Amicus Curiae Brief — City of Whittier v. Walnut Properties, Inc.

|

| Supreme Court, U.S.” }

riLs& DO

No. 85-1116 JAN 27 1986

In the Supreme Court of, the. sisiouse

United States | —

October Term, 1985

a)

THE CITY OF WHITTIER, a Charter City, e7 a/.,

, a Appellants,

WALNUT PROPERTIES, INC., a California

corporation,

Appellee.

ON APPEAL FROM THE JUDGMENT OF THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE

CITY OF OCEANSIDE, CALIFORNIA

AND 74 JOINING CALIFORNIA CITIES IN

SUPPORT OF APPELLANTS’

JURISDICTIONAL STATEMENT

CHARLES R. REVLETT*

CITY ATTORNEY, CITY OF OCEANSIDE

321 North Nevada Street

Oceanside, California 92054

Telephone: (619) 439-7306

WILLIAM J. ADAMS J. DENNIS CRABB

City Attorney, City of Palm Springs City Attorney, City of South Lake Tahoe

GEORGE AGNOST LELAND C. DOLLEY

City Attorney, City Attorney, Cities of Alhambra,

BURK E. DELVENTHAL, E] Segundo and Lomita

Deputy City Attorney, DAVID J. ERWIN

ar) S re “1S i id "

Cay of Sen Francesco City Attorney, Cities of Coachella,

ROBERT K. BOOTH, JR. Indio and Palm Desert

City Attorney, City of Los Altos BERT GLENNON. JR.

ROBERT BURNHAM City Attorney, City of Culver City

City Attorney, City of Newport Beach KENNETH HAHN, City Attorney,

JOHN R. CALHOUN CLAUDE HILKER, Chief Assistant

City Attorney, City of Long Beach City Attorney,

CLAUDIA MCGEE HENRY, Assistant

City Attorney,

City of Los Angeles

WILLIAM CAMIL

City Attorney, Cities of Commerce,

Duarte and Santa Fe Springs

DAVID R. CHAPMAN

* r , >

City Attorney. City of Escondido Counsel of Record

Westside Law Publishers Los Angeles. California (213) 477-049]

JEAN HARRIS STEVEN F. NORD

City Attorney, City of Rancho Mirage City Attorney, City of Merced

RANDALL A. HAYS RICHARD J. OBERHOLZER

City Attorney, City of Redding City Attorney, City of Bakersfield

DOUGLAS C. HOLLAND MAURICE O'SHEA

City Attorney, City of Burbank City Attorney Cities of Bellflower,

DALLAS HOLMES Hawaiian Gardens and Paramount

City Attorney, Cities of Corona and RAYMOND E. OTT

Redlands City Attorney, City of Cathedral City

JAMES P. JACKSON RALPH H. PRINCE

City Attorney, City of Sacramento City Attorney, City of San Bernardino

LELAND JORDAN STANLEY FE. REMELMEYER

City Attorney, Ciuies of Fairfax, City Attorney, City of Torrance

Mill Valley and Sausalito JAMES G. ROURKE ?

DAVID M. KENNEDY City Attorney, City of Tustin

City Attorney, City of Salinas PATRICK J. SAMPSON

ROBERT KOCH City Attorney, City of Pomona

City Attorney, City of Rialto KENNETH C. SCHEIDIG

LINNIE KRAMER City Attorney, City of Concord

City Attorney, City of Vacaville ELWAYNE E. SMITH

DENNIS LEE City Attorney, City of Huntington Park

City Attorney, City of Pleasant Hill GERALD A. SPERRY

COLIN LENNARD City Attorney, City of Stockton

City Attorney, Cities of Camarillo ALLEN E. SPRAGUE

and West Covina City Attorney, City of Fremont

K. DUANE LYDERS RONALD M. STEIN

City Attorney, City of Oxnard City Attorney, City of Lodi

SIDNEY MALECK

City Attorney, City cf El Monte

FRANK R. MANZANO

City Attorney, City of Glendale

WILLIAM MARSH

City Attorney, City of Monterey

CHARLES MARTIN

City Attorney, Cities of Irwindale,

Sierra Madre and Temple City

JAMES A. MCKELVEY

City Attorney, City of Fresno

DONAI ") F. MCLEAN

City Attorney, City of Lemon Grove

GLORIA F. MCLEAN

City Attorney, City of Santee

MICHAEL H. MILLER

City Attorney, City of Arcadia

ARTHER R. MONTANDON

City Attorney, City of Santa Mana

CARTER STROUD

City Attorney, City of Alameda

BETSY STRAUSS

City Attorney, City of Napa

PETER M. THORSON

City Attorney, City of Azusa

NATALIE E. WEST

City Attorney, City of Novato

JACK L. WHITE

City .«storney, City of Anaheim

JOHN W. WITT

City Attorney, City of San Diego

JOHN WOODHEAD

City Attorney, City of Riverside

STEVEN A. AMERIKANER

City Attorney, City of Santa Barbara

ROBERTI I. CONN

Town Attorney, Town of Tiburon

; x GARY 1. RAGGHIANTI

EDWIN J. MOORE City Attorney. Cities of Belvedere

City Attorney, City of Santa Clara and San Rafael

CARL K. NEWTON

City Attorney, Cities of Downey

and Manhattan Beach

4ztorneys for Amuct Curtac

te ed

TABLE OF CONTENTS

Page

STATEMENT OF THE CASI [

INTERESTS OF THE AMICI Ae 2

INTRODUCTION AND SUMMARY OF ARGUMENT. 4

ARGU MENI

THIS CASE DEMONSTRATES AN ABUSE BY THE

FEDERAL COURTS OF THE CONCEPTS OF

FQUITY, COMITY AND FEDERALISM

A. The Decision Below Is Contrary To The

Doctrines Of Res Judicata And Collateral

Estoppe.

B. The Federal Courts’ Failure To Abstain

Is Inconsistent With The Doctrine Of

ae. | eee |

THE NINTH CIRCUIT HAS ERECTED THREE

VIRTUALLY INSURMOUNTABLE BARRIERS TO

EONING: AGFUL FT BUSING oo ees seks iwevv ee cseee

A. Statements By Whittier’s Planning Direc-

tor Are Insufficient To Demonstrate That

Whittier’s Regulations Were Adopted To

Suppress Protected Speech........... ae

B. Despite This Court’s Decision In Young,

The Ninth Circuit Has Refused To

Recognize That Adult Business Regula-

tions Are Adopted To Serve Legitimate

IN ee oon an ceh gore de ait Meer en,

C. The Ninth Circuit Has Required That

Cities Provide Adult Businesses With

More Than Equal Protection By Invali-

dating Regulations On The Assumption

That Landlords Are Unwilling To Rent

To Such Businesses And By Requiring

Fyery Portion Of A City To Be Open To

Such Businesses

13

13

A

is

ey

CONCITUSION

APPENDIX A

APPENDIX B

APPENDIX (¢

21

-_

Al

BI

Cl

it

TABLE OF AUTHORITIES

Cases Page

Adultworld Bookstore \. City of Fresno, 758 F.2d

1348 (9th Cir. 1985) 4

Aurora City v. West, 74 U.S. (7 Wall.) 82 (1868) 10

Beverly Hills Nat. Bank v. Glynn, 16 Cal.App.3d

274,93 Cal.Rptr. 907 (1971)..0000 0. 10

Castner \v. City of Oakland, 129 Cal. App.3d 94,

I8O Cal. Rptr. si al on poencete &

Central Avenue News, Inc. v. City of Minot, N.D.,

651 F.2d 565 (8th Cir. 1981) | 13

Civ of Los Angeles v. Gage, 127 Cal.App. 2d 442.

