FINAL BILL REPORT

HB 1418

                                   C 70 L 89

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

Adding provisions on moral nuisances.

House Committe on Judiciary

Senate Committee on Law & Justice

SYNOPSIS AS ENACTED

BACKGROUND:

The Washington Legislature has made numerous attempts to regulate the distribution of obscene material.  The courts scrutinize such legislation carefully because of the concern that the legislation may violate the first amendment by impermissibly restricting protected speech.  A 1977 law that allowed the closing of businesses as "moral nuisances" was declared unconstitutional because it provided a means for closing a business before a court determined the business was distributing obscene material.  However, the law also provided that a plaintiff could obtain an ex parte restraining order preventing the business from removing or interfering with the contents of the place alleged to be a nuisance.  The court held that this provision allowing for a 10 day temporary restraining order was constitutionally permissible.

Due to other constitutional challenges, the entire 1977 law was held unconstitutional. In response, the Legislature created a civil action against moral nuisances which allows a court to impose a civil penalty for maintaining a moral nuisance.  The amount of the fine is linked to the profits from sales of the material. The plaintiff must use the civil rules governing discovery to determine those profits.  Reliance upon discovery rules can cause substantial delay.  Currently the plaintiff is unable to restrain the defendant from disposing of the alleged nuisance's contents pending trial.  Further, the plaintiff lacks the power to obtain, upon filing the complaint, an inventory of the nuisance and an accounting of the profits derived from the sales of obscene material.  The plaintiff also may be unable to obtain originals of the films or publications which may help the trier of fact at trial.

SUMMARY:

The moral nuisance statute that creates a civil action against an alleged moral nuisance is amended to provide for broader and more specific discovery procedures.  A plaintiff may move for a temporary injunction pending trial on the merits.  Pending the hearing on the injunction, the court may issue an ex parte restraining order that restrains the defendant from disposing of property in the alleged nuisance, requires the defendant to provide an inventory and accounting of the alleged nuisance and to preserve at least one original film or publication pending the hearing.  At the hearing on the injunction, the court may order the defendant to produce to the plaintiff, a limited number of originals of the requested discovery and may order the defendant not to interfere with any court ordered discovery.  The injunction may not limit stock in trade.

VOTES ON FINAL PASSAGE:

      House 93   0

      Senate    46     0

EFFECTIVE:July 23, 1989