Chapman Law Review
PUBLIC NUISANCE AT THE CROSSROADS: POLICING THE INTERSECTION BETWEEN STATUTORY PRIMACY AND COMMON LAW
Copyright (c) 2012 Chapman Law Review; Richard O. Faulk; John S. Gray
In a previous article, we examined recent attempts to transmute the traditional tort of public nuisance from its traditional elements into an expansive remedy that subsumes the law of product liability. Only a few months after that article was published, the Rhode Island Supreme Court rejected the expansive use of public nuisance as a substitute for traditional product liability litigation regarding lead-based paints. In so holding, Rhode Island joined other state high courts that previously reached the same conclusion. Of the original public nuisance claims filed in the massive controversy regarding lead paints, only those in California remain pending–and they face an exacting review under a jurisprudence with unique history and traditions.
Public nuisance, therefore, is at a “crossroads” in California. The California lead paint litigation may be the end–or a new beginning–of mass tort proceedings against product manufacturers based upon public nuisance, as opposed to traditional strict product liability. The controversy lies squarely at the intersection of statutory and common law–an interchange that has grown increasingly more complex since California’s laws were codified in 1850, and since public nuisance was codified as a tort in 1872. The dispute is framed by this singular legal history and the complex jurisprudence the state has developed to simultaneously empower and restrain the creativity of common law courts in such cases. As a result, those historical perspectives and contexts must be appreciated and studied before honest prognostications can be made.
The California litigation represents the resurgence–or the ebbing–of a tide of public nuisance litigation that has swept the nation over the past decades. In those years, private citizens, cities, counties, states, and other public authorities have increasingly asked courts–as opposed to the Legislature–to solve large societal problems by characterizing problems as “public nuisances.” In the 1970s, lawyers began the movement to breathe life into the ancient tort as a tool to resolve problems, which adversely affected large numbers of people, as opposed to distinct individuals. Specifically, they invoked public nuisance to sue manufacturers for making and selling products allegedly responsible for creating public health and safety problems. Their first–and unsuccessful–attempts were filed against manufacturers of products that caused air pollution and manufacturers of asbestos products. Their efforts finally gained momentum during the tobacco litigation of the late 1990s, where it was asserted that public nuisance claims played a role in forcing the tobacco industry to the settlement table.
Since then, state and local governmental authorities have increasingly championed public nuisance as a vehicle to pursue mass tort suits against manufacturers of products believed to cause harm to vast numbers of citizens. With each new lawsuit, creative attorneys have retooled and refined their legal arguments–seeking ways to overcome precedents against holding manufacturers of lawful products liable for creating public nuisance for simply marketing and selling a product. Over the past decade, public entities in California have attempted to use public nuisance as a means to address diverse and complex societal problems, such as:
Admittedly, most citizens would like to eliminate, or at least mitigate, these problems–but that concern does not necessarily justify judicial intervention. To date, the California Supreme Court has yet to decide whether public nuisance is an appropriate vehicle for governmental authorities to redress societal harms allegedly created by product manufacturers, although it is increasingly likely that the court will have the opportunity to do so in the lead paint litigation.
The attraction of public nuisance as a new remedy is superficially understandable, but fundamentally elusive. Perhaps private and governmental attorneys believe that public nuisance is a uniquely appropriate candidate for “remolding” into a “super tort”–appropriate because it is a nebulous, ill-defined, “catch all” tort that can be raised in virtually any situation where defendants are alleged to have engaged in broadly injurious or offensive behavior. Perhaps they believe that this vagueness makes the tort more malleable than traditional product liability claims, and hence more adaptable and flexible to meet society’s needs. Whatever these advocates may surmise, they should not presume that California nuisance law is not constrained by significant precedents. Any California Supreme Court decision regarding the tort’s utility and applicability certainly will not be written on a “blank slate.” Indeed, public nuisance has a long and colorful history in California, and California courts have been resolving public nuisance disputes since the early days of statehood.
This Article chronicles the use and development of the tort of public nuisance in California, focusing on the types of circumstances in which its use was approved. It discusses the historical foundations of California’s jurisprudence and the impact of that history on the construction and application of “common law” remedies such as public nuisance. It reviews the nature and elements of public nuisance, and then frames and substantiates the unique position in which California courts find themselves regarding public nuisance, particularly when product claims are involved. California, the state viewed by many as the origin of strict product liability, must now decide whether its courts will preside over the dissolution of its principles. Those courts stand as gatekeepers for a new mass tort theory, and they must decide whether they will–or will not–admit a transmuted cause of action that has been specifically engineered to displace long-established rules that govern the liabilities of product manufacturers.
I. The Jurisprudential Foundations of Public Nuisance
The law of public nuisance is ancient, as are the confusion and debates regarding its meaning. The tort can be traced to the feudalism of the Middle Ages and was transported to America by the earliest English settlers. Despite its persistent viability, the tort has always been difficult to understand and apply. Predictably, when Horace Wood published the first American treatise on nuisance in 1875, he described public nuisance as a “wilderness of law.” Later, William Prosser, reporter for the Restatement (Second) of Torts, described nuisance law as an “impenetrable jungle,” and as a “‘legal garbage can’ full of ‘vagueness, uncertainty and confusion.”’
Some jurists tried to dispel this confusion. For example, United States Supreme Court Justice George Sutherland once described a public nuisance as “merely a right thing in the wrong place–like a pig in the parlor instead of the barnyard.” His observation is consistent with the legal maxim “sic utere tuo ut alienum non laedas,” which means that property is held subject to the condition that its use should not injure others or impair the public right and interests of the community. This principle is the foundation of the common law of nuisance, and, significantly, it was so recognized by California in 1872. At that time, California’s Legislature enshrined it in state law by declaring that “[o]ne must so use his own rights as not to infringe upon the rights of another.” Since then, the California Supreme Court has held that the maxim “implies that one may make any use which he pleases of his own [property] so long as he does not injure others.”
