Opposition Brief — City of Memphis v. East Brooks Books, Inc.

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Supreme Court, U.S,

No. 95-203 tue oe

IN THE

Supreme Court of the Anited

OctToBer TERM, 1995

Crry oF Mempuis; Dr. W.W. HeRENTON, Mayor;

MELvin Burcess, Director of Police Services,

Petitioners,

vs.

East Brooks Books, INc.,

d/b/a Getwell Bookmart and Airport Adult Theater, Steve Cooper,

SOUTHERN ENTERTAINMENT MANAGEMENT COMPANY, INC.,

d/b/a Club Tiffany,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

FRIERSON M. Graves, JR.

Counsel of Record

2000 First Tennessee Bank Building

165 Madison Avenue

Memphis, Tennessee 38103

(901) 526-2000

Rex L. BRASHER, JR.

Suite 2515

5100 Poplar Avenue

Memphis Tennessee 38117

(901) 761-1010

St. Louis Law Printing, Inc 13307 ManchesterRd. St.Louis,MO 63131 314-231-4477

———

QUESTIONS PRESENTED

I. Whether “prompt judicial review” of administrative licens-

ing decisions for First Amendment activities, and particularly

for licensing decisions pursuant to Memphis’ adult business

licensing ordinance, is satisfied by providing access to a state

court appeal within a specified time (as the First, Fifth, and

Seventh Circuit ruled), or must the actual adjudication be com-

pleted within a specified time (as ruled by the Fourth and Sixth

Circuits).

II. Whether disclosure of certain information by all sharehold-

ers in corporate adult businesses violates the First Amendment.

—— ili—

TABLE OF CONTENTS

QUESTIONS PRESENTED .......ccrcccorcosccscoseserevreresseree

TABLE GP AU TIRORIE ESS ccssccsesssssccscccscceccseccosneessores

STATEMENT OF THE CASE ..........cccccsscesscessesscrseerees

A. Course of Proceedings and Disposition of the

&

ne ghdhcebantilabvanonenee

THE SIXTH CIRCUIT’S OPINION IS IN

HARMONY WITH THE DECISIONS OF

FATE citiabeviceansecsin\auierentstvemmespuntoursece

THERE IS NO IMPORTANT QUESTION

RAISED IN THIS CAUSE REQUIRING

REVIEW BY THIS COURT OF ANY AL-

LEGED CONFLICT BETWEEN THE CIR-

THERE IS NO CONFLICT IN THE CIR-

CUITS REQUIRING REVIEW ..................4.

ADMINISTRATIVE DELAY INVALI-

EPS ee SUR TIE REET cssricerasceeseosevenersevonceses

COMMON LAW CERTIORARI IS NEI-

THER PROMPT NOR MEANINGFUL JU-

DICIAL REVIEW, NOR GUARANTEED

ACCESS TO THE COURTS ............cccecceeees

mae {Y au

6. THE PETITION HAS NUMEROUS MIS-

STATEMENTS OF LAW AND FACT......... 17

7. REQUIRING ALL SHAREHOLDERS TO

PROVIDE DISCLOSURE AND OBTAIN

LICENSE FOR CORPORATE ADULT

BUSINESS VIOLATES FIRST AMEND-

COICO sci cestscsciccssoscisaibonstsonsenapronisossenssnopoaderesta 23

PPP TIMID BA cccoctvnincsscciansinesinvcesirivacinvionvetventtoneesitiniiionts A-l

TABLE OF AUTHORITIES

CASES:

11126 Baltimore Blvd., Inc. v. Prince George's County,

Maryland, 58 F.3d 988 (4th Cir. 1995) ..........:000-

Acorn Investments, Inc. v. City of Seattle, 887 F.2d 219

Se as UE iathig elke wach nsictteisasiiectecabieidtincseheisieghines

Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423 (1971).......

Boyce v. Williams, 215 Tenn. 707, 389 S.W.2d 272

CRIA discistavticsitrtnsteubnsnedeasirinhacsebiitesihessaxsilaeviptinenined

|

Chesapeake B & M, Inc. v. Harford County Maryland,

FO te BOS (40 Cis, DDS) ao cccccccsscoscestecnevicnzctoses

City of Lebanon v. Baird, 756 S.W.2d 236 (Tenn.

Clark v. Metro Government of Nashville, 827 S.W.2d

PA GRD viiiheinseditinstpatncateliee debibpashoenitecldissdioboneiees

Cooper v. Williamson County Board of Educ.,746S.W.2d

RF RR BES Pscrtnccerictcitcisieioenieds Sisthiildeimesiauaisiscipun

Dumus v. City of Dallas, 648 F.Supp. 1078 (N.D. Tex.

SERRE 28 CS CaS RE ONLY gS OS

Ellwest Stereo Theater, Inc. v. Boner, 718 F. Supp. 1553

Ee RAIA: SUID vd coisscimeinssddiicscihadssindshisdiciredcacacsb stahess

Fairhaven Corp. v. Tenn. Health Facilities Comm'n, 566

DF Ai COTO: Sep escnnssiiciccttoctaceosidatenistoteitdhsocdia

Fentress County Beer Board v. Cravens, 356S.W.2d 260

CI ROD itis teiiccidacitadthidcwtrcnnss

Page(s)

16

16

a Yh oo

Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734

CED iasc clicks dicdablesceadicdbandbcoluctadidiitietiens 7,8,10,14,19

FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298 (Sth Cir.

RP Se Lisciccaces iris Sveokvlubidincokdccerttictlensaletibndibaatee 21

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct.

FID TEE ccvsiseverspagscncenctactsinevalsehareectsienieiine 7,8,9,11,12,13

Genusa v. City of Peoria, 619 F.2d 1203 (7th Cir.

ER iiaass icaiehvoausabacinaachnacaboions ceneiiedpanabiienibi vine 20

Graff v. City of Chicago, 9 F.3d 1309 (7th Cir.

