Petition for Writ of Certiorari — D. H. L. Associates, Inc. v. O'Gorman

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oe Court, U.S

a L ED

991536 MAR! 6200

- No. 99- a

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1999

D.H.L. ASSOCIATES, INC.,

Petitioner,

JOHN O’GORMAN, ETAL., |

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

*WILLIAM C. NEWMAN

THOMAS J. MCCORMICK

LESSER, NEWMAN, SOUWEINE

& NASSER

39 Main Street

Northampton, Massachusetts 01060

(413) 584-7331

*Counsel of Record

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

QUESTIONS PRESENTED

1. Whether the Court of Appeals violated prin-

ciples of judicial federalism when it refused to

certify the state constitutional questions that are

central to this case and instead decided the com-

plex First Amendment issues presented even

though (a) the federal court’s judgment remands

the state issues to the state court for determina-

tion and (b) the state court’s judgment may well

render the reported federal court decision advi-

sory, all in violation of Arizonans for Official Eng-

lish v. Arizona and contrary to the decisions of the

other Circuits.

2. Whether the Court of Appeals misconstrued

Renton v. Playtime Theatres, Inc. and created a

conflict among the Circuits when, in ruling on the

constitutionality of a local zoning ordinance, it

decided:

(1) that the “reasonable opportu-

nity to open and operate” test

should be applied according to

facts as of the trial date, not

the date four years earlier when

the ordinance was_ enforced;

and

(2) that the municipality met the

“substantial governmental in-

terest” test even though the

town had given no considera-

tion to secondary effects of

adult entertainment at the time

it adopted the ordinance chal-

lenged in this case, but rather

had given some consideration

to secondary effects when it

had adopted a previous ordi-

nance. |

LIST OF PARTIES

The petitioner here, which was the plaintiff in

the district court and the appellant in the Court

of Appeals, is D.H.L. Associates, Inc. D.H.L. As-

sociates, Inc. has no parent or publicly held com-

pany owning 10% or more of the corporation’s

stock.

The respondents here, who were the defen-

dants in the district court and appellees in the

Court of Appeals, are John O’Gorman, Robert

Wallace, Warren Allgrove, Jr. and Eileen Farrell,

individually and in their dual capacities as the

Tyngsborough Board of Selectmen and as the Li-

censing Board for the Town of Tyngsborough, and

the Town of Tyngsborough.

ill

TABLE OF CONTENTS

Questions Presented 0.00.0... ce eeeccecceeceeececccc cc. i

I cs eileen capes eisbcvedasdinscccc. il

Table of Authorities... cccceccceccecccecccc. Vi

a ee 1

Statement of Jurisdiction ..........cceecccecccccccc.. 1

Constitutional, Statutory, and Regulatory

Provisions Involved ...........ceecsecceccceeseccescec.. 1

Statement of the Case and of Prior

S55 sannascst, Ans ON RE a 2

co 2

(b) Prior Proceedings .0........ecccoccccceecccccec.. 4+

Pendency of the Litigation ...................... 5

(d) Decisions Below Regarding _

oe a SEO a 8

Reasons for Granting the Writ ........................ 11

Certiorari Should Be Granted to

Resolve the Conflict Among the

Circuits Regarding the Applica-

tion of Anizonans and to Deter-

mine Whether Federalism and

Comity Require That Federal

Courts Defer Deciding Federal

Constitutional Issues When Certi-

fication of State Constitutional

Issues Would Permit the State

Courts to Resolve the Litigation in

Full Or State Grows .ncccccscsccsccscsscccasces 11

A. Arzonans requires certification

when dispositive but unresolved is-

sues of state law are joined with

federal constitutionally based

COUOS GE GOUIONE akin icccctsncaasenssscsssineivs 11

B. The criteria for certification set

out in Arnzonans, that the state

law questions potentially be dispo-

sitive and that they involve issues

of unsettled state law, are met in

ene MID ....5: cs anstanacnphsnenenamianiadnesais 13

1. The state law questions are

potentially dispositive ................. 13

2. The issues involve unsettled

questions of state law ................. 15

C. The First Circuit’s decision is in

direct conflict with other Circuits

and with prior decisions of this

SR MeL My PTTL Oh PoP ee a EOE 16

IT.

D. Article III’s case or controversy re-

quirement and principles of feder-

alism required certification in or-

der to allow the state court to

resolve the state constitutional is-

ES accicitio enna

1. Article III requires the federal

courts to avoid advisory

opinions by deferring federal

constitutional claims when

the case can be decided on

CUNET SOREN fois

2. The principle of judicial fed-

eralism requires the state

courts to initially decide

state constitutional ques-

UD snkcinciaouanierttin

E. The federal courts should defer to

the state courts in areas of sensi-

CLC DOCLET OTIOP | hassles cases cctcdec ues

Certiorari Should be Granted Be-

cause the Court of Appeals Failed

to Properly Apply the Substan-

tial Governmental Interest and

Reasonable Opportunity to Open

and Operate Tests Under Renton

v. Playtime Theatres, Inc., Placing

Its Decision in Conflict With Ren-

ton and the Other Circuits ................00...

A. The lack of opportunity to open

and operate should have been de-

termined as of the time the permit

at issue in the case was denied ........ 24

B. The municipality failed to offer

proof of a substantial governmental

MEDIC OUE, sssssccssonsetncssaseigaebaaaaie 26

COOMDCTIGIONS « -cicndccicdccevscoccdediaanine eee 30

TABLE OF AUTHORITIES

CASES:

3570 East Foothill Boulevard v. City of

Pasadena, 912 F.Supp. 1257 (D.C. Cal.

RG) seseskcinisisuncnenadsalabesaes ele: dae 26

A.F.M., Ltd. v. Medford,

428 Mass. 1021, 704 N.E.2d 184

CRO <occcecsccddsansoncsscaenaguenuneseuenan passim

Arizonans for Official English v. Arizona,

DAD UD. GS CRG SES sincaesencidenseietananaeean passim

Bellotti v. Baird,

S28 U.S. 108 CEPT sisccecectasinel 13n

Burton v. United States,

196 VU.%. Bee CA OOOe ciivintsesciaiGiasenene 14n

Cabaret Enterprises, Inc. v. ABCC,

393 Mass. 13, 468 N.E.2d 612

EROMONED scceconacccuevesceuaucauioaaeeseeeeaeee 5, 15, 18n

vli

Clinton v. Jones,

ee WE CET Garnwddeividindtstdedbsdedaidentes 14n

CLR v. Henline,

702 F.2d 637 (6th Cir. 1983) ..................... 25n

Commonwealth v. Sees,

374 Mass. 532, 373 N.E.2d 1151

SUEY -sanucetcsanedaaidiamcismuaad aes. 9, 15, 18n, 19

Commonwealth v. Upton,

394 Mass. 363, 476 N.E.2d 548

ER GPUEE Wiceudoeseun vin thandirands plkessauicaieenea 18n, 19n

DIA v. City of Toledo,

937 F.Supp. 673 (N.D. Ohio 1996) ............ 26n

Doran v. Salem Inn, Inc.,

SA Was Fe CAFO esbnietiterecksisncsdcnasnds 18n, 19

Fields v. Rockdale County Georgia,

785 F.2d 1558 (11th Cir. 1986) ............. 17,23

Iberra v. Bexar County Hospital District,

624 F.2d 44 (Sth Cir. 1980) ......................... 14

J & B Entertainment, Inc. v. City of

Jackson, Miss., 152 F.3d 362 (5th Cir.

PIFITEE savdniciiniinbannncidbiehaantondantanselacs 27, 27n, 29n

Janra Enterprises v. City of Reno,

818 F.Supp. 1361 (D. Nev. 1993) ........0..... 26n

Meridian v. Southern Bell Telephone and

Telegraph Co., 358 U.S. 639 (1959) . 16, 17, 18

Vill

N.W. Enterprises, Inc. v. City of Houston,

27 F.Supp.2d 754 (S.D. Tex. 1998) ...... 27, 29n

Newport Investments, Inc. v. City of Laguna

Beach, 564 F.2d 893 (9th Cir. 1977) ........... 17

Pustell v. Lynn Public Schools,

BDF ee er CRE ,. TD scnscecsckcciarenss 16n, 23

Quackenbush v. Allstate Insurance Co.,

Re Se FT OE UME sictedicriicc betaine 12n

Railroad Commission of Texas v. Pullman Co.,

Bee ks CREED sintstiimrnciscanetnn passim

Redgrave v. Boston Symphony Orchestra,

855 F.2d 888 (1st Cir. 1988) ............... 15, 18n

Reetz v. Bozanich,

EE OFM CEFN ivicceaasxnncccadecdncdessxexisnes AO, OO

Renton v. Playtime Theatres, Inc.,

AO ae Wes ER CE bie cnianicnadenenasanerensans passim

Rescue Army v. Municipal Court,

eR Wei: CD vsicicenwsnscsspancnsdiavancas fees OO

Spector Motor Service v. McLaughlin,

Ee Es BS CUE Pitieeniucsnannnas 14n

T & D Video v. City of Revere,

423 Mass. 577, 670 N.E.2d 162

LIPUPEEEE vinieinahcanepiadvauseiuntheican cia seaaaed oot passim

Walnut Properties, Inc. v. City of Whittier,

861 F.2d 1102 (9th Cir. 1988) ................... 26n

—x*X ©

CONSTITUTIONAL, STATUTORY, AND REGULATORY

PROVISIONS INVOLVED

United States Constitution

| a passim

PTI TE Doves cccnicescnnscccans 1, 4, 18, 20, 21

Massachusetts Declaration of Rights

PN WD winiiiricacscle ln 1,5, 14n, 15, 16

United States Code

RS BEGG ioe idicisecesnectasavininesaciaicodir 1

POU BE. G USBI ono cicsicccccescsccesscixasascenccasec, 2n

MO GGG ons ocsccccssvcosacaiseascasscccateces 2n

RE BO sc ccscicssninidccssieccensiceccnnsc, 2,5

Rules of the Massachusetts Supreme

Judicial Court

Rule 1:03 (2000) .........0..00000. 2, 13n, 16n, 22n

MISCELLANEOUS:

Clay, H., Human Freedom and State

Constitutional Law, 70 Mass.L.Rev. 161

PN BO scare cteei lec utiehc tas ec 19n

Speer, B., Chief Justice Wilkins and the

Criminal Law, 80 Mass.L.Rev. 125 (Winter

WED si Naini eme aden lad A Re 19n

Utter, Freedom and Diversity in a Federal

System: Perspectives on State

Constitutions and the Washington

Declaration of Rights, 7 Puget Sound

LOO. PE CE éntannececucenateinmcerieisiadanaecens

OPINIONS BELOW

The opinion of the Court of Appeals for the

First Circuit is reported at 199 F.3d 50 (1999)

and is reproduced as Appendix A, post, at App. la

- 26a. The opinion and order of the United States

District Court for the District of Massachusetts

(Keeton, J.) is reported at 6 F.Supp.2d 70 (1998)

and is reproduced as Appendix B, post, at App.

27a - 55a.

STATEMENT OF JURISDICTION

The Court of Appeals for the First Circuit is-

sued its decision and entered judgment on De-

cember 17, 1999. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254.

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

1. Article 16 of the Massachusetts Declaration

of Rights provides in pertinent part:

The right of free speech shall not be

abridged.

2. Article III, § 2 of the United States Constitu-

tion provides in pertinent part:

The judicial Power shall extend to all

Cases, in Law and Equity, arising

under this Constitution, [and] . . . to

Controversies....

3. The First Amendment to the United States

Constitution provides in pertinent part:

Congress shall make no law .

abridging the freedom of speech... .

4. Rule 1:03 of the Rules of the Massachusetts

Supreme Judicial Court authorizes the certifica-

tion of certain questions to that court and sets

out the procedures for certifying those questions.

The Rule is reproduced as Appendix D, post, at

App. 56a - 58a.

STATEMENT OF THE CASE AND

OF PRIOR PROCEEDINGS

(a) Introduction

The petitioner filed this case in state court

challenging the constitutionality of a local zoning

ordinance. The multi-count complaint raised

state statutory and constitutional violations, as

well as a single count under 42 U.S.C. § 1983.

The defendants-respondents removed the case to

federal court.! During the course of the litigation,

the question repeatedly arose whether the federal

court could decide the potentially dispositive state

constitutional questions or should instead certify

those questions to the state courts for resolution.

In the end, the federal court did neither. Rather,

it decided all the federal constitutional claims and

1 Subject matter jurisdiction was conferred on the district court

by 28 U.S.C. § 1331 (federal question) and by 28 U.S.C. § 1343

(civil rights).

== ll

remanded the state claims to state court for trial

and appeal. :

In civil cases, when the federal courts are

called upon to adjudicate state as well as federal

claims, they must determine if, when, in what or-

der, and by which court the respective state and

federal claims should be addressed. In this case,

the petitioner argued that the district court and,

later, the Court of Appeals should certify the po-

tentially dispositive state constitutional issues to

the Massachusetts Supreme Judicial Court,

where the decided cases clearly favor the peti-

tioner’s position although there is an absence of

clearly controlling precedent. The federal courts,

however, decided the First Amendment questions

and remanded the state issues to the state courts

for adjudication.

At present the case is pending in Middlesex

County Superior Court, where the case originally

was filed. A finding by the state courts that the

ordinance violates the state constitution wil] ren-

der the federal judgment advisory.

In choosing this path for this litigation, the

Court of Appeals (a) ignored the holding of this

Court in Arizonans for Official English v. Arizona?

which required certification of state law issues

under circumstances similar to this case and (b)

placed itself squarely in conflict with other cir-

cuits on the issue of certification of state constitu-

tional claims. By refusing to certify the state law

issues at the heart of this case, reaching the fed-

eral constitutional questions and leaving the state

claims to be decided later, the First Circuit vio-

2 520 U.S. 43, 75-80 (1997).

lated a fundamental principle of Article III juris-

prudence — that federal courts must decline to

decide federal claims when state claims are dis-

positive so as to avoid advisory opinions. Princi-

ples of judicial federalism impose on the federal

courts the responsibility to refrain both from ren-

dering advisory or unnecessary judgments on

constitutional questions and from usurping the

authority of state courts to interpret the state’s

constitution.

(b) Prior Proceedings

In early 1994, the petitioner began offering

nude dancing entertainment to the adult public in

Tyngsborough, Massachusetts (the respondents),

a small town on the New Hampshire border north

of Boston. App. 3a. In response to the “tremen-

dous public reaction” in the town against nude

dancing, the respondents enacted an ordinance

that year placing two small parcels of land, total-

ing approximately ten acres, into an adult zone

within which businesses offering adult entertain-

ment must locate. App. 4a - 5a, & 78a. The peti-

tioner’s property was not included in those par-

cels. Id.

In May 1996, the respondents eliminated the

two-parcel zone it had enacted in 1994. In its

place, the town established a single parcel, 10.4

acre zone composed entirely of land owned by a

single owner who had vociferously opposed adult

entertainment at various town meetings and who

had recommended that the adult zone be located

at the town’s landfill. App. 32a - 33a.

The petitioner has applied for an adult enter-

tainment license, in accordance with state stat-

ute, each year since the creation of the 1994 and

1996 adult zones. The respondents have denied

each application because the petitioner is not lo-

cated in the adult zone. App. 4a - 5a.

On September 7, 1994, claiming violations of

its free speech rights guaranteed by article 16 of

the Massachusetts Declaration of Rights and a

violation of 42 U.S.C § 1983, the petitioner

brought an action in Massachusetts Superior

Court against the respondents seeking declara-

tory and injunctive relief.3

Pendency of the Litigation

Since 1978, article 16 of the Massachusetts

Declaration of Rights has been construed to offer

broader free speech guarantees for adult enter-

tainment than the federal constitution. See

Commonwealth v. Sees, 374 Mass. va2, 3/3

N.E.2d 1151 (1978) and Cabaret Enterprises, Inc.

v. ABCC, 393 Mass. 13, 468 N.E.2d 612 (1984).

Between the filing of the case in September 1994,

and the decision of the Court of Appeals in De-

cember 1999, the petitioner’s state claims were

strengthened due to intervening significant devel-

opments in article 16 jurisprudence. On Septem-

ber 24, 1996, the Supreme Judicial Court decided

T & D Video v. City of Revere, 423 Mass. 577, 670

N.E.2d 162 (1996), and on January 14, 1999, it

decided A.F.M,, Ltd. v. Medford, 428 Mass. 1021,

704 N.E.2d 184 (1999). Both A.F.M., Ltd. and

T & D Video present fact patterns extremely close

3 Respondents removed the case to federal court on November

23, 1994. Trial was held on April 29 - May 1, 1998 and judgment

was entered on May 7, 1998. Timely notices of appeal were filed,

and the Court of Appeals affirmed the judgment on December 17,

1999,

to this case. Both cases affirm that the state con-

stitution provides greater protection to adult en-

tertainment than the federal. Both cases allowed

the adult entertainment club to operate.‘

T & D Video v. City of Revere

In T & D Video, as in the present case, the mu-

nicipality did not justify the enactment of its adult

entertainment bylaw by reference to secondary

effects either during pre-enactment hearings, dur-

ing the meeting at which the bylaw was enacted,

+ Even the respondent’s counsel grudgingly admitted during a

pre-trial hearing that the 1996 Supreme Judicial Court decision in

T & D Video was potentially dispositive of the case.

|Resp’s Counsel]: The plaintiff has as the central

contention for those two motions [to remand and

certify] the T & D Video case, which — we were

discussing it before this hearing and | think the

parties are in some agreement that that case is

really central to where we are right now.

Counsel went on to argue that T & D Video should be consid-

ered a decision under the First Amendment and that the decision

was wrong, to which the court replied,

The Court: All nght. But, you see, if you agree

that the SUC, even if they were thinking of it in

terms of federal constitutional law, decided

squarely against your contention . . . when it’s

brought to their attention that the Supreme Court

of the United States has issued recent decisions

that are contrary to their interpretation of federal

law; . . . I think it’s much more likely that what

they would do is say, “All right. We reach this de-

cision under the state declaration of nights instead

of the First Amendment... .”

