No. 90-264 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

CITY OF BILLINGS, 

Plaintiff and Respondent, 

JIMMY LEE LAEDEKE, 

Defendant and Appellant. < 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert W. Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert L. Stephens, Stephens Law Firm, Billings, 

Montana 

For Respondent: 

Russell C. Fagg, City Attorney, Billings, Montana 

Hon. Marc Racicot, Attorney General; John Paulson, 

Assistant Attorney General, Helena, Montana . . 6.. 

Submitted: January 18, 1991 

Decided: February 5, 1991 

Filed: &J CJ ./ ~f~zttfi 

CLERK OF SuPuEtaE GQU~ 

s.mm OF &Q~MSW 

clerk 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Jimmy Lee Laedeke appeals an order of the Thirteenth Judicial 

District, Yellowstone County, which upheld the constitutionality 

of 59 3-304(d) and (e), Billings, Montana City Code (BMCC), an 

ordinance banning certain forms of nude and semi-nude dancing. The 

District Court upheld the constitutionality and found Laedeke 

guilty of violating the ordinance. We affirm. 

Laedeke raises the following issues: 

1. Did the District Court err in finding that the City of 

Billings had authority to adopt regulatory ordinances for statelicensed retail liquor premises? 

2. Did the District Court err in concluding that the 

municipal ordinance did not violate state and federal constitutional provisions relatingto freedom of speech, freedom of expression, 

equal protection, due process, and vagueness and over-breadth? 

FACTS AND PROCEDURE 

In 1987, Jimmy Lee Laedeke worked as a male revue dancer at 

the Club Carlin, d/b/a Big Daddy's, an establishment licensed by 

the state to sell alcoholic beverages, in Billings, Montana. As 

a male revue dancer, Laedeke entertained the Club Carlin patrons 

by performing burlesque-type dance routines to music. Laedeke 

designed his own dance costumes, which consisted of various layers 

of clothing that he would progressively remove as his dance 

routines unfolded. 

2 
Laedeke began one of his dance routines dressed in a raincoat. 

Underneath his raincoat, Laedeke wore a bikini brief, equivalent 

to a speedo swimsuit, which was embellished with portrayals of 

Groucho Marx's nose, mustache and glasses on the front portion of 

the bikini. Underneath his 'tGroucho'l bikini, Laedeke wore two 

overlapping G-strings. A G-string, designed for a male, is a 

garment consisting of a pouch that covers the genital area with a 

narrow string attached to the pouch which runs up the buttocks and 

attaches to a narrow belt worn around the waist. Laedeke's top Gstring was of slightly larger proportions than the bottom Gstring. The arresting police officer testified that the smaller 

G-string's pouch barely covered Laedeke's genital area and its 

string was approximately one-eight inch wide. Laedeke would 

complete his routine by wearing only the smaller G-string. 

On the evening of November 6, 1987, the arresting police 

officer observed Laedeke while he was performing this particular 

dance routine. After viewing Laedeke's performance, the police 

officer left the Club Carlin to review relevant ordinances in 

connection to this performance. The police officer returned 

approximately one-half hour later and cited Laedeke with a 

violation of S 3-304, BMCC, which prohibits certain forms of nude 

and semi-nude dancing while Laedeke was again performing the same 

routine. Additionally, the arresting officer cited four other 

female performers that night, as well as the manager of the Club 

Carlin, for violating 5 3-304, BMCC, and in one instance, 3-301, 
BMCC, which requires live entertainment to remain on a platform or 

within an exclusive area while performing. 

Legal proceedings originated in the City Court of Billings. 

On December 17, 1987, Laedeke and five co-defendants moved to 

dismiss the case based on the unconstitutionality of 55 3-301 and 

-304, BMCC. On February 8, 1988, the defendants were found guilty 

of violating 53-304, BMCC, and in one instance, 1 3-301, BMCC. 

