Petition — Caesar's Health Club v. St. Louis County

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Supreme Court, U. S,

FILED

SEP 138 1978

a em ence an aes eee:

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

ae 78-420

CAESAR’S HEALTH CLUB, et al.,

Petitioners,

ST. LOUIS COUNTY, MISSOURI.

PETITION FOR A WRIT OF CERTIORARI

To the Missouri Court of Appeals, St. Louis District

DONALD L. WOLFF

PAUL J. PASSANANTE

WOLFF, FRANKEL, McCONNELL &

PASSANANTE

8019 Forsyth Boulevard

Clayton, Missouri 63105

(314) 725-8019

Attorneys for Petitioners

St. Louis Law Printing Co. Inc., 812 Olive Street 63101 314-231-4477

INDEX

Page

EET l

ISLES ELL LSS SL 3

ee kG ES hg iis cs secs oceecc 3

EEE LEE EE 4

RL Sine ca wid sve bec eccesece 7

Raising of the Federal Questions .................... 8

Reasons for Granting the Writ ..................... 10

I. Compelling State Interests .................. 10

EAL ILE LIE 12

EEE EE 24

EE EO 29

Appendix A—St. Louis County Ordinance No. 7546 .. A-1

Appendix B—Opinion of the Missouri Court of Appeals,

St. Louis District, filed April 11, 1978 .............. A-3

Appendix C—Order of the Supreme Court of Missouri

denying petitioners’ application for transfer ........ A-13

CITATIONS

Cases

Andrews, et al. v. The Drew Municipal Separate School

District, et al., 507 F:2d 611 (Sth Cir. 1975), cert. de-

a 27

Bates, et al. v. State Bar of Arizona, 433 U.S. 350 (1977) 16

Bigelow v. Commonwealth of Virginia, 421 U.S. 809

COPTER: |v dlea's a ch pe SN aaa e TM kate ed peated ae 16

Broadrick, et al. v. Oklahoma, et al., 413 U.S. 601 (1973) 11

Brown, et al. v. Honer, et al., 410 F.Supp. 399 (W.D.Va.

i MCE TE SE ee Se eel eae RAR Ls” he 16

Buchanan, et al. v. Batchelor, etc., et al., 308 F.Supp.

729 (N.D. Tex. 1970) vacated and remanded on other

grounts, 401 U.S. SOP GATED «5 ccs ee ees 19, 25

California Bakers Assn. v. Schultz, etc., et al., 416 U.S.

Oe EOP ik sch oe eee ene ee eee 11, 24

Carey, etc., et al. v. Population Services International, et

Me a es ee ee ee a 16

Cleveland Board of Education, et al. v. LaFleur, et al., 414

ha. Gee SOP cp ars bbe ene vine eeee 27

Commonwealth v. Balthazar, 318 N.E.2d 478 (Mass.

USTED | okcds ba neva bk eee tee 18

Cotner v. Henry, etc., 394 F.2d 873 (7th Cir. 1968), cert.

Gented. 393 UR, BAF COs ee es oe we 19

Craig, et al. v. Boren, etc., et al., 429 U.S. 190 (1976) .. 28

Doe, et al. v. Bolton, etc., et al., 410 U.S. 179 (1973) ..15, 23

Eisenstadt, etc. v. Baird, 405 U.S. 438 (1972) ...... 15, 25

Fadgen v. Lenkner, 365 A.2d 147 (Pa. 1976) ........ 15,18

First National Bank of Boston, et al. v. Bellotti, etc., et

al., — U.S. —, 46 L.W. 4371 (April 26, 1978) .... 16

Frontiero, et vir. v. Richardson, etc., et al., 411 U.S. 677

CHT chicane eee ee 26

Gomez v. Perez, 409 U.S. 535 (1973) ................ 27

Griswold, et al. v. Connecticut, 381 U.S. 479

(SPOR ses vakc ohare eee 13, 14, 15, 22, 23

—_

eee

Jimenez, et al. v. Weinburger, etc., 417 U.S. 628 (1974) 27

Linmark Associates, Inc., et al. v. Township of Willingboro,

a we | OS kt gg) ee ere a) So er er ee 16

Lochner v. New York, 198 U.S. 45 (1905) .......... 22, 23

Loving, et ux. v. Virginia, 388 U.S. 1 (1967) ....13, 21, 22, 23

Lovisi, et al. v. Slayton, etc., et al., 363 F.Supp. 620 (E.D.

Va. 1973), affirmed, 539 F.2d 349 (4th Cir. 1976) ..15, 19

Memorial Hospital, et al. v. Maricopa County, et al., 415

EEN Ss hs ae oral ko bin 90s ko ah 88 10

Memphis Light, Gas and Water Division, et al. v. Craft, et

al., — U.S. —, 46 L.W. 4398 (May 1978) ........ 12

Meyer v. State of Nebraska, 262 U.S. 390 (1923) ...... 22, 23

National Association for the Advancement of Colored Peo-

ple v. Alabama ex rel. Patterson, etc., 357 U.S. 449

a ks aaa RA ae ew bene 13

New Jersey Welfare Rights Organization, et al. v. Cahill,

ee ome es) rr ie 27

O’Connor v. Donaldson, 422 U.S. 563 (1975) .......... 11

Olmstead, et al. v. United States, 277 U.S. 438 (1928) .... 14

Puris Adult Theatre I, et al. v. Slayton, etc., et al., 413 U.S.

Gs BOR sl i a OS Hn 10, 12

Pierce, etc., et al. v. Society of Sisters, 268 U.S. 510

ik ng itis WORS Sane sean aeeee 22, 23

Planned Parenthood of Central Missouri, etc., et al. v. Dan-

Sort, G6e.. OF we, SEE US. TI ISTO) ow 5 sien wees 15

Poe, et al. v. Ullman, etc., 367 U.S. 497 (1961) ........ 21, 23

Prince v. Massachusetts, 321 U.S. 158 (1948) .......... 22

Ravin v. State of Alaska, 537 P.2d 494 (Alaska, 1975) .. 21

Reed v. Reed, etc., 404 U.S. 71 (1971) .............. 26

Roe, et al. v. Wade, etc., 410 U.S. 113

GaP Sais chee rede eaeeeee 10, 13, 15, 16, 23, 24, 25

Singleton, etc. v. Wulff, et al., 428 U.S. 106 (1976) ....16, 28

Skinner v. Oklahoma ex rel. Williamson, etc., 316 U.S. 535

COIRDD 55 50k ns Se eh ose eee ee ee 22, 23

Stanley v. Georgia, 394 U.S. 557 (1969) ....... 13, 34, 13, 23

Stanley v. Illinois, 405 U.S. 645 (1972) .............. 26

State of Iowa v. Pilcher, 242 N.W.2d 348 (Iowa,

Le Ee ee ere es PY Rie 11, 17, 25

State of New Jersey v. Lair, 301 A.2d 748 (N.J., 1973) .. 18

Feary v. Gibo, 358 Ga. 3 GRPGGR So. ina Kies dtetawn 13

The People of the State of New York v. Johnson, 355

N.Y 326 2OG TIF 36 svc cake acne 18, 25

The People of the State of New York v. Rice, et al., 363

N.Y.S.26 @04 (5978) 6 6 soo xdan gee eee 18, 25

Union Pacific Railway Company v. Botsford, 141 U.S. 250

(1892)... . snc ened e dauee heey eee a eeeien iano 13

United States v. Brewer, 363 F.Supp. 606 (M.D.Pa. 1973),

affirmed, 491 F.2d 751 (3rd Cir. 1973) ............. 20

United States v. Orito, 413 U.S. 139 (1973) ........... 21

United States Department of Agriculture, et al. v. Murry,

et al., 413 US. FOR GGT 6 vcs net iecase decane 27

Virginia State Board of Pharmacy, et al. v. Virginia Citi-

zens Consumer Council, Inc., et al., 425 U.S. 748

(197)... os ww i e's eile > on eee a 16

Weinberger, etc. v. Wiesenfeld, 420 U.S. 636 (1975) .... 26

Wyman v. Wallace, 549 P.2d 71 (Wash., 1976) ....... 15, 18

Constitutional Provisions

Constitution of the United States:

I i Sr dh, ct gta aie lie ‘ullal'a pub 8 4

Nee ce oe ak ORK EVO Oe 4

EEE TS TE 4

ie od ay as hie 8S 4

tas boa eo bib oe ee Re 8 5

Statutes

oe Bo | RSS ee ee ee ee ges 3

Missouri Revised Statutes, 1978:

lat. Delays 5, t7

Ordinances

St. Louis County Ordinance No. 713.030 ............. we

St. Louis County Ordinance No. 713.040 ............. 5,6

St. Louis County Ordinance No. 713.080 .............. >

Miscellaneous

Beaney, “The Griswold Case and the Expanding Right to

Privacy,” 1966 Wis. L. Rev. 979 ............05000. 14

Case Comment, “Constitutional Law: Court Substitutes

Conclusive Presumption Approach for Equal Protection

Analysis,” 58 Minn. L. Rev. 965 (1974) ............ 27

Franklin, “The Ninth Amendment, etc.,” 40 Tul. L. Rev.

tne EE aad a knare 6 Wd + Ge & 0! He baka 14

Gelinas, “Roe v. Wade and Doe v. Bolton: The Compelling

State Interest Test in Substantive Due Process,” 30 Wash.

ee Bi, I, I ES bie co cet sev dsccncere 11

Gross, “The Concept of Privacy,” 42 N.Y.U.L. Rev. 34

GEE iv hia '0is ne geek bees skeen oie wha tes

Kelly, “Clio and the Court: An Illicit Love Affair,” 1965

EE LW ies «5.04 1 one Bk pe oa Ee ek 8

Note, “The Conclusive Presumption Doctrine: Equal Pro-

cess or Due Protection?,” 72 Mich. L. Rev. 800 1974)

Note, “The Supreme Court—1964 Term,” 79 Harv.L.

