Petition for Writ of Certiorari — Southland News Co. v. County of Winnebago

Supreme Court, U.S.

FJl]bLE D

DFC 18 1985

JOSEPH F. SPANIOL, JR.

SR

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In The

Supreme Court of the United States

October Term, 1985

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SOUTHLAND NEWS CoO., INC.,

a IKkentucky corporation,

Petitioner,

THE COUNTY OF WINNEBAGO, a body politic, and

PAUL GILL, in his capacity as Clerk of Winnebago

County, Illinois,

Respondents.

ray

Uv

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

J. STEVEN BecKETT

Reno, O’Byrne & Keptey, P.C.

501 West Church

P.O. Box 693

Champaign, IL 61820

217-352-7661

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

QUESTIONS PRESENTED

1. Whether the Winnebago County Outdoor Theater

License Ordinance violates the First Amendment by re-

quiring licensees to covenant against exhibiting motion

picture films that may be constitutionally protected.

2. Whether the lower courts erred in viewing this

Court’s summary dismissal of Starview Drive-in Theatre,

Inc. v. Cook County, 457 U.S. 1113 (1982), as altering the

pronounced doctrines of Erznozentk v. City of Jackson-

ville, 422 U.S. 205 (1975).

il

TABLE OF CONTENTS

Subject Index

Pages

Opinion Below ............ wsssissceass paola PL EE ef 2

Be nt RRR ar a KC shu AUD ln 2

Constitutional and Statutory Provisions Involved .... 3

Statersent of the CAN6 nce ners 3

Reasons for Granting the Writ cn seen 9

Comeiaaniat sii cca ae ee ee 15

Exhibit A.

Exhibit B.

Exhibit C.

Exhibit D.

Appendix Index

Opinion of the United States Court of

Appeals for the Seventh Cireuit, with

order of the United States District Court

of Junt 1, 1008, 45.2 App.

Order denying rehearing en banc. App.

First Amendment, United States Con-

stituGie. -K......2.ccc ee tee eee App.

Fourteenth Amendment, United States

Constitution. Bee ere en eS App.

Winnebago County Code of Ordinances,

Article ITT, Section 4-14 et seq. (Winne-

bago County Outdoor Theater License

Ordinanes). 5 3... arsnssnnit a ce Gaseee

Temporary Restraining Order filed May

3, 1984, by United States District Court

Judge Milton Shadur. 2000000000... App.

13

ill

TABLE OF AUTHORITIES

Pages

CASES

Aetna Casualty Co. v. Flowers, 330 U.S. 464 (1947) .... 2

Brockett v. Spokane Arcades, Ine., — U.S. —

105 S.Ct. 2794 (1985) be as Se aacelhasisielsabecloeagieesenas ae ae

Carr v. Zaja, 283 U.S. 52 (1931) ............... [iessulicdeaiuatencuanets 2

E & B Enterprises v. City of University Park, 449

Ny AS: ene en enon anc 10

Erznoznik v. City of Jacksonville, 422 oe 205

(1975) . < o ...6, 7, 8, 9, 10, 11, 12, 14, 15

Freedman v. Marvland, 380 U.S. 51 (1965) 20. 1

Hicks v. Miranda, 422 U.S. 332 (1975) cccccceccecscsesssccesesneee 7

Mandel v. Bradley, 432 U.S. 173 (1977) cco.eceeseesessseneses 13

Miller v. California, 413 U.S. 15 (1973) 0 10

Northeast Theatre Corp. v. Jordan, 445 F.Supp.

744 (D.Mass., 1978) EN EERE Ae

People ex rel Carey v. Starview Drive-in Theatre,

Ine., 100 TIL. App.3d 624, 427 N.1.2d 201 (1981),

appeal dismissed for want of a substantial fed-

eral question, Starview Drive-in Theatre, Ine.

v. Cook County, et al., 457 U.S. 1113 (1982) ...6, 7, 8, 12,

People v. Valley Cinemas, Inec., 194 Cal.Rptr.

eg” TD 5 RES |S, | ccc eee 10

Schad v. Borough of Mt. Ephraim, 452 U.S. 61 (1981) 12

Southeastern Promotions, Ltd. v. Conrad, 422 U.S.

546 (1975) Sie AR I PO ee ett ok 11

Young v. American Mini Theatres, Ine., 427 U.S.

50 (1976) “pe WO moe acter Go a 7,11

iv

TABLE OF AUTHORITIES— Continued

Pages

ConsTITUTIONAL Provisions, STATUTES AND ORDINANCES

Winnebago County Code of Ordinances, Article

IIT, Section 4-14 et seq. (the Winnebago County

Outdoor Theater Ordinance) 0000. 8) 4,11,13

United States Constitution, First Amendment |... 3, 9, 11,

12,14

United States Constitution, Fourteenth Amendment ... 3

United States Code, Title 28, § 1254(1) oo 2

United States Code, Title 42, § 1983 oo a

In The

Supreme Court of the United States

October Term, 1985

ray

Vv

SOUTHLAND NEWS CoO., INC,,

a Kentucky corporation,

Petitioner,

THE COUNTY OF WINNEBAGO, a body politic, and

PAUL GILL, in his capacity as Clerk of Winnebago

County, [linois,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

t)

vv

Petitioner respectfully prays that a writ of certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Seventh Cireuit entered

in this proceeding on August 15, 1985.

o

bo

OPINION BELOW

The opinion of the United States Court of Appeals for

the Seventh Cireuit is an unpublished order rendered on

August 15, 1985. A copy of the order, and the June 7, 1984

order of the district court that was adopted in its en-

tirety by the court of appeals, are included in the Ap-

pendix as Exhibit A.

ray

Vv

JURISDICTION

Jurisdiction in this case is premised upon 28 U.S.C.

§ 1254(1) for review by certiorari of the judgment and

opinion of the United States Court of Appeals for the

Seventh Cireuit. A written unpublished order was issued

by that court on August 15, 1985. The petitioner filed a

petition for rehearing and suggestion for rehearing en

banc. That petition was denied on September 17, 1985. A

copy of the order denying rehearing en banc is included

in the Appendix as Exhibit B.

The record in this cause was lodged with the Clerk

of the U.S. District Court for the Northern District of

Illinois, Western Division, Rockford, [linois on Septem-

ber 30, 1985, with the return of the mandate to that court.

Although the mandate has issued, the United States Su-

preme Court has jurisdiction to review the decision of the

United States Court of Appeals regardless of the status

of the mandate. Carr v. Zaja, 288 U.S. 52, 53 (1931);

Aetna Casualty Co. v. Flowers, 330 U.S, 464, 468 (1947).

ae a (J -

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Relevant provisions of the First and Fourteenth

Amendments to the United States Constitution, and the

Winnebago County Outdoor Theater License Ordinance,

§ 4-14, Article ITT of the Code of Ordinanees of Winnebago

County, are set forth in the Appendix as Exhibit C.

ray

4?

