Case: Visual Arts Collective, LLC v. Powell

1:16-cv-00414 | U.S. District Court for the District of Idaho

Filed Date: Sept. 15, 2016

Closed Date: March 12, 2018

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Case Summary

This is a case about the application of the First Amendment to burlesque performances. When this lawsuit was filed (in 2016), Idaho had a state regulation (I.C. § 23-614) prohibiting liquor licensees from allowing female nudity or simulated sexual activity regardless of artistic context. In March 2016, undercover officers from the Idaho State Police attended a burlesque performance at Visual Arts Collective (“VAC”), a contemporary fine art gallery and performance venue. The state then initiated…

But on September 15, 2016, the VAC, a performance artist, and Alley Repertory Theater (a nonprofit theatre company) filed suit against three Idaho State Police officers, challenging the constitutionality of § 23-614. Represented by the ACLU, the plaintiffs filed their lawsuit in the U.S. District Court for the District of Idaho, where the case was assigned to District Judge B. Lynn Winmill.

The plaintiffs each alleged that § 23-614 violated their freedom of speech and expression guaranteed by the First Amendment of the U.S. Constitution. The plaintiffs also alleged that § 23-614 was unconstitutionally vague, and that § 23-614 violated the Fourteenth Amendment’s Equal Protection Clause by discriminating on the basis of sex, on the theory that the statute treated nudity by female performers differently than nudity by males. The plaintiffs requested that the court declare § 23-614 unconstitutional and strike it down in its entirety; they also sought attorneys’ fees.

Shortly after filing suit, on September 28, 2016, the parties reached a stipulated agreement, and the court entered a permanent injunction barring the state from enforcing § 23-614 against live theatrical or artistic performances. The court ordered the stay of all further litigation through the end of the 2017 Idaho legislative session, giving the legislature an opportunity to revise the statute in line with constitutional standards.

As part of the stipulated agreement, the state agreed to return the $8,000 fine VAC had paid in the administrative case and to vacate the 20-day suspension from VAC’s license record. In December 2016, the state also paid the plaintiffs $95,000 in attorneys’ fees.

The Idaho Legislature fixed the statute in 2017 and the court subsequently closed the case.

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Summary Authors

Gordon Pignato (5/8/2025)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4506153/parties/visual-arts-collective-llc-v-powell/

Judge(s)

Attorney for Plaintiff

Durham, Craig (Idaho)

Eppink, Richard Alan (Idaho)

Ferguson, Deborah A (Idaho)

Valkenburgh, Jack Van (Idaho)

Attorney for Defendant

Smith, Clay R (Idaho)

Judge(s)

Winmill, Barry Lynn (Idaho)

Attorney for Plaintiff

Durham, Craig (Idaho)

Eppink, Richard Alan (Idaho)

Ferguson, Deborah A (Idaho)

Valkenburgh, Jack Van (Idaho)

Attorney for Defendant

Smith, Clay R (Idaho)

Yee-Wallace, Cynthia Lin (Idaho)

Attorney Contact Information via CourtListener

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Documents in the Clearinghouse

	Document
1 1:16-cv-00414	Complaint	Sept. 15, 2016	Sept. 15, 2016 Complaint
16 1:16-cv-00414	Joint Motion For Entry of Permanent Injunction	Sept. 28, 2016	Sept. 28, 2016 Pleading / Motion / Brief
17 1:16-cv-00414	Order Granting Joint Motion For Entry of Permanent Injunction	Oct. 3, 2016	Oct. 3, 2016 Order/Opinion

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Docket

See docket on RECAP: https://www.courtlistener.com/docket/4506153/visual-arts-collective-llc-v-powell/

Last updated Aug. 10, 2025, 2:30 a.m.