Sn See RO 6» niente Aka ee eS aS CEs FO KS

Note, “The Uncertain Renaissance of the Ninth Amend-

ment,” 33 UCM. L. Rew. OE6 (9966) . . 5... ciwcccen

Note, 60 N.W.U. L.' Rev. $13 (1966) ............606.

Pilpel, “Birth Control and a New Birth of Freedom,” 27

ke | eet Meare er i! &

“Symposium—Comments on the Griswold Case,” 64 Mich.

Rc ee AOU 5.66 ick bay wea tds a2 ss RE

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

Be Sloe aed

CAESAR’S HEALTH CLUB, et al.,

Petitioners,

ST. LOUIS COUNTY, MISSOURI.

PETITION FOR A WRIT OF CERTIORARI

To the Missouri Court of Appeals, St. Louis District

Caesar’s Health Club, et al., your petitioners, respectfully

pray that a writ of certiorari be issued to review the judgment

of the Missouri Court of Appeals, St. Louis District, entered

in the above-entitled cause on the 21st day of June, 1978.

OPINIONS BELOW

On August 19, 1975, petitioners, twelve corporations or

proprietorships conducting business in St. Louis County, Mis-

souri, as massage parlors, filed a petition in the Circuit Court

of St. Louis County, Missouri, for declaratory judgment and

ae oe

for interlocutory and permanent injunctive relief against the

application and enforcement of St. Louis County Ordinance

No. 7546. The ordinance defines prostitution and prescribes

criminal penalties therefor. On July 23, 1976, the Circuit

Court declared St. Louis County Ordinance No. 7546 to be

constitutional, lawful and valid. A copy of the ordinance is

reproduced in Appendix A.

Petitioners duly appealed to the Missouri Court of Appeals,

St. Louis District. In an opinion filed April 11, 1978, the

judgment of the trial court was affirmed. The opinion of the

Missouri Court of Appeals, St. Louis District, has been offi-

cially reported and can be found at 565 S.W.2d 783 (1978).

A copy of the opinion is reproduced in Appendix B.

Various motions for rehearing and transfer were filed and

overruled by the Missouri Court of Appeals, St. Louis District.

Thereafter, petitioners duly filed an application for transfer to

the Supreme Court of Missouri. On June 15, 1978, the Su-

preme Court of Missouri denied petitioners’ application to

transfer the cause from the Missouri Court of Appeals, St.

Louis District, to the Supreme Court of Missouri. A copy of

the order of the Supreme Court of Missouri denying petition-

ers’ application for transfer is reproduced in Appendix C.

On June 21, 1978, the mandate of the Missouri Court of

Appeals, St. Louis District, was received and entered into the

record of St. Louis County, Missouri. By an order of that

Court dated June 29, 1978, a temporary restraining order

previously entered was continued in full force and effect pend-

ing application to the United States Supreme Court for a Writ

of Certiorari. Enforcement of St. Louis County Ordinance

No. 7546 is thereby stayed pending a determination by this

Honorable Court of this petition for a writ of certiorari.

JURISDICTION

The opinion of the Missouri Court of Appeals, St. Louis

District, was filed on April 11, 1978. The Supreme Court of

Missouri denied discretionary transfer on June 15, 1978.

The jurisdiction of this Honorable Court is invoked pursu-

ant to 28 U.S.C. § 1257(3).

QUESTIONS PRESENTED

Whether the trial court’s failure to require, and the respond-

ent’s failure to show a compelling state interest to justify the

challenged ordinance deprives petitioners of rights guaranteed

them under the Constitution of the United States.

Whether the challenged ordinance violates fundamental

rights of privacy afforded petitioners by the Constitution of

the United States.

Whether the challenged ordinance violates petitioners’ rights

to Due Process of Law as guaranteed by the Constitution of

the United States by reason of its overbreadth.

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES OF COURT INVOLVED

Amendments to Constitution of the United States:

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging

the freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the Government

for a redress of grievances.

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particu-

larly describing the place to be searched, and the persons or

things to be seized.

. nor shall any person be subject for the same offense

to be twice put in jeopardy of life or limb; nor shall be com-

pelled in any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, without due proc-

ess of law; . . .

The enumeration in the Constitution, of certain rights, shall

not be construed to deny or disparage others retained by the

people.

XIV

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Statutes of State of Missouri

§ 563.230. The abominable and detestable crime against

nature—penalty

Every person who shall be convicted of the detestable and

abominable crime against nature, committed with mankind or

with beast, with the sexual organs or with the mouth, shall be

punished by imprisonment in the penitentiary not less than two

years.

Ordinances of St. Louis County, Missouri

Bill No. 178, Ordinance No. 7546

Section 1. Sections 713.030, 713.040, 713.050 and 713.080

SLCRO 1964, as amended, are hereby repealed.

Section 2. Title VII, Chapter 713, SLCRO 1964, as amended,

the Vice and Morality Code, is hereby amended by enacting

and adding thereto three new sections, to be numbered 713.-

030, 713.040 and 713.080, relating to the regulation of pros-

titution, which new sections shall read as follows:

713.030 Definitions 1. The term “person” as used in this

Chapter shall mean any natural person, firm, partnership,

las

co-partnership, association, corporation or organization of

any kind.

2. A person commits “prostitution” if he or she engages

or offers or agrees to engage in sexual conduct in return

for something of value to be received by the person or a

third person.

3. “Sexual Conduct” occurs when there is:

(a) “Sexual Intercourse” which occurs when there is

any penetration of the female sex organ by the male

sex organ;

(b) “Deviate Sexual Intercourse” which means any

sexual act involving the genitals of one person and

the mouth, tongue or anus of another person;

ual or otherwise, of the anus or genitals of one per-

son by another.

4. “Something of Value” means any money or property,

or any token, object or article exchangeable for money or

property.

5. “Promoting prostitution” occurs when a person know-

ingly promotes, solicits, compels, or encourages a person

to engage in prostitution or patronize prostitution.

6. “Profiteering from Prostitution” occurs when a person,

acting other than as a prostitute receiving compensstion!

for personally rendered prostitution services, knowing

accepts money or receives money or other property pur-

Suant to an agreement or understanding with any person

whereby he or she participates or is to participate in the

proceeds of prostitution activity.

713.040 Prostitution, Promoting Prostitution, Profiting

from Prostitution—Prohibited.—A person shall not en-

ones A nas

gage in prostitution, promoting prostitution, or profiting

from prostitution.

713.080 Penalties—Any person violating any of the pro-

visions of this Chapter shall upon conviction be punished

by a fine not exceeding One Thousand Dollars ($1,000.00) |

or by imprisonment in the County Jail for not exceeding

one (1) year, or by both such fine and imprisonment.

STATEMENT

On August 19, 1975, petitioners, being twelve corporations

or proprietorships, all duly authorized and conducting busi-

ness in St. Louis County, Missouri, filed a petition for declara-

tory judgment and for interlocutory and permanent injunctive

relief against the application and enforcement of St. Louis

County Ordinance No. 7546.

All petitioners conduct the business of a massage parlor,

involving on occasion the touching, manually or otherwise,

by employees of petitioners of the anus or genitals of another

in exchange for something of value.

A Temporary Restraining Order and an Order to Show

Cause were issued by the Honorable George W. Cloyd, Judge,

Division Nine of the St. Louis County Circuit Court on August

19, 1975, and the latter was made returnable on October 14,

1975. On July 23, 1976, the challenged Ordinance was de-

clared “to be constitutional, lawful and valid”, the “(t)emporary

restraining order dissolved” and the “(p)ermanent injunction

denied”. On July 26, 1976, the Honorable William H. Crandall,

Jr., Judge, Division One of the St. Louis County Circuit Court,

“in the absence of and at the request of Judge George W. Cloyd”

granted further injunctive relief against the application and en-

forcement of the challenged legislation pending appeal.

a oe

Petitioners’ motion for new trial was filed on August 6, 1976,

and the same was overruled on September 24, 1976. Notice of

Appeal and Jurisdictional Statement were duly filed by petition-

ers on October 1, 1976.

Petitioners duly appealed to the Missouri Court of Appeals,

St. Louis District. In an opinion filed April 11, 1978, the judg-

ment of the trial court was affirmed.

Various motions for rehearing and transfer were filed and

overruled by the Missouri Court of Appeals, St. Louis District.

