Opposition Brief — City of Henderson v. Nevada Entertainment Industries, Inc.
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SHAUNA M.HUGHES
No. 94-786
IN THE
Supreme Court of the
OCTOBER TERM, 1994
NEVADA ENTERTAINMENT INDUSTRIES, INC.,
A NEVADA CORPORATION AND DANIEL BISHOP,
PETITIONERS
v.
CITY OF HENDERSON, A NEVADA MUNICIPAL CORPORATION,
JAMES GOFF, CHIEF OF POLICE OF THE CITY OF HENDERSON,
RESPONDENTS
On Petition For A Writ Of Certiorari
To The United States Court Of
Appeals For The Ninth Circuit
RESPONDENTS’ BRIEF IN OPPOSITION
City Attorney JAMES J. CLANCY
LIZA CONROY (Counsel of Record)
Assistant City Attorney CAROL A. CLANCY
9055 La Tuna Canyon Road
City of Henderson Sun Valley, CA 91352
240 Water Street (818) 352-2069
Henderson, NV 89015
(702) 565-2394 Counsel for Respondents
ot
ole
QUESTIONS PRESENTED BY RESPONDENT
CITY OF HENDERSON ET. AL., IN
RELATION TO ELEVENTH AMENDMENT
INFIRMITIES IN LIEU OF PETITIONER
NEVADA ENTERTAINMENT’S QUESTIONS 1,
2, AND 3.
I
Whether the filing of the federal
civil rights complaint by Nevada
Entertainment Enterprises, Inc., a Nevada
Corp. and citizen of the State of Nevada,
in the U.S. District Court for the
District of Nevada on April 24, 1990,
while the Nevada State License Revocation
Proceedings were still pending before the
City Council of Henderson sitting as a
Nevada Quasi-Judicial Board of Fact
Finders, in which a quasi-judicial order
of business license revocation by the
Henderson City Council had been
voluntarily stayed for 10 days by the City
Council from its issuance on April 16,
41990 to May 1, 1990, for the purpose of
permitting Nevada Enterprise to appeal
Nevada District Court, under the State of
: - —————=-™
wite
Nevada procedure, and Nevada Enterprises’
procurement and execution of a compulsive
federal temporary restraining order, and
compulsive preliminary injunctions of the
U.S. District Court and the U.S. Court of
Appeals, which extended the City Council's
stay order indefinitely and interfered
with the State of Nevada’s Administration
of the judicial procedures; constituted a
“patent” violation of the Eleventh
Amendment to the Federal Constitution by
Nevada Entertainment which, per force,
ousted the federal courts of subject |
matter jurisdiction and required the U.S..
District Court and Court of Appeal to
abstain and dismiss such Complaint in the
U.S. District Court under this Court's
binding precedents in Huffman v. Pursue
Ltd., 420 U.S. 592 (1975) and Ohio Civil
Rights Commission v. Dayton Christian
Schools Inc., 477 U.S. 619 (1986).
i: aaa sae me
-iii-
II
Whether the City of Henderson was
denied due process of law by the Ninth
Circuit Court of Appeals’ (Browning,
Canby, and Kelleher) Order of April 7,
1994 withdrawing its opinion in 8 F3,
1348, without cause and without
explanation, and refusal of that Court to
apply (as the law of the case) the rulings
of this Court in Huffman v. Pursue Ltd.,
supra, and Ohio Civil Rights Commission v.
Dayton Christian School, Inc., supra,
which the Ninth Circuit on November 2,
1993 had held to be binding precedent in
Nevada Entertainment Industries Inc. v.
City of Henderson, 8 F3, 1348, and which
required the federal court to dismiss the
federal complaint, but which refused to
rule upon the City’s additional claim that
the dismissal was predicated upon an
Eleventh Amendment violation: and for lack
of subiect matter jurisdiction, and where
such refusal, and subsequent withdrawal
has caused Nevada Entertainment
oiy=
Inc., thereafter, in its Response in No.
662 and its Petition in No. 786, to change
its prior arguments, and to file this
petition for writ of certiorari under a
(different) rule of law which had not,
theretofore, been available to it under
the Huffman vy. Pursue, and Dayton
Christrian School rulings which required a
dismissal of the federal civil complaint
for violation of the Eleventh Amendment,
see Petition for Writ of Certiorari in
94-662 at pages 32 and 33, and 34.
-Y~=
TABLE OF CONTENTS
TABLE OF AUTHORITIES. ...0ccccccccee
THE NEVADA ENTERTAINMENT STATEMENT
OF FACTS IS EGREGIOUSLY IN ERROR...
STATEMENT OF FACTS i cicccccccccdccsse
THE ELEVENTH AMENDMENT FORBIDS THE
FILING OF NEVADA ENTERTAINMENT 'S
FEDERAL COMPLAINT........e+seeeeves
RESPONDENTS’ OBJECTIONS TO
PETITIONERS QUESTIONS 1, 2,
BRD Be cccePbpesisevecccscrevecervede
-vi-
FEDERAL CASES
Anderson v. Haless,
469 0.8. Gar ee ra vs kc ct cack tcans 50
DC. Court of Appeals vy. Feldman,
460 U.8.: 468 See chs eeed ie nes 042 26
23 F.3d 218 (CA 9,
April ©, 199G Decne svnceveseceds eee ves 33, 34
England v. Louisiana State Board
of Medical Examiners
376 G. Hh. : Bee Cok bn dais ba ews 16
Hicks yv. Miranda,
"4224 ©. Be ee iar es Fk ae vei 15, 24
Huffman v. Pursue, Ltd...
420 U.S. S98 ChGpeics ocean es aS: a) Pee |
26, 28, 30, 32, 33, 36, 45,
48, 51, 52, 53
Kokkonnen v. Guardian Life Ins, Co.
of America,
54 CCH S.Ct. Bull. B1724
(CA ©, Wie Se ah on os hc ee 37
New York Football Giants. Inc. v.
L.A. Chargers Football Club, Inc.,
291 F. Fe Bee ee rs oe 6 oe rces 14
Ohio B Emp) ts
yv. Hodory,
43% ©.5. SUE Ce a a a ee co so 16
Ohio Civil Rights ¢ POON
Dayton Christian Schools, Inc.
477 U.3. Ga Fee eh aceeiesecst ice 44, 53
-vii-
TABLE OF AUTHORITIES
PAGE
FEDERAL CASES
11126 Baltimore Blvd. v. Prince George's
MCMC TERIA: |.0. Fives s cugaqeeesdggacesese: 49
11126 Baltimore Blyd v Prince George's
County, Md.,
32 F.3d 109
ee errr err ere ee Pee 49
Watson v. Buck,
313 U.S. 367 (1941)... cece eee eeees 28, 48, 49
RU rere i ecceseccedcesccses 40
23 F.3d 263 (CA 9,
BO h By BOBS Frc ccs ccscccscesecsccccres 33, 34
Inc. vy. City of Tempe,
820 F.2d 1079 (CA 9, 1987).----+eeeeeers a
Younger v. Harris
401 U.S. 37 (1971)... ccccrcvereres 13, 35, 48
City of Las Vegas v. Nevada Industries
ER £2). Serre 18, 44, 45, 46, 52
United Stat : bituti
Amendments
EE pc chee eee eeeeereseserrresees 47
Eleventh......-+--> ‘a. 2, 23. 39, 40,
41, 45, 47, 48, 51
Fourteenth..... secre eerrrrrerees 47
——————————————
~<viii-
TABLE OF AUTHORITIES
PAGE
FEDERAL STATUTES
28 U.S.C.
Section 12920 D). ccc reverence creveese 25
Section 1651 a)... ccs ccesereersvees 21
Section 2101(e). 1... cece cere ne nnves 20
Section 2101(f)....... weeveer ress Y 20
Section 19B3... cc crcccssscesess Si, be
Section 1988... ccc ccvv sree ssevceens 54
FEDERAL RULES
eS Se Pee eee eee ee eee 21
i ty ke ee ee ee a ee ee eee 20
Rule B2siEr 6 Hee Kec ie chee este eters 20
Ss - Ss errerewererwe gas ORR Se ee ee ee 21
Rule Lbs bce Ce Cee COCR STO CEPT Ce ee ee 54
Rule 62(C). vc ccvcstrenessessiveseces 28
Federal Rules of Appellate Procedure
PS ere rt ee a 25
Dube GCE) 6 cic se cet et se tcc ciciveves 38
reg TSS Eee erty Cr Re 30
oo a oy Pe ae eee a ee ee 31
“Supreme Court's Construction
of Eleventh Amendment, Restricting
Federal Judicial Power over Suits
against States,”
Mee RIO eee be edtbs Cbbeakin, 41
Stern, Gressman, Shapiro, and Geller,
“Gin & BJT 50
«je
In the Supreme Court
of the
United States
OCTOBER TERM, 1994
NEVADA ENTERTAINMENT INDUSTRIES, INC.,
a Nevada corporation and DANIEL BISHOP
Petitioners,
vs.
CITY OF HENDERSON, a Nevada Municipal
corporation, JAMES GOFF, CHIEF OF POLICE
OF THE CITY OF HENDERSON,
Respondents.
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
RESPONDENTS’ BRIEF IN OPPOSITION
The respondents City of Henderson, a
Nevada Municipal corporation, and JAMES
GOFF, CHIEF OF POLICE OF THE CITY OF
HENDERSON, respectfully request that this
Court summarily deny Nevada
Entertainment's petition for writ of
certiorari, seeking review of the Ninth
Circuit opinion in this case which is
unreported, as a frivolous petition,
-2-
without any merit whatsoever, or
consolidate this Petition with the City of
Henderson's Petition in Case No. 662 and
set both Petitions for argument and
decision on the questions raised in Case
No. 662.
TITHE NEVADA ENTERPRISE STATEMENT
OF FACTS IS EGREGIOUSLY IN ERROR.
The petitioners’ NEVADA ENTERTAINMENT
INDUSTRIES, INC., a Nevada corporation and
DANIEL BISHOP (hereinafter “Nevada
Entertainment) gtatement of the facts,
which appears at pages 4-8 under the
heading “Statement of the Case’, is
egregiously in error, and is fatally
flawed __in relation _._.to Nevada
Entertainment ’s present election, after 4
, Lit bi to “ol r ‘
and now argue for the first time, in the
face of _uncontrovertible facts to the
contrary, that it pleaded an “independent
action in the federal court which has
raised a serious challenge to the
=3<
constitutionality of the ordinances
themselves. See page 5 at lines 6-15
reading:
“Ihe action was filed after the
on the ground that
it fraudulently obtained a business
license from the City by
misrepresenting to the City the
nature of the business it intended to
operate in the City of Henderson.
Instead of seeking judicial review in
the Nevada State Court of the
revocation order Nevada Entertainment
in the federal court challenging the
constitutionality of the ordinances
themselves.” (Our emphasis).
The above statements of fact at page 5 and
others at pages 4-8 are totally false
because such language has been carefully
crafted and purposely omits other
essential ‘facts’ which are necessary for
@ proper understanding of their full and
truthful meaning and significance, and
should be totally disregarded for the
special purpose intended by Nevada
Entertainment in their petition in No.
786. (As a substitute therefore, the City
of Henderson has setforth hereinafter at
a
pages 5-37 the Statement of Facts in the
City’s Petition for Writ of Certiorari in
Case No. 94-662 at pp. 3-36). The
“irregularity”, described above, also
appears in Nevada Entertainments’ Response
to the Petition for Writ of Certiorari to
the United States Court of Appeals for the
Ninth Circuit in City of Henderson. a
the Supreme Court of the United States,
October Term 1994, No. 94-662, Docketed on
October 11, 1994. There, the Petition of
the City of Henderson dealt with said
“irregularity” in a comprehensive manner
in its Reply Brief. The Reply Brief in
No. 94-662 is equally relevant to this
Petition in 94-786. A copy thereof is
attached at Appendix A to “Respondents
Brief in Opposition” herein in No. 94-786.
The Statement of Facts in the City’s
Petition includes the City’s use of the
“clean hands” equity doctrine, res
-5-
judicata, collateral estoppel and other
such facts which are “selected omitted” in
the Nevada Entertainment petition.
STATEMENT OF FACTS
The City of Henderson, Nevada,
adopted a new, comprehensive Municipal
Zongin Code and Municipal License Code in
1989, following lengthy public hearings
and proceedings on such Codes. Under
State law and the Zoning Code, as amended,
a new provision was added for an ‘adult
business” which was authorized only in the
"CH Zone.” Prior to opening for business,
all prospective businesses were required
to submit an application for, and obtain,
a revenue-based business license,
thruthfully disclosing the precise nature
of the intended business operation. [A
business license will not issue unless the
intended business operation is located in
@ proper zone. |] An “adult business was
among several enumerated business uses
-6§-
which required application for a
conditional use permit (as to which Nevada
Entertainment, Inc. has never filed an
application).
Federal plaintiffs Nevada Entertain-
ment Industries, Inc. et al., are
operators of an Adult Business, who wished
to locate in the oity of Henderson,
Nevada. Upon locating a prospective site
available for rent, they entered into a
lease. Several months after federal
plaintiffs had signed their lease, they
applied to the City for a revenue based
business license, indicating that their
intended use of the property would be that
of an “adult business.” In applying for
the business license, Federal Plaintiffs
learned of the new provisions for sexually
oriented adult businesses, including the
need to apply for a zone change or
variance, and a request for a conditional
use permit, to permit them to operate such
a business at their specific location.
Federal plaintiffs were informed by
Ja
the City that, under the applicable zoning
provisions, the site they had rented was
not then zoned for “adult use, and that
if they wanted to operate an “adult use,”
they would have to request a variance or
change in zoning.
Federal plaintiffs asked City
officials if they could immediately open
for business if they decided to operate a
different use, such asa general video
store (which was a separate and distinct
use from an adult business under the new
zoning code). They were told that their
rented site was zoned for use as a general
video store, but since this was a _ change
in the described use in their business
application form, they could qualify for
issuance of a business under that use only
if they resubmitted their business license
application and indicated their intention
to open a general video store.
Federal plaintiffs did not apply for
a zone change or variance or conditional
use permit. Instead, they submitted an
-3-
amended application for A business
license, in which they intentionally and
with knowledge of the substantive
difference between the two categories,
applied for permission to operate a
business fraudulently described as ‘mass
media books and video store, novelty shop,
etc., rather than using the correct
category of “adult business.”
In September of 1989, federal
plaintiffs, on the basis of this
intentional misrepresentation, were issued
a revenue-based business -icense to
operate a general video store on the
Premises located at 1100 Boulder Highway,
Henderson, Nevada, under the name ‘Fantasy
Video Plus.”
The operation opened for business. in
or about February 1990. Although Federal
Plaintiffs had represented to the City
during the business license application
process that the business use for “Fantasy
Video Plus” would be that of a general
video store, they immediately operated the
-9-
same as an ‘Adult’ Business.” Federal
plaintiffs admit in this action and have
stipulated that since opening for business
they have used the Premises for the
continuous operation of a different
business use, i.e. that of an Adult
An Adult Business is a business use
separate and distinct from a general video
store. In the course of mak ing
application for their business license,
federal plaintiffs had been made aware
that there was a substantive difference
between the two uses (general video vs.
Adult Business), and had affirmatively
assured the Community and Planning
Departments’ inspecting official that the
was rather a general video business. See
paragraph 6 of Licensees’ Answer to
Complaint, filed before the Henderson City
Council in In the Matter of the
Disciplinary Action Against the Business
License of Nevada Entertainment
video Plus, a copy of which appears at
Appendix 1-11 of the Petition for Writ of
Certiorari in Case NO. 92-943.
When the licensees’ deception came to
the attention of the City inspectors,
state law enforcement action was commenced
through the filing of a complaint and the
initiation of adninistrative license
revocation proceedings against Federal
Plaintiffs, which sought the revocation of
the business license issued to the
operation “Fantasy Video Plus,” on the
grounds that licensees had deliberately
made fraudulent and material
misrepresentations in their business
license application in order to secure
immediate issuance of the license. This
state administrative enforcement action
came before the City Council for hearing
on April 10, 1990.
At the state license revocation
proceedings, it was determined that
| |
#jl-
federal plaintiffs’ misrepresentations
were material, deliberate, and were
intended to mislead the city, and violated
state law.
defense, among others, the game federal
constitutional issues they sought to
relitigate in their federal civil rights
complaint under 42 U.S.C. Section 1983.
(See Federal Plaintiffs’ Answer to the
City of Henderson Summons and Complaint
before the City Council in license
revocation proceedings, appearing as
Appendix 1 in the Petition for Writ of
Certiorari in Case No. 92-643.
The (quasi-judicial) administrative
enforcement hearing resulted in a written
order dated April 16, 1990, which (1)
immediately revoked the business license
and (2) stayed action to enforce the
revocation for a period of ten days, in
5 eel |
aiQ—
order to allow the licensees the
opportunity to immediately seek judicial
review of the City action before the City
Council, as provided bine the municipal
licensing ordinance [see City of Henderson
Municipal Code (hereinafter “E.MC.” 3
4.06.160]. See copy of the City Council’s
findings of fact, conclusions of law, and
order attached at Appendix 2 to the
Petition for Writ of Certiorari in Case
No. 92-643. Federal Plaintiffs
incorrectly asserted at page 14 of their
brief on appeal that the City “stayed its
decision” for ten days. The correct
statement is that the City, by its order
dated April 16, 1989, revoked licensees’
business license, but stayed enforcement
action on the revocation, for a period of
ten days, in order to allow the licensees
an immediate and unfettered opportunity to
have this revocation action reviewed by
the state court, as provided by state law
and municipal ordinance.
Instead of appealing the City
«}3-
Council’s (quasi-judicial) administrative
factfinding and license revocation in
state court, licensees filed this action
in_federal court as a defense to the
City’s enforcement action (which was
pending because of the stay issued and the
existence of a statutory right to appeal
the City’s action within the state
judicial system), thereby invoking the
abstention doctrine formulated in Younger
vy. Harris, 401 U.S. 37 (1971), Huffman v.
Pursue, Ltd., 420 U.S. 592 (1975), and
their progeny.
It is important to note at the outset
of these Statement of Facts that the
gravamen of the 42 U.S.C. Section 1983
complaint is its federal interference with
state judicial procedures, (not with mere
City functions). The City, in defending
against the civil rights complaint, is
acting as an agent of the State and is
relying upon the Eleventh Amendment,
because it is claiming interference with
the State's judicial procedures for review
?
ote OE ——™ -
a tga
of quasi-judicial findings-of-fact by
municipal agencies.
