History of the Proposed Obscenity Ordinances in Yellowstone County
December 2002
Dallas Erickson of Ravalli County submitted two proposed petitions for initiatives to the Yellowstone County Election Administrator. One concerned the enactment of a county obscenity ordinance. The other concerned the enactment of an amendment to the county zoning regulations related to sexually oriented businesses.
January 2003
The Yellowstone County Board of County Commissioners directed the Yellowstone County Attorney’s Office to file an action requesting the district court to determine the legality of the proposed initiatives. The Board of County Commissioners felt that both ordinances appeared defective.
November 7, 2003
District Judge Fagg ruled that both proposed initiatives were valid and legal and both could be brought before the voters of Yellowstone County for consideration. Judge Fagg based his decision on the “unshakable belief in our jury system and our democratic system…the collective wisdom of the majority of voters, as well as the collective wisdom of 12 jurors.” (Cause No. DV 03-70, Yellowstone County vs. Dallas Erickson)
As a result of this decision, Dallas Erickson did not pursue the signature-gathering necessary to have his petitions brought before the voters. Instead, both Yellowstone County and Dallas Erickson, “sensing that the proposed initiatives would be subject to subsequent claims, claims that would cost the parties considerable time and expense defending,” decided to appeal the decision in a “friendly lawsuit” before the Montana Supreme Court. Both Yellowstone County and Dallas Erickson wanted a ruling that would “insure that the initiative process, if affirmed, could proceed to the signature stage in preparation of a county-wide vote on the merits of the proposed initiatives.” (Case No. 04-203, Yellowstone County vs. Dallas Erickson)
April 2004
Yellowstone County Deputy Attorney Kevin Gillen argued before the Montana Supreme Court that both proposed initiatives were “defective as a matter of law” and concluded that the District Court “erred when it concluded that both proposed initiatives were valid.” (Case No. 04-203, Yellowstone County vs. Dallas Erickson)
Following are the main points the county submitted in support of their argument:
1) Arguments Against the Proposed Obscenity Ordinance
a. The proposed obscenity ordinance is overbroad and Yellowstone County does not have the authority to adopt an obscenity statute relative to adults that is more restrictive than current state law.
b. The proposed ordinance would impermissibly burden intrastate exercise of free expression.
c. The proposed ordinance would impose a different standard of criminal conduct and corresponding criminal penalties.
d. The proposed ordinance is unconstitutionally vague.
e. The respondent’s (Dallas Erickson’s) proposed obscenity ordinance is unconstitutional because it would ban obscene materials in private settings between consenting adults.
2) Arguments Against the Proposed Sexually Oriented Business Ordinance
a. Yellowstone County does not have authority to adopt an ordinance that regulates a business practice.
b. The Yellowstone County Board of County Commissioners adopted a joint city-county growth policy on September 11, 2003
c. Even if Yellowstone County had authority to enact respondent’s (Dallas Erickson’s) proposed ordinance, this type of zoning request is unconstitutionally defective.
May 2004
Dallas Erickson responded to only two of Yellowstone County’s arguments, arguing that 1) state legislation recognizes that local communities “may constitutionally ‘raise the bar’ of obscenity above the minimum standards” and 2) sexually oriented businesses (SOBs) are subject to county zoning authority. (Case No. 04-203, Yellowstone County vs. Dallas Erickson).
August 2004
The Montana Supreme Court declined to address the “merits of the appeal” because they determined that the appeal presented no justiciable controversy (i.e. a controversy that could be settled by a court of law).” Because the courts of Montana have no authority to give advisory opinions, the existence of an actual controversy is needed before a court can exercise jurisdiction. The court sites Section 7-5-135 of the Montana Code which states that “a suit to test the validity of a proposed action ‘must be initiated within 14 days of the date a petition has been approved’” and that the 90-day period during which petition signatures must be collected “begins on the date of the court order resolving the suit…. The District Court’s order was dated November 7, 2003. The signatures were not collected and filed within 90 days thereafter.” The Supreme Court concluded “that unless a petitioner complies with or is in the process of complying with the signature requirements…an appeal from a district court decision…does not present a justiciable controversy.” The case was dismissed.
October 2005
Chief Deputy County Attorney Dan Schwarz forwarded to the Planning and Community Services Department the proposed text amendment regarding the zoning of sexually oriented businesses. The Board of County Commissioners initiated this amendment. The proposed amendment is identical to the one presented to Judge Fagg for ruling in 2003, the one drafted by Dallas Erickson.
