City of Las Vegas v. Eighth Judicial District Court of the State of Nevada ex rel. County of Clark
City of Las Vegas v. Eighth Judicial District Court of the State of Nevada ex rel. County of Clark
Opinion of the Court
OPINION
By the Court,
In this case, we consider whether a municipal court has jurisdiction to determine the constitutionality of a misdemeanor law in a criminal proceeding to enforce that law. We conclude that municipal courts have such jurisdiction. We also consider the constitutionality of Las Vegas Municipal Code (LVMC) 6.35.100(1), which prohibits certain physical contact between dancers and patrons in erotic dance establishments. We conclude that LVMC 6.35.100(1) is neither unconstitutionally vague nor overbroad.
We therefore grant the City of Las Vegas’ petition for a writ of certiorari with respect to the constitutionality of LVMC 6.35.100(1) and deny the petition to the extent that it challenges the municipal court’s jurisdiction to consider the constitutionality of the ordinance.
FACTS AND PROCEDURAL HISTORY
Real Parties in Interest (Dancers) were working as erotic dancers in Las Vegas when the City charged them with violating the erotic dance code, LVMC 6.35.100(1), which provides that “[n]o dancer shall fondle or caress any patron, and no patron shall fondle or caress any dancer.” According to the charging documents, the violations included allegations of conduct such as a dancer “rubbing her breasts against a male patron’s face, rubbing her leg against the patron’s groin and grinding her buttocks against the patron’s groin.” Dancers challenged the constitutionality of LVMC 6.35.100(1) in two separate municipal court criminal cases, claiming that the ordinance was unconstitutionally vague and overbroad.
The City appealed the municipal court determinations to the district court, which consolidated the two cases. Following briefing and argument, the district court concluded that the municipal court had jurisdiction to address the constitutionality of LVMC 6.35.100(1) and that the municipal court properly determined that the ordinance was unconstitutionally vague and overbroad.
DISCUSSION
We agree that municipal courts have jurisdiction to consider the constitutionality of misdemeanor laws in proceedings attendant to enforcement of those laws. However, we disagree with the district court’s conclusion regarding the constitutionality of LVMC 6.35.100(1). We hold that the ordinance is neither vague nor overbroad.
Standard for granting certiorari
This court has the authority to review a petition for a writ of certiorari in cases where a district court has considered an ordinance’s constitutionality.
Municipal courts have jurisdiction to consider the constitutionality of misdemeanor ordinances that a city is seeking to enforce
The City contends that a district court’s power to issue writs of injunction and prohibition necessarily precludes a municipal court from exercising such power.
We find the City’s argument unpersuasive. First, like municipal courts, district courts are not expressly granted jurisdiction to consider the constitutionality of a statute.
Second, justice courts also lack the power to issue writs of injunction and prohibition.
Third, if we accept the City’s argument, then any time a municipal court dismissed a case, it would be issuing a writ of in
A violation of LVMC 6.35.100(1) is a misdemeanor over which Las Vegas municipal courts have original jurisdiction.
LVMC 6.35.100(1) is not unconstitutionally vague
Dancers contend that LVMC 6.35.100(1) is unconstitutionally vague because the terms “fondle” and “caress” are not sufficiently clear to give fair notice of what conduct is prohibited and because the terms invite arbitrary and discriminatory enforcement. We disagree.
The constitutionality of a statute, or in this case an ordinance, is a question of law that this court reviews de novo.
The void-for-vagueness doctrine derives from the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
When faced with language identical to that in LVMC 6.35.100(1), the United States Court of Appeals for the Ninth Circuit in Kev, Inc. v. Kitsap County concluded that Kitsap County’s ordinance was not unconstitutionally vague.
The Kev court noted that “‘[c]aressing’ and ‘fondling’ are ordinary, commonly used terms . . . describing] forms of affectionate touching and are not limited in meaning to affectionate touching that is sexual.”
Additionally, the court in Kev determined that “to find a violation of the prohibition against ‘caressing’ and ‘fondling,’ prosecu
Like the ordinance at issue in Kev, LVMC 6.35.100(1), when viewed in the context of the other ordinances regulating erotic dance establishments, is easily understood to require an intent element. The purpose of Las Vegas’ ordinances regulating erotic dance establishments is to curb the negative secondary effects that may result from such establishments — e.g., increased prostitution, the spread of sexually transmitted diseases, drug and alcohol offenses, fraud, and other criminal activity — while balancing the arguable protection of erotic dance under the First Amendment.
