Napro Development Corp. v. Town of Berlin

• Decision Date: 07 June 1977
• Docket Number: No. 261-76,261-76
• Citation: 376 A.2d 342,135 Vt. 353
• Parties: NAPRO DEVELOPMENT CORPORATION v. TOWN OF BERLIN. TOWN OF BERLIN v. NAPRO DEVELOPMENT CORPORATION.
• Court: Vermont Supreme Court

Page 342

376 A.2d 342

135 Vt. 353

NAPRO DEVELOPMENT CORPORATION v. TOWN OF BERLIN.

TOWN OF BERLIN v. NAPRO DEVELOPMENT CORPORATION.

No. 261-76.

Supreme Court of Vermont.

June 7, 1977.

Richard C. Blum, Burlington, for Napro Development Corp.

Robert J. Kurrle, Montpelier, for Town of Berlin.

Before BARNEY, C. J., DALEY and BILLINGS, JJ., and SMITH and KEYSER, JJ. (Ret.), both specially assigned.

BILLINGS, Justice.

This is a consolidated appeal from a judgment order of the Washington Superior Court in two joined civil actions concerning a so-called adult bookstore in the Town of Berlin. The judgment order below granted plaintiff Napro Development Corporation's (Napro) motion for summary judgment in a V.R.C.P. 75 complaint to prevent enforcement of an abatement order of the Town of Berlin Board of Health. In the second action, it granted defendant Napro's motion to dismiss the Town of Berlin's complaint seeking a permanent injunction to enforce the abatement order.

Napro Development Corporation is a Vermont corporation doing business as Twin City News on leased premises in a shopping complex located on U.S. Route 302 in the Town of Berlin. This commercial enterprise has been characterized by the parties as an adult bookstore. On April 27, 1976, the Board of Selectmen of the Town of Berlin, sitting as the local board of health (18 V.S.A. § 610), held a properly warned public meeting to investigate the nature of the operations of this commercial enterprise. After examination of the stock in trade and the mode of conducting business, the Board determined that the stock in trade was sexually explicit and that the business operation constituted an unhealthful condition. The Board issued the following abatement order dated April 29, 1976:

The Local Board of Health of the Town of Berlin, Vermont hereby issues the following Order of Abatement directed to Napro Development Corporation, Inc., a Vermont Corporation, doing business as Twin City News and located on land and premises owned by Northern Terminal, Inc., a Vermont Corporation and specifically located on, at or near Route 302, Berlin, Vermont. Said Order of Abatement is and shall be as follows:

1. Napro Development Corporation, Inc. is ordered to cease and desist its business operation at the aforesaid location as an adult book store, the same constituting an unhealthful condition.

2. Napro Development Corporation, Inc. is specifically ordered to abate the sale, distribution and displaying of sexually explicit material including films, magazines, photographs, drawings, appliances, sound recordings and any and all other printed or visual matter however reproduced including sado-masochistic portrayals.

3. This Order of Abatement to cease said business operation as heretofore enumerated shall be completed by Napro Development Corporation, Inc. at the above referenced Berlin, Vermont location eighteen (18) days from April 27, 1976, and specifically to mean on or before May 15, 1976.

4. Failure to terminate and abate the unhealthful conditions of sale, distribution or displaying of the materials hereinbefore enumerated in this Order, the same constituting unhealthful conditions pursuant to Title 18, Section 610 of the Vermont Statutes Annotated, as amended, will result in the Town of Berlin Vermont, through its appropriate constituted local authority, seeking enforcement of this Order of Abatement through judicial relief in an appropriate Court of Law of the State of Vermont.

On May 7, 1976, Napro filed a complaint for vacation of the abatement order and moved for a stay of the order. On May 17, 1976, the town filed a civil complaint in which it alleged that the entire stock in trade sold by Napro at Twin City News was obscene and constituted a public nuisance per se. On August 27, 1976, the Washington Superior Court issued its judgment order and the town filed a timely appeal.

I.

Appellee Napro has filed a motion to strike that portion of the appellant's brief which contains a detailed list of materials alleged to have been purchased at the appellee's place of business. Included in the pertinent portion of the appellant's brief is a detailed description of what those materials are purported to contain, as well as alleged quotations from those materials. Further, appellee has incorporated in that motion a request to the Court to ignore any of those materials offered by the appellant as purported exhibits on this appeal.