STATEMENT OF THE CASE

The petitioner, Southland News Co., Inc., owns and

operates two drive-in theaters in Winnebago County, Ili-

nois. Both theaters heid required licenses issued by the

respondent Winnebago County, through the county clerk,

respondent Paul Gill, pursuant to the provisions of § 4-14,

Article ITI of the Code of Ordinances of Winnebago

County. The Robin Theater exhibited motion picture

films rated under the Motion Picture Association of Amer-

iea (MPAA), whieh films ineluded scenes depicting frank

sexual activity, The Sunset Theater exhibited motion pic-

ture films dealing frankly with nudity and sexual activity

(commently referred to as X-rated), restricting attendance

at the theater to adults only. The outdoor theater licenses

for each theater were to expire on April 30, 1984.

Under the Winnebago County Outdoor Drive-in The-

ater Ordinance, as it existed prior to April 12, 1984, par-

ties operating outdoor movie theaters were only required

to fill ont an application and pay a specified fee, On April

12, 1984, however, Winnebago County amended the ordi-

nance governing the issuance of such licenses. A copy of

the amended ordinance to the outdoor theater leense re-

+

quirements under § 4-14, Article TIE of the Code of Ordi-

nanees of Winnebago County is ineluded in Exhibit C of

the Appendix. Under the amended ordinance, issuance

of a license was expressly conditioned upon the applicant

for any new or renewal license executing a written coven-

ant to:

[Rlefrain or desist from exhibiting any motion pic-

ture or film presentation viewable from any private

residence or any publie street. walkway whieh con-

tains any scene or scenes depicting sexual intercourse,

masturbation, oral copulation, erect male genetalia or

male ejaculation ;

(Rlefrain or desist from exhibiting any motion pic-

ture or film presentation viewable from any private

residence which contains any scene or scenes depicting

the caressing or fondling of the bare female breast or

bare male or female buttocks, anus or genitals.

The legislative history of the ordinance was presented

to the district court by submission of county board min-

utes and subcommittee minutes relating to the enactment

of the ordinance amendment, The resolution adopting the

amendment provided that it was:

[1 }n the best interest of the health, safety, merals and

welfare of the residents of the County of Winnebago

and current and future residents of the County whose

homes are in close proximity to existing or future Out-

door Drive-In Theaters,

Subcommittee minutes reflected a meeting of its members

to stndy the “obscenity ordinance”, and their feeling that

the best way of imposing the ordinance would be te “tie

an agreement in with the license requirements”. Comments

of individual county board members reflected the concern

over the content of certain films. One member noted the

ordinance was designed and intended to “somehow pre-

vent them from showing movies that would show any kinds

ef obscene or obsence materials that will be viewed from

”

their homes, private homes or walkways. Another mem-

ber expanded further on the purpose, stating:

I quite frankly don’t care what people do in enclosures

or in the privacy of their own homes, but something

has to be done to prohibit the viewing of objection-

able materials in publie from people who don’t want

to wateh them and don’t want to be put into the posi-

tion of having to adjust their private lives because

someone fecls it is their constitutional right to view

what the majority would feel to be obscene,

On April 19, 1984, the petitioner mace application to

the respondent Gill for licenses for its two theaters, sub-

mitting the required fees but refusing to execute the writ-

ten covenants required by the ordinance amendment, The

respondent refused to issue licenses to the petitioner, de-

spite verbal and written demands from petitioner to issue

the licenses and refrain from enforeement of ihe required

written covenants under the ordinanee, After April’ 30,

1984, absent the required exceution of written covenants,

petitioner would be prohibited from the exhibition of mo-

tion picture films at both of is theaters, or would be sub-

ject to arrest for operation of its theaters without the re-

quired licenses.

On April 24, 1984, petitioner filed its complaint pur-

suant to 42 U.S.C. § 1983, attacking the constitutional va

lidity of the amended ordinance and seeking injunctive and

money damage relief against respondents. — Petitioner

sought a temporary restraining order (TRO), and prelim-

inary and permanent injunction to require respondents to

issue licenses to the petitioner and refrain them from at-

tempting further prior restraints on the petitioner’s opera-

tion of its theaters.

Respondents filed a motion to dismiss the TRO re-

quest, asserting that the matters sought to be reviewed

by the court were the subject of substantially the same or-

dinance, pleadings, and assertions addressed to People

ex rel Carey v. Starview Drive-in Theatre Inc., 100 Til. App.

3d 624, 427 N.E.2d 201 (1981), appeal dismissed for want

of a substantial federal question, 457 U.S. 1113 (1982).

United States District Judge Milton Shadur presided

at the April 30, 1984 hearing on petitioner’s request fora

TRO. At the hearing, petitioner presented evidence to

the court in the form of an affidavit and testimony from

employees of Kerasotes Theaters, a Springfield-based cor-

poration which owned and operated an outdoor drive-in

theater in Winnebago County, Illinois. That evidence in-

cluded assertions that the Kerasotes Theaters showed mo-

tion picture films rated by the MPAA, and that R-rated

motion picture films contained sexual themes and scenes

that would fall within the descriptions contained in the

licensing ordinance covenants. Judge Shadur rejected

the respondent’s contentions regarding the Starview de-

cision, and found Erznoznik v. City of Jacksonville, 422

U.S. 205 (1975), to be the controlling authority. District

Judge Shadur granted the TRO, allowing petitioner to

operate its theaters without renewed licenses. The writ-

ten TRO entered by Judge Shadur on May 3, 1984, is in-

eluded in the Appendix as Exhibit D.

United States District Court Judge Stanley Roszkow-

ski presided over further proceedings in the case, and the

TRO was expanded by agreement until a hearing on thie

7

request for a preliminary injunction and on respondent’s

motion to dissolve the TRO. At Judge Roszkowski’s re-

quest, the respondents provided documents demonstrating

the legislative history of the amendment to the ordinance.

Petitioner responded to the Starview issue and provided

the court with a copy of the jurisdictional statement filed

with the United States Supreme Court in Sfarview. The

petitioner asserted that Starvieu » as not a ruling on the

merits, and was not controlling outhority in considering

the request for preliminary injusctive relief.

On June 8, 1984, Judge Roszkewski entered an order

denying the petitioner’s request for a preliminary injune-

tion and granting the respondent’s motion to dissolve the

TRO. In rejecting the petitioner’s position on the Star-

view ease, Judge Roszkowski noted that under [Hicks v.

Miranda, 422 U.S. 332 (1975), as an inferior court he was

required to treat the United States Supreme Court dis-

missal of the Starview ease for want of a substantial fed-

eral question as a decision on the merits, and binding au-

thority as to the issues presented in this ease. He expressed

eoneern about the issue, however, concluding:

It is not without some reluctance that the court con-

cludes it is bound by the summary disposition in Star-

view. In the view of this court, substantial doubt re-

mains concerning Starview’s validity in light of Mr:-

noznik v. City of Jacksonville, 422 U.S. 205 (1975) and

Young v. American Mini Theatres, Inc., 427 US. 50

(1976). While the Supreme Court is free to disregard

its summary actions, Metromedia Inc. v. City of San

Diego, 453 U.S. 490, 500 (1981), however, this court

is not.