The public hearings surrounding the enactment of LVMC 6.35.100(1) make clear that the ordinance was intended to prevent conduct such as lap dances and other sexually explicit touching, which frequently leads to negative secondary effects.
[N]o dancer shall fondle or caress any patron; no patron shall fondle or caress any dancer. Lap dancing whereby a dancer or performer sits upon the lap of a patron . . . alludes back to the close physical contact that’s occurring between patrons and the customers. [M]ost of the arrest reports concerning . . . soliciting prostitution in the City concerning these establishments [and] most of the conversations concerning illegal conduct . . . occur in that situation [during lap dances].32
With the above purpose and definitions as context, LVMC 6.35.100(1) prohibits fondling and caressing between dancers and patrons with the intent to sexually arouse or excite. This construction adequately puts dancers and patrons on notice as to what conduct is prohibited. Further, this construction permits touching that is not intended to sexually arouse or excite. Therefore, accidental or incidental touching would not be prohibited under the ordinance.
The above construction also provides an adequate standard for law enforcement because officers will know that, in order to prosecute someone for violating the ordinance, the prosecutor must prove that the dancer or the patron fondled or caressed the other with the intent to sexually arouse or excite. Because LVMC 6.35.100(1), viewed in its appropriate context, provides adequate notice of the prohibited conduct and provides adequate law enforcement standards, it is not unconstitutionally vague.
LVMC 6.35.100(1) is not unconstitutionally overbroad
Dancers next contend that LVMC 6.35.100(1) is unconstitutionally overbroad. Specifically, they argue that even under a construction in which “fondle” and “caress” are limited to mean “fondle and caress with the intent to sexually arouse or excite,” the ordinance unreasonably prohibits conduct that is otherwise protected by the First Amendment. We disagree.
A law is overbroad and void on its face if it “ ‘sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of’ ” protected First Amendment rights.
At the outset, we note that there is no First Amendment issue in prohibiting fondling and caressing in a general sense. Neither action is per se expressive conduct that communicates. Arguably, erotic dance is expressive conduct that communicates, which could be deserving of some level of First Amendment protection.
Further, even if fondling and caressing as part of an erotic dance are afforded First Amendment protection as expressive conduct that communicates, the protection is not absolute. Such conduct remains subject to reasonable time, place, and manner restrictions.
A government may regulate the time, place, and manner of protected expressive conduct if the regulations are “(1) content-neutral; (2) narrowly tailored to serve a significant government
Content neutrality
An ordinance is content-neutral if its aim is to control the secondary effects of the protected expressive conduct, rather than prohibiting the expression itself.
We conclude that the ordinances regulating erotic dance establishments in general, and LVMC 6.35.100(1) in particular, are aimed at curbing the negative secondary effects of erotic dancing and not at the expressive conduct itself. Therefore, LVMC 6.35.100(1) is content-neutral.
Narrow tailoring
A time, place, and manner regulation of protected expression must be narrowly tailored to the government’s legitimate content-neutral interests.
Alternative channels of communication
Finally, a valid time, place, and manner regulation must leave available alternative channels for communication of the message conveyed by the expressive conduct. Dancers do not assert that LVMC 6.35.100(1) prevents them from conveying their creative message (i.e., dance), only that the ordinance chills their ability to engage fully in their expressive conduct. Nevertheless, even if their message is slightly less effective without caressing and fondling, their message is not significantly impaired.
We therefore conclude that, even though LVMC 6.35.100(1) reaches arguably expressive conduct that communicates — fondling and caressing as part of an erotic dance — which may be protected by the First Amendment, the City may still proscribe such conduct by the legitimate time, place, and manner restrictions embodied in LVMC 6.35.100(1). Therefore, because LVMC 6.35.100(1) only reaches conduct that the City has legitimately proscribed, the ordinance is not unconstitutionally overbroad.
