Opposition Brief — City of Seattle v. Furfaro

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No. 01-1316 OFFICE OF THE CLERK

In The

Supreme Court of the United States

CITY OF SEATTLE,

Petitioner,

NICK FURFARO; BRANDY KIDDER;

ESMERALDA SILVA; AND JJR, INC.,

- Respondents.

On Petition For A Writ Of Certiorari To The

Supreme Court Of The State Of Washington

& an

BRIEF IN OPPOSITION

JEFFREY L. FISHER Givpert H. Levy

Davis WriGHT TREMAINE LLP Counsel of Record

2600 Century Square 200 Market_Place Two

1501 Fourth Avenue 2001 Western Avenue

Seattle, Washington Seattle, Washington

98101-1688 98121

(206) 622-3150 Phone (206) 443-0670 Phone

(206) 628-7699 Fax (206) 448-2252 Fax

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

CONSTITUTIONAL PROVISIONS AND STATUTES... 1

PUPRR MEMS GOP BREE GA cece seks cseasvacees 3

A. When Petitioner’s Mischaracterizations Of The

Record And The Holding Of The Washington

Supreme Court Are Corrected, It Is Clear That

Neither Of The Questions Presented In The Peti-

tion Are Worthy Of Review ................... 9

B. This Court Lacks Jurisdiction To Grant The Peti-

tion Because the Judgment Isn’t Final.......... 15

oe | are re ee ee ee ee ee 20

TABLE OF AUTHORITIES

Page

Cases

Brinegar v. United States, 338 U.S. 160, 69 S. Ct.

1302, 93 L. Ed. O79 (200e c.5 55 sca ceaweseeneeeeks 11

City of Erie v. Pap’s A.M., 529 U.S. 277, 120 S. Ct.

1382, 146 L. Ee.2e BaD Gales vse eee ey eseeeensceen 12

Cox Broadcasting v. Cohn, 420 U.S. 469, 95 S. Ct.

1079, 43 L. Bd. 20 See C0Rae ce esnnceaeeeens passim

Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248,

60 L. Ed.2d S24 €29795. 3222405 ese eee 11

Jefferson v. City of Tarrant, 522 U.S. 75, 118 S. Ct.

421, 139 L. Ed. 2@ G33 Qos acca ee 16, 18

Miller v. California, 413 U.S. 15, 93 S. Ct. 2007, 37

L. Ed.2d 419 (1979). <0... 555 see 10, 11

O'Day v. King County, 109 Wn.2d 796, 749 P. 2d 142

(1988)... cca sas ese 9, 10, 11, 13

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 65

S. Ct. 1475, 89 LL. Bae Se eee a ceca eee eee 16

STATUTES AND RULES

Article I, § 5 of the Washington Constitution......... 1

Article |, § 7 of the Washington Constitution......... 1

Seattle Municipal Code § 6.270.100............ 4.3, 5,9

Title 28 United States Code § 1257(a) ............. 1, 16

Title 42 United States Code § 1983............ eee

Washington Rule of Appellate Procedure 4.2(a)(4) ..... 6

Washington Rule of Appellate Procedure 4.2(e)....... 6

Washington Rule of Appellate Procedure 12.5(a)..... 15

Washington Rule of Appellate Procedure 13.7(b)...... 7

ili

APPENDIX

Rep.Tr., Dec. 9, 1997, pp. 52, 63-65 (Witness Kid-

EA A ee eer App.

ee ee et wob eka se bonnes wes App.

Rep.Tr., Dec. 11, 1997, pp. 1-11

EE App.

Rep.Tr., Dec. 15, 1997, pp. 31-33

EPP OTT TEPER ETELET TTS _-App.

Furfaro v. Seattle, Washington Supreme Court No.

58971-7 Order Recalling Mandate,

Jan. 7, 2002 ee ane ewe wai Wa we ae oe App.

Furfaro v. Seattle, Washington Court of Appeals

No. 43409-8-I Request for Briefing Letter, Mar.

eo eer Cee Leeds oc be We eke uae eee App.

CONSTITUTIONAL PROVISIONS AND STATUTES

Title 28 United States Code § 1257(a) provides:

Final judgments or decrees rendered by the

highest court of a State may be reviewed by the

Supreme Court by writ of certiorari where the

validity of a treaty or statute of the United

States is drawn in question or where the validity

of a statute of any State is drawn in question on

the ground of its being repugnant to the Consti-

tution, treaties, or laws of the United States, or

where any title, right, privilege or immunity is

specially set up or claimed under the Constitu-

tion or the treaties or statutes of, or any commis-

sion held or authority exercised under, the

United States.

Article I, § 5 of the Washington Constitution pro-

vides:

Every person may freely speak, write and pub-

lish on all subjects, being responsible for the

abuse of that right.

Article I, § 7 of the Washington Constitution pro-

vides:

No person shall be disturbed in his private

affairs, or his home invaded, without authority

of law.

In the pertinent part, Seattle Municipal Code

§ 6.270.100 provides:

A(2) No employee or entertainer shall perform

acts of or acts which simulate:

a. Sexual intercourse, masturbation, sod-

omy, bestiality, oral copulation, or any sex-

ual acts prohibited by law;

b. The touching, caressing or fondling of

the breasts, buttocks, or genitals; or;

c. The displaying of the pubic region,

anus, vulva, or genitals; except as provided

for in subdivision 1 of this subsection.

This chapter shall not be construed to pro-

hibit expression, such as:

1. Plays, operas, musicals, or other dra-

matic works that are not obscene.

2. Classes, seminars, and lectures held for

serious scientific or educational purposes

that are not obscene; or

3. Exhibitions, performances, expressions

or dances that are not obscene.

D. For purposes of this chapter, an activity is

“obscene” if:

1. Taken as a whole by an average person

applying contemporary community stan-

dards the activity appeals to a prurient

interest in sex;

2. The activity depicts patently offensive

representations, as measured against com-

munity standards of:

a. Ultimate sexual acts, normal or per-

verted, actual or simulated; or

b. Masturbation, fellatio, cunnilingus,

bestiality, excretory functions, or lewd

exhibition of the genitals or genital

area, or violent or destructive sexual

acts, including but not limited to

human or animal mutilation, dismem-

berment, rape or torture; and

3. The activity taken as a whole lacks

serious literary, artistic, political, or scien-

tific value.

STATEMENT OF THE CASE

Rick’s is a non-alcoholic nightclub in Seattle that

features nude dancing by female entertainers. Individual

dancers perform strip tease routines in rotation on a stage

accompanied by pre-recorded music. Each dance lasts

two to three minutes, the length of a song.

On November 20, 1995, Seattle Police Detective Ken

Swanson entered Rick’s in an undercover capacity. As

part of a pre-planned vice unit operation, Detective

Swanson was investigating whether dancers were violat-

ing Seattle Municipal Code § 6.270.100, subsection (A)(2),

by touching themselves on the breasts, buttocks, genitals

or anus, or engaging in simulated masturbation, while

performing on stage. Detective Swanson sat in front of

the main stage and using a hidden tape recorder,

recorded his observations of each of the dancers as they

performed in succession on stage. Detective Swanson

would turn on the tape recorder and make a verbal

notation when he saw dancers touch or “massage” them-

selves in their private areas. However, he made no effort

to observe the entire performance, nor to determine

whether it was obscene.

After recording his observations, Detective Swanson

left the business and met with other vice unit officers at a

pre-arranged location. A group of officers then entered

Rick’s and arrested thirteen dancers and the manager

based on Detective Swanson’s observations. When the

officers entered the business, the lights were turned on

and the customers were invited to leave. The dancers

who were arrested were required to change clothes, hand

over their costumes as evidence, and were taken to jail.

The business was closed for approximately an hour and

twenty minutes while the arrests were being made.

It was uncontested at trial that all acts leading to the

arrests occurred while the individual dancers were per-

forming a dance. (Resp. App. 10-20.) In his testimony,

Detective Swanson described the dancing of Darcy Poole,

one of the entertainers arrested in the raid. He testified

that Poole was dancing and moving “in sync” with the

music. She did not stop dancing to touch herself but the

touching was interspersed throughout the entire perfor-

mance. The touching lasted two to three seconds. Poole

removed her costume slowly as part of a strip tease

routine. Detective Swanson testified that all the perfor-

mances that he observed that day were similar to that of

Poole. All the entertainers appeared to be dancing and

the touching was part of their dance.

In making their determination of probable cause, the

arresting officers were exclusively concerned with

whether dancers touched themselves on prohibited body

parts. They paid no attention to the performances as a

whole and did not consider obscenity. Captain Dan

Oliver, the commanding officer of the operation, testified

that if a dancer was observed touching herself on the

breast she would be arrested, “even if she was doing a

ballet”. (Resp. App. 23.)

