In a stunning victory for adults' sexual rights, a Kansas District Court judge on Sept. 7 dismissed a 10-count indictment charging violations of the state Obscene Devices Act against the Lion's Den adult store here.
"We filed extensive motions to dismiss, motions to suppress evidence on search and seizure grounds, and challenging the constitutionality of the statute as a basis for dismissal and other grounds," said J. Michael Murray, attorney for the Lion's Den store in Abilene. "All those motions were briefed, and the court held a hearing on Sept. 7. We argued those motions, and at the conclusion of the hearing, the judge granted our motion to dismiss, predicated on one of the attacks that we had mounted on the constitutionality of the statute, and so the prosecution has been dismissed."
The Lion's Den case had its beginnings more than a year ago, after a Dickinson County grand jury, which was empaneled through a petition circulated by religious censorship group Citizens For Strengthening Community Virtues, returned a 29-count indictment charging violations of the Obscene Devices Act.
"The citizens who were protesting the store, led by Philip Cosby, complained to the sheriff about the Lion's Den purportedly engaging in dissemination of obscene materials," Murray said. "So the sheriff went to the store with Mr. Cosby; he picked out materials that he felt were obscene, and then the county bought them for something over $1,000 as I recall, and later they got a search warrant and then seized some other materials a few months later. So there was a purchase and a seizure, and it was by those two methods that the evidence was acquired."
The original indictment was dismissed after a court found that there had been irregularities in the collection of signatures for the petition that empaneled the grand jury.
Shortly thereafter, the new county prosecutor, Keith Hoffman, filed an information, which is another method by which a criminal case can be commenced in Kansas without the need for a grand jury, charging 10 violations of the device act, and it was those charges that were dismissed on Sept. 7.
In his ruling, Kansas Senior Judge Robert Innes noted that the state Supreme Court had ruled in 1990, in the case of State v. Hughes, that state law forbids the legislature from declaring a device obscene solely on the basis that it relates to human sexuality, and the language used in the statute equates a nonprurient interest in sex with obscenity. A later change in the law retained the language rejected in the Hughes case, which led Judge Innes to rule against the statute once again.
"The claim by the defendant that most troubles me is the claim that the statute continues to have the language in it that was, in a sense, condemned by the court in Hughes," Innes said. "Be it substantive or procedural, my view is that [the statute] is unconstitutional."
"There were broader constitutional arguments that the judge could have accepted," Murray noted, "but he did agree with one of our constitutional arguments, which was sufficient to strike the statute down and dismiss the case. So that was really a great result, and a wonderful ruling by the court."
The case still is not completely over, since the state has a right to appeal, which time won't begin to run until Judge Robert Innes issues his final order in the case. At press time, that final order had not yet been issued.
"One of the things the court does, and it seems to be customary there," Murray explained, "is that he announces his opinion from the bench and then he orders the parties – in this case, the first draft to be prepared by the prosecutor, which is then submitted to me, to try to reduce to a written order what the judge said, and that process hasn't been completed. That has to be completed before the time for appeal begins to run."