Southland News appealed to the United States Court

of Appeals for the Seventh Cireuit. In its brief to the

Seventh Cireuit, petitioner asserted the lower court erred

in its assessment of the weight and impact to be afforded

to United States Supreme Court cases involving summary

dispositions with cases receiving full plenary review by

the United States Supreme Court. Petitioner again raised

its claim that the controlling authority was Hrenoznik, and

that under the principles of Frenoznik the ordinance

amendment violated its constitutional rights and resulted

in the imposition of a prior restraint,

On August 15, 1985, in an unpublished order, the Sev-

enth Cireuit Court of Appeals affirmed the district court

ruling, incorporating Judge Roszkowski’s order in its en-

tirety, and coneluding:

Upon review of the briefs, pertinent authorities, and

the reeord we have reached the same conclusion as

the district court that Starview’s summary dismissal

binds us even though we have some doubt as-to its

consistency with several Supreme Court plenary de-

cisions issued before Starview.

Southland timely filed a petition for rehearing and

suggestion for rehearing en banc, which was denied by the

court of appeals on September 17, 1985.

9

REASONS FOR GRANTING THE WRIT

I.

THE WINNEBAGO COUNTY AMENDED OUT-

DOOR THEATER LICENSE ORDINANCE, ON

ITS FACE AND AS APPLIED, VIOLATES THE

FIRST AMENDMENT TO THE CONSTITU-

TION OF THE UNITED STATES UNDER THE

DIRECT HOLDING OF ERZNOZNIK V. CITY

OF JACKSONVILLE, 422 U.S. 205 (1975).

Winnebago County has effected a seheme of censor-

ship aimed directly at petitioner’s outdoor theaters, and

also affecting the only other outdoor theater in the county.

The censorship is accomplished by first foreine a theater

operator to promise that he will not show motion pieture

filins that contain specified sexual scenes, and then by the

county revoking or suspending a theater Heese issued to

the operator when a film with the deserihbed scenes can

be seen outside the theater premises. Both the require-

ment of the written covenant, and the prohibitory language

of the ordinanee, call into play stenifieant Tfirst S\miend-

ment interests justifying this court’s consideration of plen-

ary review.

Petitioner submits that the controlling authority for

review of theater license ordinances is this court’s deci-

sion in Erznoznik v. City of Jacksonville, 422 U.S. 205

(1975). There, a Jacksonville, Florida ordinance pro-

hibited the showing of films containing nudity at a drive-

in theater whose screen was visible from a public street

or place. The argued justification for such an ordinance

was the protection of citizens from unwilling exposure to

what they might deem offensive material. In finding the

ordinance unconstitutional, this Court stated: P

10

The plain, if at times disquieting, truth is that in our

pluralistic society, constantly proliferating new and

ingenious forms of expression, ‘we are inescapably

captive audiences for many purposes.’ Rowan v. Post

Office Dept., supra, 397 U.S. at 736, 90 S.Ct. at 1490.

Much that we encounter offends our esthetic, if not

our political and moral, sensibilities. Nevertheless,

the Constitution does not permit government to de-

cide which types of otherwise protected speech are

sufficiently offensive to require protection for the

unwilling listener or viewer. Rather, absent the nar-

row circumstances described above, the burden nor-

mally falls upon the viewer to ‘avoid further bom-

bardment of [his] sensibilities simply by averting

[his] eyes.’

Erznozenik v. City of Jacksonville, 422 U.S. at 210.

The Court noted that a drive-in screen in and of itself was

not so obtrusive that a person could not avert the view

simply by looking the other way. 422 U.S. at 212. The

Court concluded that the ordinance was constitutionally

overbroad because its prohibitions regarding nudity were

in no way tied to context or pervasiveness. 422 U.S. at 212.

Lower courts have recognized and applied the Erznoznik

principles in invalidating license ordinances that tie li-

censing or revocation or suspension to standards other

than the constitutional guidelines for obscenity set forth

by this Court in Miller v. California, 413 U.S. 15 (1973).

See People v. Valley Cinemas, Inc., 194 Cal.Rptr. 859 (Cal.

App.3d Dist., 1983); Northeast Theatre Corp. v. Jordan,

445 F.Supp. 744 (D.Mass., 1978); Ff d B Eenterprises v.

City of University Park, 449 F.Supp. 695 (N.D.Tex., 1977).

This Court last term reaffirmed the principle that material

that does not offend each element of the tripartite test for

11

obscenity enjoys constitutional protection. Brockett vr.

Spokane Arcades, Inc., — U.S. —, 105 S.Ct. 2094 (1985).

This Court has viewed the Hrznroznithk doctrine as be-

ing applicable where the deterrent effect of legislation on

legitimate expression ts real and substantial. If the effect

of the legislation is to suppress protected speech, it is clear-

ly in violation of the First Amendment. Foung v. clmer-

ican Mint Theatres, Inc., 427 U.S. 50 (1976). Where an

ordinance would ban the exhibition of a film on the basis

of a single scene, notwithstanding the constitutionally

protected nature of the film, such an ordinanee would be

invalid. 427 U.S. at 71, 1.35.

In the present case, the Winnebago County Ordinance

under review requires the exhibitor to covenant that he

will not exhibit certain motion picture films, even if they

enjoy First Amendment protection, and further, lnposes

the potential of license and penal sanctions if such pro-

tected materials are shown. Thus, Winnebago County has

accomplished a system of prior restraint under ¢ireum-

stances which have been long condemned by this Court.

Southeastern Promotions, Ltd. v. Conrad, 422 U.S. 546

(1975); Freedman v. Maryland, 280 U.S. o1 (1965).

The district court found that the legislative intent be-

hind the ordinance was to prohibit the showing of sexually

explicit films at the petitioner’s Sunset Drive-in Theater,

regardless of whether or not those films were obscene.

In that history it was patent that Winnebago County of-

ficials deemed the films being shown at that theater un-

acceptable and wanted to restrain their exhibition through

licensing procedures because of the dissatisfaction with

criminal prosecutions.

12

The burden to be applied to the government to justify

the ordinance in this ease is that of a compelling govern-

mental interest because of the First Amendment issues

involved. Indeed, there is no presumption of validity or

legitimacy to be attached to this ordinance. Schad v. Bor-

ough of Mt. Ephraim, 452 U.S. 61, 77 (Blackmun, J. con-

curring, 1981). The respondents have never tendered any

justification in support of the outdoor drive-in theater

license ordinanee.

It is submitted that the question of the constitutional-

itv of such an ordinance is of national interest, as opposed

to loeal interest. The failure of the courts below to adhere

to the express doctrines pronounced by this Court in Lre-

noznik and later cases cannot be ignored. Petitioner’s re-

quest for certiorari review should be granted.

