City of Madison v. Schultz

• Decision Date: 24 July 1980
• Docket Number: No. 79-689,79-689
• Citation: 295 N.W.2d 798,98 Wis.2d 188
• Parties: CITY OF MADISON, Plaintiff-Respondent, v. Adelle SCHULTZ, d/b/a Geisha House, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 798

295 N.W.2d 798

98 Wis.2d 188

CITY OF MADISON, Plaintiff-Respondent, v. Adelle SCHULTZ, d/b/a Geisha House, Defendant-Appellant.

No. 79-689.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 2, 1979.

Opinion Released July 24, 1980.

Opinion Filed July 24, 1980.

Koritzinsky, Neider, Langer & Roberson, Madison, on brief, for defendant-appellant.

Henry A. Gempeler, City Atty., and Larry W. O'Brien, Asst. City Atty., on brief, for plaintiff-respondent.

Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.

DYKMAN, Judge.

The defendant, Adelle Schultz, d/b/a Geisha House, was convicted in the Dane County Circuit Court of four counts of violating portions of sec. 9.33, Madison General Ordinances, entitled "Regulation of Massage Establishments, Massage Technicians and Employees." The conviction resulted from a July 30, 1975 visit to her place of business by a Madison police agent.

The defendant was charged with owning, operating or managing massage establishments; employing unlicensed massage technicians; knowingly allowing the technicians to give genital massages; and permitting them to expose their sexual or genital parts to another person. These activities were forbidden by sec. 9.33, Madison General Ordinances, adopted by the Madison City Council on January 28, 1975, for the purpose of regulating massage establishments. ¹

According to the police agent's report, he paid $45 for a body massage which included "penis stimulation" from a completely nude attendant at the defendant's establishment. The session lasted approximately one hour. The basic facts were stipulated by the parties to the trial court.

On appeal, the defendant contends that:

(1) Section 9.33, Madison General Ordinances, is a constitutionally invalid exercise of the city's police power because the regulation of sexual conduct is primarily of statewide concern;

(2) Section 9.33, Madison General Ordinances, is constitutionally invalid because the state legislature has preempted the field of the regulation of sexual conduct;

(3) Section 9.33, Madison General Ordinances, or several of its provisions, violates the first, fourth, fifth and fourteenth amendments to the United States Constitution.

We reject these contentions and affirm the trial court's decision.

Conflict Between State and Local Law

The defendant first attacks sec. 9.33, Madison General Ordinances, by claiming that the City of Madison (city) had no authority to legislate in the area of criminal sexual conduct because this area is primarily a matter of statewide concern. She claims that sec. 62.11(5), Stats., provides authority to legislate only in matters of local concern. Thus, she suggests a two-step analysis to determine the validity of any municipal enactment which entails finding first, whether the concern is primarily local or statewide and second, whether state legislation has preempted it. The defendant claims that legislation, such as sec. 9.33, Madison General Ordinances, prohibiting commercial sexual activity is primarily of statewide concern and that the state has enacted preemptive legislation on the subject. She argues that sec. 9.33 is accordingly invalid.

Municipalities in Wisconsin have no inherent powers. Van Gilder v. City of Madison, 222 Wis. 58, 85, 268 N.W. 108, 109 (1936). They are authorized, however, to regulate local affairs by the Wisconsin Constitution and by sec. 62.11(5), Stats.

Article XI, sec. 3 of the Wisconsin Constitution, known as the "Home Rule Amendment," provides in pertinent part:

Cities and villages organized pursuant to state law are hereby empowered, to determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of state-wide concern as shall with uniformity affect every city or every village. The method of such determination shall be prescribed by the legislature.

Section 62.11(5), Stats., provides:

Except as elsewhere in the statutes specifically provided, the council shall have the management and control of the city property, finances, highways, navigable waters, and the public service, and shall have power to act for the government and good order of the city, for its commercial benefit, and for the health, safety, and welfare of the public, and may carry out its powers by license, regulation, suppression, borrowing of money, tax levy, appropriation, fine, imprisonment, confiscation, and other necessary or convenient means. The powers hereby conferred shall be in addition to all other grants, and shall be limited only by express language. (Emphasis added.)

The city's power to regulate sexual activity occurring in massage parlors does not derive from its constitutional grant of local power. This empowers cities to act only in areas of paramount local concern and where no legislative enactment of statewide concern and uniform application exists. See Muench v. Public Service Comm., 261 Wis. 492, 53 N.W.2d 514 on reh. 261 Wis. 515c, 515j, 55 N.W.2d 40, 45 (1952); Comment, Conflicts Between State Statute and Local Ordinance in Wisconsin, 1975 Wis.L.Rev. 840, 845; City of Plymouth v. Elsner, 28 Wis.2d 102, 106, 135 N.W.2d 799 (1965).

