Petition for Writ of Certiorari — Billmeyer v. Tovar

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| Vice -oupreimc UOUTL, Us

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| JUN 11 1984

No. 83- ALEXANDER L. STEVAS,

si tt

in the

seca Court of the Hnited States

October Term, 1983

C.G. BILLMEYER, MELVIN MORGAN, F.W.

“BILL” ROSKELLEY, JOHN EVANS, DONNA BOE,

WAYNE ELLIS, and the CITY OF POCATELLO,

an Idaho Municipal Corporation,

Petitioners,

Vv.

JOSEPH TOVAR and DEBORAH ANN MOORE,

Respondents,

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

L. Charles Johnson

Johnson and Olson

303 Spaulding Building

Pocatello, Idaho 83201

(208) 232-7926

James J. Clancy

9055 La Tuna Canyon Rd.

Sun Valley, CA 91352

(818) 352-2069

- QUESTIONS PRESENTED

his Whether The Court Of Appeals For

The Ninth Circuit Erred In Refusing To

Affirm The Dismissal Of Tovar And

Moore's Civil Rights Action Which

"Implicated An Important Interest" Of

The City Of Pocatello (ie., Enforcement

Of Its Zoning Ordinances).

, (a) Whether Tovar And Moore's

Civil Rights Complaint States A Claim

Upon Which Relief Can Be Based Under The

Civil Rights Statute, 42 U.S.C., §1983?

(b) Whether The Court Of Appeals

For The Ninth Circuit Erred In

Refusing To Affirm The District Court's

Award Of Summary Judgment To The City Of

Pocatello?

as Whether The Refusal Of The Court Of

Appeals For The Ninth Circuit To

Affirm The Summary Judgment Awarded The

City As To Tovar And Moore's Civil

Rights Action, On Res Judicata

Principles Under This Court's Decision

In The Migra Case, Pursuant To The Two

Idaho State Court Final Judgments

Awarded The City In The State Lawsuits

Brought By Tovar And Moore, Constitutes

A Violation Of The Full Faith And Credit

Provision Of The Federal Constitution

(Age. IY, §a}«

4, Whether The Bad Motivation Of A

City Council In Enacting And

Interpreting Legislation May Give Rise

To A Federally Created Civil Right And

Damages, Where: (1) Such Legislation Is

Constitutional On Its Face, And (2) In

State Court Proceedings Which Are Fair

On Their Face, the City Council's

Interpretation Is Held To Be Reasonable,

And The Acts And Conduct Of The City

Council In Such Matter Are Held Not To

Have Been Done Arbitrarily,

Capriciously, Or With An Abuse Of

Discretion.

nie

SUBJECT INDEX

QUESTIONS PRESENTED

OPINIONS BELOW 3

JURISDICTION 4

STATUTORY PROVISIONS INVOLVED 5

STATEMENT OF THE CASE 6

STATEMENT OF FACTS 1l

A. Background History ll

B. The Initial Controversy

In The Idaho Court (Civil

Action No. 34096). Tovar

and Moore Elect To Pro-

ceed In The State Court

System Under The Proce-

dural Remedy Which The

State Of Idaho Has Pro-

vided. (See Appendix

“rs? 14

C. Tovar And Moore File A

Duplicative Civil Rights

Action In The U.S.

District Court (Civ.

4-75-59), Alleging Both

Constitutional

Violations And Pendant

State Claims. (See

Appendix "B".) 16

ile a

aft «

34096, The Idaho Trial

Court Finds That The

Defendants Have Not Acted

Arbitrarily And That The

Classification Of Theaters

As "Amusement Enter-

prises" Was Not Unreason-

able. 17

D. In Idaho Civil Action No. |

E. The U.S. District Court

Abstains In The Federai

Civil Rights Action No.

4-75-59. 18

F. Tovar And Moore File A

Second Idaho State Court

Action. (Civil Action

No. 34739). (See

Appendix "C".) 19

G. The Second State Court

Action (Civil Action No.

34739) Is Dismissed.

The State Trial Court

Finds That The Same

Issues Are Presently

Pending In The First

State Court Action

(Civil Action No.

34096.) 20

H. The First State Court

Action Is Dismissed

(Civil Action No. 34096).

Tovar And Moore Do Not

Appeal That Final Judg-

ment. 21

-iii-

U.S. District Judge

Callister Dismisses The

Federal Civil Rights

Action No. 4-75-59 On

Abstention Grounds. 21

The Idaho Supreme Court

Affirms The Judgment Of

Dismissal In The Second

State Court Action. (See

Appendix "I".) 22

The Court Of Appeals

Reverses The Dismissal

Of The Civil Rights

Action. (See Appendix

of 22

U.S. District Judge

Callister Grants The

Defendants’ Motion for

Summary ae (See

Appendix "G 22

The Court Of Appeals

Reverses The Summary Judgment

Awarded To The Defendants

And Holds That The City

Council's Motivation

Presents A Litigable

Issue. (See Appendix

“—— . ) 23

Post Judgment Petition

For Rehearing. 24

SUMMARY OF ARGUMENT 26

a i

-iv-

REASONS FOR GRANTING THE WRIT 27

UNDER THE PRINCIPLES ESPOUSED IN

MIDDLESEX COUNTY ETHICS

COMMITIEE V. GARDEN STATE

BAR ASSOCIATION AND OTHER

ABSTENTION CASES, THE NINTH

CIRCUIT WAS REQUIRED TO

ABSTAIN AND DISMISS THE

CIVIL RIGHTS ACTION. 27

A. In Applying The Four Part

Test Sot Forth In Middlesex

County Ethics Assn., The

Federal Court Must Abstain

Tf The First Three Parts

e Test Are Satisfied

e Statute Or

Ordinance Ls Susceptible

Of A aac ational Con-

Struction In The State

Court. it May Onl

TAssume Jaristiction"

ere e allenge

tatute ls agrantl

And Patently Violative

Of Express bometteutional

Beohibitions In Ever

Clause, Sentence End Para-

raph And In Whatever

feanas And Against Whom- |

ever An Effort Might Be

Made To Apply It”. 34 .

-V-

TOVAR AND MOORE'S CIVIL RIGHTS

ACTION FAILS TO STATE A

CLAIM UPON WHICH FEDERAL

RELIEF CAN BE BASED. BOTH

THE DISTRICT COURT'S DISMISSAL

AND SUMMARY JUDGMENT IN FAVOR

OF THE CITY SHOULD HAVE BEEN

SUSTAINED. 53

lil

THE PRINCIPLES EXPRESSED IN THIS COURT'S

JANUARY 23, 1984 DECISION IN

MIGRA v. WARREN CITY SCHOOL

: ET AL.,

ACCORD FULL FAITH AND CREDIT

TO THE FINAL JUDGMENTS WHICH

WERE ENTERED IN FAVOR OF THE

PETITIONERS IN THE IDAHO STATE

ACTIONS FILED BY TOVAR AND MOORE

AND TO DISMISS THEIR FEDERAL

CIVIL RIGHTS COMPLAINT ON RES

JUDICATA AND COLLATERAL ESTOPPEL

PRINCIPLES. 57

UNDER THE PRINCIPLES EXPRESSED BY

THIS COURT IN DISTRICT OF

COLUMBIA COURT OF APPEALS

ET AL. v. FELDMAN, ET is»

THE NINTH CIRCUIT LACKED

JURISDICTION OVER THE SUBJECT

MATTER TO INQUIRE INTO THE

MOTIVATION OF THE CITY

COUNCIL IN ENACTING ZONING

LEGISLATION. 61

-vi-

CONCLUSION 65

INDEX TO APPENDICES

APPENDIX

A State Court Petition To Review

Denial Of Variance filed on |

December 9, 1975 in the District

Court of the Sixth Judicial

District of the State of Idaho, In

and For the County of Bannock,

entitled Deborah A. Moore, v. City

f Pocatello, a Municipal

re)

Corporation of ldaho ; the Cit

Council of said City, consisting of

CG. Billmeyer, Donna Boe, F.W.

"Bill kRoskelle Mel Morgan, John

vans, Les Purce, an ar ond,

being Case No. 34096.

B Federal Court Civil Rights

Complaint (42 U.S.C. §1983) filed

on December 22, 1975, in the United

States District Court, District of

Idaho entitled Joseph Tovar and

Deborah Ann Moore v. C.G.

Billmeyer; M-'’vin Morgan; F.W.

"Bill” Roskelley; John Evans; Les

Purce; Donna boe; Earl Pond; Wayne

is; and the City o ocatello

an Idaho municipal corporation,

being Civil ation CIV 4-75-59.

C State Court Complaint filed on

August 5, 1976, in the District

Court of the Sixth Judicial

District of the State of Idaho, In

and For The County of Bannock

entitled Joseph Tovar and Deborah

Ann Moore v. C.G. Billmeyer; Melvin

Morgan; F.W. “Bill” Roskelley; John

Evans; Les Purce; Donna Boe; Earl

-vii-

Pond; Grant Anderson; Robert

eline; Wayne 1s; and the Cit

of Pocetelto an Idaho municipal

corporation, being Case No. E73

Response and Answer of City of

Pocatello filed on or about April

15, 1980, in the United States

District Court, District of Idaho

entitled Joseph Tovar and Deborah

Ann Moore v. ree Billmeyer; Melvin

Morgan; F.W. “Bill” Roskelley; John

Evans; Les Purce; Donna Boe; Earl

Pond; Wayne Ellis; and the city of

Pocatello, an ldaho municipal

corporation, being Civil Action

Defendants' Motion for Summary

Judgment, filed on or about July

17, 1980 in the United States

District Court, District of Idaho

entitled Joseph Tovar and Deborah

Ann Moore v. C.G. Billmeyer; Melvin

Morgan; F.W. “Bill” Roskelle ; John

vans; Les Purce; Donna Boe; Ear

Pond; Wayne Ellis; and the City of

Pocatello, an Idaho municipal

corporation, being Civil Action CIV

Defendants' Concise Statement of

Material Facts in Support of Motion

for Summary Judgment filed on or

about July 15, 1980, in the United

States District Court, District of

Idaho entitled Joseph Tovar and

Deborah Ann Moore v. C.c.

—_—_—_—

Billmeyer; Melvin Morgan; F.W.

"Bill" Roskelle ; John Evans; Les

Purce; Donna Boe; Earl Pond; Wa

Ellis; and the City of Pocatello,

an ano munic pa corporation,

e€ing Ulivi ction =f 2° °

-viii-

Memorandum and Order of United

States District Judge Marion J.

Callister, filed on or about April

15, 1982, in Joseph Tovar and

Deborah Ann Moore v. C.G.

Billmeyer; Melvin Morgan; F.W.

“BILL” Roskelley; John Evans; Les

Purce; Donna Boe; Earl Pond; Wayne

Ellis; and the City of Pocatello,

an Idaho municipal corporation;

being Civil Action Civ 4-/5-59.

Trial Judgment filed on or about

April 15, 1982 in Joseph Tovar _and

Deborah Ann Moore v. C.G.

Billmeyer; Melvin Morgan; F.W.

“Bill” Roskelley; John Evans; Les

Purce; Donna Boe; Earl Pond; Wayne

Ellis; and the City of Pocatello,

an Idaho municipal corporation;

being Civil Action Civ 4-/5-59.

Opinion of Supreme Court of Idaho

in Joseph Tovar and Deborah Ann

Moore v. ©.G. Billmeyer, Melvin

Morgan, F.W. Bill” Roskelley, John

Evans, Les Purce, Donna Boe, Earl

Pond, Grant Anderson, Robert

Meline, Wayne Ellis, and the City

of Pocatello, an Idaho Municipal

Corporation, No. 12556, 98 Idaho

SOL 575 P.2d 489(Feb. 28, 1978).

Opinion of United States Court of

Appeals, Ninth Circuit, in Joseph

Tovar and Deborah Ann Moore v. F G

Billmeyer, Melvin Morgan, F.W.

“BLLL" Roskelley, John Evans, Les

Purce, Donna Boe, Earl Pond, Grant

Anderson, Robert Meline, Wayne

Ellis, and the City of Pocatello,

an Ldaho Municipal Corporation, No.

77-2929, O09 F. rm 1291 (9th Cir. :

Nov. 6, 1979).

M-2

M-3

-ix-

Opinion of United States Court of

Appeals, Ninth Circuit, in Joseph

Tovar and Deborah Ann Moore v. C.G

Billmeyer; Melvin Morgan; F.W.

“Bill” Roskelley; John Evans; Donna

Boe; Wayne Ellis; and Ihe City of

‘Pocatello, an Idaho Municipal

Corporation, No. 82-3258, /21 F.2d

1260 (Sth Cir., Dec. 15, 1983).

Judgment of United States Court of

Appeals, Ninth Circuit, in Joseph

Tovar and Deborah Ann Moore v. me

Billmeyer; Melvin Morgan; F.W.

Bill” Roskelley; John Evans; Donna

Boe; Wayne Ellis; and The City of

Pocatello, an Idaho Municipal

Corporation, No. 82-3258 (DC CV

-/35- ), filed and entered

Dec. 15, 1983.

Petitioners’ “SUGGESTION FOR EN

BANC CONSIDE:.ATION", filed on or

about Dec. 22, 1983.

Petitioners’ "SUPPLEMENTAL

SUGGESTION, PETITION FOR REHEARING,

and REQUEST FOR HEARING EN BANC",

filed on or about Jan. 31, 1984.

Petitioners’ "Motion To Enlarge The

Time For Filing And To Late File

The SUPPLEMENTAL SUGGESTION,

PETITION FOR REHEARING, and REQUEST

FOR HEARING EN BANC", filed on or

about Feb. 3, 1983.

Order of United States Court of

Appeals, Ninth Circuit, in Joseph

Tovar and Deborah Ann Moore v. ome

Billmeyer; Melvin Morgan; F.W.

“Bill” Roskeliley; John Evans; Donna

Boe; Wayne Ellis; and The City of

-X-

Pocatello, an Idaho Municipal

Corporation, No. 82-3258, filed

Pe 4, that a majority of

the panel had voted to reject the

suggestion for rehearing en banc.

Order of United States Court of

Appeals, Ninth Circuit, in Joseph

Tovar and Deborah Ann Moore v. C.G

Billmeyer; Melvin Morgan; F.W.

“Bill” Roskeller fares John Evans;

Donna Roe (sic); Wayne Ellis; and

The City of Pocatello, an Idaho

Municipal Corporation, No. 82-3258,

filed Fob: 21, 1984, denying

Appellees' Motion To Enlarge The

Time for Filing And To Late File

The Supplemental Suggestion,

Petitic.. for Rehearing, and Request

For Hearing En Banc.

United States Constitution

First Amendment

Fourteenth Amendment

Article IV, §1l

United States Code

£6 U.sScus, BLioe

42 U.S.C., §1983

Federal Rules of Appellate

Procedure

Rule 35

Rule 40

§67-5215

§67-5216

-xi-

TABLE OF AUTHORITIES

CASES

Aldridge, et al. v. Williams,

5. Bow. 80 O.8.‘ 9, 3s bs ee.

469 (1845). 62

Allen v. McCurry, 449 U.S. 27, 20

90 (Dec. 9, 1980). ae, 30, 60

Berman v. Parker, 348 U.S. 26

(1954). 30

Colorado River Water Cons. Dist.

v. Bab. >. G20 U8» 800. 87

L.£@.2¢6 463, 96 $.Ct. 1236

(1976). 33

District of Columbia Court of

Appeal v. Feldman, et al.,

U.S. se L.Ed.2d

206 at 225 (Mar. 23,

1983). a3, 61, 63

Dombrowski v. Pfister, 380

U.S. 479 at 490 —— Be, S42

Ebel v. City of Corona, 698

F.2d 390 (9th Cir.,

1983). ae, 29, 61, 62

England v. Louisiana State

Board of Medical

Examiners, 375 U.S.

411, 11 L.Ed.2d 440,

84 $.Ct. 461 (1964). 7

Huffman v. Pursue, Ltd., 420 34, 35

U.S. 592 (1975). 36, 37, 40

-xii-

Hughes Tool Co. v. Trans

World Airlines,

409 U.S. 363. 1

Juidice v. Vail, 430 U.S. 327

(Mar. ZZ, i377). 35

Juncker v. Tinney III, 549

F.Supp. 574. 54

Martinez v. California, 444 U.S.

277 (1980). 54

Mercer v. Theriot, 377 U.S. 152 1

Metromedia, Inc. v. San

Diego, 453 U.S. 46, 47

490 (1981). 48, 49, 50

Middlesex County Ethics Committee,

etc. v. Garden State Bar Assn.,

et: Shs 4 457 U.S. 423

(June 21, 1982). oF ans ae

3h, eeeia

40, 41, 43

44, 51

Migra v. Warren City School

District Board of Education,

ef Gis, U.S. .

79 L.Ed.2d 56 at 64, 73 °oe- ae

fa. 7, 309 8.48.) -* oe

(Jan. 23, 1984). 59, 60

Moore v. Sims, 442 U.S. 415

(June 11, 1979) 36

Ohio Bureau of Employment

Services v. Hodory,

431.0.8: 471 (3977). 34, 43

Parratt v. Taylor, 451 U.S.

527 (1981). a ae

-xiii-

People ex rei. Pusch v.

Projection Room Theater,

17 Cal.3d 55 44, 45

Railroad Commission of Texas

v. Pullman Co., 312 U.S.

496 (1941). + Phe I

Reese v. Georgia, 350 U.S. 85 1

Scoggin v. Schrunk, 522 F.2d

436 (9th Cir. 1975). ay, oF

Spokane Arcades, Inc. v.

Brockett, 631 F.2d 135

(9th Cir., 1980), af-

firmed, 102 S.Ct. 557

(1981). 48, 49, 50, 51

Stecher v. Askew, 432 F.Supp. 997

(1977). 41, 42

Tilton v. Richardson, 403 U.S.

672 46

Tovar v. Billmeyer, 98 o« ae

Idaho 891. 58, 59

Tovar v. Billmeyer, 609 F.2d

1291 22

Tovar v. Billmeyer, 721 F.2d

1260 ag; 23

Trainor v. Hernandez, 431 U.S. 434

(May 31, 1977). 305.30; 37

U.S. v. Thirty-Seven Photo-

graphs, 402 U.S. 363

(1971). 44, 45

U.S. v. United Mine Workers

of America, 330 U.S.

258 (1974). . 43

-xiv-

Urie v. Thompson, 337 U.S. 163

Vickory v. Walton, 721 F.2d

1062 (CA 6th, Nov. 30,

1983). ao,

Village of Belle Terre v.

Boraas, 416 U.S. 1 (1974).

Young v. American Mini

Theaters, 427 U.S. 50

(1976).

Younger v. Harris, 401 U.S. 37

(1971). a7, aaa" ars

STATUTES, ETC.

