Reply Brief — Michigan Diversified Business Products, Inc. v. City of Warren

No. 85-353

Supreme, Court, U.S.

FILED

ocT 9 196

. SPANIOL, JR

CLERK

IN THE

Supreme Court of the United States

OcTOBER TERM, 1985

MICHIGAN DIVERSIFIED BUSINESS PRODUCTS, INC.,

and MICHIGAN DIVERSIFIED BUSINESS CORP., d/b/a

DANISH ADULT NEWS, d/b/a MEL-O-DEE RECORDS

AND TAPES,

Appellants,

vs.

CITY OF WARREN, GEORGE O. BRUGGEMAN and

PATRICK J. SANKEUR,

Appellees.

ON APPEAL FROM THE MICHIGAN

COURT OF APPEALS

BRIEF OPPOSING MOTION TO DISMISS

MICHAEL NULL

155 N. Michigan Avenue

Suite 700

Chicago, Illinois 60601

(312) 565-2570

Counsel for Appellants

October 8, 1985

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Pandick Midwest, Inc., Chicago ¢ 733-6000

INDEX

Brief opposing motion to disMiISS.................:.:ce0e00000

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CITATIONS

Cases

I Re SD BE, 0. 0 GIP ITED acedhcsveceerbattencesienneess

Bell v. Bruen, 42 U.S. 169, | How. 169 (1843)........

Canal & C.S.R. Co. v. Hart, 114 U.S. 654, 5 S.Ct.

EER a Rt oo OR ey er

Morrill v. Jones, 106 U.S. 466, 1 S.Ct. 423 (1883) ..

United States v. Donnelly’s Estate, 397 U.S. 286,

RL I eo caccocisiveneesueneiaceenive

Ordinance

City of Warren Zoning Ordinance:

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

MICHIGAN DIVERSIFIED SUSINESS PRODUCTS, INC.,

and MICHIGAN DIVERSIFIED BUSINESS CORP., d/b/a

DANISH ADULT NEWS, d/b/a MEL-O-DEE RECORDS

AND TAPES,

Appellants,

vs.

CITY OF WARREN, GEORGE 0. BRUGGEMAN and

PATRICK J. SANKEUR,

Appellees.

ON APPEAL FROM THE MICHIGAN

COURT OF APPEALS

BRIEF OPPOSING MOTION TO DISMISS

Appellants, pursuant to Supreme Court Rule 16.5, submit

this brief ia opposition of the Motion to Dismiss submitted by

Appellees, dated October 2, 1985.

STATEMENT

Appellants, in their Jurisdictional Statement, presented the

following question to this Court:

‘“‘Whether a municipality may regulate the location and

operation of First Amendment protected businesses by

2

requiring that special use approval be made prior to

operation of such a business, and if so whether the

standards set forth in the City of Warren’s Zoning Ordi-

nance, Sections 14.02, 20.07 and 21.06 sufficiently guide

the special use decision making authority under the First

and Fourteenth Amendments of the Constitution of the

United States in ruling on special use applications by First

Amendment protected businesses.”

In response to Appellants’ Jurisdictional Statement, Appellees

submitted a Motion to Disriss. As argued below, Appeilees

contentions are without merit.

ARGUMENT

Appellees are barred from raising their first argu-

ment—that Appeliants’ alleged non-compliance with the

locational requirements necessary for site plan approval leaves

Appellants without standing to challenge the special use

law—because Appellees failed to previously raise this alleged

defense at both the trial and appellate court levels. In United

States v. Donnelly’s Estate, 397 U.S. 286, 90 S.Ct. 1033 (1970)

the Court refused to consider a defense which was not consid-

ered by the trial court or the appellate court. The rule that a

defense cannot be made for the first time in the appellate court

is well-established and indisputable. See, Canal & C.S.R. Co.

v. Hart, 114 U.S. 654, 5 S.Ct. 1127 (1885); Morrill v. Jones, 106

U.S. 466, 1 S.Ct. 423 (1883); Bates v. Coe, 98 U.S. 31 (1878);

Bell v. Bruen, 42 U.S. 169, | How. 169 (1843).

