Petition for Writ of Certiorari — Keepers, Inc., Petitioner v. City of Milford, Connecticut

No. ______

In the

Supreme Court of the United States

__________________

KEEPERS, INC.,

v.

Petitioner,

CITY OF MILFORD, CONNECTICUT,

Respondent.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

DANIEL A. SILVER

SILVER & SILVER LLP

One Liberty Square

New Britain, Connecticut 06050

(860) 225-3518

dan@lawsilver.com

JENNIFER M. KINSLEY

Counsel of Record

KINSLEY LAW OFFICE

Post Office Box 19478

Cincinnati, Ohio 45219

(513) 708-2595

kinsleylawoffice@gmail.com

Counsel for Petitioner

December 5, 2019

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTION PRESENTED

Whether the district court erred in refusing to grant

Petitioner relief from summary judgment based on the

Supreme Court’s superseding decision in Reed v. Town

of Gilbert, which requires lower courts to employ strict

scrutiny in analyzing content-based restrictions on

speech.

ii

LIST OF DIRECTLY RELATED PROCEEDINGS

United States District Court for the District of

Connecticut:

Keepers, Inc. v. City of Milford, No. 3:07cv1231

(AWT) (Sept. 5, 2018; Sept. 11, 2017; and March 30,

2013)

United States Court of Appeals for the Second Circuit:

Keepers, Inc. v. City of Milford, Nos. 14-1581-cv, 142113-cv (Nov. 20, 2015)

Keepers, Inc. v. City of Milford, No. 18-2965-cv

(Sept. 10, 2019)

United States Supreme Court:

Keepers, Inc. v. City of Milford, No. 15-1487 (Oct. 3,

2016)

iii

CORPORATE DISCLOSURE STATEMENT

Petitioner Keepers, Inc., by and through its counsel,

makes the following corporate disclosures:

There is no parent corporation of Keepers, Inc.,

and no publicly held corporation owns more than

10% of the stock of Keepers, Inc.

iv

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

LIST OF DIRECTLY RELATED

PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

CORPORATE DISCLOSURE STATEMENT . . . . . iii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . vi

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

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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

REASONS FOR GRANTING THE WRIT. . . . . . . . . 5

Certiorari Should Be Granted Because The

Second Circuit’s Summary Decision Denying

Rule 60(b) Relief Conflicts With The Court’s

Content-Based Strict Scrutiny Analysis In Reed

v. Town of Gilbert . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. The Second Circuit Erred in Denying

