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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1986
- **Citation:** 475 U.S. 1042

## Text

|

| 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

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)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0314%3A6. Public record. Not legal advice.