Opposition Brief — D. H. L. Associates, Inc. v. O'Gorman

No. 99-1536

IN THE

Supreme Court of the United States

D.H.L. ASSOCIATES, INC.,

Petitioner,

v.

JOHN O’GORMAN, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

en > ~~

RESPONDENTS’ BRIEF IN OPPOSITION

RICHARD BOWEN

Counsel of Record

JONATHAN M. SILVERSTEIN

KOPELMAN AND PAIGE, P.C.

Attorneys for Respondents

31 St. James Avenue

Boston, MA 02116

(617) 556-0007

159121 @J Counsel Press LLC

(800) 274-3321 + (800) 359-6859

i

QUESTIONS PRESENTED

1. Whether the Court of Appeals properly declined to

disturb the District Court’s discretionary decision to deny

plaintiff's request for certification.

a.

Whether the Court of Appeals properly determined that

there exist no dispositive or unsettled questions of state

law warranting certification.

Whether the plaintiff’s request for certification

comprised an improper attempt to manipulate the

federal courts’ jurisdiction to insulate from review by |

the federal judiciary state court interpretations of federal

constitutional provisions favorable to the plaintiff.

2. Whether the Court of Appeals appropriately applied the

standard for review of adult entertainment zoning regulations

set forth by this Court in Renton v. Playtime Theatres, Inc., and

whether such application was consistent with the holdings of

other circuits.

a.

Whether the Court of Appeals properly affirmed the

District Court’s determination that the subject zoning

By-law satisfied the “substantial government interest”

test, in that it was designed to combat the adverse

secondary effects commonly associated with adult

entertainment.

Whether the Court of Appeals properly affirmed the

District Court’s determination that the subject zoning

By-law provides for a reasonable opportunity for adult

entertainment establishments to open and operate.

i

TABLE OF CONTENTS

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ae a ee ec hk aoa

‘Fah OF ROMEO 5.3 5 ck ake neta 65 a8 ness

Statutory Provisions Involved .................

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A. Pumcamieill HG occ kon asn a ces eas ves

B. The Record Below .......cccccccccccces

Reasons for Denying the Writ .................

I.

The Court Of Appeals Properly Declined To

Disturb The District Court’s Discretionary

Decision To Deny Plaintiff's Request For

Certification And Its Decision In This Regard

Does Not Conflict With Decisions Of This

Court Or Any Other Circuit. .............

A. There exist no novel, unsettled or

dispositive questions of state law

warranting certification and disposition

of the plainly-stated federal claims was

entirely consistent with decisions of this

Court.

vi

lil

Contents

Page

1. There exist no novel and unsettled

questions of state law. .......... 6

a. A.F.M., Ltd. v. City of Medford . . 7

b. T&D Video v. City of Revere ... 8

c. Other Article 16 Jurisprudence . . 10

2. Denial of plaintiff’s request for

certification is entirely consistent

with decisions of this Court. ..... 11

3. The state law questions would not

be dispositive. ................. 15

B. The plaintiffs untimely requests for

certification comprise an improper

attempt to manipulate the federal

courts’ jurisdiction to insulate from

review by the federal judiciary state

court interpretations of federal

constitutional provisions favorable

to the plaintiff. ................ 16

II. The Court Of Appeals Applied The Renton

Standard Consistently With Holdings Of This

Court And Other Circuits.

iv

Contents

A. The Court of Appeals properly affirmed

the District Court’s determination that

the By-law was designed to combat the

adverse secondary effects commonly

associated with adult entertainment.

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1. The Court of Appeals’ decision does

not conflict with the decisions of

any other CMC. 2... kee

2. The Court of Appeals’ decision in

this case is consistent with the

holdings of this Court and other

Se ocean be

The Court of Appeals properly affirmed the

District Court’s determination that the 1996

zone provides for a reasonable opportunity

for adult entertainment establishments to -

GUT BENE GUOTOND. onc cc ceca stsenvecas

1. The Court of Appeals’ holding that

land within the 1996 zone is

potentially available comports with

Renton and decisions of other

Ce S ck rasa cess ween

Page

19

19

21

23

Contents

Page

2. The Court of Appeals’ fact-based

finding that the 1996 zone provides

for reasonable alternative avenues

of communication for adult

entertainment is consistent with the

decisions of this Court and other

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VI

TABLE OF CITED AUTHORITIES

Page

Cases:

A.F.M., Ltd. v. City of Medford, 428 Mass. 1020,

704 N.E.2d 184 (1999) ........... 7, 8,9, 13, 14, 17

Arizonans for Official English v. Arizona, 520 U.S.

S34IGS 6..h.455445)5650 eee 11, 12, 13, 14

Butler v. RMS Technologies, Inc., 741 F. Supp. 1008

(ED. RROOE. EPOE os ccacedacsacne eens e ee 15, 16

Cabaret Enterprises, Inc. v. ABCC, 393 Mass. 13,

468 N.EB26 GIS CASTE) icine tase eaewaneerias 10, 11

City of Erie v. Pap’s, A.M. TDBA “‘Kandyland”, _

U.S. _, No. 98-1161, slip op., 2000 U.S. LEXIS

2347 GCE ZPD, DOUOD 5 ko case iueeunaeees 17, 21

Colo v. Treasurer & Receiver General, 378 Mass.

$50, 392 N.2.26 LESS CEST ee «sooo ease uenees 10

Commonwealth v. Sees, 374 Mass. 532, 373 N.E.2d

1151 (1997S) 6. ceuxtiarsteee eee 10, 11

DLS, Inc. v. City of Chattanooga, 107 F.3d 403

(* Cir. 1997). inccdcvsciceen eee eee 22

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) .... 1]

Vil

Cited Authorities

Page

Freeman v. Planning Bd. of West Boylston, 419

Mass. 548, 646 N.E.2d 139, cert. denied, 516 U.S.

