Petition for Writ of Certiorari — City of Henderson v. United States District Court

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f\ 90 ws 1 wd a 4 ili — 7 _

MAY 9 1991

ee eed

No. 90- | KE oF CLEXA

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

CITY OF HENDERSON, A NEVADA MUNICIPAL CORPORATION,

JAMES GOFF, CHIEF OF POLICE OF THE CITY OF HENDERSON,

PETITIONERS

UNITED STATES DISTRICT COURT, DISTRICT OF NEVADA,

RESPONDENT

NEVADA ENTERTAINMENT INDUSTRIES, INC.,

A NEVADA CORPORATION AND DANIEL BISHOP,

REAL PARTIES IN INTEREST

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHAUNA M.HUGHES

City Attorney JAMES J. CLANCY

LIZA CONROY (Counsel of Record)

Assistant City Attorney CAROL A. CLANCY

9055 La Tuna Canyon Road

City of Henderson Sun Valley, CA 91352

240 Water Street (818) 352-2069

Henderson, NV 89015

(702) 565-2394 Counsel for Petitioners

QUESTIONS PRESENTED

Whether zoning and licensing

ordinances involving important state

interests and municipal home rule powers

("municipal affairs"), and procedures

which utilize quasi-judicial review by

municipal officials (such as the

licensing of a business and zoning of

real property within a municipality)

implicate the acts of a sovereign state

which, under the Eleventh Amendment, may

not be interfered with by a federal

court, absent an allegation of the

"extraordinary circumstances" which was

mandated by Huffman v. Pursue Ltd., 420

U.S. 592, 43 L.Ed.2d 482, 95 S.Ct. i200

(1975), reh. den. 421 U.S. 971, 44

L.Ed.2d 463, 95 S.Ct. 1969 in 1975?

Ii..

Whether the United States District

Federal Court, pursuant to Huffman vy.

Pursue Ltd., supra, and its progeny of

-ii-

cases, should have granted the City of

Henderson, Nevada's Motion To Dismiss

the federal civil rights action below

for (a) lack of subject matter

jurisdiction, and (b) failure to state a

claim upon which relief can be based?

(A) Whether Fantasy Video Plus'

claim of federal jurisdiction based upon

a Civil rights violation is valid where

the pleadings show that the alleged

civil rights violation is predicated

upon the conduct of municipal officials

of the City of Henderson, Nevada acting

in a quasi-judicial capacity in the

exercise of home rule powers over

municipal affairs (i.e.; the revocation

of a business license based upon the

fraudulent misrepresentations in 4

business license application) and no

"extraordinary circumstances" are

pleaded; and a civil action is pending

in the state court in which those same

ranean

-iii-

claims are at issue and can be heard.

Tiz.

Whether Fantasy Video Plus’ claim,

that jurisdiction under the Eleventh

Amendment ceases to be exclusive when a

claim is made that the conduct which is

engaged in involves "expressive speech"

under the First Amendment to the Federal

Constitution, is valid as applied to the

quasi-judicial acts of the municipal

officials of the City of Henderson in

their exercise of home rule powers over

municipal affairs, and where ne

"extraordinary circumstances" are

pleaded?

-iv-

TABLE OF CONTENTS

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

OPINIONS BELOW. .ccccccccccccsccccccecce 12

JURISDICTION. -cccccccsccccvcccccccces 14

CITY ORDINANCES INVOLVED............. 14

STATEMENT OF THE CASE. ....cccccscccces 14

STATEMENT OF FACTS... cccccccccccccccecs 17

STATEMENT OF ISSUES... cccccccccccee 30

JURISDICTIONAL QUESTION #1........... 32

JURISDICTIONAL QUESTION #2........... 33

JURISDICTIONAL QUESTION #3........... 33

REASONS FOR GRANTING THE WRIT........ 37

THE FEDERAL COURTS HAVE A DUTY

TO CORRECT JURISDICTIONAL ERROR

AT ALL STAGES OF THE PRO-

CEEDINGS cc cc ccccccccscccccscccee 37

RELIEF SOUGHT: Ay DETERMINATION

THAT: (1) HUFFMAN V. PURSUE, LTD.

IS APPOSITE; (2) THE UNITED STATES

DISTRICT COURT HAS NO "DISCRETION

TO ABSTAIN;" AND (3) IT "LACKS

(SUBJECT MATTER) JURISDICTION" AND

MUST DISMISS THE CIVIL RIGHTS

COMPLAINT .ccnesccercsccesssscccces 38

Loo

THE CITY OF HENDERSON HAS BEEN,

AND Is PRESENTLY, SUFFERING

"IRREPARABLE HARM”.......cceeees 54

CONCLUSION... cccccccccccccccccces 60

CERTIFICATE OF SERVICE.......... 62

TABLE OF AUTHORITIES

CASES

ae Se. BB. 43h BoB. Goh 0rcrvcsvcs 11

Albery v. Reddig, 718 F.2d 245

Ceres, See es encneses ses eee 48

Alleghany Corp. v. Haase, 708 F.Supp.

1507 (W.D.W1is. 1989). .ccccccscces 27, 58

Arcara v. Cloud Books, Inc., 478 U.S.

GPF CBEST E46 666 6b Se UERDSEEC ROC ROS C Oe eEe 53

Michael Barnes, Prosecuting

Attorney of St. Joseph County,

Indiana, et al. v. Glen

Theatres, Inc. et al., No.

Pea abe ors e aah 6a wee éela eo 6s ay Oe F

Bender v. Williamsport Area School

Dist. et al., 475 U.S. 534,

89 L.Ed.2d 501, 106 S.Ct. 1326

(March 25, 1986)....... 4, 3, 30, 37

A Book v. Attorney General, 383 U.S.

Cae [Rees Oh soko 6566464 4 OOO wee 12

Brown v. Brienen, 722 F.2d 360

CPO Ge SOUR) 6 kee SSK Ss 04s oo 8 48

Chiplin Enterprises v. City of

Lebanon, 712 F.2d 1524 (lst

CAE s BPOS ies sees ceessvassssvees 49

-vi-

City of Kenosha v. Bruno, 412 U.S.

5Uls of wbeomecan 16... oe 6.Ct.

2222 (June 11, 1973)..... 4, 30, 37

Cooper v. Mitchell Brothers Santa

Ana Theater et al., No. 81-271,

COCR. DEE. Bs ohh 6c eb eee cecees a

Cooper v. Mitchell Brothers Santa

Ana Theater et al., No. 82-345,

October Term 1982, cert. denied

in 459 U.S. 944 74 L.Ed.2d 202,

Le Bele See CERES bee owcesesoss 3

Creative Environments, Inc. v.

Estabrook, 680 F.2d 822 (lst Cir.

tf Or a ae 48

Deerfield Medical Center v. City of

Deerfield Beach, 661 F.2d 328

a re ea eee 49

Ex Parte Young, 209 U.S. 123 (1908)..41

First National Bank v. Bd. of Cnty

Cmmn'rs, 264 U.S. 450 (1924)....54

F.W./P.B.S. Inc. v. Dallas, 493 U.S.

__, 107 L.Ed.2d 603, 110 S.Ct.

__—- « (January 9, 1990)....... Ss Bay

38, Siz 38

Garcia v. Wilson, 731 F.2d 640 (CA MN

1984), affm'd 471 U.S. 261, 85

L. S22 Zee, 105 &.CE. 1996..0.- 46

Hicks v. Miranda, 422 U.S. 332

Poo) >} Pere Tee ELE Tee ee 60

Huffman v. Pursue, Ltd., 420 U.S. 592

(1975), £6@n. Gen. 4281 U.S. 971...5,

Gi Tf, Os ake wet Bee eee Bee Be,

35, 38, 39, 41, 424; 33, 39

-vii-

Ill. Commerce Cmm'n v. Thompson, 318

Des COO e bbe CEs CHER CEAES a eKceens 54

Judice v. Vail, 430 U.S. 327

(1977) cc ccrccccccccccccccecs 39, 41

LaSalle National Bank v. County of

Lake, 579 Fed.Supp. 8 (ND Ill.

19G4) ccc ccccccnccccescccccccccce 48

Louisville & Nashville R.Co. v.

Mottley, 211 U.S. 149, 53 L.Ed.2d

Lae, 2s B.CE.. 42 (2908)... 30, 37

Middlesex County Ethics Committee v.

Garden State Bar Ass'n, 457 U.S.

- Se. > paar 39, 43, 55

Mitchum v. Foster, 407 U.S. 225

C172) ccc wcccrcccccccccccccccces 46

Molgaard v. Town of Caledonia, 527

Fed. Supp. 1073, aff'd 696 F.2d

ARES ee re ee ae ee ea 49

Moore v. Sims, 442 U.S. 415

ats. ¢ PSP rrr te Tee 39, 43, 45

Ohio Civil Rights Commission v. Dayton

Christian Schools, 477 U.S. 619

(1966) ..<.-39, 44, 55

11126 Baltimore Blvd. v. Prince George's

County, Md., 886 F.2d 1415 (CA4

hp FON iat Fe re eer oF a a 53

Parratt v. Taylor, 451 U.S. 420

f°} ) Paper Pars rer ere 47

Partington v. Gedan, 880 F.2d 116

oo Se: | hee 185, 27, 40

-viii-

Pennhurst State School & Hospital et al.

v. Halderman et al., 465 U.S. 89

i) -) ) re 15

Pennzoil Company v. Texaco, Inc. 481

7 St Cf rae Aa, oa, 44, 56

Renton v. Playtime Theatre, Inc., 475

tig &: | IS 51, 52

Scott v. Greenville County, 716 F.2d

t' Re SB. . Pt) ere 48

Shelter Creek Development Corporation v.

City of Oxnard, 838 F.2d 375 (9th

oO PR Se ere eS ee eee 54

Smith v. County of Los Angeles, 211

—~ SR” © Be Bel. ) eae 49

Sumner _v. Mata, 449 U.S. 539, 66 L.Ed.2d

722, 101 S.Ct. 794...... 2200 3i, 38

Sun Refining & Marketing Co. v. Brennan,

3921 F.24 635 (6th Cir. 1990)..... 58

Trainor v. Hernandez, 431 U.S. 434

CL og gPRSP rs eer errTT TT Tere 39, 42

World Famous Drinking Emporium, Inc. v.

City of Tempe, 820 F.2d 1079 (CA9

LOST po ccctenssneseses 6, 15, 26, 27,

30, 39, 40, 34, 58

Young v. American Mini Theatres, 427

Sole Ge SEO cee bob wees 6 aes > ae

Younger v. Harris, 401 U.S. 37

[awe E ya abe 6:64 as, @a, “2, 435, 335. 37

-ix-

CONSTITUTIONAL PROVISIONS

United States Constitution

eg OT es ae as be

Cy a a a 33

pe RR 41

Eleventh Amendment....5, 7, 10, 13,

a4, Be». 2, &&, 35

ORDINANCES

Henderson Municipal Code

Section 4.05.150(a)(1)...... 14, 20

Section 4.05.150(a)(3)...... 14, 20

Section 4.05.150(a)(4)...... 14, 20

Section 4.04.150(b)(2)...... 14, 20

Section 4.04.150(b)(3)...... 14, 20

Section 4.04.150(b)(5)...... 14, 20

Dee Gc OOe cbt acccceee 14, 20, 22

STATUTES, RULES

20 G.-C. BRSEAOR TASS) . occ cecesens 28

20 GeB~.Cs BOCA ZEOSs osc ccvovesecasc 46

42 U.8.6. QOSCAGR LPG eo ccccss 22, 40, 46

Rules of the Supreme Court,

ot ae} eee ee ee 1, 2, 14, 60

Federal Rules of Appellate Procedure

PRE BE 6.6K o een ae enews eh eSO% 05 28

Federal Rules of Civil Procedure

eT Ee | Sree eee ae ae 23

TEXTBOOKS

Supreme Court Practice, Sixth Edition,

Stern, Gressman, and Shapiro, at

Section 4.16 and Section 4.20....4

——— EE

No. 90-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

CITY OF HENDERSON, A NEVADA MUNICIPAL

CORPOPATION, JAMES GOFF, CHIEF OF POLICE

OF THE CITY OF HENDERSON,

PETITIONERS

Vv.