App. 65a - 66a.

or within the text of the bylaw. On these facts,

the Supreme Judicial Court held that the munici-

pality “had failed to show that the adult enter-

tainment ordinances were designed to serve a

substantial governmental interest.” 423 Mass. at

982, 670 N.E.2d at 166, citing Renton v. Playtime

Theatres, Inc., 475 U.S. 41 (1986).

The respondents in this case argued that the

Supreme Judicial Court’s decision in T & D Video

was solely based on the First Améndment and

that the Supreme Judicial Court had wrongly de-

cided the case. The petitioner, citing the record of

the case showing the trial court’s reliance on arti-

cle 16, maintained that T & D Video was part of

the state’s article 16 jurisprudence.

Under the First Amendment, as explicated by

the First Circuit in this case, App. 16a - 19a, the

lack of pre-enactment justification specific to the

1996 ordinance has no federal constitutional Sig-

nificance. However, if T & D Video articulates

State law, the lack of pre-enactment justification

is determinative of and fatal to the ordinance.

A.F.M., Ltd. v. Medford

In A.F.M., Ltd., the question presented was

whether a zoning scheme that confined adult

businesses to 0.11 percent of the city’s develop-

able land provided the constitutionally required

reasonable opportunity to open and operate.

Concluding that that amount of land failed to

meet constitutional minimums, the Supreme Ju-

dicial Court held that the regulatory scheme un-

reasonably foreclosed avenues of communication.

This analysis of land availability, according to the

First Circuit, App. 21a - 25a, is of minimal Sig-

nificance under the First Amendment. However,

again, if A.F.M., Ltd. sets forth state constitutional

considerations and is not simply wrongly decided

under the First Amendment, the percentage of

land available is greatly important.

The adult zone in the present case contains

less land than in A.F.M., Ltd. — approximately

0.10 percent of the land in the town. Accordingly,

the petitioner is likely to prevail on its state claim

under A.F.M., Ltd.

(d) Decisions Below Regarding Certification

After removal, the petitioner filed motions to

remand or certify the state constitutional issues

to the state courts.° The district court ultimately

decided against certification, opting instead to

reach the complex First Amendment issues. As

late as the middle of the trial, however, it ex-

pressed concern about the predominant role of

the state constitutional claims in the case.

Now, you [petitioner’s counsel] [ha]’ve

referred to state law... . [I]t seems

to me that even at this late stage,

perhaps the appropriate decision for

me if I conclude you have a claim on

that basis would be to remand this

case to the superior court for that

5 See Motion by DHL to Remand Case to State Court, App. 59a

- 60a; Motion by DHL that the Court Invoke Pullman Abstention

and Remand the State Law Questions to State Court or to Certify

State Law Questions to the Supreme Judicial Court, App. 6la -

63a; Colloquy with the Court during argument on DHL’s Motion

for Summary Judgment, App. 64a - 67a; Colloquy with the Court

during the trial, App. 71a - 77a.

court’s evaluation and determination

of your claim as to whether you’re

right on your state law contention.

That would make a lot more sense

than my deciding it. And then either

after I have decided it, certify[ing] to

the SJC [to ask] did I get it right or

else letting you appeal to the First

Circuit and the First Circuit would

then certify to the SJC very likely[--]

did the trial judge get it right that

this is a matter of state law.

App. 75a.

After trial, the district court entered a final

judgment which reached the federal constitu-

tional claims and decided them adversely to the

petitioner. App. 55a. The court also remanded

the state law claims to Middlesex County Superior

Court. Id.

With regard to certification, the Court of Ap-

peals ruled that

[b]jecause we are not convinced that

State law provides an independent

and sufficient basis for deciding the

case, we conclude that the district

court did not err by remanding the

case to state court for determination

of [the Petitioner’s] remaining state

law claims after its adjudication of

the federal issues.

App. 25a.

The irony of this case is that the federal court’s

remand to state court has the same effect as cer-

tification, i.e., it requires the state courts to re-

solve the state law questions, but it does so ina

way that inverts the traditional order of constitu-

tional decision making. Here, the federal consti-

tutional questions have been decided first, and

the opinion is at serious risk of being rendered

advisory if and when the state court comes to a

different result under state law.

REASONS FOR GRANTING THE WRIT

I, CERTIORARI SHOULD BE GRANTED TO

RESOLVE THE CONFLICT AMONG THE

CIRCUITS REGARDING THE APPLICA-

TION OF ARIZONANS AND TO DETER-

MINE WHETHER FEDERALISM AND

COMITY REQUIRE THAT FEDERAL

COURTS DEFER DECIDING FEDERAL

CONSTITUTIONAL ISSUES WHEN CERTI-

FICATION OF STATE. CONSTITUTIONAL

ISSUES WOULD PERMIT THE STATE

COURTS TO RESOLVE THE LITIGATION

IN FULL ON STATE GROUNDS.

A. Arizonans requires. certification

when dispositive but unresolved is-

sues of state law are joined with

federal constitutionally based

causes of action.

In Anzonans for Official English v. Arizona, 520

U.S. 43, 75-80 (1997), this Court rechristened

Pullman® abstention as “certification” and elevated

the doctrine to one of central importance in cases

involving federal constitutional issues.

In litigation generally, and in con-

Stitutional litigation most promi-

nently, courts in the United States

characteristically pause to ask: Is

this conflict really necessary? When

anticipatory relief is sought in federal

court against a state statute, respect

6 Railroad Commission of Texas v. Pullman Co., 312 U.S. 496

(1941).

for the place of the states in our fed-

eral system calls for close considera-

tion of that core question.’

Arizonans, 520 U.S. at 75 (1997).

In Anzonans, Justice Ginsberg noted that

“(cjertification today covers territory once domi-

nated by a deferral device called ‘Pullman absten-

Ch. ee

Through certification of novel or

unsettled questions of state law for

authoritative answers by a State’s

highest court, a federal court may

save “time, energy, and resources and

hel({p] build a cooperative judicial fed-

eralism.”

920 U.S. at 77 (citations omitted).

The Anzonans Court reversed the lower courts’

refusals to certify to the Arizona Supreme Court

the question of the interpretation of a new article

to the state’s constitution which made English the

official language of the state. The decisions of the

lower federal courts instead reached and decided

the plaintiffs First Amendment claim. The Su-

preme Court ruled that rather than prematurely

reaching the federal constitutional issue, “[a]

more cautious approach was in order,” and that

“the certification requests merited more respectful

7 “Federal courts abstain out of deference to the paramount

interests of another sovereign, and the concern is with principles

of comity and federalism.” Quackenbush v. Allstate Insurance Co.,

517 U.S. 706, 723 (1996).

consideration than they received... .” Id. at is A

78.

In Anzonans, this Court, it appeared, had re-

solved the questions of the manner and order in

which a federal court should address state and

federal constitutional questions when the state

law question is unsettled and potentially disposi-

tive. This Court ordered certification.

B. The criteria for certification set

out in Arizonans, that the state

law questions potentially be dispo-

sitive and that they involve issues

of unsettled state law, are met in

this case.®

1. The state law questions are

potentially dispositive.

The first requirement for certification is that an

authoritative answer to the state law question

may render moot the deferred federal constitu-

tional question. Arizonans, 520 U.S. at 78-79. If

the case can be decided on the basis of state law,

then the “cardinal principle” that a federal court

Should avoid unnecessarily reaching federal con-

8 An additional requirement is that the state courts either have

an established mechanism for or otherwise permit certification.

The Massachusetts Supreme Judicial Court has had a rule provid -

ing for certification since the early 1970’s. See Rules of Massa-

chusetts Supreme Judicial Court 1:03 (2000), App. 56a - 58a; Bel-

lottiv. Baird, 428 U.S. 132, 150-51 (1976).

stitutional questions is well served. Id.9, 19 “Such

[federal] constitutional adjudication plainly can be

avoided if,” as here “a definitive ruling on the

state issue would terminate the controversy.”

Pullman, 312 U.S. at 498.1!

The standard regarding this criterion for certifi-

cation is that there must be a “fair possibility”

that state law will be dispositive. Iberra v. Bexar

County Hospital District, 624 F.2d 44, 47 (Sth Cir.

1980). Certainty is not required. Indeed, cer-

tainty would defeat the need for certification be-

cause when the state law is reasonably clear, the

federal courts routinely will decide the state issue.

9 The state constitutional law question is whether the local or-

dinance violates the petitioner’s free expression rights guaranteed

by article 16 of the Massachusetts Declaration of Rights. That

issue could be resolved by a certified question as simple as: Were

T & D Video and A.F.M., Ltd. decided under article 16? If the an-

swer were in the affirmative, then this case is resolved. The re-

spondent’s position, which was critically questioned by the district

court, see supra n.4, has been that the two cases were decided

under the First Amendment only, that the Supreme Judicial Court

decided them incorrectly, and that when this error is brought to

the Supreme Judicial Court’s attention, it will decide that art. 16

does not provide greater protection for adult entertainment and

that its decisions in these two cases were wrong under both fed-

eral and state law.

10 As the Court recently reiterated in Clinton v. Jones, 520 U.S.

681, 690 n.11 (1997), “‘If there is one doctrine more deeply rooted

than any other in the process of constitutional adjudication, it is

that we ought not to pass on questions of constitutionality .. .

unless such adjudication is unavoidable,’ Spector Motor Service v.

McLaughlin, 323 U.S. 101, 105 (1944);” and “It is not the habit of

the Court to decide questions of a constitutional nature unless

absolutely necessary to a decision of the case.’ Burton v. United

States, 196 U.S. 283, 295 (1905).”

11 During the litigation, the respondent’s counsel had conceded

the importance of the state constitutional claims. See infran.4.

Here, the state court decisions in T & D Video

and A.F.M., Ltd. provide the basis for a strong ar-

gument that the adult zone violates the Massa-

chusetts Declaration of Rights.

2. The issues involve unsettled

questions of state law.

The second requirement for certification is that

the issues involve unsettled questions of state

law. Although the petitioner has a strong state

constitutional argument, the results of that ar-

gument remain uncertain for several reasons.

First, the full contours of the protections offered

by article 16 are not clear. T & D Video and

A.F.M., Ltd., in conjunction with Redgrave v. Bos-

ton Symphony Orchestra, 855 F.2d 888 (1st Cir.

1988), Commonwealth v. Sees, 374 Mass. 532,

373 N.E.2d 1151 (1978) and Cabaret Enterprises,

Inc. v. ABCC, 393 Mass. 13, 468 N.E.2d 612

(1975), indicate that article 16 provides greater

protection for adult entertainment than the First

Amendment. Both T & D Video and A.F.M., Ltd.,

however, arose in the context of motions for a pre-

liminary injunction, without the benefit of a fully

developed trial record. The full parameters of

these decisions thus may be left for further expli-

cation by the Supreme Judicial Court after trial.

Second, the Massachusetts courts must address

the respondents’ contention in this case that T &

D Video and A.F.M., Ltd. were decided under the

federal constitution only. App. 65a.

The fact that the state law issues have been

remanded to the state courts for resolution at-

tests to the uncertain boundaries of article 16 ju-

risprudence and the importance of these state law

questions to this case. Under these circum-

stances, where the requirements for certification

are met, the lower courts erred in refusing to cer-

tify the state law issues. !?

Cc. The First Circuit’s decision is in

direct conflict with other Circuits

and with prior decisions of this

Court.

The First Circuit decision on certification con-

flicts not only with Anzonans, but also with long-

standing and clearly enumerated principles of

federalism and other decisions of this court. Me-

ndian v. Southern Bell Telephone and Telegraph

Co., 358 U.S. 639 (1959), for example, involved a

‘2 Prior to Anzonans, many of the Circuits, including the First,

Pustell v. Lynn Public Schools, 18 F.3d 50, 53 (1st Cir. 1994), had

limited certification to cases with exceptional or unique circum-

stances. In Anzonans, this Court rejected that standard, holding

that”[njovel, unsettled questions of state law . . . not ‘unique cir-

cumstances,’ are necessary before federal courts may avail them-

selves of state certification procedures.” Amzonans, 520 U.S. at

79.

Like Arizona, Massachusetts does not require unique circum-

stances. Certification is permitted of matters “which may be de-

terminative of the cause,” and as to which “no controlling prece-

dent” is apparent. Rules of the Massachusetts Supreme Judicial

Court 1:03. App. 56a.

As pointed out by the Court in Anzonans, the

{clertification procedure, in contrast |with absten-

tion], allows a federal court faced with a novel

state-law question to put the question directly to

the State’s highest court, reducing the delay, cut-

ting the cost, and increasing the assurance of

gaining an authoritative response.

Anzonans, 520 U.S. at 76.

challenge under both the state and federal

constitutions to a state statute that imposed a

charge on public utilities for the use of public

Streets. There, as here, the lower federal court

reached and decided the federal constitutional

claim. This Court remanded the case to the Dis-

trict Court with directions “to hold the cause

while the parties repair to a state tribunal for an

authoritative declaration of applicable state law.”

Id. at 640. There, as here, the authoritative dec-

laration in the state tribunal would address the

question of the validity of the local law under the

State constitution. The court in Meridian was

clearly concerned that by failing to defer to the

State tribunal, the federal courts, as here, risked

“render(ing] a constitutional decision unnecessar-

ily.” Id. at 641. See also Reetz v. Bozanich, 397

U.S. 82, 85 (1970).

Both the Eleventh and Ninth Circuits have or-

dered certification in cases which, like the pre-

sent, involve potentially divergent conclusions

under the respective state and federal constitu-

tional provisions. In Fields v. Rockdale County

Georgia, 785 F.2d 1558, 1561 (11th Cir. 1986),

for example, certification of the state constitu-

tional issue was required because the due process

provision of the Georgia constitution, at issue in

that case, affords broader protection than its fed-

eral constitutional counterpart. Similarly, in

Newport Investments, Inc. v. City of Laguna Beach,

964 F.2d 893, 894 (9th Cir. 1977), the federal

court ruled that certification was required be-

cause “some of the appellant’s claims were predi-

cated on some of the California Constitution’s

‘mirror image’ provisions of the Federal Constitu-

tion.” Thus, the court ruled, “it was particularly

appropriate that the California courts be afforded

the initial opportunity of interpreting the consti-

tution of their own state in relation to the appel-

lant’s complaint.” Id.

The First Circuit’s approach in this case con-

tradicts the holdings of the Ninth and Eleventh

Circuits regarding certification and is at odds

with this court’s holdings in Arizonans and Mend-

ian. We urge this Court to reconcile the conflict

among the Circuits and provide uniform stan-

dards for deferral of federal constitutional ques-

tions when a_ potentially dispositive state

constitutional provision is before the federal

court.

D. Article III’s case or controversy re-

quirement and principles of feder-

alism required certification in or-

der to allow the state court to

resolve the state constitutional is-

sues.

Article 16 of the Massachusetts Declaration of

Rights provides broader free speech protections

than the First Amendment. The development of

an article 16 jurisprudence?? is consistent with

13 See Sees (art. 16 protected nude dancing in bars that serve

alcoholic beverages whereas the First Amendment does not, Doran

v. Salem Inn, Inc., 422 U.S 922, 932-34 (1975)); Cabaret Enter-

prises, Inc. v. ABCC, 393 Mass. 13, 468 N.E.2d 612 (1984)(same);

A.F.M., Ltd., 428 Mass. 1021, 704 N.E.2d 184 (interpreting Renton

more broadly than the federal courts) and T & D Video, 423 Mass.

577, 670 N.E.2d 162 (same). See supra Part (c) of the Statement

of the Case and of Prior Proceedings. Similarly, in Redgrave, supra

855 F.2d at 910, the First Circuit explicitly acknowledged that ar-

ticle 16 provides broader protection for nude dancing than the

First Amendment.

In Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548

(1985), the Supreme Judicial Court explained the reason that

state constitutional protections differ from the federal as follows:

ay eee a

the Massachusetts Supreme Judicial Court’s gen-

eral view that it is obligated to independently in-

terpret the state’s constitution. !4

The creation of an independent free speech ju-

risprudence has already placed the decisions of

the Supreme Judicial Court under article 16 in

conflict with the decisions of this Court under the

First Amendment. Compare Sees, 374 Mass. 532,

373 N.E.2d 1151 with Doran v. Salem Inn, Inc.,

The Constitution of the Commonwealth pre-

ceded and is independent of the Constitution of

the United States. In fact, portions of the Consti-

tution of the United States are based on provi-

sions in the Constitution of the Commonwealth.

In particular situations, on similar facts, we

have reached different results under the State

Constitution from those that were reached by the

Supreme Court of the United States under the

Federal Constitution. On occasion, the differences

can be explained because of different language in

the two Constitutions. [Citing Sees]. On the other

hand, in deciding similar constitutional questions,

the two courts have reached contrary results

based on differences of opinion concerning the

application of similar constitutional principles.

Id. at 372, 476 N.E.2d at 555.

'* See Speer, B., Chief Justice Wilkins and the Criminal Law,

80 Mass.L.Rev. 125, 126-33 (Winter 1999)(citing numerous cases

where the Supreme Judicial Court extended greater protections

under the state constitution than is afforded by the cognate fed-

eral constitutional provisions); Clay, H., Human Freedom and

State Constitutional Law, 70 Mass.L.Rev. 161, 163 (Dec.

1985)(same regarding other states); Utter, Freedom and Diversity

in a Federal System: Perspectives on State Constitutions and the

Washington Declaration of Rights, 7 Puget Sound L.Rev. 491, 499

n.29 (1984)(listing states that have interpreted their constitutions

as providing greater protection for individual rights than the fed-

eral constitution).

