Reply Brief — Metropolitan Government of Nashville and Davidson County v. Deja Vu of Nashville, Inc.

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No. 01-1324

IN THE

Supreme Court of the United States

The Metropolitan Government of Nashville and

Davidson County and Emmett Turner, Chief of Police

of the Metropolitan Police Department,

Petitioners,

Deja Vu of Nashville, Inc., et a/.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

PETITIONERS’ REPLY BRIEF

Thomas C. Goldstein Karl F. Dean

Amy Howe (Counsel of Record)

Goldstein & Howe, P.C. James L. Charles

4607 Asbury Pl., NW Francis H. Young

Washington, DC 20016 Metropolitan Government of

Nashville and Davidson

County

204 Metropolitan Courthouse

Nashville, TN 37201

(615) 862-6341

April 24, 2002

LOCATE ACRE SL CTEM. README ARITA: a Dah Ao PTI

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases

Armstrong v. Tennessee Dep't of Corr., No. M2000-02328-

COA-R3-CV, 2001 Tenn. App. LEXIS 428 (App. June

Fy BAND) sssnscisiesninaenndaedselaneecateadaaa aan 5

Baby Tam & Co. v. City of Las Vegas, 154 F.3d 1097 (CA9

DIE) asinssnnsisssisesas’ ccancsaaeesipuaeenaaieiaiaiiaieiak ai ailauaameammdnaalian 3

Blount v. Rizzi, 400 U.S. 10 UGTA) acesinsesascasssnnsccoscersesosencniocsens 6

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ......ccccccccceesseeeees 9

Cannabis Action Network v. Gainesville, 231 F.3d 761

(CA11 2000), vacated and remanded, 122 S. Ct. 914

City News & Novelty v. Waukesha, WI, 604 N.W.2d 870

(Wis. App. 1999), cert. dismissed as moot, 531 U.S. 278

CIDE) ssszinansntssssirissirnsianmeniicbesteaiaal ea ee anaiaaaais 7

City News & Novelty v. Waukesha, WI, 531 U.S. 278

CAI a isninssniasncosnigdanigumncaiiananieiiaaaal a naiadeae aa aaeiaeneeaaaa 2, 6,7

City of Chicago v. Morales, 527 U.S. 41 (1999)... .ceccecceeeeeees 9

Cooper v. Williamson County Bd. of Educ., 746 S.W.2d 176

CUM. TDTET } cnsnicnicncsnespictinanie taiaiguabaanantaaslaisis eateatia aubmanaenncaaaiois 8

Davison v. Carr, 659 S.W.2d 361 (Tenn. 1983) ......ccccccecseeeeees 8

Freedman v. Maryland, 380 U.S. 51 (1965) ..........cc00 1, 4, 6, 7

FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990) .... cece 4,5, 6,7

Graff v. City of Chicago, 9 F.3d 1309 (CA7 1993) (en

banc), cert. denied, 511 U.S. 1085 (1995)... eens 4,5

Hanrahan v. Williams, 673 N.E.2d 251 (Ill. 1996) ...........cceccee 7

Hooser v. Warren County Bd. of Educ., 807-S.W.2d 230

(Teme. 1900) cicicsssicnciacasniaagmaaadaninaianmenmen 8

Huffman v. Pursue, 420 U.S. 592 (1975) .....cceseceeeeeseesssteeeneeeees 5

MacDonald v. Chicago, 243 F.3d 1021 (CA7 2001), cert.

Ganded, 122 S. Cr. DUD CE cossicencnnseinasaecsnienieninnscates 2,4, 5

Martin v. Hunter's Lessee, 14 U.S. 304 (1816)... eeeeeeee 5

Massey v. Shelby County Retirement Bd., 813 S.W.2d 462

(Foam. G2. Agim. (GRE) vincssscsminitochsadannabaacemainens 10

iii

Nightclubs, Inc. v. City of Paducah, 202 F.3d 884 (CA6

Sava ilaceddatieashushinaaiassdanacilcasonieniancaeamenniuaieeashamammabianctpiaeuanaenan 2

Pickering v. Board of Education, 391 U.S. 563 (1968)............ 10

Redner v. Dean, 29 F.3d 1495 (CAI11 1994)...ccccccccceceeeeeees 4

Rhea County v. White, 43 S.W.2d 388 (Tenn. 1931) .0.......00000.. 9

Robinson v. Clement, 65 S.W.3d 632 (Tenn. Ct. App. 2001) .... 5

Robinson v. Traughber, 13 S.W.3d 361 (Tenn. Ct. App.