Pre COED 2 acd he caaeeerriveeele us Leeraes 15, 16

J&B Entertainment, Inc. v. City of Jackson, Miss.,

152 F.3d 362 (5" Cir. 1998) ................. 20

Krueger v. Pensacola, 759 F.2d 851 (11" Cir. 1985)

MELTS VEST CSTE CET Te Tee eT roe re ere 9

Lakeland Lounge v. City of Jackson, 973 F.2d 1255

Re SIE koe ese oe secdierusugien.. 25

Lincoln v. Giles, 317 Mass. 185, 57 N.E.2d 554

SR Raksha rane CA oe naw ea 2

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

PUKAv eee eM n eee oak been a eek oe ae eet 16

Michigan v. Long, 463 U.S. 1032 (1983) ........ 13,14

North Avenue Novelties, Inc. v. City of Chicago, 88

Pe Bia * |) 25

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

F. Supp.2d 754 (S.D. Tex. ee lt ean 20, 21

Opinion of the Justices, 387 Mass. 1201, 440

BURA REGO CIDR) oss gk vcs cnc nne cose 10, 12

vill

Cited Authorities

Page

Phillips v. Borough of Keyport, 107 F.3d 164

he A rea re Pan en cere ys

Redgrave v. Boston Sympathony Orchestra, 855 F.2d

be 2 rr ne peer fare ore re 10, 11

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

he | RRP ra enya ara enn are Oe arr passim

SDJ, Inc. v. City of Houston, 837 F.2d 1268 (5" Cir.

1988), cert. denied sub nom. M.E.F. Enterprises,

Inc. v. City of Houston, 489 U.S. 1052 (1989)

iL AAR ERR EAA CORR A RET Ae eka ai, a0

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

ow Ret. . ) re 7, & @, 80, 13, 14, U7

Topanga Press v. Los Angeles, 989 F.2d 1524

Pee RN: awd ae eee Reon eneaaws 24

Woodall v. City of El Paso, 49 F.3d 1120 (5" Cir.

See ah ht Leetiriany ery ea Ae 24, 25

ix

Cited Authorities

Statutes:

28 U.S.C. § 1331

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LS oe) ee 1

42 U.S.C. § 1988(b)

88) 2 2°82 66 6.86 6 2.8 24 DDO OOS CO

Mass. Gen. L. ch. 12, Section 11H

Sf 2 6 £2 @& 2 6 6.8 *

Mass. Gen. L. ch. 12, Section 11]

United States Constitution:

First Amendment

Rules:

Sup. Ct. R. 10

2 a ee ee OR RS EO eRe a ae ee OBS ee me aa ee SB Se So

Sup. Ct. R. 10 (a)

Pee hee Se eS RS a eS Eee OES SB Oe ee 2 4 eS

Sup. Ct. R. 14(1)(a)

Page

ee R ER Ae hc os 1]

TABLE OF APPENDICES

Appendix — Relevant Statutes

oe * 8-6 6 6 4.6.84 2 © SE 4D

l

STATUTORY PROVISIONS INVOLVED

In addition to constitutional provisions and statutes

referenced by the petitioner, this case involves statutes of the

United States, 42 U.S.C. §§ 1983 and 1988(b), and the

Commonwealth of Massachusetts, Mass. Gen. L. ch. 12,

Sections 11H and 111, the complete texts of which are set forth

in the Appendix to this brief.

STATEMENT OF THE CASE

A. Procedural History

By this action, DHL seeks to invalidate a duly-promulgated

zoning By-law enacted by the Town of Tyngsborough (“the

Town”) to regulate the time, place and manner of sexually-

oriented business activities (“the By-law”). DHL further seeks

to compel the issuance of a sexually-oriented entertainment

license for an establishment owned and operated by DHL,

known as “‘Mathew’s.”

The Complaint was originally filed in the Massachusetts

Superior Court for Middlesex County, and the defendants

removed the action to the United States District Court for the

District of Massachusetts. In its zeal to paint this case as one

primarily concerning questions of state law, DHL asserts that

the Complaint “raised state statutory and constitutional

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

(Petition for Writ of Certiorari [hereinafter “Petition”’], p.2).

What DHL neglects to mention is that, in addition to the count

under 42 U.S.C. § 1983, the Complaint also contains three

_ Separate counts alleging violations of DHL’s rights under the

United States Constitution as well as the Massachusetts

Declaration of Rights. (First Circuit Appendix [hereinafter

2

“A. _”], 20-22). Therefore, four of the eight counts in the

Complaint state federal questions. '

Contrary to DHL’s assertion that, “[a]fter removal, the

petitioner filed motions to remand or certify the state

constitutional issues to the state courts” (Petition, p.8), DHL

actually waited over three years before filing any such motion.

During this period the parties proceeded with the litigation of

this case in the District Court, and DHL neither objected to the

District Court’s retention of jurisdiction, nor moved to have

the case or any portion thereof remanded or certified to the

state courts. Likewise, at no time during this period, did DHL

attempt to characterize the protections invoked under the

Massachusetts Declaration of Rights as separate from or broader

in scope than the protections afforded under the First

Amendment to the United States Constitution. Not

coincidentally, when DHL did move for remand and

certification on November 12, 1997, over three years after the

initiation of this litigation, it did so only after the District Court

had, on October 3, 1997, issued summary judgment rulings

adverse to DHL. (See A. 7, 510-540). The District Court denied

DHL’s motions for remand and certification, as well as several

subsequent motions for remand, certification and abstention.

After a three-day bench trial, the District Court found in

favor of the Town and entered judgment dismissing all of DHL’s

1. DHL agreed prior to trial that one of the state law counts,

the “Fourth Cause of Action,” was precluded by the findings of the

state Superior Court's decision in a related license suspension case.

The first three counts all concerned state law licensing claims which

must be deemed subsidiary to the constitutionality of the By-law, in

that DHL could not legally exercise any license in derogation of a

valid zoning by-law. Lincoln v. Giles, 317 Mass. 185, 57 N.E.2d

554 (1944). Each of the last four counts of the Complaint raises

federal questions.