422 U.S 922, 932-34 (1975). See supran.13. As

the present case attests, further conflicts in the

interpretation of these cognate free speech provi-

sions are likely to occur. ,

In cases, as here, which present both state and

federal constitutional claims, where the state

claims may well be dispositive, Article III of the

United States Constitution dictates that the state

issues must be decided first, and federalism dic-

tates that that issue must be decided in the first

instance by the state court.

1. Article III requires the federal

courts to avoid advisory

opinions by deferring federal

constitutional claims when

the case can be decided on

other grounds.

Article III limits federal court jurisdiction to

cases or controversies and precludes advisory

opinions. Rescue Army v. Municipal Court, 331

U.S. 549, 568-69 (1947)(“this Court has followed

a policy of strict necessity in disposing of consti-

tutional issues. The earliest exemplifications...

arose in the Court’s refusal to render advisory

opinions and in applications of the related juris-

dictional policy drawn from the case or contro-

versy limitation. U.S. Const. Art. 3.”). An estab-

lished decisional hierarchy aids courts in avoiding

advisory opinions. When a court decides a case

by construing the common law or interpreting a

regulation or a statute, the constitutional issue,

in effect, becomes moot; a constitutional case or

controversy no longer exists. Jd. Accordingly,

when, as here, a federal court is faced with both a

federal constitutional claim and a cognate claim

under the state constitution, Article III of the

United States Constitution requires that the state

claim must be resolved first. Id.

When the federal court, as in this case, acts to

the contrary and decides the federal constitu-

tional question before the state constitutional is-

sue 1s even considered, it runs afoul of Article III

by having rendered an opinion that very well may

become advisory, a result that Article III forbids.

Certification is the process by which federal

courts can avoid this prohibited result.

2. The principle of judicial fed-

eralism requires the_ state

courts to initially decide

state constitutional ques-

tions.

This Court’s cases from Pullman through Anzo-

nans uniformly have championed the position

that federalism requires a “‘scrupulous regard for

the rightful independence of the state govern-

ments,” Pullman, 312 U.S. at 501 (citation omit-

ted), and deferral of federal constitutional deci-

sions “further|s] the harmonious relation between

state and federal authority,” id., by the “‘avoid-

ance of needless friction’ between federal pro-

nouncements and state policies,” Reetz v. Boza-

nich, 397 U.S. 82, 87 (1970) quoting Pullman, 312

U.S. at 500.

That the state courts should have both the first

and the last word in interpreting state law — one

of the grounding principles of both Pullman ab-

stention and certification — is based on the fun-

damental rationale that federalism demands that

the federal government must respect the sover-

eignty of the several states. By allowing the state

courts to interpret their own constitutions and

laws, and not attempting to predict what that in-

terpretation might be, the federal courts not only

honor state sovereignty, but also avoid the poten-

tial for conflicting results between those sover-

eigns. The principle incorporates the common-

sense notion that state courts have a greater ex-

pertise in interpreting their law than do the fed-

eral courts. The need for federal courts to defer to

the states is, of course, particularly acute when

the cognate provisions of the state and federal

constitutions diverge.

In the last two decades, independent interpre-

tation of state constitutions has undergone a ren-

aissance. Prior to that time, the likelihood of con-

flicting interpretations of cognate federal and

state constitutional provisions was small. Almost

all state courts had interpreted their constitutions

as affording the same and no greater protection

than that afforded by the federal constitution.

With independent state constitutional interpreta-

tions becoming the norm, the chances for con-

flicting interpretations have increased. See gen-

erally supra n.14.

Where, as here, the relevant state constitu-

tional provision provides broader protection for

individual rights than the First Amendment, and

the federal court not only recognizes this juris-

prudential difference but also determines that

there is no compelling state precedent on the spe-

cific case before it,15 then principles of federalism,

as articulated in Pullman and reaffirmed in Arnzo-

15 See Rule 1:03 of the Rules of the Supreme Judicial Court.

nans, require the federal court to certify the state

constitutional question.

E. The federal courts should deter to

the state courts in areas of sensi-

tive social policy.

One final consideration bears note. Federal

courts ought not to enter sensitive areas of social

policy that are best left to resolution by the states

unless no alternative to its constitutional adjudi-

cation is open. Pullman, 312 U.S at 498. The

Courts of Appeal have found certification to be

particularly appropriate in zoning, eminent do-

main, Fields v. Rockdale County Georgia, 785

F.2d 1558, 1562 (11th Cir. 1980), and education

cases, Pustell v. Lynn Public Schools, 18 F.3d 50,

54 (1st Cir. 1994) — areas of law that tradition-

ally have been reserved to the state courts.

The present case not only concerns the tradi-

tionally local issue of zoning but also involves

strong local feelings touching on the less quantifi-

able, but nevertheless distinctly local, areas of

morality and values. App. 3a - 4a & 81a.

In a case such as this, principles of federalism

empower the state courts, not the federal, to ren-

der a decision on state law. Federal courts

should not create the potential for conflict be-

tween the sovereigns that necessarily will result if

and when it turns out that the federal courts

prematurely have rendered a constitutional opin-

ion that is advisory only.!© Certification was re-

quired.

16 As recited above, the petitioner brought this case in the state

court. After the defendants removed the matter to federal court,

II. CERTIORARI SHOULD BE GRANTED BE-

CAUSE THE COURT OF APPEALS FAILED

TO PROPERLY APPLY THE SUBSTAN-

TIAL GOVERNMENTAL INTEREST AND

REASONABLE OPPORTUNITY TO OPEN

AND OPERATE TESTS UNDER RENTON

V. PLAYTIME THEATRES, INC., PLACING

ITS DECISION IN CONFLICT WITH REN-

TON AND THE OTHER CIRCUITS.

A. The lack of opportunity to open

and operate should have been de-

termined as of the time the permit

at issue in the case was denied.

The Court of Appeal’s finding that the 1996

adult entertainment zone provided the petitioner

with a reasonable opportunity to open and oper-

ate under Renton is premised upon the incorrect

supposition that the constitutionality of the re-

spondents’ zoning ordinance was to be examined

as of the date of the trial, not as of the date the

permit was denied.!”? See App. 46a. This asser-

the petitioner repeatedly tried to have the case remanded, or ques-

tions certified, to the state court.

17 Testifying at trial, the owner of the adult zone land admitted

that up to the date of trial none of the land in the zone was avail-

able for sale.

Q. Now, with regard to the adult entertainment

zone, those would be lots 14, 15, 16, 17 and

a part of 13, is that correct?

A. That is correct.

Q. Have any of those parcels been available for

purchase to date?

tion is simply incorrect. There is no support for

this view in any case.

The question under Renton is whether the chal-

lenged ordinance provided the applicant a rea-

sonable opportunity to open and operate at the

time that the request to provide adult entertain-

ment was denied. The answer to this question in

this case is clearly “no.”

As of December 1996, the date when the peti-

tioner applied for and was denied an entertain-

ment license to include nude dancing, the re-

spondents’ adult entertainment zone consisted

entirely of one 10.4 acre parcel under single own-

ership. App. 82a - 84a. That 10.4 acre parcel

was virtually identical to the “one-available-lot”

1994 zone that the District Court found was most

likely unconstitutional under Renton. App. 47a.!8

Courts have grappled with the potential ambi-

guity of the controlling legal standard, “a reason-

able opportunity to open and operate,” but no

court has upheld a zoning regulation where one

parcel, comprising less than one-tenth of one per-

cent of the land area in a municipality, was avail-

able for use by an adult entertainment establish-

ment.!9

A. No, they haven’t been.

App. 69a. The land owner went on to testify that as of the day of

trial, the parcels \ cre available for sale. In its decision, the trial

court credited this testimony and relied on the fact that the land

was for sale as of the day of trial for its conclusion that the zone

provided a reasonable opportunity for adult businesses to open

and operate. App. 46a.

18 In addition, as of December 1996, the adult zone parcel was

not available for purchase. See supra n.17 and App. 68a - 71a.

19 CLR Corp. v. Henline, 702 F.2d 637, 638 (6th Cir. 1983) (zon-

ing ordinance unconstitutional where “the impact of the . . . ordi-

Under Renton, therefore, as of the date that the

petitioner applied for its adult entertainment li-

cense, the respondents’ adult zone did not pro-

vide a reasonable opportunity for an adult busi-

ness to open and operate. By conducting the

Renton analysis as of the time of trial, the Court

of Appeals misapplied Renton and fell out of step

with the other circuits.

B. The municipality failed to offer

proof of a substantial governmental

interest.

Renton v. Playtime Theatres, Inc., 475 U.S. 1

(1986) requires a municipality to have considered

evidence that demonstrates its substantial gov-

ernmental interest when it enacts an ordinance

that restricts expressive activities, including adult

entertainment. Here, the town presented no evi-

dence of any governmental interest at the time it

enacted its 1996 adult entertainment ordinance.

App. 83a. The Court of Appeals ruled that the

nance is to permit two to four restricted uses in a half-mile strip of

the city”). Walnut Properties, Inc. v. City of Whittier, 861 F.2d

1102, 1110 (9th Cir. 1988) (100 acres of land comprising only 1.4

percent of the city’s land area in three areas was insufficient); DIA

v. City of Toledo, 937 F.Supp. 673, 678 (N.D. Ohio 1996) (“courts

have generally found the number to be inadequate if fewer than a

dozen sites or under one percent of the city acreage is potentially

available”); Janra Enterprises v. City of Reno, 818 F.Supp. 1361,

1364 (D. Nev. 1993) (three parcels “is hardly constitutionally suffi-

cient for alternative means of communication”); cf. 3570 East

Foothill Boulevard v. City of Pasadena, 912 F.Supp. 1257, 1266-67

(D.C. Cal. 1995) (0.73 percent of the land available for adult busi-

nesses does not automatically violate Renton, where a jury could

find that there were 26 sites or a minimum of 11 to 16 sites, as

the plaintiff conceded).

Pe eee Te ee Ss ey

abi! nach

}

;

lack of evidence was constitutionally insignificant.

The court reasoned that because the respondents

had shown a substantial governmental interest in

enacting an earlier adult entertainment ordi-

nance, the town, as a matter of law, could graft

this earlier finding onto the new ordinance. App.

19a.20

This reasoning, however, not only misconstrues

the purpose of Renton’s substantial government

interest requirement but also conflicts with two

recent cases, J & B Entertainment, Inc. v. City of

Jackson, Miss., 152 F.3d 362 (Sth Cir. 1998) and

N.W. Enterprises, Inc. v. City of Houston, 27

F.Supp.2d 754 (S.D. Tex. 1998), both of which

expressly considered and rejected this very argu-

ment.

In J & B Entertainment, Inc., the municipality,

like the respondents here, presented no evidence

at trial as to its motives in amending its zoning

ordinance in 1995 to restrict adult entertainment.

Rather, like the respondents here, the municipal-

ity claimed that it was sufficient for it to prove

that there had been a substantial governmental

interest in the adoption of an earlier (1991) zoning

ordinance restricting adult entertainment.

The Fifth Circuit rejected that argument. It

found that because Renton

instructs us that a government must

present... “a link between the regu-

20 We note again that the result in the governing state decision,

T & D Video, 423 Mass. at 581-82, 670 N.E.2d at 165-66, is both

contrary to the First Circuit’s holding in this case and consistent

with the Fifth Circuit’s analysis in J & B Entertainment.

OPT Ne, aE Ogee

lation and the asserted governmental

interest,”2!

mere reliance on

was inadequate.23 The fact that an earlier zoning

ordinance restricting adult entertainment may

have been enacted with a proper motive is no

guarantee under Renton that a later ordinance,

although similar in form, was also enacted with a

constitutionally proper motive.24 Each and every

the inference that [the municipality]

must have had the same interests be-

cause the composition of the City

Council that enacted the Ordinance

was the same as the City Council

that enacted the 1991 zoning ordi-

nance22

21 Id. at 372.

22 Jd. at 374.

[W]e will not hypothesize such an objective or ac-

cept a naked assertion. Rather, we intrude into

the regulatory decision process to the extent that

we insist upon objective evidence of purpose — a

study or findings. Insisting upon findings reduces

the risk that a purported effort to regulate effect is

a mask for regulation of content.

Id. at 372.

Prudence also suggests that making the entire de-

termination of whether a challenged ordinance is

constitutional hinge upon the prior experiences of

legislators, absent reasoned explanation, is un-

wise. While the district court’s conclusion that

the prior experiences of legislators can justify a

challenged ordinance without reasoned explana-

5 ea ad a ai

ordinance restricting adult entertainment must

serve a:substantial governmental interest--not

just the first one. Later ordinances restricting

adult entertainment do not gain immunity from

scrutiny simply because the first ordinance was

enacted constitutionally.?5

Accordingly, the Court of Appeal’s conclusion

that the respondents had shown a substantial

governmental interest in enacting the 1996 ordi-

nance by relying on evidence submitte i in con-

nection with an earlier ordinance is in conflict

with Renton and the rule of Renton as applied by

the Fifth Circuit. In order to reconcile the conflict

among the Circuits, certiorari should be granted.

tion linking the earlier enactment to the chal-

lenged ordinance may be easily applied in this

case, we may quickly become bogged down in a

morass of line-drawing in future cases. First,

what if some but not all of the legislators have

previously received information on secondary ef-

fects. How many are enough? Half? Two-thirds?

How long can pass between the review of the ma-

terials and the challenged ordinance? What if the

applicable law has changed in the interim?

J & B Entertainment, Inc., 152 F.3d at 375.

25 See N.W. Enterprises, Inc. v. City of Houston, 27 F.Supp.2d

754 (S.D. Tex. 1998), where the municipality, like the respondent

here, attempted to rely on evidence of secondary effects introduced

during passage of an earlier ordinance to substantiate the gov-

ernmental interest in enacting a later ordinance. “[Ejach time a

City chooses to impose new restrictions of protected speech such

as [the municipality] has done by increasing the ordinance’s dis-

tance requirement for sexually oriented businesses, it must satisfy

the requisite constitutional test.” /d. at 811.

CONCLUSION

This case presents fundamental questions re-

garding the relationship between the state and

federal courts. We urge this court to grant certio-

rari to remedy the constitutional conflict engen-

dered by the decision of the First Circuit not to

defer the federal constitutional decisions until the

state law issues were resolved and to provide

guidance to the lower federal courts on the impor-

tant federal question of the proper role of certifi-

cation when potentially determinative, but not

clearly established, state constitutional issues

come before them.

Respectfully submitted,

The Petitioner,

by its attorneys,

*WILLIAM C. NEWMAN

THOMAS J. MCCORMICK

LESSER, NEWMAN, SOUWEINE

& NASSER

39 Main Street

Northampton, Massachusetts 01060

(413) 584-7331

*Counsel of Record

APPENDIX TABLE OF CONTENTS

APPENDIX A

Opinion of the United States Court

of Appeals for the First Circuit in

D.H.L. Associates, Inc. v. John

O’Gorman, et al., 199 F.3d 50 (1999) ........ la

APPENDIX B

Opinion and Order of the United States

District Court for the District of

Massachusetts in D.H.L. Associates,

Inc. v. John O’Gorman, et al.,

SF .SURD.2G TO C1GGG) ciccscsccaccccccscccescsacie 27a

APPENDIX C

Rules of the Supreme Judicial Court,

Rule 1:03, Uniform Certification of

PNM OE GI ais oivnccdccnicccsccisievesnsceancasecs 56a

APPENDIX D

Plaintiff's Motion to Remand this Case to

I I odode cta renee esunevieieees ieee 59a

lia

APPENDIX E

Plaintiffs Motion Requesting That the

Court Invoke Pullman Abstention and

Remand the State Law Questions to

State Court or Alternatively to Certify

the State Law Questions to the

Supreme Jia COME ss sissccccnsasasnissnavens

APPENDIX F

Excerpts from the record appendix of a

colloquy between counsel and the

trial court during a pre-trial hearing

on Decesniee 1a, Birt sasassietiectecsisentaces

APPENDIX G

Excerpts from the Record Appendix of

testimony, and colloquies between

counsel and the trial court during

the second day of the three day trial,

Apertl 30, 1900 .ccscastscabasnitintnaionsiassssanseas

APPENDIX H

Excerpts from facts stipulated by the

Parties SOP GORE scsnscssasanierainsieeaserersaies

APPENDIX A

D.H.L. ASSOCIATES, INC.,

Plaintiff, Appellant,

JOHN O’GORMAN, Robert Wallace,

Warren Allgrove, Jr, and Eileen Farrell, Indi-

vidually and in their Capacity as The Tyngsbor-

ough Board of Selectmen, and as the Licensing

Board for the Town of Tyngsborough, and the

Town of Tyngsborough, Defendants, Appel-

lees.

No. 98-1688.

United States Court of Appeals,

First Circuit.

Heard Sept. 16, 1999.

Decided Dec. 17, 1999.

Restaurant owner brought state court action

against town and town officials, challenging mu-

nicipal ordinance regulating adult entertainment

businesses and seeking declaratory relief on fed-

eral and state constitutional grounds. Defendants

obtained removal. The United States District

Court for the District of Massachusetts, Robert E.

Keeton, J., 6 F.Supp.2d 70, held ordinance to be

constitutional, and owner appealed. The Court of

Appeals, Coffin, Senior Circuit Judge, held that:

(1) owner’s claims were ripe for review; (2) owner’s

challenges to former versions of ordinance were

moot; (3) present ordinance was content neutral;

(4) ordinance was narrowly tailored to serve sub-

stantial government interest; and (5) ordinance

permitted reasonable alternative avenues of

communication.

Affirmed.

Thomas Lesser with whom William C. Newman

was on brief for appellant.

Richard Bowen with whom Jonathan M.

Silverstein and Christopher J. Pollart were on

brief for appellees.

Before SELYA, Circuit Judge,

COFFIN, Senior Circuit Judge, and

LIPEZ, Circuit Judge.