U.S. Constituticn, Article IV, §1l

28 U.S.C. §1254(1)

28 U.S.C. §1738

42 U.S.C. §1983 ee eee eee

Federal Rules of Appellate

Procedure, Rule 35

Federal Rules of Appellate

Procedure, Rule 40

Idaho State Constitution

Article V, §1l

Idaho Code §67-5215 6,

Idaho Code §67-5216 6,

Idaho Code §67-6519 6,

—

-xXVe-

TEXTS

Los Angeles Daily Law Journal,

November 19, 1982. 52

McQuillan, Municipal Corporations (3d

Ed.), Vol. 2 and Vol. 5. 62

Stern and Gressman, Supreme Court

Practice (5th Ed.). rs Oo

Sutherland, Statutory Construc-

tion, Vol. ZA, §48.17. 62

= No. 83-

in the

Supreme Court of the Anitrd States

October Term, 1983

C.G. BILLMEYER, MELVIN MORGAN, F.W.

“BILL” ROSKELLEY, JOHN EVANS, DONNA BOE,

WAYNE ELLIS, and the CITY OF POCATELLO,

an Idaho Municipal Corporation,

Petitioners,

JOSEPH TOVAR and DEBORAH ANN MOORE,

Respondents,

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Petitioners respectfully pray that

a writ of certiorari be issued to review

both’ ; (1) the judgment and opinion of the

United States Court of Appeals for the Ninth

Circuit in Joseph Tovar and Deborah Ann

Moore v. C.G. Billmeyer, Melvin Morgan, F.W.

¥ See Supreme Court Practice, Fifth Edition, by

Stern and Gressman at pg. 403, citing Hughes Tool Co.

ve Trans World Airlines, 409 U.S. 363, 365, fn. 1;

Urie v. Thompson, 337 U.Se 163, 171-173; Reese v.

Georgia, 350 U.S. 85, 87; Mercer v. Theriot, 377 U.S.

152, 153-154.

« -2-

"Bill" Roskelley, John Evans, Donna Boe,

Wayne Ellis, and the City of Pocatello, an

Idaho Municipal Corporation, C.A. No. 82-

3258, which sustained the Plaintiffs' appeal

from the trial court's Judgment and

Memorandum and Order of April 15, 1982,

granting Defendants’ motion for summary

judgment and denying Plaintiffs’ motion for

summary judgment; and (2) the judgment and

opinion of the United States Court of

Appeals for the Ninth Circuit in Joseph

Tovar and Deborah Ann Moore, v. C.G.

Billmeyer, Melvin Morgan, Pw. “mali”

Roskelley, John Evans, Les Purce, Donna Boe,

Earl Pond, Wayne Ellis, and_the City of

Pocatello, an Idaho Municipal Corporation,

Cis No. 77-2929, which sustained the

Plaintiffs' appeal from the trial court's

Judgment and Memorandum and Order of June 7,

1977, granting Defendants' motion to dismiss

the civil rights complaint on abstention

grounds.

OPINIONS BELOW

The opinion of the United States Court

Of Appeals for the Ninth Circuit in Joseph

Tovar and Deborah Ann Moore v. C.G.

Billmeyer, et al., C.A. NO. 82-3258, is

reported in 721 F.2d 1260 (Dec. 15, 1983).

A copy of the opinion and judgment appears

in this Petition at Appendix K and L. A

copy of the Memorandum and Order, and

Judgment of United States District Judge

Marion J. Callister in the same case (Civil

Action Civ. 4-75-59), filed on April 15,

1982, appears in this Petition at Appendix G

and H. |

The opinion of the United States Court

Of Appeals for the Ninth Circuit in Joseph

Tovar and Deborah Ann Moore v. C.G.

Billmeyer, et al., C.A. No. 77-2929 is

reported in 609 F.2d 1291 (Nov. 6, 1979) and

appears in this Petition at Appendix J.

The opinion of the Idaho Supreme Court

in Joseph Tovar and Deborah Ann Moore v.

C.G. Billmeyer, et al., Civil No. 12556

(Idaho District Court Case No. 34739) is

reported in 98 Idaho 891 and appears in this

Petition at Appendix I.

JURISDICTION

The opinion of the Court of Appeals for

the Ninth Circuit in Joseph Tovar _ and

Deborah Ann Moore v. C.G. Billmeyer, et al.,

C.A. 82-3258 was filed on December 15, 1983.

On December 22, 1983, Petitioners filed

a “Suggestion for En Banc Consideration".

On January 31, 1984, Petitioners filed a

"Supplemental Suggestion, Petition for

Rehearing, and Request for Hearing En Banc".

On February 3, 1984, Petitioners filed a

"Motion To Enlarge the Time For Filing And

To Late File the Supplemental Suggestion,

Petition for Rehearing, and Request for

Hearing En Banc". A copy of said pleadings

appears herein at Appendix M. A copy of the

orders of the Court of Appeals thereon,

filed on February 7, and February 21, 1984,

=S—

appears at Appendix WN and OQ.

On May 4, 1984, Associate Justice W. H.

Rehnquist signed an order extending the time

for filing a petition for certiorari to and

including June ll, 1984, without prejudice

to the Court's later consideration of

whether the time for filing the petition for

certiorari runs from the order of the United

States Court of Appeals for the Ninth

Circuit on February 7, 1984 or from the

Opinion and judgment of the United States

Court of Appeals for the Ninth Circuit on

December 15, 1983. This Court's jurisdic-

tion is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The text of the following statutes,

Ordinances, and constitutional provisions

are set forth at Appendix P:

U.S. Const., 1st Amend., 14th Amend.,

Art. IV, §1; 28 U.S.C. § 1738, 42

U.S.C. S 1983; F.R.A.P. 35. F.R.A.P.

40; Idaho Code § 67-6519, § 67-5215 and

§ 67-5216.

STATEMENT OF THE CASE

Petitioners contend that the Court of

Appeals for the Ninth Circuit (hereinafter

"Ninth Circuit") has unlawfully interfered

with the City of Pocatello's right to

adjudicate an important state interest 2’ in

accordance with state law and state judicial

procedures.

The Idaho statutes (Idaho Code §§ 67-

6519, 67-5215 and 67-5216) provide a

specific procedural remedy for resolving

zoning disputes. In addition to requiring

the filing of a claim, the State of Idaho

exercises judicial economy by preventing the

splitting of causes of action under the

state's "single controversy doctrine"

(Article V, § 1. Idaho State Constitution)

and its rule of law which instructs a party

that if he fails to join his causes of

Fd Ie., a zoning interest arising out of

enforcement of a zoning ordinance which was enacted

pursuant to an Idaho enabling statute. See text at

page 30 et seq.

oT=

action, he proceeds at his peril because a

"judgment is conclusive as between the

parties and their privies on all issues

which were (or should have been) litigated

in the action." (our emphasis.) Tovar v.

Billmeyer, 98 Idaho 891.

Initially, Tovar and Moore elected to

proceed with a lawsuit in the State Court

system a

under the specific procedural

remedy the State of Idaho has provided.

Thereafter, in the two appeals noted above,

Ninth Circuit permitted Tovar and Moore to

frustrate the above described state policies

by assuming federal jurisdiction under the

guise of a civil rights violation (42 U.S.C.

§ 1983), and against the City of Pocatello's

claim that federal jurisdiction did not lie

2/ This is not a case which is controlled by

England Ve Louisiana State Board of Medical

Examiners, 375 U.S. 411, 11 LeEd.2d 440, 84 S.Ct. 461

(1964). See Associate Justice Blackmun's opinion in

Migra ve Warren City School District Board of

Education, et al., U.S- , 79 LeEd.2d 56 at 6x,

fn. 7, 104 S.Ct. (Jan. 23, 1984).

because of: (1) failure to state a claim

upon which relief can be based; (2) lack of

federal jurisdiction; (3) abstention, and

(4) election of remedies. In both appeals,

the U.S. District Court had rendered

judgment in favor of the City's claims.

As a result of such federal interfer-

ence the City, in 8 1/2 years of litigation,

has been required to undertake the burden of

two federal trials and appeals therefrom, in

addition to the two state lawsuits it has

successfully defended and prosecuted to

final judgments. In addition, the City

faces a third federal lawsuit if this

petition for certiorari is unsuccessful.

After the City of Pocatello had

prevailed on the merits in both state

lawsuits, the Ninth Circuit refused to

accord full faith and credit to the final

judgments which were entered in such state

litigation, in violation of Article IV, §l

of the U.S. Constitution, as implemented by

= Ge

the Federal Full Faith and Credit Statute,

28 U.S.C. § 17384’ That statute reads in

pertinent part:

"Such Acts, records and judicial

proceedings or copies thereof, so

authenticated, shall have the same full

faith and credit in every court within

the United States and its Territories

and Possessions as they have by law or

usage in the courts of such State,

Territory or Possession from which they

are taken."

Petitioners herein contend that such refusal

is contrary to this Court's recent judgment

in Migra v. Warren City School District

Board of Education, et al., U.S. , 79

L.Ed.2d 56 (Jan. 23, 1984), which hold that

a final judgment of a state court has the

same preclusive effect as to a federal issue

in a federal court § 1983 action that the §

1983 litigant could have raised but did not

raise in the earlier state court proceeding.

In arriving at a contrary result, the

¥ The final judgment in Idaho Civil Action 34096

was the City Council had not acted arbitrarily and

the classification of theaters as “amusement

enterprises" was not unreasonable. See Statement of

Facts, infra, at page 17. See also Appendix I-12, et

Sede

-10-

Ninth Circuit applied a rule of law newly

expressed in Ebel v. City of Corona, 698

F.2d 390, 392 (9th Cir., 1983) which was

neither briefed nor argued by the parties,

that, notwithstanding the City's zoning

ordinance was constitutional on its face,

the enactment of the same could give rise to

a federally created right if the “motiva-

tion" of the City Councilmen was bad. Tovar

v. Blllmeyer, 721 F.2d 1260 at 1265, fn. 5,

appearing herein at Appendix K-19. See

Point IV, infra, at page 6l.

Petitionecs contend that the questions

herein are important and should be resolved

because they present problems which are

plaguing Municipal government at the present

time. See, for example, the zoning cases

cited in Tovar, et al. v. Billmeyer, et al.,

721 F.2d 1260 at 1264 et seq., which appears

herein at Appendix K-ll et seq.

@) ke

STATEMENT OF FACTS

A. Background History

May 19, 1972 = August 31, 1975: Joseph

Tovar and Deborah Ann Moore = leased and

operated an adult bookstore and motion

picture theater at 135 South Main ina

Commercial Central Zone. According to the

statement of Tovar's counsel on December 5,

1980, such land use was pursuant to a

conditional use permit issued May 19, 1972.

September 4, 1975 (on or about): Tovar

and Moore were evicted from 135 South Main

by the landlord and sued for rent.

August 28, 1975: A deed on property at

250 North Main, used to retail childrens'

clothes under the name of "Jack and Jill

Shop" is acknowledged by the grantor before

2/ The Opposition to Motion For Summary Judgment

filed by Tovar and Moore on or about August 11, 1980,

provides at page 8, lines 4-8, “These Plaintiffs

while never having had the benefit of a formal

marrizge ceremony have resided together for many

years and have had several children together, and are

husband and wife, in fact. Moreover, they are

business partners. See depositions of Joseph Tovar

and Deborah Ann Moore."

-12-

a notary public. The property was purchased

in the name of Deborah Moore. Joint funds

of $5,000.00 were used for the down payment.

September 1, 1975: Tovar and Moore took

possession of the "Jack and Jill Shop" at

250 North Main and hired an architect for

structural changes to the building for use

aS a motion picture theater.

September 2, 1975: Under the Pocatello

Zoning Code, only those uses mentioned in

the permitted use list are proper. Uses not

specifically mentioned may be authorized by

conditional use or variance. At a September

2, 1975 meeting, the City Council noted that

the list of permitted uses in the Commercial

Central Zone cid not expressly allow “motion

picture theaters". On that date, the City

Council "“interpreted" the Zoning Code to

provide that indoor motion picture theaters

are "amusement enterprises", and are allowed

in the Commercial Highway and Industrial

zones.

September 5, 1975: Tovar and Moore

quit the premises at 135 South Main.

September 10, 1975: Moore applied for

a building permit to remodel the "Jack and

Jill Shop" into a motion picture theater.

September 17, 1975: Moore applied for

a conditional use permit to operate a

"amusement enterprise" (private adult book-

store and theater) in the Commercial Center

Zone at 250 North Main Street.

October 8, 19753 The Board of

Adjustments granted Deborah Moore's

conditional use application.

October 23, 1975: The Pocatello City

Council heard an appeal on the decision by

the Board of Adjustments, filed by the

members of the Downtown Merchants. The City

Council voted 5-2 to overturn the decision

of the Board of Adjustments with Councilmen

Puree and Pond voting "No".

October ai, 1975: Deborah Moore

applied for and was granted a permit to

-l14-

remodel the property at 250 North Main

Street as a "new bookstore and photo

studio".

B. The Initial Controversy In The

Idaho Court (Civil Action No. 34096).

Tovar and Moore Elect To Proceed In The

State Court System Under The Procedural

Remedy Which The State Of Idaho Has

Provided. (See Appendix "A". )

December 9, 1975: Deborah A. Moore

filed state court civil action No. 34096,

entitled "Petition To Review Denial of

Variance", alleging jurisdiction pursuant to

Idaho Code § 67-6519 and violations of the

Idaho Constitution. The concluding

paragraph of § 67-6519 provides:

"An applicant denied a permit or

aggrieved by a decision may within

sixty (60) days after all remedies have

been exhausted under local ordinance

seek judicial review under the proce-

dures provided by sections 67-5215(b)

through (g) and 67-5216, Idaho Code."

§ 67-5215 provides in its pertinent part:

fk? Re In cases of alleged

irregularities in procedure before the

agency, not shown in the record, proof

thereon may be taken in the court. The

court, upon request, shall hear oral

argument and receive written briefs."

alGe

"(g) .. . The court may reverse or

modify the decision if substantial

rights of the appellant have _ been

prejudiced because the administrative

findings, inferences, conclusions, or

decisions are:

(1) in violation of constutution-

al or statutory provisions;

(2) in excess of the statutory

authority of the agency;

(3) made upon unlawful procedure;

(4) affected by other error of

law;

(5S) clearly erroneous in view of

the reliable, probative, and

substantial evidence on the whole

record; or

(6) arbitrary or capricious or

characterized by abuse of

discretion or clearly unwarranted

exercise of discretion."

§ 67- 5216 authorizes an appeal to the Idato

Supreme Court, providing in part:

"Appeals.-- An aggrieved party may

obtain a review of any final judgment

of the district court .. . by appeal

to the Supreme Court. The appeal shall

be taken in the manner provided by law

for appeals from the district court in

other civil cases... ."

State Civil Action No. 34096 requested re-

view of the City Council's determination and

olSe

that the decision of the City Council be:

"reversed, annuled, and set aside and

the decision of the Board of

Adjustments reinstated, Or in the

alternative ... 2. That the Court

direct an order to the City Council to

issue Petitioner a conditional use

permit; and 3. Such other and further

relief as may be just and proper."

C. Tovar And Moore File A Duplicative

Civil Rights Action in The U.S.

District Court (Civ. 4-75-59), Alleging

Both Constitutional Violations And

Pendant State Claims. (See Appendix

“B*)

December 22, 1975: Joseph Tovar and

Deborah Ann Moore filed federal civil action

4-75-59, entitled "Complaint (Injunction;

Declaratory Judgment; Damages)", alleging at

paragraph l:

"The jurisdiction of this Court is

invoked under Title 28, United States

Code, Section 1343; Title 28, United

States Code, Section 1331; and, the

doctrine of pendent jurisdiction. This

action arises under the First, Fifth

and Fourteenth Amendments to the

Constitution of the United States of

America and Title 43, United States

Code, Section 1983, and State law. The

amount in controversy exceeds Ten

Thousand ($10,000.00) Dollars, exclu-

sive of interest and costs."

a) Fa

D. In Idaho Civil Action No. 34096,

The Idaho Trial Court Finds That The

Defendants Have Not Acted Arbitrarily

And That The Classification Of Theaters

As “Amusement Enterprises" Was Not

Unreasonable.

December 30, 1975: The trial court in

State Civil Action No. 34096 issued a

T.R.O., restraining Moore from showing

films, Operating a theater, or any other

activity at 250 North Main in violation of

the City of Pocatello Zoning Ordinance 1567.

January 13, 1976: In a Memorandum and

Order in State Civil Action No. 34096,

District Judge Arthur P. Oliver, after a

hearing, enjoined pendente lite Deborah

Moore from showing films or operating a

theater at the premises known as 250 North

Main Street in Pocatello, Idaho. .

February ll, 1976: Following trial,

the State District Court in State Civil

Action No. 34096 found and determined that

the City Council hae not acted arbitrarily,

Capriciously or in abuse of discretion by

denying the conditional use permit and that

-lt-

the classification of theaters as amusement

enterprises was not unreasonable. The Court

held that the procedures followed in the

October 23, 1975 Council meeting were

improper in that the meeting was conducted

as a public hearing and considered new

evidence rather than being conducted as a

review of the evidence submitted before the

Zoning Board and remanded the case to the

Council for further consideration and

retained continuing supervisory jurisdic-

tion.

March 18, 1976: The Pocatello City

Council (composed of two different members

recently elected) held hearings and again

voted to deny a conditional use.

E. The U.S. District Court Abstains

In The Federal Civil Rights Action, No.

4-75-59.

April 12, 1976: The U.S. District

Court in Civil Action 4-75-59 abstained and

suggested that, because of concurrent

jurisdiction of the state court to enforce

@19@

42 U.S.C. § 1983, the Plaintiffs should

bring all their claims under federal and

Idaho law in Idaho state court.

July 23, 1976: Defendants filed a post

abstention motion for outright dismissal.

F. Tovar and Moore File A _ Second

Idaho State Court Action. (Civil

Action No. 34739) (See Appendix "C".)

August 5, 1976: Joseph Tovar and

Deborah Moore filed State Civil Action No.

34739 (4 counts) seeking monetary and

injunctive relief against the City Council-

men and the City of Pocatello and seeking an

order declaring the Zoning Ordinance tc be

unconstitutional and invalid, or in the

alternative that the ordinance was inappli-

cable to indoor motion picture theaters; or

that an indoor motion picture theater was a

permitted use at 250 North Main; and for

reinstatement of the October 8, 1975

decision of the Board of Adjustment. The

body of the Complaint limits its allegations

to a claim that the zoning ordinance on its

~20e

face and as applied violates the provisions

of the Constitution of the State of Idaho.

(See Appendix no") Paragraph 8 of the

prayer, however, prays:

"8. for such other and further relief

as the Court deems just and equitable."

G. The Second State Court Action

(Civil Action No. 34739) Is Dismissed.

The State Trial Court Finds That The

Same Issues Are Presently Pending In

The First State Court Action (Civil

Action No. 34096).

December 16, 1976: Idaho District

Court Judge Arthur P. Oliver dismissed State

Case No. 34739. As to Counts I, III and IV,

the court stated that:

"this same theory was presented to the

District Court in the case of Moore v.

City of Pocatello, et _al., Bannock

County Civil Case No. 34096. This

Court has thoroughly reviewed that file

and determines that that particular

issue is still before Judge Hargraves

in the last numbered case... The

file is still open and this Court will

not consider issues in the present case

which duplicate the issues in Case No.

34096. Plaintiffs must proceed to a

conclusion Case No. 30496 insofar as

the issues therein raised."

~ een Peto.

atle

H. The First State Court Action Is

Dismissed (Civil Action No. 34096).

