Opposition Brief — Township of Clay v. Seaway Drive-In, Inc.

} Supreme Court, U.S,

FILED

ri, SEP 8 ry)

i) JOSEPH F. SPANIOL,

No. 86-221 CLERK

3n The

Supreme Court of the Anited States

os

@ctober Term, 1986

Oe

TOWNSHIP OF CLAY,

a Michigan Township,

Petitioner,

vs.

SEAWAY DRIVE-IN, INC.,

Respondent.

——

—

(ee aac

ee — —

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ree

we

wee

STEPHEN M. TAYLOR

TAYLOR & RUBIN, P.C.

Counsel of Record

Attorney for Respondent

20100 Civic Center Drive, #300

Southfield, Michigan 48076

(313) 358-3590

Interstate Brief & Record Co., Suite 731, David Whitney Building, Detroit, MI 48226

(313) 962-8745

i

COUNTER-STATEMENT OF QUESTION INVOLVED

WHETHER A PLAINTIFF, HAVING PRESENTED FOR RESO-

LUTION FEDERAL CONSTITUTIONAL CLAIMS UNDER 42

USCA § 1983 AND PENDANT STATE LAW CLAIMS ARISING

OUT OF THE SAME OPERATIVE FACTS, IS A “PREVAILING

PARTY” FOR PURPOSES OF 42 USCA § 1988, WHERE THE

PLAINTIFF PREVAILED ON THE PENDANT STATE LAW

CLAIM, LEAVING THE § 1983 CLAIMS UNADDRESSED AND

UNRESOLVED?

ili

TABLE OF CONTENTS

PAGE NO.

Counter-Statement of Question Involved ....... i

i He iv

Reports of Opinions Below ................ 1

Counter-Statement of the Case .............. 1

Reasons for Denying the Writ .............. 4

ee fe fae a dt bole 11

|

iv

TABLE OF AUTHORITIES

PAGE NO.

CASES:

Allen v Housing Authority, 563 F Supp 108 (E.D.

ss ew ee bere ae oe Pere a ee ee 9

Bond v Stanton, 555 F2d 172 (CA7, 1977) ...... 9

Gibbs v Town of Frisco City, Alabama, 626 F2d 1218

ee Pere oe eee ee eee 8

Hagans v Lavine, 415 US 528 (1974) .......... 6

Haywood v Ball, 634 F2d 740 (CA4, 1980) ...... 9

Hensley v Eckerhart, 461 US 424 (1983) ........ 10

Kimbrough v Arkansas Activities Assn, 574 F2d 423

fe eee eee ee eee 9

Lund v Affleck, 587 F2d 75 (CA1, 1978)........ 8-9

Maher v Gagne, 448 US 122 (1980) ..... 4-5, 7, 8, 10

McDonald v Doe, 748 F2d 1055 (CA5, 1984).... 8,9

Raley v Fraser, 747 F2d 287 (CA5, 1984) ....... 9

Seals v Quarterly County Court, 562 F2d 390 (CA6,

EA A rae roe err ae eee eee 9

Smith v Robinson, __ US —, 104 S Ct 3457, 82 L

eer eeeerer rT eT erste 7, 8, 10

State of New York v 11 Cornwell Co., 718 F2d 22

ON ae ee ee ee ae ee 8

Williams v Thomas, 692 F2d 1032 (CA5, 1983), cert.

denied sub. nom, Dallas County, Texas v Williams,

— US _, 103 S Ct 3115, 77 L Ed2d 1369 (1983) 8

STATUTES:

I Ss Cpe eS 4 Heme ae tk eee 4

POI. 8.32) es eens 4,7,9, 11

nia

No. 86-221

In The

Supreme Court of the Gnited States

ee

October Term, 1986

ee

TOWNSHIP OF CLAY,

a Michigan Township,

Petitioner,

vs.

SEAWAY DRIVE-IN, INC.,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

REPORTS OF OPINIONS BELOW

The Opinion of the Court of Appeals has now been

published and can be found at 791 F2d 447 (CA6, 1986).

The Opinion of the District Court has not been published.

COUNTER-STATEMENT OF THE CASE

Respondent Seaway Drive-In, Inc.*, is the operator of

a drive-in motion picture theatre, the Seaway Drive-In,

located at 8543 Marsh Road in Clay Township, Mich-

igan. Respondent took over an existing drive-in theatre

in 1982 and sought to change the films exhibited thereon

* Respondent is a Michigan corporation having no parent com-

pany, or subsidiaries and is not an affiliate of any other corporation.

|

2

from general release family fare to sexually explicit films

meant for adults only.

