Petition — J. B. K., Inc. v. Caron

Supreme Court brief1980

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WOM SGDAK, JR., CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1979

J.B.K., INC., ET AL.,

Petitioners,

VS.

NORMAN CARON, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

JAMES R. WYRSCH

1050 Home Savings Building

1006 Grand Avenue

Kansas City, Missouri 64106

Attorney for Petitioners

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

TABLE OF CONTENTS

Opptendamns TRIO ........c.cccesssesseses.s. © SSS OEE ae 2

Jurisdiction — ............... a a sc ccastseeuasstncce 2

a _cswsiuasandaccanscescnenccee 2

The Constitutional Provisions and Statutes ................... 3

I I nr SoS csccechcneccascecocessoscaacecenccene 10

Reasons for Granting the Wit ..................c..sc.cccccsscesssssesee 15

i. ansnouncccncccccsees 15

1(a). Equal Protection Violations ............0...0....... 15

1(b). Fundamental Rights of Petitioners Were

Infringed Upon by Chapter 567, R.S.Mo. 20

Discussion of Question Presented ..................:sccscceseeeeeees 24

a ssnsccnssecsctccoccecaces 32

Appendix A—Opinion of the Court of Appeals .............. Al

Appendix B—Opinion of the District Court .......0..00........ A7

Appendix C—Motion for Rehearing Denied .................... A29

Table of Authorities

CASES

Bigelow v. Virginia, 421 U.S. 809 (1975) 2. eee 22

Buchanan v. Batcheler, 308 F.Supp. 729 (N.D. Tex.

1970), vacated and remanded on other grounds, 401

I a. sc eeasnataszeccnsccnces 23

Caesar’s Club v. St. Louis County, 565 S.W.2d 783

os sacccssacsctcsoncascocccccccnsacs 23

Cheek v. City of Charlotte, 180 S.E.2d 18 (N.C. 1968) 16

Cianciola v. Members of City Council, Knoxville, Tenn.,

376 F.Supp. 719 (E.D. Tenn. 1974) 0.0... cceeccsesceseeseee 21

City and County of Denver v. Wilson, 572 P.2d 484

Naess cisssiscccsncnccnecsnescccansscaccsencecececcees 21

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

| LAER RA AE Rae A cD eer ele ar ELE enemy ween Ae 23

Corey v. City of Dallas, 352 F.Supp. 977 (N.D. Tex.

DN Ssccsadeviaiteestacsscs coeds asec iaamsdaaietieniaauidsAaaaeagaaneniens 21, 24

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

Get Bie TI, BET CRI) ivrcsscsseccscnsevnsiincecssscasecssinnice 23

Fagden v. Linker, 365 A.2d 1947? (Pa. 1976) .............00. 22

Greene v. McElroy, 360 U.S. 474, 3 L.Ed.2d 1877 (1959) 20

Griswold v. Connecticut, 381 U.S. 479 (1965) ....00.... 22

Gooding v. Wilson, 405 U.S. 518 (1971) .......ccccceeeeeeeeees 21

Hart Health Studio v. Salt Lake County, 577 P.2d 116

Ti ge RBA ARERR RI ited Denes FR eR oeeee Pr naDL A oon 16

Hawkins v. Superior Court, 586 P.2d 916 (Cal. 1978) 26

Hogge v. Hedrick, 391 F.Supp. 91 (E.D. Va. 1975) ........ 16

In re P., 400 N.Y.Supp.2d 455 (Fam. Ct. 1977) ....16, 19, 22

Jensen v. Salt Lake, 530 P.2d 3 (Utah 1974) ~...00000200.... 21

JSK Enterprises v. Lacey, 492 P.2d 600 (Wash. 1972) 21

Lewis v. New Orleans, 415 U.S. 130 (1974) ......... 22

Lovisi v. Slayton, 539 F.2d 349 (4th Cir. 1976) ............ 22

Mason v. Claytor, 459 F.Supp. 174 (D. D.C. 1978) ........ 20

Nyberg v. City of Virginia, 495 F.2d 1342 (8th Cir.

1975), app. dism., 419 U.S. 891 (1976) 0... 20

OPT. ©. GPE, TW Te BT CITI) vecinsecsncenssccnnsthessésecinnee 32

Parham v. Hughes, 99 S.Ct. 1742 (1979) 2... 32

Paul v. Davis, 424 U.S. 693 (1976) nce cccccesceeseees 20

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

Sa SEE a 17

People of the State of New York v. Rice, 363 N.Y.S.2d

eet AEAID. 90 Rin ORONO Oe REED See EO 17

People v. Williams, 286 N.Y.S.2d 575 (1967)

Police Department of Chicago v. Mosley, 408 U.S. 92

S| FRIAR ORR RRM cerca kena Oe RAR RI EO 2

Sax v. Breier, 384 F.Supp. 36 (E.D. Wis. 1974) ......0......... 21

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

State of Iowa v. Pilcher, 249 N.W.2d 348 (Ia. 1976) .... 23

State of N.J. v. Lair, 301 A.2d 748 (N.J. 1973) ............ 23

State of Ohio v. Faulk, No. C-77486, First Appellate

EIUMETICE OE GIRO (UTOIOTOIE) nccccccccccecccessecesccsccscnnseseesese 16

State v. Saunders, 381 A.2d 333 (N.J. 1977) ........cccceeeee 17

oc Wee We COPUOR, GED UW, Be CRG) ciscciscecrettacestcsttaceacceees 23

Vance v. Bradley, 99 S.Ct. 939 (1979) 2... ecceeeeee 32

Valley Health Systems, Inc. v. City of Racine, 369

PCIE. BT CRD. Wi0C. TOTB) .ncccecevccsescccssescnesencesecvsxeonss 16

Virginia State Board of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748 (1976) 00.00.0000... 22

Wyman v. Wallace, 549 P.2d 71 (1976) .........ceccceceseeeeees 22

CONSTITUTIONAL PROVISIONS AND STATUTES

United States Constitution—

I a cahdneaamecanbbens 3, 22

MI I giccctccdistceetcnen tnsasdramecnaisetinead casccneahaisiees 22

III UII ics cscs cacatacsncuravnsesustuntiaduciecsantiaseed 20, 22

INI II | ca... crsx. cas scssshaieanastnunoaseasdamaninaunks 22

Amendment Fourteen ...................cccccccecsee 3, 15, 20, 22, 24

MII HI 55.25 sasinsty scacssncsanonasdaqsnomonceastetsnmnbioudboiasantin bit 3, 21

I ts 3, 21

NIN IIE RIES, 5hcchpcsenatulesiismnscasannndaabsiicesemacessppinesooniin 16

SII cab sstiicssasicshcasaamcoiachanssccasebiemeenilaseepe psalms 16

Chapter 567, R.S.Mo. ......... sista ntdatcemagsine 4, 15, 16, 18, 19, 20, 21

BY SIN Ip isdccrsarvemcctdanartrnraapnensinhatetsoncihiies 4,15, 17, 21

Sie an a aa eengnasacmiamaeieeneeemmammmants 6

I arash scala steeds chest cheats eoccecsdcantoetiooedionssh tantetovaien 6

NER “RAL RO PR eee ee ae IST 7

foe tere bloke ee SS 7

567.060 ............ ~visuioeasetinciiganinbcia pis catalase haa 8

Ne oe caliper PA AERIS ee 8

TR BD oavsaccaceansinincestasan ecahacsietiacniaeuatiiensnken ane 8

CIE I ST AR 9

EI © scnnccscsessaéesadelneeene PPE es eS ONL ES 10

TREATISES

Gunther, The Supreme Court, 1971 Term - Foreword:

In Search of Evolving Doctrine on a Changing Court:

A Model for a Newer Equal Protection (1972), 86

FEO U Nae, 2 ccnsnrecsvensscsisseenensatanaaa ee 26

“The First Amendment Overbreadth Doctrine,” 83

Flory dadeey. OB6 CRG) | ncccceccetie seen 22

Richardson, “Sexual Offenses Under the Proposed Mis-

souri Criminal Code”, 38 Mo.L.Rev. 371 (1973) ........ 16, 19

“The Constitutional Right of Sexual Privacy,” 12 Suf-

eR NB ee re 17

In the Supreme Court of the United States

OCTOBER TERM, 1979

J.B.K., INC., ET AL.,

Petitioners,

VS.

NORMAN CARON, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioners, J.B.K., Inc., d/b/a Magic Touch, Kingsmen

II, d/b/a King’s Harem, S.L.S., Inc., d/b/a Relaxation Sta-

tion, C-Sun, Inc., d/b/a Garden of Eden Health Spa, T.D.C.,

Inc., d/b/a Your Way Health Spa, L.T.D. Enterprises,

d/b/a Classy Lady Health Spa, T.R.I. Company, d/b/a

Afternoon Delight Health Spa, Lone-Star Enterprises, d/b/a

Wild West Pleasure Palace, and Diamond Enterprises,

d/b/a Fantastic Fantasy Health Spa,* petitions for a writ

of certiorari to review the judgment of the United States

Court of Appeals for the Eighth Circuit in this case.

*Other appellants below, namely Marilyn Schaefer, a/k/a

Ann Watson, d/b/a Foxy Lady Health Spa and d/b/a Hideaway

Health Club Spa; Club 107, Inc., d/b/a Club 107 and d/b/a

Grandview Fitness Center; G & G Enterprises, Inc., d/b/a Unique

Health Spa; E & H Enterprises, Inc., d/b/a Beaver Lodge; Franko

Therapeutics, Inc., d/b/a Aristocrat House Health Spa, and

Shirley Edwards, do not join in this Petition.

OPINIONS BELOW

The opinion of the Court of Appeals (App. A, infra,

pp. Al-A6) is reported at 600 F.2d 710 (8th Cir. 1979).

The opinion of the District Court (App. B, pp. A7-A28)

is not yet reported.

JURISDICTION

The judgment of the Court of Appeals was entered on

June 24, 1979. Petitioner’s timely motion for rehearing

or alternatively, for rehearing en banc, was denied on

July 23, 1979 (App. C, infra, p. A29). This Honorable

Court’s jurisdiction is invoked pursuant to 28 USC 1254 (1).

QUESTION PRESENTED

1. Whether the Appellate and Trial Courts decision

to deny preliminary relief in this case was bottomed upon

the proper test to be employed when the facts present

an issue under the Equal Protection clause of the Four-

teenth Amendment to the United States Constitution:

(A) Has an important question of Federal law been

decided by the Court of Appeals which has not been, but

should be, finally settled by this Court, to-wit: should the

traditional “two-tier” analysical framework for review-

ing legislative classifications under the equal protection

clause be used or should Justice Marshall’s test (as ex-

pressed in e.g., Police Department of Chicago v. Mosley,

408 U.S. 92, 95 (1972)) be used, i.e., whether there is an

appropriate governmental interest suitably furthered by

the differential treatment.

THE CONSTITUTIONAL PROVISIONS

AND STATUTES

U. S. Constitution, Amendment One.

Amendment One

Congress shall make no law .. . abridging the free-

dom of speech....

U.S. Constitution, Amendment Fourteen.

Amendment Fourteen

Sec. 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 where-

in 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, with-

out due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

Art. I, §9, Cl. 3, U. S. Constitution.

Art. I, §9

No Bill of Attainder or ex post facto Law shall be

passed.

Art. I, $10, U. S. Constitution.

Art. I, §10

No state shall . . . pass any Bill of Attainder,

ex post facto Law, or Law impairing the Obligation

of Contracts. * * *

Chapter 567, R.S.Mo.

Sec.

567.010.

567.020.

567.030.

567.040.

567.050.

567.060.

567.070.

567.080.

567.090.

567.100.

567.010.

Chapter 567

PROSTITUTION

Chapter definitions.

Prostitution.

Patronizing prostitution.

Prostitution and patronizing prostitution—

sex of parties no defense, when.

Promoting prostitution in the first degree.

Promoting prostitution in the second degree.

Promoting prostitution in the third degree.

Prostitution houses deemed public nuisances.

Preemption and standardization.

Responsibilities of prosecuting attorneys and

attorney general.