Thereafter petitioners duly filed an application for transfer to

the Supreme Court of Missouri. On June 15, 1978, the Supreme

Court of Missouri denied petitioners’ application to transfer the

cause from the Missouri Court of Appeals, St. Louis District, to

the Supreme Court of Missouri.

On June 21, 1978, the mandate of the Missouri Court of

Appeals, St. Louis District, was received and entered into the

record of St. Louis County, Missouri. By an order of that Court

dated June 29, 1978, a temporary restraining order previ-

ously entered was continued in full force and effect pending

application to the United States Supreme Court for a Writ of

Certiorari. Enforcement of St. Louis County Ordinance No.

7546 is thereby stayed pending a determination by this Honor-

able Court of this petition for a writ of certiorari.

RAISING OF THE FEDERAL QUESTIONS

This litigation commenced upon the filing by petitioners of a

petition in the Circuit Court of St. Louis County, Missouri, for

a declaratory judgment, interlocutory and permanent injunc-

tive relief. In that petition, petitioners raised various federal

constitutional questions under the First, Fourth, Fifth, Ninth

and Fourteenth Amendments to the Constitution of the United

States. The judgment of the trial court was a declaration that

St. Louis County Ordinance No. 7546 is constitutional, lawful

and valid.

On appeal, petitioners re-raised and preserved the numerous

federal constitutional questions in their briefs and arguments

before the Missouri Court of Appeals, St. Louis District. The

arguments relating to federal constitutional questions were re-

jected by that court as shown in the following excerpts from the

court’s opinion:

“Appellants argue the trial court erred in declaring the

ordinance constitutional because respondent failed te meet

its burden of demonstrating a compelling state interest as

justification for the ordinance.”

* * * - * * *

“They assert that enforcement of the ordinance would

infringe upon the constitutionally guaranteed right of

privacy insofar as it would proscribe private sexual con-

duct between consenting adults.”

* * * * * - o

“Appellants urge that implicit in the concept of ordered

liberty is the fundamental privacy right of its employees and

patrons to participate in sexual massage activities in the

seclusion afforded by appellants’ massage establishments.”

* * * * * * *

“Appellants further contend the ordinance is unconsti-

tutionally overbroad, and therefore void and unenforce-

able.”

In addition there were numerous other references throughout

the Court’s opinion indicative of the raising and rejecting of

federal constitutional questions. The same questions were raised

in the various motions for rehearing and applications for transfer

subsequent to the filing of the opinion by the Missouri Court

of Appeals, St. Louis District.

—”

REASONS FOR GRANTING THE WRIT

Compelling State Interests

This litigation commenced upon the filing by petitioners of a

petition in the Circuit Court of St. Louis County, Missouri, for

a declaratory judgment, interlocutory and permanent injunctive

relief. Respondent neither filed an answer to petitioners’ petition

nor in any other manner asserted or suggested a legitimate state

interest in the conduct sought to be prohibited. The granting

by the trial court of what must be termed a “summary judgment”

procedurally precluded respondent from asserting any legal basis

of a compelling state interest nature in justification of the ordi-

nance. Respondent had neither prayed nor moved for such

relief and the premature judgment of the trial court foreclosed

respondent from establishing any legal basis sufficient to sustain

the trial court’s finding that the ordinance was constitutional,

lawful and valid.

The United States Supreme Court has clearly recognized

that the burden of justifying the type of legislation herein chal-

lenged, which infringes upon fundamental sexual rights, lies

heavily upon the respondent.

“Where certain ‘fundamental rights’ are involved, the

Court has held that regulation limiting these rights may

be justified only by a ‘compelling state interest.’ ”?

1 Roe, et al. v. Wade, etc., 410 U.S. 113, 155 (1973). See: Paris

Adult Theatre I, et al. v. Slayton, etc., et al., 413 U.S. 49, 65 (1973);

and Memorial Hospital, et al. v. Maricopa County, et al., 415 U.S.

250, 254 (1974).

— )

This principle is particularly applicable when “one’s beliefs,

ideas, politics, religion, cultural concerns, and the like”? be-

come involved; a situation present at bar.*

“Mere public intolerance or animosity cannot constitution-

ally justify the deprivation of a person’s physical liberty.”*

While this axiom of the heavy burden upon the respondent

to justify legislative interference with the fundamental right to

private sexual conduct is capable of being succinctly stated, its

importance should not be overshadowed by either its brevity

or clarity. Respondent, the County of St. Louis, has failed to

assert, demonstrate and/or to prove any state interests which

even approach the level of interests intrinsic to individual pri-

vacy within the realm of sexual expression, much less any state

interests of a “compelling” magnitude or nature.

The applicability of the “compelling state interest” standard

to the factual circumstances here has been widely recognized

in numerous cases deciding the constitutionality of state statutes

attempting to regulate private sexual conduct.°

Petitioners respectfully submit that this Honorable Court can

compare the total denial of due process by the trial court in

these proceedings by reason of the complete absence of an evi-

2 California Bankers Assn. v. Schultz, etc., et al., 416 U.S. 21,

86 (1974).

3 See: Gelinas, Roe v. Wade and Doe v. Bolton: The Compelling

State Interest Test in Substantive Due Process,” 30 WASH. & LEE

L.REV. 628 (1973).

4 O’Connor v. Donaldson, 422 U.S. 563, 575 (1975).

5 State of lowa Vv. Pilcher, 242 N.W.2d 348, 359 (Iowa 1976);

The People of the State of New York v. Rice, et al., 80 Misc. 2d 511,

515 (1975), 363 N.Y.S.2d 484, 488. See: Broadrick, et al. v. Okla-

homa, et al., 413 U.S. 601, 611-612 (1973).

a §2 «om

dentiary hearing or opportunity for same with the denial of due

process found by this Court in the termination of utility services.®

That the failure to afford petitioners an evidentiary hearing

denied them their constitutional rights cannot be disputed.

Surely it was the lack of a record that led to the mischaracteri-

zation by the Missouri Court of Appeals, St. Louis District, of

the challenged ordinance as being civil rather than criminal in

nature.‘ So too, the lack of an evidentiary basis for findings of

fact must have contributed to that Court’s categorization of

petitioners’ activities as occurring in “places of public accommo-

dation” as opposed to “private places”. The record in this

case is absolutely silent as to the location, circumstances and

conditions under which massages are administered by petitioners.

Again, no factual record was made nor trial held. There is no

reason to believe from the basis of the record that massages

are not, in fact, given in the customer’s home or another locale

affording total privacy. There was and is no legal iustification

for the Missouri Court of Appeals, St. Louis District’s, compari-

son of petitioners’ activities to the total lack of privacy prevailing

in a public movie house such as this involved in Paris Adult

Theatre I, et al. v. Slayton, etc., et al., 413 U.S. 49 (1973), and

reliance upon that decision on that issue is misplaced.

Privacy

Although privacy is not a concept protected by the Constitu-

tion per se, it is a concept long recognized as fundamental to

the rights, privileges and immunities guaranteed citizens of the

6 Memphis Light, Gas and Water Division, et al. v. Craft, et al.,

— US. —, 46 L.W. 4398 (May 1978).

7 See the Court’s Opinion, Appendix B.

ai iii ial

pee |

United States. As early as 1891, this Court, in Union Pacific

Railway Company v. Botsford, 141 U.S. 250 (1891), recog-

nized that:

“No right is held more sacred, or is more carefuliy

guarded . . . than the right of every individual to the pos-

session and control of his own person . . . ‘The right to

one’s person may be said to be a right of complete im-

munity: to be let alone.” 141 U.S. at 251.

The right of privacy has in a variety of contexts been held to

be implicit in a multitude of constitutional settings. Among

others, it has been established within the First Amendment free-

dom of association,* within the First Amendment freedom of

speech,® within the Fourth Amendment restraint on search and

seizure,’” within the Ninth Amendment’s unenumerated rights,'!

within the Fourteenth Amendment equal protection guarantee,'”

within the Fourteenth Amendment due process guarantee’* and

within the penumbra of the Bill of Rights.’* It unquestionably

also inately resides within the First Amendment freedom of

religion and within the Fifth Amendment restraint on self-in-

crimination.

The antecedents and progeny of Griswold, et al. v. Connecti-

cut, 381 U.S. 479 (1965), offer generalized support for apply-

8 National Association for the Advancement of Colored People

v. Alabama ex rel. Patterson, etc., 357 U.S. 449 (1958).

9 Stanley v. Georgia, 394 U.S. 557 (1969).

10 Terry v. Ohio, 392 U.S. 1 (1968).

11 Griswold, et al v. Connecticut, 381 U.S. 479 (1965), Goldberg,

J., concurring.

12 Loving, et ux. v. Virginia, 388 U.S. ft (1967).

18 Roe, et al. v. Wade, etc., 410 U.S. 113 (1973).

14 Griswold, supra, Golberg, J., concurring.

pus eee

ing a presumptive constitutional right of privacy to sexual rela-

tions and conduct.