ARNT ERG PaCS RC OR ee Ne ae Sa TD 5

Runyon v. McCrary, 427 U.S. 160 (1976)........::cccccsccesssssseeeeeees 2

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

SIMU TE aisccbashnsasiabicsdctadateusanssteseniaadacamastueloontcmmumauadanincicoanan: 4.6

Stratton v. Wenona Comm. Unit Sch. Dist., 551 N.E.2d 640

ED, RRS OE Ueda See ap aN NA OREN ROR FR ANT SE ea RY SEE 5

Thomas v. Chicago Park Dist., 122 S. Ct. 775 (2002)... 1. 5, 6. 7

Thomas v. Chicago, 227 F.3d 921 (CA7 2000)...........cccccceceseeee. 5

TK's Video, Inc. v. Denton County, Tex., 24 F.3d 705 (CA5

UNI aischushessltasdanchesdeiceacndetaaadssaaeannieaasanbiacauadajaeadagliuanidbacncaadanamascucaeee =

Watts v. Civil Service Bd., 606 S.W.2d 274 (Tenn. 1980),

COVE, GOIN, SSS UD. FES CUSST) nccccescesesencsresererccanscncesnsenses 10

Regulations

Metropolitan Code of Nashville and Davidson County,

Chapter 6.54, Section .040(E)(2)............0.c.cscccsscccccccessceeesees :

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PETITIONERS’ REPLY BRIEF

This case presents an ideal vehicle to resolve an important

and frequently recurring circuit conflict that this Court has

already twice granted certiorari to decide: whether the First

Amendment guarantees adult businesses a “prompt judicial

decision” on appeal from adverse licensing decisions, or instead

is satisfied when municipalities provide “prompt access” to

judicial review. The ordinance at issue in this case (Ch. 6.54,

Metropolitan Code of Nashville and Davidson County (“the

Ordinance”)) grants adult businesses and entertainers an

immediate right of appeal, but it does not mandate a timetable on

which a court must grant a writ of certiorari and thus hear the

case. The Sixth Circuit, applying that court’s settled precedent,

which conflicts with decisions of several other circuits, held the

Ordinance unconstitutional because it fails to “assure a prompt

judicial decision.” Pet. App. 33a n.8 (quoting Freedman v.

Maryland, 380 US. 51 (1965)) (emphasis omitted).

Respondents’ contention that this case is an inappropriate

vehicle to resolve the conflict because the Ordinance permits

judicial review through “common law certiorari” has the matter

precisely backwards. Indistinguishable state law certiorari

procedures were presented not only in the principal decisions

giving rise to the circuit split, but also in both of the cases that

this Court previously decided to review. The Petition for a Writ

of Certiorari accordingly should be granted.

1. Respondents do not dispute that the circuits are in

irreconcilable conflict over the principal question presented by

the Petition. As this Court has explained, the Sixth Circuit is on

the bottom of a four-to-three split. See Thomas v. Chicago Park

Dist., 122 S. Ct. 775, 781 (2002) (citing cases). Respondents

contend in passing (at 17) that this Court miscalculated the

conflict in Thomas by citing decisions of the First and Seventh

Circuits that did not involve “adult business licensing schemes.”

But this Court correctly recognized that the rationale of the First

and Seventh Circuits’ rulings places them in square conflict with

courts, including the Sixth Circuit, that require a “prompt

judicial decision” in the adult-business context. See also, e.g.,

MacDonald v. Chicago, 243 F.3d 1021, 1031 (CA7 2001)

(citing Seventh Circuit precedent to expressly reject, inter alia,

the Sixth Circuit’s leading adult-business licensing case,

Nightclubs, Inc. v. City of Paducah, 202 F.3d 884 (CA6 2000)),

cert. denied, 122 S. Ct. 919 (2002). Even on respondents’ view

that the circuits are split three-to-two, the conflict is easily

substantial enough to justify review in this Court, as is plain

from the orders granting certiorari in both Thomas, supra, and

City News & Novelty v. Waukesha, WI, 531 U.S. 278 (2001).'