All of the dancers who were arrested were charged in

the Seattle Municipal Court with violating Seattle Munici-

pal Code § 6.270.100. One of the dancers went to trial and

was acquitted. The charges against the remaining dancers

were dismissed. Thereafter, the Respondents filed this

civil action in state court. Respondents sought injunctive

and declaratory relief and damages pursuant to Title 42

United States Code § 1983 based upon violation of their

rights under the First, Fourth and Fourteenth Amend-

ments. They also sought injunctive and declaratory relief

based upon violation of their rights under the freedom of

expression and privacy provisions of the State Constitu-

tion. Respondents claimed that the arrests were unlawful

because the arresting officers failed to consider whether

their performances were obscene and they failed to

obtain a warrant.

Prior to trial, the trial court granted partial summary

judgment to the City, ruling that the police were not

required to obtain a warrant, and that the individual

officers named as defendants in the lawsuit were

immune. The matter then proceeded to trial on the issue

of probable cause and damages. The trial court reserved

ruling on the claims for injunctive and declaratory relief

under the State Constitution until after trial. In the course

of its deliberations, the jury sent out a written question

asking whether the officers were required to consider

obscenity in making their determination of probable

cause. Over objection, the trial court instructed the jury

that the officers were required to consider obscenity in

making an arrest for expression but not if they were

making an arrest for conduct. The jury proceeded to

return a verdict for the City. Following the verdict, all of

Respondents’ remaining claims were dismissed.

Respondents appealed the judgment directly to the

Washington Supreme Court, which transferred the case to

the Court of Appeals.! In their brief, Respondents argued

that the arrests were unlawful under both the federal and

state constitutions. The Court of Appeals reversed the judg-

ment holding that the police violated the First and Fourth

Amendments when they arrested Respondents for their

stage performances, without first obtaining a judicial deter-

mination of obscenity. (Pet. App. 28-45.) The Court of

Appeals remanded the case for trial on damages under 42

U.S.C. § 1983 and for injunctive and declaratory relief under

the federal and state constitutions. (Pet. App. 45.)

Before the remand order could be carried out, the

City petitioned for review of the Court of Appeals’ deci-

sion by the Washington Supreme Court, and the request

for review was granted. A majority of the Washington

Supreme Court affirmed the judgment of the Court of

Appeals but on different grounds. (Pet. App. 2.) The

Court held that a warrant was not required under the

First and Fourth Amendments and that Respondents’

state constitutional claims did not give rise to a cause of

1 Under the Washington Rule of Appellate Procedure

4.2(a)(4), a party may seek direct review of a trial court decision

by the Washington Supreme Court if the case involves, “a

fundamental and urgent issue of broad public import which

requires prompt and ultimate determination”. After the appeal

is filed directly in the Washington Supreme Court, the Court

may decide that grounds for direct review do not exist, in which

case the matter is transferred to the Court of Appeals. See, RAP

4.2(e).

action under Title 42 United States Code § 1983. However,

the Washington Supreme Court held that the police were

required to consider obscenity in their determination of

probable cause and therefore the jury was erroneously

instructed that obscenity need not be considered. The

case was remanded for a trial on the question of whether

there was probable cause to believe that the dancing was

obscene, and damages under § 1983.

Respondents filed a timely motion for reconsidera-

tion in the Washington Supreme Court. In the motion,

Respondents argued the Court incorrectly stated in its

opinion that the only issue raised on appeal was Respon-

dents’ claim for damages under § 1983 and the Court

failed to address their claim for injunctive and declara-

tory relief under the state constitution. Respondents

asked the Court to either consider the merits of their state

constitutional claims or remand them for determination

by the Court of Appeals.2 The Washington Supreme

Court granted reconsideration and changed its opinion.

In the order granting reconsideration, the Court deleted

the language from its opinion which precluded Respon-

dents from seeking injunctive and declaratory relief

under the federal and state constitutions and it remanded

the case to the Court of Appeals, “to consider the

2 RAP 13.7(b) in the pertinent part provides, “If the

Supreme Court reverses a decision of the Court of Appeals that

did not consider all the issues raised which might support that

decision, the Supreme Court will either consider and decide

those issues or remand the case to the Court of Appeals to

decide those issues.”

availability of injunctive and declaratory relief under the

state constitution and issues left unresolved by this opin-

ion.”

REASONS FOR DENYING THE WRIT

Respondents maintain that the Washington Supreme

Court incorrectly interpreted and applied federal law, but

not for the reasons set forth in the petition.? In seeking to

invoke this Court’s certiorari jurisdiction, Petitioner has

misstated the facts and mischaracterized the holding of

the Washington Supreme Court. When these mischarac-

terizations are exposed and clarified, it becomes apparent

that the Washington Supreme Court’s rulings about

which the City complains are unworthy of review. In any

event, this Court lacks jurisdiction to entertain the peti-

tion because the judgment in state court is not final and

there are unresolved issues of state and federal law.

Moreover, in its present posture, this case does not fall

within any of the exceptions to the final judgment rule set

forth in this Court’s decision in Cox Broadcasting v. Cohn,

42) U.S. 469, 95 S. Ct. at 1079, 43 L. Ed.2d 328 (1975).

Therefore, the petition should be denied.

* As argued in their conditional cross petition, Respon-

dents maintain that the Washington Supreme Court erred in

failing to require the police to obtain a warrant and in

permitting the police to vindicate their arrests through an after-

the-fact determination of probable cause.

A. When Petitioner’s Mischaracterizations Of The

Record And The Holding Of The Washington

Supreme Court Are Corrected, It Is Clear That Nei-

ther Of The Questions Presented In The Petition

Are Worthy Of Review

Contrary to Petitioner’s claims, the Washington

Supreme Court did not extend significant new federal

protection to adult entertainers, did not hold that all

conduct occurring on a stage is presumptively protected

expression, did not grant First Amendment protection to

lap dancing or live sex acts, and did not hold that all

conduct which an officer observes must be determined by

him or her to be obscene regardless of what it consists of.

These are gross exaggerations of the unremarkable hold-

ing of the Washington Supreme Court regarding the

scope of Seattle Municipal Code § 6.270.100.

The Washington Supreme Court’s decision follows

from its earlier decision in O’Day v. King County, 109

Wn.2d 796, 749 P. 2d 142 (1988) which involved a King

County Ordinance identical to the Seattle Ordinance

applied in this case. The decision in O’Day was expressly

based upon Article I, § 5, the free expression clause of the

Washington Constitution, rather than the First Amend-

ment. Id. at 802. The King County Ordinance provided:

No employee or entertainer shall perform acts

of or acts which simulate:

(a) Sexual intercourse, masturbation, sodomy,

bestiality, oral copulation, flagellation, or any

sexual acts prohibited by law; or

(b) The touching, caressing, or fondling of the

breasts, buttocks or genitals; or

or genitals; except as provided for in subdivi-

sion 6 of this subsection and section

6.08.050(D)(3) of this chapter.

Subsection 6 referred to in standard (c) required per-

formances involving nudity to take place on a stage six

feet from the nearest patron and eighteen inches off the

ground. Section 6.08.050(D)(3) provided that the Chapter

should not be construed to prohibit exhibitions or dances

that are not obscene.*

The plaintiffs in O'Day argued that the King County

ordinance was overbroad because the non-obscene dance

exception only applied to the activities described in stan-

dard (c), and not to those described in (a) or (b) and

therefore it banned constitutionally protected expression.

The Washington Supreme Court acknowledged that the

regulation was overbroad but elected to cure the defect

by a judicial construction, which involved) reading the

non-obscene dance exception into standards (a) and (b).

The Court stated:

By themselves, the standards of conduct are

overly broad and reach protected expression.

However, the non-obscene dance dramatic

works exception, the scientific and educational

purposes exception, and the non-obscene dance

exception of KCC 6.08.050(D) read together with

the standards of conduct, can limit chapter

4 The definition of obscenity in the King County Ordinance,

like the definition of obscenity in the Seattle Ordinance, follows

the definition contained in this Court’s decision in Miller v.

California, 413 U.S. 15, 93S. Ct. 2007, 37 L. Ed.2d 419 (1973).

6.08’s application to pure conduct and obscene

expression.

109 Wn.2d at 806.

In another part of the opinion, the Court in O’Day

upheld that portion of the King County ordinance which.

required that nude dancing take place on a stage set back

six feet from the audience, because it was aimed at curb-

ing illegal conduct rather than expression. 109 Wn.2d at

808-810. However, in order to draw a distinction between

nude expression, which is protected by the Washington

Constitution, and nude conduct which is not, the Court

limited the ban on self-touching private body parts and

on engaging in simulated sex acts to activities which do

not occur as part of non-obscene expression such as

dance. In other words, under the King County ordinance

construed in O'Day, if simulated sex acts are performed

in the course of expression, obscenity under the Miller

test is an element of the crime, as a matter of state law.

