Chelsea Theater Corp. v. City of Burlington, 2-58941

Decision Date19 October 1977
Docket NumberNo. 2-58941,2-58941
Citation258 N.W.2d 372
Parties3 Media L. Rep. 1718 CHELSEA THEATER CORPORATION, Appellee, v. The CITY OF BURLINGTON, Iowa, Wayne W. Hogberg, Mayor, Lowell H. Bauer, Elaine Baxter, Jack Waldhoff, De Edwin White, City Council Members, and Eugene Loose, Chief of Police, Burlington, Iowa, Appellants.
CourtIowa Supreme Court

Charles O. Garretson and Hirsch, Wright, Link & Adams, Burlington, for appellants.

Raymond Rosenberg, Des Moines, and Wittkamp & Waples, Burlington, for appellee.

Heard by MOORE, C. J., and RAWLINGS, REES, HARRIS and McCORMICK, JJ.

McCORMICK, Justice.

The question here is whether a local governmental unit has power to legislate against obscene material in Iowa. At issue is an ordinance of the City of Burlington which purports to regulate obscene materials in that community. The trial court held that § 725.9, The Code, deprives the City of authority to enact an ordinance regulating the availability of obscene materials. We affirm.

In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the United States Supreme Court enunciated federal constitutional standards governing state obscenity legislation. When an Iowa obscenity statute, § 725.3, The Code, 1971, was subsequently attacked in State v. Wedelstedt, 213 N.W.2d 652 (Iowa 1973), we struck the statute because it did not comport with Miller vagueness and overbreadth criteria. We added that, "The proper forum for the difficult task of reconstructing Code section 725.3 and our other obscenity statutes is the legislature." 213 N.W.2d at 657.

The legislature revised the Iowa obscenity statutes in 1974. See Acts 65 G.A. ch. 1267. The new law regulated the dissemination and exhibition of obscene material only with regard to minors, leaving Iowa without a statute regulating obscenity in relation to adults. See §§ 725.1-725.10, The Code.

In 1975 the City of Burlington passed its Ordinance No. 2502 which included provisions defining and prohibiting the sale and distribution of obscene material and public displays of explicit sexual material. Plaintiff Chelsea Theater Corporation, an "adult" movie theater operator, then brought this action against the City, its mayor, city council members and chief of police seeking to have the ordinance invalidated and its enforcement enjoined. After the trial court granted the relief requested, defendant appealed.

The dispute concerns the meaning of § 725.9, The Code, which provides:

In order to provide for the uniform application of the provisions of sections 725.1 to 725.10 relating to obscene material applicable to minors within this state, it is intended that the sole and only regulation of obscene material shall be under the provisions of said sections, and no municipality, county or other governmental unit within this state shall make any law, ordinance or regulation relating to the availability of obscene materials. All such laws, ordinances or regulations, whether enacted before or after this act, shall be or become void, unenforceable, and of no effect upon July 1, 1974.

Plaintiff contends the state preempted the right of the City to enact an ordinance regulating obscene material by this provision, and defendants assert the state preempted only the right to regulate obscene material with regard to minors.

Defendants rely on the City's home rule power to enact ordinances not "inconsistent with the laws of the general assembly." See Ia.Const. Art. 3 § 38A. An ordinance "is not inconsistent with a state law unless it is irreconcilable with the state law." § 364.2(3), The Code. Plaintiff maintains, and the trial court agreed, that the ordinance here is irreconcilable with state law because proscribed by § 725.9.

General principles of statutory interpretation and construction are summarized in Iowa National Industrial Loan Company v. Iowa Department of Revenue, 224 N.W.2d 437 (Iowa 1974).

Defendants argue that § 725.9 was intended to preempt for the state only the right to legislate regarding minors because its introductory clause says it was enacted "(i)n order to provide for the uniform application of the provisions of section 725.1 to 725.10 relating to obscene material applicable to minors within this state * * * ." The problem with this argument is that the statement of intention and proscription which follow this prefatory clause are not qualified in the same way. After next stating "it is intended that the sole and only regulation of obscene material shall be under the provisions of said sections," the legislature provided "no municipality, county or other governmental unit within this state shall make any law, ordinance or regulation relating to the availability of obscene materials." We believe the language of this provision plainly expresses a legislative intention to deny political subdivisions the power to enact any law, ordinance or regulation relating to the availability of obscene material. The language in the introductory clause of § 725.9 relied on by the City is merely descriptive of the state law. The legislature flatly stated its intention that the only regulation of obscene material be by state law and then, in unmistakably clear terms, barred local legislation on the subject.

The United States Supreme Court took the...

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13 cases
  • Marshall v. State (In re Marshall)
    • United States
    • Iowa Supreme Court
    • September 2, 2011
    ...to narrow the scope of the detention of material witnesses in Iowa and not adopt the federal model. See Chelsea Theater Corp. v. City of Burlington, 258 N.W.2d 372, 374 (Iowa 1977) (stating “[t]he striking of a provision before enactment of a statute is an indication the statute should not ......
  • U.S. v. Wedelstedt
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • January 9, 1979
    ...of obscene material to adults." Id. at 309, 97 S.Ct. at 1768 (Powell, J. concurring).) 12 See also Chelsea Theater Corp. v. City of Burlington, 258 N.W.2d 372 (Iowa 1977). We think the court's instruction to the jury on Iowa law, which was favorable to defendant's position, obviates any err......
  • Iowa Bankers Ass'n v. Iowa Credit Union Dept.
    • United States
    • Iowa Supreme Court
    • June 15, 1983
    ...Higher Education Association v. Public Employment Relations Board, 269 N.W.2d 446, 448 (Iowa 1978); Chelsea Theater Corp. v. City of Burlington, 258 N.W.2d 372, 374 (Iowa 1977) (striking of provision before enactment indicates statute should not be construed to include it). Our conclusion f......
  • Goodell v. Humboldt County
    • United States
    • Iowa Supreme Court
    • March 5, 1998
    ...preemption occurs when the general assembly has specifically prohibited local action in an area. E.g., Chelsea Theater Corp. v. City of Burlington, 258 N.W.2d 372, 373 (Iowa 1977) (holding state has expressly proscribed local regulation of obscene materials). Obviously, any local law that r......
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