Powell v. City of Anchorage

• Decision Date: 27 June 1973
• Docket Number: No. 2001,2001
• Citation: 536 P.2d 1228
• Parties: Darion POWELL et al., Petitioners, v. CITY OF ANCHORAGE, Respondent.
• Court: Alaska Supreme Court

Page 1228

536 P.2d 1228

Darion POWELL et al., Petitioners, v. CITY OF ANCHORAGE, Respondent.

No. 2001.

Supreme Court of Alaska.

Decided June 27, 1973.

Released for Publication June 13, 1975.

Stanley P. Cornelius, Cornelius, Inc., Anchorage, for petitioners.

John R. Spencer, City Atty., Anchorage, for respondent.

Before RABINOWITZ, Chief Justice, and CONNOR, ERVIN, BOOCHEVER and FITZGERALD, Justices.

ORDER ^*

RABINOWITZ, Chief Justice.

Petitioner Darion Powell owns an Anchorage cocktail lounge known as The Embers. The Embers, and several other local bistros, have in recent times gained a measure of notoriety by providing for their customers' viewing pleasure 'topless and bottomless' dancers. Section 4-3(g) and (r) of the Code of Ordinances of the City of Anchorage prohibits a person from either appearing or authorizing another person to appear 'in a licensed premises in which intoxicating liquor is offered for sale or consumed' while so 'costumed or dressed so that the genitalia or pubic area is wholly substantially exposed to view.' On October 28, 1972, Powell, Powell's bartender petitioner George Goolsby, and petitioner Sheila Diane Bell were all arrested following a dance by Ms. Bell. The complaint charged, inter alia, that Bell had performed her dance in a licensed liquor establishment while 'dressed or costumed' in a fashion prohibited by the ordinances.

The petitioners, shortly thereafter, filed a civil action against the City of Anchorage in which they asked the court to declare the ordinances unconstitutional and to permanently enjoin the City from further arrests and prosecutions under those ordinances. The superior court granted petitioners a preliminary injunction on November 27, 1972. Then on May 24, 1973, the superior court granted the City's motion for summary judgment, dismissed the petitioners' complaint with prejudice, and dissolved the preliminary injunction. Notice of appeal was filed on May 25, 1973. Petitioners have now presented this Court with an application for an order staying the May 24, 1973, order of the superior court. We deny petitioners' motion.

Judgments in actions for injunctions are not stayable as of right. Under Alaska Rule of Civil Procedure 62(c) the superior court is empowered to 'suspend, modify, restore or grant' an injunction pending an appeal from a final judgment granting or denying an injunction. Whether a stay of an injunction pending appeal will be granted is a question directed to the sound discretion of the court. ¹ In considering whether to grant such an injunction, the lower court must consider criteria much the same as it would in determining whether to grant a preliminary injunction. ²

The Supreme Court may also, in the exercise of its jurisdiction and 'as part of its traditional equipment for the administration of justice,' stay the enforcement of a judgment pending the outcome of an appeal. ³ Alaska Rule of Appellate Procedure 7(d)(2) regulates the procedure for seeking stays of judgments of the superior court pending appeal. That rule requires that an application for a stay of a judgment should first be made to the superior court and that ordinarily an original application to this court for a stay of judgment pending appeal will not be entertained unless it has previously been denied by the court below. ⁴ As we held in $tState v.

. . . (T)his rule does not require in all cases that applications for stay must be made to the superior court, . . . (nevertheless) departure from the rule should be accompanied by some explanation for the failure to apply to the superior court. ⁶

No application was made to the superior court in this case, and the petitioners offer no explanation for their failure to do so.

As Professor Moore states, '(t)he stay or suspension of such judgments often involves a delicate balancing of the equities that only the court thoroughly familiar with the case is able to make.' ⁷ We think that in the usual case the trial court should first consider an application for a stay of a judgment granting or denying an injunction. The Supreme Court, in Cumberland Telephone and Telegraph Co. v. Public Service Commission, ⁸ noted the desirability of having the trial court first pass on the application for a stay:

(T)he court which is best and most conveniently able to exercise the nice discretion needed to determine this balance of convenience is the one which has considered the case on its merits, and therefore is familiar with the record. ⁹

We think that it is a sound policy for the superior court to first consider applications for stays of judgment. Exceptions from this rule should be made where the applicant makes a showing that relief in the superior court is unavailable; or that relief to be effective must be immediate, and that it is improbable the superior court can afford such immediate relief. ¹⁰ Since the petitioners did not present their application for stay to the superior court and since they did not explain this failure, we deny their motion.