SPUD schihinitcisrissabidoventtovtorigisinsedtvdahasihiiabbandese 10,11

Grand Brittain, Inc. v. City of Amarillo, Texas, 27 F.3d

ROE ee Get. BODE) ces usitiiidntcecis-centlsctehoctaatyotsibivons 12

Heffron v. Int’l Society for Krishna Consciousness, Inc.,

452 U.S. 640, 101 S.Ct. 2559 (1981) ....cccceeeeeeeees 10

Hewgley v. Trice, 207 Tenn. 466, 340 S.W.2d 918

CPI sissnssioinecesbiiine bende huaeninenioeicetaaialeiles 15

Hoover Motor Express Co. v. R. R. and Public Util.

Comm’n, 195 Tenn. 593, 261 S.W.2d 233

CETUS) scccrdiicapipdescbansbospebubadaaidasnideuisaileholoniosciiitiatants 16

Jews for Jesus, Inc. v. Mass. Bay Transportation Authori-

ty, 984 F.2d 1319 (Ast Cir. 1993) .........cccesseeeeees 9

Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct.

Pd CATA svicotisecdndsnlasesnniccccenicteiddscibiiicbectels. 19

Louisville and N.R.R. v. Public Service Comm'n, 631

F 2k B96 CG Cie, BOD). sitvvncesvecisiactivecatcidldeisenas 17

McIntyre v. Ohio Elections Comm'n, US. :

gre Me Ms EE...) SRS RReeenueis OB dor Pn 21

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78

S. Ct. 1163, 2 L. Ed. 2d 1488 (1958) ......0 21

RT NE ee TT mm Pe

— Vii—

Natco Theaters, Inc. v. Ratner, 463 F. Supp. 1124

EEE SEIU cnhictibinch colin cscs os incidteeenieideumlinciidniens 21

National Socialist Party v. Village of Skokie, 432 U.S.

ET Ms Ce LNT ED Se cituvtetiiertabansdonricdeine coKdinine 12

Penco, Inc. v. Moody, 474 F. Supp. 1001 (S.D. Ohio

og AIEEE RES ORE in CERISE CARIES eNO POL 21

Redner v. Dean, 29 F.3d 1495 (11th Cir. 1994), cert.

Po AG EE 2 NI SR ERED COME Clearer ee 11

Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89

erks Pe ID vvcccctsinceceusssctbccnoisesd ebiudetdiaclodks 19

Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546,

i i 8

State, ex rel. Karr v. Taxing Dist. of Shelby Co., 84 Tenn.

Cg SAREE EE APSE th, PRR a oO 15

T.K.'s Video, Inc. v. Denton County, Texas, 24 F.3d 705

RISA ATE Rs PROP SU Te A DEC 11,12,21

Talley v. California, 362 U.S. 60, 80 S. Ct. 536, 4 L. Ed.

RIERA IFT TOMER ak, en 21

Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S. Ct. 754

§__aRe oh ave a ARsaiRaoeenb a lee PUA, AR ls aera 8

Tennessee Cent. R.R., Co. v. Campbell, 75 S.W. 1012

SS I aD od Se 18

United States v. Thirty-Seven Photographs, 402 U.S.

Meee MI CRO T EY vs ccoiveidsccusbicvoctidiccseastence, 8

Uselton v. Price, 41 Tenn. App. 134, 292 S.W.2d 788

i 15

Watkins v. Naifeh, 635 S.W.2d 104 (1982) .000......c.e. 17

— viii —

STATUTES:

A I rivers cabehcbstisninitensaitidiaciaitesdaaliaatcoapuaes 19

FAP PPPS ptesnssonsnenrreensenbisesolempealtiveinteadoklen 16,17

TH Pie AIOE hbtctitctmitiiccitnivitnataeenbiisannnataie 16

Teds FRE COE vecsbcinncescctecsbsnsiitdidlatictercndimisheiel 19

SPATE LA cegicsopeicednvcstinecsighhaatiatuditinabinipiiemticts 17

Tennessee Rule of Appellate Procedure 10................... 18

MISCELLANEOUS:

City of Memphis Ordinance 4013, § 122(a)(5)(7) ........ 20

McQuillin Municipal Corporation § 10.09, 3d ed. ....... 18

No. 95-203

In THE

Supreme Court of the United States

OctToser Term, 1995

Crry or Mempnis; Dr. W.W. HeRENTON, Mayor;

MELvin Burcess, Director of Police Services,

Petitioners,

vs.

East Brooks Books, INc.,

d/b/a Getwell Bookmart and Airport Adult Theater, Steve Cooper,

SOUTHERN ENTERTAINMENT MANAGEMENT Company, INc.,

d/b/a Club Tiffany,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

The Petition correctly sets forth the opinions below and the

jurisdiction.

In addition to the constitutional and statutory provisions cited

by the Petitioners, the Respondents! attach as Appendix A, the

statutory provisions for common law and statutory certiorari.

The same procedural framework applies to both writs, but so

' There are no parent or subsidiary corporations to be listed.

intel ccs

much of the statutes as prescribed a de novo hearing apply

exclusively to the statutory writ of certiorari. Common law writ

of certiorari review is limited as discussed hereafter. Also in

Appendix A is Rule 10 of the Tennessee Rules of Appellate

Procedure by which the writ system was abandoned for inter-

locutory appeals.

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition of the Case

Below

The City of Memphis (“the City”) originally enacted Ordi-

nance 3988 in October 1990 which imposed a licensing and

zoning scheme on all sexually oriented businesses in the City.

Plaintiffs filed suit challenging the constitutionality of the li-

censing and zoning provisions and sought a preliminary injunc-

tion which was granted on December 28, 1990. The City passed

on January 15, 1991 Ordinance 4013 (“the Ordinance”) which

superseded the prior Ordinance and contained substantially the

same provisions.