Chapter definitions

As used in this chapter, the following terms mean:

(1)

“Promoting prostitution”, a person “promotes

prostitution” if, acting other than as a prostitute, or

a patron of a prostitute, he knowingly

(a) Causes or aids a person to commit or engage

in prostitution; or

(b) Procures or solicits patrons for prostitution;

purposes; or

(d) Operates or assists in the operation of a

house of prostitution or a prostitution enterprise; or

(e) Accepts or receives or agrees to accept or

receive something of value pursuant to an agreement

or understanding with any person whereby he par-

ticipates or is to participate in proceeds of prostitution

activities; or

(f) Engages in any conduct designed to institute,

aid or facilitate an act or enterprise of prostitution;

(2) “Prostitution”, a person commits “prostitu-

tion” if he engages or offers or agrees to engage in

sexual conduct with another person in return for some-

thing of value to be received by the person or by a

third person;

(3) “Patronizing prostitution”, a person “patron-

izes prostitution” if

(a) Pursuant to a prior understanding, he gives

something of value to another person as compensation

for that person or a third person having engaged in

sexual conduct with him or with another; or

(b) He gives or agrees to give something of value

to another person on an understanding that in return

therefor that person or a third person will engage in

sexual conduct with him or with another; or

gage in sexual conduct with him or with another, or

to secure a third person to engage in sexual conduct

with him or with another, in return for something of

value;

(4) “Sexual conduct’ occurs when there is

(a) “Sexual intercourse” which means any pene-

tration, however slight, of the female sex organ by the

male sex organ, whether or not an emission results; or

(b) “Deviate sexual intercourse” which means

any sexual act involving the genitals of one person

and the mouth, tongue or anus of another person; or

manual or otherwise, of the anus or genitals of one

person by another, done for the purpose of arousing or

gratifying sexual desire of either party;

(5) “Something of value” means any mioney or

property, or any token, object or article exchangeable

for money or property.

L.1977, p. ........, S.B.No.60, § 1, eff. Jan. 1, 1979.

567.020. Prostitution

1. A person commits the crime of prostitution if

he performs an act of prostitution.

2. Prostitution is a class B misdemeanor.

Aalee ty Bs -.--- , ».B.No.60, § 1, eff. Jan. 1, 1979.

567.030. Patronizing prostitution

1. A person commits the crime of patronizing

prostitution if he patronizes prostitution.

2. Patronizing prostitution is a class B misde-

meanor.

BREE ts BR ences. , S.B.No.60, § 1, eff. Jan. 1, 1979.

567.040. Prostitution and patronizing prostitution—

sex of parties no defense, when

In any prosecution for prostitution or patronizing

a prostitute, the sex of the two parties or prospective

parties to the sexual conduct engaged in, contemplated

or solicited is immaterial, and it is no defense that

(1) Both persons were of the same sex; or

(2) The person who received, agreed to receive

or solicited something of value was a male and the

person who gave or agreed or offered to give some-

thing of value was a female.

Balert, M , 5.B.No.60, § 1, eff. Jan. 1, 1979.

567.050. Promoting prostitution in the first degree

1. A person commits the crime of promoting pros-

titution in the first degree if he knowingly

(1) Promotes prostitution by compelling a person

to enter into, engage in, or remain in prostitution;

(2) Promotes prostitution of a person less than

sixteen years old.

2. The term “compelling” includes

(1) The use of forcible compulsion;

(2) The use of a drug or intoxicating substance

to render a person incapable of controlling his con-

duct or appreciating its nature;

(3) Withholding or threatening to withhold dan-

gerous drugs or a narcotic from a drug dependent

person.

3. Promoting prostitution in the first degree is

a class B felony.

A See , 5.B.No.60, § 1, eff. Jan. 1, 1979.

567.060. Promoting prostitution in the second degree

1. A person commits the crime of promoting pros-

titution in the second degree if he knowingly promotes

prostitution by managing, supervising, controlling or

owning, either alone or in association with others,

a house of prostitution or a prostitution business or

enterprise involving prostitution activity by two or

more prostitutes.

2. Promoting prostitution in the second degree

is a class C felony.

ey a , 5.B.No.60, § 1, eff. Jan. 1, 1979.

567.070. Promoting prostitution in the third degree

1, A person commits the crime of promoting pros-

titution in the third degree if he knowingly promotes

prostitution.

2. Promoting prostitution in the third degree is

a class D felony.

yy aan - Speen , 5.B.No.60, § 1, eff. Jan. 1, 1979.

567.080. Prostitution houses deemed public nuisances

1. Any room, building or other structure reg-

ularly used for sexual contact for pay as defined in

section 567.010 or any unlawful prostitution activity

prohibited by this chapter is a public nuisance.

2. The attorney general, circuit attorney or prose-

cuting attorney may, in addition to all criminal sanc-

tions, prosecute a suit in equity to enjoin the nuisance.

If the court finds that the owner of the room, build-

ing or structure knew or had reason to believe that

the premises were being used regularly for sexual

contact for pay or unlawful prostitution activity, the

court may order that the premises shall not be occu-

pied or used for such period as the court may deter-

mine, not to exceed one year.

3. All persons, including owners, lessees, officers,

agents, inmates or employees, aiding or facilitating

such a nuisance may be made defendants in any suit

to enjoin the nuisance, and they may be enjoined

from engaging in any sexual contact for pay or unlaw-

ful prostitution activity anywhere within the jurisdic-

tion of the court.

4. Appeals shall be allowed from the judgment

of the court as in other civil actions.

Pe 5 a See , 9.B.No.60, § 1, eff. Jan. 1, 1979.

567.090. Preemption and standardization

The general assembly by enacting this chapter

intends to preempt any other regulation of the area

covered by felony sections 567.050 through 567.070,

to promote statewide control of prostitution, and to

standardize laws that governmental subdivisions may

adopt in other areas covered by this chapter. No

governmental subdivision may enact or enforce a law

that makes any conduct in the area covered by sec-

tions 567.050 through 567.070 subject to a criminal

or civil penalty or sanction of any kind. Cities and

towns may enact and enforce laws prohibiting and

penalizing conduct subject to criminal or civil penalties

or sanctions under other provisions of this chapter,

but the provisions of such laws shall be the same

and the authorized penalties or sanctions under such

laws shall not be greater than those of this chapter.

Cities and towns may also enact and enforce laws

prohibiting and penalizing public solicitation of sexual

conduct, whether or not the offer to engage in sexual

conduct is in return for something of value, and health

laws to prevent the spread of venereal diseases.

Oy a: re , 5.B.No.60, $ 1, eff. Jan. 1, 1979.

567.100 Responsibilities of prosecuting attorneys and

attorney general

In addition to the responsibility of circuit attor-

neys and prosecuting attorneys in their respective ju-

risdictions to enforce the criminal provisions of this

chapter, they shall have the duty to enforce the pro-

visions of section 567.080; and the attorney general

shall have a concurrent duty to enforce the civil provi-

sions of section 567.080.

PS a Sapore , S.B.No.60, § 1, eff. Jan. 1, 1979.

STATEMENT OF THE CASE

On December 14, 1978, Plaintiffs, all of whom are

individuals and/or corporations engaged in the business

of operating massage parlors in the State of Missouri,

filed a verified complaint in the United States District

Court for the Western District of Missouri. Plaintiffs si-

multaneously filed a motion for temporary restraining

order with supporting suggestions and a motion for pre-

liminary injunction, together with suggestions in support

thereof.

A temporary restraining order was issued, and there-

after a hearing on the motion for preliminary injunction

was held on January 3, 1979.

Prior to the hearing, the Defendants, all of whom

were either state, county or local law enforcement or prose-

cutorial officials in the State of Missouri, responded to

the complaint, some pursuant to a formal answer, others

pursuant to a motion to dismiss. Rule 12(b) (1), (6), F.R.

Cw. F.

A transcript of all proceedings in the lower court

was made and will be filed with this Court.’ After the

hearing on the motion for a temporary injunction, on Janu-

ary 3, 1979, the cause was continued; and on January

9, 1979, the Court below denied the relief sought (<e.,

issuance of a temporary injunction). Thereafter, on Jan-

uary 12, 1979, the trial court issued a memorandum opinion

which constituted findings of fact and conclusions of law.

Although the Trial Court found that Petitioners demon-

strated “irreparable injury’, it found Petitioners had not

convinced the Court that they would succeed on the merits

or that they demonstrated sufficiently serious questions

going to the merits or that the balance of hardship tipped

in their favor. Thereafter, pursuant to 28 USC 1292(a) (1)

and Rules 3 and 4, Federal Rules of Appellate Procedure,

Petitioners took an interlocutory appeal to the U. S. Court

of Appeals for the Eighth Circuit which affirmed the lower

court’s denial of injunctive relief.

Petitioners invoked the trial court’s jurisdiction pur-

suant to 42 USC 1983, 28 USC 1331, 1343(3), 28 USC

2201-2202, Petitioners being licensed and taxed massage

1. The official court reporter’s transcript of proceedings of

January 3, 1979 consisting of 6i pages will be referred to as

“Tr. 1/3/79, p. ....”.. Throughout this Petition, reference will

be made to various portions of the Record by stating the name

of the document referred to, followed by the date of filing (i.e.,

“COMPLAINT, 12/14/78” or “ORDER, 1/9/79’). Petitioners

elected pursuant to Rule 30jh), F.R. App. P. and Rule 11, Local

Rules, Court of Appeals for the Eighth Circuit, to proceed on

the original designated record below.

parlor operators in the State of Missouri who, as of Janu-

ary 1, 1979, would be criminally and otherwise liable under

the provisions of Sections 567.010-567.100, R.S.Mo., and

particularly directed their attack upon those provisions

prohibiting “sexual contact,” defined -as the “touching,

manual or otherwise, of the anus or genitals of one person

by another, done for the purpose of arousing or gratifying

sexual desire of either party.” Other provisions of the

Statutes were also attacked as unconstitutional.

The evidence showed that Petitioners were all legiti-

mate, licensed and taxed operators of massage parlors,

each and every one of whom had invested in excess of

$10,000.00 in their respective businesses, and were engaged

in offering the services of masseuses who were women

to male customers to furnish massages to take place in

private and not in public. The services to be provided

were in the nature of ‘“‘sexual contact”’ which was declared

to be “prostitution” under the new Missouri law (COM-

PLAINT, 12/14/78, and supporting affidavits).

The evidence showed that the newly-enacted statutes,

Sections 567.010, et seq., R.S.Mo., could and would be ap-

plicable to the Plaintiffs and permit and require their

prosecution under said provisions. Additionally, the com-

plainants’ businesses were such that they could be declared

“public nuisances” and shut down for as long as one year

at a time, under the provisions of Section 567.080, R.S.Mo.

These statutes superceded and preempted local ordi-

nances, Section 567.090, R.S.Mo., and enforcement of these

statutes was declared to be the responsibility of both state

and county prosecutors. Section 567.100, R.S.Mo. (COM-

PLAINT, 12/14/78).

Included in the statutory proscriptions was that of

“sexual conduct”, specifically to include “sexual contact”,

Section 567.010(4) (c), R.S.Mo., which was criminally con-

demned where such conduct took place for money or any-

thing else of value. Section 567.010(5), R.S.Mo.

It was further established as a matter of undisputed

fact that the complainants’ conduct would bring prosecu-

tion under the above statutes because the massage admin-

istered by the female employees to male customers

involved the touching and/or massaging of the male gen-

italia (COMPLAINT, 12/14/78).

At the hearing on motion for temporary injunction

held on January 3, 1979, the following facts were adduced:.

Introduced into evidence was the affidavit of Professor

Edwin Hunvald, Professor of Law, University of Missouri

at Columbia, as to the purpose of newly-enacted legislation,

including Sections 567.010, et seq., R.S.Mo. (Tr. 1/3/79,

pp. 7-8, Exhibit 1) and detailing the legislative history

of these statutes. Professor Hunvald’s testimony related

that the sole justification for the enactment of these stat-

utes, at least as they applied or might apply to the Plain-

tiffs, was to control the spread of venereal disease (Tr.

1/3/79, p. 11; HUNVALD AFFIDAVIT). Professor Hun-

vald’s testimony showed, by way of the comments made

by the drafters of the proposed Missouri code, which were

attached to Professor Hunvald’s Affidavit, that there were

valid arguments for making prostitution legal. Hunvald’s

testimony also showed that sexual conduct not for hire

was not prohibited under the new Missouri Statutes, and

that sexual conduct for hire involving certain sexual fet-

ishes was similarly not prohibited.

