*1 CITY OF BILLINGS, Respondent, Plaintiff and v.
JIMMY LEE LAEDEKE,
Appellant.
Defendant and
No. 90-264.
Submitted Jan.
1991.
Decided Feb.
1991.
Robert appellant. and Gen., Racicot, Atty. and Fagg, City Atty., Billings, C. Marc
Russell Gen., Helena, Paulson, plaintiff respondent. for and Atty. John Asst. Opinion of the Court. CHIEF JUSTICE TURNAGE delivered Judicial Jimmy appeals Lee an order of the Thirteenth Laedeke District, constitutionality County, upheld which Yellowstone 3-304(d) (BMCC), an ordi- (e), Billings, Montana Code §§ dancing. The forms of nude and semi-nude nance certain constitutionality guilty Laedeke upheld Court found District violating We affirm. ordinance. following raises issues: Laedeke finding err in that the 1. Did the District Court for state-licensed retail adopt regulatory ordinances liquor premises? concluding err
2. Did District provisions did not state and federal constitutional violate expression, equal protection, relating speech, to freedom of freedom of vagueness process, due over-breadth? AND PROCEDURE
FACTS at the as a male revue dancer Jimmy Lee Laedeke worked Carlin, licensed Big Daddy’s, d/b/a establishment Club revue Montana. As a male beverages, Billings, to sell alcoholic patrons by performing dancer, the Club Carlin Laedeke entertained designed dance Laedeke his own burlesque-type routines music. costumes, layers he clothing dance which consisted of various progressively would remove his dance routines unfolded. began his one of dance routines dressed a raincoat. raincoat, brief, equivalent Underneath his Laedeke wore a bikini swimsuit, was speedo portrayals embellished nose, glasses on the portion Groucho Marx’s mustache and front bikini, his the bikini. Underneath “Groucho” Laedeke wore two overlapping G-strings. G-string, designed male, A for a garment is a consisting pouch genital string that covers the area with a narrow pouch up attached runs and attaches to a buttocks belt top G-string narrow worn around waist. Laedeke’s was of slightly larger proportions than the G-string. arresting bottom police G-string’s pouch barely officer testified that the smaller cov- genital Laedeke’s string approximately ered area was one- eight complete by wearing only inch wide. Laedeke would his routine G-string. the smaller the evening arresting
On officer police November performing observed Laedeke while he was this particular dance routine. After viewing performance, Laedeke’s left officer the Club Carlin to review relevant ordinances to this connection *3 performance. The approximately officerreturned hour one-half 3-304, later and cited with a BMCC, Laedeke violation of § prohibits certain nude and forms of semi-nude while Laedeke again performing was same Additionally, arresting routine. cited performers night, officer four other female as well as the Carlin, 3-304, manager BMCC, of the Club for violating and one § instance, BMCC, 3-301, requires five to re- § entertainment platform main or performing. within exclusive area while originated City Legal proceedings in the Billings. On 17,1987, and December Laedeke five co-defendants moved to dismiss based on unconstitutionality -304, the case of 3-301 and BMCC. §§ February 8, 1988, guilty violating On the defendants found were 3-304, 3-301, BMCC, instance, and in one BMCC. § § defendants to District On appealed
The Court. October Stephens consented to the withdrawal Richard as his Laedeke attorney expressed and his interest to himself se. On represent pro Court, by stipulation, the District October dismissed prejudice appeal remaining defendants and ordered their Laedeke, however, respective bonds of forfeited. continued $150.00 case, 3-304, asserting unconstitutionality his BMCC. §of 11,1990,
Following January the District Court found a trial on 3-304, BMCC, authority had to enact and Billings constitutional; the court also Laedeke that this ordinance was found ordinance, 130.00, him fined him and guilty violating assessed $ surcharge. decision, From this Laedeke further court $20.00 appeals.
