Santa Ana Ordered to Pay Legal Fees in Mitchell Bros. Suit

The City of Santa Ana was ordered Wednesday to pay attorney fees in the oldest and largest of several lawsuits filed against the Mitchell Bros. adult movie theater. An attorney for the theater said the bill could be as high as $1 million.

“I think it’s probably the most significant ruling to date,” said theater attorney Tom Steele. “It means we’ve prevailed so far in the major piece of litigation.” He added that he hoped the cost would persuade city officials to stop trying to close the 17th Street theater.

He said the $1-million fee, which will be calculated exactly and submitted to the court “in a matter of weeks,” includes the cost of a long jury trial and three appellate court opinions.

City Rejected Fee Proposal

Last February, in a proposal negotiated by then-City Manager Robert C. Bobb and City Atty. Edward C. Cooper, Steele agreed not to seek attorney fees in the litigation if the city would drop its five lawsuits against his clients. Those suits allege that movies shown at the theater were obscene.

Under the proposal, the city would have agreed to file no similar lawsuits for the remainder of the theater’s five-year lease.

But the proposal was turned down by the City Council. Instead, the council voted to allocate $200,000 toward its legal fight against the theater and to hire Sun Valley attorney James Clancy, who specializes in anti-pornography litigation.

On Wednesday, Clancy said Steele’s estimate of his fees was “unbelievable” and said he believes the City Council will support an appeal of the decision. However, Clancy refused to speculate on what might be a more appropriate sum. “In my judgment, there aren’t going to be any attorney fees. The matter’s a natural for appeal,” he said.

City Council members, who would have to approve any appeal in the case, said they would have to consult with Clancy and Cooper before deciding what road to take. Councilman Robert Luxembourger wouldn’t reveal his stance but admitted that the potential cost is “frightening,” saying that whatever decision is made should “move toward the best interests of the taxpayers.”

Councilman John Acosta, a staunch proponent of the effort to get rid of the theater, which he called “a cancer” on the city, said he would like to see the fight continue but also wanted to get an update from Cooper and Clancy before deciding his vote. “I’m supportive of pursuing whatever is necessary. You can’t put a price on morality,” he said.

11 Films Judged Obscene

Wednesday’s ruling came in a case involving attempts to have the theater shut down as a public nuisance. Seventeen films were cited as being obscene in the city’s lawsuit. The court ruled that 11 of the films were obscene but said there was no evidence to show that the theater constituted a public nuisance.

The ruling by Superior Court Judge Robert J. Polis was only the latest round in a 10-year effort to shut down the adult theater. The lawsuit in which the ruling was issued Wednesday was one of four filed in the late 1970s and finally settled in the last two weeks.

On July 31, Superior Court Judge Claude M. Owens ruled that the city would have to pay attorney fees in one of the other cases because it had failed to prove that several movies were obscene. Because that case involved less in time and court costs, Steele said the bill would add up to “tens of thousands of dollars.” City officials said that more than $300,000 has been spent on attorneys and court costs to prosecute the case.

Owens decided that, because there was no clear winner in the other two lawsuits, neither side would have to pay the other’s attorney fees.

Since February, the city has stepped up its battle against the theater with a strategy under which Clancy has filed a new lawsuit each Wednesday, citing that week’s batch of films as being obscene. The stockpiled lawsuits will show, Clancy says, that the theater presents a public nuisance by its continued policy of displaying obscenity in “a public place.”

Illustrating the never-ending nature of the legal fracas, both sides were in the Santa Ana courthouse to debate motions in 14 of the new set of lawsuits only minutes after Judge Polis’ ruling in a Westminster courtroom. Superior Court Judge Harmon G. Scoville ruled on several issues before ordering the lawsuits to another courtroom, where a judge will have to view all 42 films in question.

Scoville ruled that the Mitchell Bros. would have to produce copies of the films for that judge, although a date hasn’t been set for the judicial screening. Who would be responsible for coming up with copies, which Clancy said could cost the city as much as $60,000 a week, has been a matter of much wrangling between the two sides.

Because the city had been unable to obtain a favorable ruling, retired police officer Robert McGuire has been paid to film the movies secretly with an 8-millimeter camera hidden in a brown towel, while recording the sound on a small tape recorder. He was discovered recently by theater personnel, and the theater has attempted to have him barred from filming the movies while the city has requested an order allowing him to continue.

Scoville’s ruling Wednesday made that issue academic: Because the theater must produce the films anyway, there will be no need for copies. However, Scoville said the city would have to pay the cost of producing the films while Clancy said outside the courtroom that he believes Mitchell Bros. should pay.

Steele’s motion to disqualify Clancy as the city’s attorney was also denied. Clancy has been paid a retainer by a Phoenix anti-pornography organization, Citizens for Decency Through Law, since 1965 and received $80,000 from the group last year, Steele said. He argued that the retainer means that Clancy cannot satisfy what Steele believes is a requirement of impartiality.

A request for a change of venue was also denied. Scoville had indicated at an earlier hearing that he intended to deny the motion because he believed that there are enough county residents who have never heard of the theater to form an objective jury.