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HomeMy WebLinkAboutPlaytime Theaters Court Case (1982 - 1983) • OF R� 0 OFFICE OF THE CITY ATTORNEY . RENTON,WASHINGTON 4$ 0 z POST OFFICE BOX 626 100 S 2nd STREET • RENTON,WASHINGTON 98057 255-8678 mi 0 ^ LAWRENCE I.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY 90 P`O DAVID M. DEAN, ASSISTANT CITY ATTORNEY O9 �(C, MARK E. BARBER, ASSISTANT CITY ATTORNEY qr SEPle�i December 6 , 1982 ZANETTA L.FONTES, ASSISTANT CITY ATTORNEY TO : Barbara Y. Shinpoch, Mayor I DEC 1982 Members of Renton City Council Btsc FROM: Daniel Kellogg, Assistant CityAttorney :. OPROF Attached you will find a copy of the Petition and Writ of=_Mandate and/orIProhibition which we have filed in the Ninth Circuit Court of Appeals in San Francisco . The purpose of this Writ is to request that'.the Ninth Circuit Court enter an order directing Judge McGovern to enter an Order of Dismissal of the District Court action because of the lack of jurisdiction under the "abstention doctrine" . This Petition is drawn in such a fashion that if the Petition is deniediby the Ninth Circuit that the Petition can be very quickly placed' in the required format for filing with the Supreme Court of the United States . Quite frankly, we do not expect the Ninth Circuit to grant the Writ . However, if the Supreme Court should decide to face this matter of abstention in local zoning cases , we believe that our case will give them a good opportunity to do so . The second brief is our reply to .the response which Mr . Forbes ' attorneys made to our objections to the Magistrate' s report . This document was filed in the District Court proceedings to put it at issue and to correct some of the incorrect statements which had been made by Mr. Forbes ' lawyers in their response . There is no indication when Judge McGovern will rule on our Motion for Dismissal . We would not be surprised by a delay past the first of the year, particularly in view of the Judge' s extra- ordinary heavy trial calendar. Please contact our office if you have fur stions . Daniel Ke ogg DK:nd Encl . cc : Dave Clemens • City Clerk 1 Hi 901 • 1 . 2 3 4 5 ' _ I 6 7 • UNITED STATES DISTRICT. COURT 9 FOR 'THE WESTERN DISTRICT OF WASHINGTON 10 PLAYTIME THEATRES, INC. , A ) 11 Washi gton corporation , et al ) - 12 Plaintiffs ) C82-59M ) REPLY OF CITY OF RENTON .i 13 . ) TO PLAINTIFF 'S RESPONSE vs ) . TO CITY OF RENTON 'S • 14 ) OBJECTIONS TO THE CITY OF RENTON, et al " - ) MAGISTRATE 'S REPORT AND 15 ) RECOMMENDATION RE Defendants ) PRELIMINARY INJUNCTION 16 ) THE CITY OF RENTON, 9 ) 17 munic ' pal, corporation . ) ) C82-263 . 18 Plaintiffs ) ) . , 19 vs ) • • ) 20 PLAYTIME THEATRES, INC. , a ) 21 Washington corporation, ) • 22 COME NOW The City of Renton , et al to reply to that part 23 . . . of th- Response of Playtime Theatres , Inc . and Kukio Bay. - 24 Prope ties , Inc . ( hereinafter designated . as Playtime andj 25 Kukio) to the ' City' s objections to ' the Magistrate' s report and 26 recom endation re preliminary injunction . . . The City' s reply is 27 limit=d and addresses only-: 28 . WARREN & KELLOGG. P.S. ATTORNEYS AT LAW REPLY OF CITY OF RENTON f00 SO. SECOND ST., P. O. BOX 626 PAGE 1 RENTON, WASHINGTON 98057 255-8678 y • 1 ( a) Matters not appearing on the face of the 2 Magistrate ' s • Report and Recommendations re : Preliminary 3 Injunc ion by calling the U. S. District Judge' s attention to 4 those arts of the record which contain the City' s argument to 5 the Magistrateg on such matters , and 6 (b) New. issues raised by Playtime and Kukio such as 7 "pre-e ption" ( see page 10) , and failure to. amend the State 8complaint� �, ( page 2 , line 22 , et seq) which has not heretofore 9 been considered . 10 I. Proceedings of substance on the merits had not taken 11 lace _prior to the Cit1 of Renton ' s Motion to 12 Dismiss. . . . 13 T e response of Playtime and Kukio ,-. at page 2, lines 2 to 14 21 ,. th t "proceedings of substance on . the merits" have taken 15 place include irrelevant arguments that their "Motion for a 16 Preliminary Injunctioon was put off" and is misleading . The 17 only Federal Court proceedings which took place before the 18 filing of City of Renton' s Motion to Dismiss was a hearing of 19 Plaintiff' s Motion -for a Temporary Restraining Order under 20 their � riginal complaint. Prior to the United States District 21 Court, � ruling on that matter , the Plaintiff filed an Amended 22 and Supplemental Complaint in which they urged a new theory . 23 The City of Renton' s 'reply is set forth in its Memorandum of 24 Points and Authorities in Support of Defendant's Motion • to 25 Dismiss Complaint pursuant to FRCP Section 12 (b) ( 1 ) and 26 12( b) (6) at page 5 , line 9 : 27 . "The plaintiffs were denied a temporary restraining order 28 under . their original Complaint. They have abandoned their original Complaint, 71 C. J. S. , Section 716 , and , , WARREN & KELLOGG. P.S. ATTORNEYS AT LAW REPLY CF CITY OF RENTON 100 30. SECOND ST.. P. O. BOX 626 PAGE 2 RENTON. WASHINGTON 98057 255-8678 1 •ursuant to . Rule 15 of the Federal Rules of Civil •rocedure. , have filed an amended pleading . Within the 2 ime allowed to file a response to such amended pleading , 'enton has filed a Complaint for Declaratory Judgment , 3 nder Chapter 7 .24 R . C.W. wherein it seeks to have the ; ' tate Court render its interpretation of' the 4 •onstitutio;nality of City of Renton Ordinance No . 35261 .nd to resolve the same issues which the plaintiff seeksi, 5 'o have litigated in . this Federal Court. Because a Statel sivil action is now pending in the State Court involving 6 'he same issues and the construction to be given a city •rdinance , this Federal action must be dismissed for the 7 .ollowing reasons. . ." (our emphasis) 8 • S-e also "Petition for Writ of Mandamus and/or Writ of 9 Prohi ition" . in the United State Court of Appeals for the 10 Ninth Circuit entitled "The City of Renton vs. . U. S. District 11 Court " CA , at II. C. , II. B and II. E, on page 8 , line 12 17 th ough page '10, line 21 , and page 32 , line 1 - 18 . 13 I The "pe;nding State action" is not defective . 14 The response of Playtime and Kukio at pages 2 , line 22 15 throu h page 3 , line 3 ,- argues that the "pending State action" • 16 may n t provide 'a basis for abstention because "that complaint ; 17 has n ver been amended" to show that Ordinance No . 3526 was 18 subse uently ' amended by Ordinance No. 3627 . The. simple answer 19 to ths� argumentKukio ' gu is that Playtime and are estopped from 20 makin that argument where their improper removal of the State - I 21 actio to the Federal court made such amendment impossible. 22 See P tition for 'Writ of Mandamus and/or Writ of Prohibition , 23 supra , at page 13, lines 6 - 18; page 13, line 22 - . 14; page 24 15 , line 7 - 14;; . pages 17 , lines 6 - 12 ; page 27 , line 18 -.I 25 37; a d page 32, line 1 - page 33E , line 1 . 26 I I . Because of. the nature of the governmental function , 27 at issue the fact that the federal action was filed 28 first has no relevancy on the issue of abstention . WARREN & KELLOGG. P.S. ATTORNEYS AT LAW REPLY OF CITY OF RENTON 100 SO. SECOND ST.. P. O. BOX 626 PAGE 3 RENTON. WASHINGTON 98057 255-8678 1 The response of Playtime and Kukio at page 3 , lines 9 to 2 12 , t at the tests for abstention set forth in Middlesex 3 Ethics Committee v . Garden State Bar Association , U . S. 4 , 73 L. Ed . 2d . 116 (1982) had not been met because "the 5 Federal action was filed first" is frivolous . See Petition 6 for Writ .of Mandamus and/or Writ of Prohibition , supra , at 7 page 12, lines 1 to 13 and at page 9 , lines 9 to 16 , citing 8 Hicks v . Miranda , 42 U. S. 332 , at 349 and 354 . 9 IV. The "State interest" in the zoning power satisfied 10 the Middlesex County test for abstention . 11 Playtime and Kukio' s claim that the "State interest" .2 asser ed in Middlesex County , supra , " is of far greater 13 importance to the State" then the zoning interest herein is 14 silent on the City' s contrary authorities , i .e Justices .Powell ' 15 and Stevens in Young . See Petition for Writ of Mandamus 16 and/or Writ of Prohibition , supra , at page 33 , lines 2 through 17 page 3 , line 16. 18 V. Magistrate Sweigert did not say what Playtime and 19 Kukio say .he said . 20 Th response of Playtime and Kukio , at page 3 , lines 20, 21 et seq , which cites the comments of Magistrate Sweigert in his 1 22 oral decision on April 9 , 1982 as authority for the 23 propos ' tion that there was no "opportunity in the State 24 procee ings to raise Federal constitutional challenges" is 25 delibe-ately. misleading and improper . Magistrate . Sweigert 26 never said what they claim he said . The remarks of Magistrate 27 Sweige t regarding his ruling on the "Motion to. Remand" relate 28 to the requirement of Gully v . First National Bank in WARREN & KELLOGG. P.S. ATTORNEYS AT LAW REPLY OF CITY OF RENTON '00 SO. SECOND ST.. P. O. BOX 626 PAGE 4 RENTON, WASHINGTON 98057, 255-8678 G I 1 Meridi .:n , 299 U. S. 109 (1936) which holds that an action may 2 not be removed unless the Federal question appeared on the 3 face o the complaint and that removal is improper where the 4 consti utional issue may be raised as a defense . (See 5 Objection to Removal and Motion to Remand to State Court and 6 for Co is at page 7 , line 11 , et seq , filed March 11 , 1982) 7 VI Playtime and Kukio' s arguments that Ordinance No . 8 3637 does not deal with zoning is constructed upon a ! . 9 non-sequitur . 10 At best , .the, response of Playtime and , Kukio , at page . 5 , 11 lines • to 12 , that "Renton' s ordinance does not deal with 12 zoning rather it attempts to create a new catagory ' - of 13 nuisan e , i .e . protected speech conducted in proximity --to 14. certain types of structures" is an . argument which is . I 15 constr cted upon a non-sequitur. Under traditional concepts 16 of municipal law,, a violation of the use provisions of any I . 17 zoning ordinance . ( including Renton Zoning Ordinance No . 3526 , 18 as am .nded) is a public nuisance which is subject- to 19 abatem -nt. See McQuillin Municipal Corporations , Volume ,8 , 20 Sectio 25. 11 "Zoning 'and . Nuisances" at page 31 and Shields v . 21 Spokan School District No. 81 ,. 31 Wn.2d . 247, 196 P.2d . 352 22 following Robinson Dirt Company v . Luth, 115 Colo. 106, 169 23 P.2d . . 71 , 166 A.L. R. 655 cited at Footnote 5 of the McQuillin 24 text. Because it is a zoning ordinance , the ordinance does 25 create a "categor;y of nuisance ." However , the ordinance has• no 26 regula Dry effect on "protected speech" , only . on a course of . i 27 conduc of exhibition of "specified sexual ' activities" and 28 "speci , ied anatomical areas" in a manner which, appeals, to a WARREN & KELLOGG. P.S. ATTORNEYS AT LAW REPLY F CITY OF RENTON 100'50. SECOND ST.. P. O. BOX 626 PAGE 5 RENTON, WASHINGTON 98057 _ 255-8678 1 pruri nt interest , ( which amounts to pandering) and when 2 exhib ' ted in specified proximity to " family type" uses .. The 3 regul tion imposes sanctions only after a civil trial on the 4 merit . See Petition , for Writ of Mandamus and/or Writ of 5 Prohibition , supra , at page 45 , line 12 through page 48 , line 6 5 . • 7 VII. Playtime, and Kukio misread the import of Erznoznick. 8 B• th the plaintiff and defendants are relying upon 9 Erzno nik v . City of Jacksonville , . 4422 U . S. 205 . The 10 plain iffs misread the import of Erzn.oznik . Erznoznik 11 requires abstention. See Petition for Writ of Mandamus and/or { 12 Writ f Prohibition , at page 44 , line 6 , et seq. See also 13' Peopl v . Starview_Drive-In Theater , 427 N . E. 2d . 201 , 'at 14 210-212. 15 VIII . Playtime and Kukio ' s cl aim lai.m of overbreadth is a 16 sham . j 17 K kio ' _and .Playtime ' s claim of standing to contest 18 overbreadth, See Response at , page 9 , line 2 , et seq . is 19 error . See Petition for Writ of Mandamus and/or Writ of 20 Prohibition , supra , at page 43 , line 8 , et, seq . . • 21 I . . Kukio and Playtime have miscited . Spokane v . 22 Portch, 92 Wn .2d . at 342 . 23 Kukio and Playtime misread Spokane v . Portch, 92 Wn . 2d . 24 342 , 596 P.2d . 1044 ( 1979) , as support for, their new 25 proposition ( see Response at page 10, . lines 13 and 14) that 26 the o dinance is unconstitutional because "conduct involving 27 sexual y explicit speech has been comprehensively regulated by 28 the S ate to the extent that it has pre-empted. the field" . WARREN & KELLOGG. P.S. ATTORNEYS AT LAW REPLY OF CITY OF RENTON 100 So. SECOND ST.. P. O. BOX 62E PAGE 6 RENTON. WASHINGTON 98057 255-8678 • 1 That case denied the power of a city to enact a criminal ' 2 ordinance where the State had enacted a similar State statute , ' 3 but specifically holds at page 349 that: • 4 "the present ruling does not indicate a retreat from our position in Northend Cinema , Inc . v . Seattle , 90 Wn .2d 5 709 , 585 P.2d 1153 (1978) , cert . denied sub . nom . Spple Thgatre ,Inc . v . Seattle , 441 U . S. 946, 60 L. Ed . 2d 1048, 6 998. Ct . 2166 (1979 ) , in which we upheld a zoning ordinance restricting the location of adult movie 7 theaters . RCW 9.68. 010 preempts the field of obscenity prohibition but has no effect on the municipalities' power 8 to exercise their authority in other areas such as zoning . Nothing in this opinion should be construed to deprive 9 municipalities of their authority to control obscene material by taking measures which do not fall within the 10 purview of state law. " ( emphasis added) 11 Respectfully submitted , 12 13 • 14 15 Daniel Kellogg 16 17 • 18 • 19 20 • 21 22 • 23 • 24 25 26 • 27 28 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW REPLY OF CITY OF RENTON ,00 SO. SECOND ST.. P. O. BOX 626 PAGE 7 RENTON. WASHINGTON 98057 255-8678 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT THE CITY Oi RENTON, et al. , ) C.A. # Petitioners, ) vs. ) UNITED STATES DISTRICT COURT, for ) the Western District of Washington ) at Seattle, ) Respondent, ) PLAYTIME TiEATRES, INC. , a Wash- ) ington cor,•oration, and KUKIO BAY ) PROPERTIES, INC. , a Washington ) corporatio , ) real Parties in Interest. ) PETITION FOR WRIT OF MANDAMUS AND/OR WRIT OF PROHIBITION JAMES J. CLANCY Attorney at Law 9055 La Tuna Canyon Road Sun Valley, CA 91352 (293) 352-2069 DANIEL KELLOGG Attorney at Law P. 0. Box 626 Renton, WA 98057 (206) 255-8678 Attorneys for Petitioners SUBJECT INDEX PAGE . PETITION FOR WRIT, 1 I . I. O'DERS AND OPINIONS BELOW 2 II. STATEMENT OF FACTS, 3 A. background On Enactment Of Ordinance No. 3526, - 4 B. pn January 26, 1982, A Civil Rights (42 U.S.C. § 1983) And Declaratory Judgment Action (28 U.S.C. § 2202) Is Filed Ohallenging Ordinance No. 3526. On February 3, 1982, Magistrate Sweigert Recommends That The Motion For A Temporary Restraining Order Be Denied 7 C. The Renton And Roxy Theaters' Amended And Supplemental complaint, Filed February 9, 1982 8 D. The State Declaratory Judgment Action, Filed By The City On 'ebruary 19, 1982 9 E. The City Of Renton, Et. Al. Files Its First Motion To Dismiss On February 22, 1982 9 F. The Renton And Roxy Theaters' Petition To Remove The City Of Renton's State Declaratory Judgment Action 10 G. The City Of Renton's First Motion To Dismiss Is Argued On March 12, 1982 11 H. The Motion To Remand Is Heard On April 9, 1982. Magistrate Sweigert States In An Oral Opinion From The Bench That The State Action Should Be Remanded 13 I. The Amending Ordinance. The City ' Of Renton Enacts Ordinance 3629 As An Emergency Ordinance 13 • J. Judge McGovern Denies The City Of Renton, Et. Al.'s First Motion To Dismiss 14 K. The City Of Renton, Et Al., File A Renewed Motion For Dismissal And Motion For Summary Judgment 14 L. The City Of. Renton Re-enacts Ordinance 3629 As A Regular Ordinance 15 -i- • • M. On November . 5, 1982, Magistrate Sweigert Recommends That The City Of Renton, Et Al.'s Motion For Summary Judgment And Renewed Motion To Dismiss Be Denied And That The Preliminary Injunction Be Granted 15 III. STATEMENT OF ISSUES PRESENTED, 16. The issues presented herein are as follows: 1. Does the U.S. Supreme Court decision in Middlesex • County Ethics Committee v. Garden State Bar Assn., U.S. , 73 L.Ed.2d 116, 102 S.Ct. (June 21, 1982) enunciate a new 4 part test for federal abstention in Civil Rights Actions which interfere with important state interests (governmental function of zoning), and ongoing civil judicial proceedings - relating thereto? 2. Was the U.S. District Court's refusal to dismiss the federal action herein, relating to the right of the City of Renton to enforce Zoning Ordinance No. 3526, as amended by Ordinances 3629 and 3627, an abuse of discretion under the principles expressed in Midlesex County Ethics Committee v. Garden State Bar Assn., supra, Huffman v. Pursue, Ltd., 420 U.S. 592, 604-605, 43 L.Ed.2d 482, 95 S.Ct. 1200 (1975); Trainor v. Hernandez, 431 U.S. 434, 52 L.Ed.2d 486, 97 S.Ct. 1911 ( 1977); ' Juidice v. Vail, 430 U.S. 327, 51 L.Ed.2d 376, 97 S.Ct. 1211 (1977); Moore v. Sims, 442 U.S. 415, . 423, 60 L.Ed.2d 994, 99 S.Ct. 2371 (1979); where the only land areas affected by such zoning ordinances were land areas which are dedicated to family type uses; and the only use proscribed was as to motion picture theaters and a continuing course of conduct of exhibiting sexual conduct in a manner which appeals to prurient interest (pandering); which use was declared by such ordinances to be a "per se" public nuisance when engaged in in such area; and where the law enforcement remedy for such zoning violation was limited to an abatement of such public nuisance in a state court civil judicial proceeding after a trial on the merits? IV. STATEMENT OF RELIEF SOUGHT, 17 V. R ASONS WHY WRIT SHOULD ISSUE, 17 JURISDI6TION, 17 A. An Order Denying A Motion To Dismiss Is Not An Appealable Order 18 1 I -ii- B. The Petitioner Will Be Damaged Or Prejudiced In A'Way Not Correctable On Appeal 20 C. he District Court's Order Raises New And Important Problems, Or issues Of Law Of First Impression 24 D. The District Court's Order Is Clearly Erroneous As A Matter 1 Of Law 24 E. Fhe District Court's Order Is An Oft Repeated Error, Or Manifests A Persistent Disregard Of The Federal Rules 26 F. he Party Seeking The Writ Has No Other Adequate Means, uch As A Direct Appeal, To Attain The Relief Desired 27 ABSTENTION, 28 A. Jnder Middlesex County Ethics Committee v. Garden State Bar Assn., The U.S. District Court Was Required To Abstain The Refusal To Abstain Constitutes An Abuse Of Discretion And Usurpation Of Jurisdiction Which Should Be Corrected By Prerogative Writ 28 B. In Applying The Four Part Test Set Forth In Middlesex I • County Ethics Assn., The Federal Court Must Abstain If The First Three Parts Of The Test Are Satisfied And If The Statute Or Ordinance Is Susceptible Of A Constitutional Construction In The State Court; That Is; It May Only ' Assume Jurisdiction Where The Challenged Statute Is "Flagrantly And Patently Violative Of Express Constitution- al Prohibitions In Every Clause, Sentence And Paragraph And , In Whatever Manner And Against Whomever An Effort Might Be Made To Apply It 35 C. Ordinance No. 3526, As Passed And Adopted On April 13, 1981, Was Susceptable Of A Constitutional Application To ' The Specific Parcels Of Property Owned By The Plaintiffs (Renton And Roxy Theaters). Ordinance No. 3526, As Amended By Ordinance No. 3629, To Encorporate What The City Contends Would Be A Reasonable "Narrowing" State Court Construction, Is Clearly Constitutional On Its Face 43 EXHIBITS 48 CONCLUSION 50 ' I i -111- • • INDEX TO APPENDICIES APPENDIX "A" City of Renton Ordinance No. 3526, passed and adopted April 13, 1981. "B" ' ended and Supplemental Complaint for Playtime Theatres, i Inc. , et al. v. The City of Renton, in the United States district Court for the Western District of Washington, No. 182-59M, filed on February 9, 1982. "C" omplaint For Declaratory Judgment (Chapter 7.24 R.C.W. ) in City of Renton v. Playtime Theatres, Inc., et al., in the Superior Court of Washington for King County, cause No. 82- 2-02344-2, filed on February 19, 1982. "D" Defendants City of Renton, et al. 's•Motion to Dismiss and Points and Authorities in Support Thereof, filed February 22, 1982 and Reporter's Transcript for March 12, 1982 at hearing on said motion. "E" U.S. Magistrate Sweigert's Report and Recommendation, dated M rch 25, 1982. "F" iibit deleted . _ "G" C'ty of Renton Ordinance 3629, passed and adopted May 3, 1982. . "H" U.S. District Judge Walter T. McGovern's order dated May 5, 1p82, denying the Defendants City of Renton, et al. 's Motion t Dismiss. "I" Defendants City of Renton, et al. 's Renewed Motion to • Dismiss Plaintiffs' Amended and Supplemental Complaint For Preliminary and Permanent Injunction Pursuant to F.R.C.P. 1 (b) (6) and Memorandum in Support Thereof, filed on May 4, 1982.. "J" Defendants City of Renton, et al. 's Motion For Summary Judgment, Affidavit of David R. Clemens and Memorandum in Support of Motion For Summary Judgment, filed May 27, 1982. "K" U.S. Magistrate Sweigert's Report and Recommendation and Proposed Order, filed on November 5, 1982. I. • -iv- CASES • Allen v. McCurry, 449 U.S. 90 (1980), 22, 30 Bankers' Life' & Casualty Co. v. Holland, 346 U.S. 379 (1953), 19, 26 Bauman v. United States District Court, 557 F.2d 650 (CA. 9 1977), 18 Boehnin. v. Indiana State Employees Ass'n., 423 U.S. 6 (1975) 25 Colorado River Water Cons. Dist. v. U.S., 424 U.S. 800 (1976) 28 D'Iorio . County of Delaware, 529 F.2d 681 (3rd Cir., 1978),.... 20, 28 Dombrows i v. Pfister, 380 U.S. 479 ( 1965),.. 23, 27, 32, 33, 41, 42, 43 Erzoznic v. City of Jacksonville, 422 U.S. 205 (1975), 44 Frederick L. v. Thomas, 578 F.2d 513 (3rd Cir., 1978), 20, 28 Genusa v. City of Peoria, 619 F.2d 1203 (7th Cir., 1980), 48 Green v. Occidental Petroleum Corp. , 541 F.2d 1335 (CA. 9, 1976), 18, 25 • Guerra v. Board of Trustees, 567 F.2d 352 (CA. 9, 1978) 18 Hans v. Louisiana, 134 U.S. 1 (1890), 21 Hartland v. Alaska Airlines, 544 F.2d 992 (9th Cir., 1976), 19 Hicks v. Miranda, 422 U.S. 332 (1975), 9 Huffman I. Pursue, Ltd., 420 U.S. 592 (1975), 10, 11, 12, 16, 24, 25, 29, 35, 36, 47 Internat'onal Longshoremen's & Warehousemen's Union v. Kuntz, 334 F.2d 165 (CA. 9, 1964), 18 Juidice v. Vail, 430 U.S. 327 (1977), 10, 16, 29 La Buy v Howes Leather Co. , 352 U.S. 249 ( 1957), reh. den. 352 U.S. 1019, 26 Martinez v. California, 444 U.S. 277 ( 1980), 22 McDonnell Douglas Corp. v. United States District Court, 523 F.2d 1083 (9th Cir., 1975), cert. den. 425 U.S. 911 (1976) 19 Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (7/2/81 ), 23, 24, 39, 40, 41, 42 -v- . Middles x County Ethics Committee v. Garden State Bar Assn., , _ U.S. , 73 L.Ed.2d 116 (6/21/82), .... 16, 20, 21, 23, 24, 25, 26, 28, 29, 30, 31, 34, 35, 36, 38, 42 Moore v. Sims, 442 U.S. 415 (1979) 10, 16, 29 Northend Cinemas v. Seattle, 90 Wn.2d 709, 5 Ohio Bu eau of Employment Services v. Hodory, 431 U.S. 471,.. 10, 29, 37 Ohio ex rel. Ewing v. A Motion Picture Film Entitled, "Without a Stitch", 37 Ohio St.2d 95 (1974), 25 Parratt v. Taylor, 451 U.S. 527 (1981 ), 22, 30 LPeople x rel. Busch v. Projection Room Theater, 17 Ca1.3d 55, 38, 39 Pinkus . U.S., 436. U.S. 293 (1978), 46 Reed v. Lehman, 91 F.2d 919 (CA. 2, 1937), 18 Rees v. United States District Court, 572 F.2d 700 (CA. 9, 1978), 18 Roche v. Evap. Milk, 319 U.S. 212 (1943), 26 Schlagenhauf v. Holder, 379 U.S. 104 19, 24, 26 Shad v. Borough of Mt. Ephraim, 452 U.S. 61 (1981 ), 22, 43 Singleton v. City of New York, 632 F.2d 185 (2nd Cir., 1980), 22 i Spokane Arcakes, Inc. v. Brockett, 631 F.2d 135 (CA. 9, 1980), of irmed, U.S. , 70 L.Ed.2d 468 (1981 ) 12, 23, 24, 40, 41, 42 Stansbe ry v. Holmes, 613 F.2d 1285 (5th Cir., 1980), 33 Tilton v. Richardson, 403 U.S. 672, 39 Trainor v. Hernandez, 431 U.S. 434 (1977), 10, 16, 29 U.S. v. O'Brien, 391 U.S. 367 (1968), 47 U.S. v. Raines, 362 U.S. 17 (1960), 43 U.S. v. 37 Photographs, 402 U.S. 363 (1971 ) 38, 39 U.S. v. United Mine, Workers of America, 330 U.S. 258 (1974), 37 U.S. v. United States District Court, 509 F.2d 1352 (9th Cir.) , cert. den. 421 U.S. 962 (1975), 19 -vi- • • Will v. U.S., 389 U.S. 90 ( 1967), 26 Young v American Mini Theaters, 427 U.S. 50 1976), 4, 5, 6, 26, 32, 33, 48 Younger v. Harris, 401 U.S. 37 (1971 ), ... 12, 24, 29, 30, 35, 36, 41, 47 AMENDMENTS, CODES, ORDINANCES AND RULES Federal Rules Of Appellate Procedure: Rule 21(a) , • 1, 2, 17, 42 Federal Rules Of Civil Procedure: Rule 56, 15 Rule 57, 8 Renton City Code: § 4-702, 6 Renton City Ordinances: No J 3526, 4, 6, 7, 8, 9, 11, 13, 14, 16, 26, 43, 45, 47 No. 3629, 13, 14, 15, 16, 26, 43, 45, 46, 47 No J 3637, 15, 16, 26 Revised Codes of Washington: Chapter 7.24, 2, 17, 32, 50 United States Codes: 28 U.S.C. § 1131 (a), 7, 8 28 U.S.C. § 1292(a), 18 28 U.S.C. § 1292(b) , 18, 19 28 U.S.C. § 1651, 1, 17, 42 28 U.S.C. § 2202, 7, 8 42 U.S.C. § 1983, 7, 8, 21, 23 42 U.S.C. § 1988, 22, 23 United States Constitution: 1st Amendment, 25, 46, 47 11th Amendment,, 29 1401. Amendment, 46 TEXTS, TREATIES Columbia Law Review: 75 Columbia L.Rev. 89 at 108: Redish, The Pragmatic Approach To Appealability in the Federal Courts, 19 • -vii- Loyola w Review: 11 Loyola Law Rev. 689 at 699, 19 Nahmod, Sheldon H., Civil Rights and Civil Liberties Litigation, 19 2 Cumulative Supplement, § 3.08, Due Process at pgs.. 67-73, 22 1 Ohio St-te Law Journal: 38 Ohio State Law Journal 301 at 308, fn. 54, 19 -viii- i 1 2 • 3 ' 4 5 UNITED STATES COURT OF APPEALS 1 6 FOR THE NINTH CIRCUIT 7 8 THE CITY OF RENTON, et al. , ) C.A. # ) 9 Petitioners, ) 1 10 vs. ) ) ! 11 UNITED STATES DISTRICT COURT, for ) the Western District of Washington ) 12 at Seattle, ) 13 Respondent, ) 14 PLAY IME THEATRES, INC. , a Wash- ) ingt n corporation, and KUKIO BAY ) 15 PROPERTIES, INC. , a Washington ) corporation, ) 16 ) Real Parties in Interest. ) 17 ) 18 19 PETITION FOR WRIT OF MANDAMUS AND/OR WRIT OF PROHIBITION 20 21 22 COME NOW, the City of Renton; and the Honorable Barbara 'Y. 23 Shin ch as Mayor of the City of Renton; and Earl Clymer, Robert 24 Hughe , Nancy Mathews, John Reed, Randy Rockhill, Richard 25 Stred' cke, and Tom Trimm, as members of the City Council of the 26 City f Renton; and Jim Bourasa, ' as acting Chief of Police of the 27 City of Renton, petitioners in the above entitled action and 28 petition this Court, pursuant to 28 U.S.C. § 1651 and Rule 211(a) I -1- 1 of th Federal Rules of Appellate Procedure, for a writ of 2 mand us or, in the alternative, for a writ of prohibition, 3 direc ing the above-named respondent, the Honorable Walter T. ' 4 McGov rn, Judge of the United States District Court for the 5 Weste n District of Washington at Seattle: 6 1 ) to remand to the Washington State Court the Complaint for Declaratory Judgment (Chapter 7. 24 R.C.W. ) in the civil 7 action commenced in the Superior Court for King County, State- 8 C� f Washington, entitled "City of Renton, a municipal orporation, vs. Playtime Theatres, Inc. , a Washington corporation and Kukio Bay Properties, Inc. , a Washington 9 corporation, cause number 82-2-02344-2" , which was removed to he federal court by a petition to remove filed on March 8, 10 1982 under case number C82-263R, and consolidated under case umber C82-59M by order of Judge Walter T. McGovern dated 11 arch 10, 1982; and 12 (2 ) to abstain from all further proceedings and dismiss the mended and Supplemental Complaint for Declaratory Judgment 13 ind Preliminary and Permanent Injunction filed on February 9, 982 in the civil action in the United States District Court, 14 Western District of Washington at Seattle, entitled, "Playtime Theatres, Inc. , a Washington corporation, and 'Kukio - 15 Bay Properties, Inc. , a Washington corporation, Plaintiffs, vs. the City of Renton, and the Honorable Barbara Y. 16 Shinpoch, as Mayor of the City of Renton, and Earl Clymer, Robert Hughes, Nancy Mathews, John Reed, Randy Rockhill, 17 Richard Stredicke and Tom Trimm, as members of the City Council _of the City of Renton; and Jim Bourasa, as acting 18 Chief of Police of the City of Renton, Defendants, jointly and severally, in their representative capacities only. Case 19 No. C82-59M" . 20 In support of this application, petitioners state : 21 22 I. ORDERS AND OPINIONS BELOW 23 24 On April 9, 1982, United States Magistrate Philip K. Sweigert 25 heari the Petitioners City of Renton, et al. 's Motion to Remand 26 the Washington State Declaratory Judgment action entitled "City of 27 Renton v. Playtime Theatres, Inc. , et al. , Case No. 82-263R"' and 28 at the conclusion of said hearing stated in an oral opinion from -2- 1 the bench that the Washington State action should be remanded . As 2 of the date of the filing of this petition, no report or 3 recommendation has yet been issued by Magistrate Sweigert nor has 4 said case been remanded. 5 6 7 On May 5, 1982 , U.S. District Court Judge Walter T. McGovern 8 filed his order approving and adopting the March 25, 1982 "Report 9 and Recommendation" of U.S. Magistrate Sweigert and denying the 10 Defendants City of Renton, et al. 's motion to dismiss Playtime, 11 Theatres, Inc. , et al. v. The City of Renton, et al. , Case No. C82- 12 59M. A copy of said "Report and Recommendation" and Order is 13 attached hereto as Exhibits "E" and "H" and by reference 14 incor orated herein. 15 n November 5 , 1982, U.S. Magistrate Sweigert filed his 16 "Repo t and Recommendation" and a proposed order: 17 ( 1 ) denying the Defendants City of Renton, et al . ' s Renewed Motion to Dismiss and Motion for Summary Judgment in Playtime 18 Theatres, Inc. , et al. v. The City of Renton, et al. , Case No. C82-59M; and 19 (2 ) granting a preliminary injunction pendente lite in such 20 case. 1 21 A copy of Magistrate Sweigert' s "Report and Recommendation" and 22 proposed "Order Denying Defendant' s Motions to Dismiss and For - 23 Summary Judgment and Granting Preliminary Injunction Pendente 24 Lite" are attached as Exhibit "K" hereto and by reference 25 incorporated herein. 26 27 II. STATEMENT OF FACTS 28 The facts necessary to an understanding of the issues -3- • 1 presented by this application are as follows : 2 • 3 A. Background On Enactment Of Ordinance No. 35 26. 4 5 n June 24, 1976 , the United States Supreme Court decided _ 6 Young v. American Mini Theatre, Inc. , et al. , 427 U.S. 50, 7 upholding a Detroit Zoning Ordinance relating to the use. of 8 property for "Adult Motion Picture Theater" , "Adult Book Store" , 9 and "Adult Mini Motion Picture Theater" . In the Young case, • 10 Justice Stevens, speaking for the Court, rejected a claim that - the 11 Detroit Ordinance was too vague, holding at page 61: 12 " . . . to the extent that an area of doubt exists, we see no reason why the ordinances are not 'readily subject to a' 13 narrowing construction by the state courts. ' " 14 In May of 1980, the City of Renton (hereinafter designated as 15 "Def ndant City of Renton" and "Petitioner City of Renton" ) had no 16 theaters which exhibit sexually explicit films. At the suggestion 17 of a City of Renton hearing examiner, the Mayor suggested to, the 18 City Council that they consider the advisability of passing zoning 19 legislation dealing with adult entertainment uses, specifically 20 "adult theatres, bookstores, film and/or novelty shops" prior to 21 the time any such businesses might seek to locate in the city. 22 The 4ayor' s memorandum suggested that some cities had experienced 23 difficulties in re-doing their zoning ordinances once such uses 24 were established in the community. (See Exhibit 'lc"., "Report and 25 Recommendation" at page 3 , line 24 thru page 4 , line 3 . ) 26 On March 5 , 1981 , the Planning and Development Committee of 27 the City' Council of the City of Renton held a meeting for the 28 purpose of taking public testimony on the subject. While there is -4- I 1 1 1 Ho re ord of that meeting , Mr. Clemens, then the City' s acting 2 Plann 'ng* Director who was present at the meeting , testified that 3 the S perintendent of Schools, and the President of the Renton 4 Chamb r of Commerce spoke to concerns about adverse effects which 5 adult entertainment uses would have upon the economic health of 6 Renton 's businesses and upon children going to and from school . 7 He also testified that other citizens spoke generally about the 8 adverse effects of such uses. Mr. Clemens further testified that I 9 he a9d his department reviewed the decisions of the Washington 10 State Supreme Court in Northend Cinemas v. Seattle, 90 Wn. 2d, 709 , 11 (which dealt specifically with adult motion picture theaters) and 12 of tle United States Supreme Court in Young v. American Mini 13 Theatres, 427 U.S. 50 (1976 ) (which dealt with adult entertainment 14 uses in general ) and presented the information from their review 15 to the Planning and Development Committee. He indicated generally 16 that review of those cases indicated that adult entertainment uses 17 tend to decrease property values and increase crime. (See Exhibit 18 "K", "Report and Recommendation" at page 4 , lines 4-21. ) 19 On April 6, 1981 , the Planning and Development Committee of 1 20 the City Council of the City of Renton recommended that an 21 appropriate zoning ordinance be written dealing with the subject 22 of alolult motion picture theaters, to reflect the following 23 conditions: 24 " (a) No adult motion picture theatre will be allowed in an area used or zoned residential or in any P-1 public use 25 area. 26 " • (b) 'A suitable buffer strip of 1,000 feet from any residential or P-1 area also be a banned area; 27 " (c) The area enclosed in a one mile radius of any 28 school ( this is the minimum student walking distance ) would I -5- 1 1 lso be a banned area. " (See Exhibit "K" , "Report and ecommendation" at page 4 , lines 22-32. ) 2 3 n April 13, 1981 , the Renton City Council passed and adopted 1 4 City f Renton Ordinance No., 3526, containing the identical , 5 langu ge of that portion of the Detroit Zoning Ordinance which had 6 been efore the U.S. Supreme Court in the Young case (relating to 7 "Adult Motion Picture Theater. " ) See 427 U.S. 50 at 53, footnote 8 4 . Ordinance No. 3526 was approved by the Mayor and , pursuant to 9 the laws of the State of Washington relating to municipal 10 corporations, became effective thirty (30 ) days after its 11 publication on May 15, 1981. A copy of City of Renton Ordinance 12 No. 3526 is attached as Exhibit "A" hereto and by reference 13 incorporated herein. 14 Ordinance No. 3526 amended existing § 4-702 of the City' Code 15 of the City of Renton. § I of the ordinance added definitions for 16 "adu t motion theaters" , "specified sexual activities" , and , 17 "spe ified anatomical areas" . In § II the ordinance prohibited 18 the .ocation of an "adult motion picture theater" within a circle 19 which has a radius consisting of the following distances from the 20 following specified uses of zones: 1 21 1000 feet of any residential zone or any single familyior multiple family residential use. 22 One mile of any public or private school. 23 1000 feet of any church or other religious facility or ' 24 institution. 25 1000 feet of any public park or P-1 (Public District ) zone. The P-1 zone allows permitted uses such as governmental 26 buildings, hospitals, public and private clinics, educational and philanthropic institutions, libraries and museums, parks 27 and playgrounds, private clubs, professional offices, residential hotels, private and public schools, and quasi- 28 public institutions. 1 -6- I 1 1 B. On January 26, 1982, A Civil Rights ( 42 U.S.C.' § 1983 ) And Declaratory Judgment Action 2 (28 U.S.C. § 2202 ) Is Filed Challenging Ordinance No. 3526. On February 3, 1982, 1 3 Magistrate Sweigert Recommends That The Motion For A Temporary Restraining Order Be Denied. 4 5 on January 26, 1982 , Kukio Bay Properties, Inc. (hereinafter 6 designated "Plaintiff Kukio Bay Properties" and "Respondent Kukio 7 Bay" ) purchased the Roxy Theater and the Renton Theater which are 8 locat d across from each other in downtown Renton. On or about 9 Janua y 27, 1982 , Kukio Bay Properties, Inc. leased said theaters 10 to P1 ytime Theaters, Inc. (hereinafter designated "Plaintiff 1 11 Playtime Theaters, Inc. " and "Respondent Playtime Theaters, 12 Inc. " ) . The lease agreements provide that the premises are t'o be 13 used "for the purpose of conducting therein adult motion picture 14 theaters. " (See Exhibit B, "Amended and Supplemental Complaint" , 15 page 4 , lines 19-22 ) . Mike Parness, Administrative Assistant to 16 the Mayor of the City of Renton advised the Plaintiff Kukio Bay 17 Prop rties, Inc. and Plaintiff Playtime Theaters, Inc. on January 18 19, 982 that if the property of the Plaintiffs was used to 19 exhibit adult motion picture films, enforcement proceedings would 20 be c mmenced . (See Exhibit B, "Amended and Supplemental 21 Complaint" , page 6, lines 8-12 ) . Plaintiffs have admitted that 22 one ¶ f said theaters would continuously operate exhibiting adult 23 moti n picture film fare to an adult public audience in downtown 24 Renton but for the threats of the Defendant City of Renton to 25 enforce the Zoning Ordinance (See Exhibit B, "Amended and 26 Supplemental Complaint, page 4 , lines 26-29 ) . 27 On January 20, 1982 , Plaintiffs Playtime Theaters, Inc. and 28 Kuki Bay Properties, Inc. filed an action in the United States I -7- r 1 District Court for the Western District of Washington at Seattle 2 entitled "Complaint for Declaratory Judgment and Preliminary 3 Injunction" , alleging federal jurisdiction under 28 U.S.C. 4 § 113 (a) , 42 U.S.C. § 1983 and 28 U.S.C. § 2202 and Rule 57 ,of 5 the F deral Rules of Civil Procedure, challenging the 6 constitutionality of City of Renton Zoning Ordinance No. 3526,. 7 On January 29 , 1982 , Plaintiffs moved for a temporary 8 restr ining order as ancillary relief under their original ' 9 compl int. Following oral argument on that date, Magistrate 10 Phili, K. Sweigert announced orally, from the bench, that he would 11 recom end the denial of the temporary restraining order. 12 On February 3, 1982 , U.S. Magistrate Sweigert filed his ' 13 "Rep rt and Recommendation" and proposed form of Order in which he 14 reco mended to U.S. District Judge Walter T. McGovern that the _ 15 requ-st for a temporary restraining order be denied. 16 17 C. 'The Renton And Roxy Theaters' Amended And Supplemental Complaint, Filed February 9, - ' 18 1982. i 19 20 On February 9, 1982 , and before U.S. District Court Judge 21 McGovern had formally ruled upon the motion for a temporary 22 restraining order under the original Complaint, Plaintiffs filed 23 and erved a new Complaint entitled "Amended and Supplemental 24 Comp aint For Declaratory Judgment and Preliminary and Permanent 25 Injunction" a copy of which is attached hereto at Exhibit "B" and 26 incorporated by reference herein, raising a new issue 'that under 27 the City of Renton Zoning Ordinance a conditional use must be I 28 applied for. At the hearing on the temporary restraining order on -8- 1 Janua7y 29, 1982 , David R. Clemens, Director of Policy Planning of • 2 the CityJ of Renton, had previously testified to a contrary 3 administrative interpretation; that is, that, under the Zoning 4 Ordin-nce, an Adult Motion Picture Theater was an allowable use 5 under the Zoning Ordinance as administered by the City of Renton. 6 7 D. The State Declaratory Judgment Action, Filed, By The City On February 19, 1982. 8 9 On February 19, 1982 , the Defendant City of Renton filed; a 10 civil action in King County Superior Court seeking a declaratory 11 judgment that Ordinance No. 3526 was constitutional as applied to 12 the proposed use of the Renton and Roxy theaters as alleged in 13 Plaintiffs' Amended and Supplemental Complaint. See Hicks v.l 14 Miranda, 422 .U.S.. 332 at_:349 and 354 (1975) . A copy of the 15 Decl ratory Judgment Complaint is attached hereto as Exhibit "C" 16 and .ncorporated by reference herein. 17 E. The City Of Renton, Et Al. Files Its First Motion To Dismiss On February 22, 1982. 1 18 19 On February 22, 1982 (within the time allowed to file a 20 responsive pleading in the federal lawsuit ) the Defendants City of 21 Renton, et al . filed a Motion to Dismiss the Plaintiffs ' "Amended 22 and Supplemental Complaint For Declaratory Judgment and 23 Preliminary and Permanent Injunction" . In its Motion to Dismiss 24 and Memorandum of Points and Authorities in Support Thereof, ; a 25 copy of which is attached hereto as Exhibit "D" and incorporated 26 by reference herein, the City of Renton advised the U.S. District 27 Court that on February 19, 1982, the City of Renton had filed a 28 Civi. Complaint for Declaratory Judgment in the State Court -9- 1 seekiig a declaratory judgment to resolve the controversy between 2 the d-fendant City of Renton and Plaintiff Playtime Theaters, Inc. 3 and P aintiff Kukio Bay Properties, regarding the use of the ; 4 Rento and Roxy Theaters as alleged by such Plaintiffs in their 5 Amend-d and Supplementary Complaint, filed in the U.S. District 6 Court ten days .earlier (on Feb. 9, 1982 ) . A copy of the City of 7 Rento ' s Complaint for Declaratory Judgment in the State Court was 8 attac' ed as Exhibit A to its Points and Authorities (see Exhibit D 9 at pa.e 3 , lines 11 et seq. ) . In its Points and Authorities; the 10 City .f Renton argued: 11 (1 ) that the U.S. Supreme Court had held in Huffman v. ! '•ursue, Ltd. , 420 U.S. 592 and in the subsequent related 12 cases of Juidice v. Vail, 430 U.S. 327, Trainor v. Hernandez, 431 U.S. 434, Moore v. Sims, 442 U.S. 415 and Ohio Bureau of 13 mplo ment Services v. Hodor , 431 U.S. 471, that where the ity ordinance was constitutional on its face and the civil 14 ights issue involved important state civil interests, the ederal claim must be presented to the state court in the 15 irst instance where that forum was available and the state ad not waived its right to have the matter resolved inIthe 16 tate court. See Exhibit "D" at Point II, on pages 11-14 ); 17 (2 ) that 'the state judiciary must be presented with an , • pportunity to consider and interpret the state statuteior 18 pity ordinance and , if necessary, invoke a limiting !construction. (See Exhibit "D" at Point I (b) on pages 8-10 ) 19 ecause the federal courts lacked jurisdiction uthoritatively to construe such state legislation (see ; 20 xhibit "Di" at Point IA on pages 6-8 ) and that "the federal omplaint should be dismissed for failure to state a claim 21 pon which federal relief can be based upon abstention ' rounds (Exhibit "D" at page 16, lines 24-26 ) . 22 23 24 F. The Renton And Roxy Theaters' Petition To Remove The City Of Renton' s State Declaratory 25 Judgm'ent Action. 26 • 27 On March 8, 1982 , Plaintiff Playtime Theatre, Inc. and 28 Plaintiff Kukio Bay Properties filed a petition to remove the -10- 111 i ii I 1 stat court action to federal court and on March 12 , 1982 , the 2 City of Renton filed its "Objection to Removal and Motion to' 3 Rema d" the state Declaratory Judgment action back to the state 4 cour ' . 5 6 G. IThe City Of Renton' s First Motion To Dismiss Is Argued On March 12, 1982. 7 8 At the hearing before U.S. Magistrate Sweigert on March 12, 9 1982 on the Defendants City of Renton, et al . ' s Motion to 10 Dismiss, the Defendants argued that the federal court should' 11 abstain on the grounds expressed in Huffman v. Pursue, Ltd. , ', 12 supr , and its 'progeny of cases, because the zoning "use" which 13 was roscribed by Zoning Ordinance 3526 was amenable to two 14 cons ructions, 'one of which was that it "was a public nuisance or 15 a co rse" of conduct (which ) does not relate to any specific film 16 or t e like" (Exhibit "D" , R.T. for Mar. 12, 1982 at p. 5, lines 17 11-1 ) ; that the term "Distinguished or characterized by an I 18 emph sis on matter depicting , describing or relating to specific 19 sexual activities" raised a state question as to statutory 1 20 cons ruction namely, "Does it mean it must be a course of conduct 21 or a public nuisance type activity, or does it refer to one 22 spec fic film?" (Exhibit "D" , R.T. for Mar. 12 , 1982 at p. 6, 23 line 15-21 ) ; that under one construction it "means a course of 24 cond ct and relates to a pandering type activity" (Exhibit "D" , 25 R.T. for Mar. 12, 1982 at p. 6, line 5 thru p. 7, line 5 ) and that ' 26 such question should be decided by the state court in the state 27 cour action which had the power to "flesh out" an ordinance 28 because the federal court did not have that power (Exhibit "D" , -11- • 1 R.T. for Mar. 12, 1982 at p. 13, line 9 thru p. 14 , line 25 ) . : The 2 City f Renton pointed out that, because of the peculiar 3 circu stances relating to zoning "use" ordinances, it would not be 4 ' able o present the statutory construction issue for resolution in 5 the state court until it had occasion to apply the ordinance; that 6 it cold not apply the ordinance until a theater had changed its 7 course of conduct from the regular film fare to something else, or 8 the theater itself had raised that "prospective" use and the legal 9 question in a lawsuit, and that since said theaters had not l 10 changed their course of conduct but had raised the issue in a 11 federal lawsuit., the City must be allowed to have those same 12 issuer authoritatively resolved in the state court system (Exhibit 13 "D" , R.T. for Mar. 12, 1982 at p. 8, line 15 thru p. 9, line 19 ) . 14 The City further argued that the result in Spokane Arcades, Inc. 15 v. Brpckett, 631 F. 2d 135 (CA. 9, 1980 ) affirmed U.S. , 70 16 L.Ed.2d 468, 1022 S.Ct. 557 (1981 ) , would have been different, had 17 the S okane County Prosecutor raised those same issues in a stat 18 declaratory judgment action concomitantly with his response 19 obje ting to the federal court's consideration of the federal 20 complaint in that case. Thereafter, U.S. Magistrate Sweigert 21 ruled that he did not see the lawsuit as presently a Huffman ! e v. 22 Purse, Ltd. , case (Exhibit "D" , R.T. for Mar. 12, 1982 at p. 18, 1 23 lines 1-25 and p. 41, line 2 thru p. 42, line 7 ) . 24 On March 25, 1982, U. .S. Magistrate Sweigert filed his 25 "Report and Recommendation on Defendants' Motion to Dismiss" , a 26 copy of which is attached as Appendix E hereto and incorporated 27 herein by reference, holding that "abstention under Younger " 28 */ Younger v. Harris, 401 U.S. 37, 27 L.Ed.2d 669, 91 S.Ct. 746 (1971). -12- 1 Huffman is neither required nor appropriate under -these 2 circumstances" . (See Appendix "E" at page 4, lines 14-15) . 3 H. The Motion To Remand Is Heard On April 9, 1982. Magistrate Sweigert States In An Oral 4 Opinion From The Bench That The State Action Should Be Remanded. 5 6 On March 18, 1982, Plaintiffs Playtime Theatre, Inc. and 7 Kukio Bay Properties filed a motion to dismiss the declaratory ; 8 judgment state action which had been removed to the U.S. District 9 Court 10 n April 9, 1982, Magistrate Sweigert heard the Defendants 11 City ¶ f Renton, et al. ' s Motion to Remand the declaratory judgment 12 state action and the Plaintiffs Playtime Theatre, Inc. and Kukio 13 Bay Properties' Motion to Dismiss the state action. At the 14 concl IlL sion of the hearing , Magistrate Sweigert stated in an oral 15 opinion from the bench that the state court action should be ' 16 reman ed. As of the date of filing of this petition, no report or 17 recom endation has yet been issued by Magistrate Sweigert on those 18 issue . . - 19 20 - 21 22 I. The Amending Ordinance. The City Of Renton Enacts Ordinance 3629 As An Emergency 23 Ordinance. 24 - 25 on May 3, 1982, the City Council of the City of Renton passed 26 and adopted Ordinance No. 3629, amending Ordinance No. 3526 , so as 27 to encorporate the meaning which the City had argued could be ' 1 28 given to the ordinance by a state court. A copy of Ordinance 3629 -13- 1 is attached as Exhibit "G" hereto and by reference incorporated 2 herein. The principle changes were: 3 (1 ) The amending ordinance contained an elaborate i tatement of the reasons for enacting both Ordinance No. 3526 4 and Ordinance No. 3629; 5 (2) A definition of the word "used" was added; 6 (3 ) Violation of the use provisions of the ordinance 7 nas declared to be a nuisance per se to be abated civilly and ot by criminal enforcement; 8 (4 ) The required distance of an adult theatre from a school was reduced from one mile to 1 ,000 feet; and, 9 (5) A severability clause was added. 10 11 re amending ordinance, No. 3629, also contained an emergency 12 claus7 and was to be effective as of the date of its passage and 13 approval by the mayor, May 3, 1982. (See Exhibit "K" , "Report and 14 Recommendation" at p. 2) . 15 16 J. Judge McGovern Denies The City Of Renton, Et Al. 's First Motion To Dismiss. 17 18 On May 5, 1982, U.S. District Judge Walter T. McGovern filed 19 his order approving and adopting the March 25, 1982 Report and 20 Recommendation of U.S. Magistrate Sweigert and denied the 21 Defendants City of Renton, et al. ' s Motion to Dismiss. A copy of 22 the ¶eport and order is attached as Exhibit "E" and "H" hereto and 23 incorporated herein by reference. 24 25 K. The City Of Renton, Et Al. , File. A Renewed Motion For Dismissal And Motion For 26 • Summary Judgment. ' 27 28 On May 4,, 1982, the Defendants City of Renton, et al . , filed -14- 1 a ren wed motion for dismissal , and on May 27 , 1982 a motion for 2 summary judgment under F.R.C. P. Rule 56 with a supporting 3 affidavit of David R. Clemens and a Memorandum in Support of such 4 Motion. A copy of such pleadings and papers is attached as 5 Exhibit "I" and "J" hereto and incorporated herein by reference. 6 7 L. The City Of Renton Re-enacts Ordinance 3629 As A Regular Ordinance. 8 9 On June 14, 1982, the City Council of the City of Renton 10 pass-d a third ordinance, No. 3637, which was identical to 11 Ordinance No. 3629 in all respects except that the emergency 12 clause was deleted and the ordinance was to become effective 13 thirty days following its publication. (See Exhibit "K" , "Report 14 and Recommendation" at p. 2, line 30 thru p. 3, line 18 ) . 15 16 M. On November 5, 1982, Magistrate Sweigert Recommends That The City Of Renton, Et Al. ' s 17 Motion For Summary Judgment And Renewed .Motion To Dismiss Be Denied And That The Preliminary 18 Injunction Be Granted. 19 20 On June 23, 1982, U.S. Magistrate Sweigert heard the City of 21 Renton, et al . ' s renewed motion to dismiss plaintiffs ' amended 22 complaint and its motion for summary judgment and the plaintiffs ' 23 motion for preliminary injunction. At the commencement of the 24 hearing , the City requested that the City' s two motions be heard 25 and. ruled upon first before proceeding to the hearing on the 26 defendants ' motion for a preliminary injunction. U.S. Magistrate 27 Sweigert ruled that both the plaintiffs ' and the defendants ' 28 motions would be heard at the same time. -15- n November 5 , 1982 , U.S. Magistrate Sweigert filed his 2 "Repo t and Recommendation" and a proposed order: 3 denying the Defendants City of Renton, et al. ' s Motion to Dismiss ' and Motion for Summary Judgment, and 4 ;2 ) granting a preliminary injunction pendente lite. 5 6 A copy of Magistrate Sweigert' s "Report and Recommendation" and 7 "OrdeDenying Defendants' Motions to Dismiss and For Summary' 8 Judgment and Granting Preliminary injunction Pendente Lite" is 9 attached as Exhibit "K" hereto and incorporated by reference 10 herein. 11 12 III. STATEMENT OF ISSUES PRESENTED. 13 14 The issues presented herein are as follows: 15 1. Does the U.S. Supreme Court decision in Middlesex County Ethics Committee v. Garden State Bar Assn. , U.S. 16 , 73 L.Ed. 2d 116, 102 S.Ct. (June 21, 1982 ) enunciate a new 4 part test for federal abstention in Civil Rights 17 Actions which interfere with important state interests (governmental function of zoning ) , and ongoing civil judicial 18 proceedings relating thereto? 19 2. Was the U.S. District Court's refusal to dismiss the federal action herein, relating to the right of the! City 20 of Renton to enforce Zoning Ordinance No. 3526, as amended by Ordinances 3629 and 3627, an abuse of discretion under the 21 principles expressed in Middlesex County. Ethics Committee v. Garden State Bar Assn. , supra, Huffman v. Pursue, Ltd. , 420 22 U.S. 592, 604-605, 43 L.Ed.2d 482, 95 S.Ct. 1200 (1975 )4 Trainor v. Hernandez, 431 U.S. 434, 52 L.Ed.2d 486, 97 S.Ct. 23 1911 (1977 ) ; Juidice v. Vail, 430 U.S. 327, 51 L.Ed.2d 376, 97 S.Ct. 1211 (1977 ) ; Moore v. Sims, 442 U.S. 415, 423 , 60 24 L.Ed.2d 994, 99 S.Ct. 2371 (1979 ) ; where the only land areas affected by such zoning ordinances were land areas which are 25 dedicated to family type uses; and the only use proscribed was as to motion picture theaters and a continuing course of 26 conduct of exhibiting sexual conduct in a manner which appeals to prurient interest (pandering ) ; which use was 27 declared by such ordinances to be a "per se" public nuisance when engaged in in such area; and where the law enforcement 28 remedy for such zoning violation was limited to an abatement -16- • 1Of such public nuisance in a state court civil judicial ; •roceeding after a trial on the merits? 2 3 4 IV. STATEMENT OF RELIEF SOUGHT. 5 6 The relief sought by petitioner is as follows : 7 1. An order directing the U.S. DistrictCourt to '� remand to the Washington State Superior Court the state civil 8 action, being a Complaint For Declaratory Judgment (Chapter 7. 24 R.C.W. ) , entitled "City of Renton, a municipal 9 corporation vs. Playtime Theatres, Inc. , a Washington corporation and Kukio Bay Properties, Inc. , a Washington 10 corporation, " cause number 82-2-02344-2 in the Superior, Court for King County, State of Washington, which was removed to 11 the federal court by petition to remove filed on March 8, 1982 under case number C82-263R. 12 2. An order directing the U.S. District Court to 13 abstain from all further proceedings and dismiss the federal civil action, being an Amended and Supplemental Complaint For 14 Declaratory Judgment and Preliminary and Permanent Injunction entitled "Playtime Theatres, Inc. , et al. v. The City of 15 Renton, et al. " , in the United States District Court for the Western District of Washington at Seattle, Case No. C82-59M, 16 filed on February 9, 1982. 17 18 V. REASONS WHY WRIT SHOULD ISSUE. 19 20 The reasons the writ requested herein should issue areas 21 follows: 22 23 JURISDICTION 24 25 The jurisdiction of this Court to issue a prerogative writ is 26 fou ded on the All Writs Act, 28 U.S.C. § 1651, and Rule 21 of the 27 Fed ral Rules of Appellate Procedure. Special .and unusual circumstances warrant exercise bythis Court of its discretionary -17- 1 power to issue the common law writ of mandamus or prohibition, 2 reque ted herein. Bauman v. United States District Court, (CA. 9, 3 1977 ) 557 F. 2d 650 at 654-655; Guerra v. Board of Trustees, (1978, 4 CA. 9) 567 F. 2d 352; Rees v. United States Dist. Court, (1978, CA. 5 9) 57 F.2d 700. 6 7 A. An Order Denying A Motion To Dismiss Is Not An Appealable Order. 8 9 An order denying a motion to dismiss, is not normally an 10 appe lable order under 28 U.S.C. § 1292 (a) . Reed v. Lehman, 11 (193 , CA. 2, N.Y. ) 91 F.2d 919. Although an order denying a 12 moti n to dismiss (and motion for summary judgment) for failure to 13 stat a claim upon which relief can be based may become an 14 appealable order under 28 U.S.C. § 1292 (b) if the U.S. District 15 Cour Land U.S. Court of Appeals for the 9th Circuit both agree 16 that the three requirements of 28 U.S.C. § 1292 (b) are met,- see l 17 International Longshoremen' s & Warehousemen' s Union v. Kuntz, 18 (1964 , CA. 9, Wash. ) 334 F.2d 165, such certification is totally 19 within the discretion of the U.S. district and appellate courts 20 and the concurrence of both courts is necessary. Green v. 21 Occidental Petroleum Corp. , 541 F.2d 1335 at 1338 (CA. 9, 1976 ) . 22 Because important municipal zoning and legislative powers are at 23 stake, the alternatives place the City in a position where it is 24 1/ The requirements of 28 U.S.C. § 1292(b) are: 25 (1 ) the order presents a "controlling question of law", 26 (2) the question is one upon which there is substantial ground for difference of opinion, and 27 (3) the appeal may materially advance the ultimate determination of the 28 litigation. -18- 1 faced with Hobson' s choice. See McDonnell Douglas Corp. v. United 2 States District Court, 523 F. 2d 1083 at 1087 ( 9th Cir. , 1975 ) 3 cert. den. 425 U.S. 911 (1976 ) . See Redish, The Pragmatic 4 Appro ch to Appealability in the Federal Courts, 75 Columbia 5 L.Rev. 89 at 108; 38 Ohio State Law Journal 301 at 308, fn. 54. 6 Petitioners contend that U.S. District Judge McGovern' s order 7 : of Ma, 5, 1982 , denying the City of Renton,- et al . ' s first motion 8 ' to dismiss was an "abuse of discretion" and "usurpation of power" , 9 in the traditional sense and that the petition for writ of 10 mandamus herein clearly lies as to that order, irregardless of the 11 possibility of being able to achieve certification in the future 12 ' under 28 U.S.C. § 1292 (b) as to the U.S. District Court's final 13 rulig on the City' s renewed motion to dismiss and motion for 14 summary judgment, (which Magistrate Sweigert has recommended be 15 denied) , Bankers' Life & Casualty Co. v. Holland, 346 U.S. 379 at 16 383, 98 L.Ed. 106 at 112, 74 S.Ct. 145 at 148; Schlagenhauf v. 17 Holder, 379 U.S. 104 at 110, 13 L.Ed. 2d 152 at 158, 85 S.Ct.' 234 18 ' at 2 8. See also 11 Loyola Law Review 689 at 699, where the 19 auth r has commented : 20 "In situations where it is unclear whether appeal or mandamus is the appropriate remedy, the court has permitted a party to 21 file both' an appeal and a petition for the writ. " 22 citing Hartland v. Alaska Airlines, 544 F. 2d 992 (9th Cir. , 1976 ); 23 McDonnell Douglas Corp. v. United States Dist. Court, 523 F. 2d 24 1083 (9th Cir. , 1975 ) , cert den. 425 U.S. 911 (1976 ) ; United 25 States v. United States Dist. Court, 509 F.2d 1352 (9th Cir. ) cert. 26 denied 421 U.S. 962 (1975 ) . See, also, the Note in 38 Ohio State 27 Law Journal at pages 315-317 , "B. Mandamus and Section 1292 (b) 28 Compared" . -19- 1 B. The Petitioner Will Be Damaged Or Prejudiced In A Way Not Correctable On Appeal. 2 3 Until the importance of the state interests herein is 4 recogized and Middlesex County Ethics Committee abstention is ' 5 called into play, petitioners will continue to suffer damage and 6 preju ice in a way not correctable on appeal. The interruption of 7 the state' s right to exercise its sovereign powers in a manner 8 which will permit it to clarify and interpret complex schemes of 9 state and local law, constitutes "irreparable harm" . Only by the 10 issuance of the writ prayed for can the court prevent the 11 irreparable harm that the abstention doctrine was designed to 12 prevent. D'Iorio v. County of Delaware, 529 F.2d 681 (3rd Cir. , 13 1978 ) (abstention required until decision by state court on state 14 law) ; Frederick L. v. Thomas, 578 F.2d 513 (3rd Cir. , 1978 ) (writ 15 of mandate upheld- district court' s order of abstention) . 16 There are strong public policy considerations which caused 17 the evolution of the four-part test in Middlesex County Ethics I 18 Committee, supra, which now mandate federal abstention where an 19 important state interest is at stake and a civil proceeding is 20 available in the state court which is ready, willing , and able to 21 consder the same constitutional challenges which are being urged 22 in the federal lawsuit. This Court must weigh those same public 23 policy considerations in the balance in considering the City' s 24 claim of " irreparable harm" , and in deciding whether the City of 25 Renton, et al. ' s Petition herein, has stated a claim which merits 26 .the extraordinary relief herein required. 27 First and foremost, the federal interference below threatens 28 state sovereignty by preventing a city from having its zoning -20- 1 matters heard and decided in the state court system and from 2 having its legislation develop in an orderly fashion. The zoning 3 power controls the "use" of land. "Use" violations do not occur 1 4 until the "use" has been changed by the property owner, or the 5 contemplated "change in use" has been divulged to the City. If a 6 property owner is permitted to file a federal lawsuit concerning 7 such "use" in advance of either of these events, and against the 8 City' desires that such legislation should not be applied in, a 9 certain manner or that certain litigation should not be 10 under .aken, or against its demand that such matters be heard and 11 resol ed in the . state court system, state sovereignity is 12 threatened. The spirit and intent of the Eleventh Amendment was 13 ' to prevent that situation from arising. Hans v. Louisiana, 134 14 U.S. 1, 33 L.Ed. 842, 10 S.Ct. 504 (1890 ). 15 Second, the result which was reached in the district court 16 below is counterproductive of the state interest that the 17 legislative process be permitted to develop in an orderly fashion. 18 When state legislation is enacted which is less than 100% perfect, 19 the licy expressed in Middlesex County Ethics Committee, supra, 20 precl des the federal courts from entertaining jurisdiction and 21 holdi g such legislation unconstitutional , in order that the state 22 judicial system might be permitted to provide support and apply 23 any correction 'which may be necessary to "flesh out" the 24 legi lation and make the state legislative process function 25 effi iently. , 26 Third, were the federal court to entertain•jurisdictioniunder 27 the ,ivil Rights Act, 42 U.S.C. § 1983 , before the state court has 28 had n opportunity to afford due process relief under state !law, -21- i 1 inclu ing its "administrative" decision that the ordinance should 2 not b "applied" in a given fact situation, the federal courtiis 3 inviting the recurring conflicts which are presently arising 4 betweL simple tort concepts (state law) and constitutional tort 5 concepts (federal law) . See Allen v. McCurry, 449 U.S. 90, 66 6 L.Ed. ' d 308, 317, 101 S.Ct. 441 (1980 ) ; Parratt v. Taylor, 451 7 U.S. 27, 68 L.Ed.2d 420, 434, 101 S.Ct. 1908 (1981 ); Martinez v. 8 ' California, 444 U.S. 277, 62 L.Ed. 2d 481 , 100 S.Ct. 553 (1980) . 9 See a so, the collection of cases in Civil Rights and Civil - 10 Liberties Litigation, 1982 Cumulative Supplement, by Sheldon H. 11 Nahmo , § 3 . 08, Due Process at pages 67-73 and Singleton v. City 12 , of Ne, York, 632 F.2d 185 (2nd Cir. , 1980 ). By requiring that 13 federal jurisdiction not be entertained until the city has had 14 occasion to apply the ordinance, potential conflicts are 15 averted. 2V 16 Fourth, by exercising jurisdiction prematurely in such cases, 17 and endering constitutional judgments, federal courts are �' misconception legislation is 18 creating an erroneous misc cepti n that such eg 19 2/ Consider, in this regard, the differing results which are possible ' depending upon which jurisdiction hears the case. Suppose, for example, ian 20 action is brought in the state court on city legislation which may, in some of its applications, be defective. The state court "fleshes out" the ordinance 21 and aplies the ordinance in a constitutional manner. If the ordinance was corretly applied in a given fact situation, the ordinance is given meaning and 222 substance as applied, and the city is not penalized with burdensome attorneys' fees. Further, in those instances in which it is less sure of the application 23 of the ordinance, it need not seek to apply it, in which event it has not run the risk of responsibility for a constitutional tort and an assessment of 42 24 U.S.CII. § 1988 attorneys' fees. In contrast, if an action were brought in the f ederlal court on the same defective legislation but by a party who is relying 25 upon laomeone elses' rights (such as here, where the federal plaintiffs are attempting to litigate the rights of others, see Shad v. Borough of Mt. • 26 Ephraim, •452 U.S. 61 (1981 ), and not their own rights as the operators of the Renton and Roxy Theatres), the federal court cannot "flesh out" and correct the 27 defect. Further, the federal court is faced with a claim that the statute should be struck on the basis of some theoretical claim as to a "constitutional 28 tort" and that an award of attorney's fees should be made under 42 U.S.C. § 19 8. i -22- I 1 beyond repair in the state court, whereas the opposite is true,, 2 inasmuch as such legislation may -be revived. See Dombrowski v. 3 Pfeister, 380 U.S. 479 at 490, footnotes 6 and 7. Few are aware ' F 4 , of the innovative procedures which may be available to bring that 5 ' about, see Metromedia, Inc. v. City of San Diego, 453 U.S. 490 , 69 6 L.Ed.2d 800, 101 S.Ct. 2882 (July 2, 1981 ) . This dilemma can ;only 7 be avoided by requiring strict adherence to the four part 8 abste tion test set forth in Middlesex County Ethics Committee, 9 supra, whenever a claim based upon states' rights is affirmatively 10 plead d, as here, in the federal court system. 11 n sum, the City is prejudiced in a way not correctable upon 12 appeal[ because: I 13 (1 ) The sovereign rights of state government are being threatened. 14 (2 ) Time is lost in the legislative process by a state court 15 not being able to apply such minor corrections to state legislation as may be necessary. In the federal court, ;the 16 Qrdinance is struck, and the city must return to "square; one" in the legislative process. In contrast, in the state court 17 System, the state courts contribute to the efficiency of the legislative process, are permitted to add "gloss" and "flesh 18 out" such ordinances and the ordinance is thereafter enforced interpreted. State sovereignty is recognized and cities 19 are not subject to penalties for innocent errors of draftmanship pursuant to claims under 42 U.S.C. § 1988. 20 (3 ) By entertaining jurisdiction under the Civil Rights Act, 21 2 U.S.C. S 1983 , before the state court has had an opportunity to afford due process relief, the federal courts 22 lare inviting the insurmountable conflicts which have arisen 4etween simple tort concepts (state law) and constitutional 23 tort concepts (federal law) . 24 (4 ) The cost of government is increased. After a "slight stumble" in the legislative process, government bodies are 25 being assessed large attorney fees under 42 U.S.C. § 1988, without being able to derive any benefit therefrom. 26 (5 ) Litigation is duplicated , and the results are 27 inconclusive. See footnotes 6 and 7 of Dombrowski v. Pfister, 380 U.S. 479. Besides being inconclusive, the 28 results are muddled. Compare Spokane Arcades, Inc. , 631 F. 2d -23- 1 135 (9th Cir. , 1980 ) , affirmed 102 S.Ct. 557 (1981 ) and Metromedia, Inc. v. San Die o, 453 U.S. 490, 69 L.Ed. 2d 800, 2 101 S.Ct. 2'882 (July 2, 1981 ) , discussed at page 40, infra. 3 4 C. The District Court's Order Raises New And Important Problems, Or Issues Of Law Of First 5 Impression. 6 7 m Middlesex County Ethics Committee v. Garden State Bar 8 Assn. U.S. , 73 L.Ed.2d 116, 102 S. Ct. (1982 ) , the 9 United States Supreme Court reexamined the Younger-Huffman line of 10 cases involving civil matters and formulated a new four-part test 11 for d termining the parameters of federal abstention where 12 impor ant state , interests were involved and where a state court 13 proceeding was available to consider the federal claim. 14 his Court has a duty to instruct the federal district court 15 On th proper scope of the Middlesex abstention rule. An 16 extra rdinary writ is appropriate to review orders that require 17 the a plication of new federal rules where there is no clear 18 existing interpretation for the trial judge to follow, and, where 19 a particular aspect of a federal rule has never been considered by 20 the appellate courts, the court has a duty to instruct the 21 district court judge on the proper scope of the rule. 22 Schl genhauf v. Holder, 379 U.S. 104, 13 L.Ed. 2d 152, 85 S.Ct. 234 23 (196 ). 24 25 D. The District Court's Order Is Clearly Erroneous As A Matter Of Law. 26 27 The district Court' s order which refused to dismiss the civil 28 righ s complaint is clearly erroneous as a matter of law. See pg. 1 -24- 1 45-48 , infra. This is not an instance where the district court 2 was "merely erroneous" in its application of the law, but presents 3 the case where there was no legal basis for the trial judge's 4 decision. Green. v. Occidental Petroleum Corp. , 541 F. 2d 1335 at 5 ' 1338, fn. 3 (9th Cir. , 1976 ). 6 Abstention is mandated where federal review of important 7 state questions would be disruptive of state efforts to establish 8 a coherent policy with respect to a matter of substantial public 9 concern. Middlesex County Ethics Committee v. Garden State Bar 10 . Assn. , U.S. , 73 L.Ed.2d -116, 102 S.Ct. (1982 ) . 11 11here a state law involving important state interests (Zoning 12 , Power and Legislative Power) is amenable to two constructions, the 13 estate court must be allowed to interpret the state law so as to 14 , avoid any constitutional issue. A federal court interpretation of 15 state law in these circumstances would only be a " forecast" , and 16 failure to abstain is abuse of discretion as a matter of law. See 17 Boehning v. Indiana State Employees Ass' n. , 423 U.S. 6, 46 L.Ed. 2d 18 148, 96 S.Ct. 168 (1975 ) , reversing the Seventh Circuit's refusal 19 to abstain. Even where there are first amendment challenges to 20 stat laws, abstention is dictated in those circumstances where 21 state law is amenable to a construction which would avoid or ' 22 narrow the constitutional issues. See Huffman v. Pursue Ltd. , 420 23 U.S. 592 at 612, 43 L.Ed.2d 482 at 496, 95 S.Ct. 1200 (1975 ) , 24 citing Ohio ex rel. Ewing v. A Motion Picture Film Entitled 25 "Without a Stitch" , 37 Ohio St. 2d 95, 307 N.E. 2d 911 (1974 ) . 26 /// /// /// 27 /// /// /// 28 /// /// /// -25- 1 E. The District Court' s Order Is An Oft Repeated Error, Or Manifests A Persistent 2 Disregard Of The Federal Rules. 3 4 This Court, in its supervisory capacity, should take note of 5 the recurring nature of the abstention problem in this particular 6 area (Young type ordinance) and the need to formulate clear and 7 concise rules where important state interests are concerned , 8 , particularly where, as here, the court is about to repeat its 9 , erro . La Buy v. Howes Leather Co. , 352 U.S. 249, 1 L.Ed. 2d 290, 10 ' 77 S.Ct. 309, reh. den. 352 U.S. 1019, 1 L.Ed.2d 360 , 77 S.Ct. 533 11 (1957 ) ; Schlagenhauf v. Holder, 379 U.S. 104 , 13 L.Ed. 2d 152, 85 12 S.Ct. 234 (1964 ) ; Will v. United States, 389 U.S. 90, 19 L.Ed.2d 13 305, 88 S.Ct. 269 (1967 ) ; Bankers Life & Casualty Co. v. Holland, 14 346 U.S. 379, 98 L.Ed.2d 106, 74 S.Ct. 145 (1953 ); Roche v. Evap. 15 Milk, 319 U.S. 212, 87 L.Ed.2d 1185, 63 S.Ct. 938 (1943 ) . This 16 preselts the classic case where circumstances dictate that the 17 extraordinary writ procedure be used to discourage and prevent the 18 recurrence of the erroneous practice of district courts, 19 (notwithstanding Justice Steven' s opinion , see page 4 , lines 9-13 ) , 20 to interfere in zoning cases involving the Young type ordinances, 21 as well as to correct the abuse of discretion and usurpation of 22 power by the district court in relation to City of Renton 23 Ordin nce Nos. 3526, 3629 and 3637, in refusing to apply the rule 24 on abstention recently promulgated in Middlesex County Ethics 25 Committee v. Garden State Bar Assn. , U.S. , 73 L.Ed .2d 116, 26 102 S .Ct. (1982 ) . 27 /// /// /// 28 /// /// 1 /// -26- • 1 F. The Party Seeking The Writ Has No Other Adequate Means, Such As A Direct Appeal, To 2 Attain The Relief Desired. .. 3 4 Petitioners submit that remedy by way of appeal is inadequate 5 here. See, also, V (A) , supra, at page 18. The purpose of the 6 final judgment rule ( in which appellate review is postponed until 7 ' afte judgment has been rendered by the trial court) is the 8 prom tion of judicial economy by avoiding the expense and delay of 9 inte locutory review of issues that might be rendered either moot 10 or s bject to appeal if the case were allowed to go to finale 11 judgment. 1 12 For the reasons set forth below at pages 41-.43, =infra,- . 13 if the action herein is allowed to proceed to trial in federal 14 cour , any judgment rendered by the district court will be 15 inco clusive and will not constitute a 'final adjudication" of the 16 matt rs involved. See Dombrowski v. Pfister, 380 U.S. 479 at 490, 17 foot otes 6 and 7. 18 Moreover, although the district court has indicated by the 19 oral statements made by its magistrate that it will remand the 20 state action back to state court, this "oral order" , without 'being 21 reduced to a written signed order, can neither be enforced nor 22 reviewed. The district court' s failure to undertake this 23 ministerial task and its inaction in connection with the entry of 24 a written, signed order of remand is properly controllable by 25 mandamus, which is the only adequate mode of relief where an 26 inferior tribunal refuses to act upon a subject properly brought 27 befor it. 28 /// /// /// -27- 1 ABSTENTION 2 • 3 A. Under Middlesex County Ethics Committee v. Garden State Bar Assn. , The U.S. District 4 Court Was Required To Abstain. The Refusal To Abstain Constitutes An Abuse Of Discretion And 5 Usurpation Of Jurisdiction Which Should Be Corrected By Prerogative Writ. 6 7 ' •pproximately one month after U.S. District Judge Walter T. 8 McGovern' s May 5, 1982 ruling which denied the Defendants ' Motion 9 to Di miss the federal complaint on grounds of abstention and;, lack the United States Supreme Court' 10 • (usurpation) of jurisdiction, p 11 decid d Middlesex County Ethics Committee v. Garden State Bar 12 ' Assn. U.S. , 73 L.Ed.2d 116, 102 S.Ct. (June 21, 13 1982 ). In that, case, the High Court reversed the judgment of; the 14 Court of Appeals for the Third Circuit and required that it 15 abstaxn in a "non-criminal judicial proceeding when important 16 state interests are involved" , where, as here, "state proceedings 17 affor an adequate opportunity to raise the constitutional 18 claim " . Although Chief Justice Burger's majority opinion (joined 1 19 by Ju tices White, Powell, Rehnquist and O'Connor) did not 20 elaborate upon the grounds for such reversal, it seems clear from 21 the analysis of the majority opinion that at the very least, the 22 rever71 was based upon an abuse of discretion. See D' Iorio v. 1 23 County, of Delaware, 592 F.2d 681 at 686 (3rd Cir. , 1978 ) ; 24 Frederick L. v. Thomas, 557 F.2d 373 at 382; Duncan v. Poythress, 25 657 F.2d 691, 697 (5th Cir. , 1981 ) and the cases therein cited; 26 Color do River Water Cons. Dist. v. U.S. , 424 U.S. 800 at 816, fn. 27 22, 44 L.Ed.2d 483 at 497, fn. 22, 96 S.Ct. 1236 (1976 ) . 28 Petitioners also contend , however, that the same analysis would -28- ' 1 equally support Petitioners' claim of lack (usurpation) of 2 jurisdiction based upon the conflicting state interests, state _3 - sovereignty and the llth Amendment, where the State had not waived 4 its right to have the state matter heard and interpreted in the 5 state court. See Ohio Bureau of Employment .Services v. :Hodory, 6 431. U.S. 471, 480. Compare, the opinion of Justice Marshall, - 7 concurring in the judgment, joined by Justices Brennan, Blackmun 8 and Sevens which noted that there were ongoing judicial ! 9 proceedings in the state court in which the federal plaintiff had 10 been iven the opportunity to raise his constitutional challenges. 11 in Middlesex County Ethics Committee, supra, disciplinary 12 proce dings were instituted by the local committee of the New 13 Jerse disciplinary system against an attorney based upon an ' 14 allegation of unethical conduct. Upon filing of a formal 15 state Tent of charges, the respondent -refused to answer, but 16 instead filed sui t in the United States District Court contending 17 that he disciplinary rules violated his First Amendment right of . 