Connick v. Lucky Pierre's

• Citation: 331 So.2d 431
• Decision Date: 29 March 1976
• Docket Number: No. 57154,57154
• Parties: Harry CONNICK, District Attorney for New Orleans v. LUCKY PIERRE'S et al.
• Court: Supreme Court of Louisiana

Page 431

331 So.2d 431

Harry CONNICK, District Attorney for New Orleans v. LUCKY PIERRE'S et al.

No. 57154.

Supreme Court of Louisiana.

March 29, 1976.

Dissenting Opinion May 17, 1976.

William J. Guste, Jr., Atty. Gen., Robert L. Livingston, Jr., Asst. Atty. Gen., Harry F. Connick, Dist. Atty., William F. Wessel, First Asst. Dist. Atty., for plaintiff-appellant.

John R. Martzell, Martzell & Montero, New Orleans, for defendants-appellees.

CALOGERO, Justice.

Invoking the provisions of R.S. 13:4711, ¹ the district attorney for Orleans Parish filed a petition for an injunction and abatement of nuisance against the owners, the lessees/sub-lessors, a bartender, and the sub-lessee business operator of the premises and business at 735 Bourbon Street in New Orleans known as Lucky Pierre's. He alleged that 735 Bourbon Street was 'a place in which assignation, prostitutions and solicitation, is practiced, initiated, solicited for and permitted to exist as a practice,' and that the 'defendants have maintained this nuisance or knowingly permitted it to exist without instituting legal proceedings to enjoin it.' The district attorney asked that defendants be enjoined from permitting the continuation and existence of the alleged nuisance and that an order of abatement issue directing the closing of the business and premises for a period of one year. Abatement under La.R.S. 13:4715, which can be ordered only as to the owner, was removed from the litigation when plaintiff moved to dismiss the suit against the owner without prejudice.

Prior to hearing on the request for a preliminary injunction defendants presented, as a part of a preemptory exception of no cause of action, the argument that La.R.S. 13:4711 et seq. is unconstitutionally vague. The district court agreed with this contention, found the statute to be void for vagueness, and sustained the exception of no cause of action with respect to the injunctive relief sought, and to that extent dismissed plaintiff's petition. Plaintiff has appealed to this Court under the provisions of Article V, Section 5(D)(1) of the Louisiana Constitution of 1974, which provides for direct appeal to the Supreme Court in a case in which a law or ordinance has been declared unconstitutional.

La.R.S. 13:4711 permits the enjoining of the 'maintenance of a nuisance' after first defining the same as follows: 'to carry on, to conduct or to knowingly permit to exist, without instituting and proceeding with the legal action necessary to enjoin, prostitution, assignation or obscenity as now defined, or as hereafter defined, by the criminal laws of this state.' Additionally if it can be established that the owner of the building knew of the maintenance of the nuisance but did not institute and proceed with the legal action necessary to enjoin its continuance, the judge may enter, as part of the judgment rendered in the injunction proceeding, an order of abatement directing the effectual closing of the building for one year. La.R.S. 13:4715. ² Among the persons who may petition for the issuance of an injunction or an order of abatement is the district attorney in the name of his parish. La.R.S. 13:4712. ³

Violation of the provisions of an injunction or order of abatement issued under these provisions constitutes contempt of court and is punishable by a fine of not less then $100 nor more than $500 or by imprisonment in the parish prison for not more than one year or both. If the offender is convicted of a second or subsequent contempt, the punishment shall be both fine and imprisonment. La.R.S. 13:4714, 4715.

Before the district court, defendants in the instant case set forth five grounds in support of their exception of no cause of action, including the allegation that La.R.S. 13:4711 et seq. is void for vagueness both on its face and as applied. Since the district court ruled the statute unconstitutional on the basis of this vagueness attack, we shall confine our consideration here to that issue.

The fourteenth amendment of the United States Constitution, as well as Article I, Section 2 of the Louisiana Constitution of 1974, command that words and phrases used in statutes be not so vague and indefinite that any 'penalty' prescribed for their violation constitutes the taking of liberty or property without due process of law. Wright v. Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed.2d 888 (1939); State v. Lindsey, 310 So.2d 89 (La.1975); City of Shreveport v. Brewer, 225 La. 93, 72 So.2d 308 (1954). Thus any statute which either forbids or requires the doing of an act and which, therefore, acts as a guide to future conduct, is deemed to be void for vagueness if 'men of common intelligence must necessarily guess at its meaning and differ as to its application . . ..' Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). See U.S. v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); State v. Dardar, 257 La. 191, 241 So.2d 905 (1970); State v. Cloud, 248 La. 125, 176 So.2d 620 (1965); State v. Robertson, 241 La. 249, 128 So.2d 646 (1961); Note, 109 U.Pa.L.Rev. 67 (1960); Note, 62 Harv.L.Rev. 77 (1948).

