## Facts

- Harold Freeman produced and directed pornographic films and paid adult performers to engage in sexual acts on camera.
- California arrested Freeman in 1983 and charged him with five counts of pandering based on hiring five performers; he was not charged under state obscenity laws.
- A jury convicted Freeman on all five pandering counts, and the California Court of Appeal affirmed.
- The California Supreme Court reversed, holding that paying adult performers as “acting fees” to perform on film did not constitute “pandering” because it did not amount to procuring a person “for the purpose of prostitution” under California law; it also discussed possible First Amendment concerns.
- California filed a petition for certiorari and separately applied to the Circuit Justice for a stay of the California Supreme Court’s judgment pending disposition of the certiorari petition.

## Issues

1. Whether enforcement of the California Supreme Court’s judgment reversing Freeman’s pandering convictions should be stayed pending the Supreme Court’s disposition of California’s certiorari petition.
2. Whether the presence of an adequate and independent state-law ground made it unlikely that four Justices would vote to grant certiorari, weighing against a stay.

## Decision

- Justice O’Connor, as Circuit Justice, denied California’s application for a stay.
- She concluded it was unlikely four Justices would vote to grant certiorari because the state judgment rested on an adequate and independent state-law ground.
- She reasoned that even if the Supreme Court disagreed with the state court’s First Amendment analysis, the result would remain the same on remand because the conviction would still be reversed on state statutory interpretation.

## Legal Principles

- A stay pending certiorari under 28 U.S.C. § 2101(f) requires, among other considerations, a sufficient likelihood that the Court will grant certiorari.
- When a state court judgment rests on an adequate and independent state-law ground, Supreme Court review is generally unavailable or ineffectual, reducing the likelihood of certiorari.
- A state court decision may present an adequate and independent state ground when its state-law analysis is sufficient to support the judgment and is not interwoven with federal-law analysis.

## Conclusion

The Circuit Justice denied a stay because the California Supreme Court’s reversal of Freeman’s convictions rested on independent state statutory grounds, making Supreme Court review unlikely and a stay unwarranted.


California v. Freeman, 488 U.S. 1311 (O'Connor, Circuit Justice 1989)