CONCLUSION
For the reasons discussed above, we hold that municipal courts are vested with jurisdiction to resolve constitutional issues arising
Dancers argued that erotic dance is expressive conduct, which is entitled to protection under the First Amendment of the United States Constitution. Whether erotic dance is afforded full First Amendment protection has yet to be
NRS 34.020(3).
See Silver v. Dist. Ct., 122 Nev. 289, 292, 129 P.3d 682, 684 (2006).
See Nev. Const. art. 6, § 6, cl. 1 (granting district court judges the power to issue writs of mandamus, prohibition, injunction, quo warranto, certiorari, and other writs necessary to the exercise of their jurisdiction).
See id.
NRS 5.050(2).
See NRS 4.370.
117 Nev. 892, 900-01, 34 R3d 509, 514-15 (2001).
See NRS 5.050(2).
Salaiscooper, 117 Nev. at 900, 34 P.3d at 514.
We note that we have previously held that municipal courts lack jurisdiction to determine the constitutionality of ordinances imposing a licensing tax and ordinances imposing a court assessment fee. In Re Dixon, 40 Nev. 228, 161 P. 737 (1916), overruled in part by Salaiscooper, 117 Nev. at 901, 34 P.3d at 515; McKay v. City of Las Vegas, 106 Nev. 203, 205, 789 P.2d 584, 585 (1990), overruled in part by Salaiscooper, 117 Nev at 901, 34 P.3d at 515. See also NRS 5.050(4). As we stated in Salaiscooper, however, neither prior holding “should be read for the proposition that municipal or justice courts have no authority whatever to consider issues of constitutional dimension.” Salaiscooper, 117 Nev. at 900, 34 P.3d at 515. Dixon and McKay are limited on their facts to cases involving taxes and assessments, and their holdings are now expressly embodied in NRS 5.050(4).
See LVMC 6.35.170; NRS 5.050(2).
See Sheriff v. Burdg, 118 Nev. 853, 857, 59 P.3d 484, 486 (2002) (citing SIIS v. United Exposition Services Co., 109 Nev. 28, 30, 846 P.2d 294, 295 (1993)).
See id. (citing Childs v. State, 107 Nev 584, 587, 816 P.2d 1079, 1081 (1991)).
City of Las Vegas v. Dist. Ct., 118 Nev. 859, 862, 59 P.3d 477, 480 (2002).
See Mangarella v. State, 117 Nev. 130, 137, 17 P.3d 989, 993 (2001).
See id.
See Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1057-58 (9th Cir. 1986).
See id. Dancers attempt to distinguish Kev on the ground that Kitsap County’s erotic dance ordinance also required dancing to take place at least ten feet from patrons on a raised platform. See id. at 1061. This argument lacks merit. The court in Kev did not rely on the distance requirement when determining the appropriate definitions of “fondle” and “caress.” See id. at 1057-58. The intent element provided by the context surrounding LVMC 6.35.100(1) adequately satisfies the requirements to thwart a vagueness challenge.
Id. at 1057 (citing Webster’s Third New International Dictionary 339, 883 (1971)).
Id. (quoting Kitsap County Ordinance No. 92-A, § 2c) (emphasis added in Kev).
Id.
Id. at 1057-58.
Id. at 1058.
See LVMC 6.35.010(A); LVMC 6.35.020.
LVMC 6.35.030(E) (emphasis added).
LVMC 6.35.030(B) (emphasis added).
See City of Las Vegas, Recommending Committee Minutes, Combined Verbatim Transcript—Item 5: Bill 95-40, Item 6: Bill 95-41 and Item 7: Bill 95-42 (July 31, 1995).
Id. at 12 (statement of Lt. Bill Young commenting on section (j) of Bill 95-40, which became LVMC 6.35.100(1)).
Id. at 4 (statement of City Attorney Jerbic).
Id. at 5.
City of Las Vegas, 118 Nev. at 863 n.14, 59 P.3d at 480 n.14 (quoting Thornhill v. Alabama, 310 U.S. 88, 97 (1940)).
Osborne v. Ohio, 495 U.S. 103, 112 (1990) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)).
Id. (quoting New York v. Ferber, 458 U.S. 747, 770 n.25 (1982)) (internal quotation marks omitted).
