No. 90-264
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
CITY OF BILLINGS,
Plaintiff and Respondent,
JIMMY LEE LAEDEKE,
<
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W. Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert L. Stephens, Stephens Law Firm, Billings,
Montana
For Respondent:
Russell C. Fagg, City Attorney, Billings, Montana
Hon. Marc Racicot, Attorney General; John Paulson,
Assistant Attorney General, Helena, Montana
.. 6 .
.
Submitted: January 18, 1991
Decided: February 5 , 1991
Filed:
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CLERK O F
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Chief Justice J. A. Turnage delivered the Opinion of the Court.
Jimmy Lee Laedeke appeals an order of the Thirteenth Judicial
District, Yellowstone County, which upheld the constitutionality
of 5 9 3-304(d) and (e), Billings, Montana City Code (BMCC), an
ordinance banning certain forms of nude and semi-nude dancing. The
District Court upheld the constitutionality and found Laedeke
guilty of violating the ordinance. We affirm.
Laedeke raises the following issues:
1. Did the District Court err in finding that the City of
Billings had authority to adopt regulatory ordinances for state-
licensed retail liquor premises?
2. Did the District Court err in concluding that the
municipal ordinance did not violate state and federal constitution-
al provisions relatingto freedom of speech, freedom of expression,
equal protection, due process, and vagueness and over-breadth?
FACTS AND PROCEDURE
In 1987, Jimmy Lee Laedeke worked as a male revue dancer at
the Club Carlin, d/b/a Big Daddy's, an establishment licensed by
the state to sell alcoholic beverages, in Billings, Montana. As
a male revue dancer, Laedeke entertained the Club Carlin patrons
by performing burlesque-type dance routines to music. Laedeke
designed his own dance costumes, which consisted of various layers
of clothing that he would progressively remove as his dance
routines unfolded.
2
Laedeke began one of his dance routines dressed in a raincoat.
Underneath his raincoat, Laedeke wore a bikini brief, equivalent
to a speedo swimsuit, which was embellished with portrayals of
Groucho Marx's nose, mustache and glasses on the front portion of
the bikini. Underneath his 'tGroucho'lbikini, Laedeke wore two
overlapping G-strings. A G-string, designed for a male, is a
garment consisting of a pouch that covers the genital area with a
narrow string attached to the pouch which runs up the buttocks and
attaches to a narrow belt worn around the waist. Laedeke's top G-
string was of slightly larger proportions than the bottom G-
string. The arresting police officer testified that the smaller
G-string's pouch barely covered Laedeke's genital area and its
string was approximately one-eight inch wide. Laedeke would
complete his routine by wearing only the smaller G-string.
On the evening of November 6, 1987, the arresting police
officer observed Laedeke while he was performing this particular
dance routine. After viewing Laedeke's performance, the police
officer left the Club Carlin to review relevant ordinances in
connection to this performance. The police officer returned
approximately one-half hour later and cited Laedeke with a
violation of S 3-304, BMCC, which prohibits certain forms of nude
and semi-nude dancing while Laedeke was again performing the same
routine. Additionally, the arresting officer cited four other
female performers that night, as well as the manager of the Club
Carlin, for violating 5 3-304, BMCC, and in one instance, 3-301,
BMCC, which requires live entertainment to remain on a platform or
within an exclusive area while performing.
Legal proceedings originated in the City Court of Billings.
On December 17, 1987, Laedeke and five co-defendants moved to
dismiss the case based on the unconstitutionality of 55 3-301 and
-304, BMCC. On February 8, 1988, the defendants were found guilty
of violating 53-304, BMCC, and in one instance, 1 3-301, BMCC.
The defendants appealed to District Court. On October 6,
1988, Laedeke consented to the withdrawal of Richard Stephens as
his attorney and expressed his interest to represent himself pro
se. On October 20, 1988, the District Court, by stipulation,
dismissed with prejudice the appeal of the remaining defendants
and ordered their respective bonds of $150.00 forfeited. Laedeke,
however, continued his case, asserting the unconstitutionality of
5 3-304, BMCC.
Following a trial on January 11, 1990, the District Court
found that the City of Billings had the authority to enact 5 3-
304, BMCC, and that this ordinance was constitutional; the court
also found Laedeke guilty of violating the ordinance, fined him
$130.00, and assessed him a $20.00 court surcharge. From this
decision, Laedeke further appeals.
STANDARD OF REVIEW
A "legislative enactment1#is presumed to be constitutional
and will be upheld on review except when proven to be unconstitu-
4
tional beyond a reasonable doubt. Fallon County v. State (1988),
231Mont. 443, 445-46, 753 P.2d 338, 339-40 (citations omitted).
ANALYSIS
1. Did the District Court err in finding that the City of
Billings had authority to adopt regulatory ordinances for state-
licensed retail liquor premises?
