Petition for Writ of Certiorari — Flanigan's Enterprises, Inc. of Georgia, et al., Petitioners v. City of Sandy Springs, Georgia

No. ________

IN THE

Supreme Court of the United States

FLANIGAN’S ENTERPRISES, INC.

OF GEORGIA, et al.,

v.

Petitioners,

CITY OF SANDY SPRINGS, GEORGIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

CARY S. WIGGINS

Wiggins Law Group

260 Peachtree St., NW

Suite 401

Atlanta, Ga. 30303

(404) 659-2880

cary@wigginslaw

group.com

J. MICHAEL MURRAY

Counsel of Record

LORRAINE R. BAUMGARDNER

Berkman, Gordon, Murray

& DeVan

55 Public Square, Suite

2200

Cleveland, Ohio 44113

(216) 781-5245

jmmurray@bgmdlaw.com

Counsel for Petitioners

QUESTIONS PRESENTED

1.

The secondary effects doctrine of Renton

v. Playtime Theatres, Inc., 475 U.S. 41 (1986), provides

that content-based regulations avowedly aimed at

adverse secondary effects associated with businesses

offering sexually oriented expression are to be reviewed

under intermediate, rather than strict, scrutiny. Does

that doctrine survive Reed v. Town of Gilbert, 135 S.Ct.

2218 (2015), which holds that facially content-based

laws are subject to strict scrutiny, regardless of their

content-neutral justifications?

2.

City of Los Angeles v. Alameda Books, 535

U.S. 425 (2002), is a plurality decision addressing the

evidentiary burdens under the secondary effects

doctrine. If the secondary effects doctrine survives,

does Justice Kennedy’s concurrence constitute the

holding of that case as representing the narrowest

ground supporting the judgment, as the Sixth,

Seventh, Eighth, Ninth Circuits, and prior panels of

the Eleventh Circuit have held, or is Justice Kennedy’s

concurrence not binding precedent, as the court below

concluded?

Marks v. United States, 430 U.S. 188, 193

3.

(1977), held that “[w]hen a fragmented Court decides

a case and no single rationale explaining the result

enjoys the assent of five Justices ‘the holding of the

Court may be viewed as that position taken by those

Members who concurred in the judgments on the

narrowest grounds....’” Under Marks:

(1) may a concurring opinion qualify as

the holding even if it does not share

ii

common reasoning with the plurality

opinion, as the Eleventh Circuit has held?

United States v. Hughes, 849 F.3d 1008

(11th Cir. 2017) cert. granted, No. 17-155,

Dec. 8, 2017, or

(2) must it be “in harmony” with the

plurality opinion to qualify as the

holding, as the court below held? or

(3) must it be a “logical subset” of the

other broader opinions in the case to

qualify as the holding, as the Ninth and

D.C. Circuits, have held? United States v.

Davis, 825 F.3d 1014, 1021 (9th Cir.

2016) (en banc); King v. Palmer, 950 F.2d

771, 781 (D.C. Cir. 1991) (en banc).

iii

PARTIES TO THE PROCEEDING BELOW

The parties to the proceedings in the Court of

Appeals for the Eleventh Circuit were Flanigan’s

Enterprises, Inc. of Georgia; 6420 Roswell Rd., Inc.;

and Fantastic Visuals, LLC.

CORPORATE DISCLOSURE STATEMENT

Flanigan’s Enterprises, Inc., a publicly traded

company, is the parent corporation of Flanigan’s

Enterprises, Inc. of Georgia. No publicly traded

company owns stock in 6420 Roswell Rd., Inc. or

Fantastic Visuals, LLC, and neither has a parent

corporation.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING BELOW . . . . . iii

CORPORATE DISCLOSURE STATEMENT . . . . iii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vii

PETITION FOR A WRIT OF CERTIORARI . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISIONS AND

ORDINANCES INVOLVED . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2

I.

Factual Background . . . . . . . . . . . . . . . . . . . . 4

II.

Procedural History . . . . . . . . . . . . . . . . . . . . . 9

REASONS FOR GRANTING THE WRIT . . . . . . . 12

I.

Reed Left the Fate of the Secondary

Effects Doctrine in Limbo . . . . . . . . . . . . . . 12

v

TABLE OF CONTENTS (cont’d)

Page

II.

Based on Its Singular Interpretation of

Marks v. United States, the Court Below

Determined That Justice Kennedy’s

Concurrence in Alameda Books Is Not

Binding Precedent, a Decision At Odds

with Those of the Sixth, Seventh, Eighth,

and Ninth Circuits–as Well as Other

Eleventh Circuit Panels . . . . . . . . . . . . . . . . 19

A.

The court’s conclusion that Justice

Kennedy’s concurrence in Alameda

Books is not binding precedent

conflicts with the decisions of every

other court that has addressed the

issue . . . . . . . . . . . . . . . . . . . . . . . . . . 21

B.

The court’s conclusion that under

v. United States, a

concurrence stating the narrowest

ground in support of a judgment is

not binding unless it can be

harmonized with the plurality

opinion, is in conflict with United

States v. Hughes, 849 F.3d 1008

(11th Cir. 2017) cert. granted, No.

17-155, Dec. 8, 2017, and adopts an

interpretation of Marks followed by

no other circuit court . . . . . . . . . . . . . 23

Marks

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

vi

TABLE OF CONTENTS (cont’d)

APPENDIX

Opinion of the United States Court of

Appeals for the Eleventh Circuit . . . . . . . . App. 1

Findings of Fact and Conclusions of

Law Order of the United States

District Court for the Northern

District of Georgia . . . . . . . . . . . . . . . . . . . App. 34

Order of the United States Court of

Appeals for the Eleventh Circuit

Denying of Petition for Rehearing

and Rehearing En Banc . . . . . . . . . . . . . App. 209

Constitutional provisions . . . . . . . . . . . . . . App. 211

Chapter 26, Code of the City of

Sandy Springs, Ga. . . . . . . . . . . . . . . . . . App. 214

Ordinance 2009-04-22,

City of Sandy Springs, Ga. . . . . . . . . . . . App. 267

Section 6-135, Code of the City of

Sandy Springs, Ga. . . . . . . . . . . . . . . . . . App. 302

vii

TABLE OF AUTHORITIES

CASES

Page

Annex Books, Inc. v. City of Indianapolis, Ind.,

581 F.3d 460 (7th Cir. 2009) . . . . . . . . . . . . . 11, 22

BBL, Inc. v. City of Angola,

809 F.3d 317 (7th Cir. 2015) . . . . . . . . . . . . . . . . 18

Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015) . . . 14

Cent. Radio Co. Inc. v. City of Norfolk,

811 F.3d 625 (4th Cir. 2016) . . . . . . . . . . . . . . . . 14

City of Los Angeles v. Alameda Books,

535 U.S. 425 (2002) . . . . . . . . . . . . . . . . . . . passim

Flanigan’s Enterprises, Inc. of Ga. v.

