# Opposition Brief — City of Henderson v. Nevada Entertainment Industries, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0736%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1995 - **Citation:** 513 U.S. 1078 ## Text 4 \ 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 —————————————— ~ 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. 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 where the "egg" can immediately be put back together again. APPENDIX C HENDERSON NEWS ARTICLES REPORTING UPON CRIMINAL ACTS (TWO MURDERS) UPON THE PREMISES INVOLVED. (Reference: Respondents’ Brief in Opposition at 51. ] C=-l Clerk found murdered in porn viewing booth Altel9e By Katherine E. Scott News Staff Writer A 22-ycar-old night clerk at Fantasy Vidco Plus was found shot to death inside a vicwing booth early Sunday moming fol- lowing an apparent robbery, ac- cording to the Henderson Police Department. Denver Duane Tumer was shot three times in the back of the head with a .22 caliber weapon, the Clark County Coroncr’s Office reported Monday. Police said Tumer was last known to have been alive when his roommate spoke with him about | a.m. Sunday. Police were called around 5:20 a.m. by a customer who found Tumer’s body at the back of the adult-oriented novelty store, HPD Detective Richard Perkins said Sunday at the scence. Ile said moncy was missing from the store. “A security video tape is being reviewed as part of the investiga- tion,” police stated in a press re- Icasc. Police are asking any per- sons with information to contact investigators at 565-2031 or 565- 2004, the detective burcau at 565- 2009 or the police department at 565-8933. | Police said Tumcr’s body was found in a viewing booth in the southeast section of the Boulder Highway store. The door to the booth was open when the cus- tomer—a man in his 40s—found the victim. Police said store management locked the business Sunday moming, with plans to open the following day. An electronic reader board in front of the store said the business would be closed until noon Monday, with no late fecs to be charged. That was believed to be the first lime the store has closed its doors since opening on Feb.1. The city of Henderson revoked the company's business license April 10 duc to alleged misrepresenia- tions in the application process, but the store has remained open pending a lawsuit filed April 24 in U.S. District Court. Henderson Assistant City At- tomcy Liza Conroy said last month that the city is attempting to have the action moved to Clark County District Court because it believes licensing is the issue. Fantasy Video spokespersons have said their constitutional rights are be- ing denicd by the city, and that the case should remain in federal eour, C-2 ' Fantasy Video murder suspects } caught in Oregon te hen 2 By Katherine E. Scott News Staff Writer Suspects in the Nov. 4 murder of a Henderson pom store clerk are being held in Oregon pending extradition to face charges here, according to the Henderson Police Department. Police said Amber Lynn Adams and Lance Matthew Reberger were apprehended in Coos Bay, | Ore. on Friday moming, after lo- Cal police entered them as sus- pects in the National Crime In- formation Computer. They are suspected of shooting 22-year-old Denver Duane Turmer early Nov. 4 as he worked in Fantasy Video Plus, an adult- oriented novelty store located on Boulder Highway. The victim was shot three times in the back of the head, according Ito the Clark County Coroner’s Office. Police saia mis voay was found in a viewing booth in the back of the store by a customer who entered the store shortly after 5 a.m. A police investigation found evidence implicating Adams and Reberger, providing enough in- formation for them to be placed in the NCIC system, police said. Adams was also known with the sumame Harvey, police said. |No cash taken, in robbery at Fantasy Video Tla41 4o No cash was taken in an armed robbery at Fantasy Video last week, according to the Henderson Police Dept. Police said a young, blond man took less than $100 worth of sexual aids from a clerk at the Boulder Highway store about 4:25 a.m. Thursday. ‘A small caliber chrome automatic pistol was used, according to police. ' “A security camera was operating at the time and the suspect was photographed,” HPD Assistant Chief Kip Botkin said Monday. He added that police detectives are in- vestigating the incident. oe | | ¢ ; lL, | ' C~3 Murder suspects 0 Se to fight extradition es —{risAe =. By Katherine E. Scott News Staff Writer Suspects in the Nov. 4 murder f a clerk at Fantasy Video Pius, who Henderson Police said had first agreed to waive extradition from Oregon, instead said they would fight extradition when they appeared before a judge Tuesday in Coos