In this case, the Washington Supreme Court merely

applied this Court’s general probable cause test to the

Seattle ordinance as judicially construed in O’Day. Proba-

ble cause exists where the facts and circumstances within

the officers’ knowledge of which they had reasonably

trustworthy information are sufficient in themselves to

warrant a man of reasonable caution in the belief that an

offense has been committed. Brinegar v. United States, 338

U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 879 (1949); Dunaway

v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed.2d 824

(1979). According to the decision in O'Day, if simulated

sex acts are performed in the course of non-obscene

expression, then the individuals performing the acts have

not committed a crime. The Washington Supreme Court

simply held that if officers charged with making the

arrest are confronted with colorable expression, they

must consider obscenity, since otherwise there is no rea-

sonable basis for believing that a crime has occurred.

According to the Washington Supreme Court, the

necessity of an obscenity determination arises when

arresting officets observe what appears to be expression.

Relying on this Court’s decision in City of Erie v. Pap’s

A.M., 529 U.S. 277, 120 S. Ct. 1382, 146 L. Ed.2d 265

(2000), the Washington Supreme Court held that nude

dancing is expressive conduct. (Pet. App. 18). Since the

uncontested evidence was that Respondents were

engaged in nude dancing, an obscenity determination

was required. The court stated:

In Kidder’s case and in Silva’s case, if per-

formers were engaged in nude dancing, their

activities would fall under the category of

expressive conduct and not pure conduct. There

is ample evidence in the record to indicate that

the performers were dancing; the detective pres-

ent testified to that effect. Rep. Tr. (Dec. 11,

1997) at 10. Thus the performers were engaged

in expressive conduct which potentially falls

under the exception for protected expression in

SMC 6.270.100(C). Since SMC 6.270.100(C) says

that “[t]his chapter shall not be construed to

prohibit protected expression,” before officers

making arrests for violations of the standards of

conduct in SMC 6.270.100(A), the arresting offi-

cers or a judicial officer must make a determina-

tion, where expressive conduct is involved, that the

expressive conduct is obscene as defined in

SMC 6.270.100(D). In order to have probable

cause to arrest Kidder and Silva, the city needed

probable cause to believe that the dancers’

expressive conduct was obscene and hence

unprotected by the exception in .100(C).

(Pet. App. 18, 19).

It is apparent that the Washington Supreme Court

drew a fact-based distinction between the dancing which

occurred in this case, which requires an obscenity deter-

mination, and other activities which might not require

that determination. Notwithstanding Petitioner’s sugges-

tion to the contrary, the Washington Supreme Court did

not hold that an obscenity determination is required

regardless of what officers observe nor did it hold that

that live sex acts or lap dancing would require a deter-

mination of obscenity. (Pet. 12-14.) Based upon the lan-

guage in the ordinance, and the judicial construction

given to the ordinance in O’Day, the Washington

Supreme Court drew a workable distinction between the

type of live entertainment that requires an obscenity

determination and that which does not. As pointed out in

the conditional cross petition, the Washington Court

strayed from the First and Fourth Amendments in hold-

ing that the police as opposed to a magistrate are entitled

to make the threshold determination of obscenity and in

holding that the police need not consider obscenity so

long as there is an after-the-fact determination of proba-

ble cause to believe that the dancing was obscene. How-

ever, neither quéstion is presented in this petition.

Petitioner is incorrect in claiming that Respondents

Kidder and Silva denied that they touched themselves

and in claiming that they never testified that they

EEE a

intended to convey a message.° At trial, Respondent Kid-

der testified that she touched herself in a sensual sexy

way, and denied that the touching was masturbation.

(Resp. App. 2-4.) She testified that the touching was part

of her dance and the message that she was attempting to

convey was that she was sexy and desirable. (Resp. App.

4, 5.) Respondent Silva testified that she touched her

breasts, buttocks, and covered her crotch in the course of

her dance, but similarly rejected the City’s suggestion

that what she did was masturbation. (Resp. App. 5-9.)

She testified that she was attempting to convey a sensual,

sexy message. (Resp. App. 9.) Petitioner is also stretching

the truth in its claim that the officers made arrests for sex

acts. In response to questions posed on cross examina-

tion, Detective Swanson testified that if he observed mas-

turbation, he would have recorded it on the tape. (Resp.

App. 18.) There is nothing on the tape to reflect that he

observed this type of activity. (Pet. App. 84-87.)

Each of the questions posed in the petition is based

upon a mischaracterization of what the Washington

Supreme Court did in this case, a misperception of the

record facts, or both. In reality, Petitioner is complaining

about the manner in which the ordinance was construed

by the Washington Supreme Court, in response to the

> In any case, Respondents’ subjective intentions with

regard to their message is completely irrelevant to the

determination of probable cause, which is based upon the

circumstances appearing to the officers or a magistrate at the

time of the arrest.

15 7

dictates of state law, and is suggesting that the Washing-

ton Court incorrectly decided that nude dancing is enti-

tled to a measure of First Amendment protection. The

first of these complaints does not give rise to a federal

question at all and the second treads on law that is

sufficiently well settled that it need not be revisited by

this Court. Therefore, the petition should be denied.

B. This Court Lacks Jurisdiction To Grant The Petition

Because the Judgment Is Not Final

At present, this case is in the Washington Court of

Appeals pending a decision on whether a warrant is

required by the free expression and privacy clauses of the

State Constitution. Left to be decided is the question of

whether Respondents are entitled to injunctive and

declaratory relief under the state and federal constitu-

tions and the question of whether there was probable

cause to believe that Respondents’ dancing was obscene.

No judgment has been entered in either the appellate

court or the trial court. Following the entry of the remand

order on December 15, 2001, the Washington Supreme

Court erroneously issued the mandate. However, the

Court later recognized the mandate was issued in error

and it was recalled. (Resp. App. 24.) Under the Washing-

ton Rules of Appellate Procedure, the order from which

certiorari is now sought is merely an interlocutory deci-

sion.®

6 RAP 12.5(a) provides, A “mandate” is the written

notification by the clerk of the appellate court to the trial court

and to the parties of an appellate court decision terminating

A state court judgment is subject to review by this

Court only if it is final. Jefferson v. City of Tarrant, 522 U.S.

75, 80, 118 S. Ct. 421, 139 L. Ed.2d 433 (1997). Otherwise,

Title 28 U.S.C. § 1257(a) operates as a jurisdictional bar.

Id. This Court has stated that the finality rule “is not one

of those technicalities to be easily scorned. It is an impor-

tant factor in the smooth working of our federal system.”

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 124, 65

S. Ct. 1475, 89 L. Ed.2d 569 (1945). To be reviewable, a

state court judgment must be final in two senses: it must

be subject to no further review or correction in any state

tribunal, and it must also be final as an effective deter-

mination of the litigation and not of merely interlocutory

or intermediate steps therein. Jefferson, 522 U.S. at 80. In

this case, there has been no final judgment in either

sense. The judgment is subject to review and correction in

the Washington Court of Appeals and is potentially sub-

ject to another round of state appellate review following

the trial court’s decisidn. Respondents’ claims for injunc-

tive and declaratory relief and the issue of probable cause

have yet to be adjudicated and there has been no final

determination of the litigation. Since no judgment has

been entered in this case, final or otherwise, Title 28

U.S.C. § 1257(a) operates as a jurisdictional bar.

In Cox Broadcasting Corp v. Cohn, 420 U.S. 469, 477, 95

S. Ct. 1029, 43 L. Ed.2d 328 (1975), this Court recognized

the existence of a limited number of exceptions to the

final judgment rule in cases where the highest court of

the state has finally determined the federal issue present

review. No mandate issues for an interlocutory decision of the

appellate court.”

in a particular case, but in which there are further pro-

ceedings in the lower state courts to come. In regard to

these exceptions, this Court stated:

In most, if not all of the cases in these catego-

ries, these additional proceedings would not

require the decision of other federal questions

that might also require review by this Court at a

later date, and immediate rather than delayed

review would be the best way to avoid “the

mischief of economic waste and delayed jus-

tice,” Radio Station WOW, Inc. v. Johnson, supra,

at 124, 89 L. Ed. 2092, as well as precipitate

interference with state litigation.

Id. at 477.

This Court in Cox Broadcasting proceeded to describe

four specific exceptions. In the first two, the federal issue

would not be mooted or otherwise effected by the pro-

ceedings yet to be had because those proceedings have

little substance, their outcome is certain, or they are

wholly unrelated to the federal questions. 420 U.S. at 478.

In the other two, the federal issue would be mooted if the

petitioner or appellant seeking to bring the action before

this Court prevailed on the merits in the later state court

proceeding, but there is nevertheless sufficient justifica-

tion for immediate review of the federal question finally

determined in the state courts. Id. An analysis of each of

the exceptions compels the conclusion that Petitioner can-

not establish a basis for disregarding the final judgment

rule.

