Reply Brief — Erie v. Pap's AM

In the

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

CITY OF ERIE, et al.,

Petitioners,

v.

PAP’S A.M., t/d/b/a/ KANDYLAND,

Respondent

On Writ of Certiorari

To the Supreme Court of Pennsylvania

RESPONDENT?’S REPLY BRIEF TO PETITIONER’S

BRIEF IN OPPOSITION TO MOTION TO DISMISS

Philip B. Friedman, Esquire

319 West 8" Street

Erie, Pennsylvania 16502

(814) 452-3069

Counsel for Respondent

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TABLE OF CONTENTS

I. STATEMENT OF FACTS

II. RESPONDENT’S STATUS AS A VIABLE

CORPORATION UNDER PENNSYLVANIA

CORPORATION LAW IS NOT A DETERMINATIVE

FACTOR. |

III. THE CASE DOES NOT FALL WITHIN THE

“CAPABLE OF REPETITION, YET EVADING REVIEW”

EXCEPTION 2

IV. FEDERAL COURTS ARE WITHOUT JURISDICTION

IN THE ABSENCE OF A CASE-OR-

CONTROVERSY 3

V. RESPONDENT HAS AN OBLIGATION TO RAISE

THE QUESTION OF MOOTNESS 5

VI. RESPONDENT’S OVERBREADTH CHALLENGE IS

OF NO SIGNIFICANCE 5

CONCLUSION 6

AFFIDAVIT OF NICK PANOS (Respondent’s

Exhibit 1).

ii

TABLE OF AUTHORITIES

CASES - Federal:

Arizonans for Official English v. Arizona, 520 U.S. 43

(1997) 5

Board of License Com’rs of Town of Tiverton v. Pastore, 469 U.S.

239 (1985) 3, 4,5

Broadrick v. Oklahoma, 413 U.S. 601 (1973) 6

DeFunis v. Odegaard, 416 U.S. 312 (1974) 3,4,5

Liner v. Jafco, Inc., 375 U.S. 301 (1964) 3

Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283

(1982) 4

Riley v. International Brotherhood of Teamsters, 336 U.S. 930

(1949) 5

Spencer v. Kemna, 523 U.S. | (1998) 2,3

United States v. Alaska S.S. Co., 253 U.S. 113

(1920) 3

University of Texas v. Camerisch, 451 U.S. 390 (1981)

Weinstein v. Bradford, 423 U.S. 147 (1975) 2,3

CASES-State:

Pap’s A.M. v. City of Erie, 719 A.2d 273 (Pa. 1998) 6

STATUTES:

15 Pa.C.S.A. §101 2

OTHER:

R. Stern, E. Gressman, S. Shapiro, & K. Geller, Supreme Court

Practice 72 (7" Ed. 1993) 3

I. STATEMENT OF FACTS

Pap’s A.M. is a Pennsylvania corporation. The stock

of Pap’s A.M. is and has been owned exclusively by Nick

Panos of Erie, Pennsylvania.’ Mr. Panos is the President of

Pap’s A.M. Pap’s A.M. was the owner and operator of an

establishment known as Kandyland which was located at

1402 State Street, Erie, Pennsylvania. On October 14, 1994

Pap’s A.M. brought an action challenging the Erie Ordinance

which is the subject of this case.

In 1998 Pap’s A.M. ceased to provide entertainment

in the form of nude dancing. The building in which

Kandyland was located was sold to a real estate developer

who extensively remodeled the building and opened a

comedy club. The comedy club does not provide nude

dancing nor do Pap’s A.M. or Mr. Panos have any interest in

that business.

Kandyland no longer exists. Neither Mr. Panos nor

Pap’s A.M. has any current financial or other interest in any

establishment featuring nude dancing. Neither Mr. Panos nor

Pap’s A.M. has any interest in “Kandy’s Dinner Theatre.”

Mr. Panos, by affidavit, has indicated that neither he

personally nor Pap’s A.M. has any intention of operating or

owning an establishment featuring nude dancing in the

future.

Il. RESPONDENT’S STATUS AS A VIABLE

CORPORATION UNDER PENNSYLVANIA

CORPORATION LAW IS NOT A DETERMINATIVE

FACTOR

' Attached hereto as Respondent's Exhibit | is an affidavit provided by

Nick Panos.