Fulton Cty., Ga., 596 F.3d 1265

(11th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . 11, 22

Fly Fish, Inc. v. City of Cocoa Beach,

337 F.3d 1301 (11th Cir. 2003) . . . . . . . . . . . 11, 22

Ford v. Wainwright, 477 U.S. 399 (1986) . . . . . . . . 20

Free Speech Coalition, Inc. v. Attorney

General United States, 825 F. 3d 149

(3rd Cir. 2016) . . . . . . . . . . . . . . . . . . . . . 13, 14, 18

Gregg v. Georgia, 428 U.S. 153 (1976) . . . . . . . . . . 20

King v. Palmer, 950 F.2d 771

(D.C. Cir. 1991) (en banc) . . . . . . . . . . . . . . . . . . 23

viii

TABLE OF AUTHORITIES (cont’d)

Page

Lucero v. Early, 873 F.3d 466 (4th Cir. 2017) . . . . 14

Marks v. United States,

430 U.S. 188 (1977) . . . . . . . . . . 3, 4, 19, 20, 22-25

Nichols v. United States, 511 U.S. 738 (1994) . . . . 23

Norton v. City of Springfield, 806 F.3d 411

(7th Cir. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13

Ocheesee Creamery LLC v. Putnam,

851 F.3d 1228 (11th Cir. 2017) . . . . . . . . . . . . . . 14

O’Dell v. Netherland,

521 U.S. 151 (1997) . . . . . . . . . . . . . . . . . . . . . . . 24

Panetti v. Quarterman,

551 U.S. 930 (2007) . . . . . . . . . . . . . . . . . . . . . . . 20

Peek-A-Boo Lounge of Bradenton, Inc. v.

Manatee County, Fla., 337 F.3d 1251

(11th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . 11, 22

Planned Parenthood of Southeast Pa. v.

Casey, 947 F.2d 682 (3rd Cir. 1991)

aff’d in part, rev’d in part,

505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . . . . . . 24

Reed v. Town of Gilbert,

135 S.Ct. 2218 (2015) . . . . . . . . . . 2-4, 9, 10, 12-19

ix

TABLE OF AUTHORITIES (cont’d)

Page

Renton v. Playtime Theatres, Inc.,

475 U.S. 41 (1986) . . . . . . . . . . . . 14, 15, 17-19, 21

Richland Bookmart, Inc. v. Knox Cty., Tenn.,

555 F.3d 512 (6th Cir. 2009) . . . . . . . . . . . . . 11, 22

Romano v. Oklahoma, 512 U.S. 1 (1994) . . . . . . . . 20

SOB, Inc. v. Cty. of Benton,

317 F.3d 856 (8th Cir. 2003) . . . . . . . . . . . . . 11, 22

United States v. Davis, 825 F.3d 1014

(9th Cir. 2016) (en banc) . . . . . . . . . . . . . . . 23-25

United States v. Hughes, 849 F.3d 1008

(11th Cir. 2017) cert. granted,

No. 17-155, Dec. 8, 2017 . . . . . . . . . . . . . . 4, 23, 24

Ward v. Rock Against Racism,

491 U.S. 781 (1989) . . . . . . . . . . . . . . . . . . . . . . . 17

Wollschlaeger v. Governor, Florida,

848 F.3d 1293 (11th Cir. 2017) . . . . . . . . . . . . 2, 13

World Wide Video of Washington, Inc. v.

City of Spokane, 368 F.3d 1186

(9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . 11, 22

“Q”-Lungian Enterprises, Inc. v. Town of

Windsor Locks, No. 3:13-CV-01285

(JAM), 2017 WL 4127898

(D. Conn. Sept. 18, 2017) . . . . . . . . . . . . . . . . . . 18

x

TABLE OF AUTHORITIES (cont’d)

Page

CONSTITUTIONAL PROVISION

United States Const., amend. I . . . . 1, 2, 5, 9, 13, 18

United States Const., amend. XIV . . . . . . . . . . . . 1, 9

STATUTES, RULES AND REGULATIONS

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARIZ. REV. STAT. § 13-1422(A) . . . . . . . . . . . . . . . . . . 3

OHIO REV. CODE § 2907.40 . . . . . . . . . . . . . . . . . . . . 3

TENN. C.A. § 7-51-1402 . . . . . . . . . . . . . . . . . . . . . . . 3

TENN. C.A. § 7-51-1403 . . . . . . . . . . . . . . . . . . . . . . . 3

CODE OF THE CITY OF SANDY SPRINGS, GA.,

§4.3.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CODE OF THE CITY OF SANDY SPRINGS, GA.,

§ 6-135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7

CODE OF THE CITY OF SANDY SPRINGS, GA.,

Chapter 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CODE OF THE CITY OF SANDY SPRINGS, GA.,

§ 26-1 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

CODE OF THE CITY OF SANDY SPRINGS, GA.,

§ 26-1 (12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

xi

TABLE OF AUTHORITIES (cont’d)

Page

CODE OF THE CITY OF SANDY SPRINGS, GA.,

§ 26-22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-7

CODE OF THE CITY OF SANDY SPRINGS, GA.,

§ 26-24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CODE OF THE CITY OF SANDY SPRINGS, GA.,

§ 26-24 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CODE OF THE CITY OF SANDY SPRINGS, GA.,

§ 26-24 (b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CODE OF THE CITY OF SANDY SPRINGS, GA.,

§ 26-24 (b) (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CODE OF THE CITY OF SANDY SPRINGS, GA.,