3

federal claims, and remanding the remaining state-law claims

to the state Superior Court, 6 F. Supp.2d 70 (1998) (Petitioner’s

App. 27a-55a). On appeal, the Court of Appeals for the First

Circuit affirmed the District Court’s judgment, 199 F.3d 50

(1999) (Petitioner’s App. 1a-26a).

B. The Record Below

Tyngsborough is a small, rural Town in northern

Massachusetts, located approximately 40 miles north of Boston,

on the New Hampshire border. The Town’s population is

approximately 9,500 people. (Petitioner’s App. 3a, 30a). The

Town has no downtown area, other than a small general store,

town hall, tea room, doctor’s office and fire station, and its

business areas all immediately abut residential areas. (A.858).

As both the District Court and Court of Appeals found,

“Tyngsborougbh is a rural town in which the total acreage in the

only commercial district that could properly be identified as

the principal business district occupies very little of

Tyngsborough’s total acreage.” (Petitioner’s App. 23a, 44a).

Historically, the Town has played host to clubs which

feature adult entertainment. A. 916. Pub 30 Something, a club

which featured adult entertainment, offered adult entertainment

for more than 20 years within the Town. (A. 916). An

establishment called the Blue Mcon has been licensed to offer

adult entertainment for at least 15 years, and the Bell Ringer

has offered adult entertainmient, on at least one occasion.

(A. 916). Moreover, Donato DiRocco, a principal of DHL,

operated an adult entertainment business called the

Tyngsborough Social Club from 1967 to 1992. (A. 642-43). It

has been the Town’s experience that clubs which offer adult

entertainment generate a greater number of calls to the police

than clubs that do not offer such entertainment. (A. 867, 947).

4

On February 10, 1994, Tyngsberough police discovered

that DHL was offering nude dancing at its establishment known

as “Bogies” (later known as “Mathews”, in violation of its

live entertainment license. (A. 632). The Town’s Board of

Selectmen held a violation hearing and suspended DHL’s liquor

license for two days, which suspension was ultimately affirmed

by the Massachusetts Superior Court. (A. 632, 643, 883).

Due to the illegal, unlicensed offering of sexually-oriented

dancing by DHL and Pub 30 Something, a lead story in the

Boston Globe declared that the Town, “an otherwise quiet

suburb of 8,500,” had more strip clubs in operation than

Boston’s Combat Zone. (A. 632, 643). This unwanted attention

from major news media contributed to a tremendous public

reaction to the illegal presentation-of sexually-oriented

entertainment by DHL and Pub 30 Something. (A. 868).

Members of the Board of Selectmen received numerous

telephone calls from residents concerned about the uncontrolled

and unlicensed presentation of sexually-oriented entertainment

resulting in an increase in crime. (Petitioner’s App. 17a-19a,

39a-40a).

Upon receipt of the citizens’ concerns, the Board of

Selectmen instructed the town administrator and special counsel

to “gather information about how other localities addressed adult

entertainment and secondary effects issues.” (Petitioner’s App.

17a). Subsequently, on February 14, 1994, the Board of

Selectmen held a public hearing to discuss the regulation of

adult entertainment. (Petitioner’s App. 31a). Approximately 75

citizens attended this meeting and expressed their concerns

regarding the uncontrolled presentation of adult entertainment

and the potential for an increase in crime. (A. 874-75, 887).

5

The Town held a Special Town Meeting on March 29, 1994.

(A. 636-37). At this meeting, the Town unanimously voted to

revise its zoning By-laws, by creating anew adult entertainment

zone, comprising approximately 7.88 acres, and located in a

commercial area with easy access to Route 3, a major interstate

highway (“the 1994 zone’). (A. 636-37). DHL never applied

for a permit to operate in this zone. (Petitioner’s App. 82a, 947).

At its annual Town Meeting in May 1996, the Town voted

to replace the 1994 zone with a /arger zone, containing

approximately 10.4 acres (“the 1996 zone”).’ (Petitioner’s

App. 5a). The 1996 zone is located within a commercially and

industrially zoned area known as Applewood Commercial Park,

which consists of five parcels located off of Route 3, a major

interstate highway. (Petitioner’s App. 5a, 83a-84a).

Underground utilities are available to all lots in the 1996 zone,

and all five lots are physically capable of hosting, at a minimum,

a 15,000 square-foot building, with the exception of Lot 14,

which could host an 8,000 square-foot building, which is

approximately the same size as DHL’s Mathew’s. (A. 775, 779,

951). DHL has never made an offer to purchase or lease property

located in the 1996 zone. (A. 787). Indeed, DHL has never even

applied to operate in this zone. (A. 641).

2. Although DHL originally challenged the validity of the 1994

zone as well as the 1996 zone, both the District Court and the Court

of Appeals determined the validity of the 1994 zone to be moot.

(Petitioner's App. 8a, 41a). DHL’s Petition does not challenge the

lower courts’ determinations in this regard, and its challenge to the

1994 zone must, therefore, be deemed waived.

6

REASONS FOR DENYING THE WRIT

I.

THE COURT OF APPEALS PROPERLY DECLINED

TO DISTURB THE DISTRICT COURT’S

DISCRETIONARY DECISION TO DENY PLAINTIFF’S

REQUEST FOR CERTIFICATION AND ITS DECISION

IN THIS REGARD DOES NOT CONFLICT WITH

DECISIONS OF THIS COURT OR ANY OTHER

CIRCUIT.

A. There exist no novel, unsettled or dispositive

questions of state law warranting certification and

disposition of the plainly-stated federal claims was

entirely consistent with decisions of this Court.

1. There exist no novel and unsettled questions of state

law.

DHL incorrectly argues that certification was required

because article 16 of the Massachusetts Declaration of Rights

affords adult entertainment establishments broader protections

from zoning restrictions than does the First Amendment.

Massachusetts courts have had ample opportunity to identify

such broader protections since this Court’s decision in Renton

v. Playtime Theatres, Inc., 475 U.S. 41 (1986), but have chosen

not to do so. Instead, Massachusetts courts have chosen to apply

Renton to cases involving article 16 claims, including those

relied upon by DHL, thereby indicating its view that, in the

context of zoning restrictions on adult entertainment, article 16

is coextensive with the First Amendment.