UNITED STATES DISTRICT COURT, DISTRICT

OF NEVADA,

RESPONDENT

NEVADA ENTERTAINMENT INDUSTRIES, INC., A

NEVADA CORPORATION AND DANIEL BISHOP,

REAL PARTIES IN INTEREST

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

The petitioners City of Henderson,

a Nevada municipal corporation, et al.,

respectfully pray that a writ of

certiorari be issued pursuant to Rule 13

of the Rules of the Supreme Court of the

ee |

United States to review: (1) the order

of the United States District Court,

which denied the City's motion to

dismiss the civil rights action filed in

federal court by the Real Parties in

Interest ("Fantasy Video Plus" et al.),

and (2) the May 2, 1991 order of the

United States Court of Appeals for the

Ninth Circuit which denied the City's

petition for writ of mandamus and

application for a stay of proceedings in

the U.S. District Court. The City's

motion to dismiss contended that a

dismissal was mandated because of the

federal court's lack of subject matter

jurisdiction and failure to state a

claim upon which relief can be based.

While the petition for writ of

mandamus was pending inthe Court of

Appeals, Petitioner also prepared 4

petition for writ of certiorari pursuant

to Rule 11 of the United States Supreme

Court Rules, claiming that the

jurisdictional aspect of the case was of

such imperative public importance as to

justify deviation from normal appellate

practices, and require immediate

settlement in this Court (see copy of

petition for writ of certiorari pursuant

to Rule 11o0n file inthis Court at

pages 3-12) because:

(1) The same jurisdictional

question {regarding the Eleventh

Amendment scope of protection against

unwarranted federal intrusion with

important state interests] is pending in

this Court in Michael Barnes,

Prosecuting Attorney ; a FF Joseph

County, Indiana, et al., Petitioners, v.

Glen Theatres, Inc. et al., No. 90-26,

which was argued on January 7, 1991 and

is awaiting decision. See the action

taken by this Court on January 7, 1991,

granting the Motion of James J. Clancy

for leave to file a brief as amicus

111

D bse

re:

curiae in the Barnes case, supra,

S.Ct. at 642, with respect to the

argument therein made that it is the

duty of this Court to rule on the

jurisdictional question and dismiss the

action for lack cf subject matter

jurisdiction even though the _ parties

themselves have not raised the issue.

City of Kenosha v. Bruno, 412 U.S. 507

at 511, 37 L.Ed.2d 109, at 115-116, 93

S.Ct. 2222 (June 11, 1973); Bender vv.

Williamsport Area School Dist. et al.,

475 U.S. 534 at 541-542 and 546-549, 89

L.Ed.2d 501 at 511-512 and 514-516, 106

S.Ct. 1326 (March 25, 1986); F.W./P.B.S.

ine, 9. .Beliios,. £493 U8 107

L.Ed.2d 603, at 621-622, 110 S.Ct.

(January 9, 1990). See Supreme Court

Practice, Sixth Edition, Stern,

Gressman, and Shapiro, at Section 4.16

on page 221 and at Section 4.20 on page

228;

(2) Federal courts are not courts

of general jurisdiction, but have only

the power that is authorized by Article

III of the United States Constitution,

and the statutes enacted by Congress

pursuant thereto. Bender Vv.

Williamsport Area School Dist. et al.,

supra. The dockets of the Courts of

Appeal have been and are being clogged

with the wrongful filings of civil

rights actions of this nature which (in

addition to exceeding constitutional

limitations) as a simple matter of

judicial efficiency belong in the state

court systems. Although this Court in

1975 decided Huffman v. Pursue, Ltd.,

supra, on the jurisdictional issue

inherent in the Eleventh Amendment,

fifteen years later that fact (as did

occur in the Indiana Barnes case, supra)

is overlooked by state law enforcement,

being obscured by the brief reference to

"jurisdiction" in the last paragraph of

the majority Huffman issue, and the

present refusal of the federal District

Court and Court of Appeals to address

and resolve this jurisdictional issue.

See Huffman _v. Pursue, Ltd., petition

for rehearing denied in 421 U.S. 971, 44

L.Ed.2d 463, 95 S.Ct. 1969, and compare

the differing opinions of Justice Tang

and Kennedy in World Famous Drinking

Emporium discussed hereinafter at page

39 et seq. In contrast, the

jurisdictional issue in Petitioner City

of Henderson, Nevada's case herein is

drawn in a clear cut manner, having been

predicated on the United States District

Court's interference with the basic Home

Rule Power of the City of Henderson to

revoke the granting of a license to a

business in the City of Henderson on the

ground of fraudulent misrepresentation.

Petitioner City of Henderson contends

that this Court should grant the

Henderson petition for writ of

certiorari, on the jurisdictional issue

herein and reverse the District Court's

order, and also remand the Indiana

Barnes case (which is presently awaiting

a decision) as improvidently granted,

and remand that case for reconsideration

in the light of this Court's decision on

the Eleventh Amendment jurisdiction

issue herein. Petitioner City of

Henderson contends that the many years

of federal litigation spent in the

Barnes case, supra, in Indiana would

have been avoided had the City of South

Bend, Indiana and the Attorney General

of the State of Indiana realized that

under the Eleventh Amendment, an option

Was available to require that such

matters be addressed in the state court

system under Huffman v. Pursue, Ltd.

(3) In addition to exceeding the

scope of jurisdiction granted to federal

courts under Article III of the United

States Constitution, the disruptive

interference by federal courts, as

exemplified by the Huffman case in Ohio

and Barnes (Supra) case in Indiana, is

harmful to important state interests and

Home Rule Powers. Because of disruptive

federal interference, state courts have

been prevented from ruling on important

state legal issues. For example, in the

Ohio case of Huffman v. Pursue, _ Ltd.,

supra, the appellate question as to the

power of state courts to close a 100%

continuing public nuisance (obscenity)

was never decided in the Ohio appellate

state system because of federal court

interference with state proceedings.

Because a final state determination on

this important legal issue regarding the

scope of available state remedies was

improperly blocked by the federal

courts, an Ohio appellate determination

on "closure" was unavailable as a

precedent for other state court systems,

leaving the "closure" issue unsettled

across the Nation. See Jurisdictional

Question #1 posed in the Petition for

writ of certiorari in Cooper v. Mitchell

Brothers Santa Ana Theater et al., No.

81-271, October Term 1980, decided on

other grounds in 454 U.S. 90, 70 L.Ed.2d

262, 102 S.Ct. _—-_—« (Nov. 30, 198 __) and

Jurisdictional question #1 posed in

Cooper v. Mitchell Bros. Santa Ana

Theater et al., No. 82-345, October Term

1982, denied in 459 U.S. 944, 74 L. Ed.

2d 202, 103 S.Ct. 259 (October 18,

1982) 7

(4) For the same reason, unless

this Court assumes jurisdiction of this

case, the jurisdictional question herein

(regarding the proper scope of the

Eleventh Amendment) will never be

properly settled, in as much as the

United States District Court intends to

Because the "closure”™ question has

never been answered as to the public

nuisance abatement process, the City of

Santa Ana "threw in the towel" in 1987,

after spending more than $400,000 on the

abatement procedure, paid the Mitchell

Brothers their attorneys fees, and

allowed them to continue to operate in

Santa Ana.

assume jurisdiction (see the order of

United States District Judge George

dated April 9, 1991, at Appendix 6 to

this Petition) and, (a) will require the

City of Henderson to go to trial in the

Federal District Court of Nevada, and

(b) address extraneous collateral issues

and incur litigation costs it should

never have to address and (c) decide the

case on collateral issues which are not

ripe (i.e. are premature and

irrelevant). Under the llth Amendment,

Petitioners have a right not to stand

trial on the federal allegations, since

Fantasy Video Plus has failed to allege

facts supporting Article III

jurisdiction. The federal trial is

barred under the principles of Huffman,

supra. Facts supporting Article III

jurisdiction must appear affirmatively

from the record. A right not to stand

trial cannot be effectively vindicated

after the trial has occurred. Abney v.

U.S., 431 U.S. 651.

(5) Because of federal interference

the City of Henderson is suffering ir-

reparable nee

On Thursday May 9, 1991,

Petitioner's attorney personally

delivered to U.S. Supreme Court Clerk

Lorson, 40 copies of a petition for writ

Having been enjoined from carrying

out its responsibilities under its

charter powers (see preliminary

injunction at Appendix 4), the City

maintained periodic surveillances of the

business operation activity. On Monday,

November 5, 1990, the surveillance

investigator learned that on the

previous morning a 22 year old night

clerk was found shot to death inside a

viewing booth. See, also, Henderson

Home News, dated November 6, 1990. On

March 1i, 1991, the City of Henderson

purchased the following 8 video

tapes:"Autobiography of a Flea;" "Sodom

and Gomorrah;" "Inside Marilyn

Chambers;" "Resurrection of Eve;" "Deep

Throat;" "Devil in Miss Jones;" "French

Classmates;" and "Formal Fawcett;" all

of which have been adjudicated to be

obscene under the Memoirs standard [see

A Book v. Attorney General, 383 U.S. 413

(1966)} and final judgments entered as

to each in public nuisance abatement

litigation in Santa Ana, California.

of certiorari to the Ninth Circuit

pursuant to Rule 11 (before judgment).

Mr. Lorson was also informed that at

3:37 p.m. on the previous day (May 8th)

Counsel of Record in Sun Valley,

California, had been informed by a fax

transmission from the Henderson City

Attorney's office that it received in

that day's mail a copy of a May 2, 1991

Ninth Circuit Order which denied the

City's petition for writ of mandamus

and request for a stay. A copy of that

order is set forth at Appendix 7 to this

petition. Counsel of Record was advised

by Mr. Lorson that, inasmuch as an order

was now of record, Rule 11 was no longer

applicable and the petition should be

resubmitted under Rule 13. Accordingly

Petitioners are resubmitting the same

petition under Rule 13. Mr. Lorson

retained one copy of the Rule 11

submission for this Court's files.

OPINIONS BELOW

A copy of the Henderson City

Council Decision dated April 16, 1990 is

set forth at Appendix 2 this

Petition. A Copy of the City's

complaint and answer thereto, is set

forth at Appendix 1.

A copy of the District Court's

April 27, 1990 temporary restraining

order and June 4, 1990 preliminary

injunction is set forth at Appendix 3

and 4 to this Petition.

A copy of the March 22, 1991

District Court Opinion which: eo

denied the Petitioner' motion to dismiss

the civil rights lawsuit, and (2)

refused to issue an order to show cause

is set forth at Appendix 5 to this

Petition.

A copy of the April 9, 1991

District Court Order which denied

Petitioners' motion to certify an

interlocutory appeal is set forth at

Appendix 6 to this Petition.

A copy of the Court of Appeals

order dated May 2, 1991 which denied the

City's petition for writ of mandamus and

application for stay is set forth at

Appendix 7 to this Petition.

JURISDICTION

This Court's jurisdiction is

invoked under 28 U.S.C. Section 1254(1)

and Rule 13 of this Court.

CITY ORDINANCES INVOLVED

The text of Henderson Municipal

Code sections 4.05.150(a)(1), (3), and

(4); 4.04.150(b)(2), (3), and (5); and

4.06 (entire section) is set forth at

Exhibit 4 to Petition for Writ of

Mandamus and Application For Stay of

Proceedings on file in the Court of

Appeals for the Ninth Circuit, a true

copy of which is being filed with this

Court concurrently with this Petition.

STATEMENT OF THE CASE

Petitioners City of Henderson,

Nevada, et al. seek an order of this

Court requiring the Honorable Lloyd

George, United States District Judge, to

vacate and annul its order entered March

22, 1991, and to grant Petitioners’

Motion to Dismiss the federal civil

rights complaint now pending before him,

for lack of federal jurisdiction of the

subject matter and for failure to state

a claim upon which relief can be

granted, pursuant to Huffman v. Pursue,

Ltd., 420 U.S. 592 (1975), as further

explicated in Pennhurst State School 4&

Hospital et al. v. Halderman et al., 465

U.S. 89 (1984), and Pennzoil Company v.

Texaco, Inc., 481 U.S. 1 (1987). See,

also, World Famous Drinking Emporiun,

Inc. v. City of Tempe, 820 F.2d 1079, at

1084 (CA 9, 1987), concurring opinion of

Associate Justice Anthony Kennedy, and

compare Partington v. Gedan, 880 F.2d

116 (CA 9, 1989), at 120.

