Opposition — J. B. K., Inc. v. Caron

Supreme Court brief1980

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Text

+ NOY 26 1979 \

Paar RODAK, JR., ii

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-655

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

Petitioners,

VS.

NORMAN CARON, et al.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF OF RESPONDENTS RALPH MARTIN,

ROBERT RENNAU, NORMAN CARON AND

JAMES CAMPBELL IN OPPOSITION

RUSSELL D. JACOBSON

STEPHEN F.. VOLEK

R. JAY INGRAHAM

VALARIE ZEECK

2d Fl., Jackson County

Courthouse

415 East 12th Street

Kansas City, Missouri 64106

Attorneys for Respondents

ALLEN PuRvIs Ralph Martin and Robert

JOHN Dops Rennau

20th Fl., Mercantile Bank MANFRED MAIER

Building 5th Fl., Police Headquarters

1101 Walnut 1125 Locust

Kansas City, Missouri 64106 Kansas City, Missouri 64106

Attorneys for Respondent Attorney for Respondent

John Campbell Norman Caron

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

NINN IIS 5 ssir ciss eseseausenesaargioduntetenianniadcniesconsegetel 2

SUNN Fcc. 1 casunts teuntncsanssorsoeeanmneneitiorsioin aban iaaderdetenl 2

I APE 5s cscissdGslins pvinmmvacasoonaaetenereuenade’ 2

Constitutional and Statutory Provisions Involved ........ 3

Sen CNN INE TUTIIINL 1 secanvarsv ovvaciesbunccenssiionsiesrs ulovoces 4

Reasons for Denying Writ or Granting Summary Af-

I a laa ea an a ac ego 9

The Equal Protection Claims ............ccccccecseceeeseeeeeeees 23

RI siscrcniteccersosevevecssins nia Pin SARE A Pa ADRS 28

Appendix—

Appendix A—Constitutional and Statutory Pro-

MIN IIE 55 ons 1 -nsxitstdscdeccudeoeenabearsmocaaadocemanatee 31

Appendix B—Excerpts From Affidavit Introduced

by Petitions in District Court .........csssssssssssssssess 37

Appendix C—Questions Presented to the Supreme

Court in Prior Cases Involving Laws Prohibiting

Massage Parlor Practices ...ccccccsscscssccersrsersscrcscecsores 40

Table of Authorities

CASES

Bayside Enterprises, Inc. v. Carson (M.D, Fla. 1978)

a IE IIT ses sechovssesicesnanesinaietcbecstonsadachadiensbetedtanes 15, 22, 26

Blake v. De. wvare (Del. Supr. Ct. 1975) 344 A.2d 260,

aff’d., 373 A.2d 205 (Del.Sup.Ct. 1977) ............02. 15, 22, 24

Brown v. Brannon (M.D. N.C, 1975) 399 F. Supp. 133,

aff'd, 535 F.2d 1249 (C.A. 4, 1976) ..........scsserserees 15, 22, 28

Brown v. Haner (W.D. Va, 1976) 410 F. Supp. 399 ....15, 22,

26, 28

Caesar’s Health Club v, St, Louis County (Mo. App.

1978) 565 S.W.2d 783 .........ceccceceseees 14, 15, 19, 22, 23, 26, 28

California v, LaRue (1972) 409 U.S. 109 ....11, 12, 15, 22, 25,

26, 28

Cianciolo v, Members of City Council (E.D, Tenn,

SPO) OTe By WMDY, CUD scccesiststcecnccstrasptasemmmiiiaabanahaae 16, 22

City of Indianapolis v, Wright (Ind, 1978) 371 N.E.2d

1298, dism'd, 58 L.Ed.2d 97 (1978) ...... 12, 13, 15, 22, 25, 28

Delaware v. Hicks (Del. Supr. Ct. 1976) 360 A.2d 150,

aff’d,, 373 A.2d 205 (Del.Sup.Ct., 1977) ........ 15, 19, 22, 24

Doe v. Commonwealth's Attorney for City of Rich-

mond (E.D, Va, 1975) 403 F. Supp, 1199, aff'd, 425

EAA Ie COED eccniscrcndtecvcievh sGacccueueceaannaecunesnal 16-17, 22, 25

Flemming v. Nestor (1960) 363 U.S, 608 oo... 19, 22

Floyd v, Texas (Tex, Crim, App, 1978) 575 S.W.2d 21,

app. dism’d for want of sub. federal question, 61

SAE TT LATED cclsceticidh Nocccucaeablemeuoatastencuaae 15, 22

Ginzberg v. New York (1968) 390 U.S. 629 ............ 20, 22, 25

Goldblatt v. Town of Hempstead (1962) 369 U.S, 590

saidaiii dp bdeaipecaashiidaiahbonudiieiisdudhicdadageniiicds ac: aimee eaters tan 10, 22

Harris v, U.S, (D.C, App. 1974) 315 A.2d 569 .........00.0... 28

Hart Health Studio v, Salt Lake County (Utah 1978)

Pe ee UT scsacnschiccipicdocdseinaiinasweniiiaendatscameakantameaae 16, 22

Hicks v. Miranda (1975) 422 U.S. 322 ....cccccccesceeeseee. 12, 22

SEOTUO OCs CARRS): BE Wee GD wisscincekeéescosnvicatuceccotesnte 16, 22

Kisley v. City of Falls Church (Va. 1972) 187 S.E.2d

168, dism’d, 409 U.S. 907 (1972) ........ 12, 13, 14, 15, 22, 23,

25, 28

Landau v. Fording (1967) 388 U.S, 456 ooo... cceceeeees 29

McGinnis v. Royster (1973) 410 U.S, 263 .00000000.0.......20, 22

McGowan v. Maryland (1961) 366 U.S, 420 ....10, 11, 22, 23

Miller v, California (1973) 413 U.S, 15 ...000.. 11, 22, 25, 26

New Motor Vehicle Bd, v. Orrin W. Fox Co. (1977)

WE WIENS) BINED. saccsssadadescdavdcnccceescaidacaisuscpuccnacanac eee 29

—

Ilr

Palmer v, Thompson (1971) 403 U.S. 217 o..ccccccoe---- 20, 22

Paris Adult Theatre I v. Slayton (1973) 413 U.S. 49 ....9, 11

12, 15, 18, 20, 21, 22, 25, 26, 27, 28

People v. Block (1972) 71 Misc.2d 714, 337 N.Y.S.2d

a ooo. cccsastnmennonceeneneveseccscccccece 15, 22

People v. Costello (1977) 9C Misc.2d 431, 395 N.Y.S.

I 15, 22, 23

People v. Smith (1973) 44 N.Y.2d 613, 378 N.E.2d

Neen ac asennsseoenesseeceseccencere 15, 22

Railway Express Agency v. New York (1949) 336 U.S.

Neen ee ee sic cesnecantasemansnscesessensecccesee 24

Ringer v, State (Tex. Crim. App. 1979) 577 S.W.2d

I ESS 15, 22

Rosado v. Wyman (1970) 397 U.S. 397 ............--.-.-20---- 19, 22

Rose v. Locke (1975) 423 U.S. 48 .00000. 12, 17, 22

Roth v. United States/Alberts v. California (1957) 354

BE ete iaddeneeicnnsnn ss 11, 12, 15, 20, 21, 22, 25, 26, 28

Rubenstein v, Cherry Hill (New Jersey 1974) 417 U.S.

ERE alee ee ee 12, 13, 14, 15, 22, 25, 28

Smith v, Keator (N.C. 1974) 206 S.E.2d 203, dism’d,

419 U.S. 1043 (1974) .....000 12, 13, 14, 15, 22, 25, 28

Stanley v. Georgia (1969) 394 U.S. 557 ................ 11, 22, 27

Stanley v, Georgia (1969) 394 U.S. 557 ............ 11, 14, 22, 27

State v. Crawford (Mo. 1972) 478 S.W.2d 314, aff'd,

ls sansscasaanesanan-canscccees 17, 22

State v. Kayser (Mo. App. 1977) 552 S.W.2d 27 ............ 4, 22

Thompson v, City of Huntsville (Ala. App. 1976) 329

So.2d 664, cert. den., 329 So.2d 666 (Ala. 1976) ........ 15, 22

Tomlinson v. Mayor & Aldermen (C.A. 5, 1976) 534

SSS EE 15, 22

United States v. Carolene Products Co. (1938) 304

if Sb) ene DE cladlitestiinabeconceccanovoxnnseasessseccsneace- 10, 22

United Health Clubs of Amer. v. Strom (S.C. 1976)

