Soundgarden v. Eikenberry
| Citation | 871 P.2d 1050,123 Wn.2d 750 |
| Decision Date | 14 April 1994 |
| Docket Number | A-L,60093-7,Nos. 59947-5,s. 59947-5 |
| Court | United States State Supreme Court of Washington |
| Parties | , 62 USLW 2651, 22 Media L. Rep. 2385, 30 A.L.R.5th 869 SOUNDGARDEN, a musical group comprised of Matthew Cameron, Christopher Cornell, Hunter Benedict Shepard, and Kim Thayil; Howard Leese, Ann Wilson and Nancy Wilson, individuals and members of the musical group Heart; Anthony Ray, aka Sir Mix-ot; Criminal Nation, a musical group comprised of Mark Womack and Eugene DeHostos; Alice in Chains, a musical group comprised of Jerry Fulton Cantrell, Jr., Sean Kinney, Layne Staley, and Michael Starr; Chris Novoselic, an individual and member of the musical group Nirvana; Pearl Jam, a musical group comprised of Dave Abbruzzese, Jeff Ament, Stone Gossard, Mike McCready, and Eddie Vedder; Queensryche, a musical group comprised of Chris DeGarmo, Eddie Jackson, Scott Rockenfield, Geoff Tate, and Michael Wilton; Seven Year Bitch, a musical group comprised of Valerie Agnew, Elizabeth Davis, Stephanie Sargent, and Selene Vigil; Diane Schurr; A & M Records, Inc.; Atlantic Recording Corporation; BMG Music; Capitol-EMI Music, Inc.; C/Z Records; Elektra Entertainment; EMI Records Group, N.A.; Estrus Records; David Geffen Company, dba Geffen Records and DGC Records; Global Pacific Records, Inc.; GRP Records, Inc.; Island Records, Inc.; Joey Records, Inc.; MCA Records, Inc.; Nastymix, Inc.; Polygram Records, Inc.; Priority Records, Inc.; Profile Records, Inc.; Sony Music Entertainment, Inc.; SUB Pop Limited, Inc.; Warner Brothers Records, Inc.; WGR/SIRE Ventures, dba SIRE Records Company; Recording Industry Association of America, Inc.; Washington Music Industry Coalition, Inc.; Orpheum Records; Pterodactyl Tape and Disc; Rubato Records; Sound Effects; Tower Records, also known as MTS, Inc.; Alfred Burgo, III, dba D.T. Productions; Ian Coddington, a minor; Amy Davies, a minor, and Laura and Douglas Davies, her parents; Timothy Kaufman-Osborn; and Claire Matson, a minor, Respondents/Cross-Appellants, v. Kenneth O. EIKENBERRY, in his official capacity as Attorney General for the State of |
Preston, Thorgrimson, Shidler, Gates & Ellis, Paul J. Lawrence, Floyd G. Short, Davis Wright Tremaine, Daniel Waggoner, Debora K. Kristensen, Seattle; David E. Leibowitz, Washington, DC, of counsel, and Norm Maleng, King County Prosecutor and Dennis C. McMahon, Senior Deputy County Prosecutor, Seattle, WA, for respondents.
The State 1 appeals direct to this court from an order of the King County Superior Court declaring unconstitutional the "Erotic Sound Recordings" statute (House Bill 2554, Laws of 1992, ch. 5, codified as RCW 9.68.050, .060, .070 and .090, and also known as the "Erotic Music Statute") and permanently enjoining its enforcement. Respondents/Cross Appellants, Soundgarden, et al., 2 defend the judgment of the trial court, but appeal from its order denying attorney fees and costs. 3 We affirm the Superior Court.
On March 20, 1992, Governor Booth Gardner signed the "Erotic Sound Recordings" statute 4 which became effective On June 23, 1992, plaintiffs (Respondents/Cross Appellants) filed in the King County Superior Court a complaint for declaratory judgment, claiming that the "Erotic Sound Recordings" statute (also known as the "Erotic Music Statute") is unconstitutional as a violation of, and prior restraint upon, free speech and due process under the federal and state constitutions. They also sought a permanent injunction against its enforcement and sought attorney fees and costs under 42 U.S.C. § 1988 and § 1983. Defendants (the State) responded that the law is constitutional. All parties agreed that this is a facial challenge to the statute.