A copy of the United States

District Court, District of Nevada Order

and Opinion entered March 22, 1991 is

attached hereto as Appendix 5 to this

Petition. A true copy of the

Petitioners’ Petition for Writ of

Mandamus and Application for Stay of

Proceedings on file in the Court of

Appeals for the Ninth Circuit is being

filed with the Clerk of the Court

concurrently with this Petition for Writ

of Certiorari herein. A copy of the

Real Parties in Interest federal civil

rights complaint on file below in the

United States District Court appears at

Exhibit 2(A) to the Petition for a Writ

of Mandamus and Application for Stay of

Proceedings on file in the Court of

Appeals for the Ninth Circuit, a true

copy of which is being filed with this

Court. A copy of Petitioners’ Motion to

Dismiss and Application for Order to

Show Cause is attached as Exhibit 3(A)

and 3(F) to the Petition for Writ of

Mandamus and Application for Stay of

Proceedings on file in the Court of

Appeals for the Ninth Circuit, a true

copy of which is being filed with the

Clerk of this Court.

The facts necessary to an

understanding of the controlling

question of law determined by the

district court's order are as follows:

STATEMENT OF FACTS

The City of Henderson, Nevada,

adopted a new, comprehensive Municipal

zoning Code and Municipal License Code

in 1989, following lengthy public

hearings and proceedings on such Codes.

Under the Zoning Code, as amended, a new

provision was added for an "adult

business" which was authorized only in

the "CH Zone," which also required an

application for a business license, and

a conditional use permit for that type

of business activity.

During the period of transition

from the old to the new Codes, the Real

Parties in Interest Nevada Entertainment

Industries, Inc. et al. applied to the

City for a business license to operate a

sexually oriented adult business under

the name "Fantasy Video Plus." Nevada

Entertainment Industries, Inc. did admit

for purpose of its litigation, that it

is an "Adult Business." In the process

of applying for the business license,

Real Parties in Interest learned of the

new provisions for sexually oriented

adult businesses, including the

requirement for 4 conditional use -

permit, but did not apply for GS

conditional use permit. Instead, in

their application for 4 business

license, Real Parties in Interest, with

knowledge of the substantive difference

between the two categories, described

the business activity of "Fantasy Video

Plus" as "mass media books and video

store, novelty shop, etc.," rather than

using the correct category of "adult

business." Because of this knowing

misrepresentation, Real Parties in

Interest were issued a business license

for "Fantasy Video Plus."

Upon further processing that

application, the City's License

Department learned that "Fantasy Video

Plus" was operating an "adult business"

without having applied for a conditional

use permit, and ordered the business to

cease such operations.

Upon their failure to comply, a

license revocation proceeding was

brought before the City Council [see

Exhibit 5 to the Petition for Writ of

Mandamus and Application for Stay of

Proceedings on file in the Court of

Appeals for the Ninth Circuit, a true

copy of which has been filed with the

| |

Clerk of the Court], under procedures

set forth in the Henderson Municipal

Code (hereinafter "H.M.C."), to revoke

the license on the grounds of fraud.

See H.M.C. Sections 4.04.150(a)(1),

(3)(4); and 4.04.150(b)(2), (3)(5) (at

Exhibit 4 to the Petition for Writ of

Mandamus and Application for Stay of

Proceedings on file in the Court of

Appeals for the Ninth Circuit, a true

copy of which has been filed with the

Clerk of the Court. Following a public

hearing, in quasi-judicial

administrative proceedings on that

issue, the City Council revoked the

license upon a finding of "fraud," but

stayed the effect of its order to allow

the Real Parties in Interest to appeal

its finding and decision to the Nevada

Eighth Judicial District Court, as is

authorized by H.M.C. Section 4.06.160,

see Exhibit 4 to the Petition for Writ

of Mandamus and Application for Stay on

file in the Court of Appeals for the

Ninth Circuit, a true copy of which has

been filed with this Court.

In the above quasi-judicial

administrative proceedings, Real Parties

in Interest were afforded a state

evidentiary hearing prior to revocation

of license. There was a pre-revocation

state administrative hearing (see copy

of proceedings before the Henderson City

Council on April 10, 1990 appearing in

Exhibit 5 (F) to the Petition for Writ

of Mandamus and Application for Stay on

file in the Court of Appeals for the

Ninth Circuit, a true copy of which has

been filed with this Court); as well as

opportunity for 4 prompt

post-deprivation state court hearing

which assured a prompt proceeding and

expeditious disposition of all issues

(including constitutional claims)

involved in the revocation. After the

license was revoked, the City Council's

10 business days stay of enforcement

order was issued in order to allow

immediate review by the state court.

See City Council Decision and Order

dated April 16, 1990, a copy of which is

attached hereto as Appendix 1to this

Petition. See, also, H.M.C. Section

4.06.160, appearing at Exhibit 4 to the

Petition for Writ of Mandamus and

Application for Stay on ‘file in the

Court of Appeals for the Ninth Circuit,

a true copy of which has been filed with

this Court.

Instead of seeking review of the

City Council's findings and decision in

State Court, Real Parties in Interest

filed an original action under 42 U.S.C.

section 1983 in the U.S. District Court

within the stay period granted by the

City Council, while the action was still

pending within the state system (see

Exhibit 2(A) to the Petition for Writ of

Mandamus and Application for Stay on

file in the Court of Appeals for the

Ninth Circuit, a true copy of which has

been filed with this Court.) On April

27, 1990, the U.S. District Court issued

a temporary restraining order pursuant

to Rule 65 of the Federal Rules of Civil

Procedure. On June 4, 1990, following

oral argument on the law relative to the

pleadings, in which no extrinsic

evidence was adduced, the U.S. District

Court issued a preliminary injunction,

enjoining the City from further action

both on the license revocation and the

matter in general. (See copy of

temporary restraining order at Appendix

3 to this Petition and copy of

preliminary injunction at Appendix 4 to

this Petition. )

On October 1, 1990, after further

study of the United States Supreme

Court's opinion in Huffman vv. _ Pursue,

[ea., £40 U.8. 392 tiS73), the City

declared its refusal to consent to

federal jurisdiction, and (1) on January

3, 1991, filed a declaratory judgment

lawsuit in the Nevada District Court

(see copy of declaratory judgment

complaint appearing as Exhibit 3(B) to

the Petition for Writ of Mandamus’ and

Application for Stay on file in the

Court of Appeals for the Ninth Circuit,

a true copy of which has been filed with

this Court); and a motion to dismiss the

Civil Rights lawsuit in the United

States District Court on the grounds of

lack of federal jurisdiction (11th

amendment) and failure to state a claim

upon which relief can be based, and (2)

requested the United States District

Court to issue an order to show cause

why Plaintiffs should not be required to

present their federal claims in th

State lawsuit. See copy of Motion tc

Dismiss and Application for a Show Cause

Order at Exhibit 3(A) and 3(F) to the

Petition for Writ of Mandamus and

Application for Stay on file in the

Court of Appeals for the Ninth Circuit,

a true copy of which has been filed with

this Court.

The City requested that such

motions be set for an immediate hearing

on the grounds that the Huffman doctrine

applied to this case, that the District

Court had no discretion in the matter

and must dismiss the complaint, and that

the United States Supreme Court had made

it clear that its opinion in Huffman was

predicated upon lack of federal

jurisdiction, relying upon the last

paragraph of the Huffman opinion

reading:

"We therefore think that this case

is appropriate for remand so that

the district court may consider

whether...the district court may

assume jurisdiction under an

exception to the policy against

federal judicial interference with

state court proceedings of this

kind." 420 U.S. 592, at 612.

The City further claimed that such

analysis iS supported by the Ninth

Circuit Court of Appeals concurring

Opinion of Associate Justice Anthony

Kennedy, then sitting on the Court of

Appeals for the Ninth Circuit in World

Famous Drinking Emporium, Inc. v. City

of Tempe, 820 F.2d 1079 at 1084 (CA 9,

June 26, 1987), which holds:

KENNEDY, Circuit Judge, concurring:

"General principles of abstention

are distinct from the doctrine of

dismissal for lack of tiurisdiction

pursuant to Younger v. Harris, 401

U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d

669 (1971), and Huffman v. Pursue,

Ltd., 420 U.S. 592, 95 S.Ct. 1200

(1975). Only the latter rule is

applicable here, and Huffman

squarely controls. I concur in the

judgment [of dismissal]."

Justice Kennedy was of the opinion that,

contrary to the majority opinion

expressed by Justice Tang, the United

States District Court lacked subject

matter jurisdiction and had no

discretion in this matter. See, also,

the analysis of U.S. Magistrate James

Groh in Alleghany Corp. v. Haase, 708

F.Supp. 1507 (W.D.Wis. 1989), at

1526-1527, which refers to the Ninth

Circuit's City of Tempe, supra,

decision, and compare Partington Vv.

Gedan, 880 F.2d 116 (CA 9, 1989) at 120.

On March 22, 1991 (almost six

months after the City of Henderson filed

its motion to dismiss and request for an

immediate hearing) Respondent Court

filed its opinion and order which denied

the Petitioners' motion to dismiss, on

the basis of the Court's interpretations

of the same cases and set the case for a

pretrial hearing on the following week,

Friday, March 29, 1991. See copy of

March 22, 1991 Order at Appendix 5 to

this Petition.

On April 1, 1991, the City of

Henderson filed a Motion in which it

requested the Court to amend its order

of March 22, 1991, so as to authorize an

immediate interlocutory appeal to the

Ninth Circuit Court of Appeals pursuant

to 28 U.S.C. Section 1292(b) and Rule

S5(a of the Federal Rules of Appellate

Procedure, and, if necessary, to the

United States Supreme Court, to decide

the jurisdictional claim that the United

States District Court lacks federal

jurisdiction (subject matter

jurisdiction) to interfere with Nevada's

important state interests and home rule

authority to adjudicate issues regarding

the State of Nevada and the City of

Henderson's licensing procedures and the

correctness of the quasi-judicial fact

finding of the City Council that the

license of Fantasy Video Plus should be

revoked because of the use of fraud in

obtaining the business’ license. See

copy of Motion to Amend Interlocutory

Order and Stay Proceedings appearing at

Exhibit 7 to the Petition for Writ of

Mandamus and Application for Stay on

file in the Court of Appeals for the

Ninth Circuit, a true copy of which has

been filed with this Court. On March

29, 1991, United States District Court

Judge Lloyd George, without ruling on

the City's motion, indicated at 4

pre-trial conference that he wished to

proceed quickly and hold the trial

within three to four weeks, and that

such issues should be decided in an

appeal from the merits, rather than an

interlocutory appeal (see Reporter's

Transcript for March 29, 1991, appearing

in Exhibit 8 to the Petition for Writ of

Mandamus and Application for Stay on

file in the Court of Appeals for the

Ninth Circuit, a true copy of which has

been filed with this Court.) On April

—————————oo

9, 1991, Judge George entered an Order

denying the City's Motion to Amend his

order to permit an interlocutory appeal;

see copy set forth at Appendix 6 to this

Petition.

STATEMENT OF ISSUES

The issue herein raised is whether

Justice Tang's majority opinion in World

Famous Drinking Emporium v. City of

Tempe, 820 F.2d 1079 (9th Cir. 1987) or

Justice Anthony Kennedy's concurring

opinion (based upon the Court's lack of

subject matter jurisdiction) is 4

correct statement of the law. The Ninth

Circuit Court of Appeals has not ruled

definitively on this issue, and has a

duty to do so. Louisville & Nashville

R.Co. v. Mottley, 211 U.S. 149, 152, 53

L.Ed.2d 126, 29 S.Ct. 42 (1908), cited

in City of Kenosha v. Bruno, 412 U.S.

507, at 511, 37 L.Ed.2d 109, at 115, 93

S.Ct. 2222 (1973), Bender v.

Williamsport Area School District, 475

U.S. 534, at 541, 546-548, 89 L.Ed.2d

501, at 511, 514-516, 106 S.Ct. 1326

(1986) [emphasizing federal courts are

not courts of general jurisdiction but

have only the power that is authorized

by Article III of the United States

Constitution and the statutes enacted by

Congress pursuant thereto, and for that

reason, a federal appellate court has a

special obligation to satisfy itself not

only of its own jurisdiction, but also

of the jurisdiction of the lower

courts]. See Sumner v. Mata, 449 U.S.

