People Ex Rel. Busch v. Projection Room Theater

TOBRINER, J., Dissenting.

The majority today empowers city attorneys to bring actions to abate the sale or display of purportedly obscene material as a public nuisance, even when such sale or display occurs wholly within the confines of an adult bookstore or theatre and thus in no way afflicts those members of the community who would find it offensive. By permitting a city attorney who objects to certain material to wield this remedy—a remedy designed for those rare cases where any delay would concretely imperil the public interest—the majority endangers freedom of expression to an extent never before contemplated in this state. Hereafter, the public’s right to read books or magazines, to view plays or motion pictures, can be permanently curtailed if a city attorney can find a single judge who believes the material is obscene. In light of the vagueness of the prevailing constitutional obscenity standard, and the subjective nature of the judgment that the application of that standard inevitably entails, the majority’s sanction of censorship by a single judicial officer robs our free speech guarantees of their constitutionally mandated protection.

As we shall point out, however, this case may be resolved on grounds other than that the Legislature exceeded constitutional bounds when it enacted the public nuisance laws; those laws simply do not confer upon the city attorney the power that the majority today bestows upon him. As drafted by the Legislature, the public nuisance laws provide an extraordinary remedy for situations that truly demand one; it is only as rewritten by the majority that these laws trench upon constitutional rights.

Courts of equity enjoy no roving commission to define public nuisances; they may abate only such nuisances as the Legislature declares. In People v. Lim (1941) 18 Cal.2d 872, 881 [ 118 P.2d 472 ], we acknowledged that “the responsibility for establishing those standards of *64 public morality, the violations of which are to constitute public nuisances within the equity’s jurisdiction, should be left with the Legislature.” 1 Our charge, consequently, is a limited one: we must ascertain whether the Legislature has declared that the conduct complained of in the present case constitutes a public nuisance.

It has not. The public nuisance statutes do not embrace conduct whose tangible effects are limited to a small group of consenting adults. A careful reading of the statutes discloses that they govern only public nuisances—that is, only those nuisances that bear concretely upon the health or senses of a substantial number of people. The statutory language supports this conclusion in two ways.

First, only such indecent behavior as assaults the senses of the community constitutes a public nuisance. The majority bases its contrary conclusion on section 370 of the Penal Code which defines a public nuisance to be anything “which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property....” The majority argues that this language recognizes four classes of conduct that may constitute a public nuisance: conduct that is (a) injurious to health; (b) indecent; (c) offensive to the senses; or (d) an obstruction to property. Since indecency is a ground for finding a public nuisance quite apart from offense to the senses, the argument goes, the statute subsumes even private indecency which has no impact upon the senses of the community as a whole.

The majority’s error is fundamental: it construes the wrong statute. Although sections 370-372 of the Penal Code govern the criminal dimension of public nuisances, section 731 of the Code of Civil Procedure governs their abatement. That section provides that “[a] civil *65 action may be brought ... to abate a public nuisance, as the same is defined in section thirty-four hundred and eighty of the Civil Code . . . .” (Italics added.) Although the majority alludes to the “substantial identity” of the Penal Code and Civil Code definitions, I find them different in one pivotal respect.

Since section 3480 of the Civil Code merely provides that “a public nuisance is one which affects at the same time . . . any considerable number of persons,” we must refer to the definition of nuisance set forth in the preceding section. Section 3479 of the Civil Code defines a nuisance to be anything “which is injurious to health, or is indecent or offensive to the senses, or an obstruction of the free use of property ....” (Italics added.) The difference between this definition and that contained in the Penal Code is subtle, but crucial. The phrase “to the senses” in section 370 of the Penal Code modifies only the word “offensive”; here, it modifies both indecent and offensive. According to the Civil Code, therefore, indecent conduct is a public nuisance only when it is “indecent ... to the senses” of a substantial number of people. Consequently, a court may not abate a public nuisance unless it assaults the senses, not merely the sensibilities or tastes, of the community, 2

That the private sale or display of obscene material may not be abated as a public nuisance is thus manifest. Such materials do not impact “at the same time” on the senses of a “considerable number of people.” (Civ. Code, § 3480.) The result would be different if the purportedly obscene *66 materials were flaunted on a public billboard. In that event, the indecent behavior or object would simultaneously affect the senses of a large group. But where the purportedly indecent behavior occurs in private, the mere fact that even a large portion of the public disapproves of it fails to bring it within the purview of the public nuisance abatement statute. 3