CE aw I ei occa tirciireaca calcd insdenctamnbesDeinatitede 15, 22

U. S. v. McKean (D.C. App. 1975) 338 A.2d 439 ............ 28

U. S. v. Moses (D.C. App. 1975) 339 A.2d 46 ................ 26, 27

U.S. v. O’Brien (1968) 391 U.S. 367 ........... iran isneades 20, 22

Fas DIN CT) Re UT aivnscencrcscesiissscsctiwsteccrnnss 28

U. S. ©. Retest (AGT1) GOB U.S. BGI... cccccceceecensceceessssens 25, 28

WOT We TEOND, GN TE. TI wissen iscenencnssercsscsececvecscerveecens 25, 26

Whalen v. Roe (1977) 429 U.S. 589 2... eeeeeeeee 20

Williamson v. Lee Optical Co. (1955) 348 U.S. 483 ........ 9, 22

STATUTES, CONSTITUTIONAL PROVISIONS AND

OTHER AUTHORITIES

“Comments” section, Model Penal Code § 207.12, Tenta-

tive Draft on “Prostitution and Related Offenses”

SPIN < sien caediccsanea lash cueadaehpaleanetdigeals tealahckessdsidehidmntteicdaslaasoodb. 7,18

Constitution of the United States—

PN oe ae ee etn 3, 25, 26

SRST ee mR REE piace deere ne OEM 3

Amendment XIV, Section 1.0.00... 3, 20, 22, 28

i I acs receicsrtasnietn pesca paeseccetncerciaes 3

Sa i ee 3

Revised Statutes of Missouri (1979)—

ME ieietadetialeabpricsineindeded egiunhadeddincgpnctdapioatnbioa-coteadisncone 9, 26

SS GG7.020 through GET.100 once... 3, 4

Sp SET a Maisnrcarintieassthiavdcicnakedguionspancsiiansscccbasiasdeoccucees 5

Neosat berccscesempactinciaptest we ectsuden comeeces 6

NII eet isin sdatgtandanongrercteaeenntnahcicdconusconocecs 5

hr IND Suleset idee acetal camels eateseicceotaeaats 11

NUR hla areresaaniarenc taste nian cae ase: 5

§ 567.010(3) (c)

5 GO7.O2064) (= (0) anne enna naacncenncncannanecncncccsccvecsecennecore 5, 12

eee eee ae a eee 5

No cteacectieiesscdnnoeiodan 5

Ne csnsancuscepiulnsvesieaapnienastensononsnncomon 5, 23

re item Cran ner 5, 12

Mg ENR aa ae oe eae IE 23

a cseslasnien ciioon ate 22

$$ 567.050-567.070 ....-ceceesseccecscscsscessseceersssssseeeseeeeeee 5, 12, 23

“ES ag RCE en enter Senne une pee 5

“NE ae SS a oo vO ROE eS OE 5

Public Law 95-225 [6.1585]; Feb. 6, 1978 .....cccs.. 16, 25

18 U.S.C. §§ 2251, 2252, 2253 and 2423 on. ceececcccsssssseee 25

SO UE, EG, GUI ii fac sccsiecsspessncsacensronsncoveccce 16

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-655

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

Petitioners,

vs.

NORMAN CARON, et al.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CourT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF OF RESPONDENTS RALPH MARTIN,

ROBERT RENNAU, NORMAN CARON AND

JAMES CAMPBELL IN OPPOSITION

Respondents Ralph Martin and Robert Rennau, are

respectively Prosecuting Attorney and Sheriff of Jackson

County, Missouri, respondent Norman Caron is Chief of

Police of Kansas City, Missouri, and respondent John

Campbell is Chief of Police of Grandview, Missouri, both

municipalities located within Jackson County, Missouri.

They respectfully request this Court to either deny the

petition for writ of certiorari, seeking review of the Eighth

Circuit’s opinion in this case, or to grant certiorari and

summarily affirm that opinion. The opinion is reported

at 600 F.2d 710.

OPINIONS BELOW

Respondents adopt petitioners’ statement as to opinions

below.

JURISDICTION

Respondents adopt petitioners’ statement as to jurisdic-

tion.

QUESTIONS PRESENTED

A group of massage parlor operators, who engage in

masturbation of their patrons’ genitalia for hire, have by

way of an injunction/declaratory judgment action in the

Federal District Court challenged the facial constitutional-

ity of state statutes proscribing such conduct as a form

of prostitution. These statutes do not prohibit persons

from conducting a massage business, but only forbid com-

mercialized masturbatory activity. The massage operators

alleged that the state cannot proscribe this type of com-

mercial sexual activity under its police power because

such regulation infringes upon the operators’ rights of free-

dom of speech and expression, violates rights of privacy,

causes gender-based discrimination, interferes with rights

of contract, is unconstitutionally vague and overbroad, and

so forth, and also contended that the state had no right

under the police power to prohibit prostitution and

related commercial sexual exploitation. The constitutional

challenge to the new statutes was made in the District

Court by means of petitioners’ request for a temporary

restraining order, which that Court denied and in doing

so made a declaration of the facial constitutionality of

the laws, which the Eighth Circuit sustained, both by

written opinions. These respondent law enforcement of-

ficials state that the questions presented are the following:

I. Whether the states under their police power can

lawfully proscribe such commercialized sexual activity as

prostitution, including commercialized masturbatory mas-

sage?

II. Whether the statutory provisions are facially con-

stitutional against the allegations that they violate the

rights of the massage parlor operators in such areas as

freedom of speech and expression, privacy, contain unrea-

sonable classifications, are gender-discriminatory, are for

unlawful purpose, and so on?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves: Article I, Sections 9 & 10; Amend-

ment I, Amendment IX and Amendment XIV, Section 1

of the Constitution of the United States; and Sections

567.010 through 567.100, Revised Statutes of Missouri

(1979) (Missouri Criminal Code, Laws of Missouri, 1977,

p. 688, S.B. No. 60, Section 1, eff. January 1, 1979). The

pertinent portions thereof are set forth in Appendix A

to this opposing brief.

STATEMENT OF THE CASE

Operators of several massage parlors, who for a fee

indulge their patrons in anal or genitalia masturbatory mas-

sage, or as a Missouri appellate court terms it ‘‘commer-

cialized masturbation” (State v. Kayser (Mo. App. 1977)

002 S.W.2d 27, fn 3), have challenged state statutory

provisions in the Federal District Court which proscribe

prostitution, and define that commercialized sexual activity

as including that form of massage. Recitals by petitioners

(Pet., Statement, 10-11) about the procedural events in

the District Court is essentially correct, and adopted by re-

spondents. At the hearing before the District Court on

January 3, 1979 the operators presented, over objection

of respondents, an oral summary of statements made by

two Missouri legislators as to the general process of enact-

ing laws by the state legislature (i.e., General Assembly )

and as to this particular legislation. The operators also

presented, over objection, an affidavit with attachments

by a member of a non-legislative committee that helped

draft a new criminal code, which contained provisions

dealing with prostitution and related offenses, which are

the subject of the operators’ challenge here.’

Statutory Provisions. The challenged statutes are con-

tained in Chapter 567 (full text in Appendix A) Revised

Statutes of Missouri, a part of a general revision of the

state’s criminal laws in 1977 by the General Assembly.

The revisions became effective on January 1, 1979. Sec-

1. A second action styled “New Era Health Studio, Inc. et al.

vs. Ralph C. Martin. Prosecuting Attorney, et al.” was filed

shortly after this cause in the U.S. District Court for the Western

District of Missouri (Civil Action No. 78-1039-CV-W-3) against

two of these respondents (Martin and Rennau) and against some

other defendants in this action, which raises the same challenges

to the statutes made by petitioner massage operators. That case

is presently on motions to dismiss, awaiting the action of this

court.

tions 567.010 through 567.100 deal with prostitution and

related offenses. They make the performance of an act

of prostitution a criminal offense, § 567.020, which is

committed by one who engages or offers or agrees to

engage in sexual conduct with another in return for some-

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

person, § 567.010(2). The various offenses within the

general rubric of “prostitution” include prostitution itself,

patronizing a prostitute, and promoting prostitution,

§§ 567.020, 567.030, 567.050-567.070. “Promoting prostitu-

tion”, § 567.010(1), “patronizing prostitution”, § 567.010(3),

and “something of value”, § 567.010(5), are all defined,

along with other terms used therein. Houses of prostitution

are declared public nuisances, with authority vested in

the state attorney general and the county prosecutors to

bring abatement suits against such institutions, §§ 567.080

and 567.100.

The definition of the act of prostitution or sexual

conduct is defined in § 567.010(4) (a)-(c) to include

three types of prohibited commercialized sexual activity:

(a) sexual intercourse; (b) deviate sexual intercourse; and

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

by another, done for the purpose of arousing or gratifying

sexual desire of either party”.

Operators’ Contentions Before the District Court. The

operators alleged in their complaint that after January

1, 1979 they would or might be prosecuted by the respon-

dents under the new laws because their businesses involved

the manual touching of the anus or genitals of one person

by another, done for the purpose of arousing or gratifying

sexual desire of either party for something of value, which

the operators describe as conduct prohibited by Sections

567.010-567.030, 567.080 and 567.100, RSMo (Complaint

12/14/78, Par. 5).° They further alleged that they would

be subject to prosecution for solicitation for prostitution

under Secton 567.010(3) (c) and 567.010(1) (b) (Com-

plaint, 12/14/78, Par. 7). They then charged that any

such prosecution under these laws would violate a plethora

of constitutional provisions and guarantees (Complaint,

12/14/78, Par. 19-29).

