Opposition Brief — Amsterdam Video, Inc. v. City of New York

48-509 u per 8 1998

No. 98-574/3 /

IN THE oa

Supreme Court of the Anited States

October Term, 1998

RACHEL HICKERSON, DEREK JONES, TY MCCONNELL,

AND ELLIOT STAMLER,

Petitioners,

Vv.

THE CITY OF NEW YORK, ef al.,

Respondents,

TIMES SQUARE BUSINESS IMPROVEMENT DISTRICT

AND CENTER FOR THE COMMUNITY INTEREST, ef ai.,

Respondents-Intervenors.

(Caption Continues on Inside Cover)

ON PETITION For A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

RESPONDENT-INTERVENOR TIMES SQUARE BUSINESS

IMPROVEMENT DISTRICT’S BRIEF IN OPPOSITION TO

THE PETITION FOR A WRIT OF CERTIORARI

FREDERICK A. O. SCHWARZ, JR.

CRAVATH, SWAINE & MOORE

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019

(212) 474-1000

Pro Bono Attorneys for Respondent-

Intervenor Times Square Business

Improvement District

December 2, 1998

(Caption Continued From Front Cover)

AMSTERDAM VIDEO, INC., ef all.,

Petitioners,

Vv.

THE CITY OF NEw YorK, et al.,

Respondents,

TIMES SQUARE BUSINESS IMPROVEMENT. DISTRICT

AND CENTER FOR THE COMMUNITY INTEREST, ef ai,

Respondents-Intervenors.

TABLE OF CONTENTS

Page

Statement Pursuant to Rule 29.6 ................. ii

EE IE re iii

Summary of the Argument ...................... l

Reasons for Denying the Writ ................... 2

A. A purported England reservation does not

preclude the application of collateral

estoppel on these facts .................. 2

B. Because the federal and state standards

are the same, the Second Circuit properly

applied collateral estoppel with regard to

issues decided by the state court .......... 5

This Court Should not Overturn, Nor Need it

ee eck 8 -

ne cn cccecntee 12

ii

STATEMENT PURSUANT

TO SUPREME COURT RULE 29.1

This is to certify that respondent-intervenor Times Square

Business Improvement District has no corporate parents or non-

wholly owned subsidiaries.

ili

TABLE OF AUTHORITIES

Cases

Allen v. McCurry, 449 U.S. 90 (1980) ......

Bradley v. Pittsburgh Bd. of Educ., 913

F.2d 1064 (3d Cir, 1990) .........2....

City of Renton v. Playtime Theatres, Inc.,

Ta > Ty aM a eee ape iyenen

England v. Louisiana State Bd. of Medical

Examiners, 375 U.S. 311 (1964) ........

Fields v. Sarasota Manatee Airport Auth.,

953 F.2d 1299 (11th Cir. 1992) .........

Fuller Co. v. Ramon A. Gil, Inc., 782 F.2d

SOG Cat TE ao os Bh ieee de os

Hickerson v. City of New York, 932

F. Supp. 550 (S.D.N.Y. 1996)

we ty eer ee

Hickerson v. City of New York, 146 F.3d 99

(2d Cir. 1998) (“Hickerson IT’) .........

Lakeland Lounge v. City of Jackson, 973

ee Fe Oe)? OEE

Migra v. Warren City Sch. District Bd., 465

OS Apo Te. | SR ety rh aaa

Schuster v. Martin, 861 F.2d 1369 (Sth Cir.

PN Gi 65 eid RRR WK AUER CNS Ks

Stringfellow’s v. City of New York, 653

N.Y.S.2d 803 (N.Y. Sup. Ct. 1996)

CRO GE) iio via RSS ces

4,7

2,8

4,7

iv

Page(s)

Stringfellow’s v. City of New York, 694

N.E. 2d 407 (N.Y. Ct. App. 1998)

CBrrinafalbow's OR") oo cccccccvdcccccse 5, 6, 8,9

Topanga Press v. City of Los Angeles, 989

F.2d 1524 (9th Cir. 1993) .............. 8

Tovar v. Billmeyer, 609 F.2d 1291 (9th Cir.