The public nuisance statutes do not comprehend the private sale or display of obscenity for yet a second reason. The requirement that a public nuisance “interfere with the comfortable enjoyment of life or property” (Civ. Code, § 3479; Pen. Code, § 370) effectively excludes private behavior from the purview of the public nuisance statutes. In the present case, for example, the purportedly obscene exhibitions themselves in no way interfere with the comfortable enjoyment of life of those who do not enter the adult book stores or theatres; the materials do not obtrude upon those who never see them. Consequently, the necessity that the nuisance interfere with the comfortable enjoyment of life infuses both the Penal and Civil Codes with the requirement of public behavior that the phrase “indecent... to the senses” independently imports to the latter.

It might be argued that although the obscene materials themselves do not affect the lives of those who do not view them, the knowledge that there are stores or theatres that sell or display such materials does interfere with the comfortable enjoyment of life of a considerable number of people. So attenuated a discomfort, however, is far too meager to command the protection of the public nuisance statutes. There is no hint in the statutes or the cases construing them that conduct can constitute a public nuisance simply because some people stand philosophically opposed to it; the courts have demanded that conduct impinge more concretely upon a substantial number of people before branding it a public nuisance.

In People v. Robin (1943) 56 Cal.App.2d 885, 889 [ 133 P.2d 436 ], the court held that “the unlawful sale of liquor, of itself, . . . does not constitute a nuisance within the terms of section 3479, Civil Code . . . .” *67 Since violating the laws regulating the sale of liquor is presumably as indecent as violating the laws regulating the sale of obscene material, the court implicitly ruled that the mere fact that certain behavior runs afoul of society’s preferences—even as articulated in its criminal laws—constitutes an inadequate basis for holding it a public nuisance.

In People v. Seccombe (1930) 103 Cal.App. 306 [ 284 P. 725 ], the court declined to abate the practice of usury as a public nuisance. It observed: “It is very evident that if following the despicable calling of usurer constitutes a public nuisance [as defined in Civil Code section 3479] it must be because such conduct constitutes ‘an obstruction to the free use of property’. ... It could not by any stretch of the imagination be considered as covered by any other clause of the code definition.,, ( 103 Cal.App. at p. 310 .) (Italics added.) The court’s language left scant doubt that it thought that engaging in “the despicable calling of usurer” smacked of indecency. Nonetheless, it expressly ruled that that practice could not qualify as a nuisance on the grounds that it was indecent or offensive to the senses of a large number of people.

In Dean v. Powell Undertaking Co. (1921) 55 Cal.App. 545 [ 203 P. 1015 ], the court refused to abate the operation of a funeral parlor in a residential neighborhood as a public nuisance. The plaintiffs had complained that the operation of such an establishment precluded the comfortable enjoyment of life for many residents who were squeamish about the proximity of dead bodies. The court, explained that the plaintiffs deserved relief only if they could establish that the funeral parlor emitted noxious odors or otherwise afflicted the senses of the aggrieved parties, and that merely offending the sensibilities of some people would not render it a public nuisance. The Dean court quoted with approval the language of the New Jersey Court of Chancery in Wescott v. Middleton (1887) 43 N.J. Eq. 478, 486 [ 11 A. 490 ]: “In this case, then, we have the broad, yet perfectly perceptible or tangible ground or principle announced that the injury must be physical as distinguished from one purely imaginative; it must be something that produces real discomfort or annoyance through the medium of the senses, not from delicacy of taste or refined fancy.. ..”

The Court of Appeal most recently addressed this issue in Harmer v. Tonylyn Productions Inc. (1972) 23 Cal.App.3d 941 [ 100 Cal.Rptr. 576 , 50 A.L.R.3d 959 ], in which private citizens brought an action pursuant to section 3493 of the Civil Code to enjoin the showing of a purportedly obscene film as a public nuisance. As the majority notes, Harmer ruled *68 that the plaintiffs had not alleged the special damages that section 3493 requires of private citizens who would bring an action to abate a public nuisance. In so holding, however, the court explicitly rejected the contention that the statutory language embraced such a private exhibition.

The Harmer court observed: “The film involved was shown only in a closed theatre. . . . Thus, only those members of the community were exposed to the film who voluntarily chose to see it. This is not a case where the community as a whole is forced to submit involuntarily to vile odors or air pollution or to the unwelcome presence of animals. In the statute’s terms, the alleged nuisance at bench did not ‘. . . affect[s] at the same time an entire community or neighborhood,...’ (Civ. Code, § 3480) (italics added).” (Citations omitted.) The court thus squarely rejected the notion that the mere existence of an establishment that deals in obscene materials constitutes a public nuisance, for if private indecent behavior fell within the public nuisance statute, the entire community would have been affected in Harmer .