II.

THE LOWER FEDERAL COURTS ERRONE-

OUSLY AFFORDED CONTROLLING PRECE-

DENTIAL WEIGHT TO SUMMARY DISMISS-

AL OF AN APPEAL FROM AN ILLINOIS

APPELLATE COURT DECISION, WHEN

PROPER CONTROLLING DECISIONS AFTER

PLENARY REVIEW BY THIS COURT EXIST-

ED.

The present case presents an opportunity for this

Court to address a recurring problem regarding the han-

dling of this Court’s appellate jurisdiction by decisions

involving summary action. In the present case, an outdoor

theater license ordinance similar to the one under review

had been held facially constitutional in factual cirenm-

stances readily distinguishable from the present ease.

People er rel Carey vr. Starriew Drive-in Theatre, Tne...

100 TilhApp.sd 624, 427 N.i.2d 201 (1981). The theater

invoked this Court’s appellate jurisdiction by the filing

of a jurisdictional statement, and this Court disiissed the

appeal for want of a substantial federal question. Star-

view Drive-in Theatre, Inc. v. Cook County, et al, 457 US.

11138 (1982).

In the lower federal courts, the respondents have con-

tended that the summary action of this Court in the Star-

view ease is controlling and binding precedent for the

proposition that the Winnebago County Outdoor Theater

License Ordinance is constitutionally valid. That argu-

ment, however, ignores the required analysis of a lower

court to limit the application of summary decisions of this

Court to the narrowest possible grounds, and especially

to not read a summary decision as renouncing a doctrine

that is the product of a full opinion of this Court. Jandel

v. Bradley, 482 U.S. 173, 176 (1977).

In an effort to aid the lower court in conducting a

proper analysis of this issue, the petitioner submitted the

jurisdictional statement from the Sfarview action in this

Court. A review of that jurisdictional statement discloses

that the defendant in that case was the theater operator

who had applied for and received a license and executed

the covenants required by the ordinance. The action was

limited to raising a question on the facial validity of the

ordinance and net on the ordinance as applied. No effort

was made by the lower court in Starriew to examine the

legislative history of the ordinance to determine whether

or not it was ‘‘content neutral’? and could therefore be

justified as a reasonable time, place and manner regula-

tion.

14

In contrast, petitioner Southland News Co., Ine. is the

owner and operator of two drive-in theaters who applied

for and was denied two theater licenses after refusing to

execute restrictive covenants that would have prevented

the exhibition of motion picture films containing scenes of

sexual explicitness and sexual nudity. The covenants were

required by an amended outdoor theater license ordinance

that in its legislative history, as found by the district

court, was not content neutral, and in facet, was designed to

serve as a prior restraint against the exhibition of motion

picture films deemed unacceptable by county government.

Clearly, the Erznoznik doctrine under the First Amend-

ment, as well as the Freedman pronouncements against

prior restraints, were controlling in this case. Elevating

the Starview summary dismissal to full opinion status

cannot and should not be tolerated.

Federal district judge Shadur easily distinguished

Starview on the facts in granting the petitioner a tempo-

rary restraining order. That TRO was based on Judge

Shadnr’s recognition of Hrenvenik as the controlling au-

thority.

Petitioner submits that the failure to afford proper

controlling weight to the plenary decisions of this Court

is of great importance and accordingly, a review of this

“J . a 7

petition for certiorari is necessary and proper.

15

CONCLUSION

In the unpublished order. the Seventh Cireuit Court

of Appeals expressed the same reluctance that had been

expressed by the district court regarding the continuing

validity of the ‘‘merits’’ of People ex rel Carey v. Star-

view Drive-in Theatre, Inec., 100 HL App.3sd 624, 427 N.B.2d

201 (1981), appeal dismissed for want of a substantial fed-

eral question, 457 U.S. 1118 (1982), in the face of the ex-

press doctrines of Lrenvznik v. City of Jacksonville, 422

U.S. 205 (1975) and other plenary decisions of this Court.

Nevertheless, those courts held themselves bound by Star-

view. It is submitted that the result is incongruent and

illogical. Certiorari should be granted.

Respectfully submitted,

J. STEVEN Beckett

Reno, O’Byrne & Keprey, P.C.

501 West Church Street

P.O. Box 695

Champaign, [IL 61820

217-352-7661

Counsel for Petitioner

December, 1985

App. 1

APPENDIX

EXHIBIT A

UNITED STATES COURT OF APPEALS

FOR THE SEVENTIL CLIRCULT

CHICAGO, TLLINOLS 60604

(Argued February 26, 1985)

August 15, 1985

BEFORE

Hon. HARLINGTON WOOD, JR., Cireuit. Judge

Hon. RICHARD A. POSNER, Cireuit Judge

Hon. THOMAS EB. FAIRCHILD, Senior Cirenit Judge

Appeal from the United States District Court for the

Northern District of [linois, Western Division,

No, 84-€-20079

Stanley J. Roszkowski, Judge.

SOUTHLAND NEWS CO.,, ING. a Kentucky corporation,

authorized to do business in the State of Illinois,

Plamtitt A ppe llant,

No, S4-1988

Vs.

THE COUNTY OF WINNEBAGO, a body politic, and

PAUL GILL, in his capacity as Clerk of

Winnebago County, Illinois,

Defendants-Appellees.

ORDER

Plaintiff-appellant, Southland News, appeals a district

court order upholding a Winnebago County ordinance that

App. 2

conditions the issu. -. »f a license to operate an outdoor

movie theater on the execution of a covenant not to exhibit

films viewable from any private residence or public street

or walkway containing ‘‘any scene or seenes depicting

sexual intercourse, masturbation, oral copulation, ereet

male genitalia or male ejaculation,’® or films viewable

from any private residence containing ‘‘any scene or

scenes depicting the caressing or fondling of the bare fe-

male breast or bare male or female buttocks, anus or

genitals,”’

All parties agree that the ordinance involved is pat-

terned to the letter after those portions of a Cook County

Outdoor Movie Theater Ordinance upheld by an Llinois

appellate court panel in the face of first amendment at-

tacks. See People v. Starview Drive-In Theatre, Inc., 100

Ill, App. 8d 624, 427 N.E, 2d 201 (1981). On appeal the

United States Supreme Court summarily dismissed the

vase for lack of a substantial federal question. See Star-

view Drive-In Theatre, Inc. v. Cook County, 457 US, 1118

(1982) (Justice Brennan voting to note probable jurisdic-

tion and set for oral argument). The issue is how much

weight to accord this Supreme Court summary dismissal,

Relying on the Court’s pronouncement in Hicks v. Miran-

da, 422 U.S. 332 (1975), that a dismissal for want of a

substantial federal qeustion is a decision on the merits to

be heeded by inferior courts ‘* ‘unless and until the Su-

preme Court should instruct otherwise,’ ’’ id. at 544 (quot-

ing Port Authorities Bondholders Protective Com mittee v.

