Opposition Brief — City of Knoxville v. Entertainment Resources, LLC

10

this case, simply a pretext for the City’s desire to regulate

unpopular speech, making this an inappropriate case to

consider whether quantitative standards frustrate or

actually further such regulations’ purposes."

More fundamentally, the stipulated fact that the City

did not consider the issue of secondary effects in enacting

the Ordinance explains why the City could not provide

legitimate or consistent guidance regarding its proper

interpretation or application. Given that the City failed to

consider or articulate a constitutional purpose for the

legislation, it is not surprising that the agencies charged

to enforce it were unable to provide any form of guidance,

formal or informal, regarding how it might be applied or

interpreted in a way that is rationally related to a consti-

tutional end. Even at this late date, the City’s best attempt

to articulate a meaning for the Ordinance consistent with

its purpose devolves into argument about whether any

more than a trivial amount of stock or trade of objection-

able content may be tolerated.

~

* Resolution of this issue should await a case in which there is

some evidence regarding the impact of differing inventory mixes on

secondary effects. That is because in setting a standard the City cannot

arbitrarily adopt a standard. Instead, any standard must be linked to

secondary effects in that it must be set no higher than the level the City

reasonably believes necessary to ameliorate secondary effects. There-

fore, consideration of whether a percentage standard frustrates or

furthers efforts to ameliorate secondary effects cannot be considered in

the absence of evidence on that point. In the absence of such evidence,

the City’s concerns about a percentage standard are hypothesized at

best and disingenuous at worst.

11

Ill. The Tennessee Supreme Court’s Decision Will

Have Little Impact Outside of Knoxville, Ten-

nessee.

The City argues that the Tennessee Supreme Court's

opinion threatens the viability of more than 275 municipal

ordinances that adepted the “substantial or significant”

formulation after this Court rejected vagueness challenges

to a Detroit ordinance that employed that very language.

See Young v. American Mini Theatres, Inc., 427 U.S. 50

(1976). While this Court rejected, on standisig grounds, the

vagueness issues raised in Young, those challenges were

mounted by operators of two “adult motion picture thea-

ters,” so the “substantial or significant” language was not

before the Court in Young. Id. at 55 & 58-61.

More importantly, the Tennessee Supreme Court’s

opinion in this case was grounded in, and will be limited

by, the unique facts of the case. As the discussion above

recounts, the Tennessee Supreme Court's decision was

driven by the fact that the City of Knoxville repeatedly

refused to provide any guidance on the contours of the

Ordinance to Entertainment Resources, the Knoxville

police officers who were charged with enforcing the Ordi-

nance, or even to the court. Pet. App. 1la-15a. The Tennes-

see Supreme Court was particularly perplexed by the

City’s reluctance to provide any guidance, since the City’s

position on the Gemstone Video stores made clear the City

had some idea of where the dividing line must lie (or

perhaps simply had an idea about which businesses it

wanted in the City and which businesses it did not). Pet.

App. 15a.” Despite its holding that the Ordinance was

* Chief Justice Drowota, who concurred in the results because he

determined that the Ordinance was vague as applied to Ertertainment

(Continued on following page)

12

vague on its face, the majority opinion acknowledged the

possibility that the Ordinance was subject to a narrowing

construction that would save it. Pet. App. 14a. The major-

ity opinion, however, stated that in the absence of “any

hint from the City,” it was “at a loss” as to how to impart

meaning without rewriting the Ordinance. Pet. App. 14a.

Under those unique circumstances, it had no choice but to

strike down the Ordinance.

The Tennessee Supreme Court’s frustrations (shared

in both the majority and concurring opinions) with the

City’s failure to provide any guidance in the face of re-

peated requests provide a roadmap for municipalities

seeking to avoid the same fate as the City of Knoxville. If

municipalities insist on holding onto the “substantial or

significant” language, they can avoid the City’s problems

by providing guidance on the meaning of those terms to (1)

those charged with enforcing the regulation, (2) those

potentially subject to regulation by it, and (3) courts called

upon to adjudicate disputes arising under the regulation.

For that reason, the Tennessee Supreme Court’s opinion is

unlikely to have the far-reaching impact the City predicts,

so the opinion does not warrant review by this Court. _

+

Resources, also took the City to task for failing to provide any such

guidance. Pet. App. 18a-19a.

13

CONCLUSION

For the foregoing reasons, the City’s Petition for a

Writ of Certiorari should be denied.

Respectfully submitted,

PHILIP N. ELBERT, Esq.

Counsel of Record

NEAL & HARWELL, PLC

2000 One Nashville Place

150 Fourth Avenue, North

Nashville, TN 37219

(615) 244-1713

Counsel for Entertainment

Resources, LLC

[ Siprome Cour 0S.

