No. 80-2093.United States Court of Appeals, Tenth Circuit.
November 16, 1983. Rehearing and Rehearing En Banc Denied December 23, 1983.
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Robert C. Brown of Smith, Shay, Farmer Wetta, Wichita, Kan. (Jack Focht, Wichita, Kan., was also on brief), for plaintiff-appellant.
Stanley A. Issinghoff, Wichita, Kan. (Thomas R. Powell, Wichita, Kan., was also on brief), for defendants-appellees.
Robert T. Stephan, Atty. Gen. of Kan., and Thomas D. Haney, Deputy Atty. Gen. of Kan., Topeka, Kan., filed a brief for the State of Kan. as amicus curiae in support of defendants-appellees.
Appeal from the United States District Court for the District of Kansas.
Before SETH, Chief Judge, and HOLLOWAY and McWILLIAMS, Circuit Judges.
HOLLOWAY, Circuit Judge.
[1] Plaintiff M.S. News Company (News), is a wholesale and retail distributor of periodicals and publications in Wichita, Kansas.[1] It appeals from dismissal of its action for injunctive and declaratory relief against enforcement of a portion of a Wichita ordinance. The ordinance, Number 36-172, amended sections 5.68.150 and 5.68.155 of the Code of the City of Wichita and created 5.68.156. This section prohibits the promotion of sexually oriented materials to minors. It is the sole portion of the ordinancePage 1285
at issue in this action, and it is reproduced as an appendix to this opinion.
[2] The Wichita ordinance is designed to prevent minors from being exposed to sexually oriented materials that are harmful to them. The ordinance defines “harmful to minors” and makes it an offense to display such material to minors if, as a part of the invited general public, they will be exposed to it. It further proscribes, inter alia, selling, furnishing or presenting to minors any material or performance that is harmful to them. [3] The controlling facts are not in dispute. By early August 1979, plaintiff News became aware of the impending passage of the subject ordinance. On August 20, News brought this action against all members of the Board of Commissioners, the Chief of Police, and the City Attorney of Wichita. It sought a declaratory judgment that Section 5.68.156 “is unconstitutional on its face and as applied,” and injunctive relief restraining the defendants from enforcing the section. The district judge promptly issued a temporary restraining order. [4] Defendants filed a motion to dismiss with a supporting brief claiming, inter alia, that the complaint failed to state a cause of action. News then filed a reply brief contesting the motion. The district court held a hearing to consider plaintiff’s request for a permanent injunction and the defendants’ motion to dismiss, heard argument, and took the matter under advisement. The judge shortly thereafter dissolved the temporary restraining order, denied the request for preliminary and permanent injunctive relief and granted defendant’s motion to dismiss. Plaintiff appeals. [5] Plaintiff makes four main arguments on appeal, contending that the ordinance: (1) goes beyond the permissible scope of Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), and is overbroad and vague both on its face and as applied;[2](2) violates the Equal Protection Clause of the Fourteenth Amendment; (3) creates a prior restraint in violation of the First Amendment; and (4) deprives defendants of their Sixth Amendment right to a jury trial. We will consider each of these contentions in turn.[3]
I [6] FACIAL OVERBREADTH AND VAGUENESS
[7] Plaintiff News challenges the ordinance for overbreadth and vagueness. It essentially says that the realistic effect of the ordinance will be to limit, by its overbroad application, the access of adults, and minors approaching adulthood, to constitutionally permissible material. News further argues that the ordinance is vague in that it neither affords fair warning to those within its reach, nor provides explicit standards for those who enforce it. Brief of Appellant at 17.
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statute upheld in Ginsberg. Ginsberg, supra, 390 U.S. at 645-47, 88 S.Ct. at 1283-84. Plaintiff attempts to distinguis Ginsberg by pointing out differences between the two laws.
[9] There are two principal differences between the Wichita ordinance and the statute in Ginsberg that are relevant to the constitutionality of the Wichita ordinance on its face. First, the Wichita ordinance uses the Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), obscenity test,[4]and second, it proscribes not just the dissemination of material harmful to minors, as Ginsberg did, but also the display of such material.[5] We find no constitutional infirmity in the ordinance resulting from either of these changes, or in any of the prohibitions of display, sale or presentation of proscribed materials to minors.
