O'Day v. King County
| Decision Date | 21 January 1988 |
| Docket Number | No. 52573-1,52573-1 |
| Parties | Karen M. O'DAY, Sandra Elaine Robinson, Shelly Elizabeth Stallard, and Kimberly Belshaw, Respondents, v. KING COUNTY and The Honorable E.T. Leverette, Judge of the Federal Way District Court, Petitioners. |
| Court | Washington Supreme Court |
Norm Maleng, King County Prosecutor, Kevin M. Raymond, Deputy, Seattle, for petitioners.
Burns & Hammerly, P.S., Jack R. Burns, Bellevue, for respondents.
In 1976, King County enacted ordinance No. 2625, codified at chapter 6.08 of the King County Code. The 1976 ordinance regulated adult entertainment establishments, but explicitly excluded taverns and other establishments maintaining a liquor license. The ordinance included "standards of conduct" governing the presentation of nude and semi-nude entertainment in nonalcohol-serving, adult entertainment establishments ("soda pop clubs"), and made the business licensee responsible for any violations.
On May 28, 1985, the King County Council enacted ordinance No. 7216, which made substantial changes in KCC chapter 6.08. Among other things, the new ordinance accomplished the following: (1) added a section of findings designed to support the need for the regulations, KCC 6.08.005; (2) required managers and entertainers working at any public place of amusement offering nude or semi-nude entertainment to obtain a license, KCC 6.08.024; and (3) made employees and entertainers working in soda pop clubs responsible for violating the standards of conduct, subjected violators to criminal penalties, KCC 6.08.120, and to license revocation or suspension, KCC 6.08.100.
The "standards of conduct" remained virtually unchanged, continuing to prohibit employees and entertainers from performing or simulating (a) certain sexual acts; (b) the touching of certain body parts; and from (c) displaying certain body parts. KCC 6.08.050(A)(5). The ordinance provides several exceptions, including KCC 6.08.050(A)(6), which allows display of certain body parts when the display occurs on a stage 18 inches high and 6 feet from the nearest patron ("stage requirement"); and KCC 6.08.050(D), which requires that the statute not be construed to prohibit a variety of constitutionally protected expression, including The four respondents work as licensed entertainers at a soda pop club located in King County. In late August and early September of 1985, respondents were charged in Federal Way District Court with violating the "standards of conduct." 2 Respondents denied the allegations and also challenged the ordinance's constitutionality in a pretrial motion to dismiss, which the district court denied. They then petitioned the King County Superior Court for review. During the petition's pendency, the King County Licensing Department suspended respondents' licenses to engage in topless dancing within King County.
exhibitions or dances that are not obscene, KCC 6.08.050(D)(3) ("nonobscene dance exception"). The 1985 ordinance created a new section, KCC 6.08.050(G), which removed the blanket exemption for taverns and establishments holding liquor licenses, but continued to exemptthem from the "standards of conduct and operation" provision,[749 P.2d 145] KCC 6.08.050. Because of this exemption, only soda pop club entertainers are subject to criminal penalties and license revocation/suspension for violating the "standards of conduct."
Upon issuing a writ of review, and after a hearing and argument, the superior court dismissed the criminal complaints This court granted King County discretionary review. The County challenges the superior court's conclusions as to free speech and equal protection. Respondents renew additional free expression claims rejected by the superior court. They challenge the definition of obscenity contained in KCC 6.08.050(E) and argue that the stage requirement, KCC 6.08.050(A)(6), cannot be sustained as a reasonable time, place, and manner regulation. Respondents also renew their emergency clause challenge and their double jeopardy claim.
against the respondents with prejudice. The court concluded that the standards of conduct reached protected expression, and thus were unconstitutionally overbroad in violation of the state and federal constitutional right to free speech. The court further held that the discriminatory treatment afforded entertainers in soda pop establishments created a classification that violated the state and federal right to equal protection of the laws. The court rejected, however, respondents' challenge to the validity of the 1985 ordinance's emergency clause and their contention that imposition of both criminal penalties and license revocation/suspension constitutes double jeopardy in violation of the Fifth Amendment and article 1, section 9 of the Washington Constitution
In considering the challenges to the conclusions entered by the court below, we note that under RCW 7.16.030 the "writ of review" filed with the superior court is a writ of certiorari. Seattle v. Williams, 101 Wash.2d 445, 453-55, 680 P.2d 1051 (1984). Thus, the superior court acted in an appellate capacity, rather than as a trial court. See Thomsen v. King Cy., 39 Wash.App. 505, 514, 694 P.2d 40 (1985). We therefore conduct a de novo review of the court's conclusions. Smith v. Skagit Cy., 75 Wash.2d 715, 718, 453 P.2d 832 (1969); Thomsen v. King Cy., 39 Wash.App. at 515, 694 P.2d 40.