274 P.2d 34 (1954) ens &

City of Whittier vo Walnut Sneaie Inc., 149

Cal. App.3d 633, 197 Cal.Rptr. 127 (1983)

| | ol lpia naar kc ate acral en ae 4,8,9

County of Sacramento v. Superior Court, 137

Cal. App.3d 478. 187 Cal.Rptr. 154 (1982).... 6, 17

Ebel v. City of ond, 767 F.2d 635 (9th Cir.

1985) RPE MMO RE Ronn ae pr

FCC vy. Pacifica Foiibatias, 438 U.S. 726

(1978) Tsdnet Weal denon eee

Ginsherg v. New York, 390 U.S. 629 (1968).......... 18

Huffman \. Pursue, Lid., 420 U.S. 592 (1975)... 12

Juidice v. Vail, 430 U.S. 327 (1977). Fe ea

Larkin \. Grendel's Den, Inc., 459 U.S. 116

bc?) AP enh Brenan nana” dati ae eee

LeAman v. City of cieter Heights, 418 U.S. 298

(1974) BPR RE aa Pe. er

Middlesex County Ethics Committee v. Garden

State Bar Assin, 457 U.S. 423 (1982)... 5,13

Migra \. Warren City School Dist. Bd. of Educ..,

465 U.S. 75 (1984) lO, 11

Voore v. Simms, 442 U.S. 415 (1979) | 13

VAACP y. Los Angeles Unified School District,

SIS F.Supp. 1053 (C.D. Cal. 1981). rev'd on

other grounds, 714 F.2d 946 (9th Cir. 1983),

cert. denied, U.S. . 104 8. Ct. 2398

(1984)

Vational Advertising Co. v. County of Monterey,

| Cal.3d 875, 464 P.2d 33, 83 Cal.Rptr. 577

(1970)

New York v. Ferber, 458 U.S. 747 (1982)

New York Times Co. v. Sullivan, 376 U.S. 254

(1964)

Vortown Theatre v. Gribbs, 373 F.Supp. 363 (E.D.

Mich. 1974)

Playtime Theaters, Inc. v. City of Renton, 748 F.2d

527 (9th Cir.), probable juris. noted, —— U.S.

105 S.Ct. 2015 (1984)

Sandoval vy. Superior Court, 140 Cal.App.3d 932,

190 Cal. Rptr. 29 (1983)

Schad \. Borough of Mount Ephraim, 452 U.S.

61 (1981)

Stromer vo Browning, 268 Cal.App.2d $13, 74

Cal.Rptr. 155 (1968)

Trainor \. Hernandez, 431 U.S. 434 (1977)

United States v. O'Brien, 391 U.S. 367 (1968)

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974)

Village of Euclid vy. Ambler Realty Co., 272 U.S.

365 (1926)

Walnut Properties, Inc. v. City Council of the Cit

of Long Beach, 100 Cal.App.3d 1018, 161

Cal. Rptr. 411. cert. dented, 449 U.S. 836

(1980)

Walnut Properties, Inc. v. Long Beach, No. 81-942-

IIH (¢(C.D. Cal. 1981). aff'd., No. 81-5732 (9th

Cir. 1YX2)

youre Prrertican Min Theatres, 427 US. S0( 1976)

10

20

pan

Younger v. Harris, 401 U.S. 37 (1971) 2.000.000... a Se

Zahn v. Board of Public Works, 274 U.S. 325

eS, FR MIS eter cay 20

Statutes

California Government Code

ee eT TET ere ee De Ete ae

Rules

Rules of the United States Supreme Court

fF ae reer ean Herein Ean odsnmyecy A l

Rules of the Ninth Circuit

ee Bt oe ere 4

Other Authorities

Restatement (Second) of Judgments, § 13 (1982) .... 11

An Evaluation of Limited Publication in The United

States Courts of Appeals: The Price of Reform,

SU. Ch. 1. Rev. STP eee 3

The Non-Precedential Precedent—Limited Publi-

cation and No-Citation Rules in the United

States Courts of Appeals, 78 Colum. L. Rev.

MG) fiers... Deepa dcok Rae eee 4

No. 85-1116

In the Supreme Court of the

United States

October Term, 1985

THE CITY OF WHITTIER, a Charter City, ef al.,

Appellants,

Vv,

WALNUT PROPERTIES, INC.. a California

corporation,

Appellee.

BRIEF OF AMICI CURIAE

CITY OF OCEANSIDE, CALIFORNIA

AND 74 JOINING CALIFORNIA CITIES IN

SUPPORT OF APPELLANTS’

JURISDICTIONAL STATEMENT

I his Brief is filed pursuant to Rule 36.4 of this Court.

STATEMENT OF THE CASE

Amici Curiae, the City of Oceanside, ef al.,! adopt

in full the Statement of the Case made by Appellants,

the City of Whittier, e7 a/. (hereinafter “Whittier”),

\ppendis A hereto sets forth those California cities yorning in

1 .

this Brief

setae tail ee

INTERESTS OF THE AMICI

Whittier’s adult business reguiations, which are the

subject of this appeal, are by no means unique. Many

California cities have been impacted with the secondary

effects of adult businesses. In light of this Court’s opinion

in Young v. American Mini Theatres, 427 U.S. 50 (1976),

most of these cities have adopted ordinances regulating

the location of adult businesses in an attempt to control

the associated secondary effects.

The need of California cities to legislate for legitimate

governmental interests is being frustrated by the Ninth

Circuit, as demonstrated by its decision in this case.

The secondary effects of concentrations of adult

businesses include increased crime, lowering of property

values and harmful effects on children. These are all

legitimate significant interests which cities are required

to address by use of their police powers. As this Court

has noted, the exercise of reserved police powers by a

city,

“is not confined to the elimination of filth,

stench and unhealthy places. It is ample to lay

out zones where family values, youth values,

and the biessings of quiet seclusion and clean

air make the area a sanctuary for people.”

Village of Belle Terre v. Boraas, 416 U.S. 1,

9 (1974).

Orderly planning is vital to California cities. Each city

is required to prepare a General Plan regulating all future

growth within the city. Cal. Gov’t Code §§ 65300-66403.

The Ninth Circuit has systematically invalidated adult

business regulations. The court has required these type

of regulations to jump hurdles which are faced by no

other legislation involving First Amendment rights.

Because the Ninth Circuit has elevated the rights afforded

to adult businesses over all other land uses, including

general audience theaters, California cities, as repres-

ented by Amici, have been unable to fulfill their

obligations toward their citizens.

Amici are particularly concerned because this case

involves a “secret” opinion of a federal court overruling

a published and presumably reliable California appellate

court decision. Conventional wisdom is that the Ninth

Circuit’s unpublished opinion affects only the parties

in the case. Amici dispute this contention. While Amici

have strong concerns in general concerning decisions

not to publish opinions, they are particularly concerned

in this case because the Ninth Circuit’s opinion has left

California cities unable to rely upon the final published

decisions of their own State appellate courts.

It is unusual for a Ninth Circuit opinion as lengthy

as the one in this case to go unpublished. A recent study

indicates that almost 85% of Ninth Circuit unpublished

opinions are less than 500 words in length. Reynolds

& Richmond, An Evaluation of Limited Publication in

The United States Courts of Appeals: The Price of

Reform, 48 U. Chi. L. Rev. 573, 599 (1981). Professors

Reynolds and Richmond suggest three pertinent reasons

why this Court should be concerned over the Ninth

Circuit’s decision not to publish its opinion in this case.

