Petition for Writ of Certiorari — Town of Trenton v. Lounge Management, Ltd.

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No. 98 46 4 SEP 1 419%

BFFIGE-OF THE CLERK

IN THE

SUPREME COURT of the UNITED STATES

October Term, 1998

TOWN OF TRENTON,

Petitioner,

V.

LOUNGE MANAGEMENT, LTD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF WISCONSIN

Mark J. Gherty

Counsel of Record

GHERTY AND GHERTY, S.C.

328 Vine Street

Hudson, WI 54016

(715) 386-2332

Attorneys for Petitioner

QUESTION PRESENTED

1. Whether the Supreme Court of Wisconsin

erred in finding the Town of Trenton’s anti-nudity

ordinance to be overbroad, in violation of the First

Amendment to the United States Constitution, while

refusing to apply an available and limiting construction of

the ordinance that would have cured any substantial

overbreadth?

2 Whether 44 Liquormart, Inc. v. Rhode

Island, 517 U.S. 484, 116 S.Ct. 1495 (1996) is controlling

case law in cases involving ordinances that ban public

nudity in establishments licensed to sell alcohol?

3. How are cases that are a plurality decision,

as compared to a majority decision, to be interpreted?

PARTIES TO PROCEEDINGS BELOW

The parties to the proceedings in the Supreme Court

of Wisconsin, in Case No. 96-1853, _ Wis.2d.__, 580

N.W.2d 156 (1998), listed in the caption:

Town of Trenton

Lounge Management, Ltd.

TABLE OF CONTENTS

QUESTION PRESENTED .................55-. i

PARTIES TO PROCEEDINGS BELOW .......... ii

TABLE OF CONTENTS ..............-:- ea ae

TABLE GF AUTHORITIES |. otc ee keene iv

OPINIONS DELIVERED BELOW .............. 2

RE ee oo ce eve eee sheen ee 2

STATUTES AND REGULATIONS INVOLVED oe

STATEMENT OF THE CASE .............-.--- 3

REASONS FOR GRANTING THE WRIT ........ 13

EI Seen e ao a ee re eae 18

iv

TABLE OF AUTHORITIES

CASES: Page

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484,

116 S.Ct. 1495 (1996) .... i,6,7,8,13,14,16,18

Barnes v. Glen Theatre, Inc., 501 U.S. 560

COO eer Aa 6,8,9,13,14,15,16

Broadrick v. Oklahoma, 413 U.S. 601

R90 saS oe Cs Sk Cea eben 9,10,13,17

California v. LaRue, 409 U.S. 109 (1972) ..... 7,8,14

City of Milwaukee v. K.F., 145 Wis.2d 24,

426 N.W.2d 329 (1988) ................ 10

City of Milwaukee v. Wroten, 160 Wis.2d 207,

466 N.W.2d 861 (1991) ................ 10

City of Newport v. lacobucci, 479 U.S. 92 (1994) . 5,6

Fond du Lac County v. Mentzel, 195 Wis.2d 313,

536 N.W.2d 160 (Ct. App. 1995) .......... 6

Page

Lounge Management, Lid. v. Town of Trenton,

___ Wis.2d.__, 580 N.W.2d. 156

PEO a 6s 5 CEA eae 2,6,8,9, 10,11,12,13,15,16

Marks v. United States, 430 U.S. 188 (1977) ....... 15

New York v. Ferber, 458 U.S. 747 (1982) ...... 13,17

Renton v. Playtime Theatres, Inc., 475 U.S. 41

RO ors i aio ckes vee ek ee a eens 7

Schultz v. City of Cumberland, 195 Wis.2d 554,

536 N.W.2d 192 (Ct. App. 1995) ........ 5,6

State v. Thiel, 183 Wis.2d 505,

S15. Wad O47. C1994). 2... os oe ce we. 6,9

United States v. O'Brien, 391 U.S. 367

+ ea i ee aaa BARAT 7,8,9,14,15,16

Young v. American Mini Theatres, Inc.

TN a ie a go oo tlh 2 14

STATUTES:

IG ME oy cae hae ee ee 2

ee I, Soo Swe cis ei wa ees 3,4,12

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BEE MOPS I SUED ee ee oe RR ES

Wis. State. $000.82 Se ee 3

IN THE

SUPREME COURT of the UNITED STATES

October Term, 1998

No.

TOWN OF TRENTON,

Petitioner,

v. | =

LOUNGE MANAGEMENT, LTD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF WISCONSIN

Petitioner, Town of Trenton, respectfully prays that

a writ of certiorari issue to review the judgment and opinion

of the Supreme Court of Wisconsin, entered June 18, 1998.

OPINIONS DELIVERED BELOW

The opinion of the Supreme Court of Wisconsin,

with the dissenting opinion of Justice Steinmetz and Justice

Wilcox, (App. A), is reported w Lounge Management. id.

Vv. Town of Trenton, — Wis.2d._, 580 N.W.2d.

(1998). The “Certification by Court of Appeals of

Wisconsin,” (App. B), is not officially reported. The

“Findings, Order, and Judgment,” (App.C), issued

May 14, 1996 is included.

JURISDICTION

The dateon which the Supreme Court of Wisconsin

decided this matter was June 18, 1998. A copy of the

decision appears at Appendix A.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1257(a).

STATUTES AND REGULATIONS INVOLVED

The relevant statutory provision, Town of Trenton,

Ordinance No. 10 (the “Ordinance”), is reproduced in

Appendix D, as is the Wis. Stats. § 125.10 (App. E), and

Wis. Stats § 125.12 (App. F).

STATEMENT OF THE CASE

The Town of Trenton is located in Pierce County

Wisconsin. It is an extensively rural community. The

Town Board of supervisors passed Town of Trenton,

Ordinance No. 10 (the “Ordinance”) on April 9, 1992

(App D). The Ordinance became effective April 15, 1992.

The Ordinance provided, “There shall be no public nudity

at a public licensed establishment.”

The Ordinance was enacted pursuant to the

Wisconsin Statutes, including Wis. Stats.§ 125.10(App. E).

Wis. Stats.§ 125.10 states, in part:

Any municipality may enact regulations

incorporating any part of this chapter

(relating to alcohol beverages) and may

prescribe additional regulations for the sale

of alcohol beverages, not in conflict with

this chapter.

The Ordinance specifically defined “Nudity”! and

“Public.”* The Ordinance also listed two “exceptions.”?

' Nudity means the showing or exposing of the human male or

female genitals, pubic area or buttocks with less than a full opaque

covering, or of the female breast with less than a fully opaque covering of

any portion thereof below the nipple.

. Public means any place of accommodation or amusement,

which shall be interpreted broadly to include, but not limited to, places of

business or recreation, hotels, motels, resorts, restaurants, taverns and any

place where accommodations, amusement, goods or services are available

either free or for a consideration. Campgrounds are also included.

> Exceptions.

A. This ordinance is not to be interpreted as restricting the

proper use of a bathroom facility by a male or a female in an enclosed area

where the person is of the same sex designated for such room, and is not

engaged in for any sexual or exhibitionist purpose to or in front of or

adjacent to other persons.

B. This ordinance is not to be interpreted to prevent activities in

rooms privately rented in a hotel, motel, resort, or camper if at a

campground, if the person(s) involved rented such private facility or owns

it and has not invited or allowed members of the public, who are not

immediate family members, to be at such location.

The Town of Trenton Board of Supervisors

approved a Class B liquor license for the Respondent,

Lounge Management, Ltd. (hereinafter “Lounge

Management”), January 9, 1996. The license was issued

January 10, 1996. The Respondents operated a tavern

known as the “Border Lounge”, in Hager City , Wisconsin.

_____.. Lounge Management, on January 15, 1996, filed an

action in Pierce County, Wisconsin Circuit Court seeking an

injunction and declaratory judgment that the Ordinance was

null and void. Lounge Management alleged the Ordinance

prohibiting nudity on liquor licensed premises was

unconstitutional under the Constitution of the United States

and the Wisconsin Constitution. The Respondent filed

motions for both preliminary and permanent injunctions.

The trial court denied the Respondent’s request for

a preliminary injunction:

finding it probable that the Ordinance would

be declared a constitutional exercise of the

Town’s power to regulate nude dancing as

a part of the liquor licensing process. In

doing so, the circuit court relied upon

Schultz v. City of Cumberland, 195 Wis.2d

554, 536 N.W.2d 192 (Ct. App., 1995)

(holding municipal ordinance banning nude

performances valid because state’s

delegation of power to regulate sale of

alcohol under Twenty-First Amendment

included the lesser power to ban sale of

liquor in establishments with nude dancing)

and City of Newport v. Iacobucci, 479 U.S.

6

92 (1994). Also anticipating an overbreadth

challenge, the circuit court followed State v.

Thiel, 183 Wis.2d 505, 515 N.W.2d 847

(1994), and narrowly construed the

disputed Ordinance to apply only to

establishments with liquor licenses. Lounge

Management, Ltd. v. Town of Trenton ,

___Wis.2d __, 580 N.W.2d 156, 158

(1998).

The trial court also noted that the Ordinance might

be constitutional, under Barnes v. Glen Theatre, Inc., 501

U.S.560 (1991).

The trial court subsequently entered a declaratory

judgment on the constitutionality of the Ordinance and

reaffirmed its preliminary holding that the Ordinance, as

construed, was constitutional. Id. Wis.2d_, 580

N.W.2d at 158.

The Respondent appealed, requesting the Wisconsin

Court of Appeals to certify the matter to the Supreme Court

of Wisconsin. The request was based upon the fact there

was potentially conflicting precedent concerning the

constitutionality of anti-nudity ordinances. A conflict

existed between Fond du Lac County v. Mentzel, 195

Wis.2d 313, 536 N.W.2d 160 (Ct. App. 1995) and Schultz

v. City of Cumberland, 195 Wis.2d 554, 536 N.W.2d 192

(Ct. App. 1995)

Both the Petitioner and the Respondent argued at

length, in their respective briefs to the Supreme Court of

Wisconsin, that 44 Liquormart, Inc. v. Rhode Island, 517

7

U.S. 484, 116 S.Ct. 1495 (1996), was controlling. The

Respondent argued that the case overruled Schultz) The

Petitioner, on the other hand, argued the Ordinance was

valid on the basis “government may suppress conduct more

easily than it may suppress speech,” citing 44 Liquormart,

116 S.Ct. at 1512. The basis for the argument being,

protection of sexual!y explicit expression is of less societal

importance than the protection of other forms of expression,

citing Renton v. Playtime Theatres, Inc., 475 U.S. 41

(1986).

The Petitioner argued, pursuant to United States v.

O’Brien, 391 U.S. 367 (1968), when conduct includes

speech and non-speech elements, a sufficiently important

governmental interest in regulating the non-speech elc ment

justifies incidental limitations on First Amendment freedoms.

The Petitioner went on to argue that the “four-part O’Brien

test” need be applied.‘

The Petitioner argued the Ordinance regulates nudity

and not nude dancing. The Petitioner also argued that the

Ordinance is content neutral and is unrelated to the

suppression of free expression.

The issue of “overbreadth” was also dealt with by the

parties. The Petitioner argued:

*A governmental regulation restricting conduct arguably

protected by the First Amendment is justified if: 1) it is within the

constitutional power of the government; 2) it furthers an important or

substantial governmental interest; 3) the interest is unrelated to the

suppression of free expression; and 4) the incidental restriction on alleged

First Amendment freedoms is no greater than is essential to the

furtherance of that interest. United States v_ O’Brien, 39] U.S. at 377.

44 Liquormart did not overrule California v.

LaRue, 409 U.S. 109 (1972). On the

contrary, 44 Liquormart, expressly affirmed

the holding in LaRue, apart from any reliance

on the Twenty First Amendment. 44

Liquormart v. Rhode Island, 116 S.Ct. 1495,

1514 (1996).

The Petitioner concluded by arguing, the Ordinance

prohibiting nudity on licensed premises is constitutional and

not overbroad.

The Supreme Court of Wisconsin disagreed. It

issued an opinion on June 18, 1998, reversing the trial court.

The Supreme Court of Wisconsin (hereinafter the “Court”),

found that the Ordinance was overbroad , in violation of the

First Amendment to the United States Constitution. No

mention was made of 44 Liquormart by the Court in its

decision.

The Court noted:

The substantive questions presented then are

whether the Ordinance is unconstitutional on

its face, due to overbreadth, or

unconstitutional as specifically applied to

Lounge Management. Lounge Management,

Ltd. v. Town of Trenton, __Wis.2d___, 580

N.W.2d 156, 159 (1998).

The Court examined the Ordinance in light of Barnes

y. Glen Theatre, Inc., 501 U.S. 560 (1991), and United

9

States v. O’Brien, 391 U.S. 367 (1968). Justice Bradley,

for the majority, determined that Justice Souter’s

concurrence in Barnes was the holding of the Court.

JULIE id

161. She stated:

We conduct our overbreadth analysis by

inquiring whether the Ordinance is drafted in

a manner that addresses the secondary

effects of adult entertainment, such as

prostitution, sexual assault, and other

criminal activity, without also suffocating

other protected expression in a real and

substantial manner. Id., at 580 N.W.2d at

161.

at

Both the majority and the dissent agreed that the

Ordinance was overbroad, at first glance. Id., at 580

N.W.2d at 164. But, as the dissent noted, “this is where the

majority’s analysis effectively ends, and where its error

begins.” Id., 580 N.W.2d.at 164.