Despite this maxim, the California Supreme Court has not entirely avoided the complications that have plagued the tort for centuries. For example, it described a “public or common nuisance . . . [as] a species of catch-all criminal offense, consisting of an interference with the rights of the community at large.” Moreover, it recently stated that the “doctrine is aimed at the protection and redress of community interests and, at least in theory, embodies a kind of collective ideal of civil life.” Descriptions such as these, along with the unusually wide variety of cases in which judges have applied the law of public nuisance, have led scholars to describe this doctrine as “notoriously contingent and unsummarizable.” Notwithstanding this bleak observation, and despite a host of other articles that have described the development of public nuisance, it is still useful–indeed necessary–to review its history and, for the purposes of this article, examine how California’s Legislature has established public nuisance in its civil code, and to study how California’s courts have applied this ancient tort.
A. Origins in England
It is generally agreed that English common law courts created the tort of nuisance during the twelfth century. Originally, it was only available to the Crown and was utilized to stop people from encroaching on the King’s land or blocking a public road or waterway. The sheriff prosecuted it as a crime, and consequently, the tort has always been closely tied to the government’s use of its police powers. The majority of early nuisance cases were brought to remedy violations of property rights. On rare occasions, however, early nuisance cases were brought to remedy offensive activities not tied to property (for example, “helping a ‘homicidal maniac’ to escape, being a common scold, . . . selling rotten meat, [and] embezzling public funds”). Accordingly, the authority to commence public nuisance actions was not derived from a private “tort” concept, but rather from what is now known as the sovereign’s “police power.”
Between the twelfth and sixteenth centuries, public nuisance remained a “criminal” tort reserved for the King. Citizens were not allowed to bring nuisance claims in their own names to recover for harms inflicted by others against them and their neighbors. This limitation ended in the sixteenth century, after a dissenting justice opined that ordinary citizens should be allowed to sue and recover damages caused by public nuisances in certain situations. As a result, private citizens were given the right to sue for public nuisance, but only if they could prove that they “suffered a ‘particular’ or ‘special’ injury that was not common to the public.” To be special, the injury had to be “different in kind,” not just more severe than that suffered by the general public. Another important distinction between public nuisance actions brought by the Crown and those brought by the general public was the remedy available. Private citizens were limited to seeking monetary damages because injunctive relief or abatement remedies were solely reserved for the Crown. As a result, the law of nuisance began to subsume elements of criminal law, real property law, and tort law.
Gradually, English common law courts allowed persons other than the Crown to bring public nuisance actions to address public concerns, such as “the right to safely walk along public highways, to breathe unpolluted air, to be undisturbed by large gatherings of disorderly people and to be free from the spreading of infectious diseases.” During this period, many public nuisance cases involved people blocking highways, encroaching on highways, or dumping all sorts of garbage on them. They also addressed the blockage of waterways and flooding, as well as the pollution of streams and ponds used as a source of water for people and livestock, and problems created by allowing diseased animals to roam. Finally, they also dealt with activities not directly related to property violations, such as the selling of unfit food stuffs, short-selling food or ale, inappropriate hunting practices (for example, catching immature game or hunting out of season), closing bawdy-houses and disorderly ale-houses, night-walkers, and eavesdroppers. In medieval times, public nuisance was used to address conflicts between land use and social welfare because it provided judges (who lacked guidance from legislative bodies on what society deemed to be unreasonable behavior) with a flexible judicial cause of action that allowed them wide latitude and discretion to adapt their rulings to remedy wrongs. It would be another couple of hundred years before the extraordinary power held by judges to use the common law tort of public nuisance to address some of society’s more pressing problems was curtailed, constrained, and limited by legislative enactments.
B. Entry into American Jurisprudence
As citizens of English ancestry began colonizing America during the sixteenth and seventeenth centuries, they brought with them the English system of justice. This included the common law tort of public nuisance, which was generally adopted in Colonial America without change. Early American nuisance cases typically fell into one of two categories: either dealing with people blocking highways or waterways, or stopping perceived invasions of public morals. Over time, as America expanded westward and the industrial revolution took hold, our society gradually shifted from agrarian to industrial. This change did not always come smoothly. While new inventions brought with them efficiency, speed, and opened new horizons, they also brought noise, air and water pollution, and many other less desirable consequences. Given the fact that noxious trades, and unsanitary and smelly conditions were historically treated as public nuisances in England, it is not surprising that this remedy was adopted in America to address similar conditions.
It should be remembered that before the onset of the twentieth century, there was very little state legislation regulating or prohibiting pollution or otherwise governing the activities of most businesses. Without such regulations, people engaged in business generally were free to run their operations and facilities as they pleased, and most health and safety-related restrictions were viewed by businessmen as unnecessary and unwanted restrictions that put them at a competitive disadvantage. Consequently, the only redress often available to citizens and/or governmental authorities was a public nuisance lawsuit.
Increasingly in recent times, however, legislatures, with their unique ability to weigh and balance the public interest, have sidestepped the need for public nuisance litigation. They have employed their investigative resources and diverse deliberative resources to enact a vast tapestry of statutes and regulations–provisions that set forth and define minimum societal norms outside of the common law process. These new laws not only set forth conduct expected from the business community and general citizenry, but also outlined comprehensive solutions to an extraordinarily wide variety of conflicts between land use and social welfare, including but not limited to pollution and public health concerns. In many of these enactments, legislatures even specified the activities and behaviors that constituted nuisances. These laws limited the judiciary’s “common law” discretion because they required judges to consider whether, and to what degree, legislatures approved of an activity when determining the existence of the nuisance. As we will see below, this is particularly true in California where the Legislature’s role in defining public nuisances is well established.