18 free speech. The District Court granted the Bar Association' s 19 Motion to Dismiss based on Younger v. Harris, supra, but the court 20 of Ap ,eals reversed. On appeal, the majority of the Court held 21 that bstention was mandated under the general principles 22 previ usly expressed by the High Court in Huffman v. Pursue Ltd. , 23 420 U.S. 592, 604-605, 43 L.Ed.2d 482, 95 S.Ct. 1200 (1975 ) ; 24 Trainor v. Hernandez , 431 U.S. 434, 52 L.Ed. 2d 486, 97 S.Ct. 1911 25 (1977 ; Juidicev. Vail, 430 U.S. 327, 51 L.Ed.2d 376, 97 S.Ct. 26 1211 (1977 ); Moore v. Sims, 442 U.S. 415, 423, 60 L.Ed.2d 994', 99 i 27 S.Ct. 2371 (1979 ) . See Middlesex County Ethics Committee, supra, 28 at page 124 where the Court noted : 1 -29- 1 Younger v. Harris, 401 U.S. 37, 27 L.Ed. 2d 669, 91 S.Ct. 746 (1971 ) , and its progeny espouse a strong federal policy 2 against federal court interference with pending state judicial proceedings absent extraordinary circumstances. The 3 policies underlying Younger abstention have been frequently reiterated by this Court. The notion of 'comity' includes 'a 4 proper respect for 'state functions, a recognition of the fact that the. entire country is made up of a Union of separate 5 state governments, and a continuance of the belief that the National Government will fare best if the States and their 6 Institutions are left free to perform their separate functions in their separate ways. ' Id. , at 44, 27 L.Ed.2d 7 669, 91 S.Ct. 746. Minimal respect for the state processes, Of course, precludes any presumption that the state courts 8 ill not safeguard federal constitutional rights. 9 7 The policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state 10 interests are involved. Moore v. Sims, 442 U.S. 415, 423, 60 . .Ed.2d 994, 99 S.Ct. 2371 (1979 ) ; Huffman v. Pursue, Ltd. , 11 420 U.S. 592, 604-605, 43 L.Ed.2d 482, 95 S.Ct. 1200 (1975 ). The importance of the state interest may be demonstrated' by 12 the fact that the noncriminal proceedings bear a close ' relationship to proceedings criminal in nature, as in 13 Huffman, supra. Proceedings necessary for the vindication of imp aortaort nt state policies or for the functioning of the state 14 judicial system also evidence the state's substantial interest in the litigation. Trainor v. Hernandez, 431 U.S. 15 434, 52 L.Ed. 2d 486, 97 S.Ct. 1911 (1977 );' Juidice v. Vail, 16 '30 U.S. 327, 51 L.Ed. 376, 97 S.Ct. 1211 (1977 ) . Where ' ital state interests are involved, a federal court should abstain 'unless state law clearly bars the interposition of 17 the constitutional claims. ' Moore, supra, at 426, 60 L.Ed.2d, 9194, 99 S.Ct. 2371. ' [T]he . . . pertinent inquiry is 18 hether the, state proceedings affordan adequate opportunity o raise the constitutional claims. . . . ' Id. , at 430, 60 19 .Ed.2d 994 , 99 S.Ct. 2371. See also Gibson v. Berryhill, 411 U.S. 564, 36 L.Ed.2d 488, 93 S.Ct. 1689 (1973 )." 20 21 See, also, the general principles expressed in Allen v. McCurry, 22 449 U.S. 90, 66 L.Ed.2d 308, 317, 101 S.Ct. 441 (1980 ) and Parratt 23 v. Ta lor, 451 U.S. 527, 68 L.Ed.2d 420, 434, 101 S.Ct. 1908 24 (1981 ) , relating to the legislative intent in establishing the 25 Civil •ights action, and its limitations arising out of the 26 result n.t conflicts which exist in federal and state rights. • 27 P titioners contend that the Middlesex County Ethics 28 Committee case enunciates a four part test for Federal Court 1 -30- 1 abstention in non-criminal proceedings involving important state 2 inter sts, which controlled the discretion of the U.S. Distrilct 3 Court below and required it. to dismiss the federal action herein. 4 Under the Middlesex County Ethics Committee majority opinion,( the 5 U.S. istrict Court's refusal to abstain constitutes an abuse', of 6 discretion which should be corrected by prerogative writ. 7 Simply stated , the Middlesex County Ethics Committee four 8 part t.est3/ for abstention is as follows: 9 1. Is a State action pending? 10 2. -Are important State -policy or interest questions involved? 11 Can the constitutional issues be resolved in the state 12 court? 13 Is there 'a showing of bad faith, harassment or some' other extraordinary circumstance which would make 14 abstention inappropriate? 15 The r cord below clearly demonstrates that the Middlesex County 16 Ethics Committee four part test has been satisfied and that 17 abstention is mandated: 18 I 3/ Se Middlesex County Ethics Committee, supra, at page 124-125, where the 19 Court ramed a three part test: 20 " The question in this case is three-fold: first, do state bar d'sciplinary hearings within the constitutionally prescribed jurisdiction 21 ofl the State Supreme Court constitute an ongoing state judicial proceeding; second, do the proceedings implicate important state 22 interests; and third, is there an adequate opportunity in the state proceedings to raise constitutional challenges. 23 and at page 126, where the Court added a fourth factor relating to "bad faith, 24 harassment or some other extraordinary circumstances": 1 25 The importance of the state interest in the pending state judicial pr ceeding and in the federal case calls Younger abstention into play. So 26 long' as the constitutional claims of respondents can be determined in the state proceedings and so long as there is no showing of bad faith, 27 harassment or some other extraordinary circumstance that would make ab tention inappropriate, the federal courts should abstain." (Our 28 em hasis. ) -31- 1 1. A State action is Pending: 2 On February 9, 1982 , Plaintiffs Playtime Theatres, Inc. and 3 Kuki Bay Properties filed their "Amended and Supplemental 4 : Complaint For Declaratory Judgment and Preliminary and Permanent 5 ' Injunction" in the federal district court below (Exhibit B) 6 : alleging thereon a proposed use by them of the "Renton" and "Roxy" 7 ; theaters which would invoke an application of the Renton Zoning 8 ' Ordinance and a claim that the City of Renton Ordinance could not 9 constitutionally be applied to those theaters. Prior to any 10 . action on the merits being taken in that federal action, and; 11 within the time alloted for the City to respond to such federal 12 action, the City filed a Complaint for Declaratory Judgment under 13 R.C.W., 7. 24 in; the King County Superior Court naming the 14 Plaintiffs in the federal action as defendants, and requesting an 15 adjudication of that same controversy (the constitutionality' of 16 the ordinance as applied to the specific land use proposed by the 17 Plaintiffs as set forth in the verified pleadings in their Amended 18 and Supplemental Complaint) in the state court. 19 The State' Court proceedings which were removed to Federal 20 Court should be remanded to the state court for an authoritative 21 construction of the ordinance. Because of the failure of the 22 Magistrate to issue a Report and Recommendation in accord with his 23 oral decision to remand the state court action, the City has been 24 precluded from obtaining the authoritative construction of the 25 statute which Young v. American Mini Theaters, 427 U.S. 50, 149 26 L.Ed.2d 310, 96 S.Ct. • 2440 (1976 ) , and Dombrowski v. Pfister, 380 27 U.S. 479, 14 L.Ed. 2d 22, 85 S.Ct. 1116 (1965 ) anticipated , and 28 which would obviate the necessity of these proceedings. ' See -32- 1 Dombrowski at page 490 , footnote 6 and 7 . 2 2. The state court proceedings implicate important state ' 3 interests: 4 In Stansberry v. Holmes, 613 F. 2d 1285 , 1288 (5th Cir. , 5 1980 ) , the Court of Appeals eloquently described the United States 6 Supr me Court' s attitude toward local zoning : 7 "Zoning provides one of the firmest and most basic Of the rights of local control . . . In Berman v. Parker, 348 U.S. - 8 26, 33, 75 S.Ct. 98, 102 , 99 L.Ed. 2d 27 (1954 ) , the Court held that land use regulations- may promote 'values [which] 9 are spiritual as well as physical , aesthetic as well as monetary. ' In Village of Belle Terre v. Boraas, 416 U.S. 1, 10 9, 94 S.Ct. 1536, 1541, 39 L.Ed. 2d 797 (1974 ) , the Court said (that zoning could be used to create and promote living areas 11 t.hat protect ' family values [and] youth values. '" 12 The United States Supreme Court in Young v. American Mini 13 Theaters, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed . 2d 310 (1976 ) , has 14 specifically approved the type of zoning ordinance adopted by the 15 City. See Justice Steven' s opinion as to the importance of the 16 City' interest in Young, supra, at pgs. 53, footnote 4, 60, and 17 at page 70, where he stated: 18. I . . It is not our function to appraise the wisdom of its decision to require adult theaters to be separated rather 19 han concentrated in the same areas. In either event, the city' s interest in attempting to preserve the quality of 20 urban life is one that must be accorded high respect. Moreover, the city must be allowed a reasonable opportunity 21 to experiment with solutions to admittedly serious problems. " (Our emphasis. ) 22 23 In his concurring opinion in Young, supra, Justice Powell noted 24 that the interest furthered by the adoption of such zoning 25 ordinances " is perhaps the most important function performed 26 local government" , at page 80: 27 "Without stable neighborhoods, both residential and commercial , large sections of a modern city quickly can i 28 deteriorate into an urban jungle with tragic consequences to -33- 1 social , environmental and economic values. While I agree with respondents that no aspect of the police power enjoys 2 • immunity from searching constitutional scrutiny, it is also undeniable that zoning , when used to preserve the character 3 of specific areas of a city, is perhaps ' the most essential function performed by local government, for it is one of the 4 primary means by which we protect that sometimes difficult to define concept of quality of life. ' " 5 1 6 It would seem clear therefore that the zoning interest qualifies 7 as an " important state interest" within the meaning . of that term 8 ' as Lied in Middlesex County Ethics Committee, supra, for 9 determining whether abstention is mandated . As the High Court 10 noted in- the Middlesex County Case at page 125, footnote 12: 1 , 11 "As recognized in Juidice v. Vail, supra, however, whether the proceeding is labeled civil, quasi-criminal or criminal 12 in nature, the salient fact is whether federal court interference would unduly interfere with the leg t mate 13 activities of the state. Id. , at 355-336. " (Our emphasis. ) 14 Ther can be no doubt that the federal court interference below 15 "und ly interfere(s) with the legitimate activities of the state" . 16 See rguments on "irreparable harm" at page 20, et seq. , supra. 17 3. The federal plaintiffs have an adequate opportunity to 18 rais= their constitutional challenges in the state proceedings: 19 Plaintiffs can make no claim that they will be unable to 20 raise their constitutional claim in the state court action which 21 was filed by the City. As noted above, the declaratory judgment 22 actio which was filed in the state court raises the identical 23 issue which the federal plaintiffs raised in their federal 24 actio . See page 32, lines 12-18 , supra, and compare the issues 25 and contentions, framed in Exhibits B and C. 26 There is no showing of bad faith, harassment or 27 extraordinary circumstance which would make abstention 28 inappropriate: -34- 1 The federal plaintiffs have made no claim, nor does the 2 record show any evidence of bad faith, harassment, or other 3 extr ordinary circumstances which would make abstention 7 4 Huffman v. Pursue, Ltd. , supra.inappropriate under uff p 5 "Abstention" having been clearly make applicable to i 6 noncriminal judicial proceedings involving important state ' 7 interests such as zoning, it was a usurpation of jurisdiction and 8 an aLuse of discretion for the U.S. District Court to fail to 9 . abstain from the exercise of jurisdiction in this matter. 10 11 B. In Applying The Four Part Test Set Forth In Middlesex County Ethics Assn. , The Federal 12 Court Must Abstain If The First Three Parts Of The Test Are Satisfied And If The Statute Or 13 Ordinance Is Susceptible Of A Constitutional Construction In The State Court; That Is; It 14 May Only Assume Jurisdiction Where The Challenged Statute Is "Flagrantly And Patently 15 Viola'tive Of Express Constitutional Prohibi- tions In Every Clause, Sentence And Paragraph 16 And In Whatever Manner And Against Whomever An Effort Might Be Made To Apply It. 17 18 in Huffman v. Pursue, Ltd. , 420 U.S. 592, 43 L.Ed. 2d 482, 95 19 S.Ct. 1200 (1975 ) , the U.S. Supreme Court examined the first three 20 factors which were considered by the U.S. Supreme Court in 21 Middl sex County Ethics Committee v. Garden State Bar Assn. , 'Inc. , 22 supra and concluded that, although the Ohio public nuisance I 23 abateIent proceedings were civil in nature, the abstention rules 24 regar ing criminal proceedings expressed in Younger v. Harris, 401 25 U.S. r (1971 ) applied. In effect, the Huffman opinion holds that 26 the first three parts of the Middlesex County Ehtics Committee 27 test ad been satisfied. The Huffman case, however , was not 28 ordered dismissed as was done in Middlesex County but was remanded 4 -35- 1 to the U.S. District Court to determine whether the fourth part of 2 the iLest had been satisfied so that the court could assume 3 " jurisdiction" ;, that is at page 497 : 4 "whether . . . the District Court may assume jurisdiction under an exception to the (Younger) policy against federal 5 judicial interference with state court proceedings of this kind." (Our emphasis. ) 6 7 In Huffman, the High Court defined the "jurisdictional" boundary 8 line of that Younger "exception" at page 496 as: 9 "Younger, and its civil counterpart which we apply today, do of course allow intervention in those cases where the 10 District Court properly finds that the state proceeding ;is motivated by a desire to harass or is conducted in bad faith 11 or where the challenged statute is ' flagrantly and patently violative ,of express constitutional prohibitions in every 12 'clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it' . As we 13 ave noted, the District Court in this case did not rule on the Younger issue, and thus apparently has not considered 14 whether its intervention was justified by one of these narrow exceptions. . . . " (Our emphasis. ) 15 16 In view of Huffman, supra, as explicated in the High Court's 17 recen opinion in Middlesex County Ethics Committee v. Garden' City 18 Bar Assn. , supra, it is now clear that where the first three parts 19 of the test of Middlesex are satisfied and if the state statute or 20 city Trdinance is susceptible of a constitutional construction in 21 pending proceedings in the state court, the federal court must 22 dismi s the federal action. 23 The above rule of law was correctly expressed by the United 24 States District Court, M.D. Florida, Tampa division in Stecher v. 25 Askew 432 F.Supp. 997 at 999 (1977) : 26 While as a general rule a State Supreme Court may construe a statute which appears unconstitutional on its , face 27 in such a way as to render its application constitutional , ee, e.g. , Wainwright v. Stone, 414 U.S. 21 (94 S.Ct. 190, 38 28 .Ed.2d 179 ) (1973 ) , there may be cases in which such a -36- • 1 construction, even though attempted, may be impossible. Under the facts alleged in the complaint, the plaintiff has 2 standing, to assert that this statute presents such a situation. The plaintiff has standing as to this issue : to 3 wit, whether the statute is unconstitutional on its face and could not be rendered constitutional by any decision of the 4 Florida Supreme Court. " (Our Emphasis. ) 5 To s cceed in the federal court, Plaintiffs must successfully 6 demonstrate that no further interpretation could bring the city 7 ordinance under question within the confines of the protections 8 insured by. the Constitution. If there is any saving 9 interpretation which the state court could make , plaintiffs must 10 demonstrate that the state courts will not so construe it. As the 11 Court said in Stecher, supra, at page 999: 12 'For the plaintiff to succeed in this Court, he must successfully demonstrate that no further interpretation could 13 bring this statute within the confines of the tests set out in Chaplinsky. In subsequent proceedings under this statute, 14 however, there is absolutely no obstacle the the Florida • courts' further defining the words 'Necessarily incite a 15 breach of the peace' which were incorporated into this statute by State v. Mayhew, 288 So.2d 243 (Fla. 1973 ) , as 16 meaning 'words likely to cause an average addressee to fight. ' Such construction would save the statute, and the 17 plaintiff cannot demonstrate that the Florida courts will not so construe it." (Our emphasis 18 19 While it is true that a state defendant may consent to have 20 the federal court make that determination, see Ohio Bureau of 21 Employment Services v. Hodory, 431 U.S. 471, 480 , that is not the 22 case here where the City of Renton did not consent and elected to 23 have the matter decided by the state court in such a case. 24 Without doubt, the U.S. District Court has jurisdiction in 25 such cases to decide the question of jurisdiction. U.S. v. United 26 Mine Workers of America, 330 U.S. 258, 91 L.Ed.2d 884, 67 S.Ct. 27 677 (1 74 ) . Where, however, a state statute involving an 28 important state interest is susceptible to a construction which -37- • 1 will render the statute constitutional and a state court action is 2 pen ing , under Middlesex County Ethics Committee, supra, the 3 fed ral court must abstain and must allow the matter to be 4 ret rued to the state court system for an authoritative 5 construction by the state court. One of the principle reasons why 6 this result is mandated is the fact that a federal court lacks 7 jurisdiction to authoritatively construe state legislation, 'U.S. 8 v. Tirty-Seven Photographs, 402 U.S. 363, 28 L.Ed.2d 822, 9,1 9 S.Ct. 1400 (1971 ) , a task which is routinely performed by state 10 courts. See S'techer v. Askew, supra, at 999, where the court 11 correctly stated: 12 "In determining whether plaintiff has succeeded at this, task, we 'must take the statute as though it read precisely as the 13 highest court of the State has interpreted it. ' Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 273, 60 S.Ct. 14 523, 525, 84 L.Ed.2d 744 (1940 ). Furthermore, 'we lack, jurisdiction authoritatively to construe state legislation. ' 15 United States v. Thirty-Seven Photographs, 402 U.S. 363, 369, 91 S. Ct. 1400, 28 L.Ed.2d 822 (1971 ) . " 16 17 The rationale in Middlesex County Ethics Committee, supra, 18 which requires a federal court to defer to a pending action in the 19 stat court where an important state interest is concerned , is 20 grou ded upon several important state and federal policy 1 21 considerations. In the first place, there is a marked difference 22 in the way in which the state and federal courts approach the 23 constitutional issue regarding state policy considerations (see 24 footnote 2 on page 22, supra) legislation. Largely because of the 1 25 doctrine of separation of powers, the rule has evolved that state 26 'courts are obliged to render a construction of state legislation 27 which will arrive at a constitutional result. In People ex rel. I 28 Busch v. Projection Room Theater, 17 Ca1.3d 55 at 56, the I -38- 1 California Supreme Court noted , in this context, at page 336 : 2 Furthermore, the United States 'Supreme Court recently emphasized within the foregoing context that courts have an 3 obligation to construe statutes in such a way as to avoid serious constitutional doubts . . . " (Our emphasis. ) ' 4 5 and, at page 338: 6 We are obliged to construe and interpret legislation in a manner which will uphold its validity. (Citations ) . Thus, 7 the courts have held that provision for a prior adversary hearing may be implied by law in otherwise silent statutory 8 provisions. " 9 Because federal courts do not bear the same relationship to istate 10 legislatures and don' t function in the same manner as regards 11 stat legislation, see U.S. v. 37 Photographs, supra, the end 12 resu t is certain to differ. 13 Additionally, the question as to whether defective federal 14 and state legislation may be "saved" by rules of statutory 15 construction and severance of the defective portion presents. 16 important public policy matters for federal and state governments. 17 See ,ilton v. Richardson, 403 U.S. 672 at 684, where Chief Justice 18 Burg r noted : 19 "The cardinal principle of statutory construction is to, save and not destroy. " 20 21 The uestion as to whether a state statute is severable is more 22 properly a matter for the state court. In a recent statement 23 confirming the importance of the "statutory construction" factor 24 and the right of state courts to interpret city ordinances, the 25 U.S. Supreme Court in Metromedia, Inc. v. San Diego, 453 U.S. 490, 26 69 L.Ed 2d 800, 101 S. Ct.' 2882 (July 2, 1981 ) (Involving a direct 27 appeab. of a city ordinance after a state court decision by the 28 California Supreme Court upholding the ordinance on its face ) -39- 1 rema ded the case back to the California Supreme Court for further 2 stat tory construction by the state court, notwithstanding it held 3 the rdinance to be unconstitutional on its face. See in this 4 rega d , Justice White' s opinion announcing the judgment of the 5 Cour at page 823, footnote 26, wherein he addresses the issue of 6 , seve ability and the right of state courts in that regard: ' 7 Although the ordinance contains a severability clause, determining the meaning and application of that clause are 8 roperly responsibilities of the state courts. See Dombrowski v. Pfister, 380 U.S:. 479, 497, 14 L.Ed.2d 22, 85 9 S.Ct. 1116. (1965 ) ( 'The record suffices . . . to permit : this Court to hold that, without the benefit of limiting - 10 . construction, the statutory provisions on which the indictments are founded are void on their face; until an 11 acceptable limiting construction is obtained, the provisions cannot be applied . ' ) ; Liggett Co. v. Lee, 288 U.S. 517„ 541, 12 ' 77 L.Ed. 929, 53 S.Ct. 481, 85 ALR 699 (1933 ) ( 'The operation f this [severability clause] consequent on our decision is a 13 atter of state law. While we have jurisdiction of the issue, we deem it appropriate that we should leave the 14 determination of the question to the state court. ' ); Dorchy v. Kansas, 264 U.S. 286, 291 , 68 L.Ed. 686, 44 S.Ct. 323 ( ' In 15 cases coming from the state courts, this Court, in the absence of a controlling state decision may, in passing upon 16 the claim under the federal law, decide, also the question of severability. But it is not obliged to do so. The situation 17 ay be such as to make it appropriate to leave the determination of the question to the state court. ' ) . This 18 rule is reflected in the different approaches this Court has taken to statutory construction of federal and state statutes 19 infringing on protected speech. Compare United States v. Thirty-Seven Photographs, 402 U.S. 363, 28 L.Ed.2d 822, 91 20 S.Ct. 1400 (1971 ), with Freedman v. Maryland, 380 U.S. 51, 60, 13 L.Ed.2d 649, 85 S.Ct. 734 (1965 ). Since our judgment 21 is based essentially on the inclusion of noncommercial speech within the prohibitions of the ordinance, the California 22 courts may sustain the ordinance by limiting its reach to commercial speech, assuming the ordinance is susceptable to 23 this treatment. " (Our emphasis. ) 24 This interplay of state and federal powers in civil matters 25 of this sort is best illustrated by an analysis of the differing • 26 results which were reached in Spokane Arcades, Inc. v. Brockett, 27 631 F.2d 135 (9,th Cir. , 1980 ) , affirmed , 102 S.Ct. 557 (1981 ) and 28 Metromedia, Inc.. v. San Diego, 453 U.S. 490, 69 L.Ed. 2d 800, 101 -40- 1 S.Ct. 2882 (July 2, 1981 ) . The affirmance of Spokane Arcades, 2 Inc. v. Brockett is frequently cited in appellate briefs as 3 standing for the proposition that the challenged Washington 4 Init'ative is "flagrantly and patently violative of express 5 ' cons itutional ,prohibitions in every clause, sentence and 6 para raph, and in every manner and against whomever an effort may 7 be to apply it" . (See The Younger "exception" framed at page 36, 8 line 7, et seq. , supra) . That assessment is erronious and 9 misunderstands the interplay of footnotes 6 and 7 of Dombrowski v. 10 Pfis er, 380 U.S. 479 at 490, as those footnotes relate to a , 11 corr ct understanding of the Spokane Arcades, Inc. decision. That 12 judg ent is binding only in so far as that plaintiff (Spokane 13 Arca•es, Inc. and that defendant [Brockett] ) is concerned. 14 Prop-rly understood , the Dombrowski footnotes hold that, 15 notw' thstanding a federal court may declare a state statute to be 16 unco stitutional on its face so as to warrant the granting of a 17 fede �al injunction against the application of the statute to the '� the stategovernmental authoritymaythereafter seek a 18 plai tiff, 19 rest ictive interpretation of the statute in the state court, and 20 thus "revive" the statute as to future violations against others. 21 See, in this regard, Metromedia, Inc. v. San Diego, 453 U.S. 490, 22 69 L.Ed.2d 800; 101 S.Ct. 2882 (July 2, 1981 ) , wherein, as noted 23 above, the High Court, after finding the San Diego City Ordinance 24 to bg unconstitutional on its face, took it upon itself to remand 25 the bause back to the California Supreme Court for re-evaluation 26 as to whether the California Supreme Court could render the 27 ordi ance a "limiting construction" which would "save" the 28 stat te. -41 • - 1 In the light of this recent development in the law, in the 2 Metro edia case , it must necessarily follow that the decision of 3 the Ninth Circuit in Spokane Arcades, Inc. v. Brockett, merely 4 holds that the statute can not presently. be applied to the 5 plaintiff Spokane Arcades, 'Inc. , and that those plaintiffs were 6 entitled to an injunction against enforcement of the statute until 7 the statute had been "narrowed" . Under Dombrowski, that does ,not 8 prevent the state courts in the State of Washington from asserting 9 in a future state action that, under a restrictive interpretation, 10 cert- in provisions of the 1977 Washington State Initiative can be 11 cons itutionally construed . Had Spokane County Prosecutor " 12 Brockett commenced an action in the state court, concomitantly 13 with his defense of the federal action in the Spokane Arcades; 14 Inc. case, the U.S. District Court in Spokane would have been ' 15 required to abstain under the principles expressed in Middlesex 16 Coun y. Having. failed to initiate a state action and require that 17 the state issue be tesolved in the state courts, Brockett fell 18 prey to that factual distinction which separated his case from 19 Middlesex County. 20 The judicial inefficiency- of permitting the federal system 21 4/ In a speech prepared for delivery at New York University on November 18, 1982, Chief Justice Warren E. Burger has warned that if some drastic changes 22 are npt made, state and federal' court systems could "literally break downl before the end of the century" because of the burden of work being placed upon 23 them: 24 'If every case in the, Supreme Court is to continue receiving individual attention of justices, as has been the tradition, the caseload 25 ,annot continue at the present rate, ' Burger said. 'It is not just a Natter of maintaining the present case load. That load must be reduced.'" 26 See Los Angeles Daily Law Journal article of November 19, 1982. Petitioners 27 submit that, in this context, the prerogative writs authorized by 28 U.S.C. § 1651 and Rule 21(a) of the Federal Rules of Appellate Procedure, are clearly 28 authorized under the facts herein pleaded. • -42- 1 to entertain jurisdiction of civil rights cases of this sort and 2 rend r judgment thereon which, in the final analysis under 3 Dombrrowski, are and must be inconclusive, whqn a state court civil 4 action is pending and the state court system is ready, willing and 5 able to consider the identical issues and render a judgment 6 thereon, which will be binding and conclusive, is obvious. 7 . 8 C. Ordinance No. 3526, As Passed And Adopted On April 13, 1981, Was Susceptable Of A 9 Constitutional Application To The Specific Parcels Of Property Owned By The Plaintiffs 10 (Renton And Roxy Theaters) . Ordinance No. 3526, As Amended By Ordinance No. 3629, To 11 Encorporate What The City Contends Would Be A Reasonable "Narrowing" State Court Construc- 12 tion, Is Clearly-Constitutional On Its Face. 13 • 14 Plaintiffs' attack on the viability of other locations within 15 the ity, based upon Shad v. Borough of Mt. Ephraim, 452 U.S. 61 16 . (1981 ) , is sham and has diverted the Magistrate from the real 17 issu s in this Federal case; that is: , 18 (1 ) the facial constitutionality of the ordinances, and 19 (2 ) whether the ordinances can be given a constitutional application to the specific parcels of property owned by the 20 Plaintiffs. 21 See nited States v. Raines, 362 U.S. 17 (1960 ) , where the High 22 Court held , at page 21: 23 iiThis Court, as in the case with all federal courts, 'has no jurisdiction to pronounce any statute, either of a state 24 or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudicate 25 the legal rights of litigants in actual controversies. 1 In the exercise of that jurisdiction, it is bound by two rules, 26 to which it has rigidly adhered , one, never to anticipate a question of constitutional law in advance of the necessity of 27 deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise 28 facts to which it is to be applied . ' Liverpool, New York and ' -43- ' 1 Philadelphia S.S. Co. v. Commissioners of Immigration, 113 U. S. 33, 39. Kindred to these rules is the rule that one to 2 whom, application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it 3 might also be taken as applying to other persons or other situations Ti which its application might be 4 unconstitutional. U.S. v. Wurzbach, 280 U.S. 396. " (Our emphasis. ) 5 6 A facial challenge based upon First Amendment Rights does not 7 perm't an unnecessary interference with a city' s regulatory 8 process, nor will such a city ordinance be deemed facially invalid 9 where it is susceptible of a narrowing construction in the state 10 courts. The U.S. District Court is required in such a case to 11 allo the state courts the opportunity to construe the ordinance 12 and, if necessary, to invoke a limiting construction. See page 13 25, ine 19 et seq. , supra. In Erzoznick v. City of Jacksonville, 14 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975 ) , the Supreme - - 15 Court, in disposing of a challenge to a city ordinance regulating 16 the types of movies that could be shown by a drive-in theater 17 whose screen was visible from the public streets, made the . I 18 following observation: 19 "This Court has long recognized that a demonstrably over- broad statute or ordinance may deter the legitimate exercise 20 of First Amendment rights. Nonetheless, when considering a facial challenge it is necessary to proceed with caution and 21 restraint, as invalidation may result in unnecessary interference with a state regulatory program. In 22 accommodating these competing interests, the Court haslheld that a state statute should not be deemed facially invalid 23 unless it is not readily ubject to a narrowing construction the state courts, see Dombrowski v. Pfister, 380 U.S. 479, 24 497, 85 S.Ct. 1118, 1126, 14 L.Ed. 2d 22 (1965 ) . . . , 422 U.S. at 216, 95 S.ct. at 2276. In Time, Inc. v. Hill, 385 25 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967 ) , the Court refused to declare a New York privacy statute invalid on its 26 face, noting that the New York courts had ' been assiduous in construing the statute to avoid invasion of the 27 constitutional protections of speech and press. We therefore, confidently expect that the New York courts will. 28 apply the statute consistently with the constitutional -44- 1 ommand. ' Id. at 297, 87 S.Ct. at 547. " (Our emphasis. ) 2 t the hearing on the City of Renton' s first Motion to 3 - Dismiss on March 12, 1982 , see IIG, supra, at page 11, line 8 et 4 seq. , the City argued that Ordinance No. 3526 was readily subject 5 to a arrowing construction by the state court and for that reason 6 the federal court was required to abstain. When the U.S. District 7 Court refused to abstain, the narrowing construction which had 8 been urged at the federal hearing , as a reasonable judicial state 9 court construction, was thereafter adopted by the City Council as 10 a legislative amendment in Ordinance No. 3629. See II (I ) , supra, 11 at page 13, line 25-28. 12 Ordinance No. 3526, as amended by Ordinance No. 3629, is 13 cleaily constitutional on its face. Under its terms, materials 14 protected by the First Amendment may be freely exhibited anywhere 15 within the City of Renton. The "Report and Recommendation" of 16 Magistrate Sweigert, dated November 5, 1982, which holds to the 17 contrary, in recommending "denial of defendants' dismissal and . 18 summary judgment motions" ( see Exhibit '"K" at page 2, lines 4-5 ) , 19 is eroneous as a matter of law. In this regard, consider 20 Magistrate Sweigert' s conclusions that: 21 "The ordinance in the instant case, for all practical purposes, excludes adult theaters from the City of Renton and 22 therefore greatly restricts access to lawful speech. " (Exhibit "K" at page 6, lines 21-23 ) ; 23 ▪ . Restricting adult theaters to the most unattractive, 24 inaccessable, and inconvenient areas of the city has the effect of suppressing or greatly restricting access tollawful 25 speech. " (Exhibit "K" at page 6 , lines 29-32 ) ; 26 ▪ . Adult theaters are, for all practical purposes, excluded from the City of Renton. The ordinance constitutes 27 a prior restraint on speech and should be held to be unconstitutional ." (Exhibit "K" at page 8 , lines 21-24 ) ; and 28 • -45- 1 " . . . Irreparable injury is clear. Plaintiffs may not exhibit sexually explicit adult films without being subjected 2 to civil abatement proceedings. The loss of First Amendment - freedoms for even minimum periods of time unquestionably 3 constitutes irreparable injury in the context of a suit for injunctive relief. " (Exhibit "K" at page 26-31 ) . 4 5 and note that Ordinance No. 3629 merely prohibits as a public 6 nuisance per se: 7 (1 ) the "continuing course of conduct" of exhibition' of "specified sexual activities" (meaning human genitals in a 8 state of sexual stimulation or arousal , acts of human masturbation, sexual intercourse or sodomy, or fondling or 9other erotic touching of human genitals, pubic regions, buttock or female breasts ) and "specified anatomical areas" 10 (meaning less than completely and opaquely covered human genitals, pubic region, buttock and female breasts below a 11 point immediately above the top of the aerola, and human male genitals in a discernible turgid state, even if completely. 12 and opaquely covered ) , when: 1 13 (a) such "continuing course of conduct" is presented " in a manner which appeals to a prurient interest" , and 14 (b) within 1,000 feet of any residential use or zone, 15 public or private school , church or other religious facility or institution, or public park. 16 17 A "continuing course of conduct" of exhibition of sexual conduct . 18 which "appeals to a prurient interest" is "pandering" , which is 19 unlawful and without the protection of the First and Fourteenth 20 Amendment, Pinkus v. U.S. , 436 U.S. 293, 56 L.Ed. 2d 293, 98 S.Ct. 21 1808 ( 1978 ) . In summary, the City of Renton ordinance prohibits 22 "pandering" in areas which are dedicated to family-oriented uses. 23 Exhibition of "specified sexual activities" or "specified 24 anatomical areas" elsewhere within the City is not a public 25 nuisance per se. Even if the Plaintiffs exhibit such activities 26 in a residential zone, it is not a violation of the zoning 27 ordinance until the conduct can be shown to be a "continuing 28 course of conduct" . Further, innocent or negligent exhibitions do -46- 1 not stablish a zoning violation inasmuch as the continuing course 2 of cL nduct .must be presented "in a manner which appeals to a 3 prurient interest" . 4 There is no prior restraint. Conduct which is not protected I 5 by t e First Amendment is regulated within the specified areas, ; 6 but my if the exhibition amounts to a continuous course of 7 cond ct appealing to a prurient interest, and after a judicial 8 hearing determining that fact. Magistrate Sweigert' s conclusion 9 (see Exhibit "K" at page 26-31 ), that the possibility of being 10 subjected to a civil lawsuit in the form of civil abatement 11 procgedings constitutes a "prior restraint" is erroneous as a 12 ' matter of law. 13 Further, Ordinance No. 3526, as amended by Ordinance No. 14 3629, provides that enforcement shall be by civil process and not 15 by criminal prosecution. In the event of a violation, the City 16 may o ly file a civil action in the King County Superior Court to 17 establish a right to a judicial decree that the Plaintiffs are in . 18 violation of the zoning ordinance. To be subjected to a civil 19 lawsuit to determine whether an ordinance violation has occurred 20 and a public nuisance should be abated , cannot constitute 21 "irre!arable harm" . Huffman v. Pursue, Ltd. , supra, at 601-602. 22 Finally, Ordinance No. 3629 satisfies the four part O'Brien*' 23 test, see Justice Powell 's concurring opinion in Young, supra, at 24 pages 79-80 , and is therefore constitutional on its face and as 25 appli-d to the plaintiffs ' proposed use of the Renton and Roxy 26 Theat es: First,* enactment of the zoning ordinance is within the 27 polic- power of the City of Renton; Second, as noted by Justices 28 Stevens and Powell in Young, supra, the interest furthered by the *' U.S. v O'Brien, 391 U.S. 367, 20 L.Ed.2d 672, 88 S.Ct. 1673 ( 1963) . -47- 1 ado tion of the zoning ordinances is important and substantial . 2 (See page 33 , line 12 et seq. , supra. ) ; Third, the governmental 3 int rest asserted by the City is entirely unrelated to the 4 supression of free expression. The zoning ordinance was enacted 5 on April 13, 1981 , after a 10 months period of study and nearly 6 one ear before Plaintiffs announced their intention to operate an 7 picture theaterwithin the City; Fourth, the adult motion p c y, 8 incidental restriction upon Plaintiffs ' claimed First Amendment 9 rights is not greater than is essential . The only area restricted 10 is that land area which is dedicated to family type uses within 11 the City and one thousand feet surrounding that zone. The "use" 12 whic is proscribed within that area is a "pandering" use, i.e. , a 13 "continuing course of conduct" of exhibiting sexual conduct in a 14 manner which appeals to a prurient interest. 15 The zoning restrictions, modeled after the Detroit ordinance 16 in Young, supra, are the product of careful legislative study to 17 protect the quality of life enjoyed by residents: 18 " . . . a city need not await deterioration in order to act. " Genusa v. City of Peoria, 619 F. 2d 1203 , 1211 (7th Cir. , 19 1980 ) . 20 As the Supreme Court stated in Young, supra, at page 71: 21 " . . . The City' s interest in attempting to preserve the quality of urban life is one that must be accorded high 22 respect. Moreover, the City must be allowed a reasonable Opportunity to experiment with solutions to admittedly 23 erious problems. " 24 The refusal to abstain constitutes an abuse of discretion and an 25 unlawful assumption of jurisdiction. 26 • 27 VI . EXHIBITS 28 Attached hereto as exhibits and incorporated by reference -48- 1 herein are Exhibits "A" through "K" , in which are set forth copies 2 of the following parts of the record which are essential to an 3 understanding of the matters set forth in this Petition: 4 "A" City of Renton Ordinance No. 3526 , passed and adopted April 13, ,1981 . 5 "B" Amended and Supplemental Complaint for Playtime 6 Theatres, Inc. , et al. v. The City of Renton, in the United States District Court for the Western District of 7 Washington, No. C82-59M, filed on February 9, 1982. 8 'C" Complaint For Declaratory Judgment (Chapter 7. 24 R.C.W. ) in City of Renton v. Playtime Theatres, Inc. , et al. , in 9 the Superior Court of Washington for King County, cause No. 82-2-02344-2 , filed on February 19, 1982 . 10 "D" Defendants City of Renton, et al . ' s Motion to Dismiss 11 and Points and Authorities in Support Thereof, filed February 22, 1982 and Reporter' s Transcript for March 12 12, 1982 at hearing on said motion. 13 ' E" U.S. Magistrate Sweigert' s Report and Recommendation, dated March 25, 1982 . 14 "F" Exhibit deleted. 15 16 "G" City of Renton Ordinance 3629, passed and adopted May 3, 1982. 17 "H" U. S. District Judge Walter T. McGovern' s order dated May 18 5, 1982 , denying the Defendants City of Renton, et al. ' s Motion to Dismiss. 19 "I" Defendants City of Renton, et al . ' s Renewed Motion to Z0 Dismiss Plaintiffs ' Amended and Supplemental Complaint For Preliminary and Permanent Injunction Pursuant to 21 F.R.C. P. 12(b) (6 ) and Memorandum in Support Thereof, filed on May 4, 1982., 22 23 24 25 "J" Defendants City of Renton, et al. ' s Motion For Summary Judgment, Affidavit of David R. Clemens and Memorandum • 26 in Support of Motion For Summary Judgment, filed May 27, 1982. 27 " " U.S. Magistrate Sweigert' s Report and Recommendation and 28 Proposed Order, filed on November 5 , 1982. -49- 1 CONCLUSION ' 2 3 WHEREFORE, petitioners pray that an order be entered and 4 issued directing the United States District Court for the Western. 5 District of Washington at Seattle: 6 (1 ) to remand to the Washington State Court the Complaint For Declaratory Judgment (Chapter 7. 24 R.C.'W. ) entitled City 7 of Renton, ,a municipal corporation v. Playtime Theatres, Inc. , et al. , No. 82-2-02344-2 , 8 9 (2 ) to abstain from all further proceedings and dismiss the civil action in the United States District Court, Western 10 District of Washington at Seattle, entitled Playtime Theatres, Inc. , et al. v. The City of Renton et al. , No. C82- 11 5 9M, • 12 and t at petitioners have such additional relief and process as 13 may be necessary and appropriate in the premises. 14 DATED: December 2, 1982 15 Respectfully submitted ,. 16 17 ' (I ,;;):,e ;44400' 18 ' 19 20 21 22 23 24 25 26 27 28 -50- • 1 CERTIFICATE OF SERVICE t'c) . 2 I hereby certify that, on this day of December, 1982 , 3 a copy of this Petition for Writ of Mandamus and/or Prohibition 4 was personally delivered to the below listed parties to the ' 5 proceedings , • and that all parties required to be served by Rule 6 21(a) of the Federal Rules of Appellate Procedure have been 7 ser ed : 8 United States District Judge Walter T. McGovern (1 copy) 711 U. S . Courthouse 9 Seattle , Washington 98104 - 10 United States Magistrate Philip K. Sweigert 304 U. S . Court House 11 Seattle , Washington 98104 12 Clerk, United States District Court for the Western District of Washington 13 711 U. S . Courthouse Seattle, Washington 98104 14 Jack R. Burns 15 BURNS & MEYER, P. S. (2 copies) Attorney for Plaintiffs , Playtime Theatres , Inc . 16 and Kukio Bay Properties , Inc . 10940 N.E. 33rd Place, Suite 107 17 Bellevue , Washington 98004' c) 18 DAT'D: December , 1982 . 1920 —� Attorney for Petitioner 21 22 23 24 • 25 26 27 28 EXHIBIT "A" (Reference: Petition at pg. 6. ) City of Renton Ordinance No. 3526, passed and adopted April 13 , 1981 . CITY OF RENTON, WASHINGTON ORDINANCE NO. 3526 AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, RELATING TO LAND USE AND ZONING THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION I: Existing Section 4-702 of Title IV (Building Rlgulations) of Ordinance No. 1628 entitled "Code of General Ordinances ofj the City of Renton" is hereby amended by adding the following ' subsections: 1. "Adult Motion Picture Theater": An enclosed building us d for presenting motion picture films, video cassettes, cable teevision, or any other such visual media, distinguished or characterized by an emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas" as hereafter defined, for observation by patrons therein. 2. "Specified Sexual Activities": , (a) Human genitals in a state of sexual stimulation or arousal; (b) Acts of human masturbation, sexual intercourse or sodomy; (c) Fondling or. other erotic touching of human genitals, . pubic region, buttock or female breast. 3. "Specified Anatomical Areas" (a) Less than completely and opaquely covered human genitals, pubic region, buttock, and female breast below a point immediately above the top of the areola; and (h) Human male genitals in a discernible turgid state, even if completely and opaquely covered. , CERTIFICATE •-1.. I,the undersigned, C`7Ecoees Q .'? c..O Clerk of the . City of Renton, Washington, certify that this is a true ' and cornet colpy of.04RI4✓A.c C.C... ....3, ..6.. . Subscribed at! Sealed W /-� day of Flt,R. l_O//8'a City Cie* SECTION II: There is hereby added a new Chapter to Title ' IV (Building Regulations) of Ordinance No. 1628 entitled "Code of General Ordinances of the City of Renton" relating to adult motion pictur= theaters as follows: A. Adult motion picture theaters are prohibited within ' the are- circumscribed by a circle which has a radius consisting of the ' ollowing distances from the following specified uses or zones: ' 1. Within or within one thousand (1000') feet of any residential zone (SR-1, SR-2, R-1, S-1, R-2, R-3, R-4 or T) or any single family or multiple family residential use. 2. One (1) mile of any public or private school 3. One thousand (1000') feet of any church or other religious facility or institution . 4. One thousand (1000') feet of any public park or P-1 zone. B. The distances provided in this section shall be measured by follo ing a straight line, without regard to intervening- buildings, from the nearest point of'the property parcel upon which the proposed use is to be located, to the nearest point of the parcel of property or the hand use district boundary line from which the proposed land use is tb be separated. SECTION III: • This Ordinance shall be effective upon its passage, approval and thirty days after its publication. PASSED BY THE CITY COUNCIL this 13th-day of Api.ril , 1981 e ores A, ea , ity Clerk APPROVED BY THE MAYOR this 13th day of April. , 1981. Approved as to form: , Barbara Y. hinpoc , Mayor awrence J. rren, City Attorney Date of Publication: May 15, 1981 Exhibit "B" (Reference : Petition at pg. 7, pg. 8, pg. 32, pg. 34. ) Amended and Supplemental Complaint for Playtime Theatres, Inc. , et al. v. The City of Renton, in the United States District Court for the Western District of Washington, No. C82-59M, filed on February 9, 1982. REEEINIET--' . • silo 9 1982 • WARREN&KELL DGG . Cy 1 I 2 3 4 .. , 5 6 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 PLAYTIME THEATRES, INC., a • ) 10 Was� ington corporation, and KUKIO ) 11 , BAY PROPERTIES, INC., a Washington) corporation, ) NO. C82-59M ) 12 Plaintiffs, ) 13 vs. ) AMENDED AND SUPPLEMENTAL COMPLAINT FOR DECLARATORY 14 THE CITY OF RENTON, ) JUDGMENT AND PRELIMINARY . ) AND PERMANENT INJUNCTION 15 and ) • 16 THE HONORABLE BARBARA Y. SHINPOCH,) • as Mayor of the City of Renton, . ) 17 and ) . • 18 ) EARL CLYMER, ROBERT HUGHES, NANCY ) , 19 MATHEWS, JOHN REED, RANDY ROCKHILL) RICHARD STREDICKE AND TOM TRIMM, ) 20 as members of the City Council of ) the pity of Renton; serve on: ) 21 DELORES H. MEAD, City Clerk, ) • 22 and ) 23 ) • JIM BOURASA, as acting Chief of ) 24 Police of the City of Renton, ) 25 ) Defendants, jointly and )P6 severally, in their representative capacities ) 47 only. ) • 28 . COME NOW Playtime Theatres Inc. and Kukio Bay• PrOperties 29 Inc. , bodies corporate of the State of Washington, by and through 30 thei attorneys, Jack R. Burns and Robert Eugene Smith, of counsel, 31 • SP ATTORNEYS AT LAW (� Amended and Supplemental Hubbard, Burns f>Meyer D Comp aint Page 1 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.nth Place.Suite 10S • Kirkland,Wathinrron 9E033 • "'127;t7'R';mq, 12061 e2&7636 I 1 and seek a declaratory judgment as well as a preliminary and 2 permanent injunction with respect to City of Renton Ordinance No. 3 352 entitled: "An Ordinance Of The City Of Renton, Washington, 4 Relating To Land Use and Zoning;" enacted and approved by the Mayor 5 and City Council' on .or about the 13th day of April, 1981 and in 6 sup ort of their cause of action, state: 7 I. JURISDICTION 8 1 . This is a civil action whereby plaintiffs pray for a 9 pre iminary and permanent injunction enjoining the defendants from 10 enf.rcement of the City of Renton Ordinance No. 3526, a copy of 11 whic is attached hereto. as Exhibit "A" in support of this 12 complaint, the contents of which are incorporated herein by 13 refe ence, on the grounds that said ordinance and the multiple 14 provisions thereof are unconstitutional as written, and/or as 15 threfened to be applied to the plaintiffs in the case at bar. 16 Further, plaintiffs pray for a declaratory judgment to determine 17 the constitutionality• of said Ordinance, as written and/or as 18 thre tened to be applied to the plaintiffs. The allegations to be 19 set forth in the premises establish that there are presented 20 ques ions of actual controversy between the parties involving 21 subs antial constitutional issues in that said ordinance, as 22 written and/or in its threatened application, is repugnant to the 23 rights of the plaintiffs herein under the First, Fourth, Fifth, 24 Sixth, and Fourteenth Amendments to the Constitution of the United 25 States. 26 2. Jurisdiction is conferred on this court .for the resolu- 27 tion of the substantial constitutional questions presented by the • 28 provisions of 28 USCA §1131(a) which provides in pertinent part: 29 (a) The district' court shall have original 30 jurisdiction of all civil actions wherein the matter in controversy exceeds the sum 31 or value of $10,000.00, exclusive of interest • Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns&y Meyer Page 2 A PROCESSIONAL SERVICE CORPORATION 10144 Ni.,lilt Elam Stoke IOS • 10 Natal.Washington tRIOU wig.)nal u.le I\ vJ • • I• • 1 and costs, and arises under the Constitution laws or treaties of the United States. 2 as well as 28 USCA §1343(3) which provides in pertinent part that 3 the district courts shall have original jurisdiction of any civil • 4 action authorized by law to be commenced by any person: 5 To redress the deprivation, under color of any 6 any state law, statute, ordinance, regulation, custom or usage, of any right, privilege or 7 immunity secured by the Constitution of the United States .. ." 8 and the organic law which further authorizes the institution of. 9 this suit founded on 42 USCA §1983, which provides in pertinent 10 ' part as follows: • 11 Every person who, under color of any statute, 12 ordinance, custom or usage, of any state or territory subjects, or causes to be subjected, 13 any person of the United States or other per- • son within the jurisdiction thereof to the 14 deprivation of any rights, privileges or immunities' secured by the Constitution and 15 the laws, 'shall be liable to the party 16 in- jured in an action at law, sued in equity, or other proper proceeding for redress. • 17 Plaintiffs' prayer for declaratory relief is founded on Rule 18 57 of the Federal Rules of Civil Procedure, as well as 28 USCA 19 §2201 , which provides in pertinent part: 20 . .. Any court of the United States, upon the 21 filing of an appropriate pleading, may declare the rights and other legal relations of any 22 interesed party seeking such declaration, • whether or not further relief is or could be 23 sought ... 24 The jurisdiction of this court to grant injunctive relief is 25 conferred by 28 USCA §2202, which provides: 26 Further necessary or proper relief based upon a declaratory judgment or decree may be granted 27 after reasonable notice and hearing against any adverse party whose rights have been determined 2B. by such judgment. 29 II. PARTIES 30 3. Playtime Theatres, Inc., a corporate body of the' State 31 of W=shington plans to operate pursuant to a written lease agree- ATTORNEYS AT LAW Amend•d and Supplemental Complaint Hubbard, Burns 6.Meyer Page 3 A PROFESSIONAL.SERVICE CORPORATION 30601 NE.3gth Pace.Suite lOS Kirkland.Washington 98033 12061 828-3636 J • 1 m nt, a motion picture theatre which is located at 504 South 3rd 2 Sreet, within the .city limits of Renton, State of Washington. The 3 eiterprise will be operated under the name of the Roxy Theatre. 4 Playtime Theatres, Inc. will also operate pursuant to a written 5 1 ase agreement, the Renton Theatre at 507 South 3rd Street, within 6 t e city limits of Renton, State of Washington. 7 Kukio Bay Properties, Inc. , a body corporate of the State of 8 W shington has purchased the motion picture theatres described in 9 t e preceeding paragraph and has leased said theatres to Playtime 10 Theatres, Inc. 11 That on January 26, 1982, Kukio Bay Properties, Inc. pur- 12 chased of said theatres for the sum of $800,000.00. That imme- 13 dirtely thereafter, Kukio Bay Properties, Inc. took possession of 14 said theatres. That on or about the 27th day of January, 1982, by 15 a written agreement, Kukio Bay Properties, Inc. leased said theatre 16 premises to Playtime Theatres, Inc. for a period of ten years 17 commencing on January 27, 1982. In addition, Playtime Theatres, • 18 In will have the option to renew said leases for an additional 19 term of ten years terminating on January 26, 2002. The lease 20 ag eements to be entered into by the parties provide that the 21 premises by used for the purpose of conducting therein adult motion 22 pi ture theatres. Playtime Theatres, Inc. took possession of said 23 th atres on or about January 27, 1982 and on January 29, 1982 24 plainned to begin, exhibiting feature length motion picture films for 25 ad It audiences. , 26 From on or about January 29, 1982, under the operation and 27 man gement of Playtime Theatres, Inc. , one of said theatres would 28 continuously operate exhibiting adult motion picture film fare to 29 an adult public audience but for the threats of the defendants to 30 31 . ATTORNEYS AT LAW I Amended and Supplemental Hubbard, Burns 6.Meyer Pa ge l 4 in t Page 4 A PROFESSIONAL SERVICE CORPORATION 1060e N.E.Mth Place.Suite 105 Kirkland,Washington 96033 12061 626.3636 1 enforce their wholly unconstitutional zoning ordinance. 2 4. The defendant, City of Renton, is a municipal corpora- 3 tion of the State of Washington. 4 5. The Honorable Barbara Y. Shinpoch is named defendant 5 herein in her capacity as Mayor of the City of Renton, having the 6 titular title. In that capacity, she is the head of City govern- 7 ment and approved the questioned ordinance in the case at bar. 8 6. Earl Clymer, Robert Hughes, Nancy Mathews, John Reed, 9 Randy Rockhill, Richard Stredicke and Tom Trimm are named as 10 defendantsl herein as members of the City Council of the City of 11 Rentoh who enacted the wholly unconstitutional ordinance as a part 12 of their alleged legislative function. 13 8. Jim Bourasa is named a defendant herein in his capacity 14 as Acting Chief of Police of the City of Renton who is primarily 15 responsible for seeing to the enforcement of the City of Renton 16 ordinances, civil, criminal and quasi-criminal in nature. 17 9. The defendants in their official capacities as aforesaid 18 have cted and/or threaten to act to plaintiffs' immediate and 19 irreparable harm under color of authority of the Ordinance No. 3526 20 heret fore identified as Exhibit "A". 21 The named defendants, in their official capacity as afore- 22 mentio ed, are joined herein 'to make enforceable to them and/or . 23 their agents, servants, employees and attorneys, any Preliminary 24 and/or Permanent Injunction, Declaratory Judgment, and/or other 25 Order f this Court. • 26 27 III. FACTUAL ALLEGATIONS 28 10. The instant ordinance was passed with the sole purpose 29 to pre ent the opening of any adult motion picture theatre within 30 the city limits of Renton and to effectively censor the kinds of 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns&Meyer Page 5 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.3RIh Place.Suite IDS Kirkland.WnhinRron 98033 12061 8283636 • .J 1 pro.ected First Amendment press materials available to adult • 2 cit'zens of the City of Renton and adult visitors to the City. 3 11. That no criminal, quasi-criminal and/or civil preceed- 4 ing is pending in the city courts of the City of Renton or in the 5 sta.e courts in the State of Washington against the plaintiffs 6 and or their agents, servants and employees as of the date of the • 7 filing of this suit with respect to this matter. 8 12. That on the 19th day of January, 1982, Mike Parness, 9 Adm''nistrative Assistant to the Mayor of the City of Renton has, as 10 afo esaid, advised that if the property of the plaintiffs is used 11 to xhibit adult motion picture films, then enforcement proceedings 12 will be commenced forthwith. 13 13. That the City of Renton Ordinance No. 3526 was enacted 14 by the City Council and approved by the Mayor as a part of a syste- 15 mat}c scheme, plan and design, under color of enforcement of the 16 said ordinance to deny distributors and/or exhbitors of adult films 17 access to the . marketplace, and to deny to the intersted adult 18 pub ic, access to such erotic materials which are not otherwise 19 obs ene under the test set forth in Miller v. California, 413 U.S. 20 15 (1973) . See Young v. American Mini Theatres, 427 U.S. 50 21 (19'5) at pages 62 and 71. 22 14. That requiring the plaintiffs to conform to this wholly 23 unconstitutional zoning ordinance by not using the locations they 24 hay g contracted ' to purchase, and requiring them to move their 25 business to a selectively obscure geographical location, violates 26 the plaintiffs' rights under the First, Fifth, Sixth and Fourteenth 27 • Amendments to the Constitution of the United States. Indeed, by 28 thi selective 'ordinance, which would shutter motion picture 29 theatres such as the Roxy Theatre and Renton Theatre, which show as 30 part of their fare, erotic films, the City of Renton by its agents, 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns&r Meyer Page 6 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.nth Place.Suhe 10S Kihland,Washingion 95033 12061 528•3636 • .J 1 servants and employees will be denying the plaintiffs and other 2 persons lawfully engaged in the exhibition of adult film fare 3 presumptively protected by the First Amendment to the Constitution 4 of the United States, [Heller v. People of the State of New York, 5 41, U.S. 483 (19973); and Roaden v. Commonwealth of Kentucky, 413 . 6 U. . 496 (1973)) , access to the marketplace as well as the right of 7 the interested adult public to have access to adult film fare, and 8 wi 1 deny the plaintiffs the right to engage in said business in 9 th City of Renton; and unless restrained, the City, under color of 10 enforcement of its zoning laws, will cause said businesses to cease 11 and close up; and unless restrained, defendants will continue to 12 seek to enforce said ordinance and this will have the effect of 13 tot lly depriving your plaintiffs, as well as others similarly 14 sit ate, from their normal business activities. This will have a 15 chilling effect on the dissemination and exhibition of adult film 16 far to those interested adults who seek to satiate their educa- 17 d • o al, entertainment, literary, scientific and artistic interests 18 in such press materials. The ordinance places an intolerable 19 burden upon the exercise of First Amendment rights, arbitrarily and 20 capriciously descriminates as to the nature of film fare exhibited 21 based upon an assumption which is not rationally related to a valid • 22 public purpose nor necessary to achieve a compelling state interest 23 in violation. of . the Equal Protection Clause of the Fourteenth 24 Amendment of the Constitution of the United States, establishes 25 classifications which are arbitrary and capricious and constitutes 26 an a use of legislative discretion and is not rationally related 27 and also deprives plaintiffs of their equal rights under the 28 Four eenth Amendment of the Constitution of the United States; and 29 furt er by its use has language that is intrinsically vague and 30 void under the First and Fifth Amendments to the Constitution of 31 ATTORNEYS AT LAW Amended and Supplemental Hubbard, Burns F,MeyerComp) int Page 7 A PROFESSIONAL SERVICE CORPORATION 101,04 N.E.1Mh Place,Suite 105 Kvkland,Wathineton 98055 12061 828.3616 1 th- United States and void for impermissible overbreadth by the use 2 of means which are too broad for the alleged evil intended to be 3 cu tailed. That the enactment of the City of Renton Ordinance No. 4 3526 was done without 'the constitutionally required legislative 5 fact finding required to meet the burden imposed upon those who 6 seek to curtail activity which might otherwise be protected within 7 the pneumbra of the First Amendment of the Constitution of the 8 Uni ed States. The defendants, by their agents, servants and 9 emp oyees, and/or their attorneys, by enacting such a wholly 10 unc nstitutional ordinance, and now threatening to enforce the 11 sam , have created a pervasive atmosphere of official repression 12 con tituting a . "chilling effect" upon the exercise of First 13 Ame dment rights of plaintiffs and others who may wish to engage in 14 the lawful business of exhibiting adult film fare protected by the 15 Fir t Amendment to the Constitution of the United States, as well 16 as lthe interested adult public who desire to see and view such 17 adult film fare, and this has imposed and threatens to impose a 18 wholly unconstitutional prior restraint condemned by the First, 19 FFoourtthh, Fifth, and Fourteenth Amendments to the Constitution of the 20 Uni ed States, and this is merely a design and scheme on the part 21 of he defendants to force the plaintiffs and others similarly 22 situate out of business, under color and pretense of claimed 23 enfolrcement of the ordinance attached hereto as Exhibit "A", well 24 knoWing the patent unconstitutionality of the same. 25 15. Ordinance No. 3526 provides a new use classification 26 within the zoning laws of the City of Renton; i.e. , an adult motion 27 pict re theatre. 26 16. An adult motion picture theatre is not a permitted use 29 within any zoning classification currently in use within the City 30 of R nton. Accordingly, in order to locate an adult motion picture 31 ATTORNEYS AT LAW Amended and Supplemental Hubbard, Burns f>Meyer• Complaint Page 8 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.IMh Platt,Suile 105 Kirkland,Wayhunslon 9E033 12061 E283676 1 theatre anywhere within the City of Renton, it is necessary to 2 obtai a special permit, conditional use or variance. 3 17. The process of applying for a special permit, 4 conditional use ,or variance vests unfettered discretionary 5 autho ity in the Hearing Examiner, Board of Adjustment and/or City 6 Council to deny such special permit, conditional use or variance. • 7 No oblective written criteria, standards or ' guidelines have been 8 established which would in any way limit this discretionary . 9 authority. In addition, the ordinances of the City of Renton set 10 no time limit for the City Council to make a decision relative to • 11 an application for a special permit, conditional use or variance. 12 The City Council has the discretion to withhold making a decision 13 for an unreasonable length of time if- it chooses to do' so. The 14 variou matters to be considered by the Hearing Examiner and/or the 15 Board f Adjustment in the granting or denial of a special permit, 16 conditional. use or variance are vague and aesthetic qualities that 17 are not capable of objective measurement and, as such, they create 18 the po ential for an unreasonable burden upon free speech and, as 19 applied to plaintiffs and a motion picture theatre, they are 20 imperm'ssihly overbroad and unconstitutional. 21 18. That requiring the plaintiffs to submit to a wholly 22 unconstitutional exercise of unbridled discretion at the hands of a 23 Hearing Examiner or Board of Adjustment and/or the City Council, in 24 the abs nce of narrowly drawn, reasonable and difinitive standards 25 to be followed in the exercise of said discretion violates 26 plaintiffs' rights under the First, Fifth and Fourteenth Amendments 27 to the Constitution of the United States. Interstate Circuit v. 28 Dallas, 390 U.S. 676 (1968) and . Shuttlesworth v. City of 29 Birmingham, 394 U.S. 147 (1969) . 30 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns&Meyer Page 9 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.3,h Plate,Suite 105 Kirkland.Washington 90033 (2061 6283636 • • 1 19. Further, since the Hearing Examiner, Board of 2 Adju tment and/or the City Council have no narrowly drawn, 3 reas nable and definitive standards to be followed by them in the 4 exercise of the discretion conferred upon them by the Renton Zoning 5 Code in making a determination about the issuance of a special 6 permit, conditional use -or variance, it would be an exercise in 7 futility to engage in such administrative process because of the 8 patently unconstitutional character of the zoning provisions in 9 quest'on. 10 20. The provisions of the Renton Zoning Code which apply to 11 the 'Issuance of special permits, conditional uses or variances, 12 establish classifications which are arbitrary and capricious and 13 constitute an abuse of legislative discretion, and also permit 14 censorship by standardless rationale subject to abusive discretion 15 by th defendants in violation of plaintiffs' substantive and due 16 proce s rights under the pneumbra of the First, Fifth and 17 Fourteenth Amendments of the Constitution of the United States; and 18 further, have language that is intrinsically vague and void under 19 the F;rst and Fifth Amendments to the United States Constitution 20 and void for impermissible overbreadth. 21 IV. BASIS IN LAW FOR RELIEF 22 21. Plaintiffs have the right to engage in the business of 23 offering for exhibition adult motion picture film fare for profit 24 by virtue of the First Amendment to the Constitution or adult film 25 fare which is presumptively protected under said constitutional 26 amendm nt, and the public, including both adult citizens and 27 visit° s to the City of Renton have the same constitutional right 28 to view said adult motion picture film fare as may be offered for 29 said exhibition to said adults in a nonintrusive manner. Heller v. 30 New York, 413 U.S. 483, 37 L.Ed.2d 745, 93 Sup.Ct. 2789 (1973) . 31 • ATTORNEYS AT lAW Amended and Supplemental Hubbard, Burns&Meyer Complaint Page 10 A PROFESSIONAL SERVICE CORPORATION 10601 N.E.TEIh Place.Sint 105 KkLrnd,W+shmglnn 90011 U R.I 028 1610 • • 1 Further, the conduct of the defendants and their agents, servants, 2 eitployees and/or attorneys and others, acting under their direction 3 a d control in attempting to refuse to allow plaintiffs to operate • 4 t eir businesses in the City of Renton, unless they remove 5 t emselves to ' some obtuse selectively obscure geographical site, 6 w 11 have the draconian effect of denying plaintiffs and others 7 s'milarly situate, access to the marketplace, and the viewing adult 8 pu lic the right to satisfy its interest for adult film fare. 9 22. As ,a further result of the unconstitutional ordinance 10 en cted by the City Council and approved by the Mayor, as well as 11 th threatened conduct of the defendants to force plaintiffs to t2 no engage in their businesses, plaintiffs have been required to 13 retaint attorneys to pursue their rights under the First, Fourth, 14 —Filtthh, and Fourteenth Amendments to the Constitution of the United 15 States, and the defendants, acting under color of pretense of law, 16 as aforesaid, have threatened to initiate actions to enforce the 17 said ordinance, which actions are and/or threaten to be, repugnant 16 to the Constitution bf the United States. 19 23. The City of Renton zoning ordinance designated herein 20 as Ordinance No. 3526, is clearly repugnant to the First, Fourth, 21 Fifth and Fourteenth Amendments to the Constitution of the United 22 States as written and as threatened to be applied, for the follow- 23 ing reasons: • 24 (a) Said ordinance is void for vagueness in that it 25 fails to establish by its terms, definitive standards, 26 criteria and/or other controlling guides defining 27 words, inter alia "other religious facility or institu- 26 tion" in Section II(A)(4) or "distinguished or charac- 29 terized by an emphasis on matter depicting, describing 30 or relating to "specified sexual activities" as 'used in 31 Amel!ded and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns&Meyer Pa g 11 A PROFESSIONAL SERVICE CORPORATION 10604 N.L.33th Place.Suite IOS Kirkland,Washington 96033 12061 626.3636 • • • • 1 Section I(1) of said ordinance, as well as the words 2 "erotic touching" as used in Section I(2)(C) ; and as • 3 such is a deprivation under color of state law of 4 plaintiffs'-right to due process under the First, Fifth 5 and Fourteenth Amendments to the Constitution of the 6 United States. 7 (b) Said ordinance is void for impermissible over- • 8 breadth by means which sweep unnecessarily broadly and 9 thereby invade the area of protected freedoms in that 10 the same sets forth standards at variance with those 11 minimum standards prescribed by .the Supreme Court of 12 the United States, in connection with the exercise of 13• First Amendment rights,' and in particular, those 14 provisions which set forth the "specified anatomical 15 areas" and "specified sexual activities" in Section 16 I(2) and Section I(3) . 17 (c) Said ordinance is further void for impermissible 18• overbreadth and deprives plaintiffs of due process and 19 equal protection of the law through the arbitrary and 20 uncontrolled power conferred by the enactment of said 21 • ordinance to the defendants' enforcement of zoning laws 22 for the exercise of otherwise clear First Amendment 23 rights and therefore the same is invalid under the 24 First and Fifth Amendments to the Constitution of the 25 United States made obligatory on the States under the . 26 due process provisions of the Fourteenth Amendment. 27 (d) Said ordinance, lacking precision and narrow 28 specificity in the standards to be employed by defen- 29 dants in the operation of their legislative power to 30 enact zoning laws, constitutes a prior restraint under 31 • Amended and Supplemental ATTORNEYS ATLAW Complaint Hubbard, Burns&Meyer Page 12 A PROFESSIONAL SERVICE CORPORATION • 10601 N.E.38th Place.Suite 105 Kirkland.Washington 96033 0061 826.3636 • • • • • 1 color of state law on the exercise of plaintiffs of 2 their rights under the First, Fifth and Fourteenth. 3 Amendments to the Constitution of the United States and 4 as written, which is and has been, under the facts 5 alleged herein, susceptible to arbitrary, capricious 6 and uncontrolled discretion on the part of defendants 7 herein, their agents, servants and employees. 8 (e) Said ordinance is void in that it fails, by its 9 terms, to establish procedural safeguards to assure a 10 prompt decision on the challenge to the arbitrary 11 zoning classification, and if a zoning challenge is 12 denied, the ordinance fails by its terms to provide for 13 a prompt final judicial review to minimize the deter- 14 rent effect of an interim and possibly erroneous zoning 15 classification under procedures which places the burden 16 on plaintiffs to both expeditiously institute judicial 17 review and to persuade the courts that the activity 18 sought to be licensed and the procedure and ordinance 19 employed to authorize the same, is without the ambit of 20 the First Amendment, and the abatement of the noncon- • 21 • forming use is not a proper exercise of authority. 22 • (f) Said ordinance is further void in that the same, 23 by its terms, places an impermissible burden upon the 24 exercise of plaintiffs' First Amendment rights. 25 (g) Said ordinance is further void as violative of the 26 Equal Protection Clause of the Fourteenth Amendment, in 27 that the same creates a statutory classification which 28 has no rational relationship to a valid public purpose 29 nor is the same necessary to the achievement of a com- 30 pelling state interest by the least drastic means. 31 ATTORNEYS AT LAW Amended and Supplemental Complaint Hubbard, Burns&Meyer Page 13 A PROFESSIONAL SERVICE CORPORATION • 10604 N.E.345th Place,Suite 105 Kirkland,Washington 9E033 (2061 626•3636 w. • • • • • • 1 (h) Said ordinance is repugnant to the substantive due 2 process provisions of the Fifth and Fourteenth 3 Amendments to the Constitution of the United States 4 because the same permits deprivation of liberty and/or 5 property interests for the exercise of First Amendment 6 rights by unreasonable, arbitrary and capricious means 7 • without a showing of a real and substantial relation- 8 ship to any state or city subordinating interest which. 9 is compelling to justify state or city action limiting 10 the exercise by plaintiffs of their First Amendment 11 freedoms. 12 (i) Said ordinance is impermissibly overbroad' and 13 repugnant to the procedural due process requirements of 14 the Fifth and Fourteenth Amendments to the Constitution 15 of the United States, in that the same employs beans 16 lacking adequate safeguards, which due process demands, 17 to assure presumptively protected press materials, 18 sought to be distributed to an interested adult public, 19 the constitutional protection of the First Amendment. 20 (j) Said ordinance is vague and impermissibly over- 21 broad and thus repugnant to the First, Fourth, Fifth 22 and Fourteenth Amendments to the United States Consti- 23 tution, in that said ordinance, byits provisions, 24 permits inherent powers of censorship and suppression 25 constituting a prior restraint on the exercise of 26 plaintiffs' First Amendment rights as well as the 27 interested adult public who may desire to view presump- 28 tively protected press materials for the ideas pre- 29 sented therein. 30 31 • Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns&Meyer Page 14 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.3EI1,Place,Sure 105 Kirkland,Washknglon 90033 (206)E26-3636 . J • 1 (k) ' Said ordinance, and particularly Section I(2) , in 2 defining "specified sexual activities" defines that 3 phrase in part as "erotic touching" and is thus void 4 for vagueness in that "erotic' is a word that can mean 5 many things to many people and without further clarifi- 6 cation confers on defendants unbridled discretion in 7 the interpretation of that term and as such, is viola- 8 tive of the plaintiffs' rights under the First, Fifth 9 and Fourteenth Amendments to the Constitution of the 10. United States. 11 (1) Said ordinance and particularly Section II(A) as 12 it purports to establish restrictions, requirements and 13 conditions for an alleged adult theatre imposes bur- 14 dens, 'restrictions and conditions that are not justi- 15 fied by any compelling state interest and as such, the 16 classification is an invidious and arbitrary discrimi- 17 nation as to a class and as such, is a denial of • 18 plaintiffs' rights under the Fourteenth Amendment to 19 the Constitution of the United States, particularly 20 where, as here, protected First Amendment activity is 21 involved. • 22 (m) The plaintiffs will suffer immediate and substan- 23 tial economic harm 'if said ordinance is applied to them 24 and the result of the application of said ordinance to 25 the activities of the plaintiffs will result in a for- 26 feiture of substantial business interests and assets. 27 28 24. Plaintiffs herein aver that their rights afforded under • the First, Fourth, Fifth, Sixth and Fourteenth Amendments to the 29 30 Constitution of the United States have been violated by said 31 defendants in the enactment of a wholly unconstitutional ordinance, Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns&Meyer Page 15 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.3gth Place.Suite 105 Kirkland.Washington 9E1033 1206)828-3636 r• • . A\ . - ---' ..s.in iv,4!1d..):i(1b.