick Federal District Judge on the temporary restraining order and he determined that there was no bad faith, no harassment that the officers had acted pursuant to the valid state warrants. However --
William J. Brennan, Jr.: Mr. Smith, somewhere can you straighten out for me the juxtaposition of Judge Ferguson and Judge Lydick?
Arlo E. Smith: Oh yes, I'm glad you raised that. The case was originally assigned to Judge Ferguson. And the record reveals that he recused himself on the ground that of possible bias. It was then assigned to Judge Lydick who heard the temporary, the request for a temporary restraining order. Now, on December 28, 1973 issued an order denying the temporary restraining order and finding no bad faith, finding no harassment, finding no irreparable injury. He did, however, and I -- we suggest on our brief that he erred, because he found that the question was not wholly without merit. Some substance and some perhaps federal questions but he also determined that the question of abstention he felt was a question for the three-judge District Court. We feel that at that point, he should simply deny the action dismissed and the appeal here would have been to the Ninth Circuit Court and of course if he were wrong it would have been back to the three-judge District Court. But the -- thereafter, he then issued --
William J. Brennan, Jr.: Who certify, what --
Arlo E. Smith: He certified it --
William J. Brennan, Jr.: He certified the --
Arlo E. Smith: -- on that date, same day.
William J. Brennan, Jr.: He certified the --
Arlo E. Smith: Yes he did.
William J. Brennan, Jr.: -- necessity for the three-judge court.
Arlo E. Smith: Correct. We suggest to hear in spite of the correctness of this decision overall procedural error. However, the order appointing the three-judge District Court did not include Judge Lydick, the district judge to whom it was assigned.
William J. Brennan, Jr.: And who petitioned?
Arlo E. Smith: And who certified, rather it was assigned to Judge Ferguson another U.S. District Court judge and a Circuit Court judge and a third judge. We raised the question that that is jurisdictional under the statute and I refer not to devote additional time to that question.
Thurgood Marshall: Why not?
Arlo E. Smith: Why not, because I feel that there are maybe misjudged but I feel there are more critical issues in the case than that. Then that when we feel that we have a right to have the -- we feel that it's important and we've raised it but we feel that that we have the right to have the district judge who heard this matter sit, indeed if it's referred back obviously who to whom do you refer, is a very good point, Justice Marshall. We certainly aren't conceding the point. The statute is very explicit. It says it shall include the district judge who certified the matter before whom the case was brought.
William H. Rehnquist: Did you --
Arlo E. Smith: What?
Thurgood Marshall: (Inaudible)
Arlo E. Smith: Yeah.
William H. Rehnquist: Did you ever object to the three-judge court that was actually convened that you thought there had been a jurisdictional error?
Arlo E. Smith: I can't say that we did. No, I don't believe the record reveals that we did.
Lewis F. Powell, Jr.: Or do you think this came about Chief Judge Chamber surely knows what the statute says?
Arlo E. Smith: Well, I think it came about if you look at proceedings on December 5th, 1973, six days after this action was filed, you'll notice that the same panel was assigned to consolidate -- a number of consolidated cases and in those cases they discussed abstention California statute. There are a number of cases, seven or eight involving other counties in California and other defendants and other plaintiffs.
Lewis F. Powell, Jr.: Also obscenity cases?
Arlo E. Smith: Also obscenity cases and apparently they were assigned apparently by the Ninth Circuit to handle these issues. That's the only explanation I have but I -- it's a mystery to me other than that.
Lewis F. Powell, Jr.: If you prevail on this point, you win your lawsuit, don't you?
Arlo E. Smith: Yes and we urge it we've urged it into the briefs.
Warren E. Burger: Are you going to touch on the question that Judge Ferguson's changing position about the recusal?
Arlo E. Smith: Well, I think it speaks for itself. I think it's -- he says he was biased when he recused himself. He then sits on the very same matter. I don't wish to infer beyond that.I think it's improper.
Potter Stewart: Well, it's not unheard of any judge that has a misapprehension about whether or not he owns the stock in some company or whether or not he thinks he may know some of the persons involved and it turns out to be another person by the same name?
Arlo E. Smith: No, that is not so here. It's that the -- if you'll notice the order of the recusal, it refer specifically with the fact that he has knowledge of it and acquainted with and otherwise biased in reference to parties in this action. They happen to be officers of the City of Buena Park who some of the defendants here. And that you may draw any inference that the bias was perhaps in their favor. But I suggest that that may not be the correct inference to be drawn on the record to this case and on the record of the incident to which this recusal referred.
William H. Rehnquist: Well isn't it conceivable too that Judge Ferguson this could have come to me or one of the other 15 judges of the central district would say I -- there's not, possibly I'm biased, I won't sit. Then it goes up and it's certified by the chief judge of the Ninth Circuit who comes back and says you, you and you will make up this Court. Well, that that thing is a little further advanced along the road at that and you might take another look and say, “Well in most circumstances as long as Judge Chambers have said so I'm going to sit!”
Arlo E. Smith: That's possible, apparently he did.
William O. Douglas: Mr. Smith what is your position as to the finding by the District Court of harassment?
Arlo E. Smith: Well, if the District Court Judge Lydick is on that three-judge District Court --
William O. Douglas: The three-judge court?
Arlo E. Smith: The three-judge court simply resided the facts of reference to the warrant and said they speak for themselves. Judge Lydick of course had found that this was good faith, execution of a lawful warrant by a judge, a magistrate in the California Court. I think that that question of harassment does deserve extended discussion here. To begin with of course, the burden is upon the plaintiff here to establish it. It must be beyond by clear and convincing evidence because the presumption under federal and all of the cases is presumption of validity and proper action by the state officers. There are a recitation of these facts that I just recited in reference to the search warrant is the only basis apparently for the three-judge court's determination of bad faith. It's simply the enforcement in our view of good faith the performance of the duty by the officers, a duty compelled by the statutes in California by the valid warrant in California, the valid enforcement of our state laws. But really there are --
William O. Douglas: Mr. Smith, was there any hearing on this issue of harassment?
