City of Portland v. Jacobsky

496 A.2d 646, 12 Media L. Rep. (BNA) 1433, 1985 Me. LEXIS 803

• Court: Supreme Judicial Court of Maine
• Decided: August 6, 1985
• Status: Published

Opinions

NICHOLS, Justice.

This appeal, testing the constitutionality of the obscenity ordinance enacted in 1982 by the Plaintiff, City of Portland, arises out of 14 Rule 80H proceedings commenced in 1983 in District Court (Portland) to collect civil penalties for violations of this ordinance from the respective Defendants, who are operators of adult bookstores, so-called, and variety stores.

When the Plaintiff City appealed from the District Court’s determination that the enactment of this ordinance was flawed, the several Defendants cross-appealed, asserting that the ordinance was unconstitutional. At that point the 14 cases were consolidated. The Superior Court (Cumberland County) concluded that the ordinance, proposed by initiative, had been properly enacted by the City and was consistent with state statutes. The Court declared, however, that the ordinance was invalid because it infringed upon the freedom of expression guaranteed these Defendants by the Declaration of Rights of the Constitution of Maine. The Court further suggested that the ordinance may be so imper-missibly vague that it fails to satisfy the due process requirement of Maine’s Constitution.

The Plaintiff City appealed that judgment and the several Defendants cross-appeal.

We sustain the City of Portland’s appeal and we deny the cross-appeal.

At the threshold we have studied the Defendants’ arguments that the Plaintiff City was deficient in complying with the steps required of it in adopting this ordinance. As did the Superior Court upon its review, we conclude that the procedures followed by the City were not seriously flawed. The Defendants take nothing by these arguments.

We further conclude that appropriate procedures are available to the Plaintiff City for adjudicating violations of the ordinance. Rule 80H, M.D.C.Civ.R., authorizes the District Court to handle civil violations such as those alleged by the Plaintiff against the Defendants. The fines that may be imposed for violations of the Portland ordinance do not alone compel a finding that an action brought pursuant to the ordinance is criminal in nature so as to require procedural safeguards not provided in Rule 80H. See United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (1980). Nor is the thrust criminal because the ordinance requires proof of scienter. Upon considering the other factors employed by this Court in State v. Anton, 463 A.2d 703 (Me.1983) and by the United States Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963) to discern whether the ordinance is criminal in nature, we conclude that violations of this ordinance are civil in nature.

We move on, then, to the Defendants’ two-pronged constitutional challenge. They assert that this obscenity ordinance (a) is so overbroad that it infringes upon their constitutionally guaranteed freedom of expression and (b) is cast in language that is so vague that prosecution of them under the ordinance would result in a denial of their constitutionally protected right to due process.¹

Just as we avoid expressing opinions on constitutional questions when the issue before us on appeal may be otherwise resolved, a similar policy of judicial restraint impels us to forbear from ruling on federal constitutional questions when the provisions of our state constitution may settle the matter. State v. Larrivee, 479 A.2d 347, 349 (Me.1984); State v. Rowe, 480 A.2d 778, 781 (Me.1984); State v. Cadman, 476 A.2d 1148, 1150 (Me.1984). This primacy rule was correctly followed by the Superior Court.

In language unchanged since Maine achieved statehood the Declaration of Rights of our Constitution proclaims in pertinent part:

Every citizen may freely speak, write and publish his sentiments on any subject, being responsible for the abuse of this liberty.

Me. Const, art. I, § 4.² The impact of this provision on the publication of obscene materials has heretofore never been analyzed by this Court. On the other hand, the United States Supreme Court and other federal courts have had many occasions to determine the application of the First Amendment to such publications. We note the care tyith which the drafters of the Portland ordinance have followed the con junctive three-element test that the United States Supreme Court set forth in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973), to delineate the scope of obscene expression not protected by the constitutional safeguards of the First Amendment. By tracking the Miller definition of obscenity, the Portland ordinance passes muster under the federal constitution. Any difference in language between the Maine Constitution and the United States Constitution is, in the context of this case, insufficient to justify striking out on our own to develop a unique answer to the difficult definitional problem that has been long and often litigated under the First Amendment. We refuse to extend state constitutional protection to obscene expression that under the Miller test does not enjoy federal constitutional protection. Accordingly, we conclude that the Portland ordinance does not infringe upon the Defendants’ freedom of expression guaranteed by Article I, Section 4, of our Maine Constitution.