ECF Number	Description	Date	Link Date / Link
1	COMPLAINT Verified Complaint for Declaratory and Injunctive Relief against All Plaintiffs ( Filing fee $ 400 receipt number 0976-1492540.), filed by All Plaintiffs. (Attachments: # 1 Cover Sheet, # 2 Summons Col. Ralph Powell, # 3 Summons Det. George Szeles, # 4 Summons Specialist Jeremich West, # 5 Summons Captain Russell Wheatley, # 6 Summons Lt. Col. Kedrick Wills)(Eppink, Richard) 1 Cover Sheet View on PACER 2 Summons Col. Ralph Powell View on PACER 3 Summons Det. George Szeles View on PACER 4 Summons Specialist Jeremich West View on PACER 5 Summons Captain Russell Wheatley View on PACER 6 Summons Lt. Col. Kedrick Wills View on PACER	Sept. 15, 2016	Sept. 15, 2016 Clearinghouse
2	Corporate Disclosure Statement by Alley Repertory Theater, Incorporated. (Eppink, Richard)	Sept. 15, 2016	Sept. 15, 2016 PACER
3	Expedited MOTION for Preliminary Injunction Richard Alan Eppink appearing for Plaintiffs Alley Repertory Theater, Incorporated, Anne McDonald, George Szeles, Visual Arts Collective, LLC, Jeremich West. Responses due by 10/11/2016 (Attachments: # 1 Memorandum in Support, # 2 Declar. Samuel F. Stimpert, # 3 Declar. Buffie Main, # 4 Declar. Anne McDonald, # 5 Declar. Dr. Judith L. Hanna, # 6 Declar. Karen Bubb)(Eppink, Richard) 2 View on RECAP	Sept. 15, 2016	Sept. 15, 2016 PACER
4	Summons Issued as to Ralph Powell, George Szeles, Jeremich West, Russell Wheatley, Kedrick Wills. (Print attached Summons for service.) (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons)(cjs)	Sept. 15, 2016	Sept. 15, 2016 PACER
5	DOCKET ENTRY ORDER - Due to the expedited Motion for Preliminary Injunction 3, IT IS HEREBY ORDERED THAT the Clerk is directed to send a Notice of Assignment to Magistrate Judge giving the parties until September 21, 2016, to consent. If not all parties consent by that time, the case shall be automatically reassigned to a District Judge on September 22, 2016. Additionally, Plaintiffs are required to provide a copy of this Order to Defendants' counsel. Signed by Judge Candy W. Dale. (klw)	Sept. 16, 2016	Sept. 16, 2016 PACER
	Order	Sept. 16, 2016	Sept. 16, 2016 PACER
	Order	Sept. 16, 2016	Sept. 16, 2016 PACER
	Set Motion and R&R Deadlines/Hearings	Sept. 16, 2016	Sept. 16, 2016 PACER
	Notice to file Corporate Disclosure Statement	Sept. 16, 2016	Sept. 16, 2016 PACER
6	DOCKET ENTRY ORDER: After chamber's discussion with the parties' regarding the pending motion for preliminary injunction (Dkt. 3 ) and the closely approaching opening day of "The Totalitarians" performance on October 13, 2016, the parties agreed to the following expedited briefing schedule regarding the motion for preliminary injunction: Defendants to file their response on or before September 28, 2016; replies, if any, due on or before October 5, 2016. A hearing on the motion for preliminary injunction is tentatively set for October 11, 2016 at 9:30 a.m. MST in Boise, Idaho Courtroom 6. Signed by Judge Candy W. Dale. (tmp)	Sept. 16, 2016	Sept. 16, 2016 PACER
7	NOTICE of Assignment to Magistrate Judge and Requirement for Consent sent to counsel for Alley Repertory Theater, Incorporated, Anne McDonald, Ralph Powell, George Szeles, Visual Arts Collective, LLC, Jeremich West, Russell Wheatley, Kedrick Wills Consent/Objection to Magistrate due by 9/21/2016. (cjs)(Entered pursuant to Docket Entry Order Dkt. 5.)	Sept. 16, 2016	Sept. 16, 2016 PACER
	NOTICE: Pursuant to FRCP 7.1 you are required to file a Corporate Disclosure Statement with the Clerk's Office. You can do this by choosing the category Other Documents, then select Corporate Disclosure Statement. (cjs)	Sept. 16, 2016	Sept. 16, 2016 PACER
	Set/Reset Deadlines as to 3 Expedited MOTION for Preliminary Injunction. Responses due by 9/28/2016. Replies due by 10/5/2016. Motion Hearing tentatively set for 10/11/2016 09:30 AM in Boise - Courtroom 6 before Judge Candy W. Dale. Pursuant to Order Dkt. 6. (cjs)	Sept. 16, 2016	Sept. 16, 2016 PACER
8	NOTICE of Appearance by Cynthia Lin Yee-Wallace on behalf of All Defendants (Yee-Wallace, Cynthia)	Sept. 20, 2016	Sept. 20, 2016 PACER
9	Docket entry only - CONSENT to Magistrate Judge filed. (cjs) (Entered: 09/21/2016)	Sept. 20, 2016	Sept. 20, 2016 PACER
10	A REQUEST FOR REASSIGNMENT TO A DISTRICT JUDGE HAS BEEN FILED IN THIS CASE(cjs) (Entered: 09/21/2016)	Sept. 20, 2016	Sept. 20, 2016 PACER
	DOCKET ENTRY NOTICE of Case Number Change. Case reassigned to Judge B. Lynn Winmill for all further proceedings. Judge Candy W. Dale no longer assigned to case. Please use this case number on all future pleadings, 1:16-cv-00414-BLW. (cjs)	Sept. 21, 2016	Sept. 21, 2016 PACER