In the first category, there are further proceedings yet

to occur in state court, but the prio: determination of the

federal issue is conclusive or the outcome of further

proceedings preordained. Cox Broadcasting, 420 U.S. at

479. “In these cases because the case is for all practical

purposes concluded, the judgment on the federal issue is

deemed final.” Id. With this case in its present posture,

there are remaining federal issues yet to be adjudicated.

These include the Respondents’ claim for injunctive and

declaratory relief under the First Amendment and Fourth

Amendment and the determination of probable cause, not

to mention ancillary questions that may arise at trial such

as which side has the burden of proof on the issue of

probable cause. Therefore, this exception doesn’t apply.

The second exception involves cases in which the

federal issue, finally decided by the highest court in the

state, will survive and require decision regardless of the

outcome of further state proceedings. Cox Broadcasting,

420 U.S. at 480. This exception is inapplicable if resolu-

tion of the claims remaining in state court would moot

the federal question presented in the certiorari petition.

Jefferson, 522 U.S. at 80. If Petitioner prevails on the

remaining federal claims, then the issues raised in its

petition will become moot. Since the claims presented in

the petition may not survive the outcome of future state

proceedings, this exception is inapplicable.

In the third category are situations where the federal

claim has been finally decided, with future proceedings

on the merits in state courts to come, but in which later

review of the federal issue cannot be had, whatever the

ultimate outcome of the case. Cox Broadcasting, 420 U.S. at

481. In these cases, if the party seeking interim review

prevails on the merits the federal issue will become moot,

and if it were to lose, the governing state law would

prevent it from presenting its federal claims for review.

Id. This exception is clearly inapplicable in this case. If

Petitioner loses at trial, there is nothing in state or federal

law to prevent it from filing another petition for cer-

tiorari.

The last exception involves cases where the federal

issue has been finally decided in the state courts with

further proceedings pending in which the party seeking

review might prevail on non-federal grounds, thus ren-

dering unnecessary review of the federal issue by this

Court, and where reversal of the state court on the federal

issue would be preclusive of any further litigation on the

relevant cause of action rather than merely controlling

the nature and character of, or the admissibility of, evi-

dence in state court proceedings yet to come. Cox Broad-

casting, 420 U.S. at 482, 483. In these circumstances, if a

refusal to immediately review the state court decision

might seriously erode federal policy, this Court has enter-

tained and decided the federal issue which itself has been

finally determined by the state courts for purposes of the

state litigation. With the case in its present posture, reso-

lution of the federal issues presented in this petition will

not end the litigation because there are remaining state

claims yet to be adjudicated in state court. Moreover, this

case arises from enforcement of a local ordinance wherein

a local government has elected to exempt non-obscene

nude dancing from criminal liability under the ordinance.

Under these circumstances, where a city seeks to vindi-

cate an alleged local interest in regulating adult entertain-

ment, and where, from Petitioner’s standpoint, there is no

imminently threatened loss of federal rights, no federal

policy will be frustrated if the state courts are given the

first opportunity to resolve the remaining claims.’

CONCLUSION

Respondents concur that this case presents important

federal questions, but not those preseiited in the petition.

The questions in this petition are based on the inaccurate

and highly exaggerated contention that the Washington

Supreme Court extended presumptive First Amendment

protection to any behavior engaged in by a dancer, such

that the police are required to consider obscenity when-

ever they make an arrest. Contrary to the City’s claims,

the Stat Lourt’s ruling is expressly limited to situations

where officers observe simulated sex acts (or the self-

touching of private body parts) performed in the course

of dancing on a stage. Since the portion of the state

court’s ruling complained of by the City does not present

broad federal questions, but instead is based upon state

constitutional law and well-settled federal law, the peti-

tion should be denied.

Moreover, Petitioner is seeking review of an inter-

locutory order, and this Court therefore lacks jurisdiction

7 In Cox Broadcasting, and in all the cases which are cited

therein as examples of this exception, the state court decision

involved a potential abridgement of federal constitutional or

statutory rights. 420 U.S. at 482-485. No such potential

abridgement exists in this case. From Petitioner’s standpoint,

the worst thing that can happen is that the state court may elect

to overprotect federal rights, which has never been held to be

sufficient cause for circumventing the final judgment rule.

to hear the case. The Cox Broadcasting exception to the

final judgment rule is inapplicable to the present petition

because there are unresolved questions of state and fed-

eral law which could conceivably moot the question pre-

sented in the petition and because, from Petitioner’s

standpoint, no federal policy or right is imminently

threatened if this case awaits the outcome of further

proceedings in the state courts.

For all of these reasons, the petition should be

denied.

Respectfully submitted,

GivBert H. Levy

Counsel of Record

200 Market Place Two

2001 Western Avenue

Seattle, WA 98121

(206) 443-0670

JEFFREY L. FISHER

Davis WrIGHT TREMAINE LLP

2600 Century Square

1501 Fourth Avenue

-Seattle, WA 98101-1688

(206) 622-3150

Counsel for Respondents

APPENDIX

Rep.Tr., Dec. 9, 1997, pp. 52, 63-65

argc g ats kaso esses App.

Rep.Tr., Dec. 9, 1997, pp. 125, 131-134

a iad 5c da aks sacccennece App.

Rep.Tr., Dec. 11, 1997, pp. 1-11

Ere App.

Rep.Tr., Dec. 15, 1997, pp. 31-33

ee dane kaos wa swnesesss App.

Fufaro v. Seattle, Washington Supreme Court

No. 58971-7 Order Recalling Mandate,

eee G Lew Wess ne ees nessa sccsss App.

Furfaro v. Seattle, Washington Court of Appeals

No. 43409-8-I Request for Briefing Letter,

ee aug u ba cesensss App.

App. 1

SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF KING

NICK FURFARO, BRANDY

KIDDER, ESMERALDA SILVA,

AND JJR, INC.,

PLAINTIFFS,

)

) 66551-6

)

VS. )

)

96-2-02226-8SEA

CITY OF SEATTLE, ET AL.,

DEFENDANTS.

REPORTER’S TRANSCRIPT ON APPEAL

DECEMBER 9, 1997

BEFORE THE HON. CAROL A. SCHAPIRA

* * *

[52] A. MY NAME IS BRANDY KIDDER AND I

LIVE AT 10 OLDE TAVERN DRIVE, WENDELL, NORTH

CAROLINA.

QO. HOW OLD ARE YOU?

I’M 23. I WILL BE 24 NEXT WEDNESDAY.

ARE YOU MARRIED?

NO.

AND ARE YOU ENGAGED?

YES, I AM.

Q. AND WHO DO YOU LIVE WITH IN NORTH

CAROLINA?

App. 2

A. I LIVE WITH MY FIANCE DAN AND MY

THREE BEAUTIFUL CHILDREN. I HAVE TWO SONS,

SIX AND THREE; AND THEN I HAVE A 14-MONTH-

OLD GIRL.

Q. WHEN DID YOU MOVE TO NORTH CARO-

LINA?

A.. IN SEPTEMBER OF THIS YEAR.

Q. RECENTLY?

A. YES.

Q. BEFORE THAT TIME, WHERE WERE YOU LIV-

A. I WAS LIVING IN BOTHELL, WASHINGTON.

* * *

[63] Q. CAN YOU DESCRIBE HOW YOU DANCED

ON STAGE THAT DAY?

A. WELL, YEAH. IT WAS PRETTY MUCH NO DIF-

FERENT THAN ANY OTHER TIME. EVERY TIME I

WOULD START MY STAGE PERFORMANCES, I

WOULD GO-UP TO THE RIGHT SIDE OF THE STAGE.

AND THEY HAD A HUGE MIRROR AND I WOULD

RUN - I WOULD GET ON THE STAGE. I WOULD RUB

MY HANDS ON THE WALK ACROSS THE STAGE

WITH MY HAND ON THE MIRROR, A LOT OF EYE

CONTACT WITH THE AUDIENCE. I WOULD DANCE

MORE OF A FLOWY - BUT IT REALLY WASN'T LIKE A

REALLY BUSY DAY OR ANYTHING. I DIDN’T LIKE

OVER EXERT MYSELF IN ANY WAY, SHAPE OR FORM.

I JUST WAS UP THERE TO ENJOY MYSELF AND LIS-

TEN TO THE MUSIC. I WENT THROUGH A LOT OF

App. 3

TURNS. I WOULD PUT MY HANDS ALL OVER MY

BODY IN THE PACES OF MOVING TO THE MUSIC.

AND, YOU KNOW, IT WAS JUST VERY TYPICAL. IT-

WAS A VERY TYPICAL DANCE.

