Council Fears Image Damage : A Long, Costly ‘Porn War’: Why Santa Ana Fights On

There was no warning. One day the theater marquee read “The Apple Dumpling Gang” and “Swiss Family Robinson,” the next day, “Sodom and Gomorrah.”

The nice, new United Artists theater at Honer Plaza in north Santa Ana--the part of town containing the city’s well-to-do and middle-class neighborhoods--overnight became the Mitchell Brothers Theatre, specializing in hard-core erotic films.

The neighbors reacted just as suddenly. They stormed the City Council chambers and demanded immediate action from surprised council members. Their appearance in 1975 set off what former Santa Ana Councilman Gordon Bricken has called “a chain of inevitable events.” Responding to the wrath of the neighbors, the council launched a legal attack to close down the theater.

And now, Bricken said, the council can never retreat without being accused of standing “for” pornography.

The result: 11 years of costly litigation that continues with no indication of when it will end. Virtually every week the city files a new lawsuit against the theater--filings that have become so routine that the theater’s lawyer does not appear in court to oppose them. He lodges his objections by telephone.

The city, which has filed close to 40 lawsuits against the theater, has paid more than $300,000 in legal costs and is piling up additional legal expenses at an estimated rate of at least $100,000 a year. To add to the city’s potential costs, two Superior Court judges have ordered the city to pay some of the theater’s legal expenses, estimated by theater attorneys to be more than $1 million in one suit alone.

During the 11 years, some of the movies have been banned from the theater as obscene, but no court--from the Superior Court in Santa Ana to the Supreme Court in Washington--has been willing to order the theater closed. The city attorney has advised that the case cannot be won under present case law.

And the theater remains open, still is showing X-rated films and, according to both city and theater sources, is grossing a little under $1 million a year.

Yet there are compelling political reasons for the City Council to keep up the attack on the theater, regardless of cost. They were demonstrated last February when, in closed session, all but one council member expressed willingness to end the litigation with an out-of-court settlement. That same night in public session, however, the council unanimously voted $200,000 to intensify the attack.

How could this happen?

“It’s just a predicament for us, and the less said, the better,” said Councilman Wilson B. Hart during an interview.

As brief as he was, Hart said more than most other council members would. Mayor Dan Griset, a candidate for state Assembly, sent word through an aide that he wouldn’t be commenting at all. Councilwoman Patricia A. McGuigan said she doesn’t even discuss it with her husband. Other council members simply didn’t return calls.

The city’s dilemma was politically unavoidable, said Bricken, a City Council member from 1974 to 1984 who did, and still does, favor the litigation. The die was cast the moment the outraged neighbors first appeared before the council, he said.

“In my view--and I’ve felt this from the outset--it was a chain of inevitable events: That as long as the public appears at all, at any time, to express public outrage on this subject, it will go on and on, like a perpetual motion machine. And that’s in fact what’s happened. . . . Because regardless of what the court might be doing or what anybody else’s view is on the subject, it is simply unpopular to be on the side of pornography.”

But the City Council contributed its share to the predicament, Bricken said, by making a naive, fundamental miscalculation.

“Not in the wildest scenario did anyone ever imagine a group of porno movie makers would have the ability to stay in this 10 years. Not two years. . . . We (council members) had this discussion. The idea of getting into it was the theory that the big guy on the block could just knock ‘em out,” Bricken said.

“The perception was that these movies are made by two guys who are milkmen in their regular life, and they do this to make a few bucks,” Bricken said. In reality, the council discovered, “the Mitchell brothers are a savvy group of guys,” Bricken said.

The Mitchell brothers, Jim and Artie, are headquartered in San Francisco. They not only operate theaters but produce many of the films shown in them. Many of the X-rated videotapes available today are Mitchell Brothers productions. In Santa Ana, their theater manager said, 150,000 customers buy tickets each year.

“We’ve been in this business 18 years, and we’ve had over 500 (court) cases--copyright, obscenity, pornography. It’s a cost of business,” Jim Mitchell said.

“This is a hell of a big case. We’re going to go all the way with them,” he added. “We expect to win. We will do whatever it takes.”

Same Position

The Santa Ana City Council, faced with a difficult but not unusual political situation, took much the same public position in 1975, Bricken recalled.

United Artists had built a large, single-screen theater at the outskirts of Honer Plaza just as the industry was changing to small, multiscreen theaters in the heart of shopping centers.