On April 27, 1990, the United States
District Court granted a temporary
restraining order pursuant to Rule 65 of
the Federal Rules of Civil Procedure. At
the hearing on the TRO, Assistant City
Attorney Liza Conroy cited New York
Football Giants, Inc, v, L.A. Chargers
Football Club, Inc., 291 F.2d 471, at 474
(1961), and unsuccessfully involked the
“clean hands” equity doctrine, and _ the
City Council’s quasi-judicial finding of
eye tee Pe ene NT Te
“fraud” as ground for requiring the United
States District Court to rule that it
lacked subject matter jurisdiction and to
deny the equitable relief sought
(injunction) and to dismiss the civil
rights complaint for ‘lack of subject
matter jurisdiction.” (Note, in this
sy i it Bae
regard, the City of Henderson’s response
dated January 16, 1994, to Attorney
Diamonds Petition for Rehearing at
Appendix Page 4-16 and 4-17 of No. 94-662.
ai S—
that shortly thereafter (3 months later)
the Ninth Circuit withdrew its November 2,
1993 Opinion and substituted its May 4,
1994 Memorandum.
On June 4, 1990, following oral
argument on Plaintiffs’ Motion for a
preliminary injunction and without taking
iditi 1 teat id tne
United States District Court enjoined the
Defendants from further action on the
matter in general, but left the City
Council’s revocation of the business
license undisturbed. A copy of the
Temporary Restraining Order and
Preliminary Injunction is attached at
Appendix 3 and 4 to the Petition for Writ
of Certiorari in Case No. 92-643.
After further study of the United
States Supreme Court’s opinions in Huffman
v. Pursue, Ltd., supra, as impacted by the
United States Supreme Court’s ruling in
Hicks v. Miranda, 422 U.S. 332 (1973), the
City of Henderson declared their refusal
to consent to federal iurisdiction [see
Hodory, 431 U.S. 471 (1977)], and filed:
(1) a declaratory judgment lawsuit in the
Nevada District Court. (City of Henderson
vy. Nevada Entertainment Industries, Inc.,
Clark County District Court No. A 288647,
filed October 1, 1990 (setting forth the
same issues which were present in the
federal civil rights complaint); and (2) g@
7 —e the Civil Rights J x
in the Uninet Sinton Bintsieh Mauss t]
(See, in this regard, Question 4 in Case
94-662 and the clash, in such cases, with
respect to the ‘reservation”™ doctrine
expressed in England v. Louisiana State
Board of Medical Examiners, 375 U.S. 411
ee ae a NET Teer cee Sey ner y
Ns _——_ . Y* ¢ -
(1964).
The City of Henderson further
requested that such motions be set for an
immediate hearing on the grounds that the
Huffman doctrine applied to this case, and
that the District Court had no discretion
in the matter and was required to dismiss
the federal complaint.
On March 22, 1991 (almost six months
after Defendants herein had filed their
motion to dismiss and request for an ip-
mediate hearing), the United States Dis-
trict Court herein filed its opinion and
order which denied the Defendants’ motion
to dismiss, on the basis of the Court’s
interpretations of the same cases and set
the case for a pretrial hearing on the
following week, Friday, March 29, 1991. A
copy of the March 22, 1991 Opinion and
Order is attached at Appendix 16 to the
Petition for Writ of Certiorari in 94-662.
On March 29, 1991, Defendants
indicated to the United States District
Court at a pre-trial conference that they
-18-
intended to file a Motion in which they
would request the Court to amend its order
of March 22, 1991, so as to authorize an
immediate appeal to the Ninth Circuit .
Court of Appeals and, if necessary, to the
United States Supreme Court, to decide the
jurisdictional claim that the United
States District Court lacks federal
jurisdiction (subject matter juris-
diction) to interfere with Nevada's state
right to adjudicate important State issues
such as licensing (revocation) procedures
and judicial review by the State of Nevada
of the quasi-judicial fact finding of the
City Council in which it revoked the
license of Fantasy Video Plus because of
the use of fraud in obtaining the business
license. See City of Las Vegas v. Nevada
Industries, 772 P.2d 1275, at 1277.
United States District Court Judge Lloyd
George, without ruling on Defendants’
motion on the abstention doctrine,
indicated at said pre-trial conference
that he wished to proceed quickly and hold
-19-
the triai within three to four weeks, and
that such issues should be decided in an
appeal from the merits, rather than an
interlocutory appeal.
On April 1, 199i, Defendants filed
their Motion to Amend re _ Interlocutory
Order and Stay Proceedings. On April 39,
1991, Judge George entered an Order
denying the Defendants’ Motion to Amend
his March 22 Order (to permit an
interlocutory appeal). A copy of the
April 9, 1991 Order is attached at
Appendix 6 to the Petition for Writ of
Certiorari in Case No. 92-643.
On April 15, 1991, Defendants filed a
Petition for writ of mandamus and request
for a stay with the Ninth Circuit Court of
Appeals. In its pre-trial Petition for
Mand t) Cit Lied t)
iurisdicti ; hicl Hurt
tri ' but did t
tudioata/eollat ) luriedio-
tional issue. On May 2, 1991, the Ninth
Circuit issued an Order denying the
=~20-
petition and request for a stay. A copy
of the May 2, 1991 Order is attached at
Appendix 7 to the Petition for Writ of
Certiorari in Case No. 92-643.
On May 9, 1991, Defendants filed a
petition for writ of certiorari with the
United States Supreme Court, pursuant to
Rule 13 of the Rules of the Supreme Court
of the United States City of Henderson et
al. vy. U.S. District Court, Oct. Term
1990, No. 90-1771, together with an
Application for Stay, addressed to the
Honorable Sandra Day O'Connor, Circuit
Justice for the Ninth Circuit, pursuant to
28 U.S.C. 2101¢€e) and Rule 23 of the
United States Supreme Court Rules,
requesting a stay pending final action on
the Petition for Writ of Certiorari. On
May 20, 1991, Associate Justice O’Connor
denied this Application.
Pursuant to 28 U.S.C. section 2101(f)
and Rules 22.5 and 23 of the Supreme Court
Rules, Defendants then resubmitted their
Application for Stay, addressed to
-2l-
Associate Justice Anthony M. Kennedy,
together with a motion for an original
writ of injunction, pursuant to the
All-Writs Act, 28 U.S.C. section 1651(a)
and United States Supreme Court Rule 23.1.
This reapplication relied on Associate
Justice Kennedy’s concurring opinion in
World F Drinki E ; I
City of Tempe, 820 F.2d 1079 at 1084 (9th
Cir. 1987), which seemed to infer
t with the Petit: , bent
that the United States Supreme Court had
Clarified Huffman, so as to require in a
federal case such as this, a dismissal
based upon lack of “subject matter
jurisdiction.” Justice Kennedy referred
said Application to the entire Court for
action, which denied the application on
June 10, 1991.
Ultimately, the federal trial herein
was continued to September 9, 1991.
On July 17, 1991, attorney Roger Jon
Diamond, counsel for the federal
Plaintiffs herein, sent a letter to Liza
-22-
Conroy, Assistant City Attorney for the
City of Henderson, which referred to the
joint case conference report due in the
related state declaratory judgment action
(Cit = N ' Entertain-
b Enanat «| Clark ¢ ) District
Court No. A2Z88647) (hereinafter ‘related
state case’), and stated that state
defendants would sign the report, but with
th ' , Li that t! Clark C
District Ld ' trial
t Cit Cul
neaini ‘ieni Ct) Li
federal case.
On August 9, 1991, the Scheduling
Order in the related state case was filed,
which set the matter for trial on the
court’s earliest available date beginning
March 9, 1992.
On August 12, 1991, a Stipulation for
Order continuing the federal trial herein
and Order thereon was filed, which
continued the federal trial date herein
from September 9, 1991, to January 6,
-23-
1992, with calendar call on January 2,
1992.
On October 7, 1991, the United States
Supreme Court issued an Order denying the
petition for writ of certiorari in Case
No. 90-1771. On December 2, 1991, the
United States Supreme Court denied a
petition for rehearing.
Both Plaintiffs and Defendants filed
trial briefs, and submitted the case for
trial on the briefs. By stipulation, the
evidentiary record from the state
i- judicial ti riled it
the U.S. District Court and designated to
be used as the evidentiary record before
the United States District Court on trial
of the final iniunction. It should be
noted that the stipulation of the record
of the State quasi-judicial proceeding
into evidence clearly established the City
of Henderson’s claims that the federal
court’s exercise of jurisdiction presented
“collat LI Bean sind t) Cit
Council’s order, warranting use of the All
Writs Act.
The City then renewed its motion to
dismiss for lack of sub ject matter
jurisdiction, and also moved to dismiss on
‘the grounds of res judicata and collateral
estoppel. At this point, the trial judge
apparently became aware of the
implications of the City of Henderson's
refusal to waive its Eleventh Amendment
privilege (and its claim of lack of
“subject matter jurisdiction’) and his
refusal to apply the rule of law expressed
in Miranda v. Hicks on the City’s first
Motion to Dismiss which was denied on
March 22, 1991. See Appendix 16 to the
Petition for Writ of Certiorari in 94-662.
On June 17, 1992, the Honorable Lloyd D.
George, U.S. District Judge for the
District of Nevada, on his own motion,
signed an Order which indicated that he
had reconsidered the Defendants’ request |
for an expedited appeal on the
jurisdictional issue, and would amend his
prior order denying that request. The
——
-25-
June 17th Order is attached at Appendix 8
to the Petition for Writ of Certiorari in
Case No. 92-643. On July 2, 1992, the
Court signed an order amending its prior
Order of March 22, 1992 so as to certify
the same for interlocutory appeal pursuant
to 28 U.S.C. Section 1292(b). A copy of
said Order is annexed to the Petition for
Writ of Certiorari in Case No. 92-643 at
Appendix 9.
On August 3, 1992, the U.S. Court of
Appeals for the Ninth Circuit denied the
City’s Petition for Permission to Appeal
Pursuant to 28 U.S.C. Section 1292(b) and
F.R.A.P. Rule 5. See Appendix 10 to the
Petition for Writ of Certiorari in case
No. 92-643.
On October 13, 1992, the City of
Henderson filed a Petition for Writ of
Certiorari to the United States Court of
Appeals in City of Henderson, a9 Nevada
Oct. Term 1992, No. 92-643.
On November 27, 1992, the United
States District Court filed its Opinion
and entered a judgment in CV-5-90-264-LDG
(LRL), see Appendix 1 to the Petition in
94-662, in which the Federal Court, in the
face of the Huffman abstention doctrine
and the Feldman doctrine, relitigated the
evidence which was before the City Council
sitting as a quasi-judicial hearing board
for the State of Nevada and rendered
judgment in favor of said (quasi-judicial)
administrative state board on the
stipulated record, lifted the previously
issued preliminary injunction, and made
the following Findings of Fact and
Conclusions of Law at pages 7 and 8 of its
Decision:
“In the present case, plaintiffs
attempted to circumvent the City’s
Code by following a course of
deception. Initially, plaintiffs
applied for a business license for an
adult business. The City then
informed the plaintiffs of certain
conditions that an adult business had
to meet before a license would be
«27-
authorized. In response to this in-
formation, plaintiffs did not seek
judicial protection from the City's
provisions. Nor did they attempt to
meet the conditions for obtaining &
license for an adult business. Nor
did plaintiffs challenge the law by
opening and operating an adult busi-
ness without obtaining any license.
“Rather, plaintiffs inquired
whether a business’ license would be
approved for a general business. The
City responded that such an applica-
tion for a general business would be
approved. Plaintiffs, fully aware
that a license for a general business
would be approved whereas an applica-
tion for an adult business would be
rejected, submitted a second applica-
tion which specifically omitted any
reference to an adult business. This
second application was approved and,
on February 1, .1990; plaintiffs
opened an aduit business. The City
then revoked the plaintiffs’ business
license, finding that plaintiffs had
misrepresented the nature of the
business on the license application
in order to obtain & license. As
permitted by H.M.C. Section 4.04. 150,
the Council revoked plaintiffs’
license for making a false or fraudu-
lent statement in the application for
a license.”
On November 30, 1992, Defendants
ordered Plaintiffs to close their business.
On December 2, 1992, Plaintiffs filed
their Notice of Appeal from the Judgment,
and also moved the United States District
Court for an injunction pending appeal
o2@-
pursuant to Rule 62(c) of the _ Federal
Rules of Civil Procedure.
On December 6, 1992, Defendants filed a
Supplemental Brief with the United States
Supreme Court in No. 92-643, calling the
United States Supreme Court’s attention to
the above described Final Judgment and
Petitioners’ contention that the United
States District Court’s Findings of Fact and
Conclusions of Law in the civil rights
action presented a patent Eleventh Amendment
tlict . rr tablished
Petiti * rignt to uJ liat Lief
1 ail re. Ln int 7
authority of Huffman v. Pursue, Ltd., 420
U.S. 92 (1975), and_Watson v. Buck, 313 U.S.
367 (1941), pursuant to a peremptory writ of
mandamus under the All Writs Act. See
Supplemental Brief in Case No. 92-643, at
pages 12 - 36.
At the conclusion of the Supplemental
Brief, the City argued, at pages 36-37:
~29-
For all of the reasons stated in
the Petitions for Writ of Certiorari
in Case No. 90-1771, and Case No.
92-643, and the Supplemental Brief
herein in Case No. 92-643, Petitioner
is entitled to immediate relief
either by the issuance of an
extraordinary Writ of Mandate under
the All Writs Act, vacating the
Decision of the United State District
Court entered on November 27, 1992,
and mandating a dismissal of the
federal civil rights action, or by
this Court’s grant of the Petition
for Writ of Certiorari in Case No.
92-643 for resolution of Questions I
and IV regarding the jurisdictional
issue and the requirement for
“heightened pleadings’ where a right to
relief under Huffman v. Pursue, Lid.
has been validly raised, and a
resolution of the additional issue as
to whether attorney fees should be
granted to a prevailing defendant in a
United States District Court Civil
Rights Action which has wrongfully been
filed by a business corporation whose
license had been validly revoked by the
City of Henderson because of the fraud
which was perpetrated by the
corporation in its application for a
business license.
On December 7, 1992, the United States
Supreme Court denied the Petition for Writ
of Certiorari in Case No. 92-643.
On December 8, 1992, the United States
District Court filed an Opinion in which it
-30-
denied the Plaintiffs’ motion for
injunction pending appeal.
On Monday, December 14, 1992, Circuit
Judge Noonan filed an order which
temporarily stayed the United States
District Court’s November 25, 1992 Order,
which had lifted the June 5, 1991
preliminary injunction against Defendants
and set 12 o’clock noon on Friday, December
18, 1992 as the deadline date for a Response
to the filing.
On Friday, December 18, 1992, the City
filed: (1) its Response to the Emergency
Motion Under Circuit Rule 27-3 for an
Injunction Pending Appeal; (2) a Motion for
Expedited Appeal; and (3) a Motion for
Judgment of Dismissal on Grounds of Comity
and Lack of Subject Matter Jurisdiction,
pursuant to Huffman v. Pursue, Ltd..
On December 22, 1992 the Court of
Appeals (Noonan and T.J. Nelson) filed an
erder: (1) denying the Motion to Dismiss;
(2) granting Licensees’ Emergency Motion for
iIniunction Pending Appeal; (3) staying the
-3]-
U.S. District Court November 25, 1992 Order;
and (4) expediting the appeal, ordered a
detailed brief schedule, and set the matter
for argument in San Francisco during the week
of April 12 (see Appendix 2 to the Petition
in Case No. 94-662).
On December 22, i992, the City filed
its Notice of Cross-Appeal to the U.S. Court
of Appeals for the Ninth Circuit from _ the
Trial Judgment entered on November 27, 1992.
On May 10, 1993, the Court of Appeals
for the Ninth Circuit heard oral argument
hich the C ) tated to ti City’
L of | that it ) inf ted
Eleventh
City of Tempe. supra.
On November 2, 1993, the Court of
Appeals filed an Opinion and certified the
same for Publication under Circuit Rule
36-2, in which it reversed the Judge of the
&92~
United States District Court and held that
the Court should have abstained under
Huffman v. Pursue, Ltd., as contended by
the City in its cross-appeal, but omitted
any reference to the Eleventh Amendment
“subject matter jurisdiction” issue. (See
copy at Appendix 3 to the Petition for
Writ of Certiorari in Case No. 94-662. )
The Court of Appeals further held in
relation to attorney’s fees that “The
District Court did not abuse its discretion
in concluding this was not such a case. Nor
do the circumstances justify an award of
fees on appeal.” The Opinion contained the
following conclusion:
_Conclusion
“The decision of the district
court refusing to abstain from
exercising jurisdiction is reversed and
the case is remanded to the district
court with instructions to vacate its
judgment and dismiss the complaint. =
(Our Emphasis. )
On November 30, 1993, Nevada
Entertainment [ndustries, Inc. et al filed a
petition for rehearing and suggestion that
the Court rehear the matter en banc which
subiect matter iurisdiction. [The Petition
for Rehearing introduced new contentions such
as “consent” to federal jurisdiction (see
Appendix 4-10 through 4-17 to Case No.
94-662), and other contentions which are
regularly advanced and considered in
connection with the Wiener. infra,
interpretation of Huffman abstention but
totally inconsistent with the Dubinka, infra,
interpretation of Huffman abstention].
On January 18, 1994, the City of
Henderson et al. filed their "Response to
the Petition for Rehearing and Suggestion
for Hearing en Banc. See copy at Appendix
4 to Case No. 94-662, at Appendix pages 4-10
through 4-17, where the City claimed that the
Court of Appeals’ failure to address the
Fleventh Amendment and the ~ lack of subject
matter jurisdiction issue was responsible
for the confusion which regularly appears
in Huffman abstention decisions. Compare
——e
-34-
Dubinka, infra, with Wiener, infra. The
City’s Response (see Appendix 4 to No.
94-662, at 4-17) ended with the caveat
that, notwithstanding these many new
claims of Nevada Entertainment Inc., the
Ninth Circuit was faced with a bottom
line’ record fact on appeal; that is, that
Assistant City Attorney Liza Conroy at the
gutset had objected to the Court's
jurisdiciton under the Equity maxim of
“clean hands. ~ (See Appendix 4 to No.
94-662, at page 4-17.)
On April 7, 1994, the Court of Appeals
filed an order reading:
“The petition for rehearing is
granted. The opinion reported at 8
F.3d 1348 (CA 9, 1993) is with-
drawn.”
See copy at Appendix 5 to the Petition for
Writ of Certiorari herein.
On May 4, 1994, the Court of Appeals
filed a Memorandum Opinion in which it noted
in a footnote on page 1, that the Memorandum
was pot appropriate for publication and may
not be cited to or by the court of the
-35-
circuit. Thereafter, the court reexamined
the City's auasi-judicial proceedings and
held that the district court’s finding of
deception by Nevada Entertainment
Industries, Inc. et al., applied and was
amply supported by the record and affirmed
the district court’s judgment on that basis,
and dismissed the City’s cross-appeal (i.¢é.
that the civil rights complaint should have
been dismissed for lack of “subject matter
jurisdiction” under Younger v. Harris, 401
U.S. 37 (1971)) as moot. The Court made no
ruling on the City's cross-appeal that’ the
City was entitled to attorney fees. See
copy of Memorandum decision at Appendix 6 to
the Petition for Writ of Certiorari in in
94-662, and compare its earlier ruling on
attorneys fee on November 2, 1993 at Appendix
3 to No. 94-662, at page 3-11.