Griswold, supra, is not an isolated decision confined to its

facts, but is one in a continuing line of decisions involving vari-

ous aspects of personal privacy and family autonomy.’®

When the decisions are examined, they plainly support a

“fundamental . . . right to be free, except in very limited circum-

stances, from unwanted governmental intrusions into one’s

privacy.” Stanley v. Georgia, 394 U.S. 557, 564 (1969). In-

deed, Stanley, supra, is of special importance, for there a ma-

jority of the Court embraced with approval the very significant

language from Mr. Justice Brandeis’ dissent in Olmstead, et

al. v. United States, 277 U.S. 438 (1928).

“The makers of our Constitution undertook to secure con-

ditions favorable to the pursuit of happiness. They recog-

nized the significance of man’s spiritual nature, of his feel-

ings and of his intellect. They knew that only a part of

the pain, pleasure and satisfactions of life are to be found

in material things. They sought to protect Americans in

their beliefs, their thoughts, their emotions and their sensa-

tions. They conferred, as against the Government, the

right to be let alone—the most comprehensive of rights

and the right most valued by civilized men.”

15 Commentary on the Griswold case has been extensive. Particu-

larly noteworthy materials include: Kelly, Clio and the Court: An

Illicit Love Affair, 1965 SUP. CT. REV. 119; Gross, The Concept of

Privacy, 42 N.Y.U.L. REV. 34 (1967); Pilpel, Birth Control and a

New Birth of Freedom, 27 OHIO ST. L.J. 679 (1966); Franklin, The

Ninth Amendment, etc., 40 TUL. L. REV. 487 (1966); Beaney,

The Griswold Case and the Expanding Right to Privacy, 1966 WIS.

L. REV. 979; Symposium—Comments on the Griswold Case, 64

MICH. L. REV. 197 (1965); Note, The Uncertain Renaissance of

the Ninth Amendment, 33 U. CHi. L. REV. 814 (1966); Note, 60

Nw. U.L. REV. 813 (1966); Note, The Supreme Court—1964

Term, 719 HARV. L. REV. 56, 162-65 (1965).

_—

The right of sexual privacy has been extended into the areas

of contraception for both married’® and single'’ persons, abor-

tion,’* acts with non-spousal partners,’® acts of oral-sexual ex-

pression between heterosexuals*® and the right to possess pri-

vately obscene material.?!

The singular issue in this cause is the constitutional challenge

to the statutory prohibition defining as criminal,

“ ‘Sexual conduct’ which occurs where there is:

or otherwise, of the anus or genitals of one person by an-

other.

“4. ‘Something of Value’ means any money or property,

or any token, object or article exchangeable for money or

property.” (St. Louis Co. Ord. No. 713.030).

The challenged section, if strictly construed, gives no con-

sideration to the individual’s particular desires, needs or cir-

cumstances. It impinges severely upon the individual’s dignity.

It is a first order invasion of privacy.

{t must be emphasized that the opinion of the Missouri Court

of Appeals, St. Louis District, rejected petitioners’ arguments

16 Griswold, et al. v. Connecticut, 381 U.S. 479 (1965).

17 Eisenstadt, etc. v. Baird, 405 U.S. 438 (1972).

18 Roe, et al. v. Wade, etc., 410 U.S. 113 (1973); Doe, et al. v.

Bolton, etc., et al., 410 U.S. 179 (1973); Planned Parenthood of

rere Missouri, etc., et al. v. Danforth, etc., et al... — U.S. —

( ).

19 Fadgen v. Lenkner, — Pa. — (1976), 365 A.2d 147; Wyman

Vv. Wallace, 15 Wash.App. 395 (1976), 549 P.2d 71.

ad Lovisi, et al. v. Slayton, etc., et al., 539 F.2d 349 (4th Cir.

21 Stanley v. Georgia, 394 U.S. 557 (1969).

relating to privacy because of their commercial aspect. That

Court’s reliance upon Brown, et al. v. Haner, et al., 410 F.Supp.

399 (W.D.Va. 1976), for the proposition that rights of pri-

vacy lose their constitutional protection when asserted in a

commercial context is unwarranted. Such dicta by the District

Court in Brown, sup a, is without legal support and contrary

to a host of decisions by this Honorable Court.?2

The opinion of the Missouri Court of Appeals, St. Louis

District, cited Roe et al. v. Wade, etc., 410 U.S. 113 (1973),

in recognition of the right of privacy but ignored the fact that

the same rights of privacy in the abortion context have been

recognized in the commercial sphere both as to abortion pro-

viders,** and as to abortion advertisers.** Similarly, this Hon-

orable Court has recognized the rights of privacy relating to

contraception as having the full panoply of constitutional pro-

tections although asserted in the commercial context by vendors

of the products.?°

It is clear that the fundamental right of sexual privacy ex-

tends to sexual acts between heterosexuals performed in private.

A recent line of appellate cases confirms these principles and

discards the anachronistic and historical basis for regulating

such conduct. This trend has been mandated by a line of de-

cisions by the United States Supreme Court, set forth, supra.

While no reported cases exist reviewing statutes attempting

merely to prohibit heterosexual non-sodomitical touching (such

22 First National Bank of Boston, et al. v. Bellotti, etc., et al., —

U.S. —, 46 L.W. 4371 (April 26, 1978); Bates, et al. v. State Bar of

Arizona, 433 U.S. 350 (1977); Linmark Associates, Inc., et al. v.

Township of Willingboro, et al., 431 U.S. 85 (1977); Virginia State

Board of Pharmacy, et al. v. Virginia Citizens Consumer Council,

Inc., et al., 425 U.S. 748 (1976).

23 Singleton, etc. v. Wulff, et al., 428 U.S. 106 (1976).

24 Bigelow v. Commonwealth of Virginia, 421 U.S. 809 (1975).

25 Carey, etc., et al. v. Population Services International, et al.,

431 U.S. 678 (1977).

0 Re re 2

OX mee ee

— pa

as regulated here), a wealth of cases voiding regulation of oral-

genital or anal-genital contact are available for guidance. Man-

ifestly, the touching conduct regulated here is significantly less

offensive and substantially less capable of appropriate regula-

tion through the exercise of police power, than the sodomitical

conduct reviewed by other courts. While it might reasonably be

suggested that acts of sodomy are offensive to the community-

at-large, it can hardly be contended that the same is true of

mere touching, which is presupposed by any act of sexual in-

tercourse.

This is confirmed by the existence of a state-wide regulation

of sodomitical acts, consisting of “the detestable and abominable

crime against nature, committed with mankind or with beast,

with the sexual organs or with the mouth,” by a felony statute

(R.S.Mo. § 563.230) and the total absence of other sexual

touching regulation by the state. Correspondingly, the consti-

tutional standards by which prohibitions on sexual touching

(other than acts of sodomy) are to be adjudged should be more

strictly construed than the same standards when applied to acts

of sodomy.

As most recently stated by the Supreme Court of Iowa, in

voiding as unconstitutional the state’s sodomy statute,

“

. . Section 705.1 in its present form is unconstitutional

as an invasion of fundamental rights, such as the personal

right of privacy, to the extent it attempts to regulate

through use of criminal penalty consensual sodomitical

practices performed in private by adult persons of the

opposite sex.” State of lowa v. Pilcher, 242 N.W.2d 348,

359 (Iowa 1976).

Similarly, other state appellate courts in Massachusetts, New

Jersey and New York have, in recent years, reached identical

conclusions as to their respective sodomy statutes.

—

«|. a mew factor has appeared with the articulation of

the constitutional right of an individual to be free from

government regulation of certain sex-related activities.

“In light of these changes and in light of our own aware-

ness that community values on the subject of permissible

sexual conduct no longer are as monolithic as the Jaquith

case suggested they were in 1954, we conclude that § 35

must be construed to be inapplicable to private, consensual

conduct of adults.” Commonwealth v. Balthazar, 366

Mass. —, — (1974), 318 N.E.2d 478, 480-481.

“We agree and now hold that our statute does not include

within its prohibition the conduct of married couples.”

State of New Jersey v. Lair, 62 N.J. 388, 396 (1973), 301

A.2d 748, 753.

Two New York decisions*® have struck down the state’s

sodomy law on equal protection grounds for discriminating be-

tween married and unmarried persons. Both decisions clearly

indicate the unconstitutionality of statutes regulating heterosexual

conduct between consenting adults.

In addition, courts in Pennsylvania*? and Washington?*® have

recently struck down causes of action regulating sexual inter-

course outside of marriage, through alienation of affection and

criminal conversation claims, As observed earlier, sexual inter-

course, per se, presupposes the touching of another’s genitals

in the very manner prohibited by the legislation, herein chal-

lenged.

26 The People of the State of New York v. Johnson, 77 Misc.2d

889, 891 (1974), 355 N.Y.S.2d 266, 267-268; The People of the

State of New York v. Rice, et al., 80 Misc.2d 511, 515-517 (1975),

363 N.Y.S.2d 484, 487-488.

27 Eadgen v. Lenkner, — Pa. — (1976), 365 A.2d 147.

28 Wyman v. Wallace, 15 Wash.App. 395 (1976), 549 P.2d 71.

—_—

The federal courts have reached identical conclusions. In

Cotner v. Henry, etc., 394 F.2d 873 (7th Cir. 1968), cert.

denied, 393 U.S. 847 (1968), the Seventh Circuit interpreting

the Indiana sodomy statute held that,

“. . . Indiana courts could not interpret the statute con-

stitutionally as making private consensual physical rela-

tions between married persons a crime absent a clear

showing that the state had an interest in preventing such

relations, which outweighed the constitutional right to

marital privacy.” 394 F.2d at 875.