The verified complaint was introduced into evidence

(Tr. 1/3/79, p. 12, Exhibit 2).,

Mr. Thomas I. Cylar, Assistant Director of the Venereal

Disease Control Clinic covering several Western Missouri

counties, testified as an expert witness for the Plaintiffs

that massage parlor operations and sexual activity therein

had never been a cause for the spread of venereal disease

(Tr. 1/3/79, pp. 13-16).

One of the Plaintiffs, Schaeffer, testified as to her

knowledge and experiences, both as a massage parlor oper-

ator for a five-year period of time, and as Secretary of

the Missouri Massage Association (Tr. 1/3/79, pp. 17-

23). It was established from Ms. Schaeffer’s testimony

that, in all such businesses, the masseuses were females,

the customers males.

The affidavits of two physicians, Dr. Elliott and Dr.

Colom, were admitted into evidence (Tr. 1/3/79, pp.

23-25, Exhibits 3 and 4). In their testimony, these two

physicians stated that there were no detrimental effects,

and in fact, innumerable benefits, to massage, including

the masturbatory function, in their professional opinions.

Dr. Elliott testified that venereal disease would not likely

be contracted through sexual touching. Dr. Colom’s affi-

davit also established that the conduct of masturbation

was widespread amongst American males, and that it was

a medically-accepted treatment practiced by such medical

practitioners as Masters and Johnson.

The testimony of State Representative O’Toole was

admitted into evidence (Tr. 1/3/79, pp. 26-32). His testi-

mony, like that of State Senator Caskey (Tr. 1/3/79,

pp. 30-33), established Professor Hunvald’s connection with

the then-proposed and ultimately enacted legislation herein

involved, and showed that the only possible reason for

the enactment of this legislation was the prevention of

venereal disease, and showed that the legislators intended

that this legislation, in part, was directed against massage

parlor operators (Tr. 1/3/79, p. 29).

Counsel thereupon sought leave to file supplemental

briefs addressing the issues, which the trial court allowed

(Tr. 1/3/79, p. 35), and the initially granted temporary

restraining order was ordered to continue in effect until

January 9, 1979 and pending the court’s decision on the

motion for an injunction (Tr. 1/3/79, p. 59).

REASONS FOR GRANTING THE WRIT

1. Introduction.

Petitioners are in this Petition attacking those pro-

visions of the Missouri Statutes which prohibit ‘sexual

contact” for something of value, i7.e., §§567.010(4)(b) and

(5) and related provisions of these Statutes punishing and

making criminal such acts. They are not asking that

Chapter 567 as it relates to ‘“‘sexual intercourse” and

“deviate sexual intercourse” for “something of value” be

declared unconstitutional. §§567.010(4) (a), (b) and (5).

l(a). Equal Protection Violations.

The provisions of Chapter 567, R.S.Mo., relating to

“sexual contact” for hire do in fact violate the Equal

Protection Clause of the Fourteenth Amendment as fol-

lows: (1) the Statute permits sexual touching for those

who do not pay, but does provide criminal penalties for

those who pay; (2) the Statute provides for unequal pun-

ishment for those who “patronize prostitution” or for

those committing crimes of prostitution, as opposed to

those who “promote prostitution”; (3) the Statute pro-

vides for the same penalties for those engaged in ‘sexual

intercourse” and “deviate sexual intercourse’’, as for those

who engage in “sexual contact”; (4) the Statute prohibits

the touching of the “genitals” (defined in Webster’s Dic-

tionary as meaning the “reproductive organs”), i.e., the

touching of the penis and vaginal areas; this leaves as no

violation of the law such activities as sado-masochism,

bondage, sexual acts with animals or corpses, adultery,

fornication, peeping, touching of the female breast, of the

thighs, and the like; See Richardson, “Sexual Offenses

Under the Proposed Missouri Criminal Code’, 38 Mo.L.Rev.

371 (1973), at p. 378; (It is to be noted further that under

Section 566.110 of the Missouri Statutes, sexual ccntact

between consenting persons is not a violation of the law,

except ‘“‘when the other person is incapacitated or 12 or

13 years old’’; it is also interesting to note that Chapter 566

prohibits the touching of the breast of any female person

whereas under Chapter 567, same is not prohibited.); (5)

the Statute unconstitutionally distinguishes between ac-

tivities undertaken for money or property of value and

those which may be undertaken in exchange for other ser-

vices which are also of value; and (6) the Statute arbi-

trarily distinguishes between operations involving one

prostitute and operations involving more than one prosti-

tute. In Hogge v. Hedrick, 391 F.Supp. 91 (E.D.Va. 1975),

the court there held that the plaintiffs were entitled to a

preliminary injunction against a sexual touching ordinance

under an equal protection analysis because “the touching

or exposing of specific body parts, may indeed be under-

inclusive in character and without a rational basis.” See

also, for an equal protection analysis, In re P., 400 N.Y.

Supp.2d 455 (Fam. Ct. 1977); Cheek v. City of Charlotte,

180 S.E.2d 18 (N.C. 1968); Valley Health Systems, Inc. v.

City of Racine, 369 F.Supp. 97 (E.D. Wisc. 1973); Hart

Health Studio v. Salt Lake County, 577 P.2d 116 (Utah

1978); People v. Williams, 286 N.Y.S.2d 575 (1967),

which held that a New York statute defining solicitation

for prostitution was void on equal protection grounds, and

to like effect is State of Ohio v. Faulk, No. C-77486, First

Appellate District of Ohio (unreported), a copy of which

was attached to Petitioners’ Brief in the Eighth Circuit

as Exhibit C; People of the State of New York v. Johnson,

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

New York v. Rice, 363 N.Y.S.2d 484, 487-48 (1975) (strik-

ing down state sodomy law on equal protection grounds

for discriminating between married and unmarried per-

sons). Compare State v. Saunders, 381 A.2d 333 (NJ.

1977) commented upon: ‘The Constitutional Right of

Sexual Privacy,” 12 Suffolk, Va.L.Rev. at pp. 1312-1328.

Petitioners showed that there was no rational basis,

compelling state interest, or an appropriate governmental

interest suitably furthered by the differential treatment

set out above.”

Thus Petitioners conclusively showed that the drafters

of the Statute, as well as the Missouri Legislature, only

had one purpose in mind in enacting Chapter 567.010(c)

prohibiting sexual contact, namely the purpose of pre-

venting venereal disease (See Professor Hunvald’s affidavit,

with Comments of the drafters of the Code attached thereto,

Tr. pp. 7-8; Exhibit 1). Also attached to Professor Hun-

vald’s affidavit were arguments in favor of legalization of

prostitution, contained in the Comments to the Modern

Penal Code, at pp. 171-173. The arguments in favor of

prostitution were summarized as follows (citing many

authorities): (1) prostitution cannot be eliminated by

law; (2) sumptuary laws that cannot be generally enforced

lend themselves to extortion and arbitrary and episodic

prosecution; (3) failure to provide a professional outlet for

male sexuality results in more rape and other sexual crimes;

(4) registration and periodic health inspection are the best

means for controlling venereal disease; disease is much more

likely to be spread by the promiscuous amateur than by

2. See discussion, infra.

professional prostitutes concerned and instructed to avoid

infection; (5) legalized prostitution offers less opportunity

for official corruption and an unrealistic effort of total

repression; (6) by confining prostitution, particularly in

neighborhoods, police surveillance is facilitated and the

safety of the general community is promoted (Tr. pp. 7-8;

Exhibit 1). The affidavit of Kenneth Elliott, as acknowl-

edged by the court below, certainly casts doubt on any find-

ing that sexual touching involved the spread of venereal

disease (Tr. pp. 23-25; Exhibit 3). The testimony of Mr.

Cylar, a Public Health official, certainly put to rest the

notion that venereal disease by sexual touching presented

any health problem (Tr. pp. 13-16). Both Dr. Elliott’s and

Dr. Colom’s affidavits showed that masturbation has bene-

ficial effects, was widespread amongst American males, had

no deterimental effects, and was in certain circumstances

used by medical practitioners (Tr. pp. 23-25; Exhibits 2,

3&4). The testimony of the State Legislature showed that

the only possible reason advanced to the legislature for en-

actment of the law was the prevention of venereal disease.

The lower court, in its Memorandum Opinion, acknowledged

that Petitioners had made a substantial showing in this re-

gard (See Appendix B, pp. A21-A23).

However, the trial court stated that there might have

been other reasons that the Missouri Legislature enacted

Chapter 567 (which reasons and facts, it is respectfully

suggested, were never presented to the Missouri Legisla-

ture). According to the lower court in its Memorandum

Opinion, the Legislature might have enacted the Statute

for the following reasons: ‘“(1) the strain public market-

ing of sex may place on the institution of marriage, (2) the

possibility that innocent citizens may be confronted by un-

wanted solicitation, and (3) the State’s concern over regu-

lating the criminal manipulation that may surround the ac-

tivity of prostitution.” (Appendix B, pp. A22-A23). In this

respect, the Petitioners made available to the court the case

of In rei ., the finding of which the lower court chose to dis-

regard (See Appendix B, p. A22). In In re P., citing nu-

merous authorities, the ws Nate that the prevailing evi-

dence shows that prostitution does not harm the family or

marriage (at p. 468), does not serve any objective such as

deterring organized crime (at p. 467), and does not present

any offense to public sensitivities (at pp. 468-469). In re

P., 400 N.Y.Supp.2d 455 (1977). (This case was presented

to the court by way of attachment to Petitioners’ Sugges-

ticns in Support of their Motion for Preliminary Injunc-

tion.) Thus, the Petitioners made a showing that there

was a possibility that they would succeed on their merits

concerning the propriety of Chapter 567, and also showed

that there were sufficiently serious questions going to *he

merits to make them a fair ground of litigation with respect

to the propriety of Chapter 567. It is also to be noted that

the State may not “rely upon the bare assertion of im-

morality to justify a criminal prohibition.” In re P., at p.

467, citing many authorities. This view was echoed by one

of the drafters of the Code, Judge Orville Richardson. See

“Sexual Offenses” under the proposed Missouri Criminal

Code, 38 Mo.L.Rev. 371 (1973), at pp. 373-4, and particu-

larly footnote 6, wherein the author states (in footnote 6

at p. 374): “All arguments seem to weigh most heavily

against the legal enforcement of morality.”

In short, there was no evidence showing that there was

any “public interest” requiring the prohibition of “sexual

touching”, nor any showing that masturbatory conduct by

a person injuriously affects others, nor any showing that

the “means (were) reasonably necessary for the accom-

plishment of the purpose, and not unduly oppressive.”

Finally, there was no showing that the least restrictive

means necessary were used to accomplish the purpose. All

of the evidence, in fact, was to the contrary.

1(b). Fundamental Rights of Petitioners Were

Infringed Upon by Chapter 567, R.S.Mo.

(1) The Petitioners’ rights to employment, to do busi-

ness, and to obtain income both from the ownership of

property and from conducting business are fundamental

rights.

As the lower court correctly held, “the Supreme Court

has recognized: ‘the right to hold specific private em-

ployment and to follow a chosen profession free from

unreasonable governmental interference comes within the

“liberty” and “property” concepts of the Fifth Amend-

ment.’” Greene v. McElroy, 360 U.S. 474, 3 L.Ed.2d 1377

(1959). See also Nyberg v. City of Virginia, 495 F.2d

1342 (8th Cir. 1975), appeal dismissed, 419 U.S. 891 (1976).

The Fifth Amendment mandate applies with equal force

to the states via the Fourteenth Amendment due process

clause, and there is no difference in the depth of the

protection afforded to persons as between the Fifth Amend-

ment’s application federally, and the Fourteenth Amend-

ment’s application to and against the State. Paul v. Davis,

424 U.S. 693, 702 (F.N. 3) (1976); Mason v. Claytor, 459

F.Supp. 174, 179 (D. D.C. 1978).

Each Petitioner in this matter established by way of

————-veritied petition that they had a going business requiring

a substantial investment. Their businesses were, as noted

above, certainly legal prior to January 1, 1979 when Chap-

ter 567 took effect. Petitioners established they were

taxed, inspected and otherwise examined by the Defen-

dants, their officers, agents and employees. It was estab-

lished by Professor Hunvald in his affidavit that at least

one amendment to Chapter 567 was specifically directed

against massage parlors (Tr. pp. 7-8, Exhibit 1).