C. Historical Roots of Public Nuisance Litigation in California
i. Early Days
California grew from diverse peoples and cultures–and it did so perhaps more quickly and violently than any other American state. Those influences, which profoundly affected California’s government and legal systems, persist today in the interactions between codified laws and the common law process–particularly regarding the law of public nuisance.
Prior to the Mexican-American War, California was a remote northern Spanish province, sparsely populated by a series of missions dedicated to spreading Christianity to the local natives. When the war ended in 1848, Mexico ceded all land north of the Rio Grande River to the United States (including what is now California) in return for fifteen million dollars. California then became an official territory of the United States with a population estimated between 7300 and 14,000. The Treaty of Guadalupe Hidalgo, under which Mexico ceded California to the United States, guaranteed the protection of property interests vested previously under Mexican law.
During this period, California’s only source of governmental authority was the American military, which proved wholly inadequate after gold was discovered at Sutter’s Mill on the American River in 1848. Because of the gold rush, California’s population jumped to more than 90,000 people by the end of 1850, and then leaped to more than 300,000 by 1854 as people from around the world rushed to California. This dramatic influx of settlers, coupled with the extreme wealth to be made, resulted in violence and ethnic conflicts– as well as hosts of disputes regarding mineral interest claims and property interests. As a result, Congress was urged to establish a civilian government. Californians held a constitutional convention in Monterey in 1849 to draft a constitution establishing the state’s government. Shortly thereafter, Congress agreed to admit California as the thirty-first state on September 9, 1850. Shortly thereafter, the property interest guarantees provided by the Treaty of Guadalupe Hidalgo were finally implemented by the California Land Act of 1851, which provided a commission to resolve private land claims regarding titles “derived from the Spanish or Mexican government” using, among other authorities, “the laws, usages, and customs of the government from which the claim is derived.”
ii. Creating a Legal System
One of the first issues Californians faced was deciding upon a foundation for their legal system. With its historical ties to Mexico, the Civil Code system was familiar to many citizens–but others, especially newly arrived citizens who emigrated to the United States, were acclimated to English common law systems. Since there were–and still are–important differences between the civil law and common law systems, uniformity was essential to ensure personal, property and financial stability. The civil law relies on codes to establish controlling principles, while the common law derives its precepts from decisions by judges. Another fundamental divide concerns the rights to confront witnesses and jury trials, which are guaranteed in most common law nations. By contrast, juries are generally not used in civil law and evidence is regularly presented to the court in written statements.
After some debate, Californians decided to adopt the English common law, partially because they believed there was insufficient time to create and enact a codified system of laws. Despite this concern, however, California’s first Legislature actually codified substantial portions of the common law, creating a framework that, to a greater or lesser extent, appeared to constrain judicial creativity with legislative definitions and guidance. Laws were enacted regarding crimes, criminal procedure, civil procedure, probate procedure, and corporations, “with the result that substantial portions of the law were in effect codified for the time being.” The complex codes provided detailed standards that were intricately divided into parts, titles, and chapters, and consisted of hundreds of sections. As a result, California’s new “common law” courts were not entirely “free” to derive and circumscribe new “common law” rights and remedies in all areas of the law; instead, they could only do so when the codes were silent. Although California courts have departed from this rule in certain contexts over the years, this deferential tradition has persisted in California’s jurisprudential history regarding public nuisance.
Although the first Legislature’s reasoning is not documented thoroughly, it is tempting to speculate that the codifications reflected a reluctance to entirely abandon the certainty of firm legal rules–which characterized the Mexican Civil Code–to the discretion of common law courts informed by the principles of stare decisis. Perhaps because of that reluctance, they rushed to replace the abandoned Civil Code with statutes enshrining many common law principles they valued from the United States and its territories. Unlike common law nations, civil law systems generally eschew judicial discretion. Common law legal principles reflect a “preference for pluralism” and the “prominence of ‘reasonableness”’–qualities that are largely foreign to civil law jurisprudence. Unlike the civil law, the common law does not always insist on the “right answer”; instead, only a reasonable approach is required, defined as an approach that accepts that a problem may have “many reasonable answers” depending on a controversy’s facts. Civil law systems, on the other hand, primarily depend upon specific statutes, regulations and rules–principles adopted in the parliamentary process and enforced by a relatively inflexible judiciary. Whatever their reasoning, the first Legislature decided to give the “common law” a framework that, to a greater or lesser extent, appeared to guarantee the applicability of certain legal rules, rather than depending on the courts to recognize them on a case-by-case basis.
Although the Mexican Civil Code did not officially survive in California, the primacy of codified laws regarding certain issues nevertheless persisted after its demise, and led to the creation of a “hybrid” system that was neither fully codified nor completely “common law.” Despite the decision to adopt a common law system, the banishment of the Mexican legal system was “neither absolute nor immediate,” and “fragments of civil law penetrated the 1850 common-law barrier, at least in the area of property law.” For example, although the Mexican-American War threw the Mexican “Alcalde system” of local administration into disarray, the system was restored by the American military government. Wherever a population of Americans assembled, an American Alcalde was formed. Significantly, the California Supreme Court recognized these Alcaldes and melded them into the state’s legal system using common law techniques. The court also applied civil law principles to resolve disputes. Hence, aspects of the civil law persisted “by preference and legal necessity for some time after California” adopted a common law system.
iii. The Interpretation of California’s Codes
The first Legislature’s initial codification was quickly deemed imperfect. Less than two years after the first session, state officials began calling for “an entire revision” of the code, and the debate raged almost continuously throughout California’s first twenty years of statehood. During those years, all attempts to revise the early codes were unsuccessful, but eventually an agency was created in 1870 to revise and codify all of California’s laws. Ultimately, a comprehensive code was enacted in 1872, and it was hailed as “an example which will be speedily followed by all her sister states, adding new laurels to the fame which she has already so justly acquired.” Thus began California’s extended affair with comprehensive codification–an affair whose long and tortured history has already been chronicled by others in masterful detail.