[10] A. Application of the Miller test
[11] We are unable to discern any substance to plaintiff’s argument that replacing the Memoirs test with the Miller test creates either an overbreadth or vagueness problem. The ordinance i Ginsberg prohibited distribution to minors of material that was “harmful to minors.” In defining “harmful to minors,” th Memoirs obscenity test was adapted so that material could not be distributed to minors if it: (1) appealed to the prurient interest of minors; (2) was patently offensive to what the adult community believed was suitable for minors; and (3) was utterly without social importance for minors. Ginsberg, supra, 390 U.S. at 646, 88 S.Ct. at 1284. The Wichita ordinance is virtually identical to that upheld in Ginsberg except that the Miller
obscenity test is used rather than the Memoirs test. Although the ordinance alters the Miller test so that it can be used for determining what material is harmful to minors, this is precisely what the ordinance in Ginsberg did with the old Memoirs test. We reject the argument that the use of the Miller test
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rendered the ordinance overbroad or vague.[6]
[12] B. The prohibitions of the ordinance protecting minors
[13] The Wichita ordinance prohibits (a) displaying material “harmful to minors,” (b) selling, furnishing or presenting such material to minors; and (c) presenting to a minor any “performance” harmful to him. We feel that Ginsberg has already upheld all such prohibitions except that of display. We therefore focus on the overbreadth and vagueness challenges to the display prohibition.
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City of Rockford, supra, 408 U.S. at 114, 92 S.Ct. at 2302. We consider the overbreadth and vagueness issues separately.[9]
[16] 1. Overbreadth
[17] As noted, plaintiff New argues that the Wichita ordinance is overbroad, restricting the access of adults and minors approaching adulthood to constitutionally permissible publications. Brief of Appellant at 17. New says that as commercial enterprises seek to avoid violating the ordinance, the natural tendency will be to limit materials available for view by anyone. Id. at 13.
(1976) (plurality), and are narrowly tailored to further the State’s legitimate interest. Grayned v. City of Rockford, supra, 408 U.S. at 116-17, 92 S.Ct. at 2303-04.[10] We fin Young, supra, instructive. In Young the plurality held that Detroit zoning ordinances providing that an adult theatre may not be located within 1000 feet of any two other adult theatres (or other “regulated uses”) or within 500 feet of a residential area, was consistent with the First and Fourteenth Amendments. The plurality recognized that this was content-based regulation but upheld it because the city had a sufficient interest in preserving the quality of urban life and the ordinance did not suppress or greatly restrict access to lawful speech. Young, supra, 427 U.S. at 63-72 n. 35, 96 S.Ct. at 2448-53 n. 35 (plurality). Similarly the display provision of the Wichita ordinance is a regulation based on content. We believe that it is likewise justified by the substantial governmental interest in protecting minors from exposure to harmful adult material.[11] See supra note 5. [20] Moreover, the proscription on display of material harmful to minors does not unreasonably restrict adults’ access to material which is not obscene as to them.[12] The
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ordinance permits the “display” of material harmful to minors if it is in blinder racks which conceal the lower two-thirds of the material. Thus, adults may still have some access to materials not obscene as to them, and they may purchase such material.
[21] In considering News’s claim of overbreadth,[13] we must remember that invalidating legislation as overbroad on its face is “manifestly strong medicine” and is employed sparingly and “only as a last resort.” New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982); Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830(1973). In Ferber, the court implied that when conduct plus speech is involved, the overbreadth “`must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.'” New York v. Ferber, supra, 458 U.S. at 770, 102 S.Ct. at 3362 (quoting Broadrick v. Oklahoma, supra, 413 U.S. at 615, 93 S.Ct. at 2917). Moreover, legislation should not be held facially overbroad unless it is not readily subject to a narrowing construction, and the deterrent effect on speech is real and substantial. Young v. American Mini Theatres, supra, 427 U.S. at 60, 96 S.Ct. at 2447; Erznoznik v. City of Jacksonville, supra, 422 U.S. at 216, 95 S.Ct. at 2276.[14] [22] The portion of the Wichita ordinance proscribing display to minors is conduct plus speech because it regulates the manner in which material with a particular content can be disseminated; it does not regulate pure speech itself. Thus, there must be substantial overbreadth for the ordinance to be held overbroad on its face. We find no such infirmity. As noted, the display portion of the ordinance does not restrict minors’ access to materials which they have a constitutional right to obtain. See Ginsberg, supra, 390 U.S. at 634-43, 88 S.Ct. at 1277-82. The ordinance only prohibits displaying material “harmful to minors,” and this terms is defined to include only material that is obscene as to minors under the Miller test as adapted to evaluate whether material is harmful to minors. Although minors are entitled to a significant measure of First Amendment protection, Erznoznik v. City of Jacksonville, supra, 422 U.S. at 212-13, 95 S.Ct. at 2274-75; Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), a narrowly drawn ordinance restricting their access to sexually oriented material does not abridge their First Amendment rights See Ginsberg, supra, 390 U.S. at 634-43, 88 S.Ct. at 1277-82. [23] We therefore hold that the display provision of the ordinance is not overbroad on its face.