Given Petitioners’ fundamental right to property and

to enjoy the fruits thereof,’ the Respondents failed to

show any “compelling state interest’, rational basis, or

an appropriate governmental interest suitably furthered

by the differential treatment so as to justify the provisions

of Chapter 567, R.S.Mo. 1969, as it relates to “sexual touch-

ing”. Petitioners therefore were entitled to a preliminary

injunction in this regard. See Corey v. City of Dallas,

352 F.Supp. 977 (N.D. Tex. 1972); Sax v. Breier, 384

F.Supp. 36 (E.D. Wis. 1974); City and County of Denver

v. Wilson, 572 P.2d 484 (Col. Banc 1977); JSK Enterprises

v. Lacey, 492 P.2d 600 (Wash. 1972); Cianciola v. Mem-

bers of City Council, Knoxville, Tenn., 376 F.Supp. 719

(E.D. Tenn. 1974); Jensen v. Salt Lake, 530 P.2d 3 (Utah

1974).

(2) Petitioners’ Rights to Freedom of Speech to Freely

Associate, and to Privacy, Are Fundamental Rights Af-

fected by Chapter 567 of the Missouri Statutes.

(a) The Right of Free Speech. Section 567.010(3) (c)

and Section 567.010(1)(d) prohibit solicitation to engage

in sexual conduct. It is respectfully suggested that these

provisions violate Petitioners’ right to free speech. The

Supreme Court of the United States has consistently held

that, regardless of taste, tradition, or common acceptance,

free speech is protected unless it falls into the category

of “fighting words”. See Gooding v. Wilson, 405 U.S.

518 (1971). And, free speech does not lose its First Amend-

3. It is also clear that Chapter 567, R.S.Mo., constitutes a

violation of Petitioners’ Freedom to Contract (see Article I, Sec-

tion 10, U. S. Constitution) and, further, is an ex post facto law

aimed at Petitioners’ businesses (Article I, Section 9, Clause 3,

U. S. Constitution).

ment protection because of its commercial aspects. See

Virginia State Board of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748, 761 (1976); Bigelow

v. Virginia, 421 U.S. 809, 818-821 (1975). This Court has

made it abundantly clear that a criminal statute capable

of punishing spoken words could not stand constitutional

muster unless it has been authoritatively construed by

state courts to be inapplicable to speech which is protected

by the First and Fourteenth Amendments. See Lewis

v. New Orleans, 415 U.S. 130 (1974). The statute in this

case which sweeps as broadly as it does is on its face

therefore plainly unconstitutional. See Note, “The First

Amendment Overbreadth Doctrine,’ 83 Harv.L.Rev. 844

(1970).

(b) The Right of Privacy. This Court has held that

there is a constitutional right to “privacy”. See Griswold

v. Connecticut, 381 U.S. 479 (1965). Griswold made clear

that the right of privacy was implicit within the First

Amendment Freedom of Association, within the First

Amendment Freedom of Speech, within the Fourth Amend-

ment 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 with-

in the penumbra of the Bill of Rights. It is suggested

that such right of privacy also resides within the First

Amendment Freedom of Religion and within the Fifth

Amendment restraint on self-incrimination. It has been

held that the right of “‘privacy” includes the right of sexual

privacy. See In re P., cited supra, citing many authorities;

State v. Saunders, cited supra. See also Fagden v. Linker,

365 A.2d 1947 (Pa. 1976); Wyman v. Wallace, 549 P.2d

71 (1976) (acts with non-spousal partners); Lovisi v.

Slayton. 539 F.2d 349 (4th Cir. 1976) (acts of oral-sexual

expression ketween heterosexuals); and the right to pos-

sess obscene material in the privacy of one’s home, Stanley

v. Georgia, 394 U.S. 557 (1969). See also State of Iowa

v. Pilcher, 249 N.W.2d 348, 359 (Ia. 1976); Commonwealth

v. Balthazar, 318 N.E.2d 478, 480-481 (Mass. 1974); State

of N.J. v. Lair, 301 A.2d 748, 753 (N.J. 1973); Cotner

v. Henry, 394 F.2d 873 (7th Cir. 1968), cert. denied, 393

U.S. 847 (1968); Buchanan v. Batcheler, 308 F.Supp. 729

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

401 U.S. 989 (1971). These cases all hold that sexual

relations which are private and consensual in nature are

within the constitutional right of privacy. It is to be

noted that, in the instant case, the sexual act of touching

was, according to Petitioners’ Complaint, to take place

in the privacy of a room in an area of Petitioners’ busi-

nesses. Thus, the privacy of the home is also involved

in this matter. See U. S. v. Orito, 413 U.S. 139, 142 (1973),

wherein the court held that the “Constitution extends spe-

cial safeguards to the privacy of the home, just as it

protects other special privacy rights such as those...

procreation ... .” Contra, Caesar’s Club v. St. Louis

County, 565 S.W.2d 783 (Mo.App. 1978). See also Discus-

sion at pp. Al8-A19 of the Trial Court’s “Opinion” in this

cause.

Thus, since Petitioners have the protected rights as

enumerated above, and since there was no showing of

a compelling state interest, or rational basis or appropriate

governmental interest suitably furthered by the differen-

tial treatment‘ in this case, Petitioners were entitled to

their preliminary injunction.

4. See discussion, infra.

DISCUSSION OF QUESTION PRESENTED

Traditionally, the courts have applied a two-tiered

analysis to decide questions under the Equal Protection

Clause of the Fourteenth Amendment to the U. S. Consti-

tution. The court in Corey v. City of Dallas, cited supra,

reversed on other grounds, 492 F.2d 496 (5th Cir. 1974),

stated:

“The Equal Protection Clause does not deny to a state

or local government the power to treat different classes

of persons in different ways in the area of public

health, safety and morality. Reed v. Reed, 404 U.S.

71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). However,

governmental bodies are denied the power to legislate

persons into different classifications when the classi-

fications are unrelated to the objective of the legisla-

tion. McDonald v. Board of Election Comm’rs, 394

U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1968); Railway

Express Agency v. New York, 336 U.S. 106, 66 S.Ct.

463, 93 L.Ed. 533 (1949); Royster Guano Co. v. Virginia,

253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989 (1920).

“Where a challenge based upon classification is made

to a state or local law under the Equal Protection

Clause a court is required to consider ‘the facts and

circumstances behind the law, the interests which the

State claims to be protecting, and the interest of those

who are disadvantaged by the classification.’ Kramer

v. Union Free School Dist., 395 U.S. 621, 626, 89 S.Ct.

1886, 1889, 23 L.Ed.2d 583 (1969); Williams v. Rhodes,

393 U.S. 23, 30, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968).

“There are two standards which are applicable in eval-

uating a classification by law which is challenged un-

der the Equal Protection Clause.

“A. Rational Basis Standard

“Tf a classification does not affect a ‘fundamental right,’

its constitutionality is to be judged on the basis of

whether the distinction drawn by the law has some

rational basis to a legitimate governmental interest.

McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101,

6 L.Ed.2d 393 (1961). In McGowan the Supreme Court

held that the Equal Protection Clause ‘is offended

only if the classification rests on grounds wholly irrele-

vant to the achievement of the State’s objective’ and

that ‘a statutory discrimination will not be set aside

if any state of facts reasonably may be conceived

to justify, it” 366 U.S. at 425, 426, 81 S.Ct. at 1105.

Further, the Court held that there is a presumption

of constitutionality of the law where a rational basis

for classification conceivably exists even though there

is a resulting inequality.

“B. Compelling State Interest Standard

“On the other hand, if a classification does affect a

‘fundamental right,’ its constitutionality is to be judged

on the basis of whether the classification is necessary

to promote a compelling state interest. Kramer v.

Union Free School Dist., 395 U.S. 621, 89 S.Ct. 1886,

23 L.Ed.2d 583 (1969); Shapiro v. Thompson, 394 U.S.

618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Carrington

v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675

(1965); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct.

1110, 86 L.Ed. 1655 (1942).

»* * *

“In order for legislation affecting a fundamental right

to withstand a challenge under the Equal Protection

Clause, it is incumbent on the governmental authori-

ties to show that there was no other practical matter

in which the objective of the legislation could be ac-

complished and that the interest of the governmental

authority is superior to the rights of the persons who

may be adversely affected by the legislation.” At

pp. 979-980.

This two-tiered analysis has been criticized. The first

part of the test - whether there is a “rational basis” for

the legislation in question - has proved in practice to be

“minimal scrutiny in theory and none in fact.” Gunther,

The Supreme Court, 1971 Term - Foreword: In Search

of Evolving Doctrine on a Changing Court: A Model for

a Newer Equal Protection (1972), 86 Harv.L.Rev. 1, 8.

The second part of the test - the “strict scrutiny” standard,

or “compelling state interest” test, has been characterized

as “strict in theory and fatal in fact.” Gunther, op. cit.,

at p. 8.

The learned Justice of the Supreme Court of Cali-

fornia, Stanley Mock, has brilliantly summarized the exist-

ing state of affairs in Hawkins v. Superior Court, 586

P.2d 916 (Cal. 1978), at pp. 924-926:

“The two-tier system of reviewing equal protec-

tion claims has been criticized by many thoughtful ob-

servers as a rigid and artificial analytical structure.

Leading the assault has been Justice Thurgood Mar-

shall, who has characterized the two-tier mode of an-

alysis as ‘outdated and intellectually disingenuous.’

(Beal v. Doe (1977) 432 U.S. 438, 457, 97 S.Ct. 2366, 53

L.Ed.2d 464 (dis. opn.).) Justice Marshall summarized

his consistently expressed views in a dissent to the

court’s opinion in San Antonio School District v. Rod-

riguez (1973) 411 U.S. 1, 98-99, 93 S.Ct. 1278, 1330, 36

L.Ed.2d 16: ‘I must once more voice my disagreement

with the Court’s rigidified approach to equal prctec-

tion analysis. See Dandridge v. Williams, 397 U.S. 471,

519-521, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (dissent-

ing opinion); Richardson v. Belcher, 404 U.S. 78, 90, 92

S.Ct. 254, 30 L.Ed.2d 231 (1971) (dissenting opinion).

The Court apparently seeks to establish today that

equal protection cases fall into one of two neat cate-

gories which dictate the appropriate standard of re-

view—strict scrutiny or mere rationality. But this

Court’s decisions in the field of equal protection

defy such easy categorization. A principled reading of

what this Court has done reveals that it has applied a

spectrum of standards in reviewing discrimination

allegedly violative of the Equal Protection Clause.

This spectrum clearly comprehends variations in the

degree of care with which the Court will scrutinize

particular classifications, depending, I believe, on the

constitutional and societal importance of the interest

adversely affected and the recognized invidiousness of

the basis upon which the particular classification is

drawn.’ (See also Massachusetts Bd. of Retirement v.

Murgia (1976) 427 U.S. 307, 318-321, 96 S.Ct. 2562, 49

L.Ed.2d 520 (dis. opn. by Marshall, J.).) And Justice

Marshall set forth his perception of the proper inquiry

in his majority opinion, signed by six other justices, in

Police Department of Chicago v. Mosley (1972) 408

U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212: ‘As in

all equal protection cases . . . the crucial question is

whether there is an appropriate governmental interest

suitably furthered by the differential treatment.’

(Italics added.)

Other judges and commentators have endorsed

the view that the traditional framework for equal pro-

tection analysis is deficient in concept and frequently

ignored in practice. Justice White did so explicitly in

Vlandis v. Kline (1973) 412 U.S. 441, 458-459, 93 S.Ct.

2230, 37 L.Ed.2d 63 (conc. opn.), and Justice Powell

implicitly with his conspicuous avoidance of two-tier

rhetoric in Weber v. Aetna Casualty & Surety Co.

(1972) 406 U.S. 164, 172-173, 92 S.Ct. 1400, 31 L.Ed.2d

768. (See also Gunther, supra; Bennett, Liberty,

Equality, and Welfare Reform (1973) 68 Nw.L.Rev.

74, 96; Gellhorn & Hornby, op. cit. supra, 60 Va.L.Rev.

at pp. 986-988; Karst, The Supreme Court, 1976 Term

—Foreword: Equal Citizenship Under the Fourteenth

Amendment (1977) 91 Harv.L.Rev. 1, 3; Francis v. Cle-

land (D.S.D.1977) 433 F.Supp. 605, 618-619; Hoover v.