Q. DID YOU REMOVE YOUR CLOTHING DUR-

ING THE [64] DANCES?

A. YES. AT THE TIME, I CAN’T SAY EVERY

DANCE I REMOVED ALL OF MY CLOTHING, BUT I AT

LEAST MOVED MY TOP DURING EVERY DANCE PER-

FORMANCE I HAD ON THAT DAY.

Q. YOU SAID YOU TOUCHED YOURSELF ALL

OVER YOUR BODY. CAN YOU DESCRIBE THAT IN

MORE DETAIL?

A. YES. LIKE WHEN I WOULD TAKE OFF MY

TOP, I WOULD - THIS WAS A FRONT TOP, SO IT

WOULD UNDO IN THE FRONT. I WOULD TAKE OFF

MY TOP AND I WOULD BE MOVING TO THE MUSIC. I

WOULD PULL IT OFF AND I WOULD TAKE IT DOWN

AND I WOULD TURN AND, YOU KNOW, THROW IT

TO THE SIDE, OR GO TO THAT SIDE AND, WITH MY

HANDS, I WOULD CARESS MY BODY WITH THE

MUSIC. I WAS TOTALLY DANCING, ENJOYING

MYSELF. I WOULD RUB MY LEGS, MY THIGHS. MY

HAND WOULD GO ACROSS THE BOTTOM SIDE OF

MY BUT AND MY BACK. IT WAS ALL FLOWY. MY

HANDS DID NOT TECHNICALLY JUST STAY IN ONE

AREA. THEY WERE MOVING WITH THE MUSIC AS

WELL AS MY BODY WAS.

Q. WAS THIS TOUCHING A PART OF THE REST

OF YOUR DANCE?

App. 4

A. OH, YES. | WAS TOTALLY WITH MY DANCE

ROUTINE.

Q. DID YOU EVER MASTURBATE DURING -

A. NO. NO.

Q. - THE STAGE PERFORMANCE?

[65] A. NO. THE TYPE OF DANCING I WAS

DOING, THE TOUCHING OF MY BODY COULD

NEVER ESCALATE, IN MY OPINION, UPON MYSELF, I

WOULD HOPE. ALSO I WOULD NEVER ESCALATE TO

THAT POINT.

Q. CAN YOU THINK OF - OBVIOUSLY TRYING

TO SHOW US WITH YOUR HANDS, CAN YOU THINK

OF WORDS TO DESCRIBE THE WAY THAT YOU TOU-

CHED YOURSELF?

A. VERY SENSUAL, VERY SENSUAL, SEXY WAY.

JUST MY AURA, I GUESS. IT WAS THE WAY I FELT.

Q. WAS THERE ANY PARTICULAR KIND OF

MESSAGE OR MEANING TO YOUR DANCING ON-

STAGE?

A. YES. 1 WAS SEXY AND, YOU KNOW, THE PEO-

PLE OUT THERE, THEY WERE WATCHING ME THAT,

YOU KNOW, HEY, I WOULD LIKE TO SPEND A FEW

MINUTES WITH HER OR SOME TIME WITH HER. I

WANTED THEM TO SEE ME AS A SEXY PERSON.

Q. DID TOUCHING YOURSELF CONTRIBUTE TO

THAT MESSAGE?

iatecs veer . J

App. 5

WELL, DANCING, IN THE PROCESS OF TOU-

MYSELF IN A DANCING WAY, YES.

* + +

[125] DIRECT EXAMINATION +

LEVY:

WOULD YOU STATE AND SPELL YOUR

ESMERALDA SILVA, E-S-M-E-R-A-L-D-A, S-I-

MISS SILVA, HOW OLD ARE YOU?

I’M 27.

WHAT IS YOUR ADDRESS?

25234 45TH PLACE SOUTH, KENT, WASHING-

WHERE WERE YOU BORN?

OTHELLO, WASHINGTON.

* + *

[131] Q. WHEN YOU WERE DANCING AT RICK’S,

DID YOU WEAR SOME TYPE OF A COSTUME?

YEAH, I HAD MANY DIFFERENT THINGS. |

HAD DRESSES. I ALWAYS WORE HIGH HEELS, LIKE

FIVE-INCH HEELS. WE CALL THEM HOT PANTS, LIKE

SOME PEOPLE CALL THEM DAISY DUKE SHORTS.

JUST LACE BRAS AND MATCHING PANTIES, LIKE

App. 6

‘SWIM SUIT TYPE OUTFITS, YOU KNOW, THAT WERE

COLORFUL.

Q. WHEN YOU WERE DANCING, WOULD THE

MUSIC BE PLAYING CONTINUOUSLY THROUGHOUT

YOUR DANCE?

A. THE WHOLE TIME.

Q. NOW, YOU MENTIONED THAT AS PART OF

YOUR DANCE, THERE WAS SOME TYPE OF COSTUME

REMOVAL. WOULD YOU DESCRIBE THAT FOR THE

JURY, PLEASE?

A. WELL -

Q. OKAY. I'M SORRY, GO AHEAD.

A. CAN YOU -

DID YOU TAKE IT OFF ALL AT ONCE? DID

YOU TAKE IT OFF IN A CERTAIN MANNER?

: [132] A. I TOOK IF OFF KIND OF IN A STRIP

TEASE WAY, ONE SHOULDER OFF, ANOTHER, PUT IT

TO THE SIDE. SOMETIMES I NEVER TOOK ANYTHING

OFF. SOMETIMES I MAY HAVE JUST PULLED IT

DOWN, PUT IT BACK UP, AS FAR A MY TOP. MY

BOTTOMS, I WOULD PULL THEM DOWN A LITTLE TO

WHERE NOTHING WAS SHOWING AND THAT

WOULD BE ABOUT IT.

Q. YOU MENTIONED, MISS SILVA, TOUCHING

YOURSELF. WHAT DO YOU MEAN BY THAT?

A. I TOUCHED MY BREASTS WHEN I WOULD

PULL MY PANTIES DOWN BECAUSE I DIDN’T TAKE

THEM OFF. I PUT MY HAND TO COVER MYSELF IN

App. 7

MY CROTCH AREA. I TOUCH MY LEGS, MY ARMS IN

THE FLOW OF THE MUSIC. I WOULD PUT MY HAND

ACROSS MY BREAST TO COVER, THEN LET, YOU

KNOW, OPEN UP. I WAS ALWAYS TOUCHING MYSELF

IN THE DANCE.

Q. ALL RIGHT. WHEN YOU TOUCHED YOUR-

SELF ON YOUR BREASTS, WOULD YOU DO THAT

CONTINUALLY THROUGHOUT THE DANCE?

A. NO. NO.

Q. FOR WHAT PERIOD OF TIME DURING THE

DANCE ROUTINE WOULD YOU BE TOUCHING

YOURSELF ON YOUR BREASTS? -

A. ARE YOU ASKING ME TO CIVE YOU SEC-

ONDS?

Q. APPROXIMATION.

A. THREE TO FIVE SECONDS MAYBE. YOU’RE

DANCING, YOU’RE CONSTANTLY MOVING. YOU’RE

NOT STOPPING. THE MUSIC IS CONSTANTLY PLAY-

ING. | WOULD GET INTO THE [133] MUSIC AND MY

BODY WAS CONSTANTLY MOVING. I JUST DIDN’T

STOP AND DO ONE THING. I WAS CONSTANTLY IN

THE FLOW OF MOVING WITH THE MUSIC.

Q. WAS THE BREASTS TOUCHING PART OF THE

DANCE?

A. MY DANCE, YES.

Q. WHY WAS IT PART OF THE DANCE?

A. TO ME, TOUCHING MY BODY, I FELT I WAS

COMFORTABLE WITH MY BODY. IT WAS - TO ME, I

App. 8

WAS GIVING A SEXY SENSUAL MESSAGE THAT IT

WAS PART OF MY DANCE.

Q. DID YOU, AS PART OF YOUR DANCE OR

WHILE YOU WERE ON STAGE, TOUCH YOURSELF IN

THE CROTCH AREA?

A. AS I STATED BEFORE, I NEVER REMOVE MY

BOTTOMS. I WOULD PULL THEM DOWN AS A

VISUAL SEXY THING THAT I FELT I WAS BEING SEXY.

I PLACED MY HAND TO COVER MY CROTCH AND

THAT WAS ALL I DID.

Q. WAS THAT PART OR SEPARATE FROM YOUR

DANCE - EXCUSE ME.

WAS THAT PART OF OR SEPARATE FROM YOUR

DANCE?

A. IT WAS PART OF MY DANCE. I WAS BEING

SEXUAL AND SENSUAL, AND I WOULD DO THAT

JUST LIKE I WOULD COVER MY BREAST WITH MY

HAND.

Q. DID YOU EVER TOUCH YOURSELF ON THE

BUTT?

