# Petition for Writ of Certiorari — Southland News Co. v. County of Winnebago > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1209%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 475 U.S. 1090 ## Text Supreme Court, U.S. FJl]bLE D DFC 18 1985 JOSEPH F. SPANIOL, JR. SR 7 4) io i pew! oS bt ics caer | In The Supreme Court of the United States October Term, 1985 Oo— 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.