It is important to note that the tension between California’s codifications and traditional “common law” ideas has produced a unique jurisprudence–one which, in the context of public nuisance, creatively accommodates both statutory primacy and the common law. The intersection between statutory and common law, which has been decisive in resolving attempts to transmute public nuisance principles in other states, is even more critical in California. Previously, we have written about the great legal “tapestry” that exists in America, woven with strands of legislative enactments, administrative regulations, and the common law. All modern courts construing this network of principles are necessarily influenced by their interrelationships, but no American courts have a longer history of working within the tapestry than those of California. California was the very first state in America to codify its laws comprehensively. In California, unlike many other common law jurisdictions, codes have always been an essential part of the legal system. As a result, the interaction between California’s codes and common law principles has more than historical interest. Indeed, the dynamic interplay between codified and common law is so compelling that “[i]t is difficult, if not impossible, to find another topic in American legal history with so many and different implications and consequences for the development of American law and jurisprudence.”
Although California plainly intended that its early codifications should control over common law principles to the extent of a conflict, the codes were plagued by uncertainties, vagueness, and incompleteness. They were severely criticized for those conditions, but the Legislature generally failed to revise and correct them promptly and adequately. For this reason, promoters of the codes advocated a compromise between statutory primacy and the common law. The compromise suggested that courts could, for the time being, cure the codes’ deficiencies by construing them, when possible, consistently with common law principles. As John Norton Pomeroy, one of the compromise’s architects, stated:
We thus reach the conclusion that the element of certainty should not be attained in a code by a sacrifice of all these other peculiar features which belong to the common law; but on the contrary, these distinguishing excellencies of the common law should be preserved and maintained in connection with the “certainty” which, it is claimed, accompanies statutory legislation.
Pomeroy, a professor at the University of California Hastings College of the Law, was one of the greatest advocates of codification, and he clearly believed that the common law and the codes were compatible. He was concerned, however, that the authors of California’s Civil Code had not sufficiently defined and retained many material aspects of the common law. To cure this problem, he proposed that the courts interpret the codes consistently with the common law, “regarding the code[s] as being declaratory of the common law’s definitions, doctrines and rules.”
Pomeroy’s compromise therefore incorporated both statutory primacy and common law principles as a means to interpret and, if necessary, develop and clarify the Code’s provisions. Clearly, in the Code’s incomplete and ambiguous state, courts could not regard the text alone as the only authority. He therefore derived a “fundamental proposition” that provided:
Except in comparatively few instances where the language is so clear and unequivocal as to leave no doubt of an intention to depart from, alter, or abrogate the common law rule concerning the subject-matter, the courts should avowedly adopt and follow without deviation the uniform principle of interpreting all the definitions, statements of doctrines, and rules contained in the code in complete conformity with the common law definitions, doctrines, and rules, and as to all the subordinate effects resulting from such interpretation.
In this manner, the power of the Code as a statute guaranteeing “certainty” was maintained–together with the flexibility of common law courts to construe “new, hitherto unused, and ambiguous phraseology” as not intended to change existing rules “unless the intent to work such a change was clear and unmistakable.” Since the new California Code contained many departures from the common law, Pomeroy’s thesis elegantly empowered the Code’s new ideas, guaranteed the stability of surviving common law principles, and provided guidance to courts entrusted with interpreting and applying its rules. His reasoning proved so persuasive that California courts explicitly adopted it in 1888. As a result, the compromise between statutory primacy and common law was formally enshrined in California’s jurisprudence, where it remains today as a declaration of democratic priorities and a guide for judicial discretion.
Since 1901, history has demonstrated that California’s codes are no less dynamic than the common law itself. As Kleps so aptly observed, “[i]f any rule is to be deduced from California’s one hundred years of statutory revision, it is that change is the condition of our existence and that a continuous modification of our statutes must be expected.” Because of this dynamism, and because of the state’s historic roots in statutory primacy, California’s judiciary is continuously refreshed, informed and guided by the people’s representatives regarding codified concerns–perhaps more so than the courts of any other state. Indeed, as we have seen with recent decisions, the people may even instruct them directly by propositions.
As a result of these situations, California courts seldom truly wear a pure “common law” hat. Instead, depending on the issue and the degree to which it has been clearly stated in the Code, courts operate as an integrated part of a collaborative system of justice–a system that is “separate” in terms of their exclusive power to decide cases and controversies within their jurisdiction, but not “distinct” because their “common law” creativity and flexibility is informed and influenced by legislative and regulatory provisions, and at times, directed by legislative primacy.
iv. The Intersection of Statutes and the Common Law
Although the “common law” may have originated within the judiciary, citizens have increasingly imposed legislative and regulatory policies to guide and regulate its discretion. These began as early as the Magna Carta, proceeded through the industrial revolution, and matured into today’s complex legislative and regulatory environment. In today’s legal landscape where conduct and business activities are thoroughly regulated by statutes and administrative rules, there are comparatively few areas where a “common law” court is free to act without legislative influence. Over the last century, common law and codification systems began to converge. To a greater or lesser extent, codified systems departed from their rigidity and became more “fact-specific” in their approaches, and common law systems increasingly stressed the advantages and importance of “structure, coherence, and predictability” in judicial administration. Today, scholars recognize that societies and economies are so “complex and interrelated” that jurists need to draw upon the universe of common law and statutory codifications to administer justice effectively. Accordingly, the influence of statutory primacy in California’s judicial system may be distinctive, but it would be a mistake to presume that it is a completely unique phenomenon.