The defendants appealed to District Court. On October 6, 

1988, Laedeke consented to the withdrawal of Richard Stephens as 

his attorney and expressed his interest to represent himself pro 

se. On October 20, 1988, the District Court, by stipulation, 

dismissed with prejudice the appeal of the remaining defendants 

and ordered their respective bonds of $150.00 forfeited. Laedeke, 

however, continued his case, asserting the unconstitutionality of 

5 3-304, BMCC. 

Following a trial on January 11, 1990, the District Court 

found that the City of Billings had the authority to enact 5 3- 

304, BMCC, and that this ordinance was constitutional; the court 

also found Laedeke guilty of violating the ordinance, fined him 

$130.00, and assessed him a $20.00 court surcharge. From this 

decision, Laedeke further appeals. 

STANDARD OF REVIEW 

A "legislative enactment1# is presumed to be constitutional 

and will be upheld on review except when proven to be unconstitu4 
tional beyond a reasonable doubt. Fallon County v. State (1988), 

231Mont. 443, 445-46, 753 P.2d 338, 339-40 (citations omitted). 

ANALYSIS 

1. Did the District Court err in finding that the City of 

Billings had authority to adopt regulatory ordinances for statelicensed retail liquor premises? 

Laedeke argues that §§ 3-304(d) and (e), BMCC, are unconstitutional based on state preemption of regulation of establishments 

state-licensed to sell alcoholic beverages under the Montana 

Alcoholic Beverage Code, 5 16-1-101 to 16-6-314, MCA. We 

disagree. 

The pertinent language of the Montana Alcoholic Beverage Code, 

found under 5s 16-1-101(2) and -104, MCA, provides: 

It is hereby declared to be the policy of the 

state of Montana to effectuate and ensure the 

entire control of the manufacture, sale, and 

distribution of alcoholic beverages within the 

state of Montana, as that term is defined in 

this code, subject to the authority of the 

state of Montana through the Montana department of revenue. 

The purpose and intent of this code are to 

prohibit transactions in alcoholic beverages 

which take place wholly within the state of 

Montana except under state control as specifically provided by this code, and every section 

and provision of this code shall be construed 

accordingly. 

Sections 3-304 (d) and (e) , BMCC, provide: 

(d) Any owner, proprietor or person in charge 

of an establishment in which alcoholic bever- 
ages are sold or dispensed, who knowingly 

permits any person to appear clothed, costumed, unclothed, or uncostumed in such a 

manner that the lower part of his/her torso, 

consisting of the private parts, or genitalia, 

or anal cleft, or cleavage of the buttocks, is 

not covered by a fully opaque material, or is 

so thinly covered as to appear uncovered, is 

guilty of a misdemeanor. 

(e) Any person who intentionally appears with 

private parts uncovered in an establishment as 

in subsection (d), whether employed by the 

establishment or not, is guilty of a misdemeanor. 

The Montana Alcoholic Beverage Code grants the Department of 

Revenue Liquor Division the authority to regulate the llmanufacture, 

sale, and distribution of alcoholic beverages.I1 (Emphasis added.) 

The Code, however, does not grant the Department the authority to 

regulate the conduct that may occur in establishments statelicensed to sell alcoholic beverages. 

Here, Laedekels place of employment, the Club Carlin, was a 

Billings establishment state-licensed to sell alcoholic beverages 

to its patrons. Accordingly, the Montana Alcoholic Beverage Code 

applies to the regulation of the sale of alcoholic beverages 

within the Club Carlin. Sections 3-304(d) and (e), BMCC, are 

ordinances banning certain forms of topless and bottomless dancing 

which may occur in Billings establishments state-licensed to sell 

alcoholic beverages. Clearly, these ordinances in no way regulated 

the Club Carlin1s sale of alcoholic beverages to its patrons, but 

instead, regulated Laedekels conduct that occurred in the Club 

Carlin. This is simply not a llliquor-salett case as found in State 
ex rel. City of Libby v. Haswell (1966) , 147 Mont. 492, 414 P. 2d 

652, where we held that a city ordinance which granted a police 

court jurisdiction over the offense of selling beer to a minor 

under twenty-one years of age was invalid and preempted by the 

state. We therefore hold that the City of Billings had the 

authority to enact 55 3-304(d) and (e), BMCC, as the City of 

Billings was not preempted by the Montana Alcoholic Beverage Code 

to regulate conduct which may occur in state-licensed liquor 

establishments. 