Plaintiffs filed in June 1991 a Motion for Partial Summary

Judgment relating to the zoning portion of the Ordinance which

had required all existing nonconforming uses be terminated at

the end of one (1) year. The Court subsequently granted this

Motion in August 1992, declaring the amortization provision

invalid and in violation of the charter of the City of Memphis and

the statutes of the State of Tennessee. This action was subse-

quently the source of a cross-appeal by the City and affirmed by

the Court of Appeals. No further review on zoning is sought by

the Petitioners in this cause. In 1992, cross-motions for sum-

mary judgment on the licensing provisions of the Ordinance

were filed. Two Plaintiffs who were employees of East Brooks

Books were dismissed in December 1992 for mootness, in that

more than two (2) years had passed since their obscenity convic-

‘sii ain

tions which were grounds for disqualification of employment

and also grounds for revocation of the employer’s license under

the Ordinance.

The District Court on May 14, 1993 granted the Summary

Judgment Motion of the City, except to the license fee which was

later settled.

While the District Court had determined that the Respondents

lacked standing to challenge any of the disabling factors for

suspension or revocation and lacked standing to challenge prior

convictions as a ground for denial of a license, the District Court

upheld the disabling factors other than criminal convictions for

license issuance. The Sixth Circuit affirmed the lack of standing

and vacated that portion of the District Court’s opinion which

ruled on the disabling factors which had the effect of depriving

the District Court’s opinion of any precedential effect, so that

none of the District Court’s findings would be res judicata or

collateral estoppel.

The Ordinance requirement that each person with any owner-

ship interest sign the application and meet all license qualifica-

tions was found impermissibly broad. Additionally, the Court of

Appeals held the denial of a license because the applicant had

demonstrated an inability to operate or manage a sexually

oriented business premises in a peaceful and law abiding man-

ner, thus necessitating action by a law officer was invalid both as

for the license approval and for license suspension. Such

challenge was permitted under the overbreadth doctrine by the

Court of Appeals.

Finally, the Court of Appeals determined there would be a

three (3) to five (5S) month wait for administrative hearing and

judicial review which did not meet this Court’s provision for

prompt judicial review. The licensing scheme failed to provide

sufficient procedural safeguards and was unconstitutional.

B. Facts

The facts in the record submitted for the determination of the

cross-motions for summary judgment are not pertinent. How-

ever, the provisions of the Ordinance of the City and the statutory

provisions outlining the procedure for common law certiorari are

pertinent. The time periods are summarized.

Sections 20-122(b) and 20-124 of the Ordinance are appli-

cable to the administrative hearings, and the statutory proce-

dures are set out in Title 27, Chapter 9 of the Tennessee Code

Annotated. (Appendix A).

A new applicant for a license must file with the Director of

Police who shall approve the issuance within thirty (30) days

after receipt of the application. Applications for a corporation

must be filed in the name of all shareholders regardless of

ownership and each shareholder must qualify.

If the Director denies issuance of a license, written notice is

sent by certified mail or delivered by process server. Appeal of

denial must be within ten (10) calendar days after receipt of

notice. A hearing must be scheduled on the denial of a license

within sixty (60) days. A decision by the Director of Police must

be made within five (5) days of the conclusion of the hearing.

Any appeal must be made by common law writ of certiorari to a

Court of competent jurisdiction. Since a new applicant has no

license, no temporary license for operation may be issued during

the administrative process or during the pending judicial pro-

ceedings.

While the new applicant must appeal within ten (10) days

from the decision of the Director of Police, none of this time, nor

of any other times applicable for action by the applicant is

counted in the computation of the time to apply for, appeal or

request judicial review of a license denial.

pee ee

Upon the filing of the petition for certiorari, the Clerk of the

Court shall immediately send by registered return-receipt mail to

the board or commission a notice of the filing and acertified copy

of the petition. T.C.A. §27-9-107.

The granting of the common law writ of certiorari is discre-

tionary. T.C.A. §27-9-101.

The Board or Commission shall cause to be made, certified

and forwarded to the Court a transcript of the proceedings before

the Director of Police services. No time limit is provided. T.C.A.

§27-9-109.

At the expiration of ninety (90) days from the filing of the

transcript, the cause shall stand for trial at the earliest practical

date. T.C.A. §27-9-111. While the Court of Appeals indicated

a minimum wait from three (3) to five (5) months for judicial

review, the time would be even longer since it excluded any

period of time to file the transcript which is not specified, or for

the applicant for a license to act. Most importantly, the Court of

Appeals left out the original thirty (30) day period for the

Director of Police to decide a license before any appeal of his

decision.

The summary of the time periods would be thirty (30) days for

the original review of a license, the time for receipt of written

notice of denial by certified mail or delivery by a process server,

a potential sixty (60) days delay before a hearing of the appeal

before the Director of Police, five (5) days for rendering a

decision after conclusion of hearing. Eliminated is any time for

the applicant to appeal from the original denial or appeal and file

the common law writ of certiorari.

After certiorari, which is discretionary with the Court, is

granted the clerk is to notify the City. There is no time limit

specified for filing the transcript, but the City shall cause the

transcript to be made immediately. After the filing of the

a oem

transcript, the cause shall stand for trial at the expiration of ninety

(90) days although there is no assurance that the hearing will be

scheduled immediately at the end of ninety (90) days.

The result is that it is not from three (3) to five (5) months, but

in excess of six (6) months before a new applicant for a license

would have a judicial review of his application.

While a license holder may request and in the discretion of the

Court obtain a stay from revocation or suspension during judicial

review, a new applicant who has never had a permit may not

obtain a stay during a judicial review. There is no provision in

the ordinance to provide for a temporary permit during the

application process or appeal, nor is there any possibilities of a

stay since a new applicant would not have been in business prior

to his application. The statement by Petitioner in footnote one

(1) that these matters are not at issue in this Petition is not correct.

