City of Spokane v. J-R Distributors, Inc.

• Decision Date: 19 October 1978
• Docket Number: J-R,No. 45291,45291
• Citation: 585 P.2d 784,90 Wn.2d 722
• Parties: , 4 Media L. Rep. 1647 The CITY OF SPOKANE, a Municipal Corporation, Appellant, v.DISTRIBUTORS, INC., a corporation d/b/a Payless Bookstore and Spokane Magazine Center, Respondent.
• Court: Washington Supreme Court

Page 722

90 Wn.2d 722

585 P.2d 784, 4 Media L. Rep. 1647

The CITY OF SPOKANE, a Municipal Corporation, Appellant, v. J-R DISTRIBUTORS, INC., a corporation d/b/a Payless

Bookstore and Spokane Magazine Center, Respondent.

No. 45291.

Supreme Court of Washington, En Banc.

Oct. 19, 1978.

Richard F. Wrenn, Corp. Counsel, John J. Madden, Acting Corp. Counsel, Emmett J. Shearer, Asst. Corp. Counsel, Spokane, for appellant.

Victor V. Hoff, Seattle, for respondent.

HICKS, Justice.

The City of Spokane appeals from an order dismissing its action under ordinance No. C-23398 to abate a "moral nuisance" at respondent's adult bookstores. We accepted direct review and we affirm.

In August 1976, Spokane enacted ordinance C-23398, which declares lewd or obscene publications and films and the places where they are sold or exhibited to be "moral nuisances". The ordinance provides specific and detailed procedures for abatement of such nuisances in a "record court of competent jurisdiction". Because a municipal court is not a court of record under Const. art. 4, § 11, the abatement procedure fashioned by the ordinance must be commenced and carried out in the superior court.

Sections 5 and 6 of the ordinance authorize the corporation counsel or any citizen of the City to bring an action to abate the declared nuisance. Section 7 provides for the issuance of an ex parte retraining order prohibiting the removal of the personal property and contents of the place where a nuisance is alleged to exist until a hearing can be held on an application for a temporary injunction. That provision also specifies the manner of serving the order and makes violation of the order a contempt of court.

Procedures for the issuance of a temporary injunction after notice and hearing are established in sections 8 and 9. Those sections dictate that, if the allegations of the complaint are sustained, the judge "shall": (1) temporarily enjoin the maintenance of the nuisance; (2) declare a temporary forfeiture of certain real and personal property used in connection with the nuisance; and (3) order closure of the premises where the nuisance is maintained.

Section 11 requires that the nuisance action have precedence over all but a few specified type of cases and with the concurrence of the court be set for trial at the first term of the court, whatever that may mean. Sections 12 and 13 establish rules of evidence and specify that certain prior convictions and evidence of general reputation of the building or place are admissible to prove particular elements of the nuisance action.

Sections 15, 16 and 18 provide remedies for the action, including removal and sale of property used in conducting the nuisance, destruction of lewd matter, assessment of a $300 civil penalty, continuation of the closing order for one year, punishment by contempt proceedings for violation of the injunction, forfeiture to the City of the furniture, fixtures and contents of the place which is a nuisance, and forfeiture of money received for the sale or exhibition of a film or publication found to be a nuisance. Under section 17, use of a place as a moral nuisance by a tenant authorizes the owner to void the lease and "causes the right of possession to revert and vest in such owner, who may without process of law make immediate entry upon the premises."

In November 1976, at least one Spokane police officer visited respondent's adult bookstores, purchased magazines and films, and viewed other films on a coin-operated machine. The City then commenced this action, based on ordinance C-23398, to abate each of those particular items as a moral nuisance.

Respondent moved to dismiss the claim for failure to state a claim and for lack of subject matter jurisdiction. The trial court dismissed the complaint, holding that: (1) the City had no authority to prescribe rules of evidence and procedures for the superior court and to confer jurisdiction upon that court to enforce city ordinances; (2) respondent had standing to challenge the constitutionality of the ordinance; (3) the padlocking and property abatement procedures and other remedies constituted an unconstitutional prior restraint on speech; (4) the entire ordinance was unconstitutional because the invalid sections were not severable; and (5) particular provisions of the ordinance were invalid because they conflicted with state law.

We agree that the enactment of this ordinance was beyond the scope of authority delegated to the City. Since the ordinance is invalid for that reason, we do not discuss the other infirmities found by the trial court and argued by respondent.

Initially, we note that Spokane did not bring an action in the superior court to abate the claimed nuisance under RCW 7.48, RCW 7.40, or some other state statute. Rather it sought to abate the "moral nuisance" under a city ordinance which purports to establish specific procedures, rules of evidence and remedies to be applied in the superior court. It claims that the specific procedures established in the ordinance were necessary to avoid imposing an unconstitutional prior restraint on speech. See Seattle v. Bittner, 81 Wash.2d 747, 505 P.2d 126 (1973).