Operators’ Evidence on Legislative History. The op-

erators’ attorney gave an oral narrative of statements made

prior to the hearing by two state legislators, Representa-

tive O’Toole and Senator Caskey, both chairmen of judici-

ary committees of their respective chambers, which con-

sidered the revision of the criminal code (Tr. 26-33). Both

related that the only legislative history on the enactments

here were the contents of the House and Senate journals,

which would include the bill and its amendments, the

votes thereon, the conference committee of both houses

on the bill and the committee report, and the passage of

the conference committee report (Tr. 27, 31), and that

the legislative committee reports only recommended pas-

sage without comment (Tr. 31). The testimony of Mr.

Hunvald (infra) was not a part of this legislative history,

and Representative O’Toole related that any testimony by

Mr. Hunvald before a committee was not required to be

considered by any member of the committee or any mem-

ber of the House on the legislation (Tr. 28). Mr. O’Toole

stated that he did not recall any discussion in the committee

or on the floor about venereal disease in regard to this

legislation (Tr. 29). Both legislators recalled (Tr. 33)

2. Because of the lack of a formal record respondents will

use the same record references as were employed before the

Court of Appeals. Petitioners proceeded below on the original

designated record. Reference will therefore be made to the

transcript of the hearing of January 3, 1979 in the District Court

(61 pages) as “Tr. ........ ”, and in the case of documents by their

title and date of filing: “Complaint, 12/14/78, Par. ui

that the laws were aimed at certain practices of massage

parlors, but were not designed to close down massage

parlors “per se”. No other evidence on the purpose of

the legislation was given by the legislators other than that

outlined above.

The operators also introduced an affidavit with attach-

ments from a Mr. Hunvald, who was a member of a non-

legislative ad hoc committee that drafted a proposed crim-

inal code which was submitted to the General Assembly

(Tr. 7-8, Affidavit 1/3/79). Mr. Hunvald was not a mem-

ber of the legislature nor a staff member of any of the

legislative committees. His affidavit (Tr. 10-11, Hunvald

Affidavit, Par. 7, p. 3) included the “CComments” section

from the Model Penal Code § 207.12, Tentative Draft on

“Prostitution and Related Offenses” 1959, which he stated

(Affidavit, Par. 7) has been relied upon by the drafting

committee.

Hunvald stated that in considering the prostitution of-

fenses the committee had basically followed the approach

taken by the Model Penal Code and the New York Penal

Codes, the latter largely based upon the former, and that

the committee also followed the Comments that were part

of the Code’s Tentative Draft on the subject (Affidavit,

supra). These comments were attached to the Hunvald

affidavit, and set down a number of reasons and purposes

for enacting legislation to proscribe prostitution and re-

lated commercialized sexual activities, in the following

language:

“COMMENTS

“Section 207.12. Prostitution and Related Offenses

“Although prostitution appears to respond to a

widespread demand, and despite indications that a sub-

stantial proportion of prostitutes are victims of social

and psychic conditions beyond their control, most

students of the problem favor penal repression of com-

mercialized sex. Religious and moral ideas undoubtedly

are the main force behind the demand for repression;

but utilitarian arguments are also available. Prostitu-

tion is an important source of venereal disease, al-

though some contend that the ‘amateurs’ to whom men

turn in lieu of prostitutes present a greater danger in

this respect. It has been observed that prostitution is

a source of profit and power for criminal groups who

commonly combine it with illicit trade in drugs and

liquor, illegal gambling and even robbery and ex-

tortion, Prostitution is also a source of corrupt in-

fluence on government and law enforcement machin-

ery. Its promoters are willing and able to pay for

police protection; and unscrupulous officials and poli-

ticians find them an easy mark for extortion. Finally,

some view prostitution as a significant factor in social

disorganization, encouraging sex delinquency and un-

dermining marriage, the home, and individual char-

acter,

“2. Sexual Activity. This term as defined in Sub-

section (6) covers not only sexual intercourse but also

other lewd acts. Some existing laws confine them-

selves to offering or receiving the body for ‘inter-

course.’ Since commercial prostitution offers and

even features abnormal forms of sexual gratification, it

is important to include this. Male as well s female

prostitution is covered,” (Text from Appendix B here-

in).

Evidence As to Possible Enforcement Action. No evi-

dence was offered at the hearing by the operators of any

threat of prosecution by any of these respondents. Re-

spondents Martin and Rennau filed an affidavit with the

Eighth Circuit (March 23, 1979) denying any present plans

to prosecute these operators under Chapter 567, RSMo, in

response to a request by the operators for injunctive relief

from the Court of Appeals pending the outcome of that

appeal, which affidavit was not controverted.

REASONS FOR DENYING WRIT OR GRANTING

SUMMARY AFFIRMATION

Despite the efforts of the operators in their petition

here to avoid the fundamentals governing judicial consid-

eration of legislation regulating commercialized sexual ac-

tivity designed to appeal to the erotic interests, decisions

such as Paris Adult Theatre I v. Slaton (1973) 413 U.S.

49, point out that in reviewing such enactments the proper

course for the courts is to recognize that a state legislature

can do whatever it sees fit to do unless restrained by

some express prohibition in the Constitution and that the

courts should be careful not to extend such prohibitions

beyond their obvious meaning by reading into them conten-

tions of public policy that a particular court may happen

to entertain. 413 U.S. at 60, and fn 11 (1973). In this

vein, Paris Adult Theatre noted that state statute books

were replete with constitutionally unchallenged laws

against such subjects as prostitution, suicide, voluntary

self-mutilation, bare fist prize fighting, duels, bigamy,

adultery, fornication, “white slavery”, billiard halls, gam-

bling, bear baiting, cock fights, and so on, and that “few

today seriously claim” that such laws violate the Constitu-

tion. 413 U.S. at 68, fn 15. As the courts have re-

peatedly said, the remedy for laws thought to be unwise,

improvident, and out of harmony with a particular school

of thought is at the polls and not the courts, Williamson

v. Lee Optical Co, (1955) 348 U.S. 483, 488.

The exercise of police power is presumed to be con-

stitutionally valid, the presumption of reasonableness being

on the side of the police power. Persons challenging laws

on grounds that they are unreasonable exercises of the

police power have the burden of showing such. Debatable

questions as to this reasonableness are for the legislature

and not the courts. Goldblatt v. Town of Hempstead

(1962) 369 U.S. 590, 595-596; McGowan v. Maryland (1961)

366 U.S. 420, 425-426, 534. In judging statutory validity,

the court’s search is not for a specific constitutional authori-

zation to allow or uphold such a law, but, rather, the

court must accord the law the full benefit of the presump-

tion of constitutionality which is a basic postulate of con-

stitutional adjudication, and must find clear incompatibility

with the U.S. Constitution to invalidate the challenged

law. New York v. O'Neill (1959) 359 U.S. 1, 6. Police

power will be sustained if any state of facts either known

or which could be reasonably assumed affords support

for it. Goldblatt v. Town of Hempstead, supra; United

States v. Carolene Products Co. (1938) 304 U.S. 144, 152.

The state is not required to produce a record of testi-

mony or evidence to support a statute’s validity, McGowan

v. Maryland (1961) 366 U.S. 420, 425-6; Goldblatt v. Town

of Hempstead, supra. As stated in United States v, Carolene

Products Co., supra:

‘. ,, the existence of facts supporting the legislative

judgment is to be presumed, for regulatory legislation

affecting ordinary commercial transactions is not to

be pronounced unconstitutional unless in the light of

facts made known or generally assumed it is of such

a character as to preclude the assumption that it rests

on some rational basis within the knowledge and ex-

perience of the legislature.”

A state’s determination must be given every fair presump-

tion of a reasonable support in fact, McGowan v. Maryland,

supra at 534.

In the landmark cases of Roth v. United States/

Alberts v. California, Justice Harlan wrote that “[s]ince

the domain of sexual morality is preeminently a matter

of State concern, the Court should be slow to interfere

with state legislation calculated to protect that morality.”

354 U.S. 476, 502 (1957). Furthermore that from at least

Roth on, this Court has clearly and consistently held that

no fundamental “rights” exist free from state regulation

under the police power in the field of commercial exploita-

tion of sexual conduct appealing to the erotic interests

of the purveyors’ customers or patrons, Roth v. United

States/Alberts v. California (1957) 354 U.S. 476, 495-496

(hereafter Roth); also see Paris Adult Theatre I v.

Slaton, supra at 54, 57-60, 61, 65-68, fn 15; California v.

LaRue (1972) 409 U.S. 109; Stanley v. Georgia (1969) 394

U.S. 557, 560-561 and fn 6, 563-564, 567-568; Miller v. Cali-

fornia (1973) 413 U.S. 15, 35. In California v. LaRue the

Court held that a state under its police power could lawfully

enact a liquor regulation to forbid such conduct in bars

as performing real or simulated acts of masturbation, sex-

ual intercourse, sodomy, oral copulation or any sexual

acts prohibited by law, and any actual or simulated touch-

ing, caressing or fondling of the anus or genitals 409

U.S. at 114-115.