January 2006
YCC placed notices in the Gazette for public hearings about the proposed ordinances.
January 17, 2006
The County Zoning Commission held a public hearing on the amendment to the zoning regulation that representatives from Montana Help Our Moral Environment (Montana H.O.M.E.), Dallas Erickson, Citizen’s Against Sexual Exploitation (C.A.S.E.) and Reverend Ron Palmer requested. The Commission heard testimony before recommending denial of the proposed changes. This recommendation was based on the following reasons:
Detrimental Financial Impact to the County and its taxpayers: The proposed changes makes the county vulnerable to significant financial burden in both enforcing the new ordinance and in defending the likely legal challenges to the adopted text amendment.
The proposed changes present several difficulties including terms that are not defined, regulation of the interior design of buildings, references to case law and studies that have not been presented to the Board of County Commissioners for consideration, and proposals to regulate the day-to-day operations of sexually oriented businesses.
The County Planning staff believes that many of the proposed sections of the code exceeds the authority granted to enact zoning regulations as stated within Montana Code and within the Unified Zoning Regulations.
(See Zone Change #591 Public Hearing on January 17, 2006)
February 17, 2006
The Yellowstone Board of County Commissioners filed a Resolution of Intent to Enact County Obscenity Ordinance. Citing Section 45-8-201(5) of the Montana Code Annotated, the board states that they have the authority to enact a county obscenity ordinance. Citing Section 7-5-132, they state they have the authority to submit a proposed ordinance to a referendum by the voters. They name the Citizens Against Sexual Exploitation as the author of the proposed amendment.
On the same day, the Board of County Commissioners submitted a Resolution of Intent to Amend Zoning Regulations as to Sexually Oriented Businesses. Citing Sections 76-2-201 and 76-2-205, they state they have the authority to adopt and amend a county’s zoning regulations. Citing Section 7-5-132, they state they have the authority to submit a proposed ordinance to a referendum by the voters. They name the Citizens Against Sexual Exploitation as the author of the proposed amendment.
Summary
No signatures were ever gathered from the residents of Yellowstone County after the dismissal by the Montana Supreme Court.
The merits of the proposed ordinances were never addressed by the Montana Supreme Court, and the arguments put forth by Yellowstone County in both the district court and the Supreme Court are still valid and are still unanswered.
The county commissioner’s and the county attorney’s concerns about the constitutionality of the proposed laws and possible lawsuits they will draw have inexplicably disappeared.
That the County Commissioners unanimously decided to let the proposals go to the ballot after the Supreme Court case was dismissed on a technicality is a complete mystery.
The sudden naming of the Citizens Against Sexual Exploitation as the authors of the proposed amendments in the county’s resolutions of intent (instead of Dallas Erickson) is also a mystery.
Judge Fagg’s decision states that voters and 12 jurors should decide the constitutionality of the ordinances. Dallas Erickson’s history of court cases (Ravalli County vs. Dallas Erickson, etc.) suggests that he intends to use Yellowstone County as a legal battleground for his personal agendas.
Similar ordinances drafted by Dallas Erickson were passed in Ravalli County only to be struck down after a lawsuit found the ordinances unconstitutional.
Questions
Why, when the Supreme Court had not answered any of the county’s concerns regarding the legality and constitutionality of the proposed ordinances, did the county unanimously decide to put both ordinances on the ballot fourteen months after the Supreme Court dismissed the case on a technicality?
What happened to cause the board of commissioners and the county attorney to decide that the laws were no longer “defective” or unconstitutional and needed to go before the voters without any signature gathering whatsoever?
Why did the county commissioners not require the signature-gathering that the Supreme Court cited as being needed for them to consider the merits of the case?
How much money was spent by the county in taking the case to the district court and then to the Supreme Court? How much has the county allotted in the budget for future trial costs in defending the ordinances if the voters pass them?
Why is there an apparent reversal in thinking on the county’s part between what was argued in the district court and the Supreme Court and their use of the Judge Fagg’s decision as the basis for enacting the ordinances now?
Why does the board no longer think that a negative financial impact on the county due to a passage of these “defective” ordinances is no longer a concern? This was part of the original argument of the county’s and the Zoning department staff has more recently recommended not putting this before voters for the same reasons.
Does the board now believe that Judge Fagg’s decision is correct? That voters and trial jurors should decide the constitutionality of the proposed ordinances?
