State v. Baxley

• Decision Date: 28 February 1994
• Citation: 633 So.2d 142
• Parties: 93-2159 La
• Court: Louisiana Supreme Court

Page 142

633 So.2d 142

93-2159 La. 2/28/94

STATE of Louisiana v. Johnny L. BAXLEY.

No. 93-KA-2159.

Supreme Court of Louisiana.

Feb. 28, 1994.

Rehearing Denied April 6, 1994.

Richard P. Ieyoub, Atty. Gen., Harry F. Connick, Dist. Atty., Mark D. Pethke, Jack Peebles, New Orleans, for applicant.

John D. Rawls, New Orleans, for respondent.

Grover Rees, III, Washington, DC, for Louisiana Counsel Knights of Columbus, Christian Coalition of Louisiana, Louisiana Public Policy (Amicus Curiae).

R. James Kellogg, New Orleans, Evan Wolfson, New York City, for Lambda Legal Defense and Educ. (Amicus Curiae).

Glenn J. Reames, New Orleans, for The John Doe Group (Amicus Curiae).

W. Lloyd Bowers, New Orleans, for Nat. Lesbian and Gay Bar Ass'n (Amicus Curiae).

Marilyn M. Fournet, Baton Rouge, for Louisiana Ass'n Crim. Defense Lawyer (Amicus Curiae).

Denise Leboeuf, New Orleans, for American Civil Liberty Union (Amicus Curiae).

Jeffrey T. Reeder, New Orleans, for Friends for Life, Capital Area Hiv-Aids Service, Philadelphia Center, No Aids Task

Force, Inc., United Service Aids Foundation (Amicus Curiae).

F. Clayton Latimer, New Orleans, Counsel for Nat. Ass'n of Social Workers (Amicus Curiae).

Ted L. Luquette, New Orleans, Ruth E. Harlow, William B. Rubenstein, Ralph E. Jones, New York City, for American Friends Service Committee, The Com'n on Social Action of Reform Judaism, Dignity/USA, Office for Church in Soc. of the United Church of Christ, General Bd. of Church and Soc. of the United Methodist Church, Unitarian Universalist Ass'n, Universal Fellowship of Metropolitan Community Churches, First Unitarian Universalist Church, New Orleans, Task Force for Gay and Lesbian Concerns of the First Unitarian Universalist Church New Orleans, Victory Fellowship Metropolitan Community Church, Shreveport, Reverend Deanne B. Aime, Rabbi David Goldstein and Reverend William P. Richardson, Jr. (Amicus Curiae).

Ronald L. Wilson, New Orleans, for Edwin A. Murray, and Arthur A. Morrell (Amicus Curiae).

[93-2159 La. 1] WATSON, Justice. ¹

This is a direct appeal from a trial court judgment holding the crime against nature statute, LSA-R.S. 14:89, an unconstitutional invasion of a citizen's right to privacy under La. Const. art. I, § 5.

FACTS

Since the trial judge granted a pretrial motion to quash, the only details about the alleged crime are in the police report, the bill of information and the pleadings. According to the state, on June 4, 1992, [93-2159 La. 2] Johnny Baxley approached an undercover police officer who was sitting on a New Orleans French Quarter stoop and offered to pay the officer $20 if he would allow Baxley to perform fellatio on him. The officer agreed and stood up, which signaled backup officers to arrest Baxley. The undercover officer was not wearing a wire; no money changed hands. Baxley admits discussion of consensual fellatio but denies a monetary offer.

Baxley was charged by bill of information with violating LSA-R.S. 14:89, relative to crime against nature. Baxley filed a motion to quash the information, asserting that the statute was unconstitutional on nineteen grounds. After a hearing, the trial court decided Baxley had standing to challenge the statute's constitutionality and that the statute violated the state constitutional right to privacy. A direct appeal was taken to this Court. La. Const. art. V, § 5(D)(1).

LAW AND ANALYSIS

LSA-R.S. 14:89 provides:

A. Crime against nature is:

(1) The unnatural carnal copulation by a human being with another of the same sex or opposite sex or with an animal, except that anal sexual intercourse between two human beings shall not be deemed as a crime against nature when done under any of the circumstances described in R.S. [93-2159 La. 3] 14:41, 14:42, 14:42.1 or 14:43. [Rape statutes.] Emission is not necessary; and, when committed by a human being with another, the use of the genital organ of one of the offenders of whatever sex is sufficient to constitute the crime.

(2) The solicitation by a human being of another with the intent to engage in any unnatural carnal copulation for compensation.

B. Whoever violates the provisions of this Section shall be fined not more than two thousand dollars, or imprisoned, with or without hard labor, for not more than five years, or both.