Municipal corporations are creatures of the state and derive all of their authority and powers from the state constitution and the legislature. Lauterbach v. Centralia, 49 Wash.2d 550, 304 P.2d 656 (1956); Campbell v. Saunders, 86 Wash.2d 572, 546 P.2d 922 (1976). As this court stated in Lauterbach, 49 Wash. at 554, 304 P.2d at 659:

A municipal corporation is a body politic established by law as an agency of the state partly to assist in the civil government of the country, but chiefly to regulate and administer the local and internal affairs of the incorporated city, town, or district. Columbia Irr. Dist. v. Benton County, 149 Wash. 234, 235, 270 P. 813 (1928). It has neither existence nor power apart from its creator, the legislature, except such rights as may be granted to municipal corporations by the state constitution.

The question present in each case is whether a city has been vested by the state constitution or by an act of the legislature with the authority to enact the ordinance in question. The authority must be found either in an express grant or by necessary implication from such a grant. Pacific First Fed. Sav. & Loan Ass'n v. Pierce County, 27 Wash.2d 347, 178 P.2d 351 (1947); Pacific County v. Sherwood Pacific, Inc., 17 Wash.App. 790, 567 P.2d 642 (1977).

Spokane contends that ordinance C-23398 is within the power to enact police and other regulations conferred by Const. art. 11, § 11. It also relies on RCW 35.22.280(30), which provides that first-class cities have the power to "declare what shall be a nuisance, and to abate the same." We do not agree that either of these provisions delegates authority to a city to specify procedures, rules and remedies to be applied in the superior court.

It is true that within its sphere, a city's power to enact police power regulations is extensive. See, e. g., Petstel v. County of King, 77 Wash.2d 144, 459 P.2d 937 (1969). Nonetheless, it is generally agreed that the power does not extend to matters of judicial practice and procedure. 6 E. McQuillin, The Law of Municipal Corporations §§ 22.15, 24.46 (3rd rev. ed. 1969); 1 C. Antieau, Municipal Corporation Law § 3.35 (1978); 3 C. Antieau, Municipal Corporation Law § 26.10 (1978); 62 C.J.S. Municipal Corporations § 288 (1949); and cases cited.

There are several reasons for this limitation. First, the administration of justice and the operation of the courts is a matter of state rather than local concern. Antieau, Supra and cases cited; Hardamon v. Municipal Court, 178 Colo. 271, 497 P.2d 1000 (1972); and See Massie v. Brown, 84 Wash.2d 490, 527 P.2d 476 (1974); State ex rel. Evans v. Superior Court, 92 Wash. 375, 159 P. 84 (1916); In re Cloherty, 2 Wash. 137, 27 P. 1064 (1891). It is, of course, true that a municipality's police powers extend only to those matters which are of local concern. Petstel v. County of King,supra; Lenci v. Seattle, 63 Wash.2d 664, 388 P.2d 926 (1964); McQuillin, Supra, at § 24.33.

This particular limitation on the police power is also dictated by the doctrine of separation of powers. The power to regulate the practice and procedure of the superior courts is one which is inherently judicial. Const. art. 4, § 1; State ex rel. Foster-Wyman Lumber Co. v. Superior Court, 148 Wash. 1, 267 P. 770 (1928); State v. Fields, 85 Wash.2d 126, 530 P.2d 284 (1975); State v. Smith, 84 Wash.2d 498, 527 P.2d 674 (1974). That judicial power may not be abrogated or restricted by any legislative act. State v. Smith, supra; Blanchard v. Golden Age Brewing Co., 188 Wash. 396, 63 P.2d 397 (1936). While as a matter of comity we have recognized some reasonable state legislation regarding judicial procedure (Blanchard v. Golden Age Brewing Co., supra ), the need for uniformity, discussed below, provides ample reason why municipal ordinances with similar effect should not be so recognized.

Finally, common sense and logic instruct that the power to guide the operations of the superior court is not among those delegated to municipalities. Superior court rules must be uniform in order that judicial business can be conveniently and expeditiously transacted. See Const. art. 4, § 6 (amendment 28) and art. 4, § 24; RCW 2.08.230 and 2.16.040; State ex rel. Foster-Wyman Lumber Co. v. Superior Court, supra.

That uniformity, so essential to the efficient operation of the judicial system, could not be achieved if each municipality were free to prescribe rules of practice and procedure for the superior court of its county. If such a circumstance prevailed, procedures would vary, not only among the superior courts, but also within a single superior court when considering cases arising in different municipalities.

(I)f one city which has 20,000 inhabitants can create a tribunal and enact modes and methods for...