On May 17, 1994, the Court of Appeals
filed an order granting Nevada Entertainment
Industries, Inc. et al.'s motion for
extension of time until June 21, 1994 to
file a petition for rehearing.
-36-
On May 18, 1994, the City of
Henderson filed a Petition for Rehearing
as to the Court of Appeals Memorandum of
May 4, 1994. See copy at Appendix 7 to
the Petition in Case No. 94-662.
On June 6, 1994, the City of Henderson
filed a Petition for Writ of Mandamus (or
Certiorari Under Rule 11) to the United
States Court of Appeals for the Ninth
Circuit in the United States Supreme Court,
In re City of Henderson, a Nevada Municipal
Corporation, James Goff, Chief of Police of
the City of Henderson, vy. Nevada Entertain-
ment Industries, Inc,, a Nevada Corporation
and Daniel Bishop, No. 93-1969, in an
attempt to require the Court of Appeals to
explain why it had withdrawn its November 2,
1993 opinion which had upheld the
cross-appeal by the City re Huffman
abstention, and why it had failed, and
neglected, and/or refused to apply the rules
of law established by the United States
Supreme Court, which that opinion held were
controlling, as the law of the case on the
a3Ja
City’s cross-appeal.
On June 14, 1994, the Court of Appeals
denied the City of Henderson’s Petition for
Rehearing. See Appendix 8 to the Petition
for Writ of Certiorari in Case No. 94-662.
On June 17, 1994, the City of Henderson
moved for leave to file a second petition
for rehearing (based upon newly decided
authorities: Kokkonnen v. Guardian Life
lms. Co. of America, 54 CCH S.Ct. Bull.,
B1724, decided May 16, 1994). See copy of
Second Petition for Rehearing at Appendix 9
in Case No. 94-662. On or about June 17,
1994, Nevada Entertainment Industries filed
its Petition for Rehearing in the United
States Court of Appeals for the Ninth
Circuit.
On June 17, 1994, the City of Henderson
filed a Motion for Order Staying Mandate in
the Court of Appeals for the 9th Circuit.
See copy at Appendix 6 to the Supplemental
Brief in Case No. 93-1969.
On July 11, 1994, the Court of Appeals
denied the Petition for Rehearing of Nevada
Entertainment and the City of Henderson's
-38-
motion for leave to file a second petition
for rehearing. See Appendix 10 to the
Petition in Case No. 94-662.
On July 25, 1994, the Court of
Appeals granted Nevada Entertainment's
motion to stay the mandate pursuant to
Rule 41 (b). See Appendix 11 to the
Petition in Case No. 94-662.
On August 12, 1994, the City of
Henderson filed a Motion for Order Extending
Stay of Mandate together with a supporting
declaration and Joint Stipulation of the
Parties and Memorandum of Points and
Authorities with the Court of Appeals for
the Ninth Circuit, and on August 24, 1994,
the Court of Appeals granted the Parties
Joint Motion for Order Extending Stay of
Mandate. See Appendix 12 to the Petition
for Writ of Certiorari in Case No. 94-662.
THE ELEVENTH AMENDMENT
.FORBIDS THE FILING OF
NEVADA ENTERTAINMENT’S
FEDERAL COMPLAINT.
-39-
Nevada Entertainment’s civil right
complaint is not what
be: an “independent action in the federal
court.” See copy of the civil rights
Complaint at Appendix A (Appendix a te
Reply Brief). In fact and as a matter of
law, it is an action brought by a citizen
of Nevada in the federal court against the
Soverign State of Nevada, which the
Eleventh Amendment forbids, which
collaterally attacks an order of the City
Council of Henderson for actions taken by
it, acting as an agent for the Soverign
State of Nevada, in 4 pending
quasi-judicial license revocation
proceeding within the Nevada State
Judicial System, seeking revocation of
Nevada Entertainment’s business license on
the ground of fraud in connection with its
application for a business license. As
such, the filing of the Federal Civil
Rights Complaint, this trial, and this
appeal in the federal court is in direct
-~40-
conflict with and violates the Eleventh
Amendment to the Federal Constitution and,
precludes the Federal Court from assuming
subject matter jurisdiction under its
Article III powers and hearing such cause.
In Welch vy. State Dept, of Highway and
Public Transportation et, al., 483 U.S.
468, at 472; 97 L.Ed.2 389, at 395 Justice
Powell writing the plurality opinion for 4
justices held:
The Eleventh Amendment provides:
“Ihe Judicial power of the
United States shall not be construed
to extend to any suit in law or
equity, commenced or prosecuted
against one of the United States by
Citizens of another State, or by
Citizens or Subjects of any Foreign
State.:
Constitution. Pennhurst State School
& Hospital v. Halderman, 465 U.S. 89,
96,79 b.oé.2 Oo, 1663 Bc. BO
(1984) (Pennhurst II). Accordingly,
as discussed more fully in Part V of
this opinion, the Court long ago held
that the Eleventh Amendment bars a
citizen from bring suit against the
Citizen's own State in federal court,
, 134 U.S. 1, 10, 33. L.Ed.
842, 10 S.Ct. 504 (1890). See
Edelman v. Jordan, 415 U.S. 651,
662-663, 39 L.Ed. 2d 662, 94 S.Ct.
1347 (1974); Employees Vv. Missouri
Dept. of Public Health and Welfare,
411 U.S. 279, 280, 36 L.Ed.2d 251, 93
S.Ct. 1614 (1973). For the same
reason, the Court has held that the
Amendment bars suits in admiralty
against the States, even though such
suits are _ not, strictly speaking,
‘suits in law or equity.’ Ex parte
New York, No. 1, 256 U.S. 490, 497,
65 L.Ed. 1057, 41 S.Ct. 588 (1921)
(Eleventh Amendment bars in personam
actions against 4 State by its
citizens); Ex parte New York, No. 2;
256 U.S. 503, 65 L.Ed. 1063, 41 S.Ct.
592 (1921) (Eleventh Amendment bars
actions in rem against vessel owned
by the State and employed exclusively
for governmental purposes). See
Florida Dept. of State v. Treasure
Salvors, Inc., 458 U.S. 670, 683, n
17, 73 L.Ed.2d 1057, 102 S.Ct. 3304
(1982) (plurality opinion of Stevens,
SPA rae eee, | 706-710, 73 L.Ed.2d
1057, 102 S.Ct. 3304 (White, J.,
concurring in judgment in part and
dissenting in part).~
See also the annotation “Supreme Court's
Construction of Eleventh Amendment,
Restricting Federal Judicial Power over
suits against States’ 106 L.Ed.2 660 at
677:
“the following Supreme Court
decisions have expressly recognized
|
that the Federal Constitution’s
Eleventh Amendment is not limited in
its application to suits against a
state as a named defendant, but
rather that its application should be
let it tl tial '
and effect of the suit in question:
Poindexter v. Greenhow (1884) 114 US
27U, @F tL 84d %65,*°S & Ct Bue; Re
Ayers (1887) 123 US 443, 31 L.Ed.
216, §8 S 164; Pennoyer Vv.
McConnaughy (1891) 140 US 1, 35 L Ed
363, 11 S Ct 699; Hopkins v. Clemson
Agricultural College (1911) 221 US
636, 56 L Ed 890, 318 Ct 654; Ez
parte New York (1921) 256 US 490, 65
L Ed 1057, 41 S Ct 588; Principality
of Monaco v. Mississippi (1934) 292
US 313, 78 L Ed 1282, 84 8 Ct 745;
Worcester County Trust Co. v. Riley
(1937) 302 US 292, 82 L Ed 268, 58 S&S
Ct 185; and Schever v. Rhodes (1974)
416 US 232, 40 L Ed 2d 90, 94 S Ct
1683, 71 Ohio Ops 2d 474.
It was observed by the Supreme
Court in Poindexter v. Greenhow
(1884) 114 US 270, 29 L Ed 185, 5 §S
Ct 903, infra section 15[{c], that the
question whether a suit is within the
prohibition of the Eleventh Amendment
is not always determined by reference
to the nominal parties on the record,
and that the Eleventh Amendment is to
be substantially applied in
furtherance of its intention, and not
evaded by technical and trivial
subtleties.
The court in Re Ayers (1887) 123
US 433, 33 L Bd 236, 88 Ct £64,
infra section 15{[b], also stating
that the question whether a suit is
within the prohibition of the
Eleventh Amendment is not always
determined by reference to the
nominal parties on the record, added
that such amendment’s prohibition
must be determined by a consideration
-43-
of the nature of the case as
presented on the record
In Hopkins Vv. Clemson
Agricultural College (1911) 221 US
636, 55 L Ed 890, 31 S Ct 654, the
Supreme Court recognized that looking
through form to substance, the
Eleventh Amendment applies not only
where the state is actually named as
a party defendant on the record, but
also where the proceeding, though
nominally against an officer, is
really against the state, or is one
to which it is an indispensable
party.
In Scheuer v. Rhodes (1974) 416
US 232, 40 L Ed 2d 90, 94 S$ Ct 1683
71 Ohio Ops 2d 474, infra section 22,
which involved a federal civil rights
action against a state governor and
other state officials, the Supreme
Court stated that it was well
established that the Eleventh
Amendment barred suits against the
state not only when it was the named
party, but also when it was the party
in fact. The court noted that the
j not by
the mere names of the titular
parties, but by the essential nature
appeared from
the entire record.
(our emphasis).
The City of Henderson contends herein
(Case No. 94-786) and in Case No. 94-662
as follows: [See] copy of the City’s
Reply Memorandum in Case No. 94-662 at
page 15 reading:
".,.Nevada Entertainment
deliberately chose to collaterally
~44-
attack the quasi-judicial fact
finding of ‘fraud’ made by the City
Council in the federal court rather
than in the state court (as could
have been done -- see Appendix 1, at
p. 1-6 to this Brief), and gought and
obtained iniunctive relief against
the City which was acting ag an agent
» in
open defiance of the Eleventh
Amendment command and this Court’s
binding ‘abstention’ precedent in
Ohio Civil Rights Commission vy.
Dayton Christian Schools, Inc., 477
U.S. 619 (1986).
Petitioner City of Henderson
respectfully submits that the factual
which Nevada
Entertainment is now attempting to
make to establish ‘standing’ at this
late stage (to justify the filing of
its frivolous Petition for Writ of
Certiorari in No. 94-786), is not
available. (See fn. 1 on p. 13,
supra. )~
RESPONDENTS’ OBJECTIONS TO PETITIONERS
QUESTIONS 1, 2 AND 3
Petitioner Nevada Entertainment is
deliberately attempting to use the federal
courts to obtain a federal decree and rule
of law which is contrary to the express
holding of the Nevada Supreme Court in
Cit ri] v N Industri
Inc., 772 P.2d 1275 (Nev. 1989), see copy
of Reply Brief at Appendix A to this Brief
(Appendix 4 to Reply Brief). The use of
-45-
this frivolous petition for writ of
certiorari for that purpose is a further
patent violation of the Eleventh
Amendment. The Eleventh Amendment was
specifically adopted by the States in 1792
to forbid the use of the federal court
system as Nevada Entertainment has
attempted to do in this Petition for Writ
of Certiorari, and is the foundation for
the Huffman Abstention doctrine which
requires a dismissal of the federal
complaint, for lack of subiect matter
jurisdiction. This “frivolous” petition
is the direct result of the Ninth
Circuit’s determined refusal to apply the
law of the land (Huffman Abstention). The
duty of the Ninth Circuit was to “find”
and “apply” the law; not to “find” and
"defy the law.
In the City of Las Vegas case supra;
the Nevada Supreme Court specifically
held, one year earlier, (April 25, 1989),
that, in the State of Nevada, an adult
bookstore which obtains its business
-46-
license by deception may not collaterally
attack the City Council’s “fraud” finding
and obtain the judicial relief which
Nevada Entertainment seeks in Questions
1-3 of its petition for Writ of Certiorari
in 94-786 in the same quasi-judicial
proceedings which the State has brought to
business application. The District Court
of Nevada had ruled to the contrary (see
Appendix A, Reply Brief at pages 4-7).
The Nevada Supreme Court reversed the
District Court on that issue. Had Nevada
Entertainment filed its civil rights
action in the State Court as a part of an
appeal from the Quasi-Judicial Order of
the City Council revoking their business
license, as it was required to do under
Nevada State law, Questions 1-3, which had
been asked and answered in the City of Las
Vegas ruling in the Nevada Supreme Court
in 1989, would have been decided against
Nevada Entertainment.
Entertainment reads: May 4 city violate
the first and Fourteenth Amendment (free
speech) by shutting down an adult
bookstore pursuant to an unconstitutional
zoning ordinance because the bookstore
obtained its business license by
deception?> Question 2 reads: “Is an
adult bookstore without constitutional
protection vis-a-vis an invalid zoning
ordinance because it obtained its business
license by deception?” _Question 3 reads:
“To prove that a city utilizes an
uncontitutional zoning scheme to ban all
adult bookstores, may an adult bookstore
employ deception in obtaining a business
license?™
Nevada Entertainment's filing of its
Petition for Writ of Certiorari in 94-786
for the purpose of answering the above 3
questions, is frivolous as & matter of law
because the federal courts below lack
“subject matter jurisdiction’, under the
command of the Eleventh Amendment. “The
-~48-
Judicial power of the United States shall
not be construed to extend to any suit...”
STATEMENT OF THE CASE
The “stake” in this lawsuit is the
sovereign, Eleventh Amendment right of the
City of Henderson, acting as the agent for
the State of Nevada, to enact by ordinance
and apply the ‘conditional use” zoning
principle and the States use of
quasi-judicial proceedings to adult book
stores in Henderson, Nevada, and to have
such ordinances relating to the State's
laws and license revocation procedure and
the use of quasi-judicial proceedings,
tested for the first time in the State of
Nevada Courts under Watson v. Buck, 313
U.S. 387 (1941), pot in the federal
courts. This Court should place a_ focus
on this principle and label it “Watson v.
Buck Abstention. Further, it should also
identify the fact that all such special
abstention defenses ("“Younger” ~“Huffman'’ )
are derived from the Eleventh Amendment
commands. That claim (which initiated
ee eee ee
-~49-
this litigation) was made four years ago
under the City’s contention that A
“conditional use” ordinance could be
constitutionally applied in such a case,
see 11126 Baltimore Blvd. vy. Prince
George’s County. Md., 886 F.2d 1414 at
page 1426-1429. See Case No. 90-1771, at
pages 52-61. See also Case No. 92-643 at
Point III on pages 46-57, copies of which
are attached to this Brief at Appendix B
to this Brief. That the City was
“prudent” in its judgment that a Nevada
state court (and not a federal trial
court) should make that judgment under
Watson v. Buck, see and compare the
bizarre result (contradictory holdings)
reached by two courts in the most recent
United States District Court and United
States Court of Appeals opinions in the
Prince George’s County case in j11126
Balti Blvd Pri ; "sc )
Md., 32 F.3d 109 (1994) (August 12,
1994)!!!
Se ee eee wertate
-50-
Respondent contends that the record
on appeal in this litigation establishes
“pure” “constitutional” error of great
magnitude -- not merely “judicial” error.
It is pot a matter of “correcting”
technical errors in cases of only local
importance where the correction in no way
promotes the development of the law.”
Anderson v. Haless, 459 U.S. 412 (1982)
(Stevens,J., dissenting), and is not
“concerned with the correction of errors
in lower court decision” or other errors
which do not attain the title and rank of
“constitutional” error (see the
text in Stern, Gressman, Shapiro, and
Geller, Supreme Court Practice, at Section
5.12, “Summary Disposition on the Merits,”
at page 251.) This is a real controversy
which is deserving of a grant of writ of
certiorari by this Court. It is
universally recognized that ‘adult
businesses’ pose their own peculiar law
enforcement problems. In that regard, see
City of Henderson news articles at
aSia
Appendix C to this Brief. As the present
time, the duplicate expense to State
government in prosecuting such State
sovereignty, Eleventh Amendment rights to
conclusion in abstention cases in _ two
court systems is substantial, (see
Appendix D to this Brief, for example,
showing the costs to the City of Henderson
to date in asserting this Eleventh
Amendment right). As further injury, the
Ninth Circuit having ruled that “Huffman
Abstention” controls, has withdrawn that
decision rather than rule on the specific
rule of law which has been the “focus” of
the four years of litigation. Under the
present practices, the “chance” of
achieving a hearing on the merits and
prevailing “cost-wise” in abstention
litigation is routinely characterized as
being on a par with “Russian roulette”.
It is for this latter reason that many
abstention rulings, which should have been
appealed, have not been appealed.
Nevada Entertainment's use of the
-52<
federal court to collaterally attack the
quasi-judicial finding of fact of ‘fraud’™
by the City Council was intentional, and
was designed to avoid confrontation in the
State Court with the binding decision of
the Nevada Supreme Court in City of Las
Vegas v. Nevada Enterprises, (supra).
The procedural tactic Nevada
Entertainment followed in the
Quasi-judicial proceeding in this case was
identical to that employed by Pursue, Ltd.
in the judicial proceeding involved in
Huffman _v. Pursue, Ltd. The only
difference is that, in the Huffman case,
Pursue, Ltd. obtained its “stay” from the
federal district court; and in this
Henderson case, Respondent first obtained
the necessary “stay” from the City Council
by mutual agreement to permit an appeal of
the City Council’s ruling; thereafter,
Nevada Entertainment was able to continue
that stay in force by virtue of the United
States District Court’s and Court of
Appeals’ injunctions.
-53-
Further, Nevada Entertainment
subjectively must have known (through its
attorneys who are “experts” in this area
of the law and asa reasonable person)
that its federal action was barred by the
Eleventh Amendment and this Court’s ruling
in the Dayton case.
CONCLUSION
For all of the above reasons and
others, given in Reply to the Response
Brief of Nevada Entertainment in Case No.
94-662, and in this Response Brief to the
Nevada Entertainment Petition in Case No.
94-786 and because the the Henderson trial
facts and record on appeal parallel
Huffman trial facts, as applied to the
rule of law expressed in Dayton (which
makes Huffman binding in gQuasi- judicial
proceedings), Attorney Diamond’s claim in
his Response Brief in Case No. 94-662 of
an “open question” igs without support.