Keepers’ Rule 60(b) Motion, Because this

Court’s Decision in Reed v. Town of Gilbert

Altered the Analysis for Assessing the

Constitutionality of Content-Based

Restrictions on Speech . . . . . . . . . . . . . . . . . . 5

B. The Circuit Court Abused its Discretion in

Denying Keepers’ Rule 60(b) Motion on the

Grounds that It was Untimely . . . . . . . . . . . 11

v

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

APPENDIX

Appendix A Summary Order in the United States

Court of Appeals for the Second Circuit

(September 10, 2019) . . . . . . . . . . App. 1

Appendix B Docket Entry Order in the United

States District Court District of

Connecticut with Doc. 121 attached

Defendant’s Response to Plaintiff’s

Motion to Alter or Amend Order

Denying for Relief from Judgment in

the United States District Court

District of Connecticut

(September 5, 2018) . . . . . . . . . . . App. 5

Appendix C Order Re Motion for Relief from

Judgment in the United States

District Court District of Connecticut

(September 11, 2017) . . . . . . . . . App. 14

Appendix D Ruling on Motions for Summary

Judgment in the United States

District Court District of Connecticut

(March 30, 2013) . . . . . . . . . . . . . App. 17

vi

TABLE OF AUTHORITIES

CASES

Agostini v. Felton,

521 U.S. 203 (1997). . . . . . . . . . . . . . . . . . . . . . . 11

Browne v. City of Grand Junction,

136 F.Supp.3d 1276 (D. Colo. 2015) . . . . . . . . . 8, 9

Buck v. Davis,

137 S.Ct. 759 (2017) . . . . . . . . . . . . . . . . . . . . . . . 5

Cahaly v. Larosa,

796 F.3d 399 (4th Cir. 2015). . . . . . . . . . . . . . . . . 8

Central Radio Co., Inc. v. City of Norfolk, Virginia,

776 F.3d 229 (4th Cir. 2015). . . . . . . . . . . . . . . . . 9

FF Cosmetics FL, Inc. v. City of Miami Beach,

866 F.3d 1290 (11th Cir. 2017). . . . . . . . . . . . . . . 8

Free Speech Coalition, Inc. v. Atty. Gen. of the

United States, 825 F.3d 149 (3d Cir. 2016) . . . . . 9

GJJM, Inc. v. City of Atlantic City,

352 F.Supp.3d 402 (D. N.J. 2018) . . . . . . . . . . . . 8

Gresham v. Rutledge,

198 F.Supp.3d 965 (E.D. Ark. 2016) . . . . . . . . . . 8

Liljeberg v. Health Services Acquisition Corp.,

486 U.S. 847 (1988). . . . . . . . . . . . . . . . . . . . . . . . 5

Norton v. City of Springfield, Ill.,

806 F.3d 411 (7th Cir. 2015). . . . . . . . . . . . . . . . . 8

Reed v. Town of Gilbert,

135 S.Ct. 2218 (2015) . . . . . . . . . . . . . . . . . passim

vii

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011). . . . . . . . . . . . . . . . . . . . . . . . 6

Thayer v. City of Worcester,

755 F.3d 60 (1st Cir. 2014) . . . . . . . . . . . . . . . . . . 9

Thomas v. Schroer,

127 F.Supp.3d 864 (W.D. Tenn. Sept. 8, 2015) . . 9

United Airlines, Inc. v. Brien,

588 F.3d 158 (2d Cir. 2009) . . . . . . . . . . . . . . . . 11

United States v. Cirami,

563 F.2d 26 (2d Cir. 1977) . . . . . . . . . . . . . . . . . . 5

Wagner v. City of Garfield Heights, Ohio,

577 Fed.Appx. 488 (6th Cir. 2014) . . . . . . . . . . . . 9

STATUTES

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

Fed. R. Civ. P. 60(b) . . . . . . . . . . . . . . . . . . . . . passim

Fed. R. Civ. P. 60(c) . . . . . . . . . . . . . . . . . . . . . . . . . 11

OTHER AUTHORITIES

Anthony Lauriello, Panhandling Regulation After

Reed v. Town of Gilbert, 116 Colum. L. Rev.

1105 (May 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Urja Mittal, The “Supreme Board of Sign Review:”

Reed and Its Aftermath, 125 Yale L.J.F. 359

(2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1

Petitioner Keepers, Inc. (“Keepers”) respectfully

prays that a Writ of Certiorari issue to review the

judgment entry of the United States Court of Appeals

for the Second Circuit entered on September 10, 2019.

OPINIONS BELOW

The summary opinion of the United States Court of

Appeals for the Second Circuit, which is unpublished,

is attached to the Petition at App. 1. The Second

Circuit’s opinion is available at Keepers, Inc. v. City of

Milford, 776 Fed. Appx. 734 (2d Cir. 2019). The

decision of the United States District Court for the

District of Connecticut denying Keepers’ Fed. R. Civ. P.

60(b) motion is also unpublished and is attached to the

Petition at App. 5. The district court’s original

summary judgment decision to which the Fed. R. Civ.

P. 60(b) motion pertains is reported at Keepers, Inc. v.

City of Milford, 944 F.Supp.2d 129 (D. Ct. 2013) and

attached at App. 17.

JURISDICTIONAL STATEMENT

The decision of the Second Circuit was issued on

September 20, 2019. This Court this has jurisdiction

under 28 U.S.C. § 1254(1) to review this Petition.