STANDARDOF REVIEW and “legislative presumed A enactment” is to be constitutional proven to be upheld except will be on review when unconstitutional (1988), Mont. beyond County doubt. Fallon v. State reasonable (citations omitted). 443, 445-46, 753 P.2d 339-40
ANALYSIS finding err 1. Did the District Court adopt for regulatory ordinances retail premises? state-licensed 3-304(d) (e), BMCC, are unconstitu- that §§ regulation preemption tional based on state establishments beverages Alcoholic state-licensed to sell alcoholic under Montana 16-6-314, Code, disagree. Beverage 16-1-101 to MCA. We §§ Code, Beverage pertinent language of the Montana Alcoholic 16-1-101(2) -104, MCA, provides: found under §§ policy “It is declared to of the state of Montana hereby be sale, manufacture, and ensure the entire control ofthe effectuate Montana, beverages within the state of as distribution of alcoholic code, subject in this of the state that term defined through department of revenue. of Montana Montana purpose prohibit “The and intent of this code are to transactions wholly state of beverages place in alcoholic which take within the provided by specifically under state control except Montana code, of this code shall be construed every provision section and accordingly.” 3-304(d) (e), BMCC, provide:
Sections “(d) owner, charge of an Any proprietor person establishment knowingly beverages dispensed, sold or who in which are *4 clothed, costumed, unclothed, or un- any appear to permits person torso, of part a manner that the lower his/her costumed such cleft, cleavage anal or consisting parts, genitalia, or or private material, is so by or buttocks, fully opaque not covered of the is uncovered, of a misdemeanor. thinly appear guilty is covered as “(e) Any person intentionally appears private parts who (d), employed by uncovered in an as in whether establishment § not, guilty or establishment is misdemeanor.” Beverage grants Department The Montana Alcoholic Code regulate Liquor authority “manufacture, Revenue Division the added.) sale, beverages.” and of alcoholic (Emphasis distribution however, Code, grant Department does not regulate may conduct occur in establishments state-licensed beverages. to sell alcoholic
Here, place Carlin, Laedeke’s employment, Club awas Billings beverages establishment state-licensed to sell alcoholic to its patrons. Accordingly, the Montana Beverage applies Alcoholic Code regulation beverages to the of the sale alcoholic within Club 3-304(d) (e), BMCC, and Carlin. Sections are ordinances topless certain forms of may bottomless occur in Billings establishments to sell beverages. state-licensed Clearly, way these ordinances in no regulated the Carlin’s sale Club beverages patrons, instead, of alcoholic regulated but Laedeke’s conduct that occurred in the simply Club Carlin. This is not a “liquor-sale” Libby case as City found State ex rel. v. Haswell (1966), 147 Mont. 414 P.2d where city we held that a granted jurisdiction court over offense selling years beer to a twenty-one age minor under was invalid by and preempted We hold Billings state. therefore that the 3-304(d) (e), BMCC, to enact §§ as the preempted was not Beverage Montana Alcoholic Code to regulate may conduct which occur in state-licensed estab- lishments.
2. Did the District err in concluding ordinance did not violate federal provisions and state constitutional relating speech, expression, protection, to freedom of freedom of equal process, due vagueness over-breadth? restricting burlesque-type dancing is a viola- Amendment Constitution,
tion of the First of the United States well as Article of the Montana which states that passed impairing “[n]o be speech expres- law shall the freedom of dancing, representation, sion.” Laedeke asserts that nude as a visual protected citing is a form of if it not found to expression be obscene here, 41 Op. Att’y Gen. 75 evidence uncontroverted burlesque-type dancing establishes that featured at the Club Carlin *5 156 self-expression. a form artistic performers the as of
was viewed in Furthermore, argues that no exists the record Laedeke evidence performance was obscene. to establish that Laedeke’s additionally argues prin- that the ordinance offends the in federal process and due both the ciples equal of vague Laedeke further ordinance is constitutions. Laedeke, however, adequately brief the overly-broad. failed process, vagueness, due and over- arguments equal protection, Court, and, such, this as this Court not in his brief to will breadth our arguments. We will therefore limit discus- further address these 1) First ordinance violated the Amendment of sion to whether 2) 2, Constitution, and whether Article 7 of § United States ex- provides greater protection for individual Montana Constitution activity the First Amendment the United States pressive than Constitution. argument First Amend based on a
