# Petition for Writ of Certiorari — Billmeyer v. Tovar > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2968%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1984 - **Citation:** 469 U.S. 872 ## Text | Vice -oupreimc UOUTL, Us al ° = . j | 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 6. - 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 I 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- Il 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., O 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 IV 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 9. 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 e 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 Po 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, 56 15 14 — -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, v. 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. a= 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). ae 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. i 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 a ~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 I 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. II 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 I 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 II 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 tN G Hn a 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. IV 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 he 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. V. 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. (c) Defendant, CITY OF POCATELLO, 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. (c) The zoning ordinance on its 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 c. 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. I. 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. Ve 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. X. 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. ee 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. (c) The zoning ordinance on 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 Be Plaintiffs reallege paragraphs I through XIV inclusive of Count One and by reference thereto incorporate the same herein. 3 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2968%3A1. Public record. Not legal advice.