2. Every judge to consider respondents’ challenge to the

Ordinance has concluded that, because administrative rulings for

“existing” entertainers and businesses are stayed pending a

decision by the court “on the merits” of any appeal (Ord.

§ .040(E)(3), .070(D)(3)), those administrative rulings do not

take effect unless and until the court grants the writ of certiorari

and decides the appeal. See Pet. App. 33a n.8, 40a, 99a. The

lower courts’ construction of Tennessee law is binding absent

exceptional circumstances not present here. See Runyon v.

McCrary, 427 U.S. 160, 181-82 (1976). It thus makes no

difference that (as respondents belabor (at 11-15) and the

Petition acknowledged (at 5-6 n.6)) petitioner contended at oral

argument before the district court that the denial of a writ of

certioran was a decision “on the merits.”

Nor do respondents even attempt to dispute the great importance

of the question presented. An array of municipalities nationwide now

face challenges to their content neutral adult-business licensing schemes

because they are powerless to guarantee that the state courts will decide

appeals from administrative rulings by a date certain. See generally

IMLA Amicus Br. Both petitioner and the State of Tennessee have been

required to amend their municipal and state laws to conform to an ever-

expanding mandate under the Sixth Circuit’s construction of the First

Amendment. See, e.g., BIO 5 n.3 (noting state law amendment enacted

in response to district court’s preliminary injunction); Reply App. 1-2

(reproducing newest statutory amendment adopted by Tennessee

legislature to conform state law to Sixth Circuit’s decision in this case,

which amendment is expressly conditioned on outcome of this case in this

Court to avoid any prospect of mootness).

To be sure, respondents correctly note (at 13 & n.9) that

their suit is not limited to existing businesses and entertainers.

Rather, they brought a facial overbreadth challenge to the entire

Ordinance, including the provisions applicable to “new”

businesses and entertainers. Under those provisions, the

administrative ruling is effective immediately. See Ord.

§§ .040(E)(2) & (4), .070(D\(2) & (4). Respondents err.

however, in contending that this case is an inappropriate vehicle

to decide the question presented with respect to “new”

applicants.

Respondents’ argument (at 4) is that the Sixth Circuit

concluded that the common law writ of certiorari in Tennessee,

as in other states, gives a court the power “to deny a petition for

issuance of the writ, and never then reach the merits of the issues

sought to be reviewed.” That much is true. But respondents err

in baldly asserting (at 5) that the consequence of the trial court’s

discretion is that the Ordinance “does not even provide prompt

access to a judicial forum” (emphasis in original). The

Ordinance guarantees that petitioner will issue its administrative

decision promptly on a fixed time-table. See Pet. 3 (citing Pet.

App. 99a-100a).? As noted, the applicant may then immediately

file in court its request for Certiorari, which sets out all of its

claims. This process guarantees “prompt access” to a judicial

officer just as much as a provision immediately permitting the

adult business to file a “notice of appeal.” For this reason, the

courts adopting the majority view that “prompt access” to

judicial review satisfies the First Amendment sustain measures

that, like the Ordinance in this case, do not guarantee when the

court will consider the adult business’s appeal. See Baby Tam &

Co. v. City of Las Vegas, 154 F.3d 1097, 1101 (CA9 1998)

(“The Fifth and Seventh Circuits have held that prompt access to

judicial review is sufficient, even if there is no time frame for a

hearing or a decision on the merits.” (emphasis added) (citing

2‘ Thus, although the majority below noted that the First

Amendment requires a municipality to make its administrative ruling

“within a specified, brief period” (Pet. App. 33a n.8), there is no dispute

that the Ordinance satisfies that requirement.

TK's Video, Inc. v. Denton County, Tex., 24 F.3d 705, 709 (CAS

1994); Graff v. City of Chicago, 9 F.3d 1309, 1324-25 (CA7

1993) (en banc), cert. denied, 511 U.S. 1085 (1995))).

Furthermore, respondents’ emphasis that the Ordinance

permits businesses and entertainers to appeal through common

law certiorari procedures only highlights that this is an ideal

vehicle to resolve the circuit split. The circuits that reject the

Sixth Circuit’s “prompt judicial decision” requirement hold that

indistinguishable discretionary common law __ certiorari

procedures satisfy the First Amendment. Indeed, those

decisions lie at the heart of the circuit conflict presented by this

case. As the Eleventh Circuit has explained:

Some courts have considered the holding in

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

(1975)] to be a requirement that the statute, regulation or

ordinance explicitly provide for prompt judicial review of

the decision to suppress expressive activity. Yet, other

courts have since distinguished Southeastern on its facts to

hold that non-statutory judicial access, usually access

through a state's common law writ of certiorari, is

sufficient.