Tovar And Moore Do Not Appeal That

Final Judgment.

January 26, 1977: After a hearing on

January 24, District Judge George Hargraves

dismissed State Civil Action No. 34096 with

prejudice upon a finding that the defendant

City Council had fully complied with the

Court's earlier orders dated February 1, and

February 11, 1976; and that the Plaintiff

Moore did not object or seek further review

to the Court. Respondents did not appeal

that judgment.

I. U.S. District Judge Callister

Dismisses The Federal Civil Rights

Action No. 4-75-59 On Abstention

Grounds.

June 7, 1977: On a renewed application

in Civil Action 4-75-59, U.S. District Judge

Marion J. Callister ordered outright dis-

missal of the pending federal claims on the

Younger-Huffman type of abstention.

af~

J. The Idaho Supreme Court Affirms

The Judgment Of Dismissal In The Second

State Court Action. (See Appendix I.)

February 28, 1978: On appeal, the

judgment of dismissal in State Case No.

34739 was affirmed by the Idaho Supreme

Court in Tovar v. Billmeyer, 98 Idaho 891,

575 P.2d 489. (See Appendix I.)

K. The Court Of Appeals Reverses The

Dismissal Of The Civil Rights Action.

(See Appendix J.)

November 6, 1979: Upon appeal, the

Ninth Circuit in Tovar v. Billmeyer, 609

F.2d 1291, reversed U.S. District Court

Judge Callister's judgment of dismissal in

Civil Action 4-75-59 on the ground that the

plaintiffs had not made an unreserved

submission of all their federal claims to

the state court, and could not be barred

from returning to federal court with those

claims. (See Appendix J.)

L. U.S. District Judge Callister

Grants The Defendants’ Motion For

Summary Judgment. (See Appendix G.)

April 15, 1982: Upon remand of Civil

a2Za

Action 4-75-59, U.S. District Court Judge

Marion J. Callister granted the defendants'

motion for a summary judgment and denied the

plaintiffs' motion for a summary judgment.

(See Appendix G.)

M. The Court Of Appeals Reverses The

Summary Judgment Awarded To The

Defendants And Holds That The City

Council's Motivation Presents A

Litigable Issue. (See Appendix K.)

December 15, i983: Upon appeal, the

Ninth Circuit in Tovar, et al. v. Billmeyer,

et al., 721 F.2d 1260 reversed U.S. District

Court Judge Marion J. Callister's summary

judgment in Civil Action 4-75-59 on its

finding that a fact issue existed as to

whether the City's actions may have been

motivated by a desire to suppress protected

First Amendment expression. (See Appendix

K.) The Ninth Circuit noted as to the state

ruling at footnote 3:

"3. The state court ultimately decid-

ed, as a matter of law, that the City

Council had not acted arbitrarily or

abused its discretion by interpreting

‘amusement enterprises' to include

indoor motion picture theaters."

~24-

and held in that regard at footnote 5:

"5. We do not suggest that the Idaho

state court was incorrect in concluding

that the term ‘amusement enterprises'

was susceptible to an interpretation

that included movie theaters. Nor do

we disagree that, as a matter of state

law, the interpretation was a reason-

able one. See note 3, supra. The

issue here, however, is whether the

Council's decision to interpret

‘amusement enterprises' for the first

time at the September 2nd meeting was

unconstitutionally motivated."

N. Post Judgment Petition For

Rehearing.

December 22, 1983: Petitioners filed

their “Suggestion for En Banc Consideration"

(Rehearing) on the "Ebel" rule of law which

had surfaced for the first time. (See

Appendix M-l et seq.)

January 31, 1984: Petitioners filed

their “Supplemental Suggestion, Petition for

Rehearing, and Request for Hearing En Banc",

citing Migra v. Warren City School District

Board of Education, et al., U.S. » e2

L.Ed.2d 56, decided by this Court on January

23, 1984 (See Appendix M-5 et seq.)

February 3, 1984: Petitioners filed a

-25-

"Motion To Enlarge the Time for Filing and

To Late File the Supplemental Suggestion,

Petition for Rehearing, and Request For

Hearing En Banc" (See Appendix M-13 et seq.)

February 7, 1984: The Ninth Circuit

filed an Order rejecting the suggestion for

rehearing En Banc (See Appendix N.)

February 21, 1984: The Ninth Circuit

filed an Order denying "Motion To Enlarge

the Time For Filing and To Late File the

Supplemental Suggestion, Petition for

Rehearing, and Request For Hearing En Banc"

(See Appendix O. )

May 4, 1984: Associate Justice William

H. Rehnquist signed an order extending the

time for filing a petition for writ of

certiorari to and including June ll, 1984.

SUMMARY OF ARGUMENT

A federal court must dismiss a 42

U.S.C., §1983 action where: (1) a state

court action is pending; (2) an

étiu

important state interest (zoning) is

"implicated;" (3) the constitutional

claims can be raised in the State

proceeding; and (4) the record

establishes an absence of bad faith

harassment etc. Middlesex County Ethics

Committee, 457 U.S. 23 (1982).

Congress never intended to create

federal jurisdiction and a 1983 cause of

action where the state courts were

available and would allow full

litigation of all constitutional claims.

It can no longer be claimed that every

person is entitled to one unencumbered

opportunity to litigate a 19835 right in

a federal district court Allen v.

McCurry, 449 U.S. 90 (1980).

A federal district court has

jurisdiction to decide jurisdiction.

Where a defendant is able to satisfy the

four-part test of Middlesex County

Ethics Committee, the federal court may

~26a-

not assume jurisdiction of the 1983

federal claims. The state court must be

allowed to adjudge the important state

interest, apply presumptions, construe

legislation to avoid serious

constitutional doubt, save the

legislation through statutory

construction or severence etc., if

necessary.

The critical interplay of state and

federal powers in 1983 litigation and

resulting dilemma is poignantly

iliustrated by the differing results

which were reached in Spokane Arcades,

Inc. v. Brockett, 454 U.S. 1022 (1982)

and Metromedia Inc. v. San Diego, 453

U.S. 490 (1981). This Court should

resolve this dilemma and fashion a

procedural rule which will allow

governmental bodies to litigate 1983

actions implicating important’ state

interests in an efficient matter in a

-26b-

state court.

Congress never intended to create a

1983 cause of action where the state

system allowed "due process" litigation

of constitutional questions Allen v.

McCurry, 449 U.S. 90 (1980), Parratt v.

Zavior, “353i U.S. S27 . (2963). The

principle inquiry is not "abstention"

ond "exhaustion" of state judicial

remedies" but whether the plaintiff has

stated a cause of action. See Vickory

v. Walton, (721 F.2d 1062, C.A.6, 1983)

which required a 1983 plaintiff to plead

and prove both the substantive wrong and

the inadequacy of the state corrective

procedure.

Under Migra, 79 L.Ed.2d 56 (1984),

the preclusive effect of Idaho judgments

is determined by Idaho Law. In Idaho, a

judgment is conclusive as between the

parties and their privies on all issues

-26c-

which were or should have been litigated

in the action and bars relitigation of

the same issues in a civil rights

action.

The Ninth Circuit opinion was

grounded on the Ebel rule of law, which

was neither briefed nor argued in the

appeal. The petition for rehearing en

banc should have been granted. The Ebel

rule is fallacious: "Motivation" of

City Councilmen may not be inquired

into, unless bad faith, fraud, etc. are

shown. Further, the federal court's

assumption of jurisdiction on that issue

is a collateral attack on the Idaho

judgment, and is barred. District of

Columbia Court of Appeal v. Feldman, 75

L.Ed.2d 206, 225 (1984).

The time for filing the petition

for writ of certiorari began on Feb. 7,

1984 with the Ninth Circuit's order

denying the petition for rehearing en

banc. Rule 20.4.

o2%ea

REASONS FOR GRANTING THE WRIT

UNDER THE PRINCIPLES ESPOUSED IN MIDDLESEX

COUNTY ETHICS COMMITTEE V. GARDEN STATE

BAR ASSOCIATION AND OTHER ABSTENTION

CASES, THE NINTH CIRCUIT WAS REQUIRED

TO ABSTAIN AND DISMISS THE CIVIL RIGHTS

ACTION.

In Middlesex County Ethics Committee,

etc. v. Garden State Bar Assn., et al., 457

U.8. 423 (June 21, 1982), disciplinary

proceedings were instituted by the local

committee of the New Je.sey disciplinary

System against an attorney based upon an

allegation of unethical conduct. Upon

filing of a formal statement of charges, the

respondent refused to answer, but instead

filed suit in the United States District

Court contending that the disciplinary rules

violated his First Amendment right of free

speech. The District Court granted the Bar

Association's Motion to Dismiss based on

Younger v. Harris, 401 U.S. 37 (1971), but

the Court of Appeals reversed. On appeal,

the majority of this Court held that

~2Ge

abstention was mandated, under the general

principles previously expressed by this

Court, “when important state interests are

involved." See Middlesex County Ethics

Committee, supra, at page 124 where this

Court noted:

"The policies underlying Younger

are fully applicable to noncriminal

judicial proceedings when important

state interests are involved. Moore v.

Sims, 442 U.S. 415, 423, 60 L.Ed.2d

994, 99 S.Ct. 2371 (1979); Huffman v.

Pursue, Ltd., 420 U.S. 592, 604-605, 43

L.Ed.2d 482, 95 S.Ct. 1200 (1975). The

importance of the state interest may be

demonstrated by the fact that the

noncriminal proceedings bear a close

relationship to proceedings criminal in

nature, as in Huffman, supra. Proceed-

ings necessary for the vindication of

important state policies or for the

functioning of the state judicial

system also evidence the state's

substantial interest in the litigation.

Trainor v. Hernandez, 431 U.S. 434, 52

L.Ed.2d 486, 97 S.Ct. 1911 (1977);

Juidice v. Vail, 430 U.S. 327, 51 L.Ed.

376, 97 S.Ct. 1211 (1977). Where vital

State interests are involved, a federal

court should abstain ‘unless state law

Clearly bars the interposition of the

constitutional claims." Moore, supra,

at 426, 60 L.Ed.2d 994, 99 S.Ct. 2371.

"(Tihe . « « pertinent inquiry is

whether the state proceedings afford an

adequate opportunity to raise the

constitutional claims. ...' Id., at

430, 60 L.Ed.2d 994, 99 S.Ct. 2371.

=29~=

See also Gibson v. Berryhill, 4l1l U.S.

564, 36 L.Ed.2d 488, 93 S.Ct. 1689

(i973).*

Petitioners contend that the Middlesex

County Ethics Committee case at pages i24-

126, enunciates a four part test for Federal

Court abstention in non-criminal proceedings

involving important state interests, which

controlled the discretion of the Ninth

Circuit below and required it to dismiss the

federal action herein. Under the Middlesex

County Ethics Committee majority opinion,

the Ninth Circuit's refusal to abstain in

the first appeal in C.A. No. 77-2929 (see

Appendix J) constitutes abuse of discretion

which should be corrected upon this appeal.

See footnote 1 on page l, supra.

Simply stated, the Middlesex County

Ethics Committee four part test is:

l. Is a State action pending?

2. Do the proceedings implicate

important state interests (i.e.,

are important State policy

questions involved?)

3. Can the constitutional challenges

=30=

be raised in the state court?

4. Is there a showing of bad faith,

harassment or some other extraor-

dGinary circumstance which would

make abstention inappropriate?

The record herein clearly demonstrates that

the Middlesex County Ethics Committee four

part test has been satisfied and that

abstention is mandated:

l. A State Action was pending. Tovar

and Moore themselves elected to pursue the

state court remedy.

26 The state court proceedings impli-

cated important state interests (zoning).

This Court has previously expressed its

attitude toward local zoning. In Berman v.

Parker, 348 U.S. 26, 33 (1954), the Court

held that land use regulations may promote

‘values [which] are spiritual as well as

physical, aesthetic as well as monetary.’

In Village of Belle Terre v. Boraas, 416

U.S. 1, 9 (1974), the Court said that zoning

could be used to create and promote living

areas that protect ‘family values’ [and]

a3le

youth values. In his plurality opinion in

Young v. American Mini Theaters, 427 U.S. 50

(1976), Associate Justice Stevens referred

to the City's zoning interest at page 7l, as

"one that must be accorded high respect."

In his concurring opinion in Young, supra,

at page 80, Associate Justice Powell noted

that the interest furthered by the adoption

of zoning ordinances "is perhaps the most

important function performed by local

government". It would seem clear therefore

that the zoning interest qualifies as an

"important state interest" within the

meaning of Middlesex County Ethics Commit-

tee, supra.

As this Court noted in the Middlesex

County Case at page 125, footnote 12:

ea? soe whether the proceeding is

‘labeled civil, quasi-criminal or crim-

inal in nature," the salient fact is

whether federal-court interference

would unduly interfere with the legici-

mate activities of the state. Id., at

355-336." (Our emphasis.)

There can be no doubt that the federal court

a%2e

has “unduly interfere(d) with the legitimate

activities of the state” herein. See

Statement of the Case, supra, at page §8.

3. The federal plaintiffs had an

adequate opportunity to raise their

constitutional challenges in the state

proceedings. As noted in the Statement of

Facts above at pages 18-19 , the U.S.

District Judge, in abstaining in the first

instance, on April 12, 1976, noted that the

plaintiffs could bring their claims under

federal law in the Idaho State Court Action.

Further, Idaho District Judge Oliver in the

second civil action which was filed by Tovar

and Moore, noted that those claims could be

pursued in the first state action. See

Statement of Facts, supra, at page 20,

4. There is no showing of bad faith,

harassment or extraordinary circumstance

which would make abstention inappropriate.

The record does not show any evidence of bad

faith, harassment, or other extraordinary

-33-

circumstances. The findings of fact in the

state lawsuit are to the contrary. See

Statement of Facts, supra, at pages 17 -18.

It was both a usurpation of jurisdic-

tion, see District of Columbia Court of

Appeal v. Feldman, et al., U.8. 75

L.Ed.2d 206 at 225 (Mar. 23, 1983), and an

abuse of discretion. for the Ninth Circuit to

fail to abstain from the exercise of

jurisdiction in this matter. Although Chief

Justice Burger's majority opinion (joined by

Justices White, Powell, Rehnquist and

O'Connor) did not elaborate upon the grounds

for the reversal in Middlesex County Ethics

Committee, it seems clear that at the very

least, the reversal was based upon an abuse

of discretion. See Colorado River Water

Cons. Dist. v. U.S., 424 U.S. 800 at 816,

fn. 22, 47 L.Ed.2d 483 at 497, fn. 22, 96

S.Ct. 1236 (1976).

A. In Applying The Four Part Test Set

Forth In Middlesex County Ethics Assn.,

The Federal Court Must Abstain If The

First Three Parts Of The Test Are

Satisfied And If The Statute Or

Ordinance Is Susceptible Of A Constitu-

tional Construction In The State Court.

It May Only “Assume Jurisdiction" Where

The Challenged Statute Is "Flagrantly

And Patently Violative Of Express

Constitutional Prohibitions In Every

Clause, Sentence And Paragraph And In

Whatever Manner And Against Whomever An

Effort Might Be Made To Apply It".

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

592 (1975), this Court held that the first

three parts of the Middlesex County Ethics

Committee test had been satisfied. The

Huffman case, however, was not ordered

dismissed as was done in Middlesex County,

but was remanded to the U.S. District Court

to determine whether the fourth part of the

test had been satisfied so that the court

could "assume jurisdiction"; that is at page

497:

"whether... the District Court may

assume jurisdiction under an exception

to the (Younger) policy against federal

judicial interference with state court

proceedings of this kind." (our

emphasis. )

During the 1976 October Term, however,

Huffman v. Pursue Ltd., supra, was further

applied by this Court in other civil cases:

Juidice v. Vail, 430 U.S. 327 (Mar. 22,

1977) and Trainor v. Hernandez, 431 U.S. 434

(May 31, 1977) and distinguished in Ohio

Bureau of Employment Services v. Hodory, 43l

U.S. 471 (1977). In his dissent in Juidice,

Justice Stewart noted a significant differ-

ence between Pullman abstention and Younger-

Huffman abstention, at pg. 348:

"...-Both types of ‘abstention' of

course, serve the common goal of

judicial restraint as a means of

avoiding undue federal interference

with state goals and functions. But

there is a significant difference in

result between the two. Under Pullman

abstention, the federal court may

retain jurisdiction pending state-court

interpretation of an ambiguous statute,

while under Younger it may not." (Our

emphasis. )

See also Trainor v. Hernandez, 431 U.S. 434,

a%Gu

445 (May 31, 1977)2 and Moore v. Sims, 442

U.S. 415, 430 (June ll, 1979), citing the

tf In Trainor v. Hernandez, supra, the High Court

held that where Huffman v. Pursue Ltd. applies,

pendency of the state court action called for

dismissal of the complaint.

".eeFor a federal court to proceed with its

case rather than to remit appellees to their

remedies in a pending state enforcement suit

would confront the State with a choice of

engaging in duplicative litigation, thereby

risking a temporary federal injunction, or of

interrupting its enforcement proceedings pending

decision of the federal court at some wknown

time in the future. It would also foreclose the

opportunity of the state court to construe the

challenged statute in the face of the actual

federal constitutional challenges that would

also be pending for decision before it, a

privilege not wholly shared by the federal

courts. Of course, in the case before us the

state statute was invalidated and a federal

injunction prohibited state officers from using

or enforcing the attachment statute for any

purpose. The eviscerating impact on many state

enforcement actions is readily apparent. This

disruption of suits by the State in its

sovereign capacity, when combined with the

negative reflection on the State's ability to

adjudicate federal claims that occurs whenever a

federal court enjoins a pending state proceed-

ing, leads us to the conclusion that the

interests of comity and federalism on which

Younger and Samuels _v. Mackell primarily rest

apply in full force here. The pendency of the

state court action called for restraint by the

federal court and for the dismissal of

appellees’ complaint unless extradordinary

circumstances were present warranting federal

interference or unless their state remedies were

inadequate to litigate their federal due process

Claim." (Our emphasis.)

o3 Fa

Trainer v. Hernandez text noted above, in

holding that the principles of Younger-

Huffman acted as a bar.

While the language of this Court in the

above cases does not specifically hold that

federal “jurisdiction” is in question, that

appears to be at the very core of the

problem. If not, what would be the reason

for distinguishing between Pullman absten-

tion and Younger-Huffman abstention?

That a federal court lacks "jurisdic-

tion” in matters involving state sovereign-

ty, where the trial facts show that the

constitutional claim can be raised and fully

litigated in a civil action in the state

court finds support in the rationale

expressed in Allen v. McCurry, 449 U.S. 90

(Dec. 9, 1980). In Allen et al. v. McCurry,

Supra, a majority of this Court had occasion

to rethink the legislative intent which

authorized federal jurisdiction in Civil

Rights cases, (42 U.S.C. section 1983). In

~ =

that decision, the majority made it clear

that, except where the claim was made that a

state statute was unconstitutional on its

face, it was not intended by Congress that

the federal courts should have jurisdiction

over a 42 U.S.C. § 1983 federal cause of

action where the state courts were available

(as here) to allow full litigation of the

constitutional claim, See Allen et al. v.

