State v. Lilley, 2017-0116

• Decision Date: 08 February 2019
• Docket Number: No. 2017-0116,2017-0116
• Parties: The STATE of New Hampshire v. Heidi C. LILLEY The State of New Hampshire v. Kia Sinclair The State of New Hampshire v. Ginger M. Pierro
• Court: New Hampshire Supreme Court

171 N.H. 766

204 A.3d 198

The STATE of New Hampshire

v.Heidi C. LILLEY

The State of New Hampshire

v.Kia Sinclair

The State of New Hampshire

v.Ginger M. Pierro

No. 2017-0116

Supreme Court of New Hampshire.

Argued: February 1, 2018

Opinion Issued: February 8, 2019

Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.

Liberty Legal Services, of Manchester (Dan Hynes on the brief and orally), for the defendants.

American Civil Liberties Union of New Hampshire, of Concord (Gilles R. Bissonnette on the brief), as amicus curiae.

HANTZ MARCONI, J.

The defendants, Heidi Lilley, Kia Sinclair, and Ginger Pierro, appeal a ruling of the Circuit Court (Carroll, J.) that they violated a City of Laconia ordinance prohibiting them from appearing in a state of nudity in a public place. See Laconia, N.H., Code of Ordinances ch. 180, art. I, § 180-2 (1998). We affirm.

I. Background

The following facts are drawn from the trial court's order on the defendants' motion to dismiss or are otherwise supported by the record. On May 28, 2016, Pierro went to Endicott Park Beach in Laconia. At the hearing on the defendants' motion to dismiss, Pierro testified that she "was topless" and was there "to enjoy the beach." She agreed with defense counsel that she was "performing yoga on the beach." She stated that she "was violently harassed" by "[s]everal citizens," but that "out of everybody on the beach, there were only actually a handful that were upset."

Sergeant Black of the Laconia Police Department testified that, on that same day, he and Officer Callanan responded to the beach because the department had "received several calls about a female ... doing nude yoga." Callanan testified that they approached a woman, later identified as Pierro, who was "not wearing any shirt and her breasts, as well as her nipples, were both exposed." Callanan stated that she "made attempts to speak to" Pierro, but that Pierro "continued to do her yoga poses." She explained that "after about a minute or so, [Pierro] looked up and acknowledged that we were, in fact, trying to speak to her." She testified that they "explained to [Pierro] that the reason [they] were making contact with her was in reference to a Laconia City Ordinance, since her nipples were exposed on the beach in a public place." Callanan stated that they asked Pierro "multiple times to cover up, to put her bathing suit top back on, or put her shirt back on," but that Pierro "refused."

Callanan testified that Pierro was arrested for violating Laconia City Ordinance § 180-2 (the ordinance), which states, in relevant part, that "it shall be unlawful for any person to knowingly or intentionally, in a public place: ... [a]ppear in a state of nudity." "Nudity" is defined as "[t]he showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple." Laconia, N.H., Code of Ordinances ch. 180, art. I, § 180-4 (1998).

In 2015, Sinclair became involved in the "Free the Nipple" movement. Sinclair testified that she was one of the people who "started" the movement in New Hampshire after having her son and realizing "that there was a very big stigma on breastfeeding." She explained that she believed that breasts, specifically nipples, are "hypersexualize[d]" and "consider[ed] pornographic and taboo," which she stated results "in that stigma" and "contributes to the low breastfeeding rates that the United States has compared to the rest of the world." Sinclair told Lilley about the movement, which Lilley then joined. Lilley testified that she is "a feminist" and joined the movement because she "believe[s] in the equality of the male and female."

On May 31, 2016, Sinclair and Lilley went topless to Weirs Beach in Laconia. While at the beach, they were arrested for violating the ordinance. Sinclair testified that she "purposely engaged in civil disobedience knowing that the City of Laconia has an ordinance against the exposure of the female nipple and areola." She stated that she was "protesting [Pierro's] case where she had been arrested a few days prior." Lilley testified that she was also protesting Pierro's arrest and that she "announced to the arresting police officer that [she] was acting in a protest and that [she] did not believe that [she] could be arrested for protesting." She further agreed with the prosecutor that, on that day, she "chose to take it upon [herself] to violate the ordinance to give attention to [her] cause."

The defendants jointly moved to dismiss the charges against them. They argued that the ordinance violates the guarantee of equal protection and their right to free speech under the State and Federal Constitutions. They further contended that the City of Laconia lacked the authority to enact the ordinance and that the ordinance was preempted by RSA 645:1 (2016). Finally, the defendants maintained that the ordinance violates RSA chapter 354-A. See RSA ch. 354-A (2009 & Supp. 2017) (amended 2018). The State objected. Following a hearing, the court denied the defendants' motion. The court subsequently found the defendants guilty of violating the ordinance. This appeal followed.