First, judicial responsibility “may be diminished if courts

use the non-publication list as a respository [sic] for

troublesome cases presenting issues the court does not

wish to address in public.” /d. at 581. Second, “non-

publication may permit judges to approach their jobs

more routinely, without the real thought and effort their

precedential decision making requires.” /d. Finally,

because an unpublished opinion is less likely to be

reviewed by this Honorable Court, “a court of appeal

that recognizes this may avoid review of its decisions

by not publishing them.” Reynolds & Richmond, The

Non- Precedential Precedent— Limited Publication and

No-Citation Rules in the United States Courts of

Appeals, 78 Colum. L. Rev. 1167, 1203 & n.175 (1978).

It should be noted that the Ninth Circuit determined

that the issues presented by ordinances regulating the

locations of adult businesses were sufficiently important

that the three other such cases considered by the court

over the last two years were published. Ebel v. City

of Corona, 767 F.2d 635 (9th Cir. 1985); Adultworld

Bookstore v. City of Fresno, 758 F.2d 1348 (9th Cir.

1985); Playtime Theaters, Inc. v. City of Renton, 748

F.2d 527 (9th Cir.), probable juris. noted, _— U.S. —_,

105 S.Ct. 2015 (1984). It should also be noted that

Whittier made a formal request, pursuant to Rule 21(d)

of the Ninth Circuit, to have the court’s opinion

published (Appendix B hereto), which is unusual for

a josing party, but the panel denied the request

(Appendix C hereto).

Cities across California, as represented by Amici, are

of the firm opinion that this Court should consider the

appeal by Whittier in order to correct a dangerous trend

in the Ninth Circuit and other lower federal courts to

severely curtail the zoning power to regulate the location

of adult businesses, and to instruct the lower federal

courts on the need to respect state court processes.

INTRODUCTION AND SUMMARY OF ARGUMENT

|. The Ninth Circuit panel did not follow California

law when it refused to give preclusive effect to the

decision of the California Court of Appeal in City of

Whittier v. Walnut Properties, Inc., 149 Cal.App.3d 633,

197 Cal.Rptr. 127 (1983). The appellate court decision

held Whittier’s regulations to be facially valid, and

remanded the case on only the question of whether the

ordinance failed to provide for sufficient alternative

locations for adult businesses, and was therefore

unconstitutional as applied. See Schad vy. Borough of

Mount Ephraim, 452 U.S. 61, 76 (1981). The Ninth

Circuit’s failure to respect this decision of a state

appellate court enables entrepreneurs like Walnut to

have two opportunities, one in federal court and one

in state court, to have an ordinance or statute held

unconstitutional. Such an outcome should not be

countenanced in our federalist system.

2. This case also is an appropriate case for abstention

pursuant to Younger v. Harris, 401 U.S. 37 (1971), and

its progeny. Because the California Legislature has

mandated that cities adopt zoning plans to protect their

citizens’ health, safety and general welfare, regulation

of the location of aduit businesses clearly “implicates

important state interests.” Middlesex County Ethics

Committee v. Garden State Bar Ass'n, 457 U.S. 423,

432 (1982). The state court proceeding, involving the

Same parties and identical issues as this case, was filed

two years before the federal case. In that the state

proceedings here commenced before the federal

proceedings, and the state court proceedings offer an

adult business an adequate opportunity to raise all

federal constitutional challenges, abstention is clearly

warranted. The federal court’s failure to abstain in this

case Is Contrary to the principles of equity, comity and

the doctrine of federalism. Moreover, refusal by the

federal courts to abstain in this case would sanction

tactics by which businesses such as Walnut can forum-

shop for the court most favorable to their claims.?

>This is not the only case where Walnut has employed this tactic.

See Walnut Properties, Inc. v. City Council of the City of Long

Beach, \OO Cal. App.3d 1018, 161 Cal. Rptr. 411. cert. dented, 449

US. 836 (1980). Walnut Properties, Inc. v. Long Beach, No. &1-

942-1 JH (C.D. Cal. 1981), aff'd, No. 81-5732 (9th Cir. 1982)

3. The Ninth Circuit held Whittier’s regulations

invalid because it found “a motivating purpose” for their

enactment was to suppress constitutionally protected

speech. In so holding, the court ignored the results of

a seven month study demonstrating serious deleterious

effects caused by the concentration of adult businesses

in Whittier. Courts should not speculate as to legislative

motive, as this is “a hazardous matter.” United States

v. O'Brien, 391 U.S. 367, 383 (1968). This is particularly

true in this case where the Ninth Circuit based its finding

of improper motive on a statement made three years

after the adoption of the regulations by a city employee,

not a legislator, in a deposition.

4. The Ninth Circuit did not allow Whittier to rely

on the extensive experience of other cities in enacting

its adult business regulations. Moreover, the court found

that the City had presented “no evidence” that it had

a legitimate interest in adopting the regulations, despite

the fact that a seven month study was conducted which

demonstrated that significant secondary effects existed

within Whittier, because of the concentration of thirteen

adult businesses.

Amici submit that sufficient studies of secondary

effects caused by concentrations of adult businesses have

been conducted by cities and communities in the United

States so as to make these deleterious effects a matter

which can be judicially noticed. This Court should not

require cities to “reinvent the wheel” to demonstrate that

there is a legitimate need to adopt regulations to reduce

the secondary effects caused by concentrations of adult

businesses. County of Sacramento v. Superior Court,

137 Cal.App.3d 448, 455, 187 Cal.Rptr. 154, 158-59

(1982).

S. The Ninth Circuit found that there were inade-

quate alternative sites for adult) businesses to locate

<i inden ieee

~~

within Whittier. In so doing, the court held that the

City was required to allow adult businesses to locate

in the City’s central business district, despite the fact

that no other First Amendment protected activities are

given such a privilege. Moreover, the Ninth Circuit

granted Walnut more than equal protection, in that by

finding that no alternative sites existed due to the

assumption that landlords would be unwilling to rent

to an adult business, the court made Whittier responsible

for market forces which are beyond its control.

This case presents substantial issues as to the need

to instruct the federal judiciary to respect both state

judicial processes and legislative processes. It is deserving

of a full review before this Honorable Court.

ARGUMENT

1. THIS CASE DEMONSTRATES AN ABUSE BY

THE FEDERAL COURTS OF THE CONCEPTS

OF EQUITY, COMITY AND FEDERALISM

A. The Decision Below Is Contrary To The Doctrines

Of Res Judicata And Collateral Estoppel.

On April 30, 1979, Whittier filed an action for

injunctive relief against Walnut in California Superior

Court. Whittier sought by this action to abate the use

of the Wardman Theatre, owned by Walnut, as an adult

business. Walnut’s use of the Theatre was made a

nonconforming use by adoption of Whittier’s adult

business regulations. Following the expiration of the

amortization period, which reflects the property owner’s

investment in the nonconforming use, Whittier had

issued an order of abatement, and the state action

followed to enforce this abatement order by injunction. *

This case wound its way through the Superior Court,

the Court of Appeal, the California Supreme Court,

and finally back to the Court of Appeal, which on

December 8, 1983, published an opinion holding the

regulations facially valid. City of Whittier v. Walnut

Properties, Inc., 149 Cal.App.3d 633, 197 Cal. Rptr. 127

(1983). Walnut’s petition for rehearing in the appellate

court was denied January 3, 1984, and its petition for

a hearing by the California Supreme Court was denied

‘Calitornia cases “have firmly held zoning legislation may validly

provide for the eventual termination of nonconforming property

uses * Castner v. City of Oakland, 129 Cal.App.3d 94, 96,

180 Cal. Rptr. 682, 684 (1982) (court approved amortization period

to terminate nonconforming adult entertainment use): see also

National Advertising Co. v. County of Monterey, | Cal.3d 87S,

S80. 464 P.2d 33, 39. 83 Cal. Rptr. 577, 5X2 (1970): Cin of Los

frveles Gaze, 127 Cal App.2d 442, 483. 274 P.2d 34. 41 (1954)

February 2, 1984. /d. at 649, 197 Cal.Rptr. at 137. Wainut

did not seek review of the court’s decision before this

Court.

