Mason v. City of Lincoln
| Citation | 665 N.W.2d 600,266 Neb. 399 |
| Decision Date | 18 July 2003 |
| Docket Number | No. S-02-750.,S-02-750. |
| Parties | Chad MASON, doing business as Chad Mason Productions, Appellee and Cross-Appellant, v. CITY OF LINCOLN, Nebraska et al., Appellees and Cross-Appellees, and State of Nebraska Athletic Commissioner Wally Jernigan, Appellant and Cross-Appellee. |
| Court | Nebraska Supreme Court |
Don Stenberg, Attorney General, and L. Jay Bartel for appellant.
Mark T. Bestul and Vincent M. Powers, of Vincent M. Powers & Associates, Lincoln, for appellee Chad Mason.
Chad Mason, doing business as Chad Mason Productions, filed a declaratory judgment action in the Lancaster County District Court, seeking a determination that "fight contests," which are events consisting of mixed martial arts, kickboxing, and submission wrestling, fall under the jurisdiction of the State Athletic Commissioner and do not violate any statute or ordinance. The district court found that fight contests are under the jurisdiction of the commissioner and that it is necessary for a promoter to obtain a license from the commissioner prior to conducting such events. The commissioner appeals.
In an appeal from a declaratory judgment, an appellate court, regarding questions of law, has an obligation to reach its conclusion independently of the conclusion reached by the trial court. Spanish Oaks v. Hy-Vee, 265 Neb. 133, 655 N.W.2d 390 (2003).
In April 2001, Mason began promoting weekly fight contests at the Royal Grove nightclub in Lincoln. Prior to the contest scheduled for July 19, Mason was informed by Lincoln Police Chief Thomas Casady that participating in and promoting such contests constituted the commission of a crime and that Mason needed to obtain a license from the commissioner. Mason canceled the contests scheduled for July 19, 21, and 26.
The parties stipulated to the following definitions: Mixed martial arts is "[u]narmed combat involving the use of any combination of combative techniques from different disciplines of the martial arts, including punching, striking, kicking, choking, kneeing, joint locks, `throws', and take-down maneuvers." Kickboxing is "[a] combative form of martial art combining punches and martial arts kicks." Submission wrestling is "[a] combative form of fighting involving grappling techniques and submission holds associated with martial art forms, including the use of `choke holds', `armbar', `shoulder lock', `wrist lock', or `ankle lock' techniques."
Participants in the fight contests included audience members who agreed to fight an experienced contestant. No specific weight categories were recognized or established, and no limits were imposed concerning the frequency of one's participation in the contests. Participants were not required to demonstrate any fight experience or training or any minimum physical capabilities. Participants were not required to undergo a physical examination by a licensed physician either prior or subsequent to engaging in the contests, nor were they subject to visual acuity testing prior to the contests. Participants were allowed to fight barefoot and were not required to wear "foul-proof groin protectors," mouthpieces, or protective headgear, but such equipment was highly recommended. Participants were not subject to alcohol or drug testing.
Mason did not require the presence of a licensed physician or trained emergency medical personnel, nor did he provide insurance for the participants' benefit. Referees were not required to receive any specific training or to meet any established standards, nor were they licensed or certified by any recognized organization. Judges did not score the fight contests. The contests were not sanctioned or regulated by any government agency or generally recognized interscholastic, amateur, or professional body or organization that had established and enforced standards, rules, and requirements providing a reasonable degree of protection for the health and safety of participants and attempting to minimize the risk of serious injury.
Participants signed a release form providing that Mason and the nightclub were released from liability for any bodily injury or personal injuries arising from participation in the fight contests. The form also released medical professionals and the promoter's employees from any claim based on first aid or treatment provided during participation in the contests. The form stated that the participant "has been informed and is well aware of the nature of the event and acknowledges that [the participant] risks serious injury or death by participating in" a contest.