§ 26-25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CODE OF THE CITY OF SANDY SPRINGS, GA.,

§ 26-26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CODE OF THE CITY OF SANDY SPRINGS, GA.,

§ 26-28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CODE OF THE CITY OF SANDY SPRINGS, GA.,

§ 26-29 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CODE OF THE CITY OF SANDY SPRINGS, GA.,

§ 26-37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CODE OF THE CITY OF SANDY SPRINGS, GA.,

§ 26-38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

xii

TABLE OF AUTHORITIES (cont’d)

Page

ORDINANCE NO. 2009-04-22

CITY OF SANDY SPRINGS, GA., . . . . . . . . . . . . . . . . . 1

CITY CODE OF UNADILLA, GA.,

Chapter 18, Art. I . . . . . . . . . . . . . . . . . . . . . . . . . 3

LOS ANGELES MUNICIPAL CODE

§ 12.70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

MISCELLANEOUS

Adam Liptak, Court’s Free-Speech Expansion

Has Far-Reaching Consequences, N.Y.

TIMES (Aug. 17, 2015) . . . . . . . . . . . . . . . . . . . . 2, 13

Ashutosh Bhagwat, The Test That Ate

Everything: Intermediate Scrutiny

in First Amendment Jurisprudence,

2007 U. ILL. L. REV. 783 (2007) . . . . . . . . . . . . . . 18

Enrique Armijo, Reed v. Town of Gilbert,

Relax, Everybody, 58 B.C. L. REV. 65

(Jan. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Genevieve Lakier, Reed v. Town of Gilbert,

Arizona, And the Rise of the

Anticlassificatory First Amendment,

2016 SUP. CT. REV. 233 . . . . . . . . . . . . . . . . . . 2, 13

xiii

TABLE OF AUTHORITIES (cont’d)

Page

Geoffrey R. Stone, Content-Neutral Restrictions,

54 U. CHI. L. REV. 46 (1987) . . . . . . . . . . . . . . . . 17

Leslie Gielow Jacobs, Making Sense of

Secondary Effects Analysis After

Reed v. Town of Gilbert, 57 SANTA

CLARA L. REV. 385 (2017) . . . . . . . . . . . . . . 2, 13, 14

Ofer Raban, Content-Based, Secondary

Effects, and Expressive Conduct: What

in the World Do They Mean (And What

Do They Mean to the United

States Supreme Court)?, 30 SETON

HALL L. REV. 551 (2000) . . . . . . . . . . . . . . . . . . . . 17

PETITION FOR A WRIT OF CERTIORARI

Petitioners, Flanigan’s Enterprises, Inc. of

Georgia; 6420 Roswell Rd., Inc.; and Fantastic Visuals,

LLC, respectfully petition for a writ of certiorari to

review the decision of the United States Court of

Appeals for the Eleventh Circuit in this case.

OPINIONS BELOW

The order of the United States Court of Appeals

for the Eleventh Circuit denying Petitioners’ Petition

for Panel Rehearing and for Rehearing En Banc is set

forth in the Appendix at App.209–App.210. The

decision of the Court of Appeals is set forth in the

Appendix at App.1–App.33. The Findings of Fact and

Conclusions of Law Order of the United States District

Court for the Northern District of Georgia is set forth

in the Appendix at App.34–App.208.

JURISDICTION

The Court of Appeals entered judgment on

August 14, 2017. App.2. It denied Petitioners’ Petition

for Panel Rehearing and Rehearing En Banc on

November 27, 2017. App.209–App.210. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND

ORDINANCES INVOLVED

The First and Fourteenth Amendments to the

United States Constitution are reprinted in the

Appendix to this Petition at App.211–App.213. Chapter

26, CODE OF THE CITY OF SANDY SPRINGS, GA., is

2

reprinted at App.214–App.266. ORDINANCE NO. 200904-22, CITY OF SANDY SPRINGS, GA., is reprinted at

App.267–App.301. Section 6-135, CODE OF THE CITY OF

SANDY SPRINGS, GA., is reprinted at App.302–App.304.

STATEMENT OF THE CASE

Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015)

has been described as “a blockbuster,”1 “a sea change,”2

and “a missile” shot “into [the Court’s] own reasoning.”3

Reed held that regulations of expression that, on their

face, make distinctions based on content, are subject to

strict scrutiny. While “injecting some much-needed

clarity into First Amendment jurisprudence,”4 the

decision left a number of knotty questions in its wake.

This case presents one of them: Does the secondary

effects doctrine–which provides that content-based

regulations said to be aimed at adverse secondary

effects associated with businesses offering sexually

oriented expression, are to be reviewed under

intermediate, rather than strict, scrutiny–survive

Adam Liptak, Court’s Free-Speech Expansion Has FarReaching Consequences, N.Y. TIMES (Aug. 17, 2015) (quoting

1

Floyd Abrams)

Wollschlaeger v. Governor, Florida, 848 F.3d 1293, 133233 (11th Cir. 2017) (en banc) (Tjoflat, J., dissenting)

2

Leslie Gielow Jacobs, Making Sense of Secondary Effects

Analysis After Reed v. Town of Gilbert, 57 SANTA CLARA L. REV.

3

385, 413 (2017)

Norton v. City of Springfield, 806 F.3d 411, 413 (7th Cir.

2015) (Mannion, J., concurring); see also Genevieve Lakier, Reed

v. Town of Gilbert, Arizona, And the Rise of the Anticlassificatory

First Amendment, 2016 SUP. CT. REV. 233, 234.

4

3

Reed? 5

If this Court determines that the secondary

effects doctrine does survive Reed, then this case raises

two additional issues, on which there is a conflict

among the circuits.

The first involves the precedential effect of

Justice Kennedy’s concurrence in the plurality decision

of City of Los Angeles v. Alameda Books, 535 U.S. 425,

449 (2002). Until the decision below, every court of

appeals addressing the issue has determined that

Justice Kennedy’s concurring opinion constitutes the

holding of that case because it states the narrowest

ground of those concurring in the judgment, following

Marks v. United States, 430 U.S. 188 (1977). The court

below broke with the Sixth, Seventh, Eighth, and

Ninth Circuits–as well as the decisions of prior panels

of its own circuit–and concluded that Justice Kennedy’s

concurrence is not binding precedent.