McCurry, supra, at page 317:

",..TO the extent that it did

intend to change the balance of power

over federal questions between the

state and federal courts, the 42d

Congress was acting in a way thoroughly

consistent with the doctrines of

preclusion. In reviewing the legisla-

tive history of § 1983 in Monroe v.

Pape, supra, the Court inferred that

Congress had intended a federal remedy

in three circumstances: where state

substantive law was :zacially unconsti-

tutional, where state procedural law

was inadequate to allow full litigation

of a constitutional claim, and where

state procedural law, though adequate

in theory, was inadequate in practice.

365 U.S. at 173-174. In short, the

federal courts could step in where the

State courts were unable or unwilling

to protect federal rights. Id., at

176." (Our emphasis. )

Under Allen, et al. v. McCurry, supra,

-39-

Tovar and Moore can no longer claim that

every litigant asserting a 42 U.S.C. § 1983

federal right is entitled to one unencum-

bered opportunity to litigate that right in

a federal district court. See Allen, et al.

v. McCurry, 449 U.S. 90 at 103:

"The actual basis of the Court of

Appeals' holding appears to be a

generally framed principle that every

person asserting a federal right is

entitled to one unencumbered opportuni-

ty to litigate that right ina federal

district court, regardless of the legal

posture in which the federal claim

arises. But the authority for this

principle is difficult to discern. It

cannot lie in the Constitution, which

makes no such guarantee, but leaves the

scope of the jurisdicion of the federal

district courts to the wisdom of

Congress. And no such authority is to

be found in Section 1983 itself." (Our

emphasis. )

and at 105:

"The only other conceivable basis

for finding a umiversal right to

litigate a federal claim ina federal

district court is hardly a legal basis

at all, but rather a general distrust

of the capacity of the state courts to

render correct decisions on constitu-

tional issues. It is ironic that Stone

v. Powell provided the occasion for the

expression of such an attitude in the

present litigation, in view of this

Court's emphatic reaffirmation in that

=~40=

case of the constitutional obligation

of the state courts to uphold federal

law, and its expression of confidence

in their ability to do so. 428 U.S.,

at 493-494, n 35, 49 L.Ed.2d 1067, 96

S.Ct. 3037; see Robb v. Connolly, lll

U.S. 624, 637, 28 L.Ed.2d 542, 4 S.Ct.

544 (Harlan, J.)

In remanding Huffman to determine whether

the District Court "may assume jurisdic-

tion", this Court defined the "jurisdic-

tional" boundary line of that Younger

"exception" at page 496 as:

"Younger, and its civil couterpart

which we apply today, do of course

allow intervention in those cases where

the District Court properly finds that

the state proceeding is motivated by a

desire to harass or is ~ conducted in bad

fait Or where the challenged statute

'flagrantly and patently violative

of express constitutional prohibitions

in every clause, sentence and

paragraph, and in whatever manner and

against whomever _ an effort might be

made to apply i? red As we have noted,

the District Court in this case did not

rule on the Younger issue, and thus

apparently has not considered whether

its intervention was justified by one

of these narrow exceptions. .. .

(Our emphasis. )

In view of Huffman, supra, as explica-

ted in this Court's recent opinion in

Middlesex County Ethics Committee v. Garden

aj}

State Bar Assn., supra, it seems clear that

where the first three parts of the test of

Middlesex are satisfied and if the state

statute or city ordinance is susceptible of

a constitutional construction in pending

proceedings in the state court, the federal

court must dismiss the federal action.

The above rule of law was correctly

expressed by the United States District

Court, M.D. Florida, Tampa Division in

Stecher v. Askew, 432 F.Supp. 997 at 999

(1977):

"While as a general rule a State

Surpeme Court may construe a statute

which appears unconstitutional on its

face in such a way as to render its

application constitutional, see, e.g.,

Wainwright v. Stone, 414 U.S. 21 (94

S.Ct. -190, 368 L.8¢d.2d 179) (1973),

there may be cases in which such a

construction, even though attempted,

may be impossible. Under the facts

alleged in the complaint, the plaintiff

has standing to assert that this

statute presents such a situation. The

plaintiff has standing as to this

issue: to wit, whether the statute is

unconstitutional on its face and could

not be rendered constitutional by any

decision of the Florida Supreme Court."

(Our emphasis. )

-42—

In seeking intervention by the federal

court, Plaintiffs must successfully demon-

strate that no further interpretation could

bring the city ordinance under question

within the confines of the protections

insured by the Constitution. If there is

any saving interpretation which the state

court could make, plaintiffs must demon-

Strate that the state courts will not so

construe it. As the Court said in Stecher,

supra, at page 999:

"For the plaintiff to succeed in this

Court, he must successfully demonstrate

that no further interpretation could

bring this statute within the confines

of the tests set out in Chaplinsky. In

subsequent proceedings under this stat-

ute, however, there is absolutely no

obstacle to the Florida courts' further

defining the words ‘Necessarily incite

a breach of the peace‘ which were

incorporated into this statute by State

v. Mayhew, 288 So.2d 243 (Fla. 1973),

as meaning ‘words likely to cause an

average addressee to fight.' Such

construction would save the statute,

and the plaintiff cannot demonstrate

that the Florida courts will not so

construe it." (Our emphasis.)

While it is true that a state or

municipal defendant may consent to have the

-43-

federal court make that determination, see

Ohio Bureau of Employment Services v.

Hordory, 431 U.S. 471, 480, that is not the

case here. Petitioner City of Pocatello has

defended against Tovar and Moore's state

lawsuits and has continuously resisted

intervention by the Ninth Circuit.

Without doubt, the U.S. District Court

has jurisdiction in such cases to decide the

question of jurisdiction. U.S. v. United

Mine Workers of America, 330 U.S. 258

(1974). Where, however, a state statute or

a city ordinance involving an “important

state interest" is susceptible of a

construction which will render the statute

constitutional and a state court action is

pending, under Middlesex County Ethics

Committee, supra, the federal court must

abstain and must allow the matter to be

returned to the state court system for an

authoritative construction by the state

court. One of the principle reasons why

-44-

this result is mandated is the fact that a

federal court lacks jurisdiction to authori-

tatively construe state legislation, U.S. v.

Thirty-Seven Photographs, 402 U.S. 363

(1971), a task which is routinely performed

by state courts.

The rationale in Middlesex County

Ethics Committee, supra, which requires a

federal court to defer to a pending state

court action where an “important state

interest" is concerned, is grounded upon

several important policy considerations.

In the first place, there is a marked

difference in the way in which the state and

federal courts approach the constitutional

issue regarding legislation. Largely be-

cause of the doctrine of separation of

powers, the rule has evolved that state

courts are obliged to render a construction

of state legislation which will arrive at a

constitutional result. In People ex rel.

Busch v. Projection Room Theater, 17 Cal.3d

-45-

55 at 56, the California Supreme Court

noted, at page 336:

"Furthermore, the United States

Supreme Court recently emphasized with-

in the foregoing context that courts

have an obligation to construe statutes

in such a way as to avoid serious

constitutional doubts .. ." (Our

emphasis. )

and, at page 338:

"We are obliged to construe and

interpret legislation in a manner which

will uphold its validity. (Citations).

Thus, the courts have held that

provision for a prior adversary hearing

may be implied by law in otherwise

silent statutory provisions."

Because federal courts do not bear the same

relationship to state legislatures and don't

function in the same manner as regards state

legislation, see U.S. v. 37 Photographs,

supra, the end result is certain to differ.

Additionally, the question as to

whether defective federal and state legisla-

tion may be “saved" by statutory construc-

tion or by severance of the defective

portion presents important public policy

matters for federal and state governments.

-46-

See Tilton v. Richardson, 403 U.S. 672 at

684, where Chief Justice Burger noted:

"The cardinal principle of statutory

construction is to save and not

destroy."

The question as to whether a state statute

is severable is more properly a matter for

the state court. In a recent statement

confirming the importance of the “statutory

construction” factor and the right of state

courts to interpret city ordinances, this

Court in Metromedia, Inc. v. San Diego, 453

U.S. 490 (1981) (involving a direct appeal

of a city ordinance after a state court

decision by the California Supreme Court

upholding the ordinance on its face)

remanded the case back to the California

Supreme Court for further statutory con-

struction by the state court, notwithstand-

ing it held the ordinance to be unconstitu-

tional on its face. See in this regard,

Associate Justice White's opinion announcing

the judgment of the Court at page 823,

o47=

footnote 26, wherein he addresses the issue

of severability and the right of state

courts in that regard:

"Although the ordinance contains a

severability clause, determining the

meaning and application of that clause

are properly responsibilities of the

state courts. See Dombrowski _ v.

Pfister, 380 U.S. 479, 497, 14 L.Ed.2d

22, 85 S.Ct. 1116 (1965) (‘The record

suffices ... to permit this Court to

hold that, without the benefit of

limiting construction, the statutory

provisions on which the indictments are

founded are void on their face; until

an acceptable limiting construction is

obtained, the provisions cannot be

applied.'); Liggett Co. v. Lee, 288

U.S. 517, 541, LeEd.2d 929, 53 S.Ct.

481, 85 A.L.R. 699 (1933) (‘The

operation of this [severability clause]

consequent on our decision is a matter

of state law. While we have jurisdic-

tion of the issue, we deem it

appropriate that we should leave the

determination of the question to the

state court.'); Dorchy v. Kansas, 264

U.S. 286, 291, 68 L.Ed. 686, 44 S.ct.

323 (‘In cases coming from the state

courts, this Court, in the absence of a

controlling state decision may, in

passing upon the claim under the

federal law, decide, also the question

of severability. But it is not obliged

to do so. The situation may be such as

to make it appropriate to leave the

determination of the question to that

state court.'). This rule is reflected

in the different approaches this Court

has taken to statutory construction of

federal and state statutes infringing

-48-

On protected speech. Compare United

States v. Thrity-Seven Photographs, 402

U.S. 363, 28 L.Ed.2d 822, 91 S.Ct. 1400

(1971), with Freedman v. Maryland, 380

U.S. 51, 60, 13 L.Ed.2d 649, 85 S.Ct.

734 (1965). Since our judgment is

based essentially on the inclusion of

non commercial speech within the

prohibitions of the ordinance, the

California courts may sustain the

ordinance by limiting its reach to

commercial speech, assuming the ordi-

nance is susceptable to this treat-

ment." (Our emphasis. )

This critical interplay of state and

federal powers in civil matters of this sort

is poignantly illustrated by the differing

results which were reached in Spokane

Arcades, Inc. v. Brockett, 631 F.2d 135 (9th

Cir., 1980), affirmed, 102 S.Ct. 557 (1981)

and Metromedia, Inc. v. San Diego, 453 U.S.

490 (1981). This Court's affirmance of

Spokane Arcades, Inc. v. Brockett is

frequently referred to as standing for the

proposition that the challenged Washington

Initiative is "flagrantly and patently

violative of express constitutional prohibi-

tions in every clause, sentence and

Paragraph, and in every manner and against

-49-

whomever (an effort may be to apply it".

Petitioners submit that a broad assessment

of this sort is erronious and misunderstands

the interplay of footnotes 6 and 7 of

Dombrowski v. Pfister, 380 U.S. 479 at 490,

as those footnotes relate to a correct

understanding of the Spokane Arcades, Inc.

decision and judgment. Properly interpola-

ted, the Dombrowski footnotes hold that,

notwithstanding a federal court may declare

a state statute to be unconstitutional on

its face so as to warrant the granting of a

federal injunction against the application

of the statute to the plaintiff, the state

governmental authority may thereafter seek a

restrictive interpretation of the statute in

the state court, and thus "revive" the

statute as to future violations against

others. The dilemma is how this procedural

step is to be accomplished} See, in this

regard, Metromedia, Inc. v. San Diego, 453

U.S. 490 (1981), wherein, as noted above,

=50—

this Court, after finding the San Diego City

Ordinance to be unconstitutional on its

face, resolved the procedural dilemma and

remand the cause back to the California

Supreme Court for re-evaluation as _ to

whether the California Supreme Court could

render the ordinance a "limiting construc-

tion" which would "save" the statute.

In the light of this recent development

in the law regarding the Metromedia case, it

must necessarily follow that the decision of

the Ninth Circuit in Spokane Arcades, Inc.

v. Brockett, merely holds that the statute

can not presently be applied to the

plaintiff Spokane Arcades, Inc., and that

those plaintiffs were entitled to an

injunction against enforcement of the

statute until the statute had been “nar-

rowed". Under Dombrowski, that does not

prevent the state courts in the State of

Washington from asserting in a future state

action that, under a restrictive interpreta-

-5l-

tion, certain provisions of the 1977

Washington State Initiative can be constitu-

tionally construed and "saved". Had Spokane

County Prosecutor Brockett commenced an

action in the state court, concomitantly

with his defense of the federal action in

the Spokane Arcades, Inc. case, the dilemma

would have been resolved and the U.S.

District Court in Seattle would have been

required to abstain under the above

principles expressed in Middlesex County.

Havin. failed to initiate a state action

which would invoke a Middlesex County fact

Situation and require that the state issue

be resolved in the state courts, Brockett

fell prey to the factual distinction which

separated his case from Middlesex County--

there was no pending state case!

The judicial inefficiency of continuing

to permit the federal system to entertain

jurisdiction of civil rights cases of this

sort and rencer judgments thereon which, in

nS Seo

the final analysis under Dombrowski, are and

must be inconclusive, when a state court

civil action is pending and the state court

system is ready, willing and able to

consider the identical issues and render a

judgment thereon, which will be binding and

: :' , a

conclusive, is obvious. 2

This Court should

grant its writ of certiorari on this issue

and provide a new procedural requirement, as

Outlined above, which will provide govern-

mental bodies with the option of litigating

such important state interests exclusively

and efficiently in the state court system.

2 In a speech prepared for delivery at New York

University on November 18, 1982, Chief Justice Warren

E.- Burger has warned that if some drastic changes are

not made, state and tederal court systems could

“literally break down before the end of the century"

because of the burden of work being placed upon them:

""If every case in the Supreme Court is to

continue receiving individual attention of

justices, as has been the tradition, the

caseload cannot continue at the present rate,'

Burger said. ‘It is not just a matter of

maintaining the present case load. That load

must be reduced.'" .

See Los Angeles Daily Law Journal article of November

19, 1982.

oS 3a

TOVAR AND MOORE'S CIVIL RIGHTS ACTION FAILS

TO STATE A CLAIM UPON WHICH FEDERAL

RELIEF CAN BE BASED. BOTH THE DISTRICT

COURT'S DISMISSAL AND SUMMARY JUDGMENT

IN FAVOR OF THE CITY SHOULD HAVE BEEN

SUSTAINED.

Under the rationale expressed above in

Allen v. McCurry, 449 U.S. 90 (1980), and in

Parratt v. Taylor, 451 U.S. 527 (1981),

Congress intended to create a cause of

action and establish federal jurisdiction

under 42 U.S.C. § 1983 where one of the

following three circumstances is shown to

exist:

(1) The State substantive law is

facially unconstitutional;

(2) The State procedural law is

inadequate to allow full litiga-

tion of a constitutional claim; or

(3) The State procedural law, though

adequate in theory is inadequate

in practice.

In this case, none of the foregoing

circumstances apply. The procedural law of

the State of Idaho is entirely adequate to

allow full litigation of all constitutional

=84<

claims, provided Tovar and Moore can allege

sufficient facts to withstand a motion to

dismiss or a motion for summary judgment.

Tovar and Moore's Complaint is wholly

deficient in this regard. Martinez v.

California, 444 U «8. 277 (1980) (see

Appendix B).

Petitioners submit that, as noted by

District Judge Young's analysis of Parratt,

Supra, in Juncker v. Tinney III, 549 F.Supp.

574, the question is not abstention and

whether the Plaintiff has exhausted his

State judicial remedies, but rather whether

the Plaintiff has stated a claim upon which

relief can be based; at page 578:

"The court argued that if Parrat

were applied to cases involving liberty

and life interests, this would relegate

to the state courts so large a portion

of § 1983 cases as to constitute in

effect an exhaustion requirement, which

the courts have consistently rejected

under § 1983. This is simply

incorrect; there is no connection

between an exhaustion requirement and

the policy of applying Parratt to all §

1983 cases. The argument for applying

Parratt to liberty and life interest

(and thus for sending many purported §

=§Se

1983 cases to state court) is based not

upon principles of comity but upon the

language of the Fourteenth Amendment

and upon the concept that in certain

Situations a complaint fails to state a

claim under the Fourteenth Amendment

because the plaintiff has not been

deprived of a constututional right

without due process of law. Proof of

this difference lies in the different

results. Under an exhaustion require-

ment, a plaintiff may sue in federal

court after he has exhausted his state

remedies. Under the Parratt analysis,

if a plaintiff fails to state a claim

under § 1983, he has no cause of action

in federal court, and may sue only in

state court." (Our emphasis. )

Very recently a majority of the

Justices ona panel of the Sixth Circuit in

Vickory v. Walton, 721 F.2d 1062 (CA 6th,

Nov. 30, 1983) undertook an astute analysis

of this Court's reasoning in Parratt, supra,

and determined that 42 U.S.C. § 1983 was not

meant to supply an exclusive federal remedy

for eve alleged wrong. The gist of the

cause of action was a deprivation of

property interest “without due process of

law." Under this analysis, the court held

the plaintiff must plead and prove that the

state remedies for redressing the wrong were

a a

-56-

inadequate. In other words, in a procedural

due process case under 42 U.S.C. § 1983 (as

here), plaintiff must attack the state

corrective procedure as _ well as the

substantive wrong) In Vickory v. Walton,

Supra, the Sixth Circuit held that the

plaintiff had neither alleged nor shown any

significant deficiency of the state remedy.

Applying the analysis of the Sixth Circuit

in Vickory v. Walton to the pleadings and

proof on file herein, is is clear that Tovar

and Moore have neither alleged nor proven a

cause of action under 42 U.S.C. § 1983 and

the Petitioners were entitled to both a

dismissal of the action in the first appeal,

C.A. 72-2929 and summary judgment in the

second appeal, C.A. 82-3258. See appendix

E and appendix F.

—_—

=SJ<

III

THE PRINCIPLES EXPRESSED IN THIS COURT'S

JANUARY 23, 1.984 DECISION IN MIGRA V,

WARREN CITY SCHOOL DISTRICT BD. OF

EDUCATION, ET AL., REQUIRE THE NINTH

CIRCUIT TO ACCORD FULL FAITH AND CREDIT

TO THE FINAL JUDGMENTS WHICH WERE

ENTERED IN FAVOR OF THE PETITIONERS IN

THE IDAHO STATE ACTIONS FILED BY TOVAR

AND MOORE, AND TO DISMISS THEIR FEDERAL

CIVIL RIGHTS COMPLAINT ON RES JUDICATA

AND COLLATERAL ESTCPPEL PRINCIPLES.

Based on the evidentiary hearings,

orders, and final judgment of the State

Court of competent and general jurisdiction,

defendants pleaded res judicata and collat-

eral estoppel in their Responses” and

Answers. (See Appendix D.) The defense of

res judicata was covered extensively in the

| briefs for both appeals.