The majority contends that Harmer improperly analyzed the character of the state interest in regulating the exhibition of obscene matter; it observes that Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49 [ 37 L.Ed.2d 446 , 93 S.Ct. 2628 ] and People v. Luros (1971) 4 Cal.3d 84 [ 92 Cal.Rptr. 833 , 480 P.2d 633 ], both recognize a legitimate state interest in regulating the distribution of obscene material to consenting adults. But those decisions merely testify to the outer limits of constitutional state regulation; they do not testify to the actual ambit of California’s public nuisance laws. Harmer correctly construed the California statutes. The majority cannot rebut that construction by merely noting that, under prevailing constitutional doctrine, the Legislature stands empowered to draft more expansive statutes.

In support of its conclusion that the public nuisance statute comprehend private indecent behavior, the majority relies primarily upon Weis v. Superior Court (1916) 30 Cal.App. 730 [ 159 P. 464 ], which involved the indecent exposure of women in an exhibit at the 1915 Panama-Califomia International Exposition. In a three-and-one-half-page opinion the court ruled that it could abate the exhibition as a public nuisance in order to subserve the public morals and protect “men, women, and children attending this public resort as spectators from being subjected to witnessing the offensive and indecent exhibition.” ( 30 Cal.App. at p. 733 .)

*69 Weis constitutes meager support for the expansion of the public nuisance statutes that the majority today effects. It is not at all clear that spectators were adequately forewarned of the character of the exhibition involved in Weis . Although the exhibition’s name might have given some hint of its nature, spectators could reasonably have assumed that the “Sultan’s Harem” involved something less than actual nudity. Nor is there any indication that the manager of the exhibit attempted to convey its content to possible spectators by making it an “adults only” attraction; the court explicitly referred to the need to protect children from the exhibition. To the extent that Weis involved subjecting an unadmonished audience to indecent material, it has no bearing on the present case in which the allegedly indecent material was displayed exclusively within the confines of an “adults only” establishment.

The majority also attempts to cull support from People v. Lim, supra, 18 Cal.2d 872 , which, it maintains, “approves the reasoning” of Weis. (Ante, at p. 50.) As noted above, however, it is not at all clear that the reasoning or the holding of Weis extends to truly private conduct. Lim itself did not involve indecency or obscenity, but a gambling establishment which, the complaint alleged, “ ‘draws together great numbers of disorderly persons, disturbs ^the public peace, brings together idle persons and cultivates dissolute habits among them, creates traffic and fire hazards, and is thereby injurious to health, indecent and offensive to the senses and impairs the free enjoyment of life and property.’ ” We held simply that “[cjrowds of disorderly people who disturb the peace and obstruct the traffic may well impair the free enjoyment of life and property and give rise to the hazards designated in the statute.” ( 18 Cal.2d at p. 882 .) Needless to say, the concrete interference with the public peace in Lim is quite distinct from the private behavior involved in the present case.

A careful study of the statutes and the cases thus impels the conclusion that the public nuisance statutes do not govern indecent conduct when such conduct is not thrust upon those who find it repugnant. The potent remedy of abatement is reserved for objects and behavior that concretely interfere with the enjoyment of life of a considerable number of people; to the extent that private indecent behavior offends the sensibilities of members of the community, they must rely on their public officials to enforce any apposite criminal laws.

*70 Recent expressions of legislative and popular will reinforce my conclusion that the public nuisance statutes do not govern private conduct. As explained above, Harmer v. Tonylyn Productions, Inc., supra, 23 Cal.App.3d 941 , ruled that California’s public nuisance statutes did not embrace the sale or display of obscene material under circumstances in which such materials are exposed only to willing viewers. Following Harmer , several attempts were made legislatively to overrule the decision; the voters and legislators of this state rebuffed each attempt to establish public nuisance abatement procedures directed at obscenity.