^G G Cy 1 nd that unless this Court grants the relief prayed for, said 2 plaintiffs and others similarly situate, as well as the interested 3 adult public, will suffer irreparable harms. 4 • 25. Plaintiffs aver that the aforesaid action of the 5 defendants in enacting said ordinance, and the threatened enforce- 6 mnt thereof by said defendants acting under color of state law, is 7 ii3 furtherance of a scheme, plan and design to prevent any business 1 8 arivity which may offer for sale or exhibition adult press 9 m terials in the City of Renton to the adult public. 10 26. Those portions of the Renton Municipal Code contained Y 11 i Chapter 4-722 relative to the issuance of special permits, 12 c nditional uses and variances, are clearly repugnant to the First, 13 Fourth, Fifth and Fourteenth Amendments to the Constitution of the 14 United States as written and as threatened to he applied, for the 15 following reasons: 16 (a) Said provisions are void for vagueness in that they 17 fail to establish by their terms definitive standards, 18 criteria or other controlling guides defining concepts 19 such as, inter alia • 20 • * * * * * • 21 Special Permits: Recognizing that there are certain 22 uses of property that may be detrimental to the public health, safety, morals and general welfare .. . 23 * * * * * 24 The purpose of a conditional use permit shall be to 25 • assure, by means of imposing special condition and requirements on development, that the compatibility of 46 uses, a purpose of this Title, shall be maintained, considering other existing and potential uses within • 27 . the general area of the proposed use. 28 * * * * * . 29 The examiner may deny any application if the character- istics -of the intended use would create an incompatible 30 or hazardous condition. 31 ' * * * * * . ATTORNEYS AT vox Amended and Supplemental Comjlaint Hubbard, Burns&>Meyer Pag 1 6 A PROPESSIONAE SERVICE CORPORATION ' 10604 N.E.)Ells Place.Suite 105 Kirkland,Wallwn8lon 98033 (2061 E263636 • • 2 The examiner shall have the right to limit the term and duration of any such conditional use permit and may 3 impose such conditions as are reasonably necessary and required. 4 * * * * * 5 The conditions imposed shall be those which will 6 reasonable assure that nuisance, or hazard to life or property will not develop. 7 * * * * * 8 The examiner may, after a public hearing, permit the 9 following uses in districts from which they are pro- hibited by this Chapter where such uses are deemed 10 essential or desirable to the public convenience or welfare and are in harmony with the various elements or 11 objectives .of the comprehensive plan. • 12 * * * * * • 13 The hearing examiner shall be empowered to approve conditionally approve or disapprove said conditional 14 use permit applications based on normal planning considerations, including, but not limited to the 15 following factors: (a) suitability of site; (b) conformance to the comprehensive plan; (c) harmony with 16 the various elements or objectives of the comprehensive plan; (d) the most appropriate use of land through the 17 city;' (e) stabilization and conservation of the value of property; . .. and prevention of neighborhood deteri- 18 oration and blight; (o) the objectives of zoning and planning in the community; (p) the effect upon the 19 general city's welfare of this proposed use in relation to surrounding uses in the community. 20 * * * * * 21 That the granting of the variance will not be materi- 22 ally detrimental to the public welfare or injurious to the property improvements in the vicinity and zone in 23 which subject property is situated. 24 * * • * * * 25 That approval shall not constitute a grant of special privilege inconsistent with the limitation upon uses of 28 other properties in the vicinity and zone in which the subject property is situated. 27 * * * * * 28 That the approval is determined by the examiner or 29 Board of Adjustment is a minimum variance that will accomplish the desired purpose. 30 31 Amended nd Supplemental ATTORNEYS AT LAW Complain Hubbard, Burns&r Meyer Page 17 - A PROFESSIONAL SERVICE CORPORATION 10604 N.F.38th Place,Suite 105 • kukLnd,Washin8lon 5H0]] a061 E76.3636 • • • • 1 and as such are a deprivation under color of law of 2 plaintiffs' right to due process under the First, Fifth 3 and Fourteenth Amendments to. the Constitution of the 4 United States. Said provisions are void for impermis- 5 sible overbreadth by means which sweep unnecessarily 6 broadly and thereby invade the area of protected 7 freedoms in that the same set forth standards at vari- 8 ance with those minimum standards prescribed by the 9 Supreme Court of the United States in connection with 10 the exercise of First Amendment rights. 11 (b) Said provisions are further void for impermissible 12 overbreadth and deprive plaintiffs of due process and 13 equal protection of the law through the arbitrary and 14 uncontrolled discretionary power conferred by said pro- 15 visions upon the Hearing Examiner, Board of Adjustment 16 and City Council and, therefore, the same are invalid 17 under the First and Fifth Amendments to the Constitu- 18 tion of the United States made obligatory on the States • 19 under the due process provisions of the Fourteenth 20 Amendment. 21 (c) Said provisions lack precision and narrow speci- • 22 ficity in the standards to be employed by the Hearing 23 Examiner, Board of Adjustment and/or City Council in 24 the exercise of the discretion used in the operation of 25 the City of Renton's legislative power to enact 26 ordinances providing for •zoning and, as such, consti- 27 tute a, prior restraint under color of state law and the 28 exercise by plaintiffs of their rights under the First, • 29 Fifth and Fourteenth Amendments to the Constitution of 30 the United States and as written, which is and have 31 Amend-d and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns&Meyer Page 18 A PROFESSIONAL SERVICE CORPORATION 1080i N.E.3Mh Place.Sune 105 Kihland,Washington 96033 IN14)6281636 • • • 1 been, under the facts alleged herein, susceptible to 2 arbitrary, capricious and uncontrolled discretion on 3 the part of the defendants herein, their agents, 4 servants and employees. 5 • (d) Said provisions are void in that they fail by 6 their terms to establish procedural safeguards to 7 assure a prompt decision on a challenge to the capri- 8 cious denial of a special permit, conditional use or 9 variance. The provisions fail by their terms to pro- 10 vide for a prompt final judicial review to minimize the 11 deterrent effect on an interim and possibly erroneous 12 and arbitrary denial of a zoning special permit, condi- 13 tional use or variance and, thus, the burden is on 14 plaintiffs to both expeditiously institute judicial 15 review and to persuade the courts that the activity 16 sought to be pursued and the procedures and ordinances 17 employed to prohibit the same are without the ambit of 18 the First Amendment. 19 20 V. RELIEF SOUGHT 21 27. Plaintiffs are entitled to and desire that this Court 22 enter a declaratory judgment, declaring Ordinance No. 3526 to be 23 unconst'tutional as written and/or as defendants purport to apply 24 it, in whole or in part, to be repugnant to the First, Fourth, 25 Fifth, ixth and/or 'Fourteenth Amendments to the Constitution of 26 the Unied. States. • 27 28. Plaintiffs seek a preliminary and permanent injunction 48 to prohibit the enforcement by defendants, and/or their agents, 29 servants, employees, attorneys, and others acting under its direc- 30 tion and control of the provisions of Ordinance No. 3526. 31 WHEREFORE, plaintiffs pray: Amended and Supplemental ATTORNEYS ATLAW Complaint Hubbard, Burns&Meyer Page 19 A PROFESSIONAL SEavia COaPOIATION 10604 N.E.38th Place,Suite 10S Kirkland,Washington 98033 11061 426-3636 • 1 1. That defendants be required to answer forthwith this 2 Amended and Supplemental Complaint in conformance with the rules 3 aild practices of this Honorable Court. 4 2. That a Declaratory Judgment be rendered declaring 5 Ordinance No. ' 3526 to be unconstitutional as written, in whole 6 a d/or in part, and that this Court further declare the ordinance 7 tc be unconstitutional in its threatened application to the 8 plaintiffs. 9 3. That a Preliminary Injunction issue from this Court upon 10 hearing, restraining defendants and their agents, servants, 11' em loyees, and attorneys, and others acting under their direction 12 an control, pending a hearing and determination on plaintiffs' 13 application for a Permanent Injunction, from enforcing or executing 14 and/or .threatening to enforce and/or execute the provisions of 15 Or inance No. 3526 in whole and/or in part, by arresting plain- 16 tiffs., their agents, servants or employees, and/or threatening to ' 17 ar est plaintiffs, their agents, servants and employees and/or 18 ha assing, threatening to close, or otherwise interferring with 19 pl intiffs' peaceful use of the premises. 20 4. That upon a final hearing, that this Court issue its 21 Pe7anent Injunction prohibiting the defendants and/or their 22 agennts, servants and employees, and/or others in concert with them, 23 fro enforcing Ordinance No. 3526 in whole or in part because of 24 its patent unconstitutionality. 25 5. That upon a final hearing this Court award to the plain- 28 tiffs such damages as they shall have sustained by reason of loss 27 of (business, the' expenditure of assets to enforce and protect the 28 rigHts guaranteed to them under the Constitution of the United 29 States, their reasonable attorney's fees and such other damages as 30 may be established at the time of trial. 31 . Ame ded and Supplemental ATTOIWEYSATLAW Compl]aint Hubbard, Burns&Meyer Pag 20 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.30th Place.Suite IOS 6t►land,Washington 90033 f2061 8263636 1 6. And for such other and further relief as may be 2 appropriate under the circumstances of this case. 3 DATED this " day of February, 1982. 4 Respectfully submitted, 5 HUBBARD, BURNS & MEYER 6 By l': . 1.11,6L7 Ja\ (., _\R. Burns 8 Attorney for Plaintiffs OF COUNSEL: 9 Robert Eugene Smith, Esq. 10 16133 Ventura Blvd. Penthouse Suite E • 11 Encino, California 91436 12 (213 981-9421 13 14 STAT OF WASHINGTON ) ss. 15 COUNTY OF KING ) 16 COMES NOW Jack R. Burns who, after being duly sworn, did 17 depose and say: 16 1. That Playtime Theatres, Inc. and Kukio Bay Properties, 19 Inc. are bodies corporate of the State of Washington, in good stand ng. 20 21 2.. That affiant is one of the attorneys for said 22 corporations. Affiant further states that he is authorized to 23 speak on their behalf. 24 3. That said corporations are the plaintiffs in the within 25 proce dings. 26 4. That he has read the complaint to which this affidavit 27 is of ixed and asserts that the factual allegations contained 28 therei are true and correct to the best of his information, 29 knowle1ge and belief.. 30 5. That the enforcement of the City of Renton Ordinance No. 31 3526 will, if upheld, have the effect of depriving plaintiffs of Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns&Meyer Page 21 A PROFESSIONAL SERv10E CORPORATION 10604 N.E.36th Place,Suite 105 Kirkland.Washington 95033 17061 5203636 (` w I • 1 access to the marketplace to exhibit their presumptively protected , 2 Fir t Amendment wares of adult film fare; and further, will deny to 3 int rested adults, the access to such material for their informs 4 do , education, entertainment, literary, scientific or artistic 5 int rests, as'.well as subject plaintiffs, their agents, servants ' 6 and employees to criminal 'arrests and confiscatory fines and 7 for eitures of property interests; and would further destroy the 8 property and interest of said corporations in the location of their 9 theatres operated at 504 South 3rd Street, and 507 South 3rd t0 Street, in the City of Renton, and subject said plaintiff r 11 corporations to grievous financial harm as well as to also chill 12 thei rights of free speech as guaranteed by the First Amendment. 13 Domb owski v. Pfister, 380 U.S. 479 (1965). 14 0 i.' 15 (‘ 1i. . PL-t�, 16 Jack\R. Burns SUBSCRIBED AND SWORN to before me this 0— day of 17 Febr ary, 1982. 18 r. l / Notary lic in and for the Stge Ar_ ngton residing 20 at /, ; ', 21 22 23 24 25 26 . 27 28 29 30 31 Amend d and Supplemental • ATTORNEYS ATIAW !° .. '( � ,n T , f Complaint Hubbard, Bunn'&Meyer Page 2 A PROCESSIONAL SEKVICE CORPORATION; .. ' 10601 N.E.3E01 Place.Suite 105 ' Kirkland.War.hindron 9E033 (2061 636.3636 • ' .IAII Of W.ISIIINGIUN • 3 SS. COUNTY OF KING ll �' • I•.IC.(..rte .:a..1.1...(.IQiD City Clerk in and fat the City of Renton. • -.n 'o•ton. do hereby cerli y tha}1 the foregoing Ordinance Is a true end correct •Jew et O.•r;nance No...,.3.,.a..0 of the City of Renton.as It aDDears on file •n u. .•u.ce. and do further certify that the same has been published according r raw. • M Witness Whereof have�aunto aat my-hanp and affixed the awl of lA/ • :ily of Renton.this . ., I Art ot.Uece—ml3�fe, till • w ��‘64 t7L..Q. Clty Clerk • CITY OF RENTON, WASHINGTON ORDINANCE NO. 3526 AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, RELATING TO LAND USE AND ZONING THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO ORDAIN A• FOLLOWS.:. SECTION I: Existing Section 4-702 of Title IV (Building Regulati ns) of Ordinance No. 162S entitled "Code of General Ordinances: of the City of Renton" is hereby amended by adding the following subsecti ns: • 1. "Adult Motion Picture Theater": An enclosed building used for presenting motion picture films , video cassettes, cable television, or any other such visual media, distinguished or characteri by an emphasis onmatter depicting. describing or relating to "specific. sexual acltivities1 or "specified anatomical areas" as hereafter defined for observation by patrons therein. 2. "Specified Sexual Activities": (a) Iluman genitals in a state of sexual stimulation or arousal; (b) Acts of human masturbation, sexual intercourse or sodomy; .. (c) Fondling or other erotic touching of human genitals . pubic region, buttock or female breast. 3. "Specified Anatomical Areas" (a) Less than completely and opaquely covered human genitals, pubic region, buttock, and female breast below a point immediately above the top , of the areola; and (h) Human male genitals in a discernible turgid state, • • even if completely and opaquely covered. . • -1- Exhibit A 1 I. SECTION II : There is hereby added a new Chapter to Title IV (Building Regulations) of Ordinance No. 1628 entitled "Code of General Ordinances of the City of Renton" relating to adult motion picture theaters as follows: . A. Adtilt motion picture theaters are prohibited within the area circumscribed by a circle which has a radius consisting of the fo lowing distances from the following specified uses or zones: 1. Within or within one thousand (1000') feet of any . • residential zone (SR-1. SR-2, R-1, S-1, R-2, R-3, R-4 or 'I') or anv single family or multiple family residential use. . 2. One (1) mile of any public or private school 3. One thou and (1000') feet of any church or other • religious facility or institution 4. One thousand (1000' ) feet of any public park or P-1 zone. B. The cli:aances provided in this section shall be measured by following a straight line, without regard to intervening buildings , from the n arest point of the property parcel upon which the proposed use is to e located, to the nearest point of the parcel of property or the lag use district boundary line from which the proposed land .. use is to he separated. . SECTION III: This Ordinance shall be effective upon its .'passage, approval and thirty days after its publication. • PASSED BY THE CITY COUNCIL this 13th day of April . , 1981 Delores A. Mea , city Clerk PPROVED BY THE MAYOR this l3th day of April . 1981. Approved a to form: r Ba ara Y. Shinpoc , Mayor awrence J. lirrc!n, Ciro AEtorney Date of Pu lication: May 15, 1981 I 1 Exhibit "C" (Reference : Petition at pg. 9, pg. 34. ) Complaint For Declaratory Judgment (Chapter 7. 24 R.C.W. ) in City of Renton v. Playtime Theatres, Inc. , et al. , in the Superior Court of Washington for King County, cause No. 82-2-02344-2, filed on February 19, 1982. • L — ' • • • 2 3 • 4 • 5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY OF RENTON, a ) • 7 . unicipal corporation,. ) NO. 8 2 — 2 _ 0 2 3 4 4 — z 8 Plaintiff, ) ) COMPLAINT FOR DECLARATORY Vs. ) JUDGMENT (Chapter 7.24 9 ) R.C.W.) PLAYTIME THEATRES, INC. , a ) 10 Washington corporation, and ) KUKIO BAY' PROPERTIES, INC. , ) 11 a Washington corporation, ) ) 12 Defendants. ) • :13 ) ' 14 COMES NOW the Plaintiff, CITY OF RENTON, a municipal 15 corporation, and requests a declaratory judgment pursuant to 16 Chapter 7.24 R.C.W. to determine the applicability of City of 17 Renton Ordinance No. 3526 entitled: "An 'Ordinance of. The 18 City of Renton, Washington, Relating to Land Use and Zoning" 19 egacted and approved by the City Council and Mayor on April 20 1 , 1981 , and alleges as follows: . 21 1. Status of Plaintiff: The City •of Renton is a • 22 municipal corporation organized and existing under the laws '23 of the State of Washington. 24 2. Status of Defendants: ' Plaintiff is informed and 25 believes, and therefore alleges that Defendant KUKIO BAY 26 PROPERTIES, INC. and PLAYTIME THEATRES, INC. are corporations 27 organized and existing under the laws of the State of 28 Washington, with their principal places of business located 29 in King County, Washington. 30 3. Purchase by KUKIO: Plaintiff is informed and 31 bel eves, and therefore alleges that on or about January 26, 32 1982, Defendant KUKIO BAY PROPERTIES, INC. purchased .two WARREN&KELLOGG.P.S. COMPLAINT FOR DECLARATORY JUDGMENT ATTOWM■*••*' .• PAGE 1 1•••o. IT • O• ••• R•MIOM.M OM•�$O••MIM•IO{7 _11■.8•7• . • 1 motion picture theaters within the city limits of Renton, 2 King County, Washington known as the Renton Theater and Roxy 3 The ter, commonly described as 504 and 507 South Third 4 Stret, respectively, and more particularly described as 5 follows: 6 Lots 1 and 2, Block 6, Smither's Sixth Addition to the Town of Renton, according to the plat recorded 7 in Volume 26 oT Plats, page 47, records of King County, Washington, and 8 • ALSO Lot 4 and the West 2 feet of Lot 3, Block 34 , 9 Smither's Second Addition to the Town of Renton, according to the plat recorded in Volume 10 of 10 Plats, page 28, records of King County, Washington, 11 Situate in King County, Washington. 12 4. Lease by PLAYTIME: Plaintiff is informed and :13 beli ves, and therefore alleges that on or about January 26, 14 1982 Defendant KUKIO BAY PROPERTIES, INC. leased said Renton 15 Theater and' Roxy Theater to Defendant PLAYTIME THEATRES, INC. 16 by wtlitten agreement for a period of ten years commencing on 17 or atlout January 27, 1982 with an option to renew the lease 18 for an additional term of ten years terminating on January 19 26, 2002. Said lease agreements provide that such premises . 20 are t be used for the purpose of conducting the business of 21 an adult motion picture theater exhibiting adult film fare. 22 Defen ant PLAYTIME THEATRES, INC. took possession of the 23 theaters on or about January 27, 1982. 24 5. Ordinance: On April 13, 1981 , Plaintiff enacted 25 City of Renton Ordinance No. 3526 entitled: "An Ordinance of 26 the City of Renton, Washington, Relating to Land Use and 27 Zoning ' (hereinafter referred to as the "Ordinance") , a true 28 and correct copy., of which is attached hereto as Attachment 29 "A" an ld incorporated herein by reference as though set forth 30 herein The ordinance is currently in full force and effect. 31 By the terms of said ordinance , adult motion picture 32 theaters, as defined in the ordinance, are a prohibited land • COMPLAINT FOR DECLARATORY JUDGMENT WARREN&KEA'OMG.Ps. UM PAGE 2 Hs.SWIM,...P.O.NM Vie • 1111wToN.WM141m.TOM 911017 ts6•SS7S I • 1 use within the area circumscribed by a circle which has a 2 radius consisting of the following distances from the 3 following specified uses or zones: 4 a. Within, or within one thousand feet of, any residential zone, or any single family or 5 multiple family residential use. • 6 b. Within one mile of any public or private school. 7 c. Within one thousand feet of any church or 8 other religious facility or institution. 9 d. - Within one thousand feet of any public park or 10 P-1 zone. 6. Location of Renton Theater: The Renton Theater is 11 located within the following distances: of the following 12 existing zones and uses: .13 a. The Renton Theater is adjacent to a . 14 multiple residential use located. at 306 Morris Ave. So. , 15 Renton, and is 30 feet from a single family residential use 16 17 located at 310 Morris Ave. So. , Renton. b. 30 feet of a church commonly known as 18 19 Awareness of Life Christian Metaphysics Church and located at 20 311 Smithers Ave. So. , 270 feet of a church commonly known as 21 St. Anthony's Catholic Church located at 406 So. 4th Street, 22 and 280 feet of •a church commonly known as Martin Luther 23 King, Jr., Memorial Baptist Church located at 324 Smithers 24 IAve. So. 25 c. 620 feet from Renton High School, located at 26 100 So. 2nd Street, and 470 feet from St. Anthony's Parochial 27 School, ,located at 314 So. uth Street. 28 7. Location of Roxy Theater: The Roxy Theater is 29 located within the following distances of the following existing zones and uses: 30 31 a. There is a multiple residential use.as a part 32 of, or adjacent to, the Roxy Theater. WARREN&KELL000.P.9. COMPLAINT FOR DECLARATORY JUDGMENT AT►O AT LAM P GE 3 ,.e w.stool.o se..i.o.Doi sae RENTON.WA.MIN.TON 1160E7 23S•EE7•I • . 1 b. 210 feet of a church commonly known as 2 Awareness of Life Christian Metaphysics Church and located at 3 311 Smithers Ave. So. , 420 feet of a church commonly known as 4 St. Anthony's Catholic Church located at 406 So. 4th Street, 5 and 430 feet of a church commonly known as Martin Luther 6 King, Jr. , Memorial Baptist Church located at 324 Smithers 7 ve. So. 8 c. 420 feet frotn Renton High School, located at 9 IDD So. 2nd St. , and 510 feet from St. Anthony's Parochial 10 School located at 314 So. 4th Street. 11 8. Controversy: A controversy and dispute now exists 12 between Plaintiff and Defendants relating to their legal '13 ights, duties and the effect of City of Renton Ordinance No. 14 3526 upon Defendants as follows: 15 a. Plaintiff claims that City of Renton Ordinance • 16 No. 3526 is constitutional on its face. Defendants claim 17 that said ordinance is unconstitutional on its face. 18 b.. Plaintiff claims that City of Renton Ordinance 19 No. 3526 is constitutional as it is applied to the specific 20 land use proposed by the Defendants. Defendants claim that 21 said ordinance is. unconstitutional as applied to the specific 22 land use proposed by the Defendants. 23 c. Plaintiff claims that the component parts of 24 City of • Renton Ordinance No. 3526 are independent and 25 severable and that this Court has the duty and obligation to 26 interpret the same in a constitutional manner, so as to give 27 effect to the general purpose of the City Council of the City 28 of Renton and its manifest intention. Defendants claim that 29 laid ordinance is not susceptible of a constitutional 30 bonatruction and is not severable. 31 d. Plaintiff claims that, pursuant to the 32 provisions of the City of Renton Ordinance No. 3526, an ¢OMPLAINT FOR DECLARATORY JUDGMENT WARR ATTO LLOGG.P.S. • tTo AT LAW PAGE 4 1110 SO.OSGONO ST..P.O.DOS III RONTON.WASHINGTOM Se0e7 1118.147e I , 1 "ad•ult;•mostl urge theater" is a permitted use within the 2 B-1 and more intensive land use zoning classifications 3 currently in use within the City of Renton except to the 4 extent that the specific use is prohibited by the terms of 5 said ordinance, • and that .there is no necessity for • 6 application for a special permit, conditional use or variance 7 pripr to the commencement of such specific land use. 8 Defendants • have claimed in an "Amended and Supplemental 9 Complaint for Declaratory Judgment and Preliminary and 10 Permanent Injunction", filed on February 9, 1982 in the 11 Unitled States District Court for the Western District of 12 Washington, entitled Playtime Theaters, Inc., a Washington • :13 Corp. , and Kukio Bay Properties,- Inc. , a Washington Corp. v. 14 The City of Renton, et al. , No. C 82-59H, that City of Renton • 15 IOrdihance No. 3526 provides a new use classification within 16 the zoning laws of the City of Renton of an "adult motion 17 picture theater" which is not a permitted use within any 18 zoning classification currently in the City of Renton , 19 thereby requiring the Defendants to obtain a special permit, 20 conditional use or variance prior to commencement of such 21 use. . 22 e. Plaintiff claims that the filing of the above 23 described federal lawsuit is premature in that the Defendants 24 have failed to exhaust their administrative remedies under 25 the Zoning Code of the City of Renton by reason of their 26 failu7 to request an administrative determination of the 27 necessity of application for a special permit, conditional 28 use qr variance from which appeal may be made from an 29 unfavorable determination as provided in the Zoning Code of 30 the City of Renton, and' that said administrative remedies are 31 adequate and appropriate. Defendants claim that they are not 32 • • COMPLAINT FOR DECLARATORY JUDGMENT WARREN KELLO00,P.S. PAGE 5 ATTO AT LAM TM SO.IACOMO IT..P.O.OOI•AS WASMIMSTOM 01O87 aaa•ea7e . ,,� .. • • ,., ,; xxc...LI:.1. to r-ed me. exh:aust their . administrat.ive remedies prior tit r ,-esr.mod,_-.,-,aa1<�/6. 1 2 the filing of a lawsuit raising said claim. 3 f. Plaintiff claims that City •of Renton ,Ordinance 4 No. 3526 prohibits the Defendants from using the specific 5 . motion picture theater premises described herein as an adult . 6 motion picture .theater. Defendants deny such claim. 7 _ .9. No:Adequate' Remedy: That no adequate remedy other . 8 tha herein prayed for exists by which the rights of the 9 par ies hereto may be determined. 10 WHEREFORE, Plaintiff prays for relief as follows: 11 1 . That the Court declare that City ' of Renton 12 Ordnance No. 3526 is constitutional on its face, valid for :1.3 all purposes and in full force and effect. - • ' 14 2. That the Court declare that the 'ordinance is 15 constitutional as applied to the .specific land use proposed 16 by the Defendants. 17 3. That the :Court declare that it• was the manifest 18 intention of the Renton City Council to make the component - .19 parts of City of Renton Ordinance No. 3526 independent and 20 severable. 21 4. That the Court declare that an "adult motion 22 picture theater"1 is a permitted use within the B-1 and more • . 23 intensive land use zoning classifications currently in use 24 within the City of Renton, except to the extent that it may 25 be prohibited by the ordinance, and that therefore no special . 26 permit, conditional use or variance application is required 27 prior to commencement of the land use of an "adult motion 28 picture theater" in areas of the city in which it is not 29 prohibited by the ordinance. 30 5. That the Court declare that the Defendants' 31 intended use of the 'specific motion picture theater premises 32 more particularly described herein as an "adult motion COMPLAINT FOR DECLARATORY JUDGMENT WARREN KELLOGG. P.S. AnO PAGE • • 1/O/O.SECOND MDD ST R...P.O.O./D!///. .WA/MIMSTOO/I0D7 155.tt7D • • • • 1 picture theater" as defined in the ordinance is prohibited by 2 the ordinance. 3 6. That the Court award the Plaintiff its costs and 4 attorney's fees as provided by law. 5 7. That the Court grant such other and further relief 6 as the Court deems just and proper. 7 8 9 DANIEL ELLOGG, Attorney for Plaintif 10 • 11 12 • :13 '14 • 15 • 16 17 18 19 20 21 22 • 23 24 • 25 • 26 • 27 28 29 • • • 30 • 31 32 • COMPLAINT FOR DECLARATORY JUDGMENT WARREN 8 KELLOGQ•P.S. PAGE 7 If P.O.•SCO•N •7 • IM•O.ttCONO R.. O.•OF III • R•NTON•WA/NI •50.7 . • ■55.••7• CEF T W1CATE I, the tlnaerstgnetf,QeArcs /A l?rk of IRE City of Renton, Washington, certify that this Is a true and correct copy of-L.?- i4<-54-124.. Subscribed and Seated this / day of t 19.,i?aZ • City C rk CITY OF RENTON. WASH::.CTON ORDINANCE NO. 3526 AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, RELATING TO LAND USE AND ZONING THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO . ORDAIN AS FOLLOWS: SECTION I: Existing. Section 4-702,of Title IV (Building Regulations) of Ordinance Ho. 162S entitled "Code of General Ordinance:. of the City of Renton" is hereby amended by adding the following subsec ions: - 1. "Adult Motion Picture Theater": An enclosed building used for presenting motion picture films, video cassettes, cable televi ion, or any other such visual media, distinguished or characters: by an mphasis on matter depictin , •describing or relating to "specific' sexual activities" or 'specified anatomical areas" as hereafter defined.. for observation by patrons therein. 2. "Snecified Sexual Activities": (a) Human genitals in a state of sexual stimulation or arousal'; lb) Acts of human masturbation, sexual intercourse • or sodomy; • (c) Fondling or other erotic touching of human genitals . • pubic region, buttock or female breast. 3. "Soecifitd Anatomical Areas" • (a) • Less than completely and opaquely ce::ered human genitals, pubic region, buttock, and female breast below a point immediately above the top • of the areola; and • (b) Human male genitals in a discernible turgid state, even if completely and opaquely covered. • • -1- ATTACHMENT "A" RECEIVED FED 1 9 1982 / . • SECTION II: There is hereby added a new Chapter to Title IV (Building Regulations) of Ordinance No. 1628 entitled "Code of General Ordinances of the City of Renton" relating to adult motion pic ure theaters as follows: A. Adult motion picture theaters are prohibited within the rea circumscribed by a circle which has a'radius consisting of the following; distances from the following specified uses or zone: : 1. Within or within one thousand (1000') feet of any . residential zone (SR-1,• SR-2, R-1. S-1. R-2, R-3, • R-4 or T) or any single family or multiple family residential use. • 2. One (1) mile of any public or private school • 3. One thousand (1000') feet of any church or other religious facility .cr institution 4. One thousand (1000') feet of any public park or P71 zone. • . B. The distances provided in this section shall be measured by following a straight line, without regard to intervening buildings , from tae nearest point of the property parcel upon which the proposed - use is to be located, to the nearest Point of the parcel of property or the land use district boundary line from which the proposed land use is to he separated. SECTION III: This Ordinance shall be effective upon its passage, approval and thirty days after its publication.. • PASSED BY THE CITY COUNCIL this 13th day of April , 19S1 fll Delores A. City Clerk APPROVED BY THE MAYOR this 13th day of April. , 1931. Approve• as to form: l3arbara7 hinpoch, 1.1:77 , arence1'J. rrcn, •cT(•v-Ailiirnc'y--- • Date . of Publication: � � May 15. Mil EXHIBIT "D" (Reference: Petition at pg. 9, pg. 10, pg. 11, pg. 12. ) Defendants City of Renton, et al. ' s Motion to Dismiss and Points and Authorities in Support Thereof, filed February 22, 1982 and Reporter' s Transcript for March 12, 1982 at hearing on said motion. • R=••=CEIV.E- I I FEB 2 21982 • I wAcit.11 I. .r 2 1 U.S. DISTRICT. JUDGE 1 I FED22;_ r ; Si i I I 6 , • 6 4 8 I UNITED STATES DISTRICT COURT l 9 1 FOR THE WESTERN DISTRICT OF WASHINGTON I 10 pLAYTIME THEATRES, INC., a Washington ) corporation, and KUKIO BAY PROPERTIES, = ) NO. C82-0059M 11 tNC., a Washington corporation, ' ) MOTION TO DISMISS I 12 Plaintiffs, ) COMPLAINT PURSUANT TO F.R.C.P. SECTION 18 • vs. ) 12(b)(1) and 12(b) (6). ) 14 THE CITY OF RENTON, et al., ) • I . • ) I 16 Defendants. ) 161 ) • 17 I COME NOW the Defendants and move to dismiss the above• .entitled 18 ction pursuant to Rule 12(b)(l) and 12(b)(6) of the Federal Rules 19 df Civil Procedure, in that the Court lacks jurisdiction over the 20 'subject matter of the lawsuit and the plaintiffs have failed to 1 21 state a claim upon which relief can be based. 22 1 This motion is based upon the Memorandum of Points and 28 A.thorities in Support of Defendants' Motion to Dismiss which 24 a company this motion. 26 Defendants further move that this matter be set for hearing 1 26 a d oral argument as soon as practicable. 27 ID TED: February 22, 1982 • 80 'M TION TO DISMISS v P RSUANT TO F.R.C.P. Daniel Kel o 81 S CTION 12(b) (1) AND g 82 I12(b) (6). WARREN&KELLOGG.P.S. • t ILYVORfITS AT t.M► 1 till So.BOND Qt..P.O.SOX IMO Rswloll.Wuwu■.,ow ssos7 . , . III.SI7S 0 • i 1; vT; .. I CEIVE_-.E 111 , . r , i. FEB 2 21982 -_ .. . . . .. ... . 1 WAL1 cK .1. Iv►cuOVER1'. i . 2 I U.S. DISTRICT. JUDGE , FF;'.; 2:_ • 8i 5 61 71 . 8 . UNITED STATES DISTRICT COURT 9 FOR THE WESTERN DISTRICT,OF WASHINGTON 10 °LAYTIME THEATRES, INC. , a Washington ) orporation, and KUKIO BAY PROPERTIES, ) NO. C82-0059M 11 INC., a Washington corporation, ) I ) MEMORANDUM 12 Plaintiffs, ) AUTHORITIESOF INPOINTS SUPPORTND� OF DEFENDANTS' MOTION TO I 18 vs. ) DISMISS COMPLAINT ) PURSUANT TO F.R.C.P. 14 HE CITY OF RENTON, et al., ) SECTION 12(b)(1) AND I ) 12(b)(6). 16 . Defendants. ) 16 . • 17 STATEMENT OF FACTS 18 City of Renton Ordinance No. 3526 is a zoning ordinance • 19' eritled "An Ordinance of the City of Renton, Washington, Relating 20 t Land Use and zoning",. By its terms, adult motion picture 21 t eaters, as defined in the ordinance are a prohibited land use .22 within the area circumscribed by a circle which has a radius 28 co sisting of the following distances from the following specified 24 uses or zones: . • 25 • a. Within, or within one thousand feet of any residential zone, or any single family or multiple 26 family residential use. 27 b. Within one mile of anypublic or I private school. I 28 c. Within one thousand 'feet of any church or other I religious facility or institution. 29 d. Within one thousand feet of any public park or P-1 • • zone. 81 The Renton Theater and Roxy Theater, located in the City of 82 IMBMQRANDUM OF POINTS AND AUTHORITIES ,IN SUPPORT OF DEFENDANTS' MOTION TO I DISMISS COMPLAINT PURSUANT TO F.R.C.P.. WARREN a KELLOGG,P.S. L atrmwnS AT LAW I !SECTION 12(b)(1) AND 12(b)(6) P. 1 .»MO.."eoKo........DUX SSA 11.w..w.Wa.wINRON 1111017 • • I U/•N7" I J 1 1 ' -enton, are owned and operated by the Playtime Theaters, Inc. , a 21 ashington corporation (hereinafter called "Playtime") and Kukio , 8 Bay Properties, Inc., a Washington corporation (hereinafter called ' 4 "1Kukio"), under lease agreements which provide that such premises 6 are to be used for the purpose of conducting the business of an 6 adult motion picture theater exhibiting adult film fare. Both 7 t eaters are located 'within the prohibited land use area described 8 b City of Renton Ordinance No. 3526. 9 On January 20, 1982, "Playtime" the lessee and operator of the 10 t eaters and "Kukio" the owner and lessor of the premises filed a 11 .leading in this Court entitled "Complaint for Declaratory Judgment 12 a d Preliminary Injunction" which sought: 18 (1) a declaratory judgment declaring City of Renton Ordinance No. 3526 to be unconstitutional as 14 written, in whole and/or in part, and in its threatened application to the plaintiffs; .. 16 (2) a preliminary injunction restraining the defendants 16 and their agents, servafts, .employees and attorneys, and others acting under their direction and control, 17 from enforcing or executing and/or threatening to enforce and/or execute the provisions of Ordinance 18 No. 3526 in whole and/or in part, by arresting ,plaintiffs, their agents, servants or employees, 19 and/or threatening to arrest plaintiffs, their • agents, servants and employees and/or harassing, 20 threatening to close, or otherwise interferring with plaintiffs' peaceful use of the premises. 21 (3) A permanent injunction after final hearing; and 22 (4) an award of. sustained bys reason uch m of lossofs as a business,athe • 28 expenditure of assets to enforce rights guaranteed 24 by the U.S. Constitution, and reasonable attorney's fees and other damages as may be established. • 26 26 On January 25, 1982, the plaintiffs herein caused an "Order to 27 S ow Cause Why Temporary Restraining Order Shall Not Issue" to be 28 issued, which set a hearing date of January 29, 1982 at 1:30 p.m. 29 Following a hearing on the issue as to whether a temporary • 80 restraining order should issue, United States Magistrate Philip K. MIS eigert thereafter filed his "Report and Recommendation" .on 82 MEMORANDUM OF POINTS AND AUTHORITIES • II SUPPORT OF DEFENDANTS' MOTION TO WARREN R KELLOGG,16.5. • jD SMISS COMPLAINT PURSUANT TO F.R.C.P. ATTOwn&AT LAN SECTION 12(b)(1) AND 12(b)(6) P. 2 IM SO.SECOND ST..P.O.OOi SAG "ate,w&uNINOTON 11"O"% 11116.81176 . J I 1 February 3, 1962 in which he recommended that the Court deny the 2 Plaintiff's request for a temporary restraining order. In his ' Ii 8 transmittal letter, the parties were informed that if no timely I 4 objections were filed, the matter would be ready for a ruling by t 5 the trial judge not later than February 16, 1982. { 6 On February 8, 1982, the Plaintiffs served a copy of a i I 7 ple ding entitled "Amended and Supplemental Complaint for 8 'Declaratory Judgment and Preliminary and Permanent Injunction" I 9 whi h prays for the same relief as was sought in the original i 10 com laint which was filed upon January 20,1982. 1 11 On February 19, .1982, the Defendant City of Renton 12 (hereinafter called "Renton") filed a Civil Complaint for ii 18 Declaratory Judgment under R.C.W. Chapter 7.24 in the Superior 14 Court of Washington for King County naming the plaintiffs in this 15 federal action as defendants, entitled City of Renton, a municipal 1 16 corporation, plaintiff, vs. Playtime Theatre, Inc. , a Washington 17 corporation, and Kukio Bay Properties, Inc. , a Washington I 18 corporation, defendants. In such complaint, a copy of which is 19 atta hed" as Exhibit "A" to these points and authorities, the 20 plaiitiff is seeking a declaratory judgment to resolve the 21 following controversy and dispute which now exists between the City • 22 of R nton and Playtime and Kukio relating to their legal rights, 28 duti s and the effect of City of Renton Ordinance No. 3526 upon 24 said Washington corporations: 25 a. Renton claims that City of Renton Ordinance No. 3526 26 is c nstitutional on its face. Playtime and Kukio claim that said 27 ordi ance is unconstitutional on its face. • 28 b. Renton claims that City of Renton Ordinance .No. 3526 • 29 is c nstitutional as it is applied to the specific land use 80 ;prop sed by Playtime and Kukio. Playtime and Kukio claim that said 81 ordnance is unconstitutional as applied to the specific land use 82 IMEMORiANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION TO WARREN a iCELLOGd.P.S. 'DISMISS COMPLAINT PURSUANT TO F.R.C.P. Atto""crS•T LAM ;SECTION 12(b)(1) AND 12(b)(6) P. 3 Ile AO.MONO S*..P.0.DOISO .RUSTON.w.."u""7""140s7 1 151447■ ' I 1 •roposed by them. 2 c. Renton claims that the component parts of City of 8 Renton Ordinance No. 3526 are independant and severable and that 4 the Superior Court of Washington for King County has the duty and , 6 •bligation to interpret the same in a constitutional manner, so as • 6 to give effect to the general purpose of the City Council of the Cit' of Renton and its manifest intention. Playtime and Kukio 8 claim that said ordinance is not susceptible of a constitutional 9 construction and is not severable. 10 d. Renton claims that, pursuant to the provisions of 11 City of Renton Ordinance No. 3526, an "adult motion picture 12 theater" is a permitted use within the B-1 and more intensive land 18 use zoning classifications currently in use within the City of 14 Renton except to the extent that the specific use is prohibited•by 16 the terms of said ordinance, and that there is no necessity for • 16 application for a special permit, conditional use or variance prior 17 to he commencement of such specific land use. Playtime and Kukio ii 18 claim in their "Amended and Supplemental Complaint for Declaratory 19 udgment and Preliminary and Permanent Injunction", filed on 20 February 9, 1982 in this Court, that City of Renton Ordinance No. . 21 3526 provides a new use classification within the zoning laws of 22 the 'City of Renton of an "adult motion picture theater" which is 28 not a permitted use within any zoning classification currently in 24 the City of Renton, thereby requiring Playtime and Kukio to obtain 25 a special permit, conditional use or variance prior to commencement • 26 of such use. 27 e. Renton claims that the filing of the federal lawsuit 28 herein is premature in that Playtime and Kukio have failed to 29 exhaust their administrative remedies under the zoning Code of the 80 City of Renton by reason of their failure to request an 81 ladmiristrative determination of the necessity of application for a 82 'MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION TO WARREN&KCLLOG3..r.3. DISMISS COMPLAINT PURSUANT TO F.R.C.P. ATTO11NtTS AT LAW 'SECTION 12(b) (1) AND 12(b)(6) P. 4 tic 10.SECOND P.O.DO=SSG A{NTON.WMNIN"TON 1111OI7 tuI•"S7" J • I s ecial permit, conditional use_or variance from which appeal may .l I P 2 be Made from an unfavorable determination as provided in the Zoning) 8 1Cod- of the City 'Iof Renton, and that said administrative remedies 4 are adequate and appropriate. Playtime and Kukio claim that they � 5 fare not required to exhaust their administrative remedies prior to 6 Ithe filing of a lawsuit raising said claim. 7I 8 I LEGAL ARGUMENT • 9 The plaintiffs were denied a temporary restraining order under to0 Ithe r original complaint. They have abandoned their original 11 com laint, 71 C.J.S. 5716 and, pursuant to Rule 15 of the Federal 12 Rul s of Civil Procedure, have filed an amended pleading. Within • - 18 the time allowed to file a response to such amended pleading, 14 IRen on has filed a Complaint for Declaratory Judgment under Chapter!. 16 7.2 R.C.W. wherein it seeks to have the state court render its • 4 16constitutionality of City of Renton Ordinance lint rpretation of the I . 17 I o. 3526 and resolve the same issues which the plaintiffs seek to I 18 have litigated in this federal court. Because a state civil action! 19 I is ow pending in the state court involving the same issues and the' to be given a city ordinance, this federal action must EO 'construction 21 be dismissed for 'the 'following reasons: i 22 Re: Statutory Construction; • 28 I (1) The subject of this action is a city ordinance which is before a state court for its initial 24 interpretation. The only question before this court is whether the city ordinance is unconstitutional onI 25 I its face and could not be rendered constitutional byl any decision of the state court. Stecher v. Askew, 26 I 432 F. Supp. 997 at 999. The answer to that question requires a dismissal. i (2) A federal court lacks jur27isdiction to 28 authoritatively construe state legislation. U.S. v. 37 Photographs, 402 U.S. 363. •In contrast, a state 29 court is under a constitutional duty to construe state legislation in a constitutional manner. See 80 People ex rel. Busch v. Projection Room Theater, 17 Cal.3d 55 at 56. The cardinal principle of 81 I statutory construction in such matters is to save I 82 'MEMO• •NDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION TO WARREN a KEIt-oGG•P.S. ,DISMISS COMPLAINT PURSUANT TO F.R.C.P.. ATTORM<Te AT LAw 1 !SECTION 12(b)(1) AND 12(b)(6) P. .S m.o.SWAM sT..P.OMIX ins RtwYOM•WA/MtMsTOM I 11.111.111176 1 i • J I . 1 and not to destroy. Tilton v. Richardson, 403 U.S. I 672 at 684. Further, any additional construction 2 given by a state court to the city ordinance is binding on the federal courts. If the state court 8 says "black" is "white" , the federal court must accept the fact that "black" means "white". 1 4 Kingsley Pictures Corp. v. Regents, 360 U.S. 684. 1 5 Re: Jurisdiction & Abstention. ` 6 (1) Where plaintiffs are unable to plead facts which i would establish the "extraordinary circumstance" 7 exception which the U.S. Supreme Court has mandated for federal jurisdiction in civil injunction cases, `• 8 Huffman v. Pursue, Ltd., 420 U.S. 592, the federal I courts lack jurisdiction and the state action raises! 9 a "bar" 'to federal action. Moore v. Sims, 442 U.S. I 415. For the same reason°, abstention is required. 10 (2) Playtime and Kukio have failed to exhaust their I 11 administrative remedy re the zoning interpretation raised in their amended pleading and are concluded I 12 by the rationale expressed in Patsy v. Florida International Univ. , 634 F.2d 900, cert. granted by I 18 the U.S. Supreme Court and argument scheduled for March 1, 1982. 14 I 16 I 16 • WHERE A CIVIL STATE STATUTE OR CITY ORDINANCE IS CONSTITUTIONAL ON ITS FACE OR .CAN BE • 17 RENDERED CONSTITUTIONAL BY FURTHER INTERPRETA- TION BY A STATE COURT, A PLAINTIFF- HAS NO 18 STANDING TO ATTACK THE SAME IN THE FEDERAL COURT ON CONSTITUTIONAL GROUNDS, AND A FEDERAL 19 JUDGE LACKS JURISDICTION AUTHORITATIVELY TO CONSTRUE SUCH STATE LEGISLATION IN THE FIRST 20 INSTANCE. • . • 21 A. The Federal Court Has Jurisdiction Only To Decide If The 22 City Ordinance Is Susceptible To A Construction Which Will I 28 Render The Statute Constitutional. 24 A state court may construe a state statute or city ordinance 26 which appears unconstitutional on its face in such a way as to 26 re1der its application constitutional. Where, as here, the sole 27 qugstion presented to the federal court is the facial 28 constitutionality of a state statute,. plaintiff has standing to 29 as$ert, and the federal court has jurisdiction to decide, only one 80 isue: to wit, whether the state statute is unconstitutional on 81 it face and. could not be rendered constitutional by any decision . 82 ME ORANDUM OF POINTS AND AUTHORITIES 1IN SUPPORT OF- DEFENDANTS' MOTION TO WARREN&KELLOGG.P.S. DISMISS COMPLAINT PURSUANT TO F.R.C.P. £Ttemm[TS AT LAW ,SECTION 12(b) (1) AND 12(b)(6) P. 6 . moo.=come R....o.w:... Rotrem.Witiomlmotom e"Os7 a"s.""I" • I ,f 1 of the state court. • I 2 This rule of law was concisely expressed by the United States 8 District Court, M.D. Florida, Tampa division in Stecher v. Askew, I . 4 432 F.Supp. 997 at 999 (1977): 6 "While as a general rul State SupremenCe ourt itsrt y face i construe a statute which appearunconstitutional constitutional, 6 in such a way as to render its application see, e.g., Wainwri ht v. Stone, 414 U.S. 21 (94 S.Ct. 190, 38 I 7 L.Ed.2d 179 (1973), there maybe cases in whichss cfea Under, construction, even though attempte _� has standings 8 the facts alleged in the complaint, the plaintiffand I to assert that this statute presents such a situation. 9 plaintiff has standing as to this issue: to wit, whe�r the statute is unconstitutional on its face and could not be. 10 rendered constitutional an decision of the Florida Supreme) Court. (Emphasis added). }I: i . 11 In short, the federal court has jurisdiction to decide the 12 1 18 ques.ion of jurisdiction. U.S. v. United Mine Workers of America, I 14 330 TI.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1974). Where a state I statute is susceptible to a construction which will render the • 1 1il the federal co urt.must find that it has no I II6 statute constitutona 17 juri ,diction to proceed further, and must allow the matter to , 18 return to the state court system for an authoritative construction 19 by ttLe state court. This result is mandated by the fact that a 'gyp fedeal court lacks jur isdiction to autritatively construe state ho— 21 legilation. U.S. v Thirty-Seven Photogra hs, 402 U.S. 363, 28 22 L.Ed.2d 822, 91 S.Ct. 1400 (1971). See Stecher v. Askew, supra, ati 28 999, where the court correctly stated: • I ?4 "In determining whether plaintiff has succeeded at this task, we 'must take the statute as though it read precisely as the 26 highest court of the State has interpreted it273/Minnssot e x rel. Pearson v. Pro C bate ourt, 309 U.S. 270, Fu 26 jurisdiction authoritatively1940)to construeostatewlegislation." 1. 27 United States v Thirty- Seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971) " I 29 28 For the plaintiffs to succeed in this Court, they must • 80• succ ssfully demonstrate that no fury rp r interet ti aon could bran 81 the City ordinance ancce under question within the confines of the 82 MEMORANDUM OF POINTS AND AUTHORITIES • • IN SUPPORT OF DEFENDANTS' MOTION TO WARREN KEG-LAGG,r.s.. DISMISS COMPLAINT PURSUANT •TO F.R.C.P. ARREN.o.MOMSrt AT LL eGG.P�� SECTION 12(b)(1) AND 12(b) (6) P. 7 PROTON.WASSOISTONreo1s Z,5.SS71 � y j 1 •rotections insured l the Constitution. If there is any saving 2 interpretation which the state court could make, plaintiffs must 8 demonstratel that the state courts will not so construe it. As the 4 Court said in St echer, supra, at page 999: b "For the plaintiff to succeed in this Court, he must successfully demonstrate that no further interpretation could 6 bring this statute within the confines of the tests set out in . Chaplinsky. In subsequent proceedings under this statute, 7 however, there is absolutely no obstacle to the Florida courts' further defining the words 'Necessarily incite a 8 breach of the peace' which were incorporated into this statute) by State v. Mayhew, 288 So.2d 243 (Fla. 1973), as meaning 9 'words likely to cause an average addressee to fight.' Such construction would save the statute, and the plaintiff cannot 10 demonstrate that the Florida courts will not so construe it. (our emphasis.) ii 12 While it is true that a state defendant may consent to have 18 the federal court make that determination, see Ohio Bureau of 14 Emilloyment Services v. Hodory, 431 U.S. 471, 480, that is not the • 16 case here where the City of Renton has elected to have the matter 16 .ecided by the state court. • 17 B. The State Judiciary Must Be Presented With An Opportunity 18 To Consider And Interpret The State Statute And If Necessary, 19 • Invoke A Limiting Construction. • 20 The rationale which requires a federal court to defer to the 21 state court in the instance of the first interpretation is clear. 22 here is a marked difference in the way in which the state and , 28 federal courts approach the constitutional issue regarding state 24 legislation. Largely because of the doctrine of separation of 26 poers, the rule has evolved that state courts are obliged to 26 render a construction of state legislation which will arrive at a 27 constitutional result. In people ex rel. Busch v. Projection Room 28 heater, 17 Cal.3d 55 at 56, the California Supreme Court noted, in 29 this context, at- page 336: 80 "Furthermore, the United States Supreme Court recently emphasized within the foregoing context that courts have an 81 obligation to construe statutes in such a way as to avoid 82 MEMORANDUM OF POINTS AND AUTHORITIES • IN SUPPORT OF DEFENDANTS' MOTION TO WARREN a KELLOGG.P.S. • DISMISS COMPLAINT PURSUANT TO F.R.C.P.• ATITIONST•AT LAW SECTION 12(b) (1) AND 12(b) (6) P. 8 MG SO.MONDST••►.O.IKIE MITCH.WMNINGTON•10572057 255.2171 i • 1 --""serious-constitutional doubts . ." (Our emphasis. ) _ I I 2 -nd, at page 338: I 8 "We are obliged to construe and interpret legislation in a manner which will uphold its validity. (Citations). Thus, 4 the courts have held that provision for a prior adversary hearing may be implied by law in otherwise silent statutory 6 provisions." -6 Because federal courts do not bear the same relationship to state I 7 legislatures and don't function in the same manner as regards state: 8 egislation, see U.S. v. 37 Photographs, supra, the end result is I 9 certain to .differ. I 10 That this Court should allow. the Washington State courts the i 11 •pportunity to construe the ordinance and, if necessary, to invoke I 12 a limiting -construction is clear. In Erznoznik v. City of 1 18 acksonville, 4422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975), 4 the Supreme Court, in disposing of a challenge to a city ordinance I 1 16 rjegulating the types of movies that could be shown by a drive-in 1 16 heater whose screen was visible from the public streets, made the 1 17 following observation: i1 18 "This Court has long recognized that a demonstrably over-broad: statute or ordinance may deter the legitimate exercise of 19 First Amendment rights. Nonetheless, when considering a I • facial challenge it is necessary to proceed with caution and 20 restraint, as invalidation may result in unnecessary - interference with a state regulatory program. In 21 accommodating these competing interest the Court has held that a state statute should not be deemed facially nvalid unless 22 it is not readily s b ect to a narrowing construction 1,y the . state courts, see Dombrowski v. Pfister, 380 U.S. 479,9, at 2185 23 S.Ct. 1118, 1126, 14 L.Ed.2d 22 (1965) ., 422 6, 95 S.Ct. at 2276. In Time, Inc. v. Hill, 385 U.S. 374, 137 24 S.Ct. -534, 17 L.Ed.2d 456 (1967), the Court refused to declare a New York privacy statute invalid on its face, noting that ( . 25 the New York courts had 'been assiduous in construing the statute to avoid invasion of the constitutional protections of'. 26 speech and press. We, therefore, confidently expect that the i New York courts will apply the statute consistently with the• . 27 constitutional command.' Id. at 297, 87 S.Ct. at 547." I (Emphasis added). 28 29 A was stated by Justice Burger in Tilton v. Richardson, 403 U.S. I 80 672 at 684 on the issue of "severability" and the importance of the 81 s atutory construction factor: • 82 MEMORANDUM OF POINTS AND AUTHORITIES Ir SUPPORT OF DEFENDANTS' MOTION TO WARREN- !K[LLOOQ P.S. DISMISS COMPLAINT PURSUANT TO F.R.C.P. ATTO"11[/.AT LAM - ' SECTION 12(b) (1) AND 12(b) (6) P. 9 q0 p•T"COMA R..T.O.wII US , I Runes.RION.W*,HIN"7ON""097 a"".""7" 1 • • 1 "This circumstance does not require us to invalidate the entire Act, however. 'The cardinal principle of statutory 2 construction is to save and not to destroy.' N.L.R.B. v. • Jones & Laughlin Steel Corp. , 301 U.S. 1, 30, 81 L.Ed. 893, 8 907, 57 ,S.Ct. 615, 108 ALR 1352 (1937). In Champlin Rfg. Co. v. Commission, 286 U.S. 210, 234, 76 L.Ed. 1062, 1078, 52 4 S.Ct. 559, 86 ALR 403 (1932), the Court noted 'The unconstitutionality of a part of an Act does not necessarily b defeat . the validity of' its remaining provisions. Unless it is evident that the legislature would not have enacted 6 those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is 7 left is fully operative as law. Nor does the absence of an express severability provision in the Act dictate the demise 8 of the entire statute. E.g., United States v. Jackson, 390 U.S. 570, 585 n. 27, 20 L.Ed.2d 138, 148, 88 'S.Ct. 1209 9 (1968)." 10 Even were this court to find. that certain parts of City of 11 Menton Ordinance No. 3526 were unconstitutional on their face, the , 12 f.Issue as to whether such parts were severable would still have to - 18 be decided. See, generally, Sutherland Statutory Construction, 14 Severability", Chapter 44 at page 335-368 and O'Connell v. Conte, 15 I56 P.2d 317 (Wash. 1969). That issue is more properly a matter 16 for the state court. In a recent statement confirming the 17 importance of 'the "statutory construction" factor and the right of 18 state courts to interpret city ordinances, the U.S. Supreme Court 19 in Metromedia, Inc. v. San Diego, _ U.S. _, 69 L.Ed.2d 800 20 July 2, 1981) (involving an appeal of a city ordinance after ' 21 ecision by the California Supreme Court) remanded the case back to 22 he California Supreme Court for further statutory construction by 28 he state court, notwithstanding it held the ordinance to be 24 unconstitutional on its face. See in this regard, Justice White's 26 opinion announcing the judgment of the Court at page 823, fn. 26, 26 wherein he addresses the issue of severability and the right of . 27 state courts in that regard: 28 "Although the ordinance contains a severability clause, determining the meaning and application of that clause are 29- properly responsibilities of the state courts. See Dombrowski v. Pfister, 380 U.S. 479, 497, 14 L.Ed.2d 22, 85 S.Ct. 1116 80 (1965) ('The record suffices . . . to permit this Court to hold that, without the benefit of limiting construction, the 81 statutory provisions on which the indictments are founded are 82 M MORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C.P.. WARREN&KELLOGG.'P.O. ATTOSINITSECTION 12(b) (1) AND 12(b) (6) P. .10 ,«w. �.r a PDX SSG RINTON.WY"INGTON"111037 q".""7" I . .J • i . I . I! i . 1 void on their face; until an acceptable limiting construction is obtained, the provisions cannot be applied.' ); Liggett Co. I 2 v. Lee, 200 U.S. 517, 541, 77 L.Ed. 929, 53 S.Ct. 401, 05 ALR 699 (1933) ('The operation of this (severability clause) 8 consequent on our decision is a matter of state law. While we have jurisdiction of the issue, we deem it appropriate that we 4 should leave the determination of the question to the state court. ' ); Dorchy v. Kansas, 264 U.S. 286, 291, 68 L.Ed. 606, 5 44 S.Ct. 323 ( In cases coming from the state courts, this Court, in the absence of .a controlling state decision may, in 6 passing upon the claim under the federal law, decide, also the question of severability. But is is not obliged to do so. • 7 The situation may be such as to make it appropriate to leave • the determination of the question to the state court.' ). This' 8 rule is reflected in the different approaches this Court has taken to statutory construction of federal and state statutes I 9 infringing on protected speech. Compare United States v. Thirty-Seven Photographs, 402 U.S. 363, 28 L.Ed.2d 022, 91 i 10 S.Ct. 1400 (1971), with Freedman v. Maryland, 380 U.S. 51, 60, 13 L.Ed.2d 649, 85 S.Ct. 734 (1965). Since our judgment is 11 based essentially on the inclusion of noncommercial speech within the prohibitions of the ordinance, the California 12 courts may .sustain the ordinance by limiting its reach to ' commercial speech, assuming the ordinance is suceptible to 18 this treatment." • I 14 II i 15 THE BASIC PRINCIPLES OF FEDERALISM AND COMITY EXPRESSED IN HUFFMAN V. PURSUE LTD., AND 16 SUBSEQUENT CASES REQUIRE THAT WHERE THE ISSUE . INVOLVES CIVIL INTERESTS RELATING TO STATE 17 SOVEREIGNTY, SUCH AS THE ZONING POWER HEREIN INVOLVED, THE FEDERAL CLAIM MUST BE PRESENTED 18 TO THE STATE FORUM IN THE FIRST INSTANCE IF. • THAT FORUM " IS AVAILABLE AND THE STATE'S 11TH 19 AMENDMENT PRIVILEGE RAS NOT BEEN WAIVED. 20 When the need for abstention in civil public nuisance 21 abatement litigation was before the Court seven years ago in 22 Huffman v. Pursue Ltd. , 420 U.S. 592, 43 L.Ed.2d 482, 95 S.Ct. 1200 28 (Mar. 18, 1975) the Allen County, Ohio Prosecutor argued that the 24 U.S. District Court lacked jurisdiction and was required to dismiss 25 the Civil Rights Action. The High Court's order in Huffman, supra,' 26 on the jurisdictional issue was equivocal, at pg. 612: . 27 "...We therefore think that this case is appropriate for remand so that the District Court may consider whether... the 28 • District Court.ma assume jurisdiction under an exception to the pol cy against federal _judicial interference with state 29 court proceedings of this kind." (Our emphasis. ) 80 ,Upop remand, and over the prosecutor's objection, U.S. District 81 'Judge Walinski dismissed the case on the ground of mootness, and 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION TO WARREN d KELLOGG,P.S. DISMISS COMPLAINT PURSUANT TO F.R.C.P. ANOSITITt AT LAM SECTION 12(b) (1) AND 12(b)(6) P. 11 ip WO.'tCO"O OW..P. O.SOX CM MUTTON.WIUNINSTON 08O57 • *15.S17" • . I I • • •..) • . 1 1 the basic question of jurisdiction was never resolved. 2 During the 1976 October Term, Huffman v. Pursue Ltd. , supra, j 8 was further applied by the U.S. Supreme Court in other civil cases: 4 Judice v. Vail, 430 U.S. 327, 51 L.Ed.2d 376, 97 S.Ct. 1211 (Mar. 5 22, 1977) and Trainor v. Hernandez, 431 U.S. 434, 52 L.Ed.2d 486, 6 496, 97 S.Ct. 1911 (May 31, 1977) and distinguished in Ohio Bureau 7 of Employment Services v. Hodory, supra. In his dissent in Judice,l 8 Justice Stewart noted a significant difference between Pullman 9 abstention and Younger-Huffman abstention, at pg. 348: 10 • "...Both types of 'abstention' of course, serve the common goal of judicial restraint as a means of avoiding undue 11 federal interference with state goals and functions. But there is a significant difference in result between the two. 12 Under Pullman abstention, the federal court may retain jurisdiction pending state-court interpretation of an - 18 ambiguous statute, while under Younger it may not." (Our emphasis. ). 14 16 See also Trainor v. Hernandez, 431 U.S. 434, 445, 52 L.Ed.2d 486, 16 496, 97 S.Ct. 1911 (May 31, 1977) and Moore v. Sims, 442 U.S. 415, 17 430, 60 L.Ed.2d 994. 1007, 99 S.Ct. 2371 (June 11, 1979), citing 18 the Trainer v. Hernandez text noted above, in holding that the f 19 In Trainor v. Hernandez, supra, the High Court held that where Huffman v. Pursue 'Ltd. applies, the Court should dismiss the case: 80 "...For a federal court to proceed with its case rather than to remit appellees to their remedies in a pending state enforcement suit would 21 confront the State with a choice of engaging in duplicative litigation, thereby risking a temporary federal injunction, or of interrupting its • 22 enforcement proceedings pending decision of the federal court at some unicnown time in the future. It would also foreclose the opportunity of the 28 state court to construe the challenged statute in the face of the actual federal constitutional challenges that would also be pending for decision 24 before it, a privilege not wholly shared by the federal courts. Of course, in the case before us the state statute was invalidated and a federal 25 injunction prohibited state officers from using or enforcing the attachment statute for any purpose. The eviscerating impact on many state enforcement 26 • actions is readily apparent. This disruption of suits by the State in its sovereign capacity, when combined with the negative reflection on the 27 State's ability to adjudicate federal claims that occurs whenever a federal court enjoins a pending state proceeding, leads us to the conclusion that 28 they interests of comity and federalism on which Younger and Samuels v. Maclkell primarily rest apply in full force here. The pendency of the state 29 codrt action called for 'restraint b1 the federal court and for the . dismissal of appellees' complaint unless extradordinary circumstances were 80 present warranting federal interference or unless their state remedies were • inadequate to litigate their federal due process claim." (Our emphasis.) . 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPI ORT OF DEFENDANTS' MOTION TO WARREN a Kcuoao,M.s. DISMISS COMPLAINT PURSUANT TO F.R.C.P. SECTION 12(b)-(1) AND 12(b)(6) P. 12 ...... • .. .�..®.e:... • A""f0M.WA.01187O0 91057 i 11".1571 • I • `� I • 1 principles of Younger-Huffman acted as a bar. 2 While the language of the Court in Huffman v. Pursue, Ltd. , 8 supr7, Judice v. Vail, supra, Trainer v. Hernandez, supra, and 4 Moore v. Sims', supra, does not specifically hold that federal i 5 "jurisdiction" is in question, that appears, to be at the very core 6 of tae problem. If not, what would be the reason for 7 distinguishing between Pullman abstention and Younger-Huffman 8 jabstntion? 9 That a federal court lacks "jurisdiction" in.matters involving; 10 state sovereignty, where the trial facts show that the • 11 constitutional claim can be raised and fully litigated in a civil 12 action in the state court finds support in the rationale expressed 18 in Allen v. McCurry, _ U.S. 66 L.Ed.2d 308, 101 S.Ct. _ 1 14 (Dec 9, 1980). In Allen et al. v. McCurry, supra, a majority of . 15 the L.S. Supreme Court had occasion to rethink the legislative • 18 irate t and .rationale which authorized federal jurisdiction in Civil 17 Righ s cases, (42 U.S.C. section 1983). In that decision, the 18 majo ity made it clear that, except where the claim was made that a 19 stat statute was unconstitutional on its face, it was not intended 20 by Congress that the federal courts should have jurisdiction over a 21 federal cause of action where the state courts stand ready and 22 willing and were available (as here) to allow full litigation of 28 the constitutional claim, See Allen et 'al. v. McCurry, supra, at 24 page 317: 25 "...To the extent that it did intend to change the balance of power over federal questions between the state and 26 federal courts, the 42d Congress was acting in a way thoroughly consistent with the doctrines of preclusion. In 27 reviewing the legislative history of S 1983 in Monroe v. Pape, supra, the Court inferred that Congress had intended a federal 28 remedy in three circumstances: where state substantive law was facially unconstitutional, where state procedural law was . 29 inadequate to allow full litigation of a constitutional claim, 'and where state procedural law, though ade uate in theor , was 80 inadequate ni practice. 365 U.S. at 173- 74. In short, the federal courts could step in where the state courts were 81 unable or unw 1 ing to protect federal ri h s. Id. , at 176." 82 MEMO NDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION TO WARREN!1 xELLOGG,T.S. DISM SS COMPLAINT PURSUANT TO F.R.C.P. •TTOO/RTO AT LAM ON 12(b) (1) AND 12(b) (6), P. 13 • �»�•�ND"*••"•"•SOX•I• \SECT RIMTOM,WMNI""TOM 1111O67 "M".""7" . I 1 J i . " . J' 1 (Our emphasis.) 2 See also, Patsy v. Florida International University, et al. , 634 8 Fad 900, at 910-912, cert. granted on October 5, 1981, and • 4 argument in the U.S. Supreme Court set for the week of March 1, 5 1982. In other words, it can no longer be claimed that every 6 person asserting a federal right is entitled to one unencumbered 7 •pport pity to litigate that right in a federal district court, at 8 I,•age 319: 9 "...The actual basis of the Court of Appeals' holding 1 appears to be a generally framed principle that every person ! 10 asserting a federal right is entitled to 'one unencumbered • 1 opportunity to litigate that right in a federal district 11 court, regardless of the legal posture in which the federal claim arises. But the authority for this principle is 12 difficult to discern. It cannot lie in the Constitution, which makes no such guarantee, but leaves the scope of the 18y sdiction of the federal district courts to the wisdom of Congress. And no such authority is to be found in S 1983 ' 14 itself." (Our emphasis. ) 16 It would seem, therefore, that the constitutional rule must • 16 evolve that, as to the federal civil rights claims herein which do 17 not qualify under the exception of Huffman, supra, and which • 18 interfere with the zoning power and the sovereign right of a state 19 to litigate zoning matters in its own judicial system, the party 20 . ust first assert the federal claim in a state action, and it is 21 irrelevant in this case that Playtime and Kukio jumped the gun and _ 22 !filed their declaratory judgment in the federal district court. 28 Accordingly, a federal court would not have jurisdiction to ' 24 hear a federal declaratory judgment action unless and until the ' 26 state has waived its privilege under the llth Amendment, Hans v. 26 Louisiana, supra; Ohio Bureau of Employment v. Hodory, supra; Moore 27 . Sims, supra, at 429, 60 L.Ed.2d at 1007; Samuels v. Mackell, 401 28 .5.. 66 27 L.Ed.2d 688, 91 S.Ct. 764, inasmuch. as Playtime and 29 Kukio h ve an adequate due process remedy in the state court. 80 /// /// /// 81 i/// /// /// 82 IMEMORAN UM OF POINTS AND AUTHORITIES • 'IN SUPPORT OF DEFENDANTS' MOTION TO • I WARREN•et KELLOGG.P.S. . DISMISS COMPLAINT PURSUANT TO F.R.C.P. ATIO""tT.AT LAW ' !SECTION 12(b) (1) AND 12(b)(6) P. 14 To�Wu ST.. SAO SOINI ua-u7" f • • 1 i i i , i 1 III i 2 HAVING FAILED TO EXHAUST THEIR ADMINISTRATIVE I REMEDY IN THE STATE ZONING PROCESS, PLAYTIME 8 AND KUKIO MAY NOT RELY UPON A "STRAWMAN" CONSTRUCTED UPON AN ERRONEOUS ZONING I 4 INTERPRETATION, AS A BASIS FOR FEDERAL . JURISDICTTON. 6 6 In what appears to be an attempt to bring themselves within ! 7 the favorable rule of law expressed in some recent decisions I 8 restricting the use of conditional use permit type zoning I 9 ligislation for adult book stores, see City of Imperial Beach v. I 10 Palm Avenue Books, 115 Ca1.App.3d 134, 171 Cal.Rptr. 197 and Ebel 11 v. City of Garden Grove, 120 Cal.App.3d 399, 176 Cal.Rptr. 312. 12 Playtime and Kukio have urged in their amended complaint that City 18 o Renton Ordinance No. 3526 provides a new use classification 14 w ich is not a permitted use within any zoning classification 16 currently in the City of Renton, thereby requiring them to obtain a 16 s ecial permit, conditional use or variance prior to commencement 17 of such use. That interpretation is contrary to the well 18 publicized administrative view of the City of Renton that an "adult 19 mgvie picture theater" is a permitted use within the 8-1 and more 20 ir}tensive land use zoning classifications currently in use within 21 tle City of Renton except to the extent that the specific use is 22 piohibited by the terms of said ordinance, and that there is no I . 28 n cessity for application for a special permit, conditional use or 24 variance prior to the commencement of such specific land use. 25 Habing failed to exercise their administrative remedy which is 26 av ilable to them in the state zoning process, Playtime and Kukio 27 ar concluded from urging that principle as a basis of federal 28 ju isdiction under the well reasoned case of Patsy v. Florida 29 In ernational Univ., 634 F.2d 900, cert. granted by the U.S. • 80 Su reme Court and argument schedualed for March 1, 1982. 81 Under its analysis in Patsy, supra, the Fifth Circuit, sitting 82 ME ORANDUM OF POINTS 'AND AUTHORITIES INSUPPORT OF DEFENDANTS' MOTION TO • DISMISS COMPLAINT PURSUANT TO F.R.C.P. WARREN It KELLOGG.P.S. SECTION 12(b) (1)• AND 12(b) (6) P. 15 •��"rn•t LAW100M.11co"en..P.O.w:.i. • RLRT"".w.nn"STOR aff•N7U i 1 , 4 lien bane, concluded that the Supreme Court cases upon exhaustion of 2 administrative procedures merely condemn a "wooden application" of 8 the exhaustion requirement in section 1983 cases. See also, Patsy, 4 Isupra, at page 909 where the Court concludes that the "Ninth I 5 1Cixicuit 'has not gone so far' as to infer a blanket no - exhaustion - I 6 lunder - any - circumstances rule from the Supreme Court cases. 7ICanton v. Spokane School District /18, 498 F.2d 840, 844 (9th Cir. , 8 ;1974)". 9 Dismissal of this cause of action will not be a "wooden 10 application" of the exhaustion requirement in section 1983 cases. 11 Here Playtime and Kukio create their own."strawman" by attempting 12 to impose upon the Defendants a construction of the Defendant's own 18 zoning code which is contrary to the construction placed upon the 14• zoning code by the City as evidenced by the allegations of the 16 Cora Taint for Declaratory Judgment under R.C.W. Chapter 7.24 filed -s. 16 in the King County, Washington, Superior Court. This Court can 17 takel judicial.notice of such construction based upon that pleading. 18 Plaintiffs ought to have sought a construction by the appropriate 19 administrative authority of the City pursuant to the provisions of . 26 the zoning code of the City of Renton, or in the alternative, should 21 Iave, sought the jurisdiction of the state court to obtain a construe- 22 tion of the provisions of this zoning ordinance. 28 CONCLUSION 24 Because of .the pending action in the state court, the federal 26 complaint should be dismissed for failure to state a claim upon 26 which federal relief can be based, upon abstention grounds, and for 27 lack of jurisdiction to decide the controversy which has been pleaded. 2$ DATED: February 22, 1982. 29 S - 80 I - DANI LLOGG of Warren. 6 .Kellogg, '• .S• 81 Attorneys for Defendants 82. MEMORANDUM OF POINTS AND AUTHORITIES • IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C.P. WARREN&KELLooc.P.S. mieworra AT LAW (SECTION 12(b)(1) AND 12(b)(6) P. 16 ,«So.nooreST..►.•.SOX sae Paton.WY"IMSTe•11S0I7 ass.S•7S I • �1 -) 1 1 IN THE UNITED STATES DISTRICT COURT FOR 2 THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 3 4 5 PLAYTIME THEATRES, ) 6 Plaintiff, ) 7 vs. ) . C82-59M ) 8 THE CITY OF RENTON, ) ) 9 Defendant. ) 10 11 12 DEFENDANT' S MOTION TO DISMISS 13 14 15 Held before the Honorable Philip K. Sweigert 16 United States Magistrate 17 18 19 9 :30 a.m. 20 March 12, 1982 21 22 23 Margaret V. Walkky Court Reporter 24 25 nnvrD roymnDmymr. Q£DnfTrm, Tt]r• f 7na 1 C7d-SRP.A crATTT.r micuTTT(:T!1T'• 2 1 APPEARANCES 2 3 FOR THE PLAINTIFF: ROBERT E. SMITH Attorney at Law 4 16133 Ventura Blvd. Suite E Encino, California 91436 5 6 JACK BURNS 7 Attorney at Law 10604 NE 38th P1. 8 Suite 105 Kirkland, Washington 98033 9 10 11 FOR THE DEFENDANT: DANIEL KELLOGG MARK BARBER 12 Attorneys at Law PO Box 626 13 Renton, Washington 98057 14 15 JAMES CLANCY 16 Attorney at Law 9055 LaTuna Canyon Rd. 17 Sun Valley, California 91352 18 19 20 21 22 23 24 25 n�vr. r.r_r.i... »,+ e.c.r vT#. TM • /,,na 1 a7d-Rt2L2A CS.'LTTT_T' Tdh CVTTAT/,T(M -1 -) 3 1 THE CLERK: This is in the matter of Playtime 2 Theatres v. City of Renton, cause number C82-59M. Counsel 3 m ke their appearances for the court. 4 MR. KELLOGG : Your Honor, for the city of 5 Renton, my name in Daniel Kellogg; and Mark Barber of our 6 office; and counsel who' s been admitted, James J. Clancy, 7 on my right. 8 THE COURT: Gentlemen. 9 MR. BURNS: Your Honor, for the plaintiff, my 10 name is Jack Burns and with me is Mr. Smith, who you know. 11 THE COURT: Very well . Mr. Kellogg, it' s your 12 motion so you have the laboring oar here. 13 MR. CLANCY: Your Honor, could you give me some 14 indication of what time you will allow on the motion and • 15 the argument and rebuttal? We could go on and on. 16 THE COURT: I think it certainly seems to me 17 that half an hour a side total should be plenty. 18 MR. CLANCY: Fine. 19 THE COURT: You can divide yours up any way you 20 like, but I think a half hour should be plenty, and there 21 are a couple of things that I can maybe help you on as to 22 what I 'm not particularly interested in hearing. I 23 certainly don' t want to hear much about the state court 24 complaint and the jurisdiction. 25 I want to hear more about abstention and ROYER REPORTING SERVICE. INC. (206)624-5886 SEATTLE, WASHINGTON 4 1 jurisdiction here than about the state court action. 2 MR. CLANCY: Yes, your Honor. Because we feel 3 that Huffman v. Pursue, Ltd . is so controlling, I 'd like 4 to spend a good deal of time on the explanation of that 5 c se, the policies involved and whythey are important in 6 resolving this conflict between state and federal 7 jurisdiction. Also, because they have subsequently been 8 developed along and assisted by Allen v. McCurry and 9 Parratt v. Taylor. 10 THE COURT: I would like to hear you on that. 11 I have a good deal of trouble with respect to the 12 application of this case of Allen v. McCurry and Parratt 13 v. Taylor. 14 MR. CLANCY: Well , it ' s putting together 15 principles which are espoused and have affected the 1983 16 action in this area . 