In California, statutory priorities were incorporated into the very foundations of the state’s legal system, and there literally is no point in the state’s history when judicial discretion has been governed exclusively by common law traditions. When the legislative and executive branches act to codify or modify common law rules by defining expectations, the judiciary cannot ignore the impact of these statutes and regulations merely because the plaintiff’s cause of action originated at “common law.” More so in California than anywhere else in America, the common law does not operate in a vacuum, but rather exists within a dynamic and interactive democracy that informs, guides and, at times, constrains its creativity.
As early as 1908, Roscoe Pound was convinced that judges should take a more responsive attitude toward legislation. Pound demonstrated that antiquated ideas, such as “statutes in derogation of the common law are to be construed strictly,” were inappropriate, and that courts should refer to the principles set forth by legislators when applying the common law. As he stated:
Courts are fond of saying that they apply old principles to new situations. But at times they must apply new principles to situations both old and new. The new principles are in legislation. The old principles are in common law. The former are as much to be respected and made effective as the latter–probably more so as our legislation improves.
Justice Harlan Stone demonstrated the continuity of this view in 1936 when he concluded: “I can find in the history and principles of the common law no adequate reason for our failure to treat a statute much more as we treat a judicial precedent, as both a declaration and a source of law, and as a premise for legal reasoning.”
Since California’s broad codifications in 1850, the opportunity to use statutes as a basis for “legal reasoning”–as opposed to narrow prescriptive or proscriptive devices–has proliferated as a source for adjusting, maintaining, contracting, or eliminating rights and obligations at common law. As we shall see below, public nuisance has been a fertile field for exploring these ideas. Historically, legislative and regulatory enactments have been used to inform and guide the judiciary in the context of property rights, especially those involving expectations that landlords should be responsible for maintaining property in a healthy condition. For example, even Justice Cardozo stressed the importance of legislative policies, such as housing codes. Although the common law imposed no duty to repair, and required tenants to pay rent even when housing was unsuitable, the widespread adoption of housing codes led courts to discard those principles. In one of the first cases to do so, then-Judge Cardozo held that the Code “changed the measure of [the landlord’s] burden,” and used the statute to guide and inform his decision regarding whether to reform a common law doctrine. Other common law developments regarding the duties landlords owed to tenants adopted the same approach. For example, in allowing tenants to sue landlords for injuries caused by defective premises, Judge Bazelon recognized that legislatively established duties reflect contemporary community values and that “[t]he law of torts can only be out of joint with community standards if it ignores the existence of such duties.”
When an alleged public nuisance is involved, and there are legislative and regulatory policies that define and deal with the issue, those policies must be considered before determining who, if anyone, is responsible for creating and, ultimately, for abating a public nuisance on the owner’s premises. Such a decision is fundamentally one of public policy, and in the judicial sphere, it can only be explained if it can be plausibly derived from policies that originate outside the courtroom. As Justice Linde explained in his critical article: “[T]he explanation must identify a public source of policy outside the court itself, if the decision is to be judicial rather than legislative. A court may determine some facts as well or better than legislators, but it cannot derive public policy from a recital of facts.” According to Justice Linde:
Style shapes how a court functions as well as how it is perceived. The decisive difference, to repeat, is that legislation is legitimately political and judging is not. Unless a court can attribute public policy to a politically accountable source, it must resolve novel issues of liability within a matrix of statutes and tort principles without claiming public policy for its own decision. Only this preserves the distinction between the adjudicative and the legislative function.
Consistent with this observation, “common law” courts must fully and fairly consider the complete “matrix” of the jurisdiction’s statutes, regulations and common law principles before rendering their judgments. In such a complex and interactive environment, courts cannot appropriately rest their decisions solely on “common law” grounds. Courts are not “free” to disregard legislative choices and create their own “common law” remedies merely because the Legislature does not expressly forbid public nuisance liability in a particular context. Especially in California, where judicial creativity in public nuisance cases is restrained by legislative definitions, courts are required to evaluate claims within the context of priorities previously declared by California’s elected representatives–and to consider the extent to which those policies would be impacted by its decision.
If such an inquiry is made under California law, the search should predictably result in judicial deference–not wholesale and unilateral “common law” reform. Such questioning will typically expose
the limits within which courts, lacking the tools of regulation and inspection, of taxation and subsidies, and of direct social services, can tackle large-scale problems of health care for injured persons, of income replacement, of safe housing and products and medical practices, of insurance, of employment, and of economic efficiency.
If, as Justice Holmes counsels, the development of the common law should be “molar [and] molecular,” the wholesale transmutation of “public nuisance” concepts to authorize, for example, a massive judicially-created, maintained, and controlled public health and environmental bureaucracy–answerable only to a single judge–requires more rumination and digestion than the judiciary alone can prudently provide.
Moreover, when California’s historical respect for the primacy of statutory law in public nuisance cases is considered, together with the corresponding deference of the California judiciary in such disputes, such a judicially-created bureaucracy is neither supplemental nor complimentary. If created by judicial fiat, it would effectively displace and usurp the Legislature’s prerogative to define the scope and applicability of public nuisance. In such a situation, the “intersection” between statutory and common law, which has been controlled by the Legislature, would be equally patrolled by both the Legislature and the Judicial Branch–an unpredictable and perilous conflict that the founders of California’s legal system wisely intended to avoid. As we will see in detail below, to avert this collision, California courts consistently have deferred to the supremacy of the Code in deciding the nature, elements, and application of public nuisance. As discussed more fully below, the California courts should continue to do so.
II. Public Nuisance Under California Law
A. The Civil Code
The beginning point for any study of public nuisance in California must be the Civil Code. Between 1850 and 1872, none of California’s statutes addressed the issue of public nuisance. After 1872, however, public nuisance became a creature of statute. Although California’s first effort in 1872 to codify the common law of nuisance lasted only two years, the revised 1874 law remains essentially unchanged. Today, California’s Civil Code defines a nuisance broadly as:
Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, 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, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.