On appeal, the defendants argue that the trial court erred by denying their motion to dismiss because the ordinance: (1) violates their right to equal protection under the State and Federal Constitutions; (2) violates their rights to free speech and expression under the State and Federal Constitutions; (3) does not fall within the regulatory authority granted to the City of Laconia by the legislature; (4) is preempted by RSA 645:1 ; and (5) violates RSA chapter 354-A. We will address each of the defendants' arguments in turn.

II. Equal Protection

The defendants first argue that the ordinance violates their right to equal protection under Part I, Article 2 of the New Hampshire Constitution and the Fourteenth Amendment to the United States Constitution. See N.H. CONST. pt. I, art. 2 ; U.S. CONST. amend. XIV. We review the constitutionality of local ordinances de novo. McKenzie v. Town of Eaton Zoning Bd. of Adjustment, 154 N.H. 773, 777, 917 A.2d 193 (2007). We first address the defendants' arguments under the State Constitution and cite federal opinions for guidance only. State v. Ball, 124 N.H. 226, 231-33, 471 A.2d 347 (1983).

We begin by addressing the scope of the defendants' challenge to the ordinance. An appellant may challenge the constitutionality of a statute or an ordinance¹ by asserting a facial challenge, an as-applied challenge, or both. See State v. Hollenbeck, 164 N.H. 154, 158, 53 A.3d 591 (2012). A facial challenge is a head-on attack of a legislative judgment, an assertion that the challenged statute violates the Constitution in all, or virtually all, of its applications. Id. To prevail on a facial challenge, the challenger must establish that no set of circumstances exists under which the challenged statute or ordinance would be valid. Id. On the other hand, an as-applied challenge concedes that the statute may be constitutional in many of its applications, but contends that it is not so under the particular circumstances of the case. Id.

Here, the defendants do not concede that the relevant portion of the ordinance is constitutional in any circumstance. They argue that "the ordinance makes a gender-based classification on its face." We construe their claim to be a facial challenge to the portion of the ordinance that prohibits "the showing of the female breast with less than a fully opaque covering of any part of the nipple" in a public place. See Laconia, N.H., Code of Ordinances ch. 180, art. I, §§ 180-2, 180-4. Thus, the defendants must demonstrate that there is no set of circumstances under which this ordinance might be valid. See Hollenbeck, 164 N.H. at 158, 53 A.3d 591.

Next, we must determine the appropriate standard of review to apply to the ordinance. In re Sandra H., 150 N.H. 634, 637, 846 A.2d 513 (2004). We do this by examining the purpose and scope of the State-created classification and the individual rights affected. Id. Classifications based upon suspect classes are subject to strict scrutiny: the government must show that the legislation is necessary to achieve a compelling government interest and is narrowly tailored. Cmty. Res. for Justice v. City of Manchester, 154 N.H. 748, 759, 917 A.2d 707 (2007). Classifications which affect a fundamental right may be subject to strict scrutiny depending on the nature of the right and the manner in which it is affected. See Estate of Cargill v. City of Rochester, 119 N.H. 661, 667, 406 A.2d 704 (1979) ; see also Bleiler v. Chief, Dover Police Dep't, 155 N.H. 693, 697-98, 927 A.2d 1216 (2007) ; Lamarche v. McCarthy, 158 N.H. 197, 204, 965 A.2d 992 (2008). Below strict scrutiny is intermediate scrutiny, which is triggered when the challenged classification involves important substantive rights, Sandra H., 150 N.H. at 637-38, 846 A.2d 513, and which requires the government to show that the challenged legislation is substantially related to an important government interest.

Cmty. Res., 154 N.H. at 762, 917 A.2d 707. Finally, absent a classification based upon suspect classes, affecting fundamental rights, or involving important substantive rights, the constitutional standard of review is that of rationality. Sandra H., 150 N.H. at 638, 846 A.2d 513 ; cf. Gonya v. Comm'r, N.H. Ins. Dept., 153 N.H. 521, 532-33, 899 A.2d 278 (2006). Our rational basis test requires that legislation be rationally related to a legitimate government interest. Boulders at Strafford v. Town of Strafford, 153 N.H. 633, 639, 903 A.2d 1021 (2006). Under this test, the party challenging the statute or ordinance must show that whatever classification is promulgated is arbitrary or without some reasonable justification. Id. at 640, 903 A.2d 1021.

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