17 I ' ll start out by, I ' d like to place the 18 court' s focus upon the type of statute or type of 19 ordinance which is involved, that' s 3526, and discuss the 20 powers of the city council in relation thereto. I think 21 the ordinance 3526 is a little different than one which 22 you would run into in the typical type of case, the adult-use 23 case, because it clearly is limited in its scope to that 24 whi h is visual. It has nothing to do with books or 25 things like that or content. It has to do with what you BOYER REPORTING SERVICE, INC, (206)624-5886 SEATTLE. WASHINGTON 5 1 ee or what meets the eye. 2 I ' ll read the first paragraph because those are 3 t e most important. It says, "An enclosed building used 4 f r presenting motion pictures or films, video cassettes, 5 c ble television or any other such visual media, " then - 6 there' s a restrictive clause, "distinguished or 7 characterized by an emphasis on matter depicting 8 describing or relating to ' specific sexual activities ' or 9 '$pecific anatomical areas, ' as here defined, from 10 o servation by patrons therein. " 11 Now, so actually the entire content is in that 12 ordinance, and it says that the city council is trying to 13 ge at a use which, according to my interpretation or at 14 le st one interpretation, relates to what you would say 15 was a public nuisance or a course of conduct, and it does 16 no relate to any specific film or the like. 17 Now, the question which is asked and a question 18 th t I pose before the court which I think should be 19 re olved in the state court is: What is "distinguished or 20 ch racterized by an emphasis on matter depicting, 21 describing or relating to" those activities? Now, the 22 activities that they describe are two-fold, but the first 23 typ of activity is the one which is, I would say, the 24 grossest type of visual display and it has three 25 categories : i -. •- 6 1 Human genitals in a state of sexual stimulation 2 or arousal. So you would say, "Well, that must mean or 3 does that mean lewd conduct, or does it mean something 4 other than that?" 5 The second is acts of human masturbation, 6 s xual intercourse or sodomy, and then you get the idea 7 w 11, certainly this is lewd conduct because you' re 8 talking about sexual depictions of sodomy, which is 9 generally a felony and contrary to public morals. 10 C is fondling or other erotic touching of human 11 genitals, pubic regions, buttocks or female breasts. If 12 the statute means what I think it means, that is a 13 nuisance-type operation, it then can be interpreted in 14 su , h a way that it means a pandering operation. 15 Now, one decision that would have to be made by 16 th state court was: "Distinguished or characterized by 17 an emphasis on matter depicting, describing or relating to 18 sp cific sexual activities, " does that refer to the use? 19 Does it mean it must be a course of conduct or a public 20 nuisance type activity, or does it refer to one specific 21 film? 22 At least it' s my view that in a state court, 23 the state court would have to look at it and say, 24 "Well, I 'm required to interpret this in a constitutional 25 manner and to give assistance to the court; so I will give nervy nrnnnmTvn Qrnt7Tnr Tvn Inna1C )A_SQQG err mm?r. t.7hcu Tmrmnm 7 1 it this interpretation, " and they might say, "Well, it 2 clearly means a course of conduct and it relates to a 3 pandering type activity. " So that then the burden of 4 proof or what the city council was aiming its use 5 ordinance at was at that type of activities. 6 Now, is this a valid area for the city council 7 to be in? Certainly it is, because the city council is 8 regarded as the trustee of the moral and business 9 environment of the city. The licensed business activities, 10 lawful business activity, they have a duty to see that 11 business activities remain lawful; because if they become 12 unlawful, they're required to rescind or repeal or revoke 13 the license. 14 Similarly, they are the trustees of the moral 15 environment of the city; and if there is a house of 16 pr stitution or a den of iniquity in the city, they are 17 under a duty and obligation to abate it as a public 18 nuisance. 19 THE COURT: Can I break in just a moment, 20 counsel? 21 MR. CLANCY: Yes. 22 THE COURT: It seems to me that, of course, at 23 the time we pursued the restraining order question, we 24 went into the question of this particular ordinance and 25 wha the plaintiffs really were complaining about here. ROYER REPORTING SERVICE. INC. (206)624-5886 SEATTLE, WASHINGTON 8 1 A ide from the possible questions of parts of the 2 ordinance that may be subject to interpretation or 3 ojerbroad and so forth and so on, we' re talking about 4 whether agreeably here we have a use, plaintiff' s use, 5 which is clearly within the confines of the statute. 6 In other words, I don' t think anybody contended 7 that necessarily what was being shown at the plaintiff' s 8 theatres was obscene; that it rather came within the area 9 which is protected to some extent, speech, protected 10 speech. I don't think there' s any question here that is 11 terribly important on this motion as to the city of 12 Renton's authority and obligation to do the kinds of 13 things that you' re talking about. 14 But what ' s that got to do with the motion? 15 MR. CLANCY: Here' s what I'm saying, your Honor, 16 it' s a use ordinance. It never can come into contest 17 until a particular use is changed in a particular manner. 18 For example, a theatre; say there' s five theatres 19 beginning operation around the city of Renton. This 20 ordinance doesn' t affect them until they change their use; 21 so it then becomes a problem, brings it in conflict with 22 this. 23 So that the only way in which the city can test 24 that in the state court, to get that interpreted by the 25 state court, is through the declaratory judgment action or BOYE REPORTING SERVICE, INC. (206)624-5886 SEATTLE, WASHINGTON 9 1 through an application, an application of the ordinance to 2 the activity. So it' s unusual, and that' s the question: 3 How do you get it in the state court? It should be in the 4 s ate court and it has come about through this 5 confrontation here, and the city now has moved in the 6 state court to see whether or not it should be applied . 7 Now, how would it be applied? It may be that 8 the plaintiffs here would start a course of activities . 9 The city wouldn't have to do anything criminally; so it 10 wouldn't be a criminal application. It may be a situation 11 in which the city then goes into state court and say they 12 ar showing this, they have shown it to this extent, 13 they' re in violation and it' s the land use violation. So 14 they would attack their course of conduct after they had 15 started, changed their regular course of conduct from the 16 reg lar film fare to something else. 17 THE COURT: Let me -- 1B MR. CLANCY: It takes some action on the part 19 of the theatre owner. 20 THE COURT: Let me see if I can get your 21 thinking in this area more clearly. Is it your contention 22 that in the Spokane Arcade case, had the city, or whatever 23 it is in that case, gone into state court subsequent to 24 the filing of the federal complaint and started a, quote, 25 declaratory judgment action, that the situation or the /nnF P 1A ennc ^1,1kmR1T17, raTcv77.7/`mn*. 10 1 result would have been different? 2 MR. CLANCY: Absolutely. 3 THE COURT: That is, that the Supreme Court 4 w uld have not affirmed? 5 MR. CLANCY: Well , your Honor, your Honor has 6 posed a question that I can give an answer to, but then it 7 poses another question; because I say that that is exactly 8 what occurred in two other states, in the state of North 9 Carolina in a case known as state of North Carolina ex 10 rel. and Drease v. Chateau Cinema X, and occurred in the 11 st to of Idaho. 12 THE COURT: Are both of these cited in your 13 br 'ef? 14 MR. CLANCY: No, because it related to 15 Spokane Arcade; it gets off into another area. 16 THE COURT: I think an answer to that question 17 is important in this case. 18 MR. CLANCY: All right, then, here' s what the 19 situation that I 'M offering to the court, is that the 20 identical state statute, the identical state statute was 21 passed as an initiative measure in the state of Washington. , 22 The identical state statute was passed by the state 23 le islature in the state of North Carolina and by the 24 state of Idaho. When it went through the state of North 25 Carolina, it was interpreted in a constitutional manner nnvF'R RF.AARTTW(: crnuTrr_ TNC_ (206)624-SRR6 SEATTLE. WASHINGTCN 1] 1 and not once, but twice, by the North Carolina Supreme 2 Court; they upheld the statute as applied. 3 In the state of Idaho, the case which is now 4 before the United States Supreme Court, the state of Idaho 5 said, "You can close it. " They interpreted it, upheld the 6 constitutionality unanimously and that now is up in the 7 United States Supreme Court . 8 THE COURT: That' s not what I 'm asking you, 9 counsel . What I 'm asking you is: In those cases, was 10 th re a situation where the federal plaintiff filed under 11 1983 in federal court and subsequent to that filing, the 12 city or local officials or state officials, or whoever you 13 were talking about, started a declaratory judgment action 14 in their state court and then contended that the 15 abstention doctrine applied? 16 MR. CLANCY: Well, your Honor, that is what 17 happened in North Carolina because -- 18 THE COURT: I 'd like to see that case. 19 MR. CLANCY: In North Carolina there' s reported 20 cases that I can give to your Honor. There' s the North 21 Carolina case which went up through the state system, was 22 applied, was upheld as constitutional. They also had a 23 federal action which_ had a federal decision, and it' s now ; 24 in the court of appeals. It was stayed there and I don' t 25 think it has gone any further. I • I • • 12 1 There' s at least two reported decisions which 2 rel to to that matter. So I can give your Honor the 3 Chateau Cinema X, which is a North Carolina case upholding 4 the statute, and the two decisions, one of the Fourth 5 Circuit and the Federal District Court, which ruled upon 6 the same statute. 7 But the point I'm saying is the statute that 8 they were involved in is the identical statute which was 9 passed as an initiative in the state of Washington. So 10 that I am saying that the identical statute that you' re 11 talking about that went through the Ninth Circuit and was 12 affirmed here has these other authorities, not only North 13 Carolina and in Idaho, in which it was constitutionally -- 14 it was interpreted in the state court -- 15 THE COURT: Well , the Ninth Circuit held it • 16 unconstitutional . 17 MR. CLANCY: Well, yes, but here -- 18 THE COURT: They were affirmed by the Supreme 19 Court. 20 MR. CLANCY: Yes, but at the same time, as 21 against that, you have the situation where the United 22 States Supreme Court has noted jurisdiction in the Idaho 23 case, which means that the note of jurisdiction at least 24 ays it' s a substantial federal question as to that 25 statute. So that has the effect of counteracting what 13 I • 1 they did on a simple affirmance without argument in the 2 Washington case. 3 THE COURT: It certainly may be a portend of 4 things to come, I don ' t know; but certainly if Justice 5 Burger and Justice Rehnquist have their way, I .think the 6 dissent in Spokane Arcade, if that eventually becomes the 7 law, I don't think it is at this point, we may have an 8 entirely different situation here. 9 MR. CLANCY: Yes, but what we're arguing at 10 this point is that the federal court in relation to the 11 abstention doctrine should, when the same ordinance can be 12 taken and will be taken through the state court where the 13 state court can interpret, flush out, give substance and 14 meaning to something, the city council, it should . Of 15 course, what I 'm asking to you rely upon, is that your 16 Honor cannot interpret because it -- 17 THE COURT: I agree. 16 MR. CLANCY: You don' t have a duty and 19 obligation, you can't, you don 't have the power; whereas 20 the state courts are under a duty, an obligation 21 constitutionally, not only state constitution but under 22 federal constitution, to interpret the ordinance in a 23 constitutional manner so long as it will not offend any 24 other principles. 25 I suggest that the manner in which this 14 1 or inance can be enforced, that is through civil 2 pr cedures rather than true criminal procedures, then you 3 ha e the possibility that it can be fleshed out in the 4 st to court; and the court here should abstain and permit 5 th state court to do it along the lines that I 've 6 su gested. That' s why I said -- 7 THE COURT: Well, but there is an issue. The 8 o ly issue that' s really before the court in this case is 9 w ether -- I agree with the principle that the federal 10 c urt is not going to authoritatively interpret the 11 p ovisions of that ordinance or a state statute. We 12 s ouldn t. But it does have the obligation, first of all, � ..� 13 t determine whether facially or as applied to the 14 p rticular person involved in this case on its face, 15 without being subject to any limiting construction, to 16 rake it constitutional, and that issue has not been 17 determined in this case; but I think the court has that 18 Jbl igation. 19 Now, one of the points that the plaintiffs in 20 this case have raised is that the effect, the effect of 21 his particular ordinance would be to so limit the 22 pportunity for distributors of adult film fare to present 23 hat and for consumers that wish to see it to see it, that 24 on its face it' s unconstitutional and cannot by any 25 limiting kind of construction be made constitutional . Tie,n 1.1nc 1A7d-SRRA CFATTT.r _ WACNTnGTON 15 1 That' s an issue that' s before this court. 2 If the court should decide that it' s not on its 3 face, that it is at least for the purposes of this court 4 on y a time-place restriction, a legitimate zoning 5 re triction, then if the other problems that it has might 6 re uire some kind of construction by the state courts, 7 then the court has the obligation to dismiss it. 8 MR. CLANCY: Yes, your Honor. 9 THE COURT: And send it back for that kind of 10 t ing, or at least to say that you fight it out in state 11 c urt; but that determination has not been made in this 12 c se. 13 MR. CLANCY: Well , I think we' re in essential 14 a reement. What your Honor is talking about is the 15 H, ffman type situation and -- 16 THE COURT: We haven' t even gotten to that yet. 17 Well , all right, yes . 18 MR. CLANCY: The third part it says, "Flagrantly 19 nd patently violative of every express constitutional 20 provision and every clause, sentence and paragraph and 21 whatever manner and against whoever an effort may be made 22 o apply it, " and that was interpreted in Stecher v. Askew, 23 32 F.Supp. 997 . Is it possible to apply this in a 24 onstitutional manner? 25 Now, if you look at the substance of the BOYER REPORTING SERVICE, INC. (206)624-5886 SEATTLE, WASHINGTON 16 1 ordinance, the main issue is : Was the city council within 2 its power when it says within a thousand feet of a school 3 that you may not have these depictions of sodomy or this 4 pandering type operation, pandering type depictions. Then 5 th effect of that, my argument would be, that they have 6 the power; that the net effect of this continuous course 7 of conduct in that area is to create an instruction to 8 those around here that this is entirely consistent; that 9 is, that there' s nothing wrong with the constant 10 depictions on the screen of sodomy, et cetera. 11 Now, the United States Supreme Court has said 12 in its obscenity cases, in essence, and I can give you the 13 cites on it, that if you can' t do it in three dimension, 14 you can' t photograph it and do it in two dimension, 15 notwithstanding the freedoms of motion picture films and 16 tre like; meaning that if the depiction of sodomy in three 17 dimension would be open and lewd conduct and could be 18 p osecuted criminally, then if you photograph it and put 19 on the screen, then the same rules of law apply to that, 20 and that' s public lewdness . 21 What the city council is attempting to do is to 22 g t at this course of conduct which creates an instruction 23 to the children within a thousand feet that there' s 24 nothing wrong with it, when they go to school and they 25 learn the contrary moral lesson or instructional lesson in BOYER REPORTING SERVICE. INC. (206)624-5886 SEATTLE. WASHINGTON 37 1 the school . 2 Your Honor can take judicial notice of the 3 fact that what we' re talking about is two theatres which 4 are within a certain area, the residential area and the 5 sc ool area, and the question is : Is the city council 6 au horized to say that, "You may not have a course of 7 conduct of these depictions at that type of a theatre. "? 8 Th is a question. 9 Giving it a limited construction, forgetting 10 about that mile area from school , just take the lesser of 11 the three, and the question is: Can that. be 12 constitutionally applied? Is that a proper limitation on 13 this type of activity? And I submit that when you balance 14 the powers of the city council against powers of free 15 speech and the like, you say it is a probable restriction 16 in accordance with the Stevens ' rationale in the case 17 w ich we 've cited; that the Detroit type cases, this is 18 a other application of his reasoning in the Detroit type 19 c se. 20 THE COURT: That ' s right, but one of the issues 21 before this court is whether this is a Detroit type case 22 r whether it is the type of case involved in either the 23 Purple Onion case or in the case that' s recently been 24 decided by the -- is it Minnesota? 25 MR. CLANCY: Yes, your Honor. t 1 18 1 THE COURT: By the district judge in Minnesota. 2 Th is an issue in this case. Which is it? 3 Now, before you get too far along, I want you 4 to address a couple of things, so let me ask you about 5. them before your time is up . First of all, I have some 6 problem with, and maybe I don't see this case so clearly 7 as a Huffman v. Pursue case as you do. Huffman v. Pursue 8 a d the cases that came after it, of course, applied 9 Younger to civil cases or cases which were called 10 quasi-criminal in nature. 11 All of them, without exception, and I think 12 m re probably at least the most recent Supreme Court cases' ) 13 t eatment of that situation, all of them involve 14 e forcement proceedings in the state courts; not one of 15 t em involved a declaratory judgment action. They 16 involved enforcement proceedings; and in each case, the 17 anguage of the court, of the Justice that wrote the 18 particular opinion, seemed to dwell on the fact that 19 despite the fact that they' d extended Younger to cases 20 that weren' t purely criminal, that they were all 21 enforcement type proceedings . That' s not the case here . • 22 MR. CLANCY: Oh, it is, your Honor. That' s 23 hat I said. The Younger case was a situation wherein the . 24 civil court to abate a civil nuisance -- 25 THE COURT: The Younger case? BOYER REPORTING SERVICE, INC. (206)624-5886 SEATTLE, WASHINGTON 19 1 MR. CLANCY: The Huffman v. Pursue. 2 THE COURT: Yes, they were in civil court to 3 abate a nuisance; that' s an enforcement proceeding. 4 MR. CLANCY: They were going through a civil 5 pr cess. There was no law enforcement, no arrest, no 6 prosecution, no complaint. It was saying that this place 7 is a public nuisance, we want to try it, we want you to 8 declare it to be a public nuisance and after you've 9 declared it to be a public nuisance after trial , you then 10 abate it. 11 Now, that ' s what exactly did occur, because you 12 h d a full trial before they moved into the federal court. 13 There was a final judgment saying, "The place is a public 14 nuisance and it shall be enjoined. " The day after, they 15 moved into the federal court, and Mr. Smith was the 16 a torney on the other side, with a 1983 action and we 17 complained that that was impossible to stop the final 18 judgment of the state court. 19 They had to take it up through the state system. 20 They had a civil judgment that this place was a public 21 nuisance and should be abated. No criminal situation. It 22 was just a declaratory judgment action that they could 23 ave taken through the -- 24 THE COURT: Now, what was a declaratory 25 judgment action? nrwr.n prpnbmTmn ernuTt ' TA1r. f 7r1A 1A1A-BABA AFATTT.T` _ wacuTmmmn J 20 1 MR. CLANCY: Well , it was the equivalent of it 2 because the common pleas court had held that based upon 3 the fact it was. a public nuisance and should be abated, 4 and they did abate it by injunction. So it was the 5 equivalent of a declaratory judgment that the place was a 6 public nuisance and should be abated. 7 Now, this is the same type of a situation in 8 which they're talking about a public nuisance type, the 9 pr sence of a public nuisance type arrangement through use 10 of the property, and it would be proceeded along in the 11 sane direction through declaratory judgment after they had 12 commenced the use which was in violation of the statute . 13 Your Honor, it' s not a prior restraint that 14 th y should show a pornographic film knowing that if they 15 sh w it, they thereafter are going to be prosecuted 16 criminally and penalized for that act. So the mere fact 17 t at you do have some type of an action over them is not a 18 prior restraint. 19 They could say, "Well, the misdemeanor statute 20 m king exhibition of an obscene film a public nuisance, a 21 prior restraint, because I don' t know what is a public 22 nuisance and the only way I can find out is to show it and 23 t en to be convicted and receive the penalty. Therefore, 24 i is a prior restraint. " That isn' t the case at all . It 25 shouldn't be in this situation either. BdYER REPORTING SERVICE, INC. (206)624-5886 SEATTLE, WASHINGTON 21 1 THE COURT: This isn' t a public nuisance 2 ordinance. 3 MR. CLANCY: They shouldn't say it' s a prior 4 restraint. If we do move into this area and we depict 5 adult uses which may be in violation of -- and make it a 6 public nuisance, they thereafter will start a declaratory 7 judgment saying that this use is. unlawful and should he 8 terminated; that is•, that he is now starting this type of 9 a use in this area. It is an improper use or the 10 e uivalent of a public nuisance, and therefore, we shall 11 say that it' s an improper use and you' re enjoined, but 12 that' s an injunction civilly. It' s the equivalent of a 13 public nuisance action in the Huffman type situation. 14 They need not proceed criminally. 15 There' s a general ordinance which says the 16 violation of the use ordinance is a misdemeanor, but your 17 Honor can say that the application of that misdemeanor 18 provision to this type of a situation would be 19 nconstitutional . But there' s nothing to prevent the use 20 rdinance from remaining on the books and being 21 interpreted further in a civil action, in a declaratory 22 judgment, and therefore, which would make it the 23 quivalent of a Huffman v. Pursue, Ltd. type of situation. 24 If they then commence their activity that they 25 threaten, and if they show "Deep Throat" and "The Devil ________ erne •.TwP•VTsle.mr1AT 22 1 and Miss Jones, " there' s one of two things: criminal 2 prosecution, or it may be that they would wait to see if 3 this is going to be the course of conduct. Is this a lewd 4 situation which contravenes that type of use, or is it 5 just a one-time thing? 6 The city can then say, "Is that use proper or 7 is it improper?" If they continue it time after time so 8 th t the city then regards it as a public nuisance, they 9 co ld file for a declaratory judgment that it is a public 10 nu sance because -- 11 THE COURT: This isn' t a public nuisance 12 or inance, counsel . 13 MR. CLANCY: Pardon me? 14 THE COURT: This isn' t a public nuisance 15 ordinance; it' s 'a zoning ordinance, isn' t it? 16 MR. CLANCY: One of the constructions that 17 c uld be given to it is that the language thereafter is 18 i terpreted to mean a course of conduct, and that the use 19 which is prescribed is a course of conduct type of use, 20 a d that has to be done by the state court. 21 Certainly, your Honor could say, "Well, the 22 s atute can be constitutionally interpreted by the state 23 c urt. If the city attempts to use a criminal process 24 against it, this court is open for reconsideration of the 25 criminal application of the criminal aspects . " If the BQYER REPORTING SERVICE, INC. (206)624-5886 SEATTLE, WASHINGTON 23 1 city intends to proceed civilly to enforce the use through 2 a declaratory judgment, it would be in the state court; 3 and the state court can enforce action. 4 Your Honor can say under Parratt v. Taylor and 5 th McCurry case, "Really you have not supplied the 6 sufficient facts in this complaint to state a cause of 7 actLion under 1983 . If thereafter something is done, if 8 someone files a criminal action against you which is 9 unfounded, you can come back and file a new complaint. 10 With those facts, I can then say this is clearly a 1983 11 action; but right now you have not met the pleading 12 requirements, Mien v. McCurry and Parratt v. Taylor, 13 which says not every possible constitutional violation is 14 a 1983 violation. " 15 That is the main problem in the conflict 16 between the federal and state court. If you regard every 17 possible constitutional violation as giving you entry into 18 t e federal court, then you have no state court 19 jurisprudence . 20 THE COURT: Well , I certainly have read those 21 cases and I don' t believe that Parratt v. Taylor or Allen 22 v. McCurry have anything to do with this case other than 23 the fact that in all of those cases and in all of these 24 cases, by that I mean Younger and Judice and all of the 25 rest. of them, the court does discuss in a broad sense, it ROYER REPORTING SERVICE. INC. (206 )624-5886 SEATTLE. WASHINGTON 74 1 does discuss federal versus state commity, federalism and 2 principles of that kind . 3 Those things are all discussed in all of those 4 cases but other than that, Allen v. McCurry and Parratt v. 5 Taylor have absolutely nothing to do with this case. 6 MR. CLANCY: Well, your Honor, that plus 7 Martinez v. California. In Martinez v. California the 8 case went all the way up on the 1983 action and the United 9 St tes Supreme Court said, "It' s a situation in which 10 there' s constitutional rights but you haven't pleaded a 11 1983 violation. " So that you do have to look at the 1983 12 c mplaint to see if they have so framed it with sufficient 13 f cts to say that you should get involved in this type of 14 a complaint, or can they come back later? 15 Your Honor, I 'd like to give a citation. I 16 didn' t have the federal cite but I got it, it' s Alfonse 17 R ichenberger v. Pritchard, 660 F.2d 280, 1981 . Rehearing 18 d nied, 10-21-1981 . That' s a Seventh Circuit case. They 19 go off on the situation of failure to state a claim upon 20 w ich relief can be based and I think that that has got to 21 be the ultimate -- 22 THE COURT: Do you contend here that the 23 plaintiffs have failed to state a claim for relief on 24 which -- 25 MR. CLANCY: Yes, your Honor, that' s exactly 25 1 wha we say because they have not pleaded sufficient facts 2 to et around Huffman and the problem which is created -- 3 THE COURT: Well, that' s what I 'd like to know. 4 That' s the issue that I see central to this particular 5 motion to dismiss, and that is the applicability of the 6 Younger and Huffman line of cases . 7 MR. CLANCY: Well , the Younger and Huffman -- 8 th Huffman, I say the Huffman type case but it very 9 definitely is a civil case, the Huffman type case does 10 hinge upon, and that' s what this case hinges upon, upon 11 th t, "Flagrantly and patently violative of every express 12 co stitutional provision and every clause. " 13 THE COURT: I 'm not talking whether there might 14 be an exception to Younger. There are clearly situations 15 where Younger applies, but because there are a couple of 16 exceptions to it, you might be able to nevertheless 17 overcome the strictures of Younger. I 'm not talking about 18 t at. 19 I want to know and I think the important 20 d .termination in this case is whether or not that line of 21 cases that indicate that the federal court which has 22 jurisdiction of the persons and jurisdiction of the claim , 23 otherwise should not exercise or assert that jurisdiction 24 because of the Younger, Huffman line of cases? That' s the 25 issue in this motion. A AIITn ......w CC1lL f1111TTT n _tT w -.T..a w� T 26 1 MR. CLANCY: Well , certainly there' s no bad 2 fai h, certainly there' s not the irreparable injury that' s 3 gre t and immediate in Huffman; and the question is, that 4 thi d question: Have they succeeded there? And we have 5 posed to the court the practical problems which arise in 6 cit government in their efforts to cope with the 7 situation and to flesh out a proper type ordinance, zoning 8 or inance, which can be administered in the state court. 9 The federal courts have an overriding concern 10 for constitutional requirements and Parratt v. Taylor and 11 McCurry are now -getting back to -- the original rationale 12 is that you really have to show those three requirements, 13 th t the state court can' t handle it. You have to ask 14 yo rself: Is this the type of case that a state court 15 sh uld have because it relates to state sovereignty and 16 p lice matters which should be in the state court? 17 That' s what I 'm saying is in Parratt v. Taylor 18 and Allen v. McCurry. The court is actually for the first 19 time saying, "Well, the real purpose behind the 1983 20 action was really to give a cause of action in a certain 21 a ea, and we don' t want to enlarge our jurisdiction as to 22 t ose areas where it' s more properly considered in the 23 s ate court. For that reason, they go into the analysis 24 of the legislature in creating this statute. 25 So that you can pull back and say, "Well, it BOYER REPORTING SERVICE, INC. (206)624-5886 SEATTLE, WASHINGTON 27 1 can be handled by the federal court. " The federal court 2 ca say, "Well, you haven't pleaded the facts that show 3 that you 'can' t get some relief in the state court and I ' ll 4 dismiss it on that basis; but if thereafter some 5 additional facts are alleged by you which show that you 6 are not being treated properly in the state court for a 7 number of reasons, you come back and plead a situation and 8 I ' ll look at that; and then it may be that I ' ll have to 9 consider your situation but right now, you can be shown 10 r gular film fare, you can go into the course of conduct 11 you want to go in, and it may be that nothing will occur 12 except that the declaratory judgment will be filed and the 13 court will say, 'Your use is improper under state statute. 14 T is is what it means . You've got to stop it now. Here 15 you may not do that. '" 16 At the end of that you will then have what is 17 known as stare decisis. You will then have an example of 18 what the city and government is attempting to do because 19 it would be fleshed out in factual trial facts . 20 Now, everything is done in the abstract. After 21 this case is over, without the actual application of facts, 22 nobody knows what the case means . If you permit it to go 23 back in the state court, he does go ahead and move forward 24 and shows his regular films, then goes beyond, the city 25 hen lets him go on, and says, "All right, I 'm going to 28 1 tak you down in the state court and establish this . " 2 And the state court looks as this, and says, 3 "Th' s is the proper area . I declare that the exhibition 4 of that type of conduct to be proscribed by this use 5 within this narrow distance, and therefore I enjoin it. " 6 So then he knows, he then knows after the trial that he 7 can' t do it, or the city then knows that it was wrong, and 8 ev rybody will know on the basis of stare decisis that you 9 can or you can' t do this type of thing. 10 But that traditionally is the area in which the 11 st to courts can interpret a statute and they can apply a 12 gi en statute to given facts. 13 THE COURT: I think that' s about the end of the 14 time that you have, counsel . I ' ll hear from the other 15 side. 16 MR. CLANCY: Thank you, your Honor 17 MR. SMITH: If it please the court, 18 preliminarily I wanted to say that the case that Mr. 19 Clancy referred to out of Idaho, the U.S. Supreme Court 20 took jurisdiction of, a motion to dismiss has been filed 21 b, the parties who appealed that case. So it' s unlikely 22. that the Supreme Court will have a chance to reconsider 23 their rulings in Spokane Arcade. 24 What we have, your Honor, at issue, as I 25 erceive the court' s questioning: Is this a Younger v. BOYER REPORTING SERVICE, INC. (206)624-5886 SEATTLE. WASHINGTON 29 1 Harris abstention issue? As Mr. Clancy pointed out, both 2 Mr. Clancy and myself were the original counsel in Huffman 3 v. ursue and, of course, since we were in it, we have a 4 different perspective I suppose than somebody who might 5 re d it in a law book; but nonetheless, your Honor, 6 Hu fman v. Pursue was the first case where the U.S. 7 Surireme Court said in essence that you can extend Younger 8 to more than just a plain four-square criminal proceeding. 9 As your Honor has already perceived in its 10 questioning and pointed out, the court held that this was 11 a quasi-criminal kind of case in its application, and that 12 in the aid and enforcement therefore the court would stay 13 its hand, particularly where my client, Pursue, Ltd . , 14 bought an existing theatre and the operation of a theatre. 15 The person who had had the theatre had been the 16 p rson involved in the litigation. We bought it, so to 17 speak, and knowing that there was an appea]. time running, 18 we chose, instead of going into the Ohio court, to go into 19 the district court, because, as I said at that time, Young 20 had not been extended to civil actions. 21 During the period of time we were pending going 22 into the U.S. Supreme Court, the state of Ohio 23 uthoritatively construed its statute to limit the 24 onstruction to the film declared to be a moral nuisance, 25 not to the establishment itself being a total moral nhvry DrDnvmTmn CPRUTrr_ TMr_ (W)A)624-SRS6 SEATTLE. WASHINGTON 30 1 nuisance. 2 So from Huffman, where do we go? Well, there 3 has been an extension of -- 4 THE COURT: Let me ask you this question that' s 5 just a sidelight, but is it Hoffman or is it Huffman? The 6 reason I ask that question, you' ll notice in the Law 7 Edition Reports anyway that at one place it' s called 8 Ho fman, and at other it' s called Huffman . 9 MR. SMITH: It was Huffman, HUFFMA N. 10 THE COURT: Thank you. 11 MR. SMITH: Younger is an exception to federal 12 jurisdiction and then, of course, there are exceptions to 13 Younger, if Younger would otherwise apply. I think we ' re 14 at the threshhold question whether Younger even applies . 15 The argument is made that the court should stay its hand 16 pending the exhaustion of administrative remedies . We do 17 not have any administrative action pending as there have 18 ben in other cases that the U.S. Supreme Court considered. 19 Gibson v. Bearhill had to do with Alabama and 20 , t`le Board of Optometrists, and in that case the Supreme 21 Court held that it was not necessary to exhaust 22 administrative remedies. Mr. Clancy has pointed out that 23 there was agreement with Mr. Kellogg that the Fifth 24 Circuit has taken a contrary position in the Patsy v. 25 Florida International University case which was argued in f1/,1\/T1T 1TTT n ..T\T/1 !T T'.T 1111T AT1 T\T/1 IAAL L•1A CfAL nwtwT/.n T1 •.T1 IT,.,\ A T/ . 31 1 the Supreme Court on the second day of March, 1982; and, 2 of course, that is the only jurisdiction in the country 3 that has required an exhaustion of remedies. 4 The Ninth Circuit, by which this court we 5 suggest is bound to till the Supreme Court rules otherwise, 6 versus in the Canton v. Spokane School District case, the 7 exhaustion of administrative remedies is not required 8 unless the administrative remedy is fully adequate to 9 obviate the remedies present in the civil rights suit. 10 The remedy can not be presumed but must appear from the 11 record. 12 Of course, it' s not a ruling of law and it' s ) 13 not stare decisis and it' s not res judicata, but as the 14 court may he aware from the newspapers, Sandra O' Connor 15 appeared before 'congress this week on March the 9th and 16 tes ified that the congress should pass a law which 17 requires people who claim civil rights violations to seek 18 available administrative remedies before they file federal 19. lawsuits . She seems to have continued her hand on the 20 vote . 21 THE COURT: Do you think that Justices Burger 22 and Rehnquist in their dissent in Spokane Arcade have 23 gained a sister? 24 MR. SMITH: No, I think the reverse is true. 25 She' s saying in essence to congress, I think, "Please pass BOYER REPORTING SERVICE. INC. (206)624-5886 SEATTLE, WASHINGTON \ _ 32 1 a law that says that you must exhaust administrative 2 r medies, because we on the Supreme Court cannot so find 3 it within the context of the jurisprudence now standing. " 4 THE COURT: That certainly may be. 5 MR. SMITH: As the court is aware, Justice 6 O'Connor did vote with the majority in the Spokane Arcades 7 case which was one I think of her first cases in that 8 regard . So', your Honor, the Supreme Court has not gone so 9 far as to say we must exhaust administrative remedies, but 10 let' s just chat briefly about administrative remedies. 11 Incidentally, your Honor, we ' re only talking 12 about one theatre; we' re not talking about two theatres . J 13 It has never been raised by our complaint that the 14 Playtime Theatre intends to operate both theatres, which 15 are virtually across the street, as adult theatres . Only 16 one of them, as expressed in the pleadings, would be 17 offered as adult film fare if we could prevail in our 18 litigation. 19 All right, the concept that we' re dealing with 20 with regard to the administrative remedies would be that 21 we have to seek either a zoning change, which is an 22 affirmative action by the plaintiffs, or a variance . 23 Now, there is a provision which says, "Okay, 24 you must go to a hearing examiner. " And, your Honor, 25 consistent with Freedman v. Maryland and Kingly Books v. 33 1 Brown, there is a definitive time period within which 2 decisions must be made; X number of days to present your 3 c'aim, X number of days for the hearingexaminer to decide, 4 all of that is built in. 5 The procedural due process, we' re dealing with 6 p tentially First Amendment matters, is built in that far, 7 b t then it ,goes to the city fathers and what time frame 8 is built into that? None whatsoever. They can hold on to 9 it for two years; they can continue to have new hearings 10 whenever they want. There is no requirement of an 11 authoritative time table which would insure the plaintiff 12 in this case a yes or no answer in this context. 13 So we say we don't have the burden of showing 14 th adequacy of the state administrative remedies, because 15 th se parties are moving on a motion to dismiss and 16 consistent with the Ninth Circuit decision in the Spokane 17 Sciool District, but it doesn' t affirmatively appear of 18 record. 19 If the court will remember, one of the issues 20 in the Bremerton case which was raised before the court, 21 there was the failure to have time periods within which we 22 ma be assured of an authoritative decision to go forward. , 23 Your Honor, if there was any suggestion heretofore about 24 this case, that it was content neutral, I hope that has 25 be n dispelled today by the comments of counsel who 34 1 clearly points out that this is designed to, in essence, 2 be a subterfuge for a public nuisance kind of ordinance. 3 We think that we have pleaded our case 4 correctly under Dombrowski v. Pfister, I think we have 5 p eaded our 1983 action, and I think we have answered as 6 b st we could the concept of abstention; and your Honor, I 7 don' t know of any other law that I can cite to the court 8 o her than what I have done and Mr. Burns has done, and I 9 w.uld then rest on our pleadings. 10 MR. CLANCY: Your Honor, may I respond? 11 THE COURT: If he' ll give you part of his time . 12 MR. SMITH: We' ll give him part of time, your 13 Ho or. 14 MR. CLANCY: Fine. Thank you very much, Mr. 15 Sm; th. Your Honor, there' s only a couple of things . I 'd 16 li e to explain to the court how that administrative 17 re edies argument came into the case. It did not come 18 into the case from the city side. 19 THE COURT: Yes, I understand. I ' ve read the 20 br'efs in that respect, because of the amended complaint. 21 MR. CLANCY: But there' s something beyond that. 22 Th re wa5- in the testimony of David Clemens on January 23 29. 11, 1982 , which your Honor has a copy of the transcript, 24 pa e 54, it was clearly brought out; that at the top of 25 the page 54, lines 1 to 4, the answer was, "As far as the 35 1 zoning of the city of Renton is concerned an adult theatre 2 would be an allowable use within the areas designated 3 industrial park. " 4 So that the entire testimony of the record 5 which was available to them before they pleaded this 6 co ditional use as a sham was known to them. So that 7 actually wasn' t a situation in which they had to go in and 8 ask. They had understood that, or they should have 9 understood it from the hearing on the temporary 10 restraining order where they called on the testimony of 11 Mr. Clemens, and he says that it' s a permitted use and put 12 the city on the record. 13 Now, for them to come in and amend their 14 conplaint in the federal court, and the reason they did it 15 was there are cases in California which have said if you 16 go to a conditional use in this type of situation, you' ve 17 got problems . I can give your Honor the citations; 18 th re' s at least three. 19 So that in an attempt to plead themselves into 20 that type of situation where the city would be caught and 21 not remembering that the city had gone on the record, they 22 then pleaded these facts which we say were a sham; and 23 that had they known, they can' t raise that defense, 24 because if they'd gone in and asked, well, at that time we 25 had not examined the record or we should have indicated to BOYEIR REPORTING SERVICE, INC. (206)624-5886 SEATTLE, WASHING':ON 36 I 1 the court that it already was on the record, on the 2 federal court record, that it was a permitted use. That 3 was the reason. 4 Now, let me say something about the Huffman v. 5 Pursue, Ltd . and what did occur in that case, an Idaho 6 case, to point up what is a monumental problem in 7 state-federal relationships. 8 The state of Ohio started an action under their 9 red light abatement statute which said lewdness, 10 prostitution, the exhibition of an obscene film is 11 lewdness . They started the action; they had a complete 12 trial in which there was a course of conduct I think of I 13 seven weeks, 14 films; the court held all of them to be 14 obscene and abated it as a public nuisance. 15 There was a final judgment. The final judgment 16 was entered. The appellate time started to run. Mr. 17 Smith was the attorney of record in that case. The - 18 inerest then was transferred to Pursue, Ltd . which was a 19 corporation which was newly formed by them. In fact, it 20 was so hot, the proceedings were not completed in the 21 state of Delaware yet. 22 They went into the federal court and then 23 started litigation on a 1983 action in an attempt to 24 enjoin the functioning of the state statute. Well, they 25 were successful , because they did get an injunction; but -, 37 1 n t only that, but they filed a removal action in which 2 they removed the judgment. The argument was made by the 3 state of Ohio, you can' t remove something that has gone to 4 a judgment, but that didn' t make any difference; we moved 5 immediately here to try and get it remanded. 6 That wasn' t acted upon until the case was 7 decided on appeal in the United States Supreme Court. So 8 they stopped the appellate court, they stopped the 9 execution of the judgment, they stopped all of the state 10 action. They went into the federal court, they got the 11 injunction, and all of these abstract issues of First 12 Amendment rights, it went to the United States Supreme 13 Co rt . 14 The United States Supreme Court was looking at 15 th nuisance abatement statute and they gave us, we won 16 th battle but we lost the war, because when they remanded 17 it to see whether or not they had jurisdiction to enter 18 re ief, we got back in the trial court and we said to Mr. 19 Smith, "Well, let' s go at it, " and Mr. Smith says, I 20 can' t find my client. He' s not there. " I says, "Well, 21 wi 1 he pay the costs?" He said, "He won' t even pay the 22 cost in the United States Supreme Court, because I don' t 23 kn w where he is. " 24 So we tried to get it to go back and we asked 25 the trial court to decide it so we could have something pnvFR prpnRTTmn SERVICE. INC. (206)624-5886 SEATTLE. WASHINGTON 38 1 definitive. The judge dismissed it as moot. The only way 2 w could have boosted it to the United States Supreme 3 C urt is to take another appeal, in which instance there' s 4 a question of whether or not you would ever have been 5 h and in the United States Supreme Court. 6 So as a consequence, it stopped what would have 7 b en the resolution of a state problem had that nuisance 8 abatement application gone through the state court. Today, 9 people don' t know in the state of Ohio what you can do 10 under that statute because that appellate decision had 11 been stopped. It was the closure of a theatre. 12 All right, now, let me say, the Idaho case they 13 filed, the state of Idaho passed the identical statute 14 th.t they have in Washington, word for word. It was 15 ap lied twice to two theatres. U.S. Marketing, 16 Po nographic Book. Stores . They went to the trial court. 17 The trial court said, "I can't close it as a public 18 nuisance. " He said abatement and he wouldn' t give costs 19 to the attorney general . 20 They went to the Idaho Supreme Court and they 21 said there' s nothing wrong with closure after trial when 22 they find it to be a public nuisance, because it' s closure 23 or a penalty for past conduct. Further, the state 24 le islature said they' re entitled to attorney fees, "You 25 gi'e them full attorneys fees. " What did they do then? 39 1 They then went into the federal court and said, 2 "We want to enjoin enforcement of the statute after this 3 d cision of the Idaho Supreme Court because of the 4 Brockett case, " and the judge there said "Well , wait a 5 m�nute now. " He said, "I 've got to abstain. You've got a 6 d ' rect appeal from the Idaho Supreme Court to the United 7 S ates Supreme Court. I 'm going to abstain, " and further 8 h said, "I think there may be collateral estoppel here. " 9 So then forced with that situation, they took a 10 d ' rect appeal to the United States Supreme Court and, low 11 ard behold, the United States Supreme Court noted 12 jurisdiction in the closure issue and now they have moved 13 t dismiss, because they don't want the closure issue 14 decided; but in addition, they've said "Well , we made the 15 mistake because we started the federal action with the 16 same plaintiff. We now are starting with a different 17 plaintiff. We' re going to attack the same statute. " 18 And they've served the Attorney General on 19 another action in the federal court attacking the same 20 st tute upheld by the Idaho Supreme Court with a different 21 defendant because he will not be collaterally estopped. 22 Th y're going to move to dismiss, get it out of the United ;' 23 St tes Court. They won' t have to rule on the issue. This 24 is the problem of interference. 25 THE COURT: I 'm sure that there are the 40 1 problems and certainly I 'm not sure that Justice 2 O'Connor' s testimony before congress wouldn' t reflect a 3 vfi'ew of a number of the judiciary; but nevertheless, the 4 g1lestion in this case is: How far have they gone as of 5 this date? 6 The district court in this district is not to 7 make law. It' s to apply the law as it presently exists, 8 and that would be the law of the Ninth Circuit; and if 9 t ere is a decision of the Supreme Court that is fi 10 controlling, then to apply that. But that' s why I feel 11 that the issue here is purely and simply whether or not 12 the Huffman line of cases is applicable in the procedural 13 posture that this case is before the court. 14 MR. CLANCY: Well, your Honor along that line, 15 I was -- 16 THE COURT: You would say yes and you would say 17 n . 18 MR. CLANCY: I 've given you the case, but I 19 s ggest that the failure to state a claim, which is that 20 decision I 've given you, is one way in which the courts 21 c n control the problem and say, "You got to plead facts . 22 We're not going to keep you out of the federal court but 23 i you come back and show us other facts, well, we' ll go 24 at it again. " So that case was decided on the failure to 25 state a claim in a somewhat similar situation. w•.vww w......wr.. /•11-tG1cnA—COGG QL'ATITTt' 7.7TCLTT7.7r'f1M 41 1 Thank you, your Honor. 2 THE COURT: Well , gentlemen, my present feeling 3 ard, of course, this will be followed uF by a report to 4 Judge McGovern, my present feeling is that the Huffman 5 Pt;rsue line of cases are not applicable here; and that the 6 mdtion to dismiss should be denied for the reason that I 7 think that at least before this court is the issue of 8 whether or not on its face, and as applied to this 9 particular plaintiff, where it' s clear on both sides that 10 adult film fare as defined in the ordinance is going to be 11 restricted to a certain area, and if that constitutes 12 forgetting about the possible -- before you get to the ) 13 question of whether or not there is some area of the 14 or inance that' s subject to state court construction, 15 regardless of that, if the court finds that it in effect 16 suppresses, then, of course, it' s probably 17 unconstitutional . 18 If it doesn' t, and there are other questions 19 th t can be presented to the state court as to 20 co struction of the ordinance, then the court has to say, 21 "Well , it doesn't suppress. " It' s a Young, it' s a 22 Mini Theatres case, and that' s the end of it. 23 But at least the court has to do that, I 24 believe, and I don' t think that Younger and, as brought 25 in o the civil area, that the court has yet gone so far as nrwrp DFDf1ATTmn cPP 7Tr'F TMr 1,11 1(.1d-gRRE, CFATTT.F wacuTATnm m1 42 1 t say that it applies to any civil proceeding which is 2 really what you're saying. If may be that that' s what 3 everybody would like and a lot of the judiciary would like 4 and may be the reason for Justice O'Connor' s testimony 5 before congress; but I just don't think that' s the law at 6 this point in time. 7 So that' s what I 'm going to recommend. I ' ll 8 file that as soon as I can put it together, I would expect 9 within the first few days of the new week. Again, the 10 same procedure. You' ll have your period to file 11 o jections and so forth, but that' s where we are; and, of 12 course, since we continued the matter of the further • 13 h aring on the preliminary injunction, I think what I • 14 s ould do is wait till Judge McGovern has acted on my 15 r port, set a new time for you if that is even in the 16 c rds at that point in time, and then also discuss with 17 you at this time the question of the motion to remand. 18 Now, that has not been referred to It may 19 b ; as a matter of fact, it probably will be. But I think 20 the motion to remand, I frankly think that the issue here -- 21 well, I ' ll hear from you on whether you think that that 22 o ght to be considered prior to the time that Judge 23 M Govern considers my report on this motion. It might be 24 a waste of time is what I 'm saying. 25 MR. CLANCY: Well, your Honor, we' re under a 43 1 duty and obligation insofar as the defendant is concerned 2 to make certain that we' re going to move expeditiously on 3 i . So that we would like it to be remanded so that we 4 can go forward with it and show that it' s in good faith. 5 If the defense counsel or the plaintiff feels otherwise, 6 that would be something else. 7 MR. SMITH: I think -- 8 THE COURT: Well, you have a right to note it 9 for the time, although I think you noted it for the 2nd; I 10 would not be able to hear it on the 2nd. 11 MR. SMITH: I was going to say, I 'm going to be 12 in trial . I know we have two counsel here. I ' d ask the } 13 court that it be set on the 9th. 14 THE COURT: As I say, it has not been referred 15 to me. It may be and probably will be, but if it is, it 16 will not be heard on the 2nd. 17 MR. KELLOGG: Your Honor, we have no objection. 18 THE COURT: It will be heard on the following 19 Friday. 20 MR. KELLOGG: We have no objection of hearing 21 it on the 9th . - 22 MR. SMITH: Whatever Judge McGovern has done at 23 that time, we would be prepared to go forward. 24 THE COURT: That' s fine. I ' ll have to have the 25 Clerk' s Office actually confirm that 9th date with you BOYER REPORTING SERVICE_ TMr. (206)624-5886 SEATTT.F.. WASHIN.GTON • 44 1 because there may be something that I 'm unaware of at this 2 moment, but we' ll get you out a communication on that. 3 MR. SMITH: Thank you, sir. 4 THE COURT: Other than that, I think that' s 5 where we are. Is there anything further we need to 6 consider? 7 MR. BURNS: I don' t believe so, your Honor. 8 MR. KELLOGG: Thank you, your Honor. 9 (Court adjourned at 10:30 a.m. ) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ' DnvcD DL'D/1DmT).Tr_ CS`DTITrp TM!, f nnA 1A1A-A QA ccnm'T r w picuTmrtmnAT 45 1 CERTIFICATE 2 3 4 STATE OF WASHINGTON ) ) ss. 5 COUNTY OF KING ) 6 I , the undersigned Notary Public in and for the 7 State of Washington, do hereby certify: 8 That the annexed and foregoing proceedings were 9 taken stenographically before me and reduced to 10 typewritten form under my direction; 11 I further certify that all objections made at 12 t e time of said proceedings to my qualifications, or to .. � 13 t e conduct of any party, have been noted by me upon said 14 transcript; 15 I further certify that I am not a relative or 16 employee or attorney or counsel of any of the parties to 17 said action, or a relative or employee of any such 18 a torney or counsel, and that , I am not financially 19 interested in the said action or the outcome thereof; 20 I further certify that each witness before 21 examination was duly sworn to testify the truth, the whole 22 truth and nothing but the truth; 23 I further certify that the proceeding, as 24 transcribed, is a full, true and correct transcript of the. 25 t stimony, including questions and answers, and all - 46 1 objections, motions, and exceptions of counsel made and 2 taken at the time of the foregoing proceedings; 3 4 IN WITNESS WHEREOF, I have hereunto set my hand 5 and affixed my official seal this day of 6 , 1982 . 7 8 Notary Public in and for the State of Washington, residing 9 at Seattle. 10 • • 11 My commission expires 12 September 18, 1985 13 14 • 15 16 17 18 19 20 21 22 23 {�f, - 24 ' 25 i-7/01 1:37i A !.i3 ?/tii, BOYER REPORTING SERVICE, INC. (206)624-5886 SEATTLE, WASHINGTON . Exhibit "E" (Reference: Petition at pg. 3, pg. 12, pg. 13, pg. 14. ) U.S. Magistrate Sweigert's Report and Recommendation, dated March 25, 1982. 1 RE@EBVIAD MAR 251982 WARREN&KELLOGG 2 M 3 4 5 6 __-N • 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE v/. 9 PLAYTIME THEATRES, INC. , et al., ) ar 10 Plaintiffs, ) ) ,t 11 v. ) CASE NO. C82-59M :; 12 CITY OF RENTON, et al. , ) 13 Defendants. ) 14 ) CITY OF RENTON, et al., 15 ) Plaintiffs, ) 16 ) v. ) CASE NO. C82-263M • --- 17 ) PLAYTIME THEATRES, INC. , et al., REPORT AND RECOMMENDATION 18 ) ON DEFENDANTS' MOTION TO Defendants. ) DISMISS 19 ) • 20 INTRODUCTION AND SUMMARY CONCLUSION 21 Plaintiffs, Playtime Theatres, .Inc. , and Rukio Bay 22 Properties, filed the instant lawsuit challenging the consti- tutionality of a Renton zoning ordinance which would prevent 23 them from exhibiting sexually explicit adult films in an 24 J existing theatre building recently acquired by them for the 25 specific purpose of showing such films. Plaintiffs' motion 26 for a temporary restraining order prohibiting enforcement of 27 the ordinance was denied on February 23, 1982. A hearing on 28 ,plaintiffs' motion for a preliminary injunction has been 29 .deferred pending a ruling on the instant motion. On February 30 19, 1982, subsequent to the hearing on the request for a 31 temporary restraining order, but prior to the Court's ruling 32 1REPORT AND RECOMMENDATION ON dr R1, -1wn DEFENDANTS' MOTION TO DISMISS - 1 mm-ux 1 thereon, defendants filed a civil action in King County 2 Superior Court seeking a declaratory judgment that the ordinanc- 3 involved in the instant action is constitutional. Pendency of 4 that action is the basis for defendants' present motion.1 The 5 City moves to dismiss the present action because: (1) this 6 Court either lacks jurisdiction or should abstain from exer- 7 cising it; and, (2) plaintiffs must exhaust their administrativ- 8 remedies. For the reasons hereinafter set forth, I conclude 9 that the motion is without merit and recommend it be denied. 10 DISCUSSION 11 (1) Jurisdiction and Abstention. /'- 12 Defendants' contention that the Court lacks jurisdiction 13 is meritless. The question of facial invalidity is clearly •`� 14 . before this Court. Plaintiffs' amended complaint raises these ti . 15 issues: (1) whether on the record there is a compelling state 16 interest to justify the zoning ordinance which affects protecte. 17 First Amendment speech; and, (2) whether the zoning ordinance 18 places an unconstitutional restriction on access to the market 19 for protected speech. While it is true that a federal court 20 does not have jurisdiction to authoritatively construe state• .1 21 legislation, U.S. v. 37 Photographs, 402 U.S. 363 (1971) , it • 22 does have jurisdiction to determine facial invalidity of an ordinance which is not subject to a limiting construction whic 23 might eliminate the constitutional issues raised. See Dombrows •i 24 v. Pfister, 380 U.S. 479 (1965) and Erznoznik v. City of Jack- - 25 sonville, 422 U.S. 205. No construction by the state court in 26 • 27 1On March 8, 1982, plaintiffs removed the state court action to this Court and it has been consolidated with the 28 action initially instituted by plaintiffs in this Court. Although that action removed here might technically eliminate 29 part of the basis of defendants' arguments on the instant motion, since defendants have moved for remand, I believe the 30 Court should consider the instant motion as if the action • removed here was still pending in state court. 31 REPORT AND RECOMMENDATION ON 32 DEFENDANTS' MOTION TO DISMISS - 2 m-ssr-I 7I I -IIIS J • 1 this case would eliminate the issues set forth above which must 2 Tie determined on the basis of facts developed at a hearing on the 3 Brits. The parties agree that the zoning ordinance is appli- 4 able to plaintiffs' proposed exhibition of adult films and 5 would permit such exhibition only in a limited area of the city. 6 Defendants' contention that the Court should or must • 7 abstain from exercising its jurisdiction under the doctrines 8 enunciated in Rairoad Comm. v. Pullman Co., 312 U.S. 496 (1941) 9 nd Younger v. Harris, 461 U.S. 37 (1971) is also without meri . • 10 Pullman abstention is invoked where a definitive statutor 11 onstruction by a state court will avoid the constitutional 12 issues presented. The dispositive issue in this action is 13 hether the Renton zoning ordinance has the effect of suppress- • • 14 •ng or greatly restricting plaintiffs' access to the market for _ .. _ 15 rotected speech or is instead a permissible time, place, and • 16 manner restriction as approved in Young v. American Mini — ' - 17 Theatres, 427, U.S. 50 (1976) , rehearing denied, 429 U.S. 873 18 (1976) . As previously indicated, there' is no conceivable 19 limiting statutory;construction by a state court that would resolve this issue. Abstention is not required. Procunier v. 20 21 Martinez, 416 U.S. 396 (1974) ; Zwickler v. Koota, 389 U.S. 241 22 (1967) . Furthermore, abstention is not appropriate merely to allow a state court to construe a state statute in the first 23 r !instance. Spokane Arcades, Inc. v. Brockett, 631 F. 2d 135 24 �i (9th Cir. 1980) , affirmed, 70 L.Ed. 2d 468. 25 Younger abstention is invoked to avoid federal interferen•e 26 with a pending state enforcement proceeding. Younger, 27 'originally limited to pending state criminal actions, has been • 28 extended to various civil enforcement proceedings, Huffman V. 29 i I' !Pursue, Ltd. , 420 U.S. 592 (1975) (enforcement of a state 30 (public nuisance statute in aid of and closely related to 31 criminal statutes) ; Judice v. Vail, 430 U.S. 327 (1977) (pendi g 32 REPORT AND RECOMMENDATION ON m-ssr_sasn " DEFENDANTS'DEFENDANTS' MOTION TO DISMISS - 3 1sr-um 1 state contempt proceedings) ; Trainor v. Hernandez, 431 U.S. 434 (1977) (pending attachment proceedings in aid of a state welfar- 2 fraud action) ; Moore v. Sims, 442 U.S. 415 (1979) (pending 3 state proceedings to deprive persons of custody in child abuse 4 cases) . The Court has never gone so far, however, as to invoke 5 . _ the Younger doctrine of abstention whenever there is a pending 6 civil action. Rather, Younger has been extended only in the . 7 ( 8 context of civil enforcement proceedings; a rational extension 9 given the policy considerations underlying the Younger doctrin= 10 of non-interference with a state's criminal enforcement pro- ceedings. In contrast, defendants' action in state court, 11 which was commenced only after the hearing in this Court on 12 plaintiffs' request for a restraining order, seeks only a 13 declaratory judgment. Abstention under Younger - Huffman is ' 14 ___ 15 neither required nor appropriate under these circumstances. (2) Exhaustion of Administrative Remedies. 16 Although defendants have indicated in open court that 17 plaintiffs may operate their theatres in any area of the city 18 other than those specifically prohibited by the ordinance with 19 out any special permit, plaintiffs in their amended complaint 20 assert a claim that if there is any such permit, conditional 21 use, or variance requirement applicable, it is unconstitutiona . 22 'Defendants use the assertion of that claim as a basis for 23 arguing that plaintiffs must exhaust those remedies - remedies 24 .which they also assert are not applicable. -� 25 In any event, exhaustion of administrative remedies is no. 26 ----- required to invoke federal jurisdiction under 42 U.S.C. S1983 27 "unless the administrative remedy is fully adequate to obviate 28 the federal claims." Canton v. Spokane School District No. 81 29 498 F. 2d 840 (9th Cir. 1974) , citing Whitney v. Davis, 410 F. 30 2d 24 (9th Cir. 1969) . Clearly plaintiffs' challenge to the 31 : constitutionality of this ordinance will not be resolved by 32 REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS - 4 RI-6ST-ISS713 1USN-1D5 • 1 • pursuing a possible administrative remedy to obtain a special 2 use permit, and exhaustion is not required as a predicate to 3 this lawsuit. 4 CONCLUSION 5 Based on the foregoing, I recommend defendants' Motion to •r.-- 6 Dismiss be denied. 7 A proposed form of Order accompanies this Report and 8 Recommendation. 9 DATED this 23d day of March, 1982. 11 PFiiTip K. Sw�ge 12 United States Magistrate 13 14 . 15 • 16 17 18 19 20 21 22 2� I . •• \ 25 2i • 27 30 • • 32 REPORT AND RECOMMENDATION ON • DEFENDANTS' MOTION TO DISMISS - 5 771-657-lI 7$ 17SML17S5 Exhibit "F" (Reference: Petition at pg. 2, pg. 3, pg. 13. ) Reporter's Transcript for April 9, 1982 (City of Renton' s Motion to Remand ) . EXHIBIT DELETED Exhibit "G" (Reference: Petition at pg. 13, pg. 14. ) City of Renton Ordinance 3629, passed and adopted May 3, 1982. • . ..aft: In ..w.ii.ru,nm 55, COUNTY OF KING )) � /~1 L,C161, 1,"6.5...IL... ..! /l..0ity Viva in and la the City id Ntutw, Washington.do hereby erlily litt,the Ioregoin Ordinance is a true and careci copy of Ordinance No..Z.0 .../.....of the City of Renton.as i1 app•:.•on hit ' . in my office,and do lather certify that the same has been pubs:s'tcd according to law. In Witness Whereof �/I haw panto set my hand end affixed the scot of the City of Renton,thin dry oladd f /1.5 a , CIO salt CITY OF RENTON, WASHINGTON ORDINANCE NO. 3E.29 ' AN ORDINANCE OF THE CITY OF RENTON, WAShINGTON RELATING TO 'LAND USE AND ZONING WHEREAS, on'April 13, 1981, the City Council of the City of Rent•n adopted Ordinance Ho. 3526, which Ordinance was approved by the .4ayor on April 13, 1981, and became effective by its own terms on June 14, 1981; and WHEREAS,it was the intention of the City Council of the City of Renton in the adoption of that Ordinance to rely upon the opinion of the United States Supreme Court in the case of Young v. American Mini Theaters, 427 US 50, and of the Supreme Court of the State of Washington in the case of Northend Cinemas. v. Seattle. 90 Wn 2d, 709, to limit the location of adult motion picture theaters. as that term is defined therein, to •promote the City of Renton's great }nterest in protecting and preserving the quality of its • neighborhoods', commercial districts, and the quality of urban life throug, effective land use planning; and WHEREAS, the City Council, through its Planning and Develo ment Committee, held a public meeting on March 5, 1981, to • receive testir.on" from the public concerning the subject of regulation of adult entertainment land uses, at which the following testimony was r ceived which the City Council believes to be true, and which formed the basis for the adoption of Ordinance No. 3526: ' 1. Areas within close walking distance of single and multiple family dwellings should be free of adult • entertainment land uses. 2. Areas where children could be expected to walk, ' patronize or recreate should be free of adult • entertainment land uses. 3. Adult entertainment land uses should be located le areas of the City which are not in close • Proximity to residential uses, churches, parks 6, and other public facilities, and schools. i• 4. The image of the City of Renton as a pleasant • i..4i and attractive place to reside will be adversely • • J • • affected by the presence of adult entertainment land uses in close proximity to residential land uses, churches, parks and other public facilities, and schools. 5. Regulation of adult entertainment land uses should be developed to prevent deterioration and/or degradation of the vitality of the community before the problem exists, rather than in response to an existing problem. 6. Commercial areas of the City patronized by young people and children should be free of adult enter- tainment land uses. 7. The Renton School District opposes a location of adult entertainment land uses within the perimeters of its policy regarding bussing of students, so that students walking to school will not be subjected to confrontation with the existence of adult entertain- ment land uses. 8. The Renton School District finds that location of adult entertainment land uses in areas of the City which are in close proximity to schools, and commercial areas patronized by students and young people, will have a detrimental effect upon the quality of education which the School District is providing for its students. 9. The Renton School District finds that education of its students will be negatively affected by location of adult entertainment land uses in close proximity to location of schools. 10. Adult entertainment land uses should be regulated by zoning to separate it from other dissimilar uses just as any other land use should be separated from uses with characteristics different from itself. • • 11. Residents of the City of Renton, and persons who are non-residents but use the City of Renton for shopping and other commercial needs, will move from the community . or shop elsewhere if adult entertainment land uses are allowed to locate in close proximity to residential uses, churches, parks and other public facilities , and schools. 12. Location of adult entertainment land uses in proximity to residential uses, churches, parks and other public • facilities,' and schools, may lead to increased levels of criminal activities, including prostitution, rape, incest and assaults in the vicinity of such adult entertainment land uses. 13. Merchants in the commercial area of the City are • concerned about adverse impacts upon the character and quality of the City in the event that adult entertainment land uses are located within close proximity to residential uses, churches ,parks and • other public facilities, and schools. Location of -2- • adult entertainment land uses in close proximity to residential uses, churches, parks and other public facilities, and schools, will reduce retail trade to commercial uses in the vicinity, thus • reducing property values and tax revenues to the ' City. Such adverse affect on property values will cause the loss of some commercial establishments followed by a blighting effect upon the commercial districts within the City, leading to further . deterioration of the commercial quality of the City. 14. Experience in numerous other cities, including Seattle, Tacoma and Detroit, Michigan, has shown that location of adult entertainment land uses =degrade the quality of the areas of the City in which they are located and cause a blighting effect upon the city. The • skid row effect, which is evident in certain parts of Seattle and other cities, will •have a significantly larger affect upon the City of Renton than other major cities due to the relative sizes of the cities. 15. No, evidence has been presented to show that location of adult entertainment •land uses within the City will improve the commercial viability of the community. 16. Location of adult entertainment land uses within walking distance of churches and other religious facilities will have an adverse effect upon the ministry of such churches and will discourage attendance at such churches by the proximity of adult entertainment land uses. 17. A reasonable- regulation of the location of adult entertainment land uses will provide for the protection of the image of the community and its property values, and protect 'the residents of the community from the adverse effects of such adult entertainment lano uses. while providing to those who desire to patronize adult entertainment land uses such an opportunity in areas within the City which are appropriate for location of adult entertainment land uses. 19. The community will be an undesirable place to live if it is known on the basis of its image as the location of adult entertainment land uses. 20. A stable atmosphere for the rearing of families cannot be achieved in close proximity to adult entertainment land uses. 21.• The initial location of adult entertainment land uses will lead to the location of additional and similar uses within the same vicinity, thus multiplying the adverse impact of the initial location of adult entertainment land uses upon the residential, churches, parks and other public facilities, and schools, and the impact upon the image and quality of the character of the community. -3- • • and WHEREAS, since the adoption of Ordinance No. 3526, it . has come to the attention of the City Council of the City of Renton _ that it would be appropriate to set forth in writing the findings • of fact which were the basis for the adoption by the City Council of Ordinance No. 3526; and WHEREAS, the City Council finds that, in order to choose the le st restrictive alternative available to accomplish the purposes for wh ch Ordinance No. 3526 was adopted, and to include a severabilii • • clause which was inadvertently omitted from Ordinance No. 3526, and to make certain other technical amendments to Ordinance No. 3526, that it is necessary for the City Council to adopt legislation amending Ordinance No. 3526 to accomplish the foregoing purposes; and WHEREAS, the City Council , at its duly called special meetigg on February, 25, 1982, held a public hearing upon the subject matter) of land use 'regulations of adult motion pictures within the City of Renton, at which public hearing the City Council received comma is from the public•on that subject matter at which the followinn testi ony was received, which' the City Council believes to be true, . and w ich, together with the findings heretofore set forth as the basis for the adoption of Ordinance No. 3256, form the basis for the a option of this Ordinance: • 1. Many parents have chosen the City of Renton in which to raise their families because of the lack of pornographic entertainment outlets with its influence upon children external to the home. 2. Location of adult entertainment land uses on the • main commercial thoroughfares of the City gives an impression of legitimacy to, and causes a loss of sensitivity to the adverse affect of pornography . upon children, established family relations, respect for marital relationships and for the sanctity of marriage relations of others, and the concept. of non-aggressive consenual sexual relations. . -4- • • 3. Citizens from other cities and King County will travel • to Renton to view adult film fare away from areas in which they are known and recognized. 4. Property values in the areas adjacent to the adult entertainment land uses will decline, thus causing • a blight upon the commercial area of the City of Renton. 5. Location of adult entertainment land uses within neighborhoods and commercial areas of the City of Renton is disrupting to youth programs such as Boy • Scouts, Cub Scouts and Campfire Girls. Many such youth programs use the commercial areas of the City as a historical research resource. Location of adult entertainment land uses in close proximity to residenti:' uses, churches, parks and•other public facilities and • schools is inappropriate. • 6. Location of adult entertainment land uses in close proximity to residential 'uses, churches, parks and other public facilities, and schools, will cause a degradation of the community standard of morality. Pornographic material has a degrading effect upon the relationship between spouses. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASH I: DO ORDAIN AS FOLLOWS: SECTIONV I: Existing Section 4-702 of Title IV (Building Regulations) of Ordinance No. 1628 entitled "Code of General Ordinanc'• • of the City of Renton" is hereby amended by adding the following sub- sections: • "Used" The word "used" in the definition of "Adult moti • picture theater" herein, describes a continuing course of conduct of exhibiting "specific sexual activities" and "specified anatomical arc:' in a manner which appeals to a prurient interest. • SECTION II: Existing Section 4-735 of Title IV (Building Regul tions) of Ordinance No. 1628 entitled "Code of General Ordinance• of the City of Renton" is hereby amended by adding the following subsecii. (C) Violation of the use provisions of this section is decl:i , • to be a public nuisance per se. which shall be abated by City Attorney by way of.civil abatement procedures only, Sand not by criminal prosecul (D) nothing in this section is intended to authorize, legalize or permit the establishment, operation or maintenance of any business, building or use which violates any City of Renton ordinance or statute of the State of Washington regarding public nuisances, • sexuil conduct, lewdness, or obscene or harmful matter or the exhibition or public display thereof. SECTION III: Existing subsection (A)(2) of Section 4-735 - of Title IV (Building Regulations) of Ordinance No. 