Salt Lake City v. Kidd

This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 4IN THE
SUPREME COURT OF THE STATE OF UTAH
SALT LAKE CITY,
Appellee,
v.
KARLIE KIDD,
Appellant.
No. 20150280
Filed January 23, 2019
On Certification from the Court of Appeals
Third District, Salt Lake
The Honorable Judge Mark Kouris
No. 131401513
Attorneys:
Heather Lindsay, Salt Lake City, for appellee
W. Andrew McCullough, Midvale, for appellant
JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PETERSEN joined.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 Salt Lake City requires that any individual employed by an
escort service agency, or any other sexually oriented business, obtain
a license from the City before providing services. When Karlie Kidd
met an undercover Salt Lake City police officer at the Grand America
Hotel and asked him for a “show-up” fee, she did not possess such a
license. She did, however, have an escort services license from
Midvale City. Salt Lake City nevertheless cited Kidd for offering
escort services without a valid license.
SLC v. KIDD
Opinion of the Court
¶2 State law authorizes Salt Lake City and Midvale, as well as
any other municipality, to impose licensing requirements on
employees of sexually oriented businesses. This results in a
regulatory scheme where escorts must obtain licenses in each
jurisdiction in which they want to operate, if the jurisdiction requires
a license.
¶3 To Kidd, the statute promotes regulatory overkill and
burdens her constitutional rights because the license Midvale issued
to her satisfies Salt Lake City’s requirements and any legitimate
interest the City might have in regulating her profession. Kidd
claims that the imposition of multiple licensing requirements
violates her First Amendment and Equal Protection rights.
¶4 Because Kidd’s First Amendment argument is inadequately
briefed and because her Equal Protection claim was not properly
raised in the district court, we affirm her conviction.
BACKGROUND
¶5 Kidd and the escort service agency that employed her were
licensed to provide sexually oriented business services in Midvale.
Kidd was not, however, licensed by Salt Lake City to provide
sexually oriented business services in that municipality. To obtain
that license, Kidd would have been required to pay a fee and
provide her social security number, fingerprints, and criminal
history, as well as other personal information. See SALT LAKE CITY,
UTAH, CODE § 5.61.110. 1
¶6 An undercover Salt Lake City police officer answered Kidd’s
online advertisement and arranged to meet her at the Grand
America Hotel. Upon arrival, Kidd requested a “show-up” fee or
“donation.” The officer provided the payment; additional officers
then entered the room. They informed Kidd that they were police,
ran a records check, and ascertained that Kidd did not have a Salt
Lake City-issued sexually oriented business license. They cited Kidd
for violating Salt Lake City Code section 5.61.100.
¶7 Section 5.61.100 provides that “[i]t is unlawful for any
sexually oriented business to employ, or for any individual to be
employed by a sexually oriented business in the capacity of a
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1 Kidd argues that much to her consternation, she already
provided the same information to Midvale, along with a fee, to
obtain its license. See MIDVALE CITY, UTAH, CODE § 5.12.310.
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sexually oriented business employee, unless that employee first
obtains a sexually oriented business employee license.” The Salt
Lake City Code, like the Utah Code, deems escorts to be employees
of sexually oriented businesses.
¶8 The City defines “sexually oriented business” as “[n]ude
entertainment businesses, sexually oriented outcall services, adult
businesses, ‘seminude dancing bars’ and seminude dancing
agencies.” SALT LAKE CITY, UTAH, CODE § 5.61.040. While this
definition does not expressly mention escorts, the City’s definition of
“sexually oriented business employees” does, specifying that “[a]ll
persons making outcall meetings under this chapter, including
escorts, . . . shall be considered sexually oriented business
employees.” Id. The Utah Code is also explicit that escort service
agencies are “sexually oriented businesses.” UTAH CODE § 10-8-
41.5(1)(f)(i) (defining “[s]exually oriented business” as “a business at
which any nude or partially denuded individual . . . performs any
service for compensation”); id. § 10-8-41.5(1)(f)(ii) (noting that the
term “‘[s]exually oriented business’ includes . . . an escort service”). 2
¶9 Section 10-8-41.5 of the Utah Code expressly prohibits escorts
from providing sexually oriented business services in a city, if the
city requires that the employee be individually licensed and the
employee has not obtained such a license. UTAH CODE § 10-8-41.5(2)
(“A person employed in a sexually oriented business may not work
in a municipality: (a) if the municipality requires that a person
employed in a sexually oriented business be licensed individually;
and (b) if the person is not licensed by the municipality.”). Section
10-8-41.5 therefore mandates that escorts obtain a license in each city
in which they want to provide services, if that city requires a license.