The second conflict arises from the way in which

the court below interpreted Marks in reaching its

conclusion that Justice Kennedy’s concurrence is not

precedential. The panel determined under Marks,

Justice Kennedy’s concurrence “is binding only to the

5

Regulations of businesses presenting sexually oriented

expression are as ubiquitous as municipal sign codes like that at

issue in Reed. Many communities like Sandy Springs–from small

burgs to the largest of municipalities–have passed local licensing,

zoning, and other restrictions on adult businesses. See, e.g.,

Chapter 18, Art. IV, CITY CODE OF UNADILLA, GA. (Pop. 2,772); §

12.70, LOS ANGELES MUNICIPAL CODE. States have as well. See,

e.g., ARIZ. REV. STAT. § 13-1422(A); TENN. C.A. §§ 7-51-1402, 7-511403; OHIO REV. CODE § 2907.40. The saturation of such regulation

makes the need for guidance from this Court particularly acute.

4

extent that it can be harmonized with the plurality’s

opinion.” App. 27. It thus adds a new requirement to

the Marks analysis–namely, that a concurrence setting

forth the narrowest grounds in support of the judgment

in a plurality decision must also be “in harmony” with

the plurality opinion in order to be binding.6 How

Marks is to be applied in determining the holding of a

plurality decision is itself the subject of a circuit split,

which has been accepted for review by this Court. See

United States v. Hughes, 849 F.3d 1008 (11th Cir.

2017) cert. granted, No. 17-155, Dec. 8, 2017.

This case, therefore, presents this Court with

the opportunity to answer, not only an important

question left unaddressed in Reed, but to resolve two

conflicts created by the decision of the court below.

I.

Factual Background

Petitioners are three businesses that have been

offering sexually oriented entertainment since the

1990s in Fulton County, Georgia7–two are nightclubs

that present live nude dancing performances and serve

alcohol; the third is a retail store that sells sexually

explicit books, videos, and DVDs and runs an arcade

where customers can watch sexually explicit movies.

6

Petitioners disagree with the court’s conclusion that

Justice Kennedy’s concurrence cannot be harmonized with the

plurality opinion.

7

The businesses’ existence predates that of Respondent

City of Sandy Springs; Sandy Springs was not incorporated until

2005. Until then, the businesses operated in unincorporated

Fulton County.

5

Respondent Sandy Springs, Georgia has adopted

various regulations that apply to businesses, like

Petitioners, based on the content of the speech and

expression they offer. Their language makes clear they

are content based.

The “findings” prefacing the regulations

reference “live nude entertainment,” and acknowledge

“adult entertainment businesses are actually protected

under the free speech clause of the First Amendment

of the Constitution of the United States for their role in

communicating ‘erotic speech.’” CODE OF THE CITY OF

SANDY SPRINGS, GA.,§ 26-1 (9), (12), App.219–App.220.

The regulations define the venues subject to

their restrictions with reference to the content of the

expression they offer:

Adult

entertainment

establishment

means any establishment or facility in

Sandy Springs where adult

entertainment is regularly sponsored,

allowed, presented, sold or offered to the

public.

Adult entertainer means any person

employed by an adult entertainment

establishment who exposes his or her

specified anatomical areas, as defined

herein,8 on the premises of the

8

Specified anatomical areas includes the following:

(1)

Human genitals or pubic region, buttock,

or female breast below a point

immediately above the top of the areola; or

6

establishment.

Adult entertainment means live conduct

characterized by the display of specified

anatomical areas.9

Adult bookstore means a commercial

establishment or facility in the city that

maintains 25 percent or more of its floor

area for the display, sale, and/or rental of

the following items (aisles and walkways

used to access these items shall be

included in ‘floor area’ maintained for the

display, sale, and/or rental of the items):

(1)

Books, magazines, periodicals, or

other printed matter, or

photographs, films, motion

pictures, videocassettes, CDs,

DVDs, or other video

reproductions, or slides or other

visual representations which are

(2)

Human male genitalia in a discernibly

turgid state, even if completely and

opaquely covered.

CODE OF THE CITY OF SANDY SPRINGS, GA., § 26-22, App.229.

9

The regulations require live performances offered at

adult entertainment establishments to be presented on a stage a

set distance from the audience. CODE OF THE CITY OF SANDY

SPRINGS, GA, § 26-24 (b)(3), App.235 (“No adult entertainment

shall occur within four feet of any patron or any location other

than on a fixed stage.”); id. at § 26-24 (a), App.234 (“Fixed stage

shall be defined as a raised floor area designed exclusively for use

by adult entertainers at least four feet from the seating area of

patrons, and on which no patron shall be allowed.”).

7

characterized by their emphasis

upon the display of specified

sexual activities or specified

anatomical areas, as defined

herein....

Adult motion picture arcade means a

commercial establishment to which the

public is permitted or invited wherein

coin or slug-operated or electronically,

electrically or mechanically controlled

still or motion picture machines,

projectors or other image producing

devices are regularly maintained to show

images to five or fewer persons per

machine at any one time and where the

images so displayed are distinguished or

characterized by an emphasis upon

matter displaying specified sexual

activities or specified anatomical areas.

Id. at § 26-22, App.224–App.226.

The regulations establish a licensing system, id.

at §§ 26-25, App. 236–App.242; 26-26, App.243–

App.244; 26-28, App.245–App.251; impose restrictions

on performances, patron conduct, and display of adult

materials id. at §§ 26-24, App.234– App.236; 26-29 (e),

App.252–App.253; and ban the consumption and

service of alcohol in adult nightclubs. Id. at §§ 26-24 (b)

(6), App.235; 26-38, App.265. See also at § 6-135,

App.303–App.304 (banning performances which

include nudity in adult entertainment establishments,

while exempting other venues).

The

regulations

also

establish

zoning

8

restrictions. Although each of the Petitioners is located

in the proper zoning district, they do not meet the setback restrictions imposed on adult uses by the

regulations. Even if Petitioners operated as lawful nonconforming uses before Sandy Springs came into

existence, they are not permitted to continue to operate

as such because Sandy Springs requires prior nonconforming adult entertainment establishments–and

only adult entertainment establishments–to terminate

their non-conforming use after an amortization period.

