SENATE 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

Senate Committee on Law & Justice

Senate Hearing Date(s):March 22, 1989

Majority Report:  Do pass.

      Signed by Senators Pullen, Chairman; McCaslin, Vice Chairman; Hayner, Madsen, Newhouse, Thorsness.

Senate Staff:Dick Armstrong (786-7460)

                  March 22, 1989

AS REPORTED BY COMMITTEE ON LAW & JUSTICE,  MARCH 22, 1989

BACKGROUND:

The Legislature and citizen groups have made several efforts to regulate the distribution of obscene material.  Such legislation receives heightened scrutiny because of the concern that the legislation may impermissibly restrict protected speech.  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 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.

In 1982, the Legislature created a civil action against moral nuisances.  The plaintiff in a civil action may only be a prosecuting attorney.  Under the 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.  Also, no provisions exist allowing the prosecutor the opportunity to ascertain the complete inventory of the place, or to require the defendant to produce originals of the films or publications.

SUMMARY:

In a moral nuisance action under Chapter 7.48A RCW, the plaintiff may apply for a temporary injunction pending trial on the merits.  Prior to the hearing the court may issue an ex parte order restraining the defendant from disposing of the property in the alleged nuisance and allowing the plaintiff to obtain an inventory and accounting of the business.  In addition, the court may require the defendant 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 original material and order the defendant not to interfere with any court ordered discovery.  The language of the bill is fashioned after the most recent state court ruling on prior restraints, State v. J-R Distributors, 111 Wn.2d 764 (Dec. 1988).

Appropriation:    none

Revenue:    none

Fiscal Note:      none requested

Senate Committee - Testified: Representative Mike Padden, prime sponsor (pro)