City of Nyssa v. Dufloth, CC A00080112.

• Citation: 121 P.3d 639,339 Or. 330
• Decision Date: 29 September 2005
• Docket Number: CA A113180 (control).,A113181.,CC A00080112.,A00080111.,SC S49963.
• Parties: CITY OF NYSSA, Respondent on Review, v. Sally A. DUFLOTH, Petitioner on Review. City of Nyssa, Respondent on Review, v. Duane L. Smith, Petitioner on Review.
• Court: Supreme Court of Oregon

Page 639

121 P.3d 639 339 Or. 330 CITY OF NYSSA, Respondent on Review,
v.
Sally A. DUFLOTH, Petitioner on Review.
City of Nyssa, Respondent on Review,
v.
Duane L. Smith, Petitioner on Review. CC A00080112. A00080111. CA A113180 (control). A113181. SC S49963. Supreme Court of Oregon. Argued and Submitted November 3, 2003. Decided September 29, 2005.

On review from the Court of Appeals.^*

Laura Graser, Portland, argued the cause and filed the brief for petitioners on review.

James N. Westwood, of Stoel Rives LLP, Portland, argued the cause and filed the brief for respondent on review. With him on the brief was Gary Kiyuna, of Stunz, Fonda, Kiyuna & Horton, Nyssa.

Bradley J. Woodworth and Lake James Perriguey, of Bradley J. Woodworth & Associates, PC, Portland, filed the briefs for amicus curiae Association of Club Executives.

James K. Neill and Jennifer Williamson, of Davis Wright Tremaine LLP, Portland, filed the briefs for amicus curiae Danzine.

Chin See Ming and Julia E. Markley, of Perkins Coie LLP, Portland, filed the brief for amici curiae ACLU Foundation of Oregon, Inc. and White Bird.

Carmel E. Bender, Portland, filed the brief for amicus curiae Lola Greene Baldwin Foundation for Recovery.

Robert M. Atkinson, Assistant Attorney General, Salem, filed the brief for amicus curiae State of Oregon.

Tracy Pool Reeve, Senior Deputy City Attorney, City Attorney's Office, Portland, filed the brief for amici curiae City of Portland and the League of Oregon Cities. With her on the brief was Christy K. Monson, Salem.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, De MUNIZ, and BALMER, Justices.^**

GILLETTE, J.

In this criminal case, the defendants, owners of a nude dancing club, were convicted of violating a local ordinance that required, among other things, that entertainers at such clubs remain at least four feet away from the patrons. Defendants appealed their convictions

Page 640

to the Court of Appeals, arguing that the ordinance was facially unconstitutional as an unlawful restraint on expression in violation of Article I, section 8, of the Oregon Constitution.¹ A divided, en banc Court of Appeals affirmed the ruling of the lower court. City of Nyssa v. Dufloth/Smith, 184 Or.App. 631, 57 P.3d 161 (2002). We allowed review and, for the reasons set out below, now reverse the decision of the Court of Appeals.

The pertinent facts are not in dispute. Defendants are the owners and managers of "Miss Sally's Gentlemen's Club" in the City of Nyssa. The club features nude female dancers. The club admits patrons 18 years of age and older and does not serve alcohol.

In February 2000, a police officer responded to a complaint at the club and, upon entering, saw a nude dancer kneeling against a barrier surrounding the stage, shaking her hair in a patron's face. The dancer was less than a foot away from the patron. The officer arrested defendants for violating a section of the Nyssa City Code (NCC), which provides,² in part:

"5.10.130: Every adult concession shall comply with the following standards of operation and the following standards of conduct must be adhered to by employees and entertainers of all adult concessions:

"* * * * *

"(17) No entertainer is permitted to be unclothed or in less than opaque and complete attire, costume or clothing, so as to expose to view any portion of the pubic region, buttocks, genitals, vulva, or anus, except removed at least four feet (4') from the nearest patron."³

The Nyssa Municipal Court convicted both defendants of violating that city code provision. Defendants appealed those convictions to the Malheur County Circuit Court, where they demurred to the charges, asserting that the city ordinance is an unconstitutional restriction on expression. The circuit court denied the demurrers, conducted a trial de novo, convicted defendants of the violations, and fined them each $185. Defendants appealed their convictions to the Court of Appeals.