See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66 (1991) (plurality opinion) (stating that Supreme Court precedent indicated that “nude dancing ... is expressive conduct within the outer perimeters of the First Amendment, though . . . only marginally so”); id. at 584 (Souter, J., concurring) (“ ‘[Society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate.’” (quoting Young v. American Mini Theatres, 427 U.S. 50, 70 (1976) (plurality opinion))); Colacurcio, 163 F.3d at 550 (“The fragmented nature of Supreme Court opinions dealing with nude dancing in particular and sexually explicit but non-obscene conduct in general has resulted in a lack of clear guidance on the level of First Amendment protection afforded to this type of expression.”); Erwin Chemerinsky, Constitutional Law § 11.3.4.4, at 838-40 (1st ed. 1997) (discussing that the Supreme Court has historically treated nude dancing as being “low value” speech).
See Barnes, 501 U.S. at 565-72 (applying time, place, and manner analysis in a nude-dancing context to an ordinance proscribing public nudity, which the Indiana Supreme Court construed as precluding nudity in places of public accommodation); see also Kev, 793 F.2d at 1058-62 (applying time, place, and manner analysis to erotic dance ordinances after determining that topless dancing is protected expression).
Colacurcio, 163 F.3d at 551 (citing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). We note that the test articulated above is the equivalent of the test set out in United States v. O’Brien, 391 U.S. 367 (1968), which Dancers rely on. See Colacurcio, 163 F.3d at 551 n.4.
Colacurcio, 163 F.3d at 551.
LVMC 6.35.020.
LVMC 6.35.010(A).
Colacurcio, 163 F.3d at 553.
See Kev, 793 F.2d at 1061.
Id. (citing Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243, 1246 (9th Cir. 1982)).
Concurring in Part
with whom Maupin, J., agrees, concurring in part and dissenting in part:
I concur with the majority’s denial of the City of Las Vegas’ petition for a writ of certiorari regarding the City’s challenge to the municipal court’s jurisdiction to consider Las Vegas Municipal Code (LVMC) 6.35.100(1)’s constitutionality. However, I dissent from the majority’s grant of the City’s petition with respect to LVMC 6.35.100(I)’s constitutionality, and I conclude that LVMC 6.35.100(1) is void for vagueness.
A statute is unconstitutionally vague if it “(1) fails to provide notice sufficient to enable persons of ordinary intelligence to understand what conduct is prohibited and (2) lacks specific standards, thereby encouraging, authorizing, or even failing to prevent arbitrary and discriminatory enforcement.”
LVMC 6.06B.030(E) defines “[fjondle or caress” as “the conduct or affectionate touching that is intended to sexually arouse (may include ‘sexual conduct’).” “Sexual conduct” is defined as ‘ ‘the engaging in or the commission of an act of sexual intercourse, oral-genital contact, or the touching of the sexual organ, pubic region, buttock or female breast of a person for the purpose of arousing or gratifying the sexual desire of another person.”
For those same reasons, I conclude that LVMC 6.35.100(1) encourages and fails to prevent arbitrary and discriminatory enforcement. LVMC 6.35.100(1) gives no specific guidelines for determining when touching has become prohibited. This affords law enforcement officers great discretion in interpreting and enforcing LVMC 6.35.100(1). Accordingly, I dissent from the majority’s conclusion that LVMC 6.35.100(1) is not unconstitutionally void for vagueness. I would deny the City’s petition for a writ of certiorari in whole.
Silvar v. Dist. Ct., 122 Nev. 289, 293, 129 P.3d 682, 685 (2006).
793 F.2d 1053 (9th Cir. 1986).
See generally id. The differences in the ordinances notwithstanding, I disagree with the Ninth Circuit Court of Appeal’s analysis and conclusion in Kev.
LVMC 6.06B.030(I).
Reference
- Full Case Name
- CITY OF LAS VEGAS v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE SALLY L. LOEHRER, District Judge, and MARINA KRAMPE, JESSICA HUGHES, FANNY LI, KATHRYN MUSCATO, CASSANDRA McQUEEN, HEATHER D'ONOFRIO, ANISSA BURNS, ERIKA NANN, JENNIFER MAGNESS, ELIZABETH HERNANDEZ, MICHELLE ADMIRE, TANISHA POTTER, WIRAT SANGKETKIT, and SUZANNE STROTHER, Real Parties in Interest
- Cited By
- 7 cases
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- Published