In Buchanan, et al. v. Batchelor, etc., et al., 308 F.Supp.

729 (N.D.Tex. 1970), vacated and remanded on other grounds,

401 U.S. 989 (1971), an unanimous three-judge federal panel

voided the state’s sodomy statute and held that,

“Sodomy is not an act which has the approval of the

majority of the people. In fact such conduct is probably

offensive to the vast majority, but such opinion is not

sufficient reason for the State to encroach upon the lib-

erty of married persons in their private conduct. Absent

some demonstrable necessity, matters of (good or bad)

taste are to be protected from regulation.” 308 F.Supp.

at 733.

In Lovisi, et al. v. Slayton, etc., et al., 363 F.Supp. 620

(E.D.Va. 1973), affirmed, 539 F.2d 349 (4th Cir. 1976), the

federal court, although upholding the state court conviction

of the defendant because the act charged had been conducted

publicly and not privately, observed that,

“The Court concludes that the rationale expressed in

Eisenstadt extends to protect the manner of sexual rela-

tions between unmarried persons. It is not marriage vows

which makes intimate and highly personal the sexual be-

havior of human beings. It is, instead, the nature of

a es

sexuality itself or something intensely private to the in-

dividual that calls forth constitutional protection. While

the condition of marriage would doubtless make more

difficult an attempt by government to justify an intrusion

upon sexual behavior, this condition is not a prerequisite

to the operation of the right of privacy.” 363 F.Supp. at

625.

Lastly, in The United States v. Brewer, 363 F.Supp. 606,

(M.D.Pa. 1973), affirmed, 491 F.2d 751 (3rd Cir. 1973), the

federal court, while upholding the prohibition against sodomy

within state prisons, noted,

“While there has been no Supreme Court decision on

the precise issue of the constitutional validity of statutes

aimed at preventing ‘deviant sexual conduct,’ the appar-

ent trend of recent decisions would indicate that such a

right among or between consenting adults does exist.”

363 F.Supp. at 607.

The applicability of the foregoing discussion of sexual pri-

vacy in the context of sodomitical acts approaches argumen-

tive overkill to the issue at hand. Sodomy is always considered

as deviant, undesired or disapproved sexual behavior. The is-

sue here is merely touching, not sodomy. It must be borne

in mind that petitioners do not challenge in this cause § 713.

030(3)(b) prohibiting “any sexual act involving the genitals

of one person and the mouth, tongue or anus of another per-

son”. Petitioners challenge only § 713.030(3)(c) prohibiting

“any touching, manual or otherwise, of the anus or genitals

of one person by another”. It is extremely difficult to conceive

of any consequential sexual act, whether terminating in inter-

course or not, which does not imply or involve the touching

of another’s genitals. The prohibition includes all sexual fore-

play or “petting”, regardless of whether it culminated in sexual

intercourse.

on ee

Any doubt as to the correctness of prior courts’ holdings

in this area is dissipated by the extreme measure of regula-

tion imposed in this cause, when compared to the attempts

to regulate specific, identifiable acts of sodomy in analogous

cases.

A second and collateral, although independent element of

privacy, is invaded by the challenged section. The privacy of

the home is threatened here. The scope of the section herein

challenged easily extends to the privacy of the home and the

ordinance contains no self-limiting features as to where, much

less as to whom, why and when, discussed, infra.

The inviolate privacy of the home has been recognized by

the Supreme Court in relation to the possession of obscene ma-

terial,2® and by the Alaska Supreme Court in relation to mari-

juana use.*° As so aptly noted by Justice Harlan, dissenting in

Poe, et al. v. Ullman, etc., 357 U.S. 497, 548 (1961);

“This enactment involves what, by common understanding

throughout the English-speaking world, must be granted

to be a most fundamental aspect of ‘liberty’, the privacy

of the home in its most basic sense, and it is this which

' requires that the statute be subjected to ‘strict scrutiny’.”

A majority of the United States Supreme Court agreed in

United States v. Orito, 413 U.S. 139, 142 (1973), when it held

that, “(t)he Constitution extends special safeguards to the privacy

of the home, just as it protects other special privacy rights such

as those of . . . procreation. .. .”

The protection of various rights in the marital family context

has firm origins in decisions dating back over fifty years. A first

and recent example, Loving, et ux. v. Virginia, 388 U.S. 1, 12

29 Stanley v. Georgia, 394 U.S. 557 (1969).

30 Ravin v. State of Alaska, 537 P.2d 494 (Alaska 1975).

_—.

(1967), specifically held that the due process clause of the Four-

teenth Amendment protects “[t]he freedom to marry . . . as one

of the vital personal rights essential to the orderly pursuit of hap-

piness by free men.” Loving, supra, stands for the proposition

that “the right to marry” is protected by the due process clause,

although not specifically mentioned in the Bill of Rights.

Petitioners contends that Loving, supra, lends further support to

the conclusion that other important interests associated with

sexual conduct are protected from arbitrary, governmental in-

trusion.

Associated with the right to marry is the right to rear children,

if one chooses, without arbitrary, state interference. An unani-

mous Supreme Court has held that “the right to have offspring”

is a constitutionally protected “human right” which cannot be

taken away by a discriminatory statute requiring the steriliza-

tion of some persons convicted of crimes, but not of others

similarly situated. Skinner v. Oklahoma ex rei. Williamson, etc.,

316 U.S. 535, 536 (1942). Again, the right to have off-

spring is not specified in the Bill of Rights. However, the

Supreme Court in Skinner, supra, composed of Justices Douglas

(author of the opinion), Black, Reed, Frankfurter, Murphy,

Byrnes, Roberts, Jackson, and Chief Justice Stone (the latter

two wrote concurring opinions), had no difficulty holding that

this right was protected by the Constitution. Moreover, these

members of the Supreme Court had all disassociated themselves

from the economic, substantive, due process school of thought

found in the much criticized and overruled opinion of Lochner

v. New York, 198 U.S. 45 (1905).

Further cases upholding rights associated with the family

include Pierce, etc., et al. v. Society of Sisters, 268 U.S. 510

(1925), and Meyer v. State of Nebraska, 262 U.S. 390 (1923),

both of which were subsequently reaffirmed in Prince v. Massa-

chusetts, 321 U.S. 158, 166 (1944), and Griswold, et al. v.

Connecticut, 381 U.S. 479, 483 (1965). An unanimous Court

— pan

in Pierce, supra, recognized a right to send one’s children to

private school. This right was derived from “the liberty of

parents and guardians to direct the upbringing and education of

children under their control.” 268 U.S. at 534-535. The Su-

preme Court in Pierce, supra, moreover, included Justices who

rejected the economic, due process formula of Lochner, supra,

namely Justices Brandeis, Holmes, and Stone.

Not dissimilar to Pierce, supra, was Meyer, supra, a 7-2

decision invalidating a state statute which prohibited the teach-

ing of German to pupils below the eighth grade. The Supreme

Court in Meyer, supra, found that the due process clause in-

cluded “the right . . . to marry, establish a home and bring up

children.” 262 U.S. at 399. Again, the decision is not objec-

tionable as a manifestation of economic due process, because it

was joined by Justice Brandeis, among others, who rejected the

Lochner, supra, scheme. The dissents, moreover, by Justices

Holmes and Sutherland, rested on the assumption that the state

had a substantial interest in assuring that foreign-born students

and students of alien parentage had considerable training in

the English language, before being exposed to other lan-

guages.*! Not to be ignored are the companion abortion cases

decided in 1973, dealing with the fundamental right of privacy

as to the physical control of a woman’s body in the termination

of pregnancy. Roe, supra, 410 U.S. 113 (1973) and Doe, et al.

v. Bolton, etc., et al., 410 U.S. 179 (1973).

Taken together, the Griswold, Stanley, Loving, Skinner,

Pierce, Meyer, Roe and Doe decisions, supra, all illustrate that

31 See: Poe, et al. v. Ullman, etc., 367 U.S. 497, 551-552 (1961)

(Harlan, J., dissenting),

“[T]jhe integrity of . [family] life is something so funda-

mental that it bas been found to draw to its protection the prin-

ciples of more than one explicitly granted Constitutional right

. . . Of this whole ‘private realm of family life’ it is difficult

to imagine what is more private or more intimate than a hus-

band and wife’s marital relations.”

the Constitution protects certain privacy, sexual and family in-

terests from government intrusion, unless a substantial and com-

pelling justification exists and is proven for such legislation.

Such is and was not the case at bar.

Ill

Overbreadth

When rights of sexual privacy are statutorily invaded in a

manner that may be justified by a compelling state interest, it is,

nevertheless, required that such “legislative enactments must

be narrowly drawn to express only the legitimate state interests

at stake.” Roe, et al. v. Wade, etc., 410 U.S. 113, 155 (1973).32

Here, the challenged section sweeps unnecessarily broad.

