Reply Brief — Manta Management Management Management Corp. v. City of San Bernardino (No. 08-325)

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No. 08-325 Lorre me cent}

Hu the

Supreme Court of the Anited States

MANTA MANAGEMENT CORPORATION,

Petitioner,

Vv.

CITY OF SAN BERNARDINO,

Respondent.

On Petition for Writ of Certiorari

to the Supreme Court of California

REPLY TO BRIEF IN OPPOSITION

ROGER JON DIAMOND

Counsel of Record

2115 MAIN STREET

SanTA Monica, CA 90405

(310) 399-3259

Counsel for Petitioner

Becker Gallagher - Cincinnats, OH - Washington, D.C. - 800.890.5001

i

TABLE OF CONTENTS

Page

TAREE OF CONTENTS 6 6c icece sie ke aeons i

TABLE CF BUS er ite ns ke shee ews il

Le eI oon i ERO ES 1

II THE CITY'S BRIEF IN OPPOSITION

COPPA ACerS 5s wale Wiis a bm ool oes in

Ill THE ISSUES RAISED IN THE PETITION

ARE WORTHY OF REVIEW ......,.-...-.. 7

A. Conpitastemal Teese. o.6s si aeons 7

B. Meaning of City of Littleton v. Z.J. Gifts... 8

IV THERE IS NO NEED TO AWAIT REMAND .. 8

VY CRATE 8 kc ee Re ee eee 12

li

TABLE OF AUTHORITIES

CASES

Asarco Inc. v. Kadish,

490 U.S. 605, 104 L.Ed.2d 696, 109 S.Ct. 2037

ak SM EG a aS a ea ORs Ree artes 9

City of Knoxville v. Entertainment Resources,

166 S.W.3d 650 (Tenn. 2005), cert. denied, 545

U.S. 1061, 163 L.Ed.2d 627, 126 S.Ct. 798

IE eee Ly gg 6 6c kee eo 6

City of Littleton v. Z.J. Gifts,

TN OE er 8

Cox Broadcasting Corp. v. Cohn,

420 U.S. 469, 43 L.Ed.2d 328, 95 S.Ct. 1029

ang gave gg 10, 11

District of Columbia Court of Appeals v. Feldman,

460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed. 206

ee ee, ee eae 8

Fort Wayne Books, Inc. v. Indiana,

489 U.S. 46, 103 L.Ed.2d 34, 109 S.Ct. 916

SE AA 7 Oa 9, 10, i1

Malley v. Briggs,

oo a ce 6

Manta Management Corp. v. City of San

Bernardino,

43 Cal.4th 400 (2008)............. 1, 2,3, 4,9

ill

Miami Herald Publishing Co. v. Tornillo,

418 U.S. 241, 41 L.Ed.2d 730, 94 S.Ct. 2831

a rk og is gio. 10

North Dakota State Board of Pharmacy v. Snyder’s

Drug Stores, Inc.,

414 U.S. 156, 38 L.Ed.2d 379, 94 S.Ct. 407

SONNE a ea EN ee Wandin Bike ee wip ees 9

Pennsylvania v. Ritchie,

480 U.S. 39, 94 L.Ed.2d 40, 107 S.Ct. 989

ee a ee wes Se)

Rooker v. Fidelity Trust Co.,

263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362

Ee 6G a vn ba S 4 we bao oe Bos 8

CONSTITUTION

Ries Bee, Beene. Tw es 3, 4, 8, 11

STATUTES

ee a ue, SOO EOD oe ee nes 10

ie Sra, CUI BI ok oe cee ews 4,5,8

OTHER AUTHORITIES

Clerk’s Transcript, in People v._Manta

Management Corporation, California Court of

PEE TNG, BRE OGD oo i is ane et nh hee ess 2

1

I INTRODUCTION

On September 8, 2008 Petitioner Manta

Management Corporation (hereinafter “Manta”) filed

a Petition for Writ of Certiorari with this Court to

review a fina! judgment of the California Supreme

Court. The City filed its Brief in Opposition on October

10, 2008. Pursuant to Supreme Court Rule 15(b),

Manta herewith submits this Reply. While there is no

deadline for this Reply Manta understands the clerk

may distribute the Petition and Brief in Opposition on

or after October 20, 2008, to the Court, and will

distribute this Reply to the Court when it is filed. See

Rule 15(5).

II THE CITY’S BRIEF IN OPPOSITION

CONTAINS ERRORS

It is unfortunate that the City makes false

statements in its Brief in Opposition to Petition for

Writ of Certiorari. This is typical of the conduct of the

City throughout this litigation. As the California

Supreme Court recognized, the fight between the City

and Manta began with the City providing “.. .

misinformation regarding the number of sites and

acres within the city on which adult entertainment

businesses could operate. . . .” (Emp::asis added)

Manta Management Corp. v. City of San Bernardino,

43 Cal.4th 400, 413 (2008); Pet. For. Cert., Appendix

C, page 23a.