Port of New York Authority, 387 F.2d 259, 268 n.8 (2d Cir.

1967)), the district court upheld the Winnebago County

ordinance. At the same time it expressed substantial

doubt over the vitality of Starview in light of Erenoznick

App. 3

v. City of Jacksonville, 422 U.S, 205 (1975) and Young v.

American Mini Theatres, Inc., 427 U.S. 50 (1976).

Upon review of the briefs, pertinent authorities, and

the record we wave reached the same conclusion as the dis

trict court that Sfarvrew’s summary dismissal binds us

even though we have some doubt as to its consisteney will

several Supreme Court plenary decisions issued before

Starview. Judge Roszkowski’s well-reasoned order thor

oughly discusses the pertinent authorities and accordingly

we adopt it in its entirety.

AFFIRMED,

App. 4

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISRICT OF ILLINOIS

WESTERN DIVISION

No, 84 € 20079

SOUTHLAND NEWS CvO., INC., a Kentucky Corpora-

tion. avthorized to do business in the State of Illinois,

Plaintiff,

VS.

THE COUNTY OF WINNEBAGO, a body politic, PAUL

GILL, in his capacity as County Clerk of Winnebago

County, Illinois,

Defendants.

ORDER

Before the court are plaintiff’s motion for a prelim-

.

inary injunction aud defendants’ motion to dissolve the

temporary restraining order. The court’s subject matter

jurisdiction is based upon 28 U.S.C. $1548 and 28 U.S.C.

§ 2201. For the reasons set forth herein, plaintiff’s motion

fora preliminary injunction is denied and defendants’ mo-

tion to dissolve the temporary restraining order is granted.

Background

The facets giving rise to the present controversy are

uneontested. Plaintiff, Southland News Co., is the owner

and operator of an outdoor theater located in Winnebago

County, Hlinois. The theater’s movie screen is approxi-

mately 120’ x 70’. Movies projected on the theater’s

sereen are visible from public streets and private resi-

dences.

App. 5

In order to operate an outdoor movie theater in Win-

nebago County, the operator must obtain an annual county

license. Prior to April 12, 1984, a party seeking to obtain

a jicense was merely required to fill out an application and

pay a certain fee. Plaintiff held such an annual license

expiring on April 30, 1984.

On April 12, 1984, however, the defendant County

amended the ordinance governing the issuance of such li-

censes. Under the amended ordinanee, the issuance of

such licenses is expressly conditioned upon the applicant’s

executing a covenant not te exhibit films depicting certain

types of conduct. Speeifically, the ordinance prohibits

‘‘any seenes or scenes depicting sexual intercourse, mas-

iurbation, oral copulation, erect male genitalia or male

ejaculation’’ viewable from any private residence or any

pubie street or walkway, and ‘‘any scene or scenes depict-

ing the caressing or fondling of the bare female breast or

bare male or female buttocks, anus or genitals’? viewable

from any private residence.

The legislative history of the subject ordinanee makes

it clear that the ordinance was aimed solely at the content

of certain films. The resolution adopting the amended

ordinance provided it was ‘‘in the best interest of the

health, safety, morals and welfare of the residents of the

County of Winnebago and current and future residents of

of the County whose homes are in close proximity to exist-

‘

ing or future Outdoor Drive-In Theatres.’* The report

from the subeommittee assigned to review the proposed

ordinanee reflects that the members met to study ‘‘the

obseenity ordinance.’ Moreover, the comments of in-

dividual county boara members make clear that the eon

tent of certain films was the County's sole coneern. Board

App. 6

member Abrahamson, for example, stated the ordinance

was intended to ‘‘somehow prevent them from showing

movies that would show any kinds of obscene materials

that will be viewed from ... homes, private homes or

walkways.’’ Board member Mackay stated:

I quite frankly don’t care what people do in enclosures

or in the privacy of their own homes, but something

has to be done to prohibit the viewing of objectionable

materials in public from people who don’t want to

watch them and don’t want to be put into the position

of having to adjust their private lives because some-

one feels it is their constitutional right te view what

the majority would feel to be obscene.

No other justification was offered for the ordinance.

Plaintiff sought to renew its license under the

amended ordinance, but refused to execute the required

covenants. As a result, the defendant County Clerk re-

fused to renew the plaintiff's license. Plaintiff subse-

quently commenced the present action.

On April 50, 1984, the court entered a temporary re-

straining order prohibiting the defendants from enforcing

the subject ordinance. The temporary restraining order

was subsequently continued by agreement of the parties.

Plaintiff now seeks a preliminary injunction and defend-

ants seek to dissolve the temporary restraining order.

Discussion

Defendants’ sole argument rests upon the Supreme

Court’s dismissal of the appeal in People ex rel Carey v.

Starview Drive-In Theater, 100 Ul.App.38d 624, 427 N.E.

2d 201 (1st Dist. 1981) appeal dismissed 457 U.S. 1115

(1982). In Starview, an Illinois appellate court upheld the

App. 7

coustitutionality of portions of a similar Cook County

ordinance. The portions of the Cook County ordinance

which were held to be constitutional in Starview form the

entire basis of the Winnebago County ordinance. Thus,

relying upon /Hicks v. Miranda, 422 U.S. 332. (1975), de-

fendants argue the dismissal of the Sfarview appeal for

want of a substantial federal question settles the issues

raised in the present case.

In Hicks, the court recognized that votes fo affirm

summarily and to dismiss for want of a substantial federal

question are votes on the merits of a case. Jd. at 344. In-

deed, the //icks court cautioned that ‘* ‘unless and until the

Supreme Court should instruct otherwise, inferior federal

courts had best adhere to the view that if the Court has

branded a question as unsubstantial, it remains so except

when doctrinal developments indicate otherwise.’’’ Jd.

(citing Port Authorities Bondholders Protective Commit-

tee v. Port of New York Authority, 387 F.2d 259, 265 no

(2nd Cir. 1967)). More recent supreme Court pronounce-

ments have stressed that the binding effect of such sum-

mary dispositions is limited ‘‘to the precise issues pre-

sented and necessarily decided by those actions.’? Ander.

son v. Celebrezze, — U.S. —, 103 S. Ct. 1564, 1567 n.5

(1983); Illinois State Board of Hlections v. Socialist

Workers Party, 440 U.S. 178, 185-84 [sie 152-83} (1979);

and Mandel v. Bradley, 482 U.S. 173, 176 (1977).

Plaintiff, however, contends the Supreme Court’s dis

missal of the Starview appeal is not controlling in the in

stant case. First, relying upon Justice Brennan's con-

curring opinion in Mandel, id. at 180, and various allega-

tions contained in the Starview jurisdictional statement,

plaintiff contends Starview was not decided upon the

App. 8

merits. Specifically, plaintiff argues the Supreme Court’s

dismissal was based upon a determination that the ease

was not justiciable.