Again the state statutes challenged here define prosti-

tution as engaging or offering to engage in sexual conduct

in return for something of value (i.e., money or property),

Section 567.010(2), (5). Sexual conduct includes not

only sexual intercourse and deviate sexual intercourse,

but also embraces “sexual contact”, meaning the “touching,

manual or otherwise, of the anus or genitals” which is

“done for the purpose of arousing or gratifying sexual

desire”, 567.010(4) (a)-(c) (emphasis supplied). Accord-

ing to the operators’ verified pleadings in this cause they are

engaged in this type of conduct for hire. Unlike earlier

laws under the new statutory scheme not only are prostitu-

tion (567.020) and promoting prostitution (567.050-567.070)

deemed offenses, but so is patronizing a_ prostitute

(567.030). Nowhere do these statutes prohibit a person

from carrying on a regular massage business, but rather

only forbid masturbatory massage as well as sexual inter-

course. The statutes demonstrate their purpose, namely

to regulate the commercial exploitation of sexual conduct

appealing to the erotic nature, which is clearly an allowable

purpose under such decisions as Roth, Paris Adult Theatre,

California v. LaRue, and those cited hereafter.

Massage parlors are hardly unknown to the Court.

Between 1972 and 1978 four appeals were dismissed here

for want of substantial federal questions, all of which

involved state court affirmations of a variety of local or-

dinances prohibiting various types of activity in massage

parlors including massage of persons of one gender by

persons of another, where female attendants massaged

“every part of the [male patrons’] body” and the mas-

saging of patrons’ genitalia. See Kisley v. City of Falls

Church (Va. 1972) 187 S.E.2d 168, dism’d, 409 U.S. 907

(1972); Rubenstein v. Cherry Hill (New Jersey 1974) 417

U.S. 963 (1974); Smith v. Keator (N.C. 1974) 206 S.E.2d 203,

dism’d, 419 U.S. 1043 (1974); and City of Indianapolis v.

Wright (Ind. 1978) 371 N.E.2d 1298, dism’d, 58 L.Ed.2d 97

(1978). Such dismissals act, of course, as an adjudication

on the merits, e.g. see Hicks v. Miranda (1975) 422 U.S. 322,

343-345; Rose v. Locke (1975) 423 U.S. 48, 51.

In Kisley the evidence showed that the female atten-

dants would massage “every part of the male patrons’

bodies”, essentially the problem presented here. On appeal

the operators argued that the ordinance prohibiting such

service rendered to their customers violated the Due

Process and Equal Protection clauses by arbitrarily in-

terfering with the operators’ legitimate occupation and

constituted an unreasonable exercise of police power (see

summary of 72-189, Appendix C), but this Court dismissed.

In Rubenstein the operators contended that the prohibitions

against certain forms of massage activity affected the oper-

ators’ fundamental right to operate a legitimate business

and involved “suspect eriteria’”’, i.e., gender (see the opera-

tors’ Jurisdictional Statement filed in this Court, Appendix

C), but that appeal was nevertheless dismissed. Smith

raised many of the same contentions, which are all identical

in substance to those raised throughout this cause from

the District Court on (see Appendix C). The question

here is essentially the same as in those earlier cases, namely

whether a specific type of massage activity can be lawfully

prohibited under the police power, and in Kisley it is

clear that this activity involved the same t:7pe of conduct

questioned here, that is masturbatory massage.

In 1978 this Court dismissed an appeal by massage

parlor operators of an Indiana Supreme Court decision

which upheld a city-county ordinance prohibiting massage

therapists from administering massage to persons of the

opposite sex, and from “touching the sexual or genital

area of any person or from performing, offering or agreeing

to perform any act which would require the touching

of the patron’s genitals” City of Indianapolis v. Wright

(Ind. 1978) 371 N.E.2d 1298, 1299, app. dism’d, 58 L.Ed.2d

97 (1978). The operators contended that the ordinance

violated due process of law by depriving the massage

therapists of a fundamental right to earn a livelihood,

unconstitutionally discriminated on the basis of gender,

and created an unconstitutional irrebuttable presumption

that opposite sex massages lead to illicit sexual relations,

but the Indiana court rejected these claims in the light

of the Kisley, Rubenstein, and Smith, and other decisions

on the question, see 371 N.E.2d at 1300-1301. On appeal

the operators raised questions as to whether the state

court properly ruled that the ordinance violated due pro-

cess or equal protection; wrongfully prohibited employees

from treating members of the opposite sex in violation

of the ordinance engaged in a conclusive presumption that

massage will cause social and moral problems and lead

to illicit and illegal sexual activities; and so forth (see

summary of No. 78-73 in Appendix C).

In 1978 the Court also denied a certiorari petition in

Caesar’s Health Club v. St. Louis County (Mo. App. 1978)

565 S.W.2d 783, where massage operators sought review of

their arguments that the trial court’s failure to require,

and the failure of the county to show a compelling state in-

terest to justify a challenged ordinance, deprived the op-

erators of rights guaranteed them by the Constitution; that

the ordinance violated the right of privacy; and violated the

Due Process clause by reason of vagueness and overbreadth

(see summary No. 78-420, Appendix C). The ordinance

challenged in Caesar’s Health Club had been enacted by a

Missouri county and was almost a literal copy of the stat-

utes challenged here, see text of ordinance at 565 S.W.2d

at 785. On November 6, 1978 the Court denied review, 58

L.Ed.2d 346. The operators in Caesar’s contended that the

ordinance infringed upon ‘fundamental sexual rights”,

analogizing the purveying of commercialized sexual con-

duct to the constitutionality protected areas of ideas, be-

lief, religion, cultural concerns, free speech and expression,

and so forth (Petition, Caesar’s Health Club, 10-12),

which is the essence of the argument advanced by the op-

erators here. In Caesar’s they made a further effort to

equate the sexual conduct with the forms of private sexual

conduct found by such cases as Stanley v. Georgia, to be

constitutionally protected. It is submitted that the Court’s

denial of review in Caesar’s Health Club, especially when

read in the light of the affirmations in Kisley, Rubenstein,

Smith, and City of Indianapolis, along with such other rul-

ings as Paris Adult Theatre, California v. LaRue, Roth et al.,

establish the lack of merit in the contentions advanced

here by the massage parlors.

Other jurisdictions have adopted the same or similar

laws, based in good part on the Model Penal Code. The

courts in these jurisdictions appear to have uniformly sus-

tained the constitutionality of these statutes when applied

to commercialized masturbation situations, e.g. Floyd v.

Texas (Tex. Crim. App. 1978) 575 S.W.2d 21, app. dism’d

for want of sub. federal question, 61 L.Ed.2d 272 (1979);

Ringer v. State (Tex. Crim. App. 1979) 577 S.W.2d 711;

People v. Block (1972) 71 Misc.2d 714, 337 N.Y.S.2d 153;

People v. Costello (1977) 90 Misc.2d 431, 395 N.Y.S.2d 139;

and Thompson v. City of Huntsville (Ala. App. 1976), 329

So.2d 664, cert. den., 329 So.2d 666 (Ala. 1976). They

have likewise rejected challenges made to the prostitution

laws on the same constitutional grounds urged here by

the operators, e.g. People v. Smith (1973) 44 N.Y.2d 613,

378 N.E.2d 1032; Blake v. Delaware (Del. Supr. Ct. 1975)

344 A.2d 260, and Delaware v. Hicks (Del. Supr. Ct. 1976)

360 A.2d 150, both aff’d., 373 A.2d 205 (Del. Sup. Ct. 1977).

Federal courts have rejected numerous attacks upon mas-

sage parlor ordinances, holding, for example, that prohibi-

tions upon massage of specific parts of the body are within

the police power and are justified for reasons of public

morality and decency, Brown v. Brannon (M.D. N.C.

1975) 399 F. Supp. 133, 147-148, aff'd, 535 F.2d 1249 (C.A.

4, 1976). Also see Bayside Enterprises, Inc. v. Carson (M.

D. Fla. 1978) 450 F. Supp. 696, 709-710 (16); Brown v.

Haner (W.D. Va. 1976) 410 F. Supp. 399, 401; United Health

Clubs of Amer. v. Strom (S.C. 1976) 423 F. Supp. 761, 765-

766; and Tomlinson v. Mayor & Aldermen (C.A. 5, 1976)

534 F.2d 570, 571-572. Even cases cited by the operators

in their petition contradict their own position, for example

Cianciolo v. Members of City Council (E.D. Tenn. 1974)

376 F. Supp. 719, 724, held that there was nothing constitu-

tionally to prevent the enactment of an ordinance regulat-

ing the particulars of massage, including prohibition of

massaging restricted parts of the body; also the views ex-

pressed in Hart Health Studio v. Salt Lake County (Utah

1978) 577 P.2d 116, 119.

If prostitution and related commercialized exploita-

tion cannot be constitutionally outlawed, as the massage

parlor operators urge, then why is it unlawful for the

states to prohibit such, but constitutional for the US.