The applicable law on res judicata for

the Ninth Circuit at the time of the filing

of briefs appears in Scoggin v. Schrunk, 522

F.2d 436 (9th Cir., 1975) and, as quoted in

the Petitioners' Brief (Brief of Appellees)

at page 35, reads:

Fens It is now established that where

the federal constitutional claim is

-58-

based on the same asserted wrong as was

the subject of a state action, and

where the parties are the same, res

judicata will bar the federal constitu-

tional claim whether it was asserted in

state court or not, for the reason that

the state judgment on the merits serves

not onl to bar every claim that was

raised in state court but also to

preclude the assertion of every legal

theo or Teoune for recovery en2t

might have een frais n su rt o

the granting of the desired relief.

TAppellant is not permitted to fragment

a Single cause of action and to

litigate piecemeal the issues which

could have been resolved in one

action.' - « « This rule is made to

apply to federal claims unde

§ 1983. . . ." (Our emphasis.

wa try

In Migra, supra, this Court held that

in a 1983 action, the preclusive effect of a

state court judgment is determined by the

law on res judicata of the state whose

judgment was being considered. In the State

of Idaho, the applicable law on res judicata

is set forth in Tovar v. Billmeyer, 98 Idaho

891. See Appendix I at page I-22, where the

Idaho Supreme Court noted:

"In Robinson vv. Robinson, 70 Idaho 122,

212 P.2d 1031 (1949), this Court stated

that ‘a judgment is conclusive as

between the parties and their privies

on all issues which were (or should

-59-

have been) litigated in the action.'

Id., at 128, 212 P.2d 1034; accord,

Treese v. Treese, 84 Idaho 457, 373

P.2d 750 (1962)."

According to Migra, the rule of law

expressed above in Tovar v. Billmeyer

governs this appeal. All of the issues

which were or should have been litigated in

Case No. 34096 (see Appendix A) and case No

34739 (see Appendix C) have been concluded,

and such final judgments bar relitigation of

the same issues in the federal civil rights

action (see Appendix B).

In addressing Petitioners’ "Res Judica-

ta" arguments for affirming the District

Court's Summary Judgment, the Ninth Circuit

completely ignored the Ninth Circuit prece-

dent, Scoggin v. Shrunk, cited by Peti-

tioners and reserved one small paragraph in

footnote 8 for the Court's response (see

Appendix K at page K-25):

"First, defendants contend that

res judicata bars plaintiffs’ present

action because the same issues have

been litigated in state court. This

court has already rejected this argu-

-60-

ment. In Tovar v. Billmeyer, 609 F.2d

at 1293-94, we held that ‘'[a] free and

unreserved submission to the state

court of all federal claims for

complete and final resolution is

necessary to bar return to the federal

court.' And, as we noted in Tovar,

plaintiffs have consistently made an

‘explicit reservation of constitutional

issues'. Id. at 1239. Defendants' res

judicata argument is thus without

merit."

The Ninth Circuits’ analysis, however,

cannot be reconciled with this Court's

previous expression in Allen _ v. McCurry,

Supra, (see pages 38-40 herein.)

Following this Courts’ January 23, 1984

opinion in Migra v. Warren City School

District Board of Education, Petitioners

brought the Migra opinion on Res Judicata to

the attention of the Ninth Circuit ina

"Supplemental Suggestion, Petitions for

Rehearing, and Request for Hearing En Banc"

(see Appendix M at pages M-5 through M-12).

The Court of Appeais also ignored the Migra

opinion (see Appendix O-l). The Ninth

Circuit's failure to address Migra, as

requested in the petition for rehearing,

-6l-

cannot be excused.

UNDER THE PRINCIPLES EXPRESSED BY THIS COURT

IN DISTRICT OF COLUMBIA COURT OF

APPEALS, ET AL. V. FELDMAN, ET AL., THE

NINTH CIRCUIT LACKED JURISDICTION OVER

THE SUBJECT MATTER TO INQUIRE INTO THE

MOTIVATION OF THE CITY COUNCIL IN

ENACTING ZONING LEGISLATION.

On December 15, 1983, the Ninth Circuit

filed its opinion in this case and, for the

first time, raised and decided this appeal

on a newly created rule of law, first

expressed in Ebel v. City of Corona, 698

F.2d 390, 392 (9th Cir., 1983), which was

neither briefed nor argued in either the

trial court or in the Ninth Circuit. The

"Ebel" rule of law provides that, notwith-

standing the City's zoning ordinance was

constitutional on its face, the enactment of

the same (see Statement of Facts, supra, at

page 12 ) could give rise to a federally

created right and lawsuit, if the "motiva-

tion” of the City Councilmen was bad--- and

this, in the face of two state court final

-62- z

judgments that the City Council's interpre-

tation was reasonable, and that their acts

and conduct in such Matter was not

arbitrary, capricious, Or an abuse of

discretion, and in the face of a factual

record which disclosed that the state court

' proceedings were fair on their face.

Petitioners submit that the Ninth

Circuit's "Ebel" reasoning is clearly

fallacious, and flies in the face of the

weight of authority, which holds that

"motivation" May not be inquired into,

except for bad faith, fraud, etc., (which

the record shows does not apply)2’.

Further, it is contrary to the principle of

law re "“jurisdiction" expressed by this

2/ See. generally, Sutherland Statutory Construc-

tion, vol. 2A, § 48.17, “Motives of Members of the

Legislature” at pages 223-224, which states that

references to the motives of members of the

legislature in enacting a law are wuiformily

disregarded for purposes having to do with its

interpretation except as they are expressed in the

statute itself. Aldridge, et al. v. Williams, 3 How.

44 U.S. 9, 24, 11 LeEd. 469 at 467 (1845). See, also

McQuillin, Municipal Corporations, 3rd Ed., vol. 2 at

pages 831-839 and vol. 5 at pages 266-278.

a ee Be -

~ +

Court in District of Columbia Court of

Appeals, et al. v. Feldman et al., U.S.

, 1/5 L.Ed.2d 206 at page 225, which holds

that the Courts of Appeals may not

collaterally attack state court judgments,

and:

"do not have jurisdiction, ... over

challenges to state court decisions in

particular cases arising out of

judicial proceedings even if those

challenges allege that the state

court's action was unconstitutional.

Review of those decisions may be had

only in this Court."

Although Petitioners’ pleading which

was filed on December 22, 1983, was

defectively labeled "Suggestion for En Banc

Consideration", instead of “Petition for En

Banc Rehearing', that label was a simple

"misnomer". The Petition clearly stated

valid grounds for a rehearing of the

December 15, 1984 judgment--- in as; much as

the rationale in support of the opinion had

not been hriefed or argued by the parties. a

petition for rehearing was intended, and the

pleading was timely under F.R.A.P. Rule 40

. 764-

to qualify as a Petition for Rehearing. See

"History; Ancillary Laws and Directives" to

Rule 35 in U.S.C.S. at page 224 reading :—”

"In practice, the suggestion of a party

that a case be reheard en banc is

frequently contained in a petition for

rehearing, commonly styled "petition

for rehearing en banc" Such a

petition is in fact merely a petition

fora rehearing, with a suggestion that

the case be reheard en ~ banc."

Further, the Ninth Circuit panel, in its

order dated February 7. 1984, denying

Petitioners' application treated the docu-

ment as a petition for rehearing en banc

(see Appendix N). The time for filing the

petition for writ of certiorari began

running on February 7, 1984, with the Court

10/

when the Application on its face shows that a

Petition for Rehearing is in order, as here, where

the ratio decidendi has never been briefed or argued

and is clearly in error, there is no rational reason

for distinguishing between a “Petition for Rehearing”

and a “Suggestion for Rehearing En Banc” in

considering whether the strictures of F.R-A.P. Rule

35(c) are to be invoked. The obvious intent of Rule

35(c) is to preclude the tolling of the statutory

period for the filing of a petition for writ of

certiorari, where the only basis for the application

is a reconsideration by an en banc panel of the same

issues which were briefed and argued to the three

judge panel.

Pe -65-

of Appeals' denial of that petition for

rehearing. See Stern and Gressman, Supreme

Court Practice, 5th Ed., § 6.3 at pages 398-

400; U.S. Supreme Court Rule 20.4.

CONCLUSION

For all of the reasons stated above,

the Judgments of the Court of Appeals for

the Ninth Circuit which were entered in C.A.

No. 82-3258 and in C.A. No. 77-2929 should

be reversed.

Dated: June ll, 1984

Respectfully submitted,

James J. Clancy

Attorney for Petitioners.

CERTIFICATE OF SERVICE

I, hereby certify that on this 11th

day of June, 1984, the original and 40

copies of the within Petiiton for Writ

of dertiacest were deposited in the

United States Post Office in Phoenix,

Arizona, with first-class postage

prepaid, and properly addressed to the

Clerk of the United States Supreme

Court.

I further certify that three (3)

copies were also mailed, postage

prepaid, to the below listed parties to

the proceedings and that all parties

required to be served have been served.

LAW OFFICES OF STOMPOLY & EVEN,

P10. Box 3017

Tucson, Arizona 85/702

(602) 792-2781

Attn: William G. Walker, Esq.

GARDNER W. SKINNER, JR., ESQ.

Cantrill and Skinner

P.O. Box 359

Boise, Idaho

Petitioners

APPENDIX A

State Court Petition To Review

Denial of Variance filed on

December 9, 1975 in the District

Court of The Sixth Judicial

District of the State of Idaho,

In and For the County of Bannock,

entitled Deborah A. Moore, v.

City of Pocatello, a Municipal

corporation of Idaho, by the City

Council of said City, consisting

of C.G. Billmeyer, Donna Boe,

F.W. "Bill" Roskelley, Mel

Morgan, John Evans, Les Purce,

and Earl Pond, being Case No.

34096

(Reference: See Petition for

Writ of Certiorari at pp. 14, 59)

A-1l

BILLY B. ISLEY, JR.

' Attorney for Plaintiff

P.O. Box 1412; 850 E. Center

Pocatello, Idaho 83201

(208) 232-5060

IN THE DISTRICT COURT OF THE SIXTH

JUDICIAL DISTRICT OF THE STATE OF IDAHO

IN AND FOR THE COUNTY OF BANNOCK

Deborah A. Moore )

Plaintiff, ) Case No. 34096

)

vs. ) PETITION TO

) REVIEW DENIAL

THE CITY OF POCATELLO,) OF VARIENCE

a Municipal corpora- )

tion of Idaho, by the )

City Council of said )

City, consisting of C.)

G. BILLMEYER, DONNA )

BOE, F. W. "BILL" )

ROSKELLEY, MEL MORGAN, )

JOHN EVANS, LES PURCE,)

and EARL POND. )

)

Defendants. )

TO: THE SIXTH DISTRICT COURT OF IDAHO,

IN AND FOR THE COUNTY OF BANNOCK

COMES NOW Deborah A. Moore and

pursuant to Idaho Code Section 67-65 19,

respectfully shows:

A-2

That Petitioner is an individual

person and the owner in possession of

the following described premises located

at 250 North Main Street in the City of

Pocatello, County of Bannock, State of

Idaho, to-wit:

Northwesterly 21 feet and 9.35

inches of Lot 3, Block 431,

POCATELLO TOWNSITE, Bannock

County, Idaho.

That Defendants above named are the

duly elected members of the City Council

of the City of Pocatello, pursuant to

Title 50 of the Idaho Code.

tet.

That on September 17, 1975,

Petitioner applied to the duly

authorized Board of Adjustments of the

City of Pocatello for a permit to

construct a private adult bookstore and

A-3

theater upon Plaintiff's above described

property.

IV.

That at the public hearing

conducted by the Board of Adjustments,

the Board was urged by Petitioner to

grant the application in that there were

practical difficulties and unnecessary

hardship which prevented strict

compliance with the City of Pocatello

zoning ordinance in that:

1. The premises in question are

situated in the downtown area among many

other non-conforming uses and within two

blocks and upon the same street that

Petitioner's former business was located

for over three years; and

2. That Union Pacific parking lot

is located directly east from Union

Pacific Avenue which is contiguous to

the entrance of Petitioner's

premises, thus provided adequate

A-4

parking without adding to the congestion

upon Main Street; and

3. That the highest and best use

for the premises is an adult bookstore

and theater since that particular use

has already been successful in the _—

vicinity while other uses for the

premises have proven financially

unsuccessful.

That on the 8th Day of October,

1975, the Board of Adjustments voted to

grant Petitioner's conditional use

permit, noting specifically that the

proposed use was not inconsistent with

the other uses in the area and the

parking and traffic would not

appreciably to the existing parking

congestion of the area.

A-5

VI.

That on October 9, 1975, an appeal

was taken from the decision of the Board

of Adjustments by the "Downtown

Merchants Association" and on October

23, 1975, was heard by the Defendant

City of Pocatello and by its duly

elected City Council who reversed the

decision of the Board of Adjustments.

The minutes of this meeting have not

been prepared and therefore cannot be

attached to this Petition.

VII.

That Petitioner was informed by the

Defendant and therefore believed that

the appeal from the Board of Adjustments

would be restricted to a review by the

City Council of the Findings of Fact and

Conclusions of Law entered by the Board

of Adjustments, but in fact the

Defendant City Council invited

additional input and testimony from the

A-6

many protestants and turned appellate

review into a second public hearing and

received new and additional evidence,

all of which prejudiced this Petitioner

who was not prepared for a second public

hearing and who had justifiably relied

upon Defendants' previous

representations, all of which was

prejudicial to Petitioner and deprived

Petitioner of due process of law.

VIII.

That the decision of the Defendant

City Council was arbitrary, capricious

and characterized by an abuse of

discretion and reeked of a pre-election

concerted effort by the members of the

City Council to prevent a lawful

business of Petitioner from operating in

that a special meeting of the City

Council was convened Septeaber 2,;~ 1973,

for the sole and exclusive purpose of

A-7

designing a plan and method by which the

permit and application of Petitioner

could be denied; that a copy of the

minutes of said meeting is attached as

Exhibit A, and incorporated herein as

though set forth verbatim.

IX.

That said decision and resolution

of Defendant City Council is a final

determination of the rights of

Petitioner herein with respect to the

matter to be reviewed; that sixty days

have not elapsed since the filing of the

decision in the office of the Defendant

City Council and no previous application

for the relief sought herein has been

made.

WHEREFORE, Petitioner prays

judgment as follows:

1. That the Court grant an order

herein to review the determination of

the Defendant City Council and that said

A-8 .

decision of the City Council be wholly

reversed, annulled, and set aside and

the decision of the Board of Adjustments

reinstated; or in the alternative

2. That the Court direct an order

to the City Council to issue Petitioner

a conditional use permit; and

3. Such other and further relief

as may be just and proper.

/s/ Billy B. Isley, Jr.

BILLY B. ISLEY, 7K

Attorney for Petitioner

Federal Court Civil Rights

Complaint (42 U.S.C. § 1983)

filed on December 22, 1975, in

the United States District Court,

District of Idaho entitled Joseph

Tovar and Deborah Ann Moore v.

C.G. Billmeyer; Melvin Morgan;

F.W. "Bill" Roskelley; John

Evans; Les Purce; Donna Boe; Earl

Pond; Wayne Ellis; and the City

of Pocatello, an Idaho municipal

corporation, being Civil Action

CIV4-75-59

(Reference: See Petition for

Writ of Certiorari at pp. 16, 54,

59)

B-1

DAVID W. CANTRILL, ESQ.

Green, Frost & Cantrill

P.O. Box 2597

Boise, Idaho 83701

Telephone: (208) 342-8915

ROBERT J. HIRSH, ESQ.

JAMES A. SHINER, ESQ.

Robert J. Hirsh, P.C.

120 West Broadway

Tucson, Arizona 85701

Telephone: (602) 884-9630

ATTORNEYS FOR PLAINTIFFS

IN THE UNITED STATES

DISTRICT COURT

DISTRICT OF IDAHO

JOSEPH TOVAR and

DEBORAH ANN MOORE,

Plaintiff, CIVIL ACTION

NO. CIV 4-75-59

vs.

COMPLAINT

C.G. BILLMEYER; (Injunction;

MELVIN MORGAN: F. W. Declaratory

)

"Bill" ROSKELLEY; ) Judgment

)

JOHN; EVANS; LES Damages )

PURCE; DONNA BOE;

EARL POND; WAYNE

ELLIS; and THE CITY

OF POCATELLO, and

Idaho municipal

corporation

Defendants.

Jurisdiction and Venue

l. The jurisdiction of this Court

is invoked under Title 28, United States

B-2

Code, Section 1343; Title 28, United

States Code, Section 1331; and, the

doctrine of pendent jurisdiction. This

action arises under the First, Fifth and

Fourteenth Amendments to the

Constitution of the United States of

America and Title 43, United States

Code, Section 1983, and State law. The

amount in controversy exceeds Ten

Thousand ($10,000.00) Dollars, exclusive

of interest and costs.

2. Venue in this District is

proper by virtue of Title 28, United

States Code, Section 1391.

The Parties

3. The Plaintiffs.

Plaintiffs, JOSEPH TOVAR and

DEBORAH ANN MOORE, are residents of Pima

County, Arizona, and are owners of

certain real property (described below)

located in the County of Bannock, City

of Pocatello, State of Idaho, upon which

B-3

plaintiffs wish to construct, house and

operate an "adult" movie theater and

book store.

4. The Defendants.

(a) Defendants, C.G. BILLMEYER,

DONNA BOE, V.W. "“Bill'' ROSKELLEY, MELVIN

MORGAN, JOHN EVANS, LES PURCE and EARL

POND, (hereinafter collectively referred

to as "Council Members"), are residents

of the County of Bannock, State of

Idaho, and were at all times material

herein duly elected members of the City

Council of the City of Pocatello, Idaho,

duly organized and constituted pursuant

to Title 50, Chapters 7 and 8 of the

Idaho Code, and authorized by Title 50,

Chapter 12, and Title 67, Chapter 65, of

the Idaho Code to promulgate and

maintain a zoning ordirance in and for

the City of Pocatello, {daho. Pursuant

to said authority, defendants have

enacted Title 11 of the Pocatello,

B-4

Idaho, City Code, a zoning ordinance.

(b) Defendant, WAYNE ELLIS, is the

building inspector for the City of

Pocatello, Idaho, duiy appointed and

confirmed by the authority conferred

upon the Council by Title 50, Chapters 7

and 8 of the Idaho Code and Title 3,

Chapter 6, of the City Code of the City

of Pocatello, Idaho. Defendant ELLIS is

authorized and required to issue

building permits and certificates of

occupancy in the City of Pocatello,

Idaho, in conformity with Title 11 of

the Pocatello City Code.

IDAHO, is a municipal corporation of the

State of Idaho, created by Title 50 of

the Idaho Code.

(d) The above-named individual

defendants were at all times herein

acting under color of State Law.

B-5

Factual Allegations

5. On August 31, 1975 and for

approximately three (3) years prior

thereto, plaintiffs owned and operated

in the City of Pocatello, Idaho, at 135

South Main, and adult movie theater and

book store known as the "Gallery

Theater".

6. On or about September 1, 1975,

defendant, MELVIN MORGAN, owner of a

building located at 135 South Main, the

City of Pocatello, Idaho, secured an

Order evicting the Gallery Theater and

Joseph Tovar from said premises.

7. On or about September 5, 1975,

plaintiffs moved out and quit the

premises at 135 South Main, Pocatello,

Idaho.