Nevertheless, Petitions for Writs of
Certiorari should be granted and both
cases (Case No. 662 and Case No. 786)
-54-
consolidated and set for oral argument on
the City of Henderson’s claim of a right
to reinstatement of the opinion and
judgment which was reported on November 2,
1993, in Nevada Entertainment Industries,
Inc, v. City of Henderson, 8 F.3d 1348,
and relief for its Eleventh Amendment
injury including its right to attorneys’
fees under common law and statutory law
and Rule 11 as_ the prevailing defendant
under 42 U.S.C. Section 1988 in relation
to the ‘focal” issue re the Eleventh
Amendment in this four year litigation.
See Supplemental Brief in Case No.
94-662, being filed concurrently with this
brief in Case No. 94-786 for additional
reasons why a plenary review of these
issues should be granted at this time.
DATED: December 1, 1994
Respectfully submitted,
mes J lancy
: f Record
For Petitioners
APPENDIX A
REPLY BRIEF OF THE CITY OF HENDERSON IN
ON A PETITION FOR WRIT OF CERTIORARI IN
NO. 94-662.
(Reference: Respondents’ Brief in
Opposition at Pp. 4, 39, and 44, }
No. 94-662
IN THE
Supreme Court of the Anited States
OCTOBER TERM, 1994
CITY OF HENDERSON, A NEVADA MUNICIPAL CORPORATION,
JAMES GOFF, CHIEF OF POLICE OF THE CITY OF HENDERSON,
PETITIONERS
v.
NEVADA ENTERTAINMENT INDUSTRIES, INC.,
A NEVADA CORPORATION AND DANIEL BISHOP,
RESPONDENTS
On Petition For A Writ Of Certiorari
To The United States Court Of
Appeals For The Ninth Circuit
PETITIONERS’ REPLY MEMORANDUM
SHAUNA M.HUGHES
City Attorney JAMES J. CLANCY
LIZA CONROY (Counsel of Record)
Assistant City Attorney CAROL A. CLANCY
9955 La Tuna Canyon Road
City of Henderson Sun Valley, CA 91352
240 Water Street (818) 352-2069
Henderson, NV 89015
(702) 565-2394 Counsel for Petitioners
DOCKETED ON OCTOBER 11, 1994
TABLE OF AUTHORITIES................. ii
5.
) s 2
(A)
(B)
ITl.,
THE RESPONSE BRIEF FILED BY
NEVADA ENTERTAINMENT INDUSTRIES,
INC., ET AL. HAS MISREPRESENTED
THE TRIAL FACTS AND MISSTATED
THE WHICH
ST HAS CHALLENGED. 3.45.5 ..°..¢.. 1
STATEMENT OF THE CASE........... 4
THE LICENSE REVOCATION ORDER DID
BECAUSE: (1) IT
WAS “STAYED” AT THE REQUEST OF
NEVADA ENTERPRISES FOR 10 DAYS TO
PERMIT IT TO PERFECT A “PROPER”
APPEAL; AND (2) THE 10 DAY STAY
WAS EXTENDED INDEFINITELY BY THE
COERCIVE FORCE OF NEVADA ENTER-
PRISES U.S. DISTRICT COURT
RESTRAINING ORDER AND INJUNCTION
AND THE COURT OF APPEALS INJUNC-
Li Jee nu raw Yere ewe sy te ewer eee 4
THIS COURT'S RESOLUTION OF THE
ABOVE ISSUE SHOULD BE DISPOSITIVE
OF THE REMAINING SUBSIDIARY ISSUES
WHICH NEVADA ENTERTAINMENT HAS NOT
WUE CS cbc cee ores... 16
THE CONSTITUTIONAL
CONCLUSION:
QUESTIONS RE ELEVENTH AMENDMENT
STATE RIGHTS, HUFFMAN ABSTENTION,
AND SUBJECT MATTER JURISDICTION
ARE RIPE FOR RESOLUTION......... 20
738 F.Supp.
420 U.S. 592 (1975)
504 U.S. » 119 L.Ed.2d 331
Nevada Enterta £5 aint bi ;
8 F.3d 1348 (1993)
Newman-Green, Inc. v. Alejandro
Alfonzo-Larrain et al.
490 U.S. 826 (1989)
772 P.2d 1275
Amendments
Eleventh 10,
15, 18, 19, 20
PAGE
FEDERAL STATUTES
42 U.S.C.
I a 6
a 13
FEDERAL RULES
ee RE AS ree 16
ee 17
TEXTS
Stern, Gressman, Shapiro and Geller,
et ccc cee ecee 18
No. 94-662
IN THE
Supreme Court of the Hnited States
OCTOBER TERM, 1994
CITY OF HENDERSON, A NEVADA MUNICIPAL CORPORATION,
JAMES GOFF, CHIEF OF POLICE OF THE CITY OF HENDERSON,
PETITIONERS
v.
NEVADA ENTERTAINMENT INDUSTRIES, INC.,
A NEVADA CORPORATION AND DANIEL BISHOP,
RESPONDENTS
On Petition For A Writ Of Certiorari
To The United States Court Of
Appeals For The Ninth Circuit
PETITIONERS’ REPLY MEMORANDUM
rat ce em SS om eta Am ne te ne oer eee eg ee een S nee eM
I. THE RESPONSE BRIEF FILED BY NEVADA
ENTERTAINMENT INDUSTRIES, Beas... BT
AL. HAS MISREPRESENTED THE TRIAL
FACTS AND MISSTATED THE
ISSUE WHICH IT HAS CHALLENGED.
At pp. 2 and 5 of the Response Brief
filed on November 9, 1994, Nevada Enter-
tainment Industries, Inc. et al. (herein-
after “Nevada Entertainment”) has mischar-
acterized both the trial facts and the
Single legal issue which Nevada Entertain-
ment has challenged. See p. 2, reading:
“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.” (Our
Emphasis. )
See page 5, reading:
In the instant\—case, Respondents
filed thei ivil righ! tj tte
tl) jeciai ty Cit C
became final. Thus, if this Court
grants certiorari in this case it
will have the opportunity to resolve
this open question.” (Our Emphasis. )
In this Reply Brief, the City of
Henderson submits that the excerpts of
record on Nevada Entertainment's appeal
and the City of Henderson's Cross-Appeal
and the appellate records in this Court in
neem
-2-
Case Nos. 90-1771, 92-643, and 93-1969 and
at pages 7-29 of this Petition for Writ of
Certiorari in Case No. 94-662, establish
both as a historical fact and as a matter
of Jaw that the federal civil rights com-
plaint which Respondent Nevada Entertain-
ment, a citizen of the State of -Nevada,
filed in the U.S. District Court for the
District of Nevada on April 24, 1990 di-
ing, and that said filing of a federal
civil complaint of that nature, regarding
a quasi-judicial matter which is properly
before a Nevada tribunal, by a Nevada
State citizen: (1) is forbidden by the
Eleventh Amendment (i.e. the federal court
lacks “subject matter jurisdiction’), and
(2) was prohibited by this Court’s land-
mark “abstention” decision in 1975 in
Huffman v. Pursue, Ltd., 420 U.S. 592, at
608, and its more recent “binding” holding
in 1986 in Ohio Civil Rights Commission v.
a
Dayton Christian Schools, Inc., 477 U.S.
619, at 629.
Nevada Entertainment’s statement that
the procedural historical facts in the
trial court below are that: ‘Respondents
filed their civil rights action after the
teciai the Cit 1 tinal’
is an “egregious” misstatement of the
trial record on appeal because: (1) an
“abstract” statement of this nature, with-
out reference to the record, is pointless;
(2) it is true, both as a historical fact
and as a matter of law, that the temporary
restraining order and the preliminary in-
junction which were issued in Nevada En-
tertainment'’s federal civil rights action
actually prevented the City Council’s
quasi-judicial order from becoming “fi-
nal;” (3) it is true, both as a historical
fact and as a matter of law that, from a
procedural viewpoint the trial facts in
this Petition cannot be distinguished from
the trial facts in this Court's binding
precedent in 1986, in Ohio Civil Rights
pemceeneee cerns iar
Inc., 477 U.S. 619, at 629 (1986), which
extended the abstention doctrine expressed
as to State judicial] proceedings in Huff-
man v. Pursue, Ltd,, 420 U.S. 592, at 608,
to include quasi-judicial administrative
proceedings; and (4) during the four years
of litigation, three prior petitions on
file in this Court have correctly stated
and given notice that the record herein
tracks the trial facts in Huffman, supra,
which is binding upon the federal courts
and Respondent has, nevertheless, reck-
lessly continued to litigate. See “State-
ment of Facts in No. 90-1971 at p. 22,
92-643 at pp. 5-12 and 19; 93-1969 at pp.
15, and 94-662 herein, at. pp. 4-36
generally, pp. 10-11 specifically.
II. STATEMENT OF THE CASE
(A) THE LICENSE REVOCATION ORDER DID NOT
BECOME FINAL BECAUSE: (1) IT WAS
“STAYED” AT THE REQUEST OF NEVADA
ENTERPRISES FOR 10 DAYS TO PERMIT IT
TO PERFECT A “PROPER” APPEAL; AND (2)
THE 10 DAY STAY WAS EXTENDED INDEFI-
NITELY BY THE COERCIVE FORCE OF NEVA-
DA ENTERPRISES U.S. DISTRICT COURT
RESTRAINING ORDER AND INJUNCTION AND
THE COURT OF APPEALS INJUNCTION.
=5—
At the conclusion of the revocation
hearing on April 10, 1990, the City of
Henderson City Council orally voted to
revoke the business license of Nevada
Enterprises and, at the specific oral
request of its counsel, Roger Jon Diamond,
orally granted a stay of 10 days as was
7 ized by ti ted Bend
Municipal Cod ) it att Di
) Lit it (- juiotead
to the Nevada State District Court (see
the Statement of Facts in Petitioner's
Supplemental Brief in No. 92-643 at pp.
4-12, a copy of which appear at Appendix 1
to this Reply Brief).
The concluding paragraph of the City
Council’s written order, dated April 16,
1990, which was served on Nevada Enter-
tainment, read as follows (see Appellant's
Excerpts Exhibit 1, pp. 2-3):
"Based on the foregoing findings
and conclusions, the CITY COUNCIL
hereby revokes the business’ license
of NEVADA ENTERTAINMENT INDUSTRIES,
INC., d/b/a/ FANTASY VIDEO PLUS,
orders written notice of its
decisions to licensees within five
(5) business days, and stays the
enforcement of the revocation for ten (10)
business days following receipt of the
written notice of revocation.
DATED this 16th day of April,
1990.
CITY COUNCIL OF THE CITY OF
HENDERSON
(Signatures of Council]”
As Nevada Entertainment has pleaded
in its federal complaint, the City Coun-
cil’s order was to become final on May 1,
1990 [see paragraph 51 of Complaint for
Declaratory and Injunctive Relief in Ap-
pellant’s Excerpts of Record at Exhibit 1,
p. 21; and a copy of the federal complaint
at Appendix 2 to this Brief, and paragraph
51 therein at p. 2-32], and therefore, was
still “pending” up to and including April
30, 1990. However, on April 24, 1990, and
bef id Cit C 7 ) “a oe
come final (during the City Council’s 10
day “stay” period) and in the face of the
EJ th 4 inti (wh ict
per force was self-operating and opre-
cluded «a Federal Court from acquiring
“subject matter jurisdiction” on such
~
date), Nevada Entertainment, a Nevada
Corporation, recklessly filed its civil
rights complaint (see copy at Appendix 2
to this Brief) in the U.S. District Court
under 42 U.S.C. Section 1983 and
recklessly asked for both Declaratory and
Iniunctive Relief.
The date ("April 24, 1990°) is of
paramount importance, because ‘the exist-
ence of federal ‘subject matter jurisdic-
tion’ ordinarily depends on the facts as
they exist when the complaint was filed in
the U.S. District Court.” See Lujan v.
Defenders of Wildlife. et al., 504 U.S.
119 L.Ed.2d 331, at fn. 4, emphasiz-
ing the above language and citing Newman-
Green. Inc. v. Aleiandro Alfonzo-Larrain
et al., 490 U.S. 826, 104 L.Ed.2d 893, 109
S.Ct. 2718 (June 12, 1989) at 9300; see
F.Supp. 1140, at 1143:
“As a general rule, the proper point
of reference for determining whether
state proceedings are ‘ongoing’ is
TREN Pk ihm ak * iy
ce RA RR
the date the federal complaint is
filed. In Pennzoil Co, v, Texaco,
ing,, 481 U.S. 1, 107 §8.Ct. 1619, 98
L.Ed.2d 1 (1987), the Court applied
the day-of-filing rule and held that
abstention was appropriate, even
though the state proceedings had _ run
their course by the time the matter
reached the Supreme Court and dis-
missal would leave Texaco without any
state remedy. 481 U.S. at 17-18, 107
S.Ct. at 1529-30....See also Huffman
vy. Pursue, Ltd... 420 U.S. 592, 95
S.Ct. 1200, 43 L.Ed.2d 482 (1975)
(rejecting argument that state
judicial proceedings had ended by
time federal complaint was filed);
Steffel_ v,. Thompson, 415 U.S. 452,
462, 94 3.Ct. 1209, i217, 39. LL. Ed.2d
505 (1974) (holding that Younger
principles did not apply where no
state criminal proceedings is pending
when federal complaint is filed);
Exam, 807 F.2d 453 (5th Cir. 1987)
(abstention not appropriate where
plaintiff voluntarily dismisses state
Claim before filing federal suit).
“The Younger line of authority
is concerned primarily with respect-
ing the sovereignty, integrity, and
competence of state systems, and with
allowing the state systems to operate
without undue interference from the
federal government. See, e.g...
Younger, 401 U.S. at 44, 91 S.Ct. at
750; Huffman, 420 U.S. at 601-04, 95
S.Ct. at 1206-08. This line of au-
thority admonishes federal courts’ to
refrain from intruding into the state
process in a manner that ‘reflect(s]
negatively upon the state court’s
ability to enforce constitutional
principles.’ Cf. Huffman, 420 U.S.
604, 95 S.Ct. at 1208; Steffel, 415
U.S. at 462, 94 S.Ct. at 1217.”
-9-
A legal Conclusion of Law that the
U.S. District Court for the District of
Nevada did not have “subject matter juris-~
diction” on April 24, 1990, must, of
it Coll [ t) - ”
the Eleventh Amendment! The U.S. Dis-
trict Court and the U.S. Court of Appeals
for the Ninth Circuit are required to
acceed to that “command” in all cases in
which a proper Huffman type abstention
defense has been asserted. That the City
of Henderson is asserting a proper Huffman
challenge, see Huffman, supra, at fn. 14,
which cites and relies upon this Court's
decision in Watson v. Buck, 313 U.S. 387
(1941). See also Questions I-IV in the
petition for writ of certiorari in Case
No. 92-643 at pp. i-iii. a copy of which
is attached at Appendix 3 to this Brief.
It follows therefrom that Nevada Enter-
tainment used the power of the _ federal
court in an unlawful (Eleventh Amendment
violation) tortious and unconstitutional
manner, through the issuance and
-10-
enforcement of an unlawful (Eleventh
Amendment violation) tortious, unconsti-
tutional federal court temporary restrain-
ing order (April 27, 1990) and an unlawful
(Eleventh Amendment violation) tortious,
and unconstitutional preliminary injunc-
tion (May 30, 1990) (See copy of Injunc-
tion Orders in Appellants’ Excerpts of the
Record at Exhibits 2 and 3), to: (1) ex-
tend the City Council’s 10 day stay indef-
initely, and (2) unlawfully, tortiously,
and unconstitutionally prevent the City
C UL i- judicial Ord , April
5. 1990 f ; tinal 4
able order, which could be used to execute
the will of the City Council acting as an
Petitioner City of Henderson contends
that the “impasse” which such injunction
order created was subjectively brought to
the attention of U.S. District Court Judge
Lloyd D. George in June of 1992 when he
first attempted to force the City to trial
in the federal Court against its will.
-ll-
Prior thereto, the City had added defen-
sive pleas of “Res Judicata’ and ‘collat-
eral estoppel” to its continuing plea of
“lack of subject matter jurisdiction.” At
that time, Judge Lloyd D. George must have
become aware of the Eleventh Amendment
impasse which arose out of the City’s
Huffman abstention challenge; i.e. that
the City Council’s quasi-judicial order of
revocation had been “stayed oby his
injunction order, and had not become final
and, therefore, such pleas of "res
judicata™ and “collateral estoppel, ~™
though pleaded, would not be available to
the City as a defense in the _ federal
trial; for, at that time, and, on his own
motion, he reversed his initial ruling,
suspended the trial procedure and,
thereafter, certified the matter for an
interlocutory appeal to the Ninth Circuit.
See Statement of Facts in the Petition
herein at pp. 22 and 23.
The “impasse” which was created by
such federal injunction order was also
ao
-12<-
brought to Nevada Entertainment's atten-
tion after U.S. District Court Judge Lloyd
George filed his final judgment on Novem-
ber 27, 1992 (see copy in Appellants’ Ex-
cerpts of Record, at Exhibit 7). At that
7 N 1a Ent tai ) riled hike
7 ‘th at C ¥
whic! = int ted iti
PD bill” line” pet the Ci! Sein
ci] because the federal court’s temporary
restraining order and preliminary injunc-
tion order which it served on the City had
indefinitely extended the stay which it
had obtained from the City Council to
allow it to take a ‘proper appeal. How-
ever, the City Council could not act on
the matter because the trial court’s in-
junction, which U.S. District Court Judge
Lloyd George had lifted, was’ immediately
continued -- this time at the request of
Nevada Entertainment and at the instance
the Ninth Ci a ee oes ae
and has not yet been lifted. The Parties
o13<
by stipulation, have stayed the mandate to
await this Court’s ruling on this matter,
bee in: 7 ‘i ij ‘Lect.
(See Statement of Facts in the Petition
herein at p. 28).
The trial facts clearly establish
that Nevada Entertainment’s Attorney did
b it might | ' ; x til M
2.1990 to file its federal lawsuit, on
which date the City Council’s 10 day stay
order would have lapsed, and the City
Council’s revocation order would then have
“pecome’ final. Such a fact situation
1
(not here present) would have presented a
1
For an example of an attempt to
state such a case (not here present), see
(Footnote Continued)
=
different case and controversy and
different federal questions as to whether,
in such cases, a federal plaintiff could
show, by extinsic evidence that the Huff-
Man abstention doctrine did not apply be-
cause he was bringing a new and indepen-
dent case in the U.S. District Court, and
(Footnote Continued)
the petition for writ of certiorari in
N 1a Ent tai ' Induetri I )
,y ee.
94-786 which was docketed on October /7,
1994, and served on the City of Henderson
by mail on October 29, 1994. Because the
petition herein establishes that the
Eleventh Amendment does not permit Nevada
Entertainment to file a federal lawsuit
under the historical facts’ set forth
herein in Case No. 94-662, the City of
Henderson considers the filing of Case No.
94-786 to be a “frivolous” filing, and has
addressed that issue in the Supplemental
Brief which is being filed concurrently
with the Reply Brief herein (case No.