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended to read as follows: • 2. One thousand feet (1,000') of any public or private • school. SECTION IV: City of Renton Ordinance No. 3526 is hereby amended by adding th,e following section to read as follows: If anv section, subsection, sentence, clause, phrase or any po tion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisd ction, such decision shall not affect the validity of the remain1.ng portions of this ordinance: The City Council of the City ,of Renton hereby declares ,that it would have adopted City of Renton Ordinance No. 3526 and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more s ctions, subsections, sentences, clauses, phrases or portions be declared invalid.or unconstitutional. SECTION V: If dny section, subsection, sentence, clause, phrase or any portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Renton hereby declares that it would have adopted this ordinance and etch section, subsection, sentence, clause, 'phrase or portion thereof irrespective of the fact that any one or more sections, sub- . sections, sentences, clauses, phrases or portions be declared invalid or unonstitutional. SECTION VI: The City Council of the City of Renton finds and declares that an emergency exists because of the pendency of litig Lion against the City of Renton involving the subject matter of this ordinance, and potential liability of the City of Renton for damages as pleaded in that litigation, ana that the immediate adoption • -6- of this ordinance is necessary for the .immediate preservation of public peak, health, and safety or for the support of city government • and its existing public institutions and the integrity of the zoning of the City of Renton. Therefore, this ordinance shall take effect immediately upon its passage and approval by the mayor. PASSED BY THE CIfiY COUNCIL this 3th day of may, 1982. e ores . ;•fead Clerk APPROVED BY THE MAYOR this 3t11 day of May, 1982. • Bar5ara Y. Shinpoch, Mayor Approved as to form: J -. I 4.4 Lawrence J. Warren, Cit:v Attorney Date of Publication: play 7, 1982 • -7- Exhibit "H" (Reference: Petition at pg. 3, pg. 14. ) U.S. District Judge Walter T. McGovern's order dated May 5, 1982, denying the Defendants City of Renton, et al . ' s Motion to Dismiss. • • • 1 11 l� ~• - IN TH8 2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINOTCN • MAR 25 1982 4 5 - BflVMKIN, Clerk By I�I�I ---DePUt ,LED IN THE UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON • 7 UNITED STATE$ DISTRICT COURT MAY 5 - 1982 8 WESTERN DISTRICT OF WASHINGTON Jilt 1 AT SEATTLE BRUC RIFKIN, Clerk ., 9 PLAYTIME THEATRES, INC., et al., ) By.. ----Depu 10 ) Plaintiffs, ) 11 ) v. ) CASE NO. C82-59M ) 12 CITY OP RENTON, et al. , ) ) (7-% 13 Defendants. ) ) 14 ) CITY OF RENTON, et al., ) -' , ,Z 15 ) Plaintiffs, ) • 16 ) v. ) CASE NO. C82-263M 17 ) j PLAYTIME THEATRES, INC., et al., ) ORDER 18 ) Defendants. ) L 19 ) 44'..1.4 20 The Court, having considered defendants' Motion to Dismiss, •• 21 plaintiffs' response thereto, the Report and Recommendation of 22 United States Magistrate Philip K. Sweigert, and the balance o 23 the records and files herein, does hereby find and ORDER: 24 (1) Said Report and Recommendation is hereby approved an. '. adopted; : 25 P 26 (2) Defendants' Motion to Dismiss is hereby DENIED; and, 27 (3) The Clerk is to direct copies of this Order to all 28 counsel of record`and 0 Magistrat jSweigert. 29 DATED this __ - day of L/ ' , 1982. 30 31 CHIEF UNITED STA±.4&-7:4A4V4gbe CT JUDGE 14 32 FPI-EST-11S7S 17SN-.77S 11 rw'I - 1 • Exhibit "I" (Reference: Petition at pg. 15 . ) Defendants City of Renton, et al. ' s Renewed Motion to Dismiss Plaintiffs ' Amended and Supplemental Complaint For Preliminary and Permanent Injunction Pursuant to F.R.C.P. 12(b) (6) and Memorandum in Support Thereof, filed on May 4, 1982 . • wl • /IL� ti� 4 . • 1 0L4( Magistrate Sweigert 2 Judge McGovern • Date of Hearing: 3 May 21, 1982 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE . 9 PLAYTIME THEATRES , INC. , a ) '°Washington corporation, et ) 11 al, ) • NO. C82-59M 12 Plaintiffs ) 13 vs ) 14 THE CITY 4F RENTON, et al. ) ) 15 Defendants. ) ) ) 16THE CITY 'F RENTON, a ) NO. C82-263 17municipal corporation, ) Plaintiff, RENEWED MOTION TO* DISMISS PLAINTIFFS ' 18 ) AMENDED AND SUPPLEMENTAL COMPLAINT ) FOR. PRELIMINARY AND PERMANENT 19 vs ) INJUNCTION PURSUANT TO FRCP 12(b) (E) PLAYTIME HEATRES, INC. , a ) 20 Washingto corporation, ) 21 et al, ) 22 Defendants. ) ) 23 • . COVE NOW the Defendants and renew their previous Motion to 24 Dismiss the Plaintiffs' Complaint for Preliminary and Permanent 25 Injunction pursuant to Rule 12(b) (6) of the Federal Rules of 26 Civil Procedure in that the Plaintiffs' have failed to state a 27 claim upon which relief can be granted. 28 RENEWED MOTION TO DISMISS WARREN & KELLOGG. P.S. P . 1 ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. SOX SES RENTON, WASHINGTON 98057 255-8678 1 This Motion is made without prejudice to the prior Motion 2 of the Defendants to dismiss the above-entitled action pursuant 3 to Rule 12(b) (1) and 12 (b) (6) of the Federal Rules of Civil 4 Procedu e.. the amendment of City This Motion is based upon h of Renton 6 Ordinance No . 3526, which was adopted as City of Renton Ordinance 7 No. 3629, which amending ordinance was adopted on May 3 , 1982 8 by the City Council of the City of Renton, was approved by 9 the Mayor on that date and pursuant to the emergency clause 10 incorpor ted therein became effective immediately upon its 11 passage. Copy of City of Renton Ordinance No . 3526 and No . 12 3629 are attached hereto and incorporated herein by this 13 reference. This Motion is further based upon the Memorandum 14 of Points and Authorities in Support of Defendant' s Motion to 15 Dismiss, Defendant' s Reply Memorandum in Support of Defendant ' s 16 Motion to Dismiss, Defendant' s Objections to Magistrate' s 17 Report aLd Recommendation on Defendant' s Motion to Dismiss, all 18 of which were previously filed herein and the Memorandum in 19 Support f Defendant' s Renewed Motion to Dismiss and the files 7 20 and records herein. 21 Defendants further move that this Renewed Motion be set 22 for hearing and oral argument as soon as practical . 23 Dated: May 4, 1982. • 24 Daniel Kellogg, Att ney 25 City of Renton 26 27 28 RENEWED M TION TO DISMISS P. 2 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. Sox Ste RENTON. WASHINGTON 98057 255-8678 I . CERTIFICA I, the undersigned,.e/re'S ��'-"-`�.rk of tfie • City of Renton, Washington, certify that this is a true •• and correct copy otg� `.,,t i •••••. Subscribed and Sealed this..f 9. 2• . ,/eCirk L City Clerk • • • CITY OF RENTON. %JASHINGTON ORDINANCE. NO. __3 g,_ • AN ORDINANCE OF THE CITY OF RENTON, WASHIINGTON, RELATING: TO' LAND USE AND 20.;ING THE CITY COUNCIL OF.THE CITY OF RENTON. WASHINGTON, DO ORDAIN AS FOLLOWS: . SECTION I: Existing Section 4-702 'of Title IV (Building • Regultions) of Ordinance No. 1625 entitled "Code of General Ordinance: of th City of Renton" is hereby amended by adding the following subsections: I. "Adult Motion Picture Theater": An enclosed building used for presenting motion pict:: 'e films,, video cassettes, cable television, or any other such visual media, distinguished or character;' by an emphasis on matter depicting, describing or relating to ."spe.cifir( sexual activities" or "specified anatomical areas" as hereafter defineu. for observation by patrons therein. 2. "S`ecif.i,ed Sexual Activities": • (a) Human genitals in a state of sexual stimulation or arousal; (b) Acts of human masturbation, sexual intercourse Or sodomy; • (c) Fondling or other erotic touching of human genitals . pubic region, buttock or female breast. 3. ",S1necified Anatomical Areas" • . . (a) Less than completely and opaquely covered human genitals, pubic region, buttock, and female breast below a point immediately above the top of the areola; and (b) Human male genitals in a discernible turgid state, even if completely and opaquely covered. -1- RECEIVE?. , 1 9 VP? • • • • _ SECTION II: There is hereby added a new Chapter to Title IV (Building Regulations) of Ordinance No. 1623 entitled "Code of • Genera Ordinances of the City of Renton" relating to adult motion pictur: theaters as follows: A. Adult ;motion picture theaters are prohibited within the ar-a circumscribed by a circle which has a radius. consisting of the following dis,ttinces from the following specified uses or zones: 1. Within or within one thousand (1000') feet of any • residential zone (SR-1. SR-2, R-1. S-1, R-2, R-3, R-4 or T) or any single family or multiple family residential use. • • • 2. One (1) mile of any public or private school 3. One thousand (1000') feet of any church or other religious facility .or institution • • 4. One thousand (1000') feet of any public park or.P-1 zone. . • B•. The distances provided in this section shall be measured by following a straight line, without regard to intervening buildings, from the nearest point of the property parcel upon which the proposed - use is tq be located, to the nearest point of the parcel of property or the l nd use district boundary line from which the proposed land use is t be separated. • SECTION II;: This Ordinance shall be effective upon its passage, approval and thirty days after •its publication. PASSED BY TilE CITY COUNCIL this 13th day of April , 1981 . �e`Jor `• Delores ad, City Clerk APPROVED BY THE MAYOR this 13th day of April . 1981. Approved as to form: Barnra Y. Shinpoch, Mayor .iwrence ;T.+ellricn. City Attoriiiv - • - Date of Publication: M:iy 15, 1981 4.11! (A• .:n:a.r:adun SS. CONNIY Of RING '/i ).City ilea in and to, the City if Ranlwi Washinelon. do hereby-yertily lip,the foregoing Ordinance is a true and correct :opy of Ordinance No...7.fr ../.....of the City of Renton.as it ow-ix on hie in my office.and do further certify thet the same hss been trubls!ied according to law. In Witness Whereof I haw Jier unto set my hand end affixed the seal of the city of Renton,this y dry oral d.f i gJ ,N a 117,-41".y__Q.- � ---.City Mitt CITY OF RENTON, WASHINGTON ORDINANCE NO. 3629 AN ORDINANCE OF THE CITY OF RENTON, WAShINGTON RELATING TO LAND USE AND ZONING • • WHEREAS, on April 13, 1981, the City Council of the City of Ren:on adopted Ordinance Ho. 3526, which Ordinance was approved by the Mayor on April 13, 1961, and became effective by its own terms on June 14, 1981; and WHEREAS,it was the intention of the City Council of the City ofI Renton in the adoption of that Ordinance to rely upon the opinion of the United. States Supreme Court in the case of Young v. American Mini_Theaters, 427 US 50, and of the Supreme Court of the Stte of Washington in the case of Northend Cinemas v. Seattle, 90 Wn 2d, 709, to limit the location of adult motion picture theaters. as tha term is defined therein, to •promote the City of Renton's • great 'nterest in protecting and preserving the quality of its nei;hb rhoods•, commercial districts, and the quality of urban life .through effective land uhe planning; and WHEREAS, the City Council, through its Planning and Development Committee, held a public meeting on March 5, 1931, to receive testirtonr. from the public concerning the subject of regulation • of adult entertainment land uses, at which the following testimony was received which the City Council believes to be true, and which formed the basis for the adoption of Ordinance No. 3526: • 1 1. Areas within close walking distance of single and • multiple family dwellings should be free of adult • entertainment land uses. 2. Areas where children could be expected to walk, patronize or recreate should be free of adult entertainment land uses. 3. Adult entertainment land uses should be located in areas of the City which are not in close • -: Proximity to residential uses, churches , parks • and other public facilities, and schools. I r 4. The image of the City of Renton as a pleasant and attractive place to reside will be adversely • I • f . • • affected by the presence of adult entertainment land uses in close proximity to residential land uses., churches, parks and other public facilities, and schools. 5. Regulation of adult entertainment land uses should be developed to prevent deterioration and/or degradation of the vitality of the community before the problem .exists, rather than in response to an existing problem. 6. Commercial areas of the City patronized by young people and children should be free of adult enter- tainment land uses. 7. The Renton School District opposes a location of adult entertainment land uses within the perimeters of its policy regarding bussing of students, so that students walking to school will not be subjected to confrontation with the existence of adult entertain- ment land uses. • 8. The Renton School District finds that location of adult entertainment land uses in areas of the City which are in close proximity to schools, and commercial areas patronized by students and young people, will have a detrimental effect upon the quality of education which the School District is providing for its students. 9. The Renton School District finds that education of its students will be negatively affected by location of adult entertainment land uses in close proximity to location of schools. 10. Adult entertainment land uses should be regulated by zoning to separate it from other dissimilar uses just as any other land use should be separated from uses with characteristics different from itself. • 11. Residents of the City of Renton, and persons who are non-residents but use the City of Renton for shopping and other commercial needs, will move from the community or shop elsewhere if adult entertainment land uses are allowed to locate in close proximity to residential uses• churches, parks and other public facilities, and schools. • 12. Location of adult entertainment land uses in proximity to residential uses, churches, parks and other public facilities , and schools, may lead to increased levels of criminal activities, including prostitution, rape, incest anu assaults in the vicinity of such adult entertainment land uses. 13. Merchants in the commercial area of the City are • concerned about adverse impacts upon the character and quality of the City in the event that adult . entertainment land uses are located within close .proximity to residential uses, churches,parks and other public facilities, and schools. Location of -2- y • adult entertainment land uses in close proximity to residential uses, churches, parks and other public facilities, and schools, will reduce retail ' trade to commercial uses in the vicinity, thus reducing property values and tax revenues to the City. Such adverse affect on property'values will cause the loss of some commercial establishments followed by a blighting effect upon the commercial districts within the City, leading to further deterioration of the commercial quality of the City. 14. Experience in numerous other cities, including Seattle. • Tacoma and Detroit, Michigan, has shorn that location of adult entertainment land uses degrade the quality of the areas of the City in which they are located and cause a blighting effect upon the city. The • skid row effect, which is evident in certain parts of Seattle and other cities , will have a significantly larger affect upon the City of Renton than other major cities due to the relative sizes of the cities. 15. No, evidence has been presented to show that location of adult entertainment land uses within the City will improve the commercial viability. of the community. 16. Location of adult entertainment land uses within • walking distance of churches and other religious facilities will have an adverse effect upon the ministry of such churches and will discourage attendance at such churches by the proximity of adult entertainment land uses. 17. A reasonable regulation of the location of adult entertainment land uses will provide for the protection of the image of the community and its property values , and protect the residents of the community from the adverse effects of such adult entertainment lanu uses , while providing to those who desire to patronize adult entertainment land uses such an opportunity in areas within the City which are appropriate for location of adult entertainment land uses. 19. The community will be an undesirable place to live if it is known on the basis of its image as the location of adult entertainment land uses. • 20. A stable atmosphere for the rearing of families cannot be achieved in close proximity to adult entertainment land uses. • 21. The initial location of adult entertainment land uses will lead to the location of additional and similar uses within the same vicinity, thus multiplying the adverse impact of the initial location of adult entertainment land uses upon the residential, churches, parks and other public facilities, and schools, and the impact upon the image and quality of the character of the community. • -3- • an• WHEREAS, since the adoption of Ordinance Igo. 3526, it has come to the attention of the City Council of the City of Renton tha it would be appropriate to set forth in writing the findings of fact which were the basis for the adoption by the City Council of Ordinance No. 3526; and WHEREAS, the City Council finds that, in order to choose the least restrictive alternative available to accomplish the purposes for which Ordinance No. 3526 was adopted, and to include a severabilil • clause which was inadvertently omitted from Ordinance No. 3526, and to make certain other technical amendments to Ordinance No. 3526, that it is necessary for the City Council to adopt legislation amending Ordinance No. 3526 to accomplish the foregoing purposes; and WHEREAS, the City Council , at its duly called special _ meeting on February 25, 1982, held a public hearing upon the subject matter of land use regulations of adult motion pictures within the City of Renton, at which public hearing the City Council received comm nts from the public on that subject matter at which the following • testimony was received, which the City Council believes to be true, . and which, together with the findings heretofore set forth as the basis for the adoption of Ordinance No. 3256, form the basis for the adoption of this Ordinance: 1. Many parents have chosen the City of Renton in which to raise their families because of the lack , of pornographic entertainment outlets with its influence upon children external to the home. 2. Location of adult entertainment land uses on the main commercial thoroughfares of the City gives an impression of legitimacy to, and causes a loss of, sensitivity to the adverse affect of pornography upon children, established family relations, respect for marital relationships and for the sanctity of marriage relations of others, and the concept of non-aggressive consenual sexual relations. • -4- • • 3. Citizens from other cities and King County will travel • to Renton to view adult film fare away from areas in which they are known and recognized. 4. Property values in the areas adjacent to the adult entertainment land uses will decline, thus causing a blight upon the commercial area of the City of Renton. 5. Location of adult entertainment land uses within neighborhoods and commercial areas of the City of Renton is disrupting to youth programs such as Boy Scouts, Cub Scouts and Campfire Girls. Many such youth programs use the commercial areas of the City as a historical research resource. Location of adult entertainment land uses in close proximity to residentio uses, churches, parks and other 'public facilities and schools is inappropriate. 6. Location of adult entertainment land uses in close proximity to residential 'uses, churches, parks and other public facilities, and schools, will cause a degradation of the community standard of morality. Pornographic material has a degrading effect upon the relationship between spouses. • NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASIII. DO ORDA N AS FOLLOWS: SECTION I: Existing Section 4-702 of Title IV (Building Regulations) of Ordinance No. 1628 entitled "Code of General Ordinance of the (City of Renton" is hereby amended by adding the following sub- section$: •"Used" The word "used" in the definition of "Adult moti picture theater" herein, describes a continuing course of conduct of ! exhibiting "specific sexual activities" and "specified anatomical arc: in a manner which appeals to a prurient interest. SECTION II: Existing Section 4-735 of Title IV (Building Regulations) of Ordinance No. 1628 entitled "Code of General Ordinance of the C'ty of Renton" is hereby amended by adding the following subsectl. (C) Violation of the use provisions of this section is deck; to be a public nuisance per se, which shall be abated by City Attornev by way of civil abatement procedures only, Sand not by criminal prosecut (D) Nothing in this section is intended to authorize, legalize or permit the Etablishment, operation or maintenance of any business, building or use which violates any City of Renton ordinance or statute of the State of Washington regarding public nuisances , • sexual conduct, lewdness, or obscene or harmful matter or the exhibiti n or public display thereof. -5- SECTI07 III: Existing subsection (A)(2) of Section 4-735 of Titl ' IV (Building Regulations) of Ordinance No. 1628 entitled "Code o General Ordinances of the City of Renton" is hereby amended to read as follows: 2. One thousand feet (1,000') of any public or private . ' school. SECTION IV: City of Renton Ordinance No. 3526 is hereby amended y adding the following section to read as follows: If any section, subsection, sentence, clause, phrase or any port on of this ordinance is for any reason held to be invalid• or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the • remaining portions of this ordinance. The City Council of the City of Renton hereby declares that it would have adopted City of Renton Ordinance No. 3526 and, each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or • more sect ons, subsections, sentences, clauses, phrases or portions be declar d invalid or unconstitutional. , ECTION V: If any section, subsection, sentence, clause, phrase or any portion of this ordinance is for any reason held to be invalid o unconstitutional by the decision of any court of competent jurisdict'on, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Renton hereby declares that it would have adopted this ordinance and each s ction. subsection, sentence, clause, phrase or portion thereof it espective of the fact that any one or more sections, sub- sections, entences, clauses, phrases or portions be declared invalid or unconstitutional. SECTION VI: The City Council of the City of Renton finds and declar s that an emergency exists because of the pendency of litigation against the City of Renton involving the subject matter. of this 'ordin ncc, and potential liability of the City of Renton for damages as pleaded in that litigation, ana that the immediate adoption • -6- • of this ordinance is necessary for the .immediate preservation of public peak, health, and safety or for the support of city government and its existing public institutions and the integrity of the zoning of they City of Renton. Therefore, this ordinance shall take effect immediately upon its passage and approval by the mayor. PASSED BY THE CITY COUNCIL this 3th day of May, 1982. e ,ores . leadtlerk APPROVED BY TiUE MAYOR this 3th day of May, 1982. • BaiBara Y. Shinpoch, Mayor • Approv-d as to form: Lawrence J. Warren, ' City • Attorney Date of Publication: May 7, 1982 • • • • -7- • et) p, O 19 1 GSi4 Magistrate Sweigert 2 Judge McGovern Date of Hearing: 3 May 21, 1982 4 5 6 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 PLAYTIME THEATRES, INC. , a ) 11 WashingtIon corporation, ) et al, ) 12 ) NO. C82-59M Plaintiff, ) 13 . ) vs ) 14 ) THE CITY OF RENTON, et al, ) 15 ) Defendants . ) 16 ) ) 17 THE CITY OF RENTON, a ) municipal corporation, ) NO. C82-263 18 Plaintiff, ) MEMORANDUM IN SUPPORT OF 19 ) DEFENDANT'S RENEWED MOTION TO vs ) DISMISS PLAINTIFFS' AMENDED AND 20 ) SUPPLEMENTAL COMPLAINT FOR PLAYTIME THEATRES, INC. , a ) PRELIMINARY AND PERMANENT 21 Washington corporation, ) INJUNCTION PURSUANT TO FRCP 12(b) (6) 22 et al, ) Defendants. ) 23 ) 24 I. STATEMENT OF FACTS • 25 City of Renton Ordinance No. 3526 was enacted by the 26 City Council on April 13, 1981 and became effective thirty (30) 27 days after its publication on May 15, 1981 . This suit was commenced 28 in early 1982 after the Plaintiffs purchased two theaters within MEMORAUND JM IN SUPPORT OF WARREN & KELLOGG. P.S. RENEWED MbTION TO DISMISS PO SO. ATTORNEYSECONDEET•P O.BOX.:. P. 1 R&NTON. WA.NINOTON 11057 2554178 1 the City of Renton which are clearly within the proscribed 2 distance from which Ordinance No. 3526 provides for separation 3 of adult motion picture theaters (as described by the 4 ordinance) from residential zones and uses, churches, and 5 schools . 6 On May 3, 1982, the City Council of the City of Renton 7 adopted, and the Mayor approved Ordinance No . 3629 which 8 amended in several areas the provisions of Ordinance No . 3526. 9 The principal amendments are as follows : 10 a . Findings of fact which the City Council found to be 11 true as of its adoption of Ordinance No . 3526 on April 13, 12 1982, were reduced to writing. 13 b. Findings of fact as to the facts which the City Council 14 found tc be true as of the adoption of Ordinance No . 3629 on 15 May 3 , 982, were adopted. 16 c . The word "used" is further defined to be a continuing 17 course f conduct of exhibiting "specific sexual activities" 18 and "specified anatomical areas" in a manner which appeals to 19 a prurient interest. 20 d. The amending ordinance provides that uses which are 21 in violation of the provisions of Ordinance No. 3526 as amended 22 are declared to be a public nuisance and shall be abated by 23 civil action filed by the City Attorney and not by criminal 24 enforcement proceedings . 25 e. Ordinance No. 3526 provides that adult motion picture 26 theaters were to be separated from schools by a distance of 27 one mile. Ordinance No. 3629 reduces that distance to 1000 28 feet . - MEMORANDUM IN SUPPORT OF WARREN & KELLOGG. P.S. ATTORNEYS AT LAW RENEWED MOTION TO DISMISS 100 w. SECOND ST.. P. O. BOX Sal RENTON. WASHINOTON 98057 P. 2 Z55.66715 1 f. Ordinance No. 3526 contained no severability clause.' 2 Ordinance No . 3629 adds such a severability clause to 3 Ordinance No. 3526. 4 Because of the importance of the amendments to Ordinance No . 5 3526, t e ordinance which is attacked by the Plaintiffs, the 6 Defendants deem it essential to renew their motion to dismiss 7 previously filed herein and submitted for decision by the court, 8 and in articular to renew their motion to dismiss Plaintiff' s 9 claim fir injunctive relief which is founded on 28 U.S .C . , Section 10 2202 an 42 U.S. C. ', Section 1983. 11 II. LEGAL ARGUMENTS 12 It ' s the contention of the Defendants that the amendment 13 of Ordin nce No. 3526 by the adoption- of Ordinance No . 3629 cures 14 any possible claim of constitutional defect by the Plaintiffs, 15 thereby oiisting this court of jurisdiction to grant injunctive 16 relief as requested by the Plaintiffs for the reason that there 17 1 is no injunctive relief which can be granted. The application for 18 injunction is addressed to the sound discretion of the court. 19 U.S . v. orrick, 298 U. S. 435, 56 S. Ct 829, 8Q L.$d. 1263 (1936) ; 20 Ross-Whi mey Corp. Vs . Smith Klirie. & French Lab, 207 F.2d 190 21 (9th Cir. 1953) . The decision of the court will not- he set aside 22 upon appe 1 unless clearly erroneous as a matter of law or the 23 result of an abuse of discretion. U. S. v. Corrick, supra . 24 The purpose of the preliminary injunction requested is to 25 preserve he status quo pending trial of the matter on the 26 merits, a d ". . . should not be granted except in rare instances 27 in which he facts or law are clearly in favor of the moving 28 MEMORAND . IN SUPPORT OF RENEWED M o TION TO DISMISS WARREN & KELLOGG. P.S. ATTORN[TS AT LAW SOO DO. SECOND ET.. P. O. SOX it• P 3 R . WASHINGTON 95057 155.8678 1 party. " Miami Beach Federal Savings & Loan Association v. 2 Calland r , 256 F. 2d. 410 (5th Cir. 1958) . The preliminary 3 injunction is not granted as a matter of right, even if the denial 4 of the application will result in irreparable damage to the 5 Plaintiff. Yakus v. U. S. , 321 U. S. 414, 440, 64 S.Ct. 660, 6 88 L.Ed. 834 (1944) . 7 Th injunctive relief may be granted, in the discretion 8 of the court, if it appears likely that the Plaintiff will 9 prevail at trial on the merits, that the Plaintiff will 10 suffer irreparable harm if the application is denied, and if 11 the damage to the Plaintiff in the event of the denial of the 12 application plainly outweighs the harm to the Defendant. Ross- 13 Whitney Corp v. Smith Kline. & French Lab, supra. 14 As amended by Ordinance No. 3629, the provisions of City of 15 Renton Ordinance No. 3526 are , beyond any question, 16 constitutional . Therefore, the Plaintiff' s application for 17 injunctive relief will unequivocably be denied, both at the 18 prelimin ry injunction phase and at trial upon their applidation 19 for inju ctive relief both under 28 U. S.C. , Section 2202 and 20 42 U. S.C. , Section ' 1983, for the reason at least that it is 21 not likely that the Plaintiff will prevail at trial on the 22 merits . Furthermore, Plaintiff can make no contention that 23 it is sustaining irreparable. harm since the amending ordinance 24 provides that the ordinance shall be enforced by civil action 25 alone, a d not by criminal remedies. Being unable to show any 26 irreparable harm suffered byPlaintiff, there is then no need 27 for balancing of the rights of the parties under the third 28 provision of the test for issuance of injunctive relief. MEMORANDUM IN SUPPORT OF WARREN & KELLOGG. P.S. RENEWED MOTION TO DISMISS ATTORN[TS AT LAW o SO. SECOND ST.. P. O. BOX•21 P.4 to8INTON. WASHINGTON 98057 I 255.867E I 1 Therefore, there being no injunctive relief which this 2 court m y grant, the Defendants are entitled to a dismissal 3 of the cause of action stated by the Plaintiffs for such 4 injunctive relief pursuant to 12(b) (6) of the Federal Rules 5 of Civil Procedure. 6 DATED: May 4, 1982 • Re ully submitted, 8 / 9 ` Daniel Kellogg 10 11 12 ' 13 14 . 15 16 17 ,18 19 • 20 21 22 23 24 25 26 27 28 MEMORANDUM IN SUPPORT OF RENEWED MOTION TO DISMISS WARREN & KELLOGG. P.S. P. 5 ATTORN[TS AT LAWSOO 00. SICOND fT.. P. O. SOX GIS RENTON. WASHINOTON 00057 255.8678 Exhibit "J" (Reference: Petition at pg. 15. ) Defendants City of Renton, et al . ' s Motion For Summary Judgment, Affidavit of David R. Clemens and Memorandum in Support of Motion For Summary Judgment, filed May 27, 1982. - ) 1 1 Honorable Philip R. Sweigert, Magistrate 2 3 4 —FILED LODGED 5 —RECEIVED MAY 271 32 6 r' ? U.S. D!ST�'.;,T C; !%T 7 D illCT CF iwl!; '•:TTC!i 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 PLAYTIME THEATRES , INC. , a ) Washington corporation, ) 11et al, ) ) 12 Plaintiffs , ) NO. C82-59M ) 13. vs . ) ) 14 THE CITY OF RENTON, et al, ) ) 15 Defendants . ) ) 16 ' ) THE CITY OF RENTON, a municipal ) 17 corporation, ) ) 18 Plaintiff, ) NO. C82-263R ) 19 vs . ) ) DEFENDANTS' MOTION FOR 20 PLAYTIME THEATRES , INC. , a ) SUMMARY JUDGMENT Washington corporation, et al, ) (FRCP 56) 21 ) Defendants . ) 22 ) 23 COME NOW the Defendants , pursuant to FRCP 56, and 24 move this Court for Summary Judgment of Dismissal With Prejudice 25 of Plaintiff's Amended and Supplemental Complaint for Declaratory 26 Judgment and Preliminary and Permanent Injunction filed herein. 27 This motion is based upon the records and files herein, the 28 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT - 1 WARREN & KELLOGG. P.S. ATTORNEYS'AT LAW WO SO. KCONO ST.. P. O. SOX SSG .RENTON. WASHINGTON 0S087 515.5s7® • lAffidavit of David R. Clemens in Support of City of Renton's .2 Motion for Summary Judgment , dated May 27 , 1982 , and the Memorandum 3in Support of Defendants ' Motion for Summary Judgment, which is 4submitted herewith. 5 6 DEFENDANTS REQUEST ORAL ARGUMENT UPON THIS MOTION. 7 Dat-d: May 21/, 1982. 9 _ • Davie a ogg, A orn 10 . for Defendants 11 12 • 13 14 15 16 17 18 19 20 • 21 22 23 24 25 26 • 27 28 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT - 2 • WARREN & KELLOGG. P.S. ATTORIWTR AT LAW WO SO. sitcom ST.. P. O. DOS is. NS TON• WASHINGTON 98057 *5B.OS70 1 1 Honorable Philip K. 2 Sweigert, Magistrate 3 4 ..__ _ 5 1rEl1u 6 MAY 2 71:32 7 r._`'' U.S. DISTF"T L :;.lT ,.._.. ,::iD!STR!CT Cftrn:C n. ON 8 UNITED STATES DISTRICT, COURT -------— - 1. -r._! • FOR THE WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 pLAYTI 0 THEATRES', INC. , a ) III 11 Washington corporation, et al , ) Plaintiffs ) • 12 ) NO. C82-59M vs ) '13 ) AFFIDAVIT OF DAVID R. CLEMENS THE CI Y OF RENTON, et al . • ) IN SUPPORT OF CITY OF RENTON' S 14 ) MOTION FOR SUMMARY JUDGMENT Defendants ) 15 ) ' 16 ) ) 17 THE CITY OF RENTON, a municipal ) 18 corporation, ) Plaintiffs ) 19 NO. C82-263R vs ) 20 PLAYTI THEATRES, INC. , a ) 21 Washin ton corporation, et al ) 22 ) Defendants ) • 23 ) 24 STATE OF WASHINGTON ) ss 25 COUNTY OF KING ) 26 DAVID R. CLEMENS, being first duly sworn on oath deposes 27 and sas : . 28 AFF IDA IT OF DAVID R. CLEMENS WARREN & KELLOGG. P.S. Page 1 ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. SOX SEG , RENTON.WASNINOTON 980157 • 255.507s 1 1. I am the City *of Renton's Policy Development Director 2 and make this Affidavit from my own personal knowledge . 3 2 I have been involved with-assisting the Renton City 4 Council in its Adult Land Use Entertainment Ordinances from the 5 start and assisted in providing information to the Council with 6 respect to Ordinances No. 3526 and 3629 . I previously appeared 7 as a wit ess in the Temporary Restraining Order Hearing in this 8 case, ha ing been called by the Plaintiffs . 9 3. The City Council of the City of Renton did enact 10 Ordinanc� No. 3629 ',on the date of May 3, 1982. A certified copy 11 of that Ordinance is attached hereto for the Court 's information. 12 4. Attached hereto is a one page map of the City of Renton. 13 Shown on that map in solid colored areas are those places in the 14 City of enton where an Adult Entertainment Land Use would be 15 permitted under Ordinance No. 3629 , the most recent Ordinance. 16 5. The land, contained within the solid colored areas is 17 in all stages of development from raw land to developed, improved 18 and occupied office space, ,warehouse space • and industrial space . 19 6. The total area within the solid colored areas is five 20 hundred twenty (520) acres . Included in the 520 acres is twenty- 21 seven (27 acres of City property, twenty-two.. (22) acres as a green- 22 belt area and five (5) acres as a proposed fire station site. 23 7. There has been a recent Local Improvement District 24 which ext nded Lind Avenue , which runs north and south through 25 the middl7 of these ,properties . That roadway was built as a four 26 lane major arterial. Construction is to begin soon on LID #314, 27 which will -improve freeway access and construct several east-west 28 AFFIDAVIT OF DAVID R. CLEMENS WARREN & KELLOGG. P.S. Page 2 ATTORNCYS AT LAW 100110. OXCOND ST.. P. O. SOX SUU RENTON. WASHINOTON 9B057 155.8878 i 1 roads that will connect in with previously developed Lind Avenue . 2 Additionally, the City is in the midst of widening and substantially 3 improving S.W. 43rd Street which runs along the southerly boundary 4 of the ity and provides access to most of this parcel from the 5 Valley Freeway . 6 8. It should also be noted that the land in this area is 7 service on the north by 1-405, and on the east by SR167 , the 8 Valley Freeway. These roadways provide good access on the north, 9 east , south and through the middle of the solid colored properties . 10 11 i 12 Davi R. C emens -r/ 13 SUBSCRIBED AND SWORN to before me this 0 day of May, 1982 . 14 16 Notary Public in and for the State of Washington, residing at Renton 17 18 19 20 21 22 23 24 25 26 27 28 AFFIDAVIT OF DAVID R. CLEMENS WARREN & KELLOGG. P.S. Page 3 ATTORNEYS AT LAW too SO. SECOND ST.. P. O. SOX St• RENTON. WASNINGTON 98057 135-8878 6 th -- —: - .- immollo = y:::., to . OEM! . . • F-- .7 \r••=11 th.se I tar..ILI4 14SNGTON LAKE ■ • .. a�0.. ' W• AHIN . '�ll ��.ttrila ._ • .... ...... , i.„,..4 ;,.. ...4.,. . . pritipispil .- i \ t_krle___ .-.2.11 • h -102, 144‘11dINVIELIF.IR t a I rairo opiirf 1 cm-iumpi ... ® 1►iiW��� i . .. 11 . . _ _ /1 � I1- n• \ Apiryi � �J 1 L i II�, 1 vin.i1i,../ • ill Milt i �. �� ;�=��� Wireavc: "� '� � � ,_:J.-�'*"Amo . - Ali -L___ • r�4� v1��J _ �i� \� • tl11I - I . t1j :fFTHe _Ii �plipi�)..,�► lii- :.� 1 - I.11.ff I::......./)v* / ,. ___ -L r II I \ 1 N •-_gaioolisw:-:-r • ••"• 1 •' :.•-• 14.-- ' -,..- 4r-riftioN.__. : -- .431 -_-'11"-cili i 1 v •m?4, - .. i,. Fituteis,I .%Ilk . ! 14111411 _ W 4 Waimine L___ Will-A;aL • . — _ r.--IlLIbi 411 l'hii fir__,,.......1,s;%ft. !,....t,. ...,,-.... • • ..... ... • i /131 I , , iii• ": 1 era. 1 1, mg, ; .....-,..,,,.,. "1„44 . w • , i' .. . Pi : Ing lagm ‘ WWII 1/111:d6..' Ob4 I ' '"..'.. -1- ���"A AMPS WHERE ADLL,T :�DTIO:Q PICTURE �'�. ' ff l' .ERE ARE ALLOWED BY OFF. 3526 '' `AND 1UII : 29 , .,:_ \ 1 -- I MI LAKE I rouKcs .......a ,..Otmtd:rLn ss. . j• : (4.. tiY Uf RING 1 _T,(E-.IArarr.. ..t i n modelrn y l+.rd fo the C+y R . bdeshin on.do hereby certif tr, '' trKiK°rasncs is a ant and awl n Ropy of rdinence No..,.� _ d__ the City al faotw.a it arms en to. (/,��J,teen'r/1,y60//�._) n my a tics,and do further certify that the same has bscn pabtis3ed accardrn Wm 04 741 352E In Maas Whereon tare hxeunto. aha • en. _ iced the sa •r, dey mid /w - - e; 'e., , . CITY OF RENTON, WASHINGTON ' ORDINANCE NO. 3629 • AN ORDINANCE OF THE• CITY OF RENTON, WASHINGTON RELATING,TO LAND USE AND ZONING WHEREAS, on April 13. 1981, the City Council of the`City of R-nton adopted',Ordinance No. 3526, which Ordinance was approved by t e Mayor on April 13, 1981, and became effective by its own �' term on June 14, 1981; and 0 WHEREAS,it was the intention of the City Council of the F City of Renton in'the adoption of that Ordinance to'rely upon the • • opinion of the United States Supreme Court in the case of Young v. American Mini Theaters, 427 US 50, and of the Supreme Court of the tate of Washington it the case of Northend Cinemas v. Seattle, 90 Wp 2d, 709, to limit the location of adult motion picture theaters. • as t, at term is defined therein, to promote the City of Renton's great interest in 'protecting and preserving the quality of its neighborhoods, commercial districts, and the quality of 'urban life thro It gh effective land use planning; and WHEREAS, 'the City Council, through its. Planning and Deve1.opment Committee, held.a public meeting on March 5, 1981, to receive testimony 'from the public concerning the subject of .regulation of adult entertainment land uses, at which the following testimony was eceived which the City Council believes to be true. and which form:d the basis for the adoption of Ordinance No. 3526: 1. Areas within close walking distance of single and multiple family dwellings should be free of adult ' entertainment land uses. 2. Areas where children. could be expected to walk, .patronize or recreate should be free of adult • 'entertainment land uses. 3. Adult entertainment land uses should be located , in areas of the City which are not in close ' proximity to residential uses, churches, parks and other public facilities, and schools. 1 • 4. The image of the City of Renton as a pleasant • • and attractive place to reside will be adversely 11 • • • • affected by the presence of adult entertainment land uses in close proximity to residential land uses, churches, parks and other public facilities, and schools. 5. Regulation of adult entertainment land uses should be developed to prevent deterioration and/or degradation of the vitality of the community before the problem exists, rather than in response to an existing problem. 6. Commercial areas of the City patronized by young people and children should be free of adult enter- tainment land uses. 7. The Renton School District opposes a location of adult entertainment land uses within the perimeters of its policy regarding bussing of students, so that students walking to school will not be subjected to confrontation with the existence of adult entertain- ment land uses. 8. The Renton School District finds that location of adult entertainment land uses in areas of the City which are in close proximity to schools, and commercial areas patronized by students and young people, will have a detrimental effect upon the quality of education which the School District is • providing for its students. 9. The Renton School District finds that education of its students will be negatively affected by location of adult entertainment land uses in close proximity to location of schools. 10. Adult entertainment land uses should be regulated by zoning Ito separate it from other dissimilar uses just as any other land use should be separated from uses with characteristics different from itself. 11. Residents of the City of Renton, and persons who are non-residents but use the City of Renton for shopping and other commercial needs, will move from the community or shop elsewhere if adult entertainment land uses are allowed to locate in close proximity to residential uses, churches, parks and other public facilities, and schools. 12. Location of adult entertainment land uses in proximity to residential uses, churches, parks and other public facilities, and schools, may lead to increased levels of criminal activities, including prostitution, rape. incest and assaults in the vicinity of such adult entertainment land uses. 13. Merchants in the commercial area of the City are . concerned about adverse impacts upon the character and quality of the City in the event that adult entertainment land uses are •located within close proximity to residential uses , churches,parks and other public facilities, and schools. . Location of -2- adult entertainment land uses in close proximity to residential uses, churches, parks and other public facilities, and schools, will reduce retail trade to commercial uses in the vicinity, thus reducing property values and tax revenues to the City. Such adverse affect on property values will cause the loss of some commercial establishments followed by a blighting effect upon the commercial districts within the City, leading to further deterioration of the commercial quality of the City. 14. Experience in numerous other cities, including Seattle, Tacoma and Detroit, Michigan, has shown that location of adult entertainment land uses degrade the quality of the areas of the City in which they are located and cause a blighting effect upon the city. The skid row effect, which is evident in certain parts of Seattle and other cities, will have a significantly larger affect upon the City of Renton than other major cities due to the relative sizes of the cities.. 15. No evidence has been presented to show that location of adult entertainment land uses within the City will improve the commercial viability of the community. ,16. Location of adult entertainment land uses within walking distance of churches and other religious facilities will have an adverse effect upon the ministry of such churches and will discourage • • attendance at such churches by the proximity of adult entertainment land uses. 17. A reasonable regulation of the location of adult entertainment land uses will provide for the protection of the image of the community and its property values, and protect the residents of the community from the adverse effects of such adult entertainment land uses , while providing to those who desire to patronize adult entertainment land uses such an opportunity in areas within the City which are appropriate for location of adult entertainment land uses. • 19. The community will be an undesirable place to live if it is known on the basis of its image as the location of adult entertainment land uses. 20. A stable atmosphere for the rearing of families cannot be achieved in close proximity to adult entertainment landuses. 21. The initial location of adult entertainment land • uses will lead to the location of additional and similar uses within the same vicinity, thus multiplying the adverse impact of the initial location of adult entertainment land uses upon the residential, churches, • parks and other public facilities, and schools, and the impact upon the image and quality of the character of the community. -3- • • • and WHEREAS, since the adoption of Ordinance No. 3526, it has come to the attention of the City Council of the City of Renton that it would be appropriate to set forth in writing the findings • of fact which were the basis for the adoption by the City Council of Ordinance No. 3526; and • WHEREAS, the City Council finds that, in order to choose the leas restrictive alternative available to accomplish the purposes for whic1 Ordinance No. 3526 was adopted, and to include a severabilit clause w ich was inadvertently omitted from Ordinance No. 3526, and • to make ertain other technical amendments to Ordinance No. 3526, that it 's necessary for the City Council to adopt legislation amending Ordinance No. 3526 to accomplish the foregoing purposes; and WHEREAS, the City Council, at its duly called special meeting n February 25,, 1982, held a public hearing upon the subject matter o land use regulations of adult motion pictures within the City of enton, at which public hearing the City Council received comments from the public on that subject matter at which the followinr, testimon was received, which the City Council believes to be true, and which, together with the findings heretofore set forth as the basis for the adoption, of Ordinance No. 3256, form the basis for the adopt on of this Ordinance: 1. Many parents have chosen the City of Renton in which to' raise their •families because of the lack of pornographic entertainment outlets with its influence upon children external to the home. 2. Location of adult entertainment land uses on the main commercial thoroughfares of the City gives an impression of legitimacy to, and causes a loss of sensitivity to the adverse affect of pornography upon children, established family relations, respect . for marital relationships and for the sanctity of marriage relations of others, and the concept of • non-aggressive consenual sexual relations. -4- • • • • 3. Citizens from other cities and King County will travel to Renton to view adult film fare away from areas in which, they are known and recognized. 4. Property values in the areas adjacent to the adult entertainment land uses will decline, thus causing a blight upon the,commercial area of the City of Renton. 5. Location of adult entertainment land uses within neighborhoods and commercial areas of the City of Renton is disrupting to youth programs such as Boy • Scouts, Cub Scouts and Campfire Girls. Many such youthprograms use the commercial areas of the City as a historical research resource. Location of adult entertainment land uses in close proximity to residentia; uses, churches, parks and other public facilities and schools is inappropriate. • 6. Location of adult entertainment land uses in close proximity to residential uses, churches, parks and other public facilities, and schools, will cause a degradation of the community standard of morality. Pornographic material has a degrading effect upon the • relationship between spouses. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASH I; DO ORDAIN AS FOLLOWS: SECTION I: Existing Section 4-702 of Title IV (Building • Regulations) of Ordinance No. 1628 entitled "Code of General Ordinance• • of the City of Renton" is hereby amended by adding the following sub- sections: "Used" The word "used" in the definition of "Adult moti, picture theater" herein, describes a continuing course of conduct of exhibiting "specific sexual activities" and "specified anatomical area: in.a manner which appeals to a prurient interest. SECTION II: Existing Section 4-735 of Title IV (Building • Regulations) of Ordinance No. 1628 entitled "Code of General Ordinance• of the City of Renton" is hereby amended by adding the following subsecti• (C) Violation of the use provisions of this section is decla• to be a public nuisance per se, which shall be abated by City Attorney by way of civil abatement procedures only, and not by criminal prosecut (D) Nothing in this section is intended to authorize, legalize or permit the is tablishment, operation or maintenance of any • busine s, building or use which violates any City of Renton ordinance or sta ute of the State of Washington regarding public nuisances, sexual conduct, lewdness, or obscene or harmful matter or the exhibition or public display thereof. -5- • SECTION, III: Existing subsection (A)(2) of Section 4-735 of Title IV (Building Regulations) of Ordinance No. 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended to read as follows: .2. One thousand feet (1,000') of any public or private school. SECTION IV: City of Renton Ordinance No. 3526 is hereby amended by adding the following section to read as follows: If any section, subsection, sentence, clause, phrase or any portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Ienton hereby declares that it would have adopted City of Renton Ordinance No. 3526 and each section, subsection, sentence, clause, phrae or portionithereof irrespective of the 'fact that any one or more sections, subsections, sentences, clauses, phrases or portions be d Glared invalid or unconstitutional. SECTION V: If any section, subsection, sentence, clause, phrase or any portion of this ordinance is for any reason held to be • invalid or unconstitutional by the decision of any court of competent juri diction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of R nton hereby declares that it would have adopted this ordinance and ach section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, sub- sections, sentences, clauses, phrases or portions be declared invalid or unonstitutional. SECTION VI: The City Council of the City of Renton finds iI and declares that an emergency exists because of the pendency of litigation against the City of Renton involving the subject matter of this .rdinance, and potential liability of the City of Renton for f damag-s as pleaded in that 'litigation, and that the immediate adoption • -6- • of this ordinance is necessary for the immediate preservation of public peak, health, and safety or for the support of city government • and its existing public institutions and the integrity of the zoning of the City of Renton. Therefore, this ordinance shall take effect immediately upon its passage and approval by the mayor. PASSED BY THE CITY COUNCIL this 3th day of May, 1982. 1?Delo��� ?•ieadtlerk APPROVED BY THE MAYOR this 3th day of May, 1982. Bar ara Y. Shinpoch, Mayor Approved as to form: • Lawrence J. Warren, City Attorney Date of Publication: May 7, 1982 • • • • -7- 1 2 Honorable Philip K. _ Sweigert , Magistrate 3 4 ------•---- -• 5 F z-7) --_-:.,- 6 i MAY 2 71:73' 7 7..!'!.FR.P: U.S NFL,- ..--,2.N r,ts-i;r: -,•,.. • 8 El' UNITED STATES DISTRICT COUR ______........_. ... '. ! :OR THE WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 PLAYTIME THEATRES, INC. , a. ) 11 Washington corporation, et al. , ) ) NO . C82-59M 12 Plaintiffs ) ) 13 vs ) ) 14 THE CITY OF RENTON, et al, ) ) 15 Defendants . ) , .. , •-• 16 - -- -_, THE CITY OF RENTON, a municipal ) NO. C82-263R • I r• ...Z.-- 17 corporation, , ) ) MEMORANDUM IN SUPPORT OF MOTION 18 Plaintiffs, ) FOR SUMMARY JUDGMENT ) 19 vs ) ) 20 PLAYTIME THEATRES, INC. , a ) Washington corporation, et al . , ) 21 ) Defendants . ) 22 ) 23 I. STATEMENT OF FACTS 24 City of Renton Ordinance No. 3526 was enacted by the 25 City Council on April 13, 1981 and became effective thirty (30) 26 days after its publication on May 15, 1981. This suit was 27 commenced in early 1982 after the Plaintiffs purchased two 28 theaters 1.L within the City of Renton which are clearly within the MEMORAND A IN SUPPORT OF MOTION WARREN & KELLOGG. P.S. FOR SUMMARY JUDGMENT ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. SOX 021I P . 1 RENTON. WASHINGTON 98037 255.5670 1 the proscribed distance from which Ordinance No . 3526 provides 2 for separation of adult motion picture theaters (as described 3 by the ordinance) from residential zones and uses, churches 4 and schools . 5 On May 3, 1982 , the City Council of the City of Renton 6 adopted, and the Mayor approved Ordinance No . 3629 which 7 amended in several areas the provisions of Ordinance No . 3526. 8 The principal amendments are as follows : 9 a. Findings of fact which the City Council found to be 10 true as of its adoption of Ordinance No . 3526 on April 13, 11 1982, reduced to writing . 12 b. Findings of fact as to the facts which the City Council 13 found to be true as of the adoption of Ordinance No . 3629 on 14 May 3, 1982, were adopted. 15 c. The word "used" is further defined to. be a continuing 16 course of conduct of exhibiting "specific sexual activities" 17 and "specified anatomical areas" in a manner which appeals to 18 a prurient interest. 19 d. The amending ordinance provided that uses which are 20 in violation of the provisions of Ordinance No . 3526 as amended 21 are declared to be a Public nuisance and shall be abated by 22 civil action filed by the City Attorney and not by criminal 23 enforc ment proceedings. 24 e. Ordinance No . 3526 provides that adult motion picture 25 theaters were to be separated from schools by a distance of 26 one mile.. Ordinance No . 3629 reduces that distance to 1000 27 feet. 28 MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT WARREN & KELLOGG. P.S. P . 2 ATTORNEYS AT LAW 100 SO. SECOND IT . P. O. BOX SMS RENTON. WASHINGTON 9E057 255-8678 • 1 f. Ordinance No . 3526 contained no severability clause. 2 Ordina ce No. 3629 adds such a severability clause to 3 Ordina ee No . 3526 . _ 4 he City of Renton ordinance was based upon the U. S . 5 Supreme Court holding in Young v. American Mini Theater , Inc . , 6 et al, 427 U.S . 50, 96 S. Ct. 2440, 49 L.Ed. 2d 310 (1976) . 7 In adopting Ordinance No . 3526 in April 1981 , the City used 8 language virtually identical to that contained in the operative 9 parts of the Detroit zoning ordinance. Subsequently, the • 10 ordinance was modified, as detailed above, as part of the City' s 11 continuing zoning jurisdiction, to make the ordinance the least 12 intrusive possible enactment in line with Young v. American 13 Mini Th ater, Inc . , supra and a series of other federal cases . 14 According to the Affidavit of David R. Clemens, in 15 support of Defendant' s motion for summary judgment, Ordinance 16 No . 362 leaves a substantial portion of the business 17 zoned p operty within the City of Renton available for the use 18 propose by the Plaintiff in this action. Under the authority 19 of Youn , supra, the ordinance is facially valid and has been 20 approve by the United States Supreme Court. With the rather 21 large area in which Plaintiffs can operate, it is clear there 22 is no impermissible time, place or manner restriction on 2'' Plainti fs' First Amendment rights. This case is ripe for entry 24 of summ ry judgment in favor of the City of Renton both as to 25 the Firt Amendment issue and the claim of damages under 42 U. S. C. 26 §1983 and 1988 . 27 28 MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT P . 3 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW tOO SO. =EOOND ET.. P. O. BOX •al RENTON.WASHINGTON 0e057 tee-ee78 1 II . AUTHORITY 2 A. THE ORDINANCES ADOPTED BY THE CITY OF RENTON ARE VALID AND CONSTITUTIONAL REGULATIONS OF PLAINTIFFS ' 3 ASSERTED FIRST AMENDMENT RIGHTS . 4. n June 24, 1976 the U. S. Supreme Court upheld a district zoning �rdinance r'elatin to the use of property for : (1) "Adult 5 g g P Y 6 Motion Picture Theater", (2) "Adult Book Store", and (3) "Adult 7 Mini Mo ion Picture Theater" in Young v. American Mini Theatre, 8 Inc.,a al, supra;. There, the defendants attacked the zoning g ordinance on grounds of vagueness.l! In rejecting these 10 "vagueness" claims, against the Detroit ordinance, Justice Stevens 11 applied the rule of law expressed in Erznoznik v. City of 12 Jacksonville, 422 U. S. 205, at 216, 95 S.Ct. 2268, .45 L.Ed. 2d 25 13 (1975) , that "if the statute' s deterrent effect .on legitimate is 14 'readily subject to a narrowing construction by the state courts ' " 15 then, th litigant would not be "permitted to assert the rights 16 of third parties' in the abstract ." See also Village of Hoffman 17 Estates v. Flipside, Hoffman Estates, Inc . , __U. S. , 102 S. Ct _, 18 71 L.Ed. ld. 362, 369 (1982) . 19 1; See Young, supra, at page 58: "There are two parts to Respondents' 20 claim that the ordinances are too vague. They do rot attack the specificity of the definition of "Specified Sexual Activities" or "Specified Anatomical 21 Areas." They argue, however, that they cannot determine taw much of the described activity may be permissible before the exhibition is "characterized 22 by an emp sis" on such matter. In addition they argue that the ordinances are vague because they do rot specify adequate procedures or standards for 23 obtaining a waiver of the 1,000-foot restriction." 24 2I� See Young, 'supra, at page 58-59: "We find it unnecessary to consider—the validity oeither of these argunents in the abstract. For 25 even if tt}ere may be some uncertainty about the effect of the ordinances on other litigants, they are unquestionably applicable to these Respondents. 26 The record indicates that both theaters propose to offer adult fare on a regular basis. Neither Respondent has alleged any basis for claiming or 27 anticipating any waiver of the restriction as applied to its theater. It is clear, therefore, that any element of vagueness in these ordinances has rot 28 affected these Respondents. lb the extent that their challenge is predicated (Footnote continued on next page) WARREN & KELLOGG. P.S. MEMORANDUM IN SUPPORT OF MOTION FOR ATTOIIN[TS AT LAW /00 1110. =GOND ST.. P. O. BOX •2111 SUMMARY .JUDGMENT MINTON. WASHINGTON 98037 D A 255.B678 1 Upon examining the language of the Detroit zoning 2 ordinance Justice Stevens, speaking for a plurality of the 3 Court , found that both conditions existed; first, that the 4 deterre t effect of the language was not "both real and 5 substantial" and secondly, that the language was "readily 6 subject to a narrowing construction by the state courts" , 7 at page 60: 8 "We are not persuaded that the Detroit zoning rdinances will have a significant deterrent effect 9 on the exhibition of films protected by the First Amendment. As already noted, the only vagueness in 10 the ordinances relates to the amount of sexually explicit activity that may be portrayed before the 11 naterial can be said to be ' characterized by an emphasis' on such matter. For most films the question 12 pill be readily answerable; to the extent that an area pf doubt exists, we see no reason why the ordinances 13 are not 'readily subject to a narrowing construction jby the state courts. ' Since there is surely a less 1a vital interest in the uninhibited exhibition of material that is on the borderline between Pornography and artistic 15 expression than in the free dissemination of ideas of 16 social and political significance, and since the limited amount of uncertainty in the ordinances is easily 17 1,8 on inadequate notice resulting in-a denial of procedural due process under the Fourteenth Amendment, it must be rej ected. Cf. Parker v. Levy, 417 US 19 733, 754-777, 41 L.Ed. 439, 94 S.Ct. 2547. 20 Because the ordinances affect communication protected by the First Amendment, respondents argue that they may raise the vagueness issue even 21 though there is no uncertainty about the impact of the ordinances on their 22 own rights. On several occasions we have determined that a defendant whose own speedo was unprotected had standing to challenge the constitutionality of a statute which purported to prohibit protected speech, or even speech 23 arguable protected. This exception from traditional rules of standing to raise constitutional issues has reflected the Court's judgment that the 24 very existence of some statutes may cause persons not before the Court to 25 refrain ft-om engaging. in constitutionally protected speech or expression. See Broadrick v. Oklahana, 413 US 601, 611-614, 37 L.Ed. 2d. 830, 93 S.Ct. 2908. 26 The exception is justified by the overriding importance of maintaining a free and open market for the interchange of ideas. Nevertheless, if the 27 statute's deterrent effect on legitimate expression is not 'both real and substantial, ' and if the statute is 'readily subject to a narrowing 28 construction by the state courts, ' see Erznoznik v. City of Jacksonville, 422 US 205, 216, 45 L.Ed.2d 125, 95 S.Ct. 2268, the litigant is not permitted to assert the rights of third parties." WARREN & KELLOGG. P.S. MEMORANDUM IN SUPPORT OF MOTION FOR ATTORNEYS AT LAW 100 f0. SECOND fT.. P. O. BOX •2• SUMMARY JUDGMENT RENTON. WASHINOTON 98057 P. 5 255.5678 1 1 susceptible of a narrowing construction, we think this is an inappropriate case in which to adjudicate the 2 hypothetical claims of persons not before the Court. " (Emphasis added) 3 In his ruling, Justice Stevens noted in Young, supra, 4 at page 71 , that this was an area of the law in which "the city' s 5 interest in attempting to preserve the quality of urban life is 6 one that must be accorded high respect. Moreover , the City must be allowed a reasonable opportunity to experiment with solutions 8 to admittedly serious problems. " 9 The City contends that, because Renton Ordinance No . 3526 10 contains the identical language used in the Young case,. this 11 2Court is required to adhere to Judge Stevens ' plurality opinion 1 which holds that such language is,not susceptible to attack in 13 the fede a1 courts because it is, as a matter of law, "readily 14 15subject to a narrowing construction by the state court. " he City has taken additional legislative action to 16 17clarify some of the uncertainties which the Young court 18 acknowle ged (and also readily accepted) . Subsequent to oral 19argument on Defendant' s Motion to Dismiss on March 12, 1982, 20 the City Council affirmatively acted to amend the Renton ordinance 21 and to add by legislative means the "narrowing construction" 22 which Justice Stevens stated was sufficient to keep the matter 23 outside of the jurisdiction of the Federal Court. 24 The problem of irreparable harm which was created by the 25 threat of criminal prosecution in Steffel v. Thompson, 415 U. S . 452, 26 has been overcome by the requirement that the governmental action 27 under the city ordinance be restricted to civil process . Whereas 28 the Plaintiffs could formerly claim, as did Steffel, to be in fear MEMORANDUM IN SUPPORT OF MOTION WARREN & KELLOGG. P.S. FOR SUMMARY JUDGMENT ATTORNEYS AT LAW 100 SO. SECOND Si.. P. O. SOX S21 P . 6 RENTON. WASHINGTON 90O57 255-8676 1 of a criminal action for violation of the law, which constituted 2 "irreparable injury" to establish the basis for federal 3jurisdiction for issuance of an injunction, that claim can no 41onger b urged in these proceedings . The only risk of harm 5that the Plaintiffs now face is the possible adverse judgment 6 of a State Court in a civil action from the change in use that ? the Plaintiffs have alleged in a verified complaint that they 8intend t7 carry out. 9 The specific definition given to the word "used" in 10 Section 1 of Ordinance 3629, passed and adopted on May 3, 1982, 11 namely, 12 "The word 'used' in the definition of "Adult 13 Motion Picture Theater ' herein, described a continuing course of conduct of exhibiting 14 ' specific sexual activities' and ' specified anatomical areas' in a manner which appeals 15 to a prurient interest. " 16provides the narrowing legislative construction which Justice 17Stevens stated could be given by the State courts. See, also, 18the analysis of Justice Marshall as to the term "Designed for 19use" in Village of Hoffman Estates v. Flipside, Hoffman Estates , 20Inc. , U. S. 71 L.Ed. 2d. 362, 102 S.Ct (Mar. 3, 1982) 21 The pronouncement of Section II(c) of Ordinance 3629 22 that "violations of the use provisions of this Section is declared 23 to be a ublic nuisance per se, which shall be abated by City 24 Attorney by way of civil abatement procedures only", is a 25 codification of existing law, which declares in a positive manner 26 that a violation of the use provisions of Ordinance No. 3526, as 27 amended, is a public nuisance which is subject to abatement by the 28 state and city acting pursuant to its sovereign powers . McQuillan, MEMORANDUM IN SUPPORT OF MOTION WARREN eI KELLOGG. P.S. - wrroltNcrs AT LAW FOR SUMMARY JUDGMENT I00. . MOONS ST.. P. O. sox .a. RamoH. WASHINGTON 98057 P .7 155-8878 1 Municipal Corporations, Vol. 8, Section- 25. 11 "Zoning and 2Nuisances" at page 31 and Shields v. Spokane School District, 3No . 81 , 31 Wash. 2d. 247, 196 P. 2d. 352 (1948) , following Robinson 4Brick Co v. Luthi, 115 Colo 106, 169 P. 2d 171, 166 A.L.R. 655, 5cited at footnote 5 of the McQuillan text . 6 The Plaintiffs can no longer claim that every litigant ?asserting a federal right is entitled to one unencumbered $opportunity to litigate that right in Federal District Court . 9See Allen v. McCurry, 449 U. S. 90, 101 S.Ct. 441, 66 L.Ed. 2d. 308 10 (1980) , at 103 : 11 "The actual basis of the Court of Appeals' holding 12 appears to be a generally framed principle that every person asserting a federal right is entitled to one 13 Unencumbered opportunity to litigate that right in a cederal district court, regardless of the legal posture 14 in which the federal claim arises. But the authority or this principle is difficult to discern. It cannot 15 lie in the Constitution, which makes no such guarantee, but leaves the scope of the jurisdiction of the federal 16 district courts to the wisdom of Congress . And no such authority is to be found in Section 1983 iteself. " 17 and at 105: 18 "The only other conceivable basis for finding a 19 }universal right to litigate a federal claim in a federal district court is hardly a legal basis at 20 all, but rather a general distrust of the capacity Of the state courts to render correct decisions on 21 onstitutional issues. It is ironic that Stone v. Powell provided the occasion for the expression of such 22 an attitude in the present litigation, in view of this Court' s emphatic reaffirmation in that case of the 23Constitutional obligation of the state courts to uphold federal law, and its expression of confidence in their 24 ability to do so. 428 U. S. , at 493-494, n 35, 49 L. Ed. 2d 1067, 96 S.Ct. 3037; see Robb v. Connolly, 111 U. S. 25 624, 637, 28 L.Ed. 542, 4 S.Ct. 544 (Harlan, J. ) . " 26 s illustrated by the Affidavit of David R. Clemens 27in suppo t of City of Renton' s Notion for Summary Judgment, the 28 regulation asserted by the City of Renton under Ordinance No. 3526, MEMORANDUM IN SUPPORT OF MOTION WARREN & KELLOGG. P.S. ATTORNEYS AT LAW S Y JUDGMENT 100 w. SECOND WT.. P. O. BOX SI. P . 8 RENTON. Wed ee�e N 95057 1 as amen ed, allows' ample opportunity for exercise of First 2 Amendme t rights within the City of Renton as required by 3 Young, supra, and Schad v. Burrough of Ephraim, .U.S. , 4101 S.Ct. , 63 L.Ed. 2d. 671 (1981) . The regulations being • 5a reasonable time, place and manner restriction as approved 6in Young, supra, there is no impermissible restriction ?upon P1 intiffs ' asserted First Amendment rights. The ordinance 8 is cons itutional on its face and as applied. Plaintiffs may 9claim no element of vagueness in the ordinance. Therefore, their 10cause o action for declaratory and injunctive relief should be 11 dismiss d with prejudice. . 12 B. PLAINTIFFS' CLAIM FOR DAMAGES UNDER SECTION 1983 T3 AND 1988 MUST BE DISMISSED BECAUSE PLAINTIFF' S CLAIM FAILS TO STATE A CLAIM UPON WHICH RELIEF 14 CAN BE. GRANTED, AND PLAINTIFFS' CONSTITUTIONAL RIGHTS! HAVE NOT BEEN INFRINGED. 15 Plaintiffs have claimed damages under 42 U. S.C. §1983 16 and 1988, which claim is premised upon their assertion of a 17 violation of their constutitional rights by the enactment 18 (as opposed to the enforcement) of Ordinance No. 3526, as 19 amended. Under the rationale expressed in Allen v. McCurry, 0 449 U. S. 90, 101 S.Ct 441, 66 L. Ed. 2d. 328 (1980) , and Parratt 21 v. Taylor, U.S . 101 S. Ct. , 68 L.Ed. 2d. 420 (1981) , 22 a cause of action cannot be plead and federal jurisdiction laid 23 under 4 U.S .C. i1983 unless one of the following three 24 circums ances is shown to exist: 25 (1) The State substantive law is facially 26 unconstitutional; 27 (2) The State procedural law is inadequate to allow full litigation of a constitutional claim; or 28 MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P .9 100 SO. SECOND ST.. P. O. SOX SRO RENroN. WASNINOTON 98057 258-8878 1 3) The State procedural law, though adequate in theory is inadequate in practice. 2 3In this case, none of the foregoing circumstances apply. As a 4matter o law, Ordinance 3526 is facially constitutional. See Young, s pra, at 58-60. The procedural law of the State of 6Washington is adequate to allow full litigation of Plaintiffs ' ?constitutional claim, provided that the Plaintiff can state a 8case or ontroversy to invoke the jurisdiction of the Declaratory 9Judgment Act of the State court in the first instance. In any l0event, no inadequacy in the State system of jurisprudence 11has beet shown to ,exist to prove that the State procedural law, 12through adequate in theory, is inadequate in practice. Therefore, 13for purposes of pleading Section 1983 damages, Plaintiffs have • 14 clearly ;ailed to state a claim upon which relief can be granted. 15 In any event, because the Plaintiffs ' claim for damages 16is premised upon a claim of violation of Plaintiffs ' constitutional 17rights, the arguments stated above foreclose their claim for damages. 18 Followin Young, supra, and Village of Hoffman Estates, supra, 19itischarthat the Cityof Renton has adopted an ordinance that 20 is facially constitutional, and previously approved by the 21 court, and that the State courts are now in a position to give the 22narrowin construction anticipated in Young, supra, to the extent 23 that such a construction may be necessary following the narrowing 24 amendment contained in Ordinance No . 3629. That being the case, 25 and no showing of constitutional violation existing, Plaintiffs ' 26 claim fo . damages under 42 U.S.C. $ 1983 and 1988 should be 27 dismisse with- prejudice. 28 MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW fOO SO. SECOND ST.. P. O. SOX$20 P.10 SEXTON.WASHINGTON 9e057 155.ee7e 1 III 2 CONCLUSION 3 The City of Renton, through its two ordinances, has 4established an area within the City of substantial size within 5 which Plaintiffs may place their adult entertainment business . 6The City has used judicially approved zoning methods and ?definitions, and thus has not infringed upon Plaintiffs' asserted 6First Amendment rights . That being the case, any further 9construction of the ordinance should be done by the State courts 10in accordance with the plurality decision in Young, supra. 110nce it is clear that this is a zoning case, and not a case 1'2involving violation of First Amendment rights, not only does 13'plaintiffs ' causes, of action for declaratory judgment and 14injunctive relief fall, but so must their claims for damages 15under 42 U. S.C. 1983 and 1988. There is no constitutional 16violation. The court is requested to dismiss Plaintiffs ' 17 Amended and Supplemental Complaint with prejudice. 18 19 Res Artfully submitted, 20 - 21 Daniel Kellogg 22 23 24 25 26 27 • 28 MEMORANDUM IN SUPPORT OF MOTION FOR S RY JUDGMENT WARREN & KELLOGG. P.S. ATTONHCT• AT LAW P .11 100 NO. 0SODND ST., P. O. SOY S20 RZXTON. WASHINGTON BBO87 255.8678 • Exhibit "K" (Reference: Petition at pg. 3, pg. 4, pg. 5, pg. 6, pg. 14, pg. 15 , pg. 16 , pg. 45, pg. 47. ) U.S. Magistrate Sweigert' s Report and Recommendation and Proposed Order, filed on November 5, 1982. I 2 3 4 I 5 . 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON • 8 AT SEATTLE 9 • PLAYTIME THEATRES, INC. , et al. , ) 10 Plaintiffs, ) • ) 11 v. ) CASE NO. C82-59M 12 CITY OF RENTON, et al. , ) ) .(' 13 Defendants. ) REPORT AND RECOMMENDATION 14 ' ) CITY OF RENTON, et al. , ) 15 ) Plaintiffs, ) 16 i ) v, ) CASE NO. C82-263M 17 !PLAYTIME THEATRES, INC. , et al., ) ) 18 ) Defendants. ) • 19 ) II 20 INTRODUCTION AND SUMMARY CONCLUSION 21 On February 23, 1982, the Court, approving and adopting a 22 Report and Recommendation filed February 3, 1982 (Dkt. #22) , entered an order denying plaintiffs' motion for temporary re- 23 straining order (Dkt. #39) . Three motions are presently befor= 24 the Court: First, plaintiffs' motion for preliminary injunc- 25 26 tion, second, defendants' renewed motion to dismiss, and, thir. , defendants' motion for summary judgment. At a hearing conduct 27 ed on June 23, 1982, the undersigned heard oral testimony, 28 received documentary evidence, and heard the arguments of 29 counsel with respect to all three motions. Based thereon and 30 upon the affidavits and the balance of the record before me, 31 and for the reasons set forth herein in some detail, I concluc 32 REPORT AND RECOMMENDATION - 1 ►PI-SR-104• IL5?I-1S5 \Y I • 1 • 'that plaintiffs have established both a clear likelihood of 2' success on the merits and irreparable injury. I recommend that 3 the Court; enjoin enforcement of Renton's zoning ordinance deal- 4 ling with adult theatres. I also, of course, recommend denial 5 lof defendants' dismissal and summary judgment motions. 6 THE RECORD BEFORE THE COURT 7 • (A) The Ordinances. 8 In April of 1981, the City of Renton enacted Ordinance \\\' 9 No. 3526 'providing that adult motion picture theatres as de- 10 fined therein were prohibited: 11 (1) Within or within 1,000 feet of any residential 12 zone or single family or multiple family use; 13 , (2) Within one mile of any public or private school; 14 , (3) .Within 1,000 feet of any church or other reli- 15 gious facility dr institution; and, 16 (4) Within 1,000 feet of any public park or P-I zone. 17 Early in 1982, plaintiffs acquired two existing theatre 18 buildings in the City of Renton. It was their intention to !� 19 !show feature length sexually explicit adult films in one of i 20 :them. The theatre buildings, however, were located in an area 21 proscribed. by Ordinance No. 3526, prompting plaintiffs to com- 22 mence the present action seeking damages and an injunction prohibiting enforcement of the ordinance on due process, First 23 Amendment, and equal protection grounds. Their principle con- 24 • tentions are that the City of Renton failed to factually suppo t 25 26 a sufficient governmental interest justifying intrusion upon protected speech and that the ordinance was not a mere loca- 27 • tional restriction but a virtual prohibition of adult theatres 28 in the City of Renton. 29 While the case was pending, more specifically in May, 198 •, 30 defendant City of Renton enacted Ordinance No. 3629, which • _ 31 amended Ordinance No. 3526. The principle changes were: 32 REPORT AND RECOMMENDATION - 2 rm.CST-1 •76 • 1 (1) The amending ordinance contained an elaborate 2 statement of the reasons for enacting both Ordinance No. 3 3526 and Ordinance No.,3629; 4 (2) A definition of the word "used" was added; 5 (3) Violation of the use provisions of the ordinance' 6 was declared to be a nuisance per se to be abated civilly 7 and.not by criminal enforcement; 8 (4) The required distance of an adult theatre from a 9 school was reduced from one mile to 1,000 feet; and, • 10 (5) A severability clause was added. 11 The ,amending ordinance, No. 3629, also contained an emer- 12 gency clause and was to be effective as of the date of its 13 passage and approval by the mayor, May 3, 1982. • \ 14 On June 14, 1982, defendants passed yet a third ordinance, 15 No. 3637, which was identical to Ordinance No. 3629 in all 16 .respects except that the emergency clause was deleted and the 17 'ordinance was to become effective thirty days following its 18 publication. 19 'While plaintiffs argue that the only ordinance before the 20 ICourt is No. 3526, they are clearly incorrect. Their request 21 Ifor injunctive relief obligates the Court to consider any and 22 all changes in the applicable zoning scheme to the date of its ruling. 23 I (B) Events Leading to Passage of the Ordinances. 