539, at 547, 66 L.Ed.2d 722, at 731, 101

S.Ct. 764 {habeas corpus statute,

holding interest in federalism requires

deference by federal courts to factual

determinations of all state courts.];

FW/PBS, Inc. vv; Dallas, 493 U.S. 4

107 L.Ed.2d 603, 110 S.Ct. (1990)

("federal courts are under an

independent obligation to examine their

own jurisdiction, and standing ‘is

perhaps the most important of (the

jurisdictional) doctrines.'"]

JURISDICTIONAL QUESTION #1:

Whether zoning and licensing

ordinances involving important state

interests and municipal home rule powers

("municipal affairs") and procedures

which utilize quasi-judicial review by

municipal officials implicate the acts

of a sovereign state which, under the

Eleventh Amendment, may not be

interfered with by a federal court,

absent an allegation of the

"extraordinary circumstances" which was

mandated by Huffman v. Pursue Ltd.,

supra.

Petitioners contend the Eleventh

Amendment bars the filing of the Civil

Rights Complaint in the District Court.

JURISDICTIONAL QUESTION #2:

Whether the District Court should

have granted the City's Motion To

Dismiss the civil rights action below

for (a) lack of subject matter

jurisdiction, and (b) failure to state a

claim upon which relief can be based?

Petitioners contend that the

federal judges below have neglected

their judicial responsibility to correct

jurisdictional error.

JURISDICTIONAL QUESTION #3:

Whether Fantasy Video Plus's claim,

that jurisdiction under the Eleventh

Amendment ceases to be exclusive when a

claim is made that such conduct is also

"expressive speech" under the First

Amendment to the Federal Constitution,

is valid as applied to the

quasi-judicia acts of the municipal

officials of the Petitioner City of

Henderson, in their exercise of home

rule powers?

Petitioners contend that the First

Amendment claim is patently spurious

when viewed in the light of the trial

court pleadings, which establish that:

(1) The City objects to federal

jurisdiction;

(2) Important state interests and

home rule powers are involved, such as:

(a) The orderly administration of

land use planning/zoning laws/adult

businesses; and

(b) Tax power (through the

issuance of business licenses):

protection and integrity of revenue

raising process; and

and safety against fraud and public

nuisances (unlicensed businesses,

unlawful business activity); and

(d) Need to prevent unlawful use

of property; and

(e) The efficient administration

and interpretation of regulatory Home

Rule ordinances;

(3) Fantasy Video Plus was

afforded A state pre-revocation

evidentiary hearing in administrative

proceedings which were quasi-judicial in

nature (in which Fantasy Video Plus was

found by municipal officials exercising

quasi-judicial powers to be guilty of

making fraudulant statements in its

application for a business license by

the trier of fact);

(4) Under the city ordinance,

Fantasy Video Plus was afforded an

opportunity for a post-deprivation state

court hearing which assured a prompt

proceeding and expeditious disposition

of all issues (including constitutional

issues) involved in the revocation;

(5) Fantasy Video Plus has not

pleaded the extraordinary circumstances

exception which Huffman, supra, in 1975

required, nor has it shown that the

above state review procedures are

inadequate;

(6) The state quasi-judicial

administrative action was entrain and

the state body had acted before the

federal action was filed, having: (a)

determined that the license should be

and was revoked; (b) ordered that

written notice of its decision be given

to the licensees within five business

days; and (c) stayed the enforcement of

the revocation for ten business days

following receipt of the written notice

of revocation, with the expectation that

Fantasy Video Plus would pursue review

via the state court system; and

(7) Fantasy Video Plus is

challenging the City of Henderson

municipal zoning law which requires the

issuance of a conditional use permit, in

circumstances where (a) Fantasy Video

Plus has never applied for _ such A

permit; (b) the "conditional use"

ordinance has never been construed by a

state court; and (c) as a matter of law,

said ordinance is susceptable of at

least one constitutional interpretation

by both the City administrative and the

ncamemeammaea et

Nevada judicial system through judicial

construction of said ordinance.

REASONS FOR GRANTING THE WRIT

THE FEDERAL COURTS HAVE A DUTY TO

CORRECT JURISDICTIONAL ERROR AT ALL

STAGES OF THE PROCEEDINGS.

Louisville & Nashville R.Co. v.

Mottley, 211 U.S. 149, 152, 53 L.Ed.2d

126, 29 S.Ct. 42 (1908), cited in City

of Kenosha v. Bruno, 412 U.S. 507, at

511, 37 L.Ed.2d 109, at 115, 93 S.Ct.

2222 (1973), Bender v. Williamsport Area

School District, 475 U.S. 534, at 541,

546-548, 89 L.Ed.2d 501, at Sii,

514-516, 106 S.Ct. 1326 (1986)

[emphasizing federal courts are not

courts of general jurisdiction but have

only the power that is authorized by

Article III of the United States

Constitution and the statutes enacted by

Congress pursuant thereto, and for that

_ reason, a federal appellate court has a

special obligation to satisfy itself not

only of its own jurisdiction, but also

of the jurisdiction of the lower

courts]. See Sumner v. Mata, 449 U.S.

539, at 547, 66 L.Ed.2d 722, at 731, 101

$.Ce. Fee [habeas corpus statute,

holding interest in federalism requires

deference by federal courts to factual

determinations of all state courts.];

FW/PBS, Inc. v. Dallas, 493 U.S. .

107 L.Ed.2d 603, 110 S.Ct. (1990)

("federal courts are under an

independent obligation to examine their

own jurisdiction, and standing ‘is

perhaps the most important of (the

jurisdictional) doctrines.'"]

RELIEF SOUGHT: A DETERMINATION

THAT: (1) HUFFMAN v. PURSUE, LTD.

IS APPOSITE; (2) THE UNITED STATES

DISTRICT COURT HAS NO "DISCRETION

TO ABSTAIN;" AND (3) IT “LACKS

(SUBJECT MATTER) JURISDICTION" AND

MUST DISMISS THE CIVIL RIGHTS

COMPLAINT.

The United States Supreme Court's

opinion in Huffman, supra, is not

entirely clear as to what that Court

meant by the term "jurisdiction" in its

remand order in 420 U.S. 592 at 612 that

the trial court was to consider whether

it "may assume jurisdiction under an

exception to the policy against federal

judicial interference with state court

proceedings of this kind." The City is

of the opinion that this Court, in its

subsequent decisions in Judice v. Vail,

infra; Trainor v. Hernandez, infra;

Moore v. Sims, infra; Middlesex County

Ethics Committee v. Garden State Bar

Ass'n, infra; Ohio Civil Rights Commis-

sion v. Dayton Christian Schools, infra;

and Penzoil Co. v. Texaco, Inc., supra;

has clarified Huffman, so as to require

ina case such as this, a dismissal

based upon lack of federal jurisdiction.

Associate Justice Anthony Kennedy's

concurring opinion in World Famous

Drinking Emporium, Inc. v. City of

Tempe, 820 F.2d 1079 at 1084 (CAQ9,

June 26, 1987) appears to support the

petitioners' claim. Compare, Partington

v. Gedan, 880 F.2d 116 (9th Cir. 1989)

at 120 ["We have held that where Younger

abstention is applicable, ‘a district

court must dismiss the action.' World

Famous Drinking Emporium, Inc. v. City

of Tempe, 820 F.2d 1079, 1081 (9th Cir.

1987) (World Famous Drinking Emporium),

gucting Fresh International Corp. v.

Agricultural Labor Relations Board, 805

F.2d 1353, 1356 (9th Cir. 1986)."]

However, U.S. District Judge Lloyd

George does not agree with the City's

analogies of those cases andwill not

stay the trial of the federal action,

and is about to require that the case be

tried in the federal district court.

Petitioners contend that in a 42

U.S.C. Section 1983 civil rights action

such as this, involving the Eleventh

Amendment where federal jurisdiction is

dependent upon the "fiction" created in

Ex Parte Young, 209 U.S. 123 (1908), the

jurisdiction of the federal court is

exhausted, once the fiction of Ex Parte

Young is dispelled, and under the

Eleventh Amendment the federal court is

required to dismiss the lawsuit.

The City claims that this Court's

decisions in the following cases,

decided subsequent to Huffman v. Pursue,

Ltd., supra, made it clear that where a

state court was available to render

relief on important state interests and

"home eal matters (municipal

affairs), the federal court must

dismiss the lawsuit for lack of federal

(subject matter) jurisdiction:

(1) Judice v. Vail, 430 U.S. 327

(1977) [challenge to state

procedures, not substantive law.

See, generally, as to "municipal

affairs," McQuillin, Municipal

Corporations, 3rd Edition, Vol. 2 at

sections 4.78, "State Affairs" and

"Municipal Affairs" through 4.112a,

"Zoning" as a "Municipal Affair."

Held: applied Younger v. Harris,

401 U.S. 37 (1971) on basis of

respect for a state's right to

control areas of important state

interest (state contempt process).

Examined adequacy of state forum

for raising constitutional

questions arising out of state judicial

proceedings, and held all that is

required is an opportunity to fairly

pursue constitutional claims in the

ongoing state proceedings. ];

(2) Trainor v. Hernandez, 431 U.S.

434 (1977) (Welfare case.

Important state interest at stake

and adequacy of state forum for

addressing constitution issues was

questioned. Younger abstention

required so long as adequate state

forum exists. Younger and Huffman

bar federal action that interferes

with state proceedings in which

important state policies such as

safeguarding the fiscal integrity

of public assistance programs are

at stake. On remand, state forum

held inadequate. 471. F.S 516,

summarily aff'd 440 U.S. 951

(1979) .]);

(3) Moore v. Sims, 442 U.S. 415

(1979) [Child Custody/child abuse

case. Younger held fully applicable

to civil proceedings in which

important state interests are

involved. ];

(4) Middlesex County Ethics Comn.

v. Garden State Bar Ass'n., 457

U.S. 423 (1982). (Set standards

for Younger abstention in civil

cases. Applied Younger to

non-criminal proceedings, judicial

in nature (disciplinary

proceedings). Younger required

where:

(a) proceedings instituted in

the state constitute ongoing

state proceedings which are

judicial in nature (this

case);

(b) proceedings implicate

important state interests;

opportunity for raising

constitutional challenges. ];

(5) Ohio Civil Rights Comm'n v.

Dayton Christian Schools, 477 U.S.

619 (1986) [Extended Younger to

state administrative proceedings

which are judicial in nature.];

(6) Pennzoil Co. v. Texaco, Inc.,

481 U.S. 1 (1987) [No federal

court may enjoin any state judicial

or quasi-judicial proceeding.

State forum must be considered

adequate until proved otherwise.

--Younger abstention helps to

avoid unwarranted determination of

federal constitutional questions.

--Younger abstention is

mandated if the state's interests

in the proceedings are so important

that the exercise of the federal

judicial power would disregard the

comity extended between the states

and the national government. (Look

for vital/important state interest.

The question to be asked is: Does

exercise of Federal District Court

power implicate a vital/important

state interest?).

--Burden is on the federal

plaintiff to show: state

procedural law bars presentation of

its claims. Moore v. Sims, 442

U.S. at 432. Younger v. Harris:

"The accused should first set up

and rely upon his defense in state

court...unless it plainly appears

this course would not afford

adequate protection."

--District Court: In the

past, under Anti-injunction Act (28

USC section 2283), a federal court

has been precluded from enjoining

state proceedings unless federal

plaintiff can bring his suit within

one of the specifically authorized

exceptions to the Act. Although

Section 1983 is an exception [see

Mitchum v. Foster, 407 U.S. 225

(1972)], 42 U.S.C. Section 1983,

which creates a cause of action for

violations of constitutional

rights, is solely a procedural

statute which does not itself grant

any substantive right. Garcia v.

