City of Las Vegas v. Dist. Ct. (Krampe)

• Decision Date: 09 November 2006
• Docket Number: No. 45222.,45222.
• Citation: City of Las Vegas v. Dist. Ct. (Krampe), 146 P.3d 240, 122 Nev. 1041 (Nev. 2006)
• Parties: CITY OF LAS VEGAS, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, in and for the COUNTY OF CLARK, and the Honorable Sally L. Loehrer, District Judge, Respondents, and Marina Krampe, Jessica Hughes, Fanny Li, Kathryn Muscato, Cassandra McQueen, Heather D'Onofrio, Anissa Burns, Erika Nann, Jennifer Magness, Elizabeth Hernandez, Michelle Admire, Tanisha Potter, Wirat Sangketkit, and Suzanne Strother, Real Parties in Interest.
• Court: Nevada Supreme Court

Page 240

146 P.3d 240

CITY OF LAS VEGAS, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, in and for the COUNTY OF CLARK, and the Honorable Sally L. Loehrer, District Judge, Respondents, and Marina Krampe, Jessica Hughes, Fanny Li, Kathryn Muscato, Cassandra McQueen, Heather D'Onofrio, Anissa Burns, Erika Nann, Jennifer Magness, Elizabeth Hernandez, Michelle Admire, Tanisha Potter, Wirat Sangketkit, and Suzanne Strother, Real Parties in Interest.

No. 45222.

Supreme Court of Nevada.

November 9, 2006.

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Bradford R. Jerbic, City Attorney, and Edward G. Poleski, Deputy City Attorney, Las Vegas, for Petitioner.

Patti & Sgro, P.C., and James A. Colin and Jonathan L. Powell, Las Vegas; John S. Rogers, Las Vegas, for Real Parties in Interest.

Before the Court En Banc.

OPINION

BECKER, J.

In this case, we consider whether a municipal court has jurisdiction to determine the constitutionality of a misdemeanor law in a criminal proceeding to enforce that law. We conclude that municipal courts have such jurisdiction. We also consider the constitutionality of Las Vegas Municipal Code (LVMC) 6.35.100(I), which prohibits certain physical contact between dancers and patrons in erotic dance establishments. We conclude that LVMC 6.35.100(I) is neither unconstitutionally vague nor overbroad.

We therefore grant the City of Las Vegas' petition for a writ of certiorari with respect to the constitutionality of LVMC 6.35.100(I) and deny the petition to the extent that it challenges the municipal court's jurisdiction to consider the constitutionality of the ordinance.

FACTS AND PROCEDURAL HISTORY

Real Parties in Interest (Dancers) were working as erotic dancers in Las Vegas when the City charged them with violating the erotic dance code, LVMC 6.35.100(I), which provides that "[n]o dancer shall fondle or caress any patron, and no patron shall fondle or caress any dancer." According to the charging documents, the violations included allegations of conduct such as a dancer "rubbing her breasts against a male patron's face, rubbing her leg against the patron's groin and grinding her buttocks against the patron's groin." Dancers challenged the constitutionality of LVMC 6.35.100(I) in two separate municipal court criminal cases, claiming that the ordinance was unconstitutionally vague and overbroad.¹

In each case, the municipal court first determined that it had jurisdiction to determine the constitutionality of the ordinance. The municipal court then concluded that LVMC 6.35.100(I) was unconstitutionally vague because it failed to put a reasonable person on notice as to what conduct was specifically prohibited. In addition, the municipal court concluded that LVMC 6.35.100(I) was unconstitutionally overbroad because it improperly prohibited arguably expressive conduct— touching as part of an erotic dance—that was otherwise protected by the First Amendment of the United States Constitution.

The City appealed the municipal court determinations to the district court, which consolidated the two cases. Following briefing and argument, the district court concluded that the municipal court had jurisdiction to address the constitutionality of LVMC 6.35.100(I) and that the municipal court properly determined that the ordinance was unconstitutionally vague and overbroad.

DISCUSSION

We agree that municipal courts have jurisdiction to consider the constitutionality of misdemeanor laws in proceedings attendant to enforcement of those laws. However, we disagree with the district court's conclusion regarding the constitutionality of LVMC 6.35.100(I). We hold that the ordinance is neither vague nor overbroad.

Standard for granting certiorari

This court has the authority to review a petition for a writ of certiorari in cases where a district court has considered an ordinance's constitutionality.² Whether an ordinance is constitutional is a question of law subject to de novo review.³

Municipal courts have jurisdiction to consider the constitutionality of misdemeanor ordinances that a city is seeking to enforce

The City contends that a district court's power to issue writs of injunction and prohibition necessarily precludes a municipal court from exercising such power.⁴ According to the City, a municipal court dismissing a case based on the unconstitutionality of the violated ordinance is akin to enjoining or prohibiting prosecution. Therefore, the City argues, only district courts possess jurisdiction to determine the constitutionality of a misdemeanor law.