The statement of Petitioners that the Ordinance is nearly

identical to that litigated in FW/PBS, Inc. v. City of Dallas and

amendments made in accordance with that decision is a conclu-

sion made in the Preamble of the Ordinance and not as a result

of any facts in the record. Certainly, the City did not review its

own Charter or the statutory law of Tennessee since the zoning

provision was found in violation of the Charter of the City and

statutes of the State.

Additionally, the fact that this Court in FW/PBS vacated the

decision of the Court of Appeals for the Fifth Circuit as to the

disabling features of the Dallas Ordinance eliminated any

precedential benefit upon which the City could rely for its

Ordinance.

shat A eae

REASONS FOR DENYING THE WRIT

1. THESIXTHCIRCUIT’S OPINION IS INHARMONY

WITH THE DECISIONS OF THIS COURT.

The Sixth Circuit followed the principles first enunciated in

Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734 (1965). This

Court in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct.

596 (1990), concluded that the third Freedman requirement that

the censor should initiate judicial action and bear the burden of

proof did not apply to a licensing scheme under review. How-

ever, under Freedman, FW/PBS and other decisions of this

Court, the Sixth Circuit determined that the City of Memphis

Ordinance was plagued by the same indefinite delays that

rendered the ordinance in Dallas unconstitutional in FW/PBS.

Although this Court has not expressly defined prompt judicial

review, the Sixth Circuit believed that potential delays for the

issuance of a license of over five (5) months are impermissible.

Any administrative decisions must be made “within a specified

and reasonably brief time period during which the status quo is

maintained.” 110 S.Ct. at 606.

Respondents assert that the Sixth Circuit overlooked the

original thirty (30) day period for issuance of the license, and that

it may be at least ninety (90) days or more of administrative

delays before Respondents could petition a court for a common

law writ of certiorari and in excess of three (3) months not

including the time for filing the transcript before a judicial

review. The delays doing administrative hearing for a new

applicant for a permit and the delays for judicial review clearly

violate the principles established by this Court for procedural

safeguards necessary for a license for distribution of materials

protected by the First Amendment. Petitioners do not have a

sufficiently important request upon which this Court should

grant certiorari.

ee

eae ut

2. THERE IS NO IMPORTANT QUESTION RAISED

IN THIS CAUSE REQUIRING REVIEW BY THIS

COURT OF ANY ALLEGED CONFLICT BETWEEN

THE CIRCUITS.

In applying the principles first established in Freedman v.

Maryland, 380 U.S. 51, 85 S.Ct. 734 (1965), this Court early on

decided it need not determine the only constitutional permissible

time limits. The Court stated in United States v. Thirty-Seven

Photographs, 402 U.S. 363, 91 S.Ct. 1400 (1971), that constitu-

tional permissible time limits may vary in different contexts. In

Thirty-Seven Photographs, the Court determined that it could

construe the federal statute to require forfeiture proceedings be

instituted within fourteen (14) days and judicial action to be

completed within sixty (60) days. A seventy-four (74) day delay

for importers from the beginning of the administrative procedure

to the final decision in the district court met the procedural

safeguards needed.

On the other hand, the Court in Blount v. Rizzi, 400 U.S. 410,

91 S.Ct. 423 (1971), could not rewrite the statute which placed

the burden of obtaining prompt judicial review on the user rather

than the government. In Teitel Film Corp. v. Cusack, 390 U.S.

139, 88 S. Ct. 754 (1968), the fifty (50) to fifty-seven (57) day

period for obtaining an administrative decision did not amount

to a specifically brief period and was impermissible.

In Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 95

S.Ct. 1239 (1975), this Court held that a delay of more than five

(5) months before a hearing on the merits was excessive.

Finally, this Court declared in FW/PBS, Inc. v. City of Dallas,

493 U.S. 215, 110 S.Ct. 596 (1990), that although the Ordinance

provided the Chief of Police shall approve the issuance of the

license within thirty (30) days after the receipt, the license may

not issue until the premises have been approved by the health

department, fire department and building official. Since the

aia a a)

iia en

Ordinance did not set a time limit in which the inspections must

occur, the Ordinance did not meet the procedural safeguard

requirements that the decision to issue the license must be issued

in a specified and reasonable brief time period during which the

status quo is maintained.

The Sixth Circuit correctly considered the rulings of the Court

as to administrative and judicial review and correctly determine

that a period of three (3) to five (5) months which in reality is in

excess of six (6) months from the time that a new applicant

applies to the granting of the license did not meet the test

established by Freedman and FW/PBS.

3. THERE IS NO CONFLICT IN THE CIRCUITS RE-

QUIRING REVIEW.

Petitioners’ question for review is limited to providing access

to a court as opposed to completion of judicial review without

any consideration of the time periods in the administrative

licensing phrase and presents no conflict in the circuits.

Jews for Jesus, Inc. v. Mass. Bay Transportation Authority,

984 F.2d 1319 (1st Cir. 1993), did not hold that access to a Court

met prompt judicial review. The Transit Authority Regulations

were not a licensing system which required a prior restraint

review. Persons contacted the Authority by telephone, and

requested and received permission to engage in noncommercial

expressive activity on a first-come-first-served basis. If persons

were denied authorization in one location, they may seek to use

a different one or to reserve a different time. Upon this basis, the

Court found that the authorization requirement is not open to the

kind of arbitrary application that the Supreme Court has deter-

mined as inherently inconsistent with a valid time, place, and

manner regulation, because such discretion has the potential for

becoming a means of suppressing a particular point of view. The

Court found it was more appropriate to scrutinize the permit

system, as the Supreme Court did in Heffron v. Int’! Society for

enn Whee.

Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559

(1981). This case does not support Petitioners’ claim of any

conflict between the First Circuit and the decision by the Sixth "

Circuii in this cause. |

Neither does Graff v. City of Chicago, 9 F.3d 1309 (7th Cir.

1993), support aconflict. Graffis anen banc decision construing

an Ordinance governing the right of Mr.Graff to obtain a license

to build a structure and operate a newsstand on public property.

An operator is given fifteen (15) days to remove after the posting

of a removal notice and may appeal within that time. A hearing

is scheduled within thirty (30) days, and the newsstand operator

has fifteen (15) days after the Commissioner’s final decision to

appeal to the Courts. Five (5) of the twelve (12) judges deter-

mined that the Illinois procedure of review of administrative

agency decisions by common law writ of certiorari, which

review was extremely broad in scope and extends to all questions

of fact and law contained in the record before the Court, met the

procedural safeguards required of Freedman. The time limit for

Mr. Graff would be an administrative hearing within thirty (30)

days of his appeal. However, any adverse decision was stayed

for fifteen (15) days during which time he could appeal to a state

court under the Illinois common law writ of certiorari. None of

the procedural provisions are set forth in the case. It may be

assumed that Mr. Graff could obtain a stay of the removal during

the pendency of judicial proceedings. However, the main

opinion of five (5) judges noted that it was an open question

whether the procedural protection of Freedman were necessary

in an Ordinance that regulates the building of newsstands on

public property. Graff is distinguished in 11126 Baltimore

Blvd., Inc. v. Prince George’s County, Maryland, 58 F.3d 988

(4th Cir. 1995). In footnote 17 at page 1,000, the Fourth Circuit

notes that only five (5) judges join the principal opinion and

seven (7) who wrote to concur or dissent all indicated their i

disagreement that the mere availability of judicial review satis- |

fied the prompt judicial review requirement. At least one of the

TR Te ne nee ae |

a Pe

concurring opinions determined that the Ordinance for occupa-

tion of a sidewalk for a newsstand was not the kind of scheme for

which the lack of a special provision for prompt judicial review

was fatal. Under the circumstances, the Seventh Circuit Opinion

in Graff is not in conflict.

Not mentioned by the Petitioners is the decision of Redner v.

Dean, 29 F.3d 1495 (11th Cir. 1994), cert. denied, 115 S.Ct.

1697. That Court correcily held that the Ordinance under

discussion was inadequate under any interpretation of prompt

judicial review, because it created the risk that expressive

activity could be suppressed indefinitely in the administrative

phase prior to a judicial review of the decision to deny a license.

The Fifth Circuit in 7.K.’s Video, Inc. v. Denton County,

Texas, 24 F.3d 705 (Sth Cir. 1994), considered a licensing

Ordinance which required the granting of a denial of the license

within sixty (60) days. However, the administrative denial by

the Director of Public Works is not final for thirty (30) days. The

Denton County Ordinance also provided that an applicant with

a license which has been suspended or revoked by the Director

of Public Works has the revocation or suspension stayed by the

filing of appeal which stay last until final decision by the state

district court. The Court of Appeals also determined that the

Denton Ordinance was invalid in failing to maintain the status

quo. An applicant previously operating within the county at the

time of the adoption of the Ordinance can continue operation

during the licensing. However, an applicant for a license who

was not in business when the Ordinance was adopted was not

free to operate while its license application was pending. Upon

the denial of a license, however, the Court determined that access

to the Texas court was sufficient since a rejected license appli-

cant has thirty (30) days to seek judicial relief before the order of

the Director of Public Works becomes final. There is no

discussion of the relief obtainable in the Texas court. The Court

does say that it reads the Supreme Court decision in FW/PBS that

the state must offer a fair opportunity to complete the adminis-

trative process and access the Courts within a brief period, but a

brief period in which all judicial avenues are exhausted would be

an oxymoron. The Court goes on to state:

“FW/PBS requires only a prompt judicial hearing, a stan-

dard that the order meets by giving an unsuccessful license

applicant thirty days to appeal to a district court in Denton

County ‘on a trial de novo basis.’ The availability of

expeditious judicial review obviates the need for an auto-

matic stay. National Socialist Party v. Village of Skokie,

432 U.S. 43, 44, 97 S.Ct. 2205 (1977).

24 F.3d at 709.

National Socialist Party held that in the absence of expedi-

tious judicial review, an automatic stay must be granted. It is

evident that the Fifth Circuit thought that the access to Court

available during this thirty (30) day period before denial of the

license was such that it provided the expeditious judicial review

because of remedies available in the state court. Subsequently,

in Grand Brittain, Inc. v. City of Amarillo, Texas, 27 F.3d 1068

(Sth Cir. 1994), the Ordinance in Amarillo required a licensing

decision within eleven (11) days or within three (3) days a

reinspection and issuance of license within one (1) day of

correction which met the specified and brief requirement for

administrative proceedings. Again, the Fifth Circuit denied a

mandatory stay should be available and stated the availability of

expeditious judicial review and the possibility of a temporary

restraining order obviate the need for an automatic stay. Na-

tional Socialist Party, supra. The Court noted that a denied

applicant for a license can immediately challenge the regulatory

decision in Court and request a temporary restraining order to

prevent closing a business. It notes that in June 1991, which is

shortly after the FW/PBS decision, the Texas legislature amended

the Texas local government code to give district courts jurisdic-

tion for appeals from licensing decisions affecting adult busi-

elias

nesses. Under these circumstances, the judicial procedures in

Texas appear to be such that even a denied applicant for a license

can request a temporary restraining order under the Texas law to

prevent closing a business. The minimum administrative peri-

ods in both of these ordinances present no conflicts within the

circuits requiring this Court to grant the Petitioners’ writ of

certiorari.