Congress (see 18 U.S.C. §§ 2421, 2422) to make the inter-

state transportation of “any woman or girl for the purpose

of prostitution or debauchery, or for any other immoral

purpose” a criminal offense? If antiprostitution laws are

unlawful under the Federal Constitution then the Com-

merce Clause could hardly override such fundamental in-

validity. In Hoke v. U.S. (1913) 227 U.S. 308, 321, where

the Court upheld the power of Congress to enact 18 U.S.C.

§§ 2421 and 2422, they also found that “[t]hat is unques-

tionably a control in the states over the morals of their

citizens, and, it may be admitted, it extends to making

prostitution a crime.” In 1978 the Congress enacted Public

Law 95-225 [6.1585]; Feb. 6, 1978, which makes “prohibited

sexual conduct” a criminal offense where minors are trans-

ported and exploited for such purposes, and which the

Congress has declared embraces masturbation, to prevent

commercialized sexual exploitation.

The Court has repeatedly affirmed proscriptive state

legislation over other categories of sexual conduct that did

not fall within the ambit of commercialized sexual ac-

tivity as proper exercises of state police power. For ex-

ample in Doe v. Comrronwealth’s Attorney for City of

Richmond (E.D. Va. 1975) 403 F. Supp. 1199, a three-judge

court upheld a state statute making sodomy an offense

even though committed between consenting adults. The

opinion further pointed out that laws forbidding adultery,

fornication and other such conduct were not unconstitu-

tional even though the participants were agreeable and the

subject matter was sexual intimacies, 403 F. Supp. at 1200-

1202. This opinion was affirmed, 425 U.S. 901 (1976). In

like vein are the decisions which hold that the states may

under their police power punish such offenses as bestiality,

buggery, fellatio, and so forth, see State v. Crawford (Mo.

1972) 478 S.W.2d 314, aff’d, 409 U.S. 811 (1972); and Rose

v. Locke (1975) 423 U.S. 48.

This extended discussion is made to indicate the breadth

of the judicial opinion which has upheld the broad scope of

the “domain” of state police power in matters of sexual

morality. Actually the operators here are asking the Court

to sit as a superlegislature, and overturn these laws for a

number of sociological reasons which they advance in their

petition (see Petition 19). Yet this action is completely

contrary to the many decisions of the Court.

It should be added that the operators’ own evidence

reinforces the lawful purposes of these enactments. As

pointed out here in the Statement of the Case, the Hunvald

affidavit makes the claim that the drafting committee relied

upon the commentary from the Model Penal Code in de-

veloping the statutory provisions. Contrary to the con-

clusions of the operators, their own evidence shows a large

number of substantial purposes and reasons for enacting

such legislation. After first concluding that “[a]lthough

prostitution appears to respond to a widespread demand,

and despite indications that a substantial proportion of

prostitutes are victims of social and psychic conditions

beyond their control, most students of the problem favor

penal repression of commercialized sex” (Emphasis sup-

plied) The comments then identify the main reasons under-

lying penal repression as religious and moral, but continues

with several utilitarian reasons for such legislation: (1)

prostitution is an important source of venereal disease; (2)

it is a source of profit and power for criminal groups who

commonly combine it with illicit drug and liquor trade,

illegal gambling, robbery and extortion; (3) it is a source of

corrupt influence on government and law enforcement ma-

chinery, as a source of bribery and extortion of officials;

and (4) is considered a significant factor in social disor-

ganization, encouraging sexual delinquency and undermin-

ing the marriage, the home and individual character (Com-

ments, pp. 170-171, contained in Appendix B).

It recommends that the term “sexual activity” or sexual

conduct should be broadened to cover not only sexual

intercourse, but other lewd acts, since prostitution offered

and even featured abnormal forms of sexual gratification,

so that it was important to include these as well, and also

to cover both male and female prostitution (Comments,

p. 174, in Appendix B). Clearly then from the operators’

own evidence there were a multiplicity of reasons for en-

acting the legislation which they challenge, all of them

valid when read in light of decisions like Paris Adult

Theatre, and so forth.

The operators have not shown that the sole purpose

of this legislation was to prevent the spread of venereal

disease, as witnessed by the statements of the two state

legislators and the commentary from the Model Penal Code

cited above, but even if this were the case then their argu-

ment would still fail. If an established purpose is invalid,

it is the general rule that a law must still be upheld if it

can be supported for other reasons such as public morality,

crime prevention, etc. In addition to the legislators’ com-

ments and the code commentary, the District Court con-

cluded that the legislation could be sustained for at least

four rational factors (adopted by the Court from State v.

Hicks, supra), which could be taken separately or together:

the public marketing of sex would produce a great strain

upon the institution of marriage; or innocent citizens

would, on occasion, be affronted by unwanted solicitation;

or a higher incidence of disease would otherwise occur;

or criminal manipulation would surround the activity (Dis-

trict Court Order, 1/12/79, Appendix to Petitioners’

Brief, A22-23). The Court of Appeals likewise affirmed the

existence of lawful purpose underlying the legislation (see

Opinion, Pet. App. A5).

In addition, the Court in Caesar’s Health Club v. St.

Louis County, supra, upon which authority both the District

Court here (see Order, 1/12/79, Pet. App. A21-A22) and

the Court of Appeals (see 600 F.2d at 712) relied, con-

cluded that the ordinance prohibiting the same type of

activity was clearly referable to the police power, and “dis-

closed on its face a purpose to protect and further the

health, morality and general welfare of the citizenry” and

to further it in a reasonable way. 564 S.W.2d at 786-787

(9-10).

As stated earlier should an established purpose be founid

invalid this would still not furnish grounds to invalidate a

law, because if by a particular mode of reasoning, the con-

stitutionality of legislation may be sustained, it is irrel-

evant whether such reasoning in fact underlaid the legisla-

tive decision, as it is also irrelevant that the statute did not

extend to all to whom the postulated rationale might in

logic apply. Flemming v. Nestor (1960) 363 U.S. 603, 612.

Speculation as to legislative and executive motive is to be

shunned by the courts. Rosado v. Wyman (1970) 397 U.S.

397,419. Where a statute is constitutional on its face courts

will not void it on allegations of improper purpose, even

though there might be some demonstration of a wrongful

motive in utterances by members of the legislative body

that enacted the law. U.S. v. O’Brien (1968) 391 U.S. 367,

382-386; Palmer v. Thompson (1971) 403 U.S. 217, 224-5.

Laws are frequently multipurposed, and the Equal Protec-

tion Clause of the Fourteenth Amendment does not coun-

tenance a court’s speculative probing into the legislative

purposes of a coordinate branch of government to ascertain

constitutionality, McGinnis v. Royster (1973) 410 U.S. 263,

276-277, especially in light of the elusive nature of searches

for legislative purpose, which is another reason for judicial

avoidance of such speculative expeditions. Palmer uv.

Thompson, supra at 224.

Yet even if the control of disease was the sole purpose

for the enactment of the statutes and there was no con-

clusive or scientific data or proof of a connection between

the prohibited act and the disease, this would still not

serve to invalidate the law. The Court has not hesitated

to sustain statutes in the field of commercialized sexual

activity although there was no scientific data to conclusively

demonstrate an adverse effect between the prohibited

conduct «nd members of society, or in cases where there

existed manifest empirical uncertainties. Scientifically cer-

tain criteria to support police power legislation is not de-

manded of legislatures. Paris Adult Theatre I v. Slaton,

supra at 60-61; Ginzberg v. New York (1968) 390 U.S. 629,

642-643; and Roth/Alberts, supra, 354 U.S. at 501 (Concur-

ring Opinion, J. Harlan). Legislators and judges have long

acted upon various unprovable assumptions, which under-

lie much state regulation of commercial and business af-

fairs, as is also the case with federal regulation of antitrust

and securities, environment, education, and so on. The

fact that a legislative directive “reflects unprovable as-

sumptions about what is good for the people including im-

ponderable aesthetic assumptions, is not a sufficient reason

to find that statute unconstitutional.” Paris Adult Theatre,

supra at 61-62; Whalen v. Roe (1977) 429 U.S. 589, 598.

Justice Harlan in discussing the purpose of a California

statute in Roth which made the selling of obscene ma-

terials an offense, found that it was “not irrational, in our

present state of knowledge, to consider that pornography

can induce a type of sexual conduct which a state may

deem cbnoxious to the moral fabric of society”, and “even

assuming that pornography cannot be deemed ever to cause,

in an immediate sense, criminal sexual conduct, other in-

terests within the proper cognizance of the States may be

protected by the prohibition placed on such materials. The

State can reasonably draw the inference that over a long

period of time the indiscriminate dissemination of materials,

. the essential character of which is to degrade sex, will have

an eroding effect on moral standards.” 354 U.S. at 501-2.

Paris Adult Theatre recognized that there was a “legitimate

state interest” at stake in “stemming the tide of com-

mercialized obscenity” for a wide variety of reasons which

the Court took notice of, such as an interest of the public

in the quality of life and the total community environment,

the tone of commerce in great urban centers, and public

safety based upon arguable correlations between obscene

material and crime or other antisocial behavior. 413 U.S.

at 57-60, and fn 8, 9, and 10. A legislature may legitimately

act to protect the social interest in order and morality, Id.

at 61; Roth, supra, at 485.