Much of the confusion flows from the Supreme Court’s

plurality opinion in FW/PBS.

Cannabis Action Network v. Gainesville, 231 F.3d 761, 774

nn.18 & 19 (CA11 2000) (citing Redner v. Dean, 29 F.3d 1495

(CA11 1994) (adult-business case)), vacated and remanded, 122

S. Ct. 914 (2002). The Seventh Circuit has similarly explained:

In Illinois, judicial review of a decision to deny a permit

application may be had in state court by a writ of common

law certiorari. This is not good enough, according to

MacDonald: MacDonald argues that the Freedman “prompt

judicial review” safeguard requires more than a possibility

of judicial review--it requires the guarantee of a prompt

decision on the merits.

The circuits are split on this issue.

MacDonald, 243 F.3d at 1035 (emphasis added). See also, e.g.,

Thomas v. Chicago, 227 F.3d 921, 926 (CA7 2000) (holding

that common law certiorari satisfies FW/PBS) (citing Graff v.

City of Chicago, 9 F.3d 1309 (CA7 1993) (en banc), cited in

Thomas, 122 S. Ct. at 781)); Stratton v. Wenona Comm. Unit

Sch. Dist., 551 N.E.2d 640, 646 (Ill. 1990) (explaining that writ

is discretionary under Illinois law).

Respondents’ related argument only reinforces that the

conflict is squarely presented as to both “new” and “existing”

entertainers and businesses: “Petitioner admits that the

Metropolitan code does not ‘guarantee that the appeal will be

decided by a date certain’” (BIO 4 (quoting Pet. 2)) because

“there is no time limit for a court to decide upon whether to

grant the petition or not” (id. 5). Precisely: although the

Ordinance grants applicants “prompt access” to judicial review

by permitting them to file an immediate appeal (see

§§ 6.54.040(E)(2), .070(D)(2), .110(M), .150(E)(6)), the

Ordinance does not guarantee them a “prompt judicial

decision.”

> Respondents err in asserting, without any citation to Tennessee

law, that a trial court has the “absolute discretion” to deny the writ. It has

long been settled in Tennessee that common law certiorari will be granted

if the applicant makes out a “prima facie” entitlement to the writ. Rhea

County v. White, 43 S.W.2d 388, 397 (Tenn. 1931). And a trial judge’s

holding that an applicant is not entitled to a writ of certiorari is itself

subject to appellate review. See, e.g., Armstrong v. Tennessee Dep't of

Corr., No. M2000-02328-COA-R3-CV, 2001 Tenn. App. LEXIS 428

(App. June 7, 2001) (reviewing substance of First Amendment claim to

determine whether trial court abused its discretion in denying common

law writ); see also, ¢.g., Robinson v. Clement, 65 S.W.3d 632 (Tenn. Ct.

App. 2001); Robinson v. Traughber, 13 S.W.3d 361 (Tenn. Ct. App.

1999). Furthermore, respondents’ own argument is self-defeating: if

respondents are correct that the First Amendment is satisfied only by

granting the writ of certiorari in appeals from adult-business licensing

decisions, then state judges will be required to grant the writ by their duty

to enforce the Federal Constitution. See U.S. Const., Art. VI; Huffman v.

Pursue, 420 U.S. 592, 611 (1975); Martin v. Hunter's Lessee, 14 US.

304, 341-44 (1816) (Story, J.); cf. Pet. 10 n.8 (explaining that

respondents’ position relies on the unsupportable premise that state judges

will fail to enforce the Constitution).

Indeed, this case is plainly an ideal vehicle to resolve the

circuit conflict because the second question raised by the

Petition (which relates to the additional procedural protections

the Ordinance provides) presents this Court with the opportunity

to address thoroughly the timing for judicial review required by

the First Amendment. As the Petition explained (at 11) and

respondents do not dispute, assuming this Court adopts the

minority view that “prompt access” to judicial review does not

satisfy the Constitution, question two allows the Court to

address whether other measures short of guaranteeing a “prompt

judicial decision” - such as a stay of adverse administrative

rulings and the issuance of an interim license — are sufficient

under the First Amendment. A definitive ruling on the

constitutionality of these measures is essential because, as

respondents must concede, a municipality is powerless to require

a State court to issue a “prompt judicial decision.”

