(dissenting, in part). I would reach the question of the scope of the independent review by *373this court and also state what this court has held community standards to mean. It is not a question of reaching community standards. Miller has not changed our prior decisions on this question. When this court heard this case in its initial stage as a motion, it decided to change the proceeding to one for an original action. I thought it was intended that the opinion would answer all the questions raised by Miller so that this case and other pending cases could be tried with some degree of certainty if we held the statute constitutional.
There is no question that the scope of the independent review must include all the elements of obscenity. This court cannot make a review of part of a constitutional concept and have different tests for another part of the concept. Due process under Miller requires that this court exercise its independent judgment in reviewing a determination that material is obscene in the constitutional sense and this review must encompass all three elements which make up the concept of obscenity.1 In an independent review, this court is not bound by such *374appellate rules as “credible evidence to sustain the verdict,” “the great weight and clear preponderance” or any other limiting rule.2 These are now only factors which may be considered in exercising the court’s independent judgment. The United States Supreme Court in its obscenity decisions on independent review has not been bound by ordinary appellate review rules.
I see no problem on contemporary community standards. This court never did accept the concept of national community standards.3 State v. Kois (1971), 51 Wis. 2d 668, 188 N. W. 2d 467; McCauley v. Tropic of Cancer (1963), 20 Wis. 2d 134, 121 N. W. 2d 545. Therefore, Miller has not changed the Wisconsin law as it existed prior to that decision. Nor do I read Miller as requiring local standards. The Wisconsin law was a statewide standard, not local.
Community standards must be statewide. If we adopt local standards, are they to be on a city basis, county basis, circuit court basis, or some other basis? Should something be determined not obscene in Milwaukee and yet be obscene in Pepin county? Is there to be a separate standard for metropolitan areas different from rural areas ? Are the federal courts in Wisconsin to follow the community standards of the state courts or is there to be one standard in the eastern district and another in *374athe western district because the juries are drawn from different districts? If the jury is waived, what then is the area of the local standard ? If a national standard is unworkable, as Miller says it is, I find a local standard much more unworkable than national standards.
In Tropic of Cancer and in Kois this court committed itself to statewide community standards. This court applied a statewide standard on the reasoning, subsequently accepted by the United States Supreme Court in Miller, that anything else would be unworkable. Since sec. 269.565 (6), Stats.,4 permitted a judgment of obscenity to be used collaterally in a criminal trial in some cases, the standard could not be less than statewide. If Wisconsin does not have a statewide standard, this statute is emasculated. The majority members, by not reaching this question and so stating, leave the impression that perhaps local standards are justified. This approach not only furnishes no guidance but invites appeals.
The quoted directive from Miller at p. 24 must be considered in the light of the court’s later statement that the application of community standards to arrive at a determination of what appeals to the prurient interest or is patently offensive constitutes a factual determination. Considering the authority cited by Miller and in light of Kois v. Wisconsin, each element of the obscenity test calls for the determination of a “question of constitutional fact,” which must be independently reviewed by the appellate court. See Miller at 25, citing Kois v. Wisconsin, 408 U. S. at 232; Memoirs v. Massachusetts, supra, 383 U. S. at 459, 460 (HARLAN, J., dissenting); also Watts v. Indiana (1949), 338 U. S. 49, 51, 69 Sup. Ct. 1347, 93 L. Ed. 1801, wherein it is stated: “. . . ‘issue of fact’ is a coat of many colors. It does not cover a conclusion drawn from uncontroverted happenings, when that conclusion incorporates standards of conduct or criteria for judgment which in themselves are decisive of constitutional rights. Such standards and criteria, measured against the requirements drawn from constitutional provisions, and their proper applications, are issues for this court’s adjudication.”
See: Court v. State (1971), 51 Wis. 2d 683, 188 N. W. 2d 475.
This requirement that juries apply some mythical national standard first originated in the opinion of Justices Brennan and Goldberg in Jacobellis v. Ohio (1964), 378 U. S. 184, 84 Sup. Ct. 1676, 12 L. Ed. 2d 793. They argued that application of a local community standard would have the “‘intolerable consequence of denying some sections of the country access to material, there deemed acceptable, which in others might be considered offensive to prevailing community standards of decency.’” Jacobellis v. Ohio, supra, 193, quoting from Manual Enterprises v. Day (1962), 370 U. S. 478, 488, 82 Sup. Ct. 1432, 8 L. Ed. 2d 639 (opinion of Harlan, J.).
“269.666 Declaratory judgments against obscene matter. . .
“(6) Admissibility in CRIMINAL prosecutions. In any trial for a violation of s. 944.21 or 944.22, the proceeding under this section and the final judgment of the circuit court under sub. (3) or (5) or the interlocutory adjudication under sub. (1m), shall be admissible in evidence on the issue of the obscenity of said matter and on the issue of the defendant’s knowledge that said matter is obscene; provided, that if the judgment of the court sought to be introduced in evidence is one holding the matter to *374bbe obscene, it shall not be admitted unless the defendant in said criminal action was served with notice of the action under this section, or appeared in it, or is later served with notice of the judgment of the court hereunder, and the criminal prosecution is based upon conduct by said defendant occurring more than 18 hours after such service or such appearance, whichever is earlier.”