Finally, the Petitioners cite two cases recently decided in the

Fourth Circuit of /]126 Baltimore Blvd., Inc. v. Prince George's

County Maryland, 58 F.3d 988 and Chesapeake B & M, Inc. v.

Harford County Maryland, 58 F.3d 1005 (4th Cir. 1995). In

Harford, the administrative proceeding for the granting of a

license was supposedly forty-four (44) days. However, there

was no assurance (similar to FW/PBS) that the health department

or other agencies required to inspect would report back to the

licensing department within thirty (30) days so that the District

Court found that the licensing law proceedings indefinite. The

District Court held the licensing law was unconstitutional be-

cause it did not ensure a reasonably prompt administrative

decision and fails to preserve the status quo for existing book

stores during the application process. The county did not cross

appeal these rulings. The District Court, however, had deter-

mined that it was possible that the administrative rulings might

be applied constitutionally, and the book store appealed. The

Fourth Circuit determined that the licensing decision was unen-

forceable because it does not ensure a prompt administrative

decision and it must vacate the District Court’s order to the

contrary. See 58 F.3d at 1011. However, the Fourth Circuit

determined that it would still rule as to whether the county had

provided for prompt judicial review and they did so consistent

with the Supreme Court licensing cases in which the Court

reviewed the adequacy of each procedural safeguard. It con-

curred with its decision in //126 Baltimore Blvd., supra, that

prompt judicial review means a sufficiently prompt decision on

the merits.

onc he

In 11126 Baltimore Blvd. , supra, the special permit provisions

of the zoning law were considered to be enough of a licensing

scheme as to require a review according to the standards of

Freedman. The Court of Appeals held that it was unable to

conclude that one hundred fifty (150) days was a reasonably

brief time frame in which to render an administrative decision on

the zoning. The Court found the administrative delay violated

procedural safeguards. The Court observed that Justice O’ Connor

in her plurality opinion did not amend the principles in Freed-

man for a final judicial determination on the merits. Even with

a local court rule, the parties did not dispute there would be one

hundred three (103) days typically to obtain a judicial ruling after

the denial of an application for a general zoning exception. A

delay in excess of three (3) months following a one hundred fifty

(150) day administrative delay did not ensure a prompt judicial

review.

Since this Court recognizes that constitutionally permissible

time limits may vary in different contexts, there is no substantial

conflict in the circuits, nor does this case present one in which

this Court should grant review.

4. ADMINISTRATIVE DELAY INVALIDATES ORDI-

NANCE.

The minimum of ninety (90) days in the Ordinance for

application for a license and an appeal is such that this is an

unreasonable time period in which to issue a license. The Court

need not reach any decision on interpretation of judicial review

since it is able to decide the case on another ground of the

unreasonable administrative period. While respondents do not

agree there is a conflict, the Court should not have to reach the

question of the judicial review in that the administrative proce-

dure is so long. Whether or not there is a conflict is irrelevant to

the ultimate outcome of the case before the Court because

resolving the conflict will not change the result which should be

reached because of the unreasonable administrative delay.

ae, «Pa

Additionally, the review by common law writ of certiorari as

discussed herein ‘s discretionary, so that whether or not there is

any conflict between access to the court or judicial review on the

merits, the point would not be reached because access to the

courts in Tennessee are not guaranteed since a common law writ

of certiorari is a discretionary remedy.

5. COMMON LAW CERTIORARI IS NEITHER

PROMPT NOR MEANINGFUL JUDICIAL REVIEW,

NOR GUARANTEED ACCESS TO THE COURTS.

The common law writ of certiorari in Tennessee is discretion-

ary. Clark v. Metro Government of Nashville, 827 S.W.2d 312

(1992), discusses common law certiorari as follows:

The remedy of certiorari is not available as of right, but is

granted under unusual or extraordinary circumstances. It is

instituted by an application to a court of competent jurisdic-

tion which may or may not authorize the writ.

827 S.W.2d 316-317.

This is not a recent holding in the State of Tennessee. Uselton

v. Price, 41 Tenn. App. 134, 292 S.W.2d 788 (1953) cites State,

ex rel. Karr v. Taxing Dist. of Shelby Co., 84 Tenn. 240 (1886),

wherein it is said that certiorari to review proceedings of inferior

tribunals is nota writ of right, but is issued in the sound discretion

of the Court. Boyce v. Williams, 215 Tenn. 707, 389 S.W.2d 272

(1965), was a holding by the Supreme Court that whether

common law writ of certiorari will issue is a matter of discretion.

See also, Hewgley v. Trice, 207 Tenn. 466, 340 S.W.2d 918

(1960). Boyce also recognizes the distinction between statutory

and common law writ of certiorari in that an administrative act

or function is reviewable by the common law writ of certiorari

and not by the statutory writ.

The procedures for review by a Court under both common law

or statutory writs of certiorari are as set forth in T.C.A. § 29-9-

netics

101, et seq., and a portion is copied in Appendix A. The same

procedure for review is used under both kinds of writs. Fairhaven

Corp. v. Tenn. Health Facilities Comm'n, 566 S.W.2d 885

(1976). However, so much of the statute has prescribed ade novo

hearing apply exclusively to the statutory writ of certiorari.

Fentress County Beer Board v. Cravens, 356 S.W.2d 260 (Tenn.

1962), and Hoover Motor Express Co. v. R. R. and Public Util.

Comm'n, 195 Tenn. 593, 261 S.W.2d 233 (1953). As discussed

in the facts, it would be substantially in excess of ninety (90) days

after the filing of a writ of certiorari that the writ would be set for

trial if the Court in its discretion granted the writ of certiorari.

The Court review in a common law certiorari is limited to the

record to determine as a question of law whether there is any

material evidence to support the agency or administrative officer’ s

finding. Cooper v. Williamson County Board of Educ., 746

S.W.2d 176 (Tenn. 1987). While we have spoken of a new

applicant for a license, the Memphis Ordinance does not stay a

suspension or revocation during a judicial hearing unless the

Court would order a writ of supersedeas. Again, this is in the

discretion of the Court so that the status quo is not maintained.