In August of 1982, the respondent commenced exhibit-

ing “adult type” motion picture films at its drive-in

theatre. In response to this change in policy, the Town-

ship of Clay enacted a so-called “regulatory ordinance”,

Ordinance No. 77, on November 24, 1982. Soon after, on

December 27, 1982, the attorney for Clay Township noti-

fied the respondent in writing that the theatre would

have to comply with the new ordinance.

On March 3, 1983, respondent initiated an action in

the United States District Court for the Eastern District

of Michigan, Southern Division, civil action No. 83-CV-

9025PH, pursuant to 42 USCA § 1983. Respondent

alleged therein that Sections 2, 3, 6, 7, 8, 9, 10, 11, 12

and 13 of Clay Township Ord. No. 77, as written and/or

as applied, violated its rights under the First and Four-

teenth Amendments to the Constitution of the United States.

In addition, respondent asserted a pendant state law

claim, to-wit: that Ord. No. 77 violated MCLA § 125.271

et. seq. and MCLA § 125.286 et. seq., the State of

Michigan Township Zoning Enabling Act. More particu-

larly, respondent asserted that the Seaway Drive-In

Theatre was a prior non-conforming use under the Clay

Township Rural Zoning Ordinance and, as such, under

Michigan zoning law, MCLA § 125.286 et. seq., the the-

atre had a lawful and vested right to continue in opera-

tion, and that Sections 2, 6, 7, 9, 10, 11, 12 and 13 of

Ord. No. 77, were taken almost verbatim from the

Township Rural Zoning Ordinance, and were enacted

by the Township and termed a “regulatory ordinance”

in a transparent effort to avoid the strictures of Michigan

zoning law applicable to prior non-conforming uses with

the specific purpose of forcing respondent out of

business.

3

Respondent’s Motion for Preliminary Injunction was

referred to Magistrate Paul J. Komives for hearing,

which was held on March 24, and 25, 1983. At the con-

clusion of the hearing the Magistrate took the matter

under advisement, and on April 12, 1983, the Magistrate

issued his report and recommendation. On January 12,

1984, the District Court adopted the Magistrate’s report

and recommendation in full, striking down Sections 2, 6,

7, 9, 10, 11, 12 and 13 of Ord. No. 77 on the pendant

state law claim raised by plaintiff, stating that said provi-

sions were, “confiscatory” (Petitioner's Appendix C,

p. C-9), in light of the Michigan Zoning Enabling Act,

thereby leaving unaddressed the federal constitutional

claims raised by plaintiff pertaining to those sections of

the ordinance, and upholding Sections 3 and 8 as consti-

tutionally valid under the First and Fourteenth Amend-

ments to the Constitution of the United States. A preliminary

injunction, in conformance with said Memorandum Opinion

and Order was issued. On August 31, 1984, by consent of

the parties, the aforesaid Memorandum Opinion and Order

was made the final judgment of the court and a perma-

nent injunction was entered enjoining the Township

from enforcing Sections 2, 6, 7, 9, 10, 11, 12 and 13

against respondent.

On August 29, 1984, respondent filed a motion for

attorney fees as the “prevailing party” in said action,

pursuant to 42 USCA § 1988, in the amount of $20,085.80

in fees and costs. On March 25, 1985, the court denied

respondent's request for attorney fees. On April 24,

1985, respondent filed a Notice of Appeal from the Dis-

trict Court’s denial of attorney fees.

On May 19, 1986, the Sixth Circuit Court of Appeals

reversed the District Court, ruling that, consistent with

Maher v Gagne, 448 US 122 (1980), respondent had met

the “substantiality” test and further, the § 1983 claims

4

and the pendant state law claims arose out of a

“common nucleus of operative fact ...”, thus entitling

respondent to an award of attorney fees pursuant to 42

USCA § 1988, as a “prevailing party”.

REASONS FOR DENYING THE WRIT

This Honorable Court should deny the Writ of Cer-

tiorari heretofore filed in the instant matter for the

reason that no substantial federal question has been pre-

sented for review. The decision of the Sixth Circuit

Court of Appeals appended to the Petition for Writ of

Certiorari and denominated as Appendix A, is entirely

consistent with the decisions of this Court and the

various Circuit Courts of Appeal which have considered

the issue presented, to-wit: whether a plaintiff, having

presented for resolution federal constitutional claims

under 42 USCA § 1983 and pendant state law claims

arising out of the same operative facts, is a “prevailing

party” for purposes of 42 USCA § 1988, where the plain-

tiff prevailed on the pendant state law claim, leaving the

§ 1983 claims unaddressed and unresolved.