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[24] 2. Vagueness
[25] If a law threatens to inhibit First Amendment freedoms a more stringent vagueness test is used. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., supra, 455 U.S. at 499, 102 S.Ct. at 1193; Hynes v. Mayor of Oradell, 425 U.S. 610, 620, 96 S.Ct. 1755, 1760, 48 L.Ed.2d 243 (1976). In the First Amendment area vague laws offend three important values. First, they do not give individuals fair warning of what is prohibited. Second, lack of precise standards permits arbitrary and discriminatory enforcement. Finally, vague statutes encroach upon First Amendment freedoms by causing citizens to forsake activity protected by the First Amendment for fear it may be prohibited.[15] Grayned v. City of Rockford, supra, 408 U.S. at 108-09, 92 S.Ct. at 2298-99; see Hynes v. Mayor of Oradell, supra, 425 U.S. at 620-22, 96 S.Ct. at 1760-61; see also General Stores, Inc. v. Bingaman, 695 F.2d 502, 503 (10th Cir. 1982). Hejira Corp. v. MacFarlane, 660 F.2d 1356, 1365
(10th Cir. 1981).
(1968), “`. . . the Constitution does not require impossible standards’; all that is required is that the language `conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices . . . .'” Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498 (1957) (quoting United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1541-42, (1947)). We believe that the ordinance does this. The obscenity standard as to minors is clearly defined. Common understanding and practices provide commercial establishments with sufficient notice of the type of display the ordinance is designed to prohibit. See Broadrick v. Oklahoma, supra, 413 U.S. at 608, 93 S.Ct. at 2913; Miller, supra, 413 U.S. at 27, 93 S.Ct. at 2616. [27] Furthermore, whatever imprecision is present is mitigated by the ordinance’s scienter provision. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., supra, 455 U.S. at 499, 102 S.Ct. at 1193 (“[S]cienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.”) (footnote omitted). The ordinance defines knowingly in terms almost identical to the definition approved in Ginsberg. See Ginsberg, supra, 390 U.S. at 646, 88 S.Ct. at 1284. In addition to the degree of scienter that the Constitution requires be shown to obtain a conviction for violating obscenity laws,[16] the Wichita ordinance, as Ginsberg did, makes it an excuse from liability if one makes an honest mistake as to a minor’s age.[17]
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[28] Second, we do not perceive any real danger of arbitrary enforcement. To violate the ordinance, one must display material which, taken as a whole, must fail the Miller test as applied to minors. This sufficiently constrains the discretion of the authorities. The ordinance adopts the correct standard for evaluating whether material is harmful to minors and we will not assume that the authorities will act in bad faith. [29] Third, we are not persuaded that the ordinance will lead citizens to forsake activity protected by the First Amendment. The ordinance is narrowly drawn within the confines of th Miller and Ginsberg standards. It provides fair warning of what is prohibited, and sufficiently constrains the discretion of the authorities. In such circumstances we do not believe it chills the exercise of First Amendment rights. [30] In sum, we are not persuaded to hold the Wichita ordinance invalid for vagueness.II [31] EQUAL PROTECTION
[32] The Wichita ordinance provides that it is an affirmative defense if the material or performance was “displayed, presented or disseminated to a minor at a recognized and established school, church, museum, medical clinic, hospital, public library, governmental agency, quasi-governmental agency and [if this was done] for a bona fide governmental, educational or scientific purpose.” Plaintiff News argues that the ordinance is violative of the Equal Protection Clause of the Fourteenth Amendment because only commercial establishments are subject to its sanctions.
(1973); see also Young v. American Mini Theatres, supra, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (upholding zoning ordinances applicable to adult theatres or similar establishments). Commercial
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enterprises have the economic incentive to make sales and are therefore more likely to press the display and dissemination of material harmful to minors. Hence, making a distinction between commercial and non-commercial enterprises is sufficiently grounded in a legitimate state interest.
[36] We conclude that the ordinance does not violate the Equal Protection Clause. III [37] PRIOR RESTRAINT
[38] Plaintiff argues that the ordinance creates an impermissible prior restraint. It contends that the threat of criminal prosecution, the substantial penalties available to a prosecutor, and the almost indefinable standards combine to create an unconstitutional prior restraint on the right to distribute their materials. Brief of Appellant at 34. We disagree.