That this defense was not previously raised is apparent

from examining the trial court and appellate court decisions,

found in the appendix to Appeilants’ Jurisdiction Statement at

pp. 27a and la, respectively. Since a court will not rule on

constitutional grounds if a non-constitutional basis for ruling is

present, the trial court and appellate court would be expected to

at least discuss a non-constitutional defense raised by one of the

parties. However, no such discussion, even in passing, is

present in either the trial court or appellate court opinions. In

addition, Appellants’ brief to the Michigan Supreme Court

noted that Appellees had not raised the issue of non-compliance

with the site plan provisions. The relevant passage states that:

“The City of Warren has not argued in this case that the

Danish News Company violates these spatial criteria [as

found in Section 14.02(c)(2)]—and, in addition, counsel

for the City of Warren cannot, with any degree of sincerity,

even tell this Court how the measurements are made, with

City officials themselves being in sharp disagreement.”

Appellants Brief to the Michigan Supreme Court at p. 17, n.9.

Yet now, for the first time in this case, Appellees claim ( without

4

the Court having benefit of the record) that (1) Appellants

property is located within 100 feet of property zoned residen-

tial, and (2) non-compliance with the site plan locational

requirements removes Appellants’ standing to challenge the

special use law. Appellees’ Motion to Dismiss at pp. 4-5.

Having failed to previously raise these issues, Appellees are

barred from herein asserting the defense of lack of standing.

Additionally, Appellees’ asserted defense of lack of stand-

ing fails as a matter of law. Section 14.02 is a special use

ordinance, as contrasted to a pure zoning crdinance. That is,

the operative element necessary for the lawful operation of an

adult business is the obtaining of special use approval, rather

than simply locating in certain designated areas. The site plan

provision is merely a subpart of the special use scheme; site

plan approval has no independent significance apart from its

being a hill which must be climbed before special use approval

can be obtained. Thus a finding that Warren’s special use iaw

is unconstitutional necessarily renders the site plan provision

meaningless. A business cannot be required to obiain site plan

approval so as to qualify for consideration as a speci2! use when

the special use provision is found unconstitutional (and hence

void ab initio). Therefore, compliance with the site plan

locational requirements is not a prerequisite for standing to

challenge the special use law, since the site plan provision is not

an independent law, but rather is merely a part of the special

use procedure, which procedure is being attacked as a whole. If

Warren’s special use procedure is held unconstitutional, Appel-

lants will not be required to obtain site plan approval, since

whether such approval is obtained or not has no meaning aside

from its place in the special use procedure. Thus whether

Appellants currently qualify for site plan approval is irrelevant.

Appellees’ second argument in support of their motion to

dismiss questions the ripeness of this appeal. However, no

authority is cited for their novel position that a second inde-

pendent action brought by different parties challenging a law

previously attacked in another, separate action somehow di-

vests the Supreme Court from considering an appeal in the first

action. The present action is clearly ripe for review; it has

proceeded through the channels of the legal system to the point

where, under 28 U.S.C. § 1257(2) the mght of appeai to this

Court exists. Surely the Supreme Court need not await the

decision of a lower court which by happenstance is considering

the same law presented for resolution to the Supreme Court.

The only possible effect the lower court’s decision may have on

this Court is if the district court rules against the con-

stitutionality of the ordinance since then a conflict would result

between the state and federal courts which may militate in

favor of noting jurisdiction of this appeal. In short this appeal

is ripe for review, and the fact that another court may be

considering the constitutionality of the same law in issue in this

appeal does not unripen this appeal.

6

CONCLUSION

For these reasons, this Court should deny Appellees’

Motion to Dismiss, and instead should note probable jurisdic-

tion of this appeal.

Respectfully submitted,

MICHAEL NULL

155 N. Michigan Avenue

Suite 700

Chicago, Illinois 60601

(312) 565-2570

Counsel for Appellants

October 8, 1985