DHL relies primarily on two Massachusetts Supreme

Judicial Court cases for the proposition that article 16 may be

insti

7

broader in its protections of adult entertainment than is the First

Amendment: 4.F.M., Ltd. v. City of Medford, 428 Mass. 1020,

704 N.E.2d 184 (1999), and T&D Video v. City of Revere, 423

Mass. 577, 670 N.E.2d 162 (1996). As discussed below, each

case involved challenges to local zoning restrictions under both

article 16 and the First Amendment, yet in each case, the

Massachusetts Supreme Judicial Court professed to apply the

federal standard under Renton to all claims.

a. A.F.M., Ltd. v. City of Medford

DHL’s characterization of A.F.M. as a decision under the

Massachusetts Declaration of Rights is incorrect. The A.F.M.

decision contains not one reference to the state constitution.

Further, 4.F.M. explicitly purports to be decided under this

Court’s interpretation of the federal Constitution in Renton, and

the decision cites only federal First Amendment cases as

authority.

In addition, A.F.M. does not even stand for the proposition

for which it is cited by DHL. DHL erroneously states that the

A.F.M. court “held the regulatory scheme [there at issue]

unreasonably foreclosed avenues of communication” based

upon a finding that the challenged adult zone provided for

only .11 percent of the city’s developable land. (Petition, p.7).

In fact, the Supreme Judicial Court did not rule on the ultimate

constitutionality ofthe subject ordinance, but simply upheld a

preliminary injunction because the defendant city did not, at:

the preliminary injunction stage, “present any information

explaining why it was reasonable to restrict adult businesses to

such a minuscule portion of the developable land in the city.”

A.F.M., 428 Mass. at 1021, 704 N.E.2d at 186.

8

Unlike the defendant city in A.F.M., the Town has, in the

instant matter, provided abundant evidence in support of the

reasonableness of its 1996 zone, including the rural character

of the Town, its location and population, the relatively small

area available for commercial uses in general, and the fact that

a pre-existing adult entertainment establishment is already

located in the Town. Based upon this record, both the District

Court and the Court of Appeals held that the 1996 zone does

indeed provide adequate opportunity for adult businesses to

locate in the Town. (Petitioner’s App. 22a-25a, 44a -47a).

DHL begs the question when it states, “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 in the 1996 zone] is greatly important.”’ The

state Supreme Judicial Court’s decision evinces exclusive

reliance in A.F.M. upon federal jurisprudence, primarily Renton.

Surely, the state court would not exclusively apply the First

Amendment test if it considered article 16 to be in any way

broader than the First Amendment in its protection of adult

entertainment from local zoning restrictions. The simple fact

that the Supreme Judicial Court may have misapplied federal

law does not suggest otherwise.

b. T&D Video v. City of Revere

DHL also contends that the Supreme Judicial Court’s

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

N.E.2d 162 (1996), suggests that article 16 may provide adult

entertainment with greater protections from zoning restrictions

than the First Amendment. As it did with regard to 4.F.M.,

DHL has mischaracterized the unambiguous basis for the

Supreme Judicial Court’s holding in T&D Video.

a

9

In T&D Video, as in A.F.M., the state court based its

decision solely on First Amendment grounds, beginning its

analysis by characterizing the case as “a First Amendment

challenge,” even though the plaintiff had also pled its claim

under article 16. T&D Video, 423 Mass. at 580, 670 N.E.2d

at 165. T&D Video discusses four federal cases, citing not one

state case, and relying heavily on and purporting to clarify

Renton. See 423 Mass. at 580-82, 670 N.E.2d at 165-66. In its

two-page analysis of the constitutional question presented, the

Court discusses and relies exclusively upon federal case law

under the First Amendment. Nowhere in that analysis does T&D

Video make any reference whatsoever to article 16 or otherwise

indicate that distinct Massachusetts Constitutional

considerations played any role in the Supreme Judicial Court’s

decision. Indeed, the only reference to article 16 in the entire

decision is in its description of the plaintiff's claims. 423 Mass.

at 578, 670 N.E.2d at 163.

Furthermore, like A.F.M., T&D Video does not stand for

the proposition for which it is cited by DHL. The Supreme

Judicial Court did not, as DHL contends, create a new,

heightened standard for determining whether a zoning restriction

is designed to further a substantial government interest.

(See Petition, p.6-7). Applying federal case law, the state court

noted that a municipality may not rely upon “merely speculative

factual grounds” and “([mlJere conclusions asserted after an

ordinance’s enactment regarding the secondary effects of adult

entertainment.” 423 Mass. at 581, 670 N.E.2d at 165 (quoting

Krueger v. Pensacola, 759 F.2d 851, 855 (11 Cir. 1985). This

language does not constitute, or even hint at, a stricter standard

for reviewing adult entertainment zoning restrictions under

article 16 than under the First Amendment.

10

Nowhere in 7&D Video does the Massachusetts court

purport to apply any standard other than the Renton analysis.

While the Town agrees that T&D Video may have mis-applied

that standard to the particular facts of that case, this simply

does not create a novel and unsettled question of state

constitutional law.

c. Other Article 16 Jurisprudence

DHL argues that it is unsettled whether Article 16 affords

adult entertainment broader protection from zoning restrictions

than the First Amendment. Repeated and established holdings

of the Massachusetts Supreme Judicial Court belie that

argument. Massachusetts’ highest court has firmly established

— and never disclaimed — the principle that article 16 is to be

construed coextensively with the First Amendment, stating, “‘the

criteria which have been established by the United States

Supreme Court for judging claims arising under the First

Amendment ... are equally appropriate to claims brought

under the cognate provisions of the Massachusetts

Constitution.” Opinion of the Justices to the House of

Representatives, 387 Mass. 1201, 1202, 440 N.E.2d 1159, 1160

(1982) (quoting Colo v. Treasurer & Receiver General, 378

Mass. 550, 558, 392 N.E.2d 1195, 1200 (1979)) (emphasis

added). Therefore, certification in this instance would have been

both futile and wasteful of the time and resources of the courts

and the parties.

