Guinther v. Wilkinson
| Decision Date | 21 January 1988 |
| Docket Number | Civ. No. C87-423G. |
| Parties | Kimberly GUINTHER, President, Individually and in Behalf of the Utah Dancer's Association; Hall of Giants Enterprises, Inc., dba Dino's; David Maxwell; Mini Spas, Inc. dba The Entertainment Place, The Zodiac Health Studio and The King's Palace; Greg Bisseger; Shawn Strong dba Adams Apple; and Heidi Tracy dba Aladdins Geni, Plaintiffs, v. Honorable David L. WILKINSON, Attorney General of the State of Utah; State of Utah; Honorable David Yocum, County Attorney of Salt Lake County, Utah; Bud Willoughby, Chief of Police of Salt Lake City; The City of South Salt Lake; and Val Bess, Chief of Police of the City of South Salt Lake, Defendants. |
| Court | U.S. District Court — District of Utah |
Steven R. Cook, Salt Lake City, Utah, for plaintiffs.
Stanley H. Olsen, Salt Lake City, Utah, for defendants.
This matter came on for hearing on August 25, 1987, pursuant to defendants' Motion to Dismiss. Kimberly Guinther, et al. ("Guinther") was represented by Steven R. Cook, and David Wilkinson, et al. ("Wilkinson") was represented by Stanley H. Olsen. The parties submitted memoranda and presented oral argument. The court directed that any additional memoranda and affidavits be submitted by September 15, 1987, and that the matter then would be under advisement for decision without further argument unless a written request for further oral argument was filed on or before September 18, 1987. No further affidavits, memoranda or request for oral argument were filed. However, on September 16, 1987, the plaintiff and defendant representatives of the State of Utah filed a stipulation that stated the following: (1) the underlined portion of § 76-10-1301(1) is severable from the rest of the statute; (2) the underlined portion of the statute violates the first and fourteenth amendments of the United States Constitution; (3) the remaining portion of the statute is enforceable; and (4) the issue of fees and costs under 42 U.S.C. § 1988 (1982) should be reserved, although the parties agreed that $2,500 was a reasonable award of attorneys fees. The court raised several questions concerning the validity of such a stipulation in which the Attorney General of Utah agrees that an Act of the Utah Legislature should be ruled unconstitutional. That matter and other related issues were briefed and presented to the court on January 4, 1988. The court now being fully advised enters its Memorandum Decision and Order.
In 1987, the Utah State Legislature amended the prostitution section of the Utah Code, changing the definition of "sexual activity" as used in that section to provide the following:
"Sexual activity" means acts of masturbation, sexual intercourse, or any touching of a person's clothed or unclothed genitals, pubic area, buttocks, anus, or, if the person is a female, her breast, whether alone or between members of the same or opposite sex, or between humans and animals, in an act of apparent or actual sexual stimulation or gratification.
Utah Code Ann. § 76-10-1301(1) (Supp. 1987) (emphasis added).1 This definition applies to an existing section of the Utah Code, which in pertinent part provides:
Id. § 76-10-1302 (1978) (emphasis added).
On May 6, 1987, this action was filed. Plaintiffs consist of performing artists, dancers, actors, businesses, and a prospective spectator, all of whom claim that the 1987 amendment infringes their first amendment rights, and they seek declaratory and injunctive relief. Plaintiffs named Attorney General David L. Wilkinson, Salt Lake County Attorney David Yocum, Salt Lake City Chief of Police Bud Willoughby and South Salt Lake City Chief of Police Val Bess as defendants in their official capacities as the representatives of the state and city responsible for enforcing the statute.
On May 18, 1987, this court ruled the underlined portions of § 76-10-1301(1) to be severable from the remaining portions and that the remaining (not underlined) portions are enforceable. The court also denied plaintiff's Motion for a Temporary Restraining Order as to enforcement of the underlined portion of the statute because defendants made it clear that they would not attempt to enforce that portion of the statute with respect to the conduct outlined in the Complaint and set forth in Affidavits presented by plaintiffs.