OOTPR . cccccccccosncevabeder duel t0cse 3 |

United Parcel Svc. v. California Public |

Utils., 77 F.3d 1178 (9th Cir. 1996) ...... 3 |

Walnut Properties v. City of Whittier, 861

F.2d 1102 (9th Cir. 1988) .............. 7

Wicker v. Bd. of Educ. of Knott County, 826 |

F.2d 442 (6th Cir. 1987) ............... 4 |

Woodall v. City of El Paso, 49 F.3d 1120

(30a Cie, TED 0a sdebaatecasttvesesas 6, 8

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

SOCIGRED cccctcdedecepeeeassseAtets 11

Respondent-Intervenor Times Square Business

Improvement District requests that the Court deny the petition

for a writ of certiorari seeking review of an opinion of the

Court of Appeals for the Second Circuit reported at 146 F.3d

99 (2d Cir. 1998).

SUMMARY OF THE ARGUMENT

No matter how petitioners clamor for a second bite at the

apple, the fact is that the Second Circuit correctly resolved

petitioners’ First Amendment claim under the doctrine of

collateral estoppel. Because the federal and state standards at

issue are exactly the same, the unanimous decisions of the state

courts to uphold the City’s zoning ordinance were based on an

inquiry into the identical factual issues pertinent to the federal

Constitutionality of the Resolution: i.e., the City’s intent in

enacting its zoning ordinance and the sufficiency of available

locations for relocation. The failure of petitioners to produce

evidence on these factual issues in state court doomed their

First Amendment claim.

Petitioners, who avidly sought to litigate in state court, are

not entitled to waste judicial resources and conduct repetitive

litigation by abusing the reservation procedure set forth in

England v. Louisiana State Bd. of Medical Examiners, 375 U.S.

411 (1964). An England reservation is intended to benefit

parties forced into state court, not those who vigorously sought

to have the state courts litigate all their claims. Moreover,

England applies to claim preclusion, and does not bar the effect

of collateral estoppel with respect to factual issues decided in

the state court. Thus, England has no bearing on petitioners’

ability to re-litigate issues already resolved in the earlier

proceedings.

Finally, the Constitutionality of New York’s zoning

Resolution is unambiguous. Sixteen judges, sitting in five

different courts, have agreed that the Resolution is aimed at

negative secondary effects rather than content, and that it

provides petitioners with alternative avenues of communication

2

that amply satisfy the requirements of the First Amendment.

Because the zoning ordinance falls safely within the

Constitutional parameters explicated by this Court, this Court

need not expend its limited resources to examine what was, in

essence, a straightforward application of this Court’s First

Amendment doctrine as set forth in City of Renton v. Playtime

Theatres, Inc., 475 U.S. 41 (1986).

REASONS FOR DENYING THE WRIT

THE SECOND CIRCUIT PROPERLY APPLIED

THE DOCTRINE OF COLLATERAL ESTOPPEL.

A. A purported England reservation does not

preclude the application of collateral estoppel on

these facts.

Petitioners seek to frustrate the application of collateral

estoppel by means of their purported England reservation.

However, as this Court made clear in England, an England

reservation is intended to protect parties forced to litigate in

State court. See England, 275 U.S. at 415 (“[T]here are

fundamental objections to any conclusion that a litigant who |

has properly invoked the jurisdiction of a Federal District |

Court to consider federal constitutional claims can be

compelled, without his consent and through no fault of his own,

to accept instead a state court’s determination of those claims.”’)

(emphasis added). Here, by contrast, petitioners unreservedly

submitted both state and federal claims to the courts of New

York State in the first instance, and vigorously fought to keep

all their claims in that forum. Cf Migra v. Warren City Sch.

District Bd., 465 U.S. 75, 85 n. 7 (1984); Allen v. McCurry,

449 U.S. 90, 101 n. 17 (1980) (England applies where a party

“invokes federal-court jurisdiction in the first instance on a

federal claim”) (emphasis added); England, 375 U.S. at 421

(stressing that, in abstention context, a party’s choice of federal

forum must be protected).

eee Nm Tr enn ere rn mR Fe

That a reservation of federal claims pursuant to England

exists only for the benefit of parties forced to litigate claims in

state court against their will is the unanimous view of the

Courts of Appeals.! See, e.g., Fields v. Sarasota Manatee

Airport Auth. , 953 F.2d 1299, 1304-6 (11th Cir. 1992); Bradley

v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1071 (3d Cir. 1990);

Schuster v. Martin, 861 F.2d 1369, 1373-74 (5th Cir. 1988);

Fuller Co. v. Ramon I. Gil, Inc., 782 F.2d 306, 311-12 (1st Cir.