Judgment in the federal district court was not entered

until March &, 1984, well after the state court decision

was final.

The California Court of Appeal was forced to remand

the case for further proceedings, because the trial court,

in holding the regulations facially unconstitutional, did

not address two issues, although testimony was

proffered. Because the trial court had failed to decide

the issue of the availability of other areas in which adult

businesses might be operated (an “as applied” issue),

“the matter [was] remanded for a hearing and

determination on that issue.” City of Whittier v. Walnut

Properties, Inc., 149 Cal.App.3d at 642, 197 Cal.Rptr.

at 133.

In addition, the case was remanded to determine

whether Walnut operated an “adult theatre” within the

meaning of Whittier’s regulations. Because the trial court

had found the regulations facially unconstitutional, it

did not make a finding on this issue, and under then

California law, the failure to make such a finding

required the case to be remanded.‘ On all other issues,

the appellate court made final rulings.

Despite the state appellate court’s opinion, the Ninth

Circuit held that the doctrine of res judicata was

inapplicable since the case was remanded for trial.

*The appellate court’s decision makes it clear what finding the

trial court must make. It states: “[ojn the record the only finding

could be adverse to respondent [Walnut], but it is entitled to have

one made. On remand, the trial court shall make the required

finding.” City of Whittier \. Walnut Properties, Inc., 149 Cal. App.3d

at 643, 197 Cal. Rptr. at 134.

10

However, California law holds otherwise.> In ruling that

no final judgment exists whenever an appellate court

orders a case remanded, the Ninth Circuit elevated form

over substance, contrary to California law. Stromer vy.

Browning, 268 Cal. App.2d 513, 518-19, 74 Cal.Rptr. 155,

160 (1968). When read as a whole, the clear intent of

the California appellate court was to decide all issues

before it except for the iwo issues remanded. Under

California law, the opinion of the Court of Appeal is

res judicata, even though a limited rehearing was

ordered. Beverly Hills Nat. Bank v. Glynn, 16

Cal.App.3d 274, 288, 93 Cal.Rptr. 907, 915-16 (1971).

The cases cited by the Ninth Circuit are not to the

contrary. NAACP v. Los Angeles Unified School

District, 518 F.Supp. 1053, 1058 (C.D. Cal. 1981), rev'd

on other grounds, 714 F.2d 946 (9th Cir. 1983), cert.

Gdettied, ... U.S. , 104 S.Ct. 2398 (1984), quotes

from Stromer v. Browning, wherein the court states that

“the fact that the rule we discuss is a ‘general’ rule implies

that it has limitations.” 268 Cal.App.2d at 518, 74

Cal.Rptr. at 158. The other case cited by the Ninth

Circuit, Aurora City v. West, 74 U.S. (7 Wall.) 82 (1868),

in fact supports Whittier’s position. The Court’s decision

only restates the common law rule that a final judgment

must exist for a decision to be a bar of a subsequent

action, and that “where the action was discontinued,

or the plaintiff became nonsuit, or where from any other

cause, except perhaps in the case of a retraxil, no

judgment or decree was rendered in the case, then

proceedings are not conclusive.” /d. at 93 (footnote

omitted). Because there is a final judgment of a state

‘Federal courts must give the California appellate court’s opinion

the same preclusive effect as would be given the opinion under

California law. Migra vo Warren City School Dist. Bd. of Educ..

465 U.S. 75, 81 (1984)

appellate court, which has preclusive effect under

California law, Whittier is correct in asserting that res

judicata applies.

Moreover, the decision of the California Court of

‘Appcal must be given preclusive effect under the doctrine

of collateral estoppel or issue preclusion.® In Sandoval

v. Superior Court, 140 Cal.App.3d 932, 190 Cal.Rptr.

29 (1983), the court held that a decision may be “final”

for issue preclusion purposes even though it is not final

for res judicata or claim preclusion purposes. /d. at 936,

190 Cal.Rptr. at 31. The court stated that:

“tor purposes of issue preclusion (as distin-

guished from merger and bar), ‘final judgment’

includes any prior adjudication of an issue in

another action that is determined to be

sufficiently firm to be accorded conclusive

effect.’ Id. (emphasis in original) (quoting from

Restatement (Second) of Judgments, § 13

(1982)).

The court endorsed the reasoning of the Restatement

that:

“To hold invariably that that kind of carry-

Over is not permitted until a final judgment

in the strict sense has been reached in the first

action can involve hardship—either needless

duplication of effort and expense in the second

action to decide the same issue... .” /d.

*In discussing collateral estoppel, or issue preclusion, Amici are

not enlarging the issues before this Court. Appellants’ “Questions

Presented” expresses the issue before the Court as one of whether

“preclusive effect” should be given where a state appellate court's

published decision is final before the federal district court enters

its judgment. Jurisdictional Statement at 7. As this Court has often

noted, the terms res judicata and collateral estoppel have conflicting

detinitions, and it is thus better to use the term preclusive effect.

See, ce., Migra, 465 U.S. at 77 n.!

In holding that the California Court of Appeal’s

published decision has no preclusive effect, the Ninth

Circuit ignored the clear intent of the state court opinion,

and in effect rendered six years of litigation null and

void. This Honorable Court should accept jurisdiction

in this case to clarify this misapplication of California

law and avoid the double litigation which the Ninth

Circuit’s decision will otherwise engender.

B. The Federal Courts’ Failure To Abstain Is

Inconsistent With The Doctrine Of Younger v.

Harris.

The federal district court held that abstention was

not warranted in this case. App. 84a. This holding is

inconsistent with this Honorable Court’s decision in

Younger v. Harris, 401 U.S. 37 (1971), and its progeny.

In Younger, this Court stated that federal interference

with on-going state criminal proceedings violates not

only traditional notions of equity, but also the,

“even more vital consideration, the notion of

‘comity,’ that is, a proper respect for state

functions, a recognition of the fact that the

entire country is made up of a Union of separate

state governments, in a continuance of a belief

that the National Government will fare best

if the States and their institutions are left free

to perform their separate functions in their

separate ways. This, perhaps for a lack of a

better and clearer way to describe it, is referred

to by many as ‘our Federalism.’ ” /d. at 44.

The Younger abstention doctrine has subsequently been

extended to on-going state civil proceedings which

Involve Important state interests.