As Justice Steinmetz noted:

The majority makes two fundamental errors.

First, the majority refuses to accept an

available, limiting construction of Ordinance

10 which would cure any substantial

overbreadth. See, _State v. Thiel, 183

Wis.2d 505, 522, 515 N.W.2d 847 (1994);

see also, Broadrick v. Oklahoma, 413 US.

601, 613 (1973). Second, despite

10

controlling case law to the contrary, the

majority concludes that the Ordinance’s

overbreadth is both real and substantial after

conceiving of a single impermissible

application of that Ordinance. See, City of

Milwaukee v. K.F.,-145 Wis.2d 24, 40-41,

426 N.W.2d 329 (1988); see also,

Broadrick, 413 U.S. at 615-16; City of

Milwaukee v. Wroten, 160 Wis.2d 207, 226-

27, 466 N.W.2d 861 (1991).

Id. at 164.

The Court found that there was no distinction

between animate and inanimate nudity, under the

Ordinance. The Court found that the Ordinance did not limit

its application to establishments that sold alcohol, but

applied to “all publically licensed establishments.” The

Court refused to strike portions of the Ordinance, in an

attempt to reduce its scope. The Court refused to engage in

“judicial legislation.”

Justice Steinmetz, writing for the dissent,

acknowledged the Ordinance was overbroad, but notes the

majority refuses to:

accept an available, limiting construction of

Ordinance 10 which would cure any

substantial overbreadth and . . . despite

controlling case law to the contrary, the

majority concluded that the Ordinance’s

overbreadth is both real and substantial after

conceiving of a single application of that

11

ordinance.

Justice Steinmetz was critical of the majority by

Stating:

The majority refuse to provide a narrowing

construction of the Ordinance, it accepts the

broadest possible construction of that

ordinance. This court has a duty to interpret

an ordinance, as it would a statute, by

applying a limiting construction to that

ordinance, if one is available, to preserve its

constitutionality. (Citation omitted.) Id., 580

N.W.2d at 165.

Justice Steinmetz argued that “the majority’s broad

construction of Ordinance 10 contravenes the common sense

understanding of ‘public nudity.’” Id., 580 N.W.2d at 166.

He went on to state that the majority was not applying

common sense in its reading and application of the

Ordinance as applied to animate and inanimate nudity.

The majority gave examples of how the Ordinance

could be misapplied to theatrical productions and private

activities in hotel and motel rooms. The dissent reminds the

majority that the Ordinance is to be applied only to “public

licensed establishments.” Justice Steinmetz states:

The majority is correct in stating that the

Ordinance does not specifically limit such

establishments to places of accommodation

or amusement licensed to sell alcohol. To be

12

consistent with the language and purpose of

Ordinance 10, however, the court should

construe Ordinance 10 to reach only

establishments licensed to sell alcohol. Id.,

580 N.W. 2d at 167.

Justice Steinmetz reminded the majority:

Ordinance 10 applies only to a “licensed

establishment.” The only license to which

the Ordinance specifically refers is the license

to sell alcohol, which the Town is authorized

to issue and regulate under Wis. Stat

§ 125.10.° The record does not describe any

other type of establishment licensed by the

Town of Trenton. In addition, the Town

concedes that the purpose of enacting

Ordinance 10 was not to protect the

community from the secondary effects

usually associated with adult entertainment

establishments; the purpose was to protect

against such secondary effects only as they

are enhanced by the sale and consumption of

alcohol. That this is the limited purpose of

Ordinance 10 is supported by the facts of

this case. id., 580 N.W.2d at 167.

Both the majority and the dissent discuss the matter

* See Appendix E

LEU Se Ne REG OS ta eT L OS SRO SR EES ROR cee a ree eh eee RTS

13

of “real and substantial” protections, as outlined in New

York v. Ferber, 458 U.S. 747 (1982); Broadrick v.

Oklahoma, 413 U.S. 601 (1973); and Barnes v. Glen

Theatre, Inc., 501 U.S. 560 (1991).

The Court ruled that the Ordinance was overbroad,

“in violation of the First Amendment to the United States

Constitution.”

Trenton, _Wis.2d__, 580 N.W.2d 156, 157.

REASONS FOR GRANTING THE WRIT

This case raises important issues of statutory and

regulatory construction. The decision of the Supreme Court

of Wisconsin is in conflict with the ruling of the United

States Supreme Court, in 44 Liquormart, Inc. v. Rhode

Island, 517 U.S. 484, 116 S.Ct. 1495 (1996). The Supreme

Court of Wisconsin found that the Ordinance violated The

United States Constitution alone.

The Ordinance had been drafted in conformity with

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991). The

actions of the Supreme Court of Wisconsin will result in a

chilling effect upon townships and municipalities accross the

County, in their effort to combat the secondary effects

14

usually associated with adult entertainment, as enhanced by

the sale or consumption of alcohol.

and not nudity. The challenged statute concerned liquor

advertising. Thus, the Court considered the relationship

between First Amendment rights and the State’s authority to

control liquor under the Twenty-First Amendment. This

relationship between the First Amendment and the Twenty-

First Amendment had been previously addressed in

California v. LaRue, 409 U.S. 109 (1972), and subsequent

cases, involving regulation of nudity on premises for the sale

of liquor. The United States Supreme Court took great

pains to affirm the LaRue result, i.e. that a rule prohibiting

nudity on licensed premises is constitutional and not

overbroad. 44 Liquormart, Inc. v. Rhode Island , 116 S.Ct.,

at 1514; California v. LaRue, 409 U.S. 109, 117-119(1972).

Furthermore, 44 Liguormart provides the legal

framework for affirming the constitutionality of such

ordinances apart from the Twenty-First Amendment by

citing Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) and

Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976).

The express affirmation of LaRue and Barnes makes it clear

that 44 Liquormart is not to be interpreted to invalidate

ordinances prohibiting nudity on licensed premises.

Under 44 Liquormart, LaRue, and Barnes, the legal

standard for analyzing regulations restricting public nudity

is as outlined in United States v. O’Brien, 391 U.S. 367

(1968), and the result of applying that standard is that an

ordinance prohibiting nudity in licensed premises is

constitutional.

15

The question of the true meaning of Barnes needsto _—-

be addressed. As noted by the Supreme Court of Wisconsin,

Barnes is a plurality opinion. Lounge Management, Ltd. v.

Town Trenton, _Wis.2d__,580 N.W.2d 156, 160 (1998).

This Court needs to clarify how lower courts are to

interpret “fractured opinions.” The Wisconsin Court, citing

Marks v. United States, 430 U.S. 188 (1977), stated, =

that when the Court issues a splintered

plurality decision, courts interpreting that

decision should regard the opinion of the

Justice concurring on the “narrowest

grounds” as the Court’s ultimate holding.

Vv Trenton,

__ Wis.2d__, 580 N.W.2d 156, 160 (1998).

The Wisconsin Court has applied Justice Souter’s

concurrence, as the holding. Justice Souter applies the four-

part test outlined in United States v. O’Brien, 391 U.S.367

(1968).

A government may infringe First

Amendment freedoms to regulate conduct so

long as: (1) the targeted conduct falls

within the domain of state regulatory power;

(2) the statutory scheme advances important

or substantial government interests; (3) the

state’s regulatory efforts are unrelated to the

suppression of free expression; and (4) the

regulations are narrowly tailored. Lounge

Management, Ltd. v. Town Trenton,

Wis.2d __, 580 NW 2d 156, 159 (1998),

'

a

16

citing United States v. O’Brien, 391 U.S. at

376 -377 (1968).

The Supreme Court of Wisconsin looked at the

various hypothetical situations, as discussed by Justice

Souter in Barnes. The Wisconsin Court was too narrow in

its analysis, as noted by Justice Steinmetz, for the dissent.

By failing to consider the ruling in 44 Liquormart, the

Wisconsin Court has committed serious error that has wide

reaching effects beyond the boundaries of the Town of

Trenton or the State of Wisconsin.

The Wisconsin Court has expanded the definition of

public nudity to encompass not only exotic dancing, but also

the display of nude statues and a display of nudity on a

television screen in the a “licensed establishment.” Lounge

Management, Ltd. v. Town of Trenton, _Wis.2d __, 580

N.W.2d 156, 161 (1998).

The Wisconsin Court was incomplete in its analysis,

by failing to apply all four of the O’Brien standards. They,

unlike Justice Souter in Barnes, failed to examine the

Ordinance to determine if “the statutory scheme advances

important or substantial governmental interests.” United

States v. O’Brien, 391 U.S. at 376.

This decision has great importance to rural

communities across the country. Hager City, Wisconsin, is

not New York City, or for that matter, Madison, Wisconsin.

It is a rural community. The Ordinance has no application,

whatsoever to theaters or art galleries. It applies to

“licensed establishments.” In the plain meaning of the

Ordinance - liquor licensed establishments.

17

The Supreme Court, in New York v. Ferber, 458

U.S. 747 (1982), stated:

The scope of the First Amendment

overbreadth doctrine, like most exceptions to

established principles, must be carefully tied

to the circumstances in which facial

invalidation of a statute is truly warranted.

Because of the wide-reaching effects of

striking down a statute on its face at the

request of one whose conduct may be

punished despite the First Amendment, we

have recognized that the overbreadth

doctrine is “strong medicine” and have

employed it with hesitation, and then “only

as a last resort.” Broadrick v. Oklahoma,

413 U.S. 601i, 613 (1973). We have, in

consequence, insisted that the overbreadth

involved be “substantial” before the statute

involved will be invalidated on its face.

Ferber, 458 U.S. 747, 770 (1982).

The “strong medicine” has now been dispensed to

the Town of Trenton and other townships with similar

ordinances. Within days of the decision, the Village of

Somerset, Wisconsin withdrew its Ordinance, also banning

nudity in licensed establishments. There are now both male

and female dancers “performing” in Somerset. By deciding

the case solely on the basis of the First Amendment to the

United States Constitution, the case will be cited by parties

in other states as an example of how their state should rule.

18

CONCLUSION

The Supreme Court of Wisconsin committed error

by finding Town of Trenton, Ordinance 10 unconstitutional,

on the basis of being “overbroad.” The Court refused to

apply a limiting construction and merely stuck the Ordinance

in its entirety. The “common sense” approach to the

Ordinance would have been to thoroughly review the record

and apply the Ordinance to only “licensed establishments”

selling liquor.

The United States Supreme Court needs to clarify

for the lower courts and the practitioner how a “plurality

decision” is to be interpreted and applied.

This Court needs to clarify whether 44 Liquormart,

Inc. v. Rhode Island is applicable to cases involving

ordinances banning nudity on licensed premises.

Respectfully submitted,

Mark J. Gherty

Counsel of Record .

GHERTY AND GHERTY, S.C.

328 Vine Street

Hudson, WI 54016

(715) 386-2332

Attorneys for Petitioner

i

INDEX TO APPENDICES

Page

APPENDIX A:

Opinion of the Supreme Court of Wisconsin,

M Ltd, v. Town of

Trenton, 96-1853, Wis.2d.__,

Se we SOMEONE eee kk 1.1

APPENDIX B:

Certification by Court of Appeals of Wisconsin,

Lounge Management, Ltd. v. Town of Trenton,

APPENDIX C:

Findings, Order, and Judgment, Pierce County

Circuit Court, Wisconsin, Case No. 96-CV-8 .. 3.1

APPENDIX D:

Town of Trenton, Ordinance No. 10,

ee SE Se. SER UN 8 ENC ok 41

APPENDIX E:

Wisconsin Statutes § 125.10 .............. 5.1

APPENDIX F:

Wisconsin Statutes § 125.12 .............. 6.1

1.1

APPENDIX A

LOUNGE MANAGEMENT, LTD. v

TOWN OF TRENTON,

___Wis.2d___ 580 N.W.2d 156 (1998)

LOUNGE MANAGEMENT, LTD,

PLAINTIFF-APPELLANT,

Vv.

TOWN OF TRENTON,

DEFENDANT-RESPONDENT.

SUPREME COURT OF WISCONSIN

Case No.: 96-1853

Submitted on Briefs

Oral Argument: December 3, 1997

Opinion Filed: June 18, 1998

APPEAL from a judgment of the Circuit Court for Pierce

County, Robert W. Wing, Judge. Reversed.

For the plaintiff-appellant there were briefs by

Matthew A. Biegert and Doar, Drill & Skow, S.C., New

1.2

Richmond and Randall D.B. Tigue and Randall Tigue Law

Offices, P.A., Minneapolis, MN and oral argument by

Randall D.B. Tigue.

For the defendant-respondent there was a brief by

Catherine R. Quiggle and Rodli, Beskar, Boles & Krueger,

S.C., River Falls and oral argument by

Catherine R. Quiggle.

Steinmetz, J., dissented, and Wilcox, J., joins.

qj 1. ANN WALSH BRADLEY, J.