COFFIN, Senior Circuit Judge.

Plaintiff-appellant D.H.L. Associates, Inc., has

sought annually since 1994 to persuade defen-

dants-appellees, the town of Tyngsborough, Mas-

sachusetts, and its board of selectmen to license

it to provide nude dancing at its restaurant, “Mat-

thew’s.” D.H.L. has never been successful in this

endeavor because Matthew’s is not located within

the area of Tyngsborough zoned to allow adult en-

tertainmen: In this case, D.H.L. challenges the

constitutionality of Tyngsborough’s zoning ordi-

nance, alleging that even as revised since 1994, it

does not meet the standards set forth in City of

Renton v. Playtime Theatres, Inc., 475 U.S. 41,

106 S.Ct. 925, 89 L.Ed.2d 29 (1986), and thus

violates D.H.L.’s constitutionally protected free-

dom of speech. The district court held the ordi-

nance to be constitutional, and from that judg-

ment D.H.L. appeals. Finding no constitutional

infirmity in Tyngsborough’s zoning ordinance, we

affirm.

I. Factual Background

Tyngsborough, a rural town of approximately

9500 inhabitants, is located about 40 miles from

Boston near the Massachusetts/New Hampshire

border. The Tyngsborough board of selectmen

acts as the town’s executive branch and is au-

thorized to act as the licensing authority for alco-

holic beverage and entertainment licenses. Town

residents voting at meetings constitute the

legislative branch of the town’s government and

as such are responsible for enacting the zoning

ordinances at issue here.

Frm ta ag Air Preece A RS PERE BHR Aaa

The Town has altered its zoning ordinance mul-

tiple times in the past decade. In 1987, the Town,

by a vote of the majority of residents at a town

meeting, established the “B-4 zone,” in which

adult entertainment, as well as other commercial

uses, was authorized. The B-4 zone, although ex-

isting in theory, did not actually contain-any par-

cels of land and was, in fact, a “phantom zone.” In

1992, D.H.L. applied for and was issued both an

: all- alcoholic beverage license and a live enter-

tainment license for its restaurant called “Bo-

gie’s,” later called “Matthew’s,” located in a gen-

eral commercial use zone.

In January 1994, D.H.L. advertised that it

would present nude dancing beginning in Febru-

ary. The following month, an open town meeting

was held in Tyngsborough to discuss adult enter-

tainment and on February 24, the Town notified

D.H.L. that adult entertainment was not encom-

passed within its entertainment license. On

March 7, D.H.L. applied to amend its entertain-

ment license to include adult entertainment, un-

der protest based on its belief that its entertain-

ment license inherently authorized adult

entertainment. On March 28, the board of select-

men held a hearing to consider D.H.L.’s request,

but delayed a decision. The next evening, as a re-

sult of a petition signed by more than 650 regis-

tered voters, a special town meeting was held to

consider adopting an ordinance that would pro-

hibit establishments holding liquor licenses from

offering any form of nude entertainment.

Although the Town did not adopt such an ordi-

nance, town residents at the meeting unani-

mously adopted an amended version of the zoning

ordinance to establish a B-4 zone of two lots of

land. The selectmen subsequently denied D.H.L.’s

application to amend its entertainment license to

include live nude dancing on the basis that the

restaurant was not located within the B- 4 zone.

Each year since then, the Town has reissued

D.H.L.’s entertainment license but refused to ex-

tend it to include nude dancing. Aside from a two-

day license suspension in March 1994, the Town

has never attempted to enforce the limitations of

D.H.L.’s license or otherwise sanction it for its

violation of zoning and licensing regulations, de-

spite the fact that D.H.L. has continued to offer

nude dancing on a daily basis. The Town has,

however, represented to D.H.L. and to this court

that it is delaying enforcement only until this liti-

gation concludes.

In 1994, D.H.L. filed a claim against the Town

and its board of selectmen in state court, alleging,

inter alia, that its state and federal constitutional

rights had been violated and seeking declaratory

and injunctive relief as well as damages. Defen-

dants successfully sought removal of the case to

federal court.

Prior to trial, at a town meeting in May 1996,

the Town established an entirely different B-4

zone comprised of 10.4 acres and consisting of 5

of the 24 lots in Applewood Commercial Park

subdivision. It was the constitutionality of this

zone that the district court upheld following a

bench trial in April 1998. The district court ruled

in favor of Tyngsborough on D.H.L.’s federal con-

stitutional claims, on the grounds that the consti-

tutionality of the 1987 and 1994 zones were moot

issues and the 1996 zone was constitutional, and

remanded D.H.L.’s remaining state claims to state

court for adjudication. D.H.L. appeals, arguing

that the issue of whether its rights were violated

under the prior ordinances was not moot and that

even if the 1996 ordinance were the appropriate

benchmark for consideration, it was not constitu-

tional.

II. Preliminary Issues

A. Ripeness —

[1] Initially, we were concerned that D.H.L.’s

claims were not ripe for review because D.H.L.

has continued to provide adult entertainment de-

spite its lack of a license without sanction. We

have resolved this concern, however, because the

Town has represented to the court, consistent

with a selectman’s testimony at trial, that it is de-

laying enforcement of the ordinance against

D.H.L. only until this litigation concludes. Our ju-

risdiction as a federal court extends only to

“cases” and “controversies,” as authorized by Ar-

ticle III, Section 2, of the United States Constitu-

tion. This means that issues before us must re-

flect a live dispute between adverse parties.

The Supreme Court has explained that the de-

termination of ripeness depends on “the fitness of

the issues for judicial decision” and “the hardship

to the parties of withholding court consideration.”

Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87

S.Ct. 1507, 18 L.Ed.2d 681 (1967).

[2] In situations similar to the present one,

prospective enforcement of an ordinance has been

found sufficient to generate a live case. See, e.g.,

Sable Communications of California, Inc. v. Pacific

Tel. & Tel. Co., 890 F.2d 184, 187 (9th Cir.1989)

(“A threat that emanates from a regulation, com-

pulsory in nature, to which the plaintiff is cur-

rently subject, is real and immediate if the possi-

bility of enforcement is more than hypothetical.”).

When a constitutional claim is at issue, a plaintiff

need not “await the consummation of the threat-

ened injury to obtain preventive relief.” Pennsyl-

vania v. West Virginia, 262 U.S. 553, 593, 43

S.Ct. 658, 67 L.Ed. 1117 (1923).

In this case, it is clear that D.H.L. is subject to

a real and immediate threat of enforcement of

Tyngsborough’s zoning ordinance and therefore

its claims are ripe for our consideration. See Pus-

tell v. Lynn Pub. Schs., 18 F.3d 50, 52 (1st Cir.

1994); Neiderhiser v. Borough of Berwick, 840

F.2d 213, 218 (3d Cir.1988).

B. Mootness

[3] Next, we address D.H.L.’s argument that the

district court erred by holding that the constitu-

tionality of the 1987 and 1994 zones were moot

issues. D.H.L. contends that these issues are, in

fact, dispositive of the case. We review the court’s

determination of mootness de novo. See Verho-

even v. Brunswick Sch. Comm., 1999 WL 721698,

*4 (Ist Cir. Sept. 21, 1999).

“Simply stated, a case is moot when the issues

presented are no longer ‘live’ or the parties lack a

legally cognizable interest in the outcome.” Powell

v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944,

23 L.Ed.2d 491 (1969). The Supreme Court has

described mootness as “’the doctrine of standing

set in a time frame: The requisite personal inter-

est that must exist at the commencement of the

litigation (standing) must continue through its ex-

istence (mootness).” United States Parole Comm’n

v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202,

63 L.Ed.2d 479 (1980) (quoting Henry P. Mona-

ghan, “Constitutional Adjudication: The Who and

When,” 82 Yale L.J. 1353, 1384 (1973)).

We conclude that the validity of the 1987 and

1994 ordinances are moot issues because even if

we were to find the provisions unconstitutional,

D.H.L. would not be entitled to any relief. First,

D.H.L. cannot allege damages from the applica-

tion of the 1987 or the 1994 ordinance because

neither was ever enforced against D.H.L. Al-

though D.H.L. was denied a permit under the au-

thority of the 1994 ordinance, it continued to en-

gage in the prohibited conduct on a daily basis

without repercussion. Although a claim for dam-

ages from a no longer effective ordinance might in

other circumstances save the issue of the ordi-

nance’s lawfulness from a determination of moot-

ness, D.H.L. can make no such claim here. See

City of Richmond v. J.A. Croson Co., 488 U.S. 469,

478 n.1, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989)

(plaintiffs claims not moot even though chal-

lenged ordinance repealed because town refused

to grant contracts to plaintiff while ordinance was

in effect).} .

' Although D.H.L. initially requested monetary damages

from the board of selectmen, it withdrew that claim in light

Pate. Mes

Second, we are without power to grant injunc-

tive and declaratory relief because the 1987 and

1994 ordinances no longer exist. In Diffenderfer v.

Central Baptist Church, Inc., 404 U.S. 412, 92

S.Ct. 574, 30 L.Ed.2d 567 (1972), the Supreme

Court emphasized that it had to “review the

judgment of the district court in light of [state]

law as it now stands, not as it stood when the

judgment below was entered.” See id. at 414-15,

92 S.Ct. 574 (holding that when the only relief

sought was a declaratory judgment that a statute

was unconstitutional, but the statute was re-

pealed pending appeal, the case was moot). The

Court has also stated that when a challenged fed-

eral statute is amended after review by courts of

appeals, the issues presented to the Supreme

Court on appeal are rendered moot. See United

States Dep’t of Justice v. Provenzano, 469 U.S. 14,

15, 105 S.Ct. 413, 83 L.Ed.2d 242 (1984); see

also Burke v. Barnes, 479 U.S. 361, 363, 107

S.Ct. 734, 93 L.Ed.2d 732 (1987) (finding that

case was moot when bill at issue expired after the

court of appeals entered judgment and stating

that “it is not enough that there may have been a

live case or controversy when the case was de-

cided by the court whose judgment we are review-

ing”); United States Dep’t of the Treasury uv.

Galioto, +77 U.S. 556, 559-60, 106 S.Ct. 2683, 91

L.Ed.2d 459 (1986) (concluding that when statute

of Bogan v. Scott- Harris, 523 U.S. 44, 118 S. Ct. 966, 970,

140 L.Ed.2d 79 (1998) (local legislators and non-legislative

Officials performing legislative functions are entitled to

immunity for their official acts).

10a

was altered such that issues decided by court be-

low were moot, the Court must set aside the lower

court’s decision).

[5, 6] D.H.L. attempts to bypass this precedent

through reliance on an exception to the mootness

doctrine for situations in which the defendant

voluntarily ceases the challenged practice. See

City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S.

283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982)

(holding that when an ordinance’s revision be-

came effective while the case was pending in the

court of appeals, the Court retained jurisdiction

over the question of the constitutionality of the

prior ordinance). This exception applies, however,

only when there is a reasonable expectation that

the challenged conduct will be repeated following

dismissal of the case. See id. at 289 &n.11, 102

S.Ct. 1070 {city had announced an intention to

return to its original conduct after the litigation

was concluded); Northeastern Florida Chapter of

the Associated General Contractors v. Jacksonville,

508 U.S. 656, 662 & n.3, 113 S.Ct. 2297, 124

L.Ed.2d 586 (1993) (challenged statute had not

been sufficiently altered to allow a conclusion that

the conduct would not be repeated). In this case,

the ordinance has been recast apparently for the

purpose of making it more likely to overcome con-

stitutional challenge and it has remained un-

changed since 1996. With no indication of a con-

trary intent, it would be unreasonable to presume

that the Town would return to its prior zoning

plans after the conclusion of this litigation. Thus,

aaa

a. tere aeaeese. ao,

lla

the voluntary-cessation exception to the mootness

‘doctrine is inapplicable here. ©

[7] D.H.L. makes an additional argument that

the issue is not moot, relying on a stipulation be-

tween the parties that if D.H.L. had been issued

an adult entertainment license in 1994, the li-

cense would have been renewed automatically in

subsequent years regardless of alterations to the

zoning code. The critical flaw in D.H.L.’s analysis

is that even if we were to hold that the 1994 zone

had been unconstitutional, such a ruling does not

necessarily lead to the conclusion that D.HL.L.

would have been granted a license in 1994. As

D.H.L. appeared to acknowledge to the trial court,

the Town would have retained the ability, after a

finding of unconstitutionality, to review D.H.L.’s

request and deny it for another, legitimate reason.

An alternative scenario is that the Town might

have created a constitutional adult entertainment

zone before reviewing D.H.L.’s application for a

license and could then lawfully have refused it the

license.?

It is not for this court to speculate as to what

might have happened had the Town’s statute

been struck down before it was superseded by the

1996 zoning ordinance now in effect. Thus, the

2 D.H.L. relies on two cases, both of which are distin-

guishable because the challenged ordinance remained in

effect until the time of the court decision and was the basis

for the court’s grant of injunctive relief. See Dia v. City of

Toledo, 937 F.Supp. 673, 679 (N.D.Ohio 1996); Janra En-

terpnses, Inc. v. City of Reno, 818 F.Supp. 1361, 1366

(D.Nev. 1993).

12a

stipulation between D.H.L. and the Town, that if

D.H.L. had received a license in 1994 it would

have received a license every year thereafter, does

not entitle D.H.L. to a license in the first instance.

III. Constitutionality of the

1996 Zoning Ordinance

[8] We thus turn to the constitutionality of

Tyngsborough’s 1996 zoning ordinance, currently

in effect. In reviewing an appeal from an adverse

ruling after a bench trial, we review the district

court’s legal determinations de novo, “according a

significant amount of deference to the court’s fac-

tual determinations and to most of its resolutions

of mixed fact/law issues.” Globe Newspaper Co. v.

Beacon Hill Architectural Comm’n, 100 F.3d 175,

181 (lst Cir.1996). Tyngsborough’s 1996 zoning

ordinance defines “adult entertainment estab-

lishments” as including those providing live enter-

tainment “which consists of entertainers engaging

in Sexual Conduct’ or ‘Nudity.” See Tyngsbor-

ough Zoning By-Laws § 2.11.46. The ordinance

restricts the location of such businesses to the B-

4 zone. See id. §§ 2.10.00, 2.11.00. It also author-

izes the board of selectmen or the planning board

to grant special use permits for adult entertain-

ment establishments. See id. § 1.16.00.3

3 We note that testimony was given and the parties have

stipulated to the fact that the zoning ordinance requires

that adult entertainment businesses wishing to operate in

the B-4 zone obtain a special permit from the board of se-

lectmen and undergo a site review. See Tyngsborough Zon-

ing By-Laws § 2.11.30 Table of Permitted Uses. Such a

method of zoning combined with licensing may constitute a

13a

[9] Generally, “[t]he power of local governments

to zone and control land use is undoubtedly

broad and its proper exercise is an essential as-

pect of achieving a satisfactory quality of life in

both urban and rural communities.” Schad v.

Mount Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176,

68 L.Ed.2d 671 (1981). Nevertheless, a town’s

zoning power “must be exercised within constitu-

tional limits.” Moore v. East Cleveland, 431 U.S.

494, 514, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977)

(Stevens, J., concurring). As we have articulated:

“Freedom of speech is among the most precious of

our constitutional rights. Thus, courts have long

recognized that, when governmental action places

speech in special jeopardy, special protections

prior restraint on speech, generally subjected to a substan-

tially stricter review for constitutionality than a time, place,

and manner restriction. See, e.g., FW/PBS, Inc. v. City of

Dallas, 493 U.S. 215, 225, 110 S.Ct. 596, 107 L.Ed.2d 603

(199) (evaluating licensing scheme for sexually oriented

businesses as prior restraint); 11126 Baltimore Boulevard,

Inc. v. Prince George’s County, Maryland, 58 F.3d 988, 995

(4 Cir.1995) (“Following the decision in Renton, the Court

has made clear that otherwise valid content-neutral time,

place, and manner restrictions that require governmental

permission prior to engaging in protected speech must be

analyzed as prior restraints and are unconstitutional if they

do not limit the discretion of the decision maker and pro-

vide for . . . procedural safeguards.” (citing FW/PBS, 493

U.S. at 227-28, 110 S.Ct. 596) (footnote omitted)). Because

D.H.L.’s permit was denied solely on the basis that it was

not located in the B-4 zone, and D.H.L. does not seek review

of the ordinance as a prior restraint on its speech, we

evaluate the statute as a time, place, and manner restric-

tion. We caution, however, that if the permitting process

were not to incorporate adequate safeguards, it would not

pass muster as a constitutional prior restraint.

l4a

must apply.” National Amusements, Inc. v. Town

of Dedham, 43 F.3d 731, 736 (Ist Cir.1995).

A. Appropnate Level of Scrutiny

[10] We begin our analysis by noting that the

activity which is being restricted, nude dancing, is

presumably constitutionally protected speech.

The Supreme Court has described nude dancing

as “expressive conduct within the outer parame-

ters of the First Amendment, though .. . only

marginally so.” Barnes v. Glen Theatre, Inc., 501

U.S. 560, 566, 111 S.Ct. 2456, 115 L.Ed.2d 504

(1991) (plurality opinion).

[11-13] We next determine what level of scru-

tiny we should apply to the restriction on this

constitutionally protected activity, which corre-

lates directly to whether the ordinance is content-

based or content-neutral. An ordinance is not

content-neutral if the government has adopted it

“because of disagreement with the message it

conveys.” National Amusements, 43 F.3d at 737

(quoting Ward v. Rock Against Racism, 491 U.S.

781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661

(1989)). Further, a “regulation that serves pur-

poses unrelated to the content of expression is

deemed neutral, even if it has an incidental effect

on some speakers or messages but not others.”