Huffman v. Pursue, Ltd... 420 1S. S92 C197 S) Staite bia

430 US. 327 (1977): Trainor Hlernanc $3] US. 4454 (197

13

Under the test enunciated by this Court in Middlesex

County, there is no question that this is an appropriate

case for Younger abstention because the issues “implicate

important state interests.” Middlesex County, 457 U.S.

at 432. Whittier has a recognized obligation to its citizens

which requires it to regulate the location of adult

businesses within the City. Young v. American Mini

Theatres, 427 U.S. 50, 71 (1976); Central Avenue News,

Inc. v. City of Minot, N.D., 651 F.2d 565, 568 (8th

Cir. 1981). Moreover, the state court litigation was

on-going prior to filing of the federal action, and Walnut

had the opportunity in the state action to raise all of

its federal claims (and in fact raised each of the issues

which were relitigated in this case). “No more is required

to invoke Younger abstention.” Juidice v. Vail, 430 U.S.

327, 337 (1977).

2. THE NINTH CIRCUIT HAS ERECTED THREE

VIRTUALLY INSURMOUNTABLE BARRIERS

TO ZONING ADULT BUSINESSES

A. Statements By Whittier’s Planning Director Are

Insufficient To Demonstrate That Whittier’s

Regulations Were Adopted To Suppress Protected

Speech.

The Ninth Circuit based its holding of improper

motivation upon deposition testimony given by: Mr.

Porter, the City Planning Director. App. 8a. However,

review of Mr. Porter’s deposition testimony indicates

that the line of questioning was not concerning motive,

but rather the justification for the provision.” The district

Moore \ Stmmis, 442 LS. ALS C1979). Middlesex County Ethics

Committe \. Garden State Bar Ass'n, 487 US. 423. 432 (1982)

‘The following portions of Porter’s deposition were read into

the record at the trial

14

court clearly held that this deposition testimony went

to the issue of justification, and not to the issue of motive.

App. 39a-40a.

“Question: What is the justification, if any, for

prohibiting an adult theater within a thousand feet of

a church?

Answer: | would say a church — reasons of peace and

quiet of the church activities, separation of the religious

activities from other activities that could have a conflict.

Question: What kind of conflict?

Answer: Moral conflict.

Question: What are those two philosophies that might

come in conflict?

Answer: Pro-adult business and adverse to an adult

business.

Question: But what has that got to do with the church?

I'm missing it. I’m sorry.

Answer: Churches are usually are opposed to adult

businesses because of the moral aspect.

Question: When you say ‘moral aspect,” what moral

aspect?

Answer: Perhaps I don’t Know quite how to answer

that.

Question: Well, you're doing okay. Just give me your

best answer,

Answer. Well, most churches are against the display

of the human body or for anyone that wants to view

the human body in acts. And of course, the other side

of the tence is that those that feel it’s all mght. or wish

to particularly wish to view, or the act or an act

Question. Is it fair to say. then, that the reason, the

justification for having a separation of a thousand teet

between an adult theater and a church ts to protect the

sensitivites of the religious people who attend the

churches’

Vnswer PE think both sides

Question, Pardon?’

Vnswer Tn tact. both sides

Question When vou say “both sides” tirst answer

WN ques tian Phe amswer tems Question ts “vex es that

15

-

Mr. Porter's deposition statements were to the effect

that allowing church uses near adult business uses would

lead to a situation where “[t}here could be incompat-

ibility. Close proximity could cause conflict between the

two philosophies, the uses.” RT at 91, lines 13-15. In

so stating, Mr. Porter was merely echoing the statement

by this Court that:

“Plainly schools and churches have a valid

interest in being insulated by certain kinds of

commercial establishments, including those

dispensing liquor. Zoning laws have long been

employed to this end, and there could be little

doubt about the power of a state to regulate

the environment in the vicinity of schools,

churches, hospitals, and the like by exercise

of reasonable zoning la ws.” Larkin v. Grendel's

Den, Inc., 459 U.S. 116, 121 (1982) (emphasis

added).

Answer: ‘es.

Question: Now, when you say ‘both sides,” what do

you mean?

Answer: | would say those that frequent the adult

business may have certain sensitivies [sic] with the close

proximity of a church.

Question: And what do you base that on?

Answer: Just experience

Question: What experience”

Answer: About 27 years of pianning experience.

Question: And in that sense, you found people who

attend adult theaters are offended if there is one within

a thousand feet of a church. is that what you are telling

me”

Answer Quite possible. ves

Question) Anything is possible. Do vou think it's

probable’

Voswer Yes. bdo” Reporter's Transcript (°R E7) at 90-93

16

Porter's cited statement as to the justification for the

separation between adult businesses and churches, far

from being evidence of an improper motive, is merely

a restatement of a principle subscribed to by eight

members of this Court in Grendel's Den. It is a statement

of fact, and not an indication of a motive to suppress

protected speech on the part of any councilmember of

Whittier.

B. Despite This Court’s Decision In Young, The Ninth

Circuit Has Refused To Recognize That Adult

Business Regulations Are Adopted To Serve

Legitimate Interests.

The Ninth Circuit in this case held that the City offered

“no evidence” that it had an important or substantial

governmental interest in regulating the location of adult

businesses. App. 6a. The requirement of evidence of an

important or substantial government interest, which has

been developed from Justice Powell’s concurring opinion

in Young, is unnecessary, but in any event was amply

satisfied in this case.

In Young, four Justices of this Court found sufficient

reason to enact the ordinance in question based upon

findings of the Detroit Common Council, a_ police

department memorandum, and “the opinion of urban

planners and real estate experts who supported the

ordinances.” 427 U.S. at 54-55. Similar evidence exists

in this case, and Amici submit that this is sufficient

justification for the regulations.

The concurring opinion of Justice Powell did not

disagree with the plurality on the question of justifi-

cation. The concurrence stated “it is clear beyond

question that the Detroit Common Council had broad

regulatory power to deal with the problem that prompted

17

enactment of the Anti-Skid Row Ordinance.” /d. at 74.

Justice Powell further stated:

“Nor is there doubt that the interests

furthered by this ordinance are both important

and substantial. Without stable neighbor-

hoods, both residential and commercial, iarge

sections of a modern city quickly can deteri-

orate into an urban jungle with tragic conse-

quences to social, environmental and economic

values. While I agree with respondents that no

aspect of the police power enjoys immunity

from searching constitutional scrutiny, it also

is undeniable that zoning, when used to

preserve the character of specific areas of a

city, is perhaps ‘the mosi centra! function

performed by local government, for it Is one

of the primary means by which we protect that

sometimes difficult to define concept of quality

of life.” ” /d. at 80 (citation omitted).

The Court’s decision in Young, coupled with the large

number of studies of secondary effects of adult businesses

which have been conducted by cities in the United States,

suggest that the secundary effects associated with the

establishment of adult businesses within a city are a

matter which should be judicially noticed. In the absence

of evidence to the contrary, courts should assume that

cities have a legitimate governmental interest in adopting

ordinances regulating the location of adult businesses.

This Court should not require repetitive investigations

in communities sharing similar problems. County of

Sacramento v. Superior Couri, 137 Cal. App.3d 448, 455,

187 Cal.Rptr. 154, 158-59 (1982).

As this case demonstrates, the Ninth Circuit: has

coupled its requirement of a full independent and

ee ee

he a ee, ee ee

18

repetitive investigation with a policy to reject any

reasonable attempts to perform such a study. Whittier

performed a seven month study which documented the

significant secondary effects that existed within the City,

which included massive increases in crime; harassment

of citizens, including children; and a decrease in property

values coupled with a negative impact on Whittier’s

efforts to improve the economic base of the City through

redevelopment. App. 119a. The Ninth Circuit appears

to have held that Whittier was required to justify its

governmental interest by reference to Walnut’s Theatre

alone. This is contrary to long-held precedent of this

Court, Village of Euclid v. Ambler Reaity Co., 272 U.S.

