HOUSE BILL REPORT

EHB 1418

BYRepresentatives Padden, Moyer, Fuhrman, Wolfe, Day, Crane, Smith, Chandler, Ballard and Tate

Adding provisions on moral nuisances.

House Committe on Judiciary

Majority Report:  Do pass with amendments.  (18)

      Signed by Representatives Appelwick, Chair; Crane, Vice Chair; Padden, Ranking Republican Member; Belcher, Brough, Dellwo, Inslee, P. King, Locke, R. Meyers, Moyer, H. Myers, Patrick, Schmidt, Scott, Tate, Van Luven and Wineberry.

House Staff:Pat Shelledy (786-7141)

AS PASSED HOUSE FEBRUARY 27, 1989

BACKGROUND:

The legislature and community have made numerous attempts to regulate the distribution of obscene material.  Such legislation receives heightened scrutiny because of the concern that the legislation may impermissibly restrict protected speech as well as obscene speech. Several constitutional challenges to such legislation have been successful.  In 1977, Initiative 335 was approved and enacted into law.  That law created an action in abatement to abate a moral nuisance.  After the plaintiff filed an action to abate the nuisance, the plaintiff could petition the court for a temporary injunction. A hearing on the injunction was to be set within 10 days. Pending the hearing on the injunction, the plaintiff could obtain an ex parte restraining order restraining the defendant from removing or interfering with the contents of the place alleged to be a nuisance.  If the court was satisfied that the place was a moral nuisance, the court could order a temporary injunction restraining the defendant from continuing the nuisance pending trial on the merits. The federal court held that the injunction was an impermissible prior restraint.  However, the court held that the provisions allowing for a temporary restraining order were constitutionally permissible.

Due to other constitutional challenges, the entire law on abatement was held unconstitutional. In response, the legislature created a civil action against moral nuisances. The plaintiff in a civil action may only be a prosecuting attorney. Under current law, the plaintiff must rely on the civil rules governing discovery to obtain discovery from the defendant.  No provision exists to enable the prosecutor to restrain the defendant from disposing of the contents of the place.  Further, no provision exists allowing the prosecutor the opportunity to ascertain the complete inventory of the place, and an accounting of the profits derived from the sales of obscene material.  The civil damages are linked to the profits. Further, no provision exists to require the defendant to produce originals of the films or publications.

SUMMARY:

This bill would enable the plaintiff to move for a temporary injunction pending trial on the merits.  Pending the hearing the court could issue an ex parte restraining order restraining the defendant from disposing of the property in the alleged nuisance, allowing the plaintiff to obtain an inventory and accounting of the business, and may require the defendant to preserve at least one original film or publication pending the hearing.  At the hearing on the injunction, the court could order the defendant to produce to the plaintiff, a limited number of originals of requested discovery and order the defendant not to interfere with any court ordered discovery.  The injunction could not limit stock in trade.  The language of the bill is fashioned after the most recent court ruling on prior restraints, State v. J-R Distributors, 111 Wn.2d 764 (Dec. 1988).

Fiscal Note:      Not Requested.

House Committee ‑ Testified For:    Mike Redman, WAPA.

House Committee - Testified Against:      None Presented.

House Committee - Testimony For:    This bill would improve the discovery process in cases involving alleged moral nuisances.

House Committee - Testimony Against:      None Presented.