Wilson, (CA NM 1984) 731 F.2d 640,

affm'd 471 U.S. 261, 85 L.Ed.2d

254, 105 S.Ct. 1938.];

(7) Parratt v. Taylor, 451 U.S. 420

(1981) acts as a bar if there is an

adequate state remedy. The federal

forum is barred from entertaining

an action. The focus of Parratt is

not whether there has been an

exhaustion of state remedies in

order to establish the

jurisdictional prerequisite;

rather, Parratt deals with the

definition of a constitutional

deprivation. Parratt dealt with a

tortious loss of property as a

result of a random and unauthorized

act by a state employee, which was

not the result of some established

state procedure. In this regard,

note that in the area of land _ use

planning, several federal court

have considered the possibility

that denials of zoning permits,

especially at the initial stage

before administrative appeals, do

not work constitutional deprivations,

because until the state process is final

(state administrative and appeals

process completed), unsuccessful

applicants possess at most a "unilateral

expectation," which does not constitute

a constitutionally protected property

interest. These cases recognize that a

State's interest in land use planning is

considerable. See Albery v. Reddig, 718

F.2d 245 (7th Cir. 1983); Scott v.

Greenville County, 716 F.2d 1409, 1419

(4th Cir. 1983); Creative Environments,

Inc. v. Estabrook, 680 F.2d 822, 829-834

(lst Cir. 1982), cert denied, 459 U.S.

989, 103 S.Ct. 345, 74 L.E@.2d 385

(1982); LaSalle National Bank v. County

of Lake, 579 F.S. 8 (ND Ill. 1984);

Brown v. Brienen, 722 F.2d 360, 369 (7th

Cir. 1983)

(Flaum, J. concurring); Chiplin

Enterprises v. City of Lebanon, 712 F.2d

1524, 1527 (lst Cir. 1983); Deerfield

Medical Center v. City of Deerfield

Beach, 661 F.2d 328, 331, n. 4 (5th Cir.

1981). See also Molgaard v. Town of

Caledonia, (DC Wisc. 1981) 527 F.S.

1073, aff'd 696 F.2d 58.

There is no legal authority for

Real Parties in Interest to claim a

fundamental “right to do business" as an

“adult business." See Smith v. County

of Los Angeles, 211 Cal.App.3d 188, 259

Cal.Rptr. 231 at 238 (June 5, 1989)

where, in response to such a claim

regarding an "adult" use and conditional

use permit, the Court of Appeal, Second

District, Division 7 held:

"...-TO date, only four appellate

decisions have held that a property

owner had a ‘fundamental vested

right’ in a land use matter. Each

case involved classic vested rights

and estoppel principles. (See,

Monterey Sand Co. vy. California

Coastal Com., (1987) 191 Cal.App.3d

169, 172, 236 Cal.Rptr. 315; Halaco

Engineering Co. v. South Central

Coast Regional Com., (1986) 42

Cali.3@ 32, “04, 76, 227 ‘CélsBptr.

667, 720 P.2d 15; Anderson v. City

of La Mesa, (1981) 118 Cal.App.3d

657, 660, 173 Cal.Rptr. 572;

Stanton v. San Diego Coast Regional

Com. (1980) 101 Cal.App. 3d 38,

48-50, 161 Cal.Rptr. 392.) No case

has yet held, in the granting or

denial of an application for

variance or conditional use permit,

that the decision affected a

‘fundamental vested right.' In

fact, the vast majority of cases

considering an allegation of

fundamental vested rights requiring

exercise of independent judgment

have rejected it. A sampling of

these cases appears below in

footnote 6."

There is national concern over the

negative effects of "Adult Businesses."

Communities across the United States

have confronted the problem of how to

contain and restrict the "secondary

effects" associated with the presence of

so-called sexually-oriented or "adult

businesses" (for example, effects such

as urban blight, property depreciation,

and crimes). In a series of cases, this

Court has upheld the right to use zoning

ordinances to restrict the location of

"adult businesses" [Young v. American

Mini Theatres, 427 U.S. 50 (1976),

Renton v. Playtime Theatre, Inc., 475

U.S. 41 (1986), and FW/PBS, Inc. vv.

Dallas, 493 U.S. , 107 L.Ed.2d 603,

,40 8-CGE<« (1990)]. This court should

not allow the Home Rule Powers of the

City of Henderson, a charter city, be

violated and the enforcement of "home

rule" public rights by municipalities

under zoning laws to become obfuscated

by spurious "constitutional" claims as

are made by Real Parties in Interest.

This Court has held that zoning

ordinances seeking to restrict location

of "adult uses" are valid, anddo not

constitute impermissible prior

restraints on free speech, and that such

laws are adequately supported by

municipal interest in planning and

regulating the use of property for

commercial purposes. Young v. American

Mini Theatres, supra. A city's interest

in the character of its neighborhoods >

and the preservation of the quality of

urban life and its Home Rule Authority

must be accorded high respect. Renton

v. Playtime Theatre, Inc., supra.

This action imposes no restraint at

all on Fantasy Video Plus' dissemination

of particular materials, since it is

free to carry on its business in a

lawful fashion at another location. The

fact that such locations may be

difficult to find is immaterial. Arcara

v. Cloud Books, Inc., 478 U.S. 697, 92

L.Ed.2d 568 at 577, fn. 2, 106 S.Ct.

3172 (1986).

There is ample authority to support

the legal proposition that a conditional

use zoning ordinance similar to that

which has been adopted by the City of

Henderson can be constitutionally

applied. See 11126 Baltimore Blvd. v.

Prince George's County, Md., 886 F.2d

1415 at pages 1426-1429 [CA4 1989,

Rehearing and Rehearing en Banc denied

October 25, 1989; cert. granted, remand

to U.S.Court of Appeals for further

consideration in light of F.W./P.B.S.,

493 U.S. , 107 L.Ed.2d 603 (1990)].

In the instant case, Fantasy Video

Plus did not apply for a conditional use

permit and thus failed to exhaust its

administrative remedies, as required.

See Shelter Creek Developr it

Corporation v. City of Oxnard, 838 F.2d

373 6€3tR. 6CiLr. 1988) [challenge to

constitutionality of city zoning

ordinance held not ripe for judicial

adjudication as parties never applied

for variance or special use permit];

see, also, Ill. Commerce Cmm'n Vv.

Thompson, 318 U.S. 675 and First Nat'l

Bank v. Bd. of Cnty Cmmn'rs, 264 U.S.

450 (1924)]. Consequently, the

constitutionality of the conditional use

in the CH zone is not yet in issue.

Iitl

THE CITY OF HENDERSON HAS BEEN, AND

IS PRESENTLY, SUFFERING

"“IRREPARABLE HARM."

The operation of a business without

a license is a public nuisance which

requires abatement. See World Famous

Drinking Emporium, Inc. v. City of

Tempe, 820 F.2d 1079 at 1083. The

federal injunction is preventing the

City from performing its civil function

under its Home Rule Powers.

This federal action is barred by

Younger-Huffman principles, which are

grounded in the 1lth Amendment, and are

based upon a Constitutionally mandated

deference to state courts in recognition

of state sovereignty. Younger-Huffman

requires that federal courts’ refrain

from interefering with state court

review of administrative application of

State law, where the state has enforced

its laws or has begun to enforce them.

See, also, Ohio Civil Rights Commission

v. Dayton Christian Schools, Inc., 477

U.S. 619 (1986) [the Court applied the

articulation found in Middlesex County

Ethics Committee v. Garden State Bar

Ass'n, 456 U.S. 423 (1982) of the

Younger to ongoing state administrative

proceedings, judicial or otherwise, in

which important state interests are

vindicated and in which the federal

plaintiff would have a full and fair

opportunity to litigate consitutional

Claims]; and Pennzoil Company v. Texaco,

Inc., 481 U.S. 1 (1987) [Texaco (the

state defendant) filed an action in

federal court which sought to enjoin

Pennzoil (the state plaintiff) from

taking any action to enforce a

multibillion dollar judgment that a

Texas state court had rendered against

Texaco and in favor of Pennzoil. Texaco

did not avail itself of available state

remedies, but filed an injunctive action

in federal court. The Court found that

the existance of an available state

forum in which to Texaco could have

raised its claims (which forum the Court

held would be considered adequate until

proved otherwise) barred Texaco's

federal action. ]

State proceedings (not tainted by

bias, bad faith or harassment) for which

the state offers statutory appellate

review through its courts or otherwise,

are pending for Younger purposes from

the time it is initiated, until it has

completed the review process. The City

of Henderson began the adjudicative

process of enforcing its laws when it

initiated the quasi-judicial

administrative proceeding before the

City Council, which resulted in a

determination by the City Council that

Fantasy Video Plus’ business’ license

should be revoked because of fraudulent

misrepresentations made in their

business license application. The City

Council stayed the enforcement of that

revocation, in order to allow Fantasy

Video Plus to pursue its right to state

judicial review of the City of

Henderson's revocation of said business

license. The availability of state

judicial review created an adjudicative

continuum which existed at the time

Fantasy Video Plus filed its federal

complaint. Alleghany Corp. v. Haase,

708 F.Supp. 1507 (W.D.Wis. 1989) at

1515-1519. The same Younger concerns

that apply to ongoing administrative

proceedings apply to ended

administrative proceedings, where state

court review is available. Alleghany

Corp. v. Haase, supra, at 1515. See

also Sun Refining & Marketing Co. v.

Brennan, 921 F.2d 635 (6th Cir. 1990) at

639-640, citing World Famous _ Drinking

Emporium, 820 F.2d 1079 (9th Cir. 1987)

{Court found federal plaintiff clearly

had unexhausted state appellate remedies

where it had opportunity to appeal

decision of Board of Building Appeals

through state judicial system, holding

"there was therefore an on-going state

proceeding in this case” at the time the

federal complaint was filed and that the

Younger doctrine was applicable].

In this case, Fantasy Video Plus

lost its business license because of

intentional fraudulent misrepresenta-

tions made in its application form. It

is contrary to established public policy

to preclude state enforcement action of

Home Rule Powers against applicants who

deliberately make false statements to

the government in a business application

in order to obtain a license. A federal

litigant who has exhibited such “bad

faith" is not entitled to a federal

forum.

The preliminary injunction is a

clear example of an unauthorized

collateral federal appeal which

substantially disrupts and interferes

with the state appellate procedures

which are en train.

The same jurisdictional issue was

before the United States Supreme Court

in Huffman, supra. There the Lucas

County Common Pleas Court had entered a

(Footnote Continued)

Additionally, because the declara-

tory judgment action was filed in state

court before proceedings of substance on

the merits took place in the federal

court, the federal complaint should have

been dismissed on the State's motion

absent satisfactory proof of those

extraordinary circumstances calling into

play one of the limited exceptions to

the rule of Younger v. Harris, 401 U.S.

31 (1971), and related cases. Hicks v.

Miranda, 422 U.S. 332, 349-350 (1975).

(Footnote Continued)

final injunction of "closure" on 4

hard-core pornographic theater, after

holding that the autoptical evidence

(film and time and motion studies)

established that a public nuisance

existed at that theater under the Ohio

Red Light Abatement Statute. The entry

of that final injunction started the

running of the statutory time for filing

an appeal to the Court of Appeal and

Ohio Supreme Court. Because the federal

trial court wrongfully assumed

jurisdiction and granted injunctive

relief the important adjudication of

"closure" was prevented from being

adjudicated in the Ohio Judicial System.

eee

CONCLUSION

Wherefore, Petitioners request this

Court to:

(1) Grant a writ of certiorari

pursuant to Rule 13 and require the

United States District Court to vacate

and annul its March 22, 1991 Order and

to grant Petitioners’ Motion to Dismiss

the federal complaint on the ground of

lack of federal jurisdiction.

(2) Pending action on this

Petition, issue an Order requiring the

United States District Court to stay the

trial and the proceedings in the Court

below which are presently set for Monday

June 3, 1991.

Dated: May /6, 1991

rney bog Oe Tee

CERTIFICATE OF SERVICE

I hereby certify that on this 16th

day of May, 1991, three copies of the

within Petition for a Writ of Certiorari

were deposited in the United States Post

Office in Van Nuys, California with

first-class postage prepaid, and

properly addressed to the below listed

parties to the proceedings and that all

parties required to be served have been

served:

The Honorable Lloyd D. George

United States District Court

District of Nevada

316 Federal Bldg. & U.S. Courthouse

300 Las Vegas Blvd. South

Las Vegas, NV. 89101

Solicitor General,

Department of Justice

Washington D.C. 20530

Carmine J. Colucci

629 South Sixth Street

Las Vegas, NV 89101

Attorney for Real Parties in

Interest

Dated: May 16, 1991

APPENDIX 1

CITY OF HENDERSON SUMMONS AND

COMPLAINT, DATED FEBRUARY 7, 1990,

SETTING HEARING BEFORE THE CITY

COUNCIL ON FANTASY VIDEO PLUS’

LICENSE REVOCATION HEARING, AND

ANSWER OF FANTASY VIDEO PLUS

THERETO.