We further note the almost total lack of showing offered by petitioners going to the issue of irreparable injury. Here there is no showing that economic hardship or artistic handicaps will flow to petitioners if, pending final resolution of the merits, Bell performs her dance routine in a somewhat more modest fashion than heretofore. Nor has any contention been made before this court by petitioners in their briefs and affidavits that the operation of the appeal will pending disposition of the appeal will in any manner infringe First Amendment rights. ¹¹

CONNOR, Justice, with whom ERVIN, Justice, joins (dissenting from the Order Denying Stay):

We respectfully dissent from that portion of the order which denies a stay of the superior court's dissolution of the preliminary injunction.

On or about October 28, 1972, petitioner Bell was charged with a violation of § 4-3(q) of the Code of Ordinances of the City of Anchorage, ¹ after performing a nude dance on the stage at the Embers, a bar located at 137 East Fifth Avenue, Anchorage, Alaska, within the corporate limits of the City of Anchorage. Petitioners Powell and Goolsby were charged with violations of § 4-3(r) of the same code, ² for permitting Bell to perform in the nude.

Section 1.9 of the City of Anchorage Ordinances establishes the penalties of violations:

'Violations of . . . any ordinance of the city may be punished by a fine which shall not exceed three hundred dollars ($300,000) or by imprisonment for not more than thirty days, or by both such fine and imprisonment.'

In their original complaint, petitioners allege that these ordinances constitute a prior restraint on their individual right of freedom of expression as guaranteed by the First and Fourteenth Amendments of the United States Constitution. Moreover, in affidavits accompanying their motion for stay before this Court, petitioners state that they will suffer irreparable harm by being subjected to criminal prosecution and penalties. In our opinion, petitioners have thereby raised a meritorious claim under the First and Fourteenth Amendments which require this court carefully to assess the potentially chilling effect of these ordinances on petitioners' rights of free speech and expression. ³

Reiterating from our recent decision in Smith v. State, 510 P.2d 793, 795 (Alaska 1973), '. . . we are . . . deeply sensitive to the dependence of our most cherished rights upon judicial vindication . . ..' Unique among these rights are those guaranteed by the First Amendment, for they are unusually susceptible of infringement, even in the most indirect ways. As the United States Supreme Court said in Dombrowiski v. Pfister, 380 U.S. 479, 486-87, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22 (1965):

'A criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedom . . .. Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression-of transcendent value to all society, and not merely to those exercising their rights-might be the loser . . .. If the rule were otherwise, the contours of regulation would have to be hammered out case be case-and tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation . . .. The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure.' ⁴

The specific issue presented at this time is whether to stay the superior court's dissolution of the preliminary injunction. The considerations are functionally identical to those raised by the initial motion for preliminary injunction. Concededly, granting or denying a preliminary injunction is a matter largely within the sound discretion of the trial court. As Judge Bazelon noted in Perry v. Perry, 88 U.S.App.D.C. 337, 190 F.2d 601, 602 (1951):

'When a motion for preliminary injunction is presented to a court in advance of hearing on the merits, it is called upon to exercise its discretion 'upon the basis of a series of estimates: the relative importance of the rights asserted and the acts sought to be enjoined, the irreparable nature of the injury allegedly flowing from denial of preliminary relief, the probability of the ultimate success or failure of the suit, the balancing of damage and convenience generally. A mere listing of the guiding considerations demonstrates their intangible nature, expecially when no attempt is made at this stage to decide finally the question raised.' Concurring opinion in Communist Party v. McGrath, D.C., 96 F.Supp. 47, 48.'

Where a First Amendment question hangs in the balance, however, rights of paramount importance are being asserted, and the threat of an insidious chilling...