# Petition for Writ of Certiorari — In re City of Henderson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 806

## Text

wrerve

PILED

931969 JUN - 6 19%
OFFICE DETER

No. 93-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

IN RE CITY OF HENDERSON, A NEVADA

MUNICIPAL CORPORATION, JAMES GOFF, CHIEF

OF POLICE OF THE CITY OF HENDERSON,
Petitioners

Vv.

NEVADA ENTERTAINMENT INDUSTRIES, INC.,
A NEVADA CORPORATION AND DANIEL BISHOP,
Real-Parties In Interest

ON PETITION FOR A WRIT OF MANDAMUS (OR
CERTIORARI UNDER RULE 11) TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT, AND THE HON. JAMES R. BROWNING,
AND WILLIAM C. CANBY, JR., CIRCUIT
JUDGES, AND ROBERT J. KELLEHER, SENIOR
DISTRICT JUDGE SITTING BY DESIGNATION

PETITION FOR A WRIT OF MANDAMUS

(OR CERTIORARI UNDER RULE 11)

TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SHAUNA M. HUGHES JAMES J. CLANCY

City Atlomey (Counsel of Record)

LIZA CONROY CAROL A. CLANCY

Assistant City Attomey 9055 La Tuna Cyn. Rd.
Sun Valley, CA 91352

City of Henderson (818) 352-2069

240 Water Street

Henderson, NV 89015
(702) 565-2394 Counsel for Petitioners

I

Whether, the Huffman abstention
doctrine is to be applied differently
from other abstention doctrines; that
is, under Huffman v. Pursue, Ltd., 420
U.S. 592 (1975), must the United States
District Court defer to the state court
judicial system and dismiss for lack of
subiect matter jurisdiction the federal

civil rights action of a State of Nevada
citizen which seeks to enjoin
enforcement of a quasi-judicial order of
the Henderson City Council, sitting as a
hearing board for the State of Nevada;
which revoked the federal plaintiffs’
business license to do business in
Henderson, Nevada, based on the City
Council’s finding of a fraudulent

business license application; which

-jii-
order was pending in the state system
and had been issued and served, but
stayed for 10 days to permit an appeal
to the Nevada State District Court;
during which stay the Nevada citizen
fiied a civil rights lawsuit for an

injunction under 42 U.S.C. Section 1983

be considered; the lack of which the

City of Henderson pleaded as a defense
on a motion to dismiss for lack of
subject matter jurisdiction under the
Eleventh Amendment and this Court’s
abstention ruling in Huffman, supra.
II

Whether an Opinion expressing a
unanimous decision of the Court of
Appeals for the Ninth Circuit:

(1) that the principles of law

-iii-
expressed by Chief Justice
Rhenquist in Huffman v. Pursue,
Ltd. control and that the

abstention doctrine applies to the
facts set forth; and

(2) that the federal
plaintiffs have not stated a cause
of action which establishes subject
matter jurisdiction for a_ federal
injunction under 42 U.S.C. Section
1983; and

(3) that the cause of action
must be dismissed for lack of
subject matter jursidiction; and

(4) in which the Court has
made findings of fact and
conclusions of law and entered a
Judgment thereon, in a written
Opinion which the Court has
certified for publication as meeting the
federal standards set forth in Rule 36
of the Federal Rules of Appellate Proce-

dure and which has been published as 8

-iv-
F.3d 1348 (CA 9, 1993);
may thereafter be withdrawn by the Court
without providing a good and lawful

reason?

III

Whether the Ninth Circuit Court of
Appeals Order dated April 7, 1994
reading The petition for rehearing is
granted. The opinion reported at 8 F.3d
1348 (CA 9 1993) is withdrawn is_ void
for: (1) lack of subject matter
jurisdiction, and (2) its failure to

give any reason for the withdrawal?

IIla
Whether a writ of mandamus will lie
to require that the April 7, 1994 Order

be vacated as a void order?

Li AB Arai aip cy

sye
IV

Whether the Ninth Circuit Court of
Appeals Memorandum, dated May 4, 1994,
is also void because of (1) lack of
subject matter jurisdiction, and (2) it
also does not address the underlying
issue that the Opinion and Judgment on

November 2, 1993 may not be withdraw

except for a ‘good and lawful reason’?

IVa
Whether a writ of mandamus will lie
to require that: (1) the Court of
Appeals’ May 4, 1994 Memorandum be
vacated as avoid Order, and (2) the
November 2, 1993 Opinion and Judgment be

reinstated?

-vVii-

TABLE OF CONTENTS

PAGE

pp RE Oe Ee er ee ix
QUESTIONS PRESENTED ON PETITION FOR
WRIT OF MANDAMUS AND WRIT OF
CERTIORARI UNDER RULE 11 OF THE
ee EE, clans Ube bt dnc 6 owe o's i
Raa ds ils ho od aloled 6 os Ube oeee ite serie bat

the State of Hawaii,
17 F.3d 1994 (CA 9, 1994)..... S2.-: 87.23

Chisholm v. George,
RN WER SEM Be. see 35

S60 U.0. GOs CEGRII i icc neck od a. 2, 53, 55

Ex Parte Young,
EA We aT See ‘. £,'36.° 29
40, 41, 46, 50

Fresh International Corp. v.
, } | Lal Re] : :
re Se aie eS) | See 58, 63

Huffman v. Pursue, Ltd. ’

420 U.S. 592 (1975)........ vee fem * 9
iO Bic BO. BO, 21, 22. 23.
$4. 38, 26.1 27s. 28, 29,32,
S4, 62,: 462, 42;.45, 47, 49,
50, 51, 53, 55, 56, 61

bal

eS ee ay 61
Midd - ty Ethic oe
Garden State Bar Ass'n,

Pg Sgt Ge” ae 55, 61, 62

Mitchum v. Foster,
7 oe eee tease). .,..4, 38.°37..40. 41

ee a ere 2, 3, 26

TABLE OF AUTHORITIES
PAGE
FEDERAL CASES
New Orleans Public Service v.
69%. U5 Bee Bees bia ee ods 63, 64, 65
Nintendo of America, Inc. v.
Lewis Gallob Toys, Inc.,
5G Fie ee Se as cc cc vec scene 60
ose : Tale -