365, 388-89 (1926), and grants Walnut with more

protection than provided to general release theaters.

Furthermore, the plurality in Young indicated that

the type of speech regulated by Detroit’s ordinance is

entitled to less protection than other forms of speech.

427 U.S. at 65-69 (citing to New York Times Co. vy.

Sullivan, 376 U.S. 254 (1964); Ginsberg v. New York,

390 U.S. 629 (1968); Lehman v. City of Shaker Heights,

418 U.S. 298 (1974)). Since the decision in Young, this

Court has held that the governmental interest in the

“well-being of its youth” justifies special treatment of

indecent but non-obscene radio broadcasts received by

adults as well as children (FCC v. Pacifica Foundation,

438 U.S. 726(1978)) and, in reviewing a statute outlawing

distribution of material depicting sexua! performances

by children under the age of sixteen, this Court stated

that it would not “second-guess” the legislature’s findings

(New York v. Ferber, 458 U.S. 747, 757-58 (1982)). In

that Whittier’s regulations are designed, in part, to

protect children from exposure to material of a frank

sexual nature (see App. 126a-27a), and since the speech

of adult businesses such as Walnut is low “in the

19

heirarchy of First Amendment values” (FCC v. Pacifica

Foundation, 438 U.S. at 746), this Court should reverse

the Ninth Circuit and find Whittier’s regulations

adequately justified.

C. The Ninth Circuit Has Required That Cities

Provide Adult Businesses With More Than Equal

Protection By Invalidating Regulations On The

Assumption That Landlords Are Unwilling To

Rent To Such Businesses And By Requiring Every

Portion Of A City To Be Open To Such Businesses.

The Ninth Circuit found that Whittier’s regulations

do not by themselves ban adult theaters from the City,

but that the reluctance of a shopping center owner to

lease to such a theater combined with the unlikelihood

of an appropriate vacancy “will probably have the same

effect.” App. 7a. The Ninth Circuit made this conclusion

without any evidence on the record to support the

assumption that a shopping center owner would be less

likely to lease to an adult theater than any other type

of theater.

Whittier cannot be held respnsible for market

conditions which are beyond its control. There is no

argument but that ordinances such as the type approved

by this Court in Young may result in economic hardship.

“Nortown [an adult theater] concededly will

not be able to exhibit adult movies at its present

location, and the ordinance limits the potential

location of the proposed Pussy Cat [another

adult theater]. The constraints of the ordinance

with respect to location may indeed create

economic loss for some who are engaged in

this business. But in this respect they are

affected no differently from any other com-

mercial enterprise that suffers economic

20

detriment as a result of land-use regulation.

The cases are legion that sustained zoning

against claims of serious economic damage.

See, e.g., Zahn v. Board of Public Works, 274

U.S. 325, 71 L.Ed 1074, 47 S.Ct. 594 (1927).”

Young, 427 U.S. at 78 (Powell, J., concurring)

(emphasis added).

In addition, the Ninth Circuit found Whittier’s

regulations unconstitutional because they made it

“impossible to operate [an adult business] in the central

business district.” App. 7a. Inso ruling, the Ninth Circuit

apparently held that there is a constitutional requirement

that an adult business be permitted to locate in any

district of the City which it desires. As five members

of this Court stated in Young on this point:

“First Amendment rights are indirectly

related, but only in the sense that they cannot

be treely exercised in specific locations.

Plaintiffs would not contend that they are

entitled to operate a theatre or bookstore,

which are commercial businesses, in a residen-

tially zoned area; nor could they claim the right

to put on a performance for profit in a public

street.” 427 U.S. at 57 n.13 (quoting from

Nortown Theatre v. Gribbs, 373 F.Supp. 363,

371 (E.D. Mich. 1974)).

Similarly, Walnut does not have an absolute right to

Operate in the City’s central business area, in which a

large number of other uses, including First Amendment

uses such as theaters, live entertainment and churches,

may not operate as a matter of right. Such a rule would

grant adult businesses more than “equal protection.”

CONCLUSION

Based upon the foregoing, this Court should undertake

a full review of all of the facts and issues involved in

the matter of the validity of Whittier’s adult business

zoning regulations, not only for the purpose of correcting

the errors made by the lower federal courts in this

litigation but to instruct these courts on the need for

respect of the decisions made through state judicial

processes, and to restate its decision in Young on the

latitude available to cities in their attempt to “experiment

with solutions to admittedly serious problems.” 427 U.S.

at 71.

Respectfully submitted,

CHARLES R. REVLETT

City Attorney

City of Oceanside, California

Atiorney for Amici Curiae

APPENDIX

Al

APPENDIX A

Ali California Cities Joining In This Brief

Alameda

Carter Stroud

City Hall, Santa Clara

Avenue and Oak Street

Alameda, California 94501

Alhambra

Leland C. Dolley

Burke, Williams & Sorensen

624 South Grand Avenue,

11th Floor

Los Angeles, California 90017

Anaheim

Jack L White

200 South Anaheim Boulevard

Anaheim, California 92805

Arcadia

Michael id. Miiler

240 West Huntington Drive

Arcadia, California 91006

Azusa

Peter M. Thorson

Burke, Williams & Sorensen

624 South Grand Avenue,

11th Floor

Los Angeles, California 90017

Bakersfield

Richard J. Oberholzer

1501 Truxtun Avenue ~

Bakersfield, California 93301

Bellflower

Maurice O’Shea

9838 East Belmont Street

Bellflower, Calitornia 90706

Burbank

Douglas C. Holland

275 East Olive Avenue

Burbank, California 91502

Camarillo

Colin Lennard

Burke, Williams & Sorensen

624 South Grand Avenue,

11th Floor

Los Angeles, California 90017

Cathedral City

Raymond E. Ott

68-625 Perez Road

Cathedral City, California

92234

Coachella

David J. Erwin

74-099 El Paseo

Box 789

Palm Desert, California 92261

Commerce

William Camil

2460 Huntington Drive

San Marino, California 91108

Concord

Kenneth C. Scheidig

1950 Parkside Avenue

Concord, California 94519

Corona

Dallas Holmes

Best, Best & Krieger

4200 Orange Street

Riverside, California 92501

Cuiver City

Bert Glennon, Jr.

9770 Culver Boulevard

Culver City, California 90230

Downey

Carl K. Newton

Burke, Williams & Sorensen

624 South Grand Avenue,

11th Floor

Los Angeles, California 90017

Duarte

William Camil

2460 Huntington Drive

San Marino, California 91108

El Monte

Sidney Maleck

11333 Valley Boulevard

El Monte, California 91734

El Segundo

Leland C. Dolley

Burke, Williams & Sorensen

624 South Grand Avenue,

llth Floor

Los Angeles, California 90017

Escondido

David R. Chapman

100 Valley Boulevard

Escondido, California 92025

Fairfax

Leland Jordan

26 Corte Madera Avenue

Mill Valley, California 9494]

Fremont

Allen FE. Sprague

39700 Civic Center Drive

Fremont, California 94538

Fresno

James A. McKelvey

City Hall

2326 Fresno Street

Fresno, California 93721]

Glendale

Frank R. Manzano

613 East Broadway

Glendale, California 91206

Hawaiian Gardens

Maurice O’Shea

9838 East Belmont Street

Bellflower, California 90706

Huntington Park

Elwayne E. Smith

6550 Miles Avenue

Huntington Park, California

90255

Indio

David J. Erwin

74-090 El Paseo

Box 789

Palm Desert, California 92261

Irwindale

Charles Martin

5050 North Irwindale Avenue

Irwindale, California 91706

Lemun Grove

Donald F. McLean

3232 Main Street

Lemon Grove, California

92045

Lodi

Ronald M. Stein

221 West Pine Street

Lodi. Calitornia 95240

A3

Lomita

Leland ©, Dolley

Burke. Willams & Sorensen

624 South Grand Avenue.

llth Floor

Los Angeles. California 90017

Long Beach

John R. Calhoun

333 Ocean Boulevard,

Room 1100

Long Beach, California 90802

Los Altos

Robert K. Booth, Jr.