Arlo E. Smith: Well no, except into the extent that there was a hearing on the TRO by Judge Lydick prior to the convening of the three-judge court. He held a hearing and he found good faith. It was submitted to the three-judge court on the affidavits before Judge Lydick. That question is expressly submitted.
William O. Douglas: Are you saying Mr. Smith that the three-judge court which now did not include Judge Lydick overruled --
Arlo E. Smith: That's precisely what I'm saying, yes and correct. That's precisely what happened.
Thurgood Marshall: But they have nowhere to go, they have affidavits.
Arlo E. Smith: They had no, indeed the very same affidavits --
Thurgood Marshall: The same affidavits.
Arlo E. Smith: The same, in fact the counsel were present before Judge Lydick and argued the matter, the same affidavits were presented. No, they held no hearing of any kind or character.
William O. Douglas: They didn't hear the counsel at all?
Arlo E. Smith: No, they did not, they did offer counsel the opportunity to present additional affidavits and additional materials but no additional material was in fact presented. Now, but involved in this question of harassment, here's a question which another question of state law and procedure which was presented to the state court because you know it mean while back in the state court we, the proceeding is going on. A complaint was filed against the employees of Pussycat Theatre --
William J. Brennan, Jr.: You said there are complaints --
Arlo E. Smith: Criminal complaint.
William J. Brennan, Jr.: When was that filed in relation to the day of the filing of the federal lawsuit?
Arlo E. Smith: The criminal complaint against the employees was filed prior to the federal action. The criminal action in reference to the plaintiffs here was filed, it was signed three days before that was in January. To be specific January 9th and January 14th that was filed which was three days before service of the summons on the district attorney. It was filed the day after and signed two days before. But the proceedings were held in the meanwhile under our statutes, the 1538.5 or Rule 41 procedure to suppress the evidence and return the property was in fact heard by the municipal Court in Orange County. That Court ruled in their favor as to two counts. I want to make it clear that we're dealing here with each film is a subject of a separate count. We're not talking about four films in one count. We're talking about four films which are alleged to be and are in fact different. The Municipal Court judge ruled in their favor. He ruled that it violated Heller versus United States, that in fact two of these films were sufficiently identical that they should be suppressed. And in fact an affidavit was filed before the three-judge District Court by counsel for plaintiffs to that effect.
William H. Rehnquist: Were the appellees in this case parties to the Municipal Court per se?
Arlo E. Smith: Oh, absolutely! At that point they have been named as parties and that they had been named as defendants in the criminal action. The -- that matter was certified and this is in the record was certified appeal was taken by the people on those two counts.
William J. Brennan, Jr.: But were they -- are different prints of the same film?
Arlo E. Smith: No, they were different. They were of same title but they were obviously not identical prints, it was “Deep Throat.”
William J. Brennan, Jr.: Deep Throat.
Arlo E. Smith: But apparently what happened was as pointed out here on page 48 that what they did was -- is in another instance came on with what they call a “soft virgin” first. And then the warrant was issued. I want to make it clear that these records here make it clear that the procedure at Orange County is that after one seizure on the same film that the procedure is to be the issuance of a citation for every subsequent violation and not an additional search warrant in seizure. However, the officers here as indicated by -- at page 48 it went back the second time. It was a harder version if you please. It contained additional acts of sexual intercourse etcetera. They were not contained in the first film. It was to where the harder version of the same film or the same type if you please and the same thing happened on the third and the fourth instance. And that issue was before the municipal Court in California and they prevail on that question. However, the people appealed and they want to appellate department of the Superior Court in Orange County. And the appellate department ruled to the contrary. They reversed the Municipal Court, holding that on the affidavits and the material presented and that the motion to suppress that in fact their contention was not well taken. The appellees here, the plaintiffs in this federal action pursue their remedy in the state courts. They could certify the question to the appellate Court for San Diego. No, they did not. They come back to the three-judge District Court with the same contention that all of these violate state law. So we have a ruling in the state court which they did not appeal. We have two rulings that they did not appeal or seek to review; one, this restraining order if you please or order of seizure. They refuse to participate, they refuse to appeal. Secondly, they decline to further appeal the determination concerning the identity of these films. And they've consistently refused to present to the state courts the question of obscenity and it's set out here in the record very plainly. They say we are not presenting and do not intend to present the question of obscenity to the state court. Now, I would like to read in connection with that I think the basic issue here one portion of the proceeding on August 12 is in the appendix here before Judge Ferguson sitting presumably as a member of the three-judge District Court. The question presented, have you taken that order up to the California Court of Appeals referring to the order here of seizure of the additional copies as quasi criminal actions?
Potter Stewart: Referring to the State Court of Appeals --
Arlo E. Smith: State Court of Appeals.
Potter Stewart: In San Diego?
Arlo E. Smith: In San Diego. He says, the answer by Mr. Brown, “No, we have not.” Why not? “Because, Your Honor, initially back in November when this first occurred the day after the hearing, we filed a complaint in this action, this federal action.” And one of the basis for relief alleged in the complaint was a deprivation of a constitutional rights. He goes on to say that once we had invoke the jurisdiction that this Court properly we sought relief in this Court, we did not pressed the matter further in this California state courts. Another point he says, the judge asked them when you go halfway shouldn't you be required to go all the way, referring to the same proceedings. Mr. Brown said, it was our -- this is at age 15, "It was our purpose in the beginning, not to litigate these claims in the state court.” I submit Your Honor that that's precisely the problem created in this type of litigation where --
Thurgood Marshall: (Inaudible)
Arlo E. Smith: Yes, it's in the appendix. In fact, we're very happy that was brought to the attention of this Court by the other side. It was -- it's not printed yet.
Thurgood Marshall: (Inaudible)
Arlo E. Smith: I'm reading from the transcript to the proceedings of August 12, 1974 before Judge Lydick.
