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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1538%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 1073

## Text

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,

vs

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.,

2

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).

a

3

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.

4

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

5

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).

6

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.

ee

7

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

8

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.

anh ss et AARON (ANNAN et

9

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)).

10

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.

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1538%3A5. Public record. Not legal advice.