Id. at § 26-37, App. 262–App.265; §4.3.1, App.284.10

Enforcement of Sandy Springs’ regulations

sounds the death knell for Petitioners’ businesses and

the expression they present. By consent agreement, the

Petitioner nightclubs have been permitted to offer

alcohol–save for a two-week span in 2009. During the

two-week period when the alcohol ban was in effect,

the club operated by Petitioner Flanigan’s experienced

an 80 to 90 percent drop in business and lost 90

percent of its performers, who left to dance at venues

outside of Sandy Springs where alcohol was permitted.

The club operated by Petitioner 6420 Roswell Rd.

suffered equally fatal losses.

As for Petitioner Fantastic Visuals’ adult

bookstore, enforcement of the zoning restrictions will

force it to close at the location where it has operated for

more than 25 years.

10

Even if the nightclubs could find new locations

compliant with the set-back restrictions, that is of little help. The

city-wide ban against serving and consuming alcohol at adult

businesses in Sandy Springs stands as an insuperable obstacle to

their viability.

9

II.

Procedural History

Petitioners filed suit in district court,

challenging Sandy Springs’ ordinances under the First

and Fourteenth Amendments. Sandy Springs moved

for summary judgment in its favor. The district court

granted partial summary judgment and set the

remaining issues for a bench trial.

Following trial, the district court entered

judgment for Sandy Springs on all claims. It rejected

Petitioners’ argument that Reed required it to evaluate

the constitutionality of Sandy Springs’ content-based

regulations under strict scrutiny. App.150. Instead, it

found that because the regulations were aimed at

adverse secondary effects associated with adult

businesses, they were to be evaluated under

intermediate scrutiny. App.151.

The district court determined that Sandy

Springs satisfied the evidentiary burdens set forth

Alameda Books, and therefore, passed constitutional

muster. App.158, App.167, App.174–App.179. In

reaching that conclusion, the district court rejected

Petitioners’ contention that the regulations could not

survive the proportionality test set forth in Justice

Kennedy’s concurrence in Alameda Books, which

requires that regulations of adult entertainment

venues leave the quantity and accessibility of speech

substantially intact. App.188–App.191. Petitioners

argued that because the effect of the regulations’

alcohol ban would result in the closure of nightclubs

offering live adult entertainment in the form of nude

dancing, Sandy Springs’ regulations flunked the

proportionality test. The district court, acknowledging

that Justice Kennedy’s concurrence constituted

10

Alameda Books’ holding, nevertheless, concluded

Petitioners’ argument was premised on a misreading of

it. App.186.

Petitioners appealed to the Court of Appeals for

the Eleventh Circuit. The Eleventh Circuit recognized

“[t]here is no question that Reed has called into

question the reasoning undergirding the secondaryeffects doctrine.” App.20. The court explained:

The secondary-effects doctrine allows a

content-based, adult-entertainmentrelated law to be subjected to less than

strict scrutiny as long as the law can be

justified by a legitimate interest in

combating the harmful effects of adult

entertainment. The majority opinion in

Reed, of course, rejected the lower court’s

reliance on the sign code’s justification in

conducting content-neutrality analysis;

the Court also declared that contentbased laws should be subject to strict

scrutiny.

App.20–App.21. Nevertheless, because Reed did not

explicitly address the secondary effects doctrine, the

court determined it was bound by the prior-precedent

rule to follow the decisions of prior panels in the

Eleventh Circuit, which reviewed adult entertainment

regulations under intermediate scrutiny in accordance

with the secondary effects doctrine. App.20-App.21.

As for the regulations’ failure to survive the

proportionality test set forth in Justice Kennedy’s

concurrence in Alameda Books, the Eleventh Circuit

11

panel determined that the proportionality test set forth

in the concurrence was not binding Supreme Court

precedent, App.27– breaking with every other circuit

court that has considered the issue, Richland

Bookmart, Inc. v. Knox Cty., Tenn., 555 F.3d 512, 525

n.5 (6th Cir. 2009); Annex Books, Inc. v. City of

Indianapolis, Ind., 581 F.3d 460, 465 (7th Cir. 2009);

SOB, Inc. v. Cty. of Benton, 317 F.3d 856, 862 n.1 (8th

Cir. 2003); World Wide Video of Washington, Inc. v.

City of Spokane, 368 F.3d 1186, 1193 (9th Cir. 2004),

as amended on denial of reh’g and reh’g en banc (July

12, 2004), as well as other panels within the Eleventh

Circuit. See Peek-A-Boo Lounge of Bradenton, Inc. v.

Manatee County, Fla., 337 F.3d 1251, 1264 (11th Cir.

2003); Fly Fish, Inc. v. City of Cocoa Beach, 337 F.3d

1301, 1310 n. 19 (11th Cir. 2003); Flanigan’s

Enterprises, Inc. of Ga. v. Fulton Cty., Ga., 596 F.3d

1265, 1277 n. 7 (11th Cir. 2010).

The court wrote:

This Circuit has used broad language to

characterize Jus t ice Kennedy’s

concurrence as precedential. See Peek-ABoo I, 337 F.3d at 1264; Daytona Grand,

Inc. v. City of Daytona Beach, Fla., 490

F.3d 860, 874 n.20 (11th Cir. 2007). But,

of course, his concurrence is only binding

to the extent that it can be harmonized

with the plurality’s opinion. See Marks v.

United States, 430 U.S. 188, 193, 97 S.Ct.

990, 51 L.Ed.2d 260 (1977) (“When a

fragmented Court decides a case and no

single rationale explaining the result

enjoys the assent of five Justices, the

holding of the Court may be viewed as

12

that position taken by those Members

who concurred in the judgments on the

narrowest grounds ....” (citation and

internal quotation marks omitted)).

Because Justice Kennedy’s Alameda

Books proportionality test cannot be

harmonized with the plurality’s opinion,

it is not binding Supreme Court

precedent.

App.26–27.

Petitioners filed a petition for panel rehearing

and rehearing en banc, which was denied on November

27, 2017. App.209–App.210.

REASONS FOR GRANTING THE WRIT

I.

Reed Left the Fate of the Secondary Effects

Doctrine in Limbo.