The Code further states that a nuisance is a public nuisance only if it “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.” It then provides that every nuisance that does not qualify as a “public” nuisance is statutorily deemed to be a “private” nuisance. Both at common law and by statute, a public nuisance is also a criminal offense. The Code provides that “[t]he remedies against a public nuisance are: (1) [a criminal] [i]ndictment or information; (2) [a] civil action; or, (3) [a]batement.”
As can be seen, California’s general public nuisance statute retains some of the vagueness that plagued the original common law remedy. It uses terms such as “injurious to health” and “indecent or offensive to the senses” and “any considerable number of persons” when describing a public nuisance. This terminology is problematically imprecise–especially for jurists and fact-finders. What exactly do these terms mean? Just how “injurious,” “indecent,” or “offensive” does something have to be to be deemed a nuisance? Just how many people need to be affected to be deemed “considerable?” Without legislative clarification, these vague terms seem–at first blush–to be the “gaps” and “open spaces” in which Justice Cardozo noted that courts make law; thus, delegating substantial discretion to judges and juries to find and award relief against persons who create a broadly subjective array of offensive conditions. In a jurisdiction with a different tradition, such a broad statute might serve as an invitation and inspiration for judicial creativity, and it might also encourage creative attorneys and governmental authorities to advocate expansive interpretations and applications. California jurisprudence, however, took a different path.
Consistent with California’s traditions, the Legislature has declared and codified many specific forms of conduct to be public nuisances per se, thereby illustrating the Legislature’s original intent and informing the judiciary regarding how public nuisance claims should be defined. These codified public nuisances generally fall into the following broad categories:
Generally, making such declarations requires the legislative body to “consider  and balanc[e] . . . a variety of factors.” A non-exclusive list of some of the factors to weigh in this balancing process are:
• the character of the community, neighborhood or persons being impacted;
• the nature and characteristics of the activity causing the alleged nuisance;
• the distance between the people being impacted and the alleged nuisance;
• the frequency, duration and permanence of the activity causing the alleged nuisance;
• the nature and extent of the injury;
• the ability to “eliminat[e] or reduc[e] the objectionable aspects of the [offending] activity,” short of a complete ban;
• whether a more suitable location exists to perform the activity;
• the role and “importance of the activity to . . . the community”;
• the amount of money invested in the activity; and
In addition to these specific declarations, the California Legislature granted similar authority to local governments. However, the authority granted to local government authorities is not unlimited. If the state Legislature statutorily allows, or requires, an act, condition, or circumstance to exist or occur, then local authorities cannot declare it to be a public nuisance.
B. The Application of Statutory Primacy in Public Nuisance Cases
Although the law of public nuisance is ancient, its use by governmental authorities to enforce public policy is a relatively recent development. As society developed, courts increasingly found complexities of the industrial revolution to be “public nuisances” that should be abated with injunctive relief. Not surprisingly, courts held that “public and social interests, as well as the rights of property, are entitled to the protection of equity.” What followed was a “continuous expansion” of the “public nuisance” definition in the United States–to include activities that were not necessarily criminal, and which did not necessarily implicate property rights or enjoyment.
But this “solution” had its own problems. As public nuisance definitions expanded and as injunctions proliferated in the early 1900s, authorities warned about problems caused by using public nuisance to remedy broad societal problems such as over-reaching monopolies, restraint of trade activities, prevention of criminal acts, and labor controversies such as strikes. They argued that the main reasons used to justify allowing governmental authorities to use public nuisance to enforce public policy–its remarkable effectiveness and “that [otherwise] there [is] no adequate remedy provided at law”–are inadequate and its continued expansion would eventually result in abuses that would weaken the judicial system.
Not long after this warning was issued, the use of public nuisance as a regulatory tool to redress widespread social issues waned, and Congress and state Legislatures intervened to create the beginnings of a regulated society. They enacted a vast tapestry of statutes, often implemented by regulations issued by the Executive Branch, to define minimum societal norms, and they created remedies for violations of these standards. These statutes and regulations included declarations that specific violations of these standards and norms are deemed public nuisances to be enjoined by courts. As a result of these enactments, the “discretion” of equity courts was both informed and curtailed. Judges were required to consider the range of permissible activities and those deemed unreasonable when determining the existence of the nuisance and when designing a remedy. These laws meant that courts were no longer free to ignore applicable legislative enactments or empowered to create their own “flexible judicial remedies.”
Although California’s traditional reliance on statutory primacy provided a bulwark against unrestricted expansion of public nuisance, it was not immune from such pressures. Eventually, the California Supreme Court addressed the issue of whether public nuisance could be expanded beyond statutory definitions by the “common law” process. Noting the amorphous, vague, and uncertain nature of the term “nuisance,” the court concluded in People v. Lim that “it is a proper function of the legislature to define those breaches of public policy which are to be considered public nuisances within the control of equity” because what society deems to be a nuisance may change over time. This is particularly true where the activity can be remedied by applying criminal law, unless the Legislature specifically provides for an equitable remedy.
The ideas and principles espoused in Lim are not antiquated or outdated. Indeed, they were affirmed by the California Supreme Court in the last major public nuisance opinion it issued in 1997, where the court once again expressly recognized the statutory “supremacy” that has permeated California jurisprudence since it was admitted to the Union in 1850. Under these authorities, once the Legislature decides the condition or activity is a nuisance, a court cannot usurp the legislative power by determining that a violation is insignificant. Instead, courts are bound to only determine “whether a statutory violation in fact exists, and whether the statute is constitutionally valid.” Courts are not to expand the scope of the tort beyond the limits prescribed by the statute, and are not to decide for itself that a condition outside the statute’s intent constitutes a public nuisance.