Laedeke argues that §§ 3-304(d) and (e), BMCC, are unconstitu-
tional based on state preemption of regulation of establishments
state-licensed to sell alcoholic beverages under the Montana
Alcoholic Beverage Code, 5 16-1-101 to 16-6-314, MCA. We
disagree.
The pertinent language of the Montana Alcoholic Beverage Code,
found under 5 s 16-1-101(2) and -104, MCA, provides:
It is hereby declared to be the policy of the
state of Montana to effectuate and ensure the
entire control of the manufacture, sale, and
distribution of alcoholic beverages within the
state of Montana, as that term is defined in
this code, subject to the authority of the
state of Montana through the Montana depart-
ment of revenue.
The purpose and intent of this code are to
prohibit transactions in alcoholic beverages
which take place wholly within the state of
Montana except under state control as specifi-
cally provided by this code, and every section
and provision of this code shall be construed
accordingly.
Sections 3-304 (d) and (e), BMCC, provide:
(d) Any owner, proprietor or person in charge
of an establishment in which alcoholic bever-
ages are sold or dispensed, who knowingly
permits any person to appear clothed, cos-
tumed, unclothed, or uncostumed in such a
manner that the lower part of his/her torso,
consisting of the private parts, or genitalia,
or anal cleft, or cleavage of the buttocks, is
not covered by a fully opaque material, or is
so thinly covered as to appear uncovered, is
guilty of a misdemeanor.
(e) Any person who intentionally appears with
private parts uncovered in an establishment as
in subsection (d), whether employed by the
establishment or not, is guilty of a mis-
demeanor.
The Montana Alcoholic Beverage Code grants the Department of
Revenue Liquor Division the authority to regulate the llmanufacture,
sale, and distribution of alcoholic beverages.I1 (Emphasis added.)
The Code, however, does not grant the Department the authority to
regulate the conduct that may occur in establishments state-
licensed to sell alcoholic beverages.
Here, Laedekels place of employment, the Club Carlin, was a
Billings establishment state-licensed to sell alcoholic beverages
to its patrons. Accordingly, the Montana Alcoholic Beverage Code
applies to the regulation of the sale of alcoholic beverages
within the Club Carlin. Sections 3-304(d) and (e), BMCC, are
ordinances banning certain forms of topless and bottomless dancing
which may occur in Billings establishments state-licensed to sell
alcoholic beverages. Clearly, these ordinances in no way regulated
the Club Carlin1s sale of alcoholic beverages to its patrons, but
instead, regulated Laedekels conduct that occurred in the Club
Carlin. This is simply not a llliquor-salett
case as found in State
ex rel. City of Libby v. Haswell (1966), 147 Mont. 492, 414 P.2d
652, where we held that a city ordinance which granted a police
court jurisdiction over the offense of selling beer to a minor
under twenty-one years of age was invalid and preempted by the
state. We therefore hold that the City of Billings had the
authority to enact 5 5 3-304(d) and (e), BMCC, as the City of
Billings was not preempted by the Montana Alcoholic Beverage Code
to regulate conduct which may occur in state-licensed liquor
establishments.
2. Did the District Court err in concluding that the
municipal ordinance did not violate federal and state constitution-
al provisions relating to freedom of speech, freedom of expression,
equal protection, due process, and vagueness and over-breadth?
Laedeke argues that restricting burlesque-type dancing is a
violation of the First Amendment of the United States Constitution,
as well as Article 2, 5 7 of the Montana Constitution, which states
that I1[n]o law shall be passed impairing the freedom of speech or
expressi~n.~~Laedeke asserts that nude dancing, as a visual
representation, is a form of protected expression if it is not
found to be obscene citing 41 Op. Att'y Gen. 75 (1986), and here,
uncontroverted evidence establishes that burlesque-type dancing
featured at the Club Carlin was viewed by the performers as a form
of artistic self-expression. Furthermore, Laedeke argues that no
evidence exists in the record to establish that Laedekels perfor-
mance was obscene.
Laedeke additionally argues that the ordinance offends the
principles of equal protection and due process in both the federal
and state constitutions. Laedeke further argues that the ordinance
is vague and overly-broad. Laedeke, however, failed to adequately
brief the arguments of equal protection, due process, vagueness,
and over-breadth in his brief to this Court, and, as such, this
Court will not further address these arguments. We will therefore
limit our discussion to whether 1) the ordinance violated the First
Amendment of the United States Constitution, and 2) whether Article
2, § 7 of the Montana Constitution provides greater protection for
individual expressive activity than the First Amendment of the
United States Constitution.