T.C.A. § 27-9-106. Hoover Motor Express is the seminal case

in Tennessee on common law writ of certiorari and states:

Under the common law writ of certiorari, questions of law

only will be reviewed by the courts.

261 S.W.2d at 238.

There is not only lack of access to the court since the writ is

discretionary, nor a prompt judicial decision, but also the lack of

a meaningful full-bodied, genuine and guaranteed judicial re-

view. Review is limited to whether or not in the administrative

proceedings, the administrative officer exercising his function

exceeded his jurisdiction or acted fraudulentiy, illegally or

arbitrarily.

ana OF is

6. THE PETITION HAS NUMEROUS MISSTATE-

MENTS OF LAW AND FACT.

The Petition incorrectly states that the administrative ruling is

stayed pending a judicial determination. See page 4 at Footnote

2. The City incorrectly cites T.C.A. §27-8-112 that supersedeas

shall issue to stay any suspension, revocation or denial of a

permit. The correct statute on supersedeas on acommon law writ

of certiorari is T.C.A. § 27-9-106 as cited in Appendix A in

which supersedeas is discretionary.

Furthermore, there could not be an automatic stay which

would allow a new applicant to have a temporary license. The

decision of the Sixth Circuit holds a stay is not possible to permit

a new applicant to engage in the business while the license

application is on judicial review. The rule is the same in

Tennessee. If a new application for a license is denied, a writ of

supersedeas does not give a temporary permit. Watkins v.

Naifeh, 635 S.W.2d 104 (1982). The statement in note 2 that an

applicant may obtain a stay during judicial review is in error. The

correct fact is that a licensee whose license has been revoked or

suspended may (which is discretionary) obtain a stay during

judicial review by seeking the writ of supersedeas.

The assertion in footnote 3 on page 8 that the Sixth Circuit

recognized that the writ of certiorari is the proper method of

review is in error. Louisville and N.R.R. v. Public Service

Comm'n, 631 F.2d 436 (6th Cir. 1980), recognized that prior to

the enactment of the Uniform Administrative Procedures Act in

Tennessee in 1974, review by taxpayer of the State Board of

Equalization’s action was obtained through the common law

writ of certiorari. Since this had been changed in 1974, common

law writ of certiorari was not the proper method of review at the

time of this case. Its hold is that a federal court action against

enforcement of tax assessment was not barred by the Anti-

Injunction Act.

It is further a misstatement of law to cite the 1902 Tennessee

case of Tennessee Cent. R.R., Co. v. Campbell, 75 S.W. 1012

(Tenn. 1902), that certiorari is one of the most efficient remedies

provided. This quotation applied to certiorari proceeding from

a lower court to a higher court and has now been superseded by

Rule 10 of the Tennessee Rules of Appellate Procedure which is

attached in Appendix A. The comment clearly states that the rule

abandons the old terminology associated with the writ system of

interlocutory review.

It is also incorrect for the City to assert that as to administrative

review, the Sixth Circuit panel left the district court ruling

undisturbed (Petition, page 10). This is not so in that the Sixth

Circuit considered the time for the administrative hearing, plus

the delay for a judicial review to determine that there was no

prompt judicial review provided by the Memphis Ordinance. It

is further wrong to imply that the City of Memphis has no

authority to dictate procedure to a state court. The assertion that

the ruling of the Sixth Circuit handcuffs the City and all other

municipalities from licensing adult facilities is specious.

Any municipal attorney should advise the Court that a munici-

pal corporation is a creature of law established for special

purposes and its acts, must be authorized by its Charter or other

laws, which is commonly referred to as “Dillon’s Rule.” See

McQuillin Municipal Corporation § 10.09, 3d ed. City of

Lebanon v. Baird, 756 S.W.2d236(Tenn. 1988), holds that in the

almost two hundred (200) years of this state’s existence, a

substantial and comprehensive body of law controlling the

exercise of municipal powers has evolved. Fundamental in this

law is that municipalities may exercise only those express or

necessarily implied powers delegated to them by the legislature

in their Charters or under statutes. There are numerous state

statutes which are applicable to municipalities or counties which

place certain duties on the courts. For example, there is a special

state statute for the control and licensing of beer in Tennessee

a ss

which provides for the procedures to be used including judicial

review. Additionally, Tennessee adopted a statutory procedure

for injunctions against films and magazines following the model

of Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325

(1957), when it adopted T.C.A. § 39-17-905 in 1965 that a person

is entitled to a trial on the issues within two (2) days after the

answer and a decision rendered by the court within two (2) days

of the conclusion of the trial.

It is certainly a misstatement that permits for parades and other

first amendment activities are heard only by writ of certiorari to

state court and have less rights than adult entertainment. As early

as this Court’s decision in Shuttlesworth v. City of Birmingham,

394 U.S. 147, 89 S.Ct. 935 (1969), the Court recognized for

parade permits and other fundamental freedoms not only were

objective standards to be applied, but the procedural standards of

Freedman applicable. Justice Harlan noted in concurring that

although Shuttiesworth could have petitioned for a writ of

mandamus in the Alabama Circuit Court if the City Commission

denied his permit application, that state court was not obligated

to render decision within any fixed period of time. The opinion

of Justice Stewart noted the assumption that the Ordinance as

then construed by the Alabama Supreme Court was constitu-

tional would depend upon, among other things, the availability

of expeditious judicial review.

The assertion that law licenses, medical licenses or others are

reviewed by the common law of certiorari is not correct. Since

1974 the State of Tennessee adopted the Uniform Administra-

tive Procedures Act by which review of administrative determi-

nation is prescribed for all state boards and commissions and any

other units of state government. See T.C.A. § 4-5-101, et seq.