Ward, 491 U.S. at 791, 109 S.Ct. 2746; see also

Tollis Inc. v. San Bernadino County, 827 F.2d

1329, 1332 (9th Cir.1987) (“[The content-neutrai]

requirement is met if the involved ordinance is

‘aimed to control secondary effects resulting from

15a

the protected expression’ rather than at inhibiting

the protected expression itself.” (quoting Interna-

tional Food & Beverage Sys. v. City of Fort

Lauderdale, 794 F.2d 1520, 1525 (llth Cir.

1986))).

In National Amusements, an ordinance that

prohibited the showing of motion pictures be-

tween 1:00 a.m. and 6:00 a.m. was deemed to be

content-neutral because it did not reference the

substance of the speech it regulated and did not

appear to have arisen as a means of suppressing

a particular message. See National Amusements,

43 F.3d at 737-39. The Court in Renton grappled

with an ordinance that prohibited adult motion

picture theaters from being located within 1000

feet of any residential zone, family dwelling,

church, park, or school, and concluded that the

ordinance, although it treated theaters that spe-

cialized in adult films differently from other thea-

ters, was content-neutral because it was aimed

not at the content of the films but rather at the

secondary effects of such theaters on the sur-

rounding community. See Renton, 475 U.S. at 47-

49, 106 S.Ct. 925 (concluding that “at least with

respect to businesses that purvey sexually explicit

materials, zoning ordinances designed to combat

the undesirable secondary effects of such busi-

nesses are to be reviewed under the standard ap-

plicable to ‘content-neutral’ time, place, and

manner restrictions” (footnotes omitted)).

[14] Thus, it is clear that an ordinance such as

Tyngsborough’s, if aimed at combatting the sec-

16a

ondary effects of nude dancing rather than the

content of the message expressed by nude danc-

ing, is content-neutral. In determining whether

the Tyngsborough ordinance is aimed at secon-

dary effects, we note that a town is “entitled to

rely on the experiences” of surrounding cities and

towns: “The First Amendment does not require a

city, before enacting such an ordinance, to con-

duct new studies or produce evidence independ-

ent of that already generated by other cities, so

long as whatever evidence the city relies upon is

reasonably believed to be relevant to the problem

that the city addresses.” Id. at 51-52, 106 S.Ct.

925 (holding that ordinance was validly designed

to serve the substantial government interest of

preserving the quality of urban life). Moreover, the

Supreme Court has noted that a municipality’s

interest in protecting and preserving quality of life

“must be accorded high respect.” See Young uv.

American Mini Theatres, Inc., 427 U.S. 50, 71, 96

S.Ct. 2440, 49 L.Ed.2d 310 (1976) (plurality opin-

ion); see also Barnes, 501 U.S. at 583, 111 S.Ct.

2456 (Souter, J., concurring) (stating that the in-

terest of government in “preventing prostitution,

sexual assault, and other criminal activity” is

“plainly a substantial one”).

D.H.L. challenges Tyngsborough’s assurance

that the ordinance was enacted to combat secon-

dary effects and alleges that it did not rely on any

“studies” of secondary effects. The district court,

however, found that the record showed a “rea-

soned basis for evaluation of potential secondary

effects as sufficiently likely to occur and to involve

17a

Significant consequences for community welfare

to justify the challenged zoning ordinance,” even

though such evidence did not appear explicitly in

town meeting minutes. Specifically, the court

credited the testimony of John O’Gorman, chair-

man of the board of selectmen, regarding his in-

struction to the town administrator and the spe-

cial town counsel, prior to the enactment of the

1994 zoning ordinance, to gather information

about how other localities addressed adult enter-

tainment and secondary effects issues. O’Gorman

testified:

I as the chairman of the Board of Selectmen

instructed the town administrator along

with special counsel to research all that

they could with regard to adult entertain-

ment, how it could be controlled, how it

could be zoned, what other communities

were doing, what other jurisdictions were

doing with regard to adult entertainment.

. . . [We did this to] learn as much as we

could about adult entertainment and how it

could be controlled, how it could be zoned

within our community.

O’Gorman also testified that at the time of the

1994 zoning changes, the Town was aware that

the two clubs in town that allegedly offered adult

entertainment generated more police calls than

other clubs. He stated that the public reaction to

a proliferation of unlicensed adult entertainment

was “tremendous” and many residents expressed

great concern.

18a

The district court also noted that a document,

prepared for the 1994 special town meeting, evi-

denced public discussion prior to the ordinance’s

enactment? and that testimony substantiated the

Town’s claim that it relied on its impression, sup-

ported to at least some extent, that adult enter-

tainment establishments placed greater demands

on police because more calls were generated from

those establishments. See National Amusements,

43 F.3d at 742 (noting that legislatures may rely

on evidence of past problems with a particular ac-

tivity and need not conduct an investigation to

* The document stated in part:

The issue of adult entertainment, as I have stated before,

is extremely emotional and complex, one which requires a

great deal of thoughtful, objective consideration. Our office

has been grappling with this issue for only three (3) short

weeks. During this period we have had to identify and un-

derstand the rights of the community, the nghts afforded to

operators of adult entertainment establishments and the

avenues available to the community for regulating and con-

trolling adult entertainment establishments. Additionally we

have been attempting to provide proper assistance and

guidance to the citizen[{s] of Tyngsborough who have sought

answers to very tough questions. The [Town’s] Executive

Administrator has devoted nearly all of his time over the

past (2) weeks in pulling together information from other

communities on adult entertainment. We have come to find

out through this research that there is no quick or uniform

solution to the issues before us.

. . . . By law, we must be impartial and objective.....

We will, we must, rely heavily on [advice] of our hired coun-

sel on these legal matters. Let me say again, though, that

we clearly understand your feelings on these matters. To-

gether, as a community, [let’s}] work within the legal system

to resolve these difficult issues.

19a

corroborate each incident). At the special town

meeting, an open forum was held to educate the

public on methods of zoning adult entertainment

businesses and to allow citizens to express their

concerns about the secondary effects of these

businesses. We therefore conclude that the dis-

trict court did not err in finding that ordinance

was designed to combat secondary effects and is

content-neutral. We also note that although sec-

ondary effects were more pointedly considered by

the Town when enacting its 1994 zoning ordi-

nance, the discussions that took place at that

time can certainly be considered to pertain to the

justifications of the 1996 modification of the zone.

B. The Application of the Renton Test

[15] Because the ordinance does not create an

outright ban on adult entertainment and was en-

acted to address the secondary effects of adult en-

tertainment rather than its content, it is a time,

place, and manner restriction. See, e.g., Tollis,

827 F.2d at 1332 (“Like the ordinance involved in

Renton, the ordinance before us is obviously a

time, place, and manner regulation, as it does not

ban adult theaters altogether.”). As the Supreme

Court explained in Renton, the intermediate scru-

tiny test for determining the constitutionality of a

content-neutral time, place, and manner zoning

restriction on adult entertainment is whether the

ordinance is narrowly tailored “to serve a sub-

stantial government interest and allows for rea-

sonable alternative avenues of communication.”

See Renton, 475 U.S. at 50, 106 S.Ct. 925 (citing

20a

Clark v. Community for Creative Non-Violence, 468 —

U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221

(1984)).

1. Narrowly Tailored to Serve a Sub-

stantial Government Interest

[16] We have already determined that Tyngs-

borough considered secondary effects when it

created the B-4 zone. We have also explained that

a municipality’s concern about secondary effects

is a substantial government interest. Finally, to

determine whether the ordinance fully satisfies

the first prong of the Renton test, we must deter-

mine whether Tyngsborough’s ordinance is suffi-

ciently narrowly tailored to meet its interest.

[17] A content-neutral time, place, and manner

restriction is narrowly tailored if it “promotes a

substantial government interest that would be

achieved less effectively absent the regulation.”

Ward, 491 U.S. at 799, 109 S.Ct. 2746 (quoting

United States v. Albertini, 472 U.S. 675, 689, 105

S.Ct. 2897, 86 L.Ed.2d 536 (1985)). In Renton,

the Court held that the ordinance was narrowly

tailored because it “affect[ed] only that category of

theaters shown to produce the unwanted secon-

dary effects.” Renton, 475 U.S. at 52, 106 S.Ct.

925. In the instant case, Tyngsborough’s ordi-

nance, which applies directly to adult entertain-

ment providers, does not reach other forms of en-

tertainment. Further, Tyngsborough’s use of a

zoning mechanism to restrict such an activity

confines the impact of the restriction to govern-

2la

ance of the location of such activity and does not

impact other aspects of the activity. Thus, the or-

dinance is sufficiently narrowly tailored to ad-

dress the Town’s substantial interest in combat-

ting the secondary effects of adult entertainment.

2. Reasonable Alternative Avenues of

Communication

Moving to the second prong of the Renton test,

we evaluate whether Tyngsborough’s ordinance

allows reasonable alternative methods of commu-

nication. The essence of this question is not

“whether a degree of curtailment” of speech ex-

ists, but rather “whether the remaining commu-

nicative avenues are adequate.” National Amuse-

ments, 43 F.3d at 745 (holding that the

limitations created by an ordinance were not un-

constitutional because the challenger’s evidence

“does not call into legitimate question the ade-

quacy of the alternate route of communication’).

D.H.L. alleges that the Tyngsborough ordinance

does not provide it with a reasonable opportunity

to open and operate, relying heavily on the fact

that only .09867% of the land within the town’s

borders has been designated as the B-4 zone.

D.H.L. contends that even if the owner of the B-4

lots were willing to sell the land to an adult enter-

tainment establishment, which D.H.L. contends

the owner is not willing to do, such a small per-

centage of land does not constitute a reasonable

opportunity.

22a

D.H.L. misses the mark, however, in emphasiz-

ing this single factor. As the district court recog-

nized, determining whether Tyngsborough’s ordi-

nance provides a reasonable opportunity for adult

business to open and operate requires an evalua-

tion of multiple factors. See, e.g., 3570 East Foot-

hill Blvd., Inc. v. City of Pasadena, 912 F. Supp.

1257, 1265 (C.D.Cal.1995) (“[C]ourts have looked

to a variety of relevant factors, including the per-

centage of land theoretically available to adult

businesses, the number of sites potentially avail-

able in relation to the population of the city, the

number of sites compared with the existing num-

ber of adult businesses, or the number of busi-

nesses desiring to offer adult entertainment.”).

Thus, the fact that Tyngsborough allocated only

10.4 acres of its 10,540 acres to the B-4 zone is

relevant but not dispositive. As the Court of Ap-

peals for the Fifth Circuit has held, “[t]here is no

requirement in Renton . . . or elsewhere that a

specific proportion of a municipality be open for

adult businesses or that a certain number of sites

be available.” Lakeland Lounge v. City of Jackson,

Mississippi, 973 F.2d 1255, 1260 (Sth Cir.1992);

see also North Ave. Novelties, Inc. v. City of Chi-

cago, 88 F.3d 441, 445 (7th Cir.1996) (stating

that “acreage, standing alone, is largely irrele-

vant”).

Because there is no single dispositive evalua-

tive consideration, an analysis should encompass

a variety of factors, including the percentage of

acreage within the zone compared to the acreage

available to commercial enterprises in general. As

23a

the district court noted, “Tyngsborough is a rural

town in which the total acreage in the only com-

mercial district that could properly be identified

as the principal business district occupies very

little of Tyngsborough’s total acreage.”

The number of sites available to adult enter-

tainment businesses is also relevant. See Interna-

tional Eateries of America, Inc. v. Broward County,

Florida, 941 F.2d 1157, 1165 (11th Cir.1991).

Reasonable alternative avenues for communica-

tion have been found to exist when six adult

businesses were operating in a town and more

than six sites existed in the zoned area. See Lake-

land Lounge, 973 F.2d at 1260 (“As a matter of

arithmetic, . . . there are more ‘reasonable’ sites

available than businesses with demands for them

In this case, the district court held that all of

the five lots in the B-4 zone were potentially

available, crediting the testimony of Walter Erik-

sen, owner of the land within the B-4 zone, that

although he had delayed placing the lots on the

market in hopes that they would increase in

value, they were now available to any purchaser

for the right price.5 Despite D.H.L.’s protestations

5 We note that we have viewed Eriksen’s expression of

distaste for adult entertainment establishments at the 1994

town meeting. We disagree with D.H.L., however, that this

makes the lots unavailable to it. There is no indication in

the record that Eriksen will attempt to unilaterally repeal

the ordinance by refusing to sell to adult entertainment es-

tablishments, especially in light of the funds that he has

committed to the development of the commercial park and

his willingnéss to sell to any purchaser for the right price.

eT,

24a

that the cost of development would be too high,

Renton instructs that D.H.L.’s protection extends

only so far as to put adult entertainment provid-

ers on an equal footing with other purchasers and

does not require that they be able to obtain sites

“at bargain prices.” See Renton, 475 U.S. at 54,

106 S.Ct. 925 (“That respondents must fend for

themselves in a real estate market, on an equal

footing with other prospective purchasers and

lessees, does not give rise to a First Amendment

violation.”).©

Because we agree that all of the lots in the B-4

zone are potentially available and other relevant

factors do not negate the significance of this

availability, we hold that Tyngsborough ordinance

provides the constitutionally mandated “reason-

able opportunity to open and operate.” We note

that one other establishment, the “Blue Moon,”

has lawfully offered adult entertainment in

Tyngsborough since before the enactment of the

1987 zoning ordinance and thus has a right to

continue operating despite the fact that it is not

located in the B-4 zone. Although the Blue Moon

operates on a grandfather permit, even if it were

to be required to move into the B-4 zone, which it

is not, that would leave five sites for two busi-

nesses.

6 D.H.L. contends that the fact that restrictive covenants

that would have prohibited adult entertainment were con-

sidered by the landowner also indicates that the zoned lots

are not available. As the district court noted, the restrictive

covenants were not imposed, and if they had been, the case

would be entirely different.

25a

Moreover, each of the five lots, as stipulated by

the parties, is suitable for development and has

gas, water, and electrical lines available. The sites

are accessible to the public as they are located in

a commercial park with newly developed road-

ways. Although the parties have not supplied us

with data about the number of businesses that

would like to offer adult entertainment, we have

not been shown that any business except D.H.L.

has been denied an adult entertainment permit

since the enactment of the 1996 zone. For these

reasons, we hold that Tyngsborough’s ordinance

provides D.H.L., and other businesses wishing to

offer adult entertainment, with a reasonable al-

ternative avenue for communicating their consti-

tutionally protected speech.

IV. Certification

On a final note, we address very briefly D.H.L.’s

argument that the district court erred by declin-

ing to certify state law questions to state court

prior to determining the federal constitutional is-

sues. Because we are not convinced that state law

provides an independent and sufficient basis for

deciding the case, we conclude that the district

court did not err by remanding the case to state

court for determination of D.H.L.’s remaining

State law claims after its adjudication of the fed-

eral issues.

In conclusion, because we hold that the consti-

tutionality of the 1987 and 1994 Tyngsborough

zoning ordinances is moot and the existing ordi-

26a

nance is constitutional, the judgment of the dis-

trict court is affirmed.

27a

APPENDIX B

D.H.L. ASSOCIATES, INC., Plaintiff,

Vv.

John O’GORMAN, Robert Wallace, Warren All-

grove, Jr., and Eileen Farrell, Individu-

ally and in their Capacity as the Tyngs-

borough Board of Selectmen, and as the

Licensing Board for the Town of Tyngs-

borough, and the Town of Tyngsborough,

Defendants.

No. CIV. A. 94-12328-REK.

United States District Court,

D. Massachusetts.

May 7, 1998.

Restaurant owner challenged municipal ordi-

nance regulating adult entertainment, seeking

declaratory relief on federal and state constitu-

tional grounds. Defendants, the town and town

officials, rermoved case to federal court. The Dis-

trict Court, Keeton, J., held that: (1) secondary

effects were properly considered when enacting

ordinance; (2) ordinance provided reasonable op-

portunity to open and operate protected adult en-

tertainment, and, therefore, did not violate Fed-

eral Constitution; (3) declaratory judgment was

not warranted; and (4) district court would not

28a

exercise supplemental jurisdiction over state law

claims.

So ordered.

Thomas Lesser, William Newman, Lesser,

Newman, Souweine & Nasser, Northampton, MA,

for D.H.L. Associates, Inc., Plaintiffs.

Joyce F. Frank, Jonathon M. Silverstein, Rich-

ard P. Bowen, Kopelman and Paige, P.C., Boston,

MA, for John O’Gorman, Robert Wallace, Warren

Allgrove, Eileen Farrell, Tyngsborough, the City

of, Tyngsborough Board of Selectmen, Licensing

Board for the Town of Selectmen, Defenaarits.

Opinion

KEETON, District Judge.

A key characteristic of this case is that it in-

volves interests of parties to the case that appli-

cable law recognizes as interests deserving special

protection.

Plaintiffs invoke the law’s special protections

for interests in freedom of expression and asso-

ciation, for which the applicable legal pr~ ctions

exist not only in the First Amendment o. the Con-

stitution and laws of the United States but also in

state law that in some instances provides protec-

tions beyond those arising under the First

Amendment, federal statutes, and federal-law

precedents. Defendants invoke the law’s special

2 eV

29a

protections for interests of a local community and

its citizens in (among other things identified in

later Parts of this Opinion) community and citizen

choices about how, when, and in what circum-

stances and ways children receive education

about human sexuality, sexual orientation, and

explicitly sexual practices in places that are open

to the public.

This opinion begins with a statement of back-

ground facts, mostly undisputed, in Part I. Part II

identifies commercial and economic interests and

issues arising from various ways in which they

may be relevant to the federal-law claims in this

case. Part III begins with a brief statement of

conclusions of law that I have reached with re-

spect to authoritative guidelines for decision in a

case such as this. Immediately following that

brief statement of conclusions is an explanation

of the analysis and reasoning that have led me to

conclusions about the appropriate legal tests to

be applied.