	Consent Filed	Sept. 21, 2016	Sept. 21, 2016 PACER
	Notice (Other)	Sept. 21, 2016	Sept. 21, 2016 PACER
	Notice of Case Number Change	Sept. 21, 2016	Sept. 21, 2016 PACER
	Request for Reassignment to a District Judge	Sept. 21, 2016	Sept. 21, 2016 PACER
11	MOTION for Extension of Time to File Response/Reply as to 3 Expedited MOTION for Preliminary Injunction or Alternatively to Vacate Hearing Cynthia Lin Yee-Wallace appearing for Defendants Ralph Powell, George Szeles, Jeremich West, Russell Wheatley, Kedrick Wills. Responses due by 10/17/2016 (Attachments: # 1 Declaration of Cynthia Yee-Wallace, # 2 Declaration of Steven L. Olsen, # 3 Declaration of Russell Wheatley)(Yee-Wallace, Cynthia)	Sept. 21, 2016	Sept. 21, 2016 PACER
12	DOCKET ENTRY NOTICE VACATING HEARING - Due to reassignment of this matter, the Motion Hearing tentatively set for 10/11/2016 09:30 AM in Boise - Courtroom 6 before Judge Candy W. Dale is hereby VACATED. (at)	Sept. 21, 2016	Sept. 21, 2016 PACER
13	RESPONSE to Motion re 11 MOTION for Extension of Time to File Response/Reply as to 3 Expedited MOTION for Preliminary Injunction or Alternatively to Vacate Hearing filed by Alley Repertory Theater, Incorporated, Anne McDonald, Visual Arts Collective, LLC. Replies due by 10/11/2016.(Eppink, Richard)	Sept. 21, 2016	Sept. 21, 2016 PACER
14	REPLY to Response to Motion re 11 MOTION for Extension of Time to File Response/Reply as to 3 Expedited MOTION for Preliminary Injunction or Alternatively to Vacate Hearing filed by Ralph Powell, George Szeles, Jeremich West, Russell Wheatley, Kedrick Wills. (Attachments: # 1 2nd Declaration of Russell Wheatley)(Yee-Wallace, Cynthia)	Sept. 23, 2016	Sept. 23, 2016 PACER
15	SUMMONS Returned Executed by Visual Arts Collective, LLC, Alley Repertory Theater, Incorporated, Anne McDonald. All Defendants. (Durham, Craig)	Sept. 23, 2016	Sept. 23, 2016 RECAP
16	Joint MOTION for Permanent Injunction Cynthia Lin Yee-Wallace appearing for Defendants Ralph Powell, George Szeles, Jeremich West, Russell Wheatley, Kedrick Wills. Responses due by 10/24/2016 (Attachments: # 1 Exhibit 1 to Joint Motion for Entry of Permanent Injunction)(Yee-Wallace, Cynthia)	Sept. 28, 2016	Sept. 28, 2016 Clearinghouse
17	ORDER GRANTING JOINT MOTION FOR ENTRY OF PERMANENT INJUNCTION 16 - This case shall remain open, but the litigation of this case is hereby stayed, including all discovery and submissions in this matter, through the 2017 Idaho Legislatures session. The stay is for the purpose of allowing sufficient time for the Idaho Legislature to amend Idaho Code § 23-614(1)(a)-(d). If the Legislature amends Idaho Code § 23-614(1)(a)-(d) in a manner consistent with paragraphs 1 and 2 above or in a w ay that is otherwise constitutional, this case shall be dismissed with prejudice. If the Legislature does not amend Idaho Code § 23-614(1)(a)-(d) in a manner consistent with paragraphs 1 and 2 above or in a way that is otherwise constitutional, the stay in this litigation shall be lifted and this case shall continue into active litigation. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)	Oct. 3, 2016	Oct. 3, 2016 Clearinghouse
18	STIPULATION re 17 Order on Motion for Permanent Injunction,,,, Paymentn of Attorney's Fees, Expenses and Costs by Ralph Powell, George Szeles, Jeremich West, Russell Wheatley, Kedrick Wills. (Smith, Clay)	Dec. 23, 2016	Dec. 23, 2016 PACER
19	DOCKET ENTRY ORDER -- The Stipulation 18 is APPROVED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dm)	Jan. 13, 2017	Jan. 13, 2017 PACER
	Order	Jan. 13, 2017	Jan. 13, 2017 PACER
20	ORDER - NOW THEREFORE IT IS HEREBY ORDERED, that this action be DISMISSED. The Clerk shall close this case. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)	March 12, 2018	March 12, 2018 RECAP

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Case Details

State / Territory: Idaho

Case Type(s):

Speech and Religious Freedom

Key Dates

Filing Date: Sept. 15, 2016

Closing Date: March 12, 2018

Case Ongoing: No

Plaintiffs

Plaintiff Description:

An art gallery, a repertory theater, and a performance artist - all implicated by enforcement of an Idaho state liquor regulation prohibiting certain forms of artistic expression.

Plaintiff Type(s):

Private Plaintiff

Attorney Organizations:

ACLU Affiliates (any)

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

Idaho State Police, State

Defendant Type(s):

Law-enforcement