1986); Tovar v. Billmeyer, 609 F.2d 1291, 1293 (9th Cir. 1979)

(“Appellants from the early days of their dispute with the City

have sought to have their federal claims heard in a federal

court.”).

Here, by contrast, it was clear from the beginning that

petitioners hoped that the state constitution would prove more

helpful to them than the First Amendment as applied by this

Court:

That is why petitioners filed 13 state law claims in

state court, with a sole federal claim that they themselves

described as an “adjunct” to their state causes of action.

See, e.g., Brief of Amsterdam Video in Support of Motion

to Remand at 28 (“[I]n our case, not only is the federal

claim an adjunct to the state claims, but it is factual (sic)

intertwined with the state charges”); Beth Haroules (for the

Hickerson petitioners), Transcript of Oral Argument on

Motion to Remand, at 7 (“Your honor, the federal claim is

asserted as an adjunct to the state constitution.”).

' Certain of the federal courts of appeals consider the fact that a party

filed first in state court to be dispositive, see, e.g., Schuster v. Martin, 861

F.2d 1369, 1373-74 (Sth Cir. 1988), while others evaluate the totality of the

evidence that a party was “forced” to litigate in the state court and the

extent to which the litigant submitted to state court jurisdiction. See, e.g.,

United Parcel Svc. v. California Public Utils., 77 F.3d 1178, 1186 (9th Cir.

1996). Not one appellate court, however, has intimated — nor could any,

in light of England’s emphasis on protecting a party’s choice of forum —

that a party may proceed to federal court regardless of its intent to litigate

the same claims in an earlier state proceeding.

4

That is why petitioners fought so vigorously to remain

in state court when confronted with respondents’ notice of

removal to federal court.

That is why, in stark contrast to the position they take

before this Court, petitioners assured the federal district

court that: “No credible claim can be made that a federal

court is in a better position than the New York State court

to inquire into the adequacy and suitability of [the

alternative] sites.” Brief of Amsterdam Video in Support

of Motion to Remand at 20.

That is why petitioners filed the affidavit of their

expert, Robert McLaughlin, knowing full well that (as the

state court found) it incorporated “the same methodology”

that this Court had “specifically rejected” in Renton.

Stringfellow’s v. City of New York, 653 N.Y.S. 2d 803,

810 (N.Y. Sup. Ct. 1996) (“Stringfellow’s I’”’).

Thus, petitioners can in no sense be said to have been

forced to litigate in state court. To the contrary, peti ioners

filed all their claims in state court. Removal was effected only

over their vehement protest and followed by a motion to

remand in which petitioners proclaimed the adequacy of the

state court to determine all their claims. See Hickerson v. City

of New York, 932 F. Supp. 550, 556 (S.D.N.Y. 1996)

(“Hickerson I’) (“[P]laintiffs’ state claims are remanded . . .

Plaintiffs, however, want more. They seek to have their federal

constitutional claims decided by a state court.”).

Moreover, even if it were applicable here, England only

operates to preserve claims a party wishes to bring to the

attention of the federal court, rather than issues that were

necessarily resolved by the State court. England does not

abrogate the requirement that federal courts rely on the

resolution of issues resolved in an earlier proceeding. See, e.g.,

Wicker v. Bd. of Educ. of Knott County, 826 F.2d 442, 448-49

(6th Cir.1987) (“Even though [plaintiff] reserved his federal

claims in state court, there still can be issue preclusive effect

accorded to both state court findings of law and findings of

fact.”); Bradley, 913 F.2d 1064 at 1073 (“As the Court

recognized in England, even a litigant who has made a valid

reservation may not relitigate an issue he/she unreservedly

litigated in state court.”). See also Restatement (Second) of

Judgments § 86, cmt. f, illus. 7 (1982) (stating that factual issue

litigated in state court may not be relitigated, although federal

claims may have been reserved). Thus, even if petitioners had

not vehemently insisted on litigating in state court — as they

did —- England would have no bearing on the final resolution

of factual issues relevant to petitioners’ federal claim.