Christian Schools, Inc.,
PS gue Oe Bee cL Ne. Pe ee 63, 65
Partington v. Gedan,
S60 Fiage TG CCAD, . BOOS). occ caccs 58, 63
Partington v. Gedan,
961 Fie CSR LOA. O, AGORD.. h vins bv es 59, 63
Pennzoil Co. v. Texaco, Inc.,
468 0.8. °S Si aa a ke xe ss 45
Rooker v. Fidelity Trust Co.,
263 US 81S. EG eka eet ass 2, 53, 55
Stanley v. University of So. Cal.,
id FF. 38° 3383 CGS, Bees sce xs 26. 32
Stratton v. St. Louis Southwestern
Railroad Co.,
OR EL RE >t oe Serer en Gory er 9
Watson v. Buck,
ae Bee ee OE Ds 8 soe dw ed ec ek 14
Will v. U.S.,
Be ee PCS 6 Sc ae Ke a es 9

MIS i Site as teeters

-xi-
TABLE OF AUTHORITIES
PAGE
FEDERAL CASES
World F Drink: E ;
City of Tempe,
me By Ge oy, Sida Bl Pe. Sree a2, 236,
$32, 83, 36
Younger v. Harris,
SOE Gi. aes OE ROOTES CU Kw He 8 8 Ka 20, 41
STATE CASES
Florida Power & Light Co. ae Canal
t] r . Fi da,
423 So.2d 421 (Fla. Dist. Ct. App. 1982)
(eee Cased ot gp. & t Bt+-3200; fas" 10: (CA 9, :

1994):

doctrine applies. See MacKay v.
Pfeil, 827 F.2d 540, 543-45 (9th

-~58-

Cir. 1987). (Our Emphasis. )
F “Ere 7 Lc ) ; x a
al Labor Relations Board, 805 F.2d 1353
(Schroeder and Fletcher, U.S. Circuit

Judges; Rosenblatt, U.S. Dist. Court
Judge), at 1356, fn. 2 (CA 9, 1986):

.Although the abuse of
discretion standard may be
appropriate for other forms of
abstention because they involve the
discretionary exercise of a court's
equity powers, [citations omitted],
application of the Younger
abstention doctrine is absolute.
Because a district court has no
discretion to issue iniunctive
relief in the Younger context,

District v. United States, 424 U.S.
at 816 n. 22, 96 S.Ct. at 1246 n.

22, the abuse of discretion stand-

ard is inappropriate. (Our
Enphasis. )
Partington v. Gedan, 880 F.2d at 116, at

129 (CA 9, 1989):

... such an attack on State ov.
Clarke implicates the Rooker-
Feldman doctrine forbidding lower
federal courts to sit in direct
review of state court judgments.
See District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462,
482-86, 103 S.Ct. 1303, 1314-16, 75
L.Ed.2d 206 (1983); Booker Vv.

Eidelity Trust Co., 263 U.S. 413,
415-16, 44 S.Ct. 149, 150, 68 L.Ed.

-$9-

362 (1923); see also MacKay v.
Pieil, 627: ¥. 20d 840, $43-46 (9th

Cir. 1987) (per curiam); Worldwide
ir, 805 F.2d

Church of God v. McNair
888, 890-93 (9th Cir. 1986)
(Worldwide Church of God).

Partington v. Gedan, 961 F.2d 852, at
864 (CA 9, 1992):

"4. Claims 2 & 7.”

“The district court dismissed
Claim 2 and Claim 7 on the ground
that it had iurisdictj
the Rooker-Feldman doctrine and the
Eleventh Amendment to grant the

~

relief requested. (Our Emphasis. )

.... although the plaintiff ‘ |
could challenge the i
constitutionality of the

state-court rule in federal aL,

p? So (oe)
163 3. Cs. wt 1317 (emphasis added);
accord Rooker v. Fidelity Trust
Co... 263 U.S. 413, 415-16, 44 S.Ct.
149)... 460, 66° 1. Bé. 262 43982).
Under the “Rooker-Feldman
doctrine, review of state court
decision may only be conducted in
the United States Supreme Court.
Lower federal courts may not review
such decisions.” (Our Emphasis. )

-60-

VII
THE COURT OF APPEALS SHOULD BE ORDERED
TO REMAND THE CASE TO THE UNITED
STATES DISTRICT COURT FOR A HEARING ON
THE INJUNCTION BOND AND DAMAGES TO THE
CITY BY VIRTUE OF THE WRONGFUL
INJUNCTION AND THE CITY’S RIGHT AS THE
PREVAILING DEFENDANT ON THE HUFFMAN
ABSTENTION DOCTRINE TO AN ATTORNEY FEE
UNDER 42 U.S.C. SECTION 1988 ON THE
GROUND THAT THE FILING WAS IN BAD
FAITH, FRIVOLOUS, UNREASONABLE AND
WITHOUT FOUNDATION.

The Court of Appeal should be
ordered to remand the case to the U.S.
District Court for:

(a) a further hearing on the
$20,000 injunction indemnification bond
and the damages to the City of Henderson
arising out of the Eleventh Amendment
injury and wrongful injunction of fcur
years duration [see Nintendo of
, ' I Lowi Gallo! Ic
Inc., 16 F.3d 1032 at 1036 (CA 9, Feb.
17, 1994)] which has prevented the City
from enforcing the City Council’s
quasi-judicial law enforcement Order

which revoked Nevada Entertainment's

right to operate in the City of

a

-61-
Henderson as an adult business; and
(b) a determination as to whether
the City of Henderson is entitled to an
award of an attorney fee at trial and on

appeal under 42 U.S.C. Section 1988, as

the prevailing defendant on the
Huffman-Middlesex abstention dectrine
issue under the test proscribed in

Hughes v. Rowe, 448 U.S. 5, 14, 101

S.Ct. 173, 178, 66 L.Ed.2d 163 at 198

(per curiam) and the City’s claims that

Nevada Entertainment filed the 42 U.S.C.

objective “bad faith, as _ those

terms are used in determining

attorney fees under the Common Law

rule and 42 U.S.C. Section 1988;

(2) with a fraudulent intent,

G2
) void Vv Lenin! 7
Nevada Supreme Court which was
certain to result in ae state appeal
from the City Council's
quasi-judicial finding of “fraud”
under the prevailing state

law precedent which considered the
identical problem in the fraudulent
procurement of a business license

issued pursuant to Nevada state law

in City of Las Vegas Vv. Nevada
Industries, inc... 772 P. 2d 1275
(Nev. S.Ct. 1989); and

