State v. Black
| Decision Date | 27 September 1978 |
| Docket Number | No. 1-477A86,1-477A86 |
| Parties | STATE of Indiana, Appellant (Plaintiff below), v. Jerry Ray BLACK, Appellee (Defendant below). STATE of Indiana, Appellant (Plaintiff below), v. Donna Kay CLARK, Appellee (Defendant below). |
| Court | Indiana Appellate Court |
Theo. L. Sendak, Atty. Gen., Charles D. Rodgers, Deputy Atty. Gen., Indianapolis, for appellant.
Michael C. Keating and John D. Clouse, Evansville, for appellees.
The State appeals from a trial court order which dismissed, on constitutional grounds, informations filed against defendants Jerry Ray Black and Donna Kay Clark. We reverse.
Vanderburgh County Ordinance 75-VC-1 was adopted on October 27, 1975, and provided both a detailed scheme of regulating "health clubs" (more commonly known as massage parlors) and provisions specifying penalties for violations of the substantive provisions of the ordinance. Basically, the ordinance requires that each massage parlor obtain a permit from the county prior to operation; the ordinance further requires that in order to obtain a permit to operate, the owner or manager of the health club must be "(1) a physician, (2) a registered nurse with at least two (2) years nursing experience, (3) a licensed practical nurse with at least four (4) years nursing experience or (4) a registered physical therapist." The ordinance also prohibits the performance of a massage upon a patron by a masseur or masseuse of the opposite sex, and requires that every masseur and masseuse obtain a permit.
On December 15, 1975, in a case unrelated to the case at bar, charges were filed against Linda Sue Buchanan (case # 75-5942) and others, alleging that Buchanan Et al. had violated various provisions of the ordinance here involved. On May 26, 1976, the Vanderburgh Superior Court dismissed these informations, holding the ordinance to be unconstitutional on the ground that it "does not meet the constitutional requirement of a prohibition of lewd or immoral conduct in health clubs as defined within said Ordinance." This order of dismissal, and the judgment therewith declaring the ordinance unconstitutional, were never appealed.
On July 30, 1976, Clark was charged with violating section 3(d)(1) of the ordinance by giving or offering to give a massage in a health club without first obtaining a permit. On that same day Black was charged with a violation of section 3(d)(1) and (2) of the ordinance by (1) owning or managing a health club without a valid permit, and by (2) maintaining and operating a health club in which a masseuse (Clark) who did not have a permit was employed. Black and Clark subsequently filed motions to dismiss, which were sustained by the trial court. That court, in its order of dismissal, based its reasoning on its earlier decision in State v. Buchanan (75-5942).
Several issues have been raised for our review; due to our disposition of the case, we need discuss only the following:
(I) Whether the trial court lacked jurisdiction to decide the present case, on the ground that the Attorney General was not given adequate notice under IC 34-4-10-11;
(II) Whether the State's brief complies sufficiently with the Indiana Appellate Rules of Procedure;
(III) Whether the State is estopped from relitigating the constitutionality of the ordinance involved in view of the State's failure to appeal the dismissal of similar charges in the prior case of State v. Buchanan ;
(IV) Whether the present case can be prosecuted in the name of the State;
(V) Whether an unpublished order of the United States Court of Appeals can be cited as authority in Indiana state courts, and whether such citation constitutes reversible error in the instant case;
(VI) Whether the questioned sections of the ordinance involved are unconstitutional; and
(VII) Whether the present defendants can assert as a defense in this action their alleged reliance upon the prior unappealed trial court decision in Buchanan, which held the ordinance involved herein unconstitutional.
The State first contends that the trial court was without jurisdiction to dismiss the informations against Clark and Black since the Office of the Attorney General had not received notice of the fact that the defendants were challenging the constitutionality of the ordinance. The State argues that IC 34-4-10-11 requires a defendant to notify the Attorney General if that defendant seeks to contest the constitutionality of a local ordinance. The State further maintains that "The purpose of mandating that notice be given to the Attorney General, and for entitling the Attorney General to be heard is to enhance the quality of constitutional litigation." Defendants Clark and Black disagree with the State's assertions and reasoning.
IC 34-4-10-11, upon which the State relies in its argument that the Attorney General should have been notified of the trial court proceedings, actually is a section of the Uniform Declaratory Judgment Act. See IC 34-4-10-1 through 34-4-10-16. The section here involved, IC 34-4-10-11, reads as follows:
We hold that the defendants were not required to serve notice on the Attorney General before they could attack the constitutionality of the ordinance. The State's attempt to engraft the Uniform Declaratory Judgment Act onto existing procedure for prosecuting ordinance violations must fail. The Declaratory Judgment Act itself states at IC 34-4-10-15:
"This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it, and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments and decrees."
We believe that the legislature, in adopting the Uniform Declaratory Judgment Act, did not intend that its provisions would apply to proceedings in which defendants are alleged to have violated local ordinances. Therefore, Clark and Black were not required to serve notice upon the Attorney General under IC 34-4-10-11.
Clark and Black first argue that the State has waived its alleged errors on the ground that its brief fails to comply with the Appellate Rules requiring that each appellate brief contain an argument. We have examined the State's brief and we hold that the State's brief contains sufficient argument to be in substantial compliance with the Appellate Rules. Therefore, we will proceed to consider the merits of the case.
Black and Clark next argue that the trial court could not reconsider, in the present case, the question of the constitutionality of the ordinance since (1) that court previously had determined in the Buchanan case that the ordinance was unconstitutional and (2) that decision was never appealed. Thus, argue Black and Clark, the State is estopped from relitigating this issue, or is barred by the doctrines of Res judicata or collateral estoppel.
We note first that Black and Clark's reasoning is inapplicable to the action of the trial court in this case; that court in fact did Not reconsider its former position that the ordinance is unconstitutional; indeed, the trial court's decision in the present case was identical to that in the Buchanan case.
The real issue is whether the unappealed decision in the Buchanan case prevents the Court of Appeals from deciding for itself the constitutional questions involved in the case at bar. We hold that the doctrine of Res judicata, collateral estoppel, and estoppel do not preclude this court from examining such constitutional issues in this situation. Although there appear to be no Indiana cases on point, we find it illogical that the failure of a party to appeal a decision regarding important constitutional issues somehow prevents an appellate court from reviewing those same issues in a separate case. Therefore, we hold that the doctrines of Res judicata, estoppel, and collateral estoppel are inapplicable to the case at bar.
The defendants next allege that the State is not the real party in interest in the present case; specifically, defendants contend that since the action alleges the violation of a county ordinance, the action must be brought in the name of the county. 1 Defendants quote Indiana Rules of Procedure, Trial Rule 17:
We need not discuss the issue raised by the defendants, for we hold that Vanderburgh County has sufficiently ratified the action within the meaning of TR. 17. Not only did the county file its motion to intervene, it also (1) filed a motion to set aside the trial court's judgment holding the ordinance unconstitutional; (2) filed a memorandum stating the reasons it wished to be heard in support of the ordinance; and (3) appeared and argued in favor of the constitutionality of the ordinance at a hearing in the trial court. We hold this to be sufficient ratification by the...
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