In the 1972 general election, the electorate rejected by a vote of about two to one an initiative measure that would have endowed the district attorney of any county with the authority to maintain an action for an injunction in superior court to prevent the display or sale of obscene material. 4 In June 1974, the Assembly Committee on Criminal Justice *71 defeated similar provisions in Assembly Bill No. 4340. 5

In light of the Harmer decision, and the subsequent rejection of proposed legislation which would have specifically authorized a nuisance abatement procedure to be used against obscenity, traditional canons of statutory construction teach that the existing nuisance provisions should not be judicially extended to encompass the display of allegedly obscene material to willing viewers. “ ‘Where a statute has been construed by judicial decision, and that construction is not altered by subsequent legislation, it must be presumed that the Legislature is aware of the judicial construction and approves of it. [Citations.]’ (People v. Hallner, 43 Cal.2d 715, 719 [ 277 P.2d 393 ]; People v. Courtney, 176 Cal.App.2d 731, 741 [ 1 Cal.Rptr. 789 ].) This rule is not rendered inapplicable by the fact that the determinative decision is rendered by a Court of Appeal.” (People v. Orser (1973) 31 Cal.App.3d 528, 533-534, fn. 4 [ 107 Cal.Rptr. 458 ].)

Properly construed, the public nuisance statutes do not embrace private indecency such as involved in the present case. Our inquiry would normally end here. Given the majority’s conclusion that these statutes do encompass such private behavior, however, it becomes necessary to assay them by constitutional standards. As construed by the majority, the public nuisance statutes fail to pass constitutional muster for several reasons.

*72 First, the statutes, as interpreted today, contravene the First Amendment because they chill protected expression. As I have explained in detail elsewhere, the concept of obscenity is an inherently vague one, and no legislative or judicial efforts that even arguably comport with the First Amendment could define the term with sufficient precision to enable businesspersons confidently to determine whether their products or exhibitions would be ruled obscene. (Bloom v. Municipal Court (1976) 16 Cal.3d 71 [ 127 Cal.Rptr. 317 , 545 P.2d 229 ] (Tobriner, J., dissenting).) The problem of defining obscenity is intractable because we have no community view of that which appeals to the prurient interest and lacks social value, but rather a host of distinct views within each community. And even if these distinct views could be said metaphysically to coalesce to form some community standard, no trier of fact could confidently ascertain what that standard was.

The determination that an exhibition is obscene, consequently, amounts to nothing more than a testament to subjective preferences or a conjecture about the taste and fancy of one’s neighbors. As the Court of Appeal acknowledged in In re Davis (1966) 242 Cal.App.2d 645, 661 [ 51 Cal.Rptr. 702 ], when it held a law proscribing “any act which openly outrages public decency” impermissibly vague, “[t]he constitution . . . could not tolerate a law which would make an act a crime, or not, according to the moral sentiment which might happen to prevail with the judge and juiy ....”

Although we do not deal here with a criminal law, the vice of vagueness remains fatal. The United States Supreme Court explained: “Vague laws in any area suffer a constitutional infirmity. When First Amendment rights are involved, we look even more closely lest, under the guise of regulating conduct that is reachable by the police power, freedom of speech and of the press suffer.” (Ashton v. Kentucky (1966) 384 U.S. 195, 200 [ 16 L.Ed.2d 469, 473 , 86 S.Ct. 1407 ].)

Moreover, the vagueness and subjectivity of present obscenity doctrine impose particularly severe burdens on freedom of expression if, as the majority holds, obscenity doctrine may be imported into public nuisance proceedings. In Bloom v. Municipal Court, supra, 16 Cal.3d 71 [ 127 Cal.Rptr. 317 , 545 P.2d 229 ], a majority of this court incorporated into the definition of obscenity in section 311 of the Penal Code the guidelines set forth in Miller v. California (1973) 413 U.S. 15 [ 37 L.Ed.2d 419 , 93 S.Ct. 2607 ]. Central to the Miller test is ..whether “the average *73 person, applying contemporary community standards” would find that the involved expression appeals to the prurient interest. If this constitutional “test” can be consistently applied at all, and I have already expressed my serious doubts that it can, it seems clear that a jury, as a microcosm of the community, is the only “trier of fact” fit to conduct the inquiry contemplated by Miller .