Faced with a long-term lease and low revenues, United Artists sublet the theater to Mitchell Brothers. Under the terms of United Artists’ master lease, zoning and use permits, it needed permission from no one to lease the theater to Mitchell Brothers.

The brothers were trying to upgrade the image--and therefore broaden the audience--of X-rated films by using more polished movie production techniques and exhibiting the films in large, well-kept theaters. They were rapidly expanding their small string of theaters for the opening of their $500,000 production, “Sodom and Gommorah,” an epic by X-rated movie standards.

“So one day someone drives to the Ralphs grocery store or the Montgomery Ward’s,” Bricken said. “All of a sudden here’s this marquee, you know, giving you these titles--’Mary Lou Has a Good Time.’ And some of the housewives had never even imagined that such things even were on film, much less on a marquee.”

‘Sleazy Little Theaters’

They were outraged, Bricken said, but there was more:

“The vision of these films was (that) they appeared in sleazy little theaters or in artsy-craftsy places in Hollywood, generally in neighborhoods that were run-down. . . . And so when they saw the theater, the reaction was: ‘Oh, my God, it’s coming to our neighborhood! Not only the theater, but they are coming to our neighborhood. And our whole way of life is threatened by this theater.’ ”

Bricken’s appraisal was echoed somewhat by the pastor of First Christian Church, across the street from the theater. The Rev. Norman Conner, credited by many as the original organizer of the protest, said years later that it had been a matter of location. The city already had an X-rated theater, The Guild, but it was in a run-down downtown area, viewed as the proper environment for such a theater.

“My position is that if someone wants to spend their money to see this trash, that’s their right and privilege . . .,” Conner said. “If it was down on Harbor Boulevard, I probably would never have gotten involved.”

But it wasn’t, so he did, and a group of angry parishioners and neighbors appeared without warning before the City Council late in 1975.

Moral Issues

For years, then-Mayor Lorin Griset, father of the present mayor, had been successfully urging his fellow council members to become more indignant about moral issues in the city, particularly the adult bookstores and topless bars along Harbor Boulevard. “It had a lot to do with sensitizing us” to such issues, Bricken said.

So, he said, when presented with angry citizens protesting an X-rated theater, the council did what it usually does under such circumstances, Bricken said. “You send off your troops to see if you can run (the theater) out of town. And that was the beginning of it.”

The city attorney, Keith Gow, was sent off to investigate, and he returned, Bricken said, to say that instead of a gold mine, “it’s a mine field, that the city really has no authority through its own police powers to do anything about it. The only way that it can attack the situation is through the question of obscenity.”

At the council’s request, Gow pursued the obscenity question and returned to the council with James J. Clancy.

As a political activist, Clancy had helped form national anti-pornography groups campaigning for stronger laws and enforcement. As an attorney subsidized by Citizens for Decency Through Law (now headquartered in Scottsdale, Ariz.), Clancy had been offering legal advice and representation to cities wanting to close down or zone away adult bookstores and theaters.

He had the reputation of a relentless, no-compromise trial attorney fueled by a religious certainty of his cause. He had no other practice.

His supporters in Santa Ana have called him “very committed.” His detractors describe him as “obsessed.”

Areas Not Explored

“He gave us a presentation in executive session,” Bricken said. “He laid it out, I thought, fairly candidly. He felt there were areas of the law that had not been explored. He felt it would be possible to form the law to favor the kind of things we wanted to do.

“He’s always conveyed a very firm position that we will win in the long run and that the whole question here is how long it’s going to take us to do it.”

Clancy said it would require five years to take the issue to the U.S. Supreme Court and it might take several trips there to get the job done, Bricken recalled. “And the council basically said, ‘Go get ‘em.’

“Frankly, some people expected that we’d go out there, slap the thing on the door and they’re gone. Scare them away. And some people felt that the staying power of the city would drive these guys out of business. Some people didn’t expect it to last five years, even though Clancy may have told them that.”

In October, 1976, the City Council adopted an ordinance drafted by Clancy that declared a theater specializing in “lewd” films to be a “public nuisance.”

City councils traditionally have had the power to order removal of dangerous nuisances, such as dilapidated buildings, unfenced pits and noxious dumps. In effect, the new ordinance declared lewd movie theaters to be morally dangerous and therefore also a public nuisance.