94-662) and will further address’ that
issue and Nevada Entertainment's untrue
Statement in this Petition at p. v.
reading:
“The Ninth Circuit rejected
Respondents’ position initially
before it withdrew its opinion and
replaced it with its second opinion.”
in a Response Brief and Cross-Petition in
Case No. 94-786. See, also, Statement of
Facts in the petition herein in No. 94-662
at pages 38-39.
-15-
had abandoned the litigation in his state
case, and was willing thereby to accept
and suffer the potential risk of defeat
under a “res judicata” and ‘collateral
estoppel” defense.
N lid N Entertai t limil
request for declaratory relief. A differ-
ent case and controversy and different
federal questions would also have been
presented, had Nevada Entertainment sought
only a declaratory relief and not the _ in-
junction order (also not this case), such
as questions of fact re his mens rea in
relation to the City’s claim of an alleged
reckless Eleventh Amendment violation.
Instead, Nevada Entertainment
deliberately chose to collaterally attack
the quasi-judicial fact finding of “fraud”
made by the City Council in the federal
court rather than in the state court (as
could have been done -- see Appendix 1, at
p. 1-6 to this Brief), and sought and
btained ini 7 Lief inst ti
Sovereign State of Nevada, in open
defiance of the Eleventh Amendment command
and this Court’s binding “abstention™
precedent in Ohio Civil Rights Commission
vy. Dayton Christian Schools, Inc., 477
U.S. 619 (1986).
Petitioner City of Henderson
respectfully submits that’ the factual
differentiation which Nevada Entertainment
is now attempting to make to establish
“standing” at this late stage (to justify
the filing of its frivolous Petition for
Writ of Certiorari in No. 94-786), is not
available. (See fn. 1 on p. 13, supra. )
(B) THIS COURT’S RESOLUTION OF THE ABOVE
ISSUE SHOULD BE DISPOSITIVE OF THE
REMAINING SUBSIDIARY ISSUES WHICH
NEVADA ENTERTAINMENT HAS NOT
ADDRESSED.
The duty of a Respondent to respond
in a brief in opposition to a Petition for
Writ of Certiorari is set forth in Rule
15.1 as follows:
tf
wh Fan
“Brief in Opposition.
“,..the brief in opposition should
of fact of law set forth in the
petition which have a bearing on the
question of what issues would proper-
ly be before the Court if certiorari
were granted.... Counsel are admon-
.
ished that they have an obligation to
PT OT PUTT Tae
Lion, and not Jater., Any defect of
Further, Rule 16.1 provides that, after
consideration of the papers, the Court may
make a summary disposition of the merits.
Because the record on appeal herein is
clear that this Court’s decision in Qhio
Civil Rights C are v._Dayi Phin ie
tian Schools, Inc., 477 U.S. 619 (1986) is
a binding precedent and controls the dis-
position of this case [which the Ninth
Circuit so held in its first opinion in
Nevada Entertainment Industries, Inc. v.
City of Henderson, 8 F.3d 1348 (1993)],
see Statement of Facts in the Petition
herein at pp. 38-39, this Court is pres-
ently empowered to grant summary relief to
i
j
:
'
|
-18-
Petitioner without setting the issue for
oral argument. See Stern, Gressman,
Shapiro, and Geller, Supreme Court Prac-
tice, Seventh Edition at pp. 250 et seq.,
“(c) Summary Disposition of the Merits by
Per Curiam Opinion.” Petitioner submits
that such a disposition would not be prop-
er in this case because of the preeminent
importance of the City of Henderson’s
additional claims of: (1) Eleventh Amend-
ment injury and (2) the federal court’s
lack of subject matter jurisdiction, both
of which are of pational interest to all
of the states.
Petitioner contends herein that Ne-
vada Entertainment's deliberate attempt to
use the federal courts to obtain a federal
decree and rule of law which is’ contrary
to the express holding of the Nevada Su-
preme Court in City of Las Vegas v., Nevada
Industries,Inc., 772 P.2d 1275 (Nev. 1989),
see copies at Appendix 4, and is a patent
violation of the Eleventh Amendment, which
amendment was specifically adopted by the
=19<
States in 1792 to preclude the use of the
federal court system as was done in this
case. See Cross-Petition of City of
Henderson in Nevada Entertainment Indus-
tries, Inc, et al. v. City of Henderson,
et al., Case No. 94-786. Further, there
is a continuing problem in the Ninth Cir-
cuit and other Circuits, with the correct
application of the test to be applied in
ruling on Huffman abstention challenges,
and a serious need for a comprehensive
opinion of this Court to settle the pres-
t _abatenti b} ,
the Ninth Circuit; that is, the divergent
views of the 38 individual Ninth Circuit
Court judges, and a refusal of some: (1)
to “recognize” the Eleventh Amendment
foundation of the Huffman abstention chal-
lenge, and (2) to defer in proper cases to
the sovereign right of state courts to
rule on important State interests under
the Eleventh Amendment. This issue is
further addressed in a Supplemental Brief
in Case No. 94-662 and in the City’s
-20-
Cross-Petition to Nevada Entertainment in
Case No. 94-786, concurrently being filed.
III. CONCLUSION: THE CONSTITUTIONAL
QUESTIONS RE ELEVENTH AMENDMENT STATE
RIGHTS, HUFFMAN ABSTENTION, AND
SUBJECT MATTER JURISDICTION ARE RIPE
FOR RESOLUTION.
Petitioner cannot envision a ‘riper’
“test case’ in which to examine the merits
of the City’s claim that the refusal to
apply Huffman abstention doctrine is the
direct cause of the City’s Eleventh Amend-
ment injury. The Statement of Facts clear-
ly documents: (1) a refusal of the _ U.S.
District Court and the Ninth Circuit Court
of Appeals to apply the ‘binding rule of
law established by this Court in its Huff-
man and Dayton Christian Schools absten-
tion decisions; (2) judgments of both
Courts which contravene the State of Ne-
vada’s rights under the Eleventh Amend-
ment; and (3) Eleventh Amendment constitu-
tional injury to the City of Henderson and
the State of Nevada which is patent on the
face of the record.
Dated: November 26, 199
APPENDIX 1
STATEMENT OF FACTS IN PETITIONER'S SUPPLE-
(Refer: pp. 5 & 15 of Reply Memorandum. |
Text at page 5 reads:
“At the conclusion of the revocation
hearing on April 10, 1990, the City of
Henderson City Council grally voted to re-
voke the business license of Nevada Enter-
prises and, at the specific oral request
(see the
Statement of Facts in Petitioner's
Supplemental Brief in No. 92-643 at pp.
4-12, a copy of which appear at Appendix 1
to this Reply Brief).~
Text at page 15 reads:
its prayer in the federal complaint to a
request for declaratory relief. A differ-
ent case and controversy and different
federal questions would also have been
presented, had Nevada Entertainment sought
only a declaratory relief and not the in-
junction order (also not this case), such
as questions of fact re his mens rea in
relation to the City’s claim of an alleged
reckleas Eleventh Amendment violation.
“Instead, Nevada Entertainment delib-
erately chose to collaterally attack the
quasi-judicial fact finding of “fraud”
made by the City Council in the federal
court rather than in the state court (as
could have been done -- see Appendix 1, at
p. 1-6 to this Brief), and gought and ob-
. ; :
RA a ne gpg 8
ereign State of Nevada, in open defiance
of the Eleventh Amendment command and this
Court’s binding “abstention” precedent in
Ohio ¢
(1986). ~
-, 477 U.S. 619
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STATEMENT OF FACTS
(A) FACTS TAKEN FROM THE RECORD.
The City of Henderson, Nevada,
adopted a new, comprehensive Municipal
Zoning Code and Municipal License Code
in 1989, following lengthy public
hearings and proceedings on such _ Codes.
Under the Zoning Code, as amended, a new
provision was added for an "adult
business" which was authorized only in
the "CH Zone.” Prior to opening for
business, all prospective businesses
were required to submit an application
for, and obtain, 3 revenue-based
business license, truthfully disclosing
the precise nature of the intended
business operation. [A business license
will not issue unless the intended
business operation is located in a
proper zone.] An "adult business" was
among several enumerated business uses
which required application for a
conditional use permit.
eR aE re Re a ana A AR
1-2
Federal piaintiffs Nevada
Entertainment Industries, Inc. et al.,
are operators of an Adult Business, who
wished to locate in the city of
Henderson, Nevada. Upon locating a
prospective site available for rent,
they entered into a lease. Several
months after federal plaintiffs had
signed their lease, they applied to the
City for a business license.
(B) FINDINGS OF FACT TAKEN FROM UNITED
STATES DISTRICT COURT JUDGE GEORGE'S
DECISION.
At pages 7 and 8 of its Decision,
United States District Court Judge
George made the following findings of
fact (see Appendix A at pages 7 and 8):
"In the present case,
plaintiffs attempted to circumvent
the City's Code by following a
course of deception. Initially,
plaintiffs applied for a business
license for an adult business.
The City then informed the
plaintiffs of certain conditions
that an adult business had to meet
before a license would be
authorized. In response to this
information, plaintiffs did not
seek judicial protection from the
City's provisions. Nor did they
attempt to meet the conditions for
obtaining a license for an adult
business. Nor did plaintiffs
- Challenge the law by opening and
operating an adult business without
obtaining any license.
"Rather, plaintiffs inquired
whether a business license would be
approved for a general business.
The City responded that such an
application for a general business
would be approved. Plaintiffs,
fully aware that a license for a
general business would be approved
whereas an application for an adult
business would be rejected,
une tsa
submitted a second application
which specifically omitted any
reference to an adult business.
This second application was
approved and, on February 1, 1990,
plaintiffs opened an adult
business. The City then revoked
the plaintiffs’ business license,
finding that Plaintiffs had
misrepresented the nature of the
business on the license
application in order to obtain a
license. As permitted by H.M.C.
Section 4.04.150, the Council
revoked plaintiffs' license for
making a § false or fraudulent
statement in the application for a
license."
(C) CONTINUATION OF FACTS TAKEN FROM
THE RECORD.
At the state license revocation
proceedings, the City Council
determined that federal plaintiffs'
misrepresentations were material, delib-
erate, and were intended to mislead the
city, and violated state law.
In this state quasi-judicial adminis-
trative proceeding, federal plaintiffs
PLETAL API ES PEORIA ROG OR IONE, +
il att a !
freely and without reservation, volun-
tarily asserted and litigated as a
defense, among others, the same _ federal
a RE RA RES I Se BD ALE LNG PEED
constitutional issues which were
ee ee
presented in the federal civil rights
action.
The administrative enforcement
hearing resulted in the City Council's
written order dated April 16, 1990,
which (1) immediately revoked the
business license and (2) stayed action
te enforce the revocation for ten days,
in order to allow the licensees’ the
opportunity to immediately seek judicial
review of the City action before the
City Council, as provided by Henderson
Municipal Code, H.M.C. Section 4.06.160.
See also the concluding request of
sou See Sar hoon ihe
1-6
licensees' attorney, Mr. Diamond at the
hearing on the license revocation:
",..-1£ you do vote for revoca-
tion, which I earnestly ask you
not do, we would ask that the
Council stay its order revoking
the license, which this Council is
empowered to do under the _ provi-
sions of the ordinance, to give us
a chance to file a lawsuit against
the City of Henderson and the in-
dividual Councilmembers under the
Federal Civil Rights Act which is
applicable either in the State
court or the Federal court, to
give us a chance to sue the Coun-
cil, its individual members and
the City for monetary damages for
deprivation of my clients federal-
ly protected civil rights. If the
Council has any questions or
comments, I'd be glad to try to
Pag)
¢
£
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1-7
answer them. Thank you very much."
(Our emphasis. )
Instead of appealing the City
Council's administrative factfinding and
license revocation in state court as
authorized by the City Council,
licensees filed this action in federal
court as a defense to the City's
enforcement action during the period in
which the issue was still pending
because of the stay and the ten day
statutory period allowed by the City
Council to appeal the City's action
within the state judicial system,
thereby invoking the abstention doctrine
formulated in Younger _v. Harris, 401
U.S. 37 (1971), Huffman v. Pursue, Ltd.,
420 U.S. 592 (1975), and their progeny.
On April 27, 1990, the United
States District Court granted 4
temporary restraining order pursuant to
Rule 65 of the Federal Rules of Civil
Procedure. On June 4, 1990, following
oral argument on Plaintiffs' Motion for
a preliminary injunction and without
taking additional testimony or evidence,
the United States District Court
preliminarily enjoined the Defendants
from further action on the matter in
general, but left the City Council's
revocation of the business license
undisturbed.
After further study of the United
States Supreme Court's opinion in
Huffman v. Pursue, Ltd., supra, the
City of Henderson declared their
refusal to consent to federal juris-
diction [see Ohio Bureau of Employment
Services v. Hodory, 431 U.S. 471
(1977)], and filed: (1) a declaratory
judgment lawsuit in the Nevada District
Court. (City of Henderson v. Nevada
- Entertainment Industries, Inc., Clark
County District Court No. A _ 288647,
filed October 1, 1990); and (2) a
motion to dismiss the Civil Rights
lawsuit in the United States District
Court on the grounds of lack of federal
jurisdiction (11th amendment) and
failure to state a claim upon which
relief can be based (Huffman v. Pursue,
Ltd.), and requested the United States
District Court to issue an order to show
cause why Plaintiffs should not be re-
quired to present their federal consti-
tutional claims in the State lawsuit;
that such motions be set for an immedi-
ate hearing on the grounds that the
Huffman doctrine applied to this case,
and that the District Court had no dis-
cretion in the matter and was required
to dismiss the federal complaint.
ARGUMENT
THE FINDINGS OF FACT AND ERRONEOUS
CONCLUSIONS OF LAW IN THE FEDERAL
TRIAL COURT'S DECISION OF NOVEMBER
27, 1992 ARE SO EGREGIOUS AS TO
MANDATE IMMEDIATE RELIEF UNDER
HUFFMAN V. PURSUE, LTD. AND WATSON
V. BUCK AS TO THE PETITION FOR WRIT
OF CERTIORARI IN NO. 92-643.
Sn cme
ela eee nn RA Ak
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APPENDIX 2
COPY OF FEDERAL COMPLAINT
(Reference: pages 6 and 7 of Reply
Memorandum. |
Text at pages 6-7 reads:
“As Nevada Entertainment has
int, the
City Council’s order was to become
final on May 1, 1990 [see paragraph
51 of Complaint for Declaratory and
Injunctive Relief in Appellant’s
Excerpts of Record at Exhibit 1, p.
21; and a copy of the federal
complaint at Appendix 2 to this
Brief, and paragraph 51 therein at p.
2-32), and therefore, was still
‘pending’ up to and including April
30, 1990. However, on April 24,
1990, and j j
(during the
City Council’s 10 day ‘stay’ period)
force, was self-operating and pre-
‘subject matter jurisdiction’ on such
date), Nevada Entertainment, a Nevada
Corporation, recklessly filed its
civil rights complaint (see copy at
Appendix 2 to this Brief) in the U.S.
District Court under 42 U.S.C.
Section 1983 and recklessly asked for
both Declaratory and Iniunctive
+ ae a
2-1
ROGER JON DIAMOND
2115 Main Street
Santa Monica, CA 90405
(213) 399-3259
State Bar No. 40146
Attorney for Plaintiffs
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
NEVADA ENTERTAINMENT ) CV No. CV-S-90-264-
INDUSTRIES, INC., a Nevada ) LDG-LRL
corporation and DANIEL ) COMPLAINT FOR
BISHOP ) DECLARATORY
) AND INJUNCTIVE
Plaintiffs, RELIEF.
)
)
vs. . FILED: APRIL 24, 1990
CITY OF HENDERSON, a )
Nevada Municipal )
corporation, JAMES GOFF, )
CHIEF OF POLICE OF THE CITY )
OF HENDERSON, )
;
)
)
Defendants.
Plaintiffs, Nevada Entertainment
Industries, Inc. and Daniel Bishop allege as
follows:
Be The jurisdiction of this court is
invoked pursuant to 28 U.S.C. 41343(3) and
42 u.s.c. 1983 in that this is an action by
#
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H
rd
Pe ee ee
a Ths we
TSMR IPRS YORE ITT RSL. PERE ETE
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Plaintiffs with regard to their attempt to
operate a bookstore and motion picture
arcade protected by the First and Fourteenth
Amendments to the United States
Constitution; they are seeking to enjoin the
Defendants from closing their
constitutionally protected business.
Venue lies in the Southern
Division of the District of Nevada; the City
of Henderson is located in Clark County,
Nevada, which is within the jurisdiction of
the Southern Division.
3. Plaintiff Nevada Entertainment
Industries, Inc., is, and at all times
mentioned herein, was a corporation duly
authorized and created by the laws of the
State of Nevada. Plaintiff Daniel Bishop at
all times mentioned herein, was and is the
President of Nevada Entertainment
Industries, Inc. and would be subject to
criminal sanctions should Defendants not be
enjoined from closing the subject business.
4. Defendant City of Henderson was
and is, at all times mentioned herein, a
2-3
municipal corporation duly created by the
laws of the State of Nevada and was and is
located within Clark County and the Southern
Division of the District of Nevada.
5. Defendant James Goff is sued in
his official capacity as Chief of Police of
the City of Henderson.
6. This action relates to the attempt
by Plaintiffs to operate a bookstore and
motion picture arcade protected by the First
and Fourteenth Amendments to the United
States Constitution. The business is known
is Fantasy Video Plus and is located at 1100
North Boulder Highway, Henderson, Nevada.
7. Defendants contend that the
business in question (Fantasy Video Plus),
is an adult business within the meaning of
Henderson Municipal Code §19.16.006(B). For
the purpose of this lawsuit, Plaintiffs will
concede that the subject business, Fantasy
Video Plus, is an adult business within the
meaning of §19.16.006(B) of the Henderson
Municipal Code.
8. On February 17, 1989, Plaintiffs
|
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Ail RD
a ear all lS sali Nolte Bly. .* Baer
2-4
desired to commence a business in the City
of Henderson wherein books, magazines and
novelties would be sold and motion picture
films (video tapes) could be sold and/or
rented and exhibited. Plaintiffs desired,
with respect to such business, to sell,
rent, and exhibit materials protected by the
First and Fourteenth Amendments to the
United States Constitution.
9. Plaintiffs located a parcel of
property at 1100 North Boulder Highway,
Henderson, Nevada. On February 17, 1989,
Plaintiffs entered into a five year lease
for the premises at 1100 North Boulder
Highway, Henderson, Nevada 89015. The
premises consisted of a structure with 3,200
square feet of floor area. The lease would
commence on April 1, 1989 and last until
April 1, 1994.
10. At the time the lease was made,
the City of Henderson had already enacted
(May 1983), Chapter 4.102 of the Henderson
Municipal Code regarding “video rental
stores.”