In the last analysis the operators’ arguments represent

an effort to obfuscate the issues here because of their in-

ability to cite to any authority of substance, particularly in

this Court’s decisions, which demonstrates that these stat-

utes constitute an improper exercise of the State’s police

power. They have been unable to point to any funda-

mental “right” to engage for hire in the act of masturbation

of the anus or genitals for the purpose of arousing or grat-

ifying sexual desire. Nor have they been able to raise a

viable issue of gender discrimination, the latter contention

specifically rejected as a constitutional objection by such

holdings as Kisley v. City of Falls Church, Rubenstein v.

Cherry Hill, Smith v. Keaton, and City of Indianapolis v.

Wright, particularly where the statutes are facially neutral.

In fact Section 567.040 specifically points out that the sex

of the parties is immaterial. As stated in the beginning,

this Court has long held that states under their police power

-have a legitimate interest in enacting legislation to prohibit

the commercialized exploitation of sexual conduct appealing

to the erotic interests, and these statutes are clearly within

the framework of that precept.

Both in the District Court and in the Court of Appeals

the operators strenuously urged a wide variety of specific

constitutional objections to these laws, predicated upon

such claims as rights of privacy, freedom of speech, asso-

ciation and expression, right to employment and, of course,

the right to operate a legitimate business enterprise. They

contended that the statutory provisions are unconstitution-

“ ally vague and overbroad, and violate the Equal Protection

Clause, apparently because of alleged irrational classifica-

tions and gender discrimination. Since the laws have not

been applied to the operators by these respondent law en-

forcement officials, these contentions go to the facial valid-

ity of the provisions, and not to any speculative application.

Respondents urge that all of these specific objections have

been raised in prior causes before this Court, and have been

rejected, particularly in Paris Adult Theatre, Kisley, Ruben-

stein, Smith, City of Indianapolis, Caeser’s Health Club,

and the other cases cited under Point I. The fact is that

for all practical purposes all of the operators’ contentions

made here have been ruled on before in an adverse fashion

to their position.

The Equal Protection Claims

(A) Unreasonable Classification. The operators claim

that an equal protection violation exists because those who

practice prostitution and those who patronize prostitutes

are treated differently from a standpoint of punishment

than those who promote, pander or purvey (Pet. 15-17).

Prostitution (567.020) and patronizing (567.030.2) are class

B misdemeanors, while promoting is made a varied-class

felony (567.050-567.070). As the District Court held (Pet.

App. A24-26), there is ample authority to support a state’s

authority to impose a greater penalty on one class than

another. Similar classification arguments were advanced

and rejected in Kisley, et al. There is, of course, no issue

of selective enforcement present, nor have any of the usual

criteria on such an argument been demonstrated.

The Fourteenth Amendment allows states a wide scope

of discretion to enact laws which affect some groups of

citizens differently than others, unless the classification

rests on grounds wholly irrelevant to the achievement of

the state’s objectives. The legislatures are presumed to

have acted within their constitutional powers despite the

fact that in practice their laws result in some inequality,

and a statutory discrimination will not be set aside if any

State of facts reasonably may be conceived to justify it.

McGowan v. Maryland (1961) 366 U.S. 420, 425-426. Mc-

Gowan found an absence of invidious discrimination in a

state Sunday ciosing law, holding that the proscription of

different substantive offenses in different counties was a

matter for legislative discretion. There is no lack of ra-

tional support or lack of legitimate governmental interest

for the suppression of prostitution and related commercial-

ized sexual exploitation, e.g. Caesar’s Health Club v. St.

Louis County, supra; People v. Costello, supra.

The arguments about different penalties and conduct

for hire were specifically raised and rejected by State v.

Hicks (Del. Super. 1976) 360 A.2d 150, aff'd, 373 A.2d

205 (Del. Supreme Ct. 1977). There a defendant argued

that a stricter penalty for the “seller” than for the “buyer”

in the prostitution exchange violated Equal Protection,

but the Court relying upon Railway Express Agency v.

New York (1949) 336 U.S. 106, upheld the classification,

finding that the state could reasonably conclude that a man

or woman who performs sexual conduct for money is a

greater danger to society than a woman or man perform-

ing the act free of charge; the person charging a fee can

reasonably be viewed as being more likely to engage in

sexual activity less responsibly or discriminately, since his

or her primary motivation is the acquisition of money.

360 A.2d at 153-154 [5]. Relying upon Railway Express

and Blake v. State (Del. Super. 1975) 344 A.2d 260, aff'd,

373 A.2d 205 (Del. Supreme Ct. 1977), the Delaware Court

also concluded that 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; and the state’s

decision to regulate the “seller” and not the “buyer” is

considered rational, even though it is frequently obvious

that it is not the only available technique for deterring an

activity. Ibid. Also see Railway Express v. New York,

supra at 110.

(B) Alleged Lack of Rational Basis for Chapter 567.

The operators argue that the statutes lack a raticnal basis

(Pet. 17-20), contentions which these respondents have

dealt with under Point I here.

Right to Operate a Legitimate Business. This argu-

ment (Pet. 20-21) is also embraced in the refutation set

forth by respondents under Point I, with perhaps some

additional comment. The operators are by their own ad-

mission carrying on a “business” of commercialized

sexual exploitation. Cases as Roth/Paris Adult Theatre;

Miller v. California; California v. LaRue; Ginzburg v. New

York; Ward v. Illinois, infra; U.S. v. Reidel, infra, and

so on have unhesitatingly held such exploitation to be

a proper subject for statutory proscription under the police

power of the states or its federal counterpart. A recent

example of the federal exercise of this power was when

Congress enacted the “Protection of Children Against Sex-

ual Exploitation Act of 1977” (PL 95-225 [S.1585]; Feb-

ruary 6, 1978), now embodied in 18 U.S.C. Sections 2251,

2252, 2253 and 2423, which includes masturbation for pur-

poses of sexual exploitation for commercial gain, and used

definitional language similar to that employed here. Of

course, as pointed out by Paris Adult Theatre, the fact

that consenting adults are involved does not render such

proscriptions invalid, 413 U.S. at 68-69 and fn 14 and 15.

Also see Doe v. Commonwealth's Attorney, supra.

The operators also cited a number of cases (Pet. 21)

which dealt with laws prohibiting cross-sexual massage,

that is massage of a patron of one sex by one of the

opposite gender. This whole line of authority on the consti-

tutional invalidity of that prohibition is no longer valid,

having been rejected by the Court’s rulings in the Kisley,

Rubenstein, Smith, and Wright decisions.

Free Speech. The operators have argued from the

District Court on, that prostitution including commer-

cialized masturbation, constitutes a form of free speech,

expression, or association, and is therefore protected by the

First Amendment. They raise the argument again here

(Pet. 21-22). Yet, like the rest of their arguments, they

are unable to produce any authoritative judicial support

for it. The courts have repeatedly examined the question

of whether commercialized sexual contact is protected as

free speech and expression, and has rejected such. E.g.

Roth v. U.S./Alberts v. California, supra at 483-488; Paris

Adult Theatre I v. Slaton, supra at 53-56; Miller v. Cali-

fornia (1973) 413 U.S. 49, 53-56; Ward v. Illinois, supra

at 768-769; California v. LaRue, supra at 113-119; also

see Caesar’s Health Club v. St. Louis County, supra at

788; Brown v. Haner (W.D. Va. 1976) 410 F. Supp. 399,

400-401; U.S. v. Moses (D.C. App. 1975) 339 A.2d 46, 51-

93; Bayside Enterprises, Inc. v. Carson (M.D. Fla. 1978)

450 F. Supp. 696, 710.

This is not expression by the operators, or by their

customers, of political, philosophical or religious ideas, or

any of the other categories usually found beneath the

First Amendment’s umbrella. Rather Chapter 567 defines

as criminal activity the performance and pandering of

certain types of sexual conduct, namely sexual intercourse,

deviate sexual intercourse, and masturbatory massage.

The issue is simply whether commercialized masturbation

constitutes free speech, and there seems to be a remarkable

lack of judicial support which holds that it is. In Bayside

Enterprises a contention that regulation of massage activ-

ities infringed upon First Amendment rights of expression

was held frivolous: ‘In this context, the Court can perceive

no communicative characteristics of any substance which

would bring massage parlors within the ambit of the first

amendment’s free speech clause.” 450 F. Supp. at 710.

In California v. LaRue where state authority was sustained

to prohibit the performance of acts, or simulated acts of

intercourse, masturbation, and of touching, caressing, or

fondling of genitals or anus, in bars and nightclubs, it was

stated that an expression moved from the printed page to

the commission of public acts, the scope of permissible state

regulation significantly increased. In the case of the acts

in question, which the Court concluded partook more of

“gross sexuality” than of communication, the states were

well within the constitutional bounds of the police power

to proscribe such, 409 U.S. at 117-119. As pointed out

in U.S. v. Moses, a prostitute’s invitation to commercial

intercourse is not an essential part of any expression of

ideas. 339 A.2d at 52.