(3) with the full knowledge of its
attorneys, who had ta substantial

U.S. Supreme Court precedents in Huffman
vy. Pursue, Ltd., supra, Middlesex Ethics
Commission v, Garden State Bar Exam, 457
U.S. 423, 432 (1982), Ohio Civil Rights

eT ee ee en ee

4
4

Pee ee en

Inc., 477 U.S. 619 (1986), and New

Council of New Orleans, 491 U.S. 350,

369 (1989), and Ninth Circuit cases

(World Famous Drinking Emporium v. City

of Tempe, 820 F.2d 1079 at 1081 (CA 9,
1989) (Kennedy concurring opinion);
¥ v7 ludici the Stat ;
Hawaii, 17 F.3d 1244 at 1248 and 1250,
fn. 10 (CA 9, 1994); Eresh International
Corp. v. Agricultural Labor Relations
Board, 805 ¥.2d at 1353, at 1356, fn. 2
(CA 9, 1986); Partington v. Gedan, 880
F.2d -Ot 2346,:° 8662428 [CCR Og | 89892:
Partington v. Gedan, 961 F.2d 852, at
864 (CA 9, 1992)], and their decision to
file t) vil tobte lemeuit t)

federal court rather than in the state

=64 . oe 27,: 4992
CITY OF HENDERSON, ) €Cyerk, Wek
et al., ) Dist. of Nevada
Defendants.) By Deputy ]
)

The parties have submitted this
matter for trial oon the briefs.
Plaintiffs seek a declaratory judgment
that certain ordinances of the City of
Henderson are unconstitutional and seek
to enjoin enforcement of tie
ordinances.

Facts

On April 4, 1989, the City of

Henderson enacted anew Zoning Code.

Among its provisions, the Zoning Code

limited the operation of adult
businesses to a newly defined
Commercial-Highway ("CH") zone. In

implementing the Zoning Code, the City

roughly adapted its old zoning map but
failed to create any CH zones.
Further, the City failed to designate
any CH zones until it adopted a new
zoning map on December 4, 1989.

In the interim, plaintiffs applied
for a business license to operate an
adult business. In response to this
application, plaintiffs were informed
that an adult business could only be
operated in aCH zone, that no CH zone
existed, that they would have to obtain
a zone change or variance, and that
they would have to obtain a conditional
use permit. Plaintiffs were also
informed that, until they had met these
conditions, their business license
would not be authorized.

Plaintiffs' subsequently filed a
new application for a license to
operate a general business, omitting
any reference to the adult nature of

the business. The City approved this

second application in September. On
February 1, 1990, plaintiffs opened an
adult business. The City immediately
commenced a revocation proceeding. In
April, the City found that plaintiffs
misrepresented the nature of their
business on the application and revoked
the license. Plaintiffs brought this
action to stay the revocation, arguing
that the various city ordinances are
unconstitutional.

Lack of Jurisdiction

As an initial matter, the court
notes that, contrary to the arguments
of the City, the Younger abstention
doctrine does not divest this court of
jurisdiction. This doctrine "anes not

arise from lack of jurisdiction in the

District Court, but from strong ~

policies counseling against the
exercise of such jurisdiction where
particular kinds of state proceedings

have already been commenced." Ohio

1-4

Civ. Rights Com'n v. Dayton Christian

Schools, 477 U.S. 619, 626 (1986). The
issue properly raised by Younger
abstention is not whether this court
lacks jurisdiction, but whether it
should abstain from exercising its
jurisdiction.

Abstention

This court is mindful of the
principle that "abstention from the
exercise of federal jurisdiction is the

exception, not the rule." Colorado

River Water Conservation District Vv.

United States, 424 U.S. 800, 813

(1976). Federal courts are especially
reluctant to abstain when First
Amendment issues are involved. Baggett
Vv. Bullitt, 377 U.S. 360, 379 .(1964);

Playtime Theaters, Inc. v. City of

Renton, 748 F.2d 527, 532 (9th Cir.

1984), rev'd on other grounds, 475 U.S.
14 (1986).

Previously, the City argued that

its action for declaratory judgment,
brought in State court, compelled
abstention. The City brought its state
court suit four months after this court
had entered a preliminary injunction in
this federal action. "Younger
abstention is required, however, only
when state court proceedings are
initiated 'before any proceedings of
Substance on the merits have taken

place.' Hicks v. Miranda, [422 U.S.

332, 349 §(1975))}. In other cases,
federal courts must normally fulfill
their duty to adjudicate federal
questions properly brought before

them." Hawaii Housing Authority v.

Midkiff, 467 U.S. 229, 238 (1984).
This court affirms its prior ruling
that the state court proceeding brought
by the City did not compel abstention.
The City now argues that
abstention is compelled by the City

Council hearing and decision which

revoked plaintiffs' business license.
This revocation proceeding, the City
asserts, remains pending for Younger
purposes. The City argues that
"[s}tate proceedings...for which the
state offers statutory appellate review
through its courts or otherwise, are
pending for Younger purposes from the
time it is [sic] initiated, until it
has [sic] completed the review
process."

This court is not persuaded that
the revocation proceedings remain
pending for purposes of abstention.
Not only must the state offer judicial
review, but this review must permit
review of the constitutional issues
raised by the proceeding. The vitai
consideration guiding a determination
of Younger abstention is comity: the
federal government's proper respect for
legitimate activities of state

government. Huffman v. Pursue, Ltd.,

__—_—_—__—$*“_+_aeee

1-7

420 U.S. 592, 601 (1975).

Abstention accords the state
judiciary the opportunity to oversee
constitutional issues arising in
litigation over which it has
jurisdiction. Id., 420 U.S. at 609.
Thus, *

before the City Council to revoke
Entertainment's license because >
Entertainment had misrepresented

nature of the business it intended
open. After a hearing, the City Cou
issued an order revoking the Lac
because of the misrepresentation

Nevada Entertainment s applicat

Rather than appealing this order to

ey

|

the

state district court, Ney
Entertainment filed this action
federal court challenging
constitutionality of the zoni
ordinances and seeking injun

relief.