In an attempt to circumvent this established principle, DHL

argues that three cases, “Redgrave v. Boston Symphony

Orchestra, 855 F.2d 888 (1° 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

1]

adult entertainment than the First Amendment.” (Petition, p.15).

While these cases do establish a different application in article

16 cases where the Twenty-First Amendment is implicated, this

difference in application is narrowly limited to the subject of

regulating the service of alcohol in conjunction with adult

entertainment.

Both Sees and Cabaret involved challenges to local and

state legislation making it illegal to present nude dancing in

liquor licensed establishments. In this context, both cases found

that article 16 provided broader protection for nude dancing in

nightclubs than the First Amendment, but only because, due to

the Twenty-First Amendment, “federal courts must allow states

‘broad powers . . . to regulate the sale of liquor [including the

right to] ban nude dancing as part of [their] liquor license

program,’ ” while Article 16 is subject to no such limitation.

Redgrave, 855 F.2d at 918 n.4 (quoting Doran v. Salem Inn,

Inc., 422 U.S. 922, 932 (1975)) (Bownes, J., dissenting). This

application is not pertinent and provided no support for

certification here. Accordingly, it provides no basis for the grant

of DHL’s present petition.

2. Denial of plaintiff's request for certification is

entirely consistent with decisions of this Court. —

In arguing that the Court of Appeals erred in refusing to

certify questions of state law to the Massachusetts Supreme

Judicial Court, DHL asserts that the First Circuit’s refusal to

do so conflicts with this Court’s decision in Arizonans for

Official English v. Arizona, 520 U.S. 43 (1997). DHL’s

assertion is incorrect. In Arizonans, this Court vacated a decision

3. DHL argues that the Court of Appeals “ignored the holding”

in Arizonans, yet DHL did not cite Arizonans in any of its briefs to

the District Court or Court of Appeals.

12

of the Court of Appeals for the Ninth Circuit, which had

invalidated a state constitutional amendment designating

English as the state’s official language, primarily on the ground

that the controversy there at issue had become moot. 520 US.

at 74-75. The Court also indicated that the lower courts should

have certified to the Arizona Supreme Court the question of

how to interpret the challenged amendment. /d. at 75-80.

The instant case is readily distinguishable from Arizonans:

here the meaning and application of the legislation subject to

challenge is not in dispute. In Arizonans this Court professed

that certification would have been proper to permit the state

court to rule on the meaning of the subject amendment.

520 U.S. at 76 (rejecting the lower courts’ characterization of

the subject amendment as “plain” in meaning). The reason for

this approach is that the proper construction of a challenged

legislative provision is a necessary question antecedent to review

of such a provision’s constitutional validity. Therefore, where

state legislation is subject to disparate constructions, a federal

court should not adjudicate that legislation’s validity under the

United States Constitution without the benefit of the state courts’

opinion of the meaning of such legislation. See Arizonans, 520

USS. at 80.

The aduit entertainment By-law and the 1996 zone here in

issue, unlike the state constitutional provision at issue in

Arizonans, are not novel or subject to multiple constructions,

and DHL does not allege they are. DHL alleges only that these

restrictions are unconstitutional under the First Amendment and

its state constitutional analogue, article 16 of the Massachusetts

Declaration of Rights. As note above, the Massachusetts

Supreme Judicial Court has indicated, both affirmatively in

Opinion of the Justices, 387 Mass. at 1202, 440 N.E.2d at 1160,

and by its omission of any independent reference to article 16

13

in T&D Video and A.F.M., that article 16 is to be construed as

coextensive with the First Amendment. Clearly, then, the

reasoning employed in Arizonans is not apposite in this instance,

and the Court of Appeals properly rejected DHL’s argument

for certification.

Absent from DHL’s petition is any mention of the standard

commonly applied to determine whether to exercise jurisdiction

over federal questions in cases involving analogous state and

federal constitutional provisions, Michigan v. Long, 463 U.S.

1032 (1983). In Long, this Court was presented with an appeal

from a state court decision, which rested upon both federal and

state law grounds. In determining whether to exercise

jurisdiction over the federal question, the Court expressed its

concern to ensure: “[rjespect for the independence of state

courts, as well as avoidance of rendering advisory opinions.”

Id. at 1040. In order to replace the previously “ad hoc” method

of addressing these concerns, this Court adopted the so-called

“plain statement” test:

Accordingly, when, as in this case, a state court

decision fairly appears to rest primarily on federal

law, or to be interwoven with the federal law, and

when the adequacy and independence of any

possible state law ground is not clear from the

face of the opinion, we will accept as the most

reasonable explanation that the state court decided

the case the way it did because it believed that

federal law required it todo so... “It is

fundamental that state courts be left free and

unfettered by us in interpreting their state

constitutions. But it is equally important that

ambiguous or obscure adjudications by state

courts do not stand as barriers to a determination

14

by this Court of the validity under the federal

constitution of state action.” .. . [1]n determining,

as we must, whether we have jurisdiction to

review a case that is alleged to rest on adequate

and independent state grounds, we merely assume

that there are no such grounds when it is not clear

from the opinion itself that the state court relied

upon an adequate and independent state ground

and when it fairly appears that the state court

rested its decision primarily on federal law.

Long, 463 U.S. at 1040-42 (citations omitted) (emphasis

added).

The test set forth in Long is directly applicable to the District

Court’s decision to address the federal question presented here,

where DHL bases its certification argument upon the unfounded

assertion that A.F.M. and T&D Video were decided upon

independent state grounds under article 16 of the Massachusetts

Declaration of Rights. As discussed above, both A.F.M. and

T&D Video relied exclusively upon federal law and applied the

federal standard established in Renton. More importantly,

neither case contains a plain statement, or indeed any indication

whatever, that article 16 provided a basis independent of the

First Amendment for the holdings therein.