Bay, Ore. Amber Lynn Adams, 22, and Lance Matthew Reberger,24, face charges of murder, robbery and burglary in the death of 22-year- old Denver Duane Turner at the adult-oriented novelty store on Boulder Highway. They were ar- tested Friday at a homeless shel- |ter in the Oregon town, HPD Sgr. Ray Moser said in a telephone interview Tuesday. | HPD Detective Monty Sparks, who traveled to Oregon to inves- ‘tigate the case, said that “during the court appearance on Tuesday they requested council, and their extradition hearing was continued until Tuesday of next week.” Sparks said during a telephone interview Wednesday that the pair “were abusive and obnoxious during their court appearance, and totally disrespectful.” tified as suspects following a tip which led investigators to several persons who provided enough evidence of their guilt that pouce were able to seek a warrant for their arrest. ' He said a video surveillance tape police removed from the store had run out before the murder occurred. Turner was believed to ¢ been killed approximately nla.m.and5a.m.onNov. Henderson police entered Adams and Reberger into the National Crime Information Computer on Thursday, Nov. 8, Moser said.-He said police offic- ers in Coos: Bay-récognized the COdple from’a fecetit’child ‘abuse report,’and arrested them ‘at the homeless shelter where they were staying. Sparks said Oregon's Child Protective Services is caring for Adams’ 3-year-old son. He said the child’s natural father, who lives in Las Vegas, is seeking custody. Police said Adams, also known with the sumame Harvey, was from the Las Vegas area. Reberger was believed to be a transient who came here from Florida. oS Sie nally rir ele ersten) tal C-4 Fantasy Video murder suspect gets second preliminary hearing By Katherine E. Scott News Staff Writer One defendant in last year’s murder of aclerk at Fantasy Video Plus was scheduled recently fora second preliminary hearing in Las | Vegas Justice Court on June 18. | Lance Matthew Reberger was to stand trial Monday in Clark County District Court on charges’ of murder, robbery and burglary. However, his case was remanded for a new preliminary hearing fol- lowing a May 3 court appearance. Defense attomey Phil Dunleavy By Katherine E. Scott News Staff Writer Amber Lynn (Harvey) Adams, 22, is scheduled to stand trial Monday in Las Vegas District Court for the Nov. 4 murder of a local adult-oriented video and novelty store clerk. Adams and 24-year-old Lance Matthew Reberger are charged with murder, robbery and burglary for the death of 22-year-old Denver Duane Turner inside Fantasy Video Plus last year. Reberger faces a June 18 pre- ‘liminary hearing in Las Vegas Justice Court. A motion to suppress evidence was denied last week, and Adams’ ‘court dates still stood as of presstime, according to court records. A calendar call is sched- — uled today. S/it 14 said Wednesday that he was-as- signed the capital murder case after it had reached District Court for trial. “I didn’t feel the man had Murcer suspect trial starts 6/6/91. Monday Adams and Reberger were ar- rested on Nov. 9 in Coos Bay, Ore., after police there received a bulletin from Nevada that they were suspected in a murder here. |Oregon officers recognized the | couple from a child-neglect in- vestigation a day earlier regarding Adams’ young son. Both waived extradition, and Adams also waived her prelimi- nary hearing. She was later found competent to stand trial following a psychiatric evaluation ordered by Las Vegas District Court. She was remanded to Justice. Court for a March 18 preliminary hearing, then was bound over fo | ajury trial, scheduled to begin on Monday. 9/9) ’. Henderson police are seeking a gunman who robbed the Pure Pleasure adult book and video store on Boulder en ~~ day night. | “The clerk advised that a ted in] a mask, brandishing a shot fled on foot with an undis- Closed amount of cash. The suspect was wearing blue denim pants and a dark T-shirt, police said. Any person with in- formation are asked to call the ire Pleasure suspect nabbed Mn By Thomana is oe News Staff Writer amderson Police have arrested in suspected of robbing the Pleasure adult bookstore cand mspected of wbbing ailar store in Las Vegas. uart Whiting, 22,ofnoknown - Wednesday for the robberies which occurred on Dec. 14 and Nov. 26. He was arrested at Vo- Tech, where ie wes attempting to pick up his girlfriend. . Whiting was transported to the ‘:. Henderson Jail and booked on. - “two counts of armed robbery. He ress was .arrested last is being held on $60,000 bail.’ Adult bookstore robbed once again By Thomas Moore News Staff Writer An allegedly intoxicated rob- ‘ ber was caught Sunday after stealing $12.95 in magazines and $7.50 in tokencoins from the Pure Pleasure Video and Bookstore on Boulder Highway at approxi- mately 8:35 p.m. . According to a Henderson Po- lice Department news release, Eugene Charles Lee, 32, of ; Henderson and a past customer, | walked into the store and threat- COPY ened to shoot the clerk if he did not give him some cash. The clerk gave the man $12.95 in token coins and as the suspect walked out he grabbed amagazine. The police searched the sur- rounding area and found Lee drinking in a bar on Boulder Highway not far from the scene of the crime. He was arrested and taken to the Henderson Jail where he was booked on a charge of robbery. litle setts A Napier ane . Adult bookstore . scene of slaying 5/3/94 By Thomas Moore News Staff Writer A Las Vegas man was shot in the chest early Friday morning outside the Pure Pleasure adult bookstore on Boulder Highway. | He died later that moming during | Surgery at the University Medical Center. According to a Henderson Po- lice Department news release, Redentor Castillo Nicolas, 27, had been inside Pure Pleasure some _ time before 2 a.m. He left the store but then retumed to the store to "tell the clerk he had been shot and then collapsed onto the floor. The Clerk called the police and para- medics. Nicolas was taken to UMC where he died at 5 a.m. Police have videotape, taken from surveillance cameras in the store, that shows two possible suspects who were in the store shortly before the shooting. The first suspect was described as a white male in his late 20s or early 30s standing about 5 feet, 9 inches tall, weighing from 160 to 180 pounds with sandy brown hair. He wore a dark colored baseball Cap, a green camouflage jacket, blue jeans and light-colored ten- nis shoes. The second suspect was in the same age range, but stood ap- proximately 5 feet, 7 inches tall and weighed 150-160 pounds. He also had sandy brown hair and wore a dark-colored baseball cap and light-colored tennis shoes. However, this suspect was wear- ing a brown-colored camouflage jacket and bluish-grey short pants. The two suspects drove away in a white vehicle. Anyone with in- formation is asked to call Henderson Detective James White, 565-2031. Arrests made in death By Thomas Moore News Staff Writer Police have arrested two sus- pects in the April shooting death of aman outside the Pure Pleasure . Adult bookstore. ) | Carl George Schulte, 25, of ‘Henderson and Larry John Ledale Gomer, 22, of Chino, Calif., were arrested for the murder while al- ready in the Henderson Jail for stealing a motor vehicle. 6/7/94 Redentor Castillo Nicolas was | killed Friday, April 29, shortly after2 a.m. after visiting the store. The police had surveillance tapes of some people who were in the store before the killing but were | unable at the time to find the killer. SW Ni i ands a ¥ 3 * APPENDIX D CITY ATTORNEY LETTER DATED NOVEMBER 17, 1994, REPORTING ON COSTS OF ABSTENTION LITIGATION TO DATE. (Reference: Respondents’ Brief in Opposition at 51. ] D-1 CiTY OF HENDERSON CITY HALL 240 WATER STREET 702/565-2323 HENDERSON, NEVADA 89015 Gateway to Lake Mead Resorts November 17, 1994 James J. Clancy, Esq. 9055 LaTuna Canyon Road Sun Valley, CA 91352 Dear Jim: You have requested a compilation of costs incurred by the City to date in litigating the case of Nevada Entertainment Industries, I have compiled the attorney’s fees and costs for outside counsel and estimated our in-house counsel time. Outside counsel fees and costs are as follows: 1990-91 $41,530.02 1992 21,794.68 1993 24,161.20 1994 ~32.728.08 TOTAL $120,213.98 The time estimates for in-house counsel in litigating the initial stages of the case and in later review and discussion of the ongoing litigation are set forth below. Since we do not keep track of hours on a per case basis, these estimates are true estimates derived by reviewing the files, documents and transcripts to arrive at an approximation of the time involved. Based upon a reasonable billing amount in the legal community of $100 per hour, I arrived at the following values: 1990 80 Hrs. $8,000.00 1991 45 Hrs. 4,500.00 1992 25 Hrs. 2,500.00 1993 25 Hrs. 2,500.00 1994 15 Hrs. _1,500,00 TOTAL 212..000.00 ie ae. en Sie Aaa tet ie 1 ee lin? sentient : | : { : ‘James J. Clancy, Esq. Page 2 November 17, 1994 Additionally, you requested copies of newspaper clippings concerning criminal activity at the subject premises which included two homicides. Attached to this letter are xerox copies of newspaper clippings from the Henderson Home News. If you need any additional information, please do not hesitate to contact me. | Very truly yours, at, ff ee, aes / Liza Conroy Assistant City Attorney LC/avea Enclosures een i AG acu 2 Sn Rae ee nt oe tS ea a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0736%3A2. Public record. Not legal advice.