B. Because the federal and state standards are the

same, the Second Circuit properly applied

collateral estoppel with regard to issues decided by

the state court.

Given that England has no place here, the Second Circuit

was correct to make its straightforward decision that

petitioners’ inability to withstand summary judgment in the

state courts signaled a similarly fatal dearth of evidence with

respect to petitioners’ federal claim. Collateral estoppel is

routinely applied by the federal courts where, as here, a prior

decision was based on the sazne standards applicable to a later

proceeding. See Allen, 449 U.S. at 94 (stating that federal

courts traditionally have followed rules of issue preclusion and

res judicata). As the Second Circuit rightly concluded, the

courts of New York state have incorporated the federal free

speech standard into state law. See, e.g., Stringfellow’s v. City

of New York, 694 N.E.2d 407, 415 (N.Y. Ct. App. 1998)

(“Stringfellow’s II”) (reviewing Renton and other federal

precedents and extensively citing federal cases as well as

parallel state opinions in support of ruling under state law).

Comparing the law of the two jurisdictions indeed reveals

that the standards are identical. The New York state and

federal free speech standards both subject a zoning regulation

to the same two inquiries. First, the ordinance must be justified

by a purpose unrelated to content; specifically, the desire to

combat negative secondary effects associated with adult

establishments. See, e.g., Renton, 475 U.S. at 48 (stating that

relevant question is whether the “predominant intent” of zoning

law is “unrelated to the suppression of free expression”);

Stringfellow’s II, 694 N.E.2d at 415 (inquiry is whether

ordinance is “purposefully directed at controlling the content of

the message conveyed through adult businesses” rather than

“aimed at an entirely separate societal goal”). Second, adult

uses must be left with a reasonable opportunity to exist in the

marketplace. See, e.g., Renton, 475 U.S. at 50 (ordinance must

allow for “reasonable alternative avenues of communication’’);

Stringfellow’s II, 694 N.E.2d at 418 (explaining that, under

state law, ordinance must be “no broader than necessary” in

that it “assure[s] reasonable avenues of communication,” and

that “ample space” must remain for adult uses).?

2 In a dramatic reversal of their position throughout the state court

litigation, petitioners argue that the federal courts “require a more rigorous

examination of alternative locations” than that deemed sufficient by the state

courts. See, e.g., Petition of the Hickerson Plaintiffs for Writ of Certiorari

at 14. In fact, no federal court has required a showing of specific sites for

relocation, as petitioners contend. Indeed, it would be impracticable to

require cities to designate specific sites for relocation: since most zoning

ordinances impose a distance requirement between adult businesses, where

one adult business may locate depends in part on where another adult

business has located.

Despite petitioners’ criticism of New York City’s evidence as overly

“abstract,” the City’s designation of land in fact is indistinguishable from the

assessment conducted by many of the federal courts:cited favorably by

petitioners. See, e.g., Woodall v. City of El Paso, 49 F.3d 1120, 1127

(Sth Cir. 1995) (“[Tjhe collection of specific sites suggested by the City was

but one possible arrangement of adult business locations that could coexist

under the .. . Ordinance. ... [V]irtually every site could be shifted to some

nearby location without significantly upsetting other sites or reducing the

total number of sites available.”); Lakeland Lounge v. City of Jackson, 973

F.2d 1255, 1260 (Sth Cir. 1992) (“Nothing in the instant record permits us

to say that all or even most of the locations are inaccessible, unsafe, or

without utilities or infrastructure. ... Thus, although the record does not

In the state court proceedings, petitioners failed entirely to

raise any genuine, material issue of fact regarding the ability of

New York’s zoning Resolution to satisfy the two-prong

standard set forth above. Put simply, petitioners cast doubt on

neither the City’s purpose nor the availability of alternate

locations. As the district court noted, the virtually unrebutted

evidence produced by New York City supported the following

conclusions: (1) the City acted in response to concerns

regarding the secondary effects of adult establishments; (2) the

City reasonably relied on a number of studies to conclude that

adult businesses produce adverse secondary effects; (3) the

Resolution is no broader than necessary to prevent those

adverse effects; and (4) the City “more than sufficiently

demonstrated” that the permissible areas for adult

establishments remaining in the City are suitable for

commercial enterprise and are large enough to accommodate

adult establishments which must relocate. See Hickerson I, 997

F. Supp. 418 at 423 (citing Stringfellow’s I, 653 N.Y.S.2d at

803, 808, 809, 814).