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2 The Salt Lake City Code defines “escort” as follows: “Any
person who, for pecuniary compensation, dates, socializes, visits,
consorts with or accompanies . . . another or others,” or offers to do
so, “to or about social affairs, entertainment or places of amusement,
or within any place of public or private resort or any business or
commercial establishment or any private quarters.” SALT LAKE CITY,
UTAH, CODE § 5.61.040 (but excluding, for example, “persons who
provide business or personal services such as licensed private
nurses” or “services such as singing telegrams, birthday greetings or
similar activities”); see also UTAH CODE § 10-8-41.5(1)(c)(i) (defining
“escort” similarly).
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SLC v. KIDD
Opinion of the Court
¶10 Kidd challenged this regulatory framework before the
justice court. Kidd asserted that section 10-8-41.5 unconstitutionally
prohibited individuals from providing sexually oriented services if
they did not satisfy the license requirement of each city in which
they wanted to work. Kidd first raised these challenges in justice
court, without success. In a trial de novo before the district court,
Kidd reiterated her constitutional arguments. See generally UTAH
CODE § 78A-7-118(1) (providing that, upon timely appeal following
sentencing, criminal defendants are generally entitled to trial de
novo in district court).
¶11 More precisely, Kidd moved to dismiss the charges against
her, asserting that section 10-8-41.5 infringed her freedom of
expression by authorizing a city to impose “repetitive licensing
requirements” upon an escort already licensed in a “neighboring
city.” Kidd acknowledged she “did not have a Salt Lake City [e]scort
license at the time of this incident,” but asserted she “did have a
license in the neighboring cit[y] of Midvale.” She claimed her
Midvale license was “sufficient to meet the requirements of” the Salt
Lake City ordinance, and there was “no valid reason” for imposition
of “duplicative and expensive licensing procedures.”
¶12 In support of her argument, Kidd referenced several First
Amendment cases, but she did not connect them to the facts of her
case. Other than asserting that “[e]scorts are protected in their
profession by the First Amendment,” Kidd did not address what
speech was allegedly infringed. And with even less specificity, Kidd
asserted that section 10-8-41.5 violated her “rights to Equal
Protection of the Law.” She did not cite or apply equal protection
authorities to the facts of her case.
¶13 The district court denied the motion and Kidd entered a
conditional plea of no contest preserving her right to appeal the
constitutional questions. And the court of appeals certified the case
to this court.
STANDARD OF REVIEW
¶14 “The grant or denial of a motion to dismiss is a question of
law [that] we review for correctness, giving no deference to the
decision of the trial court.” State v. Hamilton, 2003 UT 22, ¶ 17, 70
P.3d 111 (citation omitted) (cleaned up).
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ANALYSIS
I. Jurisdiction
¶15 Before we turn to the merits of the case, we need to address
a jurisdictional question. Utah Code section 78A-7-118 provides that
when justice court proceedings are followed by a trial de novo in
district court, as was the case here, “[t]he decision of the district
court is final and may not be appealed unless the district court rules
on the constitutionality of a statute or ordinance.” UTAH CODE § 78A-
7-118(8).
¶16 The only written ruling in the record with respect to Kidd’s
motion to dismiss, and the constitutional arguments contained
therein, is the district court’s notation that Kidd’s motion was
“[d]enied.” While this matter was pending in front of the court of
appeals, but prior to transfer to our court, the court of appeals
questioned whether the district court’s denial constituted a “rul[ing]
on the constitutionality of a statute or ordinance” as section 78A-7-
118 requires.
¶17 Kidd then supplemented the record with a transcript. The
court of appeals subsequently certified the case, but did not address
the jurisdictional question it had raised.
¶18 In her briefing to this court, Kidd responds to the court of
appeals’ concern and argues that we have appellate jurisdiction
because the district court ruled on the statute’s constitutionality. The
City does not appear to disagree. Although this might seem to
resolve the question, “acquiescence of the parties is insufficient to
confer jurisdiction.” First Nat’l Bank of Layton v. Palmer, 2018 UT 43,
¶ 6, 427 P.3d 1169 (citation omitted). We must be “satisfied that we
have jurisdiction before reaching the merits.” Id.¶19 With the transcript in the record, we are assured that we
have jurisdiction because the district court “rule[d] on the
constitutionality of a statute or ordinance” as required for purposes
of section 78A-7-118. 3 We are therefore satisfied that appellate
jurisdiction exists.
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3 We agree with Kidd that we have jurisdiction to hear this case.