Now, near the end of this almost 15 year fight for

constitutional rights the City in the first page of its

“Statement of Facts and of the Case” (set forth at page

4, second paragraph) falsely states,

2

. The TRO and preliminary injunction did

not prevent operation; they simply required

Manta’s employees to keep their clothing on

pending a trial.”

To the contrary the TRO prohibited Manta “

from presenting any live adult entertainment .

including . . . erotic touching of human .. . buttocks .

or female breasts . ” See Clerk’s Tismecios. sia

68, lines 20-25, ee eee v. Manta Management

Corporation, California Court of Appeal No. E019635,

which the California Supreme Court judicially noticed.

See Manta Management Corp. v. City of San

Bernardino, 43 Cal.4th 400, 403, footnote 2; Pet. For

Cert., Appendix C, page 6a. The preliminary injunction

included the same language. See Clerk’s Transcript,

p. 622.

The California Supreme Court characterized the

preliminary injunction: The “ . . . preliminary

injunction . . . ordered Manta to cease adult cabaret

performances at the club... .” Id. At 404; Pet. For

Cert, Appendix C, page 8a.

The City’s misstatement at the beginning of its

Brief in Opposition was deliberate. It was designed to

minimize the constitutional violation and subtly

influence this Court to believe the case is not worthy of

review.

At page 5 of its Brief in Opposition, the City

improperly attempts to relitigate the underlying case.

Then, the City mischaracterizes the Writ of

Supersedeas issued by the California Court of Appeal.

The City says the Writ of Supersedeas “ . only

3

required it to keep its “dancers” clothed pending the

resolution of the appeal. .... ” The California Supreme

Court did not limit the description of the writ. The

California Supreme Court stated,

. [T]he Court of Appeal issued a writ of

supersedeas (the stay) that prevented Manta

from ‘operating as an adult business’ pending

resolution of the appeal... .” Id. at 405; Pet. For

Cert., Appendix C, page 9a.

The City’s discussion of “Liability and Manages

Proceedings” states

i . Manta’s case therefore rested on the

premise that the act of requesting a preliminary

injunction, and the act of requesting a writ of

supersedeas pending appeal, violated the First

Amendment.”

The City’s misstatement above as to Manta’s case

misled the California Supreme Court into misstating

the issue. The California Supreme Court stated:

... The issue before us is whether the City’s

act of seeking an injunction to enforce the

ordinance dealing with the location of adult

businesses and its subsequent act of filing a

petition for writ of supersedeas to obtain a stay

pending appeal ‘caused’ the harm suffered by

Manta to the extent that the City is liable for

damages Manta incurred during the 53 months

the injunction and stay were in place.” Id. at

407; Pet. For Cert., Appendix C, page 13a.

SOR Le Pee Te eRe RS ot Teeny NSE eRe Sin es Sar penis et eT SRN Iii Ss iS a sae as oo

4

After misstating the issue based upon the City’s

mischaracterization of Manta’s argument, the

California Supreme Court correctly quoted from the

California Court of Appeal’s decision, which concluded

that it was

. [t]he city’s act of obtaining an injunction to

enforce an unconstitutional ordinance... [that

was] an act in violation of the First Amend-

ment within the meaning of Section 1983. .

Id. at 408; Pet. For Cert., Appendix C, Page 13a.

(Emphasis added)

After correctly paraphrasing the theory announced

by the State Court of Appeal, which is that “the City’s

act of obtaining an injunction to enforce an

unconstitutional ordinance is an act in violation of the

First Amendment,” the California Supreme Court

inexplicably reverted to its earlier mischaracterization

of the issue as to whether it was“... the city’s seeking

a preliminary injunction and a stay... [which] were

acts in violation of the First Amendment that caused

injury to Manta...” (Emphasis in original) Id., at 408;

Pet. For. Cert., Appendix C, pp. 13a to l4a.

What all this means is that the California Court of

Appeal properly recognized that the basis for liability

was the obtaining of the injunction, not the seeking of

the injunction. Obviously the act of the City in seeking

an injunction causes no damage. It is, rather, the

successful obtaining of the preliminary injunction

which causes the damage. That injunction could not

have been obtained in the absence of the

unconstitutional ordinance which the City itself

adopted.

Peete eG aN ee Rae aE ad ee ean Brg tae Mer ae ae PL Pe RE en GP RO Nt oe ae ee GM ne Tent en FM ee YT ee PR

5

Throughout this litigation the City kept hammering

on the theme that it could not be held liable for simply

seeking an injunction. Of course that is true. What

Manta complained about in this case and which was

the basis of liability imposed by the trial court and

sustained by the Court of Appeal was the successful

obtaining of the preliminary injunction and the

successful obtaining of the Writ of Supersedeas fr. m

the Court of Appeal.