Facially, it prohibits all touching of another’s genitals or anus

“in return for something of value.” Within its scope included

and subject to criminal sanctions are general medical practice

and the recognized specialties of obstetrics, gynecology, urology

and proctology. It unduly restricts the services of nurses and

hospital orderlies in the handling of patients. Within its ex-

pansive scope is included barter arrangements between spouses

in return for sexual participation. It literally prohibits the

changing of a diaper for or the bathing of an infant by a com-

pensated babysitter. It is not restricted by touching for sexual

gratification nor to touching for sexual climax.

The gross and inexcusable overbreadth of this section and

its total failure to eliminate the misperceived evil intended are

direct results of the constitutional impermissibility of what was

intended. Respondent has made illegal, for an endless variety

of legitimate, health and normal sexual purposes, the accepted

2 See: California Bankers Assn. v. Schultz, etc., et al., 416 US.

21, 85-86 (1974), Douglas, J., dissenting.

— pone

practice of touching the genitals or anus of another on a basis

less than purely gratis.

The statute fails to exclude named persons from its language

and, in fact, permits no exclusions of any kind from the man-

date of its specific terms. Any attempt to exclude married per-

sons would not save this section from its glaring unconstitu-

tionality, for as the United States Supreme Court has noted,

“If the right of privacy means anything, it is the right of

the individual, married or single, to be free from unwar-

ranted governmental intrusion into matters so fundamen-

tally affecting a person . . .” Eisenstadt, etc. v. Baird,

405 U.S. 438, 453 (1972).

This distinction has repeatedly been recognized by cases

striking down legislation which attempted to regulate sexual

conduct in an overbroad fashion.**

While it may well be that the intent behind the adoption of

this section was to regulate massage parlors (a fact not in evi-

dence before the Trial Court); it is the very obtuseness of its

drafting in an effort to avoid revealing its real intent that has

produced its fatal constitutional flaw. Inclusion into the sec-

tion of some reference to massage or to its purpose would have

perhaps resulted in a legislative enactment “narrowly drawn to

express only the legitimate state interests at stake.” Roe, supra,

410 U.S. at 155. This, respondent choose not to do, and can

not accomplish the same here by the power of suggestion.

Further the challenged section makes an erroneous irre-

buttable presumption that all “touching, manual or otherwise,

33 See: State of lowa v. Pilcher, 242 N.W. 2d 348, 358 (Iowa

1976); Buchanan, et al. v. Batchelor, etc., et al., 308 F.Supp. 729,

735 (N.D. Tex. 1970), vacated and remanded on other grounds, 401

U.S. 989 (1971); The People of the State of New York v. Johnson,

77 Misc.2d 889, 891 (1974), 355 N.Y.S.2d 266, 267; and The

People of the State of New York v. Rice, et al., 80 Misc.2d 511,

515 (1975), 363 N.Y.S.2d 484, 489.

— on

of the anus or genitals of one person by another”, in return for

something of value”, is against public morality and in need of

prohibition. The absurdity of the presumption is evidenced by the

examples in medicine, the family, any sexual relations, efc., set

forth above, as well as numerous other common life experiences.

The incorporation by the challenged section of an ‘irrebutt-

able presumption,” which is, in fact, refutable and whose un-

derlying principle is baseless and unwarranted, has been fre-

quently prohibited as a violation of due process.

“The establishment of prompt efficacious procedures to

achieve legitimate state ends is a proper state interest

worthy of cognizance in constitutional adjudication. But

the Constitution recognizes higher values than speed and

efficiency. Indeed, one might fairly say of the Bill of

Rights in general, and the Due Process Clause in particu-

lar, that they were designed to protect the fragile values

of a vulnerable citizenry from the overbearing concern for

efficiency and efficacy that may characterize praiseworthy

government officials no less, and perhaps more, than me-

diocre ones.

“Procedure by presumption is always cheaper and easier

than individualized determination. But when, as here, the

procedure forecloses the determinative issues of compe-

tence and care, when it explicitly disdains present realities

in deference to past formalities, it needlessly risks running

roughshod over the important interests... . It therefore

cannot stand.”*#

The prohibition against the incorporation into statutes of un-

warranted presumptions has been reaffirmed in prior, related

cases dealing with sexual (gender) preferen: :s,** illegitimacy

34 Stanley v. Illinois, 405 U.S. 645, 656-657 (1972).

: ” Reed v. Reed, etc., 404 U.S. 71, 75-76 (1971); Frontiero,

et vir v. Richardson, etc., et al., 411 U.S. 677, 688-689 (1973); and

Weinberger, etc. v. Wiesenfeld, 420 U.S. 636, 642-643 (1975).

of children*® and pregnancy.** When governmental action

“rests on an irrebuttable presumption often contrary to fact. . .

(i)t therefore lacks critical ingredients of due process.”** It has

been suggested that such presumptions may be a parameter

and/or surrogate of equal protection, as well as of due process.*”

The Missouri Court of Appeals, St. Louis District, erred in

finding the challenged ordinance to be neither vague nor over-

broad as applied to petitioners. That Court held that “[m]as-

sage activities involving sexual touching would be prohibited

by the ordinance.”*?

Clearly, that interpretation of the scope of the ordinance is

correct. However, it must be emphasized that the ordinance

does not limit itself to a prohibition of touching for sexual

purposes. On the contrary, the ordinance prohibits “any touch-

ing, manual or otherwise.”*"

The record in this cause, such as it is, does not reveal that

petitioners touch their clients for sexual purposes and yet that

36 Stanley, id., supra, at note 30; Jimenez, et al. v. Weinberger,

etc., 417 U.S. 628, 631-634 (1974); Gomez v. Perez, 409 U.S. 535,

538 (1973); and New Jersey Welfare Rights Organization, et al. v.

Cahill, etc., et al., 411 U.S. 619, 620-621 (1973).

37 Cleveland Board of Education, et al. v. LaFleur, et al., 414 U.S.

632, 643-648 (1974); and Andrews, et al. v. The Drew Municipal

Separate School District, et al., 507 F.2d 611, 615-616 (Sth Cir.

1975), cert. denied, 425 U.S. 559 (1976).

38 United States Department of Agriculture, et al. v. Murry, et al.,

413 U.S. 508, 514 (1973).

39 Note, The Conclusive Presumption Doctrine: Equal Process or

Due Protection?, 72 MICH. L. REV. 800 (1974); and Case Com-

ment, Constitutional Law: Court Substitutes Conclusive Presumption

—" for Equal Protection Analysis, 58 MINN. L. REV. 965

(1974).

40 See the Court’s Opinion in Appendix B.

41 See subsection (c) of section 3 in Appendix A.

—_—

is the assumption upon which the Missouri Court of Appeals,

St. Louis District, bases its opinion. The real overbreadth chal-

lenge to the ordinance at issue is not directed to its obviously

impermissible applications to “the normal functions of obstetri-

cians, gynecologists, urologists, proctologists, nurses and baby-

sitters,"** but to its blatant overbreadth as applied to these

petitioners.

The Missouri Court of Appeals, St. Louis District, in an effort

to uphold the constitutionality of the challenged ordinance, chose

to overlook the absence of any evidence or finding that petition-

ers fall within the ambit of its perhaps intended, although

clearly not expressed, attempt to criminalize sexual massage.

That Court did not give effect to the challenged ordinance as

it was written, but rather acted as a superlegislature and added

an additional element of sexuality to the ordinance, thereby re-

writing it.

Clearly, petitioners have standing to raise a challenge to the

overbreadth of the ordinance. As previously stated, vendors of

services may raise the privacy, equal protection and other con-

stitutional rights of third parties, outside the First Amendment

context.*%

*2 See the Court’s Opinion in Appendix B.

43 Singleton, supra; Craig, et al. v. Boren, etc., et al., 429 US.

190 (1976); and, Carey, supra.

CONCLUSION

For these reasons, it is respectfully submitted that this peti-

tion for a writ of certiorari should be granted.

DONALD L. WOLFF

PAUL J. PASSANANTE

WOLFF, FRANKEL, McCONNELL

& PASSANANTE

8019 Forsyth Boulevard

Clayton, Missouri 63105

(314) 725-8019

Attorneys for Petitioners

pi a ta

APPENDIX

APPENDIX A

Bill No. 178, 1975

Ordinance No. 7546, 1975

Introduced by Councilman Breihan

AN ORDINANCE

AMENDING TITLE VII, CHAPTER 713, SLCRO

1964, AS AMENDED, THE VICE AND MO-

RALITY CODE, BY REPEALING THEREFROM

SECTIONS 713.030, 713.040, 713.050 AND 713.-

080, AND ENACTING AND ADDING THERETO

THREE NEW SECTIONS TO BE NUMBERED

713.030, 713.040 AND 713.080, RELATING TO

THE REGULATION OF PROSTITUTION.

BE IT ORDAINED BY THE COUNTY COUNCIL OF ST.

LOUIS COUNTY, MISSOURI, AS FOLLOWS:

SECTION 1. Sections 713.030, 713.040, 713.050 and 713.-

080 SLCRO 1964, as amended, are hereby repealed.

SECTION 2. Title VII, Chapter 713, SLCRO 1964, as

amended, the Vice and Morality Code, is hereby amended by

enacting and adding thereto three new sections, to be numbered

713.030, 713.040 and 713.080, relating to the regulation of

Prostitution, which new sections shall read as follows:

713.030 Definitions 1. The term “person” as used in this

Chapter shall mean any natural person, firm, partnership,

co-partnership, association, corporation or organization of

any kind.