But we disagree with Kidd’s reasoning. Kidd asserts that by
certifying this case, the court of appeals “settled” the question of
whether jurisdiction exists. Kidd misunderstands the import of
certification.
(continued . . .)
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SLC v. KIDD
Opinion of the Court
II. First Amendment
¶20 Kidd first asserts that Utah Code section 10-8-41.5 “violates
[her] first amendment right to free speech, and particularly violates”
her right to “commercial speech.” We cannot reach the merits of this
claim, however, because Kidd does not identify the speech at issue in
this case, much less demonstrate that any such speech is protected
by the First Amendment. Kidd’s argument is inadequately briefed
and, as a result, she has failed to carry her burden of persuasion on
appeal.
¶21 As an initial matter, “it is the obligation of the person
desiring to engage in assertedly expressive conduct to demonstrate
that the First Amendment even applies.” Clark v. Cmty. for Creative
Non-Violence, 468 U.S. 288, 293 n.5 (1984). Here, Kidd needed to start
by pointing this court to the speech she claims the statute burdens.
Yet Kidd does nothing more than recite that, while employed as an
escort, she arrived at a hotel room and demanded a “show-up” fee.
Her argument assumes that the licensing requirement has infringed
Utah Code section 78A-4-103 empowers the court of appeals to
assign cases within its original jurisdiction to this court. UTAH CODE
§ 78A-4-103(3). By rule, the court of appeals may certify cases that
“will govern a number of other cases involving the same legal issue
or issues,” that present questions of “first impression under state or
federal law which will have wide applicability,” or that otherwise
“should be decided by” this court and on which this court would
“probably grant a petition for writ of certiorari.” UTAH R. APP.
P. 43(c). Certification is thus a procedural mechanism aimed toward
efficient resolution of matters of significant jurisprudential
importance. See id. It accomplishes only the transfer of a case from
one appellate court to another; it does not constitute a ruling on any
other issue.
Likewise, when a case otherwise appears to fit rule 43’s criteria,
our inability to reach the merits is not a conclusion that the case was
improperly certified. Certification usually occurs early in the
appellate process, and the existence or outcome of jurisdictional or
procedural issues on which resolution ultimately turns may not have
been sufficiently apparent in the briefing before the court of appeals.
Thus, although we hope certified cases have been vetted for
jurisdictional and preservation issues, certification should not be
viewed as a court of appeals plebiscite on those questions.
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her ability to engage in constitutionally protected speech, whatever
that speech might have been. In other words, Kidd leaves it to this
court to fill in the blanks about what speech or expressive conduct
might have occurred but for her failure to obtain a license. We are
not in a position to do that for Kidd. We could speculate on what
Kidd would do but for the statute, but judicial speculation cannot
overcome the presumption of constitutionality that we afford
legislation. “[A]ll statutes are presumed to be constitutional and the
party challenging a statute bears the burden of proving its
invalidity.” State v. Angilau, 2011 UT 3, ¶ 7, 245 P.3d 745 (citation
omitted). This Kidd did not do.
¶22 As noted above, Kidd characterizes her claim as resting
primarily—or perhaps entirely—on the infringement of her
commercial speech. But again, Kidd does not identify the
commercial speech at issue. She does make a passing assertion that
First Amendment protection has been afforded to escort service
agencies on what appears to be artistic (as opposed to commercial)
speech grounds. We express no opinion as to whether, or to what
degree, the First Amendment may protect escort services generally
or escort service providers individually. 4 We simply note that to
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4 Compare FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 224 (1990)
(plurality opinion) (noting that the ordinance at issue “applie[d] to
some businesses that apparently are not protected by the First
Amendment, e.g., escort agencies” (emphasis omitted)); Ctr. for Fair
Pub. Policy v. Maricopa Cty., 336 F.3d 1153, 1165 (9th Cir. 2003) (noting
that the statutory provision at issue “regulates both establishments
protected by the First Amendment—adult bookstores, video stores,
cabarets, motion picture theaters and theaters—and businesses that
have no such protection—escort agencies” (emphasis added)); id. at
1172 n.1 (Canby, J., dissenting) (agreeing with the majority that “the
statutory term ‘sexually-oriented businesses’ includes escort services
that presumably are not engaged in First Amendment-protected
activity”); IDK, Inc. v. Clark Cty., 836 F.2d 1185, 1195–97 (9th Cir.
1988) (concluding that “escort services’ activities are not protected by
the [F]irst [A]mendment”); with id. at 1200 (Reinhardt, J., dissenting)
(concluding that “[t]o the extent that association is constitutionally
protected, the first amendment applies to IDK (as well as to the
escorts and their patrons), despite the fact that IDK operates for
commercial ends”). See also Bushco v. Utah State Tax Comm’n, 2009 UT
73, ¶¶ 2, 6, 48, 54, 58, 225 P.3d 153 (rejecting First Amendment
(continued . . .)