3. Respondents’ passing merits argument (at 16) is wrong

for the reasons set forth in the briefs on the merits in support of

the municipalities in City News & Novelty and Thomas, supra,

which are easily summarized. The cases on which respondents

rely all addressed measures that authorized administrators to

prohibit speech based on its content. See Southeastern

Promotions v. Conrad, 420 U.S. 546 (1975) (municipal review

board authorized to deny permission to stage production based

on production’s content)*; Blount v. Rizzi, 400 U.S. 410 (1971)

(Postmaster General authorized to seize materials he deemed

obscene). By contrast, an adult-business licensing ordinance

does not involve content-based determinations and thus “does

not present the grave ‘dangers of a censorship system.’”

FW/PBS, Inc. v. Dallas, 493 U.S. 215, 229 (1990) (plurality)

(quoting Freedman, 390 U.S. at 58). |

Moreover, the two prophylactic concerns underlying the

requirement that censorship schemes guarantee a “prompt

* Respondents’ claim (at 11, 16) that the Tennessee common law

writ of certiorari was at issue in Southeastern Promotions is just wrong.

That case instead concerned a municipal censorship scheme that “did not

provide a procedure” for judicial review. 420 U.S. at 561.

judicial decision” are absent in the context of adult-business

licensing. Although courts have expertise in determining

whether the content of speech is constitutionally protected

(Freedman, 380 U.S. at 58), it is instead municipalities that have

greater expertise in the workaday determination whether any

particular business, including an adult business, is in compliance

with a municipal code. And there is little or no risk that an adult

business will engage in “self-censorship” (id.): “The license

applicants * * * have much more at stake than did the motion

picture distributor considered in Freedman, where only one film

was censored. Because the license is the key to the applicant’s

obtaining and maintaining a business, there is every incentive

for the applicant to pursue a license denial through court.” -

FW/PBS, 493 U.S. at 229-30 (plurality).

4. Nor is there any merit to respondents’ remaining

argument (at 6-11) that the scope of review on common law

certiorari is insufficiently searching to satisfy the First

Amendment. Preliminarily, that argument plainly presents no

obstacle to review in this Court, given that the same standard

applied under the ordinances at issue in both City News &

Novelty and Thomas. See Hanrahan v. Williams, 673 N.E.2d

251, 273 (Ill. 1996) (illinois common law certiorari cannot

overturn factual determinations unless “against the manifest

weight of the evidence”); City News & Novelty v. Waukesha,

WI, 604 N.W.2d 870, 876 (Wis. App. 1999) (inquiry under

Wisconsin certiorari procedure is whether municipal action was

“arbitrary” and “the evidence was such that the board might

reasonably make the order or determination in question”), cert.

dismissed as moot, 531 U.S. 278 (2001). Furthermore, the scope

of judicial review (as opposed to its timing) would be left for

remand rather than decided by this Court in the first instance

because that issue (i) is not included within the question

presented, (ii) is not the subject of a circuit conflict that would

merit review in this Court; (iii) was not decided by the majority

below, and (iv) turns on a disputed question of state law — viz.

the extent to which constitutional claims can be raised via the

common law writ in Tennessee.

TS ee

In any event, respondents are wrong to contend that the

scope of review provided by Tennessee common law certiorari

violates the First Amendment, a claim that no judge has

accepted and that the district judge and the dissenting judge

below both rejected in concluding that the Ordinance is

constitutional. See Pet. App. 40a, 106a. Respondents correctly

state (at 6) that common law certiorari in Tennessee, unlike

statutory certiorari, does not permit the judge to hold a “trial de

novo” to “reconsider and redetermine all the issues of fact, as

well as law as if no such determination had been previously

made” (Hooser v. Warren County Bd. of Educ., 807 S.W.2d

230, 236 (Tenn. 1991)). Instead, any factual claims by the adult

business turn on whether there was “material evidence to

support the agency’s findings.” Davison v. Carr, 659 S.W.2d

361, 363 (Tenn. 1983), quoted in Cooper v. Williamson County

Bd. of Educ., 746 S.W.2d 176, 179 (Tenn. 1987). Contra BIO

10 (erroneously claiming, without citation, that administrative

fact-finding is “immune” from review on common law certiorari

(emphasis in original)). But, as respondents themselves explain

(at 8), the factual claims that arise under the Ordinance

“fijmplicat[e] no constitutional or procedural issues

whatsoever’; instead, the factual issues involve matters such as

whether the applicant needs “to clean a number of couches,

restroom walls, fixtures and shower stalls; repair a commode;

