Butler v. Tucker

Decision Date13 May 1992
Docket NumberNo. 19998,19998
Citation416 S.E.2d 262,187 W.Va. 145
CourtWest Virginia Supreme Court
PartiesJudy BUTLER, d/b/a Butler Video, Sue Sharp and Sandra Alderman d/b/a S & S Video, Roger Groves and Miranda Groves, d/b/a Richwood Electronics, Plaintiffs Below, Appellants, v. Gregory TUCKER, Prosecuting Attorney for Nicholas County, Thomas Blankenship, Sheriff of Nicholas County, Garry Evans, Chief of Police for the City of Summersville, et al., Defendants Below, Appellees.

Syllabus by the Court

1. West Virginia Code § 7-1-4 (1990) is constitutional because it embodies not only the general obscenity test authorized in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), but also incorporates in paragraphs (A) and (B) of subsection (b)(4), the specific "plain examples" of obscenity set out by the Supreme Court in Miller.

2. The limited power given county commissions to adopt the obscenity ordinance in W.Va.Code § 7-1-4(b) and to delete some of the language in paragraph (A) of subsection (b)(4) does not render W.Va.Code § 7-1-4 (1990) unconstitutional.

3. "The county court [commission] is a corporation created by statute, and can only do such things as are authorized by law, and in the mode prescribed." Syllabus point 5, Goshorn's Ex'rs v. County Court of Kanawha County, 42 W.Va. 735, 26 S.E. 452 (1896).

4. "The constitutional prerequisite to a valid statute is that the law shall be complete when enacted." Syllabus point 4, State v. Grinstead, 157 W.Va. 1001, 206 S.E.2d 912 (1974).

5. West Virginia Code § 7-1-4 (1990), which authorizes county commissions to enact the obscenity ordinance contained therein, is not an unconstitutional delegation of legislative power.

Larry E. Losch, Summersville, for appellants.

Harley E. Stollings, Breckinridge, Davis, Null & Sproles, Summersville, for appellees.

BROTHERTON, Justice:

The appellants, Judy Butler, et al., challenge the constitutionality of an anti-pornography ordinance restricting the sale and display of obscene materials which was adopted by the Nicholas County Commission on November 9, 1989, pursuant to W.Va.Code § 7-1-4.

This test of the ordinance was initiated on February 5, 1990, when Ellis Frank Hartless and Phillip Light rented an X-rated videotape entitled "Stolen Kisses" from Butler Video, a rental business located in Summersville, West Virginia. Hartless and Light took the videotape to the Nicholas County Sheriff and demanded prosecution pursuant to the anti-pornography ordinance.

The videotape was viewed by Nicholas County Magistrate Phillip G. Conley, Chief Deputy Bobby Gordon, Frank Hartless, and Phillip Light. Upon concluding that there was probable cause to find that the videotape was obscene, the magistrate issued a search warrant which authorized the sheriff's department to search Butler Video and seize any other videotapes which were suspected of being obscene. Approximately sixty-five to seventy X-rated videotapes were seized.

There have been no arrests, indictments, or informations filed charging any of the appellants in this case with any criminal offense under the Nicholas County Anti-Pornography Ordinance. All of the videotapes which were seized from Butler Video have since been returned, although the tape which was initially rented by Hartless and Light remains in the possession of the State.

The appellants subsequently filed a petition for declaratory judgment, writ of prohibition, and writ of mandamus in the Circuit Court of Nicholas County, challenging the seizure of the videotapes, as well as the constitutionality and enforceability of the Nicholas County Commission's enactment of the anti-pornography ordinance. In an order dated August 9, 1990, the court denied all of the appellants' requests for relief. The appellants now appeal from this order.