Reference: Petition for Writ of

Certiorari at pages 12 and 22.

lel

BEFORE THE CITY COUNCIL OF THE

CITY OF HENDERSON

COUNTY OF CLARK, STATE OF NEVADA

In the Matter of )

Disciplinary Action )

Against The Business) SUMMONS

License of Nevada )

Entertainment Indus-)

tries, Inc., Daniel )

Bishop and Francisco)

S. Villalpando d/b/a)

Fantasy Video Plus. )

THE CITY COUNCIL OF THE CITY OF

HENDERSON SENDS GREETINGS TO:

NEVADA ENTERTAINMENT INDUSTRIES,

INC., DANIEL BISHOP and FRANCISCO

S. VILLALPANDO d/b/a FANTASY VIDEO

PLUS 1100 North Boulder Highway

Henderson, Nevada 89015

YOU ARE HEREBY DIRECTED TO APPEAR,

by serving upon the City Attorney, and

by filing with the City Clerk of the

City of Henderson City Council, your

verified Answer to the Complaint

attached hereto, stating whether or not

you request a hearing, and admitting or

1-2

denying the facts alleged in the

Complaint and by raising all legal and

factual issues and defenses you desire

the Council to consider, within ten (10)

days after service hereof. Failure to

file an Answer as required shall result

in disciplinary action against you by

default.

DATED this 7th day of

February, 1990.

CITY OF HENDERSON CITY COUNCIL,

CLARK COUNTY, NEVADA

MAYOR

1-3

BEFORE THE CITY COUNCIL OF THE

CITY OF HENDERSON

COUNTY OF CLARK, STATE OF NEVADA

In the Matter of the

Disciplinary Action

Against the Business

License of Nevada

)

) COMPLAINT

)

Entertainment Indus- )

)

tries, Inc., Daniel

Bishop and Francisco

S. Villalpando d/b/a

Fantasy Video Plus.

Comes now, the City of Henderson,

by and through its attorney Shauna M.

Hughes, Esq., City Attorney, and Liza

Conroy, Esq., Assistant City Attorney,

and as and for its causes of action

alleges:

1. NEVADA ENTERTAINMENT

INDUSTRIES, INC., DANIEL BISHOP and

FRANCISCO S. VILLALPANDO, Licensees,

d/b/a FANTASY VIDEO PLUS were issued a

Gross Revenue Business License on the

2lst day of September, 1989 for the

location of 1100 North Boulder Highway,

Henderson, Clark County, Nevada.

1-4

2. That on or about late July or

early August 1989, an agent of licensees

submitted an application for a retail

video business which required the

Signature of an owner or corporate

officer. An application was later

returned, signed, with a description of

the business. Said application is

attached as Exhibit 1 hereto and

incorporated by reference herein.

ae That pursuant to H.M.C.

4.04.020(d), the requirements of all

departments and divisions must be met

and approvals obtained.

4. That on or about August 31,

1989, an official of the Community and

Planning Department went to the premises

at 1100 N. Boulder Highway to inspect

the premises known as Fantasy Video Plus

to verify compliance with department

requirements. The inspection official

advised that proper zoning and a Use

Permit were required for an "Adult

1-5

Business" pursuant to H.M.C. 19.24.004,

Schedule C, Land Use Regulations.

5. That attached hereto as Exhibit

2is the notice of requirements and

corrections for business licensing

issued to the licensees' agent advising

of the zoning requirement.

6. That on or about September 1,

1989, licensees, or an agent of

licensees, advised the Community and

Planning Departments' inspection

official that the business, Fantasy

Video Plus, was not an "Adult Business"

but a general video business with a

minor area of the establishment to be

devoted to adult entertainment.

-7. That based upon the

representations of licensees, or

licensees' agent, said Community and

Planning Department's inspection

official approved the requirements and

correction notice and forwarded same to

the Business License Division.

1-6

8. That based upon licensees’

business license application and receipt

of approvals from all required

inspections, the Business License

Division issued a business license to

Fantasy Video Plus.

9. That on or about February il,

1990, an official from the Business

License Division went to the premises

and viewed the interior of the business

finding that the nature of the business

was predominately an adult, or sexually

oriented, video, book, magazine and

novelty store in contradiction to the

description given in licensees’

application and to the Community and

Planning Department's inspection

official.

WHEREFORE, the Business license of

NEVADA ENTERTAINMENT INDUSTRIES, INC.,

DANIEL BISHOP and FRANCISCO s.

VILLALPANDO d/b/a FANTASY VIDEO PLUS

should be REVOKED for the following

1-7

grounds:

(a) Applicants must meet the

requirements of all Departments or

Divisions of the City and obtain

approvals, H.M.C. 4.04.020(d).

(b) All business licenses issued

are subject to suspension, limitation or

revocation for failure of licensee,

while engaged in the conduct of

business, to comply with any provisions

of the Henderson Municipal Code, H.M.C.

4.04.150(c).

in the application for the license

constitutes good cause for revocation of

the license, H.M.C. 4.04.150(a) (1), (3)

(4); H.M.C. 4.04.150(b)(2),(3)(5).

DATED this 7th day of

February, 1990.

DAVID G. LEE

1-8

STATE OF NEVADA )

) ss:

COUNTY OF CLARK )

DAVID G. LEE, being first duly

sworn according to law, deposes and

says:

That he is the Administrator of

Licensing of the City of Henderson

Business License Division; that he has

read the foregoing Complaint, knows the

contents thereof, and that the same is

true based upon information received by

him in his official capacity.

DAVID G. LEE

SUBSCRIBED and SWORN to

before me this 7th day

of February, 1990.

NOTARY PUBLIC in and for said

County and State.

SHAUNA M. HUGHES

CITY ATTORNEY

240 Water Street

Henderson, Nevada 89015

etacemeenntenesnepestetmmennimnnset

1-9

BEFORE THE CITY COUNCIL OF THE

CITY OF HENDERSON,

COUNTY OF CLARK, STATE OF NEVADA

In the Matter of the

Disciplinary Action

Against the Business

License Of Nevada

)

) ANSWER TO

)

Entertainment Indus- )

)

COMPLAINT

tries, Inc., Daniel

Bishop and Francisco

S. Villalpando d/b/a

Fantasy Video Plus.

Comes Now Nevada Entertainment

Industries, Inc., enti Bishop and

Francisco S. Villalpando d/b/a Fantasy

Video Plus, and respond to the Complaint

as follows:

1. Admit that Nevada Entertainment

Industries, Inc., d/b/a Fantasy Video

Plus, licensee, was issued a gross

revenue business license on the 2lst day

of September 1989 for the location of

1100 North Boulder Highway, Henderson,

Clark County, Nevada. Deny that Daniel

Bishop and Francisco S. Villalpando

received any licenses.

1-10

2. Admit that on or about late July or

early August 1989 an agent of Nevada

Entertainment Industries, Inc. submitted

an application for retail video business

which required the signature of an owner

or corporate officer. Admit that an

application was later returned, signed

by Daniel B-_shop, with a description of

the busines Admit that Exhibit 1 to

the Complaint is a copy of the

application which was submitted by

Bishop.

3. Admit that Henderson Municipal Code

Section 4.04.020(d) states what it

purports to state. Deny the remaining

allegations of paragraph 3.

4. Admit that on August 31, 1989, an

official of the Community and Planning

Department of the City of Henderson went

to the premises at 1100 North Boulder

Highway to inspect the premises known as

Fantasy Video Plus to verify compliance

with department requirements. Admit

1-11

that the inspection official advised

that proper zoning and a use permit were

required for “adult business" pursuant

to Henderson Municipal Code Section

19.24.004, Schedule - Land Use

Regulations.

~P Admit that attached to Complaint as

Exhibit 2 is a document known as

"Requirements and Corrections for

Business Licensing."

6. Admit that on or About September 1,

1989, Daniel Bishop advised the

Community and Planning Departments'

inspection official that the business,

Fantasy Video Plus, was not an “adult

business” but rather a general video

business. Deny each and every remaining

allegation of Paragraph 6.

7s Admit that the Community and

Planning Departments' inspection

official approved the Requirements and

Correction notice and forwarded same to

the Business License Division. Deny

1-12

each and every remaining allegation of

Paragraph 7.

8. Admit that the Business License

Division issued a business license to

Fantasy Video Plus. Deny, for lack of

information or belief, the remaining

allegations of Paragraph 8.

9. Admit that on or about February 1,

1990 an official from the Business

License Division went to the premises

and viewed the interior of the business.

Deny the remaining allegations of

Paragraph 9.

FIRST AFFIRMATIVE DEFENSE

Fantasy Video Plus at 1100 North

Boulder Highway is not an adult business

within the meaning of the Henderson

Municipal Code.

SECOND AFFIRMATIVE DEFENSE

The regulatory scheme of the

Municipal Code of the City of Henderson

is unconstitutional in violation of the

First and Fourteenth Amendments to the

————————————— UU

1-13

United States Constitution. The

ordinance is too vague and does not

provide a procedure for the prompt

issuance of the necessary permits and

licenses. For example, Henderson

Municipal Code Section 19.24.004,

Schedule C authorizes an adult business

in the CH zone but imposes additional

use regulations. In particular, an

adult business is allowed in the CH

zone, wherein the property is located,

with a provision that a use permit be

obtained and also with a provision that

it be subject to local requirements set

forth in the licensing regulations of

the Henderson Municipal Code. In order

to obtain A use permit, Section

19.74.012(A) requires that the City

Council and Commission find, among other

things, that the proposed location of

the use and the proposed conditions

under which it would be operated ...

will not be detrimental to the public

1-14

health, safety or welfare of persons

residing or working in or adjacent to

the neighborhood of such use; and will

not be detrimental to properties or

improvements in the vicinity or to the

general welfare of the City. .. ."

These standards are too vague to

withstand constitutional scrutiny. See

e.g., FW/PBS v. Dallas, 0.8.

(January 9, 1990).

THIRD AFFIRMATIVE DEFENSE

The alleged misrepresentation was

not material; had the disclosure been

made that the City now asserts should

have been made, the necessary license

would nevertheless have issued.

WHEREFORE, Fantasy Video Plus prays

that the Complaint be dismissed and that

its license not be suspended or revoked.

To the extent the City wishes to

conduct hearings and require permits and

licenses, Nevada Entertainment

Industries, Inc. prays that the

1-15

appropriate City departments,

Commissions, and officers conduct the

necessary hearings and then grant the

required permits and licenses.

A hearing is hereby requested.

Dated this day of February,

1990.

NEVADA ENTERTAINMENT

INDUSTRIES, INC.

By: .

DANIEL BISHOP

FRANCISCO S. VILLALPANDO

MY COMMISSION EXPIRES JAN 30, 1994

STATE OF WISCONSIN COUNTY OF

KENOSHA

DANIEL BISHOP CAME BEFORE ME ON

FEB. 16, 1990

BARBARA A. ROSS

APPENDIX 2

CITY COUNCIL DECISION AND ORDER,

DATED APRIL 16, 1990, REVOKING THE

BUSINESS LICENSE OF NEVADA

ENTERTAINMENT INDUSTRIES, INC.

d.b.a. FANTASY VIDEO PLUS AND

STAYING ENFORCEMENT FOR TEN (10)

BUSINESS DAYS TO ALLOW AN APPEAL TO

THE NEVADA DISTRICT COURT.

Reference: Petition for Writ of

Certiorari at page 12.