Initially, this Court must determine whether Baxley has standing to challenge the statute's constitutionality. "As a general rule a party does not have standing to challenge the constitutionality of a statute unless the application of that statute adversely affects him." State v. Brown, 389 So.2d 48, 50 (La.1980). Accord State v. Rue, 236 La. 451, 107 So.2d 702 (La.1958).

Baxley argues he has standing because he is charged with violating LSA-R.S. 14:89 in its entirety and because subpart (A)(1) cannot be severed from subpart (A)(2). In addition, Baxley contends attempted crime against nature under LSA-R.S. 14:89(A)(1) may be a responsive verdict to a charge under LSA-R.S. 14:89(A)(2). The state counters that the information clearly charges Baxley with a violation of LSA-R.S. 14:89(A)(2) only. The information charged, that on a specified date, Baxley:

[93-2159 La. 4] did wilfully and unlawfully violate R.S. 14:89, relative to Crime Against Nature, in that the said JOHNNY L. BAXLEY solicited POLICE OFFICER WILCE GILBERT with the intent to engage in unnatural carnal copulation for compensation to wit: ORAL COPULATION in the amount of TWENTY and 00/100 ($20.00) dollars.

The trial court found that subpart (A)(2), which prohibits solicitation of compensated unnatural carnal copulation, must be considered with subpart (A)(1), which simply prohibits unnatural carnal copulation. The trial court found the two subparts were not severable; if one subpart were unconstitutional, the other subpart would fall "of its own weight."

After finding Baxley had standing to contest the statute's unconstitutionality, the trial court held LSA-R.S. 14:89(A)(1) was an unconstitutional invasion of a citizen's right to privacy under La. Const. art. I, § 5. Since the trial court found the two subparts were not severable, the entire statute was held unconstitutional.

Art. I, § 5 provides:

Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.

Specifically, the trial court found:

[93-2159 La. 5] R.S. 14:89 makes it a crime to engage in or perform certain acts with consenting adults, in the privacy of the bedroom.... The performance of the act itself with a consenting adult, in the privacy of one's bedroom is protected by that concept of privacy explicit in our Declaration of Rights. Absent a showing by our Legislature that there is some compelling state interest in regulating the behavior of consenting adults in the privacy of their bedroom, this statute is fatally flawed.

I am finding this statute unconstitutional not because it is overbroad, nor because it's vague, I am finding it unconstitutional because it seeks to regulate behavior clearly protected by Article 1, Section 5 of our constitution. That is, it seeks to regulate sexual behavior in the confines of one's bedroom.

R.S. 14:89 makes it a crime to engage in those acts regardless of who with or where performed and regardless of whether the acts are performed for compensation....

The trial court erred in finding, under the facts alleged here, that Baxley has standing to contest the constitutionality of LSA-R.S. 14:89(A)(1). Thus, the trial court's judgment that LSA-R.S. 14:89(A)(1) violates a citizen's right to privacy under La. Const. art. I, § 5 was premature.

Through LSA-R.S. 14:89, "the legislature has proscribed two types of conduct, each of which constitutes a crime against nature. A person commits a crime against nature either by engaging in unnatural carnal copulation or by soliciting another with the intent to engage in the illicit act for compensation." State v. Woljar, 477 So.2d 80, 82 (La.1985). The terms "unnatural carnal copulation" and "solicitation by compensation" have [93-2159 La. 6] definite, accepted historical and jurisprudential meanings. See State v. Neal, 500 So.2d 374, 376 (La.1987) (and cases cited therein); Woljar, 477 So.2d at 83. "The test for severability is whether the unconstitutional portions of the statute are so interrelated and connected with the constitutional parts that they cannot be separated without destroying the intention manifested by the legislature in passing the act." State v. Azar, 539 So.2d 1222, 1226 (La.), cert. denied, 493 U.S. 823, 110 S.Ct. 82, 107 L.Ed.2d 48 (1989). Subparts (A)(1) and (A)(2) describe two different ways in which a person can commit crime against nature. These two subparts describing the prohibited actions do not depend on each other for an understanding of their meaning. Thus, if one subpart were found unconstitutional, the remaining portion could be severed from the offending portion.

On the facts presented, it is unnecessary to determine whether LSA-R.S. 14:89(A)(1) is unconstitutional and must be severed from the crime against nature statute. Baxley is charged with the conduct described by LSA-R.S. 14:89(A)(2), which prohibits soliciting compensated crime against nature. Although the parameters of the state constitutional right to privacy in the sexual area have not been determined, see Neal, 500 So.2d at 378 (privacy analysis under the federal constitution only), there is no protected [93-2159 La. 7] privacy interest in public, commercial sexual conduct. The legislature has the...