A. I BELIEVE SO, YES.

Q. WHY?

[134] A. IN THE FLOW OF THE DANCE, I TOU-

CHED MY LEGS, I TOUCHED MY ENTIRE BODY. I

PLAYED WITH MY HAIR. I FLIPPED MY HAIR BACK.

Q. YOU WERE HERE DURING THE EXAMINA-

TION OF MISS KIDDER?

ett Pia

App. 9

A. YES.

Q. DO YOU RECALL COUNSEL USING THE

EXPRESSION OR PHRASE, A “SIMULATED MASTUR-

BATION”?

A. YES, I DO.

Q. DID YOU DO THAT?

A. I DON’T BELIEVE I SIMULATED OR ANY-

THING I DID WAS ANYTHING REMOTELY CLOSE TO

MASTURBATION.

Q. DID YOU EVER INSERT YOUR FINGERS IN

YOURSELF?

A. NEVER.

Q. WHEN YOU WERE DANCING ON STAGES AT

RICK’S, WHAT WAS THE MESSAGE THAT YOU WERE

TRYING TO CONVEY?

A. AS I SAID BEFORE, I FELT IF WAS BEING

EROTIC. THE MUSIC I DANCED TO WAS EROTIC. I

WAS GIVING A SEXY SENSUAL MESSAGE.

* + +

App. 10

SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF KING

NICK FURFARO, BRANDY

KIDDER, ESMERALDA

SILVA, AND JJR, INC.,

PLAINTIFFS,

VS.

CITY OF SEATTLE, ET AL.,

DEFENDANTS.

66551-6

96-2-02226-8SEA

)

REPORTER’S TRANSCRIPT ON APPEAL

DECEMBER 11, 1997

BEFORE THE HON. CAROL A. SCHAPIRA

* * ~

(1] DIRECT EXAMINATION + (RESUMED)

BY MR. LEVY:

Q. DETECTIVE SWANSON, DO YOU RECOGNIZE

THE AUDIO TAPE I HAVE JUST PLAYED?

A. YES.

Q. AND IS THAT AN ACCURATE RENDITION OF

THE AUDIO TAPE THAT YOU MADE WHEN YOU

WENT INTO RICK’S NIGHTCLUB ON NOVEMBER

20TH, 1995?

A. YES, fT IS.

[2] Q. HOW LONG WOULD YOU ESTIMATE THE

TAPE WAS, THE RECORD THAT WE HAVE JUST

HEARD? TEN MINUTES?

App. 11

A. SOMETHING LIKE THAT, PROBABLY 10, 15

MINUTES. I WASN’T WATCHING THE TIME.

Q. AND THE LENGTH OF TIME THAT YOU

WERE IN THE BUSINESS WAS ROUGHLY 40 MINUTES?

A. THAT’S ABOUT RIGHT.

Q. AND IN TERMS OF THE OBSERVATIONS

THAT YOU RECORDED FOR EACH INDIVIDUAL

ENTERTAINER, WOULD THAT HAVE BEEN MAYBE 45

SECONDS WORTH OF OBSERVATION PER PERSON

ROUGHLY? ‘

A. YEAH. I SUPPOSE A/ERAGE, YEAH.

Q. NOW, I HEARD - AND CORRECT ME IF I’M

MISTAKEN - I HEARD SOUNDS, AUDIBLE SOUNDS

ON THE TAPE INDICATING THAT YOU WERE TURN-

ING THE TAPE RECORDER ON AND OFF; IS THAT

CORRECT?

A. THAT’S RIGHT.

Q. NOW, IF WE COULD, PLEASE, DO YO?!

RECALL - WOULD YOU TAKE A LOOK AT 4 IN YOUR

BOOK THERE, PLEASE. EXCUSE ME, I’M SORRY.

WOULD YOU LOOK AT ITEM NUMBER 5?

A. YES. I HAVE IT.

Q. AND IS ITEM NUMBER 5, IS THAT THE TRAN-

SCRIPT THAT WE WERE TALKING ABOUT YESTER-

DAY?

A. YES, IT IS..

-App. 12

Q. NOW, THE FIRST ENTRY ON ITEM NUMBER 5

WHERE [3] IT MAKES REFERENCE TO AN ENTER-

TAINER BY THE NAME OF GABRIELLE, DID YOU

LATER LEARN THAT THAT PERSON WAS THE PLAIN-

TIFF IN THIS CASE, BRANDY KIDDER?

A. YES.

Q. AND AT THE BOTTOM OF PAGE 1 WHERE IT

MAKES REFERENCE TO “JESSIE, HISPANIC, FEMALE,

LONG, BLACK HAIR,” IS THAT THE REFERENCE TO

THE PLAINTIFF IN THIS CASE, ESSIE SILVA?

A. YES.

Q. WOULD YOU TURN TO PAGE 3 OF THE

TRANSCRIPT WHERE REFERENCE IS MADE TO AN

INDIVIDUAL BY THE NAME OF CHANEL?

A. YES.

Q. DO YOU UNDERSTAND THAT THE PERSON

THAT YOU REFERRED TO IN THE TAPE AS CHANEL

iS AN INDIVIDUAL BY THE NAME OF DARCY >

POOLE?

A. I BELIEVE THAT’S CORRECT, YES.

Q. DO YOU RECALL MISS POOLE?

A. YES.

Q. DID YOU MAKE ANY OBSERVATIONS OF THE

PERFORMANCE OF MISS POOLE OTHER THAN THAT

WHICH YOU RECORDED ON THE AUDIO TAPE?

A. I’M NOT SURE I UNDERSTAND WHAT YOU

MEAN.

2A. Maer

we) ier ra a alae in Se bidn rent ey

;

App. 13

Q. WELL, I’D LIKE YOU TO THINK BACK NOW

TO THE FATEFUL DAY OF NOVEMBER 20TH, 1995,

AND I’M GOING TO ASK [4] YOU SOME QUESTIONS,

A SERIES OF QUESTIONS ABOUT WHAT YOU SAW

WHEN YOU WERE OBSERVING MISS POOLE.

WAS MISS POOLE PERFORMING A DANCE?

A. YES.

Q. DID IT APPEAR TO YOU AT THE TIME THAT

SHE WAS MOVING IN RHYTHM TO THE MUSIC?

A. YES, SHE WAS.

Q. IN THE COURSE OF THE DANCE, WAS SHE,-

AS YOU RECORDED ON THE TAPE, SHE TOUCHED

HERSELF AND TWEAKED AND POKED HERSELF IN

HER PRIVATE AREAS; IS THAT CORRECT?

A. THAT’S CORRECT, YES.

Q. WAS THIS —- THE PERFORMANCE ITSELF, WAS

THIS A SINGLE PERFORMANCE, A SINGLE CONTIN-

UOUS PERFORMANCE OR DID SHE STOP DURING

THE DANCE AND TOUCH HERSELF?

A. YOU MEAN STOP MOVING OR STOP -

Q. STOP MOVING AND DANCING AND JUST

‘TOUCH HERSELF.

A. AH, SHE DIDN’T STOP MOVING TO TOUCH

HERSELF, NO.

Q. AT THE CONCLUSION OF THE PERFOR-

MANCE, COULD YOU HEAR IF THE AUDIENCE WAS

CLAPPING?

App. 14

- A. I BELIEVE THERE WAS A SMATTERING OF

APPLAUSE. I DON’T THINK THERE WERE A LOT OF

PEOPLE THERE. YEAH, I THINK THERE WERE A FEW

PEOPLE THAT PUT THEIR HANDS TOGETHER.

[5] Q. COULD YOU HEAR THAT ON THE TAPE,

SIR?

A. I DON’T RECALL. IT’S POSSIBLE. I DON’T

SPECIFICALLY REMEMBER WHETHER YOU COULD

HEAR IT AT THE END OF HERS OR NOT.

Q. IN THE CASE OF MISS POOLE, THE TOUCH-

ING THAT YOU OBSERVED AND RECORDED ON THE

AUDIO TAPE, WAS THAT INTERSPERSED THROUGH-

OUT THE ENTIRE PERFORMANCE, OR DID SHE

TOUCH HERSELF IN THE PRIVATE AREAS CONTINU-

OUSLY THROUGHOUT THE PERFORMANCE?

A. IT WAS INTERSPERSED THROUGHOUT THE

PERFORMANCE.

Q. DO YOU RECALL THE PHYSICAL DESCRIP-

TION OF THE MAIN STAGE, SIR? OR DO YOU RECALL

WHAT THE MAIN STAGE AT RICK’S LOOKED LIKE

WHEN YOU WERE THERE?

A. YES.

Q. COULD YOU TELL THE JURY YOUR RECOL-

LECTION WHAT IT LOOKED LIKE?