In Inhabitants of the Town of Kittery v. Campbell, 455 A.2d 30, 33 (Me.1983) we acknowledged that the definition set forth in Miller was a “significant factor” in our consideration of that challenge to an ordinance grounded in freedom of expression. That definition remains significant today.³ Indeed, the continued vitality of Miller v. California, supra, was evidenced recently when the United States Supreme Court upheld the constitutionality of a Washington statute drafted in terms of the conjunctive three-element test of Miller v. California. Brockett v. Spokane Arcades, — U.S. -, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985).

It is unnecessary for us to declare, and we intimate no opinion whatsoever, whether in every case that may arise this provision of Article I, Section 4, and its federal counterpart will be found coextensive. Because we conclude that the Portland obscenity ordinance does not proscribe expression which is protected by Article I, Section 4, or its federal analogue, no valid argument can be made that the ordinance is overbroad.⁴

An ordinance or a statute is over-broad when its language not only forbids conduct constitutionally subject to proscription but is so broad that it ensnares protected conduct as well. Wright v. Town of Huxley, 249 N.W.2d 672, 678 (Iowa 1977); United States v. Dellinger, 472 F.2d 340, 357-359 (7th Cir.1973).⁵

Nor do we agree with the suggestion of the Superior Court that the Portland obscenity ordinance may be void for vagueness.⁶ An ordinance or a statute may be void for vagueness when its language either forbids or requires the doing of an act in terms so vague that people of common intelligence must guess at its meaning. As we reiterated in Maine Real Estate Commission v. Kelby, 360 A.2d 528, 529 (Me.1976), due process requires that the law provide reasonable and intelligible standards to guide the future conduct of our people. We conclude that that infirmity is not found in the Portland obscenity ordinance. Indeed, it is difficult to see how an ordinance that so precisely follows the Miller definition of proscribable obscenity could be unconstitutionally vague.

In the context of this case we do not interpret the Maine Constitution to produce a result different from that which would be reached under the federal constitution.

On the issues raised herein our mandate must be:

Judgment vacated.

Remanded to the Superior Court to be remanded to the District Court for further proceedings consistent with the opinion herein.

McKUSICK, C.J., and VIOLETTE and WATHEN, JJ., concurring.

1 . The Defendants focus their attack upon the definition that is set forth in Section 1 of this ordinance:

"Obscene” means material or a performance that:

(A) the average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex;

(B) depicts or describes:

(i) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or

(ii) patently offensive representations or descriptions of masturbations, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a

device designed and marketed as useful primarily for stimulation of the human genital organs; and .,.

(C)taken as a whole, lacks serious literary, artistic, political or scientific value.

2 . The federal counterpart is found within the First Amendment to the United States Constitution:

Congress shall make no law ... abridging the freedom of speech, or of the press; .... Not only is the federal provision cast in language that restricts the legislative power, but this safeguard was not declared by the United States Supreme Court to be applicable to the states through the Fourteenth Amendment until a comparatively recent period. See, e.g., Fiske v. Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108 (1927). See generally L. Tribe, American Constitutional Law § 11-2 (1978).

3 . See generally Comment, An Empirical Inquiry into the Effects of Miller v. California on the Control of Obscenity, 52 N.Y.U.L.Rev. 810, 820-857 (1977).

4 . The suggestion invokes Article I, Section 6-A, of the Maine Constitution, and implicates as well the Due Process Clause of the federal constitution. For a seminal article on overbreadth see Bernard, Avoidance of Constitutional Issues in the United States Supreme Court: Liberties of the First Amendment, 50 Mich.L.Rev. 261, 271-86 (1951).

5 . See also Association of Community Organizations for Reform Now (ACORN) v. Municipality of Golden, 744 F.2d 739 (10th Cir.1984); Bangor Baptist Church v. State of Me. Dep't. of Educ. and Cult. Services, 549 F.Supp. 1208 (D.C.Me.1982); Note, The First Amendment Overbreadth 83 Harv.L.Rev. 844 (1970).

6 . On vagueness see Commonwealth v. Williams, 395 Mass. 302, 479 N.E.2d 687 (1985); see also Note, The Lawson Decision: A Broadening of the Vagueness Doctrine, 13 Stetson L.Rev. 412, 422-430 (1984).