In sum, Massachusetts courts have had ample opportunity

to review Renton and its progeny and to determine whether to

forge a divergent body of case law to afford adult entertainment

protections broader than those of the First Amencment. The

state courts have declined to do so, however, choosing instead

to construe article 16 coextensively with the First Amendment.

This question is hardly novel, fourteen years after Renton.

Compare Arizonans, 520 U.S. 43 (concerning newly-adopted

15

amendment to state constitution, which state courts had not had

opportunity to construe). Absent a plain statement by the

Supreme Judicial Court to the contrary, therefore, the state and

federal constitutional protections of adult entertainment must

be construed as coextensive. Accordingly, the Court of Appeals

properly declined to certify this question to the state court, and

DHL’s Petition should be denied.

3. The state law questions would not be dispositive.

This Court should also reject DHL’s certification argument

because the state law questions would not obviate the need for

adjudication of the federal questions, insofar as DHL would

have to succeed in its federal claims to obtain an award of

attorneys fees and costs, as requested in the Complaint.

Under the federal-Civil Rights Act, 42 U.S.C. §§ 1983 and

1988(b), a plaintiff may be entitled to damages, attorneys fees

and costs if it can prove the violation by a state actor of a

federally-protected civil right. (App. la-2a). Thus, if DHL were

successfu! on its First Amendment claims, it might recover

attomeys fees and costs,* which, after such protracted litigation,

are likely to be substantial.

In contrast, the Massachusetts Civil Rights Act, Mass. Gen.

L. ch. 12, §§ 11H and 111 (“MCRA”), requires not only proof

that a plaintiffs rights have been violated, but that they have

been violated by means of “threats, intimidation or coercion.”

(App. 2a-3a). To violate the MCRA there must be, in addition

to the deprivation itself, “something akin to duress which causes

the victim to relinquish [his] rights.” Butler v. RMS

Technologies, Inc., 741 F. Supp. 1008, 1011 (D. Mass. 1990);

see, e.g., Freeman v. Planning Bd. of West Boylston, 419 Mass.

4. DHL waived its damages claims prior to trial.

16

548, 646 N.E.2d 139, cert. denied, 516 U.S. 931 (1995). A direct

deprivation of a secured right will not violate the MCRA if it

“lacks the quality of coercion.” Butler, 741 F. Supp. at 1011.

In this instance, DHL has made no showing that the Town

violated its rights through use of threats, intimidation or

coercion. Indeed, it is undisputed that the Town has not even

enforced its adult entertainment By-law against DHL, pending

the outcome of this litigation. (Petitioner’s App. 6a-7a). Absent

such a showing, DHL can only recover under the federal Civil

Rights Act and not under the MCRA. Therefore, even if the

actual validity of the 1996 zone could be adjudicated by the

state courts separately and independently of First Amendment

considerations, DHL’s claim for attorneys fees and costs could

not, and adjudication of the federal questions was therefore

necessary to address these claims.

B. The plaintiffs untimely requests for certification

comprise an improper attempt to manipulate the

federal courts’ jurisdiction to insulate from review

by the federal judiciary state court interpretations

of federal constitutional provisions favorable to the

plaintiff.

The Supreme Court and lower ‘ederal courts are vested

with jurisdiction over cases arising under the United States

Constitution. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch)

137 (1803); 28 U.S.C. § 1331. As demonstrated above, and

notwithstanding plaintiff's belated attempt to recast this case

under the state constitution, this litigation primarily concerns

claims under the First Amendment and 42 U.S.C. § 1983.

In light of the belated nature of DHL’s first requests for

the District Court to remand or certify state law questions and

17

the timing of these requests immediately following adverse

rulings by the District Court, it appears that DHL’s true strategic

motivation was to shift this case to a forum more favorable to

its position. Likewise, by admitting that the Supreme Judicial

Court’s rulings in T&D Video and A.F.M. conflict with Renton,

but arguing that this Court should assume those cases to have

been decided under the state constitution, DHL is attempting

to manipulate this Court’s sensitivity to issues of federalism

for the purpose of preserving from review by this Court

potentially erroneous interpretations of the First Amendment

by the state courts. This Court recently expressed its distaste

for such behavior and its “interest in preventing litigants from

attempting to manipulate the Court’s jurisdiction to insulate a

favorable decision from review.” City of Erie vy. Pap’s, A.M.

(DBA “Kandyland”, _ U.S. _, No. 98-1161, slip op., 2000

U.S. LEXIS 2347, *23 (March 29, 2000). This interest would

be ill served by permitting DHL to seek review of its

fundamentally federal claims in the state courts. Accordingly,

the lower courts’ exercise of discretion in declining certification

is consistent with standards articulated by this Court, and

certiorari should be denied on this additional basis.

II.

THE COURT OF APPEALS APPLIED THE RENTON

STANDARD CONSISTENTLY WITH HOLDINGS OF

THIS COURT AND OTHER CIRCUITS.

DHL urges this Court to grant the writ on the basis that

“the Court of Appeals failed to properly apply the substantial

governmental interest and reasonable opportunity to open and

operate tests under Renton v. Playtime Theatres, Inc.” (Petition,

p.24). As a preliminary matter, the Town notes that the alleged

failure of a lower court to “properly apply” a correctly-stated

18

standard is not an appropriate subject for certiorari. See

Sup. Ct. R. 10 (*A petition for a wnt of certiorari is rarely granted

when the asserted error consists of erroneous factual findings

or the misapplication of a properly stated rule of law”)

(emphasis added).

It is not disputed that the Court of Appeals correctly stated

the applicable rules of law in this case. Specifically, the Court

of Appeals referred to Renton and first considered the

appropriate level of scrutiny to be applied to the Town’s

By-law. In making this determination, the Court of Appeals, in

accordance with Renton, inquired as to whether the By-law was

“aimed at combating the secondary effects of nude dancing

rather than the content of the message expressed by nude

dancing.” (Petitioner’s App. 15a-16a, 20a-21a). Likewise, the

Court of Appeals applied the proper standard in determining

the constitutional adequacy of the 1996 zone’ by inquiring

“whether Tyngsborough’s ordinance allows reasonable

alternative methods of communication.” (Petitioner’s App. 21a).