8. Plaintiffs purchased on or

about September 1, 1975, the real

property and improvements located at 250

North Main in the City of Pocatello,

B-6

County of Bannock, State of Idaho,

to-wit:

The northwesterly 21 feet and

9.34 inches of Lot 3, Block

431, Pocatello Town Site,

Bannock County, Idaho.

9. On September 2, 1975, defendant

Council Members conducted a special

meeting of the City Council of

Pocatello. The purpose of the September

2, 1975, meeting was to devise methods

preventing plaintiffs from opening or

reopening an adult theater and book

store at 250 North Main, Pocatello,

Idaho.

10. On or about September 5, 1975,

defendant MELVIN MORGAN, filed a Civil

Action No. 33818 against the plaintiffs

in the District Court of the Sixth

Judicial District of the State of Idaho

In and for the County of Bannock (a copy

of said Summons and Complaint is

attached hereto and by reference

B-7

incorporated herein as Exhibit '"A").

11. On or about September 10, 1975,

plaintiffs requested from defendant

ELLIS a building permit for an adult

theater and book store. Defendant ELLIS

refused to issue a permit to plaintiffs

on express orders from the Council

Members.

12. Plaintiffs were advised by

defendant ELLIS that, in order to secure

a building permit, plaintiffs would have

to apply for a conditional use permit

pursuant to the zoning ordinance of the

City of Pocatello because plaintiffs

desired to operate a theater on the

premises of 250 North Main, Pocatello,

Idaho.

13. Defendant ELLIS has in the past

issued building permits to motion

picture theaters without the requirement

of a conditional use permit.

B-8

14. On September 17, 1975,

plaintiffs applied to the duly

authorized Board of Adjustments of the

City of Pocatello for a conditional use

permit for the construction of a private

adult book store and theater. Said

application was approved by the Board of

Adjustments on October 8, 1975 (a copy

of the minutes and conclusions of the

Board of Adjustments is attached hereto

and by reference incorporated herein as

Exhibit '"B").

15. On October 9, 1975, an appeal

was taken to the City Council of the

City of Pocatello, Idaho, from the

decision of the Board of Adjustments by

the "Downtown Merchants' Association".

Plaintiffs were thereafter advised that

a hearing would be held before the City

Council on October 23, 1975, and that

the subject of said hearing would be

limited to a review of the Board of

B-9

Adjustments’ decision of October 8,

1975.

16. A hearing was conducted by

defendant Council Members on October 23,

1975, twelve (12) days before defendants

EVANS, BOE AND ROSKELLEY were to stand

for election and without prior notice

the hearing was open to public

discussion and that subject matter of

said hearing would include more than a

review of the Board Adjustment's

decision of October 8, 1975.

17. The City Council hearing of

October 23, 1975, included public

discussion and was not limited to a

review of the Board of Adjustments'

decision of October 8, 1975.

18. The Council Members of the City

Council of the City of Pocatello, Idaho,

voted on October 23, 1975, to reverse

the decision of the Board of Adjustments

B-10

and to deny plaintiffs a conditional use

permit.

19. Defendant ROSKELLEY, prior to

the Council meeting of October 23, 1975,

appeared at the Board of Adjustments'

hearing on October 8, 1975, and

distributed leaflets advocating

plaintiffs’ request for a conditional

use permit be denied. Defendant

ROSKELLEY also orally advocated the

denial of plaintiffs' request for a

conditional use permit during the course

of said Board of Adjustments' hearing.

20. The zoning ordinance of the

City of Pocatello, Idaho, does not

authorize or permit the construction of

a motion picture theater in the entire

City of Pocatello, Idaho.

21. The City of Pocatello, Idaho,

currently has within its boundaries two

(2) motion picture theaters. None of

the aforesaid theaters was required to

B-11

obtain or did obtain a conditional use

permit.

22. The matters alleged in

Paragraph 1 through 21 above are the

constituent elements of a conscious

pattern of bad faith harassment

undertaken under color of State law and

intended to deprive plaintiffs of their

constitutionally protected rights under

the Fourteenth Amendment to the United

States Constitution, as alleged in Count

II below.

COUNT I

Injunction

23. Paragraph 1 through 22 above

are hereby incorporated by reference.

24. Unless restrained and enjoined,

defendants intend to continue their bad

faith harassment of plaintiffs by filing

civil and/or criminal law suits which

are designed to deprive plaintiffs of

their constitutionally protected rights.

B-12

25. If not restrained or enjoined

by this Court, the illegal actions of

defendants alleged above will cause

great, immediate and irreparable harm to

plaintiffs, and plaintiffs will be

deprived of their rights of freedom of

speech, free assembly, freedom of

association, freedom from the taking of

their property without just

compensation, due process of law and

equal protection of the law, and will

suffer irreparable loss of income,

profits, good will and costs and

expenses.

COUNT II

Declaratory Judgment

26. Paragraphs 1 through 22 above

are incorporated by reference.

27. The zoning ordinance on its

face and as applied to plaintiffs

violates the Constitution of the United

States as follows:

B-13

(a) The ordinance on its face and

as applied violates the First Amendment

to the United States Constitution in

that said ordinance provides no zone for

a theater and the requirement of

obtaining a conditional use permit

constitutes an unlawful prior restraint

of freedom of speech.

(b) The ordinance on its face and

as applied excludes from the entire City

of Pocatello, Idaho, motion picture

theaters and, therefore, violates the

rights of freedom of speech and

association secured by the First

Amendment to the Constitution of the

United States.

face and as applied violates the First

Amendment because it is void for

vagueness and sweeps constitutionally

protected rights within its scope.

B-14

(d) The ordinance as applied

violates the equal protection clause of

the Fourteenth Amendment in that it has

not been applied to other theaters in

the City of Pocatello.

(e) The ordinance on its face and

as applied violates the Fifth and

Fourteenth Amendments to the

Constitution of the United States in

that it constitutes an unlawful and

unreasonable taking of property without

just compensation.

(£) The City Council hearing of

October 23, 1975, conducted under the

color of State law, violated the due

process clause of the Fourteenth

Amendment in that plaintiffs were not

given adequate or proper notice of the

subject matter and scope of said

hearing.

(g) The City Council hearing of

October 23, 1975, conducted under the

B-15

color of State law, violated the due

process clause of the Fourteenth

Amendment in that at least two (2)

members of said Council had exhibited

bias and prejudice against plaintiffs

and their position.

(h) The City Council hearing of

October 23, 1975, conducted under the

color of State law, violated the due

process clause of the Fourteenth

Amendment in that defendant, MELVIN

MORGAN's, interests conflicted with

those of the plaintiffs and plaintiffs

were thereby denied an impartial panel.

(i) Denial of a building permit by

defendants was arbitrary, capricious and

for political purposes and was done

willfully, knowingly and purposefully

with the intent of depriving plaintiffs

of the right to operate an adult theater

and book store all in violation of

plaintiffs' Fourteenth Amendment right

B-16

to due process of law and First

Amendment rights of freedom of speech

and association.

(j) Denial of a conditional use

permit by defendants was arbitrary,

capricious and for political purposes

and was done willfully, knowingly and

purposefully with the intent of

depriving plaintiffs of their right to

operate an adult book store and theater,

all in violation of plaintiffs'

Fourteenth Amendment right to due

process of law and First Amendment

rights of freedom of speech and

association.

COUNT III

Damages

28. Paragraph 1 through 27 above

are hereby incorporated by reference.

29. As a direct result of the

actions aforesaid, plaintiffs have

suffered and will continue in the future

B-17

to suffer a loss of income, profits,

good will and have incurred and will

continue to incur costs, fees and

expenses.

COUNT IV

Tort - Interference With

Prospective Pecuniary Advantages.

30. Paragraph 1 through 27 above

are hereby incorporated by reference.

31. Defendants wrongfully,

willfully, intentionally, maliciously

and for their own political purposes

prevented and precluded plaintiffs from

obtaining prospective pecuniary

advantages available to them through the

exhibition and distribution of printed

materials and motion pictures at 250

North Main, Pocatello, Idaho.

32. As a direct and proximate

result of the actions aforesaid,

plaintiffs have suffered and will

continue to suffer in the future a loss

B-18

of income, profits, good will; and

plaintiffs have incurred and will

continue to incur costs, fees and

expenses.

COUNT V

Tort - Nuisance

33. Paragraphs 1 through 27 above

are hereby incorporated by reference.

34. Defendants wrongfully,

intentionally, willfully, and unlawfully

interfered with and prevented the lawful

use of 250 North Main, Pocatello, Idaho,

as a motion picture theater.

35. As a direct result of the

actions aforesaid, plaintiffs has

suffered, and will continue in the

future to suffer, a loss of income,

profits and good will; and plaintiffs

have incurred, and will continue to

incur, costs, fees and expenses.

B-19

PRAYER FOR RELIEF

WHEREFORE, plaintiffs pray that

this Court:

1. Declare unconstitutional and

invalid the zoning ordinance of the City

of Pocatello, Idaho, to the extent it

requires a motion picture theater to

obtain a conditional use permit.

2. Declare the zoning ordinance of

the City of Pocatello, Idaho,

unconstitutional and invalid to the

extent that it prohibits motion picture

theaters within said City.

3. Declare invalid and

unconstitutional any and all provisions

of the City of Poseselio cenine

ordinance which requires plaintiffs to

obtain a conditional use permit prior to

operating a motion picture theater.

4. Declare invalid the City

Council's hearing of October 23, 1975.

B-20

5. Reinstate the October 8, 1975,

decision of the Pocatello Board of

Adjustments.

6. Preliminarily and permanently

enjoin defendants, their agents,

employees and all persons acting in

concert with them from initiating any

action which is contrary to or

inconsistent with, directly or

indirectly, the decision and ruling of

the Board of Adjustments of the City of

Pocatello on October 8, 1975.

7. Preliminarily and permanently

enjoin defendants, their agents,

employees and all persons acting in

concert with them from initiating any

action which is predicated either

directly or indirectly on a claim that

the use of 250 North Main, Pocatello,

Idaho, as a motion picture theater and

book store is not a permitted use under

B-21

the zoning ordinance of the City of

Pocatello, Idaho.

8. Issue a judgment in favor of the

plaintiffs and against the defendants,

and each of them, for a sum equal to

plaintiffs' loss of income, profits,

good will and costs, fees and expenses

incurred in connection with the denial

of the building permit and the

conditional use permit.

9. Enter judgment in favor of

plaintiffs and against defendants, and

each of them, for punitive damages in

the amount of Two Hundred Fifty Thousand

($250,000.9C) Dollars.

10. Enter judgment in favor of

plaintiffs and against defendants, and

each of them, for reasonable attorneys'

fees and costs in bringing this action.

B-22

11. Award plaintiffs such other and

further relief as the Court may deem

proper.

Respectfully Submitted

GREEN, FROST & CANTRILL

BY /s/ Davis W. Cantrill

David W. Cantrill

ROBERT J. HIRSH, P.C.

BY /s/ James A. Shiner

James A. Shiner

STATE OF ARIZONA)

COUNTY OF PIMA )

DEBORAH ANN MOORE, being first duly

sworn, upon her oath, deposes and says:

That she is one of the plaintiffs in the

foregoing action; that she has read the

foregoing complaint, knows the contents

thereof; and that the same are true and

correct to the best of her own knowledge

and belief.

B-23

/s/ Deborah Ann Moore

Deborah Ann Moore

SUBSCRIBED AND SWORN to before me

this day of 1975,

by Deborah Ann Moore.

Notary Public

My Commission Expires:

STATE OF ARIZONA)

COUNTY OF PIMA )

JOSEPH TOVAR, being first duly

sworn, upon his oath, deposes and says:

That he is one of the plaintiffs in the

foregoing action; that he has read the

foregoing Complaint, knows the contents

thereof; and that the same are true and

correct to the best of his own knowledge

and belief.

Joseph Tovar

B-24

SUBSCRIBED AND SWORN to

before me this day of

1975, by Joseph

Tovar.

Notary Public

My Commission Expires:

APPENDIX C

State Court Complaint filed on

August 5, 1976, in the District

Court of the Sixth Judicial

District of the State of Idaho,

In and For The County of Bannock

entitled Joseph Tovar and Deborah

Ann Moore v. C.G. Billmeyer;

Melvin Morgan; F.W. "Bill"

Roskelley; John Evans; Les Purce;

Donna Boe; Earl Pond; Grant

Anderson; Robert Meline; Wayne

Ellis; and the City of Pocatello,

an Idaho municipal corporation,

being Case No. 34739

(Reference: See Petition for

Writ of Certiorari at pp. 19, 20,

59)

C-1

David W. Cantrill

GREEN & CANTRILL

524 Main, Suite 4

Post Office Box 2597

Boise, Idaho 83701

Telephone: 342-8915

Robert J. Hirsh

HIRSH, SHINER & POLIS

120 West Broadway

Tucson, Arizona 85701

Telephone: (602) 884-9630

ATTORNEYS FOR PLAINTIFFS

IN THE DISTRICT COURT OF THE

SIXTH JUDICIAL DISTRICT OF THE

STATE OF IDAHO, “IN AN FOR THE

COUNTY OF BANNOCK

JOSEPH TOVAR and )

DEBORAH ANN MOORE, )

)

Plaintiffs,)Case No. 34739

) COMPLAINT

-vVs- )

)

C.G. BILLMEYER; )

MELVIN MORGAN; F. )

C “aaes” )

ROSKELLEY; JOHN )

EVANS; LES PURCE; )

DONNA BOE; EARL )

POND; GRANT )

ANDERSON; ROBERT )

MELINE; WAYNE )

ELLIS; and THE )

CITY OF POCATELLO, )

an Idaho municipal)

corporation, )

)

Defendants.

C-2

Plaintiffs complain of defendants

and for cause of action allege:

COUNT ONE

Plaintiffs, Joseph Tovar and

Deborah Ann Moore, are residents of Pima

County, Arizona, and are owners of

certain real property located Pocatello,

Bannock County, Idaho; Defendants, C.G.

Billmeyer, Melvin Morgan, F.W. "Bill"

Roskelley, John Evans, Les Purce, Donna

Boe, Earl Pond, Grant Anderson and

Robert Meline, hereinafter collectively

referred to as ‘Council Members", and

Wayne Ellis are residents of the County

of Bannock, State of Idaho; Defendant,

City of Pocatello, Idaho is a municipal

corporation of the State of Idaho,

created by Title 50 of the Idaho Code.

All acts alleged herein occurred in

the County of Bannock, State of Idaho.

C-3

III.

Defendant Council Members were at

all times material herein duly elected

members of the City Council of the City

of Pocatello, Idaho, duly organized and

constituted pursuant to Title 50,

Chapters 7 and 8 of the Idaho Code, and

authorized by Title 50, Chapter 12, and

Title 67, Chapter 65, of the Idaho Code

to promulgate and maintain a zoning

ordinance in and for the City of

Pocatello, Idaho. Pursuant to said

authority, defendants have enacted Title

ll of the Pocatello, Idaho, City Code, a

zoning ordinance.

IV.

Defendant, Wayne Ellis, is the

Building Inspector for the City of

Pocatello, duly appointed and confirmed

by the authority conferred upon the City

Council by Title 50, Chapters 7 and 8 of

the Idaho Code and Title 3, Chapter 6,

C-4

of the City Code of the City of

Pocatello. Defendant Ellis is

authorized and required to issue

building permits and certificates of

occupancy in the City of Pocatello,

Idaho, in conformity with Title 11 of

the Pocatello City Code.

On or about August 31, 1975, and

for approximately three (3) years prior

thereto, plaintiffs owned and operated

in the City of Pocatello, Idaho, at 135

South Main, an adult movie theater and

book store known as the "Gallery

Theater".

VI.

On or about September 1, 1975,

defendant, Melvin Morgan, owner cf a

building located at 135 South Main,

Pocatello, Idaho, secured an Order

evicting the Gallery Theater and Joseph

Tovar from said premises.

C-5

VIL.

On or about September 5, 1975,

plaintiffs moved out and quit the

premises at 135 South Main, Pocatello,

Idaho.

VIII.

Plaintiffs purchased on or about

September 1, 1975, the real property and

improvements located at 250 North Main,

Pocatello, Bannock County, Idaho, more

particularly described as follows:

The northwesterly 21 feet and

9.34 inches of Lot 3, Block

431, Pocatello Town Site,

Bannock County, Idaho.

IX.

On September 2, 1975, defendant

Council Members conducted a special

meeting of the City Council of

Pocatello. The purpose of the meeting

was to devise methods preventing

plaintiffs from opening or reopening an

adult theater and book store at 250

C-6

North Main, Pocatello, Idaho.

On or about September 5, 1975,

defendant, Melvin Morgan filed a Civil

Action No. 33818 against the plaintiffs

in the District Court of the Sixth

Judicial District of the State of Idaho

In and For the County of Bannock (a copy

of said Summons and Complaint is

attached hereto and by reference

incorporated herein as Exhibit "A").

XI.

On or about September 10, 1975,

plaintiffs requested from defendants

Ellis a building permit for an adult

theater and book store. Defendant Ellis

refused to issue a permit to plaintiffs

on express orders from the Council

Members.

XII.

That plaintiffs were advised by

defendant Ellis, that in order to secure

C-7

a building permit, plaintiffs would have

to apply for a conditional use permit

pursuant to the zoning ordinance of the

City of Pocatello because plaintiffs

desired to operate a theater on the

promise of 250 North Main, Pocatello,

Idaho.

XIII.

On September 17, 1975, plaintiffs

applied to the duly authorized Board of

Adjustments of the City of Pocatello for

a conditional use permit for the

construction of a private adult book

store and theater. Said application was

approved by the Board of Adjustments on

October 8, 1975.

XIV.

On October 9, 1975, an appeal was

taken to the City Council of the City of

Pocatello, Idaho, from the decision of

the Board of Adjustments by the

"Downtown Merchants' Association".

C-8

Plaintiffs were thereafter advised that

a hearing would be held before the City

Council on October 23, 1975, and that

the subject of said hearing would be

limited to a review of the Board of

Adjustments’ decision of October 8,

1975.

XV.

That a hearing was conducted by

defendant council members on October 23,

1975, twelve (12) days before defendant,

Evans, Boe and Roskelley were to stand

for election, and without prior notice

the hearing was open to public

discussion and that the subject matter

of said hearing would include more than

a review of the Board of Adjustments’

decision of October 8, 1975.

XVI.

The City Council hearing of October

23, 1975, included public discussion and

was not limited to a review of the Board

C-9

of Adjustments’ decision of October 8,

1975.

XVII.

The Council Members of the City

Council of the City of Pocatello, Idaho,

voted on October 23, 1975, to reverse

the decision of the Board of Adjustments

and to deny plaintiffs a conditional use .

permit.

XVIII.

Defendant Roskelley, prior to the

Council meeting of October 23, 1975,

appeared at the Board of Adjustments’

hearing on October 8, 1975, and

distributed leaflets advocating

plaintiffs' request for a conditional

use permit be denied. Defendant,

Roskelley also orally advocated the

denial of plaintiffs' request for a

conditional use permit during the course

of said Board of Adjustments’ hearing.

C-10

XIV.

