Tipp-It, Inc. v. Conboy, S-98-096.

• Decision Date: 09 July 1999
• Docket Number: No. S-98-096.,S-98-096.
• Citation: 596 N.W.2d 304,257 Neb. 219
• Parties: TIPP-IT, INC., a Nebraska Corporation, Appellant, v. Martin J. CONBOY, City Prosecutor, Omaha, Douglas County, Nebraska, Appellee.
• Court: Nebraska Supreme Court

596 N.W.2d 304

257 Neb. 219

TIPP-IT, INC., a Nebraska Corporation, Appellant, v. Martin J. CONBOY, City Prosecutor, Omaha, Douglas County, Nebraska, Appellee.

No. S-98-096.

Supreme Court of Nebraska.

July 9, 1999.

Jeffrey A. Silver, Omaha, for appellant.

Alan M. Thelen, Assistant Omaha City Attorney, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

HENDRY, C.J.

I. PROCEDURAL HISTORY

Tipp-It, Inc., a Nebraska corporation, and Terry Tippit, the operator of the "Run Bar" (jointly referred to as "Tipp-It"), brought a declaratory judgment action pursuant to Neb.Rev.Stat. § 28-820 (Reissue 1995), seeking a judgment that certain putative works of art, namely exhibits 1 through 3, were not obscene within the definition of obscenity contained in Neb. Rev.Stat. § 28-814 (Reissue 1995). Martin J. Conboy, the Omaha City Prosecutor, filed an answer and counterclaim generally denying Tipp-It's contentions and affirmatively alleging that the continued exhibition of the works constituted a public nuisance. After a bench trial, the Douglas County District Court declared exhibits 1 through 3 to be obscene. Tipp-It filed a notice of appeal and a petition to bypass. We granted Tipp-It's petition to bypass, see Neb.Rev.Stat. § 24-1106 (Reissue 1995), and now affirm.

II. FACTUAL BACKGROUND

Tipp-It operated a bar located at 1713-15 Leavenworth Street, Omaha, Nebraska, under the name "Run Bar." Tipp-It has operated the Run Bar since August 24, 1994, catering solely to a gay clientele. The Run Bar has a liquor license covering 1713-15 Leavenworth Street, including the main floor, a loft area, and a basement. The basement contains a full bar, chairs to sit on, and a pool table. The basement is utilized Thursday through Sunday by individuals over 21 years of age from 8 p.m. until 1 a.m. The primary activity of the Run Bar consists o socialization.

The works in question were displayed in the basement of the Run Bar. The matter in question came to light when local fire inspectors examined the basement of the Run Bar pursuant to Tipp-It's request for a certificate of occupancy. The fire inspectors complained to the Omaha Police Division regarding several works being displayed on the walls of the basement. On December 13, 1994, Sgt. Ronald Cole appeared at the Run Bar to investigate the complaint. Cole arrived at approximately 10 p.m., when the bar was open, and walked into the basement. Cole viewed various works displayed in the basement (22 total), seizing 3 works he suspected as violating the obscenity laws for the State of Nebraska (exhibits 1 through 3).

As a result of subsequent discussions between Conboy and Tipp-It's counsel, the parties determined that a declaratory judgment action would be initiated to ascertain whether the works were obscene. The works depicted in exhibits 1 through 3 were then returned to Tipp-It with the understanding that the works would not be displayed pending a resolution of this action.

Tipp-It filed a petition for declaratory judgment on March 9, 1995, and the case proceeded to trial on May 5, 1997. The Douglas County District Court described the works in question as follows:

(C) Exhibit 1 is a photograph of a drawing or sketch of eight, possibly nine men, all clearly adults. All are either naked or have exposed genitalia. Four of the men display penises which are erect and of exaggerated dimensions. One appears to have just completed anal intercourse with another man. Water or semen appears on the table or bench on which this man rests. In the lower right-hand corner a man appears to be undergoing anal penetration.

(D) Exhibit 2 is a photograph of a drawing or sketch of two men, both of whom are naked and have erect penises which are of exaggerated dimensions. The man who [is] seated is performing fellatio on the man who is standing. Semen appears to be dripping from the mouth of the seated man. The standing man is wearing a Civil War-era cap....

(E) Exhibit 3 is a photograph of a display which is itself either a photograph or painting. In it, a bearded man appears to be undergoing anal penetration by a standing man who has a"Mohawk" haircut....

The testimony adduced at trial was provided by Cole; Conboy; Tippit; and Dr. Roger Aikin, an expert witness. On December 29, 1997, the district court entered an order finding exhibits 1 through 3 obscene within the meaning of Neb.Rev.Stat. § 28-807(10) (Reissue 1995). The court ordered exhibits 1 through 3 to be surrendered to the Douglas County sheriff, destroyed, or removed from the state.