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SLC v. KIDD
Opinion of the Court
assert a First Amendment claim, Kidd needs to start by identifying
and characterizing the speech at issue. And Kidd has failed to do so. 5
¶23 Kidd would then have needed to demonstrate what level of
protection the speech at issue receives and how the statute burdens
it. Kidd compounds this problem by citing cases applying various
First Amendment frameworks without explaining how those
distinctive legal principles might apply, either alternatively or in
combination. Kidd’s main contention appears to be that section 10-8-
41.5 fails as a regulation of commercial speech, and in support she
relies on Pacific Frontier v. Pleasant Grove City, which addresses a First
Amendment challenge involving commercial speech. 414 F.3d 1221,
1231–35 (10th Cir. 2005). But Kidd also relies on United States v.
O’Brien, which addresses regulation of conduct that implicates
protected expression. 391 U.S. 367, 376–77 (1968). She also cites
FW/PBS, Inc. v. City of Dallas, which addresses whether a regulation
constitutes an unconstitutional prior restraint due to inadequate
procedural safeguards. 493 U.S. 215, 223 (1990) (plurality opinion).
And while Kidd references other cases, she does little with them. For
example, she cites, without meaningful analysis, Tollis Inc. v. San
Bernardino County, which analyzes whether an ordinance may be
upheld as a content-neutral time, place, and manner regulation and
justified on the basis of secondary effects. 827 F.2d 1329, 1332–33 (9th
Cir. 1987).
challenges raised by “[p]laintiffs, a group of escort service agencies
and erotic dancing clubs,” without explicitly addressing whether the
escort service agencies were entitled to First Amendment protection,
and ultimately concluding that the “provisions of the statute
applying the tax [at issue] to escort services [were]
unconstitutionally vague”).
5 The next step would have been for Kidd to clearly identify the
alleged burden on her protected speech. Here again, Kidd’s briefing
fell short. Kidd alludes to the burden on escorts seeking to provide
services across Salt Lake County, but does not aver that she sought
to work in any municipality other than Salt Lake City and Midvale.
Thus, while she estimates the cost of obtaining a license in multiple
municipalities, she never claims that she would engage in First
Amendment-protected activities anywhere other than Salt Lake City
or Midvale.
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¶24 Undifferentiated citation to various First Amendment
frameworks will almost inevitably lead to inadequate briefing. See,
e.g., Cheek v. Clay Bulloch Constr. Inc., 2016 UT App 227, ¶¶ 30–33, 387
P.3d 611 (concluding that an argument was inadequately briefed,
due in part to the undeveloped assertion of “multiple contractual
theories, some of which are contradictory”). And requiring Kidd to
develop a cogent First Amendment argument is more than making
her run an appellate gauntlet before she can obtain relief. When a
party advances proto-arguments without developing them into
actual arguments, that party essentially asks this court to develop
those arguments for her. And then rule on those arguments, often
without the benefit of adversarial briefing because the opposing
party was not given a focused target at which to aim. This is not the
way we aspire to operate nor is it fair to the opposing party.
¶25 Because of the lack of clarity in Kidd’s legal argument, as
well as the absence of factual development noted above, we are
unable to reach the merits of her claim. In short, Kidd has failed to
develop an argument “that we can respond to” and has not
demonstrated that Utah Code section 10-8-41.5 is an unconstitutional
intrusion on First Amendment rights. See Rose v. Office of Prof’l
Conduct, 2017 UT 50, ¶ 82, 424 P.3d 134.
¶26 Although unnecessary to the resolution of this case, we
note two additional shortcomings of Kidd’s argument, as these
issues may arise in future cases. First, any First Amendment claim
should specify the breadth of the challenge, as well as the specific
relief sought. Yet Kidd never asserts whether she has raised a facial
statutory challenge or a challenge that the statute is unconstitutional
as applied to her, and her brief sometimes reads as if she is raising a
facial challenge and sometimes uses language usually associated
with an as-applied argument.
¶27 The distinction matters, both in terms of the tests applied
and the available remedy. See, e.g., Gillmor v. Summit Cty., 2010 UT
69, ¶ 27, 246 P.3d 102 (contrasting facial and as-applied
constitutional challenges); Bushco v. Utah State Tax Comm’n, 2009 UT
73, ¶ 49, 225 P.3d 153 (explaining the overbreadth doctrine as a basis
for a facial challenge on First Amendment grounds); see also United
States v. Stevens, 559 U.S. 460, 472 (2010) (contrasting “typical” facial
challenge requirements with an overbreadth challenge). The
distinction may also inform a court’s ability to reach the merits.