Thurgood Marshall: (Inaudible)
Arlo E. Smith: Yes it is. It's in the -- it's not in the appendix, I'm sorry. It was after we requested it.
Thurgood Marshall: It was filed.
Arlo E. Smith: Yes it is filed. There's a part of the record in this Court, but it's not the printed appendix as what I wish to say, because the appellees here requested that this be made part of the record and was not part of the original printed record. It's filed, yes indeed. I regret that I didn't. Thank you Your Honor.
Warren E. Burger: Mr. Fleishman.
Stanley Fleishman: Mr. Chief Justice, may it please the Court. I will address myself to the District Court holding in which the Court declared the California obscenity statute as construed by the California Court unconstitutional. Mr. Rosenwein --
Warren E. Burger: Would you address yourself to the question of personnel competition, three-judge court.
Stanley Fleishman: Yes, Your Honor. Although that is Mr. Rosenwein's domain I know that and I can and I will.
Warren E. Burger: Very well, we'll wait for it.
Stanley Fleishman: No, I will do that because I was there. The way we do it in California Your Honor is a -- you file a case and you draw by lot a judge. We drew Judge Ferguson at that time. At that time, we had a complaint in which we asked for injunctive relief and for money damages. Judge Ferguson stated that he had been the city attorney of Buena Park where all of this occurred that he in fact had founded the charter of the city and did not want to do anything that would seem improper under the circumstances. And therefore he reclused himself. Subsequently, after the three-judge court was convened, we withdrew from our complaint all request for money damages, so that damages were then out of the case. And within that framework, where there was no longer being any money asked against the chief of police whom Mr. Judge Ferguson had previously represented, Judge Ferguson felt that there was then no longer any reason for him not to sit.
Warren E. Burger: Well, in the interim has Judge Lydick were into the case?
Stanley Fleishman: Yes, when Judge Ferguson withdrew, it was assigned to Judge Lydick, but then as I say the complaint was amended to withdraw from it, the money damage aspect and again in this connection Judge Chambers selected the Court and gave to the parties an opportunity to object that they had any objection to the composition of the Court and no objection was filed at all. So, Judge Ferguson was in fact the correct judge. It had been assigned to him in the first instance by line and whatever objection that had been in the first instance by reason of the fact there were money damages, no longer existed once we amended our complaint.
Byron R. White: Quite end up that Ferguson-Lydick and Ellie is that it?
Stanley Fleishman: No, it was Ferguson, Ellie and Easton. Yes, Your Honor.
Byron R. White: And Lydick was out?
Stanley Fleishman: And Lydick was out.
William J. Brennan, Jr.: What do you have Mr. Fleishman of the requirement statutes.
Stanley Fleishman: The statute was --
William J. Brennan, Jr.: He certified -- Judge Lydick certified the necessity for the three-judge court. Isn't the practice ordinarily if the certifying judge is a member of the the three judge panel?
Stanley Fleishman: The practice is the judge to whom the case is originally assigned and Judge Ferguson was originally assigned to the case. Judge Ferguson was no stranger to the case.
William J. Brennan, Jr.: No, that's not my question.
Stanley Fleishman: Yes sir.
William J. Brennan, Jr.: I'm trying to find that out Judge Ferguson could've been appointed by Chief Judge Chambers.
Stanley Fleishman: I think part of the explanation Mr. Justice Brennan is --
William J. Brennan, Jr.: Under the statute may he do that, isn't he required to assign the certifying judge?
Stanley Fleishman: I think not Your Honor.
William J. Brennan, Jr.: I see.
Stanley Fleishman: I would like to --
William J. Brennan, Jr.: I guess we'll have to decide that Mr. Fleishman.
Stanley Fleishman: That maybe a question although I hope that in deciding if Your Honors keep in mind that Judge Ferguson was drawn by lot, Judge Ferguson was no stranger to this litigation at all.
Warren E. Burger: But he was drawn by lot as a single judge, was it not?
Stanley Fleishman: And under the three-judge court statute then he should be one of the members of the three-judge court.
Warren E. Burger: Even though himself, there maybe a question of whether it is not out of the case then for all purposes. And Judge Black had (Inaudible) the authority attached to Judge Lydick (Voice Overlap).
Stanley Fleishman: That I -- yes that is a question, our answer to the question as I have indicated.
William J. Brennan, Jr.: But you rely also that no objection was made when opportunity was given.
Stanley Fleishman: Absolutely.
William J. Brennan, Jr.: That both sides I gather to object and not to the panel as composed.
Stanley Fleishman: Exactly, Your Honor.
Warren E. Burger: If it's very simple, although that would make no difference, would it?
Stanley Fleishman: Ordinarily jurisdictional questions are not waived although that is not a universal rule either as I've been learning. Coming to -- if I may go to the substantive question, Mr. Justice Marshall because Mr. Rosenwein will handle all of the procedural of problems. The important question on the substantive question, is whether the specificity requirement announced by this Court in Miller just two years ago, has any continuing viability. Miller held as we read it, that to meet due process requirements, a statute must specifically enumerate a carefully itemized list of various forms of sexual conduct, the depiction of which may be prohibited. Justice Brennan expressed the sentiments of the Court I believe when he said that under the Roth Memoirs test, the situation had become intolerable, not only because it makes book selling, has it as profession, but as well because it invites arbitrary and erratic enforcement of the law. There were other problems arising out of the vagueness of the law of obscenity. Appellate courts including this Court had been forced to act as a board of census and nobody was pleased with that decision. Law itself came into disrespect because courts were acting arbitrarily in this area of obscenity because nobody knew what it was. It was against this background that Miller was decided and by a five to four vote, it was decided that it was possible to define obscenity in a manner which would at the same time afford protection to First Amendment material and give fair notice to those subject to provisions. Four the justices of course felt that it was impossible to do this and that 16 years of experience had demonstrated the unquestioned that obscenity was in fact not a definable concept. It's important as we see it to remember that at the same time, that this Court abandoned Roth Memoirs as unworkable and indeed is being vague, the Court set in motion a test which it thought would cure the vice.