III. ASSIGNMENT OF ERROR

Tipp-It's sole assignment of error is that the Douglas County District Court erred in finding exhibits 1 through 3 obscene within the meaning of § 28-807(10).

IV. STANDARD OF REVIEW

The appropriate standard of review for obscenity cases was recently articulated in State v. Harrold, 256 Neb. 829, 593 N.W.2d 299 (1999).

In reviewing a fact finder's determination that certain material is obscene, the threshold duty of an appellate court is to conduct an independent review and determine, as a matter of constitutional law, if the material falls within the substantive limitations set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), i.e., is the material the type of "hardcore" sexual material that may be constitutionally regulated under the First Amendment. Thereafter, the appellate court must review the determinations of the trier of fact pursuant to the three-part obscenity standard set forth in Miller v. California, supra, and § 28-807(10). In so doing, the appellate court should give appropriate deference to the trier of fact regarding the first two prongs of the test, i.e., the "prurient interest" test and the "patently offensive" test, as these issues depend on knowledge of "contemporary community standards" which are uniquely within the province of the trier of fact. State v. Harrold, supra.

In a bench trial of a law action, a trial court's factual findings have the effect of a jury verdict and will not be set aside on appeal unless they are clearly wrong. Hilliard v. Robertson, 253 Neb. 232, 570 N.W.2d 180 (1997).

Finally, the appellate court should apply a de novo review in considering the third prong of the Miller v. California test, i.e., the "value" of the material at issue, since this determination does not depend upon community standards and is particularly amenable to appellate review. State v. Harrold, supra. In a de novo review, an appellate court reaches a conclusion independent of the trial court. Eggers v. Rittscher, 247 Neb. 648, 529 N.W.2d 741 (1995).

V. ANALYSIS

1. BURDEN OF PROOF

Before proceeding with our analysis under Miller v. California, supra, we note that this court has never directly determined the appropriate burden of proof to be applied in civil obscenity cases brought pursuant to § 28-820. The district court determined the appropriate burden was proof beyond a reasonable doubt, stating that "given the issues of freedom of speech and freedom of expression at stake, and given that this proceeding arises under the criminal code, the defendant bears a burden of proving beyond a reasonable doubt that Exhibits 1 through 22, or any of them, are obscene." We agree.

Section 28-820 provides, in pertinent part,

Any person who exhibits ... or is about to exhibit ... or is about to acquire possession with intent to exhibit... any work, material, conduct or live performance shall, if such person has genuine doubt as to the question of whether such work, material, conduct or live performance is in fact within the terms and provisions of sections 28-807 to 28-829, have the right to bring an action in the district court for declaratory judgment under the Uniform Declaratory Judgments Act against the appropriate chief law enforcement officer of the city ... in which the work, material, conduct or live performance is located or is intended to be ... exhibited, for a judicial determination as to whether or not such work, material, conduct or live performance is obscene.

Neither the text nor the legislative history of § 28-820 indicates the Legislature's intent regarding the appropriate burden of proof. See Goolsby v. Anderson, 250 Neb. 306, 549 N.W.2d 153 (1996). We must therefore construe § 28-820 in a fashion which avoids an absurd, unconscionable, or unjust result. See State ex rel. Neb. Health Care Assn. v. Dept. of Health, 255 Neb. 784, 587 N.W.2d 100 (1998).

Basic civil jurisprudence indicates that the burden of proof in declaratory judgment actions is a preponderance of the evidence and the burden is to be borne by the plaintiff. See, 2 Walter H. Anderson, Actions for Declaratory Judgments § 375 (2d ed.1951); 22A Am.Jur.2d Declaratory Judgments § 231 (1988 & Cum.Supp.1999). At least one court has applied this standard in a civil obscenity case irrespective of the First Amendment issues involved.

In Penthouse Intern., Ltd. v. Webb, 594 F.Supp. 1186 (N.D.Ga.1984), a magazine publisher brought a civil rights action against the county solicitor general seeking a declaratory judgment to enjoin enforcement of the state obscenity statute with respect to distribution of the magazine. The plaintiff argued that the materials were protected by a presumption of nonobscenity and that the presumption could be defeated only if the materials were found obscene beyond a reasonable doubt. The court rejected this claim and stated:

On its theory, all plaintiff would have to do in its affirmative action for a declaratory judgment is to show that there is a reasonable doubt that the issues are obscene. Plaintiff thus wants to have its cake and eat it too: it wants to force [the state] to prove [its] case as a defendant instead of as a prosecutor, by the criminal standard instead of by a preponderance of the evidence, in a federal civil action instead of a state criminal prosecution.

Plaintiff's suggestion is untenable. The Supreme Court has

...