On or about March 18, 1976,

pursuant to Court order, the City

Council again voted to deny plaintiffs

conditional use permit, but violated the

terms and limitations of said Order and

failed to give effect to the presumption

of validity of the prior decision of the

Board of Adjustments and failed to limit

consideration to a review of the

materials presented to the Board of

Adjustments.

COUNT TWO

Plaintiffs reallege paragraphs I

through XIV inclusive of Count One and

by reference incorporate the same

herein.

The zoning ordinance on its face

and as applied to plaintiffs violates

the Constitution of the State of Idaho

as follows:

C-11

(a) The ordinance on its face

and as applied violates Article I,

Section 9 of the Constitution of

the State of Idaho in that said

ordinance provides no zone for a

theater and the requirement of

obtaining a conditional use permit

constitutes an unlawful prior

restraint of freedom of speech.

(b) The ordinance on its face

and as applied excluded from the

entire City of Pocatello, Idaho,

motion picture theaters and,

therefore, violates the rights of

freedom of speech and association

secured by Articles I, Section 9 of

the Constitution of the State of

Idaho.

its face and as applied violates

Article I, Section 9 of the Idaho

Constitution because it is void for

C-12

vagueness and sweeps

constitutionally protected rights

within its scope.

(d) The ordinance on its face

and as applied violates the Due

Process Clause of Article I,

Section 13 of the Idaho

Constitution in that it constitut -s

an unlawful and unreasonable taking

of property without just

compensation.

ELi.

The zoning ordinance does not apply

to indoor motion picture theaters.

IV.

An indoor motion picture theater is

a permitted use at 250 North Main,

Pocatello, Idaho, under the zoning

ordinance.

C-13 os

COUNT THREE

Plaintiffs reallege paragraphs I

through XIV inclusive of Count One and

by reference thereto incorporate the

same herein.

II.

Defendant have wrongfully,

willfully, intentionally and maliciously

and for their own political purposes

prevented and precluded plaintiffs from

obtaining respective pecuniary

advantages available to them through the

exhibition and distribution of printed

material and motion pictures at 250

North Main, Pocatello, Idaho.

EEE.

As a direct and proximate result of

the action aforesaid, plaintiffs have

suffered and will continue to suffer in

the future a loss of income, profits,

good will and plaintiffs have incurred

C-14

and will continue to incur costs, fees

and expenses.

COUNT FOUR

Plaintiffs reallege paragraphs I

through XIV inclusive of Count One and

by reference thereto incorporate the

same herein.

Defendants wrongfully,

intentionally, willfully and unlawfully

interferred with and prevented the

lawful use of 250 North Main, Pocatello,

Idaho as a motion picture theater.

} & &

As a direct and proximate result of

the actions aforesaid, plaintiffs have

suffered and will continue to suffer in

the future a loss of income, profits and

good will, and the plaintiffs have

incurred and will continue to incur fees

and expenses.

« C-15

WHEREFORE, Plaintiff prays judgment

as follows:

1. For an order declaring

unconstitutional and invalid the zoning

ordinance of the City of Pocatello,

Idaho; or in the alternative declare

said ordinance inapplicable to indoor

motion picture theaters; or in the

alternative, declare an indoor motion

picture a permitted use at 250 North

Main.

2. For a reinstatement of the

October 8, 1975, decision of the

Pocatello Board of Adjustments.

3. For an Order preliminarily and

permanently enjoining defendants, their

agents, employees and all persons acting

in concert with them from initiating any

action which is contrary to or

inconsistent with, directly or

indirectly, the decision and ruling of

the Board of Adjustments of the City of

C-16

Pocatello, on October 8, 1975.

4. For an Order preliminarily and

permanently enjoining defendants, their

agents, employees and all persons acting

in concert with them from initiating any

action which is predicated either

directly or indirectly on a claim that

the use of 250 North Main, Pocatello,

Idaho as a motion picture theater and

bookstore is not a permitted use under

the zoning ordinance of the City of

Pocatello.

5. For judgment in favor of

plaintiffs and against defendants, City

of Pocatello, Roskelley, Evans, Boe,

Billmeyer, Anderson, Melane and Morgan,

and each of them, for a sum equal to

plaintiffs' loss of income, profits,

good will and costs, fees and expenses

incurred in connection with the denial

of the building permit and the

conditional use permits.

C-17

6. For judgment in favor of

plaintiffs and against defendants, City

of Pocatello, Roskelley, Evans, Boe,

Billmeyer, Anderson, Melane and Morgan,

and each of them, for punitive damages

in the amount of $250,000.00.

7. For judgment against defendants,

and each of them, for reasonable

attorney's fees and costs incurred in

the institution of this action.

8. For such other and further

relief as to the Court seems just and

equitable.

GREEN & CANTRILL

BY /s/ David W. Cantrill

David W. Cantrill

APPENDIX D

Response and Answer of City of

Pocatello filed on or about April

15, 1980, in the United States

| District Court, District of Idaho

entitled Joseph Tovar and Deborah

Ann Moore v. C.G. Billmeyer;

Melvin Morgan; F.W. "Bill"

Roskelley; John Evans; Les Purce;

Donna Boe; Earl Pond; Wayne

Ellis; and the City of Pocatello,

an Idaho municipal corporation,

being Civil Action CIV-4-75-59.

(Reference: See Petition for

Writ of Certiorari at p. 57)

D-1

L. Charles Johnson

JOHNSON AND OLSON, CHARTERED

303 Spaulding Buildin

Pocatello, Idahe 83201

Telephone: (208) 232-7926

Lawyers for Defendants

IN THE UNITED STATES DISTRICT

COURT, DISTRICT OF IDAHO

JOSEPH TOVAR and )

DEBORAH ANN MOORE, )

Plaintiffs,) CIVIL No.

) 4-75-59

vs. )

) RESPONSE AND

C.G. BILLMEYER; ) ANSWER OF

MELVIN MORGAN, F. ) CITY OF

W. "Bill" ) POCATELLO

ROSKELLEY; JOHN )

EVANS; LES PURCE; )

DONNA BOE; EARL )

POND; WAYNE )

ELLIS; and THE )

CITY OF POCATELLO, )

an Idaho municipal

corporation,

)

Defendants. )

COMES NOW the defendant, The City

of Pocatello, an Idaho municipal

corporation, and, preserving its pz ’or

defenses, responds to the complaint of

the plaintiffs and answers same as

follows:

D-2

FIRST DEFENSE

This Court lacks jurisdiction over

such defendant, which is a political and

governmental entity of the State of

Idaho, as to the subject matter of this

action either in the context of

plaintiffs' allegations or by virtue of

amendments IX, X, and XI, Constitution

of the United States and the law defined

in Quern v. Jordan US , 59:L Ed 24

383 (1979), Lake County Estates v. Tahoe

Regional Planning Agency US i. i *

Ed 2d 401 (1979), Nevada v. Hall

US , 599 L Ed 2d 416 at 423-425

(1979). The Court invoking the

discretion on the basis and grounds

defined in Moore v. Sims, US el

Ed 2d 994 (1979) should not exercise

jurisdiction of this litigation in the

context of these claims, and by reason

of the prior state Court litigation by !

plaintiffs.

D-3

SECOND DEFENSE

Should the complaint otherwise

state a claim upon which relief could be

granted to plaintiffs it fails, however,

to allege or establish the necessary

conditions precedent, (such as required

statutory notice of claim to the

defendant, City of Pocatello) encumbent

upon the plaintiffs to so allege and

establish, and certain conditions

precedent in law to assert their

grievances and claims which have not

been met, and the allegations do not

show the proper demand, or that the

applications for and of administrative

and judicial remedies have been

undertaken and exhausted. The pendent

state law claims asserted by plaintiffs

have been adjudicated in state Courts

having jurisdiction thereof and Count IV

and Count V of the complaint should be

stricken.

D-4

THIRD DEFENSE

Each Count of the complaint, in

light of the record in this Court and

proceedings in state Courts, now is

barred by res judicata and/or collateral

estoppel (see exhibits A through H

referred to and incorporated by

reference in Tenth Setdene: and/or the

complaint on file herein with

uncontradicted factual matter of record

affirmatively defeats, or fails to

state, a claim upon which relief can or

should now be granted to plaintiffs as

against this defendant.

FOURTH DEFENSE

The allegations are insufficient to

sustain a claim for monetary relief

against this defendant, and/or do show

the fact that this defendant is entitled

to immunity either from suit or from

claims of monetary damages and all

allegations and prayers for monetary

D-5

relief should be stricken. The

complaint does not state a claim for

punitive damages against this defendant

as there is no showing by proper

allegation that this defendant acted

willfully or that this defendant has

acted in bad faith or for an improper

motive and such allegations and prayers

for punitive damages should be stricken

for these and other reasons.

FIFTH DEFENSE

This defendant, alternatively to

and supplemental to the above, preserves

all rights and procedure for a three

judge court provided by Chapter 155 (§§

2281-2284) of Title 28, United States

Code, where and when applicable to this

proceeding.

Each of the Defenses Seventh

through Fifteenth hereafter set out are

adopted by reference as preliminary and

continuing defenses herein.

D-6

SIXTH DEFENSE

(Answer)

This defendant denies every

allegation in every paragraph of the

complaint, unless hereinafter

specifically admitted, and, in doing so,

further denies, alleges and states as

follows:

1. In answer to paragraph 1 of the

complaint, admits only that plaintiffs

are attempting to "invoke" jurisdiction

as therein set out under the provisions

cf the United States Code referred to by

them, but denies jurisdiction is proper

under such provisions, denies

jurisdiction, and denies all the

allegations, averments and statements in

the second and third sentence of such

paragraph.

2. Denies paragraph 2; and states

that the matter and claims cannot now be

properly entertained as a diversity

pacar

abi

a hinaitinsges NS ewes Ro thhe

D-7

action or on pendent state law

jurisdiction or venue as these have been

adjudicated in state Courts.

3. Admits that the plaintiffs or

one of them are owners of certain real

property (described later in paragraph 8

of their complaint) located in the

County of Bannock, City of Pocatello,

State of Idaho, and otherwise denies

each and every allegation and averment

of said paragraph 3.

4. Admits paragraph 4 save and

except states in regard to the

allegations of paragraph 4(a) that Les

Purce is now a resident of the County of

Ada, State of Idaho.

5. Denies the words "movie theater"

in the third line of paragraph 5 and

deleting and omitting such words "movie

theater and" and deleting the last word

of such paragraph: Theatre," admits

the allegations of paragraph 5.

D-8

6. Admits paragraphs 6 and 7; and,

in answering paragraph 8, is not able to

now admit or deny and so denies both

plaintiffs purchased and owned said

property and thus denies the standing of

either party to maintain this action.

7. In answer to paragraph 9, admits

only that on September 2, 1975, certain

members of the City Council of

Pocatello, conducted a special meeting

and that included in the purposes of the

meeting was a discussion of the Gallery

and the zoning of the property at 250

North Main, Pocatello, Idaho, and the

purpose for which this property was

being, and would be contemplated to be

used; and denies that defendants John

Evans, Earl Pond and Wayne Ellis were at

such meeting and states that they were

not.

8. Admits paragraphs 10, 12, 14, 17

and 18.

D-9

9. Denies paragraphs 11, 13, 20, 21

and 22.

10. Denies the words "limited to"

in the sixth line of paragraph 15 and

reading the paragraph without these

words and omitting same, admits

paragraph 15.

lil. Denies that the hearing

mentioned in paragraph 16 was "without

prior notice" and with these words

omitted and deleted from the third and

fourth lines of said paragraph, admits

only that a hearing was conducted by the

Pocatello City Council on October 23,

1975 and with those council members then

in office and present, denying the

remaining statements and averments of

paragraph 16.

12. The defendant does not have

sufficient information to either admit

or deny and therefore, denies the

allegations of paragraph 19.

D-10

13. As to the other allegations and

paragraphs in Count I, Count II, Count

III, Count IV and Count V, denies

paragraphs 24, 25, 27, 29, 31, 32, 34

and 35; and, incorporates the responses

and answers, denials and averments in

paragraphs 1 through 22 in answer to

paragraph 23 of Count I; and paragraph

26 of Count II; and paragraph 28 of

Count III; and paragraph 30 of Count IV;

and paragraph 33 of Count V.

SEVENTH DEFENSE

That this defendant, an Idaho

Municipality, was acting in all matters

of which plaintiffs complain and clain,

in either a quasi-judicial or

quasi-legislative function and capacity

and this defendant so enjoyed an

absolute immunity as such official

entity of a judicial or legislative

capacity under Idaho law.

D-11

EIGHTH DEFENSE

The defendant also alleges it is

protected by official immunity against

any and all claims of plaintiffs, and

states that all acts and exercise of

discretion were taken in the regular

course of discharging official duties

which affords to this defendant immunity

from liability.

NINTH DEFENSE

That in all things and at all times

this defendant acted in good faith and

enjoys a privilege ard/or immunity for

all votes, actions and inactions as the

Pocatello City Council including any act

or omission of which plaintiffs

complain.

TENTH DEFENSE

1. That the claims and causes of

action set forth in the complaint all,

and/or each of them, are barred by a

final judgment of dismissal entered by

D-12

a Court of competent jurisdiction which

became final on appeal; that is, in a

case entitled as shown on exhibits E, F,

G and H appended hereto and incorporated

here by reference, in register number

34739, in the District Court of the

Sixth Judicial District of the State of

Idaho, in and for the County of Bannock,

wherein the honorable Arthur P. Oliver,

a judge of a Court of competent

jurisdiction, entered on December 28,

1976, a final judgment, which was

appealable and from which the plaintiffs

did appeal to the Supreme Court of the

State of Idaho, which appeal was

entertained by said Court, and judgment

by it entered on February 28, 1978 in

docket number 12556, and which decision

and opinion is published at 98 Idaho

891, 575 P2d 489, establishing the

affirmance of the judgment entered by

D-13

Honorable Arthur P. Oliver in said

docket number 34739.

2. That on December 9, 1975, prior

to the filing of this suit, Deborah Ann

Moore, a plaintiff here, on her own

behalf and as privy for Joseph Tovar,

filed a suit and litigation entitled as

shown on exhibits A, B, C and D,

appended hereto and incorporated here by

reference, in register 34096 in which it

was charged that the City decision and

the City Council decision denying the

conditional use permit was arbitrary and

capricious and motivated by prohibited

considerations. The matter was

placed before a Court of competent

jurisdiction and the judges of such

Court. A Memorandum Decision was

entered in that action, docket number

34096 on February 11, 1976, in which the

Court found that the City Council had

not acted arbitrarily, capriciously or

D-14

in abuse of discretion by denying the

conditional use permit and found that

the classification of "Theaters" as

"amusement enterprises", was not

unreasonable and arbitrary and implicit

in this ruling, as authoritatively

settled by the Idaho Supreme Court in

its opinion in 98 Idaho 891 at 896, is

the finding that the Zoning Code of your

defendant City was not

unconstitutionally vague; and, the

Court, however, held the procedures

followed at the October 23, 1976,

Council meeting were improper in that

the meeting was conducted as a "public

hearing" and considered new evidence

rather than as a review of the evidence

submitted before the zoning board; and,

thus, the said Court remanded the matter

to the City Council of this defendant

city. Pursuant to the mandate the City

Council and council members again

D-15

reviewed the matter. No appeal was

taken from the reconsideration and

review. Earlier in such suit, the

Memorandum & Order, exhibit B

incorporated here by reference, entered

on January 13, 1976, following the

application of defendant City for an

injunction was duly entered adjudicating

the matters therein referred to.

On January 26, 1977, the suit and

litigation so instituted by Moore on her

own behalf and as privy for Tovar was

dismissed by final order and a copy of

such Judgment is exhibit A incorporated

here by reference. No appeal was taken

from this final judgment of dismissal by

Tovar or by Moore. Based on the

doctrines of res judicata and collateral

estoppel, the plaintiffs here are barred

and estopped from the claims and causes

of action set forth in their complaint

here as all and/or each of such claims

D-16

are barred by this final judgment of

dismissal entered by the Court of

competent jurisdiction which became

final on the failure of Tovar or Moore

to appeal.

3. A judgment is conclusive as

between the parties and their privies on

all issues which were or could have been

litigated in the earlier action; and in

this case all the matters pressed by the

plaintiffs Tovar and Moore were, should

have and could have been litigated in

the prior actions and the final prior

judgments have adjudicated the matter

and bar the present claims.

ELEVENTH DEFENSE

1. That the judgments as set forth

above in the TENTH DEFENSE, were duly

entered as so alleged and such

paragraphs 1 and 2 of TENTH DEFENSE are

adopted by reference.

D-17

2. Such judgments that have been

rendered by a Court having jurisdiction

are not subject to collateral attack,

and plaintiffs cannot now so attempt to

relitigate the claims and matters or

claimed wrongs which were or could have

been presented in the prior litigations

of which exhibits A through H

demonstrate such files, pleadings and

disposition.

3. The rights, questions and facts

put in issue and determined by the Idaho

Courts, which were of competent

jurisdiction, cannot now be here

litigated and disputed by these

plaintiffs; and all the issues and

claims of the plaintiffs in the idaho

State Court proceedings are conclusive

to the plaintiffs. The State and

Federal actions are based on the same

claimed wrong, and the plaintiffs here

are not permitted to fragment and to

D-18 “

litigate piecemeal the issues which

could have been resolved in one action.

TWELFTH DEFENSE

That prior to the filing of this

action by the plaintiffs here, Deborah

Ann Moore, on her own behalf, and as

privy of Joseph Tovar, filed an action

in State District Court; and after the

filing of this action, the plaintiffs

here filed another action in State

District Court, and the State Court,

having jurisdiction, at the instance of

the plaintiffs in such state actions,

litigated the same subject matter and

the same or similar matters involving a

common nucleus of operative fact, which

said matters have been heard and

adjudicated in State Court. These

plaintiffs, having selected their forum

and having allowed their claims to be

adjudicated to conclusion are barred by

res judicata and/or collateral estoppel.

D-19

THIRTEENTH DEFENSE

That the plaintiffs and each of

them have failed to give notice of claim

or demand required under Idaho law, in

particular § 50-219, Idaho Code,

§§6-903, 906 and 908, Idaho Code,

Chapter 2, Title 59, Idaho Code and

Chapter 9, Title 6 Idaho Code, and which

notices and claims are conditions to

maintain their claims under Idaho law

and for their recovery herein.

FOURTEENTH DEFENSE

As and for further affirmative

defenses this defendant states that any

and all loss, damage, injury and matters

of which the plaintiffs (or either of

them) complain were on a risk assumed by

them or because of their own negligence,

that they intentionally purchased the

subject property the use of which they

wish to change, and that they are thus

estopped from in any way presenting a

D#20

claim against this defendant, or at all,

and have waived any and all rights they

might otherwise have by intentionally

proceeding as they have.

FIFTEENTH DEFENSE

That any and all claims, loss,

damage and injury of the plaintiffs (or

either of them) are barred by laches, by

the failure of each plaintiff to

undertake the appropriate and necessary

conditions precedent in which to present

claim, and each part of said claim, and

because of failure by the plaintiffs to

undertake necessary conditions

precedent, and the non-occurrence of

said conditions, and that things and

matters in litigation in this court have

been under several registry numbers

undertaken in state proceedings and

formal orders issued therein and the

said plaintiffs failed to process and

continue their appeals, if aggrieved,

D-21

and failed or neglected to process and

exhaust administrative and appellate

remedies and are now barred by

applicable time limits, statutes of

limitations and estopped by their own

conduct from presenting claims against

this defendant or at all and as to each

and every part of their said purported

claims.