Dallas Erickson of Ravalli County submitted two proposed petitions for initiatives to the Yellowstone County Election Administrator. One concerned the enactment of a county obscenity ordinance. The other concerned the enactment of an amendment to the county zoning regulations related to sexually oriented businesses.
January 2003
The Yellowstone County Board of County Commissioners directed the Yellowstone County Attorney’s Office to file an action requesting the district court to determine the legality of the proposed initiatives. The Board of County Commissioners felt that both ordinances appeared defective.
November 7, 2003
District Judge Fagg ruled that both proposed initiatives were valid and legal and both could be brought before the voters of Yellowstone County for consideration. Judge Fagg based his decision on the “unshakable belief in our jury system and our democratic system…the collective wisdom of the majority of voters, as well as the collective wisdom of 12 jurors.” (Cause No. DV 03-70, Yellowstone County vs. Dallas Erickson)
As a result of this decision, Dallas Erickson did not pursue the signature-gathering necessary to have his petitions brought before the voters. Instead, both Yellowstone County and Dallas Erickson, “sensing that the proposed initiatives would be subject to subsequent claims, claims that would cost the parties considerable time and expense defending,” decided to appeal the decision in a “friendly lawsuit” before the Montana Supreme Court. Both Yellowstone County and Dallas Erickson wanted a ruling that would “insure that the initiative process, if affirmed, could proceed to the signature stage in preparation of a county-wide vote on the merits of the proposed initiatives.” (Case No. 04-203, Yellowstone County vs. Dallas Erickson)
April 2004
Yellowstone County Deputy Attorney Kevin Gillen argued before the Montana Supreme Court that both proposed initiatives were “defective as a matter of law” and concluded that the District Court “erred when it concluded that both proposed initiatives were valid.” (Case No. 04-203, Yellowstone County vs. Dallas Erickson)
Following are the main points the county submitted in support of their argument:
1) Arguments Against the Proposed Obscenity Ordinance
a. The proposed obscenity ordinance is overbroad and Yellowstone County does not have the authority to adopt an obscenity statute relative to adults that is more restrictive than current state law.
b. The proposed ordinance would impermissibly burden intrastate exercise of free expression.
c. The proposed ordinance would impose a different standard of criminal conduct and corresponding criminal penalties.
d. The proposed ordinance is unconstitutionally vague.
e. The respondent’s (Dallas Erickson’s) proposed obscenity ordinance is unconstitutional because it would ban obscene materials in private settings between consenting adults.
2) Arguments Against the Proposed Sexually Oriented Business Ordinance
a. Yellowstone County does not have authority to adopt an ordinance that regulates a business practice.
b. The Yellowstone County Board of County Commissioners adopted a joint city-county growth policy on September 11, 2003
c. Even if Yellowstone County had authority to enact respondent’s (Dallas Erickson’s) proposed ordinance, this type of zoning request is unconstitutionally defective.
May 2004
Dallas Erickson responded to only two of Yellowstone County’s arguments, arguing that 1) state legislation recognizes that local communities “may constitutionally ‘raise the bar’ of obscenity above the minimum standards” and 2) sexually oriented businesses (SOBs) are subject to county zoning authority. (Case No. 04-203, Yellowstone County vs. Dallas Erickson).
August 2004
The Montana Supreme Court declined to address the “merits of the appeal” because they determined that the appeal presented no justiciable controversy (i.e. a controversy that could be settled by a court of law).” Because the courts of Montana have no authority to give advisory opinions, the existence of an actual controversy is needed before a court can exercise jurisdiction. The court sites Section 7-5-135 of the Montana Code which states that “a suit to test the validity of a proposed action ‘must be initiated within 14 days of the date a petition has been approved’” and that the 90-day period during which petition signatures must be collected “begins on the date of the court order resolving the suit…. The District Court’s order was dated November 7, 2003. The signatures were not collected and filed within 90 days thereafter.” The Supreme Court concluded “that unless a petitioner complies with or is in the process of complying with the signature requirements…an appeal from a district court decision…does not present a justiciable controversy.” The case was dismissed.
October 2005
Chief Deputy County Attorney Dan Schwarz forwarded to the Planning and Community Services Department the proposed text amendment regarding the zoning of sexually oriented businesses. The Board of County Commissioners initiated this amendment. The proposed amendment is identical to the one presented to Judge Fagg for ruling in 2003, the one drafted by Dallas Erickson.