The California Court of Appeal below recognized

the difference between simply seeking an injunction on

the one hand and obtaining the injunction on the

other. The Court of Appeal clearly understood that the

basis of liability here was not the fact that the City

sought the preliminary injunction and sought the Writ

of Supersedeas but that the City was successful. The

California Court of Appeal stated in the opinion below

for that Court,

“ .. [A] section 1983 action based upon a city’s

act of obtaining an injunction to enforce an

unconstitutional ordinance is also not subject to

the rule that damages may be recovered only in

an action on a bond.”

The only other state appellate courts to deal with

this issue is the Tennessee Supreme Court and the

Tennessee Court of Appeals. The City argues in this

Court that the Tennessee decisions are not contrary to

the California Supreme Court because the Tennessee

courts did not deal with the precise issue decided by

the California Supreme Court. This is false. The

Tennessee appellate courts ciearly ruled that the

wrongfully issued injunction to enforce an

6

unconstitutional ordinance gave rise to liability on the

part of the city. While it is true the Tennessee courts

did not deal with the issue in detail the decision does

stand unless this Court disapproves it. The City has

cited no case for the contrary proposition.

The City does not state that the decision of the

California Supreme Court below is consistent with the

decision of this Court in Malley v. Briggs, 475 U.S. 335

(1986). Rather, the City simply argues that the

statement by this Court in footnote 7 in Malley v.

Briggs, was merely dictum. Manta concedes that this

Court’s statement in Malley v. Briggs was dictum.

However, certiorari certainly may be granted to clarify

dictum by this Court since lower courts do afford

dictum from this Court great weight even though

technically it is not binding on the lower courts.

The City misses the point in its discussion of the

issue before this Court. Manta has not argued that

there is liability automatically whenever a city seeks

and obtains a preliminary injunction that is later

dissolved. The more narrow issue here, and the issue

that was before the Tennessee appellate courts in City

of Knoxville v. Entertainment Resources, 166 S.W.3d

650 (Tenn. 2005), cert. demed, 545 U.S. 1061, 163

L.Ed.2d 627, 126 S.Ct. 798 (2005) is whether a city

should be held liable under the Civil Rights Act when

it enforces its own unconstitutional ordinance by

obtaining a preliminary injunction later dissolved

upon a determination that the ordinance is un-

constitutional. We would have a different case if the

City of San Bernardino simply went to court to enforce

a state statute. Arguably the City should not be held

responsible if a statute adopted by the State

7

Legislature and signed by the Governor turns out to be

unconstitutional. This case is limited to an

unconstitutional City ordinance adopted by the very

City that obtains a preliminary injunction to enforce it.

Under these circumstances there is liability, or should

be liability, under the Civil Rights Act. The City must

be held accountable for the adoption of its own

unconstitutional ordinance. It has no one else to

blame.

Arguably a trial court judge might be justified in

issuing a preliminary injunction when a state statute

is being enforced. However, when a city seeks

enforcement of its own ordinance the city is impliedly

guaranteeing the validity of that ordinance. The city is

standing behind that ordinance. If it is later held to be

invalid the city should have to pay. Why should the

constitutional right of the person preliminarily

enjoined be damaged without redress.

Ill THE ISSUES RAISED IN THE

PETITION ARE WORTHY OF REVIEW

A. Constitutional Tort

Petiticner submits it was the act of obtaining the

preliminary injunction which caused the damage, not

the act of seeking the preliminary injunction. The

Court of Appeal understood that concept. See Pet. For

Cert., Appendix D, page 32a. Tort law is concerned

with foreseeability. It was certainly foreseeable that if

the City sought a preliminary injunction to enforce its

ordinance a court would grant such a request.

8

B. ing of Cit Littleton v . Gifts

This Court stated in City of Littleton v. Z.J. Gifts,

541 U.S. 774 (2004) that 42 U.S.C. Section 1983

provides “federal remedies” as “an additional safety

valve” if the state courts are not responsive to the

special needs of adult businesses in First Amendment

zoning cases. Clearly the California courts were not

helpful to Manta. So, the question is what did this

Court mear when it referred to federal remedies under

42 U.S.C. Section 1983.

Obviously, Manta could not have gone immediately

to the federal court for injunctive relief. It did go

originally, but was thrown out on preemption grounds.

Under this Court’s decisions in Rooker v. Fidelity

Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362

(1923), and District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed. 206

(1983). Manta contends it did have the right under 42

U.S.C. Section 1983 to seek damages under the federal

statute in the state court. If not, this Court should

clarify its decision in Z.J. Gifts.

IV THERE IS NO NEED TO AWAIT REMAND

In its summary of argument at page 2 of its Briefin

Opposition the City falsely states that the Supreme

Court of California “remanded for a trial on whether

the courts were materially misled. . . .” Brief in

Opposition, page 2.