Review the Films

Under its provisions, the City Council would review the films, declare them to be lewd, declare that the theater, therefore, is a public nuisance and vote to revoke the theater’s business license.

The ordinance required, however, that the council’s declarations be confirmed in court. If the judge agreed the films were obscene--and agreed that the ordinance was constitutional--he or she would ban the movies, confirm the license revocation and order the theater to pay damages to the city. Money won this way would permit the city to continue the fight virtually cost-free and indefinitely, according to Clancy’s strategy.

Almost immediately, Clancy filed the first of the “public nuisance” lawsuits, and what followed has been described by both sides as legal guerrilla warfare. At times, the maneuvering took weird turns.

The Mitchell brothers at first voluntarily provided the disputed films and showed them to the court inside their theater. On two occasions, Clancy rented space in the Independence Hall replica at Knott’s Berry Farm in Buena Park to screen the films for judges.

But fearing that Mitchell Brothers would resist providing films--a fear that came true--Clancy hired a longtime colleague, former Los Angeles Police Department vice officer Robert McGuire, to attend every movie shown at the theater and record it for evidence. Typically, the theater was showing a different, three-movie bill each week.

$30-an-Hour Assignment

McGuire performed his $30-an-hour assignment for 11 years before being unmasked by theater employees.

He bought a ticket and sat directly in front of the screen. He wrapped an 8-millimeter movie camera in a brown towel and aimed it at the screen, taking one frame each three seconds. He also used a small audio tape recorder and took notes as well.

The result of each week’s work was a large artist’s portfolio filled with what Clancy termed “time-motion studies”: page after page containing strips of small photographs, a depiction of what was showing on the screen at three-second intervals. Also included in some portfolios are commercial videotape versions of the movies in question.

These portfolios have stacked up in two courtrooms and in storage rooms at City Hall. Clancy still brings one each week to court, where he files another lawsuit asking that the court temporarily enjoin that week’s bill of movies and set the matter for trial.

The weekly suits became such a ritual that Superior Court Commissioner Jane D. Myers set up ground rules to expedite them.

Routine Hearings

The hearing held Sept. 15 was typical. Only Myers and Clancy were before the bar in Department 22 of Superior Court. Attorney Stuart Buckley, representing the theater, was in his San Francisco office, waiting beside his telephone.

Myers: “Mr. Clancy?”

Clancy: “Good afternoon.”

Myers: “You have anything new for me today?”

Clancy: “No, it’s the same thing.”

He briefly summarized. She asked whether all was exactly as in previous suits. “Yes,” Clancy said, “except for the films.”

The weekly call was placed to Buckley, who telephonically opposed Clancy’s petition.

“Very well,” Myers said, “then the request will be denied.”

The entire hearing took 4 minutes and 33 seconds--about average, Myers said later.

A few of the close to 40 lawsuits Clancy has filed have resulted in judges and juries declaring specific films to be obscene. Appellate justices have upheld one of those decisions.

But no trial judge has upheld the city’s “public nuisance” ordinance. One said it appears to violate the U.S. Supreme Court’s doctrine of “prior restraint”--that is, it attempts to stifle future expression on the suspicion that it will be obscene.

“I have a disagreement with CDL (Citizens for Decency Through Law), because I’m the only one who really believes in the ‘public nuisance’ concept . . .,” Clancy said. “I’m saying that the question has not been answered yet (by the U.S. Supreme Court), but it’s about to be.

“I’m talking about a case where you’re laying the foundation for a result that has got to come about. You go up there and take a look. There’s 96 films, and every one of them is clear, unadulterated hard-core pornography.”

City sources say Clancy has on several occasions stated his strategy: to continue the pressure on the theater, continue to appeal and wait for the U.S. Supreme Court to become more conservative and therefore sympathetic.

During the history of the litigation, council members have come and gone, but they all have debated privately whether to throw in the towel, Bricken said.

Private Debates

“There would always be these milestones when you had to fund it again, and you would have the same discussion: Do we quit? Do we go ahead?

“The secret pact behind the scenes is, we all got to stand one way or another, because nobody can afford to stand (on) either side by themselves. So if one guy on this deal says, ‘I don’t care what those guys are doing. I’m fighting for God and country and motherhood and all the things that are right in our country,’ do you believe any of the rest of them are going to say they’re for pornography?”