2. A person commits “prostitution” if he or she engages or

offers or agrees to engage in sexual conduct in return for

something of value to be received by the person or a third

person.

ay Fy

3. “Sexual Conduct” occurs when there is:

(a) “Sexual Intercourse” which occurs when there is

any penetration of the female sex organ by the male

sex organ;

(b) “Deviate Sexual Intercourse” which means any

sexual act involving the genitals of one person and

the mouth, tongue or anus of another person;

manual or otherwise, of the anus or genitals of one

person by another.

4. “Something of Value” means any money or property,

or any token, object or article exchangeable for money or

property.

5. “Promoting prostitution” occurs when a person know-

ingly promotes, solicits, compels, or encourages a person

to engage in prostitution or patronize prostitution.

6. “Profiting from Prostitution” occurs when a person, act-

ing other than as a prostitute receiving compensation for

personally rendered prostitution services, knowingly ac-

cepts or receives money or other property pursuant to an

agreement or understanding with any person whereby he

or she participates or is to participate in the proceeds of

prostitution activity.

713.040 Prostitution, Promoting Prostitution, Profiting

from Prostitution—Prohibited.—A person shall not en-

gage in prostitution, promoting prostitution, or profiting

from prostitution.

713.080 Penalties—Any person violating any of the pro-

visions of this Chapter shall upon conviction be punished

by a fine not exceeding One Thousand Dollars ($1,000.00)

or by imprisonment in the County Jail for not exceeding

one (1) year, or both such fine and imprisonment.

—

APPENDIX B

In the Missouri Court of Appeals

St. Louis District

Division Two

} No. 38558

CAESAR’S HEALTH CLUB, et al., | Appeal from the Cir-

Plaintiffs-Appellants, cuit Court St. Louis

VS. . County

Hon. George W.

ST. LOUIS COUNTY, MISSOURI, Cloyd, Judge

Defendant-Respondent. OPINION FILED

April 11, 1978

Respondent, the County of St. Louis, enacted an ordinance

prohibiting prostitution. Appellants, twelve corporations or

proprietorships, each a so-called “massage parlor” operating in

St. Louis County, filed a petition to enjoin enforcement of the

ordinance and to have it declared unconstitutional. The Cir-

cuit Court of St. Louis County declared it “to be constitutional;

lawful and valid”, denied a permanent injunction, but stayed its

enforcement pending the outcome of this appeal. The ordi-

nance, No. 7546, which was to become effective on August 20,

1975, provides:

“SECTION 2. Title VII, Chapter 713, SLCRO 1964, as

amended, the Vice and Morality Code, is hereby amended

by enacting and adding thereto three new sections, to be

numbered 713.030, 713.040 and 713.080, relating to the

regulation of prostitution, which new sections shall read

as follows:

713.030 Definitions 1. The term “person” as used in

this Chapter shall mean any natural person, firm, part-

— -

nership, co-partnership, association, corporation or

organization of any kind.

2. A person commits “prostitution” if he or she en-

gages or offers or agrees to engage in sexual conduct

in return for something of value to be received by the

person or a third person.

3. “Sexual Conduct” occurs when there is:

(a) “Sexual Intercourse” which occurs when

there is any penetration of the female sex organ

by the male sex organ;

(b) “Deviate Sexual Intercourse” which means

any sexual act involving the genitals of one per-

son and the mouth, tongue or anus of another

person;

manual or otherwise, of the anus or genitals of

one person by another.

4. “Something of Value” means any money or prop-

erty, or any token, object or article exchangeable for

money or property.

5. “Promoting prostitution” occurs when a person

knowingly promotes, solicits, compels, or encourages

a person to engage in prostitution or patronize prosti-

tution.

6. “Profiting from Prostitution” occurs when a person

acting other than as a prostitute receiving compensa-

tion for personally rendered prostitution services,

knowingly accepts or receives money or other prop-

erty pursuant to an agreement or understanding with

any person whereby he or she participates or is to

participate in the proceeds of prostitution activity.

ST... ee a ee

ae ee

713.040 Prostitution, Promoting Prostitution, Profit-

ing from Prostitution—Prohibited.—A person shall

not engage in prostitution, promoting prostitution, or

profiting from prostitution.

713.080 Penalties—Any person violating any of the

provisions of this Chapter shall upon conviction be

punished by a fine not exceeding One Thousand Dol-

lars ($1,000.00) or by imprisonment in the County

Jail for not exceeding one (1) year, or by both such

fine and imprisonment.”

In their petition, appellants admit they “engage in the prac-

tice of giving massages at the request of the client, which do

result in consensual touching of a person’s anus or genitals”,

and which conduct specifically would be prohibited under §3(c)

of the ordinance. Massage activities involving sexual touching

would be prohibited by the ordinance, and violation of the

ordinance could result in civil prosecution of appellants and

their employees. Because this case requires application of es-

tablished constitutional principles and involves no real issue

requiring construction of the United States and Missouri Con-

stitutions, we have jurisdiction. Art. V, §3, Mo. Const. 1945,

as amended, 1970. St. Louis County Transit Co. v. Division

of Employment Security, 456 S.W.2d 334 (Mo. 1970); Forbis

v. Associated Wholesale Grocers, Inc., 513 S.W.2d 760 (Mo.

App. 1974).

Appellants argue the trial court erred in declaring the ordi-

nance constitutional because respondent failed to meet its bur-

den of demonstrating a compelling state interest as justification

for the ordinance.! Appellants correctly cite Roe v. Wade, 410

1 Appellants argue in their brief that the trial court ruled pre-

maturely and thereby precluded presentation of evidence of a “com-

— state interest”. Because the compelling state interest test is

ere inapplicable, evidence of this nature was not required.

A reading of the record makes it clear the parties submitted the

case to the court on the pleadings and memoranda.

— * pom

U.S. 113 (1973), for the proposition that “[w]here certain

‘fundamental rights’ are involved, . . . [a] regulation limiting

these rights may be justified only by a ‘compelling state inter-

est’, . . .” Id. at 155. Before we invoke this rule, however,

it must appear that the challenged statute or ordinance in-

fringes some fundamental right; and while the right of privacy

has been recognized as just such a fundamental righi, we are

not convinced in this case that appellant has asserted a pro-

tectable privacy interest. The “compelling state interest” test is

therefore inapplicable here.

Rather, we must judge the validity of the challenged ordi-

nance according to the standard applicable to the exercise of

police power, and the test of the validity of an exercise of po-

lice power is reasonableness. McDonnell Aircraft Corporation

v. City of Berkeley, 367 S.W.2d 498 (Mo. 1963). In general,

the test of reasonableness is met in any case in which the ob-

ject of the police measure is a proper one, as we conclude here,

and the means adopted to accomplish that object are appropri-

ate. See Lawton v. Steele, 152 U.S. 133 (1894), as cited in

Goldblatt v. Hempstead, 369 U.S. 590, 594-95 (1962).

The exercise of police power is presumed to be constitution-

ally valid; the presumption of reasonableness is with the State.

Bibb v. Navajo Freight Lines, 359 U.S. 520 (1959); Salsburg

v. Maryland, 346 U.S. 545 (1954). The exercise of police

power will be upheld if any state of facts either known or which

could be reasonably assumed affords support for it. U.S. v.

Caroline Products Co., 304 U.S. 144 (1938). The party chal-

lenging certain legislation has the burden on the question of its

reasonableness. Goldblatt v. Hempstead, supra.

The general law in Missouri was stated recently in Flower

Valley Shopping Center v. St. Louis County, 528 S.W.2d 749,

753-54 (Mo. banc 1975), citing Bellerive Inv. Co. v. Kansas

City, 321 Mo. 969, 981, 13 S.W.2d 628, 634 (1929):

a rereerme o>

a Se

“It has been definitely and clearly established and settled,

by the decisions of this court and of the federal Supreme

Court, that a statute or a municipal ordinance which is

fairly referable to the police power of the state or munici-

pality, and which discloses upon its face, or which may

be shown aliunde, to have been enacted for the protec-

tion, and in furtherance, of the peace, comfort, safety,

health, morality, and general welfare of the inhabitants of

the state or municipality, does not contravene or infringe

the several sections of the state and federal Constitutions

invoked by the appellants herein, and cannot be held in-

valid as wrongfully depriving the appellants of any right

or privilege guaranteed by the Constitution, state or fed-

eral; the reason and basis underlying such decisions being

that the personal and property rights of the individual are

subservient and subordinate to the general welfare of so-

ciety, and of the community at large, and that a statute or

ordinance which is fairly referable to the police power has

for its object the ‘greatest good of the greatest number.’ ”

An ordinance prohibiting prostitution is clearly referable to

the police power of local government. We believe the ordinance

here in question discloses on its face a purpose to protect and

further the health, morality and general welfare of the citizenry,

and that it furthers its purpose in a reasonable way. We now

consider appellants’ specific constitutional arguments.