CONSTITUTIONAL AND STATUTORY

PROVISIONS

This case involves Fed. R. Civ. P. 60(b)(6), which

states in relevant part:

On motion and just terms, the court may relieve

a party or its legal representative from a final

2

judgment, order, or proceeding for the following

reasons:

***

6) any other reason that justifies relief.

STATEMENT OF THE CASE

In 2003, Keepers, Inc., which operates a cabaretstyle nightclub featuring live exotic entertainment,

filed suit challenging the constitutionality of the City

of Milford, Connecticut’s adult business regulatory

ordinance. See Keepers, Inc. v. City of Milford, 807

F.3d 24, 28 (2d Cir. 2015). In 2007, the City

substantially amended the ordinance, and Keepers

again filed suit. Id. at 28-9. The district court

consolidated the two actions, and both parties sought

summary judgment. Id. at 30. In 2013, the district

court granted the City’s summary judgment motion as

to all claims but one, involving the requirement that

licenses bearing the names of the business owners be

posted in a public location in the business. Id. at 30-1.

It awarded summary judgment to Keepers on that

narrow claim. Id.

One of the claims the district court resolved in the

City’s favor involved a challenge to the adult business

ordinance on facial First Amendment grounds. App.

28. In its summary judgment decision, the district

court contemplated whether the ordinance was contentbased or content-neutral in determining the

appropriate level of constitutional scrutiny to apply.

App. 29-30. Observing that the purpose of the

ordinance was strictly to reduce the secondary effects

of adult businesses rather than to regulate their speech

3

based on its content, the court determined that the

ordinance was content-neutral. App. 30. It therefore

applied intermediate scrutiny and upheld the

ordinance. Id.

Keepers appealed the portion of the court’s

summary judgment decision that was in the City’s

favor. Keepers, 807 F.3d at 34. The sole issue it raised

on appeal was whether the district court erred in

considering testimony of the City’s attorney that

conflicted with the sworn statements of the City’s Rule

30(b)(6) deponent. Id. The City also cross-appealed as

to the district court’s decision that the public license

posting requirement was unconstitutional. Id. at 38.

The Second Circuit decided the appeal in the City’s

favor as to both issues on November 20, 2015. Id. at

24. This Court subsequently denied certiorari review.

See Keepers, Inc. v. City of Milford, Conn., 137 S.Ct.

277 (2016).

A mere nine days after this Court’s denial of

certiorari, Keepers filed a Rule 60(b)(6) motion seeking

relief from the district court’s summary judgment

order. App. 5. The basis of the motion was this Court’s

June 18, 2015 decision in Reed v. Town of Gilbert, 135

S.Ct. 2218 (2015), which altered the test by which the

federal courts assess the constitutionality of contentbased restrictions on speech. App. 15. Keepers argued

that the court’s content-neutrality finding and

resulting intermediate scrutiny analysis were no longer

valid in light of the Reed decision. Id.

On September 11, 2017, the district court denied

Keepers’ Rule 60(b) motion. App. 14. Rather than

considering the merits of the argument that Reed

4

requires stricter scrutiny than the court had initially

employed, the district court instead treated the motion

as a Rule 60(b)(1) motion to correct a mistake in its

judgment. App. 15. Because Rule 60(b)(1) motions

must be filed within one year of the decision in

question, and because Keepers’ Rule 60(b) motion was

filed more than one year after the court’s summary

judgment order, the lower court denied the motion. Id.

Keepers then sought a timely amendment of the

district court’s decision and requested a ruling as to the

merits of its argument that Reed requires a new

analysis of the facial constitutionality of the City’s

adult use ordinance. App. 5-6. Once again, the district

court denied the motion. Id. As a result, the district

court has never considered whether Reed in fact

requires strict scrutiny analysis in this case.

Keepers appealed the district court’s denial of relief

from judgment to the Second Circuit, which summarily

denied the appeal. App. 2-4. This request for certiorari

follows.

5

REASONS FOR GRANTING THE WRIT

Certiorari Should Be Granted Because The

Second Circuit’s Summary Decision

Denying Rule 60(b) Relief Conflicts With

The Court’s Content-Based Strict Scrutiny

Analysis In Reed v. Town of Gilbert.