June 11, 1992. According to plaintiffs (Respondents/Cross Appellants here) and their supporters who filed affidavits and declarations, the statute interferes with their ability to express themselves, manage their businesses, and access ideas; and interferes with society's notion of a free marketplace of ideas and, in general, the evolution of society itself. 5 The claims made in these affidavits and declarations were not directly challenged by the State
The "Erotic Sound Recordings" statute has not been enforced to date. King County Prosecuting Attorney Norm Maleng, a defendant at trial (Interested Party here), has not appealed the orders of the trial court. He claims there is no evidence he has attempted to enforce, or in the future would attempt to enforce, the statute and that therefore he should not be a designated party in this action and should not be required to pay attorney fees and costs if they are awarded. 6 While Snohomish County Prosecuting Attorney Seth Dawson was named as a defendant on the Summons and Complaint, he was dismissed from the case early in the proceedings. 7
The King County Superior Court, the Honorable Mary W. Brucker, determined that the statute was void on its face for vagueness; and that it constituted a prior restraint upon speech in violation of the federal and state constitutions because it did not provide adequate notice to persons who might be prosecuted under its provisions and because it allowed a judge to decide what is fundamentally a jury question. She also determined that the bifurcated nature of the statute's application violates the due process requirement that every element of a crime must be proved beyond a reasonable doubt. 8 On October 29, 1992, Judge Brucker also granted an order permanently enjoining enforcement of the statute. 9 A written order was filed on November 20, 1992. 10
At the hearing on November 20, 1992, it was agreed that a petition for attorney fees and costs would be filed separately. On December 17, 1992, Kenneth O. Eikenberry, as Attorney General, filed a notice of appeal to this court of the order of the trial court granting the permanent injunction and declaratory judgment. Norm Maleng, as King County Prosecuting Attorney, did not appeal that order.
On December 18, 1992, plaintiffs filed in the trial court a petition for award of attorney fees and costs under 42 U.S.C. § 1988. The State (both Kenneth O. Eikenberry and Norm Maleng) claimed the proceeding was a declaratory action under RCW 7.24 and not a civil rights complaint under 42 U.S.C. § 1983. It argued that since no attempt was ever made to enforce the "Erotic Music Statute," there is no violation of the plaintiffs' rights by an individual "under color of state law." Kenneth O. Eikenberry also asserts the definition of "individual" under § 1983 may include a county or A hearing was held on January 22, 1993. On February 11, 1993, Judge Brucker denied attorney fees and costs, stating that the action was only for declaratory judgment under RCW 7.24 and not a civil rights complaint under 42 U.S.C. § 1983. 12 On March 1, 1993, plaintiffs (Respondents/Cross Appellants) filed a notice of appeal to this court of the order of the trial court denying attorney fees and costs.
municipal official, but under Washington law does not include the state or any state official. 11
On March 15, 1993, plaintiffs (Respondents/Cross Appellants) filed a motion to consolidate their appeal with that of the State. The appeals were consolidated on March 29, 1993. This court granted direct review of the consolidated appeals on September 1, 1993.
The questions presented in this case are whether the "Erotic Sound Recordings" statute (also known as the "Erotic Music Statute," House Bill 2554, Laws of 1992, ch. 5; RCW 9.68.050, .060, .070, and .090), is unconstitutional and whether Respondents/Cross Appellants (plaintiffs in the trial court) are entitled to an award of attorney fees and costs under 42 U.S.C. § 1988.
There are no findings of fact in this case. A statute has been declared unconstitutional by the trial court. Under these circumstances this court reviews the case de novo. 13 "Where statutory language is plain and unambiguous, a statute's meaning must be derived from the wording of the statute itself." 14 In obscenity cases, "[a]lthough Miller [v California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) ] required state law to specify the type of sexual acts which may be obscene, state courts are allowed to construe state statutes so as to cure any facial deficiencies." 15 However, a court may not strain to interpret the statute as constitutional: a plain reading must make the interpretation reasonable. 16
In 1992 the Legislature amended RCW 9.68.050, .060, .070 and .090 to include sound recordings in the list of materials which could be considered erotic if they otherwise meet the test for obscenity adjusted to apply to minors. These provisions were originally enacted in 1969 17 and were based upon several United States Supreme Court opinions which announced the test for obscenity. The obscenity test is codified as a definition of "erotic material" under RCW 9.68.050(2), which reads:
(2) "Erotic material" means printed material, photographs, pictures, motion pictures, sound recordings, and other material the dominant theme of which taken as a whole appeals to the prurient interest of minors in sex; which is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters or sadomasochistic abuse; and is utterly without redeeming social value.
The test for obscenity has been upheld by the United States Supreme Court as not violative of the First Amendment to the United States Constitution. In Ginsberg v. New York, 18 the court observed that "g...
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