WHEREFORE, this defendant prays

that che Court decline to assert

jurisdiction over it for any money

damages or relief and/or disallow any

such claims, and that the matters in

this litigation be dismissed as to it,

that plaintiffs' complaint be dismissed

and that nothing be taken thereunder;

that judgment be entered in favor of

this answering defendant and as against

the plaintiffs and that this answering

defendant be awarded costs and expenses

necessary and reasonably incurred in the

os D-22

defense of this action and for such

other relief as to the Court seems just

and proper.

Dated this 15th Day of April, 1980.

JOHNSON AND OLSON, CHARTERED

L. Charles Johnson

303 Spaulding Building

Pocatello, Idaho 83201

Telephone: (208) 232-7926

Lawyers for Defendants

CERTIFICATE OF MAILING

I CERTIFY that I mailed a true copy

of the foregoing pleading to the

following attorneys by placing same in

the United State mail, postage prepaid,

addressed to them as shown below, on

this 15th day of April, 1980.

2-23

David W. Cantrill, Esquirz

GREEN & CANTRILL

106 North 6th, Suite 226

P.O. Box 2597

Boise, Idaho 83701

James A. Shiner, Esquire

William Walker, Esquire

STOMPOLY & EVEN, P.C.

La Placita Village

Magdalena Building

120 West Broadway

P.O. Box 3017

Tucson, Arizona 85/701

/s/_L. Charles .

Licensed Lawyer

~ BEST AVAILABLE COPY I

APPENDIX E

Defendants’ Motion for Summary

Judgment, filed on or about July

17, 1980 in the United States

District Court, District of Idaho

entitled Joseph Tovar and Deborah

Ann Moore v. C.G. Billmeyer;

Melvin Morgan; F.W. "Bill"

Roskelley; John Evans; Les Purce;

Donna Boe; Earl Pond; Wayne

Ellis; and the City of Pocatello,

an Idaho municipal corporation,

being Civil Action Civ 4-75-59.

(Reference: See Petition for

Writ of Certiorari at p. 56)

E-1

L. Charles Johnson

JOHNSON AND OLSON, CHARTERED

303 rE: Buildin

Pocatello, Idaho 83201

Telephone: (208) 232-7926

Lawyers for Defendants

IN THE UNITED STATES DISTRICT

COURT, DISTRICT OF IDAHO

JOSEPH TOVAR and )

DEBORAH ANN MOORE, )

)

Plaintiffs,) CIVIL No.

4-75-59

vs.

MOTION FOR

C.G. BILLMEYER; SUMMARY

MELVIN MORGAN, F. JUDGMENT

)

7. "B41" )

ROSKELLEY; JOHN )

EVANS ; LES PURCE; )

DONNA BOE; EARL )

POND; WAYNE )

ELLIS; and THE )

CITY OF POCATELLO, )

an Idaho municipal)

corporation, )

)

Defendants.

COME NOW the defendants in the

above titled cause, other than Earl Pond

(who has before been dismissed with

prejudice), and pursuant to and under

the provisions of Rule 56 (b), Federal

Rules of Civil Procedure, each for

E-2 *

herself, himself and itself, move for

and because the depositions, affidavits

and uncontroverted facts of record show

that under the facts on which there is

no genuine issue, each of the said

defendants are entitled to judgment as a

matter of law, and so move for judgment

in favor of each said defendant and that

as to each said defendant this action

now be dismissed.

Done and dated 15th day of July,

1980.

/s/ L. Charles Johnson

L. Charles Johnson

JOHNSON AND OLSON, CHARTERED

303 Spaulding ee

Pocatello, Idaho 83210

Telephone: (208) 232-7926

E-3

CERTIFICATE OF MAILING

I CERTIFY that I mailed a true copy

of the foregoing and of pro forma

judgment, and supporting Concise

Statement of Material Facts, and

supporting brief, together with

documentary matter and affidavits to the

following attorneys by placing same in

the United States mail, postage prepaid,

addressed to them as shown below, on

this 17th day of July, 1980.

David W. Cantrill, Esquire

GREEN & CANTRILL

106 North 6th, Suite 226

P.O. Box 2597

Boise, Idaho 83701

James A. Shiner, Esquire

William Walker, Esquire

STOMPOLY & EVEN, P.C.

La Placita Village

Ti gen Building

120 West Broadway

P.O. Box 3017

Tucson, Arizona 85701

/s/ L. Charles Johnson

Licensed Lawyer

APPENDIX F

Defendants’ Concise Statement of

Material Facts in Support of

Motion for Summary Judgment filed

on or about July 15, 1980, in the

United States District Court,

District of Idaho entitled Joseph

Tovar and Deborah Ann Moore v.

C.G. Billmeyer; Melvin Morgan;

F.W. "Bill" Roskelley; John

Evans; Les Purce; Donna Boe; Earl

Pond; Wayne Ellis; and the City

of Pocatello, an Idaho municipal

corporation; being Civil Action

Civ 4-75-59.

(Reference: See Petition for

Writ of Certiorari at p. 56)

F-1

L. Charles Johnson

JOHNSON AND OLSON, CHARTERED

303 Spaulding Buildin

Pocatello, Idaho 83201

Telephone: (208) 232-7926

Lawyers for Defendants

IN THE UNITED STATES DISTRICT

COURT DISTRICT OF IDAHO

JOSEPH TOVAR and )

DEBORA‘ ANN MOORE, )

)

Plaintiffs,) CIVIL No.

) 4-75-59

vs. )

) CONCISE

C.G. BILLMEYER; ) STATEMENT

MELVIN MORGAN, F. ) OF MATERIAL

G,: 73632" ) FACTS IN

ROSKELLEY; JOHN ) SUPPORT OF

EVANS; LES PURCE; ) MOTION FOR

DONNA BOE; EARL ) SUMMARY

POND; WAYNE ) JUDGMENT

ELLIS; and THE )

CITY OF POCATELLO, )

an Idaho municipal)

corporation, )

)

Defendants.

Consistent with and pursuant to

Rule 4(e) of this Honorable Court this

concise statement of the material facts

as to which the defendants, each for

himself, herself and itself, contends

there is no genuine issue follows:

F-2 ~

Idaho is and was during the entire

year of 1975 and following a state in

the United States of America.

The City of Pocatello is and was

during the entire year 1975 and

following duly organized and constituted

pursuant to the provisions of the

statutes of the State of Idaho and is an

incorporated city receiving its power,

jurisdiction and functions under the

Idaho Constitution, including Article 12

§2, thereof, and from the Idaho

legislature, and it has for all material

time been so duly organized and

constituted and is the second largest

city in the state of Idaho. Pursuant to

the legislative grants and consistent

therewith, and including, Title 50,

Chapters 7 and 8 of the Idaho Code and

authorized by Title 50, Chapter 12, and

Title 67, Chapter 65, of the Idaho Code,

the City of Pocatello promulgated and

a F-3

maintained a comprehensive zoning

ordinance in and for the City. Pursuant

to proper authority the City and its

Council members then in office and then

duly elected, and prior to February 28,

1969, enacted Title 11 §11-1-1 through

§11-2-3 of the Zoning Ordinance

identified as 1567, of the Pocatello,

Idaho, City Code, a zoning ordinance.

Such zoning ordinance, as revised, and

effective for the entire period 1972

through 1976, is submitted herewith (see

affidavits of William L. Herrington and

Wayne Ellis) together with other

documents, including papers from the

state Court proceedings.

Wayne Ellis, one of the defendants,

was for all material times herein the

building official, sometimes referred to

as the building inspector, for the City

of Pocatello, Idaho, duly appointed and

confirmed by the authority conferred

r-4

upon the Council by the Idaho Code,

including Title 50, Chapter 7 and 8 of

the Idaho Code and pursuant to Title 3,

Chapter 6, of the City Code of the City

of Pocatello, Idaho. As the building

official Ellis in his department issued

or refused to issue permits and

certificates of occupancy in the City of

Pocatello, Idaho, and among his guides

in such functions was the comprehensive

zoning ordinance submitted herewith.

On or about August 28, 1975, the

plaintiffs acquired control and right to

possession of the real property and

appurtenances located at 250 North Main,

which has been described as the

Northwesterly 21 feet and 9.34 inches of

Lot 3, Block 431, Pocatello Town site,

Bannock County, Idaho.

Prior to acquiring such property

the plaintiffs, while having access to

the zoning ordinance of Pocatello (Tovar

F-5

73) skimmed through these regulations

and provisions but never actually read

them (Tovar 73), and never scanned them

in depth to determine where in Pocatello

a theater or other entertainment type of

function could be located under the

zoning requirements (Tovar 74). Neither

the realtor nor plaintiffs looked at a

zoning map when discussing the purchase

(Tovar 77-78). Indeed, plaintiffs did

not discuss before the purchase the zone

or land use situation with their realtor

(Tovar 131). Plaintiffs did not discuss

zoning with the title company (Tovar

80). Tovar just inquired of the realtor

if there were buildings available in

downtown Pocatello (Tovar 76).

Tovar and his attorney brought out

that because of the nature of the

business people refuse to sell him

property (Tovar 122-123, also sew Tovar

127 and 129).

Fe a ee

F-6

Two persons 'downtown" would not

sell property to Tovar for his theater

(Tovar 127; 129-130). No one refused to

sell plaintiffs property at Fourth and

Fifth Avenues in a proper zone for such

amusement enterprise as a theater.

Plaintiffs did look into "industrial

light" (Moore 106) zone and other areas

of permissive use and at least as to one

property "it would have been too

expensive" (Moore 107). Tovar "might

have looked around that area" (Fourth

and Fifth Avenues) but he felt: "There

wasn't any property available except for

downtown" (Tovar 111), although he saw

vacant property with "for sale" signs up

and down Fourth and Fifth (Tovar

112-113.)

There would be no difference in his

business gross - overhead - profit if

located on Fourth on Fifth or at 250

North Main (Tovar 112-113). In fact,

F-7

the available locations of Fourth and

Fifth Avenue, being near the University,

might be economically advantageous

(Tovar 119-120). The City has done |

nothing to prevent or interfere with the

operation by plaintiffs of a theater in

such commercial highway or industrial

light zones (Moore 108-109).

A month before the purchase Tovar

looked at a zoning map in City Hall but

did not discuss it with anyone at the

City (Tovar 78-79). Although Tovar says

he is not familiar with what the City

ordinances require (Tovar 105), he

became familiar with the designations

such as industrial, industrial light,

commercial highway, etc. (Tovar 110-111;

113). The only discussion regarding

zoning implications before the purchase

of the property at 250 North Main was

over the telephone with Tucson lawyers

who did not have a zoning map of

F-8

Pocatello (Tovar 81-81), and these

lawyers, because the building at 250

North Main was in the same zone as the

building on South Main concluded that

plaintiffs could "go ahead and move"

(Tovar 81).

Neither Tovar nor Moore appeared at

any of the City meetings in regard to

the application for a conditional use

permit or to make a statement to support

same (Tovar 92-93), which, of course,

includes both the October 8, 1975, Board

of Adjustments meeting and the October

23, 1975 City Council meeting (Tovar

93).

Moore and Tovar (Moore 80) had

retained Vern Herzog and Billy Isley,

licensed Idaho lawyers (Moore 80-81;

Tovar 105-106) and the attorney Billy

Isley, represented plaintiffs, including

Moore, in her zoning appeals (Moore

85-87; Tovar 105-106).

F-9

In all her appeals and in these

matters Moore knew there was no problem

with the City for them in operating a

bookstore, and a bookstore was a

permitted use in the zone (Moore 87 and

104). Tovar knew this (Tovar 106-107).

In the other formal court

proceeding (Register 34096), filed prior

to the <cime the plaintiffs instituted

this federal action, a temporary

restraining order (TRO) issued in 1975

(Tovar 102-104), and Moore as privy

instituted this other litigation

contesting the October 23, 1975, Council

action and decision as it impacted

plaintiffs and the Gallery Theater

operation (Tovar 103).

The plaintiffs had originally

leased the property at 135 South Main as

Joseph Tovar and Deborah Tovar for the

operation of Pandora's Box, a sole

proprietorship. At some undefined time

F-10

this has changed to The Gallery and

evidently at some point indoor motion

pictures were shown. Because of the

showing of such alleged obscene and

pornographic films the State and Bannock

County authorities took action against

The Gallery and/or its owners or

operators. Each of the two "Tovars" in

April, 1972 so signed the lease for the

premises at 135 South Main, Deborah

signing and acknowledging it as "Debi

Tovar." However, Deborah alone took

title of record in August, 1975, to the

250 North Main property, and, she alone

sought the conditional use in September,

1975 and took the matter to the Board of

Adjustments in October, 1975 and

appealed the adverse ruling into State

District Court.

Citizens in the City of Pocatello

became aware in August - September, 1975

of activity in regard to the premises at

ae hela BONa LT A Nea), Whe ke

F-11 «

250 North Main (which had been used for

retailing and was known as and sometimes

referred to as the Jack N Jill shop),

and because of the perception of some of

these citizens who had businesses in the

two hundred block of North Main in

Pocatello that the premises at 250 North

Main might be used as a theater, and the

new owners might be expected to sell and

distribute what is normally referred to

as sexually oriented material from this

location, including what some felt was

the showing of sexually related

amusement, F. W. Roskelley, a member of

the City Council, in late August and

September 1975 had such citizen concern

expressed in relation thereto. Council

member Roskelley informed the Mayor of

his request for a session of the Council

to discuss this with the City officials.

On and before September 2, 1975,

there was such talk or rumor that

F-14

theater amusement activities, on

September 2, 1975, the adjourned or

executive meeting, sometimes referred to

as work session, of the City Council of

Pocatello was called by Mayor Billmeyer

and was conducted (among other reasons)

to discuss the ramifications of these

proposed or expected operations. At

that meeting several of the officials of

the City confirmed that the zoning laws

of the City of Pocatello precluded

amusement enterprises such as the type

of theater thought to be contemplated by

the r2w purchasers at the former Jack N

Jill shop location. Based upon such

location not being appropriate for

amusement enterprises, the location and

operation of a movie theater was

perceived to be impermissible and

improper, without an appropriate

application for "variance" (special use)

or conditional use. Neither at this

F-15

meeting or afterwards, nor at all, has

the City or its officials attempted to

prevent the plaintiffs from operating

and engaging in the operation of a book

store at 250 North Main, Pocatello,

Idaho. Neither at this meeting or

afterwards, has the City or its

officials attempted to prevent

plaintiffs operating and engaging in the

operation of any motion picture theater

amusement enterprise in a proper zone;

and there are several large areas so

zoned for such amusement enterprises in

Pocatello.

Under Idaho Law during 1974-1976

the determination of whether or not a

sexually oriented business, of any type,

including the dissemination of materials

and matter and shows and related type of

amusement, were governed by the laws of

the State, including the Criminal Code

of the State of Idaho, and were

F-20

plaintiffs in a formal application

requested a building permit for “an

adult theater and book store." The City

and its Officers, including Wayne Ellis,

refused to issue a permit which would

grant in that particular zone where was

located the property at 250 North Main

such property to be utilized to operate

a movie theater as such operation is in

the determination and decision of the |

city and its officers an amusement

enterprise for which the area was not

zoned.

The defendant City and Wayne Ellis,

advised the plaintiffs either through

their attorneys and agents or otherwise,

of his decision that in order to utilize

and operate the premises at 250 North

Main as a motion picture theater, one

would need a special or conditional use

permit in the land use, which

application for such "variance" (special

F-21

use) or conditional use permit was

provided in the zoning ordinances of the

City of Pocatello.

On or about September 17, 1975, the

plaintiff, Deborah Ann Moore, through

her lawyer, applied to the Board of

Adjustments of the City of Pocatello for

a conditional use permit for the

construction of an enterprise which

would contain in the operation a

theater. This application was approved

by the Board of Adjustments on October

8, 1975.

On October 9, 1975, an appeal was

taken to the Council of the City of

Pocatello, Idaho from the decision of

the Board of Adjustments. At the time

of this appeal the Council was composed

of C. G. Billmeyer, Melvin Morgan, F. W.

Roskelley, John Evans, Les Purce, Donna

Boe, and Earl Pond. On October 23,

1975, the said City Council, composed of

F-12

persons associated with The Gallery

wanted to start a new theater at 250

North Main in Pocatello (the former Jack

N Jill shop). It was the judgment and

determination of Wayne Ellis, the City

building official, that the location at

250 North Main was an impermissible use

for a theater in such commercial central

zone. Wayne Ellis discussed his

decision that this location is not zoned

to include theaters or other forms of

amusement enterprises with and so

consulted with the City Planner, City

Attorney, and City Manager.

The Mayor called an executive or

work session of the Council, with the

City Attorney and other officials to

discuss this and other matters. It was

discussed; and, the conclusion of Wayne

Ellis was corroborated and he was

advised not to issue a permit that would

deviate from the zoning regulations,

7 F-13

and, in particular, not to issue a

building or other permit which allowed a

new theater to be located in the

commercial central zone of Pocatello.

This advice conformed to the opinion and

judgment of Wayne Ellis of the

application of the applicable zoning

regulations. In regard to the property

at 250 North Main in Pocatello, books

and other articles are not precluded

from being dispensed in such zone or in

and from such location and the ordinance

was so construed by the officials and

the City of Pocatello.

Because of the expressed concern of

some citizens for the surmised use of

the premises conveyed to F. W.

Roskelley, and perhaps others, and

because of such citizen contact and

possibly the contact of the plaintiffs

or their lawyers or agents with the City

regarding the use of such premises for

F-16

implemented by procedures through the

County Attorney and the Attorney General

of the State, and the City and its

officials served in relation thereto

only as would any other citizens.

During 1975 through 1977, the defendant

City and the defendant City Officials

did not as a City or as Officials

undertake any formal court action in

regard to the enforcement of

prohibitions against such oriented

material and/or movies and such related

matter, leaving this to the County

Attorney and the Attorney General and

the normal law enforcement officers in

the usual and customary discharge of

duties in relation to the policing of

the city and cooperating with state and

county officers. The City did, however,

enforce its zoning ordinance.

Building permits within the City of

Pocatello were issued in 1975 by the

F-17

department directed by Wayne Ellis.

That from the inception of such zoning

ordinance on its effective date February

28, 1969 until July 19, 1976 such

department had not issued a building

permit for a motion picture theater. On

July 19, 1976 a building permit was

issued for construction of a commercial

motion picture theater in a commercial

highway zone. This theater was

constructed in an area zoned for

amusement enterprises. It is known as

the Mann Theaters, also known as, Mann

Triplex. This is the only location for

which such a building permit was issued

to construct a theater in Pocatello

between February 28, 1969, and to July

19, 1976. After July 19, 1976, one

other such permit was issued for

construction in an area zoned for

amusement enterprises, but the theater

was never constructed.

F-18

The zoning ordinance of the City

This text is long and has been trimmed here. Open the source document for the complete record.

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.