A. The Second Circuit Erred in Denying

Keepers’ Rule 60(b) Motion, Because this

Court’s Decision in Reed v. Town of Gilbert

Altered the Analysis for Assessing the

Constitutionality of Content-Based

Restrictions on Speech.

Pursuant to Fed. R. Civ. P. 60(b)(6), courts may

relieve a party from the effect of its judgment for “any

[] reason that justifies relief.” This Court has held that

the rule grants “wide discretion” in lower courts. See

Buck v. Davis, 137 S.Ct. 759, 777 (2017). One such

court – the Second Circuit – has interpreted this

provision to constitute “a grand reservoir of equitable

power to do justice in a particular case.” See United

States v. Cirami, 563 F.2d 26, 32 (2d Cir. 1977). In

determining a Rule 60(b)(6) motion, courts may

consider a variety of factors, including “the risk of

injustice to the parties” and “the risk of undermining

the public’s confidence in the judicial process.” Buck,

137 at 778 (citing Liljeberg v. Health Services

Acquisition Corp., 486 U.S. 847, 863–64 (1988)).

Regarding fundamental First Amendment rights,

the Court has dramatically changed the way that the

courts must approach strict scrutiny in the wake of

Reed, 135 S.Ct. 2218. In Reed, the Court struck down

6

a sign ordinance which included various exceptions and

variable standards depending on whether the sign was

political, elections-oriented, or bore some other noncommercial message. Id. at 2224-5. The Court found

that the ordinance was content-based and subject to

strict scrutiny. Id. at 2224. The Court cited a

commercial case - Sorrell v. IMS Health Inc., 564 U.S.

552 (2011) - for the principle that heightened scrutiny

was required when content-based discriminations are

found in a law that targets expression. Reed, 135 S.Ct.

at 2227.

The majority opinion in Reed noted that there had

been some slippage in First Amendment doctrine,

whereby the lower courts have improperly upheld laws

unless the content-based distinctions at issue directly

reflected an intent to regulate based on issue or

speaker. Id. at 2228-30. In fact, the circuit court in

Reed had taken just that approach:

As the court [of appeals] explained, “Gilbert did

not adopt its regulation of speech because it

disagreed with the message conveyed” and its

“interests in regulat[ing] temporary signs are

unrelated to the content of the sign.”

Accordingly, the court [of appeals] believed that

the Code was “content-neutral as that term [has

been] defined by the Supreme Court.” In light of

that determination, it applied a lower level of

scrutiny to the Sign Code and concluded that the

law did not violate the First Amendment.

Reed, 135 S.Ct. at 2226 (internal citations omitted).

7

The Court rejected this approach, adopting instead

a more formalistic analysis. Under Reed, a law will be

declared content-based if it adopts categories,

exclusions, or exclusions defined in terms of what is

said regardless of the governmental motive underlying

the regulation:

Government regulation of speech is content

based if a law applies to particular speech

because of the topic discussed or the idea or

message expressed. E.g., Sorrell v. IMS Health,

Inc., 564 U.S. , , 131 S.Ct. 2653, 2663–2664,

180 L.Ed.2d 544 (2011); Carey v. Brown, 447

U.S. 455, 462, 100 S.Ct. 2286, 65 L.Ed.2d 263

(1980); Mosley, supra, at 95, 92 S.Ct. 2286. This

commonsense meaning of the phrase “content

based” requires a court to consider whether a

regulation of speech “on its face” draws

distinctions based on the message a speaker

conveys. Sorrell, supra, at , 131 S.Ct., at 2664.

Some facial distinctions based on a message are

obvious, defining regulated speech by particular

subject matter, and others are more subtle,

defining regulated speech by its function or

purpose. Both are distinctions drawn based on

the message a speaker conveys, and, therefore,

are subject to strict scrutiny.

Reed, 135 S.Ct. at 2227.