William H. Rehnquist: If we held in handling that we had not said in Miller that Roth Memoirs was vague, didn't we?
Stanley Fleishman: I had read that it's saying that Roth Memoirs with the specificity, with the Miller specificity read into it was not vague. I have always read Miller and indeed Hamling as saying that a statute without the specificity in it did not meet the due process requirement which Miller said was necessary --
William H. Rehnquist: You don't mean written in the statute itself, you mean construed in one way or another.
Stanley Fleishman: Construed it, oh yes, I don't mean -- attack here is not that's it's not in the statute everybody concedes it's not in the statute, but what was involved here is that even as it was construed by the California courts there was no itemized lists of sexual conduct indeed --
William H. Rehnquist: But what if there been an itemized list in the construction of Section 1461 by this Court? If there hasn't.
Stanley Fleishman: Well, the A and B that have been given as plain examples of kind of material.
William H. Rehnquist: But there's been no itemized list and surely these courts of California have as much freedom in administering obscenity statue written by the California legislature as this Court does in administering one written by Congress.
Stanley Fleishman: I haven't any doubt about that. The problem is this Mr. Justice Rehnquist, in Hamling, this Court read into the statute, the A and B given in Miller, in California, the Court of Appeal and Enskat said, we don't engage in that kind of judicial legislation. We will not read into our California statute something that the legislature did not put into it, so that there was no attempt made in Enskat which is the authoritative phase decided in California after Miller was decided. There was no attempt there to say we are going to put specificity into the law if it was not otherwise there, so that there is no question, but that if the California courts had chosen to give specificity to the statute similar to the kind of specificity that Your Honors gave to 1461 by reading Miller into 1461, it would be an entirely different case. But here, the California Court conceded that it didn't have really conceded that there wasn't the requisite specificity either in the statute or in the prior decisions. And what they said in Enskat was, you don't need that kind of specificity because California retains in its law the memoirs utterly without redeeming social value test and because that memoirs test was retained the Enskat decision said there was a fair tradeoff. We got more than the Constitution required in having a memoirs value test therefore we didn't have to get all that we were entitled to under Miller. So that the question comes back to the fact that the statute on its phase plainly is defective. It does not have any itemized sexual conduct and the decisions that existed in California at the time that Enskat looked at the statute did not have particularization. What we have in California are generalizations not particularizations and this is what the Court said in Enskat. They said for example that Miller was satisfied because in California we have a hardcore pornography test because it had been ruled previously that only graffiti fictions of sexual conduct could be reached and because nudity without sexual activity would not be deemed to be obscene. Those are the guidelines --
William H. Rehnquist: Well, is that any less of a guideline in our construction of 1461 in the Reel's case and in Hamling?
Stanley Fleishman: I would say so, if Miller's requirement of specificity Mr. Justice Rehnquist.
William H. Rehnquist: But we said in Hamling that Miller wasn't a legislative drafting manually that you didn't have to do exactly what Miller has said.
Stanley Fleishman: No, but you also said that Miller was a constitutional requirement that as a constitutional requirement that due process required that there be specific sexual conduct itemized either in the statute or by judicial construction. Otherwise, I submit Your Honors that the attempt to cure the vagueness by Miller was nothing at all, it was a mirage because in other respects, in every other respect, Miller made the obscenity law more vague not less vague. For example, in Miller we shifted from national standards which was generally thought to be applicable to local standards. Now, local standards are less certain and are more vague. In Miller, the requirement that the prosecution come on with expert evidence to prove its case was withdrawn rendering a possible for finders of fact, judges or jury, to make determinations based on personal trade elections rather than some kind of objective standards. In Miller, there was a shift to the jury as the Board of Census instead of having an appellate court acting as board of census. Now, it's true that Boards of Census be they appellate courts or juries are not in high esteem, the fact of the matter is that censorship by juries is less certain. It's less predictable than censorship by an appellate court which everyone can look to, and know what the law is.
William J. Brennan, Jr.: A similar case has not yet been taken by Supreme Court?
Stanley Fleishman: As a matter of fact, after this Court had taken this case and I have called it to the Court's attention just about two or three weeks ago, the California Supreme Court has taken the case called People against Nisenoff (ph) where that is issue is finally coming up to the --
William J. Brennan, Jr.: Well, would that -- what Court have decided this --
Stanley Fleishman: Nisenoff (ph) was decided by another intermediate court, Enskat had been decided by a Court of Appeal down in Los Angeles and Nisenoff (ph) was decided by Court of equal level up north.
William J. Brennan, Jr.: Did the Nisenoff (ph) Court follow Enskat?
Stanley Fleishman: Exactly.
William J. Brennan, Jr.: I see, so the very Enskat issue is now before the Supreme Court?
Stanley Fleishman: Exactly.
William J. Brennan, Jr.: That hasn't been argued?