Part IV concerns plaintiffs claim for declaratory

judgment and issues of federalism that bear upon

allocating authority among federal courts, on the

one hand, and state and local institutions and

agencies, on the other hand. These issues may

have to be considered if plaintiffs do not show a

preemptive entitlement to the relief they claim

under the Constitution and laws of the United

States.

30a

The remaining Parts of the Opinion treat other

issues that must be resolved to reach an outcome

in-this case, and other issues that might be deci-

sive should a higher court take a different view of

one or more of the matters I have thought deci-

Sive.

I. Background

The Town of Tyngsborough is located 40 miles

from Boston on the border of New Hampshire.

Tyngsborough’s population is approximately

9,500 people. The Board of Selectmen sets town

policy, and also acts as the town licensing author-

ity with respect to alcoholic beverage (“pouring”)

and entertainment licenses.

In 1987, the Town of Tyngsborough, by Town

Meeting, adopted a B-4 zone that the zoning ordi-

nance declared would allow adult entertainment.

The official zoning map (plaintiffs Exhibit No. 2) in

effect at that time, however, and in effect until

1994, did not contain any parcel zoned B-4. As

John O’Gorman, Chairman of the Board of Se-

lectmen, testified, the 1987 B-4 zone was a

“phantom zone.”

In July, 1992, DHL Associates, Inc. applied for

and the Board of Selectmen issued alcoholic bev-

erage and live entertainment licences for the res-

taurant then-called “Bogie's” located at 350 Mid-

dlesex Road in Tyngsborough. In late January,

1994, DHL advertised the fact that it would be

presenting nude dancing beginning on February

Sla

10, 1994, at the 350 Middlesex Road location.

On February 24, 1994, the Town of Tyngsborough

notified DHL that offering nude dancing was in

violation of its entertainment licence. Asa result,

the Town suspended DHL’s alcoholic beverage li-

cense for a two-day period. Although DHL has

continued to offer nude dancing entertainment,

the Town has not taken any further action

against DHL, according to the testimony of John

O’Gorman, because of this pending litigation.

DHL was not the only establishment that began

offering live nude dancing entertainment in

Tyngsborough in February, 1994. The advertise-

ment of the prospective nude dancing entertain-

ment caused concerned citizens to call their Se-

lectmen. In response, the Selectmen asked the

Town Administrator to research the issue of adult

entertainment, and the Board held an open Town

Meeting on February 14, 1994, to discuss adult

entertainment in Tyngsborough. Seventy-five citi-

zens attended the February 14, 1994 open Town

Meeting.

Also at the February 14, 1994 Town Meeting,

the Selectmen were presented with a Petition for a

Special Town Meeting (plaintiffs Exhibit No. 28)

to consider adopting Mass. Gen. L. ch. 138, § 12B

prohibiting establishments that hold alcoholic

beverage licenses from offering any form of nude

entertainment. The Petition contained the signa-

tures of over 650 registered Tyngsborough voters.

So long as a Petition contains more than 200

32a

such signatures, the Selectmen are obligated to

hold a Special Town Meeting.

Once the Town Administrator verified that the

required number of qualified signatures appeared

on the petition, Articles and a Warrant for.a Town

Meeting were prepared. In this instance, at a

regularly scheduled meeting of the Board of Se-

lectmen on March 7, 1994, the Selectmen signed

the Warrant. At that same March 7, 1994 meet-

ing, DHL applied to amend its entertainment li-

cense in order to offer nude dancing entertain-

ment at the 350 Middlesex Road location then

(and now) called “Matthew’s,” though some of its

patrons still called it “Bogie’s.” The Board of Se-

lectmen delayed acting on the license application.

On March 28, 1994, the Board of Selectmen,

acting as the licensing authority, held a hearing

on DHL’s application to amend its license. The

Selectmen delayed decision rather than voting on

the application that night.

The next evening, March 29, 1994, the Special

Town Meeting was conducted, at which four Arti-

cles relating to adult entertainment were pre-

sented to the voters. One of those Articles con-

cerned re-zoning nine parcels, comprising 27

acres, as the B-4 zone to allow for adult enter-

tainment. Voter opposition to the nine parcel

proposal was apparent. Walter Eriksen, a private

citizen and real estate developer, proposed rezon-

ing the closed town landfill as the B-4 zone. John

O’Gorman moved to amend the Article so that

33a

only two parcels, a 4.41 and a 3.47 acre tract,

would be placed in the B-4 zone. The Town Meet-

ing unanimously adopted the amended Article

and the other three Articles in their original form.

Although the tracts re-zoned B-4 were located

in an industrial zone, the tracts were in close

proximity to residences and to the Notre Dame

School. The 4.41 acre lot, at the time of the re-

zoning, and today, is occupied by a commercial

self-storage business called Dover Storage.

After the Special Town Meeting and after a sec-

ond hearing on DHL’s application to amend its

entertainment license, the Selectmen denied

DHL’s application, and the reason given, albeit

belatedly, was that DHL was not located in the B-

4 zone. In December of each year since, the

Board of Selectmen have granted DHL an enter-

tainment license that.does not allow nude danc-

ing.

On May 21, 1996, the Town of Tyngsborough,

by a Town Meeting, eliminated the 1994 B-4 zone

and established a new, B-4 zone on Cummings

Road. The 1996 B-4 zone was located on prop-

_ erty owned or then under contract for sale to Ap-

plewood Construction, which in turn is owned, by

Walter Eriksen. Applewood Construction is de-

veloping an industrial park that will include five

lots zoned B-4.

In 1994, seeking relief in a judicial forum, DHL

Associates, Inc. filed a case in Middlesex Superior

34a

Court. The original complaint sought declaratory

relief on federal and state constitutional grounds,

as well as damages against the Board of Select-

men. The defendants in the case removed the

case to this court (Docket No. 1, filed November

22, 1994). Asa result of the decision in Bogan v.

Scott-Harris, __ U.S. __, 118 S.Ct. 966, ___

L.Ed.2d___— (1998), plaintiff's claims, with respect

to the legislative activities of the Board of Select-

men became unsupportable. Plaintiff's remaining

claims, founded on constitutional grounds, were

tried before this court in a non-jury trial on April

29, 1998 through May 1, 1998.

II. Commercial and Economic Interests and

Their Relevance

The plaintiff is a for-profit corporation that has

operated a restaurant at 350 Middlesex Road in

Tyngsborough under one name or another from

about 1992 to the present. Through most of the

years it has had a “pouring” license and an enter-

tainment license. DHL’s permits do not authorize

adult entertainment at 350 Middlesex Road, but

in fact the Town has not attempted to stop DHL’s

offering adult entertainment at that site in disre-

gard of licensing and zoning requirements. In

addition, other entities in Tyngsborough are pro-

viding adult entertainment, either with formal au-

thorization or in violation of the licencing terms

that the Town has not attempted to enforce while

this case has been pending.

35a

Because of plaintiff's commercial interest, if a

distinction between commercial and noncommer-

cial expression made a difference in outcome, this

case should be treated as one involving a mix of

municipal impediments to commercial speech, on

one hand, and restraints on the interests of plain-

tiff and others in non-commercial expression and

freedom of association, on the other hand.

Ordinarily a need exists for invoking the dis-

tinction between commercial and non-commercial

expression only if the claims at issue would merit

relief under the legal tests applicable to non-

commercial expression. If claims would not merit

relief under those legal tests, a determination that

in some respects the claims were for protection of

commercial rather than non-commercial forms. of

expression and association would weaken rather

than strengthen the arguments for relief. In the

circumstances of this case, however, commercial

aspects may be significant in ways other than

their bearing on protection for commercial

speech. Comparisons among total economic con-

sequences flowing from alternative proposals for

accommodating clashing specially-valued, inter-

ests, as well as comparisons between economic

impacts on the plaintiff and economic impacts on

the community, may be factors to be considered

in applying a totality-of-the-circumstances legal

test (or a multifactor test short of a totality-of-the-

circumstances test) for determining whether a

federal-law claim for injunction or declaratory re-

lief is meritorious.

36a

III. Authoritative Guidelines for Decision

A. Summary of Conclusions About Guide-

lines

When specially-valued interests are present on

only one side of a case in court, the law ordinarily

treats an asserted need for protection of those

specially-valued interests, if supported by proof,

as outweighing opposing interests that the law

does not recognize as specially-valued. If, how-

ever, an asserted need for protection of opposing

specially-valued interests is also supported by

proof, then neither set of interests can be treated

as entirely outweighing the other except by mak-

ing a decision that disregards or denies protection

for some interests that the law ordinarily recog-

nizes as specially-valued.

[1] After full consideration of all the sources of

authoritative guidance for decision of which this

court is aware, including all the state and federal

constitutional, statutory, and decisional sources

cited by the parties in their submissions to the

court in this case, I conclude that in a case in

which evidence supports assertions of specially-

valued interests on both of the opposing sides, a

court must aim for a resolution of the controversy

that accommodates the clashing interests in an

equitable and just way, if it is feasible to do so,

rather than holding that one set of interests is

more highly valued than the other and requires

that the other set be sacrificed under a legally-

37a

imposed bright-line rule of priority among spe-

cially-valued interests.

[2] A method of decision compatible with this

aim is a two-part, factors-weighing method under

which the court (1) considers, as a question to be

answered, whether each among plausible alterna-

tive outcomes is a fair and appropriate resolution

within the limits defined by law, and (2) consid-

ers, as factors to be weighed and evaluated, bear-

ing upon the answer to that question, each asser-

tion about one or the other of the clashing sets of

interests that is supported by evidence and might

plausibly be asserted to weigh significantly more

favorably to the set of specially-valued interests

on one side than to the set of specially-valued in-

terests on the other side.

peer Ftv Sion Oe nel i ADM Gey BP ED AOAB I TB SOC.

B. The Renton Standard and Application

I. Introduction

[3] Under Renton v. Playtime Theatres, Inc.,

when a court is considering a constitutional chal-

lenge to a municipal zoning ordinance regulating

adult entertainment, the appropriate inquiry is

“whether the . . . ordinance is designed to serve a

substantial governmental interest and allows for

reasonable alternative avenues of communica-

tion.” 475 U.S, 41, 50, 106 S.Ct. 925, 89 L.Ed.2d

29 (1986). This statement of the ultimate ques-

tion to be answered is in its nature one that re-

quires the deciding authority, whoever that may

be (e.g., municipal or agency official, or jury or

38a

judge, or some combination of these), to apply a

standard of judgment rather than a set of bright-

line rules. What are the “factors” to be considered

in applying that standard? Is the standard a to-

tality-of-the-circumstances test or something very

close to it?

2. Secondary Effects

[4] The community concern about “secondary

effects,” as that concept applies in this case, is

not concern about the dissemination of offensive

expression itself, but rather concern about dete-

rioration of an area within the town, as evaluated

from a community perspective that takes into ac-

count adult businesses in the area, and the like-

lihood of an increase in crime and other negative

effects associated with the deterioration. See

Young v. Amencan Mini Theatres, 427 U.S. 50, 71,

n. 34, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). The

town of Renton enacted the challenged zoning

ordinance to prevent the secondary effects caused

by adult theaters. Renton, 475 U.S. at 43, 106

S.Ct. 925. The Court of Appeals for the Ninth

Circuit found the Renton ordinance unconstitu-

tional because Renton had enacted the ordinance

without the benefit of studies of secondary effects

relating to the town of Renton itself. Instead, the

town had relied on studies produced by and for

the city of Seattle. See id. The Supreme Court

held that Renton could rely on studies of other

cities, noting that reliance on studies of other cit-

ies is permissible “so long as whatever evidence

the city relies upon is reasonably believed to be

39a

relevant to the problem that city addresses.” Jd. at

91-52, 106 S.Ct. 925.

[5] Plaintiff DHL argues, persuasively, that as

applied to the present case, Renton means that

the legislative body of Tyngsborough must do

more to justify their zoning ordinance than say

“we are scared of secondary effects.” The record

must show some reasoned basis for evaluation of

potential secondary effects as sufficiently likely to

occur and to involve significant consequences for

community welfare to justify the challenged zon-

ing ordinance. In this case, however, plaintiff's

contention fails at the next step because that con-

tention, as framed by plaintiff in its argument, is

that the showing of the reasoned evaluation must

appear in the minutes of the Town Meeting or in a

transcript or other record of the Town Meeting at

which the challenged legislative action was taken.

[6] In this case, as a finder of fact, I find that

the reasoned basis for the legislative decision was

persuasively shown by the evidence at trial. I find

credible and probative the testimony of John

O'Gorman regarding his direction to Town Admin-

istrator and Special Town Counsel almost six

weeks in advance of the legislative action, to

gather as much information as could 'be obtained

about how other cities and towns, large and

small, were addressing issues regarding making

some provision within the town for legally pro-

tected adult entertainment while also dealing ef-

fectively with secondary effects on Police and fire

resources, public safety, and compliance with

40a

building and licensing requirements. Also, Mr.

O’Gorman’s testimony was supplemented and

corroborated by evidence received at trial regard-

ing the Article prepared for Special Town Meeting

upon which the Selectmen voted on March 29,

1994, evidence of the public discussion occurring

in advance of the meeting, and a stipulation and

testimony about the greater demands on police

from calls to or near places of adult entertain-

ment requiring police response, than from other

areas of the community in general. In summary,

the evidence in this case was distinctly contrary

to plaintiffs argumentative characterization of be-

ing nothing more than citizens and legislative offi-

cials saying “we are scared of secondary effects.”

3. Reasonable Opportunity to Open and

Operate

[7] The reviewing authority (an agency or a

court) must examine the legislative process to see

if the legislative body properly considered secon-

dary effects, and then must examine the ordi-

nance to see if it provides reasonable opportunity

to open and operate, protected adult entertain-

ment. See Renton, 475 U.S. at 50, 106 S.Ct. 925.

Although the 1987 and 1994 B-4 zones likely did

not provide reasonable opportunity within identi-

fied zones, those ordinances have been super-

seded and their flaws and vulnerabilities are not

the basis for injunctive or even declaratory relief

with respect to the future. The 1996 zoning ordi-

nance is the one in effect since its enactment.

Thus, the constitutionality of the 1987 “phantom

4la

zone” and constitutionality of the 1994 single-

available-lot-zone are not within the scope of a

live controversy now before the court about

whether the 1996 ordinance meets the required

standard.

[8] Renton requires only an inquiry into

whether a site is potentially available as con-

trasted with “actually” available. See Renton, 475

U.S. at 53, 106 S.Ct. 925. The court must con-

sider “whether relocation sites provided to a busi-

ness may be considered part of an actual busi-

ness real estate market,” and then “after

excluding those sites that may not properly be

considered to be part of the relevant real estate

market, [whether] there are an adequate number

of potential relocation sites for already existing.

businesses.” Topanga Press, Inc. v. Los Angeles,

989 F.2d 1524, 1529 (9th Cir.1993), cert. denied,

911 U.S. 1030, 114 S.Ct. 1537, 128 L.Ed.2d 190,

(1994). This is not to say that the Constitution

requires communities to make some minimum

percentage of land available for the operation of

adult businesses. See North Ave. Novelties, Inc. v.

Chicago, 88 F.3d 441, 445 (7th Cir.1996), cert.

denied, ___ U.S. __, 117 S.Ct. 684, 136 L.Ed.2d

609 (1997).

[9] The Court of Appeals for the Ninth Circuit

set out a series of factors it considered in evaluat-

ing the reasonableness of the opportunity to relo-

cate existing businesses in light of zoning

changes:

42a

(1) First, although Renton stresses that the

First Amendment only requires a relocation site to

be potentially available rather than actually avail-

able, the requirement of potentiality connotes

genuine possibility . . . we need determine only

that property is not “potentially” available when it

is unreasonable to believe that it would ever be-

come available to any commercial enterprise. (2)

Second, . . . relocation sites which are within

manufacturing or industrial zones that are rea-

sonably accessible to the general public may also

be part of the market. (3) Third, areas in manu-

facturing zones which have proper infrastructure

may be included in the market. (4) Fourth, when

a relocation site suits some generic commercial

enterprise, although not every particular enter-

prise, it too may be said to be part of the real es-

tate market ... . (5) Fifth, and most obvious,

those relocation sites which are commercially

zoned are part of the market. Topanga Press, 989

F.2d at 1531. Tyngsborough’s 10.4 acre B-4 zone

qualifies under Topanga Press in that the five Ap-

plewood parcels are potentially available, are ac-

cessible to the public, have proper infrastructure

(or at least the possibility of proper infrastruc-

ture), suit some generic commercial enterprise,

and are zoned as part of the market.

Availability of these five parcels, however, is not

the only touchstone. The decisionmaker must

also decide whether or not the five parcels offer

enough to be reasonable, especially in light of Mr.

Eriksen’s testimony that the sites have not yet

been available for sale, and in light of his vocal

43a

opposition to adult entertainment in Tyngsbor-

ough.

[10] Regardless of whether or not the private

property owner’s personal stance on the issue is

relevant, the amount of land offered is without

question relevant, although not alone dispositive.

Many courts have considered the percentage of

the community’s total land that is available for

adult entertainment in the analysis of what

amount of land was reasonable. See, e.g., Alex-

ander v. Minneapolis, 928 F.2d 278, 283 (8th Cir.

1991) (finding the 13.5% of commercially zoned

land in the city to be adequate); Walnut Proper-

ties, Inc. v. Whittier, 861 F.2d 1102, 1109 (9th

Cir.1988), cert denied, 490 U.S. 1006, 109 S.Ct.

1641, 104 L.Ed.2d 157 (1989) (finding only a frac-

tion of the appropriately zoned 99.5 acres was po-

tentially available in light of 1,000 foot distance

restriction and that it could hardly be compared

to the 520 acres upheld in Renton); Tri.-State

Video Corp. v. Stephentown, 1998 WL 72331 at *8

(N.D.N.Y.1998) (finding 17% vacancy of 67%

properly zoned land to be adequate); Centerfold

Club, Inc. v. St. Petersburg, 969 F.Supp. 1288,

1303 (M.D.Fla.1997) (finding the availability of

6.3% of the city’s acreage to be adequate); 3570

East Foothill Blud., Inc. v. Pasadena, 912 F.Supp.