2-5
11. Henderson Municipal Code §4.102.020
required all "video rental stores" (defined
as establishments which derived its gross
profits from the sale or rental of sexually
explicit movies, films or tapes) to certify
that no such films would be sold or leased
to persons under the age of 21.
12. With the exception of Chapter
4.102, Defendant City of Henderson did not
further regulate premises selling or renting
"adult films."
13. It was the intention of Plaintiffs
to exhibit, sell, and/or rent the kinds of
materials described in Chapter 4.102 of the
Henderson Municipal Code (video rental
stores).
14. The general requirements for
obtaining a business license were set forth
in Title 4 of the Henderson Municipal Code
entitled "Business Regulations and License."
15. On March 7, 1989, after Plaintiffs
executed their lease on February 17, 1989,
Defendant City of Henderson adopted
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2-6
Ordinance No. 1112 which repealed in its
entirety former Chapter 4.04 entitled
"Business Regulations and Licenses” and
which replaced it with a new Chapter 4.04
entitled "Business © Regulations and
Licenses."
16. Accordingly, since the adoption of
Ordinance No. 1112 on March 7, 1989,
Defendant City of Henderson has _ been
regulating businesses and has been
determining whether or not to issue business
licenses based upon the provisions of the
new Chapter 4.04 which was adopted by
Ordinance No. 1112.
17. By virtue of Henderson Municipal
Code 14.04.020, all businesses in the City
of Henderson must have a license issued by
the City of Henderson.
18. Henderson Municipal Code 14.04.020
provides as follows:
"(a) It shall be unlawful for any
person to commence, carry on,
engage in or continue in the City
any business without first
2-7
obtaining a license and paying
the appropriate license tax as
provided by terms and provisions
of this Title.
(b) A license shall only be
issued if the applicant has a
fixed place of business’ from
which the business will be
conducted, unless the Title
specifically states otherwise.
Once issued a license, the
licensee shall not engage in
business from any other premises
other than the one for which the
license was issued.
(c) No licensee shall _ allow
another person to display a
license on the licensee's
premises, or to in any way allow
any other person to use the
licensee's premises to conduct
business unless expressly
permitted by the Division.
(d) Upon the filing of a
LS EAE EAE AT RH ea a NM NE inate 0 dah
re entncrs
Pw ages
2-8
complete and accurate business
license application and the
payment of all required license
fees, the applicant may be issued
a temporary business license by
the Division; provided, however,
that the requirements of all
appropriate federal, state, and
county regulatory agencies have
been met; and that the
requirements of all Departments
or Divisions of the City have
been meet and properly approved.
The temporary business license
shall permit the applicant to
engage in the business designated
at the location so stated for a
period of up to, but not to
exceed sixty (60) days, within
which all inspections and
requirements imposed upon the
applicant by the various
Departments or Divisions of the
City are to be conplied with.
2-9
Upon the recommendation by the
various Departments or Divisions
within the City, the Division
shall have the discretion to
extend a temporary business
license for a period of an
additional sixty (60) days. It
shall be the sole responsibility
of the applicant to schedule all
follow-up inspections necessary
to comply with all the
requirements and corrections.
Should the applicant have not met
the requirements as set forth by
the Departments or Divisions of
the City within the maximum
prescribed time limit of one
hundred twenty (120) days, the
temporary license shall be deemed
expired. Continued operation of
the business shall constitute a
violation of this Title, and the
business shall be subject to
legal action as prescribed by
2-10
this Title, the penalties for
which are described in Section
4.04.230.
(e) The above stated provisions
for a temporary business license
shall be in addition to those
provisions applying to privileged
business licenses or any business
which requires formal approval by
the Council, unless the Director
has first given tentative
approval in accordance with
i section 4.04.170.
| 19. Henderson Municipal Code Section
| 4.04.150 sets forth the grounds for denial,
non renewal, suspension, limitation and
revocation of licenses. Specifically,
Section 4.04.150 provides as follows:
"It is expressly declared that
the provisions of this section
are applicable to any license or
permit issued or applied for, or
pursuant to any chapter of this
Code. Thus, the provisions of
2-11
this section are in addition to
any grounds for denial, non-
renewal, suspension, limitation
and revocation set forth for
specific businesses or trades in
other chapters of this title.
(a) Any license or permit
application made pursuant to the
provisions of this title may be
denied for good cause by the
Division or by the Council. Good
cause for denial of a license or
permit shall include, but not be
limited to:
(1) The license
application is
incomplete so as to not
contain all information
required by this Title:
(2) All license and
investigation fees are
not paid;
(3) Palse or
fraudulent statements
Cn eRe SS on PETE EI ait
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{
2-12
in the application for
the license;
(4) Failure to obtain
a license or permit as
required by this Title
and compliance with all
other Department or
Division requirements
prior to engaging in
business;
(5) The applicant, or
any of its principals,
do not qualify for, or
have not obtained work
card identification as
may be required by the
Division;
(6) A finding by the
Division or by the
Council that said
business will not
comport with the peace,
health, safety,
convenience, good
SMALE CRT MNT SA oon AEP UA
ised ck anil ae sce
2-13
morals, or the general
welfare of the public;
(7) Lack of fitness of
the applicant to engage
in the particular
occupation of business.
For the purpose of this
section, lack of
fitness shall be
defined as that quality
or character of the
license applicant which
tends to establish that
the applicant will not
perform the services to
be provided under his
license or permit in a
reasonable manner’ to
the public. Particular
factors to be _ taken
into consideration by
the Division or by the
Council in determining
whether the applicant
2-14
is unfit, are whether
the applicant has a bad
moral character, has
intemperate habits or a
bad reputation for
truth, honesty, or
integrity, or has a
prior criminal
conviction and/or 4
prior license denial,
suspension, limitation
or revocation, either
locally or in another
state or community, to
the extent that it is
possible that the acts
which formed the basis
of the conviction,
denial, suspension,
limitation, or
revocation may be
committed by the
applicant under the
license or permit being
| TS ee Se NE Te
2-15
applied for. In the
event the applicant is
a company, partnership,
association,
corporation, or other
business entity, the
Division or the Council
may consider the
fitness of each of the
applicant’s owners,
partners or directors.
(8) For any other
cause by the City
through its Division or
Council to be a just or
equitable reason.
(b) Non-renewal. The Division
may refuse to renew any business
license or permit for any reason
which would have justified a
denial of the original
application for a license or
permit. Refusal to renew shall
include, but not be limited to
2-16
the following:
(1) The conduct of the
business in an
unlawful, improper, or |
irregular manner;
(2) Failure to comply
with all City, county,
state or federal laws;
(3) Upon t he
recommendation of a
Department or Division
within the City of
noncompliance to City
ordinances or business
activities not in the
best interest of the
City;
(4) The existence of
unsanitary conditions
at, near, or in the
premises which causes
or tends to create a
public nuisance or
which injuriously
2-17
affects the public
health, safety or
general welfare;
(5) Failure to
truthfully disclose any
of the information
required by the
Division or the failure
to make full disclosure
of all the facts
required by the
Henderson Municipal
Code.
(6) The commission of,
or permitting or
causing the commission
of any act in the
operation of the
business which act is
made unlawful or is
prohibited by any
ordinance of the City,
county, state or
federal government;
2-18
(7) For any other
cause by the City
through its Division or
its Council to be a
just or equitable
reason.
(c) All business licenses issued
under this Title, shall be
subject to suspension, limitation
or revocation by the Council for
failure of such licensee, his
agents, servants, or employees
while engaged in the conduct of
business, to comply with any of
the provisions of this Code. The
Council may, upon complaint, or
upon its own motion, cause any
licensee to appear before it at
any time to show cause why the
license of any licensee shall not
be suspended, limited or revoked
in accordance with Chapter 4.06
as applicable.”
20. Henderson Municipal Code t, .04.200
a
2-19
authorizes certain Henderson officials to
enforce the ordinance by citations and
arrests. Those with enforcement powers
include police officers as well as the
Director of Licensing and his agents.
21. Henderson Municipal Code 14.04.220
provides that the violation of any provision
of the Code is a misdemeanor.
22. Shortly after Defendant City of
Henderson adopted Ordinance No. 1112,
portions of which are quoted above, the City
of Henderson also adopted Ordinance No.
1120, which enacted Titles 18 and 19 of the
Henderson Municipal Code. Ordinance No.
1120 was a comprehensive revision of the
Zoning Code and zoning law of the City of
Henderson. On April 4, 1989, by Ordinance
No. 1120, Defendant City of Henderson
repealed its prior ordinances regarding
zoning, and, as stated, replaced them with
a new comprehensive “Development Code.”
Said Development Code purported to regulate
zoning in the City of Henderson and still
purports to regulate zoning in the City of
Henderson.
23. Prior to April 4, 1989, it was
lawful for Plaintiffs to operate their
proposed business at the property leased by
them on February 17, 1989. That is, the
property was commercial in nature and
permitted the establishment of the business
intended to be omnia by Plaintiffs.
24. At the time Plaintiffs leased
their property for the business in question,
their property was zoned commercial (CC).
25. However, after the adoption of
Ordinance No. 1120 on April 4, 1989, the
City of Henderson purported to regulate
where "adult businesses” could be located in
the City of Henderson. That is, the effect
of Ordinance No. 1120 adopted April 4, 1989,
was to prevent Plaintiffs from commencing
the business they intended to commence when
they first leased the property on February
17, 2989.
26. Ordinance No. 1120 purported to
allow adult businesses to exist only in one
zone of the City of Henderson, the newly
| 2-21
created "CH" zone.
27. Section 19.16.006(B) of the
Henderson Municipal Code provides as follows
(Ordinance No. 1120):
wit GO Ow Businesses
Establishments based primarily on
materials or performances that
depict, describe, or relate to
"specified sexual activities", as
defined in Chapter 19.12."
Pe AP ites PH OOS
28. Section 19.12.006(DE) of the
Henderson Municipal Code provides as
follows:
4 "Sexual Activities, Specified:
Human genitals in a state of
sexual stimulation or arousal;
acts of human masturbation,
sexual intercourse, oral
copulation, or sodomy; fondling
or other erotic touching of human
genitals (pubic region) buttocks,
or female breasts."
29. Section 19.24.002 of the Henderson
Municipal Code specifies the following with
2-22
respect to the "CH" Highway commercial
district zone”:
"To provide sites for the auto-
oriented commercial uses,
including hotels, motels, service
station, car washes, automobile
sales and services, drive in
restaurants, offices, limited
warehousing and commercial
services."
30. By virtue of Henderson Municipal
Code !119.24.004, adult businesses, including
bookstore and motion picture arcades, were
and are only permitted in the "CH™ zone and,
within such zone, allowed only "with use
permit, subject to location requirements set
forth in Henderson Municipal Code Licensing
Regulations.”
31. After Defendant City of Henderson
adopted its revised zoning law on April 4,
1989, no parcel of property in the City of
Henderson was zoned "CH." Thus, nowhere in
the City of Henderson could one lawfully
operate an adult business, such as an adult
RR RNS ier bat L756
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CSCS ES
2-23
bookstore and arcade. Although the City
of Henderson adopted the zoning
provisions quoted above on April 4, 1989,
the City did not establish any zone known
as the CH zone. Thus, after April 4,
1989, the City of Henderson effectively
prohibited adult bookstores and arcades
from operating anywhere within the City
of Henderson, in violation of the First
and Fourteenth Amendments to the United
States Constitution (Schad v. Borough of
Mount Ephraim, 452 U.S. 61 68 L.Ed.2d
671, 101 S.Ct. 2176 (1981).
32. Since the City of Henderson
after April 4, 1989 effectively banned
throughout its tterritory all adult
bookstores and arcades by zoning
ordinance, the zoning ordinance was a
nullity, being unconstitutional on its
face. In effect, the City of Henderson
by violating the principles set forth by
the United States Supreme Court in Schad
v. Borough of Mount Ephraim, supra, had
no zoning law regarding adult bookstores
2-24
and motion picture arcades.
33. Although, as stated above,
Defendant City of Henderson totally
prohibited adult nochetente and arcades from
operating anywhere in the City of Henderson,
in violation of the First and Fourteenth
Amendments to he United States Constitution,
Defendant City of Henderson also required
that any such business obtain both a
business license and a conditional use
permit.
34. One may not obtain and/or retain
a business license from Defendant City of
Henderson if one's business is not zoned
properly or if it does not have a required
conditional use permit.
35. In addition to needing a business
license as set forth above, Plaintiffs also
needed a conditional use permit pursuant to
Section 19.74.012 of the Henderson Municipal
Code.
36. In order to obtain a conditional
use permit, Plaintiffs would have to
establish and the City Council would have to
2-25
find, among other things,
"That the proposed location of
the use and the proposed
conditions under which it would
be operated or maintained will be
consistent with the Comprehensive
Plan; will not be detrimental to
the public health, safety, or
welfare of persons residing or
working in or adjacent to the
neighborhood such use; and will
not be detrimental to properties
Or improvements in the vicinity
or to the general welfare of the
5 ae ee
37. As stated above, after April 4,
1989, the City of Henderson was maintaining
and did maintain an unconstitutional system
with respect to adult bookstores and motion
picture arcades in that, among other things,
there was no property zoned CH and therefore
no property on which such a business could
be operated; in addition, even if there were
such properties zoned CH, such business
2-26
would have to obtain a business’ license
under the standards set forth above and also
obtain a conditional use permit under the
standards set forth above, such standards
being unconstitutionally vague and
unenforceable.
38. On August 31, 1989, Plaintiffs
duly filed their application for business
license. At the time Plaintiffs applied for
their business license, they were informed
by an official of the City of Henderson that
there was no place in the City of Henderson
were one could lawfully operate an adult
bookstore and motion picture arcade.
Therefore, if their application described
the business as an adult business, Defendant
City of Henderson would be compelled to deny
the application.
39. On August 31, 1989, Plaintiffs
submitted a written application on a form
provided by the City of Henderson. Under
the heading "General Information",
Plaintiffs provided the following statement
"Nevada Entertainment Industries dba Fantasy
2-27'
Video Plus.”
40. Under the heading "Occupancy Use
Information™ (type of business), Plaintiffs
provided the following description:
"Mass media books and_ video
store; novelty shop, etc.”
41. On September 21, 1989, Defendant
City of Henderson issued a revenue business
license to Plaintiffs.
42. On or about December 5, 1989,
Defendant City of Henderson re-zoned
Plaintiffs’ property at 1100 Boulder
Highway, Henderson, NV from CC to CH. By
rezoning Plaintiffs’ property from CC to CH,
Defendant City of Henderson determined that
an adult bookstore and arcade could
theoretically be operated at said location,
thereby ostensibly eliminating one ground
for invalidating the regulatory scheme for
adult bookstores and arcades; that is, as of
December 5, 1989, Defendant City of
Henderson no longer purported to totally ban
adult bookstores and arcades from the City
of Henderson (thereby purporting to comply
2-28
with Schad v.Borough of Mount Ephraim, 452
U.8. Gi, G@ 1.86.26. 673. . 302 .6-66... 2376
(1981).
43. However, although Defendant City
of Henderson re-zoned Plaintiffs’ property
from CC to CH, Defendant City of Henderson
still required a business license and a
conditional use permit for the operation of
an adult bookstore and motion picture
arcade.
44. Defendant City of Henderson does
not want any adult bookstores or motion
picture arcades to be located anywhere
within its territorial jurisdiction, but
also does not want any court to invalidate
its regulatory scheme. As ae result,
Defendant City of Henderson wants to create
the impression that it allows such
businesses when in fact it does not and does
not want them.
45. On February 1, 1990, Plaintiffs
opened their business and were immediately
inspected by Defendant City of Henderson.
46. Defendant City of Henderson
ee
2-29
concluded that Plaintiffs opened an adult
bookstore and arcade. Because Defendant
City of Henderson did not want such a
business to operate anywhere within its City
limits, Defendant City of Henderson took two
actions to close Plaintiff's business. It
introduced and, on March 13, 1990, adopted
ordinance No. 1160, purporting to regulate
"sexually oriented business.”
47. Ordinance No. 1160 amended Title
4 of the Henderson Municipal Code by
establishing Chapter 4.110. In essence,
newly adopted Chapter 4.110, requires adult
businesses (including Plaintiffs’ business)
to obtain a license; however, it would
preclude a business such as Plaintiff's
business from operating within 1000 feet of
a place where alcoholic liquor is sold.
Plaintiffs" business is within 1000 feet of
a place where alcoholic liquor is sold but
the ordinance creates a non conforming us
for those businesses operating lawfully on
March 15, 1990 (for a period of six months).
Accordingly, while the adoption of Ordinance
:
;
.
;
¢
f
i
2-30
No. 1160 reveals the obvious intent by the
Defendant City of Henderson to shut down
Plaintiffs’ business, arguably Ordinance
No.1160 has not yet affected Plaintiffs'
business. There are other remedies provided
by Ordinance No. 1160, and therefore the
specific provisions of Ordinance No. 1160
will not be further discussed. Plaintiffs
are not sure how the distance restriction
will be determined and measured.
48. In addition to adopting Ordinance
No. 1160, Defendant City of Henderson on
March 13, 1990 initiated a proceeding to
revoke Plaintiffs’ business license.
49. Although Plaintiffs believe and
still believe and contend that the
ordinances of the City of Henderson
purporting to regulate adult bookstores and
arcades are facially invalid, out of an
abundance of caution Plaintiffs decided to
participate in an administrative proceeding
provided by Defendant City of Henderson with
respect to the revocation issue. The
revocation hearing was conducted by the City
pilin, Sai ~ ia esti
2-31
Council of the City of Henderson on April
10, 1990. After conducting the hearing,
Defendant City of Henderson voted to revoke
Plaintiffs’ business license. At said
hearing, Plaintiffs contended,
unsuccessfully, that the regulatory scheme
and the ordinances quoted above violated
plaintiffs’ rights under the First and
Fourteenth Amendments to the United States
Constitution. Plaintiffs objected to the
revocation of their business license. The
decision to revoke’ the license was
arbitrary, invalid, and based upon
incompetent and irrelevant evidence, and
based upon an invalid ordinance. Plaintiffs
made no material misrepresentations on their
application. Had the information been
presented which Defendant City of Henderson
purportedly requested, it would not have
been material to any valid criteria for
granting or denying the license.
50. After the hearing conducted on
April 10, 1990, Defendant City of Henderson
purported to revoke Plaintiffs’ business
2-32
license. A copy of the Decision and Order
revoking the business license on April 16,
1990 is attached hereto as Exhibit l.
51. The decision of April 16, 1990
takes effect on or about May 1, 1990.
52. Thus, as of May 1, 1990, unless
this Court restrains the revocation or
restrains enforcement of the ordinance,
Plaintiffs will have to shut down their
business. Plaintiffs contend that the
business license ordinance and the
conditional use permit ordinance are
unconstitutional facially. Accordingly, it
is probably not necessary for Plaintiffs to
retain their business license. Instead,
Plaintiffs have standing to challenge the
facial validity of said ordinances.
