836 F.2d 1185 (9th Cir. 1988), 85-1877, IDK, Inc. v. Clark County

Docket Nº:85-1877.
Citation:836 F.2d 1185
Party Name:IDK, INC., a Nevada corporation; Showgirls of Las Vegas, Inc., a Nevada corporation; Golden Girls, a Nevada corporation; Playgirls, a sole proprietorship; et al., Plaintiffs-Appellants, v. COUNTY OF CLARK; Thalia M. Dondero, Manuel J. Cortez, Karen Hayes, Paul May, R.J.
Case Date:January 08, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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836 F.2d 1185 (9th Cir. 1988)

IDK, INC., a Nevada corporation; Showgirls of Las Vegas,

Inc., a Nevada corporation; Golden Girls, a

Nevada corporation; Playgirls, a sole

proprietorship; et al.,

Plaintiffs-Appellants,

v.

COUNTY OF CLARK; Thalia M. Dondero, Manuel J. Cortez, Karen

Hayes, Paul May, R.J. "Dick" Ronzone, Donald M. Clark and

Bruce L. Woodbury, in their capacity as members of the Clark

County Liquor and Gaming Licensing Board; et al.,

Defendants-Appellees.

No. 85-1877.

United States Court of Appeals, Ninth Circuit

January 8, 1988

        Argued Oct. 1, 1986.

        Submitted Nov. 4, 1986.

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[Copyrighted Material Omitted]

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        Vincent Savarese, III, Savarese & Chesnoff, Ltd., Las Vegas, Nev., for plaintiffs-appellees.

        S. Mahlon Edwards, Deputy Dist. Atty., Las Vegas, Nev., for defendants-appellees.

        Appeal from the United States District Court for the District of Nevada.

        Before ALARCON, BOOCHEVER and REINHARDT, Circuit Judges.

        BOOCHEVER, Circuit Judge:

        IDK, Inc., and other escort services located in the County of Clark appeal the district court's entry of summary judgment that the county's regulation concerning licensing and control of escort services and their employees is constitutional on its face. They contend the regulation violates the first and fourteenth amendments to the Constitution and seek a declaration that the regulation is unconstitutional, a permanent injunction against its enforcement, compensatory and punitive damages, and attorneys' fees. We affirm. The regulation is facially constitutional because it does not reach a substantial amount of constitutionally protected activity and is not vague in all possible applications.

        FACTS

        Escort services provide their clientele with companions for a fee. The county has tried several times to control their operation. It contends that most if not all escort services are little more than "modified brothels." In a previous attempt, the county prohibited working as a paid social companion or escort or operating an escort bureau as a business. The Supreme Court of Nevada held that the definitions of "social companion" and "escort" were unconstitutionally vague. Eaves v. Board of Clark County Comm'rs, 96 Nev. 921, 620 P.2d 1248 (1980). The definitions of these terms did not provide fair notice of the activities prohibited by the statute: social secretaries, babysitters, and companions for the aged and infirm could only guess whether they were guilty of impermissible conduct. Id. at 924, 620 P.2d at 1250.

        The county then enacted the regulation at issue here and has since amended it twice. On appeal, we review the regulation in its present form. Bradley v. School Bd., 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974); Thorpe v. Housing Auth., 393 U.S. 268, 281-82, 89 S.Ct. 518, 526, 21 L.Ed.2d 474 (1969). Subsections 40 and 50 of Chapter 8.32 in Title 8 of the Clark County Code (CCC) make it unlawful to operate an escort service or work as an escort without a license from the county. The regulation defines "escort" and "escort bureau" and distinguishes between "service oriented" and "sexually oriented" escorts and escort bureaus. CCC Sec. 8.32.060(A)-(B). 1 Sexually oriented escort

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bureaus may not receive licenses and escort bureaus that operate in a sexually oriented manner may have their licenses revoked. CCC Secs. 8.32.080(J), 8.32.140(d). Advertising that suggests escorts will provide "sexual stimulation" or "sexual gratification" is prohibited, CCC Sec. 8.32.120; those terms are defined elsewhere in the regulation. CCC Sec. 8.32.060(Q)-(R). 2 Applicants must meet detailed criteria and comply with strict reporting requirements to qualify for a license. CCC Sec. 38.32.080(B)-(F), (I)-(J). The plaintiffs

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were granted licenses under the first version of the challenged regulation.