24 25 The City of Renton presently has no theatres which exhibi sexually explicit adult films. It appears that in May of 1980, 26 at the suggestion of a City of Renton hearing examiner, the 27 mayor suggested to the City Council that they consider the 28 advisability of passing zoning legislation dealing with adult 29 entertainment uses, specifically "adult theatre[s] , bookstore[-] , 30 film and/or novelty shop[s]" prior to the time any such busi- 31 nesses might seek to locate in the city. The mayor's memorand 32 REPORT AND RECOMMENDATION - 3. rr,-xc-IQ.7S MW-MU 1 (suggested that some cities had experienced difficulties in I 2 I"re-doing" their zoning ordinances once such uses were esta- 1 I 9 Lblished in the community. l On March 5, 1981, the Planning and Development Committee 4 I I S of the Council held a meeting for the purpose of taking public testimony on the subject. While there is no record of that 6 meeting, Mr. Clemens, then the City's acting Planning Director 7 8 lwho was present at the meeting, testified that the Superinten- 9 ,dent of Schools, and the President of the Renton Chamber of 10 (Commerce spoke to concerns about adverse affects which adult 11 entertainment uses would have upon the economic health of Renton's businesses and upon children going to and from school. 12 He also testified that other citizens spoke generally about the 13 adverse affects of such uses. Mr. Clemens further testified 14 15 that he and his department reviewed the decisions of the Wash- •ington State Supreme Court in Northend Cinemas v. Seattle, 90 16 'I 2d, 709, and of the United States Supreme Court in Young v. 17 18 ',American Mini Theatres, 427 U.S. 50 (1976) , and presented the r ilinformation from their review to the Planning and Development 19 1ICommittee. He indicated generally that review of those cases 20 I; lindicated that adult entertainment uses tend to decrease pro- 21 perty values and increase crime. 22 On April 6, 1981, the Planning and Development Committee 23 of the Council recommended that an appropriate zoning ordinance t 24 be written to reflect the following conditions: 25 " (a) No adult motion picture theatre will be 26 allowed in an area used or zoned residential or in any P-I public use area. 27 " (b) A suitable buffer strip of 1,000 feet 28 from any residential or P-I area also be a banned area; 29 "(c) The area enclosed in a one mile radius 30 of any school (this is the minimum student walking distance) would also be a banned area." 31 Ordinance No. 3526 was the result. 32 REPORT AND RECOMMENDATION - 4 rm-ma-10.11Y . IY.SM-I.1 1 1 (C) The; Effect of the Ordinance. 2 While th;e record would indicate that there are some 200 3 'acres of property within the city limits of Renton where 4 an adult theatre might conceivably locate, the testimony and I . 5 affidavits show that, with but one exception, none of that pro- 6 perty would be suitable for the location of a theatre. The 7 'area is largely undeveloped and what development there is is 8 'entirely unsuitable for retail purposes in general and for 9 Itheatre purposes in particular. The developed areas include: i 10 (1) A Metro sewage disposal site and treatment plant; 11 (2) Longacres Racetrack and environs; • 12 (3) A business park containing buildings suitable 13 only for industrial use; {` ' 14 (4) Warehouse and manufacturing facilities; 15 (5) A Mobile Oil tank farm; and, 16 1 - (6) A fully developed shopping center. 17 The entire area potentially available for the location of 18 Ian adult theatre is far distant from the downtown business 1 •• 19 !district, net well lit during night time hours, and also i 20 Iggenerally devoid of pedestrian and vehicular traffic during 21 I such hours. The two sites which are potentially suitable are fully 22 developed and occupied by fast food restaurants. 23 DISCUSSION 24 • As indicated in my prior Report and Recommendation, the 25 party requesting injunctive relief must clearly show either: _ 26 (1) probable success on the merits and possible irreparable 27 ' injury, or !(2) sufficient serious questions as to the merits 28 to make them a fair ground for litigation and a balance of 29 hardship tipping decidely in favor of the party seeking relief, 30 . Los Angeles Memorial Coliseum Commission v. N.F.L. , 634 F. 2d 31 1197 (9th Cir. 1980) . i conclude that plaintiffs meet the , 32 ' foregoing test. ;I FT1-SST-10478 1su-1:ss REPORT AND' RECOMMENDATION - 5 • (1) Probability of Success on the Merits. 2 A city's authority to zone is a well recognized aspect of 3 the police power. But when a zoning ordinance infringes upon 4 speech protected by the First Amendment, it must be narrowly 5 drawn to further a substantial government interest. Schad v. 6 Borough of Mt. Ephraim, 452 U.S. 61 (1981) ; Kuzinich v. County of Santa Clara, F. 2d —, No. 81-4460 Ninth Circuit slip 8 op. October 12, 1982. The City of Renton's zoning ordinance 9 relating to adult theatres plainly implicates First Amendment 10 rights. It is not limited to motion picture theatres catering 11 to those with an appetite for obscene films falling outside the 12 protections of the First Amendment, Miller v. California, 413 13 U.S. 15 (1973) . Rather, patterned upon the ordinance approved 14 in Young v. American Mini Theatres, 427 U.S. 50 (1976) , it re- 15 Igulates sexually explicit but nonobscene films as well. 16 ,I Defendant City of Renton contends, however, that no First 17 Amendment rights are involved because the ordinance only regu- 18 Ilates the time, place, and manner of the operation of adult 1'• :, 19 'theatres. It relies on American Mini Theatres, supra. However, 20 'I believe the ordinance in American Mini Theatres is clearly 21 distinguishable. The ordinance in the instant case, for all 22 practical purposes, excludes adult theatres from the City of (Renton and therefore greatly restricts access to lawful speech. 23 The ordinance approved in American Mini Theatres had no such 24 effect. 25 Defendants contend that the City has provided an area 26 within which adult theatres may locate. However, while in 27 theory such area is available, in fact, the area is entirely 28 unsuited to movie theatre use. Restricting adult theatres to 29 the most unattractive, inaccessable, and inconvenient areas of 30 the city has the effect of suppressing or greatly restricting 31 access to lawful speech. American Mini Theatres, supra, 427 32 REPORT AND RECOMMENDATION - 6 FPI-SST-143-7Y 1 ✓) 1 'U.S. at 71 n. 35. See Basiardanes v. City of Galveston, 682 F.1 2 I2d 1203 (5th Cir. 1982) ; Avalon Cinema Corporation v. Thompson, 3 667 F. 2d 659 (8th Cir. 1981) ; Keego Harbor Co. v. City of 4 lixeego Harbor, 657 F. 2d 94 (6th Cir. 1981) ; Alexander v. City 5 Lbo Minneapolis, 531 F. Supp. 1162 (N.D. Minn. 1982) ; Purple _- 6 IlOnion, Inc. v. Jackson, 511 F. Supp. 1207 (N.D. Ga. 1981) ; 7 IBayside Enterprises, Inc. v. Carson, 450 F. Supp. 696 (M.D. Fla. 8 11978) ; E &'B Enterprises v. City of University Park, 449 F. 9 .Supp. 695 (N.D. Tex. 1977) ; cf. Deerfield Medical Center v, 10 City of Deerfield Beach, 661 F. 2d 328 (5th Cir. 1981) . ' 11 Because the Renton ordinance drastically impairs the 12 availability in Renton of films protected for adult viewing by 13 Ithe First Amendment, it must be reviewed under the stringent re: . 14 Istandardsiof Schad, supra. Schad directs the court to examine 15 the strength and legitimacy of the governmental interest behind 16 the ordinance and the precision with which it is drawn. Unless 17 lithe governmental interest is significant and is advanced with- 18 lout undue restraint on speech, the ordinance is invalid. Schad, ( 19 11452 U.S. at 70. ` II The City of Renton has asserted that it has a substantial 20 'governmental interest in zoning restrictions which will prevent 21 deterioration of its neighborhoods and its downtown areas. But 22 it is not, sufficient to assert such interest. The City must 23 establish, a factual basis for its asserted reasons and that it 24 considered those facts in passing the ordinance. Those reasons 25 must be unrelated to the suppression of free expression. 26 . United States v. O'Brien, 391 U.S. 367 (1968) ; Kuzinich v. 27 County of Santa Clara, supra. 28 Many of the conclusory statements of the reasons for 29 enacting the Renton ordinances reflect simple distaste for 30 adult theatres because of the content of the films shown. 31 Yeven- Those statements directed at legitimate fears such as p I 32 REPORT AND RECOMMENDATION - 7 ►PI-•SST-t i10 • • Ftion of crime and deterioration of business and residential 2 neighborhoods are based principally upon the Planning Depart- :; uments review of other court cases in which zoning legislation 4 Ilregulating! the location of adult businesses has been approved. ! 5 The City had little or no empirical evidence before it when the; 6 •initial ordinance was passed. More is required. Avalon Cinema 7 Corporation v. Thompson, supra; Keego Harbor Co. v. City of 8 Keego Harbor, supra; Basiardanes• v. City of Galveston, supra. 9 I conclude that the manner in which the ordinance was enacted, 10 'its narrow focus on adult theatres to the exclusion of other 11 adult entertainment uses which would presumedly contribute to 12 the same concerns, and the fact that most of the findings set forth 13 in the amendatory ordinance reflect citizen distaste for adult 14 theatres because of the film fare shown, suggests an improper 15 motive. , 16 Even assuming that the City has established a substantial 17 +(governmental interest, however, the ordinance will not pass 18 constitutional muster. The ordinance must be narrowly drawn 19 Ilto serve that interest with only a minimum intrusion upon First 20 lAmendmentfreedoms. Schad, supra. Here the intrusion upon 21 First Amendment expression is not minimal. Adult theatres are, 22 for all practical purposes, excluded from the City of Renton. The ordinance constitutes a prior restraint on speech and shoul. 23 24 .be held to be unconstitutional. (2) Irreparable Injury. 25 26 Irreparable injury is clear. Plaintiffs may not exhibit sexually explicit adult films without being subjected to civil 27 abatement proceedings. The loss of First Amendment freedoms 28 • ,for even minimal periods of time unquestionably constitutes 29 , irreparable injury in the context of a suit for injunctive 30 relief. Elrod v. Burns, 427 U.S. 373 (1976) ; Deerfield Medica 31 Center v.' City of Deerfield Beach, supra; Citizens fora Bette 32 _ Environment v. City of Park Ridge, 567 F. 2d 689 (7th Cir. 197 ) . rn-S r_10.171 13NI_ITU REPORT AND RECOMMENDATION - 8 • 1 I recommend that the Court enjoin enforcement of City of • i •, ',Renton Ordinance No. 3637 pending disposition on the merits. 3 IA proposed form of Order accompanies this Report and Recommen- ! 4 'dation. 5 DATED. this 5th day of November, 1982. 6 7 Philip K. Sweigart 8 United States Magistrate 1 9 10 11 12 13 14 15 • 16 --- 17 18 19 20 • 21 • 22 • 23 24 25 • 26 • • 27. 28 29 30 31 • 32 REPORT AND RECOMMENDATION - 9 1•.1•-SST-IM11:11 125M-1215 • • • 1 2 • 3 I. • 4 �► 5 ... . . 6 UNITED STATES DISTRICT COURT 7 , WESTERN DISTRICT OF WASHINGTON C • 8 AT SEATTLE PLAYTIME THEATRES, INC. , et al. , ) 9 ) 10 Plaintiffs, v. ) CASE NO. C82-59M 11 ) CITY OF RENTON, et al., ) 12 ) Defendants. ) ORDER DENYING DEFENDANTS' 13 ) MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT AND 14 CITY OF RENTON, et al. , ) GRANTING PRELIMINARY INJUNCTION PENDENTE LITE 15 Plaintiffs, ) 16 • v. ) CASE NO. C82-263M ) 17 PLAYTIME THEATRES, INC. , et al., ) ) 18 Defendants. ) • 1 ) 19 The Court, having considered plaintiffs' motion for 20 • preliminary injunction, defendants' renewed motion to dismiss 21 land motion for summary judgment, the Report and Recommendation 22 !of United States Magistrate Philip K. Sweigert, and the balance 23 of the records and files herein, does hereby find and ORDER: 24 (1) Said Report and Recommendation is hereby approved 25 and adopted; - 26 (2) ;Defendants' motion for summary judgment and renewed 27 motion to dismiss and hereby DENIED; 28 (3) 'Defendant City of Renton, its officers, agents, 29 servants, employees, successors, attorneys, and all those in 30 active concert or participation with them, are enjoined from 31 enforcing City of Renton Ordinance No. 3637 against plaintiffs, 32 ORDER 1 ' FPI-SST-I63.7 lZSW-Ia3 • • • 1 said preliminary injunction to remain in effect pending a 2 decision by this Court on the merits and until further order of 3 the Court; and, 4 (4) The Clerk of Court is to direct copies of this Order 5 to all counsel of record and to Magistrate Sweigert. 6 DATED this day of , 1982. 7 . 8 CHIEF UNITED STATES DISTRICT JUDGE 9 10 11 12 • - ' 13 14 15 16 • 17 • 18 19 20 • 21 • 22 23 24 25 • • 26 27- Y8 29 30 31 • 32 'ORDER - 2 m-SST-lost, 123M—uis 2 CITY CLERK 3 4 5 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY CITY OF RENTON, a municipal ) 6 I corporation, et al. , ) 7 ) Plaintiffs, ® ) NO. 82-2-02344-2 vs. ) 9 ) MEMORANDUM DECISION PLAYTEME THEATRES , INC. , a ) 10 Washington corporation, ) et al. , ) 11 ) Defendants . ) 12 ) 13 14 I . PROCEDURAL POSTURE OF CASE . 15 The Municipality of Renton in this cause seeks to enforce its ' 16 ordinance as enacted and amended to abate as a nuisance, per se, 17 the exhibition of certain sexually explicit films by defendant 18 corporation in a theatre, located at 507 South Third Street, 19 Renton, Washington. The defendants also sought to have Renton 20 enjoined from enforcement of its ordinance and have the same . 121 declared unconstitutional in a U .S. Federal District Court of ' 22 Western Washington Cause No . C82-59 M. Playtime Theatres Inc . et ' 23 al . v. City of Renton, et al . After extensive evidentiary 24 hearings, that challenge was denied by U .S. District Court Judge . 25 Waltelr F . McGovern and an appeal has been taken from the decision 26 to the U .S . Ninth Circuit Court of Appeals and is presently 127 pending . This court has accorded deference to the Ti/S . District ' 28 Court decision, has made the proceedings, including transcripts 29 and certain exhibits in that cause a part of the record of this 30 proceeding (Transcripts , exhibit #103 ; Map of the City Limits of 31 the City of Renton, exhibit # 104 ; Diagram of adult entertainment ,' ' 32 areas, exhibit #105 ; Aerial photograph showing adult entertainment 33 MEMORANDUM DECISION - 1 l areas , exhibit #103) . These exhibits were admitted in connection 2 with pre-trial issues, but were not submitted to the advisory 3 jury . 4 Following extensive pre-trial discovery and preliminary issues S resulting in a' denial of summary judgment in favor of either 6 party, the case came on for trial. An advisory jury was impa- 7 neled pursuant to a ruling by the Court that the same was 8 neces ary for the establishing of a community standard in applica- 9 tion f the Miller vs . California test . The advisory verdict was 10 returned Monday, January 23 , 1984 (Advisory Jury Verdict, Appendix 11 1 ) . 12 II . NATURE OF THE APPLICABLE ORDINANCE ENACTMENT. 13 The first task involves an analysis of the ordinances as 14 enacted and amended, and the implications of the language ,uti- 1S lized . (The Text of the Applicable Ordinances . Plaintiff ' s exhi- 16 bits ¶68 - 71 are as follows, Appendix 2) . 17 Al a preliminary summary of current law, ordinances such as 18 that nacted by Renton, will not be stricken as unconstitutionally 19 imper issible restraints upon First Amendment protections, so : long 20 as ce tain tests may be met. Initially it should be observed, 21 that obscene materials in films or otherwise are not afforded 22 First Amendment, protection. The problem is to determine which 23 materials may and which may not be so classified and in addressing 24 that classification, the governmental entity has a burden of over- 25 coming a presumption that the ordinance is invalid where freedom 26 of expression is involved . 27 • Reasonable regulations of time, place and manner of exhibi- 28 tions of films will be permitted if the regulations are shown to 29 be nlcessary to further significant governmental interests . �n which effectively t i curtail - ;0 Ordinances h ch a ec vely total or substantial availa 31 bilit of theatres to the public or prevent entry of new theatres I ' 32 33 MEMOR NDUM DECISION - 2 1 _ • 1 into a limited market, will not be sustained. This would be 2 construed as a total suppression of vital speech interests and 3 would operate as a prior restraint on the content of speech. 4 Wren a zoning ordinance infringes upon protected liberty, Isuch 5 as freedom of expression, it must necessarily be narrowly drawn to 6 further a sufficiently substantial governmental interest and is 7 sum t to close .acruf my by the courts ., i 8 T justify a sufficiently substantial governmental interest, I 9 the City must p',roduce some basis in fact and demonstrate that the 10 factu 1 basis was considered in passing the ordinance. 11 T e ordinance in question is modeled after the Detroit ordi- 12 nance in Young v. American Mini Theatres, 427 U .S. 50, 49 L.Ed. 2d 13 310 (1976 ) , 96 Sup. Ct. 2440 relied upon by our own court and 14 Northnd Cinema., Inc. v. The City of Seattle, 90 Wn.2d 709 , 585 15 P. 2d .153 (1978 ) . 16 By way of some difference, in addition to the prohibition of 17 the display of sexually explicit materials in a manner which 18 appeals to prurient interests within 1, 000 feet of certain family 19 uses, the Renton ordinance originally prohibited displays within 20 one mile of a public or private school (Ordinance 3526 , Section 21 II (a) ( 2) ) and ' was subsequently reduced to 1, 000 feet by 22 amendment. 23 Tlis court will not restate the long and tortuous history of 24 the s ruggle for definition in this area of the law since Roth v. 25 The U ited States, 354 U .S. 476 , 1 L. Ed. 2d 1498 , 77 Sup. Ct. 26 1304 (1957) and forward . Many of the cases involve the applica- 1 27 tion of standards with criminal prosecutions being the primary = 28 remedy. In recent years, civil proceedings such as abatement for 29 nuisance have been utilized. The decisions are replete with 30 illustrations of the difficulty of obtaining concensus and 31 agreement in individual cases. Literally hundreds of cases have 32 1 I . 1 1 wound their way through the state and federal systems with triers 2 of fact at odds over the application of a subjective standard with 3 appellate review of the final five U .S. Supreme Court Justices 4 being required for finality to the challenge. 5 If there be a chameleon area of the law reflecting the tenor 6 of the times and public mood, surely this is it. Any review of 7 the development of the law of obscenity illustrates clearly the 8 dramatic change in acceptability of materials and publications in 9 film and mass . communications. The shock over such books as 10 "Ulysses" by James Joyce or D. H. Lawrence' s "Lady Chatterley' s 11 Lover" seem remote, except that one must consider these celebrated 12 legal challenges occurred with respect to these materials not so 13 very long ago in this century. In a society which prizes liberty, 14 tolerance and learning, we are loathe to compromise such values to the realm of easily abused and difficult to define censorship, 1S 16 lestour entire political structure be adversely and irrevocably 17 impac ed, as has been demonstrated in other nations where issues 18 of public morality were subsumed by political repression. 1 A 19 the same time, we must be mindful of competing interests 120 advanced by a public entity on behalf of its citizenry to restrict 21 the exercise of certain activities in support of other legitimate 22 community goals . In assessing the reasonableness of the effort 23 being made through its regulation, it should be recognized that a 24 community has the right and obligation to safeguard its environ- ' 25 ment in many ways for the enhancement of the quality of life for 26 its citizens. The government has the right not only to maintain 27 envir7mental standards of a physical nature, but in a broader 128 moral, public safety and aesthetic environmental framework. 1129 Deference should be accorded a local community to set i s own 30 parameters unless it must be prevented from doing so because of 31 constitutional prohibitions which must be enforced to safeguard 132 133 MEMORANDUM DECISION - 4 I I 1 the right of a minority not sharing the dominant community view. 2 • However , in matters of zoning generally, communities are given 1 3 considerable latitude in the forms of their local management and 4 development . It also is important to observe that there is no s criminal prosecution involved in this proceeding, which would 6 involve ultimate sanctions against an offender , including the ;loss 7 of personal liberty, incarceration and the attendant extreme sanc- 8 tions thereof . 9 I is important to keep in mind that this is a civil ;pro- 10 ceedi g in which Renton seeks basically to restrict a particular 11 geogr phical area and eliminate the showing o certain sexually 12 expli it films; within 1,000 feet of itschurches, family residen- 13 tial reas ' and schools . The primary issue is, of course, towhat I � 1' extent is Renton able to do so and has it done so properly inithis case. 15 III . RENTON 16 17 T , e City of, Renton occupies the geographical area of roughly 18 15 .6 quare miles with a population of roughly 32,700 and hasIbeen 19 incor orated since September 6 , 1901 . The Renton theatre ' with 20 which we are concerned is located on a street which must be viewed 21 as th core of , the original and on-going commercial central area 22 of the city. Unlike some communities which have been a product of 23 rapid suburban growth only, superimposed on largely undeveloped or 24 minim _lly developed rural areas, Renton has maintained much of its 25 origi al downtown core area. This area not only contains commer- 26 cial uses , but !single residences and church and school uses which 27 have been, and continue to be, apart of' a neighborhood. Substan- 28 tial ecent investment in amenities is clearly evident and within 29 a ve y close proximity of the theatre, residences, businesses, 30 schools and churches, there are also municipal buildings and a 31 serie- of waterfront parks and recreational and civic use facili 32 • I i 33 MEMORANDUM DECISION - 5 J - I 1 ties •asically within a walking distance. Renton High School and 2 St. A thong' s Parish Parochial School are very nearby, within 3 blocks. There ; is no issue in this case that the theatre is 4 clear y within the zone which the City wishes to retain free of S the s owing of 'sexually explicit films which appeal to prurient 6 inter-st in sex.. 7 0 a broader periphery, Renton is also home to a large 8 airpl-ne manufacturing facility, Boeing, has numerous emerging 9 indus rial parks and associated businesses developing in ' the 10 valle area, the Southcenter shopping section, numerous smalller 11 shopping centers , Longacres Race Track, and of course, is relati- 12 vely near the airport. All of these uses involve considerable 13 numbe s of people moving in and out of those areas daily, although this olume of 'traffic would not necessarily be attracted to; the 14 1 15 immediate location of this theatre, but of course, might well be 16 attra ted to it as a transient population if it were in 17 opera ion. • 18 E idence was introduced which showed' that at other locations 19 in Re ton shopping areas, the same films being shown by stipula- 20 tion are readily available for sale or rental through 4ideo 21 stores , primarily for viewing in residential privacy. There are 22 no re trictions , by the City as to this option. The availability 23 of ot er specific geographic locations was not litigated inIthis 24 proce ding . However , as a general matter, a permissible inference 1 25 may b- drawn that Renton does consist of a large geographicaljarea 26 and t at elimination of the showing of sexually explicit films at i 27 the R-nton Theatre will not foreclose availability elsewhere: It 28 is th- conclusion of this court that Renton did not purport and I 29 will ot effectively eliminate the display of sexually explicit 30 films through the application of this ordinance, as in Schad v. - 31 Mount E•hraim, 452 U .S. 61 (1981) (total ban) , Keego Harbor 32 33 • MEMOR'NDUM DECISION - 6 I ' 1 \Lej4vil'Ap:)-IN , 1 Company v. City of Keego Harbor, 657 F. 2d, 94 ( 6th Cir . ) (1981) 2 (effeLive ban, a 300 acre city with 3,000 people where there was 3 no location within the confines of Keego Harbor that was not 4 within 500 feet of a bar or other regulated use. ) S Tle Rers y d.Lsperses adult theatres fromi what it has determined to_be_an inappropriate location. (::2 7 In considering whether Renton is entitled to have made such a\ 8 deter ination as to this area, in pursuance of a compelling governmental interest which could not be achieved by , any less j , 1 restrictive means, this court would find. that it has. It is yconstitutionally permissible to regulate businesses of this nature 11 12 in the manner of the 1 ,000 foot type ordinance as decided in Younq 13 v. American Mini Theatres , supra and Northend Cinema, supra. Even 14 if required to be narrowly drawn and required to further a 15 substantial governmental interest, the ordinance is first,: not 16 desig ed to suppress a particular form of expression. Itldoes 17 regul to certain conduct on a reasonable time, place and manner 18 basis to protect the quality of a neighborhood and important 19 Gusto ary amenities and needs thereof . 20 In Younq and its progeny, it is noted that concentrations of 21 certain regulated uses, including adult motion picture theatres 1 22 and bokstores, 23 "Tends to attract an undesirable quantity and , quality of transients, adversely affects property ) ' 24 values , causes an increase in crime, especially' prostitution, and encourages residences and busi-1 25 nesses to move elsewhere." Id. at 55, 96 Sup. Ct. at 2455 . o 26 For a small commercial area, the impact of one theatre of this 27 nature certainly can be deemed to alter the atmosphere of the 28 neighborhood, is likely to affect property values, deter residents 29 from L.emaining and adversely will impact criminal activity., It 130 will attract some proportion of individuals of behaviorial. 31 deviance with attendant risks to the citizenry as will be further 32 33 MEMORANDUM DECISION - 7 1 I y 1 discu set. The experience of other communities in this regard is 2 perti ent. Tie` a need not be�a'n e-lraiof• e�- eccYr�c t► re in each amd* 3 e gr"y case ass to he mg gitt1 Tyr partic ar a by btewwt- a 4 intitIrmErrhe coMni-'%Wri e of of er commune ies n e'°Tn=ofiw 6 i rc , esf-rmeirir°dfexpeef' ch" is very I com 7 moan -.perdtgmeri City of Whittier v. Walnut Properties, inc. , 8 139 C 1 . App. 3rd, 618 (1983) . 9 S xually explicit films are stimulative by definition. The 10 Diagnostic and Statistical: Manual of Mental Disorders of the 11 American Psychiatric Association, 3rd Edition (1982) itself at 12 sectiTn 302 .82 states, "watching pornography, filmed or live, l excitement ." 13 causes sexual 14 W ile it may be difficult , of course, to establish that speci- fic untoward predatory sexual overtures are likely to occur as to 16 young children or high school students or others in the vicinity 17 of an adult theatre as a result of over-stimulated patrons of the 18 theatre, there can be some risk of that sufficient to justify 19 dispe sal to areas where young people are not likely to be easily 20 accessible. 21 0 e of the films stipulated as representative, "Debbie Does - 22 Dallas, " which the advisory jury found obscene, focused upon sex 23 in many forms by older married men with teenage girls. In fact, 24 the high school girls would normally have been of a chronological 25 age under 18 . These young adolescent girls are portrayed as 26 highly precocious sexually and engage in various money transac- 27 tions designed to assist them in accompanying the football team to 28 a ga e in Dallas . The tone of the film projects a message that 29 these young women are sexually available, knowledgeable, entrepre- 30 neuri= l with respect to sex, and that sex with young women of this 31 age is not only enjoyable and desirable, but consensual. We also 32 33 MEMORANDUM DECISION - 8 • 1 know that it is likely to '-:be statutory rape, a felony, and 2 directly contrary to societal norms evidenced by the most severe 3 stand rds of the criminal law. One need not be particularly! ima- - 4 ginative to see that films of this particular nature are not S suitable in the vicinity of a high school or an elementary school . I. 6 One of the very legitimate interests of Renton is in the security 7 of its citizens, young and old alike. 8 IL the recent case of ' New York v. Ferber, 102 Sup. Ct. 13348 9 (1982) , Justice White in delivering the opinion of the court which approved the constitutionality of a New York statute prohibiting 10 11 persons from knowingly promoting a sexual performance by a child 12 under the age of 16 by distributing material which depicted such a 13 performance stated, at p. 3354 , "First, it is evident beyond the need for elabora- 14 tion that a state' s interest in ' safeguarding the . 15 physical and psychological well-being of a minor' is ' compelling. ' Globe Newspapers vs . The Superior ! 16 Court, U .S. 102 Sup. .Ct. 2613 , 2621, 72 L. Ed. 2d (1982) 'A 17 democratic society rests, for its continuance upon ; the healthy, well-rounded growth of young people 18 into full maturity as citizens. ' Prince v. Massachusetts, 321 U .S. 158 , 168 , 64 Sup. Ct. 438 , ' 19 443, 88 L. Ed. 645 (1944 ) . Accordingly, we have sustained legislation aimed at 20 protecting the physical and emotional well-being ofi 21 youth, even when the laws have operated in the sen- sitive area of constitutionally protected rights . . . , 22 In Ginsberg v. New York, 390 U .S. 629, 88 Sup. Ct. 1274 , 20 L. Ed. 2d 195 (1968) , we sustained a New 23 York law protecting children from exposure to non- ; obscene literature. Most recently, we held that the 24 government ' s interest in the 'well being of its youth' justified special treatment of indecent 25 broadcasting received by adults as well as children. FCC v. Pacifica Foundation, 438 U .S. 726, 98 Sup. 26 Ct. 3026, 57 L. Ed. 2d, 1073 (1978) . 27 "The prevention of sexual exploitation and abuse of children constitutes a government objective of sur- 28 passing, importance. The legislative findings accom- panying passage of the New York laws reflect this 29 concern: 'There has been a proliferation of children as subjects in sexual performances. The care of 30 children is a sacred trust and should not be abused by those who seek to profit through a commercial 31 network based on the exploitation of children. The public policy of the State demands the protection of , 32 children from exploitation through sexual performances . ' Laws of New York 1977, Chapter 910 , 33 Section I . " MEMORA' DUM DECISION - 9 1 Justice. White recognized and classified child pornography as a 2 category of material outside the protection of the First 3 Amendment. He further observed at p. 3357 , 4 "The value of permitting live performances and pho- tographic reproductions of children engaged in lewd s sexual conduct is exceedingly modest, if not de • minimis . We consider it unlikely that visual depic- 6 tions of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary perfor- mance or scientific or educational work." 8 Although distinguishable as a school library case, the Supreme 9 Court recently deferred to the discretion of school boards in„ the 10 daily operation of conduct in the schools as it related to books 11 avail.ble in the school library. Board of Education, Island Trees 112 Union Free School District No. 26 v. Pico, 73 L. Ed. 2d 435; 102 13 S .Ct. 2799 ( 1982 ) . With respect to a challenge based upon a First 14 Amendment claim, the court pointed out that if the purpose of the 15 schoo board were the official suppression of ideas, then First 16 Amend ent rights would be violated . However , other purposes 'such 117 as "e ucational suitability" in the view of the school board, il8 inclu ing removal because of pervasive vulgarity would not; (p. 119 450) . 20 The protection of children from the negative effects of Tor- 21 nogra hy, both as a developmental and safety concern is surely an 22 important state interest, and in fact of compelling and surpassing 12 i 3 special interest as these related cases illustrate. 24 T� what extent , it needs to be specifically shown that deviant 25 patro s, of whom there are bound to be some, present a danger to 26 children and others should be determined with the benefit of the j27 doubt to the potential victims . Sexual abuse of children and 28 adults is an extraordinary current societal problem. Ire - .. %0, 29 b�ytecty��of`= 1�°isseg�n 'n o= "„spublic` and the anticipation of 31 0 a n..te r' c=Pirktashr � hes and residenia1 11 31 areas . ' _`to t, _ court ea n e ab ` ricMthe exitt, b tw rn cJr eta , 32 33 MEMORANDUM DECISION - 10 I ' • 1 tt -' men -; �_� Pa-eh1t,heatres : uff ;c�ientlhawnbhe 2 r ommuinritt s w himReo a-. sh®u��1�not�ha�gP- zto 3 w -�' Ndu®� ie � -e- ore being able to enact a o e i�v-eori 4 5 The very nature of these films encourages imitative conduct. 6 The r petitive style is in the nature of preoccupation and icom- 7 pulsi ity. Renton' s determination that such a theatre and the 8 exhibition of the films it has described and the legislative pur- 9 pose findings contained in its ordinances support a substantial 10 governmental interest which this court finds is not feasible to 11 guard against in any less restrictive manner . 12 Likewise, the preservation of its environment through the use 13 of zoning is a legitimate goal for a city. 14 "An adult theatre ordinance that furthers such goal ; satisfies the initial requirement that a city have a ! substantial state interest to support a law . Its restricting free speech." Basiardanes v. City of 16 Galveston, 682 F. 2d 1203 ( 5th Cir. ) (1982) . 17 A•ain, a city need not establish repeatedly the factual basis 18 being considered in passing upon such an ordinance. 19 "Identical ordinances need not be tested anew each , time they are enacted by a different governmental , 20 entity by establishing the actual existence of local conditions which would justify it. ' Lawmakers in ' 21 one locale ( should not be denied) the benefit of the wisdom and experience of lawmakers in another com munity, no matter how similar the circumstances . . . " 22 See County of Sacremento v.Superior Court (Goldie' s �3 Bookstores, Inc. ) (1982) , 137 Cal. App. 3rd 448 , 454 , 455 , 187 Cal. Rprt. 154 . "The ' factual basis ' 24 behind certain types of zoning laws insofar as those ; zoning laws require dispersal or deconcentration, has been developed by testimony in other cases . 2S Sociologists and urban planners have testified that 26 a concentration of adult movie theatres in limited areas leads to the deterioration of surrounding 27 neighborhoods . ( See Young v.American Mini Theatres , supra. ) This testimony is sufficient and the City 28 need not bring their own sociologist to apply these observations to the City of Whittier. " City of 29 Whittier v. Walnut Properties, Inc. , 139 Cal. App. ' 3rd 618 ( 1983) . 30 The dispersal of the use covered by this ordinance to a loca- 31 tion which will not conflict with family, church and school uses 32 33 MEMORANDUM DECISION - 11 ' 1 is permissible so long as it does not amount to a total ban and it 2 does not. 3 Df course, the presence of but one adult theatre exhibiting 4 sexually explicit films may be less easy to demonstrate to be a 5 magnet for the perverse or criminally oriented. Nevertheless , on 6 the asis of the experience of other communities, there is to some 7 degr a an offensive presence produced with deleterious environmen- 8 tal nd social impacts . The nexus between pornography and 'crime 9 is recognized though quantification may admittedly be difficult. 10 Suffice it to say that this court concludes that the potential 11 impact of this use upon a.. small , cohesive area such as the Renton 12 core neighborhood we are dealing with is intensified because of 13 the mall geographical area involved. The court finds the, City 14 has anaged to retain continuity over a considerable periId of 15 time (since 1901) , although it is admittedly presently surrounded 16 by s burban growth pressure. This, use is clearly out of place in 17 a family-use area and the legislative purpose outlined in the 18 City' s ordinances, as amended, are supported. This use is 19 assaultive to the sensibilities of basic community interest in 20 maintaining the wholesomeness of family life and family enjoyment 21 in the vicinity involved. The presence of such a use in itself 1 22 conve s a message of tolerance, approval and encouragement. No 23 matte what restraint has been exercised with respect to a'dver- 2' tisin , the titles of the films on the marquee proclaim a 25 glari gly outrageous presence virtually around the corner from St. 26 Antho y' s Church and Parochial School , the Renton Latter Day 27 Saints Church; the King Baptist Church, the Christian Sciience 28 Church, the Renton Lutheran Church, Awareness of Life Church, the 29 Renton High School and single family and multiple family housing. 30 an era 'in which the community has increasingly demanded 31 higher standards of environmental quality as to visual , olfactory 32 33 MEMORANDUM DECISION - 12 II 1 and other physical attributes , i .e. , signing, architecture, limi- 2 tations upon manufacturing and production and controls ' upon , 3 aesth-tic pollution, as well as substance pollution, t,hee- esence 4 of a,n „i mot' o tbe_at M le .el a b'ts,-.se ua]..;].y e p 5 cit ...:,--,. ,..o-f .1145suanatu4megwean lwi ewsse-b" coin derieti ovi flat-e „note - . 3t'a. -F+g r4•E ..1f:'a -_..f'*tea;weF',.�s`. G .i5+�s �iy -�. ona. o . i;_..bu aesthetic standard, const ` 6 n rued" nthe - �r-oad�st 7 s- s.- ( See Discussion, 90 Harvard Law Review, 196 (1975) ; Zoning, 8 Aesthetics and the First Amendment, 64 Columbia Law Review, 81 9 (1964 ) . Communities need not provide the laissez faire cacaphony 10 of b siness uses typically evident in areas where basically 11 anything goes -- head shops , pornographic shops alongside any and 12 all other uses, including family residences . The residents ; of a 13 particular community have a right to protect the community ; from 14 danger , degradation of its environment and a dilution of its 15 overall moral standards. This is not simply a matter of 16 appearance, but a significant value. Nothing could be more, fun- 17 damental to family standards than the basic respect of individuals 18 within a marital relationship in family context which each of 19 these films denigrates . A balancing of interests clearlyldis- 20 favors forcing the presence of such a use in this location on 21 First Amendment grounds when there is no total or effective ban. 22 The presence of this type of use to the public also conveys 23 endorsement which the Renton legislative body deems incompaltible 24 with reasonable promotion of other valid and superior interests . 25 The •ehaviors represented in most of these films is deviant and 26 some of it represents behavior which is classified as criminal. 27 The one of the films is, however, that of an amoral outlook with 28 the •ehaviors represented as being appealing and not inoffensive 29 pasttimes . Many would argue that our homes are intruded upon 30 routinely by murder , rape, violence and all manner of socially 31 undesirable conduct display and that unlike the intrusiveness of 32 33 MEMOR NDUM DECISION - 13 , 1 tele ision, adults only are admitted to* these theatres and those 2 who disfavor them, need not enter . The problem is of the, very 3 pres-nce of such a theatre in itself and where it seeks to 4 oper- to. Re —lra`s i-n easoxnv lreEDEt4 e a nfezr Tnz3waiplaaTe,- S 6 �a o a 7 Bahr ar does hot trammel the rights of a minority to materials 8 whic however unpopular or irritating may risk oppression and; cen- 9 sorship which is admittedly abhorent to a free society, and are 10 readily available elsewhere in the community. 11 This court joins the conclusion of the Federal court that; this 12 ordinance is constitutional on its face and . as applied and! that 13 the mechanism for abatement and standards employed are entitled to 14 enforcement . 15 IV. TEST OF THE MATERIALS 16 The approach of this Court to this problem has been to assure 17 several important procedural safeguards: 18 1 . An advisory jury representing a cross section of our; com- 19 munity was utilized to view and consider application of 20 the standards enunciated by the United State Supreme 21 Court in Miller v. California, 413 U.S. 15 , 37 L. Ed. 22 419, 93 S. Ct. 2607, reh. den. 414 U .S. 881 , 38 L. Ed. 2d 23 128 , 9,4 S. Ct. 26 (1972) to establish the degree of pro- 24 tection which may be required as to certain enumerated 25 films . 26 This jury was drawn from the jury pool in the: King 27 • County Superior Court and represented a cross-section of 28 individuals and background and resulted in a unanimous 29 collective determination as to the ten films in its, ver- 30 dict and special interrogatories (Appendix 1) . 31 There were six men and six women ranging in ages 32 33 MEMORANDUM DECISION - 14 • I � 1 . - 1 from 31 to 68 , three men were single without children, as 2 was one woman, and the rest were married, one divorced 3 with children. The combined number of years in the State 4 of Washington was 310 ; the combined number of years in s King County was 270 . (See Table below. Information sub- 6 mitted by jurors to King County Superior Court utilized 7 by counsel in voir dire. Ct. Exh. #107. ) 8 9 10 DEMOGRAPHICS OP THE ADVISORY JURY 1 11 MARITAL YRS. YRS. CURRENT YRS. OP SEX AGE STATUS FAMILY BIRTHPLACE IN STATE IN CITY RESIDENCE EDUCATION OCCUPATION 12 M 37 S -- No. Carolina 9 9 Seattle 14 Utilities 98122 13 M 31 8 -- Okinawa a 4 Seattle 16 Postal 98144 14 M 38 S -- San Diego, 35 35 Seattle 16 Salsa California 98102 c M 59 Div 36, 37 Wisconsin 35 14 Auburn 10 15 33, 25 Shipping 98002 Clerk M 39 M 1S 9 Seattle 39 39 Federal Way 14 Lineman 16 2D 14 98003 M 34 M • 2S 3 Los Angeles, 34 13 Seattle (S.W.) 18 Teacher 17 3 mo. California 98146 P 68 M 1S 38 No. Dakota 4 4 Seattle (S.) 8 Aviation 18 1D; 36 98178 Production P 32 M 1S, 3 Victoria 14 14 Seattle (N.W.) 16 Homemaker 19 98107 F 54 M 2S 30 Seattle 50 50 Bellevue 16 Homemaker i. 1D 22 98006 20 P 35 M IS 10i No. Dakota 22 22 Seattle (N.W.) 12 Homemaker 2D16,13 98117 21 P 311 S -- Seattle 38 33 Seattle (W.) 16 Postal 98199 22 F 3 M 2D 40 Missoula, 33 33 Rent 12 Aviation 41 Montana 98042 Production 23 24 ... _ ._ 1.owYe"w+F'+P.•lu'w=1t�++r�TrM•RLy I 25 26 27 28 29 30 31 32 33 MEMORANDUM DECISION - 15 . • i 1 The court utilized this process to establish a : com- 2 munity standard which would be based on the collective 3 contemporaneous judgment of representative members of the 4 community, hopefully to avoid some of the uncertainty and s difficulty of utilizing only subjective judicial opinion. 6 This problem is well illustrated in Penthouse 7 International v. McAuliffe , et al . , 610 F.2d 1353 (1980) . 8 If every community must wait for the subjective opinion of the last five United States Supreme Court Justices, it 10 would seem to this court that there is no effective ill remedy for a normal community with the usual public 12 resources . No issue, it would seem to this court, should 13 be without some more reasonable finality. Therefore, the 14 court utilized a procedure similar to that of State ex 15 rel. Cahalan v. Diversified Theatre Corporation, 229 N.W. 16 2d, 389 ( 1975) , a Michigan case in which the court impa- 17 neled an advisory jury to determine whether the films in 18 question were obscene and could be abated under the 19 Michigan nuisance statute. The court in that case 'uti- 20 lized the three prong test of Miller v. California; and 21 the jury returned a verdict finding The Devil In Miss 22 Jones, Deep Throat, It Happened In Hollywood and Little Sisters obscene. 23 24 Because of the equitable nature of the relief 25 sought, some question exists as a matter of right to 26 trial by jury. However, this court believed that this 27 was a sensible procedure to follow, if not necessary to 28 secure an expression of a community standard through the 29 community itself . 30 2 Secondly, as stated in the foregoing, the Miller test was 31 utilized to assist in establishing the extent to which 32 33 MEMORA DUM DECISION - 16 i 1 the materials were entitled to constitutional protection. 2 It is conceded that no protection is necessary for 3 materials which are obscene. 4 The ordinance definition of "used" in definition of S "adult motion picture" describes a continuing course of 6 conduct of exhibiting " specific sexual activities" and 7 "specified anatomical areas" in a manner which appeals to 8 a prurient interest (Ordinances 3629, Section I , 3637 , 9 Section I , emphasis supplied) . -,-Tih`e ut .:lti :ai_„on Hof,...--th , 10 s__i.pgkl.e test would ignore the ow well a_cc_:p.-ted ttrree 11 prong-, -,_o, Qnk1 test of ,41-e-li ea ori� `of b:Ice-ne. 12 =requYed� b_y Mi l le_g rC-a�1$rforrmi�u =- ; =--d� 13 ou�aeemt ° _ a -iudimaw1H1-y, '-,. de- :9 11 ,„qqu a�t e,..;u-n ems— h-emSup,r-eme C�ou r t o f t bAF. s eacde e.r4. iz eg 1S in a u iv c-o _sit ule i=e=r fi a1 a co stitot on 16 sarliast` a''lesser standard'iaa-ratv. 17 3 . In recognition of the key societal principles involved, 18 this court further applied a 'high standard of proof, 19� i .e. , clear, cogent and convincing, rather than that, of a 20 simple preponderance of the evidence. The .burden of I ' 21 proof was placed upon the government and the standard 22 employed is that utilized in Cooper v. Mitchell Brothers 23 Santa Ana Theatre, et al. , 102 Sup. Ct. Rprt. 172 ( 1981) . 24 This was a public nuisance abatement action and the 25 United' States Supreme Court determined that proof beyond 26 a reasonable doubt would not be constitutionally 27 required. 28 In Cooper, the court also utilized a jury on the 29 issues of obscenity, public nuisance and damages prior to 30 the resolution of the equitable issues by the court., The 31 jury found 11 films obscene, 4 not obscene and was not 32 33 MEMORANDUM DECISION - 17 I ' 1 able to reach a verdict on two others. Cooper had a I 2 complexilitigation history.as well . See 101 Cal . App. 3d 3 296 , 161 Cal . Rptr . 562 (1980) ; 114 Cal. App. 3d 923 , , 171 4 Cal . Rptr. 85 (1981) ; 118 Cal . App. 3d 863, 173 Cal. Rptr S 476 ( 19'81) and 128 Cal. App. 3d 937 , 180 Cal. Rptr . 1 728 6 (1982) . (Deep Throat and The Devil In Miss Jones were 7 determined obscene among others, but the litigation amply 8 demonstrates the difficulties of taking action in 'any 9 efficacious manner. ) 10 It is essential, of course, in issues involving pior 11 restraint that the mechanism for a determination be consistent 12 with standards which preclude arbitrary or all encompassing 13 discretion reposed in a governmental official under vague, or 14 problematical speculative standards . An action to abate places 15 the tender before the court and the process utilized employs a 16 recognizable application of law by a jury which will apply a om- 17 munity standard best known to those who comprise it. If one is to 8 conclude that the shifting sands of public opinion as to these 19 matter renders this an impossible task, then no regulation would 20 be pos�ible at all. 21 Th City of , Renton, in its ordinance, in providing for' an 22 action to abate a nuisance contemplates a civil rather than a dri- 23 minal roceeding. Normally, this would entail a more relaxed 24 standa d of proof; however, as stated, in response to the vital 25 , issues raised with respect to protected speech, this court has 26 utiliz d the Miller test and a higher standard of proof commen- 27 surate with constitutional requirements . V. THE FILMS 28 29 The full record of films exhibited at the Renton Theatre com- ;0 mencing in January 20, 1983 consists of 64 films (Exhibits lA - 31 64A represented by video cassettes entered into evidence and 32 33 MEMORANDUM DECISION - 18 1 stipulated to be. identical to films shown at the theatre and times 2 in question) . The .rd,' _es , ,0m t-lots were enac e• , := ended - 3 and P n ed ex hob' t' o n hex ' o x -eistxi .n' 4 this case a he or• iriance was designee to`" -pu � R�eton 5 ea r- 'ou"`_o opera ` o t => the fact 6 Th- parties also stipulated that ten representative films 7 would •e viewed by the court and the jury in a specific order and ® that t ese films were representative of the film fare exhibited at 9 the Renton Theatre . The court determined that the films would be 10 shown in the theatre, rather than in the courtroom to provide as 11 normal as possible the context in which the films would be nor- 12 mally exhibited. 13 Th films were seen on three successive days . Recesses were 14 taken ' n the morning, afternoon and at noon . As an overall finding, this court finds that each of the films 15 16 selected is characterized by an emphasis on matter depicting, 17 descri ing or relating to specified sexual activities or specified 8 anatomical areasas defined in the Renton ordinance. Although : the 9 films vary as to emphasis , the court finds such emphasis to 20 overwhelmingly predominate in each and every film and to bethe 21 central focus of each of the films taken and considered a's a 22 whole. 23 24 The exhibition of the 4,.cn films occurred in the following 25 order: 26 27 j 20 1 . Little French Maid 29 2 . Devil In Miss Jones 30 3 . Up and Coming 31 4 . Society Affairs 32 33 MEMORA DUM DECISION - 19 i 1 5. San Fernando Valley Girls ' I 2 6 . Deep Throat 3 7 . Body Talk 4 8 . Pandora' s Mirror 5 9 . Debbie Does Dallas 6 10 . Taboo II 7 8 Instruction 14 directed the jury under the Miller test: 9 10 11 "In order to find a motion picture film obscene, as that term is used in these instructions, the plain- 12 tiff must prove each and every one of the following elements by clear, cogent and convincing evidence. 13 1. That the average adult person, applying contemporary community standards , would find that 14 the motion picture film, taken as a whole, appeals to the prurient interest in sex; and 15 2 . That applying contemporary community standards, the motion picture film depicts or 116 describes sexual conduct in a patently offensive way; and 17 3 . That the motion picture film, taken as a whole, lacks serious literary, artistic, political 18 or scientific value. " 19 20 In truction 8 defined "prurient" as follows : 21 ""Prurient" as that term is used, means a shameful or morbid, meaning unhealthy or unwholesome interest 22 in sex or nudity." 23 24 In addition to the video cassettes, the City of Renton offered 25 certaintime and motion studies which were refused by the court 26 (Exhib is 1B - 64B) . 27 Ce tain exhibits were admitted pertaining to the City' s sta- 28 tistic 1 analysis and printout in support of its chart 29 illustrating the percentage duration of each film illustrating 30 specified anatomical areas or specified sexual activities exhi- 31 bited t the Renton Theatre (Exhibit 73, 73A, B, C, D) . 32 33 MEMORAN UM DECISION - 20 • I 1 I i I • I • 1 The quantitative arnalysis. by the City as to the stipulated 2 films was generally: 3 1 . Little French Maid 68% 4 2 . Devil In Miss Jones 70% S ' 3 . Up: and Coming 37% 6 4 . Society Affairs 45% 7 5 . San Fernando Valley Girls 70% 8 6 . Deep Throat 64% 9 7 . Body Talk 38% 10 8 . Pandora ' s Mirror 52% 11 9 . Debbie Does Dallas 74% 12 10 . Taboo II 65% 13 Th- court also generally correlated sequence duration sand 14 finds hat the time and percentages estimated by the City are suf- 15 ficien ly accurate. The court also finds as an overall finding, 16 that 11 of the' films include a substantial content of highly 17 repeti ive, sexually explicit conduct, which includes mastur- bation fellatio, cunnillingus, oral , anal and vaginal sexual 19 interc urse, often occuring simultaneously and involving several 20 people, repetitive ejaculation visibly displayed, to the body and 21 usuall to the face of female participants . Same sex activity ,was 22 limite generally to women, although mixed groups of men and women �3 such as two men and one woman or two women and one man or numerous 24 people engaged in various activities simultaneously was common . 25 No film contained any extreme sado-masochism behavior , forcible 26 rape or violence, assaultive or mutilative behavior. The films 27 contai various types of male dominance and female submission. 28 Human enitals were overwhelmingly portrayed in a state of sexual 29 stimulation or arousal. There was continuous erotic touching of 30 human •enitals and private areas, pubic regions, buttocks Iand 31 female breasts . Specified anatomical areas were continuously I 32 33 MEMORANDUM DECISION - 21 % I • 1 1 1 1 ' I 1 1 displa, ed in many instances for long periods of time over nearly 2 the e tire areaiof the motion picture screen and sequences were 3 repetitive and continuous. 4 Except for one film, Body Talk, sex was not treated in1any 5 1 manner as part of a meaningful or serious relationship, .but as a 6 mechan ' cal function with an emphasis on endurance, athleticism and 7 releas- . The women are dehumanized and reduced to objects of 8 sexual access , Women are projected generally as nymphomaniacs! 9 So e of the films include scenery, classical music, expensive 10 cars, houses and settings and some backgrounds for interest. 11 Despit- this flimsy attempt, and some of the more recent films do 12 reflec greater production budgets, the,p g primary and overwhelming 13 purpos of these :films is to focus upon erotic sexual activity., 14 Th s court agrees with a film commentator, David Chute when he 15 says, 16 "Most hard core films are still produced by and for 17 men and 'female viewers quickly realize that the show is not, intended for them. . . The emblematic figure 16 here, I : think, is not the female lust object in a pornographic film, but the male star with whom the 19 male viewer is invited to identify. He is our stan- dard bearer. " 17 Film Comment 66 (S/0 1981) P. 68 . 20 1 21 Ch to describes the two typical male leads as one who has 22 built - career shoving women around and the other more recent 1 23 being person ojut for kicks and not power. (p. 68) The films 24 challen ed by Renton are typical of the foregoing. (For addi- 25 tional writing in this field, see Pornography and Silence, Susan 26 Griffin, Harper and Row, 1981; see also The Report of the j 27 Commiss ' on of Obscenity and Pornography (1970) . 20 Whi e there has been some effort to sanitize the more extreme 29 abusive and sexist aspects of this type of film in the more recent 30 film productions,! there is little question that the basic appeal is of a erotic sexual nature for men. When Mr. Forbes testified 32 with respect to the advertising available for the films, it ! is 33 ' I MEMORAN.UM DECISION - 22 i I j 1 i . • clear that the 'basic appeal of the films as projected by himself 2 in making the. advertising selection on several occasions reflects 3 this basic acknowledgement of the nature of the film as a basi- 4 cally erotic type of presentation. ( P. Exh. 72, including dates S • of e hibition. ). To claim that they appeal to interest other than 6 prurience is not; arguable; as to what degree of prurience may be 7 argua.le only. 8 VI . THE TEN FILMS 9 1 . The Little French Maid. In spite of a background of 10 classical music, residential backgrounds and colorful garden and 11 outdo.r photography; this is basically a string of sexually erotic 12 and explicit scenes in which the heroine goes from vaginal, ' anal 13 and oral sex repeatedly, and talks and muses about it when she is 14 not actually doing it. There is no story line with the possible 15 exception of the last liaison being one she sees as being more 16 promising in as love sense. However, the film is monotonously 17 repetitive i'n its complete emphasis on sex acts between the 18 heroine, a man, two men, or two women, with the locations of the 19 events changing from residential locations. Approximately 68% of 20 the film is devoted to such erotic scenes. 21 The emphasis of the film is on the observation of the various 22 sexual depictions and is devoid of any other content . It is a 23 film which centers completely upon the use of the maid by the men 2' which she does not find particularly satisfying but continues to 2S participate on a presumably voluntary basis . There is no force. 26 It is voyeuristic, patently offensive in its banality and reduc- 27 tion of the sexual experience to a fairly mechanical interface of 28 various sexual organs and has no discernible scientific value or 29 any other value whatsoever . 30 The jury found this film obscene within the meaning of the 31 instructions and the Court concurs in that finding. 32 33 MEMORANDUM DECISION - 23 1 2. The Devil in Miss Jones. The film starts with a graphic 2 depiction of a young woman slitting her wrists in a drawn bath ; and 3 coinmit , ing suicide with the blood merging with the bath, water. 4 The fi m is in dark tones, which intends to accentuate the ima- geFy. (This could be due to the age of the print. ) Having com- 6 mitted suicide, Miss Jones is advised that she is condemned to 7 eterna damnation, which the devil manages to provide for her in 8 C the fo' m of sexual tutelage to which she becomes very enamoured 9 only to be relegated in the end to an eternity of sexual frustra- 10 tion. 11 Th s film has an eeriness and creepy quality to it as it is 2 not on y offensive to the notion of sex, but to religion as well, and th- ultimate sense of self loss and cosmic powerlessness . It 4 course through the usual variety of sexually explicit and erotic 15 scenes including graphic and complete illustrations of anal and 16 oral ex, a pair of women making love, use of a snake, all 17 occurr ng with complete and total depictions and occupying signi- 18 ficant episodic time sequences . 70% of the film footage is uti- 19 lized or sexually explicit erotic scenes. 20 It is not difficult to see how the jury found this particular 21 film p;tently offensive and without any serious scientific value 22 or una ceptable to contemporary community standards . The Court �3 would oncur in the jury finding. 24 3 . Up and ;Coming. This is a newer film with a higher pro- 25 ductio budget than earlier films . It is in color and actually 26 has in eresting 'country music in it. It also is the story of a 27 young oman who as attempting to become a country music star and 28 goes f om one sexual adventure to the next in her quest in graphic 29 detail and with the usual oral , anal, vaginal , group, single and' 30 combin.. tion sexual activity to realize her ambitions. However, 31 the film does use approximately 40% of total time in the sex 3� 33 MEMORANDUM DECISION - 24 ' • relat-d depictions and the balance for the story. The jury did 2 not f nd this film obscene, probably determining that it was not 3 offen ive enough; there was a story line, some humor and a plot 4 that as less of a transparent vehicle than in some of the other S films The Court defers to the judgment of the jury. 6 ' 4 Society Affairs . This is one of the more recent, higher 7 production budget films which has a story line, good photography, 8 interesting music, good settings as well as the usual smorgasbord 9 of se ually explicit activity as between women, a woman and one or 10 two m n, singly, or simultaneously, a variety of relationships and 11 it al' centers around the wedding of an heir . The heir ' s father 12 is attempting to set him up in marriage with a woman who will 13 divorce him and secure a large property settlement for the benefit 14 of the father, with whom she is sexually involved. 15 TIlle hero is a look-a-like for the heir and goes from one 16 sexua_ dysfunction rescue to the next in graphic detail and with 17 the u ual oral , vaginal and anal sexual exercises and Herculean 18 phallic displays . He ultimately uncovers the nefarious plot of 19 the father and saves Howard his fortune, though his original 20 inten was simply to steal all of the wedding gifts which he now 21 secur s in gratitude from Howard. Approximately 40% of the film 22 time ' s devoted to sex, the rest to the story, and the jury did 23 not find the film obscene. 2' T e Court defers to the finding of the jury. 25 ill movie about a 5 . San Fernando Valley Girls. This is a silly 26 style of individual whose language is peculiar to the area youth 27 culture. Adjectives such as "tubular" repeat through the film and 28 the emphasis is upon sexually erotic encounters between the girls , 29 the girls and a man or more than one man, or a mix. Except for 30 the t read of a Valley Girl Contest in a club, there is nothing 31 else in this film other than the views of the usual oral, anal, 32 33 MEMORA DUM DECISION - 25 1 ,• an,d vailinai sexual activity, long depictions of sustained erection 2 and ej. culation onto the mouths or onto the bodies of the young 3 women n presumed enjoyment . 4 Approximately 70% of the entire film was devoted to erotic . S imagery, and only 30% to other scenes . The jury did not find this 6 film obscene, and the court defers in their finding, though it is 7 in a closer category in the Court' s view to Little French Maid. 8 1 6 . Deep Throat. This is a story of a sexually unfulfilled 9 young woman who is guided to the discovery of sexual fulfilment 10 when her therapist locates her clitoris in her throat. After 11 that, it is largely repetitive and compulsive enjoyment of oral 12 sex with some variations with the scenes of sexual activity 13 occupying approximately 60% of all film footage. She is utilized 14 as a kind of assistant to the therapist and her various sexual 15 encoun ers then involve various individuals and their respective 16 therap utic need circumstances . One such individual, for example, 17 has to utilize a burglary/rape scenario and she is supposed to 18 pretend that she is frightened . The therapist is also repeatedly 19 engaged in sex. The emphasis of the film is clearly upon erotic 20 sexual material., There is some element of farce. The jury did 21 not find this film obscene and the court defers to their finding, 22 although this film has been repeatedly found obscene elsewhere 23 relatively recently. 24 7 . Body Talk. This is a more recent higher production cost 25 film in color and with an emphasis upon interesting locations. An 26 older woman who is financially maintained by a voyeur falls in 27 love with a young sculptor whose parents disapprove of the rela- 28 tionship. The woman magnanimously arranges for them to separate 29 and he to go to study art abroad as a gesture when she discovers ;0 she is terminally ill and eventually the young sculptor learns the 31 true situation and they are reunited briefly before her death. 32 33 MEMORANDUM DECISION - 26 1 T e story does occupy a substantial portion of the film and 2 approximately 40% is devoted to the usual scenes of oral, anal , I 3 vagin 1 and group sex. There are sex scenes involving women 1 4 toget er, a woman and one or two men, with the voyeur watching at s some scenes. This is a pornographic soap opera. 6 , The jury did not find this film obscene under the Miller test 7 and the court will defer to that finding. 8 8 . Pandora ' s Mirror . A young woman becomes entranced by a 9 mirro which transports her through several historical vignettes 10 in which erotic sex occurs in various contexts . She becomes com- 11 pulsi ely attracted to the mirror and what it provides. About 52% 12 of th film is devoted to sexually erotic scenes of intercourse of 13 an oral or vaginal nature, sustained erections , ejaculations and 14 the u ual similar material to the other films. The photography, 15 setti gs and staging is more subtle and reflects a more 16 interesting production style, but is voyeuristic in a compulsive 17 sense. 18 The jury did not find this film obscene under the Miller test 19 criteria and the court defers to their finding although it is 20 indistinguishable from those found to be obscene. 21 9 . Debbie' Does Dallas. This is a film in which a group of 22 high chool cheerleaders attempt to raise money to accompany the 23 footb 11 team to a game in Dallas through babysitting, car 24 washing, etc. , and are soon able to improve upon the financial 25 yield by exchanging a variety of sexual favors to various men, 26 usualty married men who are ostensibly either an employer or 27 school superior . There is also sexual activity graphically filmed 28 as between the girls and their football player boyfriends. 29 This film emphasizes the same type of sexual material that the 30 other films contain by way of sustained erections, oral, anal, 31 vagin 1 sex, ejaculations and promiscuous behaviors with the addi- 32 33 MEMOR NDUM DECISION - 27 1 tional element of an emphasis upon very young women and men. 2 Thoug the film carries a written legend of the girls being over 3 age 1 , the obvious content of the film infers a younger chronolo- 4 gical age, age 16 if not younger, and is very offensive in that s regard, not only because of the nature of the activities which are 6 in the film, but because of the emphasis on the desirability and 7 availability of very young women to older men in this fashion. 8i The film is apparently a species of film where the preoc- 9 cupation with the young is primary. The message of the film is 10 clearly that the young are experienced, knowledgeable and 11 available. The distance between a film depiction and re-enactment 12 in real life is too close for comfort. This film is beyond the 13 usual voyeurism: inherent in pornographic viewing, but can easily 14 lead from myth to real life in a highly sensitive area, i .e. , 15 sexual abuse of the young which is clearly a violation of criminal 16 law as well as an extreme breach otherwise. 17 Nearly 70% of the film was devoted to sexually explicit erotic 18 scene . The jury found this film obscene and the court concurs in 19 that finding. 20 10 . Taboo II . This is a film in which a family wallows in 21 incest. The brother is able to achieve a sexual relationship with 22 his gkrlfriend, his sister, a friend' s mother and his own mother . 23 The sister is able to entice her father into a sexual relationship 24 with her mother sleeping in the same bed, the entire culmination 25 of which is then satisfying sex for the parents whose marriage has 26 deade ed and the father attracted to a sexual relationship with 27 his secretary. 65% of the time of the film is involved in erotic etar y 28 depictions of the various individuals or friends engaged in group 29 or sexual activity with one another or in groups and the activity 30 is generally similar to that portrayed in all of the other films . 31 It is the context of blood family members which makes this film 32 33 MEMORANDUM DECISION - 28 1 very ifferent and highly offensive and perverted, and without any 2 value let alone serious scientific value. 3 T e jury found this film obscene under the Miller test and the 4 • court concurs in that finding. s VII . THE EXPERTS 6 R• chard Green, M.D. , is a research oriented psychiatrist from 7 the Department of Psychiatry, State Univerisity of New York, 8 Stonybrook. He: took an undergraduate degree in Psychology from 9 Syrac se University, his medical degree from . Johns Hopkins 10 Unive sity, Baltimore, continued his studies at the University of 11 Londo , was a 'faculty member at the Human Sexuality Program, 12 Unive sity of California between 1968 and 1974 and thereafter 13 estab ished the. Human Sexuality Program at ( SUNY) , Stonybrook 14 where he is engaged in research as contrasted to treatment. He 15 has 110 professional publication credits and is a contributor to 16 six medical volumes. 17 At the request of the defense, he reviewed 8 or 9 video 18 cassettes of the films (excluding Taboo II) . He basically 19 testified that all of them have serious scientific value when con- 20 sidere• as a whole. Dr. Green participated as a committee member in the develop- 21 22 ment of the American Psychiatric Association' s DSM III criteria 23 and would utilize that definition in identifying those sexual 24 behaviors which would appeal to prurient interests. He would 25 includ- bestiality, transvestism, exhibitionism, voyeurism and 26 sado-m. sochism. He would also include compulsive rapism, lust 27 murder and necrophilia, which is not specifically listed in the 28 diagno tic criteria. 29 Dr Green testified that the films had serious scientific 30 value asically because they were capable of promoting better com- 31 munication around sex and better understanding. Where he found a 32 33 MEMORANDUM DECISION - 29 } • 1 story line or entertainment factor, he would focus upon that cir- 2 cumst.nce as being the primary interest of the film. He did state 3 that e would not wish to testify concerning a variety of films 4 which included bestiality, kiddie porn, rape and torture episodes. He did not see these films , as transmitting a particular value 6 system, i .e. , prostitution, and did not see them as producing imi- 7 tativ behavior, although he did say that couples might be willing 8 .to ex and their repertoire with the assistance of the variety of 9 sexua behaviors illustrated in the films . When asked if many of 10 the films reflected that one partner was using another, he did not 11 find this disconcerting in that, as he said, there appeared to be. 12 an equal amount of using of one by the other of the various indi- 13 vidua s. 14 T e films themselves are, of course, the best evidence of what 15 they •epict. Expert testimony, though affording the benefit of 16 opinion as to them, is not binding on the triers of fact. 17 W ile this court does respect the training, education and 18 resea ch efforts of this witness, it finds that the conclusion 19 advan. ed are unsupported by the films themselves . 20 I also should be noted that this witness has testified 21 appro imately 28 times, always for the defense and on about one- 22 half of those occasions , retained by defense counsel in this case. 23 Very significantly, this witness has never found any material 2+ withot some serious scientic value. So long as some information 25 is co tained, Dr. Green would be satisfied of its serious scien- 26 tific value. If that standard were to be employed by this Court, 27 that ould amount to no standard at all, and it is the view of 28 this Court, that the term "serious scientific value" must be 29 inter reted in a stricter, scholastic sense of valid, academic 30 resea ch process and product. 31 T e witnesses for the defense appear to have had some strong 32 33 MEMORANDUM DECISION - 30 • 1 conne tion and acquaintance, if not an on-going collaboration inin sexologyas a separate academic specialty then in some 2 advancing P 3 more informal manner . These witnesses are not typical of the 4 usual independently retained expert. While this is not as true of S Dr. Satterfield of Minneapolis, the others appear to be associated 6 in vahous ways ; and cannot be seen as independent from one another 7 nor very objective, since their commitment to their views is quite 8 clear and apparent. 9 Ms . Carolyn A. Livingston was called by the defense. She is a 10 sex therapist! who has been trained at the Institute for the 11 Advaned Study of Human Sexuality established by another witness 12 calleck by the defense in this case, Robert Theodore Mcllvenna. 13 T is Institute was incorporated in 1976 . The State of 14 California permits the Institute as of June 1981, to confer a 15 Docto of Education in Human Sexuality Degree (Ed.D. ) as 16 contr sted to a Ph.D. The catalog (plaintiff ' s Exhibit #3) also 17 indicates that a Ph.D. candidate prepares a traditional disser- 18 tatio{i, and also indicates additional degrees, Master of Human 19 Sexuality (M.H.S. ) and a Doctor of Human Sexuality (D.H.S . ) . 20 There are also professional programs which award certificates, 21 including Forensic Sexologist certificates and a summer cer- 22 tificate program. ' Ms . Livingston secured a Doctorate from the 23 Institute and ;her research work involved studies of Venusian 24 Church members in the Seattle area . 25 Ms. Livingston is also a trained registered nurse. She speaks 26 to many groups throughout the state, mainly in medical contexts 27 such as the Providence Hospital Cardiac Unit , Post-Surgery, 28 Ileos.omy, Alcoholism Recovery, Sexual Adjustment and estimates 29 that she has spoken to approximately 7, 000 people. She speaks 30 mainly to physicians, nurses, social workers, students at various 31 colle es and various community groups. 32 33 MEMORANDUM DECISION - 31 1 She does not use the films involved in this litigation in her 2 presentations, although she does use other film materials. 3 Sh- testified as to the films that their fantasy and educa- 4 tional, therapeutic and communication content supported in her opini n a serious scientific value criteria of the Miller test . 6 She t stified that none of the films , in her opinion, appealed to 7 a prurient interest in sex. 8 S e surprisingly testified that she felt Deep Throat was 9 capable of being shown on prime time television, suitable for 10 viewe s 16 years of age and over. She would define morbid to the 11 point of being ,nearly pathological or making one sick and would 12 inclu•e in that, ' sex with animals, voyeurism, exhibitionism, and 13 the u-e of children. 14 T e defense witnesses shared the view that the reason for 15 atten•ance at such films was a healthy curiosity about sex. 16 T is witness appears to the court to be sincerely motivated in 17 assis ing individuals in overcoming medically related sexual dys- 18 funct' ons or disabilities . Her views, however, with respect to 19 the r-lative mildness of the films in issue as compared with an 20 avail-ble range, she may be familiar with, does not necessarily 21 ref le t the Washington overall community standard which this court 22 finds to be more restrictive than the standard advanced by this 23 witness. The court finds that her audiences are not as cross sec- 24 tiona as our randomly selected jury. 25 0 cross examination, Ms. Livingston did acknowledge her con- 26 cerns that certain of the films were therapeutically defective. 27 For e ample, she did acknowledge the risk of transfer of bacteria 28 from one bodily: cavity to another with, .uninterrupted progression 29 from oral/vaginal/anal/oral/vaginal sex without hygienic cleans- 30 ing . She also questioned the concept of a therapist and patient 31 engag ' ng in sex such as was portrayed in Deep Throat; testified 32 33 MEMORANDUM DECISION - 32 it • 1 that she was opposed to public sex, although she did not equate 2 the film scenes, depicting group activity as such. She also 3 testified that she was not comfortable with Taboo II. 4 gain, the very general use of "science" as potential self- , i 5 help is not viewed by this court as comporting with the formal 6 syst matic, empirical study and examination normally associated 7 with that term and the intent of the United States Supreme Court 8 in tt1at connection. 9 Dr. Sharon Satterfield is the Director of the University of 10 Minn sota Medical School Sexuality Program, which she stated to be 11 the argest medical school clinic of its kind in the United 12 States, both as a treating and research facility. Dr. Satterfield 13 specializes in' Child Abuse ( sexual) and conducts a treatment 14 program for perpetrators, mainly middle class patients (currently 15 70 offenders) . This witness has extremely high professional cre- 16 dentials . She; has testified previously in favor of a proposed 17 Minneapolis ordinance to the consternation of Mr. Mcllvenna and 18 she h s participated in governmental regulation. 19 She is well acquainted with the professional literature and 20 ackno ledges that she has seen some cases of habitual use of por- 21 nogra hy, one or two compulsive users. 22 I7 treatment, fantasy provides for a broader communication and �3 she testified that the underlying fantasy of offenders must be 24 surfaced in the treatment process. She would see the fantasy sti- 25 mulation content of Devil In Miss Jones, Pandora' s Mirror and all 26 of the films as containing serious scientific value and testified 27 that such films have been used with positive results in 28 treatment . 29 Her definition of science is a broad definition of a systema- 30 tic acquisition of knowledge. 