Archive for Wednesday, February 6, 2002

Judge upholds county resolution

Anti-nudity measure is constitutional

February 6, 2002

Leavenworth County District Judge Frederick Stewart on Wednesday upheld the constitutionality of the county's anti-nudity resolution.

The ruling came during a hearing for Wayne Eldridge, a former Leavenworth County commissioner who is charged with aiding and abetting public nudity, promoting prostitution and promoting obscenity at a private club he operates north of Basehor.

The charges were lodged after plainclothes sheriff's officers from Brown County were sent into Whispers Cabaret on March 22 to investigate allegations of nudity. The deputies, according to Leavenworth County Attorney Frank Kohl, saw lap dances and nudity.

Eldridge was chairman of the county commission in August 2000, when commissioners unanimously passed the county's anti-nudity resolution.

His attorneys, Dick Bryant, Kansas City, Mo., and Scott Troy, Tulsa, argued last week that resolution is unconstitutional.

"It targets representations of nudity which are clearly protected by the First Amendment," Troy said.

Stewart said he could see no grounds where the county's resolution is unconstitutional.

Regarding the charge of promoting prostitution, Troy said that according to his interpretation of police reports, prostitution had not taken place.

He also asked the judge to dismiss the promoting obscenity charge, saying that is expressive conduct, protected by the First Amendment. Judging whether an exotic dance is obscene is more difficult, he said, than judging whether a movie or printed materials which can be previewed are obscene.

"The dancer herself is the one that controls the exotic dance," he said.

Bryant supported Troy's contention.

"The issue is a little more complicated when you're dealing with a live performance," Bryant said.

Leavenworth County Attorney Frank Kohl defended filing of the three charges against Eldridge.

He said dancers at the club went beyond the bounds of the county's resolution.

"If the dancers want to appear and dance in an opaque body stocking they can do so," Kohl said. "If they want to dance in a bathing suit that satisfied the requirements in this resolution they can do so."

But Troy responded: "He's essentially stating to the court that it is not OK for them to wear pasties and g-strings and I assure the court that the Supreme Court says it is."

After hearing the arguments, Stewart said it is difficult to define obscenity. He quoted a former Supreme Court justice, Potter Stewart, who said he didn't know how to define obscenity: "'But I know it when I see it,'" Stewart said.

"I'll really have to see the evidence presented on the stand, and based upon the evidence, I'll be able to make a decision," he added.

Stewart set the next court date to hear evidence at 1 p.m. April 17, which he said would allow defense attorneys 60 days to take depositions and 30 days to prepare a brief.

Bryant said he intends to take depositions from sheriff's deputies from Brown County, as well as from other law enforcement officials from other jurisdictions in Kansas to learn what types of dance are accepted in other areas of the state.

"The primary thrust," Bryant said, "is to establish the fact that the dance that was being performed at Wayne's place was actually less provocative than occurs in other jurisdictions."

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