Stanley Fleishman: That has not been argued Your Honor. Now, after and only after the California Court construed its statute and found that it did not violate constitutional requirements, did the District Court consider the validity of the California statute as it was construed by the California courts. And in rejecting the Enskat argument that there had been the requisite specificity, the District Court said exactly what I was saying to you a moment ago Mr. Justice Rehnquist, that all that Enskat said was that the statute reached hardcore pornography, graphically fictions of sexual activity and did not reach nudity without sexual activity. The Court said quite properly so that the cliché hardcore pornography added nothing. Hardcore pornography has all the vagueness that we find in the term obscenity. The court -- the District Court quoted the statement made by Chief Justice Warren in Jackabellas, where Chief Justice Warren stated we are told that only hardcore pornography should be denied the protection of the First Amendment, but who can define hardcore pornography with any greater clarity than obscenity. In the case of Commonwealth against Horton a case where the Highest Court in Massachusetts declared the Massachusetts obscenity statute unconstitutional in light of Miller. The same argument was made. It was argued before that Court that in Massachusetts only hardcore pornography could be condemned and the Court so that's a mere cliché. That doesn't mean anything and struck down the Massachusetts statute. Similarly, the District Court found that the requirement of graphic fictions of sexual activity clearly did not meet the requirement of some kind of a list which would give some kind of guidance to everybody so that you would know if it was in the troubled waters and if it wasn't that kind of conduct you were not in trouble. The Court pointed out that there were many acts of sexual activity that may even be utterly without redeeming social value which is so innocuous as not to be included on the list enumerated by a legislature, example to come to mind of course. Since in California we say that it's nudity with sexual activity the question comes to mind, can you reach a nude couple kissing mouth to mouth, that would not seem to fit the plain examples that we find in Miller and yet it would fit the general language of the California statute. One thinks in terms of kissing toes, fingers, nose, neck, ears, hair, breast, all of which under the plain examples of Miller would not be covered and yet which could be covered under the general language that we find in the statute. Now, the Attorney General takes the position quite out front and says that we do not need a blueprint, we do not need a blueprint of sexual activity. Use the language of the Attorney General says, “Miller's demand for specificity does not require a detail statutory enumeration and description of all other types of sexual activities sought to be protected, such detail is not required under Roth" and then were back again, would Roth without Miller read into it satisfy the due process requirements today in light of Miller. And I submit with all deference that Roth without Miller read into it is unconstitutional under the Miller group. And then the Attorney General says, “relying on a statement of this Court that the Constitution does not require ultimate godlike precision," he says, therefore it is unnecessary that to avert the constitutional infirmity of vagueness, the statute must reside a detailed blueprint of the proscribed conduct.” So the question that we have here is, when concededly the state statute does not have any itemized list and when concededly the prior decisions of the state court do not have any itemized list and where the state court does not seek to correct the statute in any fashion because the state courts recognized that that is a legislative function and not a judicial function whether under those circumstances the statute was correctly found to the unconstitutional as it was by the District Court and we believe that the Court plainly was correct in its conclusion. The Court stated, the District Court stated that this Court in Miller set forth important First and Fifth Amendment principles central to a fair and recent system of criminal law when it insisted that an obscenity statute have an itemized list of the types of sexual conduct that may be reached under the obscenity law. We respectfully submit that unless that portion of Miller is to be overruled, the District Court was plainly correct in its conclusion and I would say to Your Honors that if that specificity portion of Miller is to be overruled, then we are worse off than we were before when this Court said that Roth and Memoirs had created the state of chaos because then we would have even more chaos than we had before. Thank you Your Honors.
Warren E. Burger: Mr. Rosenwein.
Sam Rosenwein: Mr. Chief Justice, may it please the Court. My responsibility is to take care of the procedural matters. I do think that perhaps it would be helpful to make a statement, a very brief statement of the facts which appeared to have been overlooked by my colleagues on the other side. And it's simply this, what happened here was that in the City of Buena Park that came the news that “Deep Throat” was going to be shown in that city. Unwilling to have that film shown in the city, the District Attorney sent the two offices to look at the film in Hollywood where it was showing and has shown to over 8,000 papers. They viewed the film, came back and prepared an affidavit which stated all tight up, which stated that they saw the film watched it for 60 minutes and it was nothing but one sexual act after another. No mention has made of theme or anything else, that's what they saw. They then presented that to a Municipal Court judge and with the judge together with the officers proceeded to the theater in Buena Park. They went in and saw the film, the findings of the district court below is that they stayed there 45 minutes, did not wait to see the entire film, came out and in the street, the judge directed the issuance of the warrant and at the same time where a camera was being -- a cameraman was taking a photograph of the scene ordered that the film be taken out of that cameraman because the Municipal Court judge was performing a judicial function. Now, after that, they proceeded to seize the film and this was now at about the first showing on November 23, 1973. Two hours later, another print of the film is at the theater and is being shown. They had been told by the District Attorney, look for any difference, any difference at all and then you can get another warrant to seize.
Potter Stewart: So whose there?
Sam Rosenwein: The police officer.
Potter Stewart: They have been told?
Sam Rosenwein: They had been told by the District Attorney.
Potter Stewart: They who have been told were the?
Sam Rosenwein: Police officers. The police officers had been instructed before they went out and this is in the record, they've been instructed, look for any difference and then seize it. They now take the same affidavit, they go and view the film now assumingly now for the 60 minutes. They view the film now, and use exactly the same form, the same type form that they had originally with the respect to see if viewing the Hollywood film and then they write in themselves, in hand their own handwriting, you're affiant for the state that such film was seized --
Warren E. Burger: What page are you on?
Sam Rosenwein: I'm on page five of my own brief, but they actually -- it also appears in the findings of the Court and you'll find that in the appendix to the jurisdictional statement. Anyway I'm on five -- page four and five of my brief, we recited the findings, in fact four, five, six and seven. I should point out that at the first seizure, they not only seize the film, but they took out of the cash box all the receipts of that day, $305.00. Then they come back and write, your fine for the state that said film was seized on November 23, 1973 at approximately 1:30 PM after being viewed by Judge Smith, it was the name, with the exception of certain portions being edited different in the first film seized. Your affiant states that this copy of the film Deep Throat consists of one additional act of sexual intercourse and numerous small changes at different portions of the film where this was the second, a minute one doesn't know. They had set 60 minutes of nothing but sexual acts, the first time they look at only 45 minutes. Now they're saying they found one more. That is the finding of the district. Having seized those two, there's now a third film, Your Honors will recall of course the decision in Heller against New York on which of course my colleagues were entirely aware. My colleagues who are -- cannot do some things in good faith and go to the Court etcetera. In any event they come with the third one now and they seized the third one, and what do they put in their affidavit? Exactly the same language, not a change, they don't even say the third is different from the second.
