Crownover v. Musick

Decision Date01 May 1973
Citation9 Cal.3d 405,107 Cal.Rptr. 681,509 P.2d 497
CourtCalifornia Supreme Court
Parties, 509 P.2d 497 June CROWNOVER et al., Plaintiffs and Respondents, v. James A. MUSICK, as Sheriff, etc., Defendant and Appellant. Clarence REYNOLDS et al., Plaintiffs and Appellants, v. CITY OF SACRAMENTO, Defendant and Respondent. Leonard L. GLANCY et al., Plaintiffs and Appellants, v. COUNTY OF SACRAMENTO, Defendant and Respondent. Leonard L. GLANCY et al., Plaintiffs and Appellants, v. The MUNICIPAL COURT FOR the SACRAMENTO JUDICIAL DISTRICT OF SACRAMENTO COUNTY, Defendant and Respondent; The PEOPLE, Real Party in Interest and Respondent. L.A. 29917, Sac. 7904, Sac. 7905 and Sac. 7906. In Bank

Cecil Hicks, Dist. Atty., Michael R. Capizzi, Asst. Dist. Atty., and Oretta D. Sears, Deputy Dist. Atty., for defendant and appellant.

Peter B. Van Gelder and Ronald F. Sypnicki, Sacramento, for plaintiffs and appellants.

Roger A. Newlander, Santa Clara, as amicus curiae on behalf of plaintiffs and appellants and plaintiffs and respondents.

Evelle J. Younger and Thomas C. Lynch, Attys. Gen., Doris H. Maier, Asst. Atty. Gen., Daniel J. Kremer, Deputy Atty, Gen., James P. Jackson, City Atty., John Liebert, Deputy City Atty., John B. Heinrich, County Counsel, Robert L. Pleines, Deputy County Counsel, Berrien E. Moore and Kenneth P. Scholtz, Gardena, for plaintiffs and respondents, for defendants and respondents and for real party in interest and respondent.

Robert Flandrick, City Atty. (Bell), Martin & Flandrick and Jack L. White, San Marino, as amici curiae on behalf of defendant and appellant, defendants and respondents and real party in interest and respondent.

SULLIVAN, Justice.

In these four cases, consolidated on appeal, we must determine the constitutionality of ordinances of the Counties of Orange and Sacramento and of the City of Sacramento which prohibit the service of food or drink and the providing of entertainment by so-called 'topless' women and 'bottomless' persons of either sex in any establishment, and also prohibit live acts and exhibitions by such persons in any public place or place open to the public or to public view, excepting in all instances theaters or similar establishments primarily devoted to theatrical performances. All of the ordinances in question were adopted pursuant to Penal Code sections 318.5 1 and 318.6, 2 which were added to the Penal Code in 1969.

In Crownover v. Musick (hereafter L.A. 29917) plaintiffs are owners and employees of Orange County establishments which serve food and alcoholic beverages and feature 'topless' waitresses and 'topless' and nude entertainers. Plaintiffs brought an action in the Orange County Superior Court for declaratory and injunctive relief attacking the constitutionality of Orange County Ordinance No. 2356 and asking that its enforcement be prohibited. 3 Ordinance No. 2356 declares it to be a misdemeanor for a female to appear 'topless' or for a person of either sex to appear 'bottomless' (to use the common parlance) while serving food or beverages or while 'participating in any live act, demonstration, or exhibition in any public place, place open to the public, or place open to public view.' In addition, anyone who 'permits, procures, counsels or assists' in such exposure is also guilty of a misdemeanor. However, the provisions of ordinance No. 2356 do not apply to a 'theater, concert hall, or similar establishment which is primarily devoted to theatrical performances.' The Orange County Board of Supervisors declared the ordinance 'to be an urgency measure necessary for the immediate preservation of the public peace, health and safety,' finding that the conduct prohibited therein was 'so detrimental to the mental and moral state of the people of this County as to justify its immediate prohibition.' 4 Plaintiffs alleged in substance that both the enabling statutes and the ordinances were unconstitutional on their face and as applied in that they constituted respectively an unlawful delegation and exercise of power; a prior restraint against activity protected by the First and Fourteenth Amendments to the United States Constitution and by article I, section 9, of the California Constitution; an unlawful discrimination between establishments like those of plaintiffs and theaters in violation of the Equal Protection Clause of the Fourteenth Amendment; and a deprivation of property without due process of law.

After a hearing, the trial court granted a preliminary injunction prohibiting defendants from enforcing, or attempting to enforce, the ordinance and Penal Code sections 318.5 and 318.6, on the ground that they violated the equal protection clause of the United States Constitution and substantially equivalent provisions of the California Constitution (Cal.Const., art. I, §§ 11, 21; art. XX, § 18) and the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution. The county and the sheriff appeal.