This case is before the court on certification by the

court of appeals, pursuant to Wis. Stat. § (Rule) 809.61

(1995-96).[fnl] The plaintiff, Lounge Management, Ltd.

(“Lounge Management”), appeals from a circuit court

order[fn2] denying injunctive relief and from a declaratory

judgment upholding the constitutionality of an anti-public

nudity ordinance. Lounge Management contends that the

disputed ordinance is facially overbroad as well as

unconstitutional as applied. Because we find the anti-public

nudity ordinance to be overbroad, in violation of the First

Amendment to the United States Constitution, we reverse

the judgment of the circuit court.

(2. Lounge Management operates a nightclub in rural

Town of Trenton (the “Town”), in Pierce County, pursuant

to a Class B liquor license. On the date Lounge

‘3

Management obtained its liquor license, the Town

maintained an existing ordinance banning public nudity in

“licensed establishments,” (the “Ordinance”).[fn3] Five days

after the Town Board approved Lounge Management's

liquor license, Lounge Management decided to offer nude

and semi-nude dancing at its facility. It filed suit requesting

temporary and permanent injunctions against the Town,

prohibiting the Town from enforcing the Ordinance.

Lounge Management also sought a judgment pursuant to

42 U.S.C. § 1983 (1994) declaring the Ordinance void

under the First Amendment to the United States

Constitution, and Art. I, § 3 of the Wisconsin

Constitution.[fn4] The Town answered by asserting the

constitutionality of the Ordinance, and later amended its

answer to allege that Lounge Management's suit was

brought in violation of the notice of claim requirements of

Wis. Stat. § 893.80.

3. The circuit court denied Lounge Management's

request for a preliminary injunction, finding it probable that

the Ordinance would be declared a constitutional exercise

of the Town's power to regulate nude dancing as part of the

liquor licensing process. In doing so, the circuit court relied

upon Schultz v. City of Cumberland, 195 Wis.2d 554, 536

N.W.2d 192 (Ct. App. 1995) (holding municipal ordinance

banning nude performances valid because state's delegation

of power to regulate sale of alcohol under Twenty-first

Amendment included the lesser power to ban sale of liquor

in establishments with nude dancing) and City of Newport

1.4

v. lacobucci, 479 U.S. 92 (1986) (same). Also anticipating

an overbreadth challenge, the circuit court followed State

v. Thiel, 183 Wis.2d 505, 515 N.W.2d 847 (1994), and

narrowly construed the disputed Ordinance to apply only to

establishments with liquor licenses. The Town then filed a

motion to dismiss.[fn5]

94. The circuit court denied the Town's motion to

dismiss, ruling that while the notice of claim provisions

present in Wis. Stat. § 893.80 applied to Lounge

Management's suit, “[flailure to comply with the notice

requirements of Wis. Stat. § 893.80 is a defense related to

personal jurisdiction and is deemed waived by the

defendant's failure to raise it in its original answer.” The

circuit court also entered a declaratory judgment on the

constitutionality of the Ordinance and reaffirmed its

preliminary holding that the Ordinance, as construed, was

constitutional.

45. Lounge Management appealed the circuit court's

decision. Faced with what it viewed as conflicting precedent

concerning the constitutionality of anti-public nudity

ordinances, Fond du Lac County v. Mentzel, 195 Wis.2d

313, 536 N.W.2d 160 (Ct. App. 1995) (finding county

ordinance prohibiting nudity of entertainers during

performances constitutional as applied, but facially

unconstitutional due to overbreadth) and Schultz, the court

of appeals certified the case to this court.

1.5

46. Having accepted certification on all issues before the

court of appeals, we must first consider the Town's claim

that this suit should be dismissed due to Lounge

Management's failure to file a notice of claim against the

Town pursuant to Wis. Stat. § 893.80.[fn6] We note that

the plaintiff challenges the Ordinance both under the federal

constitution pursuant to 42 U.S.C. § 1983 and the state

constitution. Federal constitutional challenges brought

under § 1983 cannot be barred by Wisconsin's notice of

claim requirement. See Felder v. Casey, 487 U.S. 131

(1988) (holding application of state notice of claim

provision preempted by federal civil rights claim).

Accordingly, we proceed to consider Lounge

Management's constitutional challenge to the Ordinance

under the First Amendment. [fn7]

7. The substantive questions presented then are

whether the Ordinance is unconstitutional on its face, due

to overbreadth, or unconstitutional as specifically applied to

Lounge Management. Both inquiries implicate the First

Amendment to the United States Constitution. Such

constitutional challenges are questions of law which we

review de novo. See Association of State Prosecutors v.

Milwaukee County, 199 Wis.2d 549, 557, 544 N.W.2d 888

(1996).

78. Statutes and ordinances normally are the

beneficiaries of a presumption of constitutionality which the

attacker must refute. See State v. Holmes, 106 Wis.2d 3 l,

1.6

41, 315 N.W.2d 703 (1982). However, where an ordinance

regulates the exercise of First Amendment rights, the

burden shifts to the government to defend the

constitutionality of that regulation beyond a reasonable

doubt. See Heffron v. International Society for Krishna

Consciousness, 452 U.S. 640, 658 (1981); Thiel, 183

Wis.2d at 523; City of Madison v. Baumann, 162 Wis.2d

660, 669, 470 N.W.2d 296 (1991).

99. | Nude dancing has been acknowledged to include an

expressive element, and accordingly is entitled to at least

some degree of constitutional protection. See Barnes v.

Glen Theatre, Inc., 501 U.S. 560, 565 (1991); Id. at 581

(Souter, J., concurring); Id, at 587 (White, J., dissenting).

However, it is also a recognized constitutional principle that

“when ‘speech’ and ‘nonspeech’ elements are combined in

the same course of conduct, a sufficiently important

governmental interest in regulating the nonspeech element

can justify incidental limitations on First Amendment

freedoms.” United States v. O'Brien, 391 U.S. 367, 376

(1968).

410. Insuchinstances, the government may infringe upon

First Amendment freedoms to regulate conduct so long as:

(1) the targeted conduct falls within the domain of state

regulatory power; (2) the statutory scheme advances

important or substantial government interests; (3) the state's

regulatory efforts are unrelated to the suppression of free

expression; and (4) the regulations are narrowly tailored.

1.7

See O'Brien, 391 U.S. at 376-77. The United States

Supreme Court has splintered, however, over the

permissible manner in which the government may

reasonably regulate the protected expression inherent in

nude dancing.

911. In Barnes, a plurality of the court applied the

O'Brien test, but disagreed among themselves over the

requisite important or substantial interest that the state

needed to show under O'Brien when infringing on First

Amendment expression. Three Justices, lead by Chief

Justice Rehnquist, believed that the state could regulate

expressive conduct to promote “public morality” based on

its police powers. See Barnes, 501 U.S. at 568. Justice

Souter, in concurrence, disagreed, but concluded that the

state could regulate conduct implicating expression to

combat the “secondary effects” that shadow establishments

where public nudity occurs, such as prostitution, sexual

assault, and other criminal activity. See Id. at 582-83

(Souter, J., concurring).

12. Lounge Management's primary argument is that the

Ordinance is so overbroad that it applies to conduct which

the state is not entitled to regulate. In order to establish the

framework of our overbreadth analysis of the Ordinance,

we first must distill the holding of the Court in Barnes. If

Chief Justice Rehnquist's view is the holding, we must

evaluate the reach of the Ordinance in promoting public

morality. If Justice Souter's concurrence is the holding, we

1.8

must question whether the Ordinance is narrowly tailored

to address only the secondary effects associated with public

nudity in licensed establishments.

413. Recognizing the potential precedential problems

inherent in fractured opinions, the United States Supreme

Court held in Marks v. United States, 430 U.S. 188, 193

(1977), that when the Court issues a splintered plurality

decision, courts interpreting that decision should regard the

opinion of the Justice concurring on the “narrowest

grounds” as the Court's ultimate holding. Applying this rule

to the Barnes case, we agree with the court of appeals in

Mentzel that Justice Souter's concurring opinion constitutes

the holding of the United States Supreme Court in Barnes.

See Menizel, 195 Wis.2d at 326; see also Triplett Grille,

Inc. v. City of Akron, 40 F.3d 129, 134 (6th Cir. 1994).

Accordingly, we move to an overbreadth examination of the

Town of Trenton Ordinance.

414. TheFirst Amendment is accorded special protection

in our federal constitutional framework. See, e.g.,

Dombrowski v. Pfister, 380 U.S. 479, 486-87 (1965),

quoted in Osborne v. Ohio, 495 U.S. 103, 137 n.12 (1990).

Where an otherwise appropriate content-neutral regulation

is promulgated in an overly expansive fashion, it may have

the collateral effect of chilling constitutionally protected

expression or allowing selective enforcement that may

discriminate against certain classes of people. Those

unintended results are constitutionally intolerable. See Id.;

1.9

Richard R. Fallon, Making Sense of Overbreadth, 100 Yale

L. J. 853, 867 ( 991).

415. In such cases, the overbreadth doctrine serves to

protect third parties' First Amendment rights. See

Bachowski v. Salamone, 139 Wis.2d 397, 411, 407 N.W.2d

533 (1987). The overbreadth doctrine operates to render

facially unconstitutional statutes or ordinances that

“threaten[] others not before the court - those who desire

to engage in legally protected expression but who may

refrain from doing so rather than risk prosecution or

undertake to have the law declared . . . invalid.” Brockett v.

Spokane Arcades, Inc., 472 U.S. 491, 503 (1985); see also

City of Milwaukee v. Wroten, 160 Wis.2d 207, 226, 466

N.W.2d 861 (1991).

| 16. Under this doctrine, a party whose own speech or

conduct may be legitimately regulated by a statute or

ordinance, or whose speech is not subject to constitutional

protections, may assert a facial challenge to an ordinance

that on its face encompasses protected speech or conduct

of third parties. See Wroten, 160 Wis.2d at 227; see also

City of Milwaukee v. Nelson, 149 Wis.2d 434, 451-52, 439

N.W.2d 562 (1989). The overbreadth doctrine “establishes

an exception to the general rule that ‘a person to whom a

statute may be constitutionally applied cannot chalienge the

statute on the ground that it may be unconstitutionally

applied to others.”” Thiel, 183 Wis.2d at 520 (quoting

Massachusetts v. Oakes, 491 U.S. 576, 581 (1989)).

!

* ae

1.10

717. In assessing this challenge, the court may consider

hypothetical situations in which the statute cr ordinance

might reach too far. See Brandmiller v. Arreola, 199

Wis.2d 528, 547, 544 N.W.2d 894 (1996). However, the

court must be cognizant of the fact that application of the

overbreadth doctrine is “strong medicine,” to be used only

where the alleged overbreadth of the statute or ordinance is

not only real, but substantial, and “then ‘only as a last

resort.”” See New York v. Ferber, 458 U.S. 747, 769-70

(1982) (quoting Broadrick v. Oklahoma, 413 U.S. 601,

613, 615 (1973)); see also Thiel, 183 Wis.2d at 520; City

of Milwaukee v. K.F., 145 Wis.2d 24, 40, 426 N.W.2d 329

(1988).

418. Accordingly, courts must apply a limiting

construction to a statute, if available, that will eliminate the

statute's overreach, while still “maintain[ing] the

legislation's constitutional integrity.” 7hiel, 183 Wis.2d at

521; see Broadrick, 413 U.S. at 613. Alternatively, a court

may sever that portion of the statute which leads to

overbreadth, leaving the statute as modified in full effect.

See Thiel, 183 Wis.2d at 520.

919. Because we determine that Justice Souter's

concurrence in Barnes is the holding of the Court, we

conduct our overbreadth analysis by inquiring whether the

Ordinance is drafted in a manner that addresses the

secondary effects of adult entertainment, such as

prostitution, sexual assault, and other criminal activity,

1.11

without also suffocating other protected expression in a real

and substantial manner. We first examine the language of

the Ordinance on its face. If we determine that it is

overbroad, we then consider possible constructions of the

Ordinance that may save it. After conducting this inquiry,

we find that the anti-public nudity Ordinance encompasses

expressive activities that do not implicate the “secondary

effects” that the Town may legitimately seek to

regulate. [fn8]

420. As the language of the Ordinance indicates, and as

defense counsel was forced to concede at oral argument,

several hypothetical situations exist in which the Ordinance

would impinge on protected expression involving public

nudity. Such examples include public exhibition of artwork

or artifacts depicting nudity, public display of a television

program including brief nudity, and any form of expressive

live nudity that occurs in a “public licensed establishment.”

Such establishments include private hotel rooms,

campgrounds, taverns, theaters, or any other place of

business, recreation, accommodation, or amusement.

421. Such overbreadth is largely the result of the

generalized terminology used by the Town when drafting

the Ordinance and its specific command that portions of the

Ordinance be “interpreted broadly.” The Ordinance does

not prohibit nude dancing - it prohibits all public nudity.

The Ordinance does not limit its application to

establishments licensed to sell alcohol - it applies to all

1.12

publicly licensed establishments.[fn9] The Ordinance does

not limit itself to live nudity - it apparently applies to all

forms of nude depiction. [fn 10] Accordingly, the Ordinance

regulates expressive conduct protected by the First

Amendment to the United States Constitution that has no

connection to the potential harmful secondary effects

arising from nude dancing in liquor licensed establishments

and it does so in a real and substantial manner.