Warren E. Burger: But that's because their conclusion was after viewing that the pictures were essentially the same.
Sam Rosenwein: Exactly. The pictures were the same and they had not seen anything addition. I'm going to come Your Honor, finally, to their concession that they were identical, but I just want to point out here --
William J. Brennan, Jr.: Mr. Rosenwein I hope you're going to give some time to whether or not we have jurisdiction of this case and weather Younger should've been filed.
Sam Rosenwein: Well, alright then let me just see. Let me just -- and I will come to that part.
William J. Brennan, Jr.: Because I gather these things were all irrelevant if we've decided we don't have jurisdiction in this appeal.
Sam Rosenwein: Yes, but these four seizures were all done, we say of the identical film and in addition, some month or two later at the criminal trial and pretrial proceedings for the purposes of the trial, they conceded that these films were identical and they needed only one. There was therefore here a massive seizure, the theater was closed after the fourth seizure, there was a massive seizure before any prior adversary hearing, clear violation of Heller. Now, Your Honors question is --
William J. Brennan, Jr.: What's the appeal here is from? What or where?
Sam Rosenwein: The appeal -- there's only -- I think --
Harry A. Blackmun: May I emphasize what Mr. Justice Brennan is asking, there seems to be a great desire on the part of both sides of the council table to avoid this issue. Would you direct yourself to it.
Sam Rosenwein: Now, let me start just from the beginning then on that. You have the selection of justice -- Judge Ferguson by lot. You have him then recusing himself. Now, I want to make clear that he didn't recuse himself because he was biased. There is an implication there, that's really unfair. What he did say, you'll find it on page 20 of the record all he said was that he had been a city prosecutor in Buena Park, helped to organize and the chief of police there was someone whom he had helped at the point. Now the chief of police is defendant of the state.
William J. Brennan, Jr.: Well as I understood, if I may tell you what bothers me.
Sam Rosenwein: Yes.
William J. Brennan, Jr.: This is direct appeal from an order to this Court and if it's properly here that's because there was some kind of injunctive order below. Was there or wasn't there an injunctive order below?
Sam Rosenwein: There was an injunctive order, but I don't think I'd say literally there was of course an injunctive order. They -- the --
William J. Brennan, Jr.: I'm speaking of the two orders and what these two have said?
Sam Rosenwein: There's only one really before this Court I think. The amended judgment, what they did say was that the District Attorney should in good faith petition for the return of three, in that sense it was.
William J. Brennan, Jr.: And that's an adjunctive order?
Sam Rosenwein: Yes.
William J. Brennan, Jr.: You think you'll agree and an appeal was taken from that order here.
Sam Rosenwein: Yes and I am saying and I --
William J. Brennan, Jr.: Now, the next thing I'm interested in, if we have jurisdiction should the three-judge court had followed Younger and this --
Sam Rosenwein: No, I don't think Younger was applicable here, I think this was Steffel.
William J. Brennan, Jr.: There was a pending as I understand it, at least at the time of any order in the three-judge court. There was a pending criminal proceeding was there or not in the California state law?
Sam Rosenwein: At the time the amended judgment was filed, yes at that time there was.
William J. Brennan, Jr.: And when with relation to the firing of the federal suit was that state criminal proceeding begun?
Sam Rosenwein: The state criminal proceeding against the two employees was begun first, then came the federal complaint six weeks later; six weeks later after service of the complaint, they amended to include these two appellees.
William J. Brennan, Jr.: Right, but as after that, before you had the first judgment order of the three-judge court.
Sam Rosenwein: And I think that -- I think that's correct --
William J. Brennan, Jr.: And meanwhile there had been additional proceedings involving these appellants in the state courts?
Sam Rosenwein: Yes, but those were -- those had nothing to do with the problems that were then in the federal court.
William J. Brennan, Jr.: Why do you say in that circumstance that Younger does not apply?
Sam Rosenwein: Well, for this reason, first, if we follow Steffel, we had filed first our compliant filed by these two appellees was filed first. In the second place, the predicate for Younger has always been that one could get a disposition of the case in the state court on some question of construction of the state law which might not be clear. Here Enskat they came into the District Court and said, Enskat has decided this.
William J. Brennan, Jr.: May I suggest I don't understand Younger that way. This is not the classic abstention situation in which a construction of the state statute might avoid the federal constitutional questio. That's not the circumstance to which Younger was limited, is it?
Sam Rosenwein: Well, we couldn't have I would say relegating us to that Court would have not resulted and the answer to the Constitution. It would've been just one way Enskat governed all Courts at that time and they said so.
William H. Rehnquist: Well, you might told us to a petition for hearing to the Supreme Court of California at the San Diego Court of Appeals decided against on your constitutional claim, didn't you?
Sam Rosenwein: In which case are you referring to?
William H. Rehnquist: Well, had you taken your case up through the California Court System. You say that's -- that the Court of Appeals would've decided on the basis of Enskat.
Sam Rosenwein: Yes.
William H. Rehnquist: But you could've then asked the Supreme Court of California for him if you'd lost in the Court of Appeals. And you could've petitioned this Court if you'd lost in the Supreme Court of California.
Sam Rosenwein: Yes, I assume one can say that one could go through the entire situation again, but Enskat had just been decided, the defendant the appellants here themselves come and said to the District Court, Enskat has decided this and there's nothing that you can do about it. And moreover, the Court found as it was a finding made by the three-judge court, that this was a deliberate attempt.
Thurgood Marshall: Mr. Rosenwein.
Sam Rosenwein: To --
Thurgood Marshall: Oh, I'm sorry, finish it. I'm sorry.
Sam Rosenwein: I just want to say that the three-judge court found was a deliberate attempt to circumvent.
William J. Brennan, Jr.: With an exception.
Sam Rosenwein: They wanted to circumvent the jurisdiction of the Court.
William J. Brennan, Jr.: Well, you mean that was -- it was the finding of harassment within the Younger exception is that what you say?