In a public nuisance proceeding, however, no jury is impanelled to determine whether a particular work is obscene under contemporary community standards; that crucial determination—upon which the censorship of a book, a magazine, a play or a motion picture turns—is left instead to a single judicial officer. In a criminal obscenity proceeding, the requirement .that a jury be drawn from a cross-section of the community will normally provide at least some promise that the varying tastes and sensibilities that exist in every community will play some role in the determination of whether a work is obscene or not. By authorizing a single judge—distant to the interplay of the diverse cultural, religious, intellectual and economic backgrounds commonly present in a jury room—to make the determination of obscenity on the basis of an undeniably subjective standard, the majority inevitably confines constitutional protection only to those works that, in the personal view of a single judge, are not offensive. 6

Nearly 20 years ago, in Butler v. Michigan (1957) 352 U.S. 380 [ 1 L.Ed.2d 412 , 77 S.Ct. 524 ], the United States Supreme Court overturned a state obscenity statute that prohibited the dissemination of any book that the state believed was unfit for children. Justice Frankfurter, writing for a unanimous court, declared: “The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely this is to burn the house to roast the pig. . . . The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children.” ( 352 U.S. at p. 383 [ 1 L.Ed.2d at p. 414 ].)

*74 In like manner, the “incidence” of the decision of the majority in this case is to reduce the adult population of California to reading only those books that do not offend the sensibilities of the most “sensitive” trial judge in their community. Surely such a procedure robs free speech of the stringent protection guaranteed by our most cherished constitutional precepts. 7

In sum, California’s public nuisance statutes simply were not drafted for the purpose to which the majority commits them. The sword of public nuisance is a blunt one, admirably designed to curb noxious odors or to quell riots, but ill suited to the delicate sphere of the First Amendment where legal overkill is fatal.

Because the public nuisance statutes do not govern the willful viewing of obscene material in private by adults—and because if they did they would be constitutionally defective—I conclude that the trial court properly sustained the defendant’s demurrer. Accordingly, I would affirm the decision below.

Mosk, J., concurred.

The judicial reluctance to proclaim new species of public nuisance is well founded. The remedy of abatement, fashioned as it was to equip the courts to deal expeditiously with serious perils to the public, denies the defendant many of the procedural safeguards he would enjoy if he were subjected to an ordinary civil or criminal action. “[I]t is apparent that the equitable remedy has the collateral effect of depriving a defendant of the jury trial to which he would be entitled in a criminal prosecution for violating exactly the same standards of public policy. The defendant also loses the protection of the higher burden of proof required in criminal prosecutions and, after imprisonment and fine for violation of the equity injunction, may be subjected under the criminal law to similar punishment for the same acts. For these reasons equity is loath to interfere where the standards of public policy can be enforced by resort to the criminal law, and in the absence of a legislative declaration to that effect, the courts should not broaden the field in which injunctions^against criminal activity will be granted.” (People v. Lim, supra, 18 Cal.2d 872, 880 (citations omitted).)

This argument, admittedly, lets a great deal turn on the absence of a comma in Civil Code section 3479, but the majority lets an equal amount turn on the presence of a comma in section 370 of the Penal Code. Since the statute authorizing the abatement of nuisances explicitly refers to the Civil Code definitions, there can be no doubt that we are to construe the section that lacks the comma. It is quite likely, of course, that this difference in punctuation between the two sections is accidental, and that their drafters intended their scope to be coextensive. This court, consequently, might reasonably decide to interpret the sections identically, notwithstanding their different punctuation.

Which section, however, contains the error and which section is correct? It is difficult to ascertain the intent that motivated the Legislature when it enacted these statutes in 1872 and amended them in 1874; any conclusion that one rather than the other involved the error in punctuation, therefore, is fraught with uncertainty. Nonetheless, if we must choose which section is correct, we should honor the definition embodied in the Civil Code. The fact that section 731 of the Code of Civil Procedure refers to the Civil Code definitions gives some indication that those definitions comport with the Legislature’s' wishes. Moreover, the preferences for narrowly construing statutes that infringe first amendment values and for interpreting statutes • in light of the consequences of the alternative constructions, see infra, conjoin to urge that we embrace the Civil Code definitions. These considerations, I grant, do not conclusively establish that the Civil Code definition accurately reflects the legislative intent; there are no reasons, however, to prefer the definition contained in the Penal Code.

The majority insists that conduct that is indecent does not offend any of the five senses, and thus that the use of the word “indecent” in the statute establishes that the public nuisance laws encompass conduct that does not bear upon the-senses. (Ante, at p. 50.) The answer is simple: even though conduct that is indecent does its damage to the sensibilities or tastes, rather than the senses, of the public, it falls within the public nuisance statute only when perceived by the senses of a substantial number of people.