422. Despite these infirmities, we are cognizant of our

obligation to apply a limiting construction to the Ordinance

if such a construction is available. The Town argues that the

circuit court's narrow construction of the Ordinance to

apply only to nude dancing in establishments licensed to sell

liquor is sufficient to save the Ordinance from an

overbreadth challenge. Alternatively, following the dissent

in Wroten, the dissent would have this court rewrite the

Ordinance by striking a significant portion of it and

construing it “to prohibit only animate public nudity at

establishments licensed by the Town of Trenton to sell

alcohol.” Dissent at 5.

423. We disagree that either construction is sufficient to

save the Ordinance. Due to the existing structure and

wording of the Ordinance, we are unable to cure the

overbreadth by either striking enough of the Ordinance or

providing a sufficiently narrow construction that is not flatly

inconsistent with the expressed intent as set forth in its

existing terms. We cannot apply a limiting construction

1.13

which contravenes the expressed intent of the Ordinance.

See Wroten, 160 Wis.2d at 227.

424. In its attempt to save the Ordinance, the dissent

engages in legal and semantic convolutions. The futility of

the dissent's attempts to save the Ordinance is particularly

emphasized when it negates the plain language of the

Ordinance and attempts to explain that the word “showing”

does not mean “displaying” or “exhibiting.” Dissent at 5-6.

Such an assertion defies common definition, common

usage, and common sense. Yet, such an assertion is

necessary for the dissent to arrive at its tortured conclusion

that “showing” means “only those live acts performed by a

person... .” Dissent at 6.

425. Similarly futile is the dissent's attempts to explain

away the Ordinance's prohibition on nudity between

non-family-member consenting adults in a privately rented

hotel room. An exception to the Ordinance's prohibition

against “public nudity at a public licensed establishment”

provides in relevant part:

This ordinance is not to be interpreted to

prevent activities in rooms privately rented

in a hotel... ifthe person(s) involved .. .

has not invited or allowed members of the

public, who are not immediate family

members, to be at such location.

1.14

As long as you are an “immediate family member” this

Ordinance does not apply to prevent activities in rooms

privately rented in a hotel. The dissent rewrites the clause,

and adds a qualification that contravenes the express

language of the Ordinance, indicating that “‘public nudity’

does not include the private conduct of consenting adults in

private rooms where the general public is not invited to

attend or to participate in such conduct.” Dissent at 7.

26. The dissent also construes the Ordinance to apply

only to establishments licensed to sell liquor. Endorsing

such a construction requires the dissent to strike and

construe so much of the definition that little of the original

definition of “public” as in “public licensed establishment,”

remains:

Public means [any place of accommodation

or amusement, which shall be interpreted

broadly to include, but not be limited to,

places of business or recreation][fn4],

hotels, motels, resorts, restaurants, taverns

[licensed to serve alcohol] [and any place

where accommodations, amusement, goods

or services are available either free or for a

consideration. Campgrounds are also

included ][fins J.

Even assuming that a presumption of severability applied to

an ordinance drafted by a Town Board, see Regan v. Time,

1.15

Inc., 468 U.S. 641, 653 (1984), the plain language of the

Ordinance indicates an intent by the Town Board to apply

the Ordinance in a far broader manner than acknowledged

by the construed and severed interpretation of the dissent.

Accordingly, severance is also improper. See Brockett, 472

U.S. at 506.

127. As the discussion above indicates, the proffered

constructions of the Ordinance are inconsistent with the

broadly drafted terms and purpose of the Ordinance. Such

construction raises the specter of “judicial legislation.”

Wroten, 160 Wis.2d at 234. We decline the invitation to

engage in such legislation and leave the task of writing a

constitutionally permissible Ordinance to that branch of

government where such power properly lies - the Town

Board. See Id.

128. Moreover, even if the acts of construing the

Ordinance and striking out such a substantive portion of the

Ordinance were an acceptable use of our powers to

conform the Ordinance with the Constitution, such a

construction must still eliminate the constitutional infirmity

of the original Ordinance. However, the ultimate narrowing

construction offered by the dissent retains the same basic

constitutional infirmity that plagues the Ordinance as

drafted.

29. Even as narrowly construed by the dissent the

Ordinance continues to bar protected expression involving

1.16

nudity that does not implicate the secondary effects

associated with barroom erotic nude dancing that the Town

alleges was its primary objective in creating the Ordinance.

Examples of artistic expression barred by the Ordinance

range from the presentation of a play involving the briefest

moment of a woman exposing one breast as part of the

script of the production to the hypothetical productions of

“Hair” and “Equus” cited by Justice Souter in Barnes, or

the even more revealing production “L'apres midi d' un

faune” discussed by Judge Posner in Miller v. Civil City of

South Bend, 904 F.2d 1081, 1090 (7th Cir. 1990) (Posner,

J. concurring), rev'd sub nom. Barnes v. Glen Theatre, Inc.,

501 U.S. 560 (1991). Thus, examples of infringement upon

protected expression by the Ordinance range across the

artistic gamut.

430. While acknowledging that the Ordinance as

construed would still bar this protected artistic expression,

the dissent continues to attack our finding of overbreadth

by asserting that infringement of the First Amendment in

this case would not be “real and substantial.” In the dissent's

view the Ordinance is not a “real and substantial” constraint

since a revealing production is only one hypothetical and

since there are no dinner theaters or other artistic venues in

which such a performance could occur in the rural Town of

Trenton.

431. In making these arguments, the dissent fails to

acknowledge that, as noted above, the Ordinance as

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1.17

construed by the dissent and the circuit court continues to

target constitutionally protected activity and continues to

bar all artistic expression involving nudity in all

establishments licensed to sell liquor. The dissent's attempt

to categorize and then generalize away the real-life

examples highlighted by this and other courts is not only

short-sighted, it allows a court to reject a valid overbreadth

challenge by only considering the single type of expression

affected.

32. While the construction offered by the dissent may

narrow the overbreadth of the Ordinance, we believe the

Ordinance as construed, barring all artistic expression

involving nudity at licensed establishments, continues to

target and infringe upon activities entitled to First

Amendment protections in a “real and substantial” manner.

This is not a case where the Ordinance's “legitimate reach

dwarfs its arguably impermissible application,” but rather a

case where its impermissible application dwarfs the

Ordinance's legitimate reach. Ferber, 458 U.S. at 773. This

conclusion is consistent with our decisions in City of

Milwaukee v. K.F., City of Milwaukee v. Nelson, and

Brandmiller v. Arreola.

433. Moreover, the dissent implicitly argues that because

the Town of Trenton is a rural community, the effects of the

Ordinance on nude artistic expression cannot seriously be

taken as an infringement of First Amendment speech. Such

a contention misses two important points. First, and most

1.18

importantly, the First Amendment to the United States

Constitution applies universally to all communities within

our borders. A violation of the First Amendment is as

troubling in a small rural community as it is in a

metropolitan area. Second, the primary purpose of the

overbreadth doctrine is to prevent the “chilling” of First

Amendment speech. As such, the doctrine protects the

rights of third parties who, in the face of restrictive

legislation, might refrain from exercising their First

Amendment rights for fear of criminal prosecution. See

Village of Schaumburg v. Citizens for a Better

Environment, 444 U.S. 620, 634 (1980); Broadrick, 413

U.S. at 612. Thus, the business demographics of the Town

of Trenton, as they currently exist, are irrelevant for

purposes of our inquiry.

434. The Constitution of the United States guarantees

certain freedoms and this court is bound to ensure the

proper application of those freedoms. While Justices may

differ on the application of the law, the court's analysis of

the Ordinance at issue is not and cannot be dependent upon

a personal view of the propriety or morality of the activities

offered at the plaintiff's establishment.

435. To provide a construction sufficiently remedial to

cure the Ordinance's overbreadth, this court would

essentially be required to rewrite the Ordinance in its

entirety. We decline to legislate in this manner and leave it

to the Town Board to enact an Ordinance that both means

1.19

what it says and comports with federal constitutional

principles. The Town has failed to meet its burden in

defending beyond a reasonable doubt the constitutionality

of the Ordinance. Accordingly, we determine that the

Ordinance is overbroad, in violation of the First

Amendment to the United States Constitution, and we

reverse the judgment of the circuit court.[fnl 1]

By the Court. - The judgment of the circuit court is

reversed.

936. DONALD W. STEINMETZ, J. (Dissenting).

The majority strikes down as facially

unconstitutional the Town of Trenton's Ordinance 10,

which proscribes “public nudity at a public licensed

establishment.” In so doing, the majority misapplies

well-established principles of constitutional adjudication.

Because I disagree with the majority's analysis and

conclusion, I dissent.

437. Asthe majority has shown, Ordinance 10 is, at first

glance, overbroad. Unfortunately, this is where the

majority's analysis effectively ends, and where its error

begins. The majority concludes that Ordinance 10 is

unconstitutionally overbroad because it “encompasses

expressive activities that do not implicate the ‘secondary

effects’ that the town may legitimately seek to regulate.”

1.20

Majority op. at 11-12. Arriving at this legal conclusion, the

majority makes two fundamental errors. First, the majority

refuses to accept an available, limiting construction of

Ordinance 10 which would cure any substantial

overbreadth. See State v. Thiel, 183 Wis.2d 505, 522, 515

N.W.2d 847 (1994); see also Broadrick v. Oklahoma, 413

U.S. 601, 613 (1973). Second, despite controlling case law

to the contrary, the majority concludes that the Ordinance's

overbreadth is both real and substantial after conceiving of

a single impermissible application of that ordinance. See

City of Milwaukee v. K.F., 145 Wis.2d 24, 40-41, 426

N.W.2d 329 (1988); see also Broadrick, 413 U.S. at

615-16; City of Milwaukee v. Wroten, 160 Wis.2d 207,

226-27, 466 N.W.2d 861 (1991).

438. The First Amendment doctrine of substantial

overbreadth is a judicially-created, largely prophylactic

doctrine designed to prevent the chilling of constitutionally

protected expression. See Richard H. Fallon, Jr., Making

Sense of Overbreadth, 100 Yale L. J. 853, 855 (1991). As

the majority notes, the overbreadth doctrine is a limited

exception to the traditional rule of third-party standing that

“a person to whom a statute may be constitutionally applied

will not be heard to challenge the statute on the ground that

it may conceivably be applied unconstitutionally to others,

in other situations not before the court.” Broadrick, 413

U.S. at 610-11; see also Board of Airport Comm'rs of Los

Angeles v. Jews for Jesus, 482 U.S. 569, 574 (1987);

Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503-04

T GES SP GS PSO Leth ST OR ERO e Me Cay EI Macys Fo aE SORRY ae Se PSO Ep eh Ana MS Cay ENT PRP RT ene a

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(1985); Thiel, 183 Wis.2d at 520. This traditional rule of

third-party standing reflects the conviction that “under our

constitutional system courts are not roving commissions

assigned to pass judgment on the validity of the Nation's

laws.” Broadrick, 413 U.S. at 610-11 (citing Younger v.

Harris, 401 U.S. 37, 52 (1971)). Courts therefore

recognize exceptions to this rule only when there exists

“weighty countervailing policies.” Id. at 611 (quoting

United States v. Raines, 362 U.S. 17, 22-23 (1960)).

139. Because of the wide-ranging effects of the

overbreadth doctrine,[fn12] a reviewing court must view

the doctrine as “manifestly strong medicine” that should be

employed only “sparingly, and only as a last resort.”

Broadrick, 413 U.S. at 613; see New York v. Ferber, 458

U.S. 747, 769 (1982); Thiel, 183 Wis.2d at 521; City of

Milwaukee v. Nelson, 149 Wis.2d 434, 452, 439 N.W.2d

562 (1989). Courts, in consequence, have established two

specific limitations to applying the overbreadth doctrine.

First, a facial challenge to an ordinance will not succeed

when a limiting construction is available to maintain the

legislation's constitutional integrity. See Thiel, 183 Wis.2d

at 521 (citing Broadrick, 413 U.S. at 613); see also Fallon,

100 Yale L. J. at 863. Second, where conduct and not

merely speech is involved, courts including this one have

uniformly stated that “the overbreadth of a statute or

ordinance must not only be real, but substantial as well,

judged in relation to the statute's plainly legitimate sweep.”

Broadrick, 413 U.S. at 615 (emphasis added); see also

Ss

1.22

Thiel, 183 Wis.2d at 521; Wroten, 160 Wis.2d at 226; K.F.,

145 Wis.2d at 40-41; Fallon, 100 Yale L. J. at 863. The

majority here briefly lists, but essentially jettisons, these

well-established limitations on the overbreadth doctrine.

440. First, not only does the majority refuse to provide a

narrowing construction of the Ordinance, it accepts the

broadest possible construction of that ordinance. This court

has a duty to interpret an ordinance, as it would a statute,

by applying a limiting construction to that ordinance, if one

is available, to preserve its constitutionality. See K.F., 145

Wis.2d at 47. “A statute challenged as unconstitutionally

overbroad can be ‘cured’ by means of judicial

interpretation, which provides for a narrowing and

validating construction of the law.” 7hie/, 183 Wis.2d at

522. While the majority states that it is “cognizant” of its

obligations, it concludes that no narrowing construction is

available because to provide one it “would essentially be

required to rewrite the Ordinance in its entirety.” Majority

op. at 19.

