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18-7-103. Injunctions to restrain the promotion of obscene materials.

Statute text
(1) The district courts of this state and the judges thereof shall have full power, authority, and jurisdiction to enjoin the wholesale promotion, promotion, or display of obscene materials as specified in this section and to issue all necessary and proper restraining orders, injunctions, and writs and processes in connection therewith not inconsistent with this article.

(2) The district attorney of the county in which a person, firm, or corporation wholesale promotes, promotes, or displays, or is about to wholesale promote, promote, or display, or has in his, her, or its possession with intent to wholesale promote, promote, or display, or is about to acquire possession with intent to wholesale promote, promote, or display any obscene material may maintain an action for injunction against such person, firm, or corporation to prevent the wholesale promotion, promotion, or display or further wholesale promotion, promotion, or display of said material described or identified in said suit for injunction.

(3) This article shall not authorize the issuance of temporary restraining orders except where exigent circumstances require the same. In matters of exigent circumstances, the restraining order shall provide that the action must be commenced on the earliest possible date. No temporary restraining order may be issued to restrain the continued exhibitions of a motion picture being shown commercially before the public, notwithstanding the existence of exigent circumstances.

(4) No temporary restraining order or temporary injunction may be issued except after notice to the person, firm, or corporation sought to be enjoined and only after all parties have been offered or afforded an opportunity to be heard. A person, firm, or corporation shall be deemed to have been offered or afforded an opportunity to be heard if notice has been given and he, she, or it fails to appear. At such hearing, evidence shall be presented and witnesses examined.

(5) Before or after the commencement of the hearing on an application for a temporary injunction, the court may, and on motion of the party sought to be restrained shall, order the trial on the action on the merits to be advanced and consolidated with the hearing on the application. Where such hearings are not so consolidated, and a temporary injunction or restraining order is issued, the court shall hold a final hearing and a trial of the issues within one day after joinder of issue, and a decision shall be rendered within two days of the conclusion of the trial. If a final hearing is not held within one day after joinder of issue or a decision not rendered within two days of the conclusion of the trial, the injunction shall be dissolved. No temporary injunction or restraining order shall issue until after a showing of probable cause to believe that the material or display is obscene and a showing of probable success on the merits. Any such temporary injunction or restraining order shall provide that the defendant may not be punished for contempt if the material is found not to be obscene after joinder of issue, final hearing, and trial.

(6) Nothing contained in this article shall prevent the court from issuing a temporary restraining order forbidding the removing, destroying, deleting, splicing, or otherwise altering of any motion picture alleged to be obscene.

(7) Any person, firm, or corporation sought to be permanently enjoined shall be entitled to a full adversary trial of the issues within one day after the joinder of issue, and a decision shall be rendered by the court within two days of the conclusion of the trial. If the defendant in any suit for a permanent injunction filed under the terms of this article shall fail to answer or otherwise join issue within the time required to file his, her, or its answer, the court, on motion of the party applying for the injunction, shall enter a general denial for the defendant and set a date for hearing on the question raised in the suit for injunction within ten days following the entry of the general denial entered by the court. The court shall render its decision within two days after the conclusion of the hearing.

(8) In the event that a final order or judgment of injunction is entered against the person, firm, or corporation sought to be enjoined, such final order or judgment shall contain a provision directing the person, firm, or corporation to surrender to the sheriff of the county in which the action was brought any of the material described in subsection (2) of this section, and such sheriff shall be directed to seize and destroy the same six months after the entry of the said final order unless criminal proceedings or an indictment is brought before that time, in which event, said material may be used as evidence in such criminal proceeding.

(9) In any action brought as herein provided, the district attorney shall not be required to file any undertaking, bond, or security before the issuance of any injunction order provided for above, shall not be liable for costs, and shall not be liable for damages sustained by reason of the injunction order in cases where judgment is rendered in favor of the person, firm, or corporation sought to be enjoined.

(10) Every person, firm, or corporation who wholesale promotes, promotes, displays, or acquires possession with intent to wholesale promote, promote, or display any of the material described in subsection (2) of this section, after the service upon him of a summons and complaint in an action brought pursuant to this article, is chargeable with knowledge of the contents.

History
Source: L. 81: Entire part R&RE, p. 1000, § 1, effective July 1. L. 86: (1) to (5) amended, p. 783, § 3, effective April 21. L. 87: (8) and (10) amended, p. 1579, § 24, effective July 10.

Annotations
Editor's note: This section was contained in a part that was repealed and reenacted in 1981 and 1977. Provisions of this section, as it existed in 1981, are similar to those contained in 18-7-102 as said section existed in 1980, the year prior to the most recent repeal and reenactment of this part. Provisions of this section, as it existed in 1977, are similar to those contained in 18-7-103 as said section existed in 1976, the year prior to the first repeal and reenactment of this part.

Annotations
Am. Jur.2d. See 50 Am. Jur.2d, Lewdness, Indecency, and Obscenity, § 12, 15.

Law reviews. For article, "One Year Review of Criminal Law and Procedure", see 39 Dicta 81 (1962). For article, "Obscenity Law in Colorado: The Struggle to Pass a Constitutional Statute", see 60 Den. L.J. 49 (1982).

This section held constitutional. The procedures established by this statute are sufficient to satisfy due process. People v. Seven Thirty-five East Colfax, Inc., 697 P.2d 348 (Colo. 1985).

Requirement of adversary hearing. Where injunctive relief is sought which amounts to prior restraint, or where a search warrant is sought, there is required an adversary hearing, which may be on short notice, to determine whether the materials sought to be seized are in fact obscene. People ex rel. McKevitt v. Harvey, 176 Colo. 447, 491 P.2d 563 (1971) (decided under former § 40-9-19, C.R.S. 1963).

Obscenity provisions could not support injunction or criminal charge. The 1977 version of the Colorado obscenity statute could not be relied upon to support either a civil injunction or a criminal charge. People v. New Horizons, Inc., 200 Colo. 377, 616 P.2d 106 (1980) (decided under former § 18-7-102).