In light of petitioners’ inability to create doubt as to either

of the two relevant prongs, the doctrine of collateral estoppel

— as well as ineluctable logic — required the Second Circuit

to reject the efforts of petitioners to relitigate the precise same

issues that had been decided in the state courts.

Petitioners attempt to characterize the application of

collateral estoppel in this case as an abdication of duty by the

federal courts. The truth is just the opposite. This Court has

clearly stated that federal courts must give estoppel effect to

issues and claims resolved in the state courts. See Migra, 465

permit us to say with precision how many additional sites exist, a substantial

number do.”); Walnut Properties v. City of Whittier, 861 F.2d 1102, 1107

(9th Cir. 1988) ([T]he district court made no findings with respect to the

actual number of potential sites available . ... However, that deficiency

does not hinder us because we can roughly estimate the number of available

ER

U.S. at 84; Allen, 449 U.S. at 95-96. Not only does the doctrine

of collateral estoppel conserve judicial resources, “but [it] also

. .. promotes the comity between state and federal courts that

has been recognized as a bulwark of the federal system.” Allen,

449 U.S. at 95-96. The decision of the Second Circuit to hold

petitioners to issues as litigated in the state courts served the

interests of federalism as well as judicial economy and

common sense.

THIS COURT SHOULD NOT OVERTURN,

NOR NEED IT REVISIT, RENTON.

Since Renton was decided only a little over than a decade

ago, the lower courts have relied on its clear precepts to

evaluate the constitutionality of dozens of municipal

ordinances. The instant case is weil within the mainstream of

these cases, and there is no reason to revisit Renton, let alone

overturn it.3 J Under Renton, as well as the identical state

standard, the zoning ordinance at issue unquestionably is

Constitutional.

Unlike ordinances that test the limits of Constitutional

regulation, New York City’s Resolution is well within the

standards set by this Court; indeed, it leaves space to

3 Petitioners urge this Court to intervene by claiming a “conflict”

between the Second Circuit and two opinions of the Fifth and Ninth Circuit

covzis of appeals. See, e.g., Petition of the Hickerson Plaintiffs for Writ of

Certiorari at 14 (citing Topanga Press v. City of Los Angeles, 989 F.2d

1524 (9th Cir. 1993), cert. denied, 511 U.S. 1030 (1994); Woodall v. City

of El Paso, 49 F.3d 1120, 1127 (Sth Cir. 1995)). Such a conflict is belied,

most obviously, by the fact that every court that has ruled on the Resolution

thus far — including the Second Circuit — has cited these two cases in its

discussion of the First Amendment without perceiving any conflict with

other circuits or shortcoming on the part of the ordinance. Moreover, to the

extent that these cases do purport to exclude land that is physically or

practically unavailable — e.g., underwater or allocated for airport use —

New York City’s 4 % figure represents land available after the exclusion of

properties unlikely ever to become available for commercial use from its

initial figure of 11%. See Stringfellow’s IT, 694 N.E. 2d at 419.

accommodate far more than the number of establishments that

may seek to relocate. As the Second Circuit noted, New York

City offered evidence that, “after excluding land identified by

the City as being unlikely to be developed for commercial use,

4 % of the total land area of the City remained open to adult

establishments . . . [Al]fter factoring in the Zoning

Amendment’s 500-foot buffer zones, over 500 potential sites

remained available.” See Hickerson v. City of New York, 146

F.3d 99, 1078 (2d Cir. 1998) (“Hickerson II”) (emphasis

added) (citing Stringfellow’s II, 694 N.E.2d 407 at 418). The

Second Circuit recognized that the ordinance leaves no

shortage of alternative avenues of communication, given that

“this land could accommodate . . . approximately three times

the number of establishments that currently exist.” Jd. at 109.