In contrast to the City’s mischaracterization of

what the State Supreme Court did, the Supreme Court

9

did not remand the matter for trial. Rather, as the

Supreme Court stated in its last paragraph,

“_..{[Wle ... remand the cause to that court

(Court of Appeal] with directions to remand it in

turn to the Superior Court with directions to

conduct proceedings consistent with the views

expressed herein.” See Manta Management

Corp. v. City of San Bernardino, 43 Cal.4th 400,

414 (2008); Pet. For Cert., Appendix C, p. 24a.

There is a difference between a “proceeding” on the

one hand and a “trial” on the other. There is not to be

a new trial in this case. The issue to be decided on

remand is whether there was a _ material

misrepresentation made by the City and the City has

already acknowledged that it made a

misrepresentation. The only issue was whether it was

material.

Based upon this limited remand the City argues

this Court should not take the case at this stage of the

proceedings.

This Court has frequently rejected such an attempt

to subvert this Court’s certiorari jurisdiction. Among

the cases dealing with this issue are:

1. Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46,

103 L.Ed.2d 34, 199 S.Ct. 916 (1989);

2. Pennsylvania v. Ritchie, 480 U.S. 39,94 L.Ed.2d

40, 107 S.Ct. 989 (1987);

10

3. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469,

43 L.Ed.2d 328, 95 S.Ct. 1029 (1975);

4. Miami Herald Publishing Co. v. Tornillo, 418

U.S. 241, 41 L.Ed.2d 730, 94 S.Ct. 2831 (1974); and

5. North Dakota State Board of Pharmacy v.

Snyder’s Drug Stores, Inc., 414 U.S. 156, 38 L.Ed.2d

379, 94 S.Ct. 407 (1973).

6. Asarco Inc. v. Kadish, 490 U.S. 605, 104 L.Ed.2d

696, 109 S.Ct. 2037 (1989).

Manta respectfully submits that these cases clearly

support the proposition that this Honorable Court does

have jurisdiction to entertain Manta’s Petition for Writ

of Certiorari.

Fort Wayne Books, Inc. v. Indiana, supra, appears

to be directly on point. The case involved the seizure

prior to trial of the property of three adult bookstores.

This was done pursuant to a pre trial seizure order. No

trial date was set and the bookstores sought to vacate

the prior seizure order. The trial court refused relief

but did certify the constitutional issues to the Indiana

Court of Appeals, which ruled the seizures to be in

violation of the U.S. Constitution. The Indiana

Supreme Court reversed the Indiana Court of Appeals.

The case was to be then submitted to the Indiana trial

court. The adult bookstores sought review in this

Court, which addressed its own jurisdiction under

Title 28, United States Code, Section 1257. The

specific jurisdictional issue was whether this Court

had jurisdiction to resolve the merits of the case given

the fact that there had yet to be a trial and that the

11

matter had been remanded to the Indiana trial court

for trial.

This Court in the Fort Wayne Books case referred

to its earlier decision in Cox Broadcasting Corp. v.

Cohn, supra, where this Court in Cox stated,

“[W]here the federal issue has been finally

decided in the state courts with further

proceedings pending in which the parties

seeking review here might prevail on the merits

on non federal grounds, thus rendering

unnecessary review of the federal issue by this

court, and where reversal of the state court on

the federal issue would be pyeclusive of any

further litigation on the relevant cause of action

... in the state court proceeding still to come. In

these circumstances, ifa refusal immediately to

review the state court decision might seriously

erode federal policy, the court has entertained

and decided the federal issue, which itself has

been finally determined by the state courts for

the purposes of the state litigation.” Id., 489

U.S. at 55.

Here review by this Court and the reinstatement by

this Court of the decision of the California Court of

Appeal would obviate the need for further proceedings.

It would also resolve an important federal issue

involving the First Amendment and the interpretation

of the Federal Civil Rights Act.

This is an extremely important case. Contrary to

the position of the City, there is a conflict between the

decision of the California Supreme Court and the

tT eT ee

’

12

decision of the Tenrtessee Supreme Court. Review now

will obviate the need for further proceedings in the

Superior Court below. The issue to be resolved on

remand is irrelevant. The California Court of Appeal

below did not need to remand it. Reversal by this

Court of the California Supreme Court’s decision and

reinstatement of the California Court of Appeal’s

decision will bring finality to this litigation.

V CONCLUSION

For the foregoing reasons and for the reasons

expressed in the Petition for Writ of Certiorari,

Petitioner Manta Management Corporation

respectfully asks this Honorable Court to grant the

Writ of Certiorari to review the judgment below.

Respectfully submitted,

ROGER JON DIAMOND

Counsel of Record

2115 Main Street

Santa Monica, CA 90405

Phone: 310/399-3259

Attorney for Petitioner