6-4

The City argued the district court
was required to abstain under Younger v.
Harris, 401 iB. > OF (1971). The
district court rejected the abstention
Claim but granted judgment for the City
on the ground that under Dennis v.
United States, 384 U.S. 855 (1966),
Nevada Entertainment was’ barred from

cha’ 'enging the constitutionality of the

zoning ordinances because it had
obtained its license by fraud. Nevada
Entertainment appealed. The City

cross-appealed the court’s refusal to
abstain. We affirm the judgment of the
district court on the basis of Dennis
and dismiss the cross-appeal as moot.

I. NEVADA ENTERTAINMENT’S APPEAL

The district court properly
declined to consider the
constitutionality of the ordinances.

“One who elects [to commit fraud] as a

means of self-help may not escape the

consequences by urging that his conduct

6-5
be excused because the statute which he
sought to evade is unconsitutional. ™
Dennis, 384 U.S. at 867; gee also
Ancafora v. Board of Educ. of Montgomery

County, 491 F.2d 498 (4th: Cire: 12974
(teacher could not challenge dismissal
on the basis of discrimination where he
was dismissed because he lied on his
application). Nevada Entertainment's
license was not revoked because of the
nature of its business activity, but
rather because Nevada Entertainment's
application misrepresented the nature of
its business.

Nevada Entertainment argues the
district court should not have relied on
Dennis because the issue of fraud was
“never pleaded nor briefed. However,
the federal complaint for declaratory
and injunctive relief specifically
alleged “[pllaintiffs made no material
misrepresentations on their

application, and the City’s answer

ee ee Wein er te deine

6-6

denied the truth of this allegation. As
the district court recognized, the City
contended throughout the litigation that
the constitutionality of the ordinances
was not at issue since ‘the plaintiffs’

license was revoked because of their
own fraud, not because of the nature of
their business. The stipulated record
on which the case was tried in_ the
district court included transcripts of
the city council hearing, which was
devoted exclusively to the issue of
fraud. Nevada Entertainment had
adequate notice that its fraudulent
conduct was one of the issues in the
case.

Nevada Entertainment also argues
the administrative record is
insufficient to support the district
court’s finding of fraud because there
was no opportunity to present

“affirmative evidence to support’ the

contention that it was ‘induced to

6-7

falsify the license application.
However, the testimony on which Nevada
Fntertaiment relies to support this
inducement argument was in the record
before the district court, and Nevada
Entertainment does not point to any
additional evidence in support of its
argument or suggest it would have’ been
barred from presenting such additional
evidence to the city council. The
district court's finding of deceptive
conduct is amply supported by the
record.

Nevada Entertainment argues that
even if its conduct were deceptive, the
district court should have allowed some
“deception to permit Nevada
Entertainment to position itself to
challenge the constitutionality of the
ordinances. Nevada Entertainment offers

no reason why it could not simply have

challenged the denial of the original

6-8

application rather than submitting a

second, fraudulent application.
II. THE CITY'S CROSS-APPEAL
The City cross-appealed arguing
Nevada Entertainment’s’ entire action
should have been dismissed under
Younger. Since the City has'7 prevailed
in the district court and on appeal, any

discussion of the City’s argument would
be advisory. See Lindquist v. Idaho

State Bd. of Corrections, 776 F.2d 851,
853-54 (9th Cir. 1985). We decline to

reach the abstention issue and dismiss

the cross-appeal as moot.

The judgment of the district court

if AFFIRMED. The City’s cross-appeal is

DISMISSED as moot.

eT ee ene Se ent ee

PP 7

PETITION FOR REHEARING IN NEVADA
ENTERTAINMENT INDUSTRIES, INC. , ET
AL, v. CITY OF HENDERSON, El AL. .
NO. 92- 17054 [DC # CV-90-00264-LDG
Nevada (Las Vegas)], FILED MAY 18,
1994, FILED ON BEHALF OF THE CITY
OF HENDERSON ET AL.

[Reference: Petition at page
§, 6, 0068 21).

—— Ee le ale el a ll Me ie ee ee St ie, be
._ — eS ee oe ee

7-1
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 92-17054
No. 93-15052

NEVADA ENTERTAINMENT
INDUSTRIES, INC.,

a Nevada corporation
and DANIEL BISHOP [DISTRICT COURT
NO. CV-S-90-264
Plaintiffs & LDG-LRL ]

Appellants
vs.

CITY OF HENDERSON, a
Nevada Municipal
Corporation, JAMES
GOFF, CHIEF OF
POLICE OF THE CITY
OF HENDERSON,

Defendants &
Appellees

a ee ee

APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA,

HON. LLOYD D. GEORGE, DISTRICT JUDGE

PETITION FOR REHEARING

JAMES J. CLANCY (State Bar. No. 26946)
CAROL A. CLANCY (State Bar No. 065453)
9055 La Tuna Canyon Road
Sun Valley, California
(818) 352-2069
Attorneys for Defendants/Appellees

and Cross-Appellants

TABLE OF CONTENTS
;
_PAGE

TABLE OF AUTMOMITIEB. cbc. ec haa cot ii
g

PETITION FOR REHEARING.............05. 1

sna BE WR Os 6a a vas koe ka es 2

FACTS AND LAW WHICH THE

COURT: BUSBEDOREDI. 30403.000 26 0.e as. 2

AN APPARENT CONFLICT WITH ANOTHER

DECISION OF THIS COURT............005: 2

RE NEW ISSUE RAISED IN

mnOMAMNA DMOTBION........5...++.205. 2

RE NEW ISSUE RAISED IN

MEMORANDUM DECISION.............--005: 3

AEE «00 0's eh 4 SES kates als 3

7-4

TABLE OF AUTHORITIES

PAGE
FEDERAL CASES
ludici
the State of Hawaii,
i7 F.2d Seem Geel ic cctaves a a we»

805 F.2d 1353 (9th Cir., 1986)........ 14
Huffman v. Pursue, Ltd.,
430 U.8. Gee ct eeie ees 64a seks >. 2 8,

6, 7, & 10, 138, 14, id

| ) -
Lewis Galoob Toys, Inc..,
S64 Te ee eo od ors 8 he dace 15

W EF Drink: ; |
vy. City of Tempe,
620 F. 28 Bere GOe Ge BOER ace sete cess 11

CONSTITUTIONAL PROVISICNS
United States Constitution
Tenth Amendment............. a ae

Eleventh Amendment....... S. Be 2c 2
FEDERAL STATUTES
42 U.S.C.
TI St oe, ° ree ee 4. 8. is
Seet tom. Basa bh 6s 00 0 bees REO ewe 11

FEDERAL RULES
Ninth Circuit Rules,
et ae Lf ean ee ee ne ee ee 3

7-5
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 92-17054
No. 93-15052

NEVADA ENTERTAINMENT
INDUSTRIES, INC.,

a Nevada corporation
and DANIEL BISHOP [DISTRICT COURT
NO. CV-S-90-264
Plaintiffs & LDG-LRL ]

Appellants
Vs.