The parties stipulated that if called to testify, Casady would state that he determined that the fight contests involved elements of wrestling and boxing and fell under the regulation of the commissioner. Casady directed a police officer to contact the owner of the Royal Grove to inform him that operation of the contests was illegal without a license and that if the owner continued to host them, he would receive a criminal citation.
Mason subsequently contacted Casady and was also informed as to Casady's belief concerning the need for a license. Mason told Casady that the commissioner would not issue a license because the commissioner had concluded that the fight contests did not fall under his jurisdiction. Mason alleged that Casady informed him that even if he obtained a license from the commissioner, he would be subject to arrest for violating Neb.Rev.Stat. § 28-310(2) (Reissue 1995), which is third degree assault while engaging in a fight entered into by mutual consent.
When Mason contacted the commissioner about licensing a fight contest, the commissioner told Mason that such contests do not fall under the categories of boxing or wrestling and that, as such, the contests are not sanctioned. The commissioner determined he could not issue Mason a promoter's license because the contests, which allow the use of combative techniques, are not permissible within the statutes and regulations governing boxing and wrestling.
The parties stipulated that if called to testify, Kevin Neumann, a copromoter of the fight contests at the Royal Grove, would state that he has been involved in boxing, interscholastic wrestling, and mixed martial arts. He would testify that the safety of the participants is the main concern and that some states have adopted rules governing the conduct of such events. Concerning videotapes of fight contests received into evidence, Neumann would note that a contestant seen in one of the videotapes kneeing another contestant in the head has not been allowed to participate in subsequent contests. The referee in that match has not been allowed to officiate at any other contests promoted by Mason. Neumann stated that contests can be stopped at any time when a fighter submits, when a corner person throws in the towel, or when the referee stops the fight because a fighter can no longer defend himself or herself.
In his petition for declaratory judgment, Mason claimed that he had promoted such sporting activities in Omaha and had been informed that the promotions were not against any law or ordinance and could continue. He claimed that he had lost income from cancellation of the events and that the audience base was in danger of dissipating if the events were canceled.
In response to Mason's petition, the commissioner alleged that he lacks jurisdiction to license or regulate fight contests because they do not involve professional wrestling or boxing, which may lawfully be licensed and regulated pursuant to Neb. Rev.Stat. §§ 81-8,128 to 81-8,142.01 (Reissue 1996 & Cum.Supp.2002). He further alleged that by promoting and conducting such contests, Mason is subject to prosecution for aiding, abetting, procuring, or causing consensual third degree assault pursuant to § 28-310(2). He also asserted that the fight contests constitute a public nuisance which should be enjoined.
The district court found that the fight contests are within the jurisdiction of the commissioner and that in order to promote and conduct future contests, Mason must obtain a license from the commissioner. The court stated:
Notwithstanding the parties' arguments, it is evident that the fight contests are akin to "boxing," as that term is commonly understood. Like "boxing," which is defined as "the art of attack and defense with the fists practiced as a sport," the fight contests consist, in part, of attacking and defending with the fists.... Similarly, the fight contests are akin to "wrestling," as that term is commonly understood. Like "wrestling," which is defined as "to contend by grappling with and striving to trip or throw an opponent down or off balance," the fight contests consist, in part, of various "grappling techniques," such as holds, throws, and takedowns.... Finally, the fight contests also might fit in the broad category of "exhibition," which is commonly understood to mean "a public showing (as of works of art, objects of manufacture, or athletic skill)." ... The fight contests are a public showing of punching, kicking and grappling techniques which, to be generous, together could be argued to approximate something like "athletic skill."
(Citations to Internet Web sites omitted.)
The district court declined to reach additional issues raised by the parties, including whether the fight contests involve third degree assault, which is subject to criminal prosecution pursuant to § 28-310(2); whether the fight contests constitute a public nuisance that should be enjoined; and whether prosecuting or threatening to prosecute Mason for aiding and abetting assault due to his involvement in the contests, when promoters and participants in other sports involving physical contact are not subjected to or threatened with criminal prosecution, either constitutes unconstitutional selective enforcement...
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