Sam Rosenwein: No, I mean that there was a finding that the filing of this amendment to their criminal complaint to include these appellees six weeks after they had started that action was intended in bad faith to circumvent the jurisdiction of the federal court which we had invoked and we had invoked simply a violation of the Heller rule. The Heller opinion and were entitled to the return of our three films. That's what before this Court.
William J. Brennan, Jr.: Well Mr. Fleishman has told us that some other litigators exceeded in getting the Enskat issue before the California Supreme Court. Had you proceeded through the Court of Appeals , I guess the same third provision would it in Los Angeles? Then perhaps you might have succeeded as to this other litigant in getting Enskat before the Court.
Sam Rosenwein: Mr. Justice Brennan, here is our situation on that, you have an Enskat decision, you have this -- all of these people coming in and saying this is a binding law, we understand to be the binding law. I might say a writ of -- a petition for writ of habeas corpus was filed prior to the recent taking of this case and was denied by the supreme Court citing Enskat Hamling. Now, everybody and I agree that the Courts can always change their mind, this Court has itself changed his mind.
William J. Brennan, Jr.: Well, I gather you're suggesting that means the Supreme Court is going to follow Enskat, but then you've come here wouldn't you or try to get here.
Sam Rosenwein: Well, what I'm saying is the time nine months ago when we were there before the District Court it had a clear situation of an attempted circumvention, it had an Enskat case, that the binding law everybody agreed that it was and we had filed our complaint first and had not -- has invoked the federal court's jurisdiction before. And we had a --
Byron R. White: Do you suggest that the Younger doctrine is limited to where the state law or where state courts having decided the federal question that was in the case, but if the state courts have already taken a position on the federal question of the case, you may ignore Younger, is that it?
Sam Rosenwein: No, what I'm saying is that we had one other reason. I'm not saying that we mustn't show bad faith and show harassment -- I'm just saying that --
Byron R. White: You say we don't need to go to the state court because they've already decided the issue.
Sam Rosenwein: We simply said that one of the reasons why it would be purposeless for federal court to relegate us back to the state court is you've had a ruling from the state court today, yesterday which says, our statute as we construe it is constitutional. Now there the federal court what is the federal court to do? They are asked by appropriate plaintiff who says to them under the civil rights act of 1871 congress has passed the law, the law of the United States and the supreme law of the land, we claim a violation of our constitutional rights. And we ask that there'd be a declaration that this statute is unconstitutional.
William J. Brennan, Jr.: This is a 1983 suit?
Sam Rosenwein: Yes it's a 1983 suit.
Thurgood Marshall: Mr. Rosenwein, did your original application asked for a three-judge court?
Sam Rosenwein: Yes it did.
Thurgood Marshall: It did. Which judge asked for it?
Sam Rosenwein: Judge Lydick certified.
Thurgood Marshall: Well the statute says that on the filing that he shall immediately notify the chief judge of the circuit, that was Judge Lydick right?
Sam Rosenwein: Yes.
Thurgood Marshall: Who shall designate two other judges to sit with it, does this comply with the statute?
Sam Rosenwein: Well, if this is were to be considered mandatory and I consider it directory not mandatory, but if because it would -- I know but Your Honor that it --
Thurgood Marshall: It's not mandatory.
Sam Rosenwein: If it's not mandatory, we have a situation -- I'll tell you what the situation it's in the record there have been --
Thurgood Marshall: Who shall, is not mandatory?
Sam Rosenwein: Shall and may as Your Honor know is very often, vary in meaning. What my point simply is we have had a number of three-judge court actions pending at the time and I think as a matter of judicial economy, the chief judge decided that he would refer it to the three judge court, Judge Ferguson, Judge Ellie, and Judge East and put in there as any objection to it, let yourself be known that there's never been an objection the first time they rate that is here on appeal.
Harry A. Blackmun: Mr. Rosenwein are you departing now from your associates posture, I thought that he took the position that under the statute it was Judge Ferguson to whom the application for injunction or other relief was originally presented.
Sam Rosenwein: Yes but I think that would be another reason why it was appropriate for Chief Judge Chambers to point -- I refer as Judge Ferguson as one of the members. But out objection, unless it be considered mandatory and that would be -- I've never considered I can visualize judges becoming ill, judges incapacitated for one reason or another would be I think --
Thurgood Marshall: Actually I never heard of it before. I know I haven't been on any Court too long, but I'd never heard of a three-judge court that didn't include the one who asked for it.
Sam Rosenwein: Yes, I think that this true. I think in most cases that is true, but --
Thurgood Marshall: Assume you could call that a statute.
Sam Rosenwein: Yes that would be ordinarily be followed, but unless it's mandatory I would not conceive it is something. Now, I just wanted to say, counsel on the other side spoke of the declaratory relief action as being injunctive in character and therefore this Court has jurisdiction and made an incomplete argument for ex parte Young etcetera, but I had understood from decisions like Gunn and Mitchell and others that this Court had decided that if only declaratory relief was handed down by a three-judge court that that was appealable to the Court of Appeals. And I might say that in this case, where questions of harassment and bad faith and so on are being mooted one way or the other, a mediating effect of a Ninth Circuit opinion might have been a very helpful. But this Court has decided that the mere declaratory relief is not enough to warrant an appeal, now that's all we really have in this case, all we have is declaratory relief plus the direction to proceed to the Municipal Court who have had stipulations before returning all the money over $5000.00 were seized and who would assumedly if they asked would say in the light of the District Court's direction at the Heller violation was palpable would direct it to be retained would give back it's --
Potter Stewart: Well that is injunctive, isn't it?
Sam Rosenwein: Yes it is, (Voice Overlap) but this Court has said that 1253 is kind of a statute that should not be literally construed that are there maybe cases where it would be helpful for judicial economy etcetera to commit the appeals to go to the Ninth Circuit, I think this is one. This Court should decide it wants to take jurisdiction of course as a matter really of discretion policy whether this case involving basically the return of the three films is --
William J. Brennan, Jr.: Did I understand you to say that's either discretion whether we take this one.
