CALIFORNIA ex rel. COOPER, CITY ATTORNEY OF SANTA ANA, CALIFORNIA v. MITCHELL BROTHERS’ SANTA ANA THEATER et al.
No. 81-271.
Decided November 30, 1981
Per Curiam.
The petition for certiorari is granted limited to Question 2 presented in the petition, namely, whether a city, in a public nuisance abatement action brought against a motion picture theater, must prove beyond a reasonable doubt that the motion pictures at issue are obscene.
The Santa Ana City Attorney brought this action against respondents to abate a public nuisance pursuant to Cal. Civ. Proc. Code Ann. §731 (West 1980). The complaint alleged that numerous films shown by the respondents were obscene and thus constituted a public nuisance as defined by Cal. Civ. Code Ann. §§3479, 3480 (West 1970). The complaint sought, inter alia, court approval of a resolution passed by the Santa Ana City Council revoking all of respondents’ operating licenses and permits, a permanent injunction forbidding respondents to show the films named in the complaint, and a 1-year closure of respondents’ theater.
The trial court determined that the complaint presented both equitable and legal issues and ordered that a jury trial be held on the issues of obscenity, public nuisance, and damages prior to resolution of the equitable issues by the court. The jury trial was divided into liability and damages stages. After the evidence pertaining to obscenity and public nuisance had been presented, the jury was instructed that they could find the films at issue to be obscene only if they were persuaded of such “beyond a reasonable doubt.” The jury found 11 films obscene, 4 not obscene, and was unable to reach a verdict on 2 others.
Following a jury determination of damages, the court issued findings of fact and conclusions of law with respect to the equitable issues. The court found, independently from the jury verdict and based upon its own viewing, that the same 11 films were obscene beyond a reasonable doubt as the term obscene is defined in Cal. Penal Code Ann. § 311(a) (West 1970). There were cross-appeals, the city asserting, among other things, that the trial court erred in imposing the beyond-reasonable-doubt burden of proof. The California Court of Appeal affirmed on this issue. Relying on this Court’s observation that “the regulation of a communicative activity such as the exhibition of motion pictures must adhere to more narrowly drawn procedures than is necessary for the abatement of an ordinary nuisance,” Vance v. Universal Amusement Co., 445 U. S. 308, 315 (1980) (per curiam), and Justice Brennan’s statement that “the hazards to First Amendment freedoms inhering in the regulation of obscenity require that even in ... a civil proceeding, the State comply with the more exacting standard of proof beyond a reasonable doubt,” McKinney v. Alabama, 424 U. S. 669, 683-684 (1976) (concurring opinion), the court concluded that “one of the required procedures is that obscenity be proved beyond a reasonable doubt.” People ex rel. Gow v. Mitchell Bros.’ Santa Ana Theater, 114 Cal. App. 3d 923, 936, 171 Cal. Rptr. 85, 93 (1981). We reverse.
The purpose of a standard of proof is “to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” In re Winship, 397 U. S. 358, 370 (1970) (Harlan, J., concurring). Three standards of proof are generally recognized, ranging from the “preponderance of the evidence” standard employed in most civil cases, to the “clear and convincing” standard reserved to protect particularly important interests in a limited number of civil cases, to the requirement that guilt be proved “beyond a reasonable doubt” in a criminal prosecution. See Addington v. Texas, 441 U. S. 418, 423-424 (1979). This Court has, on several occasions, held that the “clear and convincing” standard or one of its variants is the appropriate standard of proof in a particular civil case. See Addington v. Texas, supra, at 431 (civil commitment); Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 52 (1971) (libel); Woodby v. INS, 385 U. S. 276, 285 (1966) (deportation); Chaunt v. United States, 364 U. S. 350, 353 (1960) (denaturalization); Schneiderman v. United States, 320 U. S. 118, 159 (1943) (denaturalization). However, the Court has never required the “beyond a reasonable doubt” standard to be applied in a civil case. “This unique standard of proof, not prescribed or defined in the Constitution, is regarded as a critical part of the ‘moral force of the criminal law,’ In re Winship, 397 U. S., at 364, and we should hesitate to apply it too broadly or casually in noncriminal cases.” Addington v. Texas, supra, at 428.
Thus while a State may require proof beyond reasonable doubt in an obscenity case, that choice is solely a matter of state law. The First and Fourteenth Amendments do not require such a standard. The judgment of the Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
So ordered.
The petition is otherwise denied.
Section 731 provides in pertinent part:
“An action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance, as the same is defined in section thirty-four hundred and seventy-nine of the Civil Code, and by the judgment in such action the nuisance may be enjoined or abated as well as damages recovered therefor. A civil action may be brought in the name of the people of the State of California to abate a public nuisance, as the same is defined in section thirty-four hundred and eighty of the Civil Code, ... by the city attorney of any town or city in which such nuisance exists . . . .”
Sections 3479 and 3480 provide in pertinent part:
“§ 3479. . . . Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, ... is a nuisance.”
“§ 3480. ... A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.”
See also People ex rel. Busch v. Projection Room Theater, 17 Cal. 3d 42, 49, 550 P. 2d 600, 603-604 (exhibition of obscene films may be characterized as “indecent” or “offensive to the senses”), cert. denied sub nom. Van de Kamp v. Projection Room Theater, 429 U. S. 922 (1976).
Section 311(a) reads:
“ ‘Obscene matter’ means matter, taken as a whole, the predominant appeal of which is to the average person, applying contemporary standards, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance.”
The court’s conclusion rested solely on federal grounds; no state authority was cited for the proposition that obscenity must be proved beyond a reasonable doubt.
The precise verbal formulation of this standard varies, and phrases such as “clear and convincing,” “clear, cogent, and convincing,” and “clear, unequivocal, and convincing” have all been used to require a plaintiff to prove his case to a higher probability than is required by the preponderance-of-the-evidence standard. C. McCormick, Evidence §320, p. 679 (1954). See also Kaplan, Decision Theory and the Factfinding Process, 20 Stan. L. Rev. 1065, 1072 (1968).
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