and provide covered waste containers.” See also id. at 9 (“repair

a hand sink, clean some walls, air conditioning vents and storage

areas”; “eliminate storage that may attract rodents and insects”;

“clean the restroom floors, and provide covered trash cans”).°

The First Amendment does not require, and common sense

does not suggest, that a court should throw out the

administrative fact-finding on those issues, which as noted falls

squarely within the realm of municipal expertise. Although

Although respondents go beyond the record to state (at 7) that 15

applicants were initially denied licenses under the Ordinance, the more

Salient fact is the one they omit: that all 15 (including the six adult

businesses at issue in this case) were granted licenses once they made

needed repairs.

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respondents hope to suggest that the administrative fact-finding

might relate to the content of an adult business’s speech — such

as “violations of obscenity, indecent exposure and public nudity

laws” (BIO 8 n.5) - those facts are determined in separate

criminal or nuisance proceedings, not at the administrative

licensing stage. The “performance standards” to which

respondents euphemistically refer (id.) concern not First

Amendment expression, but instead sex acts, prohibiting (for

example) an applicant to “perform or allow customers,

employees or entertainers to perform sexual intercourse or oral

or anal copulation or other contact stimulation of the genitalia on

the premises” (emphasis added).

Nor are the types of claims that adult businesses can raise

pursuant to Tennessee common law certiorari so limited as

respondents hope to suggest. “The legislative and judicial

history of this State manifests a strong purpose not to curtail the

right to review by the writ of certiorari the exercise of judicial

power by inferior or quasi-judicial tribunals.” Rhea County v.

White, 43 S.W.2d 375, 377 (Tenn. 1931). The matters

reviewable under the writ manifestly include a “violation of

constitutional or statutory provisions” (Massey v. Shelby County

® See, e.g., Ord. § .050(B)(5) (“No applicant shall have been found

to have previously violated Section 17.36.260 of the metropolitan zoning

code, applicable to sexually oriented/adult entertainment businesses, as

evidenced by the judgment of a court within one year immediately

preceding the date of the application.”); id. § .080(A)(2) (“No applicant

convicted of a crime of a sexual nature, as defined in Section 6.54.010, in

any jurisdiction shall be eligible to receive a permit for the time period

described below.”).

Respondents also imagine scenarios that have never arisen, such as

an individual who claims that he has been misidentified as a person with a

prior conviction or an entity that disputes it is an adult business. These

hypothetical examples, however, are not susceptible of a First

Amendment facial overbreadth challenge like respondents’ suit. See City

of Chicago v. Morales, 527 U.S. 41, 52 (1999) (“[T]he overbreadth

doctrine permits the facial invalidation of laws that inhibit the exercise of

First Amendment rights if the impermissible applications of the law are

substantial when ‘judged in relation to the statute’s plainly legitimate

sweep.”” (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612-15 (1973)).

Retirement Bd., 813 S.W.2d 462, 464 (Tenn. Ct. App. 1991))

because the writ inquires whether the administrative decision

maker acted “in violation of constitutional or statutory

provisions or in excess of its own statutory authority; has

followed unlawful procedure or been guilty of arbitrary or

capricious action; or has acted without material evidence to

support its decision” (Watts v. Civil Service Bd., 606 S.W.2d

274, 277 (Tenn. 1980), cert. denied, 450 U.S. 983 (1981)). For

example, in Watts, the Tennessee Supreme Court evaluated

whether a Civil Service Board’s ruling against a police officer

violated the First Amendment under Pickering v. Board of

Education, 391 U.S. 563 (1968).

CONCLUSION

For the foregoing reasons. as well as those stated in the

Petition for a Wnit of Certiorari, certiorari should be granted.

Respectfully submitted.