A. IT’S - I'M NOT SURE OF THE DIMENSIONS -

ROUGHLY SIX OR SEVEN FEET WIDE, PROBABLY

FOUR OR FIVE FEET DEEP. THERE ARE MIRRORS

AGAINST THE REAR WALL, LIGHTS, STAGE LIGHTS

App. 15

OVERHEAD. THE STAGE ITSELF IS PROBABLY THREE

FEET ELEVATED FROM THE MAIN FLOOR.

Q. DO YOU RECALL IF MISS POOLE MADE USE

OF THE WALLS AND MIRRORS IN THE COURSE OF

HER DANCE?

A. AH, YES, SHE DID. THE MIRRORS. THERE

ARE [6] NO WALLS OTHER THAN THE MIRROR ON

THE WALL.

Q. CAN YOU DESCRIBE, SIR, THE MANNER IN

WHICH SHE MADE USE OF THE MIRRORS?

A. AS IRECALL, SHE WAS FACING AWAY FROM

THE AUDIENCE TCWARD THE MIRROR, LEANING

WITH HER TORSO FORWARD, HER LEGS AND BUT-

TOCKS FACING TOWARDS THE AUDIENCE. SHE WAS

MOVING HER HIPS, BUT I DON’T REMEMBER SPECI-

FICALLY ANY OTHER ACTIONS.

Q. DETECTIVE SWANSON, WHEN SHE WAS

DOING THE MIRROR MOVE, DID YOU OBSERVE THE

POSITION OF HER HANDS?

A. AT ONE POINT, I KNOW THAT BOTH HANDS

WERE ON THE MIRROR. I DON’T KNOW WHETHER

THEY STAYED THERE OR NOT. I REALLY DON’T

REMEMBER THAT CLEARLY.

Q. AT ANY TIME IN THE COURSE OF HER PER-

FORMANCE, DID SHE KICK HER LEGS?

A. YES, I BELIEVE SHE DID.

Q. I TAKE IT THAT AT SOME POINT IN THE

COURSE OF HER PERFORMANCE, MISS POOLE

REMOVED THE COSTUME THAT SHE WAS WEARING?

App. 16

A. YES.

Q. WHEN SHE REMOVED THE COSTUME, DID

SHE DO IT SLOWLY AND IN SYNC WITH THE MUSIC?

A. AH, YES, I SUPPOSE YOU COULD SAY THAT.

SHE TOOK - I REMEMBER THAT WHEN SHE TOOK

HER TOP OFF, SHE WAS MOVING WHEN SHE TOOK

IT OFF. AND SHE WAS, AS I [7] RECALL, MOVING IN

SYNC TO THE MUSIC. SHE DIDN’T REMOVE IT NEC-

ESSARILY IN SYNC TO THE MUSIC, BUT SHE WAS

MOVING IN SYNC.

Q. OKAY. I GUESS MY QUESTION HERE, DETEC-

TIVE SWANSON, IS WHEN SHE REMOVED HER COS-

TUME, DID SHE JUST GRAB IT AND TAKE IT OFF AT

ONE POINT IN TIME OR DID SHE REMOVE IT MORE

SLOWLY?

A. SHE DIDN’T RIP IT OFF, IF THAT’S WHAT

YOU’RE ASKING. SHE UNDID IT AND TOOK IT OFF, I

THINK, MORE SLOWLY THAN JUST YANKING IT OFF

HER SHIRT OR SOMETHING.

Q. WAS IT KIND OF A TEASE?

A. I SUPPOSE YOU COULD SAY THAT.

Q. NOT YOUR CUP OF TEA?

NOT NECESSARILY. BUT, YEAH, I SUPPOSE

SO.

Q. WHEN SHE TOUCHED HERSELF ON HER

BREASTS OR IN THE CROTCH AREA, APPROXI-

MATELY HOW LONG DID THE TOUCHING LAST?

A. TWO TO THREE SECONDS APPROXIMATELY.

;

App. 17

Q. YOU OBSERVED THE ROUTINE OF MISS

POOLE AND YOU ALSO OBSERVED THE ACTIVITIES

OF THE 12 OR 13 OTHERS THAT DAY?

A. YES.

Q. HOW WOULD YOU COMPARE THE DANCING

OF MISS POOLE TO THE OTHER INDIVIDUALS THAT

YOU OBSERVED? WAS IT SIMILAR? DIFFERENT?

[8] A. THEY’RE ALL SIMILAR. THERE IS NOT A

GREAT DEAL OF VARIETY. VERY SELDOM, ANYWAY. I

THINK SHE HAD A BETTER SENSE OF RHYTHM

MAYBE THAN SOME OF THE DANCERS ARE. PROBA-

BLY SLIGHTLY MORE ATH/wETIC THAN SOME OF THE

OTHER ONES. THE DANCES ARE SIMILAR.

Q. IN REFERENCE TO MISS POOLE AND THE

OTHER DANCERS, WOULD YOU SAY THAT YOU SAW

THE SAME DANCE MOVES OVER AND OVER AND

OVER AGAIN?

A. I WOULD SAY THAT THEY WERE SIMILAR

DANCE MOVES REPEATED, YES. SOME OF THE PER-

FORMERS ARE MAYBE BETTER ABLE TO PUMP THE

MOVES OFF, BUT THEY’RE QUITE SIMILAR, YES.

Q. WITH REFERENCE TO MISS POOLE, WOULD

YOU SAY THAT SHE MOVED GRACEFULLY?

A. YEAH. SHE KEPT RHYTHM WITH THE MUSIC

AND DID NOT APPEAR CLUMSY.

Q. WOULD YOU SAY THAT SHE KEPT A BEAT?

A. I WOULD SAY THAT, YES.

App. 18

Q. NOW, WITH RESPECT TO YOUR AUDIO

NOTES, IF SOMEBODY HAD DONE AN UNUSUAL

THING, A VERY UNUSUAL THING IN THE COURSE

OF THEIR DANCE, WOULD YOU HAVE MADE A

RECORD OF THAT ON THE AUDIO TAPE?

A. I MIGHT HAVE, DEPENDING UPON WHAT

THAT UNUSUAL THING WAS.

Q. WELL, FOR EXAMPLE, IF SOMEBODY WERE

JUST [9] STANDING UP THERE ON THE STAGE DOING

NOTHING BUT MASTURBATING, WOULD YOU HAVE

RECORDED THAT ON THE TAPE?

A. I MOST CERTAINLY WOULD HAVE, YES.

Q. WITH RESPECT TO - WOULD YOU LOOK AT

15, PLEASE, EXHIBIT 15 IN YOUR BOOK, DETECTIVE

SWANSON?

A. YES.

Q. THERE IS A BUNCH OF PAPERS IN THE

FRONT, AND THEN FINALLY WE COME TO A REPORT

FOR SOMEBODY BY THE NAME OF APRIL WHITE. DO

YOU SEE THAT, SIR?

A. I HAVE IT, YES.

Q. WOULD YOU FLIP OVER TO THE OFFICER'S

STATEMENT.

DO YOU RECALL ON NOVEMBER 20TH, 1995 IF

APRIL WHITE WAS DOING A DANCE WHEN YOU

MADE YOUR OBSERVATIONS CONCERNING THAT

INDIVIDUAL?

YES.

> OF 0

App. 19

YES, SHE WAS ON THE STAGE PERFORMING,

THE NEXT ONE, TAMMY BERGQUIST?

YES, SHE WAS AS WELL.

SHE WAS DANCING?

YES.

AND THE TOUCHING, THE TOUCHING THAT

YOU OBSERVED WITH MISS BERGQUIST, WAS THAT A

PART OF THE PERFORMANCE THAT YOU OBSERVED?

IT WAS.

NEXT ONE, GIOVONNA GREENWOOD. IS

SHE [10] ANOTHER INDIVIDUAL THAT YOU

OBSERVED?

YES.

AND WAS SHE DANCING?

SHE WAS.

AND WAS THE TOUCHING PART OF HER

PERFORMANCE?

PO > 0

YES, IT WAS.

SARA LYONS?

YES.

SHE WAS DANCING?

SHE WAS.

AND THE TOUCHING WAS PART OF HER

PERFORMANCE?

App. 20

A. YES, IT WAS.

Q. WAS THERE ANY INDIVIDUAL IN THIS

GROUP THAT WAS NOT DANCING?

A. NO.

Q. WAS THERE ANY INDIVIDUAL IN THIS

GROUP THAT YOU OBSERVED WHO TOUCHED HER-

SELF AND THE TOUCHING WAS NOT PART OF THE

PERFORMANCE?

A. I’M NOT SURE - NO. IT WAS - ALL THE

ACTIONS THAT I DESCRIBED ON THE TAPE TOOK

PLACE DURING THE INDIVIDUAL PERFORMANCE.

Q. TOOK PLACE WHILE THEY WERE DANCING?

A. YES.

[11] MR. LEVY: NO FURTHER QUESTIONS.