Meiklejohn (D.Colo.1977) 430 F.Supp. 164, 167-168;

Gilpin v. Kansas State High School Activities Assn.,

Inc. (D.Kan.1974) 377 F.Supp. 1233, 1238-1239; Mc-

Ilvaine v. Pennsylvania State Police (1973), 454 Pa.

129, 309 A.2d 801, 807-811 (dis. opn.); Schwartz v.

Talmo (1973), 295 Minn. 356, 205 N.W.2d 318, 324-325

(dis. opn.).)

In short, the vice of the traditional approach is

that it applies either a standard that is virtually always

met or one that is almost never satisfied. Professor

Wilkinson observed that the attempt to apply ‘two

widely variant levels of scrutiny with no gradations

for rights of intermediate importance’ must prove un-

satisfactory ‘because, as Professor Freund once re-

marked, the world does not move on a “binary princi-

ple.” ’ (Wilkinson, supra, at p. 948, fn. 15.)

The broad analytical lacuna thus remaining would

be filled if Justice Marshall’s intermediate approach

were adopted; it has not yet gained widespread ac-

ceptance, however, no doubt because of a hesitance to

develop an unstructured standard that might appear

to invite judicial intervention in policymaking pref-

erably left to political agencies. But any court that

is so inclined can perform simple legal legerdemain and

reach a predetermined result by maneuvering such

conclusory labels as ‘suspect’ or ‘fundamental.’ Even

the most responsible application of the traditional an-

alysis inevitably involves a certain measure of judicial

balancing, for the scope of such terms as ‘rational,’

‘legitimate,’ ‘compelling,’ or ‘necessary’ remains largely

a matter of opinion. The tendency of courts to manipu-

late words and meanings to avoid the rigidity of the

two-tier framework has prompted one commentator to

write: ‘Working with due process and equal protec-

tion opinions dealing with fundamental rights is like

playing [the croquet match in Alice in Wonderland]

..., using concepts that bend or fall limp to chase words

that move with a mind of their own into categories

which just are not there any more. We quickly learn:

this is not the game we thought we were playing.’

(Goodpaster, supra, at 479.)

In recent cases, the United States Supreme Court

has apparently developed an intermediate level of re-

view in response to ‘a perception that the all-or-nothing

choice between minimum rationality and strict scrutiny

ill-suits the broad range of situations arising under the

equal protection clause, many of which are best dealt

with neither through the virtual rubber-stamp of truly

minimal review nor through the virtual death-blow of

truly strict scrutiny, but through methods more sensi-

tive to risks of injustice than the former and yet less

blind to the needs of governmental flexibility than the

latter.’ (Tribe, American Constitutional Law (1978)

p. 1089 (hereinafter Tribe).) That equal protection

standards are in a state of flux—and that a third stan-

dard of review is emerging—has been widely recog-

nized. (See, e. g., Acha v. Beame (S.D.N.Y.1977) 438

F.Supp. 70, 78; Gay Students Org. of U. of New Hamp-

shire v. Bonner (D.N.H.1974) 367 F.Supp. 1088, 1096-

1097, affd. and mod. (1st Cir. 1974) 509 F.2d 652; Tribe,

supra, at pp. 1082-1092; Simson, A Method for Analyz-

ing Discriminatory Effects Under the Equal Protection

Clause (1977) 29 Stan.L.Rev. 663, 665-666; Wilkinson,

supra, at pp. 951-953; Goodpaster, supra, at pp. 501-

504; Ackerman, op. cit. supra, 125 U.Pa.L.Rev, at pp.

774-775; Karst, op. cit. supra, 91 Harv.L.Rev. at p. 23,

fn. 122; Note, A Question of Balance, Statutory Classi-

fications Under the Equal Protection Clause (1973) 26

Stan.L.Rev. 155, 157-160; Note, The Supreme Court of

California, 1972-1973 (1974) 62 Cal.L.Rev. 408, 462.)

The new standard, thus far most closely associated

with discrimination based on classifications by gender

or the status of illegitimacy, was clearly articulated in

Craig v. Boren (1976) 429 U.S. 190, 197, 97 S.Ct. 451,

457, 50 L.Ed.2d 397: ‘To withstand constitutional chal-

lenge .. . classifications by gender must serve important

governmental objectives and must be substantially re-

lated to achievement of those objectives.’ The vitality

of ‘middle-level scrutiny’ was subsequently confirmed

when this language was quoted and the new standard

applied in Califano v. Goldfarb (1977) 430 U.S. 199,

210-211, 97 S.Ct. 1021, 51 L.Ed.2d 270, and Califano v.

Webster (1977) 430 U.S. 313, 316-3171 97 S.Ct. 1192,

51 L.Ed.2d 360.

Justice Marshall’s opinion for the court in Za-

blocki v. Redhail (1978) 434 U.S. 374, 98 S.Ct. 673,

54 L.Ed.2d 618, indicates the new intermediate mode

of review may be more generally applied. The equal

1. Several lower federal courts have also quoted and

applied this test in cases involving gender-based discrim-

ination. (E.E.0.C. v. American Tel. & Tel. Co. (3d Cir. 1977)

556 F.2d 167, 179; Blake v. City of Los Angeles (C.D.Cal.

1977) 435 F.Supp. 55, 60; Hoover v. Meikeljohn (D.Colo.

1977) supra, 430 F.Supp. 164, 168; In re Paris Air Crash of

March 3, 1974 (C.D.Cal.1977) 427 F.Supp. 701, 708.)

protection analysis there presented carefully avoided

the two tiers of traditional review and focused instead

on such factors as the importance of the rights involved,

the extent to which the classification at issue inter-

fered with their exercise, and the significance of the

state interests advanced in support of the classifica-

tion. The court concluded that the statutory classifi-

cation could not ‘be justified by the interests advanced

in support of it.’ (Id. 434 U.S. 451, at p. 391, 98 S.Ct.

at p. 683.) Several other Supreme Court justices have

accorded explicit recognition to the development of

an intermediate level of review. In his dissenting

opinion in Craig v. Boren (1976) supra, 429 U.S. 190,

218, 97 S.Ct. 451, Justice Rehnquist observed that the

court was applying an ‘elevated or “intermediate”

level scrutiny.’ Concurring in Craig, Justice Powell

remark that the court subjects gender-based classi-

fications to ‘a more critical examination than is nor-

mally applied when ‘fundamental” constitutional

rights and “‘suspect classes” are not present.’ (Id. at p.

210, 97 S.Ct. at p. 464; see also id. at pp. 211-214, 97

S.Ct. 451 (cone. opn. by Stevens, J.).) Dissenting in

Moore v. East Cleveland (1977) 431 U.S. 494, 551, 97

S.Ct. 1932, 1962, 52 L.Ed.2d 531, Justice White cata-

logued the three levels of review: strict scrutiny, ‘the

somewhat less strict standard of Craig v. Boren,’ and

‘the generally applicable standard’ (the rational basis

test) .°

2. Many lower courts have also recognized explicitly

that equal protection anaivsis now entails three levels of re-

view. For instance, in Hoover v. Meiklejohn (D.Colo.1977)

supra, 430 F.Supp. 164, 168, the court understood the stan-

dard enunciated in Craig to constitute ‘a “middle-tier ap-

proach,” requiring something between “legitimate” and

“compelling,” viz., “important,” and something more than

a “rational” relationship but less perhaps than “strict

scrutiny,” viz., “substantially” related.’ (See Meloon v.

(Continued on Following Page)

As the foregoing discussion indicates, this Court has

never explicitly stated when courts should employ the so-

called ‘“‘medium-level” of review, e.g., when fundamental

rights are involved or when they are not, only when

racial or gender based classifications are involved, Orr v.

Orr, 99 S.Ct. 1102 (1979); Parham v. Hughes, 99 S.Ct.

1742 (1979), or in all cases, Vance v. Bradley, 99 S.Ct. 939

(1979) (age discrimination). This Court should grant

certiorari to decide this important question.

CONCLUSION

For the foregoing reasons, this Petition for a Writ of

Certiorari to review the judgment of the United States

Court of Appeals for the Eighth Circuit should be granted,

the judgment of the Court of Appeals vacated with in-

structions to grant Petitioners’ preliminary injunction or

to reconsider its opinion in light of the proper test for

resolving Equal Protection questions, and for such other

and further relief as the Court deems just and proper in

the premises.

Respectfully submitted,

JAMES R. WyRSCH

Attorney for Petitioners

Footnote Continued—

Helgemoe (D.N.H.1977) 436 F.Supp. 528, 530-532; Meloon

v. Helgemoe (lst Cir. 1977) 564 F.2d 602, 604-605; Vance v.

United States (N.D.Tex.1977) supra, 434 F.Supp. 826, 833-

834, affd. per curiam (5th Cir. 1977) 565 F.2d 1214; Lewis v.

Cohen (E.D.Pa.1976) 417 F.Supp. 1047, 1053; Gilpin v. Kan-

sas State High School Activities Assn., Inc. (D.Kan.1974)

supra, 377 F.Supp. 1233, 1238-1239; see also Note, The Su-

preme Court, 1976 Term (1977) 91 Harv.L.Rev. 70, 177-182;

Note, Gender-Based Legislative Classifications (1978) 57

Nev.L.Rev. 555, 559.) In Francis v. Cleland (D.S.D.1977)

supra, 433 F.Supp. 605, 618-620, the court noted that the

new ‘medium level of review’ has been applied in cases in-

volving classifications which, though not suspect, came close

to being suspect; the court concluded that such a middle-tier

approach is likewise appropriate when a case involves a

right not fundamental but which is close to being funda-

mental.”

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 79-1079

J.B.K., Inc., etc., et al.,

Appellants,

Norman Caron, et al.,

Appellees.

Appeal from the United States District Court for the

Western District of Missouri

Submitted: April 24, 1979

Filed: June 14, 1979

Before LAY, BRIGHT and ROSS, Circuit Judges.

ROSS, Circuit Judge.

Appellants, massage parlor operators in Missouri,

sought a preliminary injunction to prevent state and local

law enforcement personnel from enforcing Chapter 567,

Revised Statutes of Missouri, MO. REV. STAT. §§ 567.010-

567.100, which became effective January 1, 1979. Chapter

567 prohibits prostitution, which MO. REV. STAT. § 567.010

(2) defines as follows:

“Prostitution”, a person commits “prostitution” if

he engages or offers or agrees to engage in sexual

conduct with another person in return for something

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

person.

Terms such as “sexual conduct” and “something of value”

are subsequently defined.

Appellants’ business activities include genital massage

for payment which would come within the statutory defini-

tion of prostitution. See MO. REV. STAT. §§ 567.010(2)

and (4)(c). They contend that the prohibition of this

activity violates their rights to freedom of speech, freedom

of association, privacy, due process, equal protection, free-

dom of contract and employment. They also allege a

violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e et seq.

The district court! denied the requested preliminary

injunction primarily because he considered that anpellants

had not established a probability of success on the merits

of any of these claims. We hold that the denial of the

preliminary injunction was not an abuse of discretion,

and we affirm on the basis of the district court’s compre-

hensive opinion. In addition, we make the following obser-

vations.

Appellants’ right to privacy claim rests on their mis-

taken premise that the constitutionally protected right to

privacy encompasses all sexual acts performed by consent-

ing adults in nonpublic places. We do not agree that

the right to privacy extends to all sexual practices per-

1. The Honorable Russell G. Clark, United States District

Judge for the Western District of Missouri.

formed in private including the commercialized sexual ac-

tivities regulated in this case. See Paris Adult Theatre

I v. Slaton, 413 U.S. 49 (1973).

As stated in that case:

Our prior decisions recognizing a right to privacy

guaranteed by the Fourteenth Amendment included

“only personal rights that can be deemed ‘fundamental’

or ‘implicit in the concept of ordered liberty.’ * * *

This privacy right encompasses and protects the per-

sonal intimacies of the home, the family, marriage,

motherhood, procreation, and child rearing.

* * *

Finally, petitioners argue that conduct which di-

rectly involves “consenting adults” only has, for that

sole reason, a special claim to constitutional protection.