P.O. Box 152

Los Altos, California 9440]

Los Angeles

Kenneth Hahn, City Attorney

Claude Hilker,

Chiet Assistant

City Attorney

Claudia McGee Henry.

Assistant City Attorney

200 North Main Street,

17th Floor

Los Angeles, California 90012

Manhattan Beach

Carl K. Newton

Burke, Williams & Sorensen

624 South Grand Avenue,

llth Floor

Los Angeles, California 90017

Merced

Steven F. Nord

1730 M Street

Merced. California 95340

Mill Valley

Peland Jordan

26 Corte Madera Avenue

Mill \ alley. Calitornia 9494]

Monterey

William Marsh

651 Pacific Street

Monterey, California 93940

Napa

Betsy Strauss

955 School Street

Napa, California 94559

Newport Beach

Robert Burnham

3300 Newport Boulevard

Newport Beach, California

92663

Novato

Natalie E. West

901 Sherman Avenue

Novato, California 94947

Oxnard

K. Duane Lyders

300 West Third Street

Oxnard, California 93030

Palm Desert

David J. Erwin

74-090 El Paseo

Box 7&9

Palm Desert, California

9226]

Palm Springs

William J. Adams

3200 Tahquitz-McCailum

Way

Palm Springs, California

92262

Paramount

Maurice O'Shea

OX3% Fast Belmont Street

Bellflower, California 90706

Pleasant Hill

Dennis Lee

3300 North Main Street

Pleasant Hill, California 94525

Pomona

Patrick J. Sampson

S05 South Garey Avenue

Pomona, California 91769

Rancho Mirage

Jean Harris

69-825 Highway I 11

City Hall

Rancho Mirage, California

92270)

Redding

Randall A. Hays

760 Parkview Avenue

Redding, California 9600!

Redlands

Dallas Holmes

Best, Best & Krieger

4200 Orange Street

Riverside, California 92501

Rialto

Robert Koch

150 South Palm Avenue

Rialto, California 92376

Riverside

John Woodhead

3900 Main Street

Riverside, California 9252?

Sacramento

James P. Jackson

S12 Tenth Street.

Suite 201

Sacramento, California

95K 14

Salinas

David M. Kennedy

200 Lincoln Avenue

Salinas. California 9390]

San Bernardino

Ralph H. Prince

300 North D Street

San Bernardino.

Calitornia 92418

San Diego

John W. Witt

202 C Street, 3rd Floor

San Diego, California 9210]

San Francisco

George Agnost,

City Attorney

Burk E. Delventhal,

Deputy City Attorney

City Hall, Room 206

San Francisco, California

94102

Santa Clara

Edwin J. Moore

1500 Warburton Avenue

Santa Clara, California

95050

Santa Fe Springs

William Camil

2460 Huntington Drive

San Marino, California

91108

Santa Maria

Arther R. Montandon

110 Fast Cook Street

Santa Maria, Caiifornia

93454

Santee

Gloria F. Mclean

1076S Woodside Avenue

Santee, Calitornia 92071

Sausalito

Leland Jordan

26 Corte Madera Avenue

Mill Valley, California 9494]

Sierra Madre

Charles Martin

5050 North Irwindale

Avenue

Irwindale, California 91706

South Lake Tahoe

J. Dennis Crabb

1900 Lake Tahoe Boulevard

South Lake Tahoe,

California 95705

Stockton

Gerald A. Sperry

City Hall

Stockton, California 95202

Temple City

Charles Martin

5050 North Irwindale

Avenue

Irwindale, California 91706

Torrance

Stanley E. Remelmeyer

3031 Torrance Boulevard

Torrance, California 90503

Tustin

James G. Rourke

300 Centennial Way

Tustin. Calitornia 92680

Vacaville

Linnie Kramer

650 Merchant Street

Vacaville, California 95688

West Covina

Colin Lennard

Burke, Williams & Sorensen

624 South Grand Avenue,

11th Floor

Los Angeles, California 90017

Belvedere

Gary T. Ragghianti

874 Fourth Street

San Rafael, California 94901

San Rafael

Gary T. Ragghianti

874 Fourth Street

San Rafael, California 94901

Santa Barbara

Steven A. Amerikaner

City Hall

De La Guerra Plaza

P.O. Drawer P - P

Santa Barbara, California 93102

Town of Tiburon

Robert I. Conn

874 Fourth Street

San Rafael, California 94901

Bl

APPENDIX B

May 28, 1985

Honorable Phillip B. Winberry

Clerk of the Court

United States Court of Appeal

Ninth Judicial Circuit

7th and Mission Streets

San Francisco, CA 94103

Re: Walnut Properties, Inc. v. City of Whittier

Nos. 84-5755 and 84-6087

Dear Mr. Winberry:

The undersigned, on behalf of the Defendants-

Appellants (hereafter “City”) in the above-entitled

action, hereby requests, pursuant to Rule 21(d) of the

Rules of the United States Court of Appeal for the Ninth

Circuit, that the unpublished disposition of the above-

entitled case by Memorandum filed May 14, 1985

(hereafter “Memorandum”) be published in the Federal

Reporter. The City contends that the Memorandum

meets several of the criteria set forth in Rule 21(b), and

that therefore the Memorandum must be published.

Under Rule 21(b), Opinions are to be published if

any of the six criteria are met. Because there is no

separate or concurring opinion, Rule 21(b)(6) does not

apply. However, the other five criteria set forth in Rule

21(b) apply, as follows:

The Memorandum Establishes, Alters, Modifies Rules of Law

(Rule 21(b)(1)) and Criticizes Existing Law (Rule (21b)(3)).

The Memorandum establishes an important rule of

law in the Ninth Circuit. Prior appellate authority

provided that zoning ordinances regulating first

amendment activities are unconstitutional if “a

B2

motivating reason” for its adoption was “to suppress

protected expression.” (Jovar v. Billmever (9th Cir.

1983) 721 F.2d 1260, cert denied 105 S.Ct. 223.)

According to the Memorandum, where such a moti-

vating factor exists, the defect can never be remedied

(Memorandum, pp.9-10). Thus, the Memorandum

establishes a new legal rule: once a court has found a

municipal zoning ordinance regulating a First Amend-

ment activity unconstitutional, the municipality must

forever abandon any attempt to regulate that activity.

The Memorandum also establishes a new legal

proposition: impermissible motive exists where state-

ments of a staff member of the City are made subsequent

to the ordinance’s enactment expressing the staff

member's opinion but not that of a legislator.

Finally, the Memorandum criticizes existing law and

alters and modifies it on the subject of the calculation

of attorneys’ fees. The Memorandum states that:

“This court has declined to endorse the

‘lodestar approach’ used in other circuits under

which, absence special circumstances, the

Starting figure for an hourly rate should be

‘counsel’s normal billing rate.” Moore, 682 F.2d

at 840. Instead it adheres to a list of 12 factors

lor determining the fee award as a whole”

(Memorandum, p. 10, lines 8-22 (citations

omitted).)