The relevant portions of the initiative (Proposition 19) read:

“CHAPTER 7.9. INJUNCTIVE RELIEF

“313.50. The superior courts of the State of California have jurisdiction to enjoin the sale or distribution of any book, magazine, or any other publication or article, or the public showing of any motion picture film, slide, exhibit, or performance which is prohibited under Chapters 7.5, 7.6, 7.7 or 7.8 of this title.

“313.51. The'district attorney of any county in this state in which a person, firm, or corporation sells or distributes, or is about to sell or distribute, or is about to acquire possession with intent to sell or distribute any book, magazine, pamphlet, newspaper, story paper, writing paper, picture, card, drawing" photograph, or other publication or matter which is prohibited by the above enumerated chapters may maintain an action for an injunction against such person, firm, Or corporation in the superior court to prevent the sale or further sale or the distribution or further distribution of any such prohibited publication or articles.

“313.52. The district attorney of any county in this state in which a person, firm, or corporation shows publicly, or is about to show publicly, or is about to acquire possession with intent to show publicly any motion picture film, slide, exhibit, or performance which is prohibited under the above enumerated chapters may maintain an action for an injunction against such person, firm, or corporation in the superior court to prevent the public showing or further public showing of such prohibited matter or activity.

“313.53. The person, firm, or corporation sought to be enjoined is entitled to a trial of the issues within one day after joinder of issue and a decision shall be rendered by the court within two days after the conclusion of the trial.

“313.54. In the event that an order or judgment be entered in favor of the district attorney and 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 such peace officer as the court may direct or to the sheriff of the county in which the action was brought any of the matter described in Section 313.51 or 313.52, and such sheriff or officer shall be directed to seize and destroy the same, provided that destruction of such matter shall be Stayed Until after the time provided for filing a notice of appeal has expired, and provided further that where an appeal is timely filed, such destruction shall be stayed pending the decision on appeal.”

Proposition 19 was defeated by a vote of 5,503,888 (67.9 percent) No to 2,603,927 (32.1 percent) Yes. Secretary of State, Statement of Vote, General Election November 7, 1972, page 30.

The relevant portions read:

“311.3(a) The superior court has jurisdiction to enjoin the sale, distribution or exhibition of obscene books, articles or films, as hereinafter specified:

“(1) The district attorney, county counsel, city attorney or city prosecutor of any county, city or town, in which a person, firm or corporation sells, distributes or exhibits or is about to sell, distribute or exhibit or has in his possession with intent to sell, distribute or exhibit any book, magazine, pamphlet, comic book, story paper, writing, paper, picture, drawing, photograph, film, figure, image or any written or printed matter of an indecent character which is obscene as defined in Section 311, may maintain an action for an injunction against such person, firm or corporation in the superior court to prevent the sale or further sale or further distribution or the exhibition or further exhibition of such matter.

“(2) The person, firm or corporation sought to be enjoined shall be entitled to a trial of the issues within 14 days after joinder of issue and a decision shall be rendered by the court within two days of the conclusion of the trial.

“(b) In the event that a final order or judgment of injunction to be entered in favor of such officer of the county, city or town and against the person, firm or corporation sought to be enjoined, such final order of judgment shall contain a provision directing the person, firm or corporation to surrender to the sheriff or any other law enforcement agency of the county in which the action was brought any of the matter described in paragraph (1) hereof and such sheriff or law enforcement agency shall be directed to seize and destroy the same or to hold the same as evidence.”

Although a trial court’s determination of obscenity is subject to appellate review, numerous commentators have pointed out that in light of the subjective nature of the Miller standards, “[djirect appellate review of findings of prurient appeal and patent offensiveness becomes impossible.” (Note, Community Standards, Class Actions and Obscenity Under Miller v. California (1975) 88 Harv.L.Rev. 1838, 1844; see, e.g., Hunsaker, The 1973 Obscenity-Pornography Decisions: Analysis, Impact and Legislative Alternatives (1974) 11 San Diego L.Rev. 906, 931, fn. 124; The Supreme Court, 1972 Term (1973) 87 Harv.L.Rev. 1, 168-169.)

The majority circumvents another constitutional problem inherent in its approach by importing to the public nuisance statutes a requirement of a prior adversary hearing. The majority justifies this judicial rewriting of the statute by referring to the principle that laws should be construed so as to uphold their validity. There is, however, an alternative way to construe the statutes involved in this case so as to render them immune to constitutional attack: they can be interpreted as inapplicable to private behavior. Given that the applicability of the statute’s language to private behavior is, at best, highly dubious, this reading would seem the more judicious way to construe the statute so as to uphold its validity.