“Particularized facts are what allow a court to issue a narrowly
tailored and circumscribed remedy” in response to an as-applied
claim. Justice v. Hosemann, 771 F.3d 285, 292 (5th Cir. 2014).
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Opinion of the Court
¶28 Second, the posture of Kidd’s challenge is somewhat
unique. Kidd was cited for violation of a city ordinance but
challenged only the state statute authorizing that ordinance.
Whether Kidd could succeed on such a challenge without also
challenging the city ordinance, we need not and do not address. Nor
do we opine on whether the analytical framework might shift
depending on whether Kidd challenges the statute, the ordinance, or
both. 6 We simply note these issues and caution parties to keep them
in mind in future cases.
¶29 For the reasons set forth above, Kidd has failed to persuade
us that the district court erred in denying her motion to dismiss with
respect to her First Amendment claim.
III. Equal Protection
¶30 Kidd also asserts that section 10-8-41.5 “denies [her] the
Equal Protection of the Law in violation of the Fourteenth
Amendment.” Because Kidd did not adequately preserve this
argument before the district court, we do not address it.
¶31 “As a general rule, claims not raised before the trial court
may not be raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 11, 10
P.3d 346. This “preservation rule applies to every claim, including
constitutional questions, unless a defendant can demonstrate that
exceptional circumstances exist or plain error occurred.” Id. (internal
quotation marks omitted). Kidd has not advocated that either of
those exceptions apply here.
¶32 Preservation requires that an issue “be presented to the trial
court in such a way that the trial court has an opportunity to rule on
[it].” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801(citation omitted). We have stated that the preservation
“requirement puts the trial judge on notice of the asserted error and
allows for correction at that time in the course of the proceeding.” Id.“For a trial court to be afforded an opportunity to correct the error
(1) the issue must be raised in a timely fashion[,] (2) the issue must
be specifically raised[,] and (3) the challenging party must introduce
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6 We also do not address Kidd’s failure to distinguish between
any First Amendment protection potentially afforded escort agencies
generally, based on artistic or other services provided by the agency
as a whole, and any First Amendment protection that might be
afforded her as an individual escort service provider.
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supporting evidence or relevant legal authority.” Id. (alterations in
original) (citation omitted) (internal quotation marks omitted).
¶33 These principles also govern Kidd’s assertion of a
constitutional violation. “Preservation requires affording the district
court a meaningful opportunity to rule on the ground that is
advanced on appeal, and that implies, at a minimum, not just the
invocation of a legal principle but also its application to the facts of
the case.” Hill v. Superior Prop. Mgmt. Servs., Inc., 2013 UT 60, ¶ 46,
321 P.3d 1054.
¶34 In district court, Kidd primarily asserted that her First
Amendment rights had been infringed. But on a few occasions, she
incanted the phrase “equal protection.” For example, Kidd asserted
that “[i]nsofar as [section] 10-8-41.5 [a]uthorizes the City to require
the additional license, the statute violates [her] First Amendment
rights, and also [her] rights to Equal Protection of the Law under the
Fourteenth Amendment.” But Kidd did not cite and apply equal
protection principles to her case. Indeed, the sole equal protection
authority Kidd cites on appeal, Romer v. Evans, 517 U.S. 620 (1996),
appears nowhere in her argument below.
¶35 Mere mention of a constitutional right, phrase, or principle
does not raise a constitutional claim. See 438 Main St., 2004 UT 72,
¶ 51 (requiring introduction of relevant legal authority); cf. Rose, 2017
UT 50, ¶ 80 (noting, “[a]t the risk of sounding pedantic, a federal
equal protection argument should at the very least reference” the
constitutional provision as well as “the case law interpreting that
clause”). The concept of preservation—and the principles underlying
its application—would be undone were we to conclude that, in this
instance, Kidd made and preserved a claim that section 10-8-41.5
“denies [her] the Equal Protection of the Law in violation of the
Fourteenth Amendment.” A party may not simply point toward a
pile of sand and expect the court to build a castle. In both district and
appellate courts, the development of an argument is a party’s
responsibility, not a judicial duty.
¶36 Accordingly, we conclude that Kidd did not preserve her
Equal Protection claim in the district court and we do not address it.
CONCLUSION
¶37 Kidd did not preserve her Equal Protection challenge in the
district court and has not adequately briefed her First Amendment
challenge on appeal. We affirm.
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