As a result of these decisions, public nuisance occupies a unique place in California tort jurisprudence insofar as statutory primacy is concerned. For other codified tort concepts, such as negligence, courts have adopted a more “elastic” attitude. As Professor Van Alstyne observed:
[The Codes’] incompleteness, both in scope and detail, have provided ample room for judicial development of important new systems of rules, frequently built upon Code foundations. In the field of torts, in particular, which the Civil Code touches upon only briefly and sporadically, the courts have been free from Code restraint in evolving the details of such currently vital rules as those pertaining to last clear chance, the right of privacy, res ipsa loquitur, unfair competition, and the “impact rule” in personal injury cases.
As a result, regarding most torts other than public nuisance, the Code was interpreted to not only permit, but also encourage appropriate common law development:
In short, the Civil Code has not, as its critics had predicted, restricted the orderly development of the law in its most rapidly changing areas along traditional patterns. That this is true is undoubtedly due in large measure to the generality of Code treatment of its subject matter, stress being placed upon basic principles rather than a large array of narrowly drawn rules. In addition, the acceptance of Professor Pomeroy’s concept of the Civil Code as a continuation of the common law created an atmosphere in which Code interpretation could more easily partake of common law elasticity.
Relying on this reasoning, statutory primacy generally has not been afforded significant deference in tort cases outside the public nuisance context. For example, the codification of contributory negligence as an “all or nothing” affirmative defense did not prevent the California Supreme Court from creating a common law system of comparative negligence–even though the Code’s provisions regarding negligence actions were entirely silent on the subject. It is, therefore, important to understand why, of all torts, the California Supreme Court has chosen to defer to the Code’s “statutory supremacy” in refusing to extend the tort of public nuisance.
C. The Relevance of Concerns Regarding “Standardless” Liability
Although no California court has elaborated on the issue, it seems clear that the importance of statutory primacy in public nuisance cases arises from California’s aversion to “standardless” liability. According to the California Supreme Court the purpose of the tort of public nuisance is to protect “the public interest in tranquility, security, and protection” from individuals. Citing Montesquieu, John Locke, and James Madison, the court recognized that, with respect to public nuisances, courts are required to balance and reconcile the competing rights of a community’s desire for security and protection with individual freedoms. Ultimately, the court said, a principal use of the law of public nuisance is to maintain public order “when the criminal law proves inadequate.” It “is a species of catch-all criminal offense, consisting of an interference with the rights of the community at large.” This use is reflected in section 370 of the California Penal Code which prohibits any act that is “injurious to health . . . or is indecent, or offensive to the senses” which interferes “with the comfortable enjoyment of life or property” by “an entire . . . neighborhood or a considerable number of persons.”
Nevertheless, California’s general public nuisance statute seeks to accomplish those ends in extraordinarily vague terms–terms which, because of their fluidity, could create unpredictable liability risks if an unrestrained common law approach is applied. Those risks are exacerbated by the statute’s quasi-criminal nature, under which many traditional defenses to private tort claims do not apply. For example, the fact that others are similarly situated, performing the same or a similar activity, or even contributing to create the same nuisance, does not preclude a court from enjoining a defendant to abate the activity that is contributing to the nuisance. Likewise, an established custom or practice may, over time, become unreasonable by threatening public safety or threatening to destroy public rights, thereby creating a public nuisance that cannot be lawfully continued. When this occurs, the traditional defenses of custom, prescription, and statute of limitations are not available. In this way, the rights of the community may take priority over the rights of individuals–but they do so in ominous ways that override the significance of individual considerations traditionally litigated in private tort actions.
To avoid this jurisprudential minefield, the California Supreme Court wisely chose to defer to statutory primacy:
[S]ubject to overriding constitutional limitations, the ultimate legal authority to declare a given act or condition a public nuisance rests with the Legislature; the courts lack power to extend the definition of the wrong or to grant equitable relief against conduct not reasonably within the ambit of the statutory definition of a public nuisance. This lawmaking supremacy serves as a brake on any tendency in the courts to enjoin conduct and punish it with the contempt power under a standardless notion of what constitutes a “public nuisance.”
Hence, in dealing with these quasi-criminal actions, judges are “not wholly free . . . to innovate at pleasure.” Indeed, the vagueness of California’s general definition of public nuisance raises serious questions regarding whether defendants have “fair warning” regarding whether their conduct is tortious. Additionally, the indefiniteness of the general public nuisance statute–as opposed to the many specific provisions enacted to address particular situations–” creates opportunities for inconsistent and arbitrary” interpretations–not only by courts, but increasingly by “state attorneys general who file recoupment actions against mass product manufacturers.”
In addition to these jurisprudential concerns, judges presiding over a “catch-all criminal offense,” such as public nuisance in California, may be constrained, or at least informed and influenced, by concerns that the general statute may be unconstitutionally vague. As the United States Supreme Court has held:
Vague laws offend several important values. First, because we assume that a man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.
Although these vagueness arguments generally apply only in criminal proceedings, their fundamental rationale is also implicated in public nuisance litigation, where generalities may obscure the borders of permissible enforcement. These concerns are especially applicable when public officials file public nuisance claims that target industries in massive recoupment actions.
As a quasi-criminal tort that deals with “community” interests, public nuisance entails problems that, if unrestrained, threaten the democratic process. It is one thing for citizens, through their elected legislators, to define and declare that specified conduct or conditions are public nuisances before the injurious conduct occurs. It is quite another thing, however, for a single “common law” judge to declare and impose liability for public nuisances retrospectively. When the Legislature acts, the “community” has spoken in its most authoritative manner, and its enactments necessarily provide “fair notice” to citizens that proscribed conduct will result in liability. When a court rules in a private dispute, however, even with the assistance of a jury, the scope and scale of democratic guarantees are diminished substantially.