The court will first address certain issues raised by the stipulation of unconstitutionality presented by the Attorney General of Utah and other counsel, and then will address the merits of the constitutionality of the statute in question.
After receipt of the proferred stipulation of unconstitutionality concerning the underlined portion of the statute in question, this court sua sponte directed counsel to respond to the question:
Does the Attorney General's stipulation that Utah Code Ann. § 76-10-1303(1) is unconstitutional exceed the Attorney General's various powers, or violate the separation of powers doctrine under the Utah Constitution?2
It was properly recognized by both counsel that the stipulation is not and could not be binding upon the court, and that only upon order of the court could there be a binding declaration of unconstitutionality.
Utah law sets forth the general duties of the Attorney General, and provides in part:
Utah Code Ann. § 67-5-1 (1986) (emphasis added). In Hansen v. Barlow, 23 Utah 2d 27, 456 P.2d 177 (1969), the Utah Supreme Court referred to this statute and said:
This statute alone, ... would provide an adequate basis for the attorney general to initiate a declaratory judgment action where he believes a statute is in direct contravention to some mandatory provision of the Constitution of Utah.
Id. 456 P.2d at 181. The Hansen court addressed an issue not unlike the question posed by this court: "Does the Attorney General have the right to challenge the constitutionality of a statute enacted by the State Legislature." Id. at 177. The Hansen court concluded:
After consideration of our Constitution, statutes and decisions of sister courts, we are of the opinion that it is within the right of the Attorney General, if not his duty to bring suits to clarify the constitutionality of laws enacted by the Legislature if he deems it appropriate. He is in a much more informed, duty-entrusted, and advantageous position to do so than the individual citizen and taxpayer.
In addition to the authority to bring an action seeking a declaration as to the constitutionality of a Utah law, the Attorney General presented the proposition to this court that there is no "prohibition in his acknowledgment of such unconstitutionality."3
Recently this court has observed that mere lack of enforcement of a law which has been regarded by the Attorney General as unconstitutional is not enough to render the statute of no force or effect. Cooper v. State of Utah, et al., slip op. 87-C-606G (December 21, 1987). Nor can the assurance by the Attorney General that he does not intend to enforce the law defeat standing to challenge the law of a person who realistically may be aggrieved by the enactment. Id. Until a court acts, an apparently invalid or dormant statute may become operative, notwithstanding a pattern of apparent lack of enforcement, an opinion by the Attorney General, or even, as here, an agreement by the Attorney General that the act is unconstitutional. It follows that the stipulation of counsel may be accepted or rejected by the court, in whole or in part, and that any declaration or ruling as to constitutionality stands as an action of the court independent of any stipulation of counsel.
There appears to be no dispute by counsel as to the aforesaid principles. Accordingly, this court now addresses the merits of the statute in question as to whether it passes constitutional muster.
The underlined portion of the Utah statute under scrutiny here, excluding the portion this court has already upheld as enforceable and not unconstitutional, is as follows:
Sexual activity means ... any touching of a person's clothed or unclothed geni- tals, pubic area, buttocks, anus, or, if the person is a female, her breast, whether alone or between members of the same or opposite sex, or between humans and animals, in an act of apparent or actual sexual stimulation or gratification. § 76-10-1301(1).
This court now holds that the underlined portion of the statute violates the due process clause of the Fourteenth Amendment of the United States Constitution in two particulars, i.e. that it is overbroad, and that it is impermissively vague.4
The actions set forth by plaintiffs as possibly subject to proscription under the statute include in addition to nude or semi nude dancing, anticipated ballet dancing by artists who dance for Ballet West, Disney on Parade, the San Francisco Opera and the San Francisco Ballet, in such productions as "Paradise Lost," "Garden of Evil," "Samson and Delilah," "Ballet Chaos" and "many others"; anticipated acting by professional actors in such productions as "Romeo and Juliet," "Taming of the Shrew," "Merry Wives of Windsor," "A Midsummer Nights Dream," "Kiss Me Kate," "Hair," "A Chorus Line," and "Gypsy." In all of the aforesaid forms of...
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