441. Contrary to the majority's suggestion, the language

of Ordinance 10 can easily be construed to preserve its

constitutionality, without having to rewrite the ordinance in

its entirety. The effective language of Ordinance 10

provides that “[t]here shall be no public nudity at a public

licensed establishment.” The majority construes this

language to encompass both public and private nudity and

to proscribe both animate nudity and the displaying or

1.23

exhibiting of inanimate nudes, either in pictures or

sculptures. The majority's broad construction of Ordinance

10 contravenes the common sense understanding of “public

nudity.”

942. Acloser “examination of the verbiage” of Ordinance

10 shows that such a broad construction is neither

necessary nor warranted. Wroten, 160 Wis.2d at 227. Based

on “the common sense meaning and purpose of the words

employed” in the Ordinance, Ann M.M. v. Rob S., 176

Wis.2d 673, 679, 500 N.W.2d 649 (1993),[fn13] the court

could reasonably construe the Ordinance to prohibit only

animate public nudity at establishments licensed by the

Town of Trenton to sell alcohol.

443. First, Ordinance 10 can be read to prohibit only

animate nudity. The Ordinance defines the word “nudity” as

“the showing or exposing” of certain parts or areas of the

human anatomy “with less than a full opaque covering.”

Not expressly included in this definition are the acts of

displaying, exhibiting, televising, sculpting, or drawing

inanimate nudes. Had the Town of Trenton wished to

proscribe such conduct it could have added the appropriate

language to the definition of “nudity.” It did not do so, and

neither should we.

444. Although the words “showing” and “exposing” may

be general and somewhat imprecise, they need not be

construed to include the displaying or exhibiting of pictures

1.24

or sculptures. As used in the context of Ordinance 10, the

word “show” is commonly defined as “to reveal (oneself) as

in one's behavior or condition,” The American Heritage

Dictionary 1671 (3d ed. 1992), and the word “expose” as

“to make visible” or “to make known.” Id. at-646.[fn14]

Applying the ordinary and accepted definitions of the words

“show” and “expose,” the court could reasonably construe

the word “nudity,” as defined by the Ordinance, as

including only those live acts performed by a person to

reveal or make visible certain parts of his or her anatomy.

Under this definition, “nudity” does not include inanimate

displays, exhibits, or programs including nude persons.

945. Second, Ordinance 10 does not prohibit nudity in all

forms; it prohibits only “public nudity.” The majority

construes the Ordinance as prohibiting both public and

private nudity, including the situation where consenting

adults are nude in a private hotel room. This broad

construction is inconsistent with a reasonable reading of the

express language in Ordinance 10.

446. Although the word “public,” as used in the context

of “public nudity,” is not defined by the Ordinance, [fn15]

the word is commonly understood to mean “to reveal to the

public a previously unknown or secret piece of information”

or “participated in or attended by the people or

community.” Id. at 1464 (emphasis added). Applying either

definition of “public” to the other defined language of tl e

Ordinance, the phrase “public nudity” can reasonably be

1.25

construed to include only a person's act or acts which reveal

to the members of the general public his or her nude body,

or specified parts or areas thereof. Under this available

construction, “public nudity” does not include the private

conduct of consenting adults in-private rooms where the

general public is not invited or allowed to attend or

participate in such conduct.

947. Thisconstruction of “public nudity” is supported by

the language found in both Exceptions A and B of the

Ordinance. Under the direction of Exception A, a court is

precluded from construing Ordinance 10 to restrict the

proper use of a public bathroom unless that room is used

for “any sexual or exhibitionist purpose to or in front of or

adjacent to other persons.” (emphasis added). Similarly,

Exception B specifically directs that the Ordinance is not to

be interpreted to prevent activities in a privately owned or

rented room if the person owning or renting that room “has

not invited or allowed members of the public, who are not

immediate family members, to be at such location.”

Although not perfectly drafted,[fnl6] the language of

Exceptions A and B of the Ordinance evince the Town's

intent not to prohibit private conduct by consenting adults

in private rooms unless members of the public are invited or

allowed to attend or participate in such conduct.

448. Third, Ordinance 10 does not reach all animate

public nudity; it prohibits such nudity ovily at “public

licensed establishments.” The majority is correct in stating

1.26

that the Ordinance does not specifically limit such

establishments to places of accommodation or amusement

licensed to sell alcohol. To be consistent with the language

and purpose of Ordinance 10, however, the court should

construe Ordinance 10 to reach only establishments licensed

to sell alcohol.

449. Ordinance 10 applies only to a “licensed

establishment.” The only license to which the Ordinance

specifically refers is the license to sell alcohol, which the

Town is authorized to issue and regulate under Wis. Stat.

§ 125.10. The record does not describe any other type of

establishment licensed by the Town of Trenton. In addition,

the Town concedes that the purpose of enacting Ordinance

10 was not to protect its community from the secondary

effects usually associated with adult entertainment

establishments; the purpose was to protect against such

secondary effects only as they are enhanced by the sale and

consumption of alcohol. That this is the limited purpose of

Ordinance 10 is supported by the facts in this case. During

this litigation, the Town has continued to allow the

Petitioner to offer at its public establishment nude and

semi-nude dancing, as long as the Petitioner does not also

serve or sell alcoholic beverages at that establishment. In

light of the language, purpose, and the Town's enforcement

of Ordinance 10, the court could reasonably construe the

Ordinance to reach only establishments licensed to sell

alcohol.

1.27

750. In short, the court can and should construe

Ordinance 10 as prohibiting only animate public nudity at

establishments licensed by the Town to sell alcohol.

Adopting this narrow construction would eliminate most of

the concerns raised in the hypothetical situations posed by

it the majority and by individual justices during oral

| arguments. Under this construction, Ordinance 10 would

I not prohibit two non-related adults from being nude in the

privacy of an art studio, a hotel room, or any other private

room; nor would it prevent “Joe's Tap” from hanging a

picture of a playmate on its wall; nor would it prohibit the

“public exhibition of artwork or artifacts depicting nudity”

or the “public display of a television program including brief

nudity.” Majority op. at 12.

451. I recognize that the construction offered in this

dissent is not the only possible construction of the language

in Ordinance 10. It is, however, an available common sense

reading of that language. It is not the duty of this court to

point out technical flaws in an ordinance or to strike an

ordinance due to its imprecise language. Rather, this court

has a duty to provide a narrowing construction of an

ordinance if one is available. See Thiel, 183 Wis.2d at 521.

In this case one is available.

452. Tobolster its broad reading of Ordinance 10, and to

1 attack a more narrow reading, the majority, rather than

analyzing the specific language of Ordinance 10, lobs empty

assertions of “futility,” “semantic convolutions,” and

“=y

1.28

“tortured conclusions.” Majority op. at 14. In so doing the

majority misconstrues the language of the Ordinance and

mischaracterizes the arguments in this dissent. To clarify

this dissent, it is necessary to address three such assertions

cast by the majority.

453. The majority asserts that the Ordinance is overbroad

largely because ofits generalized terminology[fn1 7] and “its

specific command that portions of the Ordinance be

‘interpreted broadly.”” Majority op. at 12. The majority's

use of the Ordinance's “specific command” is inaccurate and

misleading. The clear import of the majority's reference to

this specific Lammand is to establish the Town's legislative

intent that the Ordinance be interpreted broadly.[fn18] The

Ordinance, however, does not direct courts to interpret all

its language and provisions broadly. The Ordinance directs

courts to interpret broadly only those establishments

considered “place[s] of accommodation or amusement.”

The Ordinance does not direct courts to interpret broadly

the definition of“public nudity” or “licensed establishment.”

Despite the majority's assertion, the Ordinance does not

contain a legislative “command” that its language be

construed to prohibit nudity in all forms and in all public

establishments.

454. The majority next states that this dissent “negates

the plain language of the Ordinance and attempts to explain

that the word ‘showing’ does not mean ‘displaying’ or

“exhibiting.” Majority op. at 14. Again, the majority's

1.29

statement is inaccurate and misleading. This dissent

nowhere states or implies that the word “showing” cannot

be construed broadly to include “displaying” or

“exhibiting.” On the contrary, it recognizes that a number

of possible constructions of Ordinance 10 exist. One

available dictionary definition of “showing,” however, is

provided which limits the definition of “nudity” to include

only animate nudity. The apparent “futility” of this

argument is at least matched by the majority avoidance of

the issue. The majority fails to show, as it must to support

its reading of Ordinance 10, that the word “showing” can

only be construed to include “displaying” and “exhibiting.”

q 55 The majority then asserts that to limit the

Ordinance's scope to establishments licensed to sell alcohol,

the dissent must “strike and construe so much of the

definition that little of the original definition of ‘public’ as

used in ‘public licensed establishment,’ remains.” Majority

op. at 15. The majority then proceeds through an exercise

of striking and inserting language into the Ordinance's

definition of the term “public.” The majority's creation and

immediate destruction of this straw man argument is

inaccurate and misleading. Despite the majority's assertion,

this dissent does not suggest that Ordinance 10 does not

apply to all “public licensed establishments.” Rather, it

_ argues only that the term “licensed establishments” can be

construed to include all “public establishments,” as defined

by the Ordinance, that are licensed to sell alcohol. This

dissent does not attempt to limit “public” establishments to

1.30

“hotels, motels, resorts, restaurants, taverns, [licensed to

serve alcohol].” Majority op. at 15.

756. Given this court's duty to find an ordinance

constitutional if at all possible, it is unfortunate that the

majority rests on an analysis as superficial as its reading of

the Ordinance. Before admonishing the Town of Trenton to

enact an ordinance that “means what it says,” the majority

should first read what it said.

957. Second, the majority, after conceiving a single

impermissible application of the Ordinance, concludes that

the overbreadth of the Ordinance is both real and

substantial. This court has traditionally held that only a

statute that is substantially overbroad may be invalidated on

its face. See Thiel, 183 Wis.2d at 521; Wroten, 160 Wis.2d

at 226; Nelson, 149 Wis.2d at 451; K.F., 145 Wis.2d at

40-41; State v. Princess Cinema of Milwaukee, 96 Wis.2d

646, 656, 292 N.W.2d 807 (1980). Although this court has

not defined the term “substantially overbroad,” it has

instructed that in a facial challenge to a law, the court's first

task is “to determine whether the enactment reaches a

substantial amount of constitutionally protected conduct.”

K.F., 145 Wis.2d at 41 (quoting Houston v. Hill, 482 U.S.

451 (1987)) (emphasis added). Similarly, the court has

explained that although a court may consider hypothetical

applications of a challenged ordinance, the court “will not

deem a[n] . . . ordinance invalid because in some

conceivable, but limited, circumstances the regulation might

1.31

be improperly applied.” Id. at 40; see also Nelson, 149

Wis.2d at 452; Brandmiller v. Arreola, 199 Wis.2d 528,

546-47, 544 N.W.2d 894 (1996).

458. This requirement of substantial overbreadth is

derived directly from the purpose and nature of the

doctrine. See Ferber, 458 U.S. at 772. “[W]ithout a

substantial overbreadth limitation, review for overbreadth

would be draconian indeed. It is difficult to think of a law

that is utterly devoid of potential for unconstitutionality in

some conceivable application.” Id. at 772 n.27 (quoting

Note, The First Amendment Overbreadth Doctrine, 83

Harv. L. Rev. 844, 859 and n.61 (1970)).

459. In Ferber, the United States Supreme Court upheld

one section of New York's criminal statutes prohibiting

persons from “knowingly promoting sexual performances

by children under the age of 16 by distributing material

which depicts such performances.” Ferber, 458 U.S. at

749. The Court upheld the regulation even though some

protected expression, ranging from medical textbooks to

pictorials in The National Geographic, “would fall prey to

the statute.” Id. at 773. The Court concluded that the

impermissible applications of the statute would not amount

to “more than a tiny fraction of the materials within the

statute's reach.” Id. Under these circumstances, the Court

held that the regulation was “not substantially overbroad

and . . . whatever overbreadth may exist should be cured

through case-by-case analysis of the fact situations to which

1.32

its sanctions, assertedly, may not be applied.” Id. at 773-74

(quoting Broadrick, 413 U.S. at 615-16).

460. Similarly, in Broadrick, the Court upheld a section

of an Oklahoma law restricting the political activities of the

state's civil servants. The Court recognized that the

challenged law would prohibit covered employees from

wearing political buttons and from displaying political

bumper stickers on their vehicles. See Broadrick, 413 U.S.

at 618. Although it acknowledged that such restrictions

were impermissible, the Court concluded that the law need

not be “discarded in toto because some person's arguably

protected conduct may or may not be caught or chilled by

the statute.” Id.

461. Arregulation, therefore, should not be invalidated in

toto for overbreadth unless it reaches “a substantial number

of impermissible applications . . . .” Ferber, 458 U.S. at 771

(emphasis added). Simply conceiving of a single

impermissible application of an ordinance is not sufficient to

succeed on an overbreadth claim. See K.F., 145 Wis.2d at

41 (quoting Hill, 482 U.S. 451); see also City Council of

Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800

(1984).