2-1

BEFORE THE CITY COUNCIL OF THE CITY OF

HENDERSON

COUNTY OF CLARK, STATE OF NEVADA

x k *

In the Matter of the

Disciplinary Action

Against the Business

License of NEVADA

)

) DECISION AND

)

ENTERTAINMENT INDUS- )

)

ORDER

TRIES, INC., DANIEL

BISHOP and FRANCISCO

S. VILLALPANDO d/b/a

FANTASY VIDEO PLUS

The CITY COUNCIL of the CITY OF

HENDERSON, having heard and considered

all the evidence presented at the

business license revocation hearing in

the above-entitled matter on April 10,

1990, makes the following findings of

fact and determination of issues, and

renders its final decision as follows:

The evidence shows’ the

licensees originally advised the CITY

the videos were "adult";

2.) When licensees were told they

needed a zone change and use permit to

2-2

operate as an adult video business, the

licensees changed their application to

reflect "mass media video/book and

novelty" with the full intention to

proceed as an adult video, book and

novelty store;

3.) The licensees changed their

application with the full intention to

misrepresent and misiead the Business

License Department in order to open for

business without obtaining a zone change

and use permit;

4.) The use of the term "mass

media" was done to deliberately mislead

and deceive the City staff in order to

cause a business license to be issued;

5.) The licensee answered in the

negative questions regarding previous

convictions on the business license

application which affects his

credibility and is itself 4

misrepresentation;

6.) The evidence showed the

2-3

business consisted of predominantly,

75-80%, adult materials;

7.) #$‘The omission by licensees of

the nature of the business was done

deliberately to mislead and deceive City

staff in order to have a business

license issued without applying for a

zone change and use permit;

8.) The licensees offered no

evidence to refute any of the evidence

offered by the CITY regarding arrests or

misrepresentation of the nature of the

store's business;

9.) The licensee tried to divert

attention from the limited issue at hand

which is the misrepresentation of the

nature of the business to the Business

License Department;

10.) Each of the witnesses who

testified were credible and their

testimony truthful;

Based on the foregoing findings and

conclusions, the CITY COUNCIL hereby

2-4

revokes the business license of NEVADA

ENTERTAINMENT INDUSTRIES, INC., d/b/a

FANTASY VIDEO PLUS, orders written

notice of its decision to licensees

within five (5) business days, and stays

the enforcement of the revocation for

tem=410) business days following receipt

of the written notice of revocation.

DATED this 16th day of April, 1990.

CITY COUNCIL OF THE CITY OF HENDERSON

LORNA KESTERSON, Mayor

ANDY HAYEN

CARLTON LAWRENCE

ATTEST:

DOROTHY VONDENBRINK,

CMC, City Clerk

MICHAEL HARRIS

LORIN WILLIAMS

APPENDIX 3

UNITED STATES DISTRICT COURT'S

TEMPORARY RESTRAINING ORDER ENTERED

ON APRIL 27, 1990 RESTRAINING

ENFORCEMENT OF THE CITY COUNCIL

ORDER DATED APRIL 16, 1990 AND THE

CITy's LICENSING AND ZONING

ORDINANCES AS THEY APPLY TO FANTASY

VIDEO PLUS.

Reference: Petition for Writ of

Certiorari at pages 12 and 23.

3-1

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

NEVADA ENTERTAINMENT )

INDUSTRIES, et al., CV-S-90-264

_—

Plaintiffs, [ ENTERED

APRIL 27, 1

Cioazn, U.S.

Dist. Court

Vv.

CITY OF HENDERSON,

St ail.;

Defendants.

mee eee ee ee

ORDER

This matter is before the court

-LDG

990

’

Dist. of Nevada

By Deputy ]

plaintiffs' motion for a temporary

restraining order (#2) pursuant to

65 of the Federal Rules of C

Procedure. Plaintiffs currently ope

Rule

ivil

rate

an adult bookstore within the City of

Henderson. Based upon all

discrepancies in plaintiffs' lic

eged

ense

application, the City has revoked

plaintiffs' license as of May l, 1

Plaintiffs challenge

constitutionality of defendants'

990.

the

3-2

licensing and zoning schemes as_ applied

to their adult entertainment business.

Plaintiffs assert that these schemes

violate their First and Fourteenth

Amendment Rights.

Both plaintiffs' and defendants'

counsel presented oral arguments on

April 27, 1990. Upon review of the

record and consideration or oral

arguments, the court finds that a

temporary restraining order is

warranted. Plaintiffs will suffer

substantial hardship and possible

irreparable harm if their business is

closed and if they are unable to

exercise their First Amendment rights.

See Ebel v. City of Corona, 698 F.2d

390, 393 (9tn Circ... 1976). Furthermore,

plaintiffs raise substantial questions

regarding the validity of the City's

ordinances. Thus,

& 5 IS HEREBY ORDERED, that

plaintiffs application for a temporary

3-3

restraining order (#2) is granted.

is Is FURTHER ORDERED,

defendants,and each of them, their

officers, agents, servants, employees,

and attorneys, and all other persons ov

entities in active concert or

participation with them or under their

direction, supervision and control, are

restrained and enjoined, pending the

termination of this order, from:

(a) Closing down plaintiffs'

business at 1100 Boulder Highway,

Henderson, NV., or arresting,

and/or citing or prosecuting,

plaintiffs or any of their

employees for allegedly violating

the provisions of the Henderson

Municipal Code regarding business

licenses, zoning or conditional use

permits;

(b) Revoking plaintiffs' business

license issued on September 21,

1989;

3-4

(d) Enforcing the ordinances of

the City of Henderson regarding

business licenses, conditional use

permits, or zoning, as they apply

to plaintiffs' bookstore and arcade

at 100 Boulder Highway, Henderson,

NV.

is Is FURTHER ORDERED, that

plaintiffs post a $10,000 bond pursuant

to Rule 65(c) of the Federal Rules of

Civil Procedure.

IT IS FURTHER ORDERED, that the

preliminary injunction hearing set for

May 4, 1990 is vacated, and the hearing

is rescheduled for June 1, 1990 at 1:30

p.m. in courtroom number 3.

IT IS FURTHER ORDERED, that

defendants' opposition to plaintiffs'

motion for preliminary injunction shall

be filed by 4:00 p.m. on May 14, 1990,

and if plaintiffs wish to file a reply

brief, they shall file it by 4:00 p.m.

3-5

on May 25, 1990.

DATE: 27 April 1990

LLOYD D. GEORGE

United State District

Judge

APPENDIX 4

UNITED STATES DISTRICT COURT'S

PRELIMINARY INJUNCTION ENTERED ON

JUNE 4, 1990, ENJOINING ENFORCEMENT

OF THE CITY COUNCIL ORDER DATED

APRIL 16, 1990 AND THE CITY'S

LICENSING AND ZONING ORDINANCES AS

THEY APPLY TO FANTASY VIDEO PLUS.

Reference: Petition for Writ of

Certiorari at pages 11, 13 and 23.

4-1

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

NEVADA ENTERTAINMENT )

INDUSTRIES INC., et

Gls

CV-S-90-264-LDG

)

) [ENTERED

Plaintiffs,) JUNE 4, 1990

Vv. ) Clerk, U.S.

) Dist. Court,

) Dist. of Nevada

By Deputy ]

)

CITY OF HENDERSON,

et al.,

Defendants.

ORDER

This matter is before the court on

plaintiffs' motion for a preliminary

injunction pursuant to Rule 65 of the

Federal Rules of Civil Procedure.

Plaintiffs operate an adult theater and

bookstore located in the City of

Henderson. The City requires that such

businesses locate within a "CH" zone.

Furthermore, in order to operate the

business, the City requires that

plaintiffs obtain a business license and

a use permit. Plaintiffs applied for

4-2

and received a business license based

upon the following description: "Mass

media books and video store, novelty

shop, etc." Upon the opening of the

business in February 1990, the City

moved to revoke the license since it

misrepresented the nature of plaintiffs'

business. Plaintiffs contends that the

license is not fraudulent. More

importantly, plaintiffs contend that the

license and use permit ordinances are

facially invalid since they vest too

much discretion in the hands of city

officials in violation of plaintiffs’

First and Fourteenth Amendment rights.

Although the City Council voted to

revoke the license, this court granted a

temporary restraining order on April 27,

1990. On June 1, 1990, this court heard

Oral arguments on the motion for a

preliminary injunction.

The standard for granting a

preliminary injunction is clear. A

4-3

plaintiff must show probable success on

the merits and irreparable injury. Ebel

v. City of Corona, 698 F.2d 390, 392

(9th Cir. 1983). In the alternative, a

plaintiff must show the existence of

serious questions regarding the merits

and that the balance of hardships tips

sharply in his favor. Id.

As for the harm element, the court

recognizes that the City suffers a

certain amount of harm whenever a court

prevents the enforcement of a regulatory

scheme. However, plaintiffs have

invested time and money into their

business, and they have operated their

business for some four months.

Plaintiffs would suffer economic loss if

the court forces them to close their

business pending the resolution of this

matter. Although plaintiffs do not have

a use permit, plaintiffs have not

violated any other ordinance, and the

business sits within a CH zone.

4-4

Furthermore, the court noted in Ebel

that "'({tJhe loss of First Amendment

freedoms, for even minimal periods of

time, unquestionably constitutes

irreparable injury.' Eldrod v. Burns,

427 U.S. 347 « « »« (1976)." 698 F.2d at

393. Thus, plaintiffs must prevail on

both the irreparable injury and the

balance of hardships prong of the test.

Both parties agree that the City

has the power to enact business license

and zoning requirements. The court

recognizes that City has valid

regulatory interests. The Supreme Court

has upheld zoning requirements which

purport to limit the locations available

for adult theaters and stores. See City

of Renton v. Playtime Theaters, Inc.,

475 U.S. 41 (1986); Young v. American

Mini Theaters, Inc., 427 U.S. 50 (1976).

However, the City's ordinances appear to

go beyond neutral time, place and manner

regulations which allow alternative

4-5

means of communication. The ordinances

allow officials to deny applications for

licenses and permits based upon factors

such as the general welfare or, in the

case of a license, for any just or

equitable reason. As the Supreme Court

noted in Staub v. City of Baxley, 355

U.S. 313, 322 (1958),

It is settled by a long line of

recent decisions of this Court that

an ordinance which .. . makes’ the

peaceful enjoyment of freedoms

which the Constitution guarantees

contingent upon the uncontrolled

will of any official-as by

requiring a permit or license which

may be granted or withheld in the

discretion of such official-is an

unconstitutional censorship or

prior restraint upon the enjoyment

of those freedoms.

The Supreme Court recently quoted this

language with approval in FW/PBS, Inc.

v. City of Dallas, 110 S.Ct. 596 (1990).

Such discretionary power may result in

impermissible censorship and arbitrary

suppression. A review of the ordinances

suggests that officials have unbridled

discretion in granting licenses and

4-6

issuing permits. At this time, the

court has no authoritative indication of

how an official's discretion may be

limited. Thus, the court believes that

plaintiffs have raised serious questions

regarding the validity of the ordinances

as applied to their business. This

factor coupled with the fact that the

balance of hardships favors plaintiffs

calls for the issuance of the

preliminary injunction. Consequently,

IT Is HEREBY ORDERED, that

Plaintiffs' motion for a preliminary

injunction is granted.

IT IS FURTHER ORDERED, defendants,

and each of them, their officers,

agents, servants, employees, and

attorneys, and all other persons or

entities in active concert or

participation with them or under their

directions, supervision and control, are

restrained and enjoined, pending the

termination of this order, from:

4-7

(a) Closing down plaintiffs'

business at 1100 Boulder Highway,

Henderson, NV., or arresting,

and/or citing or prosecuting,

plaintiffs or any of their

employees for allegedly violating

the provisions of the Henderson

Municipal Code rega~ding business

licenses, zoning or conditional use

permits;

(b) Revoking plaintiffs' business

license issued on September 21,

1989;

against plaintiffs;

(d) Enforcing the ordinances of

the City of Henderson regarding

business licenses, conditional use

permits, or zoning, as they apply

to plaintiffs' bookstore and arcade

at 100 Boulder Highway, Henderson,

NV.

IT IS FURTHER ORDERED, that

4-8

plaintiffs maintain a $20,000 bond

pursuant to Rule 65(c) of the Federal

Rules of Civil Procedure.

IT Is FURTHER ORDERED, that

defendants supply the court with the

full text of all applicable Henderson

ordinances prior to the trial on this

matter.