While the materials listed in the appellant's brief were also listed in Count 12 of the complaint filed by the town, our review of the record does not reveal that those materials, submitted in a locked metal box by the appellant, numbered Exhibit # 1, were ever admitted below. This Court will not examine the materials submitted as appellant's Exhibit # 1, and we grant the motion to strike, disregarding that portion of the appellant's brief. The materials and descriptions are not properly before us because they are not part of the record, and they have not and will not be considered on review. V.R.A.P. 10; First Vermont Bank and Trust Co. v. Village of Poultney, 134 Vt. 28, 31, 349 A.2d 722 (1975).

II.

The legal theory of the town is as follows. The Board of Selectmen of a town sitting as a local board of health may abate nuisances affecting the public health and destroy, prevent or remove unhealthful conditions. 18 V.S.A. § 610. They may seek to prevent or remove public nuisances by civil remedy in the superior court through injunctions or orders of abatement. 24 V.S.A. § 2121. The Board is endowed with a statutory power to define what constitutes a public nuisance, 24 V.S.A. § 2291(14), a statute which must be read in conjunction with the abatement power pursuant to 18 V.S.A. § 610. In addition, it argues that obscenity, a catch-all phrase for lewd and indecent writings and actions, was recognized at common law as a common law crime, hence it constitutes a public nuisance. The common law has been adopted by Vermont where it is not in conflict with statutory law. E.B. & A.C. Whiting Co. v. City of Burlington, 106 Vt. 446, 459, 175 A. 35 (1934). They conclude that the power exercised by the town in regard to this subject matter is not in conflict with 13 V.S.A. § 2801 et seq., which provides both civil and criminal procedures for dealing with obscenity.

The town urges us to include within the term "public nuisance" obscene materials in various formats so that commerce in these materials may be prevented by the use of abatement procedures against public nuisances. It argues: first, that obscenity was encompassed within the common law concept of public nuisance; secondly, that the United States Supreme Court has approved of the use in this manner of the civil remedies of injunction and abatement; and thirdly, that other states have approved of these remedies to prevent commerce in obscenity.

We believe that the concept of public nuisance is vague and amorphous, and we are cautious to employ it in circumstances where its application might intrude in the arena of speech and expression protected by both the First and Fourteenth Amendments of the United States Constitution and the Vermont Constitution, Chapter I, Article 13. While it is clear that obscenity and commerce in it are not protected expression, Paris Adult Theater I v. Slaton, 413 U.S. 49, 53, 93 S.Ct. 2628, 37 L.Ed.2d 446, reh. denied, 414 U.S. 881, 94 S.Ct. 27, 38 L.Ed.2d 128 (1973), it is also true that books and films are entitled to protection until there is a judicial determination that an item is obscene as prohibited by state law which meets the constitutional standard set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). ¹ Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Lovell v. City of Griffin, 303 U.S. 444, 451-52, 58 S.Ct. 666, 82 L.Ed. 949 (1938).

The Miller standard is a hotly debated legal topic, and its application in the context of crucial First Amendment rights is a difficult one. For example, Mr. Justice Stewart remarked, "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; (the then Roth test) and perhaps I could never succeed in intelligibly doing so. But I know it when I see it . . .." Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1964) (concurring opinion). The very evolution of the constitutional obscenity standard is testament to the difficulty of this subject. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966); Miller v. California, supra.

The late Dean William Prosser discusses the concept of nuisance in a law review article. Prosser, Private Action for Public Nuisance, 52 Va.L.Rev. 997 (1966). He describes it as a French word meaning harm, which entered into English law at an early date as a tort against land. Contemporaneously, a second similar yet distinct principle evolved, that of public nuisance, an infringement of the rights of the crown, hence a crime. Thus, the hallmark of nuisance was interference with some right. By degrees, the classes of offenses recognized as common nuisances expanded. Basically, they included the doing of acts not permitted by law and the failure to discharge a legal duty required by law thereby inconveniencing the public in its common rights. Id. at 998-99. Thus, to be considered a public nuisance, an activity must disrupt the comfort and convenience of the general public by affecting some general interest.

The town argues that identical Arizona and California public nuisance statutes (A.R.S. § 13-601; Cal.Civ.Code § 3479) should be considered generally to state the common law rule on nuisance. To constitute a public nuisance under ...