We hold that the regulation of massage parlors and the prohibition of commercial masturbation are primarily or paramountly areas of statewide concern. Whether a matter is one of paramount state or local concern is a judicial question. State ex rel. Michalek v. LeGrand, 77 Wis.2d 520, 253 N.W.2d 505 (1977).

The Madison ordinance is aimed at the suppression of commercial masturbation. Commercial sex has long been an activity banned by Wisconsin criminal law dealing with prostitution. The present sec. 944.30, Stats., which prohibits prostitution, dates back to 1849. Ch. 139, secs. 9 and 10, Rev.Stats. (1849). Section 944.30 was amended in 1977 to define the offense of prostitution in sub. (4) to cover one who "(m)asturbates a person or offers to masturbate a person . . . for any thing of value." Sec. 102, ch. 173, Laws of 1977. ² While this amendment came after the 1975 enactment of sec. 9.33, Madison General Ordinances, the ordinance nonetheless deals with criminal-like activity and "the suppression of crime" is a matter "of statewide concern." Van Gilder, 222 Wis. at 76, 267 N.W. at 32.

The other provisions of the ordinance which defendant violated regulate the management and licensing of massage parlors. These, too, do not deal with matters primarily of local concern, although we recognize that they reflect a mixture of state and local concerns. They fall into that "mixed bag" of local enactments, which the supreme court in Michalek, 77 Wis.2d at 527, 253 N.W.2d at 507, described as "of 'state-wide concern,' affecting the people and state at large somewhat remotely and indirectly, yet at the same time affect(ing) the individual municipalities directly and intimately."

The city has an interest in the social, moral and economic climate of its community. Many citizens find commercial sex morally and socially repugnant and potentially detrimental to the economic well-being of certain areas of the city. The citizens of Madison have obviously identified massage parlors in the city as a local problem.

On the other hand, we conclude that the subject matter of this entire regulation places it primarily in the realm of state concern. Because of the connection between various types of criminal activity, separate from the crime of prostitution ³ but commonly an offshoot of commercial sex, local and state law enforcement officials have an interest in massage parlor legislation. Furthermore, society's basic moral values are demeaned by commercial sexual activity. The state has an overriding interest in the preservation of society's basic values. See Sandalow, The Limits of Municipal Power Under Home Rule: A Role for the Courts, 48 Minn.L.Rev. 643, 708-22 (1964).

Because the regulation of commercial sexual activity is of paramount state concern, the city's power to adopt sec. 9.33, Madison General Ordinances, must come from a source other than art. XI, sec. 3, Wisconsin Constitution. We find that source in sec. 62.11(5), Stats. This section does not mean, as the defendant insists, that a municipality may not legislate in matters primarily of statewide concern. The Wisconsin Supreme Court has said in Wis. Environmental Decade, Inc. v. DNR, 85 Wis.2d 518, 533, 271 N.W.2d 69, 76 (1978), that sec. 62.11(5) "would be a nullity if it were construed to confer on municipalities only that authority which related to 'local affairs' since that power is already constitutionally guaranteed by the home rule amendment."

The city may regulate in the area of public morals because this lies within the general police powers of the state which the legislature could confer upon the city. Hack v. City of Mineral Point, 203 Wis. 215, 219, 233 N.W. 82 (1931); Highway 100 Auto Wreckers, Inc. v. City of West Allis, 6 Wis.2d 637, 643, 96 N.W.2d 85 (1959).

That sec. 62.11 confers power far beyond that conferred in the so-called general welfare clause of the general charter as it stood prior to 1921 is plain, and a city operating under the general charter, finding no limitations in express language, has under the provisions of this chapter all the powers that the legislature could by any possibility confer upon it. Hack, 203 Wis. at 219, 233 N.W. at 84.

In Wis. Environmental Decade, Inc., 85 Wis.2d 518, 271 N.W.2d 69, the Wisconsin Supreme Court approved the rule for testing the validity of a municipal ordinance enacted under sec. 62.11(5), Stats., suggested by Comment, Conflicts Between State Statutes and Local Ordinance in Wisconsin, 1975 Wis.L.Rev. at 848:

2. If a municipality acts within the legislative grant of power but not within the constitutional initiative, the state may withdraw the power to act; so if there is logically conflicting legislation, or an express withdrawal of power, the local ordinance falls. Furthermore, if the state legislat...