In the Matter of the Complaint Against HOLLY WATKINS at Los Angeles, California P.O.D. Docket No. 1/32; 10/03/58 Ablard, Charles D.
A complaint in this proceeding was filed on July 30, 1958, charging the Respondent with depositing information in the mail as to where, how and from whom obscene, lewd, lascivious and indecent articles, matters, things, devices or substance might be obtained. The complaint sought the issuance of an order in accordance with 39 U.S. Code 259(a). At the time of the filing of the complaint, the Complainant also petitioned the Judicial Officer to hear the evidence in the case in accordance with Rule 201.17 of the Rules of Practice of the Post Office Department. An order was signed by the Judicial Officer on July 31, 1958, granting the petition of the Complainant. An answer was filed by the Respondent on August 13, denying the allegation in the complaint. A petition for an Interim Impounding Order authorized by 39 U.S. 259(b) was made by the Complainant on August 21, 1958, and that Order was signed the same day by the Acting Judicial Officer, Mr. William A. Sponsler. A hearing was held before the Judicial Officer in Los Angeles, California on August 26, 1958. On August 27, 1958, the court of the Southern District of California entered a temporary restraining order restraining the enforcement of the Interim Impounding Order by the Post Office Department. On September 4, 1958, the Complainant petitioned the Judicial Officer to vacate the Interim Impounding Order because of the affect of the temporary restraining order of the court. All mailings directed to the Respondent which were impounded pursuant to the administrative order had been released in accordance with the court order. The interim order was vacated on September 5th. The Complainant filed proposed findings of fact and conclusions of law on September 11, 1958, and the Respondent filed on September 15, 1958.
The Respondent has filed seven proposed findings of fact. Proposed findings one and two are accepted. Proposed findings three, four and five deal with the allegation of the complaint and other administrative and federal court proceedings upon which the Respondent relies. The Respondent requested and the Judicial Officer took official notice of twelve administrative proceedings which resulted in court decisions in which the orders of the Post Office Department were enjoined. Upon an examination of the files of these twelve cases, I conclude that the only similarity between the circulars in those cases and the circulars in question in this proceeding is that they all generally contain pictures of nude or semi-nude models with language ranging from suggestive to provocative. The Complainant in his proposed findings cites the case of Saunders v. Olesen, U.S. D.C., S.D. California Civil Action 1221-57-T, wherein the court cited U.S. v. Hornick, 29 F.2d 120 saying:
"the gist of a vendor's illegal action may be either the giving by mail of information where obscene matter may be obtained or the mailing of such matter itself."
I have taken official notice 1/ of the file in the administrative proceeding, E. & S. Photos, H.E. Docket 5/45, which resulted in the decision of the court in Saunders wherein the order of the Post Office Department was upheld. This decision was from the same district court where the cases cited by the Respondent were decided. That case also concerned an advertisement by the Respondent, which was innocuous in comparison to the circulars used either in the cases cited by the Respondent or in this proceeding. Thus I cannot conclude that there is an unanimity in the decisions of the Southern District of California and with no controlling decision by the Court of Appeals of the Ninth Circuit on this question in recent years, I do not feel bound by the decisions cited by the Respondent.
The Respondent also cites the decision of former Hearing Examiner, James C. Haynes, in Gem Products Company, H.E. Docket No. 4/145 wherein it was held that the decision of the District Court of the Southern District of California in Jeffries v. Olesen, 121 F.Supp. 463, was controlling on the administrative proceeding in Gem. This decision was affirmed by the General Counsel of the Post Office Department under the old Rules of Practice. The issues in Jeffries and Gem were substantially more identical than the issues in any of the proceedings cited by either Complainant or Respondent and the issues in this proceeding.
It is concluded that the charge in the complaint has been sustained by the evidence presented by the Complainant and that the circulars of the Respondent are sufficient to constitute a sufficient basis on which to issue an order in accordance with the statute. The essence of this offense has been stated by U.S. District Courts and affirmed by various Courts of Appeals. U.S. v. Hornick, 229 F.2nd 120, 122 (C.A. 3d); Klaw v. Schaffer, 151 F.Supp. 534, 540; Affirmed 251, F.2d 615 (C.A. 2d) and Glanzman v. Schaffer, 143 F.Supp. 243, 247; Affirmed 252 F.2d 333 (C.A. 2d).
Applying the test of reasonableness I conclude that the reasonable man applying contemporary community standards would conclude fro a reading of the circular which was distributed by the Respondent (Exhibit A) that obscene photos, slides and movies would be furnished to the purchaser. The pictures, sketches and descriptions in the circular speak for themselves without lengthy description or quotations. The advertisements for the strange undergarments which while standing alone might not justify the issuance of an order add color to the remainder of the circular.
The Respondent introduced a series of magazines and advertisements for brassieres and other undergarments which were accepted into evidence although at the time of admission the presiding officer doubted their relevance (Tr. 95). On reconsideration and after a review of the complaint in this proceeding, I can see no relevancy to these exhibits as related to the charge in this proceeding. If the charge alleged that the materials being furnished by the Respondent were in fact obscene then there might have been some relevancy to the materials introduced. However, this was not the charge and the materials had no bearing on the charge in the complaint. Proposed findings three, four and five are denied.
Proposed finding number six of the Respondent is in four parts and raises procedural matters which were raised at the time of the hearing. The first proposed finding is that the complaint is vague and does not comply with the Rules of Practice, Section 201.4. The complaint is sufficient to apprise the Respondent of the charge and allow for preparation of a defense. The second section of this proposed finding objects to the failure of the Complainant to furnish the Respondent with a Bill of Particulars. There is no provision in the Rules of Practice for Bills of Particulars and the request was properly denied. Bills of Particulars have little function in judicial proceedings and even less in administrative proceedings. They are an archaic form. 71 Harvard Law Review 1473.
The third section questions the failure of the Respondent to furnish answers to interrogatories filed by the Respondent. The same interrogatories, which concerned the Judicial Officer, were filed In the Matter of Complaint Against T. R. Productions, H.E. Docket No. 5/230 in which the same counsel appeared as in this case. Answers were furnished in that proceeding. The fourth section questions the Delegation of Authority by the Postmaster General to the Judicial Officer on April 26, 1958, 23 F.R. 2817. This delegation was authorized by the Reorganization Act of 1949 and is deemed to be proper within the definition of "agency" contained in the Administrative Procedure Act, 5 U.S.C. 1001(a). The sixth proposed finding of the Respondent is denied.
The seventh proposed finding raises constitutional questions not for the decision of administrative agencies. Engineers Public Service Corporation v. S.E.C., 138 F.2nd 936.
The proposed finding of fact of the complaint is adopted.
It is concluded that the Respondent is furnishing information through the mails which gives the leer that promises obscenity. U.S. v. Hornick, supra. An appropriate order in accordance with 39 U.S.C. 259(a) will be issued.
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