Laedeke’s constitutional of three United States light ment lacks merit in series violation Supreme clearly Those cases establish that ordinance Court cases. dancing nude is constitutional under regulating and semi-nude Twenty-First of the United States language broad Amendment regulate grants power the states the the sale which (1986), 92, 107 S.Ct. liquor. Newport In v.Iacobucci 479 U.S. 383, 334, upheld Kentucky ordi 93 L.Ed.2d nance, in question, similar to quite dancing and semi-nude bars. certain forms of nude banned Twenty-First Amend sweeping language Court stated authority and semi-nude to ban nude ment confers states “ sell ‘as a liquor part state-licensed to dancing in establishments ”Iacobucci, 95, U.S. at 107 program.’ license 479 its control (Citation omitted.) Additionally, the Court held S.Ct. at 385. Iacobucci, 479 they “as see fit.” may delegate states this State Liquor cited New York U.S. at The Court Iacobucci 96. 2599, 69 (1981), 714,101 U.S. S.Ct. L.Ed.2d Authority v.Bellanca 452 dancing nude upheld a state statute where the Court Bellanca, held that the state’s interest In the Court bars. outweighed expression interest offree -under upholding order 716-17, Bellanca, 2601. U.S. 101 S.Ct. at First 452 at Amendment. v.LaRue cited The Court Iacobucci Bellanca California 390, 34 authority, upheld 2d 109, 93 S.Ct. L.Ed. U.S. regulation banning a state dancing holding nude in bars that the Twenty-First health, powers public Amendment confers broad “over LaRue, welfare, and morals.” 409 U.S. at at 935 S.Ct. 395. Therefore, municipality may regulating enact an ordinance nude if delegated regulatory semi-nude the state has Twenty-First under the municipality. Amendment to the Here, City Billings is a municipality self-government with powers. Montana, a municipality self-government powers “may any power prohibited by constitution, law, exercise not XI, charter.” Mont. Const. Art. 6. A Montana municipality with self-government powers expressly prohibited is not from regulating *6 nude dancing and semi-nude in establishments state-licensed to sell Therefore, liquor. City Billings, of a municipality self-gov- with powers, ernment may enact an ordinance regulates nude and dancing semi-nude under the broad regulatory powers Twenty- ofthe First Amendment. II,
Laedeke further that Article 7 of the Montana Constitution, the “freedom speech expression” clause, provides greater protection for individual expressive activity than the First Amendment’s speech” “freedom of clause of the United States Con In past, stitution. this Court has discussed the First Amendment and its counterpart state distinguishing without between the two provisions. See Dorn v.Board Trustees School District #2 (1983), 136, 144-45, 426, 203 Mont. 661 P.2d 430-31. Several state courts, however, developed have protections state constitutional which limit state authority over nude apart entertainment from the Twenty-First Amendment. Some of these courts have held that the state’s power, though possibly not limited under the United by States is expres limited the state constitution’s free (Alaska sion protections. 1982), See Mickens v. Kodiak 818, 821; P.2d (1981), Bellanca Liquor Authority v. New YorkState 54 N.Y.2d 765, 766; 445 N.Y.S.2d 429 N.E.2d Harris v. Sys. Entertainment Inc. 259 Ga. 386 S.E.2d 142. We, however, Supreme analysis concur with the Florida in Court’s (Fla. City Daytona 1985), 197, 203-04, Beach v. Del Percio 476 So.2d where, in upholding municipal a ordinance certain forms of nude and dancing, semi-nude the court stated:
“Assuming protection that Florida’s constitutional of nude bar- (and dancing room is protections coextensive with the federal we are greater instance), not inclined to find a a protection state municipality’s police power, public inherent exercised for the health welfare, protection at stake may outweigh speech the minimal activity capacity regulation here. ‘The which has demonstrated subject peace legitimate induce is traditional breaches of omitted.) (citations municipality’s police power.’ the exercise of a for as may regulating some the wisdom of crime such question ... While victimless, this, might lies which said detractors term the decision legislative body, not the courts.” Here, greater we are inclined not to find a also to sell nude and state-licensed semi-nude establishments beverages than what is afforded the United States Accordingly, Constitution. we hold that question constitutionally sound under the Montana Constitution.