CITY OF HENDERSON, a
Nevada Municipal
Corporation, JAMES
GOFF, CHIEF OF
POLICE OF THE CITY
OF HENDERSON,

Defendants &
Appellees

ee ee ed

PETITION FOR REHEARING
TO THE CLERK OF THE COURT:

The City of Henderson, et al.
petition the Court to vacate its order
of April 7, 1994 and decision of May 4,
1994, in order to reconsider the City’s
Cross-appeal and whether the issues

presented therein are moot, in light of

certain material facts and law

© me ne a

7-6
overlooked by the Court, and an apparent
conflict with another Decision of this
Court; and to reexamine its order that
said memorandum ‘is not appropriate for
publication and may not be cited.

Respectfully submitted,

James J. Clancy
For Defendants/Appellees,
and Cross-Appeilants

City of Henderson a Nevade
Municipal Corporation, et al
Defendants/Appeliees and
Cross-Appellants (hereinafter its r
Henderson ) petition the Court for .

rehearing on the following grounce

FACTS AND LAW WHICH THE ‘OURT OVEBLOOKE!
l. Material pointe of fect ane ia

are overlooked in the court «@« Heaoreneus

decision of May 4, i9o4 and ' thie
Court's decision »» November 7 9
which applied the iae expressed

Huffman vy. —Pureue, Lie. 42 : $93
(1975), which vas *ithedraee by ts

Order, dated April 7. iv?

NI CONFLICT S118 AMUIEES
2 The law expressed ° thie
Court's November 2. iF?2 Opinioe *?
wae withdrawn with reepect ' the

applicability ff Butinag * the fect

situation of recore heres af ts

7-8

with the law expressed by another panel

of the Ninth Circuit in Ajona Vv.

Judiciary of the State of Hawaii, argued
and submitted November 1, 1993, and

decided March 3, 1994, which also
applied Huffman, but in a different
manner, which opinion was published in
the 17 F.3d, Vol. No. 2 advance’ sheets
(at 1244) dated April 25, 1994, and
received in the May 9, 1994 mail. Said
conflict with respect tc the application
of the Huffman test (rule of law),
expressed in the Ajgona case, was not

addressed in this Court’s opinions.

RE NEW ISSUE RAISED IN MEMORANDUM
DECISION

3. This Court’s order at page 1 of
its memorandum decision filed May 4,
1994, that said disposition is not
appropriate for publication and may not
be cited to or by the courts of this
circuit except as provided by Ninth

Circuit Rule 36-3, as applied to the

7-9
trial facts and law applied in this
cause, contravenes due process and equal
protection of the law principles
expressed in the federal constitution
and Common Law ‘precedent, which is
dependent upon and developed by a
comparison and resolution of the

conflicts in such cases.

RE NEW ISSUE RAISED IN MEMORANDUM
DECISION

4. The City’s cross-appeal is not
moot as held in this Court’s memorandum
decision, for all of the reasons stated
in 1-3 above.

ARGUMENT

The City of Henderson petitions
this Court:

(1) to vacate its order of April 7,
1994, which granted the Petition for
Rehearing of Plaintiffs/Appellants/
Cross-Appellees (hereinafter “Nevada
Entertainment’) and withdrew its opinion

(filed on November 2, 1993, and reported

7-10

at 8 F.3d (9th Cir. 1993), which cites
the Huffman case and holds it to to be a
controlling ‘precedent, as was argued
in the City of Henderson Cross-Appeal.
The November 2Z, 1993 opinion should be
amended to conform to the law expressed
in Ajona; specifically, its holding that
“a District Court must dismiss the
federal action...and there is no
' 7 ) “rT 7 Lief: ”

and

(2) to vacate the Court's
memorandum decision of May 4, 1994,
which adverts to certain (but not all)
of the trial facts which were before the
U.S. District Court, and affirms the
U.S. District Court’s Judgment on an

incomplete and erroneous recital of

trial facts, Without also considering
7 rol] itted f ) whic!
; t) Liat uw thi C t,

the most important of which is the fact

that an injunction was issued by the

7-11
U.S. District Court and is presently in
force as is the surety bond of $10,000,
which was filed by Nevada Title.

FIRST: At the outset of Nevada
Entertainment’s Civil Rights lawsuit
under 42 U.S.C. Section 1983, the U.S.
District Court erroneously issued, over
the City of Henderson's objections,
both:

(1) a temporary restraining
orde. on April 27, 1990, and

(2) a preliminary injunction
on June 4, 1990, which injunction
is still in effect, having been
continued pending disposition of
this appeal by order of this Court,

dated December 22, 1992).

The Federal Courts have, for 4 period of
from applying the laws of the State of

Nevada with respect to issuance and

enforcement of a quasi-judicial

administrative order relating to a

a ee eo

7-12

license revocation proceeding before the

Henderson City Council, which was

coercive in nature. Said state order:

(a) was subject to appeal in
the state court system, and review
thereof was ‘pending in the state
System, when the Civil Rights
Complaint was wrongfully filed by
Nevada Entertainment for the
purpose of interfering with the
Nevada proceedings in contravention
of the Eleventh Amendment, and

(b) became final and fully
enforceable under Nevada state law,
well before the occurrence of the
U.S. District Court trial of said
Civil Rights Complaint, in which
the jssues 0f fraud and the

Let rt) City’ 7
wits = Li 7
were relitigated, in contravention

of the Eleventh Amendment to the

U.S. Constitution.