Our Constitution establishes a broad range of condi-

tions on the exercise of power by the States, but

for us to say that our Constitution incorporates the

proposition that conduct involving consenting adults

only is always beyond state regulation, is a step we

are unable to take.

e £ e

The state statute books are replete with constitu-

tionally unchallenged laws against prostitution, sui-

cide, voluntary self-mutilation, brutalizing “bare fist’

prize fights, and duels, although these crimes may

only directly involve “consenting adults.” Statutes

making bigamy a crime surely cut into an individual’s

freedom te associate, but few today seriously claim

such statutes violate the First Amendment or any

other constitutional provision.

Id. at 65, 68 and 68 n.15 (citations omitted, emphasis

added).

With regard to plaintiff's freedom of speech claim,

see Davis v. Norman, 555 F.2d 189 (8th Cir. 1977). When,

as in this case, a state or local law primarily regulates

conduct, any incidental impact on speech is to be judged

in the following light:

The Supreme Court has held that:

[W]hen “speech” and “nonspeech” elements are com-

bined in the same course of conduct, a sufficiently

important governmental interest in regulating the non-

speech element can justify incidental limitations on

First Amendment freedoms. ... [A] government

regulation is sufficiently justified if it is within the

constitutional power of the Government; if it furthers

an important or substantial governmental interest; if

the governmental interest is unrelated to the suppres-

sion of free expression; and if the incidental restriction

on alleged First Amendment freedoms is not greater

than is essential to the furtherance of that interest.

Id. at 190-91 quoting from United States v. O’Brien, 391

U.S. 367, 376-77 (1968). See also Paris Adult Theatre

I v. Slaton, supra, 413 U.S. at 67:

Where communication of ideas, protected by the First

Amendment, is not involved, or the particular privacy

of the home protected by Stanley, or any of the other

“areas or zones” of constitutionally protected privacy,

the mere fact that, as a consequence, some human

2. See also Doe v. Commonwealth’s Attorney, 403 F.Supp.

1199 (E.D. Va. 1975), aff'd mem. 425 U.S. 901 (1976) in which

the Supreme Court summarily affirmed a three-judge court de-

cision upholding the constitutionality of a Virginia sodomy stat-

ute against a right to privacy challenge. The statute prohibited

sodomy even when practiced by consenting adults in private.

“utterances” or “thoughts” may be incidentally af-

fected does not bar the State from acting to protect

legitimate state interests.

We do not agree with appellants’ contention that Chap-

ter 567 is unconstitutionally vague. A statute is void for

vagueness if it “fails to give a person of ordinary intelli-

gence fair notice that his contemplated conduct is forbidden

by the statute” or if it “encourages arbitrary and erratic

arrests and convictions.” Papachristou v. City of Jackson-

ville, 405 U.S. 156, 162 (1972). We find that the statute

is precisely worded, that its terms are sufficiently defined

and that it gives “fair notice of the offending conduct.”

Id.

We note that the United States Supreme Court denied

certiorari in Caesar’s Health Club v. St. Louis County,

565 S.W.2d 783 (Mo. App.), cert. denied, 47 U.S.L.W. 3317

(U.S. Nov. 7, 1978), in which the Missouri Court of Ap-

peals upheld a county ordinance virtually identical to

Chapter 567. The Missouri court found that no funda-

mental rights were infringed by the ordinance, that the

law was a reasonable and legitimate exercise of police

power and that it was not overbroad.

Challenges to other laws regulating or prohibiting mas-

sage parlor practices have met a similar fate. See, e.g.,

Tomlinson v. Mayor and Aldermen of The City of Sa-

vannah, 543 F.2d 570 (5th Cir. 1976);3 Brown v. Brannon,

3. In Tomlinson v. Mayor and Aldermen of The City of

Savannah, 543 F.2d 570 (5th Cir. 1976), the Fifth Circuit refused

to enjoin enforcement of an ordinance ‘that prohibits hetero-

sexual massages, imposes strict training and certification require-

ments on massagists, and puts rather onerous place and manner

restrictions on the giving of massages” against challenges to the

law as “an arbitrary restriction of a supposedly due process-

protected right to operate a legitimate business, and as a violation

of equal protection * * *.” Id. at 571. The court stated:

(Continued on Followin7 Fage)

399 F.Supp. 113 (M.D. N.C. 1975), aff’d, 535 F.2d 1249

(4th Cir. 1976).

We have considered appellants’ remaining equal pro-

tection, right to employment and Title VII issues and find

that they do not warrant preliminary injunctive relief.

The judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH

CIRCUIT.

Footnote Continued—

In Smith v. Keater, 419 U.S. 1043, 95 S.Ct. 613, 42

L.Ed.2d 636 (1974), dismissing for want of a substantial

federal question, 285 N.C. 530, 206 S.E.2d 203; Rubenstein v.

Cherry Hill, 417 U.S. 963, 94 S.Ct. 3165, 41 L.Ed.2d 1136

(1974), dismissing for want of a substantial federal question,

No. 10,027 (N.J. Sup. Ct. Jan. 29, 1974); and Kisley v. City

of Falls Church, 409 U.S. 907, 93 S.Ct. 237, 34 L.Ed.2d 169

(1972), dismissing for want of a substantial federal ques-

tion, 212 Va. 693, 187 S.E.2d 168 (1972), the Supreme Court

dismissed appeals from state court decisions upholding the

constitutionality of ordinances prohibiting heterosexual mas-

sages. Appellants in those three cases contended in the

Supreme Court that the ordinances established invidiously

discriminatory sex-based classifications in violation of the

equal protection clause, worked an unreasonable abridge-

ment of the right to pursue a legitimate livelihood; and cre-

ated an unconstitutional irrebuttable presumption that all

massages lead to illicit sexual behavior. The Supreme Court

ruled that these challenges did not raise a substantial con-

stitutional question.

Id. See also Pollard v. Cockrell, 578 F.2d 1002 (5th Cir. 1978),

upholding a San Antonio, Texas massage parlor ordinance as a

valid exercise of police power against charges that due process,

equal protection and employment interests were unconstitutionally

invaded.

APPENDIX B ™~.

IN THE

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

No. 78-1007-CV-W-3

J.B.K., INC., et al.,

Plaintiffs,

VS.

NORMAN CARON, et al.,

Defendants.

MEMORANDUM OPINION

(Filed January 12, 1979)

Several threshold jurisdictional questions have been

raised by the defendants concerning the propriety of this

Court considering the federal constitutional issues involved

in ruling on plaintiffs’ application for a preliminary injunc-

tion prohibiting the defendants from enforcing particular

provisions of Chapter 567 R.S. Mo. (1979).

CASE OR CONTROVERSY ISSUE

Defendants deny the existence of a case or controversy

as required by Article III of the U.S. Constitution and

the Declaratory Judgments Act, 28 U.S.C. §2201. The

case or controversy requirement is jurisdictional and if

this requirement is not met the federal court may not

entertain the complaint. A case or controversy arises with-

A8&

in the meaning of the constitution when a question respect-

ing the constitution, treaties or laws of the United States

have assumed such a form that the judicial power is capable

of acting on it. In Re Summers, 325 U.S. 561, 89 L.Ed.

1795, 1800 (1945). While the case or controversy require-

ment can also involve the question of standing, i.e. does

a litigant have a personal stake in the outcome of the

case; this aspect of the case or controversy requirement

is not at issue in the above action. The issue before

the Court is whether plaintiffs have sustained or are in

immediate danger of sustaining some direct injury. That

injury or threat of injury must be both real and immediate

and not hypothetical nor conjectural. Abstract injury

clearly is not sufficient to meet the Article III require-

ment. See O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38

L.Ed.2d 674, 682 (1974).

In Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209,

39 L.Ed.2d 505 (1974), the Supreme Court found that where

threats of prosecution against petitioner existed that could

not be characterized as imaginary or speculative, it was

not necessary:

that petitioner first expose himself to actual arrest or

prosecution to be entitled to challenge a statute that

he claims deters the exercise of his constitutional

rights. Steffel, supra at 514.

In Blaknik Co. v. Ketola, et al., No. 78-1151 (8th Cir., Nov.

13, 1978) plaintiffs were seeking declaratory and injunctive

relief against enforcement of a city ordinance regulating

certain conduct on premises holding a liquor license. The

Eighth Circuit in evaluating whether the case or contro-

versy requirement had been satisfied determined that

because the ordinance clearly applied to plaintiffs’ business

and because a challenger to a statute need not expose him-

self to actual arrest, the case or controversy requirement

was Satisfied.

In the instant case, plaintiffs allege that various of-

ficials threatened to institute action against them on Jan-

vary 1, 1979 when Chapter 567 R.S. Mo. became effective.

From the brief legislative history before the Court, it ap-

pears that partiéular provisions of Chapter 567 were aimed

at making illegal certain massage parlor practices. (Rep.

O’Toole and Sen. Cassky’s testimony as stipulated to and

presented to the Court.)

The Court finds that particular provisions of the new

act seem clearly directed towards prohibiting particular

conduct that the massage parlors in their pleadings have

admitted is a routine part of their business. This coupled

with allegations concerning threats by law enforcement of-

ficers made at least to some of the St. Louis plaintiffs is

sufficient to satisfy the case or controversy requirement.

Therefore, the defendants’ motion to dismiss for failure to

satisfy the case or controversy requirement must be denied.

ABSTENTION ISSUE

The defendants also argue that this Court should ab-

stain from considering the issues involved in this case on

either of the following two abstention theories:

(1) the case presents unresolved issues of state

law which should be decided in the state tribunals; or,

(2) the federal court should not interfere with

state criminal prosecutions as dictated by Younger v.

Harris, 401 U.S. 37, 46, 91 S.Ct. 746, 27 L.Ed.2d 669

(1971).

The Supreme Court has recognized that the proper ex-

ercise of federal jurisdiction requires that controversies

involving unsettled questions of state law be decided in

Al0

state tribunals. City of Meridian v. Southern Bell Tele-

phone and Telegraph Co., 358 U.S. 639, 79 S.Ct. 455, 3

L.Ed.2d 562 (1959); Railroad Commission of Texas v. Pull-

man, 312 U.S. 496, 85 L.Ed. 971 (1941). Abstention on this

ground is not indicated if the state law is clear on its face

or if its meaning has been authoritatively decided by the

state court. Wright, Miller and Cooper, 17 Federal Prac-

tice and Procedure, 54242 (1978).

After careful review of the sections of Chapter 567

R.S. Mo. challenged by plaintiff, the Court finds that the

language of the act is not so unclear as to require the state

courts to initially interpret its meaning nor does it involve

unsettled questions of state law whose resolution may

obviate the need for deciding federal constitutional issues.'

While there has been no state court decision on this

particular statute, the St. Louis Court of Appeals pre-

viously considered state and federal constitutional chal-

lenges to a St. Louis ordinance containing provisions nearly

identical to the provisions of §567.010(2), (4) (a), (b) and

(c), and (5). Caesars Health Club v. St. Louis County,

565 S.W.2d 783 (Mo. App. 1978). In that case the court

refused to declare the statute vague or overbroad declar-

ing:

the alleged overbreadth of the ordinance is neither real

nor substantial. Moreover, because possible invalid

applications of the ordinance are highly speculative

and not presently before this court, we believe the

ordinance should stand ‘until an actual case corrobo-

1. Abstention may be appropriate where there is a fair

possibility that the statute may violate the state constitution if

the interpretation of some specialized state constitutional provision

is required. However, absention is not appropriate where the

statute may be subject to a state constitutional challenge under

a state provision substantially similar to the federal provision

that is the basis of the federal challenge. Wright, Miller & Cooper,

supra, §4242.

All

rates and justifies [appellants] claim of anticipated

harm and unconstitutional application’... The ordi-

nance should not be declared overbroad on the basis

of frivolous and speculative invalid applications where

a limiting instruction can reasonably be placed on it.

Caesar’s Health Club, supra at 789.

While the Court recognizes this is not a binding decision

nor a decision dealing with the precise statute in question

here, that opinion further supports this Court’s belief that

the language of this state statute is not so unclear that a

state interpretation of that statute is necessary before this

Court can reach the federal constitutional issues presented

by plaintiffs’ complaint.