However, the Courtin Moore v. James J. H. Matthews

& Co. (9th Cir. 1982) 682 F.2d 830, adopted the

“blended” approach to the calculation of attorneys’ fees.

This approach employs both the “lodestar approach”

and the 12 Aerr factors.

In Moore, the Court stated:

B3

“We note with approval the district courts

in this circuit have increasingly responded to {

perceived flaws in the Kerr and lodestar

approaches by blending the best features of the

two approaches. [Citations.] This court

recently upheld a fee award calculated with a

blend of lodestar and Kerr analysis.

* * *

“We believe that the blended approach is well

suited . . . for use in calculating the fee award

on remand.” (/d. at 840-41.)

Moreover, the Memorandum alters and modifies the

rule for awarding attorneys’ fees set out by this Circuit

in Sealy, Inc. v. Easy Living, Inc. (9th Cir. 1984) 743

F 2d 1378. As in the instant case, the Sea/y court stated

that the “[a]ward of attorneys’ fees is in the discretion

of the district court, and we will not disturb an award

unless the district court has abused its discretion.” (/d.

at 1384.) However, the decision of the Sealy court differs

from the decision in the instant case regarding the burden

of producing evidence and the necessity for an adequate

——eEe———EEEEE

:

record. |

In Sealy, as in this case, the Court was presented with |

Findings which the District Court had ordered prepared |

by the prevailing party (i.e., by the “winning lawyers”. |

Sealy, p. 1385, n.3). The Court in Sealy, found that |

this “regretable practice” required that the Findings be |

reviewed with “special scrutiny.” (/d. at 1385, n.3.) In |

the instant case, the Memorandum does not give any |

“special scrutiny” to the Findings. In fact the Memo- |

randum states that it is the City’s burden to rebut those

Fradings. This is contrary to the rule in Sealy that the

record must present “adequate review of the factors upon

which the district court based its decision.” (/d.) The

B4

Sea/y court held that where the trial court uncritically

accepts representations concerning the time expended

on the cuse and then awards the entire amount requested,

this is inappropriate. (/d.) However, this is the exact

procedure which was adopted by the trial court in the

instant case, and approved by the Memorandum.

Therefore, the Memorandum alters or modifies existing

law,

The Memorandum Calls Attention to a Generally Overlooked

Rule of Law (Rule 21(b){2)).

On the issue of res judicata, the Court relies upon

the decision of the United States Supreme Court in

Aurora City v. West (1868) 74 U.S. (7 Wall.) 82. There

can be no question but that reliance upon a case decided

117 years ago calls attention to a “generally overlooked”

rule of law.

The Case Involves Issues of “Unique Interest” and

“Substantial Public Importance” (Rule 21(b)4)).

This case involves the basic question of: To what extent

may a public entity regulate a “First Amendment

activity?” There are 436 cities and 58 counties in

California, most of which have in place adult business

7oning regulations either requiring dispersal, as in the

instant case, or requiring a concentration of adult

businesses. The constitutionality of all of these

ordinances ts affected by the disposition of this case.

That this matter is of considerable importance cannot

be denied, especially in view of the fact that the United

States Supreme Court has noted probable jurisdiction

in City of Renton \. Playtime Theaters (No. 84-1360.

opinion below, 748 F.2d 527 (9th Cir. 1984)). That case

Involves many facts and circumstances identical to the

Instant case. Prior to the issuance of the Memorandum.

the City. by letter, had requested that the panel deter

BS

resolution of this case pending action by the United

States Supreme Court in the Renton case; that request

was refused.

Finally, the Court's determination has the effect of

invalidating a “state” enactment, which its in itself of

substantial public importance within the meaning of

Rule 21(b)(4).

The Court Decided a Case in Which There is Another

Published Opinion (Rule 21(b)(5)).

Rule 21(b)(5) provides for publication where there is

“a published opinion by a lower court or adminstrative

agency ...” This provision is seemingly broad enough

to cover the situation in the instant case, where although

there is no published opinion by the Federal District

Court, a published opinion exists of a California court.

The constitutionality of the City’s adult business

zoning ordinances was also the subject of a published

opinion of the California Court of Appeal (City of

Whittier v. Walnut Properties, Inc. (1983) 149

Cal.App.3d 637). That opinion found the ordinances

constitutional. Without publication of the Memoran-

dum, the validity of this ordinance and other similar

ordinances will remain unclear and thus in doubt.

Rule 21(b) provides that dispositions “shall” be

published if any one of the criteria set forth in the Rule

are met. In this case, five of six of the criteria of the

Rule are met. Therefore, the City respectfully requests

that the final disposition in this matter be redesignated

and published as an Opinion.

Very truly yours,

m

~ 3

J.ROBERT FLANDRICK

Of BL RAKE. WILLIAMS & SORENSEN

B6

ce:

Thomas G. Mauk, City Manager

Stanley Fleishman, Esq.

Honorable Arleigh M. Woods

Honorable Robert Kingsley

Honorable Eugene McClosky

Cl

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUTI

FILED

SEP 1 8 1985

CLERK, U.S. COURT OF APPEALS

WALNUT PROPERTIES, INC.,a Calif-

ornia Corporation, and VINCENT | Nos. 84-5755

MIRANDA, an individual, se

itete) ) 84-6087

Plaintiffs-Appellees, ) D.C. No. CV

v. ) §81-2262-R

CITY OF WHIT TIER.a Charter City; )

M.D. KLAXTON, RL. HENDERSON, L.A 1) ORDER

STRONG, GENE CHANDLER, V.A. LOPEZ, )

as Members of the Whittier City )

Council; JAMES BALE, as Chief of )

Police of the City of Whittier: and )

JOHN ROBERT FLANDRICK, as City )

Attorney of the City of Whittier, )

)

Detendants-Appellants.

On appeal trom the United States District Court

for the Central District of Calitormia

Hon. Manuel |. Real, District Judge, presiding

Betore: BOOCHEVER and BEEZER. Circuit Judges

and SOLOMON,* District Judge.

Appellant's request for publication is denied,

* Gus J. Solomon, Senior United States District Judge

for the District of Oregon, sitting by designation.

PROOF OF SERVICE BY MAIL

State of California

SS.

County of Los Angeles

I, the undersigned, say: | am and was at all times

herein mentioned, a citizen of the United States and

a resident of the County of Los Angeles, over the age

of eighteen (18) years and not a party to the within

action or proceeding; that my business address is 11333

lowa Avenue, Los Angeles, California 90025; that on

January 28, 1986, | served the within Brief of Amici

Curiae in said action or proceeding by depositing true

copies thereof, enclosed in a sealed envelope with postage

thereon fully prepaid, in the United States mail at Los

Angeles, California, addressed as follows:

Clerk. United States Burke, Williams & Sorensen

Supreme Court J. Robert Flandrick.

One First Street, NW City Attorney,

Washington, DC. 20543 City of Whittier

(Origqnal and forty copies) Katherine F. Stone

Benjamin S. Kaufman

Ihe Honorable John K Lisa F. Kranitz

Van de Kamp 624 South Grand Avenue

Attorneys General Lith Floor

558 Capitol Mall Los Angeles, Calitornia 90017

Suite 356

Sacramento, Calitornia 9S814 Stanley Fleishman, bsy

2049 Century Park East

Suite 3160

Los Angeles, California 90067

| declare under penalty of perjury that the foregoing

is true and correct. Executed on January 28, 1986, at

Los Angeles. California

Joy Rivelli Miller

(Original signed)