THANK YOU, SIR.

* » *

App. 21

SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF KING

NICK FURFARO, BRANDY

KIDDER, ESMERALDA SILVA,

)

AND JJR, INC., ) 66551-6

PLAINTIFFS, | 96-2-02226-8SEA

VS. )

CITY OF SEATTLE, ET AL.,

DEFENDANTS. ;,

)

REPORTER’S TRANSCRIPT ON APPEAL

DECEMBER 15, 1997

BEFORE THE HON. CAROL A. SCHAPIRA

* * *

[31] REDIRECT EXAMINATION +

BY MR. LEVY:

Q. CAPTAIN OLIVER, WHEN YOU RECEIVED

THE INFORMATION FROM GENERAL INVESTIGAT-

ING UNIT OFFICERS CONCERNING OBSERVATIONS

THAT THEY MADE IN THE NIGHTCLUBS BEFORE

NOVEMBER OF 1995, FROM WHOM DID YOU RECEIVE

THAT INFORMATION?

A. FROM ABOUT FOUR DIFFERENT INDIVID-

UALS.

Q. AND WHEN YOU RECEIVED THAT INFOR-

MATION, DID THEY GIVE IT TO YOU VERBALLY OR

IN WRITING?

App. 22

A. THEY GAVE IT TO ME VERBALLY.

Q. DID YOU SEE ANY DOCUMENTS ‘BEFORE

NOVEMBER OF [32] 1995, ANY DOCUMENTS WHICH

HAD BEEN PRODUCED BY THE VICE SECTION OR -

EXCUSE ME —- THE GENERAL INVESTIGATING UNIT

DOCUMENTING THE OCCURRENCE OF THE BEHAV-

IORS WHICH THEY DESCRIBED TO YOU?

A. NOT THAT I RECALL, NO.

Q. DID YOU VERIFY THAT YOURSELF, THAT

THE BEHAVIORS WERE TAKING PLACE?

A. NO, I DID NOT.

Q. NOW, IF YOU WOULD LOOK AT ITEM

NUMBER 5. PLEASE LOOK AT WHERE IT SAYS IN THE

TOP PARAGRAPH: (READING)

“GABRIELLE ON THE MAIN STAGE,

BLACK SPARKLING STRING BIKINI. SHE

TOUCHED HER ANUS, BUTTOCKS, MAS-

SAGED HER BREAST.”

IF AN OFFICER SAW GABRIELLE TOUCHING HER

BUTTOCKS, IN YOUR ESTIMATION, SIR, WOULD

THAT CONSTITUTE PROBABLE CAUSE TO PLACE

HER UNDER ARREST?

A. ACCORDING TO THE ORDINANCE, IF I

REMEMBER IT RIGHT, IT SAYS IF YOU TOUCH, MAS-

SAGE OR FONDLE.

Q. SO THE ANSWER IS YES?

A. BY THE ORDINANCE, BUT HE WAS ALSO

GIVEN INSTRUCTION BY ME WHAT I INTERPRETED

TOUCHING TO BE.

CAM ABS DLL CR EELS

eT ema eet pee oy

PURPUREA ea RS AEE Ie SPN REIN 8 EH Re AE RE ae gre

App. 23

Q. BUT ACCORDING TO THE ORDINANCE,

ACCORDING TO YOUR UNDERSTANDING OF THE

ORDINANCE, IF GABRIELLE TOUCHED HER BUT-

TOCKS, THAT WOULD BE PROBABLE CAUSE FOR AN

ARREST?

[33] A. SHE COULD BE ARRESTED ON PROBA-

BLE CAUSE, YES.

Q. AND IT WOULDN'T MATTER, AS FAR AS YOU

WERE CONCERNED, WHETHER THIS TOUCHING

TOOK PLACE IN THE COURSE OF A BALLET?

A. MY INSTRUCTIONS WERE DIFFERENT.

Q. IF GABRIELLE HAD MASSAGED HER BREAST

IN THE COURSE OF A BALLET DANCE, IT WOULDN'T

MAKE ANY DIFFERENCE TO YOU WHETHER SHE

WAS DANCING A BALLET OR NOT, YOU WOULD

STILL HAVE PROBABLE CAUSE FOR AN ARREST?

A. ACCORDING TO THE ORDINANCE UNDER

ADULT ENTERTAINMENT, IF THEY’RE ON STAGE

AND THEY ARE DOING IT AND THEY WERE MAS-

SAGING THEIR BREAST, HE WOULD ARREST THEM.

Q. EVEN IF SHE WERE DOING A BALLET?

A. EVEN IF SHE WAS DOING A BALLET.

* * *

App. 24

THE SUPREME COURT OF WASHINGTON

NICK FURFARO, BRANDY

KIDDER, ESMERALDA

NO. 68971-7

)

SILVA, and JJR, INC. aaa he as

maponenet, (Filed Jan. 7, 2002)

” ) King County No.

CITY OF SEATTLE, ) 96-2-02226-8 SEA

Petitioner. . C/A No. 43409-8-I

)

A mandate was issued in this case on December 27,

2001, which in pertinent part stated: “This cause is man-

date to the superior court from which the appeal was

taken for further proceedings in accordance with the

attached true copy of the opinion.” However, the Court

issued an Order Changing Opinion on December 5, 2001,

which remanded the case to the Court of Appeals for

further proceedings. Therefore, the mandate was issued

in error.

Pursuant to RAP 12.9(b), the mandate issued on

December 27, 2001, is recalled and the case is remanded

to the Court of Appeals for further proceedings in accor-

dance with the Order Changing Opinion issued by this

Court. -

DATED at Olympia, Washington this 7th day of Janu-

ary 2002.

/s/ C. J. Merritt

C. J. MERRITT

SUPREME COURT CLERK

RRB LOTS RTE LGR a SN aA

App. 25

The Court of Appeals

of the

State of Washington

Seattle

98101-4170

RICHARD D. JOHNSON, ; DIVISION 1

Court Administrator/Clerk One Union Square

600 University Street

(206) 464-7750

TDD: (206) 587-5505

March 27, 2002

Stephen P. Larson P. Cameron DeVore

David J. Onsager Kraig L. Baker

Stafford Frey Cooper Anuji Desai

2500 Rainier Tower Davis Wright Tremaine

1301 Fifth Avenue 2600 Century Square

Seattle, WA 98101-2621 1501 Fourth Avenue

Gilbert H. Levy - Seattle, WA 98101-1688

200 Market Place Two

2001 Western Avenue

Seattle, WA 98121

Case No. 43409-8-I, Nick Furfaro et all, v. City of Seattle.

RE: Request for briefing.

Dear Counsel:

We have reviewed the Supreme Court’s order dated

December 5, 2001, granting reconsideration and changing

the Court’s opinion. Based on a review of the briefing,

records and files in this case, this court has determined

App. 26

that it would be helpful to have further briefing from the

parties.!

In its order, the Supreme Court remanded this case

pursuant to RAP 13.7(b) “to consider the availability of

injunctive or declaratory relief under the state constitu-

tion and issues left unresolved by this opinion.” The

Supreme Court stated in the order that “State constitu-

tional claims for injunctive and declaratory relief arising

under Washington Constitution article I, section 5, are

remanded to the Court of Appeals, Division One, for

further appropriate proceedings.”

Accordingly, this court requests that the parties pro-

vide briefing on the claims identified above. The parties

may additionally wish to address what further proceed-

ings they feel are appropriate with respect to the issue of

the availability of declaratory or injunctive relief under

article I, section 5 of the Washington Constitution.

This court has Furfaro’s opening brief, dated June 30,

1998, the City’s response, dated August 31, 1998, Fur-

faro’s reply, dated September 25, 1998, all of which were

originally filed in the Supreme Court and later trans-

ferred to this court as the basis for the appeal decided by

this court. We have Furfaro’s supplemental brief filed

with the Supreme Court on July 3, 2000 and the City’s

supplemental brief filed with this court on the same date.

We also have the City’s subsequent petition for review in

the Supreme Court, and Furfaro’s response thereto as

1 RAP 10.1(h) provides that an appellate court may direct

the filing of briefs on the merits other than those specified in the

Rules of Appellate Procedure.

App. 27

well as Furfaro’s motion for reconsideration of the

Supreme Court’s opinion and the City’s opposition

thereto.

This material is sufficient to represent Furfaro’s

opening position on the merits of the issues remanded.

Therefore, we request that the City of Seattle file a

responsive brief within 30 days of receipt of this letter

with a copy served upon counsel of record in this case.

Upon receipt of the City’s responsive brief, Furfaro et al.

will have 30 days to file a reply brief. Each brief should

be no longer than 25 pages.

Sincerely,

/s/ Richard D. Johnson

Richard D. Johnson

Court Administrator /Clerk

CoA

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.