This court is not persuaded by the plaintiff’s argu-

ment. The plaintiff has not cited, nor has the court inde-

pendently been able to locate, any decisions disregarding

a dismissal for lack of a substantial federat question on

the grounds that the dismissal may have been premised

upon the lack of a justiciable controversy. The cases

clearly state that such a dismissal is a decision on the

merits. Appeals dismissed due to the absence of a justi-

ciable controversy ordinarily specifically state that stand-

ing, ripeness or mootness was the reason for dismissal.

See e.g. Don’t Bankrupt Washington Committee v. Con-

tinental Illinois National Bauk and Trust Company of

Chicago, — US. —, 103 8S. Ct. 1762 (1983).

Plaintiff’s reliance upon Justice Brennan’s conecur-

ring decision in Jandel dees not support its position to

the contrary. In Mandel, Justice Brennan stated that be-

fore considering a dismissal for want of a substantial fed-

eral question as binding, a court must ‘‘determine that

the judgment in fact rests upon decision of those ques-

tions and not even arguably upon some alternative non-

constitutional ground.’’ [/d. at 180.] Plaintiff interprets

the phrase ‘‘some alternative nonconstitutional ground’’

as ineluding decisions ‘‘other than on the merits.’’ The

decisions previously cited, however, make clear that such

is not the case. Rather, Justice Brennan is apparently re-

ferring to decisions resting upon alternative state law or

other grounds. Aside from justiciability, plaintiffs fails

to suggest what that alternative ground could have been

App. 9

in the present case. Thus, the court rejects the detend-

ants’ contention that the case is not controlling because it

was decided ‘‘other than on the merits.”’

linally, plaintiff contends the Supreme Court’s dis-

missal of the Starview appeal is not controlling because,

in the present case, it has ‘‘mounted a substantial and de-

tailed prior restraint attack upon the ordinanece’’, while

‘‘{njeither the licensee nor the state’s attorney made any

sort of sophisticated analysis or presentation in Starview

regarding the issue of prior restraint.”’ In order to deter-

mine whether a particular issue was considered and neces-

sarily rejected by the Supreme Court, a court must exam-

ine the jurisdictional statement from the appeal to that

Court. [.Wandel, 452 U.S. at 180 (Brennan concurring) ;|

Chicago Sheraton Corporation v. Zaban, 593 F.2d 808, 809

(7th Cir.), cert. dismissed, 444 U.S. 911 (1979): Stratton

v. Drumm, 445 F. Supp. 1305, 18309 (D. Conn. 1978).

In Starview, the appellant raised the issue of a prior

restraint at several places in its jurisdictional statement.

(Appellant’s Jurisdictional Statement [...] 21-22). While

the issue may not have been as artfully raised as it has

been here, it was nevertheless brought before the court.

Plaintiff again has not cited, nor has the eourt been able to

locate, any decision disregarding a dismissal for want of a

substantial federal question on the grounds that an issue

presented and necessarily decided by the court was not

introduced in a sophisticated manner.

it appears to the court that plaintiff's real argument

in this regard involves a factual distinefion between Star-

view and the present case. In Starview, the plaintiff had

been issued a license, while in the present case no such h-

cense has been issued. As a result, in Starciew, the plain-

App. 10

tiff’s license was only subject to revocation a/ter the

showing of a film allegedly violating the ordinance and

after a hearing on the revocation. Here, arguably, plain-

tiff’s refusal to enter into the subject covenant has com-

pletely prevented it from exhibiting films of any type.

The court is unpersuaded by this faetal distinetion.

The issuance of a license under both the Cook County and

Winnebago County ordinances ts expressly premised upon

the execution of a covenant. The action in Starvicw was

for declaratory judgment based upon the facial imvatidity

of the statute. While the facts are distinguishable, the

legal issues are identical. Thus, the fact that the plaimtilt

in Sfarciew reluctantly executed the covenant while the

plaintiff in the present case refused to do so is not

material!

(‘onclusion

It is not without some reluctance that the court con-

cludes it is bound by the summary dispesition in Starvier.

In the view of this court, substantial doubt remains con-

cerning Starview’s validity in light of Erznoznichk v. City

of Jacksonville, 422 U.S. 205 (1975) and Young v. Amert-

can Mini Theatres, Inc., 427 U.S. 50 (1976)2 While the

; Such a distinction might be material to the issue of stand-

ing. As the court has already recognized, however, absent an

express statement to the contrary, considerations of justicability

do not play a role in decisions to dismiss an appeal for want

of a substantial federai question.

2 For conflicting state court decisions, See [sic compare, |

People v. Valley Cinemas, Inc., 194 Cal.Rptr. 859 (Cal.App.3rd

Dist. 1983) and [sic with] State v. Budco Quality Theaters, Inc.,

155 N.j.Super. 50, 382 A.2d 192 [sic 102] (1977).

App. 11

Supreme Court is free to disregard its summary actions,

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 500

(1981), [ ...] this eourt is not. Thus, for the reasons set

forth herein, plaintiff’s motion for a preliminary injune-

tion is denied and defendants’ motion to dissolve the tem-

porary restraining order is granted.

ENTER:

/s/ Stanley J. Roszkowski

Stanley J. Roszkowski, Judge

United States District Court

Dated: June 7, 1984

App. 12

EXHIBIT B

UNITED STATES COURT OF APPEALS

For the Seventh Cireuit

Chicago, Hhnois 60604

September 17, 1985.

Before

Hon. HARLINGTON WOOD, JR., Cireuit Judge

Ilon. RICHARD A. POSNER, Cireuit Judge

Hon. THOMAS EB. FATRCHTLD, Senior Cireuit Judge

Appeal from the United States District Court for

the Northern District of Illinois, Western Division.

84-C'-20079

Stanley J. Roszkowski, Judge.

SOUTHLAND NEWS CO., INC., a Kentucky corporation,

authorized to do business in the State of [hinots,

Plaintiff-Appellant,

No. 84-1988

Vs.

THE COUNTY OF WINNEBAGO, a body politic, and

PAUL GILL, in his capacity as Clerk of Winnebago

County, [linois,

Defendants-Appe llees.

ORDER

On consideration of the petition for rehearing and

suggestion for rehearing in banc filed in the above-en-

titled cause on August 28, 1985, by plaintiff-appellant, no

judge in active service has requested a vote thereon, and

all of the judges on the original panel have voted to deny

rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition for re

hearing be, and the same is hereby, DENIED.

App. 13

EXHIBIT C

First Amendment Constitution of the United States

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press: or

the right of the people peaceably to assembly, and to peti-

tion the Government for a redress of grievances.

Fourteenth Amendment

Constitution of the United States

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforee any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law nor

deny to any person within its jurisdiction the equal pro-

tection of the laws.