At issue in Reed was whether a municipal sign

code, which, on its face, imposed different restrictions

on signs based on the message they conveyed, should

be subjected to strict scrutiny as a content-based

regulation of speech, or whether it should be reviewed

under intermediate scrutiny because the municipality’s

purpose in adopting it was content neutral. Reed held

that Gilbert, Arizona’s facially content-based sign code

was subject to strict scrutiny–notwithstanding its

content-neutral justification. Id. at 2224, 2228, 2231.

13

The decision “set off a firestorm.” Enrique

Armijo, Reed v. Town of Gilbert, Relax, Everybody, 58

B.C. L. Rev. 65, 66 (Jan. 2017). Robert Post, Dean of

the Yale Law School, described the decision as “bold”

and “sweeping”; Floyd Abrams, a First Amendment

lawyer, “called the decision a blockbuster.” Adam

Liptak, Court’s Free-Speech Expansion Has FarReaching Consequences, N.Y. TIMES (Aug. 17, 2015).

Reed, commentators said, “changed the rules of the

game.” Genevieve Lakier, Reed v. Town of Gilbert,

Arizona, And the Rise of the Anticlassificatory First

Amendment, 2016 SUP. CT. REV. 233, 279. See also,

Leslie Gielow Jacobs, Making Sense of Secondary

Effects Analysis After Reed v. Town of Gilbert, 57

SANTA CLARA L. REV. 385, 413 (2017).

Courts pronounced Reed a “sea change,”

Wollschlaeger v. Governor, Florida, 848 F.3d 1293,

1332-33 (11th Cir. 2017) (en banc) (Tjoflat, J.,

dissenting), and credited it with providing “muchneeded clarity in First Amendment jurisprudence.”

Norton v. City of Springfield, 806 F.3d 411, 413 (7th

Cir. 2015) (Mannion, J., concurring).

Because of Reed, the Seventh and Third Circuit

Courts of Appeals granted petitions for rehearing and

reversed earlier rulings that had upheld content-based

laws under intermediate scrutiny. Norton, 806 F.3d at

411-12; Free Speech Coalition, Inc. v. Attorney General

United States, 825 F. 3d 149, 159-60, 160 n.7 (3rd Cir.

2016) (noting that “Reed represents a drastic change in

First Amendment jurisprudence”). And the Fourth

Circuit Court of Appeals determined Reed had

abrogated that Circuit’s First Amendment precedent

finding content-based regulations that were justified

by a content-neutral purpose were subject to

14

intermediate, not strict, scrutiny. See Cahaly v.

Larosa, 796 F.3d 399 (4th Cir. 2015); Cent. Radio Co.

Inc. v. City of Norfolk, 811 F.3d 625, 632 (4th Cir.

2016); Lucero v. Early, 873 F.3d 466, 471 (4th Cir.

2017).

But while Reed provided “much- needed clarity,”

in certain respects, it also prompted confusion in

others. See e.g., Ocheesee Creamery LLC v. Putnam,

851 F.3d 1228, 1235 n.7 (11th Cir. 2017) (questioning

whether Reed changed the analysis of commercial

speech under the Central Hudson test).

This case resides in confusion territory. The

court below acknowledged: “There is no question that

Reed has called into question the reasoning

undergirding the secondary effects doctrine.” App.20.

See also, Jacobs, 57 SANTA CLARA L. REV. at 413

(“Although the reasoning and strong language in the

Reed opinion could appear to rip away the

underpinnings of Secondary Effects Analysis, the Court

did not mention the possibility.”). As Judge Rendell

wrote in dissent in Free Speech Coalition: “The

secondary effects doctrine...seems logically

irreconcilable with Reed.” 825 F.3d at 174 (Rendell, J.,

dissenting).

A look at the secondary effects doctrine bears out

its inconsistency with Reed. The doctrine had its

genesis in Renton v. Playtime Theatres, Inc., 475 U.S.

41 (1986). Justice Kennedy described its foundation in

his concurrence in Alameda Books:

In Renton, the Court began by noting

that a zoning ordinance is a time, place,

or manner restriction. The Court then

15

proceeded to consider the question

whether the ordinance was “content

based.” The ordinance “by its terms [was]

designed to prevent crime, protect the

city’s retail trade, maintain property

values, and generally protec[t] and

preserv[e] the quality of [the city’s]

neighborhoods, commercial districts, and

the quality of urban life, not to suppress

the expression of unpopular views.” 475

U.S., at 48, 106 S.Ct. 925 (internal

quotation marks omitted). On this

premise, the Court designated the

restriction “content neutral.” Ibid.

The Court appeared to recognize,

however, that the designation was

something of a fiction, which, perhaps, is

why it kept the phrase in quotes. After

all, whether a statute is content neutral

or content based is something that can be

determined on the face of it; if the statute

describes speech by content then it is

content based.

Alameda Books, 535 U.S. at 448.

Notwithstanding the recognition that

regulations like the ones at issue here are content

based, the Court in Renton concluded they should,

nevertheless, be reviewed under intermediate scrutiny

because they were “justified without reference to the

content of the regulated speech.” Renton, 475 U.S. at

48 (citations omitted).

Reed, however, rejected that approach. It

16

explained in determining whether a regulation is

content based or content neutral, a court must first

look at “whether a regulation of speech ‘on its face’

draws distinctions based on the message a speaker

conveys”; if it does, that ends the inquiry. Id. at 2227

(citation omitted).

found:

Turning to the ordinance before it, the Court

On its face, the Sign Code is a

content-based regulation of speech. We

thus have no need to consider the

government's justifications or purposes

for enacting the Code to determine

whether it is subject to strict scrutiny.

Id.

The Court of Appeals in Reed had reasoned,

however, that Gilbert’s ordinance was content neutral

because of its content-neutral justifications and the

town’s lack of hostility toward the regulated

speech–the particulars on which the secondary effects

doctrine is premised. Id. at 2226. The Court rejected

that approach:

But this analysis skips the crucial first

step in the content-neutrality analysis:

determining whether the law is content

neutral on its face. A law that is content

based on its face is subject to strict

scrutiny regardless of the government's

benign motive, c ontent-neutral

justification, or lack of “animus toward

the ideas contained” in the regulated

17

speech.

