State v. Baysinger

• Decision Date: 03 December 1979
• Docket Number: Nos. 1078S202,978S193 and 1078S227,s. 1078S202
• Citation: 397 N.E.2d 580,272 Ind. 236
• Parties: STATE of Indiana, Appellant, v. Connie Sue BAYSINGER et al., Appellee. STATE of Indiana, and Lake County Prosecutor, Appellant, v. Sue CLARK, Appellee. CITY OF SOUTH BEND, Michael Borkowski, Dean Bolerjack, Indiana State Police, William E. Voor, Jr., Appellants, v. KITTY KAT LOUNGE, INC., Donald E. Senst d/b/a The Spot Bar Riverview Lounge, Inc., Appellees.
• Court: Indiana Supreme Court

Page 580

397 N.E.2d 580

272 Ind. 236

STATE of Indiana, Appellant, v. Connie Sue BAYSINGER et al., Appellee.

STATE of Indiana, and Lake County Prosecutor, Appellant, v. Sue CLARK, Appellee.

CITY OF SOUTH BEND, Michael Borkowski, Dean Bolerjack, Indiana State Police, William E. Voor, Jr., Appellants, v. KITTY KAT LOUNGE, INC., Donald E. Senst d/b/a The Spot Bar

Riverview Lounge, Inc., Appellees.

Nos. 1078S202, 978S193 and 1078S227.

Supreme Court of Indiana.

Dec. 3, 1979.

Rehearing Denied Feb. 4, 1980.

Theodore L. Sendak, Atty. Gen., Jane M. Gootee, Deputy Atty. Gen., Indianapolis, for appellants.

Jerrald A. Crowell, Fort Wayne, for appellee Connie Sue Baysinger et al.

Lee J. Christakis, Richard C. Wolter, Jr., Gary, for appellee Sue Clark.

Robert L. Stephan, South Bend, for appellee Kitty Kat Lounge, Inc., Donald E. Senst d/b/a The Spot Bar Riverview Lounge, Inc.

PIVARNIK, Justice.

The Indiana Supreme Court has exclusive jurisdiction of these causes pursuant to Ind.R.Ap.P. 4(A)(8) since these are appealable cases in which a state statute, Ind.Code 35-45-4-1 (Burns Supp.1978) has been held to be unconstitutional by trial courts.

In the Clark case plaintiff filed a complaint for declaratory judgment against the State of Indiana which was amended on November 28, 1977. The Lake County Prosecutor's office filed a Motion for Judgment on the pleadings and the Attorney General's office filed a Motion to Dismiss, both of which were denied. After a short evidentiary hearing on February 24, 1978, the State's Motion to Dismiss and Motion for Judgment on the Pleadings were renewed. On May 9, 1978, the court entered judgment finding Indiana Code § 35-45-4-1 (Burns 1978) to be unconstitutional and restraining and enjoining the defendants from enforcing it. This appeal followed.

In Baysinger, et al., each of the appellees was charged with indecent exposure pursuant to Ind.Code § 35-45-4-1 (Burns 1978), by informations filed in Allen Superior Court. A Motion to dismiss was filed on February 16, 1978, alleging vagueness and/or overbreadth. This motion was granted on May 17, 1978, and the cause dismissed. A motion to correct errors was filed and denied. On October 13, 1978, the State's motion for consolidation of appeal was granted by order of the Indiana Supreme Court. Pursuant to Ind.R.Ap.P. 5(B) eleven cases were consolidated under Cause No. 1078 S 202 for appeal.

In Kitty Kat Lounge, Inc., et al., the owners and operators of taverns and bars were ordered to cease offering nude dancing as entertainment. Appellees ceased to have nude dancing and filed a complaint for temporary and permanent injunction and restraining order against the State seeking to have Ind.Code § 35-45-4-1 declared unconstitutional, alleging substantial loss of income. Their motion for a permanent injunction was granted upon a finding by the trial court that the nudity provision of Ind.Code § 35-45-5-1 was overbroad and thus unconstitutional. This appeal followed.

For convenience and to avoid unnecessary cost and delay, all of these appeals are consolidated here for opinion pursuant to Ind.R.Ap.P. 5(B). All involve the same conduct nude dancing or appearances in bars. All involve the action of trial courts declaring Ind.Code § 35-45-4-1 to be unconstitutional. The statute in issue, Ind.Code § 35-45-4-1 (Burns 1978) reads as follows:

35-45-4-1. Public indecency. (a) A person who knowingly or intentionally, in a public place:

(1) Engages in sexual intercourse;

(2) Engages in deviate sexual conduct;

(3) Appears in a state of nudity; or

(4) Fondles the genitals of himself or another person; commits public indecency, a class A misdemeanor.