DATE: 4 June 1990

LLOYD D. GEORGE

United States District

Judge

APPENDIX 5

UNITED STATES DISTRICT COURT'S

ORDER AND OPINION ENTERED MARCH 22,

1991, DENYING THE CITY'S MOTION TO

DISMISS THE CIVIL RIGHTS LAWSUIT ON

THE GROUNDS OF LACK OF FEDERAL

JURISDICTION AND FAILURE TO STATE A

CLAIM UPON WHICH RELIEF CAN BE

BASED AND REFUSING TO ISSUE AN

ORDER TO SHOW CAUSE WHY THE FEDERAL

PLAINTIFFS SHOULD NOT BE REQUIRED

TO PRESENT THEIR FEDERAL CLAIMS IN

THE STATE DECLARATORY JUDGMENT

LAWSUIT.

Reference: Petition for Writ of

Certiorari at pages 13 and 27.

UNITED STATE DISTRICT COURT

DISTRICT OF NEVADA

NEVADA ENTERTAINMENT

INDUSTRIES, INC.,

et al.,

)

) CV-S-90-264-LDG

) (LRL)

)

Plaintiffs,) [ENTERED

) MAR. 22, 1991

) €Cileorcn, VU«f.

) Dist. Court,

) Dist. of Nevada

) By Deputy ]

)

CITY OF HENDERSON,

et al.,

Defendants.

)

ORDER

Plaintiffs have filed this action

pursuant to 42 U.S.C. Section 1983 and

allege 4 deprivation of their

constitutional rights. Plaintiffs

operate an adult theater and bookstore

located in the City of Henderson. The

City requires that such businesses

locate within a "CH" zone. Furthermore,

in order to operate the business, the

City requires that plaintiffs obtain a

business license and a use permit.

5-2

Plaintiffs applied for and received a

business license based upon the

following description: "Mass media

books and video store, novelty shop,

etc." Upon the opening of the business

in February 1990, the City moved to

revoke the license since it

misrepresented the nature of plaintiffs'

business. Plaintiffs contend that the

application was not fraudulent. More

importantly, plaintiffs contend that the

license and use permit ordinances are

invalid since they vest too much

discretion in the hands of city

officials in violation of plaintiffs'

First and Fourteenth Amendment rights.

Although the City Council voted to

revoke the license, this court granted a

temporary restraining order on April 27,

1990. After hearing oral arguments,

this court granted 4 preliminary

injunction on June 5, 1990. On October

1, 1990, the City filed a complaint for

5-3

declaratory judgment and injunctive

relief in a Nevada state court. This

matter is currently before the court on

defendants’ motion to dismiss (#24).

The City believes that the parties

should adjudicate this dispute in state

rather than federal court. However,

this court is mindful of the principle

that "abstention from the exercise of

federal jurisdiction is the exception,

not the rule." Colorado River Water

Conservation District v. United States,

424 U.S. 800, 813 (1976). Courts are

especially reluctant to abstain when

First Amendment issues are involved.

Baggett v. Bullitt, 377 U.S. 350, 379

(1964); Playtime Theaters, Inc. v. City

of Renton, 748 F.2d 527, 532 (9th Cir.

1984), rev'd on other grounds, 475 U.S.

14 (1986). In general, abstention is

inappropriate when extensive rather than

a single adjudication would be required

by a state court. Harris County

5-4

Commissioners Court v. Moore, 420 U.S.

77, 86 n.9 (1975) (citing Baggett, 377

U.S. at 378). The various licensing and

regulatory ordinances involved in this

litigation do not readily lend

themselves to a single state court

adjudication. The obligations imposed

by the ordinances rather than the

applicability of the ordinances are at

issue.

The City seeks abstention based

upon the principles contained in Huffman

v. Pursue, Ltd., 420 U.S. 592 (1975).

Huffman followed the abstention

principles formulated in Younger Vv.

Harris, 401 U.S. 37 (1971) which

generally preclude a federal court from

intervening in a pending state criminal

prosecution. Id. at 41. Huffman

required the Court to consider whether

Younger "bars a federal court from

intervening in a state civil proceeding

such as this, when the proceeding is

5-5

based on a state statute believed by the

district court to be unconstitutional."

Huffman, 420 U.S. at 594. In Huffman,

the owner of an adult theater challenged

attempts by Ohio authorities to invoke

the state public nuisance statute. A

state court determined that the owner

had displayed obscene movies and should

be closed pursuant to the statute.

Rather than file a direct appeai, the

owner filed a federal action pursuant to

42 U.S.C. Section 1983 alleging that the

use of the statute constituted a

deprivation of constitutional rights

under color of state law. Id. at 598.

The Supreme Court held that Younger did

bar federal action. The Court found

that "(t]he state is a party to the

Court of Common Pleas proceeding, and

the proceeding is both in aid of and

closely related to criminal statues

which prohibit the dissemination of

obscene materials." Id. at 604.

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5-6

However, the court stated that "we need

make no general pronouncements upon the

applicability of Younger to all civil

litigation." Id. at 607. Although

subsequent cases have applied Younge: to

other civil litigation, the Court has

never adopted a rule that Younger

applies to all civil litigation. See,

e.g., Middlesex County Ethics Committee

v. Garden State Bar Association, 457 U.S.

423 (1982); Moore v. Sims, 442 U.S. 415

(1979); Trainor v. Hernandez, 431 U.S.

434 (1977); Juidice v. Vail, 430 U.S.

327 (1977).

Upon a review of the record, it is

clear that the principles of Younger and

Huffman should not apply to this

litigation. Huffman can be

distinguished in several important

respects. Unlike Huffman, this

litigation involves more than simply an

application of state nuisance laws. In

Huffman, a court had already determined

5-7

that the theater was showing obscene

materials, but no such determination has

been made in this case. Although

obscenity is outside the scope of the

First Amendment, some adult materials

are afforded First Amendment protection.

See Dworkin v. Hustler Magazine, Inc.,

867 F.2d 1188, 1199 (9th Cir.), cert.

denied, 110 S.Ct. 59 (1989). Perhaps

most importantly, the federal complaint

in Huffman was filed in the midst of

on-going state litigation.

Before invoking the principles of

Younger and Huffman, a state action must

exist. As the Supreme Court stated,

(w]lhen no state criminal proceeding

is pending at the time the federal

complaint is filed, federal

intervention does not result in

duplicative legal proceedings or

disruption of the state criminal

justice system; nor can federal

intervention, in that circumstance,

be interpreted as reflecting

negatively upon the state court's

ability to enforce constitutional

principles.

Huffman, 420 U.S. at 885 (quoting

5-8

Steffel Thompson, 415 U.S. 452, 462

(1974). This requirement is not met

simply by filing a federal action first.

As the Supreme Court noted in Hawaii

Housing Authority v. Midkiff, 467 U.S.

229, 238 (1984), "Younger abstention is

required, however, only when state court

proceedings are initiated ‘before any

proceedings of substance on the merits

have taken place.' Hicks v. Miranda,

(422 U.S. 332, 349 (1975)]. In other

cases, federal courts must normally

fulfill their duty to adjudicate federal

questions properly brought before them."

See also Adultworld Bookstore v. City of

Fresno, 758 F.2d 1348, 1350-51 (9th Cir.

1985). Thus, we must examine whether

"proceedings of substance on the merits"

took place in this court prior to the

filing of the state action. In Hawaii

Housing Authority, the Court stated that

"(a] federal court action in which a

preliminary injunction is granted has

5-93

proceeded well beyond the ‘embryonic

stage,' (Doran v. Salem Inn, Inc., 422

U.S. 922, 929 (1975)], and

considerations of economy, equity, and

federalism counsel against Younger

abstention at that point.” 467 U.S. at

238. In the present case, this court

issued the preliminary injunction some

four months prior to the filing of the

state court action. Thus, based on the

above analysis, the court finds that

abstention is not proper.

Additionally, a plaintiff need not

exhaust available state remedies prior

to bringing a federal action pursuant to

Section 1983. The Supreme Court has

recognized that "({wjhen federal claims

are premised on 42 U.S.C. Section 1983

and 28 U.S.C. Section 1343(3) ... we

have not required exhaustion of state

judicial or administrative remedies,

recognizing the paramount role Congress

has assigned to the federal courts to

3-10

protect constitutional rights." Steffel

vy. Thompson, 415 8.8. 4324, 472-73

(1974). The Supreme Court established a

limited exception in Parratt v. Taylor,

451 U.S. 527 (1981). In Parratt, an

inmate alleged that a state official's

negligence deprived him of property

without due process. The Court required

the claimant to exhaust his state

remedies which would fully compensate

him for his monetary loss. Id. at 544.

However, requiring state court

exhaustion of all Section 1983 claims

would be contrary to Congressional

intent. See Patsy v. Board of Regents

of State of Florida, 457 U.S. 496, 508

(1982). Finally, the court does not

believe that the Henderson Municipal

Code compels a party to take their

dispute to state court. Section

4.06.160 provides that "[a]ny person

aggrieved by final decision or order of

the City Council .. . may obtain a

judicial review. . - in the Eight

Judicial District Court." This section

is written with permissive rather than

mandatory language. Thus,

IT Is HEREBY ORDERED, that

defendants’ motion to dismiss (#25) is

denied.

IT IS FURTHER ORDERED, that

defendants’ application to show cause

(#24) is denied.

DATE: 20, March 1990

LLOYD D. GEORGE

United States District

Judge

APPENDIX 6

UNITED STATES DISTRICT COURT'S

ORDER DATED APRIL 9, 1991, WHICH

DENIED THE CITY'S MOTION TO CERTIFY

AN INTERLOCUTORY APPEAL OF THE

REFUSAL TO DISMISS THE CIVIL RIGHTS

LAWSUIT.

Reference: Petition for Writ of

Certiorari at pages 10, 14 and 30.

6-1

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

NEVADA ENTERTAINMENT )

INDUSTRIES INC., et )

be ) CV-S-90-264-LDG

) (LRL)

Plaintiffs, ) [ ENTERED

) APRIL 9, 1991

Vv. ) Clerk, U.S.

) Dist. Court,

) Dist. of Nevada

)

By Deputy ]

CITY OF HENDERSON,

et al.,

Defendants.

ORDER

On March 22, 1991, this court

entered an order denying defendant City

of Henderson's motion to dismiss.

Henderson had contended that this court

Should allow a Nevada state court to

review this matter. Upon denial of the

motion, Henderson has filed this motion

to amend interlocutory order and stay

proceedings (#31). Henderson basically

asks the court to certify its order for

an interlocutory appeal. Pursuant to 28

6-2

U.S.C. Section 1292, a district court

may certify such an appeal if the order

involves a controlling question of law

as to which there is substantial ground

for difference of opinion and an

immediate appeal might materially

advance the ultimate termination of the

litigation. Based upon a review of the

record, the court does not believe that

an interlocutory appeal is warranted.

In particular, the court fails to find a

substantial ground for difference of

opinion. This court's rationale is

adequately stated in its March 22 order.

Additionally, this matter can be quickly

resolved after a brief trial. As noted

at the March 29, 1991 conference, the

court believes the better course is to

proceed to trial immediately, and then

allow for appropriate appellate review

of all questions. Depending upon the

Ccutcome at trial, Henderson may no

longer desire any review. Thus,

6-3

) y Is HEREBY ORDERED, that

Henderson's motion to certify an

interlocutory appeal (#31) is denied.

DATE; 9 APRIL, 1991

/s/

LLOYD D. GEORGE

U.S. District Judge

APPENDIX 7

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT ORDER FILED MAY

2, 1991 DENYING CITY'S PETITION FOR

WRIT OF MANDAMUS AND APPLICATION

FOR A_ STAY CF DISTRICT COURT

PROCEEDINGS.

Reference: Petition for Writ of

Certiorari at pages 2, 12 and 14.

7-1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CITY OF HENDERSON, No. 91-70233

NEVADA ENTERTAIN-

MENT INDUSTRIES,

INC., GO ihc,

Real Parties in

Interest.

)

NEVADA, et al., )

) DcC#

Petitioners, ) CV-S-90-264-LDG-L

) Nevada (Las Vegas)

vs. )

)

UNITED STATES ) ORDER

DISTRICT COURT FOR )

THE DISTRICT OF ) FILED May 2, 1991

NEVADA, ) CLERK, U.S. COURT

) OF APPEALS

Respondent, )

)

and )

)

Before: NORRIS, BEEZER and O'’SCANNLAIN,

Circuit Judges

The petition for writ of mandamus

is denied. Petitioners' request for a

stay of district court proceedings

pending disposition of the petition is

denied as moot.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.