The parties agree that Kandyland no longer exists and

that Respondent is ne longer in the business of providing

entertainment in the form of nude dancing. The City

contends that this Court should resolve the mootness question

by reviewing Pennsylvania’s Business Corporation Law (15

Pa.C.S.A. $101 et seq.) to determine whether Respondent has

the capacity to sue or be sued.” It is respectfully averred that

whether or not Pap’s A.M. continues to exist as a corporate

entity is of no significance to the resolution of the mootness

question.

The absence of a controversy is jurisdictional. Article

III, Section 2 of the Constitution requires a “case-or-

controversy... through all stages of federal judicial

proceedings, trial and appellate ...” Spencer v. Kemna, 523

U.S. 1 (1998). Whether the individual party is an existing

person or corporate entity is not determinative.

III. THE CASE DOES NOT FALL WITHIN THE

“CAPABLE OF REPETITION, YET EVADING

REVIEW” EXCEPTION

The City contends that this case falls within the

“capable of repetition, yet evading review” exception, citing

Weinstein v. Bradford, 423 U.S. 147 (1975). The City’s

argument is misplaced.

In Spencer v. Kemna, supra, the Court stated:

"[ T]he capable- of-repetition doctrine applies

only in exceptional situations," Lyons, supra, at

109, 103 S.Ct. at 1669, “where the following two

circumstances [are] simultaneously present: '

* Petitioner's Brief in Opposition, p.2

* Petitioner's Brief in Opposition, pgs. 4-5

"(1) the challenged action [is] in its duration too

short to be fully litigated prior to cessation or

expiration, and (2) there [is] a reasonable

[will] be subject to the same action again,”

As in Spencer, supra, and in Weinstein, supra, the petitioner

has not satisfied either condition.

This case does not present an issue involving a

challenge to action too short in duration to be fully litigated.

Establishments featuring nude dancing can exist indefinitely.

Furthermore, there is nothing to suggest that Respondent will

by affidavit that he and Respondent have no such intention.

The City’s “speculative contingencies” afford no basis for

invoking the exception. Board of License Com’rs of Town

of Tiverton v. Pastore, 469 U.S. 239, 241 (1985) (quoting

DeFunis v. Odegaard, 416 U.S. 312, 320 n. 5 (1974)).

IV. FEDERAL COURTS ARE WITHOUT

JURISDICTION IN THE ABSENCE OF A CASE-OR-

CONTROVERSY

Respondent has “no personal stake in the outcome” of

this lawsuit. Spencer, supra. No decision on the merits will

have an effect on Respondent's substantive rights. Article II]

of the Constitution requires the existence of a case-or-

controversy in order for the federal judiciary to exercise

judicial power. DeF unis, supra, 416 U.S. at 316 (quoting

Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3 (1964)). The

absence of a controversy is jurisdictional which cannot be

waived by counsel or disregarded by stipulation. United

States v. Alaska S.S. Co., 253 U.S. 113, 116 (1920); R.

Stern, E. Gressman, S. Shapiro, & K. Geller, Supreme Court

Practice 721 (7" Ed. 1993).

Petitioner cites Mesquite v. Aladdin’s Castle, Inc.,

455 U.S. 283, 289 n. 10 (1982) for the general rule that mere

“voluntary cessation of allegedly illegal conduct does not

moot a case...” Although Respondent does not disagree with

this general rule it is not applicable to the current case.

In Mesquite, supra, the City of Mesquite eliminated

an ordinance restriction while the case was pending in the

Court of Appeals. This Court noted that the city could and

indeed did intend to reenact the offending legislative

provision if the case were declared moot. The Court elected

to decide the case on the merits.

The City, relying upon Mesquite, supra, requests the

Court to deny the mootness challenge because the City has

not voluntarily abandoned the Ordinance.‘ The City further

suggests that there is a “public interest in having the issue

settled.”

It is respectfully averred that the City’s continued

support of the Ordinance is of no jurisdictional value. There

may be a public interest in having the issue settled.

However, the Court is jurisdictionally limited by Article III.

There are and will be other cases raising similar if not

identical issues which will be subject to the Court’s

li , . 6

The Court’s decisions in DeF unis, supra, and

Tiverton, supra, are controlling. Respondent is out of

business and has no intent to reenter the business. Its

location has been sold. It has no employees. The Writ of

Certiorari should be dismissed as moot.