(1963).[19] Such a conclusion is not justified here, however, because there is no such prior administrative determination, nor any significant risk that one may be prosecuted for engaging in protected conduct. We cannot say that on its face the Wichita ordinance has the infirmities of a prior restraint. The standard by which materials are to be judged is neither overbroad nor vague and there have been no threats of bad faith enforcement.
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[42] We conclude that the ordinance imposes no unlawful prior restraint. IV [43] TRIAL BY JURY
[44] News also contends that the ordinance is unconstitutional because it violates the Sixth Amendment right to trial by jury. More specifically, it argues that prosecutions under the ordinance take place before the Municipal Court for the City of Wichita where trial is to the Court,[20] and the trial occurs without any determination on obscenity by a jury, which is essential since contemporary community standards must be applied.
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[48] The Supreme Court has said that such a procedure affords an accused “the absolute right to have his guilt determined by a jury composed and operating in accordance with the Constitution.”Ludwig v. Massachusetts, supra, 427 U.S. at 625, 96 S.Ct. at 2785. Moreover, it provides him a clean slate. Colten v. Kentucky, 407 U.S. 104, 112-19, 92 S.Ct. 1953, 1958-61, 32 L.Ed.2d 584 (1972).[23] Hence we cannot agree that the decisions of the Supreme Court, considered together, call for a holding that this Kansas procedure for obscenity prosecutions is invalid. The Court’s decisions in Ludwig and Colten have upheld the two-tier systems and the earlier Callan decision is distinguishable, as we have explained. See note 23 supra. [49] We must now consider whether the reference to “the average person, applying contemporary community standards” in the First Amendment obscenity test, see Roth v. United States, 354 U.S. 476, 479, 77 S.Ct. 1304, 1305, 1 L.Ed.2d 1498 (1957), as well as the numerous references to the jury system which the Court has made while construing and defining this test, constitutionally mandate a jury trial in the first instance. News cites state court decisions holding that in obscenity cases an accused must have a jury trial at the first tier. See City of Kansas City v. Darby, 544 S.W.2d 529, 532 (Mo.Page 1295
1976) appeal dismissed, 431 U.S. 935, 97 S.Ct. 2644, 53 L.Ed.2d 252 (1977); cf. City of Duluth v. Sarette, 283 N.W.2d 533, 537-38 (Minn. 1979). The Darby case, which relied on the above-mentioned portions of Miller and Hamling,
capsulizes plaintiff’s point, stating that it held “in obscenity cases only, that a trial by jury is required in the first instance and that a trial by jury after appeal to circuit court `does not satisfy the requirements of the Constitution.'” (quoting Callan v. Wilson, 127 U.S. 540, 557, 8 S.Ct. 1301, 1307, 32 L.Ed. 223 (1888)). (emphasis in original).
(Ala.Cr.App. 1980); Holderfield v. City of Birmingham, 380 So.2d 990, 991-93 (Ala.Cr.App. 1979), cert. denied, 449 U.S. 888, 101 S.Ct. 245, 66 L.Ed.2d 114. [51] And even assuming that the jury system may be the desirable method for judging obscenity by community standards, the Kansas procedure is not unconstitutional in view of the right it provides for a de novo jury trial on appeal. Commonwealth v. Rich, 63 Pa. Commw. 30, 437 A.2d 516, 520-21 (1981); Manns v. Commonwealth, 213 Va. 322, 191 S.E.2d 810, (1972); Walker v. Dillard, 363 F. Supp. 921 (W.D.Va. 1973), rev’d on other grounds, 523 F.2d 3 (4th Cir.), cert. denied, 423 U.S. 906, 96 S.Ct. 208, 46 L.Ed.2d 136 (1975). In the de novo jury trial the accused has a clean slate. Colten v. Kentucky, supra, 407 U.S. at 119, 92 S.Ct. at 1961. Moreover the appeal stays “all further proceedings upon the judgment appealed from,” Kan.Stat.Ann. §12-4601 (1982).[24] [52] We find no violation of plaintiff News’s constitutional rights under the First or Sixth Amendments in the procedure laid out for prosecution of violations of the ordinance.
V
[53] In sum, we are not convinced that there is any substantive or procedural infirmity demonstrated in the Wichita ordinance. Accordingly the judgment is
Brief of Appellant at 3-4.