They assert that enforcement of the ordinance would in-

fringe upon the constitutionally guaranteed right of privacy

insofar as it would proscribe private sexual conduct between

consenting adults. Clearly, no privacy interests of the individual

corporations and proprietorships is being asserted here. Rather,

it is the right of its employees and customers to engage in certain

sexual activities which appellants seek to have protected. Relief

is requested not on the basis of some unconstitutionally incurred

loss or injury appellants themselves might suffer, but rather on

— * aon

the basis of perceived rights of third persons who are not party

to this litigation. Assuming in this instance that appellants have

vicarious standing” to assert the rights of its masseuses and cus-

tomers, we nevertheless find no merit in appellants’ claim.

The Supreme Court has recognized that a right of personal

privacy, or a guarantee of certain areas or zones of privacy, does

exist under the Constitution. “. . . [The] decisions make it clear

that only personal rights that can be deemed ‘fundamental’ or

‘implicit’ in the concept of ordered liberty, ‘. . . are included

in this guarantee of personal privacy.” Roe v. Wade, supra at

152. “This privacy right encompasses and protects the personal

intimacies of the home, the family, marriage, motherhood, pro-

creation, and child rearing.” Paris Adult Theatre I v. Slaton,

413 US. 49, 65-66 (1973) (citations omitted). Appellants urge

that implicit in the concept of ordered liberty is the fundamental

privacy right of its employees and patrons to participate in sexual

massage activities in the seclusion afforded by appellants’ mas-

sage establishments. For support, they look principally to Gris-

wold v. Connecticut, 381 U.S. 479 (1965) and Stanley v.

Georgia, 394 U.S. 557 (1969). Reliance on these cases is un-

availing, however. Griswold and Stanley, and other decisions

cited by appellants,* in no way intimate that there exists an

absolute and unqualified right of privacy, sexual or otherwise.

The conclusion which can more readily be drawn from the cases

is that the right to privacy is not without limit as to places and

relationships. United States v. McKean, 338 A.2d 439 (D.C.

App. 1975).

* The problem of standing, as it has arisen principally in the

federal courts, ordinarily requires consideration of two distinct

questions: first, whether the litigant can demonstrate “a sufficiently

concrete interest” in the outcome of the litigation and to render the

Suit a “case or controversy”; and second, as a prudential matter,

whether the litigant is a proper proponent of the particular legal rights

erg he bases his suit. Singleton v. Wulff, 96 S.Ct. 2868, 2873

* In particular, Roe v. Wade, 410 U.S. 113 (1973) and Eisen-

stadt v. Baird, 405 U.S. 438 (1972).

SL RT Tk

paar ae

It is to be noted that the challenged ordinance does not pro-

hibit persons from engaging in acts of massage as such, but

from engaging in acts of massage involving sexual touching, for

hire. And whatever may be said of the potential right of con-

senting adults to engage in private sexual massage activities,

that, strictly speaking, is not the issue before us. Rather, it is

the commercialization of such activities with which we are con-

cerned, and it is this commercial aspect which we believe re-

moves them from the sphere of a protectable right of privacy.

See Brown v. Haner, 410 F.Supp. 399, 401 (W.D. Va. 1976).

Implicit in appellants’ argument is the suggestion that their

establishments constitute private places, analogous to the private

home in Stanley v. Georgia, supra, or the marital bedroom in

Griswold v. Connecticut, supra. In Paris Adult Theatre I v.

Slaton, supra, however, the Supreme Court rejected arguments

that a place of public accommodation, a theater, was protected

by the cloak of privacy. We reach the same conclusion in re-

spect to the essentially commercial establishments here. The ac-

tivities proscribed by the ordinance are carried on in places

“which cannot in contemplation of law reasonably be considered

private.” United States v. McKean, supra at 440. See also

Harris v. United States, 315 A.2d 569 (D.C.App. 1974). Such

activities therefore are not entitled to protection by a constitu-

tional right of privacy.

Appellants further contend the ordinance is unconstitution-

ally overbroad, and therefore void and unenforceable. The

ordinance states that “[a] person commits ‘prostitution’ if he

or she engages or offers or agrees to engage in sexual conduct

in return for something of value. . . .” “Sexual conduct” is

defined as “ ‘sexual contact’ which means any touching, man-

ual or otherwise, of the anus or genitals of one person by an-

other.” The ordinance contains no provision as to whom of

what it applies and makes no specific reference to massage

establishments. While admitting that the conduct on their

— A-10 —

premises falls within the proscriptions of the ordinance, ap-

pellants maintain that by defining “sexual conduct” as any

touching of the anus or genitals of one person by another, the

ordinance may be construed to proscribe the normal functions

of obstetricians, gynecologists, urologists, proctologists, nurses

and baby sitters, all of whom are compensated for services

which frequently require touching of the anal and/or genital

areas.

Assuming the ordinance might be applied in ways suggested

by appellants, we do not believe they may be heard to chal-

lenge the ordinance on grounds of overbreadth. The general

rule is that “[O]ne to whom application of a statute is consti-

tutional will not be heard to attack the statute on the ground

that impliedly it might also be taken as applying to other per-

sons or other situations in which its application might be un-

constitutional.” United States v. Raines, 362 U.S. 17, 21

(1960). Employment of the overbreadth doctrine was re-

stricted by the United States Supreme Court in Broadrick v.

Oklahoma, 413 U.S. 601 (1973); it is used “sparingly and

only as a last resort.” Jd. at 613. Our Supreme Court, in

Chamberlin v. Missouri Elections Com’n, 540 S.W.2d 876,

881 (Mo. banc 1976), has recognized a narrowing of the doc-

trine. Thus in only limited situations will courts now permit a

litigant to assert, by way of the overbreadth doctrine, argued

rights of non-litigants to whom a statute might be applied. The

one principal exception to the general rule obtains in the first

amendment area, where a statute which arguably violates rights

of free speech or expression of others may be challenged by

one to whom it may be constitutionally applied. Broadrick v.

Oklahoma, supra, at 611; United States v. Brewer, 363 F.

Supp. 606, 609 (M.D. Pa. 1973).

This case presents no issues touching on the first amend-

ment; the ordinance clearly poses no threat to the rights of

free speech and expression of doctors, nurses, baby sitters, or

<n OT a

others whose conduct might be said to fall within the literal

scope of the ordinance. Indeed, it is upon a theory of privacy

that appellants base their claim. Where, as here, certain pro-

tected conduct, and not speech, is encompassed by an other-

wise valid proscriptive statute, the overbreadth doctrine is

rarely applicable. As stated in Broadrick v. Oklahoma, supra

at 615:

“(Flacial overbreadth adjudication is an exception to our

traditional rules of practice and . . . its function, a lim-

ited one at the outset, attenuates as the otherwise unpro-

tected behavior that it forbids the State to sanction moves

from ‘pure speech’ toward conduct and that conduct—

even if expressive—falls within the scope of otherwise

valid criminal laws that reflect legitimate state interests in

maintaining comprehensive controls over harmful, consti-

tutionally unprotected conduct. . .

* * * + * * *

[W]here conduct and not merely speech is involved, . . .

the overbreadth of a statute must not only be real, but

substantial as well, judged in relation to the statut’s plainly

legitimate sweep.”

It is our view that the alleged overbreadth of the ordinance is

neither real nor substantial. Moreover, because possible in-

valid applications of the ordinance are highly speculative and

not presently before this court, we believe the ordinance should

stand “until an actual case corroborates and justifies [appel-

lants] claim of anticipated harm and unconstitutional appli-

cation.” Chamberlin v. Missouri Elections Com’n, supra.

That such a case will ever arise seems inconceivable. We

cannot bring ourselves to believe that the rights of doctors,

nurses, etc., will be, or were even intended to be, affected by

the ordinance. In judging the validity of the ordinance, we

must be guided by “robust common sense.” Common sense

suggests that while the definitional terms of the ordinance may

encompass certain activities, as suggested by appellants, the

ordinance cannot reasonably be construed to prohibit such

activities. The ordinance should not be declared overbroad on

the basis of frivolous and speculative invalid applications when

a limiting construction can reasonably be placed on it.

The judgment of the trial court is hereby affirmed.

/s/ JAMES R. REINHARD, Judge

Joseph G. Stewart, Presiding Judge, Concurs

Robert G. Dowd, Judge, Concurs

» htt —

APPENDIX C

No. 60809

In the Supreme Court of Missouri

St. Louis District No. 38558

May Session 1978

Ceasar’s Health Club, et al., Appellants,

vs. TRANSFER

St. Louis County, Missouri, Respondent.

Now at this day, on consideration of appellants’ Application

to transfer the above entitled cause from the St. Louis District

Court of Appeals, it is ordered that said application be, and

the same is hereby denied.

STATE OF MISSOURI—SCT.

I, Thomas F. Simon, Clerk of the Supreme Court of the

State of Missouri, certify that the foregoing is a full, true and

complete transcript of the judgment of said Supreme Court,

entered of record at the May Session thereof, 1978, and on

the 15th day of June 1978, in the above entitled cause.

Given under my hand and seal of said Court, at the City

of Jefferson City, this 15th day of June, 1978.

/s/ THOMAS F. SIMON, Clerk

/s/ By JANICE B. HANSON, D.C.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.