3 FILED

NOV -7 2065

No. 05-410 OFFICE OF THE CLERK

3n the

Supreme Court of the Anited States

Crry oF KNOXVILLE,

Petitioner,

Vv.

ENTERTAINMENT Resources, LLC,

d/b/a Fantasy Video,

ss Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Tennessee

PETITIONER'S REPLY BRIEF

Scott D. BerGcTrHoLp

Counsel of Record

Law OFFICE OF

Scott D. BerGctuoip, P.L.L.C.

8052 Stanpirer Gap Roap

Surre C

Cuatranooca, TN 37421

(423) 899-3025

(423) 899-3029 Fax

November 4, 2005

Becker Gallagher Legal Publishing, Inc. 800.890.5001

.

TABLE OF CONTENTS

Se ie dad ue beeea i

si 2s ee wipe ape bee ek il

i” uCéirw oe uerere eves sen’ one |

{. Because Due Process Protections Under the

United States and Tennessee Constitutions Are

Identical, This Court Has Jurisdiction Under

i Cie cee es 600d eee es oe at

Il. Respondent Acknowledges that the Decision

Below Requires Mathematical Precision in

Contravention of Established Vagueness Doctrine

ill. The Tennessee Supreme Court Invalidated

“Substantial or Significant Portion of Its Stock in

Trade” as Unconstitutionally Vague On Its Face,

and the Facts of This Case Do Not Limit the

Impact of That Determination. ........ ae @.

eh ET a eo et ag Si ee

TABLE OF AUTHORITIES

Cases

Broadrick v. Oklahoma,

Geren LE o'.nve xvdnscWhatkewneaes 2

City of Chicago v. Scandia Books,

102 Ill. App. 3d 292, 430 N.E.2d 14,

58 Ill. Dec. 72 (Tl. Ct. App. 1981) ........... 4

511 Detrouw Street, Inc. v. Kelley,

OOF P28 BES a” Cir. TORR ow ec ccccccveses 4

Enterprise Irrigation District v. Farmers Mutual Canal Co..,

en Ws EE EIUEED 6 on cb aibovenendeeseeet 2

Grayned v. City of Rockford,

EN 2 os a tian owderd vcorwnen 2,3

Hill v. Colorado,

i a ee eee 3

ILO Investments, Inc. v. City of Rochester,

BD Rae Sa Ot. TIO oc ccvvesecccesses 4

Kolender v. Lawson,

Gr Ges SEE. bc Wed eae’ oh ehncuendes 2

Michigan v. Long, 463 U.S. 1032 (1983) ......... 1,2

Smith v. Goguen,

GST ee 0 0 bp escewatnbasenwenen 2

Z.J. Gifts D-2, L.L.C. v. City of Aurora,

93 P.3d 633 (Colo. Ct. App. 2004) .......... 3,4

l

ARGUMENT IN REPLY

Respondent's brief in opposition to the petition is tellingly

silent on the most basic reason for granting certiorari in this

case: a significant split of authority over a recurring question

of constitutional law requiring this Court’s resolution. This

reason for granting the writ, addressed at pages 9-12 of the

petition, with additional citations to conflicting appeilate

decision at pages 14-16 thereof, goes unanswered by

respondent. Instead, the brief in opposition makes an

irrelevant jurisdictional argument and then contends that the

Tennessee Supreme Court was correct in striking the phrase

“substantial or significant portion of its stock in trade” as

unconstitutionally vague on its face. The problem, however,

is that numerous courts have reached the opposite conclusion

in this same context, warranting the Court’s intervention to

settle this question that affects hundreds of municipalities

around the country.

I. Because Due Process Protections Under the United

States and Tennessee Constitutions Are Identical, This

Court Has Jurisdiction Under Michigan v. Long.

Respondent's argument that the Tennessee Supreme Court

held the ordinance to be unconstitutional under the state, as

well as the federal, constitution merely restates that which is

obvious from the decision below. Pet. App. 17a. This

observation, however, does not call into question the

jurisdiction of this Court because the Tennessee Supreme

Court made it clear that “Article I, section 8 of the Tennessee

Constitution provides an identical protection” as that provided

by the Due Process Clause of the Fourteenth Amendment.

Pet. App. 8a. Moreover, the Tennessee Supreme Court's

decision herein, as well as its earlier cases cited in that

decision, rely extensively on federal law. Pet. App. 8a-9a

2

(citing this Court’s vagueness standards from Grayned v. City

of Rockford, 408 U.S. 104 (1972), Kolender v. Lawson, 461

U.S. 352 (1983), Broadrick v. Oklahoma, 413 U.S. 601

(1973), and Smith v. Goguen, 415 U.S. 566 (1974)). Thus,

there is no basis for concluding that the lower court decision

rests on separate and independent state law grounds. Rather,

the “the non-federal ground is se interwoven with the [federal

ground)” that this Court’s “jurisdiction is plain.” Michigan

v. Long, 463 U.S. 1032, 1039 (1983) (quoting Enterprise

Irrigation District v. Farmers Mutual Canal Co., 243 U.S.