Id. at 2228 (citation omitted).

The Court found the lower court’s reliance on

Ward v. Rock Against Racism, 491 U.S. 781 (1989), to

justify its use of intermediate scrutiny, was misplaced:

The Court of Appeals and the United

States misunderstand our decision in

Ward as suggesting that a government's

purpose is relevant even when a law is

content based on its face. That is

incorrect. Ward had nothing to say about

facially content-based restrictions

because it involved a facially

content- neutral ban....But Ward’s

framework “applies only if a statute is

content neutral.”...Its rules thus operate

to “protect speech,” not “to restrict it.”

Id. at 2228–29 (emphasis sic) (citations omitted).

Criticism of the inconsistency between the

secondary effects doctrine and the general premise

recognized in Reed that facially content-based

regulations are to be reviewed under strict scrutiny,

regardless of their content-neutral justifications, is not

new. See Geoffrey R. Stone, Content-Neutral

Restrictions, 54 U. CHI. L. REV. 46, 115 (1987)

(describing Renton as “disturbing, incoherent, and

unsettling” and “threaten[ing] to undermine the very

foundation of the content-based/content-neutral

distinction”); Ofer Raban, Content-Based, Secondary

Effects, and Expressive Conduct: What in the World Do

They Mean (And What Do They Mean to the United

18

States Supreme Court)?, 30 SETON HALL L. REV. 551,

553 (2000) (“[T]he doctrine of secondary effects

obliterates the content-based doctrine, the doctrine to

which the doctrine of secondary effects was meant to be

a mere exception.”); Ashutosh Bhagwat, The Test That

Ate Everything: Intermediate Scrutiny in First

Amendment Jurisprudence, 2007 U. ILL. L. REV. 783,

797 (2007) (“The secondary effects doctrine is an

extremely odd one, as it seems clearly inconsistent

with the Court’s approach to content neutrality

elsewhere in its First Amendment jurisprudence....”).

While Reed provided clarity in holding that “[a]

law that is content based on its face is subject to strict

scrutiny regardless of the government’s benign motive,

content-neutral justification, or lack of ‘animus toward

the ideas contained’ in the regulated speech,” Reed, 135

S.Ct. at 2228, it offered no such clarity regarding the

status of the secondary effects doctrine.

The court below–as well as other courts

confronting the issue–have been left at sea. While

noting the inconsistency between the secondary effects

doctrine and Reed, they have concluded that since

Reed did not explicitly address the secondary effects

doctrine, the doctrine has not been abrogated, but

continues to exist as a doctrinal anomaly.

App.21–App.22. See also, BBL, Inc. v. City of Angola,

809 F.3d 317, 326 n.1 (7th Cir. 2015) (finding that Reed

did not “upend[]” the doctrine of secondary effects);

Free Speech Coalition, 825 F.3d 149, 161 n.8

(“Although we do not reach the issue, we agree with

the dissent that it is doubtful that Reed has overturned

the Renton secondary effects doctrine.”); “Q”-Lungian

Enterprises, Inc. v. Town of Windsor Locks, No.

3:13-CV-01285 (JAM), 2017 WL 4127898, at *5 (D.

19

Conn. Sept. 18, 2017) (finding Renton was still “good

law” and it was not for district court to repudiate it).

This case presents the opportunity to correct

course, resolve the fundamental inconsistency between

Reed and the secondary effects doctrine, and provide

guidance to the lower courts in evaluating contentbased regulations of businesses offering sexually

oriented speech and expression.

II.

Based on Its Singular Interpretation of Marks

v. United States, the Court Below Determined

That

Justice

Kennedy’s

Concurrence

in

Alameda Books Is Not Binding Precedent, a

Decision At Odds with Those of the Sixth,

Seventh, Eighth, and Ninth Circuits–as Well as

Other Eleventh Circuit Panels.

Petitioners presented unrebutted evidence

showing that because the viability of nightclubs

offering nude dancing performances was predicated on

the ability to sell alcohol, enforcement of the

ordinances’ alcohol ban would force them to close and

thus obliterate that form of expression in Sandy

Springs. They argued that the ordinances, therefore,

failed to satisfy the requirement set forth in Justice

Kennedy’s concurrence in Alameda Books–that to

survive constitutional scrutiny, a municipality must

demonstrate that its regulation of expression “leav[es]

the quantity and accessibility of speech substantially

intact.” 535 U.S. at 449–50.

The court below acknowledged the requirement

set forth in the concurrence–describing it as a

proportionality test, requiring the assessment of

whether a law disproportionately silences speech in

20

order to reduce its adverse secondary effects–but found

that it was not binding Supreme Court precedent.

App.27.That was so, the court reasoned, “[b]ecause

Justice Kennedy’s proportionality test cannot be

harmonized with the plurality’s opinion.” Id. The court

therefore concluded, under its reading of Marks v.

United States, Justice Kennedy’s concurrence was not

binding precedent. Id.

Marks sets forth the rule for determining the

precedential effect of a plurality decision of the Court:

When a fragmented Court decides a case

and no single rationale explaining the

result enjoys the assent of five Justices,

“the holding of the Court may be viewed

as that position taken by those Members

who concurred in the judgments on the

narrowest grounds....”

430 U.S. at 193 quoting Gregg v. Georgia, 428 U.S.

153, 169 n.15 (1976) (opinion of Stewart, Powell, and

Stevens, JJ.). Therefore, when a concurring Justice

supplies the fifth vote “on a ground narrower than

those put forth by the plurality, her position is

controlling.” Romano v. Oklahoma, 512 U.S. 1, 9

(1994); see also, Panetti v. Quarterman, 551 U.S. 930,

949 (2007) (recognizing Justice Powell’s concurrence in

Ford v. Wainwright, 477 U.S. 399 (1986) offered a more

limited holding and was therefore, controlling).

21

A.

The court’s conclusion that Justice

Kennedy’s concurrence in Alameda Books

is not binding precedent conflicts with

the decisions of every other court that

has addressed the issue.