31 The court is at a loss. with the testimony of this highly 32 33 MEMOR NDUM DECISION - 33 • 1 qualified physician and concludes that she simply has been per- 2 suaded and holds the views held by Mr. Mcllvenna and Dr. Green 3 which this court has not accepted as controlling in this case. 4 Robert Theodore Mcllvenna is the Director of the Institute S for Advanced Study of Human Sexuality. He also is an ordained 6 Unite Methodist Minister. He is a leader in the effort to 7 establish sexology as a separate discipline and is the leadership 8 force in an international, as well as national effort in that 9 regard. He has testified in many courts. He has accumulated con- 10 siderable data drawn from Sex Attitude Profiles from all persons 11 engaging in programs with his institution and has undertaken field 12 research and has had on-going professional contact with many 13 institutions in the Northwest and various professionals. 14 The Sex Attitude Profiles are updated every six months, one, 15 two and five years, with some attrition factor . The court obser- 16 ves that those who submit these profiles are, of course, indivi- 17 duals who are willing and interested in revealing such information 18 about themselves which indicates a certain self-selection in the 19 group sample represented. 20 In testifying as to his opinion that none of the films appeal 21 to prurient interest, Mr. Mcllvenna characterized Deep Throat as 22 mythology, Devil In Miss Jones as a classic film, Debbie Does �3 Dallas as one of the most popular films of all times "which simply 24 shows a lot of sexual activity," Taboo II as a "thinly guised 25 incet thing. . . (where) everyone knows what is going on and goes 26 home, Little French Maid as a series of sex activities." 27 This witness testified that he knows Dr. Green, Dr. 28 Satterfield and Ms. Livingston. He acknowledged that he was 29 shocked and dumb-founded at Dr. Satterfield' s pro-regulation 30 testimony in Minnesota. He himself has testified for the .defense 31 on all occasions. He discussed that the testimonial fees he 32 33 MEMOR NDUM DECISION - 34 • • 1 receiv-s are used to balance his research funds for institute 2 activi y. 3 While Mr. McIlvenna was permitted to express an expert opinion 4 because of his on-going collection of data and experience in the Washington area, it is the conclusion of this Court that his atti- 6 tudes are greatly influenced by his commitment to his organization 7 and its purposes and are more reflective of a limited San 8 Francisco environment than that of this state. His data is not 9 reflective of the mainstream of Washington residents and as the 10 jury erdict reflects. Further, certain personal strategies of a 11 thera eutic nature utilized by Mr. Mcllvenna are professionally 12 unsup ortable and created considerable question in the mind of 13 this rier of fact as to..the professional judgment utilized by Mr . 14 Mcllvenna in his professional work. 15 T e City of Renton introduced the testimony of Professor 16 Ernes R. Van Den Haaq, a treating New York psychoanalyst and 17 curre t Professor of Jurisprudence at Fordham University. 18 Professor Van Den Haag has taught law and has lectured widely at 19 various prestigious academic institutions, including the Harvard 20 Medical School , ; Yale, Stanford, Berkeley and taught at the , New 21 School for Social Research:. He taught at the latter a course in 22 Love and Sex. He has written extensively in the area of 23 pornography which he readily admits he opposes in all forms . His 24 lectures are concerned with the separation of sexual gratification 25 from -ffection, 'love as between individuals and forms of love such 26 as bet een parent and child and between man and woman. 27 Hdefines science as an attempt to discover new facts for the 28 purpose of being able to control or predict behavior . He rejects 29 fantasy enrichment as any part of scientific endeavor and sees 30 these films as ; reducing the participants to the functioning of 31 their sexual organs . He finds ..that there are clearly messages in 32 33 MEMORANDUM DECISION - 35 1 the films of a misleading and harmful nature. 2 He views Taboo II as recommending incest between a father and 3 a daughter as a means to promote a better sexual adjustment bet- 4 ween ' he parents whose marriage is vapid. He sees Little French 5 Maid s outright promiscuity which in turn he views as a self- 6 destr ctive phenomenon leading to personality disintegration of 7 the p rticipant., ; 8 H sees none of the films as healthy or wholesome and views 9 the h mans as being either mutually exploitive and utilizing the 10 women as sex objects . He testified that in his view, no one in 11 the f lms has any real interest in another person and only as a 12 means to selfish sexual gratification. 13 A to the emerging specialty of Sexology, he would find this 14 highl questionable, though he did recognize that there have been 15 past cholars who have attempted to address the subject in more 16 parti ularity, . ,notably Kraft-Ebbing, Herschfeld, Freud, Black, 17 Mircu e. 18 H believes that some people who ' attend these films are 19 curious , othersi addicted and obsessed with the movie replacing 20 gratification and becoming a masturbatory stimulus and he believes 21 the s me to be , anti-therapeutic in that some persons can become 22 depen ent on such films as a sexual outlet . He testified that he 23 has p rsonally studied the. attendance of persons at such films and 24 estim tes that approximately 20 - 25% of the attendees are habi- 25 tuals He bases this upon his own observations and inquiries 26 regar ing practice of attendees and employees personally com- 27 municted with by himself at the theatres. He estimated that of 28 300 - 500 patients and approximately one third attending movies, 29 he e timates that a half again of those, he would consider ;0 addicted or compulsive habituals. 31 I discussing the pathological aspects of the films, he 32 33 MEMORA DUM DECISION - 36 1 point-d to the . excessive and dangerous sexual attachment to a 2 paren in Taboo II , the pleasure of voyeurism in Pandora' s Mirror 3 and s. w the love affair in Body Talk between the woman the young 4 sculp or as being merely after-thought. 5 I his opinion, none of the films had any meritorious value as 6 would be required under the Miller test and hence, all would be 7 obsce e . 8 D . Jack Ra mond Faghin,' is a practicing clinical psychiatrist 9 in th Seattle area who has treated patients with sexual problems 10 since 1953 . His patients include a broad spectrum of economic, 11 age and cultural groups. He acknowledged that he does not publish 12 because of the demands upon his time by his treating work, i3 attem?ts to maintain current knowledge of medical and professional 14 mater als in the field and is generally familiar with conventional 15 media publications. He is especially interested in sexual abuse 16 issue . , particularly as to children. 17 H- testified he is unaware of any scientific article which 18 explo es the nature of individuals who 'attend sexually explicit 19 movie . . He did! state that he was able to find a three line com- 20 ment ndicating ; that sexually explicit films could be useful in a 21 treat ent modality. He, himself , does not use films and testified 22 that le would not send a patient to such movies, as he believes in �3 guide. therapy.. 24 H- would not support sexology as a separate discipline because 25 he believes that it is professionally mandatory to consider the 26 inter- ction of the entire personality and he cites other pro- 27 fessi.nals as ' being in support of that position, including' Dr. 28 Helen Singer-Caplan of Cornell and Dr. Harold Leaf of the 29 University of Pennsylvania. 30 I considering the ten films, Dr. Faghin expressed his opinion 31 that none of the ten have any serious scientific value. He 2 3 MEMORA DUM DECISION - 37 1 1 rejec:ed the proposition that fantasy value was equivalent to 2 scientific value or that communicative value was of scientific 3 value although he would acknowledge that it could be useful. 4 Likew' se, he found no serious educational or therapeutic value in S the films . 6 A to the latter, he believed that the film messages were in 7 fact harmful. He testified that in Taboo II, in his opinion, the 8 impression is given that incest is acceptable, and as a physician, 9 he testified forcefully that in no instance has he ever seen any 10 benefit derived as a result of incest . In fact, it was , in his 11 view, clearly harmful. 12 He believed that the overriding message of Debbie Does 13 Dalla , i .e. , the exchange of sexual favors for money, is a simi- 14 larly negative; message and not therapeutically useful, but 15 destr ctive. 16 H testified that in his opinion, all of the films appealed to 17 pruri nt interest, are patently offensive and breach our community 18 stand rds . 19 HJ especially referred to sex with patients as being decried 20 by every reputable professional organization in the country in 21 criticizing Deep Throat. He was candid in saying that the public 22 might tolerate , movies in an adult theatre, it would not find 23 accep able on prime time television. 24 D . Faghin, : in this court' s opinion, was the witness most clo- 2S sely ' amiliar with the state population with which we are con- 26 cernei in establishing a community standard. 27 • H: also has direct clinical experience with this community 28 over any years 'of a highly qualified nature. 29 T is court has accepted his testimony as being the most pro- 30 fessi nally acceptable and accurate in reflecting a professional 31 whose approach is to consider the integrated personality, testi- 32 33 MEMORANDUM DECISION - 38 , • 1 mony which is more probative by virtue of being locally clinically 2 corro orated and offers an acceptable and reputable medical stan- 3 dard. 4 His testimony, as it is consistent with that of Professor Van 5 Den HLag is also borne out to a greater degree by our advisory 6 jury litho rejected the views being advanced by the defense. 7 W ile not obligated to do so, this court has accepted the ver- 8 dict of the jury as the basic expression of our community with 9 respe7t to the issues being considered . The jury thoughtfully and t0 delib rately considered each film as the special interrogatories 11 indic te, and returned their verdict. 12 The jury was able to consider each film independently as their 13 special interrogatories reflect. While this court might in some 14 particulars vary in view as to the individual films and the ulti- 15 mate zonclusion reached, it has determined to accept the collec- 16 tive expression of this jury as being reasonable and will confirm 17 the same, clxiAg, a -,so is Subs-ta,nt-i-MAS 18 •It�tl r i ge s �epieti�ng sec�,f�ied, sex�,�a ctivities" or 19 - 14k.e n aa :omic 1 areas" ailrc�huswaI pwaolus th.=0 a. a 20 Fp-r , in =e , es - in--- sex ..a^:..a.,- con of c-our e::;® .- c61a0440t r ce 21 Jla`��r�` y20; 1983 . 22 T e Court recognizes the jury verdict as being the primary 23 commu ity expression of the standard applicable. In finding four 24 of to films obscene, one might view 40% in too literal a mathema- 25 tical sense. The ten films stipulated to by counsel do not 26 necessarily reflect the most offensive nor the mildest of the 27 total sixty-four films and must be considered as a compromise 28 group. It is the conclusion of this court in view of this cir- 29 cumstance, that there is in fact a heavy weighting in the direc- 30 tion of unprotected materials . The cou-rt, fri.nds that the- j_ury 31 verdict more thanoisu E�f sivolit-Coppot,_hco-.nitisssciwsrcoumseof 32 33 MEMOR NDUM DECISION - 39 • 1 cr�rl — ec�n-i`-�e�nentt= fioc�irran'cep-�atn�l=t.h�t✓inasmuc'h as - -1 �- o � 2 t=h:eta —re..11 e c t—a•n i:'Te ii`tfkdd 1 ge n'te aiid` emphasis , tRh a t� t'he=i:r 3 ex,h-ib.-i-.t anr`hs ou ra e-zba�t-edlat,the Reln't3o'n-Thea 4 VIII . THE REMEDY 5 Ab tement as to the exhibition of the films determined to be 6 obscen is clearly appropriate and will enter. I The Court is prepared to find that there is no adequate remedy 8 at law available to the plaintiffs short of restraining the defen- 9 dants from exhibiting at the Renton Theatre, films such as those 10 demonstrated to have been shown continuously since January 20 , 11 1983, and that the four films found by the jury to be obscene are 12 substantially identical in genre to those displayed generally and 13 represented in the six other stipulated films , that the exhibition 14 of these films does constitute a nuisance per se, and an "adult 15 motion picture theatre" as defined in Renton Ordinance No. 3526 as 16 amended, and that the same should be abated by injunctive order . 17 The question of further available equitable remedy is reserved by 18 the Court for additional submission of law under the law of the 19 State of Washington pertaining to injunctions and abatement and 20 other remedies as may be appropriate. 21 What is less certain is the availability of other sanctions 22 under the general equitable power of this court under state law. 23 Other courts have struggled with this question. Van deCamp v. 24 American Art, 188 Cal. Rprt. 740 ( 1983) . There is merit in the 25 argument that the court should be empowered to utilize flexible, 26 equitable remedies if permitted by state law. The question of the • 27 full form and detail of injunctive relief will therefore abide 28 additional legal submission and additional presentation. 29 DATED this q day of Marr. -, , 1984 . 30 31 � 32 JUDGE NCY ANN HOLMAN 33 MEMORANDUM DECISION - 40 „ . ' ' • • , - t ; •• - , `N; ”. ', - ,. , ',• . • ' :i - ::,. . . " .... .‘,...\ • 1 " . r. • Armondo Pavone < J CD • Mayor Ns* . City Clerk Jason A.Seth,MMC .. ,.,:\:\ .‘ .,‘,,,.., .......4 .........c.„. ,,c.:.....--)--:•--i. .... ,,. ... .., .....,- .N . ,zz.,..z.,.., 4.... , ,-,....... Qs......) . ...,...:. 44.. ........ , • ........ ..........,, ...„ ........) • 1 n ..:-........,...„.,_ . .....z.s_. ........... ......_ , • .., . „.....c;....:...c. . __•._ . „......... t. ....---- -.. 4..... _ ..... ,..../.,, . ;....c:,....;.) . gg (z ) -,::5. •2i,1 II lz, .A6 oziEi, Ugg , . 0 1u55 South urady Way,Renton,WA 98057 • 425-43046510 • Fax 425 430 6516 • rentonwa.gov 1 lI OF R4, : .?' OFFICE OF THE CITY ATTORNEY• RENTON,WASHINGTON O z �i 0` POST OFFICE BOX 626 100 S 2nd STREET • RENTON. WASHINGTON 98057 255-8678 2 c 1 0 _ •- P. LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY 1/.0 vDAVID M. DEAN, ASSISTANT CITY ATTORNEY 09 �*g0 MARK E. BARBER, ASSISTANT CITY ATTORNEY gre0 SEPt ZANETTA L.FONTES, ASSISTANT CITY ATTORNEY November 30, 1984 MARTHA A.FRENCH,,,.ASSIsra,Nr CITY ATTORNEY CONFID NTIAL `?il:11 -- 7Y ..'rll.:3:.-.„ P' !a1'j TO: Bafbara Y. Shinpoch, Mayor ~C Z98� Members of the City Council J I L..=._. FROM: awrence J. Warren, City Attorney RE: P1 ytime Theatres, Inc . v. City of Renton De ision of the 9th Circuit Court of Appeals By now ach of you has no doubt been notified that on Wednesday, Novembe 28 , 1984, the 9th Circuit Court of Appeals in San FrancisFo entered its decision in the appeal by Playtime Theatres from our favorable ruling before Judge McGovern. A copy of the opinion is attached for your information. Although the opinion is quite unclear in its effect, it is our interpretation that the appellate court has remanded the case back to Jud.e McGovern for reconsideration in light of the 9 Circuit' s decision o ecem er, 81 in Tovar v. Billmeyer, w 'c ve e City o -Pocatello, Idaho. We expect that Judge McGovern will take more evidence concerning the rationale which motivated the adoption of the ordinance by the City. At its essence, the 9th Circuit' s decision is a setback for the position taken by the City. We are now confronted with basically three ptions: (1) to appeal the ruling to the United States Supreme Court; (2) to accept the remand back to Judge McGovern for re onsideration; or (3) to attempt to settle the litigation with P aytime Theatres, Inc. We will consider each alternative below. At the present time we do not have sufficient information with which o make a recommendation regarding the first and second option (appeal or reconsideration by the trial court) . How- ever, if it is the wish of the City Council to open serious settlement negotiations with Playtime, now is the time to consider that option. S • Barba a Y. Shinpoch, Mayor Membe s of City Council Page 2 Nove .er 30 , 1984 An ou line of the alternatives and their ramifications is as folio s: A. Appeal to United States Supreme Court 1. Actually technically known as Petition for Certiorari 2 . Petition for Certiorari not granted as a matter of right a. Estimate that only 2% of petitions granted b. Court may accept only part of issues presented in petition 3 . Time involved estimated at 18-24 months 4 . City Attorney' s office is currently researching availability of counsel with expertise in this field to assist with proceedings before the Supreme Court 5 . Cost of appeal is unknown 6 . In the event that the Petition for Certiorari is not accepted, the case will be remanded back to the trial court, just as would be the case of a remand from the 9th Circuit. B. Remand to Judge McGovern for Reconsideration 1. 9th Circuit' s opinion is ambiguous as to what evidence, if any, may be presented upon remand a. Stipulation entered into between parties in trial court purports to limit record to evidence already submitted b. No explicit reference in opinion to allow trial court to accept new evidence 2 . Satisfying the requirements set forth by the 9th Circuit' s opinion may be nearly impossible • Barba a Y. Shinpoch, Mayor Membe s of City Council Page c Novemser 30, 1984 a. We can do nothing to change the process by which the ordinance was adopted b. Under Tovar city bears the burden to establish a proper motive (and a lack of any improper motive) for adoption of the ordinance c. To bear that burden will require testimony by Mayor and Council members which may tend to politicize the issues, and increase the possibility of inadvertent damaging admissions ;d. No city. .other than Peoria is known to have prevailed under the scrutiny imposed by the circuit courts to find ways to get around the Supreme Court' s decision in Young 3 . Time involved estimated at .6-18 months plus any appeals after trial decision 4 . Cos.t is unknown 5 . Risks, among other factors: a. Judge McGovern may not accept additional evidence and enter judgment following 9th Circuit ' s opinion b. Loss of opportunity to appeal 9th Circuit ' s ruling to United States Supreme Court c . Changes may occur in the make-up of the United States Supreme Court during the course of any trial and appeal which would be adverse to our interest d. Re-trial will increase damages sustained by Playtime for attorney' s fees if they are ultimately the prevailing party under Section 1988 e. Increased attorney' s fees to the City which are probably not recoverable against Playtime even if the City is the prevailing party ® • Barbara Y. Shinpoch, Mayor Members of City Council Page 4 Novemb r 30., 1984 f. Adverse decision by Judge McGovern would threaten our possibility of recovery of fees and costs of abatement of "moral nuisance" in state court action C. Settlement 1 . An existing settlement offer from Playtime Theatres, Inc. , is on the table 2 . Economic circumstnace may favor settlement a. Likelihood of ultimate success is in doubt b. Increased attorney's fees to City c. Increased risk of Section 1988 attorney' s fees damages awarded to Playtime Theatres, Inc . d. Publicity of award of Section 1988 attorney' s fees damages will discourage other cities and encourage others like Playtime Theatres and their legal counsel e. Increased potential for creation of unfavorable law on nationwide basis 3 . There is no assurance that settlement with Playtime will preclude a successor from operating a porno theater in violation of the ordinance. Frankly, the odds for prevailing in the Supreme Court or in the trial court are not substantial following the decision of the 9th Circuit. Economic circumstances as set forth above may favor a negotiated settlement at this time . Such a settlement, although costly, assures a termination of the litigation at a known cost. However, continued operation of the theater as a porno theater, cannot be precluded with any degree of assurance . If the City Council desires to appeal, we believe that the issues presented have merit. We will continue to explore the option of appeal and return to the Council for a final decision with respect to our next step in. the litigation at such time as we have more information. 401 • Barbara Y. Shinpoch, Mayor Members of City Council Page 5 Novem er 30, 1984 We wil l plan to discuss this matter in detail at an Executive Session following the regular Council meeting on December 3 , 1984 . flwrceJ. Wan LJW:n. Encl. i , , , , 1-)lae-( W. 1 1 2 3 4 I THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY 5 CITY F RENTON, a municipal ) carpo ation; LAWRENCE J, WARREN, ) 6 City ttorney of the City of _ ) Rento ; STATE OF WASHINGTON ) NO . 82-2-02344-2 7 ex re . LAWRENCE J . WARREN, ) City ttorney of the City of ) BRIEF IN SUPPORT OF SUMMARY 8 Rento , ) JUDGMENT RE : CONSTITUTIONALIT ) OF ORDINANCE 9 Plaintiffs ) ) 10 vs ) ) 11 PLAYT ME THEATRES , INC. , ) �• ) a Was ington corporation, ) ' 12 KUKIO BAY PROPERTIES , INC. , a Was ington corporation, ) , ; 6 13 ROGER H. FORBES and JANE DOE ) 1983 FORBE• , husband and wife , ) c2"• - ,�-;�� . ,1„ 14 ROBERI B . McRAE and ELIA C . ) : t"�A::,,v:-•,';- , .z1`:0,17-olv if McRAE and DOES 1 THROUGH 10 , ) - ? - fw' i 15 ) � � �si.: '-Def6hdants — ) 16 ) 17 18 SUMMARY OF FACTS 19 Th.e City of Renton passed legislation controlling the 20 loca■ion of adult motion picture theaters . The Ordinances were 21 patt=rued closely after those approved by the United States 22 Supr_me Court in, Young v. American Mini Theaters , 427 U. S . 50 , 23 49 L.Ed 2d 310 96 S . Ct . 2240 (1976) and Northend Cinema v. 24 Seatle, 90 Wn 2d 709 , 585 P . 2d 1153 (1978) , 25 Playtime Theatres , Inc . and Kukio Bay Properties , Inc . , 26 sued the City of Renton in Federal Court under Cause No . 27 C 82-59M alleging , amongst other things , that the Ordinances 28 were in violation of the First , Fourth, Fifth, Sixth and BRIE- IN SUPPORT OF SUMMARY WARREN & KELLOGG, P.S. ATTORNEYS AT LAW JUDGENT RE CONSTITUTIONALITY too SO. SECOND ST.. P. 0.1 SOX 626 OF ORDINANCE - 1 RENTON, WASHINGTON 98057 255-8678 • 1 Fourt-enth Amendments to the Constitution of the United States .'II 2 (See •ertified copy of Amended and Supplemental Complaint for 3 Declafatory Judgment and Preliminary and Permanent Injunction, 4 Attac ment "A") . ; That litigation resulted in an opinion favorable 5 to th• City of Renton finding that the Ordinances were constitutional . 6 (See copy of Order dated February 17 , 1983 signed by Chief 7 Judge Walter T. McGovern of the United States District Court for 8 the W•stern District of Washington, Attachment "Be') . 9 Playtime Theatres , Inc . and Kukio Bay Properties , Inc . , ,, 10 in th s action, raise a number of Constitutional challenges to 11 the Cty' s legislation including the same challenges that it made 12 it Fe.eral Court thatthe Ordinance is both facially unconsti+tu- 13 tionai and as applied in that it violates the First , Fourth, 1 14 Fifth, Eighth and Fourteenth Amendments to the United States 11 15 Constitution. (See paragraph C, page 5 of Answer and Affirmative 16 Defenses and Counterclaim of Playtime Theatres , Inc . , Attachment 17 11C1I ) . That answer also alleges a number of challenges to the 18 Ordi ances as being in violation of the Constitution of the State 19 of Washington (See; paragraph D, page 5 of Attachment "C") . 20 ISSUES 21 1 . Would the doctrines of res judicata or collateral 22 esto•pel prohibit Defendants from ' r_elitigating the facial 23 cons •itutionality 'and as applied constitutionality. under the 24 U. S . Constitution? 25 2. Is Playtime' s defense utilizing Article 1 , Section, 5 26 of t e Washington State Constitution without merit under the 27 authority of Norith end Cinema v. Seattle, supra, and Young v. 28 Amer can Mini Theaters , supra. WARREN & KELLOGG, P.S. BRIE IN SUPPORT OF SUNII"1ARY ATTORNEYS AT LA JUDGI I NT RE CONSTITUTIONALITY 100 SO. SECOND ST.. P. O. SOX 626 RENTON, WASHINGTON 98057 OF 0'DINANCE - 2 255.8678 1 , 1 3 . Is the defense of Article 1 , Section 11 of the Washington 2 State Constitution, entitled "Religious Freedom" an arguable I 3 defense in this case? 4 4. Is Article 1 , Section 12 of the Washington State 5 Constitution entitled "Special Privileges and Immunities" a I 6 defense in this action? •I Washington State 7 5 . Is Artiicle 1, Section 16 of the 8 Constitution entitled "Eminent Domain" a defense in this action? I 9 6 . Is Article 1, Section 21 , of the Washington State 10 Constitution entitled "Trial by Jury" a defense in this action? 1 11 7 . Is Article 2:. . Section 19 of the Washington State I 12 Constitution entitled "Bill to Contain One Subject" a defense' in 13 this action? 1 'n 14 8 . Is Article II , Section 3 of the Washington State 15 Constitution entitled "New Counties" a defense in this action,? 16 ARGUMENT 17 1 . Would the doctrines of res judicata or collateral 18 estoppel prohibit Defendants from relitigating the' facial 19 constitutionality and as applied constitutionality under the 20 U. S. Constitutions? 21 Defendants Playtime Theaters , Inc . and Kukio Bay Properties , 22 Inc . sued the City of Renton in Federal District Court claiming 23 various Federal Constitutional violations as the grounds to 24 invalidate the City of Renton' s Ordinance controlling the location 25 of adult motion picture theaters . Despite the City' s attempts to have this matter litigated in Superior Court the matter 26 gi 27 eventually went to trial in Federal Court with a decision rendered 28 favorable to the City of Renton. (Attachment "B") . These same BRIE IN SUPPORT OF SUMMARY WARREN & KELLOGG. P.S.ATTORNEYS AT LAW JUDG ENT RE CONSTITUTIONALITY too SO. SECOND ST.. P. O. SOX 626 RENTON, WASHINGTON 98057 OF 0 INANCE - 3' 255-8678 1 , 1 parti=s seek to relitigate the identical issues upon which they 2 lost 'n this action. Clearly such an attempt is barred by the 3 doctr nes of collateral estoppel and res judicata. 4 The leading. case discussing res judicata and collateral 5 estoppel in Washington State, is Bordeaux v, Ingersoll Rand Col , 6 71 Wn 2d, 392,429 P. 2d 207 (1966) . 7 "Res judicata and collateral estoppel , kindred 8 doctrines designed to prevent relitigation of already determined causes and curtail multiplicity 9 of actions and harassment in the courts , are at times indistinguishable and frequently interchange- 10 able . If the differences must be noted, it could be said that res judicata is :the more comprehensive doctrine, identifying a prior judgment arising 11 out of the same cause of action between the same 12 parties , whereas a collateral estoppel relates to and bars relitigation on a particular issue or 13 determinative fact . Both doctrines require a large measure of identity as to parties , issues 14 and facts , Hand in neither can the party urging the two doctrines as a defense be a stranger to 15 the prior proceeding . He must have been a party , a participant , or in privity with either , and the 16 action out of which the bar is claimed must be qualitatively the same as the case in which the 17 doctrine is set up as a .bar . Where res judicata precludes reli.tigation of an entire cause because 18 of an identity of parties and issues culminating in a judgment, collateral estoppel is less 19 inclusive, preventing retrial of but one or more of the crucial issues or determinative facts . 20 Owens v. Kiro, 56 Wn. 2d 564,354 P . 2d 696 (1960) ; Riblet v. Ideal 'Cement 'Co . , 54 Wn. 2d 779 ,345 P ,2d 21 173 (.1959) ; / Orland, Wash. Prac . s 387 (2d ed, , 1965) 22 We recognized this principle in Owens v,Kuro , supra, when ,we said: 23 A judgment i.s not res judicata nor is one 24 collaterally estopped by judgment in a later case if there is no identity or privity of 25 parties; in the same antagonistic relation as in the decided action. Riblet v, Ideal 26 . Cement Co . , 54 Wn (2d) 779, 345 P . (2d) 173 ; Rufeneri v. Scott , 46 Wn (2d) 24- , 280 P . (2d) 27 253 . ;An estoppel must be mutual and cannot apply for or against a stranger to a judgment 28 since a stranger's rights cannot be determined in his absence from the controversy . BRIE IN SUPPORT OF SUMMARY WARREN & KELLOGG, P.S. JUDGI ENT RE CONSTITUTIONALITY ATTORNEYS AT LAW 100 SO. SECOND ST., P. O.IBOX 626 OF 0' D INANCE - 4 RENTON, WASHINGTON 98057 255-8678 • 1 In Northern Pac. Ry, v. Snohomish Cy . , 101 Wash 686 , 172 Pat . 878 (1918) , we set forth the essential 2 ingredients of res judicata: 3 To make a judgment res judicata in a subsequent action there must be a concurrence of identity 4 in four respects : (1) of subject-matter; (2) of cause of action; (3) of persons and parties ; 5 and (4) iri the quality of the persons for or against whom the claim is made . " 6 7 See also Beagles v. Seattle First National Bank, 25 Wn 8 App. 9 .5 , 610 P . 2d 962 (1980) ; State v. Dupard, 93 Wn 2d 268 , 272, 9 609 P 2d 961 (1980) ; Seattle-First National Bank v. Kawachi , 10 91 Wn 2d 223 , 588 .IP. 2d 725 (.19.78) ; and Kyreacos v. Smith, 89 I � 11 Wn 2d 425 , 572 P .2d 723 . 12 Even a cursory analysis of the Federal Court action 13 and t, e defenses raised in this action will show the Court that 14 there is a concurrence of identity in all four respects so as to I � 15 resul in res judicata. The subject matter is the City Ordinance 16 and t .e enumerated: constitutional defenses , neither of which 17 has varied from Federal Court to Superior Court . The cause of 18 actio is essentially the same with the parties seeking a 19 declaratory judgment as to the legality of the City Ordinance.11l 20 In both cases , the City of Renton is asserting the validity of 21 the 0 dinances and: Playtime and Kukio Bay are attacking the 22 Ordi ances . The quality of the persons for and against whomlthe 23 clai is made .is' identical in both cases , III 24 The parties fully litigated the constitutionality of the 25 City legislation in th.e Federal Court action. Because of the 26 policy reasons behind res judicata and collateral estoppel , it is 27 unnecessary to repeat this task in Superior Court . , The Court 28 shou d adopt theiopinion and analysis of the Federal District BRIE : IN SUPPORT] OF SUMMARY WARREN & KELLOGG, P.S.ATTORNEYS AT LAW JUDG ENT RE CONSiTITUTIONALITY w0 SO. SECOND ST.. F. O. BOX 626 OF 0`DINANCE - 5 RENTON, WASHINGTON 98057 255-8678 � I ` 1 and strike the defenses of Playtime and Kukio Bay asserting 2 Feder.l constitutional violations . 3 2 . Is Playtime 's defense utilizing Article 1 , Section 5 4 of the Washington State Constitution without merit under the 5 autho ity of Northend Cinema v. Seattle, supra, and Young v. 6 American Mini Theaters', supra? 7 Defendants Playtime and Kukio allege that the City' s i 8 legis ation controlling the location of adult motion picture 9 theat-rs is in violation of Article 1 , Section 5 of the 10 Const tution of the. State of Washington, entitled "Freedom of 11 Speec " . Such an allegation has been made before under a nearly 12 identical ordinance and rejected by the .Washington. State Supreme 13 Court in Northend ' Cinema v. Seattle, supra . What is more, these 14 same •efendants made the identical argument under the United 15 State- Constitution' s freedom of speech protections' and had that li 16 argument rejected there. The Washington State Supreme Court I , 17 in No' thend Cinema v. Seattle , supra, relied heavily upon thie 18 opini.n in YoungLv. American Mini Theaters , supra, the seminal 19 United States Supreme Court opinion. In reviewing the First I ' 20 Amen.] ent challenges and equal protection challenges , the Court 21 in Northend Cinema v. Seattle , supra, at page 714, stated : 22 11 p In response to these contentions we find the decision of United States Supreme Court in 23 Young v. American Mini Theatres , Inc . , 427 U. S. 24 50 ,49 L.Ed'. 2d 310 , 96 S . Ct . 2440 (1976) (herein- after referred to as Young) dispositive . In 25 that case the court approved the creation and definition ofan adult theater zoning use 26 identical Ito all relevant respects to the Seattle zoning use. It also approved regulation of ' 27 location for that use . Although appellants argue the Seattle ordinance differs from the , 28 Detroit or1dinance, those differences do not have BRIE; IN SUPPORT OF SUMMARY WARREN & KELLOGG. P.S. JUDG NT RE CONSTITUTIONALITY ATTORNEYS AT LAW OF 0"DINANCE - 6 ; 100 SO. SECOND ST.. P. O. BOX 620 RENTON, WASHINGTON 98057 255-8678 1 1 constitutional significance , as discussed below. We need not , of course, construe 2 the provisions of our state constitution identically with the corresponding provisions 3 of the federal constitution. Darrin v, Gould, 85 Wn. 12d 859, 868 , 540 P . 2d 882 (1975) . In 4 this case, however, we find the reasoning of Young persuasive, . It acknowledges and 5 accommodates the important interest of the state in exercising its police power to 6 protect city neighborhoods against degradation. while preserving the democratic principles 7 the constitutional provisions were designed to protect . We therefore find it appropriate 8 to apply , the general rule that language in our state constitution will be given the same 9 interpretation as that given the federal constitutional provision by the United States 10 Supreme Court , ' See Housing Authority v. Saylors , 87 Wn 2d 732 ,739 , 557 P , 2d 321 (1976) 11 12 13 The Ordinance before this court is nearly identical , 14, word Ior word, with. the Seattle Ordinance. Like the Seattle 15 Ordinance, the differences between the Renton Ordinance and 16 the D-troit Ordinance approved in Young v. American Mini Theatres , 17 supra, are not of constitutional significance. ; 18 19 It is anticipated that Playtime and Kukio will attempt 20 to assert the rights of third parties to challenge the Ordinance 21 for -acial overbreadth , Reviewing the nearly identical 22 Seattle Ordinance,, in Northend Cinema v. Seattle, supra, 23 at p.ge 716 , the j court rejected that approach. I 24 /// 25 /// 26 /// 27 BRIE' IN SUPPORT, OF SUMMARY JUDGiiNT RE CONSTITUTIONALITY 28 OF O:DINANCE - 7 WARREN & KELLOG'G, P.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. BOX 826 RENTON. WASHINGTON 98057 255-8678 I 1 t ' 1 "Nor do appellants have standing to assert the First Amendment rights o.f others and challenge the 2 ordinance for facial overbreadth, The special rule giving standing to one whose own rights are not 3 violated to challenge an ordinance for overbreadth applies only, if the ordinance's deterent effect 4 on protected First Amendment speech is "both real and substantial" and the ordinance is not easily 5 susceptible to a narrowing construction. Erznoznik , v. Jack-sonville , 422 'U. S . 205 ,216 ,45 L.Ed, 2d 125 , 6 95 S.Ct . 2268 (1975) . . . " 7 Any arguments of illegality due to prior restraint of First Amendment speech is likewise dealt with at page 8 prot:cted i , 1 9 717 : 1 1 10 . . the City' s most important interest in regulating use of its property for commercial purposes is 11 clearly sufficient to justify the zoning regulation here , We conclude the zoning regulation of location 12 of adult movie theaters is a reasonable regulation of place for First Amendment speech- which does l 13 not violate' First Amendment freedoms . 14 Finally , an argument may be made that this Ordinance is a 15 classification based on content , Such contention was rejected 16 at page 718 : 1 17 "The first element is that the ordinance has only a slight and neutral effect on protected 18 speech. No real restraint or deterrent effect is evident . The ordinance regulates only the 19 place wh.eire these films can be shown, It 1 demonstrates a reasonable decision that the 20 public welfare is best served by having this particular type of speech take place only in 21 certain areas of the community. . , . . 22 The second element is the City's great interest in protecting and preserving the quality of its 23 .neighborhoods through effective land-use planning. 7 . Thus , "the city 's interest in attempting to 24 re'serveth.e quality of urban life, is one that must be accorded high respect . " Young, supra at 25 71 , . . . 26 The choice of methods for locating adult movie theatersj, that is to concentrate them in the 27 business areas of the City rather than disperse them (asi did the Detroit ordinance) , is not of 28 ... BR EF IN SUPPORT SUMMARY WARREN & KELLOI'1GG. P.S.ATTORNEYS AT LAW JU I GMENT RE CONSTITUTIONALITY 10 80. ATTO N sT.. P. O. BOX 626 OF ORDINANCE 8 RENTON. WASHINGTON 98057 i I 255-8678 1 1 constitutional significance. The City' s planning effort must be accorded a sufficient degree of 2 flexibility for experimentation and innovation. Young, supra, at 71 , 73 . We cannot substitute our 3 judgment of what would be the most effective method of regulation in this regard. It should also be 4 noted that the majority in Young specifically approved the concentration method. Young , supra at 62, 71 . . . 5 "We conclude the City's paramount interest in 6 protecting, preserving, and improving the character and quality of its residential neighborhoods is 7 sufficient to justify this non-discriminatory zoning regulation of the location of adult movie theaters . 8 We find no violation of First Amendment or equal protection guaranties . " 9 10 Playtime and Kukio are well aware of Northend Cinema v. 11 Seattle, supra, and Young v. American Mini Theatres , supra. 12 They further know that the Renton Ordinance is patterned closllely 13 after those two Ordinances which have been speficially approved 14 14 by the high court of this State and the high court of this land. 15 Despite this overwhelming endorsement for a zoning approach to 16 control of the location of adult motion picture theaters , these 17 Defendants have raised the frivolous and oft-rejected defense 18 of violation of freedom of speech . Based upon the authority llof 19 these two leading cases , the court must find that the Ordinance 20 ' does not violate freedom of speech. 21 3 . Is the defense of Article 1 , Section 11 of the Washington 22 State Constitution, entitled "Religious Freedom" an arguablell ' I 23 defense in this case? 24 Playtime and Kukio have claimed a violation of the Washington 25 Stat Constitution, Article I, Section 11 entitled "Religious I 26 Free om" . Since there is nothing factual in the record nor in 27 the llegations made in the defense, then this constitutional 28 BRIE IN SUPPORT OF SUMMARY JUDG ENT RE CONSTITUTIONALITY WARREN & KELLOGG. P.S. OF 0 DINANCE - 9 ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. BOX 626 RENTON, WASHINGTON 98057 255-8678 ! ! I t ,i 1 defense ust be rejected as being frivolous , The City of Renton, 2 is not a religious institution and it has proceeded with its 3 zoning i a manner previously approved by the Courts . The concept 4 of zonin• is withinjthe police power . There is no hint of a 1 5 violatio' of religious freedom and surely the Defendants are note 6 so bold as to claim that the commercial showing of sexual explicit 7 movies - ounts to a religious undertaking. 8 4 . Is Article 1, Section 12 of the Washington State 1 9 Constit tion entitled "Special Privileges and Immunities" a defense I 10 in this action? I ' 11 Constitutional Article I , subsection 12 entitled "Specialil 12 Privileges and Immunities Prohibited" has been pled as a defense 13 in this action. The courts have authoritatively construed this 14 Constit tional provision as being a "due process" provision. 15 It is d' fficult to understand Defendants ' arguments concerning 16 1 this co stitutional section except to note previous reliance on.'I 17 the Fed ral due process clause which was rejected in the District 18 Court a d to rely again upon Northend Cinema v. Seattle at page 19 717 whe e the court first discusses , and then rejects a claim 20 that ad It motion picture theaters were treated differently from 21 1 other theaters showing films protected by the First Amendment . 22 This wo ld appear to; be in effect the due process argument that 23 these D-fendants are, asserting. Therefore, this defense is 24 without merit and should be rejected. 1 25 \ 5 . Is Article, 1 , Section 16 of the Washington State 26 Constit tion entitled "Eminent Domain" a defense in this action? 27 Defendants next assert that the City ' s Ordinances violate, 28 the constitutionaliprotection under Article I, subsection 16 I WARREN & KELLOGG, P.S. BRIEF IN SUPPORT OF S ATTORNEYS AT LAW SUMMARY IOo so. SECOND SS., P. O. HOx 828 JUDGMENT RE CONSTITUTIONALITY RENTON. WASHINGTON 98057 OF ORDINANCE - 10 255-8678 I , ! i by this court under the court ' s discretionary power under the 2 Civi 'ules . That being the case there can be no invasion of I � 3 the ig t to trial by jury. 4 7 . Is Article 2 , Section 19 of the Washington State I I 5 Constit tion entitled "Bill to Contain One Subject" a defense 6 in I action? 7 Defendants have claimed that the City legislation violated 8 Art' c1_ 2 , Section 19 of the Washington State Constitution which 9 P roid=s : 10 "No bill; shall embrace more than one subject , and that shall be expressed in the title . " 11 12 Thi a legation is one that is on the "laundry list" of objections 13 tha p rnographers routinely use in attacking legislation. Just 14 as ou inely, the courts have rejected the argument as being 15 spe io s . See for example , Spokane Arcades , Inc . v. Eikenberry , 16 544 F. upp . 1034 (DC,E. Dist. Wash . 1982) which involved Playtime 1 17 The. tr-s , Inc . That court' s analysis is an excellent discussion 18 of he law: ' i 19 "The Washington judiciary has never read the applicable provision so narrowly . 20 We do not agree that the initiative covers 21 a multiplicity of subjects or subjects that are not reasonably related. On the contrary , 22 each of the subtopics of (the initiative) bears a close interrelationship to the dominant 23 intendment of the measure . We have repeatedly held that1wh.ere the title embraces a general' 24 subject it is not violative of the constitution even though, the general subject contains 25 incidental subjects . All that is required is that there be some "rational unity" between , 26 the general subject and the incidental subdivision. Kueckelhan v. Federal Old Line Ins . Co . , 69 Wn. 2d 27 392 , 418 P .12d 443 (1966) ; Robison v. Dwyer , 58 Wn 576 , 364 P . 2d 521 (1961) . 28 Water Dist . 105 v. State , 79 Wn. 2d 337 ,341 , 485 P. 2d 66 (1971) WARREN & KELLOGG. P.S. BRIEF IN SUPPORT OF SUMMARY ATTORNEYS AT LAW JU J GM;NT RE CONSTITUTIONALITY 100 so. SECOND ST., P. O. SOX 626 OF OR I INANCE - 121 RENTON, WASHINGTON 98057 255-8678 1 1 . 4 • . 1 Fritz •v, Gorton:, 83 Wn, 2d 275? 2.90.? 5.17 P,2d 911 , 920-21 (1974) . 2 Even where the subjects at issue might be discrete 3 if viewed in the abstract , it is incumbent upon the court to go a step further and take a practical 4 construction:of such subjects in light of the scope of a given measure . Goodner v. Chicago , Mil . 5 Etc . R. Co . , ' 61 Wn. 2d 12 , 23 , 377 P.2d 231 , 237-38 (1962) , Stated another way, it is the legislative . 6 purpose which is the critical focal point , and: I , 7 all matters which are naturally and reasonably connected with it , and all measures which will , 8 or may, facilitate the accomplishment of the purpose so stated, are properly included in 9 the act and are germane to its title . ' II 10 Gruen v. State Tax 'Comm. , 35 Wn. 2d 1, 22-23 , 211 P. 2d 651 , 664 (1949) . 11 More concretely yet , the Washington Supreme Court ' 12 has held that : 13 To constitute: plurality of subject, an act 14 must embrace two or more dissimilar and discordant subjects , that by no fair intendment can be considered as having any legitimate 15 connection with or relation to each other. ' 16 Within the meaning of the constitutional provision., matters which. apparently constitute 17 distinct and separate subjects are not so where they are not incongruous and diverse to 18 each other . 19 Casco. Co. v. IPublic Util . Dist . No . 1 , 37 Wn. 2d 777 , 790-91 , 226 P. 2d 235 , 242 (.1959) , 20 The purpose of a title is to put interested persons 21 on notice of the subject matter in a manner sufficieint to prompt ' inquiry into the body 22 . of the act' if one should wish to do so ; and where ' a title is broad and comprehensive , it will be 23 liberally construed. ' State v, Charboneau's , 27 Wn, Appl 5 , 9-10 , 615 P . 2d 1321 , 1324, rev,. 24 denied 94 Wn 2d 1021 (1980) See also 'State v: Winters , 67 Wn. 2d 465, 466 , 407 P . 2d 988 , 989 25 (1965) . I I 26 I am unable to conclude that pornography and moral nuisances are so discordant and inimical to one 27 another as t;o be without 'rational unity . ' Indeed, under the language of section 2 of HB 626 , it would 28 B'IE IN SUPPORT OF SUMMARY J 0 ENT RE CONSTITUTIONALITY WARREN & KELLOGG, P.S. OF O'DINANCE - 113 ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. BOX 626 RENTON, WASHINGTON 98057 255-8678 • . • 1 appear that; the former is subsumed into the latter. Certainly the title is 'broad and 2 comprehensive ' enough to put any reasonable legislator an notice as to the nature and scope 3 of the law. A constitutional challenge based on Article �2 , .section 19 must therefore fail . " 4 5 8.. Is Article 11 , 'Section 3 of the Washington State 6 Cons't" tution 'entitled "New .Counties" 'a defense in this action? 7 Defendants claim the protection of Constitutional Articles 8 11 S-ction 3 whi!ch is entitled "New Counties" . The City of 9 Rento, cannot understand the argument that has been advanced in 10 this ' .ection and ;suggests to the court that this Constitutional - 11 provi ion is clearly and unapplicable to the ordinances before 12 th- court. 13 GENERAL PROVISIONS 14 In order to test the City ' s ordinances for constitutionality, 15 .th- court must keep in mind certain principles : 16 1 . Statutes , when tested for constitutionality, must be 17 const ued in a common sense rather than hypertechnical fashion. 18 Unite. 'States 'Civil' 'Service 'Commission v. National Association of 19 Lette 'Carriers, '413 U. S. 548 , 579 (1973) ; United States v. 20 Fuitc , 402 U. S. ;62 , 72 (1971) . 21 2. A State court is under a constitutional duty to construe 22 st= - legislation in a constitutional manner , People ex rel Busch 23 v. • ' ection Room Theaters , 17 Cal 3rd 55 24 3 . Ordinances regulating the location of adult motion 25 pictu' e theaters carry no presumption of unconstitutionality. 26 No;rthend Cinema v. Seattle , supra , footnote 5 . 27 4. Municipal Ordinances are presumed valid. Spokane v. 28 Carlson, 73 Wn 2d 76 , 436 P . 2d 454. Every presumption is in B'IEF IN SUPPORT OF SUMMARY WARREN & KELLOGG. P.S. ATTORNEYS AT LAW J D G ENT RE CONSTITUTIONALITY too SO. SECOND ST., P. O. SOX 626 OF O'DINANCE - 14 RENTON, WASHINGTON 98057 255-8678 ' 1 favor of the constitutionality of an ordinance if any rational 2 co si eration support its enactment . Seattle v. Larkin, 10 Wn 3 App . 05 , 516 P. 2d 1083 , 4 5 . The courts in passing upon an ordinance ' s constitutionality 7 5 will of scrutinize its provisions sentence by sentence or review 6 the details of the various sections of the ordinance to ascertain 7 which, if attacked separately, might not withstand the test of 8 constitutionality . Euclid v.Amb.ler Realty Co „ 272 U. S . 365 , 71 9 L.Ed. 30.3 , 4.7 S , Ct, 114 . 10 6 . Ordinances involving the police power, such as zoning, 11 will not be declared unconstitutional unless their provisions 12 are arbitrary and capricious , having no relation to the public 13 helt , safety , morals or welfare . Euclid v, Ambler Realty Co . , 14 supra. 15 7 , If an ordinance is a proper exercise of the police power , 16 such_ s zoning, its constitutionality is undenyable , State v. 17 Dixon, 78 Wn 2d, J96 ,4J9 1 ,2d 931 . If constitutional questions 18 are f- irly debatable , the court must declare the ordinance 19 constitutional . , 20 8 . The court will not inquire into the motives or determine 21 the propriety of the policy which prompted the enactment of the 22 ordi ance. Lillion v, Gibbs , 47 Wn 2d 629 , 633 , 289 P . 2d 203 23 (1955) . 24 Dated October 5 , 1983 , 25 Res e tfull submitted Lawrence J arren, 27 Attorney f City of Renton 28 BRIE IN SUPPORT OF SUMMARY JUDG NT RE CONSTITUTIONALITY OF ORDINANCE - 15 WARREN ATTORNEYS K , P.S. AT LAW 100 SO. SECOND ST., P. O. BOX 626 RENTON. WASHINGTON 9B057 255-8678 ' T cc•.^ti j y that the ... ; `:N.I.37. ). i.s a true 11 . , , • ..,,,,_.. _ T I ;CE1\IEEi1 Y21 , ;C,O�', : FEB 9 1982 1 ti • E D I .1tK T McuUVERN U. S. DISTRI,CZ JUDGE II .F.2.8 9 1982 1 PHILIP K. SWEIGERT ,_- 1 U.S. MAGISTRATE 2 . 3 —ILIODGE —LODGED 4 RECEIVED 5 FEB 9; 1982 Cl ERK U.S. DISTRICT COURT 4 II 6 WEST R tISTTRRI�CT, OF 'WASHIN:TON i' 9 do g 11 1 ,7 DEPUTY _ 8 UNITED STATES DISTRICT COURT 9 FOR THE WESTERN DISTRICT OF WASHINGTON 1 10 PLAY IME THEATRES, INC. , a ) I Washington corporation, and KUKIO ) BAY PROPERTIES, INC. , a Washington) 11 corp•ration, ) NO. 082-59M .) II 12 Plaintiffs , ) 13 vs . ) AMENDED AND SUPPLEMENTAL I ) COMPLAINT FOR DECLARATORYP, 14 THE CITY OF RENTON; ) JUDGMENT AND PRELIMINARY AND PERMANENT INJUNCTION 15 and ) 11 THE ONORABLE BARBARA Y. SHINPOCH,) 16 as ' ayor of the City of Renton, ) 17 ' and ) 18 ) . EARL CLYMER, ROBERT HUGHES, NANCY ) 19 MATHEWS, JOHN REED; RANDY ROCKHILL) 11 Ricii. . p STREDICKE AND TOM TRIMM, ) 20 as , fiembers of the, City Council of ) I the City of Renton; serve on: ) 1 21 DELI ' ES H. MEAD, City Clerk, ) ) , 22 and 11 23 ) JIM BOURASA, as acting Chief of ) .. . 24 Police of the City of Renton, ' ) 25 ) ' Defendants, jointly and ) ' 26 severally, in their ) ' representative capacities ) ' 27 only. . ' ) . I ) , 28 ,, . COME NOW Playtime Theatres Inc . and Kukio Bay Properties 29 1 I Inc. , bodies corporate of the State of Washington, by and through 30 their attorneys , Jack R. Burns and Robert Eugene Smith, of counsel , 31 I •• Amended and Supplemental ATTORNEYS ArLAW, Com I laint Hubbard, Burns &Afger Pag 1 ' A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)&28r3636 ''' r,J - 1 and ee. a declaratory judgment as well as a preliminary and 2 perma en injunction with respect to City of Renton Ordinance No. 3 3526 entitled: "An Ordinance Of The City Of Renton, Washington, 4 Relat 'ng To Land Use and Zoning; " enacted and approved, by the Mayor 5 and Cit Council on or about the 13th day of April , 1981 and in 6 suppo t •f their cause of action, state: 7 I . JURISDICTION 8 1 . This is a civil action whereby plaintiffs pray for a 9 preli in ry and permanent injunction enjoining the defendants from- 10 enfor em nt of the City of Renton Ordinance No. 3526 , a copy of 11 which i attached ' hereto as Exhibit "A" in support of this 12 compl in , the contents of which are incorporated herein by 13 refer nc , on the grounds that said ordinance and the multiple 14 provi io.Is thereof ' are unconstitutional as written,, and/or as 15 threaten-d to be applied to the plaintiffs in the case at bar. 16 Furth-r, plaintiffs ; pray for a declaratory judgment Ito determine 17 the lon-titutionality of said Ordinance , as written and/or as 18 threa en-d to be applied to the plaintiffs . The allegations to be 19 set orih in the premises establish that there are presented 20 quest on of actual controversy between the parties involving 21 subst:nt al constitutional issues in that said ordinance , as 22 written :nd/or in its threatened application, is repugnant to the 23 right of the plaintiffs herein under the First , Fourth, Fifth, 24 Sixth a d Fourteenth Amendments to the Constitution of the United 25 State . 26 2 Jurisdiction is conferred on this court for the resolu- 27 tion f the substantial constitutional questions presented by the 28 provi io s of 28 USCA §1131 (a) which provides in pertinent part : , 29 ( :) The district court shall have original 30 jurisdiction of all civil actions wherein the matter in controversy exceeds the sum 31 o value of $10 ,000.00, exclusive of interest Amend d nd Supplemental ATTORNEYS AT LAW Compl in Hubbard, Burns &Meyer Page A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 1 and costs , and arises under the Constitution laws or treaties of the United States . 1 2 as we 1 as 28 USCA §1343(3) which provides in pertinent part, that 3 the district courts shall have original jurisdiction of any ' civil 4 actioi authorized by law to be commenced by any person: 5 . To redress the deprivation, under color of any ' 6 any state law, statute, ordinance , regulation, custom or usage , of any right , privilege or 7 immunity secured by the Constitution of the United States . . ." 8 and he organic law which further authorizes the institution of 9 this suit founded on 42 USCA §1983, which provides in pertinent , 10 part :s follows : 11 . Every person who , under color of any statute , 12 ordinance ; custom or usage, of any state or territoryIsubjects , or causes to be subjected, 13 { any persori of the United States or other per- son within the jurisdiction thereof to the 14 deprivation of any rights , privileges or immunities secured by the Constitution and . 15 the laws , Ishall be liable to the party in- 16 jured in an action at law, sued in equity, or other proper proceeding for redress . 17 Plaintiffs ' prayer for declaratory relief is founded on Rule 18 57 of the Federal Rules of Civil Procedure , as well as 28 USCA 19 §2201 , which provides in pertinent part : ' 20 . . . Any court of the United States , upon the filing of an appropriate pleading, may declare 21 the rights and other legal relations of any interesed party seeking such declaration, 22 whether or not further relief is or could be 23 sought . . 24 The 1urisdictiori of this court to grant injunctive relief is 25 confe red by 28 USCA §2202 , which provides : Further necessary or proper relief based upon , 26 a declaratory judgment or decree may be granted 27 after reasonable notice and hearing against any adverse party whose rights have been determined 28 by such judgment . 29 II . PARTIES 30 3. Playtime Theatres , Inc . , a corporate body of the State ll 31 of W: shington plans to operate pursuant to a written lease )agree- ATTORNEYS AT LAW Amen.ed and Supplemental Comp aint Hubbard, Burns &Meyer Pire 3 A PROFESSIONAL SERVICE CORPORATION ' 10604 N.E.38th Place,Suite 105 Ki00n41 Washington 98033 • 1 m:nt a motion picture theatre which is located at 504 South 3rd 2 S ■re=t , within the city limits of Renton, State of Washingtoni. The 3 e te .prise will be operated under the name of the Roxy Theatre . 4 P ay.ime Theatres , Inc. will also operate pursuant to a written 5 1-as : agreement , the Renton Theatre at 507 South 3rd Street , *thin 6 t e ■ity limits 'of Renton, State of Washington. 7 Kukio Bay Properties , Inc. , a body corporate' of the State of 8 Washington has purchased the motion picture theatres described in 9 t e mreceeding paragraph and has leased said theatres to PIaytime 10 T ea res , Inc. 11 That on January 26 , 1982, Kukio Bay Properties , Inc . 'I pur- 12 c as:d of said theatres for the sum of $800,000.00. That imme- 13 d at: ly thereafter, Kukio Bay Properties , Inc. took possession of 14 s:id theatres . That on or about the 27th day of January, 1982, by 15 a wr tten agreement , Kukio Bay Properties , Inc. leased said theatre 16 p em ses to Playtime Theatres , Inc . for a period of ten years 17 c■mm:ncing on January 27 , 1982. In addition, Playtime Theatres , I 18 I c. will have the option to renew said leases Or an additional 19 t-rm of ten years terminating on January 26 , 2002 . The, lease 20 a:;re:meets to be entered into by the parties provide that the 21 p em ses by used for the purpose of conducting therein adult motion 22 pict re theatres . Playtime Theatres , Inc. took possession of said 23 't ea res on or about January 27 , 1982 and on January 29", 1982 24 p an ed to begin exhibiting feature length motion picture films for 25 'a ul audiences . 26 From on or about January 29, 1982, under the operation and 27 m na:ement of Playtime Theatres , Inc . , one of said theatres would 28 c nt nuously operate exhibiting adult motion picture film fare to 29 an a.ult public audience but for the threats of the defendants to 30 31 ATTORNEYS AT LAW en.ed and Supplemental c mp I stet Hubbard,.Burns &Meyer • P ge 4 1 I A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 . Kirkland,Washington 98033 I I ,once o��aa�a _ 1 1 enforce their wholly unconstitutional zoning ordinance . 2 J . The defendant , City of Renton, is a municipal corpora- 3 tion of the State olf Washington. 4 The Honorable Barbara Y. Shinpoch is named defendant 5 herein in her capacity as Mayor of the City of Renton, having the 6 titular title .' In that capacity, she is the head of City govern- 7 went an approved the questioned ordinance in the case. at bar. 8 . Earl Clymer, Robert Hughes , Nancy Mathews , John Re;'ed, 1 9 Randy R ckhill , Richard Stredicke and Tom Trimm are named as 1 10 deferida is herein as members of the City Council of the City of 11 Renton ho enacted the wholly unconstitutional ordinance as a part 12 of their alleged legislative function. 13 8. Jim Bourasa is named a defendant herein in : his capacity 14 as A ti g Chief of Police of the City of Renton who ' is primarily 15 respoisi•le for seeing to the enforcement of the City of Renton 16 ordinanc- s , civil, criminal and quasi-criminal in nature. 17 9. The defendants in their official capacities as aforesaid 18 have ac ■ed and/or threaten to act to plaintiffs ' immediate and 19 irrep ra•le harm under color of authority of the Ordinance No. 3526 20 heret fo e identified as Exhibit "A". 21 Tie named defendants , in their official capacity as afore- 22 mentionea , are joined herein to make enforceable to them and/or 23 their ag-nts , servants , employees and attorneys , any Preliminary 24 and/or 'ermanent Injunction, Declaratory Judgment , and/or other 25 Order of this Court . 26 III. FACTUAL ALLEGATIONS 27 28 11 . The instant ordinance was passed with the sole purpose to preveit the opening of any adult motion picture theatre within 30 the city limits of Renton and to effectively censor the kinds 'of 31 1 • Amended :nd Supplemental ATTORNEYS AT LAW, Comp15iin• Hubbard, Burns &Meyer Page A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 1 iti.Ll6n.l Uhmelin.t..n 0a1112 • • 1 prot-ct d First Amendment press materials available to adult 2 citi en of the City of Renton and adult visitors to the City. 3 1 . That no criminal , quasi-criminal and/or civil preceed- 4 ing s ending in the city courts of the City of Renton or in the I 5 stat- courts in the State of Washington against the plaintiffs 6 and/ 'r their agents , servants and employees as of the date ofIthe 7 fili g of this suit with respect to this matter. 8 12 . That on the 19th day of January, 1982, Mike Parness , 9 Admi istrative Assistant to the Mayor of the City of Renton has , as 10 afor: said, advised that if the property of the plaintiffs is used 11 to e hibit adult motion picture films , then enforcement proceedings 12 will be commenced forthwith. 13 13. That the City of Renton Ordinance No. 3526 was enacted 14 by t e City Council and approved by the Mayor as a part of a syste- 15 mati• scheme, plan and design, under color of enforcement of ',the 16 said ordinance to deny distributors and/or exhbitors of adult films 17 access to the marketplace, and to deny to the in1ersted adult 18 publ c, access to such erotic materials which are not otherwise 19 obsc=ne under the test set forth in Miller v. California, 413 U.S. 20 15 (1973) . See Young v. American Mini Theatres , 427 U.S. 50 21 (197 ') at pages 62 and 71 . 22 14. That requiring the plaintiffs to conform to this wholly 23 unco stitutional zoning ordinance by 'not using the locations they 24 have contracted to purchase , and requiring them to move their 25 busi ess to a selectively obscure geographical location , violates 26 the laintiffs ' rights under the First , Fifth, Sixth and Fourteenth 27 Amen•ments to the Constitution of the United States . Indeed,, by 28 this selective ordinance , which would shutter motion picture 29 theatres such as the Roxy Theatre and Renton Theatre , which show as 30 part of their fare, lerotic films , the City of Renton by its agents , 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns &Meyer Page 6 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 , • I 1 • 1 1 • 1 1 1 dl 1 serv:nt • and employees will be denying the plaintiffs and other 2 pers•ns lawfully engaged in the exhibition ' of adult film fare 1 3 pres up ively. protected by the First Amendment to the Constitution 4 of . t e United States , [Heller v. People of the State of New Yprk, 5 413 U. S. 483 (1973) ; and Roaden v. Commonwealth of Kentucky, 413 6 U.S. 49. (1973) ] , access to the marketplace as well as the right of 7 the int-rested adult public to have access to adult film fare , and it 1 8 will d.ny the plaintiffs the right to engage in said business in 1 i1 9 the it of Renton; and unless restrained, the City, under color of- 10 enfo ceHent of its zoning laws, will cause said businesses to cease I 11 and cl se up; and unless restrained , defendants will continue to . 12 seek t• enforce said ordinance and this will have the effect of 13 totally depriving I, your plaintiffs , as well as others similarly 14 situ:te , from their normal business activities . This will have a 1 1 15 chill.in_ effect onj the dissemination and exhibition of adult 'film 16 fare t those interested adults who seek to satiate their ethica- 1 17 11 tion:l, entertainment , literary, scientific and artistic interests 18 in •.uc press materials . The ordinance places an intolerable 1 19 burd-n pon the exercise of First Amendment rights , arbitrarily and 20 caprici•usly descriminates as to the nature of film fare exhibited 21 base upon an assumption which is not rationally related to a valid 22 public 'purpose norinecessary to achieve a compelling state interest 23 in io ation of the Equal Protection Clause of the Fourteenth 24 Amen.me t of the Constitution of the United States , establishes 25 clas -if' cations which are arbitrary and capricious and constitutes 26 an bu-e of legislative discretion and is not rationally related 27. and al o deprives, plaintiffs of their equal rights under Ithe 1 28 Fourltee, th Amendme>!it of the Constitution of the United States ;'iI and furt er by its use has language that is intrinsically vague and 30 void u der the First and Fifth Amendments to the Constitution of 31 1 ATTORNEYS AT LAW Amen ed and Supplemental Com ai t 1 Hubbard, Burns &Meyer • Page 7 A PROFESSIONAL SERVICE CORPORATION 1 10604 N.E.38th Place,Suite 105 , 1 Kirkland,Washington 98033 1 the Un ted States and void for impermissible overbreadth by the use 2 of mea s which are too broad for the alleged evil intended to be 3 curtai ed. That the enactment of the City of Renton Ordinance No. 4 3526 ws done without the constitutionally required legislative 5 fact f nding required to meet the burden imposed upon those , who 6 seek to curtail activity which might otherwise be protected within 7 the pn umbra of the First Amendment of the Constitution ofIthe 8 United States . The defendants , by their agents , servants and 9 employe s , and/or their attorneys , by enacting such a wholly 10 unconst tutional ordinance, . and now threatening to enforce Ithe 11 same, have created a pervasive atmosphere of official repression 12 constituting a "chilling effect" upon the exercise of First 13 Amendment rights of plaintiffs and others who may wish to engage in 14 the lawful.. business of exhibiting adult film fare protected by the 15 First A endment to the Constitution of the United States , as well 16 as to interested adult public who desire to see and view such 17 adult f lm fare , and this has imposed and threatens to impose a 18 wholly nconstitutional prior restraint condemned by the First , 19 Fourth, Fifth, and Fourteenth Amendments to the Constitution of the 20 Unit Id 'tates , and this is merely a design and scheme on the part 21 of to defendants to force the plaintiffs and others similarly 22 situate out of business , under color and pretense of claimed 23 enforcenent of the .ordinance attached hereto as Exhibit "A", well 24 knowing the patent unconstitutionality of the same. ' 25 15. Ordinance No. 3526 provides a new use classification 26 within ■ e zoning laws of the City of Renton; i.e. , an adult motion 27 picture theatre . 28 16. An . adult motion picture theatre is not a permitted fuse 29 withii ny zoning classification currently in use within the City 30 of Rento . Accordingly, in order to locate an adult motion picture 31 Amended nd Supplemental ATTORNEYS AT LAW Complain Hubbard, Burns &Meyer Page 8 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 • 1 theatre anywhere within the City of Renton, it is necessary to 2 obtain : special permit , conditional use or variance. 3 17 . The process of applying for a special permit , 4 conditional use or variance vests unfettered discretionary 5 authori y in the Hearing Examiner, Board of Adjustment and/or City 6 Council to deny such special permit , conditional use or variance. 7 No o'bj =ctive written criteria, standards or guidelines have been 8 establi.hed which would in any way limit this discretionary 9 authori y. In addition, the ordinances of the City of Renton set 10 no tlime limit for the City Council to make a decision relative to 11 an a plication for a special permit , conditional use or variance. 12 The Cit► Council has the discretion to withhold making a decision 13 for an unreasonable length of time if it chooses to do so . The 14 vari us matters to be considered by the Hearing Examiner and/or the 15 Board o' Adjustment in the granting or denial of a special permit , 16 cond ti.nal use or variance are vague and aesthetic qualities that 17 are ;not capable of objective measurement and, as such, they create 18 the pot-ntial for an unreasonable burden upon free speech and, as 19 applied to plaintiffs and a motion picture theatre, they are 20 impermi-sibly overbroad and unconstitutional . 21 18. That requiring the plaintiffs to submit to a wholly 22 unconstitutional exercise of unbridled discretion at the hands of a 23 Hearing Examiner or Board of Adjustment and/or the City Council , in 24 the abs nce of narrowly drawn , reasonable and difinitive standards. 25 to be followed in the exercise of said discretion violates 26 plainti fs' rights under the First , Fifth and Fourteenth Amendments 27 to the Constitution of the United States . Interstate Circuit v. 28 Dallas , 390 U.S. 676 (1968) and Shuttlesworth v. City ' of= 29 Birming am, 394 U. S. 147 (1969) . 30 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Buns &Meyer Page 9 , A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 1 19. Further, since the Hearing Examiner, Board of 2 Adjustiient and/or the City Council have no narrowly drawn, 3 reason:ble and definitive standards to be followed by them in the 4 exercise of the discretion conferred upon them by the Renton Zoning 5 Code i making a determination about the issuance of a spe,cial 6 permit , conditional use or variance, it would be an exercise in 7 futilit to engage in such administrative process because of the 8 pate tl unconstitutional character of the zoning provisions in 9 question. 10 O. The provisions of the Renton Zoning Code which apply to 11 the is uance of special permits , conditional uses or variances , 12 establi h classifications which are arbitrary and capricious and 13 constitute an abuse of legislative discretion, and also permit 14 censors ip by standardless rationale subject to abusive discretion 15 by the efendants in violation of plaintiffs ' substantive and due 16 process rights under the pneumbra of the First , Fifth and 17 Fourtee th Amendments of the Constitution of the United States ; and 18 further have language that is intrinsically vague and void under 19 the Fir t and Fifth Amendments to the United States Constitution 20 and voi for impermissible overbreadth. 21 IV. BASIS IN LAW FOR RELIEF 22 1 . Plaintiffs have the right to engage in the business of 23 offerin: for exhibition adult motion picture film fare for profit 24 by virt e of the First Amendment to the Constitution or adult film 25 fare which is presumptively protected under said constitutional 26 • amendme t , and the public, including both adult citizens Land 27 'I' visitor to the City of Renton have the same constitutional right 28 to view said adult motion picture film fare as may be offered for 29 said ex ibition to said adults in a nonintrusive manner. Heller v. 30 New Yor , 413 U. S. 483, . 37 L.Ed.2d 745 , 93 Sup.Ct . 2789 (1973) . 31 ATTORNEYS AT LAW Copded and Supplemental Hubbard, Burns &Meyer m Plain Page 10 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 • color of state law on the exercise of plaintiffs of 2 their rights under the First, Fifth and Fourteenth. 3 Amendments to the Constitution of the United States, and - 4 as written, which is and has been, under the facts 5 alleged herein, susceptible to arbitrary, capricious 6 and uncontrolled discretion on the part of defendants 7 herein, their agents , servants and employees . 8 (e) Said ordinance is void in that it fails , byl its 9 terms , to establish procedural safeguards to assure a 10 prompt decision on the challenge to the arbitrary 11 zoning classification, and if a zoning challenge is 12 denied, the ordinance fails byits terms to provide for 13 a prompt final judicial review to minimize the deter- 14 rent effect of an interim and possibly erroneous zoning 15 classification under procedures which places the burden 16 on plaintiffs to both expeditiously institute judicial 17 review and to persuade the courts that the activity 18 sought to be licensed and the procedure and ordinance 19 employed to authorize the same, is without the ambit of 20 the First Amendment, and the abatement of the noncon- 21 forming use is not a proper exercise of authority. 22 (f) Said ordinance is further void in that the same, 23 by its terms , places an impermissible burden upon the 24 exercise of plaintiffs ' First Amendment rights . 25 (g) Said ordinance is further void as violative of ' the 26 Equal Protection Clause of the Fourteenth Amendment , in 27 that the same creates a statutory classification which 28 has no rational relationship to a valid public purpose 29 nor is the same necessary to the achievement of a com- 30 pelling state interest by the least drastic means . 31 ATTORNEYS AT LAW Amended and Supplemental Complaint Hubbard, Burns &Meyer Page 13 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-436 • } ' I 1 (h) Said ordinance is repugnant to the substantive due 2 process provisions of the Fifth and Fourteenth 3 Amendments to the Constitution of the United States 4 because, the same permits deprivation of liberty and,/or 5 property interests for the exercise of First Amendment 6 rights by unreasonable, arbitrary and capricious means 7 without , a showing of a real and substantial relation- 8 ship to any state or city subordinating interest which. 9 is compelling to justify state or city action limiting 10 the exercise by plaintiffs of their First Amendment 11 freedoms . 12 (i) Said ordinance is impermissibly overbroad and 13 repugnant to the procedural due process requirements of 14 the Fifth and Fourteenth Amendments to the. Constitution 15 of the United States , in that the same employs means 16 lacking adequate safeguards , which due process demands , 17 to assure presumptively protected press materials , 18 sought to be distributed to an interested adult public , 19 the constitutional protection of the First Amendment . 20 h ' (j). Said ordinance is vague and impermissibly over- 21 broad and thus repugnant to the First , Fourth, Fifth 22 and Fourteenth Amendments to the United States Consti- 23 tution, in that said ordinance, by its provisions , permits inherent powers of censorship and suppression 25 constituting a prior restraint on the exercise of 26 plaintiffs' First Amendment rights as well as the 27 interested adult public who may desire to view presump- 28 tively protected press materials for the ideas pre- ra sented therein. 30 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns &Meyer Page 14 A PROFESSIONAL SERVICE CORPORATION 10604 N. .3Qth place,Suite 105 ' 1 (k) Said ordinance , and particularly Section 1(2) , in .2 defining "specified sexual activities" defines that 3 phrase ' in part as "erotic touching" and is thus void 4 for vagueness in that "erotic" is a word that can mean 5 many things to many people and without further clarifi- 6 cation confers on defendants unbridled discretion' in 7 the interpretation of that term and as such, is viola- 8 tive of the plaintiffs ' rights under the First, Fifth 9 and Fourteenth Amendments to the Constitution of Ithe 10 United States . 11 (1) Said ordinance and particularly Section I1(A) as 12 it purports to establish restrictions , requirements land 13 conditions for an alleged adult theatre imposes bur- 14 dens , restrictions and conditions that are not justi- 15 fied by, any compelling state interest and as such, Ithe 16 classification is an invidious and arbitrary discrimi- 17 nation ' as to a class and as such, is a denial '' of - 18 plaintiffs ' rights under the Fourteenth Amendment to 19 the Constitution of the United States , particularly 20 where , as here , protected First Amendment activity is 21 involved . 22 (m) The plaintiffs will suffer immediate and substan- 23 tial economic harm if said ordinance is applied to them 24 and the, result of the application of said ordinance to 25 the activities of the plaintiffs will result in a for- 26 feiture: of substantial business interests and assets . 27 28 .4. Plaintiffs herein aver that their rights afforded under the Fir-t , Fourth, Fifth, Sixth and Fourteenth Amendments to Ithe 29 Consit tion of the United States have been violated by said 31 defenda is in the enactment of a wholly unconstitutional ordinance, Amended and Supplemental ATTORNEYS AT LAW Complai t Hubbard, Burns &Meyer Page 15 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 • • • 1 and that unless this Courtgrants the relief prayed for, said P Y 2 plaint ffs and others similarly situate, as well as the interested 3 adult •ublic, will' suffer irreparable harms . 4 25 . Plaintiffs aver that the aforesaid action of the 5 def nd:nts in enacting said ordinance , and the threatened enforce- 6 went t ereof by said defendants acting under color of state law, is 7 in r herance of a scheme, plan and design to prevent any business 8 act vi y which may offer for sale or exhibition adult press 9 materi: ls in the City of Renton to the adult public. 10 26. Those portions of the Renton Municipal Code contained 11 in Chaster 4-722 relative to the issuance of special permits , 12 con it onal uses and variances , are clearly repugnant to the First , 13 Fourth, Fifth and Fourteenth Amendments to the Constitution of the 14 United States as written and as .threatened to be applied , for the 15 follow ng reasons : F 16 (a) Said provisions are void for vagueness in that they 17 fail to establish by their terms definitive standards , 18 criteria or other controlling guides defining concepts 19 such as , inter alia * * * * * 21 Special Permits : Recognizing that there are certain 22 uses of property that may be detrimental to the public health, safety, morals and general welfare . . . 23 * * * * 7, * ' 24 The purpose of a conditional use permit shall be to 25 assure,, by means of imposing special condition and requirements on development , that the compatibility of 26 uses , a purpose of this Title , shall be maintained , considering other existing and potential uses within 27 the general area of the proposed use. 28 * * * * * • 29 The examiner may deny any application if the character- istics, of the intended use would create an incompatible 30 or hazardous condition. 