Opposition Brief — City of Henderson v. Nevada Entertainment Industries, Inc.

No. 94-662

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1994

CITY OF HENDERSON, A NEVADA MUNICIPAL

CORPORATION, JAMES GOFF, CHIEF OF POLICE OF

THE CITY OF HENDERSON,

Petitioners,

vs.

NEVADA ENTERTAINMENT INDUSTRIES, INC.,

A NEVADA CORPORATION AND DANIEL BISHOP,

Respondents,

RESPONSE TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROGER JON DIAMOND

2115 Main Street

Santa Monica, California 90405

Telephone: (310) 399-3259

Counsel for Respondents

iA ces

reseas

TABLE OF AUTHORITIES

New Orleans Public Service, Inc. v.

Council of City of New Orleans (1989)

49 U.S. 350, 109 S.Ct. 2506 3

Younger v. Harris (1971)

401 U.S. 37, 91 S.Ct. 746 a

NO. 94-662

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

CITY OF HENDERSON, A NEVADA

MUNICIPAL CORPORATION, JAMES GOFF,

CHIEF OF POLICE OF THE CITY OF

HENDERSON

PETITIONERS

Ve

NEVADA ENTERTAINMENT INDUSTRIES,

INC., A NEVADA CORPORATION AND

DANIEL BISHOP

RESPONDENTS

RESPONSE TO

PETITION FOR WRIT OF CERTIORARI

UNITED STATES COURT OF APPEAL

FOR THE NINTH CIRCUIT

Respondents Nevada

Entertainment Industries, Inc. and

Daniel Bishop, (hereinafter "

Nevada Entertainment Industries"),

1

pursuant to Rule 12.4, hereby

support Petitioners' request to

review the Ninth Circuit's

decision.

Respondents filed their own

Petition, (No. 94-786), to review

the same judgment for other reasons

independent of the Petition in the

instant case. The separate

Petition filed by the City of

Henderson (the instant case)

raises an issue which this Court,

having previously and expressly

left open, should now resolve.

The open issue involves the

critically important abstention

doctrine and its application to

Civil Rights litigation and related

administrative proceedings. While

2

Respondents strongly disagree with

Petitioners as to how this Court

should resolve the issue, they do

agree that this Court should accept

this case to resolve the issue.

The issue is whether the abstention

doctrine of Younger v. Harris, 401

U.S. 37, 91 S.Ct. 746 (1971) should

apply to cases where the

administrative action has become

final. |

In footnote 4 of its Opinion

in New Orleans Public Service, Inc.

y. Council of City of New Orleans,

49 U.S. 350, 109 S.Ct. 2506 (1989),

this Court expressly stated that

the issue was left open.

Specifically, this Court stated in

NOPSTI,

"In Ohio Civil Rights

Comm'n_v. Dayton

Christian Schools, Inc.

477 U.S. 619 (1986), we

held that the Younger

doctrine prevented an

injunction against an

ongoing sex-discrimina-

tion proceeding before

the Ohio Civil Rights

Commission. The only

other decision of ours

arguably applying Younger

to an administrative

proceeding, Middlesex

County Ethics Comm. v.

Garden State Bar Assn.,

457 U.S. 423 (1982),

similarly involved a

situation in which the

proceeding was not yet at

an end. The fact that

relied, as an alternative

argument, upon the fact

that the federal

challenge could be made

upon appeal to the state

courts, see 477 U.S., at

629, suggests, perhaps,

that an administrative

proceeding to which

Younger applies cannot be

challenged in federal

court even after the

administrative action has

become final. But we

4

have never squarely faced

the question." (Some

emphases in original,

some emphases added.) ___

os. .... 1668.Ct.

at 2518-2519, n.4.

In the instant case,

Respondents filed their civil

rights action after the decision of

the City Council became final.

Thus, if this Court grants

certiorari in this case it will

have the opportunity to resolve

this open question.

Respondents have an interest

in having this matter resolved

because the decision of the United

States Court of Appeals for the

Ninth Circuit in the instant case

was initially published at 8 F.3d

1348 (9th Cir. 1993) and although

later withdrawn, the various

district courts had been relying

upon the "reasoning" of the Ninth

Circuit to abstain in deference to

local administrative proceedings.

This has created great uncertainty

in the "First Amendment Bar," and

in those local City Attorneys who

have to deal with issues involving

adult bookstores, adult cabarets,

and similar establishments.

Because of the Ninth Circuit's

decision below (although

withdrawn), more adult bookstores,

cabarets, and similar businesses

are avoiding local administrative

proceedings altogether and filing

directly with the federal courts so

as to avoid the abstention doctrine

altogether. That is, the decision

6

of the Ninth Circuit below is

causing many in the industry to

avoid administrative proceedings

altogether for fear of loosing

their right later on to go to the

federal court in case it should

become necessary. There is a great

deal of uncertainty that could be

resolved by the grant of certiorari

in this case.

Respondents, of course, are of

the opinion that Younger does not

apply after the administrative

action has become final. The Ninth

Circuit rejected Respondents'

position initially before it

withdrew its opinion and replaced

it with its second opinion which is

the subject of the Petition for

Writ of Certiorari in the companion

7

case.

Accordingly, Respondents join

in Petitioner's request that

Certiorari be granted herein.

Respectfully submitted,

ROGER JON DIAMOND

Attorney for Respondents