Furthermore, in view of a lack of authoritative support

holding that prostitution or commercial masturbation is

a “fundamental right”, plus the long line of decisions up-

holding statutory proscriptions of commercial sexual ex-

ploitation, the argument about protected speech is even

more remote.

Right of Privacy. The operators contend (Pet. 22-

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

for example, the activities defined by the Missouri statutes

should enjoy the right of privacy defined in that line

of cases. However, in spite of this assertion, the Court

has drawn a specific distinction between the privacy of

the home and commercialized exploitation in the field of

sexual conduct. Stanley v. Georgia is clearly inapposite

because it held that while private possession of obscene

material for private uses was protected, the commercial

sale or exploitation of such matter was not. 394 USS.

at 560-561 and fn 6, 567-568 and fn 10. Stanley in

fact recognized the “important interest” of the state in the

regulation of the commercial distribution of obscene mate-

rial, as distinguished from mere private possession. Id.

at 563-564.

In Paris Adult Theatre privacy was asserted by “adult”

theatre operators, but the Court rejected, stating that

even assuming that the operators had vicarious standing

to assert potential customers’ rights, “it is unavailing to

compare a theatre, open to the public for.a fee, with

the private home of Stanley v. Georgia .. ., and the marital

bedroom of Griswold v. Connecticut. . .” 413 US. at

65. Only personal rights which can be deemed “funda-

mental” were guaranteed by the Fourteenth Amendment,

encompassing the personal intimacies of the home, the

family, marriage, motherhood, procreation, and child rear-

ing, but not including the watching of obscene movies in

places of public accommodation. Id. at 65-66. They “de-

clined to equate the privacy of home relied on in Stanley

with a ‘zone’ of ‘privacy’ that follows a distributor or

a consumer of obscene materials wherever he goes.” Id.

at 66.

This rejection of privacy claims is well-established,

e.g. U.S. v. Reidel (1971) 402 U.S. 351, 354-355; U.S. v.

Orito (1972) 413 U.S. 139, 141-143: Brown v. Haner (W.D.

Va. 1976) 410 F. Supp. 399, 401: Brown v. Brannon (M.D.

N.C. 1975) 399 F. Supp. 133, 138-139, 149; U.S. v. McKean

(D.C. App. 1975) 338 A.2d 439, 440: Harris v. U.S. (D.C.

App. 1974) 315 A.2d 569, 574-575. Privacy was disallowed

in Caesar’s Health Club, 565 S.W.2d at 787-788, in inter-

preting an almost identical law.

CONCLUSION

For these reasons, the petition for certiorari should be

denied. However, because petitioners’ contentions have

been repeatedly considered and rejected by this Court in

cases such as Paris Adult Theatre, Roth, LaRue, Kisley.

Rubenstein, Smith, and City of Indianapolis, as well as by

the Caesar’s Health Club holding, respondents respectfully

ask the Court to consider imposing such alternative relief

as summary affirmation. This Court has employed such

action in certiorari proceedings where decisions below were

deemed correct in light of controlling authorities and should

be affirmed, e.g. see Landau v. Fording (1967) 388 U.S. 456,

affirming a state court judgment holding a film to be ob-

scene. Such action respondents believe is warranted here

because it would terminate this case and other actions pend-

ing in the Federal Courts challenging these statutes, and

because the ability of the enforcement officers to investi-

gate and institute actions under these laws, if such need

should arise, is impaired, if not effectively prevented, by

the maintenance of this and like actions despite a lack of

substance to their constitutional complaints. As pointed

out in New Motor Vehicle Bd. v. Orrin W. Fox Co. (1977)

434 U.S. 1345, 1351, a State suffers a form of irreparable

injury where it is prevented from effectuating statutes

enacted by representatives of its people.

Respectfully submitted,

RUSSELL D. JACOBSON

STEPHEN F, VOLEK

R. JAy INGRAHAM

VALARIE ZEECK

2d Fl., Jackson County

Courthouse

415 East 12th Street

Kansas City, Missouri 64106

Attorneys for Respondents

ALLEN PuRVIS Ralph Martin and Robert

JoHN Dops Rennau

20th Fl., Mercantile Bank Manrrep MAIER

Building Sth Fl., Police Headquarters

1101 Walnut 1125 Locust

Kansas City, Missouri 64106 Kansas City, Missouri 64106

Attorneys for Respondent Attorney for Respondent

John Campbell Norman Caron

APPENDIX

APPENDIX A

Constitutional and Statutory Provisions Involved

Article I, Section 9 of the Constitution provides, in

pertinent part: |

“No bill of Attainder or ex post facto Law shall

be passed.”

Article I, Section 10 of the Constitution provides, in

pertinent part:

“No state shall pass any Bill of Attainder, ex

post facto Law, or Law impairing the Obligation

of Contracts...”

Amendment I of the Constitution provides, in pertinent

part:

“Congress shall make no law . . . abridging the

freedom of speech, ... .”

Amendment IX of the Constitution provides:

“The enumeration in the Constitution, of certain

rights, shall not be construed to deny or disparage

others retained by the people.

Amendment XIV, Section I of the Constitution pro-

vides:

“SECTION 1. All persons born or naturalized in

the United States, and subject to the jurisdiction there-

of, are citizens of the United States and the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or im-

32 33

munities of citizens of the United States; nor shall

sexual conduct with another person in return for some-

any State deprive any person of life, liberty, or prop-

thing of value to be received by the person or by

erty, without due process of law; now deny to any a third person;

rso ithin its jurisdiction t ] is

tl aren oD PETER: Se See Bentoenen at (3) “Patronizing prostitution”, a person “patron-

izes prostitution” if

The full text of the provisions of Chapter 567, Revised . ; ‘

: (a) Pursuant to a prior understanding, he gives

Statutes of Missouri (1979), as enacted by Laws of Mis- :

something of value to another person as compensation

souri, 1977, p. 688, S.B. No. 60, Section 1, eff. January ee Whak iach cemeeii: Manian dada tes

1, 1979, provides: or that person or a third p ving engag

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 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 partici-

pates or is to participate in proceeds of prostitution

activity; or

(f) Ungages 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 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

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) “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 money or

property, or any token, object or article exchangeable

for money or property.

567.020. Prostitution—1. A person commits the

crime of prostitution if he performs an act of prostitu-

tion.

2. Prostitution is a class B misdemeanor.

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.

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 im-

material, and it is no defense that

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

2. The term “compelling” includes

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.

567.050. Promoting prostitution in the first de-

gree.—l. A person commits the crime of promoting

prostitution in the first degree if he knowingly

(1) Promotes prostitution by compelling a per-

son 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 conduct

or appreciating its nature.

(3) Withholding or threatening to withhold dan-

gerous drugs or a narcotic from a drug dependent per-

son.

3. Promoting prostitution in the first degree is

a class B felony.

567.060. Promoting prostitution in the second de-

gree.—l. A person commits the crime of promoting

prostitution in the second degree if he knowingly pro-

motes prostitution by managing, supervising, control-

ling 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.

567.070. Promoting prostitution in the third de-

gree—l. A person commits the crime of promoting

prostitution in the third degree if he knowingly pro-

motes prostitution.

2. Promoting prostitution in the third degree is

a class D felony.

567.080. Prostitution houses deemed public nui-

sance.—l. 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

prosecuting attorney may, in addition to all criminal

sanctions, prosecute a suit in equity to enjoin the

nuisance. If the court finds that the owner of the room,

building 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 occupied

or used for such period as the court may determine,

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 unlawful

prostitution activity anywhere within the jurisdiction

of the court.

4. Appeals shall be allowed from the judgment

of the court as in other civil actions.

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

state-wide 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 sections 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 penal-

ties 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 pub-

lic solicitation of sexual conduct, whether or not the

offer to engage in sexual conduct is in return for some-

thing of value, and health laws to prevent the spread

of venereal diseases.

567.100. Responsibilities of prosecuting attorneys

and attorney general.—In addition to the responsibility

of circuit attorneys and prosecuting attorneys in their

respective jurisdictions to enforce the criminal pro-

visions of this chapter, they shall have the duty to

enforce the provisions of section 567.080; and the at-

torney general shall have a concurrent duty to enforce

the civil provisions of section 567.080.

APPENDIX B

Excerpts From Affidavit Introduced by Petitions

in District Court

Pertinent portions of the Model Penal Code Section

207.12, Comment (Tent. Draft No. ........ , 1959) and support-

ing affidavit of Edward Hunvald introduced by petitioners

at the hearing of January 3, 1979 before the District Court,

state as follows:

“AFFIDAVIT

STATE OF MISSOURI _)

) ss.

COUNTY OF JACKSON )

COMES NOW Edward H. Hunvald, and being first

duly sworn( upon oath, states as follows:

* * *

“7, The Committee in considering the prostitu-

tion offenses followed basically the approach of the

Model Penal Code and the New York Penal Code

which in turn was based largely on the Model Penal

Code and the Comments to the tentative draft of the

Model Penal Code, a copy of which is attached to

this Affidavit, and incorporated herein as though fully

set out herein, was considered by the Subcommittee.