The defendants also suggest that the doctrine enunci-

ated by the Supreme Court in Younger v. Harris, supra,

dictates that this Court abstain in this case. In Younger,

the Court ruled that in the absence of exceptional circum-

stances creating a threat of irreparable injury both im-

mediate and great and amounting almost to bad faith har-

rassment, a federal court should not enjoin an ongoing

state criminal prosecution. While the Court in Younger

examined considerations of equity and comity that pre-

vented federal interference with state criminal prosecu-

tions, in later decisions the Supreme Court determined

that these considerations were inapplicable where state

criminal proceedings were merely threatened but not pend-

ing. In Steffel v. Thompson, supra, the Court determined

that a declaratory judgment was not precluded where state

criminal prosecutions were only threatened. The rationale

of Steffel was extended in Doran v. Salem Inn, Inc., 422

U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) where the

court upheld the granting of a preliminary injunction

where a state criminal statute was challenged and plain-

Al2

tiffs were not subject to criminal prosecutions in the state

court at the time the injunction was issued.

The Steffel and Doran decisions indicate that absten-

tion on the basis of Younger v. Harris would be inappro-

priate in this case since no state prosecution is presently

pending.

Because the Court can find no theory under which

abstention would be appropriate given the facts and cir-

cumstances of this case, defendants’ motion requesting the

Court to invoke the abstention doctrine is denied.

PRELIMINARY INJUNCTION ISSUE

A preliminary injunction may be issued only if the

moving party can satisfy either of the following require-

ments:

(1) probable success on the merits and possible

irreparable injury; or,

(2) sufficiently serious questions going to the

merits to make them a fair ground for litigation and

a balance of hardship tipping decidedly toward the

party requesting injunctive relief. Fennell v. Butler,

570 F.2d 263 (8th Cir. 1978).

After considering the evidence presented on January 3,

1979 by plaintiffs, the Court concludes that they have failed

to satisfy either of the above standards for the following

reasons:

Possible Irreparable Injury and Probable Success

On the Merits

It is clear that the type of irreparable injury suffi-

cient for obtaining a preliminary injunction must be more

than the cost, anxiety and inconvenience of having to

defend against a single criminal prosecution. Independent

Al3

Tape Merchant’s Assoc. v. Creamer, 346 F.Supp. 456, 459-

60 (M.D. Penn. 1972).

Plaintiffs, however, claim that they each have invested

more than $10,000 in their business and property and that

this investment and substantial profits therefrom would

be lost if the statute is enforced against them. (See,

Paragraph 8 of plaintiffs’ complaint.) If the challenged

statute merely prohibited the practices of massage parlors

which involved “sexual contact”, the Court would have

serious doubts as to whether plaintiffs had made a suffi-

cient showing of irreparable harm since they would be

free to continue operating their massage parlors for any

other legitimate purpose. However, §567.080 provides

that a building used for “sexual contact” for pay is a

public nuisance which the Attorney General, Circuit Attor-

ney, or Prosecuting Attorney may seek to enjoin. The

section further allows the Court to order that the premises

not be occupied for a period not to exceed one year. The

Court concludes that since a violation of the statute may

result in a closing of plaintiffs’ massage parlors for up

to one year, plaintiffs have satisfactorily demonstrated ir-

reparable injury.

To satisfy one standard for granting a preliminary

injunction, plaintiffs must also demonstrate a likelihood

of success on the merits of their constitutional challenges

to the statute. While the following analysis is not meant

to be a binding decision on the merits of the case, the

Court at the present time is not convinced that plaintiffs

could succeed on the merits of any of their constitutional

challenges to the statute.

Plaintiffs allege that §567.010(3) (c), $567.010(1) (b)

and $567.010(4) violate their rights to First Amendment

freedom of speech, freedom of association and their right

to privacy under the Ninth, First, Fourth, Fifth and Four-

Al4

teenth Amendments. Plaintiffs also allege that these par-

ticular sections violate the due process and equal protec-

tion clauses of the Fourteenth Amendment in that they

are too vague, overbroad, not related to legitimate govern-

ment interests and that plaintiffs are thereby denied the

right to employment and to earn a living.

$567.010 provides as follows:

567.010. Chapter definitions

As used in this chapter, the following terms mean:

(1) “Promoting prostitution”, a person “pro-

motes prostitution” if, acting other than as a prosti-

tute or a patron of a prostitute, he knowingly

(a) Causes or aids a person to commit or

engage in prostitution; or

(b) Procures or solicits patrons for prostitu-

tion; or

tution purposes; or

(d) Operates or assists in the operation of

a house of prostitution or a prostitution enterprise;

(e) Accepts or receives or agrees to accept

or receive something of value pursuant to an

agreement or understanding with any person

whereby he participates or is to participate in

proceeds of prostitution activity; or

(f) Engages in any conduct designed to insti-

tute, aid or facilitate an act or enterprise of pros-

titution;

Ald

(2) “Prostitution”, a person commits “prostitu-

tion” if he engages or offers or agrees to engage in

sexual conduct with another person in return for some-

thing of value to be received by the person or by

a third person;

(3) “Patronizing prostitution’, a person “pa-

tronizes prostitution” if

(a) Pursuant to a prior understanding, he

gives something of value to another person as

compensation for that person or a third person

having engaged in sexual conduct with him or

with another; or

(b) He gives or agrees to give something

of value to another person on an understanding

that in return therefor that person or a third person

will engage in sexual conduct with him or with

another; or

to engage in sexual conduct with him or with

another, or to secure a third person to engage

in sexual conduct with him or with another, in

return for something of value;

(4) “Sezual conduct” occurs when there is

(a) “Sexual intercourse” which means any

penetration, however slight, of the female sex

organ by the male sex organ, whether or not

an emission results; or

(b) “Deviate sexual intercourse” which

means any sexual act involving the genitals of

one person and the mouth, tongue or anus of

another person; or

Al6

touching, manual or otherwise, of the anus or

genitals of one person by another, done for the

purpose of arousing or gratifying sexual desire

of either party;

(5) “Something of value” means any money or

property, or any token, object or article exchangeable

for money or property.

First Amendment Issue

In United States v. Moses, 339 A.2d 46 (D.C. Ct. App.

1975), c.d. 49 L.Ed.2d 373, appellees, charged with soliciting

for prostitution in violation of the District of Columbia

Code, challenged the constitutionality of the solicitation

provision. The trial court held that the appellees’ offer

to engage in commercial sex was protected speech. In

reversing this ruling, the court of appeals explained:

[w]hat we are dealing with is a straightforward

business proposal which may be regulated under the

standards applicable to purely commercial advertis-

ing... Having determined the character of the speech

at issue, we next consider whether it is protected

by the First Amendment and, if so, to what extent.

We conclude that solicitation for prostitution is not

entitled to immunity under the First Amendment.

U.S. v. Moses, supra at 52-53.

Further, the Court of Appeals in Moses, supra, deter-

mined that as a classic example of commercial speech

this activity was subject to reasonable regulation like the

provision in question. On the basis of this reasoning which

the Court feels is applicable to the solicitation provisions

of this statute, the Court does not believe §567.010(1)

(b) and §567.010(3)(c) are in violation of the plaintiff’s

First Amendment rights.

Al7

Additionally, the Court does not believe that

$567.010(4) (c) violates any of plaintiffs’ rights to freedom

of association or to express their own lifestyle.

Other courts in considering massage ordinances have

ruled that the associational activities of owners of commer-

cial massage parlors are purely commercial and do not

come within the core protection of the right to association.

Bayside Enterprises, Inc. v. Carson, 450 F. Supp. 696 (M.D.

Fla. 1978). In Bayside, operators of adult entertain-

ments sought declaratory and injunctive relief alleging

the unconstitutionality of the city ordinance that regulated -

adult entertainment and services. While certain zoning

restrictions were found not to withstand constitutional

scrutiny, the Court upheld particular provisions regulating

adult massage parlors. The portion of the statute regulat-

ing massage parlors established recordkeeping require-

ments and prohibited massages of persons by individuals

of the opposite sex. While the Court recognizes signifi-

cant differences exist between those regulations and the

statute in question here, the Court believes that the court’s

evaluation of the plaintiffs’ First Amendment claims are

relevant. The Florida District Court found:

Furthermore to the extent that the plaintiff’s attack

on the Code’s massage-related provisions is grounded

upon any alleged infringement of First Amendment

rights of expression, that attack is frivolous. In this

context the Court can perceive no communicative char-

acteristics of any substance which would bring massage

parlors within the ambit of the First Amendment’s

free speecn clause. Bayside, supra at 710.

See also Brown v. Haner, 410 F. Supp. 399, 400 (W.D.

Va. 1976). Further, it should be noted the regulation

challenged does not prohibit plaintiffs from associating

Al8

but only prevent them from performing particular acts

of commercial sex for hire.

The Court does not believe that plaintiffs’ First

Amendment claims are wel! taken and has not been made

aware of any theory on which plaintiffs might succeed

on the merits of their First Amendment claim.

Right to Privacy

Supreme Court decisions have recognized a constitu-

tional right of privacy derived from certain ‘‘penumbras”

of the Bill of Rights and applicable to the states via the

Fourteenth Amendment for:

personal rights that can be deemed ‘fundamental’ or

‘implicit in the concept of ordered liberty’. . . This

privacy encompasses and protects the personal inti-

macies of the home, the family, marriage, motherhood,

procreation, and child rearing [citations omitted]

Paris Adult Theatre v. Slaton, 413 U.S. 49, 65-66, 93

S.Ct. 2628, 37 L.Ed.2d 446 (1973).

Appellants in Blake v. State, 344 A.2d 260 (S.Ct. Del.

1975) were challenging Delaware’s prostitution statute

which imposed a criminal penalty for individuals who

engaged or offered to engage in sexual conduct for a fee.

In support of the proposition that the prostitution statute

impinged on their rights to privacy the parties cited Roe

v. Wade, 410 U.S. 118, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973),

reh. denied, 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694;

Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.

2d 542 (1969); and Griswold v. Connecticut, 381 U.S. 479,

85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).

The Superior Court of Delaware pointed out that in

those cases the rights involved were so personal that they

were clearly fundamental, but concluded:

Alg

This court would be constrained by logic and common

sense from saying that those personal rights implicit

in those cases are the same or can be of the same

order as the public sale of sex and the human body.

Blake, supra, at 262.

The context in which the proscribed activity takes

place is important in determining the extent to which

the activity may be prohibited. “The more public the

context, the more permissible the control.” State v. Hicks,

360 A.2d 150, 152 (S.Ct. Del. 1976). This conclusion was

supported by the Supreme Court of Iowa in rejecting

a contention that Iowa’s prostitution law violated the right

to privacy as set forth in Griswold, supra. State v. Price,

237 N.W.2d 813 (S.Ct. Iowa 1976). In Price the Court

concluded that the right to privacy was not unqualified,

and that prostitution was not a constitutionally protected

activity. Because of the effect commercial sex may have

on other members of the community, the Court determined

that it may be regulated in situations where such regula-

tion would be subject to constitutional challenges if im-

posed on consenting adults engaging in sexual conduct

in the privacy of their home.

This Court does not believe that the sale of commercial

sex is a fundamentai right nor a right implicit in the

concept of ordered liberty. Additionally, the context in

which the activity regulated by $567.010(4)(c) occurs

is a public place of business and not the privacy of one’s

home. The Court has grave doubts as to whether plaintiffs

could ever be successful in challenging the statute on the

grounds that they have a protectible privacy interest.

Fourteenth Amendment

Plaintiffs argue that the solicitation provisions of the

statute violate the due process and equal protection clauses

of the Fourteenth Amendment on the following grounds:

A20

(1) the provisions are too vague;

(2) the provisions are overbroad; and,

(3) the provisions are not reasonably related to

the achievement of any legitimate government interest

and are an unreasonable exercise of the police power.

$567.010(4)(c) is alleged to violate the due process

clause in all of the above respects and additionally for

the reason that it denies plaintiffs the right to employment

and to obtain income from the ownership of property.

This section is also alleged to deny plaintiffs the equal

protection of the laws by prohibiting conduct which if

done for nothing would not be illegal. Additionally, plain-

tiffs urge that the law will be selectively enforced and

that it is unconstitutional in that it provides unequal

punishment for those who “patronize prostitution” and

those who “promote prostitution”.

Vagueness Issue

A person may not constitutionally be held “criminally

responsible for conduct which he could not reasonably

understand to be proscribed.” Rose v. Locke, 423 U.S.

48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975). Before a statute

can be found to be unconstitutionally vague within the

meaning of the Fourteenth Amendment, the Court must

find that the statute fails to inform a person of ordinary

intelligence of the conduct which is forbidden. Grayned

v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d

222, 227 (1972).