These are the exact standards established in Renton.

See 475 U.S. at 46. DHL’s dissatisfaction with the result of the

Court of Appeals application of these standards to the particular

facts of this case does not raise an appropriate subject for review

by this Court on certiorari. For this reason alone, the Court

should deny DHL’s Petition.

In any event, as discussed in greater detail below, the Court

of Appeals did not misapply the Renton standard. The decision

5. The Court of Appeals held that the validity of the 1989

and 1994 zones was moot, in light of its determination that the 1996

zone is constitutional. DHL has not addressed this holding in

its Petition and has, therefore, waived this issue. See Sup. Ct.

R. 14(1)(a).

19

below does not conflict with Renton, with any other decisions

of this Court or with decisions of other courts of appeal. As

such, no basis for the grant of certiorari exists.

A. The Court of Appeals properly affirmed the District

Court’s determination that the By-law was designed

to combat the adverse secondary effects commonly

associated with adult entertainment.

DHL’s sole argument in support of its position that the

Court of Appeals erred in determining that the 1996 zone was

designed to further the substantial governmental interest of

combating adverse secondary effects associated with adult

entertainment is that any amendment of the By-law required

new evidence of such secondary effects. (See Petition,

pp.26-29). DHL argues that the considerations prompting the

Town’s adoption of the 1994 zone could not justify the adoption

of a new zone in 1996. It further argues that the Court of

Appeals’ rejection of this argument below “not only

misconstrues the purpose of Renton's substantial government

interest requirement but also conflicts with two recent cases.”

(Petition, p.27). This Court should deny the petition because

the Court of Appeals’ decision is in accord with the decisions

of this Court and because the cases upon which DHL relies are

not apposite.

1. The Court of Appeals’ decision does not conflict with

the decisions of any other Circuit.

DHL relies upon two cases for its proposition that a conflict

between the First Circuit’s decision below and decisions of other

circuits warrants further review by this Court. Both cases are

readily distinguishable, in that each involved new enactments

by the defendant-municipalities, which were substantially more -

ee

20

restrictive than the ordinances they replaced. See J&B

Entertainment, Inc. v. City of Jackson, Miss., 152 F.3d 362,

374 (S" Cir. 1998) (replacement of simple zoning restrictions

on adult entertainment with complete ban on public nudity)

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

754, 771-72 (S.D. Tex. 1998)° (where new ordinance “increases

locational restrictions on all sexually oriented businesses,

expands the reach of signage restrictions, and adds new

regulations affecting individuals working in sexually oriented

businesses” and requires applicants for adult entertainment

licenses to “publish newspaper notices warning the public of

their applications”).

In contrast to the cases cited by DHL, the Town did not

increase its restrictions on adult entertainment, or otherwise

substantially alter the nature of those restrictions, when it

adopted the 1996 zone. To the contrary, the 1996 zone icreases

the number of lots and the amount of acreage available fcr adult

uses and was actually adopted “for the purpose of makivig [the

By-law] more likely to overcome constitutional chalienge.”

(Petititoner’s App. 10a). Certainly, a Town need not justify by

new references to adverse secondary effects an atiempt to

provide greater opportunity for expression.

N.W. Enterprises is distinguishable for the additional reason

that the district court’s decision in that case emphasized the

lengthy delay between the two enactments involved.

Specifically, the city attempted to justify new restrictions

adopted in 1996 by reference to evidence that it considered

6. Asa threshold matter, any purported conflic. with a district

court decision such as N.W. Enterprises does not warrant review by

this Court. See Sup. Ct. R. 10(a) (referring to “conflict with the

decision of another United States court of appeals”) (emphasis

added).

21

secondary effects in adopting a prior ordinance thirteen years

earlier, in 1983. 27 F. Supp.2d at 804. In rejecting the city’s

contention in this regard, the district court distinguished a Fifth

Circuit Court of Appeals case’ that permitted the city to rely on

the record of the 1983 ordinance to justify a 1986 amendment,

“which was enacted a mere three years after the 1983 legislative

record was compiled.” 27 F. Supp.2d at 804 (emphasis added).

Certainly, this holding is consistent with the First Circuit’s

holding in this case that, adopting the 1996 zone, the Town

could rely upon considerations of secondary effects that

prompted adoption of the 1994 zone just two years prior.

2. The Court of Appeals’ decision in this case is

consistent with the holdings of this Court and other

circuits.

As demonstrated above, DHL’s argument that the First

Circuit’s decision below is inconsistent with case law from other

circuits is without merit. In addition, the petition should be

denied because the First Circuit’s holding that the 1996 zone

was designed to address concerns regarding adverse secondary

effects of adult entertainment comports with established

precedent of this Court and other Circuits.

This Court recently reaffirmed the principle that.

municipalities may rely upon their experiences and knowledge

regarding the well known effects of adult entertainment when

regulating such entertainment. See City of Erie v. Pap’s, supra,

__U.S.__, No. 98-1161, 2000 U.S. Lexis 2347, *39-40. In this

instance, both lower courts found that the Town’s regulation of

adult entertainment was prompted by its experience that

7. SDJ, Inc. v. City of Houston, 837 F.2d 1268 (5" Cir. 1988),

cert. denied sub nom. M.E.F. Enterprises, Inc. v. City of Houston,

489 U.S. 1052 (1989).

22

establishments offering such entertainment in Town generate

more police activity than do other liquor licensed establishments

and by stated concerns of Town citizens regarding the increase

in crime that might be caused by such establishments.

(Petitioner’s App. 17a-18a, 40a). These considerations are no

less relevant to the Town’s adoption of the 1996 zone than they

were to the adoption of the 1994 zone.