Common law certiorari is not the method used.

Finally, the Petition (page 14), asserts a delay of three (3)

months inures to the permit holders benefit. This has no

application to a new applicant for a license who has nothing to

iia i

stay and is kept out of business, not only the three (3) to five (5)

months minimum which the Court of Appeals holds, but prob-

ably in excess of six (6) months by counting the original thirty

(30) days for license application and the time to prepare and file

a transcript.

7. REQUIRING ALL SHAREHOLDERS TO PROVIDE

DISCLOSURE AND OBTAIN LICENSE FOR COR-

PORATE ADULT BUSINESS VIOLATES FIRST

AMENDMENT.

The Ordinance does not just require minimum disclosure of

certain information as the question presented implies. Licenses

are to be issued in the names of natural persons only. License

applications by corporations require each individual who has an

interest in the business to apply. Each person must be qualified

for a license. (Ordinance, § 122(a)(5)(7).) The Sixth Circuit

followed many other decisions, but cited only two that the

requirement that every person with any ownership interest,

regardless of how small, sign the license application, is imper-

missibly broad. Even an argument of accountability is of no

significance because officers and directors, not shareholders are

legally responsible for the management of a corporation’s busi-

ness. If the corporation does not comply with the licensing

privilege, the City of Memphis would be free to take appropriate

enforcement action against the corporation, its officers and

directors. See Acorn Investments, Inc. v. City of Seattle, 887 F.2d

219 (9th Cir. 1989).

There are a series of decisions both appellate and district

courts, upholding this principle. The District Court opinion of

Judge Gibbons cited no authority and did not distinguish the

contrary authorities. Genusa v. City of Peoria, 619 F.2d 1203

(7th Cir. 1980), correctly determined that providing a disclosure

of any shareholder holding more than 10% was not pertinent to

enforcement of the ordinance. There could be no purpose other

than harassment in requiring individual stockholders to file

ie, ee

separate applications under oath. 7.K.’s Video, Inc. v. Denton

Co., Tex., 24 F.3d 705 (Sth Cir. 1994), affirmed the district court,

which eliminated licensing requirements for stockholders, lim-

ited partners, and equity holders. District court authorities

recognized that an application by shareholders or anyone inter-

ested directly in the ownership impinged on First Amendment

Rights and information from stockholders was in no way related

to the purpose of the ordinances or regulations. Ellwest Stereo

Theater, Inc. v. Boner, 718 F. Supp. 1553 (M.D. Tenn. 1989);

Penco, Inc. v. Moody, 474 F. Supp. 1001 (S.D. Ohio 1978);

Natco Theaters, Inc. v. Ratner, 463 F. Supp. 1124 (S.D.N.Y.

1979). All of these decisions recognize that officers and direc-

tors are legally responsible for the management of acorporation’s

business. Many reason that a compelled content-neutral disclo-

sure of owner information can chill protected expression citing

Talley v. California, 362 U.S. 60, 80 S. Ct. 536, 4 L. Ed. 2d 559

(1960), and NAACP v. Alabama ex rel. Patterson, 357 U.S. 449,

78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958). This Court recently

reaffirmed in McIntyre v. Ohio Elections Comm'n, __ US.

___, 115 S. Ct. 1511 (1995), that freedom under the First

Amendment to publish anonymously extends beyond literary

realm to advocacy of political causes. That decision emphasized

that disclosure must further a substantial government interest.

Shareholder disclosure was not an issue either in the District

Court or Court of Appeals in Dumus v. City of Dallas, 648

F.Supp. 1078 (N.D. Tex. 1986), and FW/PBS Inc. v. City of

Dallas, 837 F.2d 1298 (Sth Cir. 1988). The ordinance provisions

in Dallas were different from the City of Memphis and only

required each individual who had a twenty percent (20%) or

greater interest in the business to sign the application for a

license. When individual shareholders disclosure was an issue,

the Fifth Circuit decided in T.K.’s Video Inc. v. Denton County,

Texas, 24 F.3d 705 (Sth Cir. 1994), that shareholder license

requirements were invalid as not related to the purpose of the

ordinance.

Me

poe, eae

The City of Memphis should license the corporation rather

than harassing stockholders to file separate applications under

oath. A truly content-neutral licensing ordinance with narrowly

tailored provisions does not need the names of each and every

shareholder. The Sixth Circuit in dicta says the city “perhaps”

may have an interest identifying those who have a controlling or

significant share in such a business. However any future

regulation would have to relate to a substantial government

interest which we believe would be satisfied by identification of

corporate officers.

Although Petitioner asserts that the ruling on shareholder

disclosure is inconsistent with the case law of this Court, it cites

no decision of this Court to the contrary nor do any of the federal

courts of appeal or federal district courts cite any when they

invalidate shareholder disclosure. Even the reference by the City

of Memphis to Professor Gerard cites no cases of this Court, and

states the Supreme Court has never ruled on the constitutionality

of licensing scheme that impose personal qualifications on

owners or employees of adult businesses.

There is no legitimate governmental interest in requiring

stockholders, minority or otherwise, that own, but may or may

not actually operate, an adult business to submit information to

the Director of Police and be qualified for a license. The Sixth

Circuit was correct in finding the provision in the Ordinance

requiring each shareholder with any ownership interest to sign

the application and meet all license requirements is impermissi-

bly broad. In addition, said requirement serves no legitimate

government interest nor is it narrowly tailored to further any

legitimate government interest and is not a sufficient ground to

warrant the grant of certiorari.

mie, es

CONCLUSION

The Petition for Certiorari should be denied.

Respectfully submitted,

Frierson M. Graves, Jr.

Counsel of Record

2000 First Tennessee Bank Bidg.

165 Madison Avenue

Memphis, Tennessee 38103

(901) 526-2000