The appellant's constitutional claim is centered on two arguments: (1) that the definition of obscenity found in W.Va.Code § 7-1-4(b) is too vague; and (2) that the statute does not prescribe a statewide enactment, but allows each county to decide whether to adopt a local pornography statute. In support of the latter claim, the appellant points out that W.Va.Code § 7-1-4(b) allows a county to pick what portion of the state ordinance it will adopt. 1

With regard to the argument that W.Va.Code § 7-1-4(b) is too vague, all parties agree that the controlling test was set forth by the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Material which meets this standard is considered obscene, thus it is not afforded the First Amendment freedoms of speech or press protections:

(a) [W]hether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, [408 U.S. 229] at 230 [92 S.Ct. 2245, 2246, 33 L.Ed.2d 312, 315 (1972) ], quoting Roth v. United States, [354 U.S. 476] at 489 [77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498, 1509 (1957) ]; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the "utterly without redeeming social value" test of Memoirs v. Massachusetts, 383 U.S. at 419 [86 S.Ct. 975, 978, 16 L.Ed.2d 1, 6 (1966) ].

413 U.S. at 24, 93 S.Ct. at 2615, 37 L.Ed.2d at 431. 2

The Supreme Court then gave several examples of what a state statute could define as obscene for regulation under the general standard announced in its opinion:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

413 U.S. at 25, 93 S.Ct. at 2615, 37 L.Ed.2d at 431.

Since Miller v. California, the Supreme Court has taken only one opportunity to clarify its standard. In Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987), the Supreme Court concluded that the third element of the Miller standard, i.e., "whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value," is not to be judged by a community standard. After reviewing Miller and its more recent opinion of Smith v. United States, 431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977), the Supreme Court concluded in Pope that:

The proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.

481 U.S. at 500-01, 107 S.Ct. at 1921, 95 L.Ed.2d at 445 (footnote omitted). While Pope v. Illinois is thought of as a clarification of Miller v. California, it actually appears to have rejected the community standard test discussed in Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974).

Jenkins is notable for sanctioning the right of an appellate court to make an independent review of the allegedly obscene material to determine if it passes constitutional muster. When conducting this review, the court in Jenkins reiterated Miller's holding that " 'no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct[.]' " 418 U.S. at 160, 94 S.Ct. at 2755, 41 L.Ed.2d at 650, quoting Miller v. California, 413 U.S. at 27, 93 S.Ct. at 2616, 37 L.Ed.2d at 432. Finally, Jenkins went on to state that the list of examples included in Miller to elucidate its definition of obscenity, while not "an exhaustive catalog ... was certainly intended to fix substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a determination." 418 U.S. at 160-61, 94 S.Ct. at 2755, 41 L.Ed.2d at 650.

These principles guide us in our determination of whether W.Va.Code § 7-1-4 meets the Miller constitutional standard. We conclude that it is constitutional because it embodies not only the general obscenity test authorized in Miller v. California, supra, but also incorporates in paragraphs (A) and (B) of subsection (b)(4), the specific "plain examples" of obscenity set out by the Supreme Court in Miller. The Nicholas County ordinance tracks the language of W.Va.Code § 7-1-4(b). Thus, both the statute and the Nicholas County ordinance are facially constitutional and do not violate the First Amendment to the United States Constitution. 3

The appellant's alternative constitutional claim attacks the structure of W.Va.Code § 7-1-4, and argues that it is unconstitutional because it enables county commissions to adopt different obscenity ordinances. We conclude that when properly analyzed, this statute gives county commissions a very limited power to alter the statutory scheme, which does not affect its constitutionality.

When we analyze W.Va.Code § 7-1-4, several points are clear. First, the authorization of power to adopt an obscenity ordinance by a county commission is discretionary since subsection (a) states that "county commissions may adopt the ordinance provided...." 4 Second, if a county commission decides to adopt an obscenity ordinance, it is required to follow the form set out in W.Va.Code § 7-1-4. This requirement is mandated by the language set out in the first sentence of W.Va.Code § 7-1-4(b), which states: "The ordinance which county commissions may adopt pursuant to the power granted them under subsection (a) of this section shall be: ..." 5 (Emphasis added).

Third, this mandatory language embodies the general obscenity definition contained in W.Va.Code, 7-1-4(b)(4). 6 At the end of...

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