53. Although unnecessary, Plaintiffs
did exhaust available administrative
remedies before the Henderson City Council.
54. Defendant James Goff was and is
the Chief of Police of the City of
Henderson. If Plaintiffs do not have a
business license and/or conditional use
tere
2-33
permit, Defendant James Goff, Chief of
Police of the City of Henderson, will
arrest, and/or cite Plaintiffs and their
employees, in violation of their rights
under the First and Fourteenth Amendments to
the United States Constitution. Plaintiffs,
accordingly, will be forced to close their
business protected by the First and
Fourteenth Amendments to the United States
Constitution, unless this Court grants
equitable relief as requested herein.
55. In addition to the Chief of
Police, the Henderson Municipal Code also
authorizes other City of Henderson officials
to arrest and/or cite Plaintiffs. This
would include the Director of Licensing, and
agent and employee of Defendant City of
Henderson.
56. Plaintiffs are without a legal
remedy in the ordinary course of law. The
threat of criminal enforcement of the
Henderson Municipal Code against Plaintiffs
by Defendants, is and will have a chilling
affect on their First and Fourteenth
2-34
Amendment rights. They will be forced to
close their business unless this Court
grants a temporary restraining order,
preliminary injunction, and permanent
injunction.
57. Defendant City of Henderson has
been since April 4, 1989, and still is,
enforcing an unconstitutional regulatory
scheme designed to preclude the operation of
adult bookstores and motion picture arcades.
58. Plaintiffs business is located in
the appropriate zone. If, in fact, it will
become unlawful by virtue of Ordinance No.
1160 in six months, which Plaintiffs do not
concede, then Defendant City of Henderson
will also have unduly’ restricted the
available locations wherein an adult
business can be located, also in violation
of the First and Fourteenth Amendments to
the United States Constitution, but this
particular challenge may be premature. If
not, Plaintiffs are also attacking the
constitutionality of Ordinance No. 1160 in
this proceeding to the extent Defendants,
4.
2-35
and each of them, attempt to enforce it.
59. Plaintiffs have been forced to
retain an attorney to represent them in
thisproceeding. If successful, Plaintiffs
will pray for an award of attorney's fees
pursuant to Title 28, United States Code,
Section 1988.
60. A dispute has arisen among the
parties with regard to the constitutionality
of Ordinance Nos. 1112, 1120, and 1160 of
the City of Henderson and actions taken by
Defendant City of Henderson and threatened
by Defendant City of Henderson and its Chief
of Police. Accordingly, it is appropriate
for this Court to render a declaratory
judgment considering the constitutionality
of various provisions and threatened actions
and revocation proceedings of Defendants.
61. Unless this Court grants immediate
relief, Plaintiffs will suffer irreparable
injury in that they will be forced to close
their business and be precluded from
selling, renting, and exhibiting motion
picture films, video tapes, and books and
2-36
magazines protected by the First and
Fourteenth Amendments to the United States
Constitution.
WHEREFORE, PLAINTIFFS PRAY FOR JUDGMENT
AS FOLLOWS:
Be For a temporary restraining order,
pre aminary injunction, and permanent
amjunction restraining Defendants, and each
of them, from attempting to or from
enforcing ordinances against Plaintiffs
which would cause them to close their
business at 1100 Boulder Highway, Henderson,
NV;
ae For a temporary restraining order,
preliminary injunction, permanent
injunction, restraining Defendants and each
of them, from revoking or enforcing the
revocation of Plaintiffs’ business license;
2. For declaratory judgment that
Plaintiffs have the right to continue
operating their business, as currently
constituted, at 1100 Boulder Highway in
Henderson, Nevada;
4. For declaratory judgment that
2-37
Defendant City of Henderson may not enforce
its ordinances against Plaintiff's business
at 1100 Boulder Highway, Henderson, Nevada;
- For attorney's fees according to
proof;
6. For such other and further relief
as the court deems just and proper.
DATED: April _23 , 1990
Respectfully submitted,
ROGER JON DIAMOND
Attorney for Plaintiff
2-38
AFFIDAVIT OF DANIEL BISHOP
State of Nevada
ss
— ss
County of Clark
Daniel Bishop, first being duly sworn,
deposes and says:
1. I am the President of Nevada
Entertainment Industries, Inc. and am also
co-Plaintiff in this action. I have read
the foregoing Complaint and the facts stated
therein are true and correct to the best of
my knowledge. If called upon as a witness,
I could competently testify to such facts
and I will be available for’ cross-
examination by Defendants’ counsel at the
hearing on the request for temporary
restraining order and at the hearing on the
request for preliminary injunction.
DANIEL BISHOP
h "
2-39
BEFORE THE CITY COUNCIL OF THE
CITY OF HENDERSON
COUNTY OF CLARK,
STATE OF NEVADA
x * *
In the Matter of the )
Disciplinary Action )
Against the Business )
License of NEVADA )
ENTERTAINMENT INDUS- ) DECISION AND ORDER
TRIES, INC., DANIEL )
BISHOP and FRANCISCO )
S. VILLALPANDO d/b/a _ )
)
)
FANTASY VIDEO PLUS
The CITY COUNCIL of the CITY OF
HENDERSON, having heard and considered all
the evidence presented at the business
license revocation hearing in the above-
entitled matter on April 10, 1990, makes the
following findings of fact and determination
of issues, and renders its final decision as
follows:
1.) The evidence shows the licensees
originally advised the CITY the videos were
"adult"; |
2.) When licensees were told they
needed a zone change and use permit to
operate as an adult video business, the
2-40
licensees changed their application to
reflect "mass media video/book and novelty"
with the full intention to proceed as an
adult video, book and novelty store;
3.) The licensees changed their
application with the full intention to
misrepresent and mislead the Business
License Department in order to open for
business without obtaining a zone change and
use permit;
4.) The use of the term "mass media”
was done to deliberately mislead and deceive
the City staff in order to cause a business
license to be issued;
5.) The licensee answered in the
negative questions regarding previous
convictions on the business license
application which affects his credibility
and is itself a misrepresentation;
6.) The evidence showed the business
consisted of predominantly, 75-80%, adult
materials;
7.) The omission by licensees of the
nature of the business was done deliberately
Pup akees bey ri
_—
itis Tee A st WG
pearat ere Mitac RB ema ttt
FAY tear ce ei
2-41
to mislead and deceive City staff in order
to have a business license issued without
applying for a zone change and use permit;
8.) The licensees offered no evidence
to refute any of the evidence offered by the
CITY regarding arrests or misrepresentation
of the nature of the store's business;
9.) The licensee tried to divert
attention from the limited issues at hand
which is the misrepresentation of the nature
of the business to the Business License
Department;
310.) Each of the witnesses who
testified were credible and their testimony
truthful;
Based on the foregoing findings and
conclusions, the CITY COUNCIL hereby revokes
the business license of NEVADA ENTERTAINMENT
INDUSTRIES, INC., d/b/a FANTASY VIDEO PLUS,
orders written notice of its decision to
licensees within five (5) business days, and
stays the enforcement of the revocation for
ten (10) business days following receipt of
2-42
the written notice of revocation.
DATED this _l16th day of April, 1990.
CITY COUNCIL OF THE CITY OF HENDERSON
LORNA KESTERSON, Mayor
ANDY HAFEN
CARLTON LAWRENCE
DOROTHY VODENBRINK,
CMC, City Clerk
MICHAEL HARRIS
LORIN WILLIAMS
SOPY-OF QUESTIONS I_& 1V IN PETITION FOR WRIT
OF CERTIORARI IN NO. 92-643, AT pp, i-iij.
(Refer: page 9 of Reply Memorandum. }
Text at page 9 reads:
“A legal Conclusion of Law that the U.S.
District Court for the District of Nevada did
not have ‘subject matter jurisdiction’ on 4-
pril 24, 1990,
- : ! The
U.S. District Court and the U.S. Court of Ap-
peals for the Ninth Circuit are required to
acceed to that ‘command’ in all cases in which
&® proper Huffman type abstention defense has
been asserted. That the City of Henderson is
asserting a proper Huffman challenge, see
Huffman, supra, at fn. 14, which cites and
relies upon this Court’s decision in
Buck, 313 U.S. 387(1941). See also Questions |
& IV in the petition for writ of certiorari in
Case No. 92-643 at Pp. i-iii, a copy of which
is attached at Appendix 3 to this Brief.”
Question I reads: “Whether, under Huff-
» 420 U.S. 592 (1975), the
United States District Court must defer to the
state court judicial system by abstaining and
dismissing the federal civil rights action
which seeks to enjoin enforcement of the
Henderson City Council’s quasi-judicial order
which revoked the federal! Plaintiffs’ business
license based on the City Council’s finding of
a fraudulent business license application,
which order was pending in the state system
and had been issued and served prior to the
filing of the civil rights lawsuit, where the
federal plaintiffs have failed to plead and
prove, and the U.S. Dist. Court has not found
the ‘extraordinary circumstances” which the
11th Amendment and this Court in Huffman, su-
pra, require for federal jurisdiction to lie?”
Question IV reads: ‘Whether this Court
should establish a “heightened Pleading” re-
quirement for those plaintiffs who seek feder-
al relief in civil rights complaints brought
pursuant to 42 U.S.C. Sec. 1983, which trigger
abstention issues and the doctrines estab-
lished by this Court in
Huffman v. Pursue,
Litd., supra, and Watson v. Buck, 313 U.S. 387
(1941).
aarliglcaagaye PRENSA iii Sc) Sl alt
3=]
Whether, under Huffman v. Pursue, Ltd.,
420 U.S. 592 (1975), the United States
District Court must defer to the state court
judicial system by abstaining and dismissing
the federal civil rights action which seeks
to enjoin enforcement of the Henderson City
Council's quasi-judicial order which revoked
the federal plaintiffs' business license
based on the City Council's finding of a
fraudulent business license application,
which order was pending in the state system
and had been issued and served prior to the
filing of the civil rights lawsuit, where
the federal plaintiffs have failed to plead
and prove, and the U.S. District Court has
not found the “extraordinary circumstances"
which the Eleventh Amendment and this Court
in Huffman, supra, require for federal
jurisdiction to lie.
Il
Whether under University of Tennessee
v. Elliott, 478 U.S. 788 (1986), the U.S.
OO eee
3-2
District Court must grant the City's motion
to dismiss the civil rights action because
of the res judicata and/or collateral
estoppel effect which the unreviewed City
Council's quasi-judicial finding of fraud in
the submission of the federal plaintiffs'
business license application and the
unreviewed City Council's order revoking
their business license has onthe federal
plaintiffs' constitutional claims, where
federal plaintiffs have had an adequate
opportunity to fully litigate all
constitutional issues within the Nevada
state judicial system.
II!
Whether the Huffman abstention issue
which has been framed is:
(1) jurisdictional; and
(2) requires application of the
collateral estoppel and res judicata
principles expressed in University of
Tennessee v. Elliott, supra, to the
unreviewed City Council quasi-judicial
\
Bee
3-3
finding of fraud in federal plaintiffs'
business license application and to the
unreviewed City Council quasi-judicial
order of license revocation; so as to
mandate a dismissal of the federal civil
rights action, and bar any consideration of
the "reservation" doctrine expressed in
England v. Louisiana State Board of Medical
Examiners, 375 Gee. . 433 (1964). See
Huffman, at 499, fn. 2.
IV
Whether this Court should establish a
"heightened pleading" requirement for those
plaintiffs who seek federal relief in civil
rights complaints brought pursuant to 42
U.S.C. Section 1983, which trigger absten-
tion issues and the doctrines established by
this Court in Huffman v. Pursue, _ Ltd.,
supra, and Watson v. Buck, 313 U.S. 387
(1941).
APPENDIX 4
COPY OF CITY OF LAS VEGAS V. NEVADA
INDUSTRIES, INC,, 772 P.2d 1275 (NEV. 1989).
(Reference: page 18 of Reply Memorandum. |]
Text at page 18 reads:
“Petitioner contends herein that Nevada
Entertainment's deliberate attempt to use the
federal courts to obtain a federal decree and
rule of law which is contrary to the express
holding of the Nevada Supreme Court in City of
<< ore Vea
1275 (Nev.1989), see copy at Appendix 4, and
is a patent violation of the Eleventh Amend-
ment, which amendment was specifically adopted
by the States in 1792 to preclude the use of
the federal court system as was done in this
case. See Cross- Petition of City of Henderson
supra, specifically held one year earlier
(April 25, 1989), that, in the State of
Nevada, an adult bookstore which obtains its
business license by deception may not obtain
the judicial relief Nevada Entertainment seeks
(in Questions 1-3 of its Petition for Writ of
Certiorari in 94-786) in the quasi-judicial
proceedings which are brought by the State to
revoke its license for fraud in its business
application. ]
Question | reads: May a city violate
the first and Fourteenth Amendments (free
speech) by shutting down an adult bookstore
pursuant to an unconstitutional zoning ordi-
nance because the bookstore obtained its busi-
ness license by deception?” Question 2
reads: “Is an adult bookstore without consti-
tutional protection vis-a-vis an invalid zon-
ing ordinance because it obtianed its business
license by deception?~™ Question 3 reads: “To
prove that a city utilizes an unconstitutional
zoning scheme to ban all adult bookstores, may
an adult bookstore employ deception in obtain-
ing a business license?”
Nevada Entertainment's filing of its
Petition for Writ of Certiorari in 94-786 is
frivolous because the federal court below
lacked subject matter jurisdiction under the
1ith Amendment violation.
4-1
SUPREME COURT OF
NEVADA
CITY OF LAS VEGAS, CASE NO. 18491
Nevada,
OPINION.
Appellant,
DATED:
Vv. April 25, 1989
NEVADA INDUSTRIES,
INC., a Nevada
Corporation,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
)
Business challenged city's revocation
of its business licenses. The Eighth
Judicial District Court, Clark County,
Joseph S. Pavlikowski, J., issued permanent
injunction and writ of mandamus prohibiting
enforcement of business license ordinances
against business, and city appealed. The
Supreme Court, Young, C.J., held that: (1)
misrepresentation in license applications
that business was not sexually oriented
justified revocation of licenses, and (2)
ordinance provision serving as basis for
imposition of fine against business was
invalid.
4-2
Affirmed in part and reversed in part.
) Licenses:
Falsely representing on
applications for business’ licenses
that business was not sexually
oriented justified city’s revocation
of business licenses’ pursuant to
municipal code, irrespective of any
First Amendment interests. U.8.C.A.
Const.Amend. 1.
2. Municipal Corporations:
While municipalities generally
enjoy power to enforce their
ordinances using fines, such
Ordinances must fix valid maximum
penalty.
3. Municipal Corporations:
Standardless ordinance invites
discriminatory enforcement.
4. Licenses:
Municipal Code provision
authorizing imposition of penalty upon
business, determined to have
misrepresented its status as sexually
4-3
oriented business in application for
business licenses, was invalid, as it vested
city officials with unlimited discretion to
establish fines and posed great risk of
excessive fines. Const. Art. l, 16.
>. Licenses:
Municipal Corporations:
Portions of penalty provision of
municipal business license ordinances
determined to be invalid for failing
to establish valid maximum fine could
be severed without defeating
objectives of ordinance and,
therefore, validity of remaining
portions of ordinance would be
sustained. Const. Art. l, ig.
George F. Ogilvie, City Atty., Robert
Yeargin and Val Steed, Deputy City Attys.,
Las Vegas, for appellant.
Alan B. Andrews, Las Vegas, For
respondent.
OPINION
YOUNG, Chief Justice.
4-4
This action arose out of the appellant
Las Vegas City Council's (Las Vegas)
decision to revoke respondent Nevada
Industries’ business’ licenses. Nevada
Industries operates a lounge facility with
a jacuzzi and meeting rooms. A detective
observed nudity and the exposure’ and
touching of female breasts during a visit to
the facility.
After an investigation and a hearing,
Las Vegas revoked the business’ licenses
because it found that Nevada Industries is
a sexually oriented business, i.e. a “nude
show." Consequently, it found that
respondent made a misrepresentation on its
application for business licenses by stating
that it would not operate ae sexually
oriented business.' Moreover, Las Vegas
found that Nevada Industries violated a Las
Vegas zoning ordinance prohibiting the
establishment of a sexually oriented
business within one thousand feet of another
sexually oriented business, church, school,
park or playground.’ Las Vegas also found
4-5
that Nevada Industries violated ordinances
concerning the keeping of business records
and failed to properly maintain its State
Industrial Insurance System (SIIS) coverage.
Pursuant to these findings, Las Vegas
revoked Nevada Industries’ business licenses
and fined respondent $50,000.°
On Nevada Industries" motion, the
district court issued a writ of mandamus and
reviewed Las Vegas’ actions. The district
court concluded that Nevada Industries’
activities enjoyed First Amendment
protection because Las Vegas sought to
regulate them as a "nude show." The court
found the applicable ordinances
unconstitutional as applied to this
protected activity, and issued a permanent
injunction and a writ of mandamus
prohibiting their enforcement against Nevada
Industries. Las Vegas appeals from the
district court's judgment.
[1] Las Vegas’ finding that Nevada
Industries’ activities constituted a nude
show provided the basis for its conclusion
Ee
4-6
that Nevada Industries made
misrepresentations on its application for a
business license, and for its finding that
Nevada Industries violated Las Vegas’ zoning
ordinance by operating within one thousand
feet of another sexually oriented business.
LVMC §19.74.020(1) addresses sexually
oriented businesses, and defines "nude show”
as "any establishment which provides or
permits sexual conduct or the display of
specified anatomical areas upon its premises
as entertainment or as an attraction for
business." The provision also defines adult
motion picture theaters, adult bookstores,
and similar establishments as_ sexually
oriented businesses. Las Vegas correctly
points out that the sucking of a woman's
breast by a man, as observed by one of its
) detectives, constitutes "sexual conduct”
under LVMC §19.74.010(A)(1) as do other
actions which the detective observed.
Nevada Industries’ facilities and
advertising support the conclusion that it
intended to operate in its present manner
4-7
(i.e. as a sexually oriented business) at
the time it applied for its business
license. Therefore, the record demonstrates
that Nevada Industries falsely represented
on its license application that it was not
a sexually oriented business.
Consequently, we conclude that we need
not address the issue of whether Nevada
Industries’ activities enjoy First Amendment
protection because respondent's affirmative
misrepresentation formed the basis for the
revocation of its licenses. Accordingly,
without addressing the First Amendment
issues raised by respondent, we hold that
Las Vegas acted within its discretion when
it revoked Nevada Industries" business
licenses pursuant to the Las Vegas Municipal
Code.