An individual judge is not a comparable substitute for a body of elected representatives. There is no meaningful assurance that a court’s creative declaration in a controversy framed solely by litigants truly reflects the democratic will of the “community” of citizens–a guarantee that is essential for the promulgation of quasi-criminal standards, such as public nuisance. Unlike legislation, lawsuits are framed by records generated by private litigants, and those records are necessarily limited to disputes between the particular parties, not broad community concerns. The records of such proceedings are constrained by the parties’ resources–reserves typically dwarfed by the collective assets of legislative bodies–and courts lack the authority and assets to supplement that record with their own inquiries.
Unless courts are informed by legislation that defines the proscribed conduct, there are serious questions regarding whether they can constitutionally or practically assess “community” interests sufficiently to declare the existence of an unprecedented nuisance, evaluate the causal connections necessary to hold particular parties responsible, or implement abatement orders requiring the cooperation of absent parties. Moreover, as we have seen, there are serious fairness and notice problems associated with imposing quasi-criminal liability for conduct that was previously lawful. As a result, there are powerful reasons for “common law” courts to be cautious about imposing liability in public nuisance cases in contexts where the Legislature has failed to provide adequate definitions of the offensive behavior, especially when liability is imposed retrospectively. These concerns fully justify the California judiciary’s profound reluctance to base public nuisance liability on “standardless” behavior, and they strongly support its corresponding deference to statutory primacy in lieu of common law creativity.
As this Article has shown, California jurisprudence has carefully policed the intersection between the common law and the legislative sphere throughout its history, particularly in the area of public nuisance. The tort of public nuisance has an extensive track record in California–and that record demonstrates an aversion to collective liability under “standardless” notions of what constitutes a public nuisance. The California Supreme Court has consistently insisted that public nuisances involve specific issues affecting specified properties, not generalized concerns affecting more nebulous interests.
Consistent with this narrow focus, and in line with the State’s legal history, the California Supreme Court made a unique commitment to “statutory supremacy” in interpreting and applying public nuisance–a decision designed to restrain common law discretion in this vague area–not to encourage it. Accordingly, before a public nuisance may be declared judicially, the impacted properties must be clearly delineated, and the proscribed conduct must be defined primarily by legislative standards–not solely by common law creativity.
Even if these principles are not necessarily voiced in every public nuisance decision, their deferential spirit should inspire a cautious approach. Expanding public nuisance to encompass ordinary claims against product manufacturers, for example, displaces a well-defined and manageable tort– strict product liability–with a vague and “standardless” cause of action constrained only by the imagination of advocates and the ingenuity of judges. Literally any product or any course of conduct that allegedly causes some type of “public health problem” or “environmental problem” may be labeled as a “public nuisance”–irrespective of its original legality–allowing attorneys to create mass suits against entire industries.
Even in the “limited” context of a controversy involving a single product or condition, such as lead paint, the issues extend far beyond the courtroom to encompass many sources of harmful exposures, especially when the alleged nuisance arose many years after the product was sold. In most situations involving product manufacturers and sellers, especially those regarding nuisances allegedly arising from deterioration, it is impossible to find meaningful “affirmative acts” by sellers that truly give rise to the nuisance. Regardless of whether “statutory supremacy” is voiced by the courts, its spirit is evident in the judiciaries’ reluctance to extend liability in these situations.
Indeed, it is the very vagueness of public nuisance, and the inherent lack of standards by which offensive conduct can be measured at common law, that motivates the courts to defer to statutory guidance. Because litigation is framed by the pleadings–as opposed to the broader perspective of legislative considerations–courts must focus solely on the litigants before it, and it can consider only the record generated by those parties. When “public” concerns are at issue, courts risk imposing liabilities arbitrarily on some persons merely because they are joined as parties, while unnamed persons escape responsibility solely because the dispute is narrowly framed by the “four corners” of the complaint. Such scenarios entail the same potential abuses that often arise when the judiciary attempts to resolve broad societal issues instead of resolving discrete disputes.
These realities expose:
the limits within which courts–lacking the tools of regulation and inspection, of taxation and subsidies, and of direct social services, can tackle large-scale problems of health care for injured persons, of income replacement, of safe housing and products and medical practices, of insurance, of employment, and of economic efficiency.
In contrast, when the Legislature addresses complex societal problems, it has the power to consider all the issues and the role of all potentially responsible parties before making public policy decisions. The Legislature can make a complete record because, unlike courts, it is not bound by the narrow record developed by the litigants. Instead, it is empowered to consider all facts and circumstances that contribute to the controversy.
In our system of government, the responsibility for addressing broad societal problems has been entrusted to the political branches of government–and the wisdom of that decision is especially evident when the resolution may have major economic consequences. As an institution, the Legislature “is far better equipped than the judiciary to ‘amass and evaluate the vast amounts of data’ bearing upon . . . complex and dynamic [issues].” Unlike courts, the political branches can consider all pertinent issues in their entirety through either hearings or required notice and comment procedures. As a result, political policy choices can strike fairer and more effective balances among competing interests, because they can be based on broader perspectives and ample information rather than being limited to issues raised only by litigants. Moreover, in contrast to courts, which lose jurisdiction upon rendition of final judgment, political branches have continuing authority to revisit statutes and rules to modify or tailor their provisions.
Under California’s singular principle of “statutory supremacy,” public authorities must first demonstrate a legislative source for a public nuisance that adequately sets forth standards by which the claim is defined and applied. Hence, governmental entities pursuing novel claims previously unaddressed by the legislative process are obliged to use the political process to ask that the respective legislative body adopt their solution. Such decisions are fundamentally ones of public policy, and in the judicial sphere, they can only be explained if they are plausibly derived from policies that originate outside the courtroom. These extra-judicial sources are an essential part of California’s public nuisance jurisprudence. With them, the flow of jurisprudential traffic can be controlled and the intersection between the branches of government can be traversed without incident. Without them, innovative appeals to common law discretion risk uninformed collisions between governmental branches.