That is what happened during a closed council session on the proposed settlement negotiated by the city attorney last February, according to former Santa Ana City Manager Robert C. Bobb. Bobb, now city manager of Richmond, Va., in essence, corroborated the account given by Councilman John Acosta, the lone holdout.

“I had no idea it was going to be so easy at the time,” Acosta recently recalled.

“I sat there and listened to the whole spiel. They crucified Clancy: ‘He’s no good, he’s worthless,’ blah, blah, blah.

“There was no official vote taken. It was assumed: We were going out there and accept the settlement offer, dump Clancy and dump the case.

“So we all stand up from the table to walk out, and I said, ‘Well, I’m glad the majority of you guys feel that way. I, for one, don’t feel that way. I’m not going to support the issue. I’m going to oppose it (the settlement).’

“And boy, you could smell rubber burning when I said that. They all skidded to a stop five feet short of the door. They said, ‘We’re not going to go out there and have you paint us as supporters of pornography.’ ”

Supporters of Pornography

Acosta said he would have done so, too.

” . . . I’d have said, ‘We just happen to have a majority of the council that favors pornography in this community. Now, I don’t know how the people of the community feel about pornography, but I have a feeling that they don’t like it.’ ”

Acosta likes to judge beauty contests and as part of one was pictured off to the side in a Oui magazine article titled “Oui’s Orange County Girlie Search . . . the biggest flesh hunt in Southern California history.” The presence of an X-rated theater in north Santa Ana “doesn’t really matter to me personally,” Acosta said.

But, he added, north Santa Ana is where he lives, and 40% of Santa Ana votes during the June primary election came from that area.

“Now when you say 40%, do you see why John Acosta is where he’s at?” Acosta said. “I evaluate the vote results carefully.” He has his eye on Roger Stanton’s seat on the county Board of Supervisors, Acosta said.

November Election

Three council incumbents--P. Lee Johnson, Robert W. Luxembourger and Dan Young--are seeking reelection in November, and even though each comes from one of seven City Council wards, voters citywide cast votes for all council seats.

That could change. An initiative on the same ballot would provide election of council members strictly by ward. Acosta says he thinks it will pass, making his reelection a matter strictly for north Santa Ana voters--the ones who seem to hate the Mitchell Brothers Theatre.

“I will be sticking by my guns. If the election-by-ward plan gets voted in, I’m going to be very happy. I’m going to be happy either way. I’m happy because I’ve done a good job of representing Ward 3,” Acosta said.

In the end, the issue may be settled without a court.

The United Artists’ lease on the theater property extends 15 or 20 years, the shopping center owner says, but Mitchell Brothers’ sublease expires in June, 1990.

Arnold Childhouse, a senior vice president of United Artists Communications Inc., said no one can say whether Mitchell Brothers’ sublease will be renewed. United Artists is being bought out, new management is due and no one knows the new managers’ intentions, Childhouse said.

The city in the past considered including Honer Plaza and its theater within the city’s redevelopment project boundaries, but the former owner of the center was categorically opposed, Bricken said.

Redevelopment Possible

For the past two years, however, the center has been under new ownership--Interstate Consolidated Industries of Carson--and a spokesman for that firm said it is amendable to redevelopment. “It needs to be remodeled anyway,” the spokesman said.

Patti Nunn of the city’s redevelopment agency said the possibility is being explored. (The only other X-rated theater in the city, The Guild, was moved out by redevelopment.)

Once dislodged from its present theater building, Mitchell Brothers would be subject to the city’s zoning ordinances if it wanted to relocate in Santa Ana. The U.S. Supreme Court has ruled that cities legitimately may control where such theaters are located within their boundaries.

But if the issue must be settled in court, there may be no end in sight, Bricken said.

For one thing, even futile litigation can be justified as preventing proliferation of X-rated theaters in the city. “You can say there was only one in 1975 and there’s still only one in Santa Ana. It’s kind of a holding action.”

And you can justify it as “a statement of public principle, of what you think is right for the community. And you don’t get many opportunities in this arena of public morality to fight the good battle, the good cause.”

Stay on Righteous Side

But most of all, Bricken said, you stay on the righteous side of the issue, regardless of the cost. “Nobody is going to give up this issue until they’re forced to give up this issue, no matter what they say. . . .

“I would hope that certain council members take the position that we should abandon this lawsuit, because we’re going to beat them over the head two years from now,” Bricken said.