Sam Rosenwein: What I understood from Gonzales, I understood from Gonzales that --
Potter Stewart: Discretionary in Gonzales --
Sam Rosenwein: At least policy wise that one could say that we would not take this thing because this is not an injunction that restrains the enforcement of the statute because of its unconstitutionality.
William J. Brennan, Jr.: But it wouldn't matter, I should take in the place of the statute, unless as an injunctive order we have no jurisdiction --
Potter Stewart: If there is and if there was a three-judge court that was required to be convened then we do and must.
Sam Rosenwein: You have jurisdiction but I thought from the cases there have indications that could if you wanted to refer to the Circuit Court. Nevertheless, in spite all that, if this Court decides to take jurisdiction, our argument is that the district court below improperly decided that it could consider this case, that this was a situation, a Steffel situation, a situation of bad faith and that the subsequent amendment was intended to circumvent jurisdiction.
William J. Brennan, Jr.: Now, with that situation is one in which there has no criminal proceeding pending all over this --
Sam Rosenwein: This raises the question.
William J. Brennan, Jr.: Here you've got an actual criminal proceeding --
Sam Rosenwein: With a finding --
William J. Brennan, Jr.: That involves whether Young --
Sam Rosenwein: With a finding --
William J. Brennan, Jr.: That's within an exception. You're suggesting that it's a finding that which brings --
Sam Rosenwein: Exactly.
William J. Brennan, Jr.: The harassment exception.
Sam Rosenwein: Exactly and in addition with respect to all of what has been said about the adversary proceedings so-called in which they went informed shock to a judge in Orange County, the Superior Court judge who had no jurisdiction, no statutory references, California as this Court well knows has only one way of trying an obscenity case and that's a criminal trial. There is a specific provision that you cannot condemn any property and is so-called obscene material until there has been a final affirmance of the conviction. They proceed to improvise this kind of a proceeding and get the order restraining us entirely from showing the film clear prior restraint and then proceed to say we are holding a hearing in which the husband of the prosecutor testifies as an expert that has no redeeming value and the judge says, "Well, I've see this stag movies before that this is no different human maybe but snap up every real and get rid to the whole thing and here's my order." Now, is that bad faith or harassment, we submit the District Court properly held that there was properly intervened as a result to decide that the statute was unconstitutional.
Warren E. Burger: Judge Lydick had a different view at one time, did he not?
Sam Rosenwein: Yes, but Judge Lydick didn't have before him the evidence. They keep on saying the same evidence, he didn't have the evidence that in the criminal trial two months later they stipulated. They stipulated that the films were identical and they needed only one. Now, if they need only one Your Honor knows under Heller against New York, that's all they are supposed to have. We're supposed to show the film thereafter until they have a criminal trial and convict us. Thank you, Your Honors.
William H. Rehnquist: Mr. Rosenwein, at what stage did your Heller complaint in the federal court turn into an attack on the constitutionality of the California obscenity statute itself?
Sam Rosenwein: Well, when you say that -- well, let me just say this, when we came in, when we came originally before Judge Lydick and asked for temporary restraining order, and by the way at that time they already knew who the plaintiffs were. They already knew who the plaintiffs were and they waited six months six weeks. There has never been an explanation of why they waited before they brought this criminal action against them. Well, when we came before that, there was the potential, there was simply potentially that --
William H. Rehnquist: But when did you first pray for a declaration or injunction as to the unconstitutional --
Sam Rosenwein: In the complaint.
William H. Rehnquist: In your original --
Sam Rosenwein: Original complaint.
Warren E. Burger: Very well. You have minutes left Mrs. Sears.
Oretta D. Sears: Mr. Chief Justice, may the Court please. I just wish to answer by referring the Court to certain passages of the appendix that I think the Court has been wondering about. The appendix at page 82 shows the reason why we were not able to object to the three-judge court composition. We were notified on February 8 of the existence of the three-judge court and the three-judge court order designating it where it was just found on pages 84 and 85 is dated January 8 and gave us two weeks from the January 8th date to complain about the three-judge court. I found that was few time to attempt to do anything about that. Number two, the appendix at page 89 shows that just this matter of course we did not have an evidentiary hearing because we were ordered to submit an affidavit and points in authorities and without oral argument. As a matter of fact, I have never seen the three-judge court ever. I know it exists but I've never seen it. Page 20 of course do show the reason, page 36 Dr. John Smith's affidavit of that is the magistrate affidavit. Pages 76, 77, 78 and 79 of the appendix show the true status as to the stipulation of the identity of the pictures, there was a stipulation for purposes of trial only. We were going on appeal for two of the copies. Page 45 of the appendix shows that which has been our consistent policy in these cases, one seizure and subsequently an adversary hearing and one more thing that I wish to correct, counsel states that the Court -- the state court is bound by Enskat only in the Superior Court only in the Municipal Court. We are in the Fourth District Court of Appeals, Enskat in the Second District Court of Appeal has persuasive value. It is not binding on the Fourth District Court of Appeal. They could've done it. They could've gone that way and obtained the decision.
William O. Douglas: Mrs. Sears you said as I understood you, that you had never appeared before or even seen this three-judge court.
Oretta D. Sears: That is correct.
William O. Douglas: Did any counsel for Orange County had that privilege?
Oretta D. Sears: No sir.
William O. Douglas: There was no hearing of any kind nor argument of counsel.
Oretta D. Sears: No sir.
William O. Douglas: Were the files -- were briefs filed?
Oretta D. Sears: Yes, by order of the Court. On March 20th, we were notified that the matter will be submitted upon affidavits and the issue of harassment will be submitted upon affidavit and that the issue of the constitutionality of the state statute was ordered briefed and that was it.
Warren E. Burger: Thank you. The case is submitted.