Laedekels constitutional argument based on a First Amendment
violation lacks merit in light of a series of three United States
Supreme Court cases. Those cases clearly establish that an
ordinance regulating nude and semi-nude dancing is constitutional
under the broad language of the Twenty-first Amendment of the
United States Constitution, which grants the states the power to
regulate the sale of liquor. In City of Newport v. Iacobucci
(1986), 479 U.S. 92, 107 S.Ct. 383, 93 L.Ed.2d 334, the Court
upheld a Kentucky municipal ordinance, quite similar to the
Billings ordinance in question, which banned certain forms of nude
and semi-nude dancing in bars. The Court stated that the sweeping
8
language of the Twenty-first Amendment confers to states the
authority to ban nude and semi-nude dancing in establishments
state-licensed to sell liquor "'as a part of its liquor license
control program.'" Iacobucci, 479 U.S. at 95 (citation omitted).
Additionally, the Court held that states may delegate this
authority Itasthey see fit." Iacobucci, 479 U.S. at 96. The Court
in Iacobucci cited New York State Liquor Authority v. Bellanca
(1981), 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357, where the
Court upheld a state statute banning nude dancing in bars. In
Bellanca, the Court held that the state's interest of upholding
order outweighed the interest of free expression under the First
Amendment. Bellanca, 452 U.S. at 716-17. The Court in Iacobucci
and Bellanca cited California v. LaRue (1972), 409 U.S. 109, 93
S.Ct. 390, 34 L.Ed.2d 342, as authority, which upheld a state
regulation banning nude dancing in bars holding that the Twenty-
first Amendment confers broad powers "over public health, welfare,
and morals.'' LaRue, 409 U.S. at 114.
Therefore, a municipality may enact an ordinance regulating
nude and semi-nude dancing if the state has delegated its regu-
latory authority under the Twenty-first Amendment to the municipal-
ity. Here, the City of Billings is a municipality with self-
government powers. In Montana, a municipality with self-government
powers "may exercise any power not prohibited by this constitution,
law, or charter.It Mont. Const. Art. XI, 5 6. A Montana municipal-
ity with self-government powers is not expressly prohibited from
9
regulating nude and semi-nude dancing in establishments state-
licensed to sell liquor. Therefore, the City of Billings, a
municipality with self-government powers, may enact an ordinance
that regulates nude and semi-nude dancing under the broad regu-
latory powers of the Twenty-first Amendment.
Laedeke further argues that Article 11, 5 7 of the Montana
Constitution, the "freedom of speech or expression" clause,
provides greater protection for individual expressive activity than
the First Amendment's ''freedom of speech" clause of the United
States Constitution. In the past, this Court has discussed the
First Amendment and its state counterpart without distinguishing
between the two provisions. See Dorn v. Board of Trustees of
Billings School District #2 (1983), 203 Mont. 136, 144-45, 661 P.2d
426, 430-31. Several state courts, however, have developed state
constitutional protections which limit state authority over nude
entertainment apart from the Twenty-first Amendment. Some of these
courts have held that the state's police power, though possibly not
limited under the United States Constitution, is limited by the
state constitution's free expression protections. See Mickens v.
City of Kodiak (Alaska 1982), 640 P.2d 818, 821; Bellanca v. New
York State Liquor Authority (N.Y. 1981), 429 N.E.2d 765, 766;
Harris v. Entertainment Sys. Inc. (Ga. 1989), 386 S.E.2d 140, 142.
We, however, concur with the Florida Supreme Court's analysis
in City of Daytona Beach v. Del Percio (Fla. 1985), 476 Sc).2d 197,
203-04, where, in upholding a municipal ordinance banning certain
forms of nude and semi-nude dancing, the court stated:
Assuming that Florida's constitutional protec-
tion of nude barroom dancing is coextensive
with the federal protections (and we are not
inclined to find a greater state protection in
this instance), a municipality's inherent
police power, exercised for the public health
and welfare, may outweigh the minimal speech
protection at stake here. "The regulation of
activity which has demonstrated a capacity to
induce breaches of the peace is a traditional
and legitimate subject for the exercise of a
municipality's police power." [citations
omitted.] . . . While some may question the
wisdom of regulating crime such as this, which
said detractors might term victimless, the
decision lies with the legislative body, not
the courts.
Here, we are also inclined not to find a greater state protection
of nude and semi-nude dancing in establishments state-licensed to
sell alcoholic beverages than what is afforded by the United States
Constitution. Accordingly, we hold that the municipal ordinance
in question is constitutionally sound under the Montana Constitu-
tion.
Affirmed.
" Chief Justice
We concur:
Justice William E. Hunt, Sr., dissenting:
I dissent. There are many ways to express an opinion. Some
people wrap themselves in the flag. Others burn it. But the
majority of us silently regard it as an emblem of the freedom to
express ourselves as we see fit. In dancing, there are many ways
to express oneself, ways that the rest of us do not always regard
as "our way.'' Some put on a pair of tights and perform classical
ballet. Others attire themselves in fancy dress and promenade on
a ballroom floor. Jimmy Lee Laedeke dons a Groucho Marx bikini and
two G-strings and prances before the patrons of The Club Carlin.