January 2006
YCC placed notices in the Gazette for public hearings about the proposed ordinances.
January 17, 2006
The County Zoning Commission held a public hearing on the amendment to the zoning regulation that representatives from Montana Help Our Moral Environment (Montana H.O.M.E.), Dallas Erickson, Citizen’s Against Sexual Exploitation (C.A.S.E.) and Reverend Ron Palmer requested. The Commission heard testimony before recommending denial of the proposed changes. This recommendation was based on the following reasons:
Detrimental Financial Impact to the County and its taxpayers: The proposed changes makes the county vulnerable to significant financial burden in both enforcing the new ordinance and in defending the likely legal challenges to the adopted text amendment.
The proposed changes present several difficulties including terms that are not defined, regulation of the interior design of buildings, references to case law and studies that have not been presented to the Board of County Commissioners for consideration, and proposals to regulate the day-to-day operations of sexually oriented businesses.
The County Planning staff believes that many of the proposed sections of the code exceeds the authority granted to enact zoning regulations as stated within Montana Code and within the Unified Zoning Regulations.
(See Zone Change #591 Public Hearing on January 17, 2006)
February 17, 2006
The Yellowstone Board of County Commissioners filed a Resolution of Intent to Enact County Obscenity Ordinance. Citing Section 45-8-201(5) of the Montana Code Annotated, the board states that they have the authority to enact a county obscenity ordinance. Citing Section 7-5-132, they state they have the authority to submit a proposed ordinance to a referendum by the voters. They name the Citizens Against Sexual Exploitation as the author of the proposed amendment.
On the same day, the Board of County Commissioners submitted a Resolution of Intent to Amend Zoning Regulations as to Sexually Oriented Businesses. Citing Sections 76-2-201 and 76-2-205, they state they have the authority to adopt and amend a county’s zoning regulations. Citing Section 7-5-132, they state they have the authority to submit a proposed ordinance to a referendum by the voters. They name the Citizens Against Sexual Exploitation as the author of the proposed amendment.
Summary
No signatures were ever gathered from the residents of Yellowstone County after the dismissal by the Montana Supreme Court.
The merits of the proposed ordinances were never addressed by the Montana Supreme Court, and the arguments put forth by Yellowstone County in both the district court and the Supreme Court are still valid and are still unanswered.
The county commissioner’s and the county attorney’s concerns about the constitutionality of the proposed laws and possible lawsuits they will draw have inexplicably disappeared.
That the County Commissioners unanimously decided to let the proposals go to the ballot after the Supreme Court case was dismissed on a technicality is a complete mystery.
The sudden naming of the Citizens Against Sexual Exploitation as the authors of the proposed amendments in the county’s resolutions of intent (instead of Dallas Erickson) is also a mystery.
Judge Fagg’s decision states that voters and 12 jurors should decide the constitutionality of the ordinances. Dallas Erickson’s history of court cases (Ravalli County vs. Dallas Erickson, etc.) suggests that he intends to use Yellowstone County as a legal battleground for his personal agendas.
Similar ordinances drafted by Dallas Erickson were passed in Ravalli County only to be struck down after a lawsuit found the ordinances unconstitutional.
Questions
Why, when the Supreme Court had not answered any of the county’s concerns regarding the legality and constitutionality of the proposed ordinances, did the county unanimously decide to put both ordinances on the ballot fourteen months after the Supreme Court dismissed the case on a technicality?
What happened to cause the board of commissioners and the county attorney to decide that the laws were no longer “defective” or unconstitutional and needed to go before the voters without any signature gathering whatsoever?
Why did the county commissioners not require the signature-gathering that the Supreme Court cited as being needed for them to consider the merits of the case?
How much money was spent by the county in taking the case to the district court and then to the Supreme Court? How much has the county allotted in the budget for future trial costs in defending the ordinances if the voters pass them?
Why is there an apparent reversal in thinking on the county’s part between what was argued in the district court and the Supreme Court and their use of the Judge Fagg’s decision as the basis for enacting the ordinances now?
Why does the board no longer think that a negative financial impact on the county due to a passage of these “defective” ordinances is no longer a concern? This was part of the original argument of the county’s and the Zoning department staff has more recently recommended not putting this before voters for the same reasons.
Does the board now believe that Judge Fagg’s decision is correct? That voters and trial jurors should decide the constitutionality of the proposed ordinances?
posted by Editors at 4:43 PM
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