Because Las Vegas determined that
Nevada Industries’ operation included a
"nude show,” the district covrt held that
this case must turn upon Pirst Amendment
principles. According to the United States
Supreme Court, under some circumstances,
aE ee
4-8
nude dancing might be entitled to First and
Fourteenth Amendment protection. California
v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390,
397, 34 L.Ed.2a@ 342 (1972). Thus, the
district court concluded that Las Vegas'
licensing procedures must meed the strict
constitutional standards imposed on all
statutes which impinge upon First Amendment
rights. We disagree. |
Las Vannes characterized the
entertainment provided by Nevada Industries
as "nude show”™ in order to demonstrate that
respondent made misrepresentations on its
business license applications. Las Vegas
revoked Nevada Industries’ business licenses
not because of the forms of expression which
occurred at their operations, but for the
simple reason that respondent perpetrated a
fraud upon Las Vegas. Therefore, Nevada
Industries' First Amendment rights are not
dispositive of this case.
We note that under our decision in this
case, Nevada Industries remains free to
reapply for new business licenses. However,
4-9
should they continue to operate as a
sexually oriented business, Las Vegas
Municipal Code section 19.74.0300 provides a
basis for denying their licenses.
Accordingly, we reverse that portion of
the district court's decision which
permanently enjoined Las Vegas from using
its municipal ordinances to revoke Nevada
Industries’ business licenses. However, we
affirm the district court insofar as it
enjoined the imposition of Las Vegas’
$50,000 fine upon respondent.
[2-5] According to Las Vegas Municipal
Code section 6.88.120, after a hearing on a
dispute, the board of commissioners shal]
render a decision on the merits, including
"the penalty to be imposed, if any." After
concluding that Nevada Industries violated
Las Vegas" business licensing ordinances,
the board of commissioners fined respondents
$50,000.
Generally, municipalities enjoy the
power to enforce their ordinances’ using
fines. Commonwealth v. Cabell, 199
|
4-10
Pa.Super. 513, 185 A.2d 611, 616 (1962).
However, the ordinance must fix a valid
maximum penalty. Verona _v. Shalit, 96
N.J.Super. 20, 232 A.2d 431, 433
(App.Div.1967). Because the penalty
provision of section 6.88.120 fails to
provide any limitation on the fines imposed,
that clause is void. Id.
Municipal ordinances must not be
oppressive. Hunter v. City of Atlanta, 212
Ga. 179, 91 S.E.2d 338, 340 (1956). In its
present form, section 66.88.120 is invalid
because it vests Las Vegas officials with
uniimited discretion to establish fines. A
standardless ordinance invites
discriminatory enforcement. Baer v. City of
Wauwatosa, 716 F.2d 1117, 1124 (7th
Cir.1983). Because of the great risk of
excessive fines resulting from enforcement
of the penalty provision, it cannot stand.!
Nev. Const. art. 1, Je.
When invalid provisions of a municipal
ordinance are severable without defeating
the objectives of the ordinance, we sustain
4-11
and give effect to valid portions of the
ordinance.’ City of Portland v. Dollarhide,
71 Or.App. 289, 692 P.2d 162, 167 (1984).
Accordingly, we sustain the validity of the
remaining portions of section 6.88.120.
Therefore, we affirm the judgment of
the district court insofar as it enjoins the
imposition of Las Vegas’ fine on Nevada
Industries, and reverse that portion of the
district court's decision which permanently
enjoined Las Vegas from using its municipal
ordinances to revoke Nevada Industries’
business license.
STEFFEN, SPRINGER and MOWBRAY, JJ.,
concur.
\
1/ Las Vegas Municipal Code 16 .02.330
provides in part:
6.02.330 Disciplinary action-Good
cause designated. The licensee may be
subject to disciplinary action by the
Board of Commissioners for good cause,
which may include, but is not limited
to:
(A) The application is
incomplete or contains false,
misleading or fraudulent statements
with respect to any information
required in the application;
f
'
I
4-12
(B) The licensee or any of its
principals’ fails to satisfy any
qualification or requirement imposed
by this Code, or other local, State or
Federal Law or regulation pertaining
to the particular license or approval
for suitability sought or held;
(F) The licensee or any of its
principals has committed acts which
would constitute a crime involving
moral turpitude, or involving any
Federal, State or local law or
regulation relating to the same or a
similar business;
(G) When substantial information
exists which tends to show that the
licensee or any of its principals is
dishonest or corrupt;
(I) The actual business activity
constitutes a public or private
nuisance, or will be or is conducted
in an unlawful, illegal or improper
manner;
2/ In Young v. American Mini Theatres, 427
0.8. 50, 96 S.Ct. 2440, 49 L.Bd.2d 310
(1976), the Supreme Court upheld the
constitutionality of a zoning ordinance
similar to that implemented by Las Vegas in
this case. The Court noted that the mere
fact that commercial exploitation of
material arguably protected by the First
Amendment is subject to zoning and other
licensing criteria is an insufficient reason
for invalidating these ordinances. Id. at
62, 96 8.Ct. at 2448. Moreover, we must
give great respect to Las Vegas’ interest in
preserving the quality of urban life and to
4-13
2/ Cont.
its need to experiment with solutions to
difficult problems. Id. at 71, 96 S.Ct. at
2452-53. Thus, we find that the zoning
ordinance implicated in this case is
constitutional.
3/ The City imposed the fine pursuant to
Las Vegas Municipal Code '6.88.120 which
provides that:
6.88.120 Decision by Board.
After the hearing of a contested
matter, the Board of Commissioners
shall render a decision on the merits
which shall include findings of fact
and conclusions of law and the penalty
to be imposed, if any, and_ shall
thereafter make and enter its order in
its minutes in conformity to such
decision. The decision of the Board
shall be served on the parties
personally or shall be sent to them by
registered or certified mail. The
decision shall become and remain
effective upon such service unless the
Board shall otherwise order.
4/ According to NRS 193.170, whenever a
statute prohibits the performance of any act
but fails to impose a penalty for the
violation thereof, commission of the act
shall be a misdemeanor.
5/ We note that the vague penalties
referred to in section 6.88.120 can easily
be clarified by amendment.
6/ The Honorable Robert E. Rose, Justice,
did not participate in the decision of this
appeal.
siveuibadlbdrein nts hadiathadtaadhens entered aneaeeme eee
APPENDIX B
PORTION OF TEXT OF PETITION FOR WRIT OF
CERTIORARI, FILED IN CONNECTION WITH
CASE NO. 92-643, AT POINT III ON’ PAGES
46-57 { THE TEST IN WATSON V. BUCK IS
CONTROLLING AND MUST BE APPLIED.” ]
{Reference: Respondents’ Brief in
Opposition at 46-57. ]
i |
B-1
license revocation proceeding is barred.
III
THE TEST IN WATSON V. BUCK IS
CONTROLLING AND MUST BE APPLIED.
In Watson v. Buck, 313 U.S. 387 (1941),
the U.S. District Court for the Northern
District of Florida had enjoined a Florida
State containing a severability clause which
had never been before the Florida Supreme
Court for interpretation. In reversing that
judgment and the granting of the injunction,
this Court held at pages 401-402 that a |
State statute which contains a severability )
Clause must be "flagrantly and patently vio- |
lative of express constitutional prohibi-
tions in every Clause, sentence, and para-
graph, and in whatever matter and against
whomever an effort mights be made to apply
it ..." before a federal court can inter-
fere with the right of the state court to
interpret such legislation.
In such a case it is reversible error
for a federal court to grant an injunction
and preempt the state court from its func-
ez .
B-2
tion, unless the reacerd shows there were
"exceptional circumstances and a clear show-
ing that an injunction is necessary in order
to afford adequate protection of constitu-
tional rights...." Further, under Watson v.
Buck, that "clear showing" must demonstrate
that the danger of irreparable loss "is both
great and immediate." Otherwise, the de-
fenses must be set up in the state court
even though the validity of the ordinance is
challenged, for there is ample opportunity
for ultimate review by the United States
Supreme Court of federal questions. It is
patent upon the face of the record below
that the Watson v. Buck requirements of "“ir-
reparable loss"..."both great and immediate"
have not been established.
(1) A NUMBER OF IMPORTANT STATE
INTERESTS ARE INVOLVED
This federal case has impaired a
number of important and compelling state
interests and rights of the City of
Henderson:
(1) The exercise of Home Rule
B-3
powers; i.e. to ensure that the license
issuing and zoning process is kept free
from the perpetration of material fraud
by individual license and zoning
applicants;
(2) The administration of state
laws, to obtain compliance with the
Precise standards embodied in those
laws, and to conduct the state enforce-
ment process free from unwarranted
federal interference which disrupts
municipal efforts;
(3) The right not to have newly-
enacted comprehensive municipal zoning
ordinances subjected to federal judi-
cial review to protect the legitimate
interests which underlie state laws,
until after the state court system has
been given an adequate Opportunity to
review and interpret said laws and the
issues are ripe for adjudication;
(4) To practice judicial economy
by requiring that litigation involving
the above judicial functions be conduc-
B-4
ted in the most efficient forum (i.e.
the State Court);
(5) A quick, definitive determi-
nation of matters involving the opera-
tion of a business without a license.
Such an activity constitutes a "per se"
public nuisance and "pez se" irrepara-
ble harm which requires abatement. See
World Famous Drinking Emporium, Inc. v.
City of Tempe, 820 F.2d 1079 at 1083.
(6) Suppression of fraud in the
governmental license application pro-
cess. See City of Las Vegas v. Nevada
Industries, 772 P.2d 1275, infra, at p.
41-42. It is contrary to established
public policy to obstruct state en-
forcement action against applicants who
deliberately make false statements to
the government in a business applica-
tion in order to obtain a license.
(7) Control of the issuance and
revocation of revenue-based business
licenses, as part of a local revenue
collection (taxation) scheme.
B-5
Unless effective, Summary relief is ac-
corded cities against such unlawful "collat-
eral" appeals by this Court exercising its
under the All Writs Act,
corrective power
the City of Henderson will sustain the same
type of irreparable harm as that suffered by
the state of Ohio in the Huffman case, and
by other cities in similar cases, where im- |
portant state laws are prevented from being
presented to the state appeals courts and
this Court for an authoritative construction
-
of state law under the federal Constitution .
-
Because of the federal court interfer-
ence with state a
ppellate proceedings,
in
Huffman, the substantive appellate question
involving application of state law (re
"closure"
of a public nuisance) was never
decided, and could never be presented to
this Court
for definitive review.
Huffman
involved the power of a state court t
© close
a 100% continuing public nuisance (obsceni-
ty) [utilizing a remedial approach accepta-
ble under Red Light Abatement statutes,
where the object is the reformation of
property used to conduct a per se public
nuisance (prostitution) ]. Because a_ final
State determination on this important legal
issue, regarding the scope of available
State remedies, was collaterally blocked by
the federal courts in Huffman, an Ohio
(Footnote Continued)
(Footnote Continued)
appellate determination on "closure" was
unavailable as a precedent for the state of
Ohio and for other state court systems, and
the substantive legal issue could not be
reviewed by this Court, leaving the
"closure" issue, to date, unsettled across
the Nation.
The question of the extent to which the
states may exercise the remedy of "closure"
in connection with the exercise of their
police power has arisen in other state
cases, with varying results. See State of
Idaho ex rel. Kidwell et al. v. U.S.
Marketing, Inc. et al., 102 Idaho 451
(1982), tr: noted 454 U.S.1140 (1982), and
app. dismissed 455 U.S. 1009 (1982), in
which a unanimous State Supreme Court upheld
the constitutionality of one-year closure
provision and award of attorney fees against
a pornographic bookstore. Compare, Juris-
dictional Question #1 posed in the Petition
for writ of certiorari in Cooper v. Mitchell
Brothers Santa Ana Theater et al., No. 81-
271, October Term 1980, decided on other
grounds in 454 U.S. 90 (1981), and Jurisdic-
tional Question #1 posed in Cooper Vv.
Mitchell Bros. Santa Ana Theater et al., No.
82-345, October Term 1982, denied in 459
U.S. 944 (1982). Because the applicability
of "closure" to the public nuisance abate-
ment process involving pornographic outlets
has never been answered by this Court, after
a protracted, time-consuming and expensive
abatement procedure in which it was demon-
strated that the defendant Mitchell Brothers
had engaged in the regular continuous
exhibition of obscene films as a course of
conduct continuing over a period of 10
years, the City of Santa Ana was forced to
"throw in the towel" in 1987, and settled
the controversy by paying defendants their
attorney's fees and allowing their
pornographic outlet to continue operations
in Santa Ana.
B-7
(2) THE STATE COURT WITH A__"DIRECT"
ATTACK ON THE "PENDING" STATE ACTION
PROVIDES A MORE EFFICIENT JUDICIAL
FORUM FOR THE RESOLUTION OF DISPUTES
THAN THE "COLLATERAL" CHALLENGES BEING
ASSERTED IN THE FEDERAL COURT AGAINST
THE STATE STATUTES AND CITY ORDINANCES
IN SUCH "PENDING" CASES.
The exercise of federal jurisdiction
Striking a state statute Or Ordinance is not
proper, except where the challenged law is
"flagrantly and patently violative of
express constitutional prohibitions in every
Clause, sentence, and paragraph and in
whatever manner and against whomever an
effort might be made to apply it." Watson
Vv. Buck, 393 U.S. 387 (1941).
Without doubt, the U.s. District Court
has jurisdiction in the instant case to
decide the question of jurisdiction. U.S.
v. United Mine Workers of America, 330 U.S.
258 (1974). Where, however, a state statute
or a city ordinance involving an "important
State interest" is susceptible of a
construction which will render the statute
constitutional and a State court action is
pending, under Middlesex County Ethics
EO
B-8
Committee, supra, the federal court must
abstain and must allow the matter to be
returned to the state court system for an
authoritative construction by the state
court. One of the principle reasons why
this result is mandated is the fact that a
federal court lacks jurisdiction to authori-
tatively construe state legislation, U.S. v.
Thirty-Seven Photographs, 402 U.S. 363
(1971), a task routinely performed by state
court.
There is a marked difference in the
way in which the state and federal courts
approach the constitutional issue regarding
legislation. Largely because of the doc-
trine of separation of powers, the rule has
evolved that state courts are obliged to
render a construction of state legislation
which will arrive at a constitutional re-
sult. In People ex rel. Busch v. Projection
Room Theater, 17 Cal.3d 55 at 56, the
California Supreme Court noted, at page 336:
"Furthermore, the United States
Supreme Court recently emphasized
within the foregoing context that
B-9
courts have an Obligation to construe
Statutes in such a Way as to avoid
serious constitutional Goupts . . .*
(Our emphasis. )
and, at page 338:
"We are obliged to construe and
interpret legislation in a manner which
will uphold its validity. (Citations).
Thus, the courts have held that
Provision for a prior adversary hearing
may be implied by law in otherwise
Silent statutory provisions."
Because federal courts do not bear the’ same
relationship to state legislatures and do
not function in the same manner as regards
State legislation, see U.S. v. 37
Photographs, Supra, the end result is
certain to differ.
Additionally, the question as to
whether defective federal and state
legislation may be "saved" by statutory
construction or by severance of the
defective portion presents important
Public policy matters for federal and
state governments. See Tilton Vv.
Richardson, 403 uU.s. 672 at 684, where
Chief Justice Burger noted:
"The cardinal principle of statutory
B-10
construction is to save and not
destroy."
In examining the record of this case,
it is apparent that the state system is the
most efficient and proper forum for
interpreting the interplay of the _ state
statutes and municipal ordinances involved.
Were the constitutionality of the
8
"conditional use" zoning laws an issue ,
8
The constitutionality of the condi-
tional use in the CH zone is not yet in
issue, inasmuch as the federal plaintiffs
never applied for a variance ora special
use permit. Shelter Creek Development Corp.
| v. City of Oxnard, 838 F.2d 375 (CA9, 1988);
Ill. Commerce Comm'n v. Thompson, 318 U.S.
| 675, and National Bank v. Bd. of County Com-
missioners, 264 U.S. 450 (1924). When the
conditional use ordinance is properly made
an issue, the construction to be given the
newly enacted legislation is one for the
Nevada Courts, not the U.S. District Court.
See Watson v. Buck, supra, discussed at
pages 46 - 47, herein, and U.S. v. 37
Photographs, 402 U.S. 363 at 369-375 (1971)
and U.S. v. 12-200 Ft. Reels of 8mm_Filn,
| 413 U.S. 123 at 130, fn. 7. Compare, in
+ this regard, the construction given by
# California Courts to People v. Library One,
Inc., 229 Cal.App.3d 873 (1989), and Thomas
v. County of Los Angeles, 232 Cal.App.3d
916 (1991), re the effect of this Court's
ruling in FW/PBS, Inc. v. Dallas, 493 U.S.
215 (1990) on specific time limits during
which decision is required on permit
applications, and note, in this regard, that
the issue here is license revocation, not
license procurement.
B-11
there is ample authority to support the
legal proposition that a conditional use
zoning ordinance similar to that which has
been adopted by the City of Henderson can be
constitutionally applied, and only a state
court has both the right and duty to give
the same _a__constitutional interpretation.
See 11126 Baltimore Blvd. v. Prince George's
County, Md., 886 F.2d 1415 at Pages 1426-
1429 [4th Cir. 1989, Rehearing and Rehearing
en Banc denied October 25, 1989; cert.
granted, remand to U.S. Court of Appeals for
further consideration in light of FW/PBS,
493 U.S. 215 (1990))}.
The question as to whether a state
Statute is severable is more properly a
matter for the state court. In a statement
confirming the importance of the "statutory
construction" factor and the right of state
courts to interpret city Ordinances, this
Court in Metromedia, Inc. v. San Diego, 453
U.S. 490 (1981) (involving a direct appeal
of a city ordinance after a state court
decision by the California Supreme Court
aiken
B-12
upholding the ordinance as being constitu-
tional on its face) remanded the case back
to the California Supreme Court for further
statutory construction by the state court,
notwithstanding the fact that this Court
held the ordinance to be unconstitutional on
7
its face . See in this regard, Associate
Justice White's opinion in Metromedia, Inc.,
announcing the judgment of the Court, at
521, fn. 26, wherein he addresses the issue
of severability and the right of state
courts in that regard.
IV
FEDERAL PLAINTIFFS HAVE FAILED TO STATE
A CAUSE OF ACTION UNDER 42 U.S.C.
SECTION 1983 IN THAT THEY HAVE FAILED
TO PLEAD AND PROVE WHY THE PRINCIPLES
ESPOUSED IN WATSON V. BUCK AND HUFFMAN
V. PURSUE, LTD. DO NOT CONTROL SO AS TO
REQUIRE A DISMISSAL FOR LACK OF FEDERAL
JURISDICTION.
Under the rationale expressed in Allen
9
Unlike the "“Humpty-Dumpty" approach of
the federal court system (which cannot
construe a state law), the superiority of
the state forum is self-evident wher
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