The Majority has danced the wild fandango in its zeal to
ensure that Laedeke's routine shall never again see the footlights
of Billings. First, it holds that the City is not preempted by
state liquor-control law from enacting an ordinance forbidding nude
and semi-nude dancing in establishments that serve alcohol because
the ordinance restrains conduct rather than the manufacture, sale
and distribution of alcohol. In the next breath, it holds that the
ordinance is constitutional under the Twenty-First Amendment
because it is part of a liquor-control program.
The City cannot have it both ways. Either the ordinance was
enacted as a part of a liquor-control program or it wasn't. If it
was part of a liquor-licensing scheme, the City could not enact
the ordinance because the area of alcohol sales has been
affirmatively subjected to state control. If it wasn't part of a
liquor-control program, and instead was enacted solely to regulate
conduct, the ordinance does not fit under the broad base of power
granted to the states under the Twenty-First Amendment.
A state's authority to regulate conduct under the Twenty-
First Amendment is inextricably coupled with its authority to
regulate the sale of alcohol. The amendment grants the State the
ability to proscribe conduct because "[tlhe [s]tatetspower to ban
the sale of alcoholic beverages entirely includes the lesser power
to ban the sale of liquor on premises where topless dancing
occurs." New York State Liquor Auth. v. Bellanca, 452 U.S. 714,
717, 101 S.Ct. 2599, 2601, 69 L.Ed.2d 357, 361 (1981). Strip away
the alcohol sales, as the Majority does in the first part of the
Opinion, and you have an ordinance that no longer fits under the
lesser protection of the Twenty-First Amendment. The ordinance
instead becomes a conduct-restricting regulation subject to the
greater degree of scrutiny given to all laws implicating the First
Amendment.
Thus, once the Majority determined that the City's ordinance
was not preempted by the State because it regulated conduct rather
than alcohol sales, it was required to review the constitutionality
of the law under the standards pertaining to regulations that, on
their face, restrict conduct for its communicative element. As
Justice Marshall pointed out in his dissent to California v. LaRue,
409 U.S. 109, 131, 138, 93 S.Ct. 390, 403, 407, 34 L.Ed.2d 342,
359, 363 (1972), a case concerning California laws banning sexual
conduct in bars and night clubs:
[I]n order to restrict speech, the State must show that
the speech is "used in such circumstances and [is] of
such a nature as to create a clear and present danger
that [it] will bring about the substantive evils that
[the State] has a right to prevent." (Citations omitted. )
Classifications that discriminate against the exercise
of constitutional rights per se ...
must be supported
by a ttcompellingNgovernmental purpose and must be
carefully examined to insure that the purpose is
unrelated to mere hostility to the right being asserted.
The ordinance could not pass scrutiny under this test because, as
the City acknowledged in its brief, it has failed to make a showing
of anv governmental interest furthered by the law.
What I find most disturbing about the Majority's thinly veiled
attempt to uphold this ordinance at any price is its failure to
take this opportunity to put some teeth into our state
constitutional guarantee of freedom of expression. 1972 Mont.
Const. Art. 11, 5 7. In voting unanimously to include a specific
provision for the freedom of expression in the Montana
Constitution, the Bill of Rights Committee stated:
Hopefully, this extension [of freedom of expression] will
provide impetus to the courts in Montana to rule on
various forms of expression similar to the spoken word
and the ways in which one expresses his unique
personality in an effort to re-balance the seneral
backseat status of states in the safesuardins of civil
liberties. The committee wishes to stress the primacy
of these suarantees in the hope that their enforcement
will not continue merely in the wake of the federal case
a. (Emphasis added. )
Bill of ~ i g h t scommittee Proposal, I1 Mont. Const. Convention 630
(Feb. 23, 1972).
Although the committee expressed the hope that the Montana
Constitution's freedom of expression would give broader guarantees
than the U.S. Supreme Court had accorded the right, this Court has
refused to listen to this desire. Instead, the Majority today
bestows lesser protection to the freedom of expression than that
accorded by the federal court. The Majority has not required the
City to demonstrate any governmental interest forwarded by this
ordinance. Instead, it has placed the burden of proving
unconstitutionality on Laedeke. And the standard the majority has
demanded that he use, that of a reasonable doubt, is the most
stringent standard of all. What a sad day it is when we allow a
law that on its face constricts so fundamental a right to pass
muster under the lowest possible scrutiny available.
The fact that Laedeke dances to a different choreographer
should not be a reason to deny him, and inferentially all of us,
the basic constitutional right to express our feelings whether they
are about the flag, dancing or Groucho Marx.
I would reverse.
lhzf?,d~&dA4,d!z~
Justice