Simply stated, the respondent prevailed in the lower

court on its pendant state law claim as to eight (8) sec-

tions of the ordinance under attack, leaving — as to

those eight (8) provisions — the federal constitutional

claims unaddressed.

This Court has ruled on the precise issue, stating in

Maher v Gagne, 448 US 122, 132 fn #15 (1980):

“The legislative history makes it clear that Con-

gress intended fees to be awarded where a pen-

dant constitutional claim is involved, even if the

statutory claim on which the plaintiff prevailed is

one for which fees cannot be awarded under the

:

Act. The Report of the Committee on the

Judiciary of the House of Representatives accom-

panying HR 15460, bill substantially identical to

the Senate bill that was finally enacted, stated:

‘To the extent a plaintiff joins a claim under

one of the statutes enumerated in HR 15460

with a claim that does not allow attorney

fees, that plaintiff, if it prevails on the non-

fee claim, is entitled to a determination on

the other claims for the purpose of awarding

counsel! fees. Morales v Haines, 486 F2d 880

(7th Cir 1973). In some instances, however,

the claim with fees may involve a constitu-

tional question which the courts are reluc-

tant to resolve if the non-constitutional claim

is dispositive. Hagans v Lavine, 415 US 528,

(39 LEd2d 577, 94 S Ct 1372] (1974). In such

cases, if the claim for which fees may be

awarded meets the “substantiality” test, see

Hagans v Lavine, supra; United Mine

Workers v Gibbs, 383 US 715, [16 LEd2d

218, 86 S Ct 1130] (1966), attorney’s fees may

be allowed even though the court declines to

enter judgment for the plaintiff on that claim,

so long as the plaintiff prevails on the non-

fee claim arising out of a “common nucleus

of operative fact.” United Mine Workers v

Gibbs, supra, at 725, [16 LEd2d 218, 86 S Ct

1130].’

HR Rep No. 94-1558, p 4, n 7 (1976).”

Turning to the two criteria, as set out in Maher, supra,

it is beyond dispute, as the Sixth Circuit Court of

Appeals put it, that the “... fee and non-fee claims

involved a common core of facts... .”, to-wit: the enact-

6

actment, and subsequent enforcement of Ordinance

No. 77 against respondent's drive-in theatre.

Similarly, respondent’s claims met the “substantiality

test”. In Hagans v Lavine, 415 US 528 (1974), this Court

held that, given a substantial constitutional claim which

provided a basis for pendant jurisdiction to adjudicate

the statutory claim, the state law question should be

decided first so as to avoid unnecessary constitutional

adjudication. The issue as to whether a given plaintiff

has presented a “substantial” constitutional issue is a

threshold question. As this Court has stated, the cause

of action must be “so insubstantial, implausible, fore-

closed by prior decisions of this court or otherwise

completely devoid of merit as not to involve a federal

controversy within the jurisdiction of the District Court,

whatever may be the ultimate resolution of the federal

issues on the merits.” The District Court impliecly

found the constitutional issue to be “substantial”, for it

exercised its jurisdiction. To again quote from Hagans,

supra, “Given a constitutional question over which the

District Court had jurisdiction, it also had jurisdiction

over the statutory claim.” Thus, in order to reach the

statutory claim, the District Court had to initially make

that threshold determination. This is precisely what the

Court of Appeals ruled when it stated, “If the District

Court had pendant jurisdiction over the state law claims,

as it presumbaly found that it did, then the constitu-

tional (fee) claims were ‘substantial’ and the fee and

non-fee claims must have arisen out of a ‘common nuc-

leus of operative fact.’” (Petitioner's Appendix A, p. A-8)

As required by Hagans, supra, the District Court turned

to the statutory claim first. Having taken that course

and, having arrived at a determination that under the

pendant state law claim, respondent was entitled to

judgment as to Sections 2, 6, 7, 9, 10, 11, 12 and 13 of

Ordinance No. 77, there was no reason for it to reach

7

the constitutional issues pertaining to those sections —

and the court so held. Thus, as to those provisions of

Ordinance No. 77 which the District Court ruled invalid

on state law grounds, the constitutional issues raised by

respondent were left unaddressed.