In addition to laws which explicitly regulate in

terms of what is said, the Court also held that laws

which are content-neutral on their face will be treated

as content-based if their justification relies on

distinctions between the message or the messenger:

8

Our precedents have also recognized a separate

and additional category of laws that, though

facially content neutral, will be considered

content-based regulations of speech: laws that

cannot be “‘justified without reference to the

content of the regulated speech,’ “or that were

adopted by the government “because of

disagreement with the message [the speech]

conveys,” Ward v. Rock Against Racism, 491

U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661

(1989). Those laws, like those that are content

based on their face, must also satisfy strict

scrutiny.

Reed, 135 S.Ct. at 2227.

In the wake of Reed, the lower courts have faithfully

applied the Court’s content-based analysis, noting that

laws which create distinctions based on categories of

speech are constitutionally invalid. See, e.g., FF

Cosmetics FL, Inc. v. City of Miami Beach, 866 F.3d

1290 (11th Cir. 2017) (invalidating advertising ban in

the Miami Beach historic district for lack of content

neutrality); Norton v. City of Springfield, Ill., 806 F.3d

411, 412-13 (7th Cir. 2015) (invalidating content-based

panhandling restriction by applying strict scrutiny

under Reed); Cahaly v. Larosa, 796 F.3d 399 (4th Cir.

2015) (invalidating state statute prohibiting unsolicited

marketing and politically related calls as content based

and unconstitutional under the First Amendment);

GJJM, Inc. v. City of Atlantic City, 352 F.Supp.3d 402

(D. N.J. 2018) (invalidating restriction on BYOB

advertising under Reed strict scrutiny); Gresham v.

Rutledge, 198 F.Supp.3d 965 (E.D. Ark. 2016); Browne

9

v. City of Grand Junction, 136 F.Supp.3d 1276 (D. Colo.

2015) (employing Reed analysis in finding panhandling

restriction unconstitutional); Thomas v. Schroer, 127

F.Supp.3d 864 (W.D. Tenn. 2015).

Moreover, following Reed, this Court subsequently

vacated and remanded appellate decisions similar to

Reed that were issued in three other circuits: the First,

Fourth, and Sixth. See Thayer v. City of Worcester, 755

F.3d 60 (1st Cir. 2014); Central Radio Co., Inc. v. City

of Norfolk, Virginia, 776 F.3d 229 (4th Cir. 2015);

Wagner v. City of Garfield Heights, Ohio, 577

Fed.Appx. 488 (6th Cir. 2014). Those circuits had

uniformly declined -- predicated upon prior decisions of

this Court that the lower courts felt to be settled law -to impose strict scrutiny when analyzing the

constitutionality of various sign ordinances.

In fact, at least one federal court has explicitly held

that regulation of sexually-oriented speech,

traditionally a marginalized speech category, is

content-based and therefore subject to strict scrutiny

under Reed. See Free Speech Coalition, Inc. v. Atty.

Gen. of the United States, 825 F.3d 149, 160-64 (3d Cir.

2016). Thus, Reed requires strict scrutiny in any

instance where a government regulation singles out

speech for disparate treatment based upon its content

or message.1

1

In addition, legal scholars have also emphasized the impact of Reed,

characterizing it as “sea change” in First Amendment jurisprudence

and noting that Reed’s “redefinition of content discrimination…

revolutionize[d]” free speech doctrine. See Anthony Lauriello,

Panhandling Regulation After Reed v. Town of Gilbert, 116 Colum. L.

Rev. 1105, 1105 (May 2016); Urja Mittal, The “Supreme Board of Sign

Review:” Reed and Its Aftermath, 125 Yale L.J.F. 359, 359 (2016).

10

Applying Reed and its progeny, the lower court’s

summary judgment ruling that the City of Milford’s

adult business ordinances are content-neutral is no

longer valid. App. 30. One thing is clear: the

ordinances apply solely to speech that is sexually

oriented and therefore create categorical distinctions

based upon the message of the speech at issue. App.