2. Did the District Court err in concluding that the 

municipal ordinance did not violate federal and state constitutional provisions relating to freedom of speech, freedom of expression, 

equal protection, due process, and vagueness and over-breadth? 

Laedeke argues that restricting burlesque-type dancing is a 

violation of the First Amendment of the United States Constitution, 

as well as Article 2, 5 7 of the Montana Constitution, which states 

that I1[n]o law shall be passed impairing the freedom of speech or 

expressi~n.~~ Laedeke asserts that nude dancing, as a visual 

representation, is a form of protected expression if it is not 

found to be obscene citing 41 Op. Att'y Gen. 75 (1986), and here, 

uncontroverted evidence establishes that burlesque-type dancing 

featured at the Club Carlin was viewed by the performers as a form 

of artistic self-expression. Furthermore, Laedeke argues that no 
evidence exists in the record to establish that Laedekels performance was obscene. 

Laedeke additionally argues that the ordinance offends the 

principles of equal protection and due process in both the federal 

and state constitutions. Laedeke further argues that the ordinance 

is vague and overly-broad. Laedeke, however, failed to adequately 

brief the arguments of equal protection, due process, vagueness, 

and over-breadth in his brief to this Court, and, as such, this 

Court will not further address these arguments. We will therefore 

limit our discussion to whether 1) the ordinance violated the First 

Amendment of the United States Constitution, and 2) whether Article 

2, § 7 of the Montana Constitution provides greater protection for 

individual expressive activity than the First Amendment of the 

United States Constitution. 

Laedekels constitutional argument based on a First Amendment 

violation lacks merit in light of a series of three United States 

Supreme Court cases. Those cases clearly establish that an 

ordinance regulating nude and semi-nude dancing is constitutional 

under the broad language of the Twenty-first Amendment of the 

United States Constitution, which grants the states the power to 

regulate the sale of liquor. In City of Newport v. Iacobucci 

(1986), 479 U.S. 92, 107 S.Ct. 383, 93 L.Ed.2d 334, the Court 

upheld a Kentucky municipal ordinance, quite similar to the 

Billings ordinance in question, which banned certain forms of nude 

and semi-nude dancing in bars. The Court stated that the sweeping 

8 
language of the Twenty-first Amendment confers to states the 

authority to ban nude and semi-nude dancing in establishments 

state-licensed to sell liquor "'as a part of its liquor license 

control program.'" Iacobucci, 479 U.S. at 95 (citation omitted). 

Additionally, the Court held that states may delegate this 

authority Itas they see fit." Iacobucci, 479 U.S. at 96. The Court 

in Iacobucci cited New York State Liquor Authority v. Bellanca 

(1981), 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357, where the 

Court upheld a state statute banning nude dancing in bars. In 

Bellanca, the Court held that the state's interest of upholding 

order outweighed the interest of free expression under the First 

Amendment. Bellanca, 452 U.S. at 716-17. The Court in Iacobucci 

and Bellanca cited California v. LaRue (1972), 409 U.S. 109, 93 

S.Ct. 390, 34 L.Ed.2d 342, as authority, which upheld a state 

regulation banning nude dancing in bars holding that the Twentyfirst Amendment confers broad powers "over public health, welfare, 

and morals.'' LaRue, 409 U.S. at 114. 

Therefore, a municipality may enact an ordinance regulating 

nude and semi-nude dancing if the state has delegated its regulatory authority under the Twenty-first Amendment to the municipality. Here, the City of Billings is a municipality with selfgovernment powers. In Montana, a municipality with self-government 

powers "may exercise any power not prohibited by this constitution, 

law, or charter. It Mont. Const. Art. XI, 5 6. A Montana municipality with self-government powers is not expressly prohibited from 

9 
regulating nude and semi-nude dancing in establishments statelicensed to sell liquor. Therefore, the City of Billings, a 

municipality with self-government powers, may enact an ordinance 

that regulates nude and semi-nude dancing under the broad regulatory powers of the Twenty-first Amendment. 