To reiterate, then, in Maher v Gagne, supra at 133,

fn #15, the Supreme Court described the circumstances

in which the plaintiff may qualify for a fee award when

he succeeds on a non-fee federal statutory claim joined

with a fee-generating federal constitutional claim that is

not decided. If both claims arise out of a “common nuc-

leus of operative fact”, the Court noted, the plaintiff

may be considered the prevailing party if the constitu-

tional claim is sufficiently substantial to support the

invocation of federal jurisdiction. This approach acknow-

ledges the reluctance of federal courts to decide constitu-

tional questions if a nonconstitutional claim is dispositive.

In Smith v Robinson, _. US —, 104 S Ct 3457, 82 L

Ed2d 746 (1984), the Supreme Court reaffirmed its posi-

tion. The Court quoted from the legislative history of the

Civil Rights Attorney’s Fees Awards Act of 1976, 42 USC

§ 1988, Id. at __, 104 S Ct at 3456, 3467, “Congress’ pur-

pose in authorizing a fee award for an unaddressed con-

stitutional claim was to avoid penalizing a litigant for the

fact that courts are properly reluctant to resolve constitu-

tional questions if a nonconstitutional claim is disposi-

tive.” “Congress,” the Court said, “did not intend to

have that authority extinguished by the fact that the case

was settled or resolved on a nonconstitutional ground.”

Thus, the Supreme Court affirmed the principle that a

prevailing party who asserts substantial but unaddressed

federal constitutional claims is entitled to attorney's fees

under § 1988. Id. at __, 104 S Ct 3467, n. 10, 82 L Ed2d

at 762, n.10. Assuming arguendo that the claim for

which fees are requested is reasonably related to the

8

plaintiff's ultimate success, the District Court may then

“... assume that the plaintiff has prevailed on his fee-

generating claim and . . . award fees appropriate to that

success.” Id. at __, 104 S Ct at 3467, 82 L Ed2d at 762.

Turning to the instant cause, the Sixth Circuit Court of

Appeals noted, “The complaint attacked the ordinance

as a whole on several constitutional grounds. First, it

alleged that the purpose of the ordinance was to put

appellant out of business and prevent it from showing

sexually explicit material. Second, it alleged that the

ordinance contained content-based speech restrictions.

Third, it claimed that the ordinance gave the township

arbitrary and uncontrolled discretion; fourth, that it was

overly vague and broad; fifth, that it violates the equal

protection clause and sixth, that it is an unconstitutional

taking.” (Petitioner's Appendix A, p. A-8) The Court of

Appeals noted that, as to the eight (8) provisions of the

ordinance the District Court held invalid under a pen-

dant state law claim, the federal constitutional claims

applicable thereto did not need to be addressed and

were therefore left unresolved. (Petitioner’s Appendix A,

p. A-10, n. 10) Applying the reasoning of Gagne v Maher,

supra and Smith v Robinson, supra, the respondent was

accordingly entitled to “prevailing party” status entitling

it to an award of attorney fees.

Those courts which have considered the issue pre-

sented herein have uniformly followed the same ration-

ale and reached the same conclusion as the Court of

Appeals reached in the instant matter. McDonald v Doe,

748 F2d 1055, 1057 (CA5, 1984); State of New York v 11

Cornwell Co., 718 F2d 22, 25 n. 3 (CA2, 1983) (en banc);

Williams v Thomas, 692 F2d 1032, 1036 (CA5, 1983), cert.

denied sub. nom, Dallas County, Texas v Williams, —_ US

—, 103 S Ct 3115, 77 L Ed2d 1369 (1983); Gibbs v Town of

Frisco City, Alabama, 626 F2d 1218 (CA5, 1980); Lund v

9

Affleck, 587 F2d 75, 76-77 (CA1, 1978); Kimbrough v

Arkansas Activities Assn, 574 F2d 423, 426-27 (CA8, 1978);

Seals v Quarterly County Court, 562 F2d 390, 393-94 (CA6,

1977); Bond v Stanton, 555 F2d 172, 174 (CA7, 1977), cert.

denied, 438 US 916, 98 S Ct 3146, 57 L Ed2d 1161 (1978);

Allen v Housing Authority, 563 F Supp 108, 110 (E.D. Pa.

1983).