7-13
Since the quasi-judicial order was not
appealed in state court, it became final
and is fully enforceable under Nevada
state law, and was entitled to
recognition by the U.S. District Court,
and by this Court of Appeal, in that:

(1) The City Council’s
quasi-judicial order had been lawfully
rendered and should have been’ regarded
by the federal courts as res judicata
and/or collaterally estopping the
Federal Plaintiffs; and

(2) Federal injuctive power here
has been wrongfully used _ to enjoin
enforcement of valid state laws and
valid and enforceable state decisions
under the test customarily applied in
equity cases involving injunctive
issues, without the requisite additional
circumstances which is mandated by the
Huffman test in cases where Huffman is

pleaded as a valid defense. The

we
tgecnennne ane een ee

Aiea AE RE RS REE NE ON EAN AS NEIL AEA SET RI AED

set RR ip a ait tay

'
:
|
'
i
'

7-14

memoradum decision, dated May 4, 1994,

(a) use of a Federal
Civil Rights Action under 42
U.S.C. Section 1983, by a
citizen of the state of
Nevada, to restrain the State
of Nevada from enforcing valid
state laws and valid state
decisions; and
(b) constitutes an
invalid federal intrusion into
the operations of the
judiciary system of the state
of Nevada, with respect to
judicial rev ew of state
orders.
Under the 10th Amendment, Nevada
(and its agent, the City of Henderson)
is entitled to the free exercise of its
Police Powers, and Nevada is entitled to
control the development of the rules and

procedures regarding the issuance and

7-15
judicial review of state orders issued
pursuant to its Police Power.

Under the 1ith Amendment, the
judicial power of the United States does
not extend to any action commenced and
prosecuted against Nevada by its own
citizen, over the objection of Nevada.
To restrain the City of Henderson in the
enforcement of its laws (regarding the
issuance of revenue-based municipal
business Licenses) requires the
restraint of valid state laws and the
entire operation of the judicial system
of the state of Nevada, with respect to
judicial review of such orders, and the
determination of the finality and
enforceability of such orders.

The federal judiciary enjoined the
operation of valid state laws without
cause. The reasoning expressed in the
memorandum decision of this Court, dated

May 4, 1994, and the court’s judgment

with respect to the propriety of the use

ee eee ee en Lo ae

7-16

of federal injunctive power, violates
the 10th and 11th Amendments of the U.S.
Constitution, and flies in the face of
the Huffman test (Rule of Law) mandated
by the U.S. Supreme Court (which
precludes the issuance of such an
injunction where the proponent fails to
plead the additional facts which Huffman
requires). This Court does not address
that distinction in its opinions. See
Aiona, discussed at page 9 infra.

SECOND: The U.S. District Court
preliminary injunction, which was
erroneously issued on June 4, 1990, and
continued by this Court on December 22,
1992, and has barred the City from
taking action for approximately four
years (in violation of the 10th and 1ith
Amendments), is presently in force

THIRD: At the hearing in the U.S.
District Court, the

City opposed the issuance of an

injunction on the grounds that the U.S.

7-17
District court could not grant equitable
relief in the nature of an injunction
because of the Equity “clean hands”
maxim which bars the courtroom to those
who have acted fraudulently.

At the trial of the Civil Rights
Lawsuit on November 27, 1992 (two and
one-half years after the granting of
injunctive relief), the U.S. District
Court again refused to apply the Huffman
Test (Rule of Law) as mandated by the
U.S. Supreme Court and instead,
proceeded to reexamine the facts which
were found in the Hender n City
Council’s quasi-judicial hearing under
Nevada law, finding and declaring that
the City Council’s “fraud finding was
proper (i.e. was not ultra vires), and
thereby establishing as a proven fact
that, in entertaining jurisdiction over
the Civil Rights Action, the Court’s
determination was in violation of the

Huffman test (Rule of Law) and the Tenth

7-18
and Eleventh Amendments.

Rather than affirming that the
Huffman test (Rule of Law) applied to
the federal complaint and prohibited the
Court from exercising jurisdiction and
issuing an injunction, the U.S. District
Court lifted its preliminary injunction
and decided the case on the merits,
denying federal relief on ne very
grounds that the City had urged to
prevent issuance of any federal
injunction at the time preliminary
relief was issued (i.e. that the Equity
maxim precluded the Court from assuming
jurisdiction). On December 22, 1992,
the Ninth Circuit stayed the U.S.

District Court’s Order and wrongfully
continued that injunction jin further

violation of the Huffman test (Rule of
Law) and the Tenth and Eleventh

Amendments.
The Court of Appeal’s May 4, 1994

memorandum decision flies in the face of

7-19

the test (Rule of Law) which was
declared and mandated by the U.S.
Supreme Court in Huffman v. Pursue.
Ltd., 420 U.S. 592 (1978), for the
purpose of preventing a potential Tenth
and Eleventh Amendment conflict similar
to that which had occurred in Huffman.
By reexamining the facts which had been
before the Nevada quasi-judicial body to
permit the Court to arrive at its own de
novo finding of “fraud (an _ inherent
violation of the Huffman Rule which
contravenes’7 the Tenth and Eleventh
Amendment), and denying federal
jurisdiction on that ground, the U.S.
District Court and this Court of Appeal
has repeated the very error that the
Huffman Rule of Law was designed to
prevent.

FOURIH: The opinion of the Ninth
Circuit panel in Aijona v. Judiciary of

the State of Hawaii, 17 F.3d 1244 (Mar.
3, 1994) (Poole, Wiggins, T.G. Nelson)

ee a e

EP EP WER NNO

7-20
specifically held the rule of law to be

that which the trial court and this

Court of Appeal has refused to

acknowledge; that is. that the Plaintiff

TTC , of '
circumstances. See 17 F.3d 1244, at
1248-1249:

“Under the_Younger abstention
doctrine, a federal court in most
circumstances may not interfere
with pending state criminal or
civil proceedings, including state
administrative proceedings. Ohio
Civil Rights Comm ny. Dayton
Christian Schools. tinc., 477 U.S.
619, 106 §.Ct. 2718, 91 L.Ed.2d 512
(1986); Bonwin vy. Dunham, 818 F.2d
675, 677-78 (8th Cir. 1987)
(administrative proceeding
regarding suspension of driver's

license for speeding). Abstention
is appropriate in favor of state
proceedings if (1) the state

proceedings are ongoing, (2) the
proceedings implicate important
state interests, and (3) the state

proceedings provide the pieretiftt
an adequate opportunity te fitigete
federal conetitutional quest ome

Middlesecs Coumiy =!ldica ——-_ he
Garden Siete... Bat.Ases.2 667 i

423, 432, 102 &.¢€t 25i6. a>at ra
!. Ed.26 116 (1962): eeeere iteee

. 505 Ff. $257
1357-56 (9th Cir. 1986) il... meee
Lae 4

federal action ... Jamel Lees * Pe
no discretion to acael. sssmeeiiee
reliel Ecaah lal i._t ere. 0%
F 24 et 1386 (citing Caletege Ainge
Sater Conservalion Bisi.._t.. nhs 143
States. 424 U.S. 800 e316 a. 22 »
Ss. ct 1236. 12746. 47 L.84.28 883
(1976) iOwr tapheerie

U.S. et 5$2-66 1 S.Ct e' 7S5
For eranp ie :f . stetete«
fiegrentiy end petentiy ,ie@letee
euiprese aet ites "*
prohibitions ia every . @ee*
sentence etd oareegr ee” ‘hee
federal iantervent ioe *» state
proceedings is ereroe? ete ?