Further, the Fifth Circuit, the only circuit identified by DHL

as being at odds with the First Circuit in this regard (see Petition,

p. 27-29), has itself held that a municipality need not

demonstrate that an amendment to an adult entertainment

regulation was prompted by new considerations regarding

secondary effects, at least where, as here, the amendment is not

too remote in time from the previous legislation, and where the

amendment is not substantially more restrictive. See SDJ, supra,

837 F.2d at 1273 (“Although the 1986 supplemental report

relates no empirical evidence of the effects of topless bars, that

report incorporates the 1982 report, which does refer to topless

bars”); see also DLS, Inc. v. City of Chattanooga, 107 F.3d

403, 410-11 (3 Cir. 1997) (rejecting as irrelevant allegation

“that much of the evidence of crime and health effects was

developed after the enactment of the [challenged] amendment

to the ordinance, and therefore is not evidence of the City

Council’s intent”); Phillips v. Borough of Keyport, 107 F.3d

164, 178 (3™ Cir. 1997) (same).

As demonstrated above, the First Circuit’s decision below

is in accord with the decisions of this Court and other circuits.

Therefore, DHL’s Petition should be denied.

23

B. The Court of Appeals properly affirmed the District

Court’s determination that the 1996 zone provides

for a reasonable opportunity for adult entertainment

| establishments to open and operate.

DHL makes two arguments in support of its position that

| the Court of Appeals improperly held that the 1996 zone

provides for reasonable alternative avenues for the presentation

of adult entertainment: (1) that the Court of Appeals improperly

determined the availability of land within the 1996 zone as of

the date of trial; and (2) that the area within the zone is too

small, as a matter of law, to satisfy Renton. Neither argument is

supported by a reading of Renton or other decisions of this Court

and other circuits.

1. The Court of Appeals’ holding that land within the

1996 zone is potentially available comports with

Renton and decisions of other Circuits.

DHL is wrong in its assertion that a municipality is required

to inquire as to the availability of land within a proposed adult

entertainment zone, prior to enacting such « zone.’ (See Petition,

p.24-25). This Court explicitly rejected this notion in Renton,

when it stated that adult business “must fend for themselves in

the real estate market, on an equal footing with other prospective

8. It is noteworthy that Walter Erikson, the owner of the land

: within the 1996 zone, testified “that if presented with the right price

he ... would sell to an adult entertainment establishment.”

(Plaintiff's App., 46a). It is undisputed that DHL never made a single

offer to purchase or lease land within the 1996 zone, (A. 641), and

it cannot argue that Mr. Erikson would not have entertained a

reasonable offer from DHL had one been tendered. Therefore, any

argument that land within the 1996 zone was not reasonably available

prior to trial is wholly speculative and should not be credited by

this Court.

24

purchasers.” 475 U.S. at 54. See also Woodall v. City of

El Paso, 49 F.3d 1120, 1125 (5" Cir. 1995) (“The Adult

Businesses claimed that some sites were unavailable because

the owner of the site probably would not rent or sell to an adult

business, or because the building was currently occupied or

leased, neither of which is of any obvious concern under

Renton”). The only federal decision to suggest that actual

availability is even a consideration stopped well short of

endorsing the position urged by DHL. See Topanga Press v.

Los Angeles, 989 F.2d 1524, 1531 (9" Cir. 1993) (property “‘is

not ‘potentially’ available when it is unreasonable to believe

that 1t would ever become available to /any] commercial

enterprise’) (emphasis added).

In reviewing the reasonableness of the 1996 zone, the Court

of Appeals applied the same standard established in Renton

aid thereafter applied by all federal courts, to wit, whether the

zone provides sites that are “ ‘potentially’ as opposed to

‘actually’ available” for adult entertainment. Renton, 475 U.S.

at 43. (See Petitioner's App. 23a). As DHL has failed to identify

any inconsistency between the First Circuit’s decision below

and the decisions of this Court and other circuits, the petition is

without merit, and the writ should be denied.

2. The Court of Appeals’ fact-based finding that the

1996 zone provides for reasonable alternative

avenues of communication for adult entertainment

is consistent with the decisions of this Court and

other Circuits.

DHL argues that “no court has upheld” an adult zone as

small as that comprising the 1996 zone. (Petition, p.25). As the

Court of Appeals noted, “‘D.H.L. misses the mark, however, in

emphasizing this single factor.” (Petitioner’s App. 22a). In

emphasizing this factor, to the exclusion of other relevant

y

considerations, DHL compleiely misconstrues applicable case

law. See North Avenue Novelties, Inc. v. City of Chicago,

88 F.3d 441, 445 (7™ Cir. 1996) (“acreage, standing alone, is

largely irrelevant”); Lakeland Lounge v. City of Jackson, 973

F.2d 1255, 1260 (S" Cir. 1992) (“There is no requirement in

Renton, Woodall, or elsewhere that a specific proportion of a

municipality be open for adult businesses or that a certain

number of lots be available).

The Court of Appeals acted in accord with other federal

courts when it reviewed the adequacy of the 1996 zone in light

of the character of the Town and the demand for sites to operate

adult businesses therein. In contrast to the large-city defendants

in the cases cited by DHL (Petition, pp.25-26 n.19), the Town

is small, rural in character and without a large, central,

commercial area. (See Petitioner’s App. 23a). More importantly,

‘as a matter of arithmetic,” Woodall, 49 F.3d at 1127; Lakeland

Lounge, 973 F.2d at 1260, the five available lots within the

1996 zone more than satisfy any demand that DHL might have

to relocate. It is also significant that the Town is permitting

another adult entertainment establishment, which predates the

By-law, to operate outside of the 1996 zone.

In upholding the 1996 zone based upon the size and

character of the Town and the fact that the number of available

sites exceeds potential demand therefor, the First Circuit

followed the decisions of other circuits, which have found these

to be determinative factors, and conformed with Renton’s

“reasonableness” standard, which must be viewed in light of

such factors. For this final reason, the petition should be denied.

26

CONCLUSION

For the foregoing reasons, the petition for writ of certiorari

should be denied.

Respectfully submitted,

RICHARD BOWEN

Counsel of Record

JONATHAN M. SILVERSTEIN

KOPELMAN AND PAIGE, P.C.

Attorneys for Respondents

31 St. James Avenue

Boston, MA 02116

(617) 556-0007