Laedeke further argues that Article 11, 5 7 of the Montana 

Constitution, the "freedom of speech or expression" clause, 

provides greater protection for individual expressive activity than 

the First Amendment's ''freedom of speech" clause of the United 

States Constitution. In the past, this Court has discussed the 

First Amendment and its state counterpart without distinguishing 

between the two provisions. See Dorn v. Board of Trustees of 

Billings School District #2 (1983), 203 Mont. 136, 144-45, 661 P.2d 

426, 430-31. Several state courts, however, have developed state 

constitutional protections which limit state authority over nude 

entertainment apart from the Twenty-first Amendment. Some of these 

courts have held that the state's police power, though possibly not 

limited under the United States Constitution, is limited by the 

state constitution's free expression protections. See Mickens v. 

City of Kodiak (Alaska 1982), 640 P.2d 818, 821; Bellanca v. New 

York State Liquor Authority (N.Y. 1981), 429 N.E.2d 765, 766; 

Harris v. Entertainment Sys. Inc. (Ga. 1989), 386 S.E.2d 140, 142. 

We, however, concur with the Florida Supreme Court's analysis 

in City of Daytona Beach v. Del Percio (Fla. 1985), 476 Sc).2d 197, 
203-04, where, in upholding a municipal ordinance banning certain 

forms of nude and semi-nude dancing, the court stated: 

Assuming that Florida's constitutional protection of nude barroom dancing is coextensive 

with the federal protections (and we are not 

inclined to find a greater state protection in 

this instance), a municipality's inherent 

police power, exercised for the public health 

and welfare, may outweigh the minimal speech 

protection at stake here. "The regulation of 

activity which has demonstrated a capacity to 

induce breaches of the peace is a traditional 

and legitimate subject for the exercise of a 

municipality's police power." [citations 

omitted.] . . . While some may question the 

wisdom of regulating crime such as this, which 

said detractors might term victimless, the 

decision lies with the legislative body, not 

the courts. 

Here, we are also inclined not to find a greater state protection 

of nude and semi-nude dancing in establishments state-licensed to 

sell alcoholic beverages than what is afforded by the United States 

Constitution. Accordingly, we hold that the municipal ordinance 

in question is constitutionally sound under the Montana Constitution. 

Affirmed. 

" Chief Justice 
We concur: 
Justice William E. Hunt, Sr., dissenting: 

I dissent. There are many ways to express an opinion. Some 

people wrap themselves in the flag. Others burn it. But the 

majority of us silently regard it as an emblem of the freedom to 

express ourselves as we see fit. In dancing, there are many ways 

to express oneself, ways that the rest of us do not always regard 

as "our way.'' Some put on a pair of tights and perform classical 

ballet. Others attire themselves in fancy dress and promenade on 

a ballroom floor. Jimmy Lee Laedeke dons a Groucho Marx bikini and 

two G-strings and prances before the patrons of The Club Carlin. 

The Majority has danced the wild fandango in its zeal to 

ensure that Laedeke's routine shall never again see the footlights 

of Billings. First, it holds that the City is not preempted by 

state liquor-control law from enacting an ordinance forbidding nude 

and semi-nude dancing in establishments that serve alcohol because 

the ordinance restrains conduct rather than the manufacture, sale 

and distribution of alcohol. In the next breath, it holds that the 

ordinance is constitutional under the Twenty-First Amendment 

because it is part of a liquor-control program. 

The City cannot have it both ways. Either the ordinance was 

enacted as a part of a liquor-control program or it wasn't. If it 

was part of a liquor-licensing scheme, the City could not enact 

the ordinance because the area of alcohol sales has been 

affirmatively subjected to state control. If it wasn't part of a 

liquor-control program, and instead was enacted solely to regulate 
conduct, the ordinance does not fit under the broad base of power 

granted to the states under the Twenty-First Amendment. 