Ser -Eeaphesrie

Here state eter. eaietret ive

proceed ings en? we _
proceedings were aQGo-. ." ‘ te
tine the Sieaiatitte : e? Hie
section 1987 ect ioe sae ‘he
Thie i@ the game “'* 3 a) :

oe befere the we * 4 t< se'%s

7-22

plaintiffs do not contest that’ the
state has an important state
interest in keeping drunk drivers
off the road [footnote omitted].
Thus, the first two prongs of the

Younger test are met.
“In addition, the third prong

of the abstention inquiry -- the
adequacy of opportunity to raise
constitutional issues -- is
satisfied by the plaintiffs’

ability to raise constitutional
Claims during judicial review of
the administrative proceedings.

Haw. Rev. Stat. Section 286-260
(court may review whether director
exceeded constitutional or

statutory authority); gee Dayton
Christian Schools, 477 U.S. at 629,

106 S.Ct. at 2724 (even if
constitutional claims cannot be
raised in an administrative

proceeding, it is ‘sufficient

[that they] may be raised in state
court judicial review of the
administrative proceeding’);

Partington v. Gedan, 880 F.2d 116,
124 (9th Cir. 1989) (same), vacated

in part on other grounds, 497 U.S.
1020, 110 S.Ct. 3265, 111 L.Ed.2d

776 (1990) [footnote omitted]. ~

{Our Emphasis. ]

FIFTH: The City contends that its
cross-appeal, under the law expressed
above in Ajiona, supra, is not moot, for
the reasons expressed in the

“Conclusion to its response to Nevada

Entertainment's Petition for Rehearing

7-23

of this Court’s November 2, 1993 opinion
(which held that Huffman applied but

would not express the law to be as was

further upheld and explicated in Aiona).

In its Conclusion, the City argued at

pages 7-9:

Conclusion

“Appellant City of Henderson
is of the view that this Court's
three judge panel opinion, reported
in 8 F.3a, at 1348-1353, is
eminently correct in so far as it
has applied the Huffman abstention
doctrine to the narrow trial facts
which were before the United States
District Court.

“The City of Henderson in this
regard, however, makes these
further contentions:

"€1) The Court's opinion
would have greater value to other
federal appellate courts and
litigants were it to more fully
elaborate upon what it meant at
page 1350, when it referred to The
considerations relied upon in

' Did the Court mean, 4&8
the City of Henderson concluded,
that the United States Supreme
Court fashioned the Huffman rule
(as to civil litigants) for the
guidance of federal district courts
so as to require them to abstain or
require “heightened pleadings
where the pleadings show a4 strong
probability that the assumption of
federal jurisdiction would lead to
the type of Tenth and Eleventh
Amendment infringement of state

7-24

powers which occurred herein, as
corroborated by the United State
District Court’s finding of fraud,
retrospectively applied?

"3D The cases cited by
Nevada Entertainment and the Amicus
Curiae do not affect this Court’s
opinion in as much as they are not
apposite in this Huffman-type
appeal which is controlled by an
extremely narrow set of facts.

Further, their analyses are
defective in their apparent failure
to weigh in the balance “the
considerations relied upon in

Huffman. The City of Henderson is
of the further view that were this
Court's opinion to be expanded to
include an elaboration of its
language “The considerations relied
upon in Huffman, this Court's
opinion would materially alter the
manner in which the Huffman
Doctrine is applied in those cases.
It would appear, however, that if
such opinion is not expanded, a
substantial federal question will
be raised which may require
resolution by the United States
Supreme Court.

“(3) Finally, the City is of
the opinion that this Court's
opinion requires a remand to the
trial court for the exercise of the
district court’s discretion on the
question of attorney's fees, in the
light of the entire record
(including this Court's opinion
that the trial court erred in that
the Huffman Doctrine should have
been applied), and the City of
Henderson's claim that,
notwithstanding Nevada
Entertainment's attorneys had both
subjective and objective knowledge

7-25

from existing case law that the
narrow facts of record established
a clear case for application of the

Doctrine, they,
neverthless, recklessly continued
such litigation by remaining silent
and refusing to address the City’s

arguments on the jurisdictional
aspects.
This Court’s November 2, 1993 opinion

with respect to the application of
Huffman should be reinstated and amended
to conform to Aiona, and remanded for
determination of an award of a
reasonable attorney fee in favor of the
City of Henderson under 42 U.S. 1988,
for assessment against the Bond which
was filed by Nevada Entertainment.
SIXTH: In four years of appellate
litigation, which included two pre-trial
applications to the Ninth Circuit Court
of Appeal on extraordinary petitions for
a writ of mandate and two applications
to the U.S. Supreme Court on (pre-trial)
petitions for writs of certiorari, the
City of Henderson has_ contended that

certain panels of the Ninth Circuit are

7-26
ignoring the Huffman test (Rule of Law)
which the U.S. Supreme Court has
mandated. Representative of that split
of opinion is the differing opinions of
Circuit Judges Kennedy and Tang in World

Famous Drinking Emporium v. City of
Tempe, 820 F.2d 1079 (CA 9, 1987). See

City of Henderson's Opening and
Answering brief, at page 10 reading:

“There appears to bea split
of opinion within the Ninth Circuit
on this issue, as demonstrated by
the Ninth Circuit’s handling of the

matter in World Famous Drinking

Emporium, Inc. v. City of Tempe,
820 F.2d 1079 (CA 9, 1987) {Tang
and Kennedy]. The concurring
Opinion of then-Circuit Judge
Kennedy clearly follows the
approach of the Sixth Circuit,
which holds that it is
‘jurisdictional,’ and that a
dismissal is mandated. ™

The City of Henderson contends that this
Court's November 2, 1993 opinion (which
addressed the Huffman issues) should not
have been withdrawn but should have been
modified.