We find the City's argument unpersuasive. First, like municipal courts, district courts are not expressly granted jurisdiction to consider the constitutionality of a statute.⁵ Such power is derived from a district court's authority to try cases over which it has original jurisdiction. Municipal courts have original jurisdiction over ordinance-based misdemeanors committed in their respective cities.⁶ It would be illogical to conclude that only district courts have jurisdiction to determine the constitutionality of misdemeanor ordinances when municipal courts have original jurisdiction to try cases under misdemeanor ordinances in the first instance.

Second, justice courts also lack the power to issue writs of injunction and prohibition.⁷ Nevertheless, in Salaiscooper v. District Court, we concluded that justice courts have jurisdiction to consider constitutional issues presented in criminal misdemeanor proceedings.⁸ We similarly conclude that by granting municipal courts jurisdiction over misdemeanors committed in violation of city ordinances,⁹ the Legislature has necessarily empowered municipal courts with the authority to resolve constitutional questions raised in the context of such proceedings.¹⁰ Therefore, this court's holding in Salaiscooper applies equally to municipal courts as it does to justice courts.¹¹

Third, if we accept the City's argument, then any time a municipal court dismissed a case, it would be issuing a writ of injunction or prohibition in excess of its power. Although the City's argument addresses only dismissals on constitutional grounds, under the City's premise, any dismissal would be a type of injunction or prohibition against prosecution. Thus, a municipal court would never have the power to dismiss a case, which is an absurd result that finds no support in the Legislature's creation of municipal courts.

A violation of LVMC 6.35.100(I) is a misdemeanor over which Las Vegas municipal courts have original jurisdiction.¹² Therefore, while hearing Dancers' case on the violation of the ordinance, the municipal court in that case also had jurisdiction to consider the constitutionality of LVMC 6.35.100(I).

LVMC 6.35.100(I) is not unconstitutionally vague

Dancers contend that LVMC 6.35.100(I) is unconstitutionally vague because the terms "fondle" and "caress" are not sufficiently clear to give fair notice of what conduct is prohibited and because the terms invite arbitrary and discriminatory enforcement. We disagree.

The constitutionality of a statute, or in this case an ordinance, is a question of law that this court reviews de novo.¹³ The challenger of an ordinance has the burden to make a clear showing that it is unconstitutional.¹⁴

The void-for-vagueness doctrine derives from the Due Process Clause of the Fourteenth Amendment to the United States Constitution.¹⁵ An ordinance is unconstitutionally vague and facially invalid if it "(1) fails to provide notice sufficient to enable ordinary people to understand what conduct is prohibited; and (2) authorizes or encourages arbitrary and discriminatory enforcement."¹⁶ The question of whether an ordinance is unconstitutionally vague must be determined by the terms of the ordinance at issue.¹⁷ However, particular words or phrases in an ordinance need not be read in a vacuum.¹⁸ The meaning of an ordinance's terms may be given context by the statutory scheme of which the ordinance is a part.¹⁹

When faced with language identical to that in LVMC 6.35.100(I), the United States Court of Appeals for the Ninth Circuit in Kev, Inc. v. Kitsap County concluded that Kitsap County's ordinance was not unconstitutionally vague.²⁰ Examining the terms "caressing" and "fondling" in the context of other definitions provided in the ordinance, the Ninth Circuit determined that the phrase "[n]o dancer shall fondle or caress any patron and no patron shall fondle or caress any dancer" included an intent element such that the ordinance prohibited fondling and caressing between dancers and patrons with the intent to sexually arouse or excite.²¹ The court concluded that the ordinance therefore gave fair warning of the proscribed conduct and provided adequate law enforcement standards.²²

The Kev court noted that "`[c]aressing' and `fondling' are ordinary, commonly used terms ... describ[ing] forms of affectionate touching and are not limited in meaning to affectionate touching that is sexual."²³ However, when viewed "in the context of the other definitions provided in the ordinance, e.g., . . . `dancer—a person who dances or otherwise performs for an erotic dance studio and who seeks to arouse or excite the patrons' sexual desires,"'²⁴ the court concluded that the ordinance at issue was "easily understood to prohibit sexual conduct between dancers and patrons whom the dancers intend to arouse sexually while the dancers are acting in the scope of their employment at the erotic dance studio."²⁵

Additionally, the court in Kev determined that "to find a violation of the prohibition against `caressing' and `fondling,' prosecutors must prove that a dancer or patron engaged in a specified act, i.e., fondling or caressing with the intention to sexually arouse or excite."²⁶ The court therefore concluded that the ordinance "provides an adequate standard for law enforcement officers."²⁷

Like the ordinance at issue in Kev, LVMC 6.35.100(I), when viewed in the context of...