The cases cited by petitioner are simply inapposite to

the matter at bar, for in each case, even though the

plaintiff had prevailed on its pendant state law claim, the

federal constitutional claims were decided adversely to the

plaintiff upon final hearing on the merits. McDonald v Doe,

supra at 1056, 1057. (“After trial, the jury responded to

interrogatories that the defendant had not violated

McDonald's constitutional rights, but that one defendant

had been negligent in violation of state law . . .”); Raley

v Fraser, 747 F2d 287, 290-91 (CA5, 1984) (“the trier of

fact specifically found that Raley’s constitutional rights

were not infringed . . .” [emphasis in original] ); Haywood

v Ball, 634 F2d 740 (CA4, 1980) “. . . we find nothing in

the statute, the legislative history or decisions on the

subject which would require or justify an award of attor-

ney’s fees in a case where the plaintiff has lost on the

constitutional issue after a plenary trial.”)

At bottom then, petitioner argues that the federal con-

stitutional claims pertinent to the eight provisions struck

down on pendant state law grounds were either ad-

dressed and finally resolved when the District Court

issued its Memorandum Opinion and Order of January

18, 1984, granting plaintiff's request for preliminary

injunction (Petitioner's Appendix C), or, alternatively,

the District Court had the authority to address the fed-

eral constitutional issue left unresolved upon the filing

of a motion requesting attorney fees under 42 USCA

§ 1988. The first contention is contradicted by the Dis-

10

trict Court’s Memorandum Opinion and Order of Jan-

uary 18, 1984, at p. C-9. (“Because state law grounds

dispose of ordinance sections 2, 6, 7, 9, 10, 11, 12 and

13, the Court need analyze only sections 3 and 8 under

constitutional standards.”) The second contention is in

patent contradiction to the Supreme Court's holding in

Maher v Gagne, supra at 132-33, that, “. . . allowing the

award of fees in a case in which the plaintiff prevails on

a wholly statutory, non-civil rights claim pendant to a

substantial constitutional claim ... ‘furthers the con-

gressional goal of encouraging suits to vindicate consti-

tutional rights without undermining the longstanding

judicial policy of avoiding unnecessary decisions of

important constitutional issues’ .. .” Yet the latter con-

tention is precisely the course taken by the District

Court which the Sixth Circuit Court of Appeals found in

error.

Given a substantial constitutional issue sufficient to

invoke federal court jurisdiction, where the District

Court disposes of the matter on pendant state law

grounds, leaving the federal constitutional issue un-

resolved, Maher v Gagne, supra, fn. #15, Smith v Robinson,

supra requires the “.. . district court to assume that the

plaintiff has prevailed on his fee-generating claim and to award

fees appropriate to that success.” Id. p. 762. The lower court

simply failed to follow the holding of Smith v Robinson,

supra. Rather than — as Smith v Robinson requires —

make such an assumption and award fees in light of the

level of respondent's success in accordance with the dic-

tates of Hensley v Eckerhart, 461 US 424 (1983), the lower

court proceeded to review the record and make findings

of fact am’ conclusions of law as to the purported “in-

substantiality” of respondent's claim that Sections 2, 6, 7,

9, 10, il, 12 and 13 of Ordinance No. 77 were invalid on

fed: ral constitutional grounds, even though that issue

was left undecided by the Court’s own decision ruling in

11

respondent's favor on pendant state law grounds. To

then assert — as petitioner does — that the trial court

has the authority to determine the merits of respond-

ent’s unaddressed fee-generating claim by reviewing the

record of a two-day hearing on a motion for preliminary

injunction and determine that respondent had failed to

meet its burden that Sections 2, 6, 7, 9, 10, 11, 12 and 13

violated its federal constitutional rights, as a basis for

denying its request for attorney fees, finds no judicial

support anywhere. There is, therefore, no justification

for reviewing the decision of the Sixth Circuit Court of

Appeals in the instant matter.

CONCLUSION

To summarize, the Court of Appeals for the Sixth Cir-

cuit was quite correct in ruling that the District Court

had applied an incorrect standard in determining whether

respondent was a “prevailing party” for purposes of an

award of attorney fees pursuant to 42 USCA § 1988.

For those reasons as hereinabove stated, the Petition

for Writ of Certiorari should be denied.

Respectfully submitted,

By: /s/ STEPHEN M. TAYLOR

TAYLOR & RUBIN, P.C.

Counsel of Record

Attorney for Respondent

20100 Civic Center Drive, #300

Southfield, Michigan 48076

(313) 358-3590

Dated: September 8, 1986.