After reading the language of Chapter 567 R.S. Mo.,

the Court finds that this statute clearly sets forth the

conduct which is prohibited. The fact that plaintiffs claim

that particular provisions of this statute will apply to

certain practices of massage parlors, further indicates that

A21

the language is sufficiently clear to enable the average

individual to understand what conduct is illegal under

this statute—even prior to the time of its initial enforce-

ment.

Plaintiffs have been unable to demonstrate satisfacto-

rily to the Court any theory under which the statute might

be declared impermissibly broad at a trial on the merits.

Police Power Regulation

Plaintiffs strenuously argue that the challenged sec-

tions of the new statute are not reasonably related to

any legitimate government objective and are an unreason-

able exercise of the police power. Plaintiffs suggest that

the only purpose behind the prostitution statute was to

prohibit the spread of venereal disease. Defendants contend

that it is not possible for venereal disease to be spread

by the type of sexual contact defined by §$567.010(4) (c).

In support of this proposition, affidavits from Drs. Elliott

and Colom were offered into evidence at the hearing on

January 3, 1979 (Exhibits 3 and 4).

In examining the validity of the exercise of state’s

police power in enacting this statute, it is important to

determine what standard of review is to be applied. Where

a statute does not regulate nor affect fundamental rights

its constitutionality is judged on the basis of whether the

law has some rational relation with a legitimate govern-

mental interest. McGowan v. Maryland, 366 U.S. 420,

81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). Only where a chal-

lenged statute affects fundamental rights must the statute

be reviewed under the “compelling state interest’ test.

McGowan, supra; see Cory v. City of Dallas, 352 F. Supp.

977, 979 (N.D. Tx. 1972); and Caesar’s Health Club v.

St. Louis Co., supra, at 786. In applying the rational

basis test the exercise of the police power is presumed

A22

to be constitutionally valid. Bibb. v. Navajo Freight Lines,

359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959). The

Court does not believe that the sale of commercial sex

is a fundamental right the regulation of which must be

considered according to the compelling circumstances test.

It has long been recognized that it is a valid exercise

of the state’s police powers to regulate massage parlors

on the basis of the public health, safety and morality.

Cory, supra at 981. The same rationale has been utilized

to uphold state’s regulations of prostitution. See State

v. Blake, supra and State v. Hicks, supra. Plaintiffs have

placed considerable reliance on a December, 1977 decision

by the Family Court of New York, In Re P, 400 N.Y.S.2d

455 (1977) declaring the New York prostitution laws un-

constitutional. However, the trial courts of that state had

previously upheld the statute finding unequivocally that

the state has a legitimate interest in regulating the com-

mercialization of sex, and that there is a sufficient nexus

between prostitution statutes and legitimate legislative con-

cerns of public health, safety, commerce and morality to

preclude a court’s interference with such enactments.

People v. Costello, 395 N.Y.S.2d 139, 141-142 (S.Ct. Trial

Term June 1, 1977). There are no cases indicating that

the trial or appellate courts of New York have ever fol-

lowed the reasoning of the family court in In Re P.

In rejecting a challenge that the Delaware prostitution

statute was without a rational basis, the Court in State

v. Hicks, offered numerous suggestions as to why a state

might choose to regulate the activity. The factors enu-

merated included the following:

(1) the strain public marketing of sex may place

on the institution of marriage, (2) the possibility that

innocent citizens may be affronted by unwanted so-

licitation, and (3) the state’s concern over regulating

A23

the criminal manipulation that may surround the ac-

tivity of prostitution. State v. Hicks, supra at 152-

153.

In Caesar’s Health Club, supra at 787 the St. Louis Court

of Appeals concluded:

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.

The mere fact that the regulation of venereal disease

may not be the reason for prohibiting the conduct set

forth in §567.010(1)(b), $567.010(3) (c) and §567.010(4)

reasons for enacting the law. Therefore, the Court con-

cludes that it is unlikely that plaintiff could successfully

demonstrate that the statute in question was an unlawful

exercise of the state’s police power.

Constitutional Right to Employment

Plaintiffs argue that the statute denied them the right

to employment, to do business, to obtain income from

the ownership of property and from conducting business.

As plaintiffs point out, the Supreme Court has recognized:

the right to hold specific private employment and

to follow a chosen profession free from unreasonable

governmental interference comes within the ‘liberty’

and ‘property’ concepts of the Fifth Amendment.

Greene v. McElroy, 360 U.S. 474, 3 L.Ed.2d 1377 (1959).

This concept has been applied to state regulation through

the due process clause of the Fourteenth Amendment.

However, it is also clear that the states may regulate

and control businesses which the legislation determines

may threaten the public safety, welfare, and morals. An

A24

Illinois ordinance prohibiting massage parlors from provid-

ing customers with sexual massages was challenged as

infringing the plaintiffs’ fundamental right to work. The

Appellate Court of Illinois rejected this challenge on the

basis that the ordinance tended to preserve the health,

morals and safety of the citizens; and therefore determined:

massage establishments and those who give massages

may be licensed and regulated under the police power

of the State of Illinois and its municipalities without

contravening the due process rights of those who prac-

tice massage. Wes Ward Enterprises, Ltd. v. Andrews,

355 N.E.2d 131, 136 (App. Ct. Ill. 1976).

The Court does not believe that plaintiffs could success-

fully demonstrate the regulations challenged violate their

right to employment free of unreasonable government in-

terference.

Equal Protection

The remainder of plaintiffs’ challenges to this section

are based on claimed violations of the Equal Protection

clauses. Unreasonable classifications are alleged to have

resulted from the classifications which (1) prohibit conduct

if done for something of value which would be legal if

done for free, (2) will result in selective enforcement

of the laws, and (3) provide for different penalties between

promoters and patronizers of prostitution.

The Court can find nothing in the language of the

statute that would appear to promote selective enforcement

by law enforcement officials. It would be purely specula-

tive for the Court prior to the time any arrests or prosecu-

tions have taken place under the law to consider the ques-

tion of selective enforcement. This question has been

raised prematurely and would not appear to be an issue

A25

on which the Court could make any finding concerning

the likelihood of plaintiffs’ success on the merits at the

present time.

In the circumstances of this case, the plaintiffs’ equal

protection claims must be evaluated according to the stan-

dards set forth in McGowan v. Maryland:

Although no precise formula has been developed, the

Fourteenth Amendment permits the states a wide

scope of discretion in enacting laws which affect some

groups of citizens differently than others. The con-

stitutional safeguard is offended only if the classifica-

tion rests on grounds wholly irrelevant to the achieve-

ment of the State’s objective. State legislatures are

presumed to have acted within their constitutional

power despite the fact that, in practice, their laws

result in some inequality. A statutory discrimination

will not be set aside if any state of facts reasonably

may be conceived to justify it. McGowan, supra at

399.

In Blake v. State appellants had levied a number

of similar equal protection challenges against the state’s

prostitution statute including a contention that the penal-

ties levied against the seller were greater than the punish-

ment provided for other participants in the activity, and

thus were unconstitutional. The court concluded that this

was not unreasonable for:

The ‘seller’ is more strictly controlled and more se-

verely punished in any number of criminal statutes.

More importantly, however, there is a legitimate and

reasonable basis to conclude that curtailment of the

seller’s activities will reduce the incidence of criminal

activity in a multi-party sequentially related crime

situation. Blake, supra at 262.

A26

In this case plaintiffs challenge the penalty differential

between promoting and patronizing prostitution. This is

in effect a penalty difference between the buyer and

seller of the proscribed activity as in Blake. Like the

Delaware court, this Court believes that the state may

have legitimate reasons for imposing a greater penalty

against the promoter of proscribed services than the buyer.

Given the many legitimate reasons which might justify

such a differential, the Court does not believe that plain-

tiffs are likely to succeed on the merits of this claim.

Finally, plaintiffs allege a denial of equal protection

because conduct that is not prohibited becomes illegal if

done for money or something of value. Where funda-

mental rights are not involved, as in this case, the equal

protection clause does not deny government the power

to treat different classes in different ways, but only denies

government the power to accord different treatment to

persons placed into different classes on the basis of criteria

wholly unrelated to legitimate government objectives.

Conn. State Federation of Teachers v. Bd. of Ed. Members,

538 F.2d 471, 483 (2nd Cir. 1976). As previously pointed

out, significant distinctions can be drawn between regula-

tions directed at commercial sexual activity and regula-

tions directed towards individuals in the privacy of their

homes. The Court feels that there is a rational basis

for treating these two categories of individuals differently

and therefore, it is unlikely that plaintiffs will be able

to successfully argue that this statute violates the equal

protection clause of the Fourteenth Amendment.

A27

Title VII Claim

Plaintiffs’ complaint contains an allegation that the

statute prohibits bi-sexual massages in violation of Title

VII, 42 U.S.C. §2000(e). Nothing in the language of

the statute would appear to prohibit bi-sexual massages.

In contrast, the cases cited by plaintiffs on this point

involved interpretations of state statutes that clearly and

explicitly forbid bi-sexual massages. Even though the

Court can find no basis for accepting this interpretation

of the statute, assuming plaintiffs’ contention to be true,

the issue of whether that type of statute violates Title

VII has been decided by the Supreme Court. In Ruben-

stein v. Township of Cherry Hill, 417 U.S. 963, 94 S.Ct.

3165, 41 L.Ed.2d (1974), the Supreme Court of New Jersey

ruled that a municipal massage parlor licensing ordinance

barring operators from massaging persons of the opposite

sex constituted a reasonable exercise of the police power

and did not violate Title VII of the 1974 Civil Rights

Act nor the Fourteenth Amendment. On appeal to the

U.S. Supreme Court, the issues of whether the ordinance

violated Title VII or the equal protection and due process

clauses were raised. The Supreme Court dismissed the

appeal for want of a substantial federal question. See

42 L.W. 3637. Because the Court in Hicks v. Miranda,

422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), has

determined that this type of a dismissal is a binding adjudi-

cation on the merits, this Court would be foreclosed from

ruling in plaintiffs’ favor on the Title VII claim if it

were in fact an issue in this case.

For all of the above reasons, the Court finds that

plaintiffs did not demonstrate a likelihood of success on

the merits of their constitutional challenge. However, the

Court must also consider the alternative test for granting

a preliminary injunction.

A28

SUFFICIENTLY SERIOUS QUESTION GOING TO

THE MERITS AND BALANCING OF THE

HARDSHIPS

The Court may also grant a preliminary injunction

if the plaintiffs can show a sufficiently serious question

going to the merits to make them a fair ground for litiga-

tion and a balance of the hardship tipping toward the

party requesting preliminary relief. For the detailed rea-

sons set forth above, the Court finds that plaintiffs’ con-

stitutional allegations do not contain sufficiently serious

questions going to the merits to make them fair ground

for litigation. Research by the Court has indicated that

the majority of the case law is clearly contrary to plain-

tiffs’ positions.

Even if it could be said that plaintiffs had made this

showing, the Court would have to find that the balance

of the hardships does not tip toward plaintiffs. Plaintiffs

did not demonstrate the extent to which their business

involved the type of sexual massage prohibited by

§567.010(4)(c). In the absence of any such showing, it

would not appear an unreasonable hardship for plaintiffs

to continue operating their massage parlors but temporarily

discontinue the practices forbidden by Chapter 567, R.S.

Mo. until a decision on the merits can be reached.

For all of the reasons outlined above, the Court finds

that plaintiffs did not successfully demonstrate their en-

titlement to a preliminary injunction under either of the

tests established by the Eighth Circuit in Fennell v. Butler,

supra. Consequently, it is hereby

ORDERED that plaintiffs’ motion for a preliminary

injunction was denied on January 9, 1979.

/s/ Russell G. Clark

Russell G. Clark, Judge

United States District Court

Dated: January 12, 1979

A29

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 79-1079.

September Term, 1978

J.B.K., Inc., etc., et al,

Appellants,

vs.

Norman Caron, et al,

Appellees.

Appeal from the United States

District Court for the

Western District of Missouri.

The Court having considered petition for rehearing

en banc filed by counsel for appellants and, being fully

advised in the premises, it is ordered that the petition

for rehearing en banc be, and it is hereby, denied.

Considering the petition for rehearing en banc as a

petition for rehearing, it is ordered that the petition for

rehearing also be, and it is hereby, denied.

July 23, 1979

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.