The Committee’s approach to the prostitution offenses

was to first consider whether prostitution should be

covered in the Code, and it was decided to draft pro-

visions and present them to the legislature as a part

of the Code. In deciding upon the definition of ‘prosti-

tution’, the Committee followed the approach of the

Model Penal Code and made the definition broader

than simply sexual intercourse and included ‘sexual

contact’ as part of the definition of ‘sexual conduct.’

The Committee’s approach was basically to cover

sexual activity of a commercial nature.

“Model Penal Code, Comments to Section 207.12:

- * * *

Although prostitution appears to respond to a wide-

spread demand, and despite indications that a substan-

tial proportion of prostitutes are victims of social and

psychic conditions beyond their control, most students

of the problem favor penal repression of commercial-

ized sex. Religious and moral ideas undoubtedly are

the main force behind the demand for repression; but

utilitarian arguments are also available. Prostitution

is an important source of venereal disease,!°* although

some contend that the ‘amateurs’ to whom men turn

in lieu of prostitutes present a greater danger in this

respect."’* It has been observed that prostitution is

a source of profit and power for criminal groups who

commonly combine it with illicit trade in drugs and

liquor, illegal gambling and even robbery and extor-

tion.’** Prostitution is also a source of corrupt in-

fluence on government and law enforcement machin-

ery. Its promoters are willing and able to pay for

police protection; and unscrupulous officials and politi-

cians find them an easy mark for extortion.** Finally,

some view prostitution as a significant factor in social

disorganization, encouraging sex delinquency and

undermining marriage, the home, and _ individual

character.'** (p. 171)

2. Sexual Activity. This term as defined in Sub-

section (6) covers not only sexual intercourse but

also other lewd acts. Some existing laws confine them-

selves to offering or receiving the body for ‘inter-

Course.”*** Since commercial prostitution offers and

even features abnormal forms of sexual gratification, it

is important to include this. Male as well as female

prostitution is covered.*** The Section extends to sex-

ual display not involving contact with the customers,

for example, catering to the perverse desire to observe

others in sexual activity (‘voyeurism’), since this would

fall within the definition of ‘lewd act’ in Section

207.9.” (p. 174)

*Footnotes omitted.

APPENDIX C

Questions Presented to the Supreme Court in Prior

Cases Involving Laws Prohibiting Massage Parlor

7 Practices

No. 72-189 Kisley v. City of Falls Church

Business regulation—Massage parlors—Ban on service

rendered to customer by person of opposite sex.

Ruling below (Va SupCt, 40 LW 2616):

Falls Church, Virginia ordinance that prohibits

operation of “massage salon, bath parlor, or any similar

type business” where service rendered to customer

is by person of opposite sex does not deprive operators

of such businesses of property rights without due pro-

cess of law or deny them or their employees equal

protection of law.

Questions presented: (1) Does Falls Church, Vir-

ginia ordinance that prohibits operation of “massage

salon, bath parlor, or any similar type business” where

service rendered to customer is by person of opposite

sex violate Fourteenth Amendment’s Due Process and

Equal Protection Clause in that ordinance arbitrarily

interferes with operators’ legitimate occupation and

constitutes unreasonable exercise of police power

premised on sex discrimination? (2) Does such or-

dinance make arbitrary distinction between certain

persons or classes of persons?

(41 U.S. Law Week 3123)

No. 73-1609 Rubenstein v. Cherry Hill

QUESTIONS PRESENTED

1. Whether Ordinance 71-51 of the Township of

Cherry Hill, New Jersey, creates a classification based

upon sex which does not bear a close rational relation-

ship to a compelling state interest and thus is violative

of the Equal Protection Clause of the Fourteenth

Amendment of the United States Constitution.

2. Whether Ordinance 71-51 of the Township of

Cherry Hill, New Jersey, constitutes an unreasonable

exercise of the police power by the Township of Cherry

Hill in that it regulates conduct in an overbroad man-

ner when alternative and less intrusive methods are

possible and thus is violative of due process of law

under the Fourteenth Amendment to the United States

Constitution.

3. Whether Ordinance 71-51 is repugnant to fed-

eral law in that it conflicts with the purposes sought

to be achieved by 42 U.S.C. $2000-e of the 1964 Civil

Rights Act and thus is violative of Article VI of the

United States Constitution.

(Appellants’ Jurisdictional Statement, p. 3)

74-336. Smith v. Keator

Business regulation—Massage parlors—Ban on inter-

sexual massages—Constitutionality.

Ruling below (NC SupCt, 285 NC 530, 206 SE2d

203):

Municipal licensing ordinance prohibiting massage

parlor employees from massaging members of opposite

sex does not discriminate on basis of sex, is reasonable

and not arbitrary, and has fair and substantial re-

lation to object of eliminating “immoral acts likely

to result from too intimate familiarity of the sexes”;

ordinance’s licensing provisions, as interpreted to en-

title licensee to hearing before revocation of license

and to require reasonable grounds for denial or revoca-

tion of license, are constitutional.

Questions presented: (1) Does municipal ordi-

nance that prohibits employees of health salons or

massage parlors from treating members of opposite

sex irrationally discriminate on basis of sex in viola-

tion of Fourteenth Amendment’s Equal Protection

Clause? (2) Is municipal ordinance that permits city

council to revoke license of any person to operate

massage parlor whenever in sound discretion of coun-

cil revocation is deemed to be in best interest of health,

safety, welfare, or morals of city’s people unconstitu-

tionally vague, overbroad, and without standards?

(43 U.S. Law Week 3270)

78-73. Wright v. City of Indianapolis

Business regulation—Massage parlors—Inspections—

Ban on massage by opposite sex.

Ruling below (Ind SupCt, 371 NE2d 1298}:

Massage parlor ordinance that prohibits massage

therapist from administering massage to person of op-

posite sex does not violate due process and equal pro-

tection provisions of U.S. Constitution; massage par-

lors, as licensees in regulated business, impliedly con-

sent to inspections that, pursuant to ordinance, are

limited to business hours and other reasonable times;

court cannot presume that city officials will conduct

inspections in manner that is other than constitutional;

ordinance that requires massage parlors to be open

for inspection during all business hours and at other

reasonable times by police officers, health and fire

inspectors, and duly authorized representatives of city

controller upon showing of proper credentials is not

unreasonable and does not contravene prohibitions of

state or federal constitutions.

Questions presented: (1) Did court below im-

properly rule that massage parlor ordinance prohibit-

ing massages by members of opposite sex is not viola-

tive of due process or equal protection provisions of

federal or state constitutions? (2) Did court below

improperly rule that as member of regulated business,

licensee impliedly consents to inspection at any and

all reasonable times and places by obtaining license?

(3) Did court below err in ruling that it would not

presume that city officials would conduct inspections

of massage parlors in other than constitutional man-

ner? (4) Did court below improperly rule that in-

spection scheme authorized by massage parlor ordi-

nance was not unreasonable or in contravention of

prohibitions of state or federal constitutions, and fur-

ther improperly rule that it was unnecessary to pursue

petitioner’s constitutional arguments pertaining to op-

posite sex massage ordinances as violative of due pro-

cess and equal protection provisions of state and fed-

eral constitutions? (5) Is it violation of Equal Pro-

tection Clause of Fourteenth Amendment for munici-

pal ordinance to prohibit employees of massage parlors

from treating members of opposite sex? (6) Did

court improperly rule that city did not engage in con-

clusive presumption that massage of opposite sex will

cause social and moral problems and lead to illicit

and illegal sexual activities?

(47 U.S. Law Week 3157)

78.420. Caesar's Health Club v. St. Louis County

Ruling below (Mo CtApp, 4/11/78):

Massage parlor operators’ failure to assert pro-

tectable interest in fundamental right to privacy ren-

ders “compelling state interest” test inapplicable to

county prostitution ordinance that would prohibit mas-

Sage activities involving sexual touching; county pros-

titution ordinance that discloses on its face purpose

to protect and further health, morality, and general

welfare of citizenry, and that furthers its purpose in

reasonable way is valid; assuming massage parlor oper-

ators’ vicarious standing to assert masseuses’ and cus-

tomers’ privacy rights relating to private sexual con-

duct between consenting adults, operators’ commer-

cialization of massages involving sexual touching re-

move such activities from sphere of protectable right

of privacy; ordinance should not be declared overbroad

on basis of frivolous and speculative claims that lan-

guage defining prostitution as including any “touching

* * * of the anus or genitals of one person by an-

other” will be invalidly applied to proscribe normal

functions of obstetricians, gynecologists, urologists

proctologists, nurses, and baby sitters.

Questions presented: (1) Did trial court’s failure

to require, and respondent’s failure to show, compel-

ling state interest to justify challenged ordinance de-

prive petitioners of rights guaranteed them under U‘S.

Constitution? (2) Did challenged ordinance violate

fundamental rights of privacy afforded petitioners by

U.S. Constitution? (3) Did challenged ordinance vio-

late petitioners’ rights to due process of law as guar-

anteed by U.S. Constitution by reason of its over-

breadth?

(47 U.S. Law Week 3303-3304)

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.