        In a previous action involving different plaintiffs, the Supreme Court of Nevada found that the regulation was not unconstitutionally overbroad or vague and refused to grant a preliminary injunction against its enforcement. Republic Entertainment, Inc. v. Clark County Liquor & Gambling Licensing Bd., 99 Nev. 811, 672 P.2d 634 (1983). The district court reached the same conclusion in this case and denied IDK's request for a preliminary injunction, IDK Inc. v. County of Clark, 599 F.Supp. 1402 (D.Nev.1984), and later granted the county's motion for summary judgment denying a permanent injunction.

        ANALYSIS

       I. Standard of Review

        We review the grant or denial of a motion for summary judgment de novo, applying the same standard applied by a trial court under Rule 56(c) of the Federal Rules of Civil Procedure: is there a genuine issue as to any material fact and is the moving party entitled to a judgment as a matter of law? Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). We view the evidence from the perspective most favorable to the party opposing the motion. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986).

        Although IDK forcefully argues that genuine issues of material fact exist, it does not tell us what they are. Our examination of the record reveals none. Summary judgment in cases involving constitutional issues is often undesirable because a court benefits from a well-developed record when deciding complex and important questions. See Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971). Facial challenges to statutes on first amendment grounds, however, may involve questions on which summary judgment is often appropriate. See, e.g., Heffron v. International Soc'y for Krishna Consciousness, 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981); Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). While summary judgment may be a suitable procedure for resolving facial challenges, such a questioning of a "legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, --- U.S. ----, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987).

        The challenge is to the statute itself, not its application to a specific event:

Procedures for testing the constitutionality of a statute "on its face" in the manner apparently contemplated by Dombrowski [v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) ], and for then enjoining all action to enforce the statute until the State can obtain court approval for a modified version, are fundamentally at odds with the function of the federal courts in our constitutional plan. The power and duty of the judiciary to declare laws unconstitutional is in the final analysis derived from its responsibility for resolving concrete disputes brought before the courts for decision.... [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes ... ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided.

        Younger v. Harris, 401 U.S. 37, 52-53, 91 S.Ct. 746, 754-55, 27 L.Ed.2d 669 (1971) (citations omitted). These lines of Justice Black not only illustrate the legalistic nature of a facial challenge to a statute but also suggest that, even with a full trial of such cases, courts should rarely grant relief.

        There is an extensive record in this dispute. We have the benefit of two decisions from the Nevada Supreme Court and the

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district court's detailed ruling on the preliminary injunction request. The district court held oral argument before denying that request and before granting the motion for summary judgment. The parties briefed the issues extensively both here and below. The county submitted numerous exhibits to the district court which gave the history of the regulation and the county's reasons for enacting it.

        Given the absence of a genuine issue of material fact and the presence of a well-developed record, we need review only the district court's application of the law.

       II. Facial Challenges under the First Amendment

        In analyzing the constitutional issues raised by this appeal, it is important to recognize the nature of the challenge to the county's regulations. IDK and the other escort services who brought this action were granted licenses by the county. No party has appealed from the denial of a license nor are we confronted with an appeal from a revocation of the licenses. The case was brought as a facial challenge only, and it is in that context that we undertake our review.

        Courts permit facial challenges to statutes under the first amendment because its

freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.

        NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963) (citations omitted). Because of the chilling effect a statute might have on the freedoms of expression and association, an expedited determination of its constitutionality is preferable. "If the rule were otherwise, the contours of regulation...

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