462. For the purposes of this analysis, this dissent

assumes, as does the majority, that the Town of Trenton

has a legitimate, substantial interest in protecting its

community from the harmful secondary effects associated

1.33

with adult entertainment establishments. See Barnes v. Glen

Theatre, Inc., 501 U.S. 560, 581-84 (1991) (Souter, J.,

concurring); see also City of Renton v. Playtime Theatres,

Inc., 475 U.S. 41 (1986). In its overbreadth analysis, the

court must therefore accept that the Town of Trenton can

legitimately proscribe public nudity at adult entertainment

establishments. See Barnes, 501 U.S. at 572 (1990); Id. at

580-81 (Scalia, J., concurring); Id. at 587 (Souter, J.,

concurring). Accordingly, whether the overbreadth of

Ordinance 10 is substantial as well as real must be judged

in relation to the “plainly legitimate sweep” upheld in

Barnes. Broadrick, 413 U.S. at 615; see also Wroten, 160

Wis.2d at 226; K.F., 145 Wis.2d at 40-41.

463. As explained above, a narrow construction of

Ordinance 10 would eliminate a number of hypothetical

examples listed by the majority. If Ordinance 10 is

construed to prohibit only animate public nudity, it would

not chill the public exhibition of artwork or artifacts

depicting nudity, or the public display of a television

program including brief nudity. See majority op. at 12.

Stripped of these arguably illegitimate applications, the

majority is left with just one hypothetical situation upon

which to conclude that Ordinance 10 is substantially

overbroad. The majority argues that even under a narrow

construction the Ordinance could be used to prohibit live

artistic performances that do not implicate the secondary

effects associated with barroom erotic nude dancing.

Majority op. at 16. As this dissent has shown, simply

1.34

conceiving of this single impermissible application of

Ordinance 10 is not a sufficient basis upon which to

invalidate the Ordinance. See K.F., 145 Wis.2d at 41; see

also Brandmiller, 199 Wis.2d at 546-47; Nelson, 149

Wis.2d at 452.[fn19] |

464. Even ifthe court decides here for the first time that

one hypothetical application of an ordinance can result in

substantial overbreadth, the majority's analysis fails. The last

hypothetical situation posed by the majority is far from

substantial. In effect, the majority invalidates Ordinance 10

in toto because a ballet troupe or other group someday may

offer in the Town of Trenton Diaghilev's L'apres midi d'un

faune (1912) or a similar performance including nudity. See

majority op. at 17. In concluding that this single

hypothetical is both real and substantial, the majority

ignores the very limited reach of the Ordinance.

465. The deterrent effect and any overbreadth of

Ordinance 10 is necessarily limited to its reach. “While a

sweeping statute, or one incapable of limitation, has the

potential to repeatedly chill the exercise of expressive

activity by many individuals, the extent of deterrence of

protected speech can be expected to decrease with the

declining reach of the regulation.” Ferber, 458 U.S. at 772.

Ordinance 10 does not deny absolutely the right of Trenton

residents to attend, or the right of artists to offer, artistic ©

performances involving live nudity. Ordinance 10 only

prohibits a performer from appearing in a state of “nudity,”

1.35

as defined in the Ordinance, during an artistic performance

at an establishment licensed by the Town of Trenton to sell

* alcohol. The Ordinance, therefore, does not bar

performances involving nudity at theaters, performing arts

centers, auditoriums, or other establishments as long as

those establishments do not serve or sell alcohol. Perhaps

I am wrong in my estimation of how often a ballet troupe or

other group will perform in the nude at a tavern in the

Town of Trenton, but I think it is fair to say that the

legitimate scope of Ordinance 10 vastly exceeds the

illegitimate. :

66. Contrary to the conclusion of the majority, any real

and substantial overbreadth in Ordinance 10 can be cured

by means of a narrowing judicial construction of its

language. See Thiel, 183 Wis.2d at 522. Whatever

overbreadth remains after this narrowing construction

“should be addressed through case-by-case analysis of the

fact situations to which its sanctions, assertedly, may be

applied.” Broadrick, 413 U.S. at 615-16. The majority has

here employed the doctrine of substantial overbreadth

superficially rather than sparingly and has swallowed it as

an easy fix rather than as-manifestly strong medicine. I

therefore dissent.

467. As to the issue of overbreadth, I would affirm the

judgment of the circuit court for Pierce County.[fn20]

68. Iam authorized to state that Justice Jon P. Wilcox

1.36

joins this dissenting opinion.

[fa] [EDITORS' NOTE: THE TEXT CONTAINED

WITHIN THE BRACKETS WAS STRICKEN

THROUGH IN THE ORIGINAL TEXT. ]

[fnl] Unless otherwise noted, all future statutory

references are to the 1995-96 volumes.

[fn2] Circuit court for Pierce County, Robert W. Wing,

Judge.

[fn3] Town of Trenton Ordinance No. 10 states:

AUTHORITY: This ordinance is enacted pursuant to

power granted by virtue of present Wisconsin Statutes,

including Section 125.10.

RESTRICTIONS: There shall be no public nudity at a

public licensed establishment.

DEFINITION: Nudity means the showing or exposing of

the human male or female genitals, pubic area or buttocks

with less than a full opaque covering, or of the female

breast with less than a fully opaque covering of any portion

thereof below the top of the nipple.

Public means any place of accommodation or amusement,

1.37

which shall be interpreted broadly to include, but not be

limited to, places of business or recreation, hotels, motels,

resorts, restaurants, taverns and any place where

accommodations, amusement, goods or services are

available either free or for a consideration. Campgrounds

are also included.

Exceptions.

A. This ordinance is not to be interpreted as restricting the

proper use of a bathroom facility by a male or female in an

enclosed area where the person is of the same sex

designated for such room, and is not engaged in for any

sexual or exhibitionist purpose to or in front of or adjacent

to other persons.

B. This ordinance is not to be interpreted to prevent

activities in rooms privately rented in a hotel, motel, resort,

or camper if at a campground, if the person(s) involved

rented such private facility or owns it and has not invited or

allowed members of the public, who are not immediate

family members, to be at such location.

VIOLATION. Each violation of this ordinance shall result

in a forfeiture . . [V]iolation constitutes sufficient

grounds for board consideration of license suspension,

revocation, or nonrenewal where such violation occurred in

conjunction with or related to the activity licensed for.

1.38

[fn4] Lounge Management aiso claimed. that the

Ordinance was void for vagueness. The circuit court denied

the claim and Lounge Management does not appeal that

portion of the circuit court's ruling.

[fnS] The Town's motion to dismiss was supported with

material beyond the four corners of the complaint.

Accordingly, while we use the terms in the record, the

motion is more properly classified as one for summary

judgment.

[fn6] Wis. Stat. 893.80 states:

(1) . . . [N]Jo action may be brought or

maintained against any . . . governmental

subdivision .. . or agency thereof...

unless:

(a) Within 120 days after the happening of

the event giving rise to the claim, written

notice of the circumstances of the claim

signed by the party, agent or attorney is

served on the . . . governmental subdivision

.... Failure to give the requisite notice

shall not bar action on the claim ifthe... .

subdivision or agency had actual notice of

the claim and the claimant shows to the

satisfaction of the court that the delay or

failure to give the requisite notice has not

1.39

been prejudicial to the defendant .. .

subdivision or agency... .

[fn7] Because we find the Ordinance unconstitutional as

violative of the First Amendment of the United States

Constitution, we need not address Lounge Management's

failure to file a notice of claim on the state constitutional

challenge.

[fn8] We find the Town's reliance upon the court of

appeals decision in Schultz misplaced. Schultz determined

that Barnes was “not dispositive” because it “was not a

Twenty-first Amendment case.” Schultz v. Village of

Cumberland, 195 Wis.2d 554, 566, 536 N.W.2d 192 (Ct.

App. 1995). While this distinction may have deserved some

weight in the past, see City of Newport v. lacobucci, 479

U.S. 92 (1986), the United States Supreme Court has

recently held that “the Twenty-first Amendment does not

qualify the constitutional prohibition against laws abridging

the freedom of speech embodied in the First Amendment.”

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 516

(1996).

[fn9] “Public licensed establishment” is an otherwise

undefined term that when interpreted in the context of

campgrounds, hotels, and restaurants raises a host of

possible licensing requirements.

[fn10] The dissent asserts that we construe the Ordinance

1.40

“to encompass both public and private nudity and to

proscribe both animate nudity and the displaying or

exhibiting of inanimate nudes, either in pictures or

sculptures.” Dissent at 4. The dissent then asserts that

“{t}he majority's broad construction of Ordinance 10

contravenes the common sense understanding of ‘public

nudity.”” Id. As counsei for the Town conceded at oral

argument, the plain language of the ordinance could be

interpreted in just such a manner to apply to inanimate

nudity. Moreover, the dissent's statement confuses the order

of overbreadth analysis. We first examine the Ordinance as

it is written and only then attempt to construe the

Ordinance to save it.

[fnl1] Having determined that the Ordinance is facially

overbroad, we need not address the question of whether the

Ordinance is constitutional as applied.

[fn12] As the United States Supreme Court has explained,

the consequence of our departing from traditional rules of

standing in the First Amendment area is that any

enforcement of a challenged statute may be totally

forbidden, “not because [the litigants'] own rights of free

expression are violated, but because of a judicial prediction

or assumption that the statute's very existence may cause

others not before the court to refrain from constitutionally

protected speech or expression.” Broadrick v. Oklahoma,

413 U.S. 601, 612 (1973).

1.41

[fn13] The court's task in this case is no different than in

construing any statute; the court must apply the ordinary

and approved definitions of the language used by the Town

“to find the common sense meaning and purpose of the

words employed” in Ordinarice 10. Ann M.M. v. Rob S.,

176 Wis.2d 673, 679, 500 N.W.2d 649 (1993).

[fn14] In the absence of statutory definitions, this court

construes all words “according to their common and

approved usage[,]}” which may be established by dictionary

definitions. See Swatek v. County of Dane, 192 Wis.2d 47,

61, 531 N.W.2d 45 (1995) (quoting State v. Gilbert, 115

Wis.2d 371, 377-78, 340 N.W.2d 511 (1983)).

[fn15] The Ordinance does define the word “public” in the

context of a “public licensed establishment.” The definition

offered, however, could not reasonably apply to the phrase

“public nudity.” Since it is a basic rule of statutory

construction that courts give effect to every word of a

statute so that no portion of the statute is rendered

superfluous, see Lake City v. City of Mequon, 207 Wis.2d

156, 162, 558 N.W.2d 100 (1997), this court must give

effect to the word “public” as used in the context of “public

nudity.”

[fn16] As counsel for the Respondent conceded at oral

argument before this court, the language “who are not

immediate family members” in Exception B adds some

ambiguity to the scope of the Ordinance. Read in the

1.42

specific context of Exception B, however, the purpose of

this language is clear. The language qualifies only the field

of persons considered “members of the public.” Simply

because immediate family members are not considered

members of the public under the Ordinance, the court

should not construe this language to also mean that all

persons who are not immediate family members are

necessarily members of the public. Under the language of .

Exception B, a person's fiancee, for example, need not be

considered a “member of the public” simply because he or

she is not an immediate family member.

[fn17] The majority avoids any mention or analysis of the

specific terms in the Ordinance that it considers so general

as to cause the Ordinance to be overbroad. By refusing to

focus on the specific languege of the Ordinance, the

majority evades the analysis that would uncover the flaw in

its conclusion. The analysis the majority goes out of its way

to avoid is really quite simple. Ordinance 10 prohibits

“public nudity at a public licensed establishment.” In finding

the language of Ordinance 10 overbroad, the majority

construes “nudity” to include the display and exhibit of

artwork and artifacts; it construes “public nudity” to include

private nudity; and it construes “licensed establishments” to

include establishments other than those licensed to sell

alcohol. Although I agree that the Ordinance could be

construed this way, I do not accept the majority's position

that a more narrow construction is somehow “tortured.”

1.43

[fn18] See majority op. at 14 (stating “[w]e cannot apply

a limiting construction of which contravenes the expressed

intent of the Ordinance.”); Id. at 15-16 (stating “the plain

language of the Ordinance indicates an intent by the Town

Board to apply the Ordinance in a far broader manner than

acknowledged by the construed and severed interpretation

of the dissent.”); Id. at 16 (stating “the proffered

constructions of the Ordinance are inconsistent with the

broadly drafted terms and the purpose of the Ordinance.”).

[fn19] To avoid the controlling authority of City of

Milwaukee v. K.F., 145 Wis.2d 24, 40-41, 426 N.W.2d 329

(1988); City of Milwaukee v. Nelson, 149 Wis.2d 434, 452,

439 N.W.2d 562 (1989); and Brandmiller v. Arreola, 199

Wis.2d 528, 546-47, 544 N.W.2d 894 (1996), the majority

counts each play, musical, and ballet to which the

Ordinance someday may be applied as a separate

impermissible application of that Ordinance. If this is the

proper test under the substantial overbreadth doctrine, the

United States Supreme Court clearly erred in Broadrick,

413 U.S. 601, by upholding the Oklahoma statute without

first counting each political button, bumper sticker, and

souvenir potentially affected by that statute. Similarly, it

must have been an oversight that the Court in New York v.