(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Miller, supra, 413 U.S. at 24, 93 S.Ct. at 2615 (citations omitted). The Wichita ordinance and the statute approved i Ginsberg both adapted the current obscenity test so it could be used to determine whether material is harmful to minors.
Plaintiff’s contention that the ordinance is inconsistent wit Ginsberg because it proscribes distribution and display of material that is not “suitable” for minors is without merit. The ordinance approved in Ginsberg and Wichita’s ordinance both use this term in the same context.
We similarly reject plaintiffs’ contention that the Wichita ordinance unconstitutionally expands the definition of obscenity to include “within its proscriptions . . . definitions which are also incongruous with the `patently offensive’ element o Miller and which encompass depictions of sexual conduct which are clearly legitimate and not `hard core.'” Brief of Appellant at 13. Although the ordinance does proscribe dissemination of some material protected as to adults, the proscription applies only to dissemination or display to juveniles, not adults. Plaintiff’s argument implicitly rejects the rule from Ginsberg
that it is constitutional to proscribe dissemination of generally protected materials to juveniles when such materials are harmful to them. Later cases recognize that the state has a legitimate interest in preventing juveniles from being exposed to sexually oriented materials even when they are not obscene as to adults See, e.g., New York v. Ferber, ___ U.S. ___, ___, 102 S.Ct. 3348, 3354, 73 L.Ed.2d 1113 (1982); FCC v. Pacifica Foundation, 438 U.S. 726, 748-50, 98 S.Ct. 3026, 3039-41, 57 L.Ed.2d 1073
(1978) (plurality); Miller v. California, supra, 413 U.S. at 19, 93 S.Ct. at 2612.
(N.D.Ga. 1981) (statute prohibiting display or sale to minors of material containing nude figures held overbroad because prohibition extends to material not obscene as to minors) Allied Artists Pictures Corp. v. Alford, 410 F. Supp. 1348 (W.D. Tenn. 1976) (ordinance overbroad because it prohibited exposing juveniles to films containing language that was not obscene as to juveniles); American Booksellers Ass’n, Inc. v. Superior Court, 129 Cal.App.3d 197, 181 Cal.Rptr. 33 (2d Dist. 1982) (ordinance overbroad because it required sealing material containing any photo whose primary purpose is sexual arousal regardless of whether obscene as to minors); Calderon v. City of Buffalo, 61 A.D.2d 323, 402 N.Y.S.2d 685 (1978) (ordinance overbroad because it prohibited sale and exhibition to juveniles of material that was not obscene as to juveniles); Oregon v. Frink, 60 Or. App. 209, 653 P.2d 553 (1982) (statute prohibiting dissemination of all nudity to minors overbroad because it does not limit prohibition to material that is obscene as to juveniles).
Nor are we faced with an ordinance whose standard for determining whether material is obscene either to minors or adults is vague. The Wichita Ordinance uses almost the identical language approved in Ginsberg with the exception of using th Miller test. When legislation designed to protect minors from sexually oriented matters has been found to be unconstitutionally vague, the standard for evaluating whether the material was obscene as to minors has generally been the source of the vagueness. See, e.g., Rabeck v. New York, 391 U.S. 462, 88 S.Ct. 1716, 20 L.Ed.2d 741 (1968) (per curiam); Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968); American Booksellers Ass’n v. McAuliffe, 533 F. Supp. 50 (N.D.Ga. 1981); Hillsboro News Co. v. City of Tampa, 451 F. Supp. 952 (M.D.Fla. 1978); Calderon v. City of Buffalo, 61 A.D.2d 323, 402 N.Y.S.2d 685 (1978). We are satisfied that the standard used in the Wichita ordinance is not afflicted with such vagueness.
n. 35, 96 S.Ct. at 2452-53 n. 35 (“The situation would be quite different if the ordinances had the effect of suppressing, or greatly restricting access to lawful speech.”).
(1982) (ordinance requiring any materials whose “primary purpose” was “sexual arousal” to be sealed was held overbroad because it restricted adults’ access to materials they had right to obtain) Dover News, Inc. v. City of Dover, 117 N.H. 1066, 381 A.2d 752
(1977) (per curiam) (In dicta, court approves of a regulation requiring material harmful to minors to be displayed no lower than sixty inches).
(1978).
Moreover, the Wichita ordinance makes it a defense to a prosecution if an honest mistake was made as to the age of the minor. This sufficiently protects commercial enterprises from whatever vagueness inheres in the definition of minor.