157, 164 (1917)).

Il. Respondent Acknowledges that the Decision Below

Requires Mathematical Precision in Contravention of

Established Vagueness Doctrine.

Respondent's merits argument ignores the crux of the

City’s petition - the split of appellate authority on the question

sub judice - and instead argues that this case is on the correct

side of the split. But even this contention runs headlong into

controlling precedent from this Court.

Respondent concludes that “it appears the only way to

‘give the person of ordinary intelligence a reasonable

opportunity to know what is prohibited, so that he may act

accordingly,’ Grayned v. City of Rockford, 408 U.S. 104, 108

(1972), is to establish a percentage standard.” Brf. in Opp.

7.' Respondent thus correctly observes that the Tennessee

Supreme Court's decision requires what neither this Court’s

precedents nor the on-point appellate authorities require: the

mathematical precision of a specific percentage.

' Respondent's brief then undertakes a discussion of the secondary

effects doctrine that is irrelevant to whether the ordinance is

unconstitutionally vague - the only question presented for review.

3

To survive a vagueness challenge, enactments need not

provide “meticulous specifics” or mathematical precision;

they are permitted “flexibility and reasonable breadth.”

Grayned, 408 U.S. at 110; see also, e.g., Z.J. Gifts D-2,

L.L.C. ¥. City of Aurora, 93 P34 633, 639 (Colo. Ct. App.

2004) (“Furthermore, courts have determined that the terms

‘substantial’ and ‘significant’ have recognized meanings in the

English language, and their use in the definition of ‘adult

bookstore’ does not render them vague merely because a

percentage of business devoted to floor space, sales, or

inventory is not specified’”) (internal citations omitted).

Celestial precision is not constitutionally required, and

uncertainty at a statute's margins will not warrant facial

invalidation if it is clear what the statute proscribes “in the

vast majority of its intended applications.” Hill v. Colorado,

530 U.S. 703, 705 (2000).

Here, the Tennessee Supreme Court held that the term

“substantial or significant” is unconstitutionally vague on its

face because it does not specify an exact percentage of

inventory that will successfully circumvent the ordinance.

Pet. App. I4a. That decision is plainly contrary to this

Court's vagueness doctrine - which holds that mathematical

precision is not required - and should be reversed.

Il. The Temmessee Supreme Court Invalidated

“Substantial or Significant Portion of Its Stock in

Trade” as Unconstitutionally Vague On Its Face,

and the Facts of This Case Do Not Limit the

Impact of That Determination.

Respondent's concluding argument cannot be squared with

the decision it seeks to insulate from review. Conceding that

hundreds of cities nationwide employ the language at issue

4

Tennessee Supreme Court's decision is “grounded in, and will

be limited by, the unique facts of the case.” Brf. in Opp. 11.

The problem with this argument, of course, is that the

Tennessee Supreme Court invalidated the Knoxville ordinance

on its face. Indeed, the majority refused to adopt the

narrower concurrence of their Chief Justice, who found the

ordinance to be unconstitutional only as applied to

Entertainment Resources based on the facts particular to the

Fantasy Video store. Pet. App. 18a. Thus, the majority

opinion is in conflict with both state and federal appellate

opinions - including one from the Circuit in which Tennessee

sits - that have rejected facial challenges to the same

language. See, e.g., Z.J. Gifts D-2, supra; City of Chicago

v. Scandia Books, 102 Ill. App. 3d 292, 430 N.E.2d 14, 18,

58 Ill. Dec. 72 (1. Ct. App. 1981); LQ Investments, Inc. v.

City of Rochester, 25 F.3d 1413, 1419 (8 Cir. 1994); 5//

Detroit Street, Inc. v. Kelley, 807 F.2d 1293, 1296 (6" Cir.

1986).

Respondent simply ignores these conflicting authorities

that demonstrate the need for this Court to resolve the

question presented.

5

CONCLUSION

For the reasons stated herein and in the Petition for a Writ

of Certiorari, the City respectfully requests that the Court

grant the Petition.

November 4, 2005 Respectfully submitted,

Scott D. Bergthold

(Counsel of Record)

Law Office of

Scott D. Bergthold, P.L.L.C.

8052 Standifer Gap Rd., Ste. C

Chattanooga, TN 37421

(423) 899-3025

(423) 899-3029 Fax