Ferber, 458 U.S. 747, 769 (1982), upheld the New York

statute without first counting each magazine, pictorial, and

textbook that could fall prey to that statute. The majority

would have us believe that a town like Trenton cannot

proscribe live nude dancing in its taverns if the performers

1.44

also recite Shakespeare, play the trombone, or pirouette as

they show their breasts, genitals, and buttocks to the

audience. Such performances would certainly fall within the

majority's “artistic gamut.” Rather than strike the Ordinance

in its entirety, the court should consider the application of

the Ordinance to such performances on a case-by-case

basis. No matter how creatively the majority counts, the

application of the Ordinance to live nude performances at

establishments licensed to sell alcohol yields but a single

hypothetical application of that Ordinance.

[fn20] By striking as facially overbroad the Town of

Trenton's Ordinance 10, the majority has avoided, either by

design or convenience, the tougher question presented by

the case at bar: whether and to what extent the First

Amendment protects nude and semi-nude, non-obscene

dancing. I believe the court should have reached this issue.

APPENDIX B

No. 96-1853

IN COURT OF APPEALS OF WISCONSIN

DISTRICT iil

LOUNGE MANAGEMENT, LTD.,

Piaintiff-A ppellant,

v.

TOWN OF TRENTON,

Defendant-Respondent.

CERTIFICATION BY COURT OF APPEALS

OF WISCONSIN

Before LaRocque, Myse and Madden, JJ.

Pursuant to RULE 809.61, STATS., this court

certifies the appeal in this case to the Wisconsin Supreme

Court for its review and determination.

ISSUE

The issue is whether a municipal ordinance banning

public nudity in establishments licensed for sale of liquor is

overbroad and thereby an unconstitutional abridgement of

speech under the First Amendment. Two prior decisions of

the Wisconsin Court of Appeals have addressed public

nudity ordinances, reaching opposite conclusions, arguably

upon inconsistent interpretations of a decision of the United

States Supreme Court.

The plaintiff in this lawsuit operates a nightclub in

Pierce County, Wisconsin, and seeks to “showcase non-

obscene nude and semi-nude performers in the club.” The

Town of Trenton in Pierce County has adopted an

2.3

ordinance that declares: “There shall be no public nudity at

a public licensed establishment.” Plaintiffs motion for a

preliminary injunction enjoining enforcement of the

ordinance was denied by the circuit court. The court then

granted the Town a summary judgment declaring the

ordinance was not in violation of the First Amendment.

The generally accepted analysis of a claim that

prohibited conduct deserves First Amendment protection on

grounds that it constitutes “symbolic speech” is set forth in

United States v. O'Brien, 391 U.S. 367 (1968). O'Brien

rejected a First Amendment challenge to a federal statute

that criminalized draft card burning by a person seeking to

influence others to adopt his antiwar beliefs. O'Brien

employs a four-part inquiry, and asks whether: (1) the

government regulation is within the constitutional power of

el ATRL TIN DR RA TAG nn ah tdi fersin ac tiirheuho bit ¥ ree B ON apron ile ie

2.4

the government; (2) the regulation furthers an important or

substantial government interest; (3) the governmental

interest is unrelated to the suppression of free speech; and

(4) the regulation is narrowly tailored. Jd. at 377.

Some years after, the United States Supreme Court

applied the O’Brien test to a challenge to the State of

Indiana's “public decency” law barring complete nudity in

public places. Barnes v. Glen Theatre, 501 U.S. 560

(1991). Barnes, however, as a blueprint for resolving the

First Amendment issue is blurred by its separate opinions:

a three-justice plurality, two concurrences and four

dissenters.

Chief Justice Rehnquist delivered the plurality

opinion. As is true in the case before us now, there was no

serious challenge to the government's power to regulate. In

3.5

applying O'Brien's second prong, the plurality decided that

the important government interest furthered by the statute

is the protection of public order and morality. Barnes, 501

U.S. at 569. Further, the plurality states, this interest is

unrelated to suppression of free speech, and is aimed solely

at public nudity. Jd at 570. Finally, the plurality

concludes, the Indiana statute is sufficiently narrowly

tailored so as to be no greater than is essential to the

furtherance of that government interest. Id. at 571-72.

Justice Scalia concurred in the result but on different

grounds. He concluded that as a general law regulating

conduct and not specifically directed at expression, it is not

subject to First Amendment scrutiny at all. Jd. at 572.

Justice Souter, making up the five-member majority

upholding the law, also concurred. He, however, in

2.6

considering what important government interest was at

stake, did not rely upon the legislative concern for

community morality. Rather, he recognized the

government's desire to prevent the pernicious secondary

effects of live nude dancing: the deterioration of

neighborhoods and criminal activity, especially prostitution.

Id. at 582-85. With that interest in mind, Justice Souter

declared that the Indiana ban on public nudity is not

inherently related to expression, but only at combating

prostitution and other criminal activity. 7d. at 585. In light

of his declaration, he concluded that the fourth O'Brien

condition, that the restriction be no greater than is essential

to further the government interest, “requires little

discussion.” Barnes, 501 U.S. at 587. His opinion that the

Indiana statute law was sufficiently narrow observed that

aut

the requirement of pasties and a G-string was only a most

moderate restriction upon free expression:

Dropping the final stitch is prohibited, but

the limitation is minor when measured

against the dancer's remaining capacity and

Opportunity to express the erotic message.

Nor, so far as we are told, is the dancer or

her employer limited by anything short of

obscenity laws from expressing an erotic

message by articulate speech or

representational means ....

Id. at 587.

The Wisconsin Court of Appeals has had two prior

occasions to interpret Barnes. These cases, decided within

two weeks of each other, are Fond du Lac County v.

Mentzel, 195 Wis.2d 313, 536 N.W.2d 160 (Ct. App.

1995), filed June 14, 1995, and Schultz v. City of

Cumberland, 195 Wis.2d 554, 574, 536 N.W.2d 192, 200

(Ct. App. 1995) (Myse, J., dissenting), filed June 27, 1995.

ED ES I Re A a en ee a es 7

Pie OF eT aE ee eae) eae rine hs ited iE «hake

2.8

Mentzel applied Barnes to declare a Fond du Lac

County ordinance banning nude dancing in licensed

establishments unconstitutional. Schultz upheld a local

ordinance banning nude entertainment in_ licensed

establishments. Although Schultz decided that Barnes was

not dispositive, and applied a Twenty-First Amendment

analysis :elating to the police power to regulate liquor,

Schultz nevertheless includes an analysis of the holding of

Barnes different from and likely in conflict with Mentzel.

Mentzel begins with the premise that the Barnes

holding cannot be the three justice plurality opinion, but

must be found in the concurring opinion of Justice Souter.

Mentzel arrived at this premise by using the so-called

“Marks rule.” Mentzel, 195 Wis.2d at 325-26, 536

N.W.2d at 165. Marks v. United States, 430 U.S. 188

2.9

(1977), declared that when the Supreme Court issues a

fractured plurality decision, the opinion of the Justice

concurring in the judgment on the “narrowest grounds”

should be regarded as the Court's holding. Jd at 193.

Thus, Mentzel turned to Justice Souter's concurrence to

find the holding of Barnes. Mentzel, 195 Wis.2d at 326,

536 N.W.2d at 165.

Mentzel then concluded that because the “plain

reading of the ordinance reveals that many other forms of

unclothed entertainment that do not effectuate secondary

concerns would be subject to the ordinance,” it violates the

First Amendment. Jd. at 326, 536 N.W.2d at 165. The

ordinance, it concluded, would unconstitutionally restrict

many forms of expression that are protected, including, by

way of example, a nude modern dance by the New York

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2.10

City Ballet. Id.

This court decided Schultz almost simultaneously

with Mentzel. In Schultz, we upheld a city ordinance that

banned nude performances on premises licensed to sell

liquor. Schultz, however, discusses Barnes, including

Justice Souter's concurrence, in a different light from that

of Mentzel.

There are several concerns that arise when

considering these two published decisions of this court.

First, Schultz decided that the dispositive factor was the

application of the Twenty-First Amendment to

establishments licensed to sell liquor. In so doing, we

invoked several decisions of the United States Supreme

Court and others broadly interpreting the Twenty-First

Amendment's grant of state police powers to regulate traffic

2.11

in intoxicating liquors. Lounge Management now contends

that more recent decisions of the highest court, most

notably 44 Liquormart, Inc. v. Rhode Island, 116 S.Ct.

1495 (1996), effectively overturns the holding of Schultz.

44 Liquormart rejected Rhode Island's reliance upon the

Twenty-First Amendment to enact laws abridging

commercial speech in advertising of liquor. Jd. at 1501. In

so doing, the Supreme Court overruled language in several

previous cases suggesting that the Twenty-First

Amendment increased a state's power to restrict First

Amendment rights. Second, apart from the question of the

viability of Schultz in light of 44 Liquormart, Schultz gives

a broader reading of the holding in Barnes than is

consistent with Mentzel.

Finally, comments by counsel at oral argument in

2.12

Schultz, as well as reports of prosecutions in state news

reports, suggest that local ordinances banning public nudity

are widespread in Wisconsin. In light of Cook v. Cook, No.

95-1963 (Wis. Mar. 19, 1997), declaring an absence of

power of this court to overrule, modify or withdraw

language from previously published decisions, we certify

this matter for further consideration. '

‘ The Town raises a separate issue challenging

the failure to serve a notice of claim and notice of injury

pursuant to § 893.80, STATS. The circuit court ruled

that the Town had waived this issue. In any case, Felder

v. Casey, 487 U.S. 131 (1988), bars the application of the

notice of claim statute to claims made pursuant to the

United States Constitution. Lounge Management includes

a Claim that the ordinance in this case violates the First

statute is therefore not dispositive.

5

APPENDIX C

STATE OF WISCONSIN

CIRCUIT COURT - PIERCE COUNTY

LOUNGE MANAGEMENT, LTD.

RICHARD HOLST, AGENT

W5034 190TH AVENUE

MAIDEN ROCK, WI 54750

PLAINTIFF.

~ Case No.: 96-CV-8

V. Case Code: 30701/30704

Case Type: Declaratory Judgment/

Other Injunction Or Restraining Order

TOWN OF TRENTON

W7926 250TH STREET

HAGER CITY, WI 54014

DEFENDANT.

FINDINGS, ORDER AND JUDGMENT

3.2

The above-entitled matter came on for hearing on

Monday, May 6, 1996, at 9:30 a.m., before the Honorable

Robert W. Wing presiding, pursuant to the motion of the

defendant, Town of Trenton, to dismiss the plaintiff's

Complaint.

Catherine R. Quiggle appeared on behalf of the

defendant, Town of Trenton and Matthew A. Biegert

appeared on behalf of the plaintiff, Lounge Management,

Ltd.

FINDINGS

Based upon all the files, records and proceedings

herein, including the hearing and record related to the

plaintiff's earlier motion for a temporary injunction, the

Court finds as follows:

1. Failure to comply with notice requirements

3«3

of Wis. Stat. §893.80 is a defense related to personal

jurisdiction and is deemed waived by the defendant's failure

to raise it in its original answer to the plaintiff's Complaint;

z. Trenton Town Ordinance No. 10 is

constitutional;

3. The plaintiff's claim is not frivolous under

Wis. Stat. §814.025.

Based upon the above-findings the Court orders as

follows:

ORDER

¥. Trenton Town Ordinance No. 10 is declared

to be constitutional.

2. The Court denies the plaintiff's request for

injunctive relief restraining enforcement of Trenton

Ordinance No. 10.

3.4

3. The defendant's motion for costs and

reasonable attorneys fees under Wis. Stat. §814.025 is

denied.

JUDGMENT

For the reasons stated above, the Court hereby

denies the relief requested in the plaintiff's Complaint.

Dated this 14th day of May, 1996.

BY THE COURT:

Honorable Robert W. Wing

Circuit Court Judge

Pierce County, Wisconsin

4.1

APPENDIX D

TOWN OF TRENTON

Hager City, Wisconsin 54014

ORDINANCE NO. 10

The Town of Trenton, Pierce County, does ordain as

follows:

AUTHORITY. This ordinance is enacted pursuant to

power granted by virtue of present Wisconsin Statutes,

including Section 125.10.

RESTRICTIONS. There shall be no public nudity at a

public licensed establishment.

DEFINITION.

Nudity means the showing or exposing of

the human male or female genitals, pubic

area or buttocks with less than a full opaque

covering, or of the female breast with less

than a fully opaque covering of any portion

thereof below the top of the nipple.

Public means any place of accommodation

4.2

or amusement, which shall be interpreted

broadly to include, but not be limited to,

places of business or recreation, hotels,

motels, resorts, restaurants, taverns and any

place where accommodations, amusement,

goods or services are available either free or

for a consideration. Campgrounds are also

included.

Exceptions.