(b) "Nudity" means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state. (IC 35-45-4-1, as added by Acts 1976, P.L. 148, § 5, p. 718; 1977, P.L. 340, § 76, p. 1533.)

In considering the issue of the constitutionality of a statute.

"We recognize that the Legislature is vested with a wide latitude of discretion in determining public policy. Therefore, every statute stands before us clothed with the presumption of constitutionality and such presumption continues until clearly overcome by a showing to the contrary. In the deliberative process, the burden is upon the challenger to overcome such presumption, and all doubts are resolved against his charge."

Sidle v. Majors, (1976) 264 Ind. 206, 341 N.E.2d 763, 766.

I.

The State alleges error in the lower courts finding that the statute was vague and claims error in that the lower courts failed in their duty to give the statute a reasonable interpretation. Appellees contend that because the term "public place" was undefined in the statute, the statute is unconstitutionally vague. The question involved in such an inquiry is whether a challenged law is so vague that "men of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). As the State has pointed out, the conduct involved here, i. e., nude dancing and appearances in taverns and bars, is clearly conduct in a "public place."

In Indiana, the definition of public indecency and public place has been considered and was early limited by the Court itself. In McJunkins and Others v. State, (1858) 10 Ind. 140, 145, involving a determination that certain improprieties of language were not intended to be included as a punishable offense under a charge of public indecency, the Court noted that:

"It would therefore appear that the term public Indecency has no fixed legal meaning is vague and indefinite, and cannot in itself imply a definite offense. And hence, the Courts, by a kind of judicial legislation, in England and the United States, have usually limited the operation of the term to public displays of the naked person, the publication, sale, or exhibition of obscene books and prints, or the exhibition of a monster acts which have a direct bearing on public morals, and affect the body of society."

In Ardery v. State, (1877) 56 Ind. 328, the Supreme Court faced the issue of whether or not the offense of public indecency, not being defined by statute, was punishable.

"The enquiry, therefore, arises for this court to answer is the exposure, in a public place, to divers persons there assembled, by a person, of his or her private parts, a public indecency? Prima facie, we think it is, if there is in the world any such thing as public indecency."

In commenting that there had existed such a thing as decency and such a thing as indecency since the time of Adam and Eve, the court affirmed the judgment even though "decency" forbade that the parts exposed be named in the statute.

During the intervening years, many standards have changed and statutes have been drawn more specifically and explicitly. Nevertheless, it appears that the basis for the offense of public indecency remain the same. The word public was further defined in Peachey v. Boswell, (1960) 240 Ind. 604, 167 N.E.2d 48, 56-57, in discussing the phrase, "In any place accessible to the public" with reference to a gambling statute. We stated as follows:

"Webster defines 'public' as 'open to common and general use, participation, or enjoyment' of the public. It has been held that the term 'public place' as used in statutes pertaining to gambling includes any place which for the time being is made public by the assemblage of people who go there with or without invitation and without restraint. Roberts v. State, 1908, 4 Ga.App. 207, 60 S.E. 1082, 1085.

"A place may be accessible to the public for gambling notwithstanding that every person who desires is not permitted access thereto. Lockhart v. State, 1853, 10 Tex. 275, 276.

"It has also been held that in a case involving a prohibition law that by 'public' is meant that the public is invited to come to the place and has access to it for the purpose within the scope of the business there maintained. Brooks v. State, 1916, 19 Ga.App. 3, 90 S.E. 989, 991.

" 'Accessible to the public' as used in the Act here in question has not been defined by either of the courts of appeal of this State, nor have we been able to find definition by the courts in other jurisdictions.

"From a consideration of the terms 'accessible', 'public', and 'public place', as defined hereinabove, together with the purpose of the Act, we have concluded that the phrase 'in any place accessible to the public' as used in § 10-2330, supra, means any place where the public is invited and are free to go upon special or implied invitation a place available to all or a certain segment of the public."

We find no merit in the contention that the statute is vague because the word public is undefined.

II.

Appellants claim error in the trial court's finding that the statute is defective because of overbreadth, that is, that even if the meaning of the statute is clear, and, even though a nude dancer would know that her public nudity is a prohibited activity, the statute is unconstitutional if it sweeps too broad and regulates activities which cannot constitutionally be regulated. Consideration of this issue involves several claims. One is that because the appellees make their claim as a First Amendment claim, they may raise the rights of others, although there is no question that their conduct properly falls within the statute. This assertion of overbreadth depends initially upon a determination that the rights asserted are properly First Amendment rights and that therefore, they are entitled to consideration under the overbreadth doctrine.

This argument must have as its base that the activity involved here, appearing nude in bars and taverns and nude dancing in bars, is entitled to First...