FREE SPEECH CLAIMS
This court has a duty, where feasible, to resolve Here, the parties have not raised or argued the issue of whether article 1, section 5 provides more protection to obscene expression than does the First Amendment. Nor does the record indicate the presence or absence of specific harm arising from the obscene expression that is restricted by KCC 6.08. Given this dearth of analysis and evidence on this issue, we choose not to reach in this case the issue of whether article 1, section 5 protects obscene expression of this kind. Therefore, in this case we will proceed on a federal analysis of the narrow issue of whether obscenity is protected speech.
constitutional questions first under the provisions of our own state constitution before turning to federal law. State v. Coe, 101 Wash.2d 364, 373-74, 679 P.2d 353 (1984). Besides our responsibility to interpret Washington's Constitution, we [749 P.2d 146] must furnish a rational basis "for counsel to predict thefuture course of state decisional law." State v. Gunwall, 106 Wash.2d 54, 60, 720 P.2d 808 (1986). This opinion proceeds under a Washington Constitution analysis, noting the parallels and differences between the state and federal constitutions where relevant. Because article 1, section 5 provides greater protection of speech than the first and fourteenth amendments to the United States Constitution, our finding that the ordinance is constitutional under article 1, section 5 necessitates a similar finding under the First Amendment. State v. Coe, supra
OVERBREADTH
Article 1, section 5 of the Washington Constitution and the first and fourteenth amendments to the United States Constitution protect freedom of speech. Pure conduct, on the other hand is not protected. E.g., Seattle v. Buchanan, 90 Wash.2d 584, 584 P.2d 918 (1978). Nude and semi-nude dancing come within the protection provided by the first and fourteenth amendments to the United States Constitution. See, e.g., Schad v. Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 2180, 68 L.Ed.2d 671 (1981); Young v We agree with the superior court, which apparently concluded that the "performances" respondents allegedly engaged in constitute pure conduct, unprotected by free speech guarantees. However, an overly broad statute that sweeps within its proscriptions protected expression is unconstitutional under both the Washington and United States constitutions. Federal Way Family Physicians, Inc. v. Tacoma Stands Up for Life, 106 Wash.2d 261, 267-68, 721 P.2d 946 (1986); State v. Reyes, 104 Wash.2d 35, 43, 700 P.2d 1155 (1985).
American Mini Theatres, Inc., 427 U.S. 50, 73 n. 1, 96 S.Ct. 2440, 2453 n. 1, 49 L.Ed.2d 310 (1976) (Powell, J., concurring); Kev, Inc. v. Kitsap Cy., 793 F.2d 1053, 1058 (9th Cir.1986); Kitsap Cy. v. Kev, Inc., 106 Wash.2d 135, 140, 720 P.2d 818 (1986). However, although the First Amendment protects the communication and expression of a nude dancer, public nudity itself is conduct subject to regulation. Kitsap Cy. v. Kev, Inc., 106 Wash.2d at 140, 720 P.2d 818; see also Kev, Inc. v. Kitsap Cy., 793 F.2d at 1058. We now hold that article 1, section 5 similarly protects nude expression, but not nude conduct. See Seattle v. Buchanan, supra
Because of the "sensitive nature of protected expression," and the need to prevent criminal sanctions from chilling constitutionally protected expression, both this court and the United States Supreme Court have fashioned a special standing rule. New York v. Ferber, 458 U.S. 747, 768-69, 102 S.Ct. 3348, 3360-61, 73 L.Ed.2d 1113 (1982); see Reyes, 104 Wash.2d at 43, 700 P.2d 1155. If the County's regulations impermissibly burden protected expression, respondents have standing to challenge the regulations' overbreadth even though "their activity is within the permissible scope of the [ordinance] and...
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