In Glancy v. County of Sacramento (hereafter Sac. 7905), plaintiff Leonard Glancy owns a Sacramento County Tavern where plaintiff Susanne Haines dances 'topless' and 'bottomless' and serves food and beverages 'topless.' Plaintiffs brought an action in the Sacramento County Superior Court for injunction and declaratory judgment against the threatened enforcement of two ordinances enacted by the County of Sacramento. 5 Ordinance No. 1054 (which bans 'bottomless' activity) 6 and Ordinance No. 1055 (which bans 'topless' activity) 7 taken together are essentially the same as in the Orange County Ordinance. (See fn. 4, Ante.) The differences in wording concern only immaterial variances in anatomical description. The complaint challenged the constitutionality of the Sacramento County ordinances on substantially the same grounds as those asserted in L.A. 29917. The trial court denied plaintiffs' request for a preliminary injunction in its entirety and dissolved a previously issued temporary restraining order. Plaintiffs appeal.

In Glancy v. Municipal Court (hereafter Sac. 7906), Glancy and Haines petitioned the Sacramento County Superior Court for a writ of prohibition to half criminal proceedings brought against them in the Sacramento Municipal Court for alleged violation of ordinances Nos. 1054 and 1055. Petitioners had been charged with misdemeanors two days after the superior court had denied an injunction in Sac. 7905. Their petition, which asserted the same grounds for relief as the civil complaint in Sac. 7905, was denied. Glancy and Haines appeal from that denial. We have decided that their appeal in Sac. 7906 must be dismissed as moot, since we have been advised that on June 1, 1971, all underlying criminal charges which remained against them were dismissed on motion of the district attorney. In view of the dismissal of the charges it is evident that there is no "actual controversy' upon which a judgment (of prohibition) could operate,' nor is there any "effectual relief" to begranted to petitioners. (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132, 41 Cal.Rptr. 468, 396 P.2d 924; Consolidated Vultee Aircraft Corp. v. United Auto. etc. Workers (1946) 27 Cal.2d 859, 863, 167 P.2d 725.)

Nevertheless, the constitutionality of ordinances Nos. 1054 and 1055 is still before us, as a result of the appeal in Sac. 7905 from the order denying declaratory and injunctive relief. Otherwise plaintiffs could not obtain a final judicial determination of the issues they have raised without defending against another criminal prosecution which clearly might be brought as a result of another evening's performance. (See Zeitlin v. Arnebergh (1963) 59 Cal.2d 901, 905--906, 31 Cal.Rptr. 800, 383 P.2d 152.) Our dismissal for mootness of the appeal in Sac. 7906 of course does not preclude our consideration of these issues as they are raised in Sac. 7905.

In Reynolds v. City of Sacramento (hereafter Sac. 7904), plaintiff Clarence Reynolds owns and operates a tavern in the City of Sacramento at which plaintiffs Kathleen Rose Gaines and Marsha Gean McNabb, his employees, serve food and beverages 'topless' and dance 'topless' and 'bottomless.' Plaintiffs brought an action in the Sacramento County Superior Court for injunction and declaratory judgment against alleged threatened enforcement of an ordinance enacted by the City of Sacramento. 8 This ordinance (No. 2856, fourth series) became effective concurrently with county ordinances Nos. 1054 and 1055; it combines into one enactment the equivalent of the county's 'topless' and 'bottomless' provisions. Its operative portions are substantially identical to the provisions of the two county ordinances taken together, except that 'Legislative Findings' of the city council are added which declare essentially that an 'increasing trend' toward the proscribed acts in Sacramento is 'adverse to the public peace, morals and good order' and, therefore, justifies the city's restrictions. 9 Plaintiffs' complaint challenged the city ordinance on constitutional grounds identical to those alleged by Glancy and Haines in their attack on the county ordinances in Sac. 7905. After a hearing, 10 the trial court denied a preliminary injunction and dissolved a previously issued temporary restraining order. Plaintiffs appeal.

Having concluded that the appeal in Sac. 7906 should be dismissed as moot, we will confine ourselves to the issues raised in the remaining three cases. Since the issues are essentially the same in all three, we shall refer to all plaintiffs and all defendants of the three cases as a group.


So that we may focus on the precise issues confronting us, we make some preliminary observations.

First, although all plaintiffs have launched constitutional attacks on the local ordinances, plaintiffs in L.A. 29917 have in addition extended these attacks to Penal Code sections 318.5 and 318.6. The thrust of the attacks seems to be that these statutes in some way effectuated the adoption of...

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