La.R.S. 13:4711 et seq. requires owners, lessees, sublessees, employees and other persons in active concert or participation with them to institute and proceed 'with the legal action necessary to enjoin prostitution, assignation or obscenity . . ..' or be faced with a law suit seeking to enjoin them from maintaining that nuisance and, possibly to close down their businesses and/or premises for one year. As previously noted, if an injunction is issued or abatement ordered, a party subsequently adjudged to have violated the injunction or order is subject to fixed, definite penalties. Thus, since defendants in the instant case face the potential imposition of a fine and/or imprisonment, as well as a threat to their property interest, they are entitled to due process of law under both the United States and Louisiana Constitutions. We must, therefore, examine the provisions and terms of La.R.S. 13:4711 et seq. to determine whether they give persons of ordinary intelligence fair notice of what conduct is prohibited or required or whether they are so unclear or indefinite that the statute is void for vagueness.

The activities which are the focus of this public nuisance statute are 'prostitution, assignation or obscenity As now defined, or as hereafter defined, by the criminal laws of this state' (emphasis added) La.R.S. 13:4711. In the instant case, there was no charge relative to obscenity. With respect to the allegations of assignation and prostitution contained in the petition, however, there is arguably some uncertainty as to what conduct on the premises will, if proved, bring the provisions of this statute into play. Assignation is nowhere defined in the criminal statutes of this state, but has been defined in the jurisprudence as 'solicitation for prostitution and for crimes against nature.' Garison v. Menendez, 158 So.2d 856 (La.App.4th Cir. 1963). ⁴ On the other hand, prostitution is defined in La.R.S. 14:82 as 'the practice by a female of indiscriminate sexual intercourse with males for compensation.' However, there has been confusion as to the conduct proscribed by this penal provision since, although the words of the statute seem to indicate that an act of sexual intercourse must be proved, the jurisprudence, in cases dealing with the public nuisance provisions and with the pandering statute, contains language indicating that proof of an Offer to engage in indiscriminate sexual intercourse for compensation is enough. See State v. Bourg, 248 La. 844, 182 So.2d 510, cert. denied 385 U.S. 866, 87 S.Ct. 127, 17 L.Ed.2d 93 (1966); Parish of St. Landry ex rel. Goudeau v. Veillon, 308 So.2d 830 (La.App.Orl.1955). But see State v. Butler, 331 So.2d 425 (La.1976), No. 56,978 (decided this day), where we state that prostitution, as presently defined in La.R.S. 14:82, requires proof of an Act of indiscriminate sexual intercourse.

At this time, however, it is not essential to resolve the problems with respect to the definitions of assignation and prostitution, for we conclude that the phrase 'without instituting and proceeding with the legal action necessary to enjoin . . .' is so vague and indefinite that it does not give adequate notice of what action must be taken in order to avoid the issuance of an injunction or an order of abatement, or, once issued, of how to avoid being held in contempt for violation of the injunction. For this reason, La.R.S. 13:4711 et seq. violates the due process clauses of the United States and Louisiana Constitutions and is void for vagueness.

By the terms of La.R.S. 13:4711 et seq., defendants are being told that they have an affirmative duty to institute and proceed with the legal action necessary to enjoin any acts of prostitution or assignation which they know are taking place in a building which they lease or in the place of business which they operate or where they are employed. For example, the attorney general in his brief to this Court suggests that 'if an operator is informed by the police that prostitutes frequently use his premises to solicit for prostitution, is shown photographs of known offenders, sees them in his place, sees them leaving the establishment with different male patrons and does nothing, then it is obvious that he in effect acquiesced in the practice.' Assuming that this is so, this operator in order to avoid the consequences of La.R.S. 13:4711 et seq. is required to institute and proceed 'with the legal action necessary to enjoin' these activities. But in actuality any person, even a reasonably intelligent one, is left in a quandary because he does not know the extent or the scope of the obligation allegedly imposed upon him.

It has been suggested in briefs and on oral argument that this terminology may...