Affirmed. HARRISON, McDONOUGH, BARZ, SHEEHY
JUSTICES concur. WEBER HUNT, dissenting:
JUSTICE many ways express opinion. people I dissent. Some There are majority But of us wrap flag. themselves in the Others burn it. silently it freedom to ourselves regard express as an emblem the oneself, ways dancing, many express we see fit. there are way.” put as “our Some ways always regard rest of us do not tights them- pair perform ballet. Others attire classical Jimmy Lee fancy promenade selves dress and on a ballroom floor. prances G-strings Laedeke dons a Marx bikini and two Groucho *7 patrons of The Club Carlin. before fandango in zeal to ensure Majority The has danced the wild its Billings. footlights Laedeke’s shall never see the again that routine First, City by liquor-control it is not preempted holds that the forbidding nude and semi-nude enacting law from an ordinance in alcohol because the ordinance establishments serve manufacture, restrains conduct than the sale and distribution rather breath, it is constitu- of alcohol. In the next holds that ordinance part it is Twenty-First tional under Amendment because liquor-control program. was City ways. it Either cannot have both If or it it was part liquor-control program as a a wasn’t.
enacted scheme, the ordi- liquor-licensing a could not enact part of affirmatively sub- of alcohol sales has been nance because the area liquor-control program, jected part to state control. If it wasn’t
159 conduct, solely regulate enacted to the ordinance and instead was power granted fit to the states under does not under broad base Twenty-First Amendment. Twenty-First under the regulate A state’s to conduct inextricably coupled regulate Amendment is with its to grants ability the State the to sale of alcohol. The amendment proscribe power “[t]he [s]tate’s conduct because to ban sale of beverages entirely power includes the lesser to ban the sale topless dancing where occurs.’’ NewYorkState premises Bellanca, 714, 717, 101 2599, 2601, Liquor Auth. v. 452 U.S. S.Ct. 69 (1981). sales, Strip away Majority L.Ed.2d the alcohol as the part Opinion, you does in the first of the have an ordinance that longer Twenty-First no fits under the lesser ofthe Amend conduct-restricting regula ment. The ordinance instead becomes a subject greater degree scrutiny given tion to the to all laws impheating the First Amendment.
Thus, Majority City’s once the determined that the ordinance was not preempted regulated the State because it conduct rather than sales, required constitutionality alcohol it was to review of the under pertaining regulations that, face, law the standards on their restrict conduct for its communicative element. As Justice Marshall pointed LaRue, 109, 131, out his dissent to v. 409 U.S. California 390, 403, 407, 93 S.Ct. 34 L.Ed. 2d case concerning California laws sexual night conduct bars and clubs:
“[I]n order speech, speech to restrict the State must show that the [is] ‘used such circumstances and of such a nature as to create a present danger [it] clear and bring will about the substantive (Citations omitted.) [the State] evils that right prevent.’ has a against “Classifications that discriminate the exercise of constitu- rights per tional supported by ‘compelling’govern- se ... must be purpose carefully mental and must be examined to insure purpose hostility right being is unrelated to mere to the asserted.” because, pass scrutiny
The ordinance could not under test brief, acknowledged showing it has failed to make a governmental by the interest furthered law. disturbing Majority’s thinly I find most veiled
What about attempt uphold any price this ordinance at is its failure to take this opportunity put guarantee some teeth into our state constitutional II, voting expression. of freedom of 1972 Mont. Const. Art. 7.§ *8 expres- unanimously specific provision for the freedom of include Rights the Bill of Committee sion in the Montana stated: (of expression) provide this will
“Hopefully, extension freedom expres- in Montana rule on forms of impetus to courts various ways expresses to the which one spoken sion similar word and backseat unique personality general his in an to re-balance the effort safeguarding status states in the civil liberties. The committee guarantees hope to stress these their primacy wishes will the wake merely not continue case federal enforcement law.” added.) (Emphasis Rights Proposal, Bill of II Mont. Const. Convention 630 Committe (Feb. 23,1972.)
Although expressed hope that the Montana committee expression give guarantees Constitution’s freedom of would broader Court Supreme right, than the U.S. accorded has Instead, today Majority refused to listen to this desire. bestows freedom of than that accorded expression lesser to the Majority required court. The has not to demonstr- the federal Instead, by this any governmental ate interest forwarded ordinance. proving unconstitutionality it on Laedeke. placed has burden use, he that of a majority And the standard the has demanded that doubt, stringent the most standard of all. What sad reasonable we law that its face constricts so fundamen- day it is when allow a scrutiny avail- pass possible tal under lowest right muster able. should choreographer fact that Laedeke dances to a different us, him, inferentially deny all of basic
not be a reason to they are right feelings our whether about express constitutional Marx. flag, or Groucho I reverse. would