A state's authority to regulate conduct under the TwentyFirst Amendment is inextricably coupled with its authority to 

regulate the sale of alcohol. The amendment grants the State the 

ability to proscribe conduct because "[tlhe [s]tatets power to ban 

the sale of alcoholic beverages entirely includes the lesser power 

to ban the sale of liquor on premises where topless dancing 

occurs." New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 

717, 101 S.Ct. 2599, 2601, 69 L.Ed.2d 357, 361 (1981). Strip away 

the alcohol sales, as the Majority does in the first part of the 

Opinion, and you have an ordinance that no longer fits under the 

lesser protection of the Twenty-First Amendment. The ordinance 

instead becomes a conduct-restricting regulation subject to the 

greater degree of scrutiny given to all laws implicating the First 

Amendment. 

Thus, once the Majority determined that the City's ordinance 

was not preempted by the State because it regulated conduct rather 

than alcohol sales, it was required to review the constitutionality 

of the law under the standards pertaining to regulations that, on 

their face, restrict conduct for its communicative element. As 

Justice Marshall pointed out in his dissent to California v. LaRue, 

409 U.S. 109, 131, 138, 93 S.Ct. 390, 403, 407, 34 L.Ed.2d 342, 

359, 363 (1972), a case concerning California laws banning sexual 

conduct in bars and night clubs: 

[I]n order to restrict speech, the State must show that 

the speech is "used in such circumstances and [is] of 
such a nature as to create a clear and present danger 

that [it] will bring about the substantive evils that 

[the State] has a right to prevent." (Citations omitted. ) 

Classifications that discriminate against the exercise 

of constitutional rights per se . . . must be supported 

by a ttcompellingN governmental purpose and must be 

carefully examined to insure that the purpose is 

unrelated to mere hostility to the right being asserted. 

The ordinance could not pass scrutiny under this test because, as 

the City acknowledged in its brief, it has failed to make a showing 

of anv governmental interest furthered by the law. 

What I find most disturbing about the Majority's thinly veiled 

attempt to uphold this ordinance at any price is its failure to 

take this opportunity to put some teeth into our state 

constitutional guarantee of freedom of expression. 1972 Mont. 

Const. Art. 11, 5 7. In voting unanimously to include a specific 

provision for the freedom of expression in the Montana 

Constitution, the Bill of Rights Committee stated: 

Hopefully, this extension [of freedom of expression] will 

provide impetus to the courts in Montana to rule on 

various forms of expression similar to the spoken word 

and the ways in which one expresses his unique 

personality in an effort to re-balance the seneral 

backseat status of states in the safesuardins of civil 

liberties. The committee wishes to stress the primacy 

of these suarantees in the hope that their enforcement 

will not continue merely in the wake of the federal case 

a. (Emphasis added. ) 

Bill of ~ights committee Proposal, I1 Mont. Const. Convention 630 

(Feb. 23, 1972). 

Although the committee expressed the hope that the Montana 

Constitution's freedom of expression would give broader guarantees 

than the U.S. Supreme Court had accorded the right, this Court has 
refused to listen to this desire. Instead, the Majority today 

bestows lesser protection to the freedom of expression than that 

accorded by the federal court. The Majority has not required the 

City to demonstrate any governmental interest forwarded by this 

ordinance. Instead, it has placed the burden of proving 

unconstitutionality on Laedeke. And the standard the majority has 

demanded that he use, that of a reasonable doubt, is the most 

stringent standard of all. What a sad day it is when we allow a 

law that on its face constricts so fundamental a right to pass 

muster under the lowest possible scrutiny available. 

The fact that Laedeke dances to a different choreographer 

should not be a reason to deny him, and inferentially all of us, 

the basic constitutional right to express our feelings whether they 

are about the flag, dancing or Groucho Marx. 

I would reverse. 

lhzf?,d~&dA Justice 4,d!z~