(5th Cir.), cert. dismissed, 447 U.S. 931, 100 S.Ct. 3031, 65 L.Ed.2d 1131 (1980) (where authorities embarked on program of arresting everyone who distributed certain publications and made this action public, causing retailers in county to cease selling publications, the conduct amounted to an informal system of prior restraint); Drive In Theatres, Inc. v. Huskey, 435 F.2d 228
(4th Cir. 1970) (County Sheriff announced he would prosecute anyone showing a movie rated “R” or “X” because he believed they were obscene); Bee See Books Inc. v. Leary, 291 F. Supp. 622
(S.D. N.Y. 1968) (Stationing police officers in bookstores indicated to patrons that material sold was illegal and this constituted advance censorship).
Trial. All trials in municipal court shall be to the municipal judge or the municipal judge pro tem.
Kan.Stat.Ann. § 12-4502 (1982).
We do not rely on any First Amendment aspect of this case in holding the five-person jury unconstitutional. Nevertheless, the nature of the substance of the misdemeanor charges against petitioner supports the refusal to distinguish between felonies and misdemeanors. The application of the community’s standards and common sense is important in obscenity trials where juries must define and apply local standards. See Miller v. California, 413 U.S. 15 [93 S.Ct. 2607, 37 L.Ed.2d 419] (1973). The opportunity for harassment and overreaching by an overzealous prosecutor or a biased judge is at least as significant in an obscenity trial as in one concerning an armed robbery. This fact does not change merely because the obscenity charge may be labeled a misdemeanor and the robbery a felony.
Id. at 241 n. 33, 98 S.Ct. at 1039 n. 33.
22-3610. Hearing on appeal. When a case is appealed to the district court, such court shall hear and determine the cause on the original complaint, unless the complaint shall be found defective, in which case the court may order a new complaint to be filed and the case shall proceed as if the original complaint had not been set aside. The case shall be tried de novo in the district court.
(emphasis added).
Section 12-4601, Kan.Stat.Ann. (1982), provides:
Appeal; stay of proceedings. An appeal may be taken to the district court in the county in which said municipal court is located:
(a) by the accused person in all cases; and
(b) By the city upon questions of law. The appeal shall stay all further proceedings upon the judgment appealed from.
(emphasis added).
Section 22-3609(5), Kan.Stat.Ann. (1981), provides
that in such appeals from municipal courts, trial by jury may be requested.
(emphasis added).
Furthermore, Ludwig also noted that to the extent tha Callan may have rested on a determination that the right to a second tier jury trial was unduly burdened by a requirement that an accused be “fully tried” without a jury at the first tier Callan was not controlling in a Massachusetts case lik Ludwig because the defendant was able to circumvent trial in the Massachusetts first tier by “admitting to sufficient findings of fact.” 427 U.S. at 630, 96 S.Ct. at 2788.
We believe that the instant Kansas case is distinguishable fro Callan, as was the Massachusetts case in Ludwig. The Kansas two-tier system also permits a defendant to avoid being “fully tried” at the first tier. In a Kansas municipal court a defendant can plead guilty or no contest, Kan.Stat.Ann. § 12-4406 (1982), and sentence must be imposed without unreasonable delay. Id. § 12-4507. The defendant then can appeal to the district court where he “has an absolute right to a trial de novo . . . .,”State v. Parker, 213 Kan. 229, 516 P.2d 153, 158 (1973), and the appeal stays “all further proceedings upon the judgment appealed from.” Kan.Stat.Ann. § 22-3609(1) (1981); see also Id.
§ 12-4601 (1982). The defendant is entitled to “a trial de novo. . . regardless of lack of error or the nature of his plea in the lower court.” State v. Parker, supra, 516 P.2d at 157
(emphasis added). “The defendant’s right to a new trial is unrestricted in that all he is required to do to obtain it is to appeal.” Id., 516 P.2d at 158.
We feel that both grounds used in Ludwig to distinguis Callan apply here and that the Kansas procedure is supported b Ludwig.
The ordinance is uniquely subject to repetitive violation, creating the threat of substantial penalties. Under the ordinance, “[e]ach day that any violation of [the ordinance] occurs or continues shall constitute a separate offense [, and] [e]very act, thing, or transaction prohibited by [the ordinance] shall constitute a separate offense as to each item, issue or title involved . . . .” In such circumstances, we are not inclined to rely on the “ill-defined, if not ambulatory” boundaries of the petty offense category. Duncan v. Louisiana, supra, 391 U.S. at 160, 88 S.Ct. at 1453. It is on the other grounds discussed that we uphold the ordinance.
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