WINNEBAGO COUNTY OUTDOOR

THEATER LICENSE ORDINANCE

STATE OF TLLINOTS, )

) ss,

County of Winnebago, )

I, PAUL P. GILL, County Clerk, within and for said

County, and having a seal do hereby certify that T have

compared the foregoing copy of the Record of Ordinance

Amendment to the County Code of Ordinances, Article

III, Section 4-14, concerning applications for licenses for

outdoor theaters with the Original Record thereof now

remaining in my office, and have found the same to be a

correct transcript therefrom and of the whole of such

Original Reeord.

App. 14

In testimony whereof I have hereunto set my hand

and affixed the seal of said County, at the City

of Rockford, in said County, this 13th day of

April A.D. 1984.

s/ Paul P. Gill, Winnebago County Clerk

By: /s/ Jane Banter, Deputy County Clerk

84 CO

ORDINANCE AMENDMENT

WHEREAS, the County of Winnebago has previous-

ly enacted pursuant to Chapter 34, Section 421, Illinois

Revised Statutes, regulations and licensing procedures for

outdoor drive-in theaters, which regulations and licensing

procedures are contained within Article III, Section 4-14

et seq. of the Code of Ordinances of the County of Winne-

bago; and

WHEREAS, it is in the best interest of the health,

safety, morals and welfare of the residents of the County

of Winnebago and the current and future residents of the

County whose homes are in close proximity to existing or

future outdoor drive-in theaters to amend the Code of

Ordinances of the County of Winnebago.

NOW, THEREFORE, BE IT ORDAINED, by the

County Board of the County of Winnebago that Article

III, Section 4-14 be amended by deleting the language in

its entirety and inserting in its stead the following lan-

guage:

Section 4-14.

App. 15

Every application for license or renewal thereof. re-

quired by this Article shall be filed with the County

Clerk supported or accompanied by:

a) The designated license fee;

b) Information as to the name and address of the

applicant, theater seating and parking ca-

pacity, location of the theater to be licensed,

and the name under which the applicant ex-

pects to conduet his business :

c) A written covenant by the applicant to re-

frain or desist from exhibiting any motion

picture or film presentation viewable from

any private residence or any publie street or

walkway which contains any scene or scenes

depicting sexual intercourse, masturbation,

oral copulation, erect male genitalia or male

ejaculation ;

d) A written covenant by the applicant to re-

frain or desist from exhibiting anv motion

picture or film presentation viewable from

any private residence which contains any

scene or scenes depicting the caressing or

fondling of the bare female breast or bare

male or female buttocks, anus or genitals,

BE IT FURTHER ORDAINED, that the covenant

required in Paragraph 4-14(d) above shall be in a form

substantially equivalent to that which is attached hereto

and marked as Exhibit ‘“A.”’

BE IT FURTHER ORDAINED, that this Ordinance

Amendment shall be in full force and effect immediately

upon its adoption.

BE IT FURTHER ORDAINED, that the Clerk of the

County Board is hereby authorized to prepare and deliver

certified copies of this Ordinance Amendment to Sheriff

Donald Gasparini, County Board Chairman, State’s At-

torney Daniel D. Doyle, and the holders of currently valid

outdoor drive-in theater licenses,

App. 16

The above and foregoing Ordinance Amendment was

adopted by the County Board of the County of Winne-

bago, Illinois, on the 12th day of April, 1984.

/s/ Pat L. Scott

Pat L. Seott, Chairman of the

County Board of the County of

Winnebago, Ilinois

ATTEST:

s/ Paul P. Gill

Paul P. Gill, Clerk of the

County Board of the County

of Winnebago, Illinois

WINNEBAGO COUNTY CODE

CHAPTER 4, ** Amusements”

ARTICLE III. THEATRES

Section 4-13. License required; Fee; Duration.

It shall be unlawful for any person to establish, op-

erate or mainta'n or permit to be established, operated or

maintained upon any property owned or controlled by

him, within the boundaries of the county, but outside the

limits of cities, villages, and incorporated towns, a theatre

in the business of providing entertainment consisting of

either live shows or plays, outdoor or indoor motion piec-

tures, without having first secured a license therefor from

the County Clerk. Such license shall be valid and have

force in the county until succeeding April 30 from the date

of issue, and may be renewed under provisions of this

Article for additional periods of one (1) vear. The an-

nual fees for such license shall be $75 for a live theatre,

$50 per sereen for an indoor movie theatre not to exceed

App. 17

$200, and $75 per screen for an outdoor movie theatre not

to exceed $200.

Short term licenses shall be available to all new li-

censees under this Article at a fee which is prorated in

accordance with a full vear rate.

Section 4-14. Same—Application.

The avplication for a license required by this Article

or renewal thereof shall be filed with the County Clerk

accompanied by the desigaated license fee. Application

for license renewal thereof shall be inade on printed forms

furnished by the County Clerk and shall inelude the name

and address of the applicant, theatre seating and parking

capacity, location of the theatre to be licensed end the

name under which the applicant expects to conduet his

business,

Section 4-15. Same—lITssuance.

Before any new license under this article may be is-

sued there must be a favorable recommendation by a ma-

jority of the county board.

Section 4-16. Same—Suspension or revoeation—In-

vestigating commission,

The chairman of the county board, together with two

other members of the board appointed by him shall con-

stitute a commission to investigate and hear any com.

plaints that may be made concerning violations of the

provisions of this Article. The two members selected

from the board.to serve on such commission shall serve

for a period of two years or until their snecessors have

been appointed and duly qualified. Members of the com

mission may be reappointed.

App. 18

Section 4-17. Same—Same—Proceedings, grounds,

ete.

The commission created by the preceding section is

authorized to revoke or suspend any license issued pur-

suant to the terms of this Article, if after this investi-

gation and hearing the commission shal] determine that

the holder of such license has violated any of the pro-

visions of this Article. No hearing shall be held unless

notice of such hearing shall have been served by registered

mail on the alleged violator at least three days prior to

the date of the hearing. The commission shall keep a ree-

ord of any proceedings taken at a hearing pursuant to this

section. The commission may suspend a license issued

pursuant to the terms of this Article for a period not to

exceed thirty days, if it determines that the holder is guil-

ty of a violation of any of the provisions of this Article.

Section 4-18. Theatre to be clean and order main-

tained.

It is hereby made the duty of the licensee under this

Article to maintain the theatre in a safe, clean, orderly

and sanitary condition at all times.

Section 4-19. Inspection.

All licensees under this Article shall be subject to the

inspection by the County Building Officer and/or the

County Health Officer or their deputies.

Section 4-20. Penalty.

Any person violating any provision of this Article

shall be fined not exceeding two hundred dollars for each

offense; and a separate offense shall be deemed com-

App. 19

mitted on each day during or on which a violation occurs

or continues.

Amendments to Ordinance approved by the Winnebago

County Board on the 8th day of August, 1974.

4-10-75

COPIES OF THIS ARTICLE PREPARED AND FUR-

NISHED BY:

/s/ Paul P. Gill

PAUL P. GILL,

WINNEBAGO COUNTY CLERK

App. 20

EXHIBIT D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

ROCKFORD, ILLINOIS

No. 84 € 20079

SOUTHLAND NEWS CO., INC., a Kentucky corporation,

authorized to do business in the State of Illinois,

Plaintiff,

vs.

