Salt Lake City v. Piepenburg

571 P.2d 1299, 3 Media L. Rep. (BNA) 1211, 1977 Utah LEXIS 1281

• Court: Utah Supreme Court
• Decided: October 28, 1977
• Docket: 14688
• Status: Published

Opinions

ELLETT, Chief Justice:

The appellant operates a film theatre and was charged with and convicted of the crime of exhibiting an obscene motion picture. The charge was made under a city ordinance and conviction had in the City Court. An appeal was then taken to the Third District Court where, upon a trial de novo, the appellant was again convicted. He now appeals to the Supreme Court of Utah where he makes a number of assignments of error, only one of which is cognizable on appeal, to wit: the validity of the ordinance under which he was tried and convicted.

The ordinance defines “obscene performance” as follows:

Obscene performance means a play, motion picture, dance, show or other presentation, whether pictured, animated or live, performed before an audience and which in whole or in part depicts or reveals nudity, sexual conduct, sexual excitement or sado-masochistic abuse, or which includes obscenities or explicit verbal description or narrative accounts of sexual conduct.

The motion picture exhibited revealed an entirely naked man and woman in various acts of sodomy (fellatio, cunnilingus, buggery) and adultery — all shown with closeup camera photography.

A more sickening, disgusting, depraved showing cannot be imagined. However, certain justices of the Supreme Court of the -United States have said that before a matter can be held to be obscene, it must be “. . . when taken as a whole, lacks serious literary, artistic, political, or scientific value.”

Some state judges, acting the part of sycophants, echo that doctrine. It would appear that such an argument ought only' to be advanced by depraved, mentally defi-¹ cient, mind-warped queers. Judges who' seek to find technical excuses to permit such pictures to be shown under the pretense of finding some intrinsic value to it are reminiscent of a dog that returns to his vomit in search of some morsel in the filth which may have some redeeming value to his own taste. If those judges have not the good sense and decency to resign from their positions as judges, they should be removed either by impeachment or by the vote of the decent people of their constituency.

The ordinance involved in this case is clear and no one can be in doubt as to its meaning. It proscribes the showing of explicit sexual intercourse and nudity. It is not overly broad, nor does it run counter to any constitutional prohibition. The ordinance is valid.

The appellant was found guilty on two separate trials: first, in the City Court and second, in the District Court. He cannot raise in this Court any claimed errors at trial. The District Court was his court of last resort for all asserted errors, save for the constitutionality of the ordinance. The rulings of that court are final as to other claimed errors. Article VIII, Section 9 of our Constitution provides:

Appeals shall also lie from the final judgment of justices of the peace in civil and criminal cases to the District Courts on both questions of law and fact, with such limitations and restrictions as shall be provided by law; and the decision of the District Courts on such appeals shall be final, except in cases involving the validity or constitutionality of a statute.¹

The cases cited in footnote 1 below are to the effect that an appeal from a city court is the same as that from a justice of the peace court.

In searching for reasons to reverse the conviction of Mr. Piepenburg, the dissent attempts to find errors that the court of last resort found to be non-existent. If there is to be an appeal to a higher court for alleged errors in the trial of a misdemeanor case, it will have to go to the United States Supreme Court as the district court is, by our Constitution, the highest court in Utah to consider errors in such cases.

The dissent is rather long, but aside from being outside constitutional bounds, it is also not convincing in its reasoning. For instance, a great amount of space is devoted to the fact that the prosecuting attorneys, or some of them, inquired of neighbors and religious leaders as to whether the juror attended church. This is a smart move and a practice of all good lawyers. Each set of lawyers has some peremptory challenges for which they need give no reason. In trying to get a jury that will appreciate the claims to be made by a party to a lawsuit, the peremptory challenge should not be blindly taken. One can be sure that the defense attorney (if he was a good lawyer) would have made inquiry among the pimps, prostitutes, homosexuals, and other members of the pornographic community to see if any prospective jurors might be favorably inclined to protect one accused of showing pornographic films.

In this case, every man must choose which stance he wishes to take. As for me, I will enforce a valid ordinance and respect the judgment of the court of final authority as to all matters, save the invalidity of the ordinance.

The judgment of the district court, is therefore, affirmed and the case is remanded for the execution of the sentence heretofore imposed.

1 . See also State v. Robinson, 23 Utah 2d 78, 457 P.2d 969 (1969); Salt Lake City v. Peters, 22 Utah 2d 127, 449 P.2d 652 (1969); State v. Lyte, 75 Utah 283, 284 P. 1006 (1930); Logan City v. Blotter, 75 Utah 272, 284 P. 333 (1929); State v. Brown, 75 Utah 37, 282 P. 785 (1928); Salt Lake City v. Lee, 49 Utah 197, 161 P. 926 (1916); State v. Hoffman, 91 Utah 462, 64 P.2d 615 (1937); Bountiful v. Granato, 77 Utah 133, 292 P. 205 (1930); Salt Lake City v. Perkins, 122 Utah 43, 245 P.2d 1176 (1952).