Michigan Ex Rel. Wayne County Prosecutor v. Duck

Levin, J.

(separate opinion). I would deny leave to appeal, and dissent from the peremptory reversal of the Court of Appeals. I could join in an order granting leave to appeal to consider the jurisprudentially significant issue, decided without oral argument or plenary consideration in the majority opinion.

i

While the majority prefers the approach of the dissenting judge in the Court of Appeals, the determination of the majority of the Court of Appeals was not so devoid of reason as to justify peremp*371tory reversal. The majority’s decision to peremptorily reverse the decision of the Court of Appeals belittles its eiforts, in the disposition of this case, as reflected in its carefully written published opinion, and deprives Dizzy Duck and its counsel of an opportunity to fully brief and orally argue in support of the decision of the Court of Appeals.

Today’s peremptory order reflects an increasingly common method of deciding cases, a method that does not provide safeguards against hasty and ill-considered decisions, a method that is unsafe.

When this Court grants leave to appeal, there is an opportunity to educate the justices concerning the state of the record and the law through oral argument, as well as visually through briefs. A justice who may have missed a significant point of law or fact on perusal of the materials considered before voting for peremptory reversal might be enlightened and persuaded in the course of oral argument.

Peremptory disposition, without plenary consideration, full briefing, oral argument, and an opportunity for the profession to file briefs as amici curiae, should be reserved for cases in which the law is settled and factual assessment is not required.1 In the instant case, factual and legal *372assessment is required. Peremptory disposition is not appropriate.

ii

Because the majority has determined to decide this case peremptorily, I venture the following opinion on the merits.

I agree with the majority that there is sufficient evidence of solicitation to justify under Michigan ex rel Wayne Co Prosecutor v Levenburg, 406 Mich 455; 280 NW2d 810 (1979), amended 407 Mich 1147 (1979), abating the Dizzy Duck as a nuisance under the civil abatement statute.2 Additionally, there is the evidence of the activity in the fantasy room. Although there is no physical con*373tact between the woman on one side of the plexiglass and the man on the other, there is evidence that men are stimulated by women hired for that purpose to masturbate to orgasm. That constitutes lewdness within the meaning of a civil abatement statute proscribing as a nuisance maintenance of a place of lewdness, assignation, or prostitution.

III

The Court should avoid, opining with regard to lap dancing. Lap dancing is a relatively new phenomenon, and occurs at topless bars throughout the Metropolitan Detroit area and probably elsewhere in the state with at least the tacit approval of the Liquor Control Commission.

It is likely that there is a difference between the lap dancing at an Lcc-regulated establishment and the lap dancing at the Dizzy Duck.3 We do not have a record that informs us how to draw a distinction between lap dancing in one place or another. There is no need to opine respecting lap dancing, which does not ordinarily or necessarily involve stimulating men to orgasm. Possibly lap dancing with the purpose of stimulating men to orgasm should subject the place where such activity occurs to abatement as a nuisance.

Ordinary lap dancing at a topless bar subject to regulation by the lcc should be left to the lcc to regulate. This Court should not adopt a definition of lewdness that infringes on the lcc’s area of responsibility and supervision.

IV

I concur in the remand to the circuit court for *374reconsideration of the remedy on the basis of the evidence of solicitation and the activity in the fantasy room.

People v Wright, 439 Mich 914, 914-915 (1992) (Levin, J., dissenting); Roek v Chippewa Valley Bd of Ed 430 Mich 314, 322; 422 NW2d 680 (1988) (Levin, J., separate opinion); Grames v Amerisure Ins Co, 434 Mich 867, 868-875 (1990) (Levin, J., dissenting); People v Little, 434 Mich 752, 769-770; 456 NW2d 237 (1990) (Levin, J., dissenting); People v Wrenn, 434 Mich 885, 885-886 (1990) (Levin, J., dissenting); Harkins v Northwest Activity Center, Inc, 434 Mich 896, 899 (1990) (Levin, J., dissenting); Dep’t of Social Services v American Commercial Liability Ins Co, 435 Mich 508, 515; 460 NW2d 194 (1990) (Levin, J., separate opinion); Yahr v Garcia, 436 Mich 872, 872-873 (1990) (Levin, J., dissenting); Universal Underwriters Ins Co v Vallejo, 436 Mich 873, 873-874 (1990) (Levin, J., dissenting); People v Stephens, 437 Mich 903, 903-910 (1991) (Levin, J., dissenting); People v Berkey, 437 Mich 40, 54; 467 NW2d 6 (1991) (Levin, J., dissenting); Turner v Washtenaw Co Rd Comm, 437 Mich 35, 38-39; 467 NW2d 4 (1991) *372(Levin, J., separate opinion); Lepior v Venice Twp, 437 Mich 955, 956-966 (1991) (Levin, J., dissenting); Rochester Hills v Southeastern Oakland Co Resource Recovery Authority, 440 Mich 852, 852-856 (1992) (Levin, J., dissenting); In re Reinstatement of Eston. (Grievance Administrator v Eston), 440 Mich 1205, 1205-1207 (1992) (Levin, J., dissenting); In re Reinstatement of Callanan, 440 Mich 1207, 1207-1209 (1992) (Levin, J., dissenting); McFadden v Monroe Civil Service Comm, 440 Mich 890, 890-891 (1992) (Levin, J., dissenting); Holly Twp v Dep’t of Natural Resources (Holly Twp v Holly Disposal, Inc), 440 Mich 891, 891-893 (1992) (Levin, J., dissenting); Marzonie v ACIA, 441 Mich 522, 535-539; 495 NW2d 788 (1992) (Levin, J., dissenting); People v Waleed, 441 Mich 902, 902-903 (1992) (Levin, J., dissenting); People v Hardison, 441 Mich 913, 914-916 (1993) (Levin, J., dissenting); People v Justice, 441 Mich 916, 917-919 (1993) (Levin, J., dissenting); People v LaClear, 442 Mich 867, 867-871 (1993) (Levin, J., dissenting); Auto-Owners Ins Co v City of Clare, 446 Mich 1, 16-18; 521 NW2d 480 (1994) (Levin, J., dissenting); Weisgerber v Ann Arbor Center for the Family, 447 Mich 963, 964-969 (1994) (Levin, J., dissenting); Howard v White, 447 Mich 395, 405-410; 523 NW2d 220 (1994) (Levin, J., dissenting).

See Schweiker v Hansen, 450 US 785, 791; 101 S Ct 1468; 67 L Ed 2d 685 (1981) (Marshall, J., dissenting) ("A summary reversal is a rare disposition, usually reserved by this Court for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error”); Leis v Flynt, 439 US 438, 457-458; 99 S Ct 698; 58 L Ed 2d 717 (1979) (Stevens, J., dissenting) ("Summary reversal 'should be reserved for palpably clear cases of . . . error.’ Eaton v Tulsa, 415 US 697, 707 [94 S Ct 1228; 39 L Ed 2d 693 (1974)] [Rehnquist, J., dissenting]”).

MCL 600.3801; MSA 27A.3801.

Under the circumstance that liquor cannot he served at the Dizzy Duck, something more is undoubtedly offered at the Dizzy Duck, and this undoubtedly is true of lap dancing, to say nothing about the fantasy room and solicitation.