In Alameda Books, the Court sought to clarify its

opinion in Renton. 535 U.S. at 433. It addressed the

evidentiary burdens a municipality shouldered to

establish that its adult zoning ordinances were

content-neutral regulations designed to ameliorate

secondary effects associated with adult businesses

subject to intermediate scrutiny, as Renton

permitted–as opposed to content-based restrictions

aimed to suppress sexually oriented expression, subject

to strict scrutiny.

The four Justices of the plurality found that

when a municipality can demonstrate it relied “upon

evidence that is ‘reasonably believed to be relevant’ to

the secondary effects they seek to address,” in passing

an ordinance regulating adult businesses, that

ordinance will be upheld as a valid time, place, and

manner regulation in consonance with Renton,

providing the challenger is unable to cast doubt on the

municipality’s rationale or if it does, the municipality

is able to come forward with additional evidence in

support. Id. at 439–40, 442 (plurality).

Justice Kennedy explained he wrote separately

because in his view, “the plurality’s application of

Renton might constitute a subtle expansion,” with

which he did not agree. Id. at 445. He, therefore,

conditioned his concurrence in judgment on an

additional requirement:

22

[A] city must advance some basis to show

that its regulation has the purpose and

effect of suppressing secondary effects,

while leaving the quantity and

accessibility of speech substantially

intact. The ordinance may identify the

speech based on content, but only as a

shorthand for identifying the secondary

effects outside. A city may not assert that

it will reduce secondary effects by

reducing speech in the same proportion.

On this point, I agree with Justice

SOUTER. See post, at 1746. The

rationale of the ordinance must be that it

will suppress secondary effects–and not

by suppressing speech.

Id. at 449–50 (Kennedy, J., concurring in judgment).

Under the rule set forth in Marks, Justice

Kennedy’s concurrence, which sets forth the narrowest

ground on which a majority of the Members of the

Court concurred, constitutes the holding of Alameda

Books.

That, in fact, has been the conclusion of every

other court of appeals that has addressed the issue.

Richland Bookmart, 555 F.3d at 525 n.5 (6th Cir.);

Annex Books, 581 F.3d at 465 (7th Cir.); SOB, Inc., 317

F.3d at 862 n.1 (8th Cir.); World Wide Video, 368 F.3d

at 1193 (9th Cir.)–including prior panels of the

Eleventh Circuit. Peek-A-Boo Lounge, 337 F.3d at1264;

Fly Fish, Inc., 337 F.3d at 1310 n. 19; Flanigan’s

Enterprises, 596 F.3d at 1277 n. 7.

The decision of the court below to the contrary is

23

in conflict with this precedent.

B.

The court’s conclusion that under Marks

v. United States, a concurrence stating

the narrowest ground in support of a

judgment is not binding unless it can be

harmonized with the plurality opinion, is

in conflict with United States v. Hughes,

849 F.3d 1008 (11th Cir. 2017) cert.

granted, No. 17-155, Dec. 8, 2017, and

adopts an interpretation of Marks

followed by no other circuit court.

The court below found that because Justice

Kennedy’s concurrence in Alameda Books imposed an

additional requirement not adopted by the plurality as

a predicate for review under intermediate scrutiny–a

showing that the quantity and accessibility of speech

be left substantially intact–his concurrence could not

be harmonized with the plurality opinion. App.27. It

was on that basis, the court below rejected Justice

Kennedy’s concurrence as binding precedent.

This Court has acknowledged that the holding of

Marks has “baffled and divided the lower courts,” and

has been “more easily stated than applied.” Nichols v.

United States, 511 U.S. 738, 745-46 (1994). Two

distinct approaches in applying Marks have emerged.

The Ninth Circuit and the D.C. Circuit have

adopted a “reasoning-based approach” which treats a

concurrence as the holding of the case only if it is “a

logical subset” of the other opinions in the case. United

States v. Davis, 825 F.3d 1014, 1021 (9th Cir. 2016) (en

banc); King v. Palmer, 950 F.2d 771, 781 (D.C. Cir.

1991) (en banc).

24

On the other hand, the Eleventh Circuit in

earlier decisions adopted a result-based approach

which looks to the “narrowest grounds of decision

among the justices whose votes were necessary to the

judgment,” even if that decision does not necessarily

share common reasoning with the others. Hughes, 849

F.3d at 1014 citing O’Dell v. Netherland, 521 U.S. 151,

162 (1997); see also, Planned Parenthood of Southeast

Pa. v. Casey, 947 F.2d 682 (3rd Cir. 1991) aff’d in part,

rev’d in part, 505 U.S. 833 (1992).

This Court has, in fact, granted certiorari in

Hughes, which raises the conflict between the two

approaches. Case No. 17-155, Order Dec. 8, 2017,

granting cert.

The court below appears to have adopted yet a

third approach. It did not examine whether Justice

Kennedy’s concurrence was “a logical subset”of the

plurality opinion. Davis, 825 F.3d at 1022. Nor did it

evaluate whether application of the legal standard set

forth in the concurrence would produce results with

which a majority of the Court would agree, as Hughes

would require–e.g., asking if the plurality would

uphold a secondary effects ordinance, whenever Justice

Kennedy would. Rather, after observing that the

concurrence “was not joined by another Justice,” the

court simply concluded Justice Kennedy’s opinion was

not binding precedent because it could “not be

harmonized with the plurality’s opinion.” App.27.

The decision of the court below directly conflicts

with Hughes, which makes clear that Marks does not

require “harmonizing.” It also conflicts with the

approach in Davis, requiring a court to diagram the

opinions of a plurality decision to determine whether “a

25

circle representing the reasoning” of the concurrence

“sits neatly within a circle representing the reasoning

of the plurality opinion.” 825 F.3d at 1023.

This case provides an opportunity for the Court

to step in and resolve the confusion about what Marks

requires in determining the precedential effect of a

plurality decision.

CONCLUSION

For these reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

CARY S. WIGGINS

Wiggins Law Group

260 Peachtree St., NW

Suite 401

Atlanta, Ga. 30303

(404) 659-2880

cary@wigginslaw

group.com

J. MICHAEL MURRAY

Counsel of Record

LORRAINE R. BAUMGARDNER

Berkman, Gordon, Murray

& DeVan

55 Public Square Suite 2200

Cleveland, Ohio 44113

(216) 781-5245

jmmurray@bgmdlaw.com

Counsel for Petitioners