In the Court of Appeals, defendants argued that the city's ordinance requiring entertainers in "live adult entertainment establishments" to remain four feet away from patrons impermissibly restricts expression in violation of Article I, section 8, of the Oregon Constitution and, therefore, that the circuit court erred in denying their demurrers. The city countered that the Court of Appeals recently had decided, in State v. Ciancanelli, 181 Or.App. 1, 45 P.3d 451 (2002), that nude dancing is not protected expression under the state constitution. The city also argued that the ordinance at issue is not an impermissible restriction on expression because it does not prevent or interfere with the dancers' message; rather, the ordinance is directed at preventing sexual activity and, to that end, merely imposes a reasonable restriction on conduct. Finally, the city argued

Page 641

that the ordinance did not restrict speech at all, but only restricted conduct.

The Court of Appeals majority concluded that it need not decide whether the ordinance in this case restricts expression or is aimed merely at conduct. According to the majority, even if the ordinance were directed at expression, the ordinance is not unconstitutional, because nude dancing is not expression protected under Article I, section 8, of the Oregon Constitution. In reaching that conclusion, the Court of Appeals agreed with the city that the court's earlier decision in Ciancanelli was dispositive.

In Ciancanelli, the defendants were convicted of, among other things, violating a state statute, ORS 167.062(3), which makes it a crime to "direct, manage, finance or present a live public show in which the participants engage in * * * sexual conduct." The defendants in that case had argued that that statute is unconstitutional because it is directed, by its terms, at expression.

In its opinion affirming the defendants' convictions in Ciancanelli, the Court of Appeals considered the constitutionality of the statute in light of this court's opinion in State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982). In Robertson, this court explained that Article I, section 8, contains a broad prohibition — "No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever," together with an exception — "but every person shall be responsible for the abuse of this right." According to the court in Robertson, that prohibition "forecloses the enactment of any law written in terms directed to the substance of any `opinion' or any `subject' of communication." Robertson, 293 Or. at 412, 649 P.2d 569. However, also according to the court, the sweeping prohibition set out in Article I, section 8, contains an exception for certain kinds of restrictions on expression. Under that exception, a law would survive a constitutional challenge if "the scope of the restraint [on expression] is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach." Id.

Using that analytical framework for analyzing Article I, section 8, cases, the Court of Appeals in Ciancanelli reviewed the line of laws and cases dating back to the seventeenth century dealing with public nudity and public sexual conduct, and concluded that ORS 167.062 falls within a "well-established" historical exception to the Oregon Constitution's general prohibition against laws restricting expression. Id. at 19, 45 P.3d 451. In light of that conclusion, the Court of Appeals held that, although the statute at issue is directed at expression, it does not violate Article I, section 8. 181 Or.App. at 27, 45 P.3d 451.

In the present case, the Court of Appeals reasoned that the city's nude dancing ordinance is, for purposes of constitutional analysis, indistinguishable from the nude dancing statute at issue in Ciancanelli. Accordingly, the court concluded that the Nyssa ordinance likewise does not violate Article I, section 8, even if it is aimed at expression. Dufloth/Smith, 184 Or.App. at 639, 57 P.3d 161.

Before this court, defendants argue that the ordinance at issue here is directed at expression and that the Court of Appeals misapplied the historical exception doctrine announced in Robertson when it concluded that laws dealing with nude dancing fall within an historical exception. Defendants argue that this court did not intend the "historical exception" to include that type of restriction on expression; rather, the historical exception includes only laws against "well-established conventional crimes," such as forgery, fraud, and perjury. The city, for its part, continues to contend that the ordinance's four-foot rule regulates unprotected conduct and not expression but that, even if the ordinance were held to restrain expression, it nonetheless either...