THE COUNTY OF WINNEBAGO, a body politic, PAUL

GILL, in his capacity as County Clerk of Winnebago

County, Illinois,

Defendants.

TEMPORARY RESTRAINING ORDER

(Filed May 3, 1984)

Southland News Co., Inc., (Southland’’) has filed this

action seeking declaratory, injunctive and money damage

relief against the County of Winnebago (‘‘Winnebago

County’’), and Winnebago County Clerk Paul Gill

(‘‘Gill’’). Southland’s compiaint focuses on the validity

of a Winnebago County ordinance that provides for the

licensing of outdoor or drive-in theaters and, as recently

amended April 12, 1984, requires the execution of cove-

nants by a potential licensee that movies containing cer-

tain types of sexual scenes or depictions will not be ex-

hibited (the ordinance, as so amended, is referred to as

the ‘‘Ordinanee’’). This Court is now ruling on South-

land’s request for a temporary restraining order,

(‘“*TRO’’) to enjoin and prohibit defendants from en-

forcing the Ordinance against Southland, after its ap-

App. 21

plications for theater license for the Sunset Drive-in

Theater and the Robin Drive-in Theater were denied and

refused because Southland would not execute the cove-

nants in compliance with the Ordinance. Current licenses

for these theaters held by Southland expire April 30, 1984.

At the April 30, 1984 TRO hearing, counsel for South-

land and defendants appeared by written notice and agree-

ment. The court has received and considered the follow-

ing evidence for purposes of Southland’s motion for a

TRO:

1. Southland’s verified Complaint including its ex-

hibits: Exhibit A, the Ordinance; Exhibits B and C, the

license applications for the Sunset and Robin Theaters,

respectively; and Exhibit D, correspondence from South-

land’s attorney to defendants’ attorney as to the antici-

pated enforcement of the Ordinance and its claimed con-

stitutional invalidity ;

2. Affidavit of Edward C. Schnerman, a booker em-

ployed by Kerasotes Theatres, Inc. (‘‘Kerasotes’’) as to

(a) the nature of motion picture films shown under the

Motion Picture Association of America rating system and

(b) questions of interpretation regarding the Ordinance

as applicable to the Belford Theater operated by Kera-

sotes ;

5. Southland’s Memorandum in Support of Plain-

tiff’s Complaint for Declaratory, Injunetive and Money

Damage Relief, with attached copies of authorities:

4. Defendants’ Motion To Dismiss Motion for Tem-

porary Restraining Order, together with a Memorandum

in support thereof, and attached copies of authority, in-

cluding People v. Starview Drire-in Theatre, 100 IL App.

App. 22

3d 624, 427 N.E.2d 201 (1st Dist. 1981), appeal dismissed

102 S.Ct. 2918 (1982) ; and

5. Testimony of Norm Nelson, Kerasotes’ city man-

ager, as to Kerasotes’ failure to apply for a renewal li-

cense for the Belford Theater in Winnebago County be-

cause the theater has two outdoor sereens and Kerasotes

has concerns about the interpretation and applicability

of the covenant requirements of the Ordinance, especially

as contained in Ordinance § 4-14(d).

Based on a review of the foregoing matters, this Court

sets forth the following findings of fact (‘‘Findings’’)

and conclusions of law (‘*Conelusions’’) that constitute

the grounds of its action in issuing this TRO, in accord-

ance with the Federal Rules of Civil Procedure (‘‘Rules’’)

52(a) and 65(d):

1. This Court has jurisdiction over this matter pur-

suant to 28 U.S.C. 6 1331 and 1348.

2. <All parties have appeared by notice and agree-

ment.

3. Southland has met its burden of proof in its pre-

sentation of evidence at the hearing for a TRO, and there

is reasonable basis to believe and conclude in fact and

law that:

(a) Under Erznoznik v. City of Jacksonville,

422 U.S. 205 (1975), the United States Supreme Court

has spoken directly on the subject of restrictions on

First Amendment activity contained in outdoor theater

regulations. There the court held restraints invalid

in constitutional terms under the First Amendment

because they were content-related.

App. 23

(b) People ex rel. Carey v. Starview Drive-in

Theater, 100 Ti.App.3d 624, 427 N.F.2d 201 (1981),

must be read in the context in which it was decided.

Chere the licensee had applied for and received a

license and was operating. It thus had the opportunity

to launch an attack on the Ordinance in question only

from the inside looking out, as opposed to doing so

from the ontside looking in. Neither party in Starriew

defined ‘‘prior restraint’? in that context or under-

took a significant prior restraint analysis of the or-

dinance reviewed by the court in that ease.

(c) Even though the Supreme Court’s dismis-

sal of the appeal in Starriew is to be viewed as a de-

cision on the merits (see /lichks v. Miranda, 422 U.S.

382 (1975), because of the limitations of the Starriew

decision, this Court finds Frenoznik controlling. It

finds and concludes Southland has established a rea-

sonable likelihood of sueceess on the merits that the

Ordinance offends the Fourteenth Amendment to the

Constitution of the United States (which applies the

First Amendment to the States), because the Ordin-

ance impermissibly places restrictions upon the ex-

hibition of motion picture films presumptively pro-

tected under the First Amendment (via the Four-

teenth).

4. Southland has no adequate remedy at law. Its

business consists of the exhibition of motion pacture films

presumptively protected by the First Amendment. Here

the showing is that Southland’s theaters will be precluded

not only by the lapse of licenses and not only by an tm-

ability to show motion pictures as deseribed in the or-

dinance, but also a prohibition from showing any motion

App. 24

pictures at all because it has no licenses. This alone es-

tablishes irreparable harm.

5. Southland’s harm if a TRO is wrongfully de-

nied is far greater than any potential harm to the County

of Winnebago and Gill if the TRO were wrongfully grant-

ed. Upon issuance of a TRO defendants are left with pre-

cisely the opportunity identified by the Starview case, that

of prosecuting any motion picture not protected by the

First Amendment. Moreover, of course, a TRO by its very

terms has a limited life.

6. There is no disservice to the public, and indeed

the public interest is advanced, by the preservation, and

protection of Southland’s First Amendment rights.

IT IS THEREFORE ORDERED that the defendant

Winnebago County and Gill shall be prohibited and en-

joined from enforcing the provisions of Ordinance § 4-13 et

seq. until May 12, 1984, at 6:30 p.m. (that time period has

been extended an additional two days by agreement of the

parties). This action is set for further hearing May 11,

1984 at 10:00 a.m. for purposes of Southland’s request for

a preliminary injunction. In accordance with defendants’

agreement, the requirement of bond under Rule 65(c) is

waived.

/‘s/ Milton I. Shadur

Milton I. Shadur

United States District Judge

This TRO was issued April 30, 1984 at 6:30 p.m.