1257,1265 (C.D.Cal.1995), aff'd, 99 F.3d 1147,

(finding that where only one adult business ex-

isted, an ordinance that allowed for the opening of

eleven more adult businesses provided reasonable

Opportunity); Janra Enters. v. Reno, 818 F.Supp.

1361, 1364 (D.Nev.1993) (finding three parcels

44a

insufficient); Schneider v. City of Ramsey, 800

F.Supp. 815, 820 (D.Minn.1992), aff'd, 12 F.3d

140 (8th Cir.1993) (finding 2.5% of a rural com-

munity sufficient showing of reasonable opportu-

nity); International Eateries of Am., Inc. v. Broward

County, 726 F.Supp. 1556, 1567 (S.D.Fla.1987)

(finding .03% of county land available to be in-

adequate).

Here, Tyngsborough has made 10.4 of its

10,540 acres (.09867%, or less than one-tenth of

one percent of the land) in the town “available.”

This, however, is not the end of the inquiry to be

made under the multi-factor test that this court

(or some other decisionmaker) must apply to de-

cide whether Tyngsborough has failed to provide a

reasonable opportunity for adult entertainment

businesses to open and operate. The question in-

troduced in Part II of this opinion must be ‘exam-

ined more closely. The comparison between the

number of total acres of land in Tyngsborough

and the acres declared to be “available” for adult

entertainment businesses is only one factor of the

applicable multi-factor legal test. Tyngsborough

is a rural town in which the total acreage in the

only commercial district that could properly be

identified as the principal business district occu-

pies very little of Tyngsborough’s total acreage.

This much is clear from the record, even though

no party proffered evidence as to the precise acre-

age occupied by businesses in Tyngsborough.

Most of the precedents cited by plaintiff involve

regulation of adult entertainment establishments

in urban cities. A mere acreage comparison may

eV" O

SS Sa

45a

be appropriate in a city in which most of the land

area is developed, but in a rural community,

where most of the land is undeveloped open

space, a mere acreage comparison is not an ade-

quate basis for determining the reasonableness of

what the town has made available.

Regional availability may also be relevant where

a single town is both rural and small. Again,

however, the record in this trial does not include

evidence that would enable the court to make

findings of regional availability with precision.

[11] Plaintiff also argues that the five parcels

zoned B-4 are not potentially or actually available

because all five sites are owned by a single indi-

vidual, who is on the record at Town Meetings vo-

cally opposing any zoning to permit adult enter-

tainment. Plaintiff also introduced evidence at

trial of restrictive covenants (Plaintiffs Exhibit No.

20) that Applewood Construction considered, but

did not implement, for the industrial park that

includes the five B-4 parcels.

Precedents do not make it clear and certain

that Mr. Eriksen’s opposition to adult entertain-

ment establishments bears upon the issue to be

decided. At least one court has examined the ef-

fect of private ownership of the available land and

determined that

[rlestrictive covenants or leases between

third parties rendering a site unavailable to

an adult establishment does not render the

site unavailable for First Amendment pur-

46a

poses. Municipal or local governments are

under no obligation either to dictate that

third parties make their land available to

adult establishments or to_ consider

whether such private restrictions in fact ex-

ist.

Centerfold Club, Inc. v. St. Petersburg, 969

F.Supp. 1288, 1303 (M.D Fla.1997). On the other

hand, the Court of Appeals for the Fifth Circuit

has suggested that land with “legal characteris-

tics that exclude adult businesses may not be

considered available for constitutional purposes.”

See Woodall v. El Paso, 959 F.2d 1305, 1306 (Sth

Cir.1992), cert. denied, 506 U.S. 908, 113 S.Ct.

304, 121 L.Ed.2d 227 (1992).

If restrictive covenants prohibiting adult busi-

nesses are placed on the property, that will create

a legal characteristic that makes the sites un-

available. Likewise, if Applewood Construction

were presented with a genuine offer to buy (at a

price that could be determined to be reasonable

under a “reasonable buyer-reasonable seller”

standard), and Applewood Construction refused

to sell to an adult entertainment establishment,

then the plaintiff would have evidence of the un-

availability of the five parcels. But, the evidence

before the court now consists of Walter Eriksen’s

testimony that if presented with the right price,

he (or Applewood Construction) would sell to an

adult entertainment establishment. Sites zoned

by Tyngsborough to allow adult entertainment

must be available, but they need not be at “bar-

47a

gain prices.” Renton, 475 U.S. at 94, 106 S.Ct.

925.

DHL has operated an adult entertainment en-

terprise at 350 Middlesex Road since February,

1994 . It has not thus far been denied any rea-

sonable opportunity to operate. And the Blue

Moon has been in continuous operation for over

twenty years offering adult entertainment in

Tyngsborough. Thus, Tyngsborough residents are

not being denied access to this form of protected

expression nor are nonresidents being denied ac-

cess to this form of protected expression in Tyngs-

borough. Even if Tyngsborough were to revoke

DHL’s entertainment license for violating its pro-

visions, plaintiff has not shown that DHL would

not have a reasonable opportunity to establish a

venue on one of the Applewood sites.

Since DHL is not seeking money damages and

has been operating, though without a permit, it

has not been denied a reasonable Opportunity to

operate. Plaintiff has failed to show that these

sites are too few in number for a community with

the characteristics of Tyngsborough. Further-

more, plaintiff has not shown that the five sites

are “not available” because of Mr. Eriksen’s per-

sonal views on adult entertainment or his inter-

ests as a property owner in seeking the highest

market value for his property. The 1987 phantom

zone, and the 1994 zone too limited to comply

with the requirements of Renton, do not change

the fact that the 1996 zoning by-laws brought

48a

Tyngsborough into compliance in terms of rea-

sonable opportunity to open and operate.

C. A Perspective on Conduct of Parties

Locked in Ongoing Dispute

In human relations, often one excess begets

another. In law, never does one excess excuse

another. Even in the law of defense of person

against physical aggression, a privileged response

must be measured to the need for protection and

neither retaliatory nor vindictive. When parties

choose to engage in this sort of contest, they also

choose the rules of contest (either rules of civility,

or rules of aggression). And a party who engages

in a verbally slashing attack, supplemented by

threats of noncompliance with licensing and zon-

ing requirements, cannot reasonably expect ca-

pitulation and a velvet embrace by the opposing

party. In the circumstances of suspension by

Tyngsborough of enforcement of its licensing re-

quirements, DHL has not attempted to prove that

it has suffered damages. On the other hand, the

actions by DHL in clear violation of its licenses do

not excuse formal but phantom zoning, suitable

on paper only and not in fact.

By the time of trial, if not long before, the par-

ties to this case might have expected the court to

view the case in this perspective. Though strident

still, their contentions at trial were substantially

less accusatory and aggressive toward each other

than the record persuades me they had been

through the years of development of this contro-

49a

versy. Moreover, the Supreme Court’s decision in

Scott-Harris, __ U.S. __, 118 S.Ct. 966, ae

L.Ed.2d___—s- (1998), substantially narrowed the

scope of the issues this court had scheduled for

trial when legal issues about the scope of legisla-

tive immunity of municipal officials, finally re-

solved in Scott-Harris, were still disputable. If

those disputable issues of law had been resolved

favorably to the plaintiff, the court would have

been required to make findings regarding facts

genuinely in dispute with respect to plaintiffs

claim for an award of damages against the mu-

nicipality and its individual officers who partici-

pated in decisions of a legislative character.

Having withdrawn its claim for a monetary

award in light of Scott-Harris, plaintiff's primary

position at trial was that neither its claims for in-

junctive and declaratory relief nor any of the de-

fenses to those claims presented state-of-mind is-

sues. Yet plaintiffs counsel sought repeatedly to

offer evidence bearing on state-of-mind issues

such as motive of various town Officials, at the

time of taking action under color of law, and

scope of their knowledge at those times defen-

dants previously acted and declared their plans

for the future.

[12] Without ruling on sufficiency of proffered

evidence to present a genuine dispute of material

fact, the court overruled objections to state-of-

mind evidence proffered by each party if in the

court's view, at the time of ruling, the proffered

evidence was at least relevant and of sufficient

50a

probative weight to be potentially material when

considered together with other evidence received

at trial. With the completion of the trial and with

the entire record now before me, as finder of facts

I find that on all claims I decide (which, as ex-

plained in Part V below, do not include state-law

claims), the state-of-mind evidence received at

trial was insufficient to persuade me by a prepon-

derance of the evidence that any of the challenged

actions of town officials under color of law were

both non-legislative in character and accompa-

nied by a motive to impede or interfere with le-

gally protectable interests of plaintiff in freedom of

expression and freedom of association. Thus,

plaintiff's federal-law claims against the munici-

pality and the individual defendants in this case

fail because of the combined effect of applicability

of legislative immunity as explained in Scott-

Harris and lack of proof of any non-legislative act

under color of law with a state-of-mind that

would defeat qualified immunity.

IV. Declaratory Relief, Supplemental Juris-

diction over State-law Claims, and Fed-

eralism

[13] A United States district court may grant

declaratory relief in a case of actual controversy

within its jurisdiction. 28 U.S.C. § 2201. The De-

claratory Judgment Act did not create a right for

the litigant; rather, it added a remedy that a court

may grant in the exercise of discretion. Wilton v.

Seven Falls Co., 515 U.S. 277, 287-89, 115 S.Ct.

ceehoanaiied

Sla

2137, 2143, 132 L.Ed.2d 214 (1995); EMC Corp.

v. Norand Corp., 89 F.3d 807 (Fed.Cir. 1996).

[14] Even if I were to find that the net evalua-

tion of all relevant factors weighed in favor of find-

ing a federal constitutional violation, which I have

not, I would conclude that this court should not

exercise its discretionary authority to grant

declaratory relief in this case for several reasons.

First. As explained in Part II of this Opinion,

the evaluation of the total economic implications

for the public and the parties to this litigation,

and the economic effects incident to plaintiff’s re-

quested declaratory relief in comparison with

economic effects incident to alternative ways of

providing reasonable Opportunity for adult enter-

tainment businesses at or near the site plaintiff

Proposes (350 Middlesex Road) weigh against

plaintiff's choice of remedy.

Second. The evidence before me shows that

DHL has offered nude dancing entertainment

Since 1994 without interference from the Town of

Tyngsborough. At least until now, DHL has suf-

fered no economic loss as a result of the zoning

ordinance. Thus, the plaintiff's request for relief

is essentially, “intended to fortify the litigant

against future regulation,” and therefore not a

case in which declaratory relief should be

granted. Public Serv. Comm. v. Wycoff Co., 344

U.S. 237, 247, 73 S.Ct. 236, 97 L.Ed. 291 (1952).

Third. Although I have not undertaken a con-

stitutional case-or-controversy assessment, it is

52a

not at all clear that plaintiff has met that re-

quirement.

These characteristics of this case also support

this court’s decision not to exercise supplemental

jurisdiction over plaintiffs state-law claims. Ac-

cordingly, a declaration of the rights of the parties

with respect to federal-law claims would not re-

solve the entire conflict between the parties.

Moreover, the legislature and the courts of the

Commonwealth of Massachusetts have developed

a body of state law regarding protected expression

and local zoning law. See, e.g., T & D Video v.

City of Revere, 423 Mass. 577, 670 N.E.2d 162,

166 (1996).

Fourth. Because plaintiff has not met its bur-

den on its federal-law claims, the interests of

comity and federalism weigh heavily in' favor of

this court’s declining to grant declaratory relief on

predicted premises of future circumstances that

may never arise in fact. The more appropriate

course is to remand state-law claims to the state

courts. This disposition of the case in this court

will maintain fidelity to principles of federalism

and foster respect for state-created accommoda-

tions of federal constitutional constraints and

state interests. See El Dia, Inc. v. Hernandez Co-.

lon, 963 F.2d 488, 497 (1st Cir.1992).

Fifth. The decision to grant declaratory relief is

supported also by the guiding principle explained

by the Supreme Court of the United States in Wil-

ton v. Seven Falls Co., 515 U.S. 277, 286, 115

S.Ct. 2137, 132 L.Ed.2d 214.(1995). The Declara-

tory Judgment Act, 28 U.S.C. §§ 2201-2202, is

“an enabling Act” conferring “a discretion on the

courts rather than an absolute night upon the

litigant,” and creating not a duty but “an oppor-

tunity” that ordinarily is to be exercised, and in

appropriate exceptional circumstances a United

States district court may in the exercise of discre-

tion decline to grant declaratory relief. Id. (cita-

tions omitted). I find this case, with all its dis-

tinctive characteristics explained in this Opinion,

to be a case in which the exercise of discretion

counsels against an order of declaratory relief

that would of necessity be tailored to uncertain

predictions about relationships between plaintiff

and defendants as they may develop in the future.

The state-law claims that remain unresolved

include challenges to zoning ordinances and acts

of municipal officials bearing upon the adoption

and implementation of zoning.

[1S5, 16] I recognize that this court has discre-

tionary supplemental jurisdiction, in appropriate

circumstances, see United Mine Workers v. Gibbs,

383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218

(1966), over state-law claims of the general type

plaintiff asserts. This case, however, is in my

judgment an apt one for declining to exercise

supplemental jurisdiction.

[T]he termination of the foundational fed-

eral claim does not divest the district court

of power to exercise supplemental jurisdic-

54a

tion but rather, sets the stage for an exer-

cise of the court’s inferred discretion... .

In deciding whether or not to retain juris-

diction on such an occasion, the trial court

must take into account concerns of comity,

judicial economy, convenience, fairness,

and the like.

See Roche v. John Hancock Mutual Life Ins. Co., 81

F.3d 249, 256 (1st Cir.1996) (citations omitted).

V. Conclusion

As plaintiff can no longer recover monetary

damages in light of Scott-Harns, its only remain-

ing requests are associated with declaratory or

injunctive relief. I have concluded that it is inap-

propriate, in this case, for this court to exercise

its discretionary authority to grant declaratory re-

lief on plaintiffs federal-law claims. I have con-

cluded also that plaintiffs remaining state-law

claims should be remanded to Middlesex Superior

Court for adjudication. Thus, in the proceedings

in this court the plaintiff has not prevailed and is

not entitled to an award of attorneys fees.

Order

For the foregoing reasons it is hereby OR-

DERED:

The Clerk is directed to enter forthwith on a

separate document a Final Judgment as follows:

55a

On the stipulations of the parties, the

uncontested proposed findings of fact, the

rulings of the court made in pretrial pro-

ceedings and at trial, and on findings and

conclusions explained in the Opinion of

May 7,1998, it is ORDERED:

(1) Judgment in favor of defendants on

plaintiffs federal constitutional claims;

(2) Plaintiff's remaining state-law claims

are remanded to Middlesex Superior Court

for further proceedings;

(3) All parties are to bear their own costs

and attorneys fees.

56a

APPENDIX C

RULES OF THE SUPREME JUDICIAL COURT

RULE 1:03 UNIFORM CERTIFICATION OF

QUESTIONS OF LAW

Section 1. Authority to Answer Certain

Questions of Law. This court may answer ques-

tions of law certified to it by the Supreme Court of

the United States, a Court of Appeals of the

United States, or of the District of Columbia, or a

United States District Court, or the highest appel-

late court of any other state when requested by

the certifying court if there are involved in any

proceeding before it questions of law of this state

which may be determinative of the cause then

pending in the certifying court and as to which it

appears to the certifying court there is no control-

ling precedent in the decisions of this court.

Section 2. Method of Invoking. This rule may

be invoked by an order of any of the courts re-

ferred to in Section 1 upon that court’s own mo-

tion or upon the motion of any party to the cause.

Section 3. Contents of Certification Order. A

certification order shall set forth

(1) the question of law to be answered; and

(2) a statement of all facts relevant to the ques- -

tions certified and showing fully the nature of the

controversy in which the questions arose.

57a

Section 4. Preparation of Certification Or-

der. The certification order shall be prepared by

the certifying court, signed by the judge presiding

at the hearing, and forwarded to this court by the

clerk of the certifying court under its official seal.

This court may require the original or copies of all

or of any portion of the record before the certify-

ing court to be filed with the certification order, if,

in the opinion of this court, the record or portion

thereof may be necessary in answering the ques-

tions.

Section 5. Costs of Certification. Fees and

costs shall be the same as in civil appeals dock-

eted before this court and shall be equally divided

between the parties unless otherwise ordered by

the certifying court in its order of certification.

Section 6. Briefs and Arguments. Proceedings

in this court shall be those provided in these

rules, the Massachusetts Rules of Appellate Pro-

cedure or statutes governing briefs and argu-

ments, so far as reasonably applicable.

Section 7. Opinion. The written opinion of this

court stating the law governing the questions cer-

tified shall be sent by the clerk under the seal of

this court to the certifying court and to the par-

ules.

Section 8. Power to Certify. This court on its

own motion or the motion of any party may order

certification of questions of law to the highest

court of any state when it appears to the certify-

08a

ing court that there are involved in any proceed-

ing before the court questions of law of the receiv-

ing state which may be determinative of'the cause

then pending in the certifying court and it ap-

pears to the certifying court that there are no con-

trolling precedents in the decisions of the highest

court or intermediate a onauate courts of the re-

ceiving state.

Section 9. Procedure on Certifying. The pro-

cedures for certification from this state to the re-

ceiving state shall be those provided in the laws of

the receiving state.

Section 10. Uniformity of Interpretation.

This rule shall be so construed as to effectuate its

general purpose to make uniform the law of those

states which adopt it; or enact a uniform certifica-

tion statute.

Section 11. Short Title. This rule may be

cited as the Uniform Certificate of Questions of

Law Rule.