* Petitioner's Brief in Opposition, p. 5

* Petitioner's Brief in Opposition, p. 6

* See e.g. Sammy's of Mobile v. City of Mobile, No. 98-994

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V. IRESPONDENT HAS AN OBLIGATION TO RAISE

THE QUESTION OF MOOTNESS.

Counsel has a continuing duty to call to the Court’s

attention, without delay, facts that may deprive the Court of

jurisdiction. Arizonans for Official English v. Arizona, 520

U.S. 43, 117 S.Ct. 1055, 1069 n. 23 (1997) quoting Tiverton,

supra, 469 U.S. at 240. In Tiverton, supra, the Court was

not advised that the licensee had gone out of business until

oral argument.

Respondent’s counsel advised the Court of the

potential mootness issue immediately upon becoming aware

of the circumstances. Counsel would certainly have raised

the matter in Respondent’s Brief in Opposition had he been

made aware of the circumstances. There would have been no

reason not to advise the Court at that time.

Respondent does not raise the mootness issue as a

“belated attempt to avoid review” as suggested by the City.

Respondent has an affirmative duty to advise the Court of all

developments which occur at any time regarding the

jurisdiction of the Court. Tiverton, supra.

The City requests that if this Court finds that the case

has become moot, that the Court vacate the judgment of the

Supreme Court of Pennsylvania and remand with a direction

to dismiss. Respondent avers that the appropriate action

would be to vacate the judgment below and remand for such

proceedings as the State Court may deem appropriate.

Defienis, supra,; Riley v. International Brotherhood of

Tearresters, 336 U.S. 930 (1949).

VI. RESPONDENT’S OVERBREADTH CHALLENGE

IS OF NO SIGNIFICANCE

Pap’s A.M. challenged the Erie Ordinance as being

constitutionally overbroad. The Supreme Court of

Pennsylvania did not address the overbreadth challenge.

Pap’s A.M. v. City of Erie, 719 A.2d 273, 281 n. 12 (Pa.

1998). The City did not present an overbreadth issue in its

Petition for Writ of Certiorari.

The City cites Broadrick v. Oklahoma, 413 U.S. 601

(1973) for the proposition that a liberal standing standard will

be applied in First Amendment areas. The City cites no case

in support of its contention that the liberal standing rule

applicable in overbreadth challenges would overcome a lack

of any stake in the outcome of the case. Furthermore, even

assuming arguendo that an overbreadth challenge could be

considered, the issue presented by the City for review would

still be considered moot. See e.g. University of Texas v.

Camerisch, 451 U.S. 390, 394 (1981).

CONCLUSION

For the foregoing reasons, the Respondent’s Petition

to Dismiss as Moot should be granted.

Respectfully Submitted,

Philip B. Friedman, Esquire

319 West 8" Street

Erie, Pennsylvania 16502

814/452-3069

Counsel for Respondent

COMMONWEALTH OF PENNSYLVANIA

COUNTY OF ERIE

Before me, a notary public, in and for said County

and State personally appeared Nick Panos, who being duly

sworn according to law deposes and states as follows:

I, Nick Panos, reside at 2410 Clark Road, Erie,

Pennsylvania. I am the president and sole shareholder of

Pap’s A.M., Inc., a Pennsylvania corporation. (hereinafter

“Pap’s”) Pap’s was the owner and operator of a club which

featured nude dancing known as Kandyland which was

located at 1402 State Street, Erie, Pennsylvania. | am and

have always been the sole shareholder of Pap’s.

Pap’s ceased to do business as Kandyland in 1998.

The former location of Kandyland, 1402 State Street, Erie,

Pennsylvania, was sold to an independent developer in 1998.

The location is now a comedy club and does not feature nor

present nude dancing. Neither I personally nor Pap’s has any

interest in the comedy club located at 1402 State Street.

I am 72 years of age. Neither Pap’s nor I employ any

individuals involved in the nude dancing business. Neither |

nor Pap’s maintain any contacts in the adult entertainment

business. Neither I nor Pap’s has any current interest in any

establishment providing nude dancing. Neither I nor Pap’s

has any intention to own or operate a nude dancing

establishment in the future.

RESPONDENT'S EXHIBIT |

Pap’s has not yet filed for dissolution but operates no

active business. It is a “shell” corporation. A decision on the

merits of this case will have no effect upon Pap" $ Or upon me

personally.

uch ~ pat

Nick Panos

Sworn to and subscribed before

me this ‘5 __ day of June, 1999.