All that this panel need do to

7-27

bring its interpretation of Huffman, as
set forth in its opinion dated November
2, 1993, into compliance with the rule
of law expressed in the Ajona case,
which the City contends is clearly the
law under the U.S. Supreme Court mandate
in Huffman, would be to add the
following sentence appearing in the

Aiona case at page 1248:

ae S these three circumstances
exist, then a ‘district court must
dismiss the federal action... and
there is no
discretion to grant injunctive
relief.’

SEVENTH: The City contends that,
in the light of the present legal
controversy over the meaning of the
Huffman test (Rule of Law) which has
existed for the past three years as
noted above, this Court cannot,
consistent with due process and equal
protection of the law principles of the
federal constitution, and the evolution

of common law “precedent which depends

7-28

upon the correct resolution of such
disputes, issue an order which precludes
the decisions of this Court from being
cited and considered in the Ninth and
other Circuits of the federal court or
in State Courts, in relation to the
subject of such raging controversies,
and such order should be vacated.

EIGHTH: At oral argument, Chief
Judge Browning inquired as to why the

jurisdiction issue (re federal courts)

was so important to the City’s
interests. A partial explanation
follows:

The record clearly indicates’ that
there was no reasonable basis for the
U.S. District Court to grant the
injunctions issued herein (i.e. the
temporary restraining order and the
preliminary injunction). Federal
injunctive relief allowed Federal

Plaintiffs to freely conduct their

operations in defiame of State law

7-29
pending “adjudication on the merits, ,
without making the requisite factual
showing of “extraordinary
circumstances, | as required by
Younger-Huffman. The City has suffered
irreparable harm by being restained for
a period of four years from enforcing
valid state laws and valid state
decisions.
ae t ;
federal iniunctive power that has
’ Ta? Fed | Plaintiff
hielded t! t] (
their f£ ‘lan! luct 1 which 1
bled tl uct thei ' :
bstantial rit
in defiance of Nevada state law. The

disposition of this case by this Court

of Appeal is grossly unfair. By failing
to address the improper exercise of
federal injuctive relief and by refusing
to apply the Huffman test, the Court's

action will only serve to encourage the

7-30

multiplication of fraudulent conduct.
This is because the Court, in effect,
has rewarded and encouraged the filing
of federal complaints under 42 U.S.C.
Section 1983, accompanied by requests
for injunctive relief pending ‘final
adjudication on the merit, as a method
of ‘buying time” for recalcitrant
business operators.

Fresh International Corp, ov.
Agricultural Labor Relations Bd., 805
F.2d 1353 (9th Cir. 1986), cited with

approval in Aiona, supra, states that:

“When a case falls within the
proscription of Younger, a district
court must dismiss’ the federal
action. See Judice v. Vail, 430
U.8. 327¢ 3376 :OF' B.C A2Bhi4 1246,
51 L.Ed.2d 376 (1977). The Supreme
court has stated expressly that
‘[wlhere a case is properly within
{the Younger! category of cases,
there is no discretion to grant

injunctive relief.’ Colorado River

Water C District
United STates, 424 U.S. 800, 816 n.
22, 96 S.Ct. 1236, 1246 n. 22, 47

L.Ed.2d 483 (1976). °

In a quasi-judicial administrative

proceeding, Federal Plaintiffs were

7-31
found to have been guilty of fraud,
having made misleading statements and
misrepresentations in connection with
their application for a4 City business
license. A deliberate misrepresentation
to a governmental licensing agency can
never be immaterial. The manner in
which the federal courts have handled
this case has caused irreparable harm to
the City of Henderson, as Was stated to
the U.S. District Court by the City in
oral argument opposing the issuance of a
temporary restraining order {see

Reporter's Transcript for April 27, 1990

(hearing on temporary restraining
order), appearing at Appellees’
Supplementary Excerpts of Record
(hereinafter referred to as "SER"), at

Fxhibit 18, pages 13-14]:

“The harm -- there is irreparable
harm to the City because what it
does, this type of case sends a
message to the public that it's
okay to make misrepresentations,
that it’s okay to lie on your
application form if you don't agree

7-32

with an ordinance of the City, and
the, if the City should find out
about it and seeks to revoke your
license, then all you have to do is
seek equitable relief to stay open.
And that is contrary to the
fundamental principle of he _ who
comes into a court of equity must
come with clean hands. And that
is exactly the situation we have
here.”

See also SER 18, at page 15:

“The real issue here is
whether the City may revoke a
license for fraud. And I just want
to read a quote from a case, New

York Football] Giants, Inc.., versus

Los Angeles Chargers Footbali Club,
Inc., 291 F.2d 471 at 474, a 1961
case. Quote, "We think no party
has the right thus to create
problems by its devious and
deceitful conduct and then approach
a court of equity with a plea that
the pretended status which it has
foisted on the public be ignored
and its rights be declared as if it
had acted in good faith
throughout.’

Immediately thereafter, at SER 18, page

16, the Federal Plaintiffs clearly

indicated that they wanted to ‘reargue

to the Federal Court matters decided by
the state quasi-judicial administrative
decision:

“....We do not concede that

7-33

the application was false or
fraudulent....

"Once this case reaches’ the
merits, we're going to have

evidence before this Court, as we
did present before the Henderson
City Council, that the City Council
and the City officials knew ail
along what this business was going
to be like, that nobody was fooled,
and that the application form
itself was not deceptive of an
official --—

It is clear from the record that
the U.S. District Court had no
discretion to grant injunctive relief.
The U.S. District Court, in issuing its
Temporary Restraining Order and
Preliminary Injunction, required that

Federal Plaintiffs post a bond in the

amount of $10,000 and $20,000,
respectively. The City of Henderson
contends’ that it is entitled to

forfeiture of the entire amount as part
of the costs and damages the City has
incurred during the four-year pendency

of the federal injunctions which

ultimately never should have issued.

|

7-34
Galoob Toys. Inc., 94 DJ DAR 2055.

Dated: May 17, 1994

Respectfully submitted,

James J. Clancy

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1691%3A1. Public record. Not legal advice.