59a

APPENDIX D

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

D.H.L. ASSOCIATES, INC..,

Plaintiff

C.A. NO.

94-12328 REK

JOHN O’GORMAN, ROBERT

WALLACE, WARREN

ALLGROVE, JR., and EILEEN

FARRELL, INDIVIDUALLY

AND IN THEIR CAPACITY AS

THE TYNGSBOROUGH

BOARD OF SELECTMEN,

AND AS THE LICENSING

BOARD FOR THE TOWN OF

TYNGSBOROUGH, and THE

TOWN OF TYNGSBOROUGH

Defendants

—— ee eee eee ee eee ee ee ee ee ee ee See eee ee ee ee Se

PLAINTIFF’S MOTION TO REMAND THIS CASE

TO STATE COURT

Now comes the plaintiff in the above-captioned

matter and respectfully requests that this court

remand this case to the Massachusetts Superior

Court on the grounds that removal of this case

was improper and not in accordance 28 U.S.C.

1441. Armistead _v. C & M Transport, Inc., 49

60a

F.3d (1st Cir. 1995); Intern. College of Surgeons v.

City of Chicago, 91 F.3d 981 (7th Cir. 1996).

In further support of this motion, the plaintiff

refers the court to its Memorandum in Response

to the Court’s October 3, 1997 Rulings and Order

submitted herewith.

Respectfully submitted,

The Plaintiff

By its attorney,

Dated: November 12, 1997

ls/

Thomas Lesser, BBO No. 295000

LESSER, NEWMAN, SOUWEINE & NASSER

39 Main Street, Northampton, MA 01060

413-584-7331

CERTIFICATE OF SERVICE

I, Thomas Lesser, hereby certify that on No-

vember 12, 1997, I served a copy of the foregoing

document on the parties by first class mail to

counsel of record: Richard P. Bowen, Esq.,

KOPELMAN & PAIGE, P.C., 31 St. James Avenue,

Boston, MA 02116.

/s/

Thomas Lesser

6la

APPENDIX E

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

D.H.L. ASSOCIATES, INC., -

Plaintiff

Vv. -

ree ee eee”

JOHN O’GORMAN, ROBERT )C.A. NO.

WALLACE, WARREN ) 94-12328 REK

ALLGROVE, JR., and EILEEN )

FARRELL, INDIVIDUALLY )

AND IN THEIR CAPACITY AS )

THE TYNGSBOROUGH )

BOARD OF SELECTMEN, )

AND AS THE LICENSING )

BOARD FOR THE TOWN OF )

TYNGSBOROUGH, and THE )

TOWN OF TYNGSBOROUGH )

Defendants )

)

PLAINTIFF’S MOTION REQUESTING THAT THE

COURT INVOKE PULLMAN ATTENTION AND

REMAND THE STATE LAW QUESTIONS TO

STATE COURT OR ALTERNATIVELY TO

CERTIFY THE STATE LAW QUESTIONS TO

THE SUPREME JUDICIAL COURT

Now comes the plaintiff in the above-captioned

matter and respectfully requests that this court

62a

abstain from ruling on the plaintiffs federal

claims pursuant to the doctrine first enunciated

in Railroad Commission v. Pullman Co., 312 U.S.

496 (1941). Pustell v. Lynn Public Schools, 18

F.3d 50 (1st Cir. 1994).

Accordingly, the plaintiff further requests that

this court remand back to Massachusetts Supe-

rior Court the plaintiff's unsettled state-law ques-

tions presented under the higher level of protec-

tion afforded expression by art. 16 of the.

Massachusetts Declaration of Rights. See Guiney

v. Roache, 833 F.2d 1079 (1st Cir. 1987).

Alternatively, the plaintiff requests that the

court certify the substantial, but arguably unset-

tled state law claims presented under art. 16 of

the Massachusetts Declaration of Rights to the

Supreme Judicial Court for decision to clarify the

extent of state-created rights as applied to the

controversy before the court. See Pyle v. South

Hadley School Committee, 55 F.3d 20 (lst Cir.

1995).

In further support of this motion, the plaintiff

refers the court to its Memorandum in Response

63a

to the Court’s October 3, 1997 Rulings and Order

submitted herewith.

Respectfully submitted,

The Plaintiff

By its attorney,

Dated: November 12, 1997

_Ls/

Thomas Lesser, BBO No. 295000

LESSER, NEWMAN, SOUWEINE & NASSER

39 Main Street

Northampton, MA 01060

413-584-7331

CERTIFICATE OF SERVICE

I, Thomas Lesser, hereby certify that on No-

vember 12, 1997, I served a copy of the foregoing

document on the parties by first class mail to

counsel of record: Richard P. Bowen, Esq.,

KOPELMAN & PAIGE, P.C., 31 St. James Avenue,

Boston, MA 02116.

_/s/

Thomas Lesser

64a

APPENDIX F

EXCERPTS FROM THE RECORD APPENDIX OF

A COLLOQUY BETWEEN COUNSEL AND THE

TRIAL COURT DURING A PRE-TRIAL HEARING

ON DECEMBER 12, 1997

MR. LESSER: Correct.

THE COURT: And what you want is to be re-

lieved of the hazard that what you're doing will

sometime later be declared as a violation, is that

it?

MR. LESSER: That’s it. I mean, there are attor-

ney’s fees involved too, but other than that there

is nothing else. We’re asking for a license.

THE COURT: All right. What’s your position?

MR. BOWEN: Thank you, your Honor. I’d just

like to address two issues. The first issue I will

address is probably the secondary issue, but |

might as well do it this way.

Your Honor also would have the authority to

remand the question of whether the license would

issue back to the local licensing authority for fur-

ther consideration under the statute, so I don’t

think we should pass over that as an option if the

Town were to suffer an adverse judgment.

With that point being off the table now, your

Honor, in terms of sending it back to the state

65a

court, we've brief the issue and we respectfully

ask the Court not to invoke the Pullman exten-

sion doctrine or, in the alternative, not to remand

the matter to state court. The reason for that is as

follows, your Honor.

The plaintiff has as the central contention for

those two motion the T_& D Video case, which --

we were discussing it before this hearing and I

think the parties are in some agreement that that

case is really central to where we are right now.

The plaintiff suggests that there is a special

state law issue that must be addressed, should be

addressed by the state court rather than by this

Court, and it makes that argument based on the

holding of the Supreme Judicial Court in T & D

Video. As we stated in our brief, the T & D Video

case is not a state constitutional case. It does not

deal with Article 16. The only reference to Article

16 in the entire decision --

THE COURT: Now, I’ve read your submission

on that. Now, here’s the problem I have with that:

Even if you are right about the way that deci-

sion was written, there’s nothing in the world to

stop the SJC from saying, “Well, now that the Su-

preme Court of the United States has expressed

their disagreement on federal law with the view

we adopted, we now declare this is our ruling un-

der state law, state constitutional provision.”

66a

There’s nothing to stop them from saying that,

right?

MR. BOWEN: I agree with you, your Honor, but

they haven’t done it.

THE COURT: All right. But, you see, if you

agree that the SJC, even if they were thinking of it

in terms of federal constitutional law, decided

squarely against your contention, then I cannot

take that as an indication that when it’s brought

to their attention that the Supreme Court of the

United States has issued recent decisions that are

contrary to their interpretation of federal law;

therefore, they should change their ruling on the

out come -- because I think it’s much more likely

that what they would do is say, “All right. We

reach this decision under the state declaration of

rights instead of the First Amendment” and so

forth, First and Fourteenth.

And, you see, another thing that’s troubling me

about the various things each of you is trying to

get me to do is, it sounds to me like a way of

keeping this litigation going forever.

MR. BOWEN: We don’t want that, your Honor.

We’d like to have a trial.

THE COURT: And it seems to me it’s much

wiser, even though it means more work for me,

for me to try the case and to try it as soon as pos-

sible, and the only question then is should we in-

stead of trying it in the next couple of months

67a

wait at least till we see what the Supreme Court

Says in Scott-Harris.

MR. BOWEN: Your Honor, I have no objection

to awaiting the outcome of the Supreme Court.

THE COURT: Now, let me ask you this:

68a

APPENDIX G

EXCERPTS FROM THE RECORD APPENDIX OF

TESTIMONY, AND COLLOQUIES BETWEEN

COUNSEL AND THE TRIAL COURT DURING

THE SECOND DAY OF THE THREE DAY TRIAL,

APRIL 30, 1998

[72] . . . a legal conclusion and this is a lay wit-

ness.

THE COURT: This is a question about his

awareness, not a question of law. The objection is

overruled.

A. One of the problems with these covenants is

they did notallow a lot of use that would be al-

lowed in that zoning district, so, yes, you are cor-

rect.

Q. At the present time it is my understanding that

several parcels have been leased and there is one

building that is going to be erected?

A. Yes, we have one building that is going to be

erected.

Q. That is pursuant to a lease?

A. Yes.

Q. And, have you sold any other parcels?

A. No.

69a

Q. So, the industrial parcel is owned by you?

A. That is correct.

Q. Now, with regard to the adult entertainment

zone, those would be Lots 14, 15, 16, 17 and a

part of 13, is that correct?

A. That is correct.

Q. Have any of those parcels been available for

purchase to date?

A. No, they haven’t been.

Q. Are any of those parcels available for purchase

as of today?

[73] A. As of today?

Q. As of today?

A. They may be.

Q. When you say “they may be,” if somebody

walked in and wanted to purchase one of those

parcels, is it your testimony that a person could

do so?

MR. BOWEN: Objection, your Honor, it calls

for speculation.

A. Yes.

70a

Q. Is that your view or is that the view of the en-

tire entity that owns those parcels?

A. That would be my view as well. I am a busi-

nessman. I am in the real estate development

business. Under the right terms and conditions,

anything would be for sale.

Q. With regard to these parcels, do you recall get-

ting a call from an Attorney Munson with regard

to purchasing these properties?

A. I do not know if I received a call from an attor-

ney, but I have seen a number of phone calls re-

garding those parcels.

Q. Do you recall telling those people, at least one

of those people, that you retain those parcels as

part of your portfolio? .

A. And, that they were not on the market at this

time, yes, I believe that was probably last year.

[74] Q. If 1 told you -- suggested to you that it was

in June of 1997, would that refresh your mem-

ory? That would be last year.

A. No, June of 98 - 97, that may be correct.

Q. With regard to the use of these parcels for

adult entertainment, they are at the entrance to

one of the roads to your park, correct?

A. Yes.

7la

Q You have indicated you are a businessman

who is interested in making as much money as

possible from all the lots in the park?

A. That is correct.

Q. And, you have invested a large sum of money

in this park?

A. That is correct.

Q. The land cost in excess of $600,000?

A. Yes.

Q. And, the road cost in excess of $700,000?

A. Yes.

Q. And, there’s hundreds of dollars of over cost, is

that fair?

A. Yes.

Q. And, there is, in fact, among certain people

who might be interested in purchasing some of

these lots a perception with regard to adult enter-

tainment, as a businessman you...

[51] applicable law here.

MR. LESSER: Under Renton, Your Honor,

the issue is the reasonable availability to open

and operate. And, therefore, the question with

72a

regard to the "94 zone becomes, given there’s two

parcels and one of them is a single use, special

use property, we are down to one parcel in 94 be-

cause Dover Storage as a practical matter is not

reasonably available.

THE COURT: All right. Now, that is an element

of state law; right?

MR. NEWMAN: It’s certainly an element of state

law, Your Honor, yes.

THE COURT: All right. Are you contending

that that is a part of the federal law applicable to

this case? You are, after all, here arguing to me

not a state law question but a federal constitu-

tional claim that you’re making; right?

MR. NEWMAN: We are making both, Your

Honor, absolutely.

THE COURT: Well, but insofar as you're trying

to make a state law claim, you have a lot of other

hurdles. Insofar as you're trying to make a fed-

eral constitutional claim, I understand that I

should take into account whatever evidence is

bearing on that. But, you see, as I said to vou be-

fore, this is a critically important question in this

case [52] dealing with what is the role of this

court. You're asking this court, this solo judge

sitting here to decide fact questions in this case

and to supersede, displace the judgment of state

courts, state agencies, municipal agencies, every-

body else who might be involved in the decision-

73a

making process with respect to the rights of the

parties in this case.

So I need to know whether this 1996 decision

of the Supreme Judicial Court is somehow trans-

formed into a part of the federal law that I am to

apply to this case. If it is not, then I don’t look to

that case. I look to whatever federal law I have to

guide me in deciding whether it's proper for me to

be hearing this kind of evidence and deciding this

kind of question myself.

Instead of saying -- the contention you’re mak-

ing is really not so much one that is governed by

federal constitutional law but instead one that is

governed by the federal precedent bearing on fed-

eralism which requires me and any other federal

judge, including the higher courts that will review

my decision, to be respectful of the roles of state

decision makers in whatever kind of agency, tri-

bunal, municipality, legislative council, whatever.

And I’m having difficulty understanding how you

asked me to get over that hurdle that as a federal

trial judge I am not supposed to be deciding the

thing you're trying to place before me now unless

something in the federal constitutional law as-

signs me that [53] function rather than saying I

should say no, I can’t decide those questions.

That’s not properly within my authority. If-you

have some claim to make on the basis of those

questions, go take it to the state agencies, who-

ever it is, that has authority here.

74a

MR. NEWMAN: Your Honor, I -- I don’t want to

adopt the Court’s blank check analogy. I’d like to

point out two things very quickly if I might.

First, the issue, of course, is what the Town of

Tyngsborough did. There are now other state

agencies here. It’s the adoption of these two

zones we're talking about.

Secondly, we agree, Your Honor, that mostly

this should be decided on state law grounds. And

we filed the case in the state court. We thought it

was appropriate for the state court. We think

they are primarily state claims that come before

it. It was the defendants who removed this case.

THE COURT: Now, wait a minute. You see, you

are telling me now that it was only the town that

did anything. Well, if the town, if it’s the actions

of the town that are under review here, not even

the Superior Court where you filed this case

would have authority to -- a superior court judge,

justice sitting alone would not have the authority

to supersede somebody else’s decision making

that's supposed to be done under the state law

system.

So we've still got a problem that you’re asking a

[54] court to step in and have a single decision

maker substitute for the political processes in the

town, for the agency decision making in the town,

for the hearings of boards and commissions and

committees, and supersede all of that and have a

single decision maker do it.

75a

MR. NEWMAN: Your Honor, there is no admin-

istrative, state administrative review of what oc-

curred. This comes before, would come before a

justice of the superior court who would be asked —

or would have been asked to declare as unconsti-

tutional and violative of state law the two zones

that are at issue in this case or three zones that

are the issue in this case and to enjoin the town

to issue the license.

THE COURT: Now, you've referred to state law,

state law standards. Now, if that is the circum-

stance, it seems to me that even at this late stage,

perhaps the appropriate decision for me if I con-

clude you have a claim on that basis would be to

remand this case to the superior court for that

court's evaluation and determination of your

claim as to whether you're right on your state law

contention. That would make a lot more sense

than my deciding it.

And then either after I have decided it, certify

to the SJC did I get it right or else letting you ap-

peal to the First Circuit and the First Circuit

would then certify to the SUC very likely did the

trial judge get it right that this is [55] a matter of

state law.

MR. BOWEN: Your Honor, we have enjoyed our

visit to the federal court. We would like to be

here.

76a

THE COURT: So you don’t want me to remand

it to the state superior court so all right. So the

two of you come to me and say even if you don’t

have authority to decide this for us, we stipulate,

we give you authority. You cannot do that. This

is a court of limited jurisdiction. I can only decide

the thing that the constitution of laws of the

United States give my authority to decide. I can’t

decide something because everybody else would

rather have it decided in this court than to have it

decided where it’s supposed to be decided.

The constitutional laws of the United States

don’t give me that authority to let you expand my

jurisdiction.

MR. BOWEN: Your Honor, that’s not what we

seek to do. And my brothers Have filed several, in

fact, there is as recently as three weeks before

trial before a final pretrial conference.motions to

remand to state court, certify to state court. And

we are here, Your Honor. We have pendent Ju-

risdiction issues.

And maybe just as a last comment, the state

constitutional law is co-extensive with the federal

law.

THE COURT: Well, that’s an assertion but, you

know, I don’t know your assertion is authoritative

of [56] determining whether I have jurisdiction.

There are several circumstances in which

it's very clear that the state Supreme Judicial

77a

Court has decided that their protection of various

kinds of freedom of individuals from governmental

intrusion are more sweeping, broader than the

Supreme Court of the United States says the fed-

eral constitution protections are. And so why

should I not at least worry about whether this is

not one of those situations.

All right. Now, I will not decide this issue at

this moment. I will take it, along with everything

else in the case, and will decide it after I have

heard the rest of the evidence in the case and

heard your arguments.

Now, that being so, you may complete your

direct examination of this witness and then I'll al-

low the cross-examination to proceed.

DIRECT EXAMINATION, (Cont'd.)

BY MR. NEWMAN:

Q. Mr. Foster, Mr. Bowen asked you some ques-

tions about occupancy rate for the property, Do-

ver Storage property. I’d like to show you the

deposition to which you referred and ask you if

that deposition gave information about occupancy

rates in 1995 and 1996?

A. It does.

Q. Okay. And do you have that information

available to you?

78a

A. Yes.

[80] that some of these establishments were offer-

ing unlicensed adult entertainment?

A. I became aware of the fact that in February of

1994, is that what you stated?

Q. Yes.

A. -- that there were at least two establishments

that I was directly aware of that were offering

unlicensed, uncontrolled, unpermitted adult en-

tertainment.

Q. And how did you learn of this?

A. In the instance of Matthew’s D.H.L. Associates,

I learned through a flyer that they were circulat-

ing through the community.

In the case of the other establishment

which was known as Pub .30 Something, there

was an ad placed in the local paper known as the

Lowell Sun that they were to do it.

Q. As a pub

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