In agreement with the district court and each of the state courts,

the Second Circuit accepted the City’s evidence that all the

areas in Manhattan zoned for adult use and 80% of the land in

other boroughs are within a 10-minute walk from a subway line

or major bus route.

In lieu of presenting this Court with reasons to overturn a

carefully considered ruling of recent vintage, petitioners here

simply have tried to relitigate matters flatly disposed of by

Renton. The essence of their petition to this Court is not, as

they claim, that any conflict or departure from judicial norms

necessitates resolution by this Court. Rather, it is that

petitioners seek to overturn Renton itself.*

4 Ironically, in light of their attack on Renton, petitioners argue that

they have been estopped from urging the reconsideration of federal free

speech standards. In fact, petitioners lobbied for a modification of the First

Amendment standards set forth by this Court before both the district court

and the Second Circuit, pressing the novel argument that Renton requires

cities to identify specific sites, and asking the Second Circuit to conduct an

unprecedented borough-by-borough analysis of the ordinance. The current

posture of this case itself is the clearest evidence that, far from being forced

to subsist under an unreviewable decision of the state court, petitioners

remain free to urge their interpretations of Renton and its progeny upon this

Court, as they unsuccessfully did in three state courts, the district court and

ii il

10

That petitioners seek to overturn Renton is evident in that

their interpretation of governing law is the same as that of the

Ninth Circuit in Renton itself. But this Court reversed the

decision of the Ninth Circuit, which had struck down the city

of Renton’s ordinance in part because the 520 acres of available

land included a sewage plant, a horse racing track, a business

park containing only buildings suitable for industrial use, a

warehouse, an oil tank farm, and a fully-developed shopping

center.> In reversing that decision, this Court commented that

the land available included “acreage in all stages of

development from raw land to developed, industrial,

warehouse, office, and shopping space ... .” Here, in direct

contravention of Renton’s teaching, and instead in accordance

with the methodology rejected in Renton, petitioners’ expert

excluded land that is industrially zoned, zoned for warehouses,

currently used as a parking or storage lot, subject to a long-term

lease, currently housing hazardous waste, or requires a permit

to change its zoning classification.

Ignoring for the moment the fact that petitioners’ strategy

is in derogation of the rulings of countless lower courts, it also

is in blatant disregard of Renton’s clear mandate that the fact

that adult establishments “must fend for themselves in the real

estate market, on an equal footing with other prospective

purchasers and lessees, does not give rise to a First Amendment

violation.” Renton, 475 U.S. at 54. At bottom, all of

petitioners’ mischaracterizations of governing law and attempts

to exclude viable relocation sites on the basis of factors deemed

impermissible by this Court amount to one thing: an end run

around Renton. That is why they have attempted to force a

strained, impracticable standard for assessing alternative

the Second Circuit.

> Cf Petition of the Hickerson Plaintiffs For Writ of Certiorari at 8

(criticizing relocation sites offered by the City including “Manhattan’s

Flower District . . . the Rockefeller Center Complex . . . Bronx Terminal

Market, Hunts Point Sewage Treatment Plant,” efc.).

11

locations on every court that has rejected their claims. That is

why they fought so hard to litigate in state court in hopes that

they might evade Renton altogether.

Petitioners do not seek the protection afforded by the First

Amendment. Rather, they seek protection that exceeds the

protection afforded to all other businesses subject to zoning: to

wit, specific retail locations guaranteed to be immediately

available, desirable, and economically viable. This Court

should not indulge that demand at the expense of its own

precedent, the law of the circuits, and the “high respect” to

which a city’s attempt to preserve the quality of urban life is

due. Renton, 475 U.S. at 50 (citing Young v. American

Mini-Theatres, 427 U.S. 50, 71 (1976)).

12

CONCLUSION

For the reasons stated above, the petitions for a writ of

certiorari to review the decision of the Second Circuit should

be denied.

December 2, 1998

Respectfully submitted,

FREDERICK A. O. SCHWARZ, JR.*

CRAVATH, SWAINE & MOORE

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019

(212) 474-1000

Pro Bono Attorneys for Respondent-

Intervenor Times Square Business

Improvement District

*Counsel of Record

David A. Stoll

Alexandra S. Wald

Of Counsel