19-23 (describing nature and scope of sexually oriented

business ordinances). As a result, under Reed, strict

scrutiny, rather than the intermediate scrutiny used by

the lower court, should apply.

The district court upheld the constitutionality of the

City’s adult business ordinance based solely upon a

purportedly speech-neutral motivation for the

enactment of the law. App. 30. But under Reed, the

government’s motive is irrelevant if the law itself

imposes distinctions based on content. Reed, 135 S.Ct.

at 1227. By segregating speech that is sexually

oriented from other forms of expression, the City’s

ordinance is clearly content-based and should have

been analyzed as such. As a result, the Court should

grant certiorari to review this critical conflict in Reed’s

application, should reverse the Second Circuit’s denial

of Keepers’ Rule 60(b) motion, and should remand the

case for the application of strict scrutiny to the City’s

adult business ordinance.

11

B. The Circuit Court Abused its Discretion in

Denying Keepers’ Rule 60(b) Motion on the

Grounds that It was Untimely.

The Second Circuit erroneously denied Keepers’

Rule 60(b)(6) motion on the grounds that it should be

filed within the one-year limitations period found in

Rule 60(b)(1). App. 3. As the district court rightly

pointed out, motions made under Rule 60(b)(1) must be

filed within one year of the judgment itself. See Fed. R.

Civ. P. 60(c); App. 15. However, Keepers’ motion was

brought under Rule 60(b)(6), not Rule 60(b)(1), and as

a matter of law could not be considered under Rule

60(b)(1).

Changes in controlling case law that occur after a

judgment is issued fall within the Rule 60(b)(6) catchall

provision and not the other grounds for relief from

judgment set forth in Rule 60(b). See, e.g., Agostini v.

Felton, 521 U.S. 203, 239 (1997) (observing that the

impact of changes in law on the prospective application

of civil judgments should be assessed under Rule

60(b)(6)). Moreover, Rule 60(b)(1)’s focus on mistake or

neglect references conditions in existence at the time of

the judgment but unknown to the parties or the court,

rather than a subsequent change in the legal landscape

that did not exist when the judgment was rendered.

See, e.g., United Airlines, Inc. v. Brien, 588 F.3d 158,

176 (2d Cir. 2009) (categorizing inconsistent judgments

as falling under Rule 60(b)(6)’s catchall and not Rule

60(b)(1)’s mistake provision). As such, the Second

Circuit’s reliance upon the Rule 60(b)(1) time limit to

deny Keepers’ motion was legally incorrect.

12

Moreover, as a practical matter, the district court’s

ruling imposes upon Keepers the impossible task of

seeking relief from judgment before this Court issues

superseding authority. The district court’s original

summary judgment opinion was issued on March 30,

2013, but Reed v. Town of Gilbert was not decided by

this Court until June 18, 2015, over two years later.

App. 17; Reed, 135 S.Ct. 2218. Under the lower court’s

logic, Keepers would have been required to file its

motion for relief from judgment by March 30, 2014, a

full 14 months before the intervening change in case

law occurred. The law obviously does not impose such

an absurd result.

Because it was premised upon a post-judgment shift

in the applicable legal standard, Keepers’ Rule 60(b)

motion fell under the catchall provision of Rule

60(b)(6), which contains no express time limitation.

The district court therefore erred in denying the motion

based on untimeliness rather than considering the

merits of Keepers’ position. The Court should grant

certiorari to rectify this procedural error as well.

13

CONCLUSION

For the foregoing reasons, the Court should grant

Keepers’ petition and issue a writ of certiorari to

review the Second Circuit’s decision.

Respectfully submitted,

JENNIFER M. KINSLEY

Counsel of Record

KINSLEY LAW OFFICE

Post Office Box 19478

Cincinnati, Ohio 45219

(513) 708-2595

kinsleylawoffice@gmail.com

DANIEL A. SILVER

SILVER & SILVER LLP

One Liberty Square

New Britain, Connecticut 06050

(860) 225-3518

dan@lawsilver.com

Counsel for Petitioner

Keepers, Inc.