A. This ordinance is not to be interpreted as restricting

the proper use of a bathroom facility by a male or

female in an enclosed area where the person is of

the same sex designated for such room, and is not

engaged in for any sexual or exhibitionist purpose

to or in front of or adjacent to other persons.

B. This ordinance is not to be interpreted to prevent

activities in rooms privately rented in a hotel, motel,

resort, or camper if at a campground, if the

person(s) involved rented such private facility or

owns it and has not invited or allowed members of

the public, who are not immediate mani members,

to be at such location.

VIOLATION. Each violation of this ordinance shall result

in a forfeiture of not less than $500.00 nor more than

$1,000.00. When using a citation form of enforcement, the

4.3

deposit allowed shall be $500.00 for the first offense, or

$1,000.00 for a second or greater offense within five years.

Pursuant to procedures set forth in Wisconsin Statutes

125.12, or town ordinance, violation constitutes sufficient

grounds for board consideration of license suspension,

revocation, or nonrenewal where such violation occurred in

conjunction with or related to the activity licensed for.

Effect. This ordinance takes effect upon passage and

publication.

Dated this 9th day of April, 1992.

Donald R. Johnson Steven D. Thoms

Chairman Clerk

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5.1

APPENDIX E

Wisconsin Statute § 125.10:

125.10 Municipal regulation. (1) AUTHORIZATION.

Any municipality may enact regulations incorporating any

part of this chapter and may prescribe additional regulations

for the sale of alcohol beverages, not in conflict with this

chapter. The municipality may prescribe forfeitures or

license suspension or revocation for violations of any such

regulations. Regulations providing forfeitures or license

suspension or revocation must be adopted by ordinance.

(2) REGULATION OF UNDERAGE PERSONS.

A municipality or a county may enact an ordinance

regulating conduct regulated by s. 125.07(1) or (4)(a), (b)

or (bm), 125.085(3)(b) or 125.09(2) only if it strictly

conforms to the statutory subsection. A county ordinance

enacted under this subsection does not apply within any

municipality that has enacted or enacts an ordinance under

this subsection.

(3) ZONING. Except as provided in ss 125.05

and 125.68, this chapter does not affect the power of

municipalities to enact or enforce zoning regulations.

(4) REGULATION OF CLOSED RETAIL

PREMISES. A municipality may not prohibit the

permittee, licensee, employees, salespersons, employees of

wholesalers licensed under s. 125.28(1) or 125.54(1) or

Bs Aaa NG Mat iia ari. Sol bt mr DN dl a Oo gar oe pare :

5.2

service personnel from being present on premises operated

under a Class “A”, “Class A” or “Class C” license or under

a Class “B” or “Class B” license or permit during hours

when the premises are not open for business if those

persons are performing job-related activities.

History: 1981 c. 79, 202; 1983 a. 74 ss. 19, 32; 1985 a. 28 ss.

5, 9: 1987 a. 168; 1989 a. 31, 253; 1991 a. 39; 1993 a. 208.

i i

6.1

APPENDIX F

Wisconsin Statute § 125.12:

125.12 Revocations, suspensions, refusals to issue or

renew. (1) REVOCATION, SUSPENSION,

NONISSUANCE OR NONRENEWAL OF LICENSE.

Any municipality or the department may revoke, suspend or

refuse to renew any license or permit under this chapter, as

provided in this section.

(2) REVOCATION OR SUSPENSION OF

LICENSES BY LOCAL AUTHORITIES. (ag) Complaint.

Any resident of a municipality issuing licenses under this

chapter may file a sworn written complaint with the clerk of

the municipality alleging one or more of the following about

a person holding a license issued under this chapter by the

municipality:

1. The person has violated this chapter or

municipal regulations adopted under s. 125.10.

2. The person keeps or maintains a disorderly or

riotous, indecent or improper house.

3 The person has sold or given away alcchol

beverages to known habitual drunkards.

4. The person does not possess the quvlifications

required under this chapter to hold the license.

i The person has been convicted of

manufacturing, distributing or delivering a controlled

6.2

substance or controlled substance analog under s.

961.41(1); of possessing, with intent to manufacture,

distribute or deliver, a controlled substance or controlled

substance analog under s. 961.41(1m); or of possessing,

with intent to manufacture, distribute or deliver, or of

manufacturing, distributing or delivering a controlled

substance or controlled substance analog under a

substantially similar federal law or a substantially similar law

of another state.

NOTE: Subd. 5. is shown as affected by two acts of the

1995 legislature and as merged by the revisor under s.

13.93(2)(c).

6. The person knowingly allows another person,

who is on the premises for which the license under this

chapter is issued, to possess, with the intent to manufacture,

distribute or deliver, or to manufacture, distribute or deliver

a controlled substance of controlled substance analog.

(ar) | Summons. Upon the filing of the complaint,

the municipal governing body or a duly authorized

committee of a city council shall issue a summons, signed

by the clerk and directed to any peace officer in the

municipality. The summons shall command the licensee

complained of to appear before the municipal governing

body or the committee on a day and place named in the

summons, not less than 3 days and not more than 10 days

from the date of issuance, and show cause why his or her

license should not be revoked or suspended. The summons

and a copy of the complaint shall be served on the licensee

at least 3 days before the time at which the licensee is

commanded to appear. Service shall be in the manner

6.3

provided under ch. 801 for service in civil actions in circuit

court.

(b) Procedure on hearing. |. If the licensee does

not appear as required by the summons, the allegations of

the complaint shall be taken as true and if the municipal

governing body or the committee finds the allegations

sufficient, the license shall be revoked. The clerk shall give

notice of the revocation to the person whose license is

revoked.

2 Af the licensee appears as required by the

summons and denies the complaint, both the complainant

and the licensee may produce witnesses, cross-examine

witnesses and be represented by counsel. The licensee shall

be provided a written transcript of the hearing at his or her

expense. If the hearing is held before the municipal

governing body and the complaint is found to be true, the

license shall either be suspended for not less than 10 days or

more than 90 days or revoked.

3. If the hearing is held before a committee of a

city council, the committee shall submit a report to the city

council, including findings of fact, conclusions of law and

a recommendation as to what action, if any, the city council

should take with respect to the license. The committee

shall provide the complainant and the licensee with a copy

of the report. Either the complainant or the licensee may

tile an objection to the report and shall have the opportunity

to present arguments supporting the objection to the city

council. The city council shall determine whether the

arguments shall be presented orally or in writing or both.

6.4

If the city council, after considering the committee’s report

and any arguments presented by the complainant or the

licensee, finds the complaint to be true, or if there is no

objection to a report recommending suspension or

revocation, the license shall be suspended or revoked as

provided under subd. 2.

4. The municipal clerk shall give notice of each

suspension or revocation to the person whose license is

suspended or revoked.

5. If the municipal governing body finds the

complaint untrue, the proceeding shall be dismissed without

cost to the accused. If the municipal governing body finds

the complaint to be malicious and without probable cause,

the costs shall be paid by the complainant. The municipal

governing body or the committee may require the

complainant to provide security for such costs before

issuing the summons under par. (ar).

(c) Effect of revocation. When a license is

revoked under this subsection, the revocation shall be

recorded by the clerk and no other license issued under this

chapter may be granted within 12 months of the date of

revocation to the person whose license was revoked. No

part of the fee paid for any license so revoked may be

refunded.

(d) Judicial review. The action of any municipal

governing body in granting or failing to grant, suspending

or revoking any license, or the failure of any municipal

governing body to revoke or suspend any license for good

cause, may be reviewed by the circuit court for the county

6.5

in which the application for the license was issued, upon

application by any applicant, licensee or resident of the

municipality. The procedure on review shall be the same as

in civil actions instituted in the circuit court. The person

desiring review shall file pleadings, which shall be served on

the municipal governing body in the manner provided in ch.

801 for service in civil actions and a copy of the pleadings

shall be served on the applicant or licensee. The municipal

governing body, applicant or licensee shall have 20 days to

file an answer to the complaint. Following filing of the

answer, the matter shall be deemed at issue and hearing may

be had within 5 days, upon due notice served upon the

Opposing party. The hearing shall be before the court

without a jury. Subpoenas for witnesses may be issued and

their attendance compelled. The decision of the court shall

be filed within 10 days after the hearing and a copy of the

decision shall be transmitted to each of the parties. The

decision shall be binding unless it is appealed to the court of

appeals.

(3) | REFUSALSBYLOCAL AUTHORITIES TO

RENEWLICENSES. A municipality issuing licenses under

this chapter may refuse to renew a license for the causes

provided in sub. (2)(ag). Prior to the time for the renewal!

of the license, the municipal governing body or a duly

authorized committee of a city council shall notify the

licensee in writing of the municipality’s intention not to

renew the license and provide the licensee with an

opportunity for a hearing. The notice shall state the reasons

for the intended action. The hearing shall be conducted as

6.6

provided in sub. (2)(b) and judicial review shall be as

provided in sub. (2)(d). If the hearing is held before a

committee of a city council, the committee shall make a

report and recommendation as provided under sub. (2)(b)3.

and the city council shall follow the procedure specified

under that subdivision in making its determination.

(3m) REFUSALSBY LOCAL AUTHORITIES TO

ISSUE LICENSES. Ifa municipal governing body or duly

authorized committee of a city council decides not to issue

a new license under this chapter, it shall notify the applicant

for the new license of the decision not to issue the license.

The notice shall be in writing and state the reasons for the

decision.

(4) SUSPENSION OR REVOCATION OF

LICENSES ON COMPLAINT OF THE DEPARTMENT.

(ag) Complaint. A duly authorized employee of the

department may file a complaint with the clerk of circuit

court for the jurisdiction in which the premises of a person

holding a license issued under this chapter is situated,

alleging one or more of the following about a licensee:

1. That the licensee has violated this chapter.

2. That the licensee keeps or maintains a

disorderly or riotous, indecent or improper house.

3. That the licensee has sold alcohol beverages

to known habitual drunkards.

4. That the licensee has failed to maintain the

premises in accordance with the standards of sanitation

prescribed by the department of health and family services.

5. That the licensee has permitted known

6.7

criminals or prostitutes to loiter on the licensed premises.

6. That the licensee does not possess the

qualifications required under this chapter to hold the

license.

7. That the licensee has been convicted of

manufacturing, distributing or delivering a controlled

8. That the licensee knowingly allows another

person, who is on the premises for which the license under

this chapter is issued, to possess, with the intent to

manufacture, distribute or deliver, or to manufacture,

distribute or deliver a controlled substance of controlled

substance analog.

(ar) Summons. Upon the filing of the complaint,

the clerk of the court shall issue a summons commanding

the licensee to appear before the court not less than 20

days from its date of issuance and show cause why his or

her license should not be revoked or suspended. The

summons and a copy of the complaint shall be served at

least 20 days before the date on which the person is

commanded to appear. Service shall be in the manner

Fun

6.8

provided in ch. 801 for civil actions in circuit court.

‘(b) = Procedure on hearing. If the licensee does

not appear as required by the summons, the allegations of

the complaint shall be taken as true and if the court finds

the allegations sufficient, it shall order the license either

suspended for not more than 90 days or revoked. The

clerk of the court shall give notice of the suspension or

revocation to the person whose license is suspended or

revoked. Ifthe licensee appears and answers the complaint,

the court shall fix a date for the hearing not more than 30

days after the return date of the summons. The hearing

shall be had before the court without a jury. If upon the

hearing the court finds the allegations of the complaint to be

true, it shall order the license either suspended for not more

than 90 days or revoked. If the court finds the allegations

of the plaint to be untrue, the complaint shall be

dismissol

) (c) Effect of revocation or suspension. When a

license is revoked or suspended under this subsection, the

clerk of court shall notify the authority which issued the

license. If the license is revoked, no other license may be

issued under this chapter to the person whose license was

revoked or to any person related to him or her as owner,

lessor, bailor or lender, within the 12 months after the date

of revocation and no other license may be granted for the

premises covered by the revoked license within 60 days of

the date of revocation. The findings and order of the court

shall be filed within 10 days after the hearing and the order

shall be final unless appeal is taken to the court of appeals.

a‘ EPEC A IO A cy HT :

6.9

If an appeal is taken from a revocation, any period during

which the order is stayed shall be added to the 12 months

and 60 days, respectively. No part of the fee paid for any

license which is revoked may be refunded. Whenever any

court has revoked or suspended any license under this

subsection, no further proceedings shall be commenced

under this subsection except upon grounds arising after the

original revocation or suspension.

(S) | REVOCATIONS OR SUSPENSION OF, OR

REFUSALS TO RENEW, PERMITS BY THE

DEPARTMENT. The department may, after notice and an

opportunity for hearing, revoke, suspend or refuse to renew

any retail permit issued by it for the causes provided in sub.

(4) and any other permit issued by it under this chapter for

any violation of this chapter or ch. 139. A revocation,

suspension or refusal to renew is a contested case under ch.

227.

History: 1981 c. 79; 1983 a. 516; 1987 a. 93: 1993 a. 98; 1995

a. 27 s. 9126(19); 1995 a. 417, 448: s. 13.93(2)(c).

Due process and equal protection rights of licenses discussed.

Tavern League v. City of Madison, 131 W (2d) 477, 389 NW

(2d) 54 (Ct. App. 1986).