31 * * * * * Amende and Supplemental ATTORNEYS AT LAW Com la'nt Hubbard, Burns &Meyer Pagel 1 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 • • 2 The examiner shall have the right to limit the term hand duration of any such conditional use permit and Imay impose such conditions as are reasonably necessary and 3 required. 4 * * * * * 5 The conditions imposed shall be those which will 6 reasonable assure that nuisance or hazard to life or property will not develop. 7 * * * * * 8 The examiner may, after a public hearing, permit the 9 following uses in districts from which they are pro- hibited by this Chapter where such uses are deemed 10 essential or desirable to the public convenience' or welfare' and are in harmony with the various elements or 11 objectives of the comprehensive plan. • 12 * * * * * 13 The hearing examiner shall be empowered to approve conditionally approve or disapprove said conditional 14 use permit applications based on normal planning considerations , including, but not limited to the 15 following factors : (a) suitability of site; (b) conformance to the comprehensive plan; (c) harmony with 16 the various elements or objectives of the comprehensive plan; (d) the most appropriate use of land through 'the 17 city; (e) stabilization and conservation of the value of property; . . . and prevention of neighborhood deteri- 18 oration and blight; (o) the objectives of zoning and planning in the community; (p) the effect upon the 19 general: city' s welfare of this proposed use in relation to surrounding uses in the community. 20 * * * * * . 21 That the granting of the variance will not be materi- 22 ally detrimental to the public welfare or injurious to the property improvements in the vicinity and zone in 23 which subject property is ,situated. 24 * * * * * 25 That approval shall not constitute a grant of special privilege inconsistent with the limitation upon uses of 26 other properties in the vicinity and zone in which the subject property is situated. 27 * * * * * 28 That the approval is determined by the examiner) or 29 Board of Adjustment is a minimum variance that will accomplish the desired purpose . 30 31 ATTORNEYS AT LAW Amen•ed and Supplemental Complaint Hubbard, Burris &Meyer Page 17 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 • 1 and as' such are a deprivation under color of law of 2 plaintiffs' right to due process under the First , Fifth 3 and Fourteenth Amendments to the Constitution of the 4 United States . Said provisions are void for impermis- 5 sible ;overbreadth by means which sweep unnecessarily 6 broadly and thereby invade the area of protected 7 freedoms in that the same set forth standards at vari- 8 ance with those minimum standards prescribed by the 9 Supreme Court of the United States in connection with 10 the exercise of First Amendment rights . 11 (b) Said provisions are further void for impermissible 12 overbreadth and deprive plaintiffs of due process and 13 equal protection of the law through the arbitrary and 14 uncontrolled discretionary power conferred by said Ipro- 15 visions upon the Hearing Examiner, Board of Adjustment 16 and City Council and, ' therefore , the same are invalid 17 under the First and Fifth Amendments to the Constitu- 18 tion of the United States made obligatory on the States 19 under ' the due process provisions of the Fourteenth 20 ' Amendment. 21 (c) Said provisions lack precision and narrow speci- 22 ficity in the standards to be employed by the Hearing 23 Examiner, Board of Adjustment and/or City Council in 24 the exercise of the discretion used in the operation of 25 the City of Renton' s legislative power to enact 26 ordinances providing for zoning and , as such, consti- 27 tute a prior restraint under color of state law and the 28 exercise by plaintiffs of their rights under the First , 29 Fifth and Fourteenth Amendments to the Constitution of 30 the United States and as written, which is and have 31 Amended and Supplemental ATTORNEYS AT LAW Comilla nt Hubbard, Burns &Meyer Page 1 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 12061 828-3636 • 1 been, under the facts alleged herein, susceptible to 2 arbitrary, capricious and uncontrolled discretion on 3 the part of the defendants herein, their agents , 4 servants and employees . 5 (d) Said provisions are void in that they fail by 6 their terms to establish procedural safeguards to 7 assure; a prompt decision on a challenge to the capri- 8 cious denial of a special permit , conditional use or 9 variance. The provisions fail by their terms to 'pro- 10 vide for a prompt final judicial review to minimize the 11 deterrent effect on an interim and possibly erroneous- 12 and arbitrary denial of a zoning special permit , condi- 13 tional use or variance and, thus , the burden is on 14 plaintiffs to both expeditiously institute judicial 15 review and to persuade the courts that the activity 16 sought, to be pursued and the procedures and ordinances 17 employed to prohibit the same are without the ambit of 18 the First Amendment . 19 it 20 V. RELIEF SOUGHT 21 27 . Plaintiffs are entitled to and desire that this Court 22 en9r declaratory judgment , declaring Ordinance No. 3526 to be • written and/or a , defendants purport to a 1 23 uncons itutional as nd/o s a s p p pp y 24 it , in whole or in part , to be repugnant to the First , Fourth, 25 Fifth, Sixth and/or Fourteenth Amendments to the Constitution of 26 the Un'ted States . 27 28. Plaintiffs seek a preliminary and permanent injunction 28 to ro ibit the enforcement by defendants , and/or their agents , e an •semployees , attorne and others actingunder its direc- 29 s ry , attorneys , 30 do a d control of the provisions of Ordinance No. 3526 . 31 WHEREFORE, plaintiffs pray: Ame de. and Supplemental ATTORNEYS AT LAW Com I la nt Hubbard, Burns &Meyer Page 1 * A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 1 1 . That defendants be required to answer forthwith (this 2 Amended and Supplemental Complaint in conformance with the rules 3 and pr:ctices of this Honorable Court . 4 2 . That a Declaratory Judgment be rendered declaring 5 Ordina ce No. 3526 to be unconstitutional as written, in whole 6 and/or in part, and that this Court further declare the ordinance 7 to be unconstitutional in its threatened application to 1the 8 plaint ffs . 9 3. That a Preliminary Injunction issue from this Court iupon 10 hearing, restraining defendants and their agents , servants , 11 employ-es , and attorneys , and others acting under their direction 12 and coltrol , pending a hearing and determination on plaintiffs' 13 applic=tion for a Permanent Injunction, from enforcing or executing 14 and/or threatening to enforce and/or execute the provisions of 15 Ordina ce No. 3526 in whole and/or in part , by arresting pliain- 16 tiffs , their agents , servants or employees , and/or threatening to • 17 arrest plaintiffs , their agents , servants and employees and/or 18 har ss ng, threatening to close, or otherwise interferring with 19 plaint ffs ' peaceful use of the premises . 4. That upon a final hearing, that this Court issue its 21 Perman=nt Injunction prohibiting the defendants and/or their 22 age ts , servants and employees , and/or others in concert with them, 23 forcing Ordinance No. 3526 in whole or' inpart because of fro e o g 24 its pa ent unconstitutionality. 25 5. That upon a final hearing this Court award to the piain- 26 of Is uch damages, as they shall have sustained by reason of loss 27 of bus ness , the expenditure of assets to enforce and protect the 28 rig is guaran.teed , to them under the Constitution of the United 29 Stales , their reasonable attorney' s fees and such other damages as may be established at the time of trial . 31 ATTORNEYS AT LAW Amende• and Supplemental Compla'nt Hubbard, Burns &Meyer Pag 21 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 • Itirlrlanrl Wachinctnn 98033 1 6. And for such other and further relief as may be 2 appropriate under the circumstances of this case . 3 DATED this J day of February, 1982. 4 Respectfully submitted , 5 HUBBARD, BURNS & MEYER 6 By 4.l(,, 1 c )6,,,„, 7 c R. Burns Jac for Plaintiffs', 8 OF COUNSEL: 9 Robert Eugene Smith, Esq. 10 16133 Ventura Blvd. Penthouse Suite E 11 Encino, California 91436 12 (213) 981-9421 13 14 STATE OF WASHINGTON ) ss . 15 COUNTY OF KING ) 16 COMES NOW Jack R. Burns who, after being duly sworn, 11 did 17 depose and say: 18 1 . That Playtime Theatres , Inc . and Kukio Bay Properties , 19 Inc. are bodies corporate of the State of Washington, in good 20 standing. 21 2. That affiant is one of the attorneys for said 22 corporations . Affiant further states that he is authorized to 23 speak o their behalf. 24 . That said corporations are the plaintiffs in the within 25 proceedings . 26 That he has read the complaint to which this affidavit 27 is aff'xed and asserts that the factual allegations contained 28 therein are true and correct to the best of his information , 29 knowledge and belief. 30 5 . That the enforcement of the City of Renton Ordinance No. 31 3526 w 11 , if upheld, have the effect of depriving plaintiffs of Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns &Meyer Page 21 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 1 access to the marketplace to exhibit their presumptively protected 2 First Amendment wares of adult film fare ; and further, will deny to 3 inter- sted adults , the access to such material for their informa- 4 tion, education, entertainment , literary, scientific or artistic 5 inter- sts , as well as subject plaintiffs , their agents , servants 6 an -mployees to criminal arrests and confiscatory fines and 7 forfeitures of property interests ; and would further destroy the 8 prope ty and interest of said corporations in the location of their 9 theat es operated at 504 South 3rd Street , and 507 South 3rd { 10 Stee , in the City of Renton, and subject said plaintiff 11 corporations to grievous financial harm as well as to also chill 12 their rights of free speech as guaranteed by the First Amendment . 13 Dombrowski v. Pfister, 380 U.S. 479 (1965) . 14 15 C • ,( Y . 16 Jack R. Burns 17 SUBSCRIBED AND SWORN to befoie. . me this day of Febru:ry, 1982. 18 .4A1A_./ 19 Notary lic in and for the 20 Sta W i gton residing at 21 22 23 24 25 26 27 28 29 30 31 Ame Inde and Supplemental ATTORNEYS AT LAW Compla nt Hubbard, Burris &Meyer Page 2 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 • .LATE OF WASHINGTON • SS. c ` . :OIINTY OF RING .• t•.1`. .LC.L'L::a...}a....d1c).-ID City Clerk in and for the City of Renton. .'v,,•lon, do hereby certi that1�the Foregoing Ordinance is a true and Correct .rpy rl Oie,inance No. :.3,.t 4?..,of the City of Renton. as It appears on file and do further certify that the same has been published acordinp o law. 'n Witness Whereof I have h.rlunto set nry`'h44 and affixed the seal Of thj :ity of Renton, this c ..—.— ..day o14-2.eC ePl- ' 119 i -12.4'`-`'-- - CRY Clerk • CITY OF RENTON , WASHINGTON H ORDINANCE NO . 3526 ' N ORDINANCE' OF THE CITY OF RENTON ; WASHINGTON, • LATING TO LAND USE AND ZONING HE CITY COUNCIL OF THE CITY OF RENTON , WASHINGTON, DO ORDAIN AS OLLOWS':• _ `ECTION I : Existing Section 4- 702 of Title IV (Building ) Regulations) of Ordinance No . 1628 entitled "Code of General Ordinances of the Cit. of Renton" is hereby amended by adding the following subsections : 1 . "Adult Motion Picture Theater" : An enclosed building used for p esenting motion picture films , video cassettes , cable television , or any other such visual media , distinguished or charalcteri by an emph-sis on matter depicting . describing or relating to "specifier sexual activities" or "specified anatomical areas" as hereafter defined for obsery tion by patrons therein . 2 . "Specified Sexual Activities" : (a) Human genitals in a state of sexual stimulation or arousal ; (b) Acts of human masturbation , sexual intercourse or sodomy ; (c) Fondling or other erotic touching of human genitals . pubic region , buttock q,r female breast . 3 . "SSecified Anatomical Areas" (a) Less than completely and opaquely covered human genitals , pubic region , buttock, and female breast below a point immediately above the top of ,the arcola ; and (b) Human male genitals in a discernible turgid state , even if completely and opaquely covered. -1- . Exhibit 1.__�..P ECTION 1 'I : There is hereby added a new Chapter to Title IV (Biiildi g Regulations) of Ordinance No . 1628 entitled "Code of • General Or• inances of the City of Renton" relating to adult motion picture th aters as follows : Adcilt motion picture theaters are prohibited within the are circumscribed by a circle which has a radius consisting of the following distances from the following specified uses or zones : 1 . Within or within one thousand (1000 ' ) feet of any • 1 I residential zone (SR- 1 , SR-2 , R-1 , S-1 , R-2 , R-3 , R-4 or '1') or any single family or multiple family residential use . - . P . One ( 1 ) mile of any public or private school I . One thousand (1000 ' ) feet of any church or other religious facility or institution . One thousand ( 1000 ' ) feet of any public park or P-1 zone . ' . The distances provided in this section shall be measured by followi g a straight. line , without regard to intervening buildings , from the n arest point of the property parcel upon which the proposed use is to e located , to the nearest point of the parcel of property or the an• use district boundary line from which the proposed land .. use is to e separated . .. .ECTION III : This Ordinance shall be effective upon its . passage , a. prova] and thirty days after its publication. • 16ASSED BY THE CITY COUNCIL this 13th day of April , 1.981 Delores A . Mead, City Clerk PPROVED BY THE MAYOR this 1 ith day of April , 1981 . Approved as to for m : fiar ara Y . Shinpoch , Mayor Lawrence J . rren , City Attorney Date of Publication : May 15, 1981 ' ATTACHMENT "B" Certified Copy of Order signed by Judge Walter T. McGovern. This copy has page 2 and 7 missing and pIage 8 is illegible. ee Attachment "D" which is a complete copy of •he Order. 1 , !if e .. :r... .. . 2 y'w 1 C •,,•, :-:• - _ - FILED IN THE Y,___,: _ "_.1" '.ai;" ` UNITED STATES DISTRICT COURT , 3 � f :11,/ WESTERN DISTRICT OF WASHINGTON 4 FEB 181983 5 1 BRUC RIFKIN, Clerk 6 Ciy...l �C»a -..——..... Deputy 1 7 UNITED STATES DISTRICT COURT j 8 WESTERN DISTRICT OF WASHINGTON A \ PLAYTI E THEATRES, INC . , et al . , ) \ 10 1 Plaintiffs, ) 11 ) v. ) No. C82-59M 12 ) CITY OF RENTON, et al . , ) 13 ) Defendants. ) 14 ) ORDER 15 CITY OF RENTON, et al . , ) ) 16 Plaintiffs, ) 17 v ) No. C82-263M ) (REMANDED) 18 PLAYTIME THEATRES , INC. , et al. ) ) 19 Defendants. ) 20 21 w INTRODUCTION 1 22 On January 11 , 1983, the Court entered its order 23 approving and' adopting the magistrate 's report and 1 24 recommendation and denying defendants ' motions to dismiss 1 25 and for summary judgment , and granting preliminary 26 injunction pendent'e lite. A separate order was entered 1 27 January 11 , 1983 approving and adopting the magistrate 's 1 28 I ORDER - 1 1 Hi . • 1 all of ' ts 42 U.S .C . § 1983 jurisdiction. Renton asserts 1 2 that th- city 's interest in establishing zones and setting 1 3 set backs is a "vital state interest" of the sort that 4 requires the Court to abstain' from acting in the case at bar I 5 pending the outcome in State Court on the Complaint for 1 a 6 Declaratory Judgment . The Miofsky court distinguished the 7 i cases cited for abstention: 8 I each of these cases, the state or an agent of 9 the state was a party to the proceeding deemed i sulated from federal court intervention. In 10 addition, each of these civil suits bore similarities to criminal proceedings or otherwise 11 implicated state interests vital to the operation of state government . 12 Id. at 7. The context of the Miofsky suit was a 13 1 . 14 complaint that state court proceedings violated plaintiff 's federa ly protected rights under Section 1983. 16 Miofsky does little to refine the term "vital state 17 interests" beyond reasoning that abstention is improper in a 1 Sectio 1983 civil rights action. The Court is unpersuaded 18 i 19 that federal abstention would be proper here. "The state 20 judicial proceeding in this case is purely civil in nature, 21 regardless of the importance of the state policies which the i 22 city sserts. " Magistrate 's Supplemental Report and Recom endation at 5 . Although zonipg, which is the 23 i 24 underlying subject matter of the declaratory judgment 's 25 suit in state court , may be an important function performed by a city, this alone does not prevent a federal court from 26 27 scrutinizing the constitutionality of the city 's actions . i 28 ORDER - 3 • The Court concludes that the state court action is no bar to 2 continue jurisdiction over plaintiff 's suit for injunctive 3 relief. 4 5 PERMANENT INJUNCTON 6 I . 7 In determining the propriety of a permanent injunction, 8 the Court must first find that there is a threatened 9 violation of a legal right which would produce irreparable 10 harm and for which any other remedy would be insufficient. 11 The h :rdship must tip in favor of the plaintiff. 12 Renton 's Ordinance, really a series of three ordi- 13 nances : 3526, 3629, and 3637, is an attempt to preclude the 14 operation of "adult motion P picture theatres" in zones which 15 are within 1 ,000 feet from certain other specified uses 16 - or zones. "Adult motion picture theatres" refers to those 17 theat es exhibiting films characterized by an emphasis on 18 matter relating to "specified sexual activities" or "speci- 19 fied natomical areas" as a "continuing course of con- 20 duct. . .in a manner which appeals to a prurient interest ." 21 The subject matter of the films is given a detailed defini- 22 tion, but the "continuing course of conduct" language is 23 not . The ordinance in its essential features is virtually 24 25 26 27 28 ORDER - 4 identical to the ordinances in Young v. American Mini 2 Theatres, 427 U.S . 50 ( 1976) and Northend Cinema, Inc. 3 v . City of Seattle , 90 Wash. 2d 709, 585 P.2d 1153 4 ( 1978) except that the word "used" in describing "adult 5 motion picture theatre" is defined with the "continuing 6 course of conduct" language. 7 A first amendment interest is affected. The ordinance 8 deals not with obscene material, but sexually explicit 9 material . It is concerned with the exhibition of films 10 inside the theatre and not with "pandering, " "the business 11 of purveying textual or graphic matter openly advertised to 12 appeal to the erotic interest of their customers . " Pinkus 13 v . United States , 436 U.S . 293, 303 ( 1978) . 14 15 II . 16 Since expression protected by the first amendment is 17 the s bject of Renton 's ordinance, the next inquiry is 18 whether there is actual intrusion upon this first amendment 19 interest and if so, the nature of the intrusion. 20 There is some intrusion: in certain areas of Renton, 21 films described in the ordinance may not be shown as a 22 continuing course of conduct in a manner which appeals to a 23 prurient interest . This intrusion is not substantial under 24 the circumstances for several reasons . Renton 's 25 restrictions are slightly narrower than those in the cases 26 cited supra, because of the "continuing course of conduct" 27 28 ORDER - 5 i. language . No theatre had to be closed under Renton 's 2 ordin nce, for no theatres were operating or were 3 consi ering operating when it was enacted. There is no 4 conte t limitation on the creators of adult movies. The 520 1 5 acres of land in all stages of development available for 6 locating adult theatres (David R . Clemens Affidavit of 7 May 27, 1982, unrebutted, and his June 23, 1982 testimony at 8 36-41 � belies there being substantial intrusion upon I 9 plaintiffs ' first amendment right. The real question is 10 whether in spite of the acreage available to plaintiffs to 11 locate a theatre, the economic impact results in a substan- 12 tial, impermissible effect upon first amendment rights. 13 Young notes that "the inquiry for first amendment 14 purp ses is not concerned with economic impact ; rather, it 15 look only to the effect of this ordinance upon freedom of 16 expression. " 427 U.S . at 78 (Powell, J . , concurring) . 17 The effect of Renton 's ordinance is that plaintiffs or 18 others wishing to exhibit adult film fare and not having a 19 thea re already built and ready for occupancy , must consider 20 whether demand is such that construction of a theatre is 21 feasible. This impact is no different than that upon other 22 man users who must work with what land is available to them 23 in 'he city. With a large percentage of land within the 24 city available to plaintiffs, the financial feasibility of 25 the various locations is for them to analyze. To conclude i 26 I otherwise would be to place a burden on the city that 27 28 ORDER - 6 • ,Ic +,PL ' t�!,,� +' ,i ,''r `' ' rl' ',lt: -' 110,' . :sir . .',r•'''..r.�l p• „ + La t i [ j,:, JItS� I,.r. y•:at' ;''• 6'•�, '.• • _ _ 4 .0 e 1 t„i '� yy►. ` ,�j, ,y A _fi5 r�� N..:.. 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The ordinance was within the City of Renton 's power to 3 enact Nor is there any doubt that the interests sought to 4 be furthered by this ordinance are important and 5 substantial. 6 Without stable neighborhoods, both residential and 7 commercial, large sections of a modern city quickly can deteriorate into an urban jungle with 8 tragic consequences to social , environmental, and economic values . While I agree with respondents 9 that no aspect of the police power enjoys immunity From searching constitutional scrutiny, it also is 10 undeniable that zoning, when used to preserve the haracter of specific areas of a city, is perhaps 11 'the most essential function performed by local overnment , for it is one of the primary means by 12 hich we protect that sometimes difficult to efine concept of quality of life . " . Village of • 13 elle Terre v. Boraas, 416 U.S . , at 13 (Marshall, J . , dissenting) . 14 15 Young, 427 U.S . at 80 ( Powell, J . , concurring) . The 16 critical inquiries are whether these interests are furthered 17 by the ordinance and whether the governmental interest is 18 unrelated to the suppression of free expression, element 19 three. 20 Renton 's interests, articulated in the ordinance, "in 21 protecting and preserving the quality of its neighborhoods, 22 commercial districts, and the quality of urban life •through 23 effective land use planning, " are furthered by the 24 ordinance . The ordinance states in item 14, p. 3, Nos. 3629 25 and 3637: 26 27 28 ORDE - 9 . I � • 14. Experience in numerous other cities, includ- 2 ing Seattle , Tacoma and Detroit, Michigan, has shown that location of adult entertainment land 3 uses degrade the quality of the areas of the City in which they are located and cause a blighting 4 effect upon the city. The skid row [sic ] effect, which is evident in certain parts of Seattle and 5 other cities, will have a significantly larger affect upon the City of Renton than other major 6 cities due to the relative sizes of the cities. 7 Ther- was no evidence adduced to show that the secondary 8 effe is of adult land uses would be different or lesser in 9 Rent�n than in Seattle, Tacoma, or Detroit. Certainly, 10 Renton must justify its ordinance, but in so doing, 11 experiences of other cities and towns must constitute some 12 evidence to the legislative body considering courses of 13 action. Genusa v . City of Peoria, 619 F .2d 1203, 1211 14 (7th Cir. 1980) . If the goal of preservation of the quality ,, 15 of urban life is to have any meaning, a city need not await 16 dete ioration in order to act . Id. The observed effects 17 in n arby cities provides persuasive circumstantial evidence 18 of the undesirable secondary effects Renton seeks to 19 preclude from within 1 ,000 feet of residential zones, 20 schools, religious facilities, and public parks. Although 21 the ffects in other cities are starkly shown when adult 22 uses are congregated, Renton need not await such 23 congregation. Similarly, no negative inference can be drawn ) 24 from Renton 's choosing to address only one form of "adult" 25 usage. It 's effort would have been bolstered by considering ' 26 othe "adult" uses in view of other cities ' experiences, but 27 28 ORDE ' - 10 inclusion of these other "adult" uses is not mandatory . The 2 city being aware that it is treading in a delicate area 3 between valued interests might understandably be loath to 4 tackl the description, restriction, and rationale of more 5 than one such usage at a time. " [T]he city must be allowed 6 a rea onable opportunity to experiment with solutions to 7 admittedly serious problems. " Young, 427 U.S . at 71 . 8 The governmental interest is unrelated to the suppres- 9 Sion f free expression, and the third element is satisfied . 10 Concern with preventing undesirable secondary effects is not 11 the k • nd of apprehension aimed at regulating the content of 12 an ad It theatre 's exhibitions . Rather, it is a permissible 13 class ' fication based on deleterious secondary effects. 14 Young, 427 U.S . at 70, 71 . 15 Renton solicited testimony through its City Council and 16 the C .uncil ' s Planning and Development Committee. It 17 summarized some ideas put forth at those public meetings in 18 its ordinance . Predictably, some citizens expressed 19 concerns reflecting their values which might be impermis- 20 sible bases for justification of restrictions affecting 21 first amendment interests. See, e. g. , Erznoznik v. City of 22 Jacksonville, 422 U.S . 205 ( 1975) (overbroad effort to 23 protect privacy interests of certain citizens from "offen- 24 sive" speech --nude movie fare visible from public street ) . 25 The inclusion of these statements should not negate the 26 legitimate, predominate concerns of the City Council nor 27 28 ORDER - 11 1 lessen the value of the circumstantial evidence of adult 2 land uses ' effects in nearby cities. Arguably, some of the 3 statements may be construed as characterizations of the 4 community 's qualityof life that is y presently sought to be preserved. Citizens ' judgments as to a city 's quality of 6 life is necessarily subjective. It is necessary to separate 7 these subjective characterizations of the city 's quality of g life from the goals of protecting and preserving it and the 9 evidence that the means will further the end. Renton could 10 have written its ordinance in such a way as to better 11 distinguish these aspects of the problem, but this is not a 12 material consideration. 13 Finally , part four of the O 'Brien test is satisfied 14 for the restriction is no greater than necessary to further 15 the governmental interest . The 1 ,000-foot aspect of the 16 - restriction does not preclude adult theatres from locating 17 anywhere in the city as in Keego Harbor. Renton 's 18 ordinance is similar to others that have been upheld except 19 for the "continuing course of conduct" language discussed 1 20 earlier which has some narrowing effect . 21 Renton 's effort to preserve the quality of its urban 22 life by enacting an ordinance which regulates adult theatre 213it location is minimally intrusive of a particular category of 24 protected expression described in Young as being of "a 25 lesser agnitude than the interest in untrammeled political 26 debate. " 427 U .S . at 70. Renton 's effort under the 27 28 ORDER - 12 . i 1 circumstances is not unconstitutional under the first 2 amendment . Injunctive relief from enforcement of the 3 ordinance would be improper. NOW , THEREFORE, 1 4 For the foregoing reasons, the Court having 5 reconsidered its de novo review which led to the entry of 6 the preliminary injunction, the order granting preliminary 7 injunction must be vacated as improvidently granted, and 8 plaintiffs ' prayer for permanent injunction against 9 enforcement of the ordinance is DENIED. Accordingly, 10 the C ' ty of Renton 's Motion to Dismiss for Lack of 11 Jurisdiction is DENIED, and its Motion for Summary Judgment 12 is GRANTED. 13 0 ORDERED. •! 14 �� DATED this // day of February, 1983. 15 16 17 . c Chief United States District Judge 18 19 20 21 22 23 24 25 26 27 I 28 ORDER - 13 l I 4 ,41,,.'iTi"-i...N.,' - • . i ei ', 1 1 Action, Defendant states as follows: . i t i ;: 2 A. ack of jurisdiction over the subject matter; 31 B. allure to state a . claim upon which relief may be ` r. 1 1 4 granted; 1 5 C. ,he ordinance relied upon by the Plaintiffs is bot A 6 facially un. onstitutional and as as applied in that it violates the 7 First, Four ,h, Fifth Eighth and Fourteenth Amendments to the United 8 States Constitution; . . 9 D. That it is both. contrary to the Constitution of the 1 10 State of Washington both facially and as applied in that it vio- 11 � � lates Artic e 1 Section 5, Article 1 Section 11, Article 1 Section 12 12, Articl 1 Section 16, Article 1 Section 21, Article 2 Section I. 13 19, and Article 11 Section 3 of the Washington State Constitution. 14 E. Any attempt to enforce the ordinance based on actions of . 15 the Defendant from January 20, 1983 through April 29, 1983 is 16 prohibited and contrary to Federal Court Order entered in the U.S. i 17 District Curt for the Western District of Washington at Seattle 18 of the • Defendant during under Cause No. C82-59M and any actions 19 that perio of time is specifically authorized by that Order. I 20 F. The issues raised by the Plaintiff are not ripe fjor 21 litigation in that Plaintiff is seeking an advisory opinion. I 22 G . Plaintiffs have an adequate remedy at law and therefore 23 the Court may not exercise its equitable jurisdiction. 24 WHE: EFORE, Defendant prays for judgment of dismissal of the 25 Plaintiff' s First Cause of Action and for judgment against the 26 . 1 ANS. AFF. DEFEN SES & COUNTERCLAIM -5- Burns f�Meyer, P.S. OF PLAYTIME THEATRES, INC. . . . 10940 N.E. 33rd Place•Suite 107 Bellevue,WA 98004 •(206)828-3636 n (, • • FILED IN THE UNITED STATES DISTRICT COURT 1:Ell 18 I':3"3 3 WESTERN DISTRICT OF WASHINGTON 4 I4. -r•r; ! n.. FEB 181983 BRUCE RIFKIN, Clerk 6 Deputy 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WAS'HINGTON 9 PLAYT=ME THEATRES , INC . , et al . , ) 10 ) =. Plaintiffs, ) 11 ) v. ) No. C82-59M 12 • . ) CITY OF RENTON, et al. , ) 13 • ) Defendants. ) 14 ) ORDER ) 15 CITY OF RENTON, et al. , ) ) 16 Plaintiffs, ) ) 17 v. ) No. C82-263M ) (REMANDED) ,I 18 PLAYTIME THEATRES , INC. , et al. ) ) 19 Defendants. . ) ) 20 21 INTRODUCTION 22 On January 11 , 1983, the Court entered its order 23 approving and adopting the magistrate 's report and 24 recommendation and denying defendants ' motions to dismiss 25 and for summary judgment, and granting preliminary ; 26 injun tion pendente' lite. A separate order was entered • 27 January 11 , 1983 approving and adopting the magistrate 's 28 ORDER — 1 I ,i ,1, t 1 .. supplemental report and recommendation and granting the 2 motion to remand Cause No . C82-263M to King County Superior 1 3 Court . I 4 ©n February 10, 1983, a hearing was had pursuant to the 1 5 parties ' January 31 , 1983 Stipulation and Order separating I 6 damages claims from plaintiffs ' prayer for permanent 7 injun tion and submitting the matter to the Court on the 8 evidence considered by Magistrate Sweigert . The Court has 9 considered the evidence that was before the Magistrate, has 10 considered the parties ' memoranda, affidavits and oral 11 arguments. Accordingly, the Court rules that abstention 12 woul be improper and plaintiffs ' prayer for a permanent 13 injunction must be DENIED. I 14 15 FEDERAL ABSTENTION 16 The City of Renton argues that the preliminary 17 injunction was improvidently granted, that the permanent 18 injunction must be denied, and that this Court must abstain 19 and dismiss this action for lack of jurisdiction. 20 . Renton supplements its earlier argument and 21 auth rities on this issue with Miofsky v. Superior Court 22 of State of California, et al . , in No. 80-4589, slip op . 23 (9th ' Cir. Jan. 3 , 1983) . Renton argues that Miofsky aids 24 the esolution of the abstention issue herein by refining 25 the ean g in of the term "vital state interest" without � 26 giving it such overbreadth to deprive the federal court of 27 28 ORDER - 2 /*1 1 , all o its 42 U.S .C . § 1983 jurisdiction . Renton asserts 2 that he city 's interest in establishing zones and setting 3 set backs is a "vital state interest" of the sort that 4 requites the Court to abstain from acting in the case at bar 5 pendi g the outcome in State Court on the Complaint for 6 Declaratory Judgment . The Miofsky court distinguished the 7 cases cited for abstention: 8 In each of these cases, the state or an agent of the state was a party to the proceeding deemed 9 insulated from federal court intervention. In addition, each of these civil suits bore 10 similarities to criminal proceedings or otherwise implicated state interests vital to the operation 11 of state government . 12 i13 Id. at 7. The context of the Miofsky suit was a 14 complaint that state court proceedings violated plaintiff 's � 15 federally protected rights under Section 1983. 16 Miofsky does little to refine the term "vital state 17 interests" beyond reasoning that abstention is improper in a 18 Section 1983 civil rights action. The Court is unpersuaded 19 that federal abstention would be proper here. "The state 20 judicial proceeding in this case is purely civil in nature , 21 regar less of the importance of the state policies which the city asserts. " Magistrate ' s Supplemental Report and 22 Recommendation at 5. Although zoning, which is the 23 24 under ying subject matter of the declaratory judgment 's 125 suit in state court , may be an important function performed 26 by a city, this alone does not prevent a federal court from 27 scrutinizing the constitutionality of the city 's actions . 128 ORDER - 3 / _. / 1 The Court concludes that the, state court action is no bar to / 2 continue jurisdiction over plaintiff 's suit for injunctive 3 relief. 4 5 PERMANENT INJUNCTON 6 - I . 7 In determining the propriety of a permanent injunction, 8 the Court must first find that there is a threatened 9 violation of a legal right which would produce irreparable 10 harm nd for which any other remedy would be insufficient. 11 . The hardship must tip in favor of the plaintiff. 12 enton 's Ordinance, really a series of three ordi- 13 nance : 3526, 3629, and 3637, is an attempt to preclude the 14 � . operation of "adult motion picture theatres" in zones which 15 are stare t-tiact 1 ,000 feet from certain other specified uses 16 or zones. "Adult motion picture theatres" refers to those 17 theatres exhibiting films characterized by an emphasis on 18 matter relating to "specified sexual activities" or "speci- 19 fied anatomical areas" as a "continuing course of con- 20 duct. . .in a manner which appeals to a prurient interest. " 21 The subject matter of the films is given a detailed defini- 22 tion, but the "continuing course of conduct" language is 23 not . The ordinance in its essential features is virtually 24 25 26 27 28 ORDER - 4 identical to the ordinances in Young v. American Mini 2 Theares , 427 U.S . 50 ( 1976) and Northend Cinema, Inc. 3 - v . Ckty of Seattle , 90 Wash. 2d 709, 585 P .2d 1153 j 4 ( 1978) except that the word "used" in describing "adult 5 motion picture theatre" is defined with the "continuing 6 course of conduct" language. 7 A first amendment interest is affected. The ordinance 8 deal not with obscene material, but sexually explicit 9 mate ial . It is concerned with the exhibition of films 10 insi e the theatre and not with "pandering, " "the business 11 of p rveying textual or graphic matter openly advertised to 12 . appeal to the erotic interest of their customers . " Pinkus 13 v . United States , 436 U.S . 293, 303 ( 1978) . 14 15 16 Since expression protected by the first amendment is 17 the subject of Renton 's ordinance, the next inquiry is 18 whetter there is actual intrusion upon this first amendment 19 interest and if so, the nature of the intrusion. 20 There is some intrusion: in certain areas of Renton, 21 film described in the ordinance may not be shown as a 22 cont .nuin9 course of conduct in a manner which appeals to a 23 prurient interest. This intrusion is not substantial under 24 the circumstances for several reasons . Renton 's 25 restrictions are slightly narrower than those in the cases 26 cited supra, because of the "continuing course of conduct" 27 28 ORDE ' - 5 1 i language . No theatre had to be closed under Renton 's 2 ordinance, for no theatres were operating or were 3 considering operating when it was enacted . There is no 4 content limitation on the creators of adult movies. The 520 5 acres of land in all stages of development available for 6 locating adult theatres (David R . Clemens Affidavit of 7 May 27, 1982, unrebutted, and his June 23, 1982 testimony at 1 8 36-41 )* belies there being substantial intrusion upon 9 plaintiffs ' first amendment right. The real question is 10 whether in spite of the acreage available to plaintiffs to 11 locate a theatre, the economic impact results in a substan- 12 tial , impermissible effect upon first amendment rights. 13 ;. Young notes that "the inquiry for first amendment 14 purposes is not concerned with economic impact ; rather, it 15 looks -only to the effect of this ordinance upon freedom of 16 expression. " 427 U.S . at 78 (Powell, J . , concurring) . 17 The effect of Renton 's ordinance is that plaintiffs or 18 others wishing to exhibit adult film fare and not having a 19 theat a already built and ready for occupancy, must consider 20 whether demand is such that construction of a theatre is 21 feasible . This impact is no different than that upon other 22 land isers who must work with what land is available to them 23 in th city. With a large percentage of land within the 24 city vailable to plaintiffs, the financial feasibility of 25 the various locations is for them to analyze. To conclude 26 otherwise would be to place a burden on the city that 27 28 ORDER - 6 ///: 1 • Constitutional analysis does not require. Moreover, the 2 message of no individual or group has been silenced. The 3 number of such establishments has not been reduced because 4 none existed and none were attempting to establish 5 themselves in Renton prior to the ordinance. The ordinance 6 merely specifies where adult theatres may not locate and in 7 doing so, stifles no expression. See, Young, 427 U.S . 8 at 81 , n.4 (Powell, J . , concurring) . 9 The Court concludes that there is not a substantial 10 intrusion upon first amendment interests. Plaintiffs are 11 not virtually excluded from Renton by being confined to the 12 "most unattractive, inaccessible, and inconvenient" areas. 13 But see Basiardanes v. City of Galveston, 682 F. 2d 1203, 14 1214 ( 5th Cir. 1983) Renton 's exhibits, affidavits, memo- 15 randa,- and oral argument persuade the Court that acreage in 16 all stages o.f development from raw land to developed, 17 industrial, warehouse, office, and shopping space that is 18 criss-crossed by freeways, highways, and roads cannot be so 19 characterized. Significant cited cases to the contrary are 20 disti guishable : Schad v. .Borough of Mount Ephraim, 452 U.S . 21 61 ( 1 81 ) (live entertainment including nude dancing was not 22 a permitted use , and concerns such as trash, police protec- 23 tion, and medical facilities were not sufficient justifica- 24 tions for the exclusion) . Basiardanes (available sites much 25 less •esirable than in Renton, and the zoning ordinance was 26 passe. after the theatre was leased for showing adult 27 28 ORDER - 7 ( (T films ; AvalonCinema Corporation v. Thompson, 667 F .2d 659 2 ( 8th Cir. 1961 ) (zoning ordinance enacted after suggested 3 adult use ) ; Keego Harbor Co. v. of Keego Harbor, 657 F .2d 94 4 ' ( 6th ir. 198't) (no location within city that was not within 5 500 feet of a bar or other regulated use ) . Ample, acces- 6 sible real estate is available for the location of adult 7 theatres in Renton. 8 9 III . 10 The insubstantial intrusion upon first amendment 11 interests. by Renton 's ordinance must be considered against 12 the governmental interest which led to its enactment. Under 13 the four-part test of United States v. O ' Brien, 391 U.S . 14 367, 77 ( 1968) , a governmental regulation is justified 15 despi a incidental impact upon first amendment -interests 16 1 . If it is within the constitutional power of the 17 government, 18 1 If it furthers an important or substantial 19 gover mental interest, 20 If the governmental interest is unrelated to the 21 suppression of free expression, and 22 4. If the governmental restriction is no greater than 23 necessary for the furtherance of that interest. 24 25 26 27 28 ' ORDER - 8 / 4 As in Young., the first two elements of the test are 2 met . The ordinance was within the City of Renton 's power to 3 enac ' . Nor is there any doubt that the interests sought to 4 be f rthered by this ordinance are important and 5 substantial. 6 Without stable neighborhoods, both residential and 7 commercial, large sections of a modern city quickly can deteriorate into an urban jungle with 8 'economic consequences to social, environmental, and economic values . While I -agree with respondents 9 that no aspect of the police power enjoys immunity from searching constitutional scrutiny, it also is 10 undeniableI that zoning, when used to preserve the Character of specific areas of a city, is perhaps 11 ''the most essential function performed by local overnment , for it is one of the primary means by 12 Which we protect that sometimes difficult to define concept of quality of life. " Village of • 13 Belle Terre v. Boraas, 416 U.S . , at 13 (Marshall, J . , dissenting) . 14 15 Young 427 U.S . at 80 ( Powell, J . , concurring) . The 16 critical inquiries are whether these interests are furthered 17 by th ordinance and whether the governmental interest is 18 . unrel ted to the suppression of free expression, element 19 three. 20 Renton 's interests, articulated in the ordinance, "in 21 prote ting and preserving the quality of its neighborhoods, 22 commercial districts, and the quality of urban life through 23 effective land use planning, " are furthered by the 24 ordinance. The ordinance states in item 14, p. 3, Nos . 3629 \ 25 and 3637: . 26 127 28 ORDER - 9 • 1 f 4 14. Experience in numerous other cities, includ- 2 ing Seattle , Tacoma and Detroit , Michigan, has shown that location of adult entertainment land 3 uses degrade the quality of the areas of the City in which they are located and cause a blighting 4 effect upon the city. The skid row [sic ] effect , which is evident in certain parts of Seattle and 5 other cities, will have a significantly larger affect upon the City of Renton than other major 6 cities due to the relative sizes of the cities. 7 Ther was no evidence adduced to show that the secondary 8 effects of adult land uses would be different or lesser in 9 Renton than in Seattle , Tacoma, or Detroit . Certainly, - I 10 Rent n must justify its ordinance, but in so doing, 11 expe iences of other cities and towns must constitute some 12 . evid nce to the legislative body considering courses of 13 acti n. Genusa v. City of Peoria, 619 F .2d 1203, 1211 14 (7th Cir. 1980) . If the goal of preservation of the quality 15 of urban life is to have any meaning, a city need not await 16 deterioration in order to act . Id. The observed effects 17 in nearby cities provides persuasive circumstantial evidence 18 of the undesirable secondary effects Renton seeks to 19 preclude from within 1 , 000 feet of residential zones,, 20 , schools, religious facilities, and public parks. Although 21 the effects in other cities are starkly shown when adult 22 uses are congregated, Renton need not await such 23 congregation. Similarly, no negative inference can be drawn 24 from Renton 's choosing to address only one form of "adult" 25 usage. It 's effort would have been bolstered by considering 261 other "adult" uses in view of other cities ' experiences, but 27 28 ORDER - 10 1 i /° , .1 inclusion of these other "adult" uses is not mandatory . The f r 2 city being aware that it is treading in a delicate area 3 betw en valued interests might understandably be loath to 4 tackle the description, restriction, and rationale of more 5 than one such usage at a time. " [T]he city must be allowed 6 a reasonable opportunity to experiment with solutions to 7 admi tedly serious problems." Young, 427 U.S . at 71 . 8 The governmental interest is unrelated to the suppres- 9 sion of free expression, and the third element is satisfied. 10 Conc rn with preventing undesirable secondary effects is not 11 the Ilind of apprehension aimed at regulating the content of 12 an adult theatre 's exhibitions. Rather, it is permissible a 13 classification based on deleterious secondary effects. 14 Young, 427 U.S . at 70, 71 . • 15 Renton solicited testimony through its City Council and 16 the ouncil ' s Planning and Development Committee. It 17 meetings in summarized some ideas put forth at those publicg 18 its ordinance. Predictably, . some citizens expressed 19 concerns reflecting their values which might be impermis- 20 sible bases for justification of restrictions affecting 21 first amendment interests. See, . e. g. , Erznoznik v. City of I 22 Jacksonville, 422 U.S. 205 ( 1975) (overbroad effort to •23 protect privacy interests of certain citizens from "offen- 24 ' sive" speech --nude movie fare visible from public street ) . 25 The inclusion of these statements should not negate the 26 legitimate, predominate concerns of the City Council nor 27 • 28 ORDER - 11 •I lessen the value of the circumstantial evidence of adult 2 land uses ' effects in nearby cities. Arguably, some of the 3 statements may be construed as characterizations of the 4 community 's quality of life that is presently sought to be 5 preserved. Citizens ' judgments as to a city 's quality of 6 life is necessarily subjective. It is necessary to separate 7 these subjective characterizations of the city 's quality of 8 life from the goals of protecting and preserving it and the 9 evi ence that the means will further the end. Renton could 10 in such a wayas to better hav written its ordinance 11 di g P' sin uish these aspects of the problem, but this is not a 12 mat rial consideration. • 13 Finally, part four of the O 'Brien test is satisfied 14 for the restriction is no greater than necessary to further 15 the governmental interest . The 1 ,000-foot aspect of the 16 res riction does not preclude adult theatres from locating 17 anywhere in the city as in Keego Harbor. Renton 's 18 ordinance is similar to others that have been upheld except 19 for the "continuing course of conduct" language discussed 20 earlier which has some narrowing effect . 21 Renton 's effort to preserve the quality of its urban 22 lif by enacting an ordinance which regulates adult theatre 23 . location is minimally intrusive of a particular category of 24 protected expression described in Young as being of "a 25 les er magnitude than the interest in untrammeled political 26 debate." 427 U.S . at 70. Renton 's effort under the 27 . 28 ORDER - 12 ei/// ,'" circu stances is not unconstitutional under the first 2 amend ent . Injunctive relief from enforcement of the 3 ordinance would be improper. NOW, THEREFORE , 4 . For the foregoing reasons, the Court having 5 reco sidered its de novo review which led to the entry of 6 the preliminary injunction, the order granting preliminary 7 injunction must be vacated as improvidently granted, and 8 plaintiffs ' prayer for permanent injunction against 9 enforcement of the ordinance is DENIED. Accordingly, 10 the City of Renton 's Motion to Dismiss for Lack of 11 Jurisdiction is DENIED, and its Motion for Summary Judgment 12 is G' ANTED. 13 SO ORDERED. 14 :e DATED this /�/ day of February, 1983. 15 16 i WALTER . Mc OVERINc?Ile/141176/461.404..e 17 Chief United States District Judge 18 19 20 21 22 23 24 25 26 27 28 ORDER - 13 • afte,-{ i IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF. KING . . • , CITY OF RENTON, a municipal corporation, et al. ) ) NO. 82-2-02344-2 Plaintiffs ) vs ) ) PLAYTIME THEATRES, INC. , a ) t Washington corporation, et al ) ; OCT 17 1983' ) Defendants ) CITY OF RENTON ) MAYOR'S Oi:PICE PLAINTIFFS ' PROPOSED JURY INSTRUCTIONS . , • DATED: /0 -- — 1983 . Resctfully submitted, 4.49---y‘e-tka-9 Lawience J. rren of Warren & Kellogg, P.S . Attorneys for Plaintiffs i , i 1 I i NO. I I will now instruct you on the law. It is your duty to determine. the: facts in this case from the evidence produced in court. • It also is your duty to accept th7 law from the judge , regardless of what you! I personall believe the law is or ought to be . You are to! I apply the law to the facts and in this way decide the case . The order in which these instructions are given has not significance as to their relative importance. The attorney may properly discuss any specific instructions they think are I particula ly significant . You should consider the as a whole and should not place undue emphasis on instructions 1 any particular instruction or part thereof. The evidence you are to consider consists of the testimony of the witnesses and the exhibits admitted into I evidence. It has been my duty to rule on the admissibility or I evidence . You must not concern yourselves with the reasons for these rulings . You will disregard any evidence which either w.s not admitted or which was stricken by the court . I ,I In determining whether any proposition has been proved , you should consider all of the evidence introduced by all parties bearing on the question. Every party is entitled to the bene it of the evidence whether produced by that party or by another party. YoJ are the sole judges of the credibility of the witnesses and of what weight is to be given the testimony iof I I t , I 1 I 1 I each. In considering the testimony of any witness, you may take into account the opportunity and ability of the witness ' to observe , the witness' memory and manner while testifying, 1 any interest , bias or prejudice. the witness may have , the I reasonableness of the testimony of the witness considered in light of all the evidence, and any other factors that bear onl believability and weight . I I Counsel' s remarks , statements and arguments are intended' to help you understand the evidence and apply the law. The are not vidence , however , and you should disregard an remark, s atement or argument that is not supported by the I evidence or the law as given to you by the judge. I The lawyers have the right and the duty to make any 1 objections that they deem appropriate . Such objections shoul not influnce you, and you should make no presumption because of objections by counsel . 1 The law does not permit me to comment on the evidence in any way nd I have not intentionally done so. If it appears to you tat I have so commented , during either the trial or the giving of these instructions , you must disregard the comment . I Jur rs have a duty to consult with one another and to deliberate with a view to reaching a verdict. Each of you must decide the case for yourself but only after an impartial consideration of the evidence with your fellow jurors . In the 1 course of deliberations , you should not hesitate to re-examine your own views and change your opinion if you are convinced ;it is erroneous . You should not surrender your honest conviction , as to the weight or effect of the evidence solely because of , the opinions of your fellow jurors , or for the mere purpose of ; returning a verdict. You are officers of the court and must act impartially' • i I ' and with an earnest desire to determine and declare the proper verdict . Throughout your deliberations you will permit; neither sympathy nor prejudice to influence you. 1 I � I I I 1 I ' i I I I I � I WPI 1 . 02 I � NO. 2. i I I i Evidence may be either direct or . circumstantial. Direct ; evidence is that given by a: .1ithess ;.who. testifies concerning facts which the witness has directly observed or preceived ' through the senses . Circumstantial evidence consists of proof . of facts or circumstances which, according to common. i I experience permit a reasonable inference that other facts, existed or did not exist . The law makes no distinction; between the weight to be given to either direct or, circumstantial evidence. One is not necessarily more or less' valuable than the other . I I i I I I I I I I I i I I I � WPI 1 .03 1 I I j NO. 1 j 1 1 I All p-rties are equal before the law whether they be a 1 corporation, partnership or :;:individual. Each is entitled to the same fair and unprejudiced treatment as any individual I would be under like circumstances . 1 I I I I I I j I i 1 I I I I I I ! I 1 I 1 i 1 i 1 1 1 ! 1 1 1 1 1 .07 I i 1 I N 0. 1-{ i I A witness who has special training, education or . experience in a particular science , 'profession or calling , may be allowed to express an opinion in addition to giving ' testimony as to facts . You are not bound, however , by such an ' i opinion . In determining the credibility and weight to be given such opinion evidence , you may consider , among other,, things, the education, training, experience, knowledge and' ability o that witness , the reasons given for the opinion,! the sources of the witness' information, together with the factors already given you for evaluating the testimony of any other witness . 1 WP I 2. 10 1 1 I N0. .. . Kukio BayProperties , Inc. ,.and P Playtime Theatres, Inc. a Defendants , are corporatio:ns-.`==• A .corporation can act only through its officers and employees.' Any act or omission of an , 1 1 � officer or employee is the act or omission of the corporation. ; 1 1 I I I I 1 I 1 1 ! 1 1 j I 1 1 1 I I I 1 1 I 1 1 1 1 I I i i WPI 50. 18 1 1 I I NO. (L i i it For the purpose of those instructions , the definition of "specified sexual activities" le as 'follows: (a) Human genitals in a' state of sexual stimulation or arousal; (b) Acts of human masturbation, sexual intercourse or sodomy; ( c) Fondling or other erotic touching of human genitals, pubic region, buttock or female breast . For the purpose of these instructions , the definition of "specified anatomical areas" is as follows : (a) Less than completely and opaquely covered human genitals , pubic region , buttock , and female breast below a point immediately above the top of the areola; and (b) Human male genitals in a discernible turgid state, even if completely and opaquely covered. � I ' I I I I ' I i I ' City of Renton Ordinance No. 3526 . I I NO . 1 A prurient interest in sex is an itching or a restless - i I craving for the lewd, licentious, and lascivious in sexual , matters; marked by restless craving, itching with curiosity, or having , or easily susceptible to, lascivious thoughts or desires , or tending to excite lasciviousness . State v. J-R Distributors, Inc. , 82 Wn. 2d 584, 648-9 (1973) . NO. g I' I The City of Renton claims ,that the Defendants have exhibited at the Renton Theater '`"specified sexual activities" and "specified anatomical areas" in a manner which appeals to a prurient interest . The City of Renton further claims that this exhibition of "specified sexual activities" and "specified anatomical , areas" has been a continuing course of conduct since January 20, 1983. The Defendants deny the above-mentioned claims of the City of Renton . I i I i I I I I I I I i I � WPI 20 .05 (modified) City of Renton Ordinances No . 3526 , 3629 and 3637 . NO. 9 The foregoing is merely a . summary of the claims of the parties . �ou are not to take' the same as proof of the matters claimed unless admitted by the opposing party; and you are to consider only those maters which are admitted or are established by the evidence. These claims have been outlined solely to -id you in understanding the issues. WPI 20.0 , NO. /0 , The C li ty of Renton claims Defendants' operations at the `ofi the zoning laws of the of Renton The ter are in violaai To establish such a violation by the City of Renton . Defendants , the City must show the following elements : ( 1 ) That the Renton Theater is an enclosed building for presenting motion picture films; (2) hat the motion picture films which have been exhibited by the Defendants at the Renton }Theater are distinguished or characterized by an emphasis on matter depicting, describing, or relating to "specified sexual activities" and "specified anatomical areas" , as those terms are defined elsewhere in these instructions ; (3) That the motion picture films have been exhibited by Defendants for observation by patrons in the Renton Theater; (4) That the Renton Theater is located within 1 , 000 feet of any of the following uses or zones; (a) Any residential zone; (b) Any single-family or multiple-family residential use; ( c) Any public or private school; (d) Any church or other religious facility or institution; (e) Any public park; (f) Any P-1 (public use) zone . (5) That the exhibition of "specified sexual activities" and "specified 'anatomical areas" by the Defendants at the Renton Theater since January 20, 1983 has been a continuing course of conduct . (6 ) That the exhibition of "specified sexual activities" and "specified anatomical areas" by the Defendants at the Renton Theater has been in a manner which appeals to a prurient interest . The Defendants have admitted .the elements set forth above as ( 1 ) through (4) . The Defendants have denied the elements set forth above as (5) and (6) . I I ' I I ' I I I � I ` I I � WPI 20 .02 (modified) I i • I NO. Il � I ' I The City of Renton has the burden of proving each of the following propositions : First , that the Defendants have exhibited "specified sexual activities" and "specified anatomical areas" at the Renton Theater since January 20, 1983 as a continuing course i I of conduct; Second , that the Defendants have exhibited "specified sexual activities" and "specified anatomical areas" at the Renton Theater in a manner which appeals to a prurient interest . If you find from your consideration of all the evidence that each of these propositions has been proved, your verdict should be for the Plaintiff. On the other hand , if any of these propositions has not been proved, your verdict should be for the Defendant . I � i I I - WPI 21 .02 (modified) NO. 12 When t is said that a party has the burden of proof on ra osition any proposition, or that any :. must be proven by a ,p p "preponderance" of the evidnce , 'or the expression "if you; find" is used, it means that you must be persuaded , considering all the evidence in the case bearing on the question that the proposition on which that party has the, burden of proof is more probably true than not true . I j 1 • � I I I WPI 21 . 01 1 NO. j3 You are to determine whether the average person would find that the Defendants 11ave ,, since January 20 , 1983 , exhibited at the Renton Theater in a continuous course of conduct , epictions of "specified sexual activities" and "specified anatomical areas" in a manner which appeals to a prurient interest in nudity, sex , or excretion. . NO. ) '4 You are to decide what judgment would be made by the application of contemporary .adult community standards by this average prson . Community' standards simply provide the measure against which you decide the question of appeal to prurient interest . In d ciding what conclusion the average person , applying contemporary community standards, would reach in these respects , you are entitled to draw on your own knowledge of the views and sense of the average person in the community from whic , you came. For the purpose of these instructions , community from which you came is you are t7 consider that the e y the entire State of Washington. Smith v. United States , 431 U.S. 291 , 301-2 , 309 , 97 S.Ct,. 1756 , 52 L. Ed . 2d 324 ( 1977 ) ; State v. J-R Distributorsl, Inc . , 82 Wn. 2d 584 , 610 (1973) . 1 NO . 16 In determining whether the average person , applying contemporary community standards, would consider that the exhibition by the Defendants' at the Renton Theater of "specified sexual activities" and "specified anatomical areas" has been done in a manner which appeals to a prurient interest, you need not find that the material would necessarily have a tendency to excite lustful thoughts in an average person. Material which predominantly appeals to a prurient interest in nudity , sex or excretion may either stimulate the erotic , or disgust and sicken the average person . The material may take its attraction from the general interest in its subject, eager and wholesome it may be; but a prurient interest may be excited and appealed to. Miller v. California , 413 U . S . 15 , 24 , 93 S. Ct . 2607 , 37 L .Ed . 2d 419 (1973) , Roth v. United States , 354 U. S. 476 , 489 , 77 S.Ct. 1304 , 1 L. Ed. 2d 1498 ( 1957 ) ; Mutual Film Corp. v. Industrial Com. , 236 U.S. 230 , 242, 35 S.Ct. 387 , 59 L.Ed . 2d 552 ( 966 ) ; Ward v. Illinois, 431 U.S. 767, 97 S.Ct . 2085i, 52 L.Ed. 2d 738 ( 1977) . I NO. /Lp In deciding whether the exhibition of "specified sexual , activities" and "specified Janatomical areas" by the , Defendants at the Renton Theater has been done in a manner which appeals to a prurient interest you must avoid subjective personal and private views in determining contempor ry community standards. Instead , you must evaluate what judgment would be made by a hypothetical average adult person applying the collective view of the adult community as , a whole . These questions are not to be determined by the effect of the material on any particularly sensitive or insensitive , person , , or on the most prudish or the most tolerant, but; rather by the standards of the average adult , which is a synthesis of all men and women, including the sensitive andl insensitive, prudish and tolerant , educated and uneducated ,' religion- and irreligious , and everyone in between . j I I Smith v. United States , 431 U.S. 291 , 301-2 , 97 S.Ct . 17560, 52 L .Ed ! 2d 324 (1977 ) ; Pinkus v. United States , 436 U. S. 293, 298, 300, 98 S.Ct. 1808, 56 L. Ed. 2d 293 ( 1978 ) ; State v. J-R Distributors , Inc . , 82 Wn. 2d 584 (1973) . • No. j7 There is no requirement that the parties prove or disprove phe prurient appeal of • tfie material by expert testimony Then the material'' itself is placed in evidence . The material is the best evidence of what it represents . As with all witnesses , the trier of fact may accept or disregard 11 or any part of the testimony and put as much weight on the testimony as you find appropriate. J I I I Paris Adult Theatre v. Slaton , 413 U. S . 49 , 56 , 93 S . Ct . 2628, 37 L. Ed. 2d 446 ( 1973) ; Kaplan v. California, 413 U.S,. 115, 121 , 93 S.Ct . 2680 , 37 L.Ed . 2d 492 (1973) . NO . i You are instructed that the •First Amendment freedom of speech guarantee has no •application to the Defendants' theater operation at the Renton Theater. The City of Renton is entitled to enact reasonable regulations governing the separation of an adult motion picture theater from certain other family-oriented zones and land uses . Such a zoning regulation does not infringe upon the Defendants ' First Amendment rights. i I I I � I Young v. American Mini Theatres, Inc . , 427 U. S. 50, 62, 72', 96 S.Ct. 2440, 49 L.Ed. 2d 310 ( 1976 ) ; Northend Cinema v . Seattle , 90 Wn. 2d 709 (1978) . NO. 1q I i Upon retiring to the jury room for your deliberation of I this case , your first duty is tio; `select a foreman to act as chairman. It is his or her duty to see that discussion is carried on in a sensible and orderly fashion, that the issues submitted for your decision are fully and fairly discussed - I and that every juror has a chance to be heard and to participat in the deliberations upon each question before , the jury. You will be furnished with all of the exhibits admitted in evidence, these instructions and a special verdict from which consists of two questions for you to answer. It is necessary that you answer each of the questions unless the . questions themselves specifically provide otherwise. You , should answer the questions in the order in which they are . asked as your answers to some of them will determine whether ' you are to answer all, or only some, or none of the others . Accordingly, it is important that you read the questions : carefully and that you follow the directiosn set forth. This being a civil case , ten of your number may agree upon the answer to a question . The same ten jurors must agree upo7 the answers to all questions . Whether the foreman is one of the ten or not , the foreman will sign the verdict ' I I and announce your agreement to the bailiff who will conduct . I you into c urt to declare your verdict. I I I I 1 ~Judge : I 1 . ' I I I I 1 .I I 1 I • I 1 I I I l I I • 1 I I I I I I I WPI 1 .08 I WPI 1 . 11 I i I i I I , ' I SUPERIOR COURT OF WASHINGTON FOR RING COUNTY CITY OF RENTON, a municipal - ) corporation , et al . , ) NO. 82-2-02344-2 ) Plaintiffs , ) SPECIAL VERDICT FORM ) vs. ) ) PLAYTIME THEATRES, INC. , a ) • Washington corporation , ) et al . , ) ) Defendants . ) ) I ' We , the jury, make the following answers to the questions submitted by the Court : ( 1 ) QUESTION NO. 1 : Has the exhibition of "specified sexual activities" or "specified anatomical areas" by the Defendants at the Renton Theater since January 20, 1983 been a continuing course of conduct? ANSWER: (Yes or No) If your answer to Question No . 1 is "Yes" , then answer; the following: I i (2) QUESTION NO. 2: Has the exhibition of "specified sexual activities" or "specified anatomical areas"at the Renton Theater by the Defendants been in a manner which appeals to a prurient interest? ANSWER: (Yes or No) FOREMAN WPI 45.08 et seq . (modified) OF RA,4 s?' OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON Imp C.) ` OPOST OFFICE BOX 626 100 S 2nd STREET • RENTON, WASMINGTON 98057 255-8678 mIAL wk LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY 90 P`O DAVID M. DEAN, ASSISTANT CITY ATTORNEY 09yr MARK E. BARBER, ASSISTANT CITY ATTORNEY SEP� July 8 , 1983 ZANETTA L. FONTES, ASSISTANT ciTY ATTORNEY Hon. Norman W. Quinn, Judge King County Superior Court King County Courthouse Seattle , Washington 98104 Re : City of Renton v. King County Cause No . Dear Judge Quinn : $ 4" a-tia 3`f f This letter is a request for pre-assignment of the above- captioned case . PARTIES : The Plaintiffs in this action are the the City of Renton, and myself as City Attorney for the City of Renton . The Defendants include the owner of certain real estate in Renton , Kukio Bay Properties , the lessee of those properties , Playtime Theatres , the former owner of the property , the McRaes , Mr . Roger Forbes as President of Playtime Theatres and Kukio Bay Properties and various individuals that have been exhibiting the films at issue . COMPLEXITY OF CASE : This case is a continuation of Playtime v. City of Renton , a Federal District Court case heard by Judge McGovern . That case resulted in a declaration that the City of Renton' s Ordinance regulating adult motion picture theaters was constitutional , and that issue is on appeal to the 9th Circuit Court of Appeals . The City has pled as bases for relief requested , its Ordinance , common law nuisance , Initiative 335 and HB 626 . The last two laws have been challenged in Federal Court , with the first being found unconstitutional and the second being found constitutional . The City will Judge Norman Quinn Page 2 July 8, 1983 be seeking a. narrowing construction on the . unconstitutional initiative, and application of the statute found constitutional . The 'City -has also pled that the movies .are obscene under State and. Federal law. Defendants ' have indicated that they will seek the empaneling. of a jury and will attempt to' have each and every film shown to the court and the jury. There are already over 30 films, involved and by the 'time of trial that number will be greatly expanded as there are two new movies added to the list each week. A reasonable estimate of the number of films ' involved by the time of trial would be 50 . If the Defendants are successful in requiring that each film be shown and each film is an hour and a half in length, seventy five hours will be consumed in showing the movies , without any calculation. .of time for reloading the projector, authenticating the films etc. PRELIMINARY MOTIONS : To date there have been two motions 'argued. with the third pending for hearing July 7 , 19.83 . Additionally, there are two motions pending in the: Federal .District Court, Eastern District of Washington. This action has been removed to. Federal Court twice and remanded .both times , and there has been a request for a stay to the Federal District Court, Western District of Washington, and ;' to the 9th Circuit Court of Appeals . Defendants have indicated that they will challenge the constitutionality of several of the laws relied upon by Plaintiffs , by the use of pre-trial motions . Defendants have also indicated that they will refuse to ,have' certain of the individuals involved in this case produce subpoenaed . movies , claiming Fifth Amendment protection. There , . has been one prior refusal to attend a deposition arid there is an going argument about .the method of honoring subpoenas . All of. this . pre-trial activity has occurred, despite no material discovery having occurred. Plaintiffsplan extensive pre-trial discovery including interrogatories , requests for admission, depositions and subpoenas . -cu:e.:._:_.3. '., .. - .. .. �.....a..w__..�._.u....__,....rL_..--....>r.�c_w,.,..,.._n.........�.-_�.._. .._.._.._�e. _. ..r.�..+r.. .,. ._...a -. .. __..,__... ............ ... ....._._ __.. ..._ li Judge Norman Quinn Page 3. JulY. 8, 1983 The Cityof Renton plans to bring a motion for a Prelimin ary and Final Injunction and Defendants have stipulated to those two motions being heard at the same time.. If a trial is necessary on the obscenity issues ' or ,the:costs of abatement, the City is planning to schedule that trial for a separate hearing. DURATION OF TRIAL: Plaintiffs believe that this I'. action could be tried in several days , unless Defendants are successful in requiring the Court and/or the jury to view each of the -films .; It is anticipated that the admissibility and evidence of each item of evidence will be contested vigorously by the defense. If' .the films. must be individually viewed, it is anticipated that the time of trial will be three to four weeks . SUMMARY: The 'City of Renton in trying the action in ,'front of Judge McGovern and this action through date has accumulated fifteen expando file folders full of information. A goodly. majority of that information will have to' be provided to the Court in one fashion or the other. Each step in the process will be vigorously challenged and. numerous .pre-trial motions to compel discovery and to' argue the constitutionality of various statutes and ordinances will undoubtedly ', be held. It is anticipated that at least one week Of time total will be consumed in pre-trial motions although that estimate could expand substantially if the trial court schedules separate hearings for the various constitutional challenges. Because of the complex, technical nature of this case and the anticipated continuing requirement of court supervision of discovery, pre-assignment is necessary for the continued effective handling of this case by the Court . Ver tru ours „ 1 Lawrence rren LJW:nd cc : Mayor I • 2 3 4 IN THE SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 5 CITY OF RENTON, a municipal ) corporation; LAWRENCE J. ) 6 WARREN, City Attorney of the ) NO. 82-2-02344-2 City of Renton; STATE OF 7 WASHINGTON, ex rel . LAWRENCE ) FACTUAL MEMORANDUM ESTABLISHING J. WARREN, City Attorney for ) ELEMENTS OF VIOLATION' OF iCITY 8 the Cilty of Renton, ) ORDINANCE LIMITING THE LOCATION ) OF ADULT MOTION PICTURE THEATERS 9 Plaintiffs 10 vs ) 11 PLAYTIME THEATERS , INC . , ) a Washington corporation; ) 12 KUKIO BAY PROPERTIES , INC. , ) a Washington corporation; ) 13 ROGER H. FORBES and JANE ) DOE FORBES, husband and wife; ) 14 ROBERT B . McRAE and. ELIA C . ) McRAE and DOES 1 THROUGH ) 15 10, ) ) 16 Defendants ) 17 18 I SUMMARY 19 In order to prevail in its ordinance enforcement action 20 the City of Renton must prove that each and every element of 21 its ordinance limiting the location of adult motion picture 22 theaters has been violated. Each element of the ordinance ha' 23 been established either through admissions to allegations in 24 the complaints or through answers to requests for admission 25 excep for the following : , 26 - That the showing of adult motion pictures from January 27 20 , 1983 to date constitutes a continuing course o.f conduct; 28 FACTUAL MEMORANDUM ESTABLISHING ELEMENTS OF VIOLATION - 1 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. SOX 626 RENTON, WASHINGTON 99057 255-867a l � 1 - That the exhibition of specific sexual activities 2 and specific anatomical areas has been done in a manner which appeals to the prurient interest. 3 This Memorandum will establish that there is no factual dispute 4 concerning a continuous course of conduct and this element should 5 be established by the court to have been proven. This then would 6 limit the proof necessary at the time of trial to whether or 7 not the exhibition of specified sexual activities and specified 8 anatomical areas is done in a manner which appeals to a prurient 9 interest. 10 II ELEMENTS OR PROOF 11 In order for the City of Renton to establish its case 12 of violation of its ordinance controlling the location of 13 adult motion picture theaters , various elements must be proven. 14 Below the court will find a listing of the elements which must 15 be proven and the method whereby the necessary element has be n 16 �d proven. Where necessary those elements or proofs are discuss 17 in more detail following the listing. This listing will show in 18 summary that the elements listed have been proven, with copies, 19 of the appropriate proofs attached for the court' s ease in 20 reviewing the evidence. 21 The statements from the City ordinance which must be 22 proven to this court are as follows : 23 1 . Adult motion picture theaters are prohibited 24 within an area circumscribed by a circle which has a radius consisting of the following 25 distances from the following specific uses or zones : 1 ,000 . feet from. . . . in a single family or multiple family residential area. . . .of any 26 church or other religious facility or institution 27 . . . . any public park or P-1 zone . 28 FACTUAL MEMORANDUM ESTABLISHING ELEMENTS OF VIOLATION - 2 WARREN & KELLOGG, P.S. ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. BOX 626 RENTON, WASHINGTON 98057 255-8678 • 1 2. Adult motion picture theater is defined as an enclosed building used for presenting motion 2 picture films , video cassettes , cable television or any other such visual media distinguished 3 or characterized by emphasis on matter depicting, describing or relating to "specified sexual 4 activities" or "specified anatomical areas" as hereafter defined from observation by patrons 5 therein. 6 3. Th.e word "used" in the definition of "adult . ' motion picture theater" herein, describes a 7 continuing course of conduct of exhibiting "specified sexual activities" and "specified 8 anatomical areas" in a manner which appeals to a prurient interest. 9 . 10 ELEMENTS OF PROOF MANNER OF PROOF 11 Definition of Adult Motion Picture Theaters 12 (a) An enclosed building for Request for Admission presenting motion picture No . 11 (attachment ''A") 13 films , video cassettes , Admitted cable television, or any 14other such visual media 15 (b) Distinguished or characterized Request for Admission by an emphasis on manner No . 12d . (attachment l "B") 16 depicting', describing or Admitted , 17 relating to specified Sexual activities or 18 specified anatomical areas. 19 (c) For observation by patrons Request for Admission therein No . 10 - 11 (attachment 20 "C") J 21 AdmittedDefinition of the word "Used" 22 (d) Describes a continuing course Request for. Admissidn f conduct of exhibiting No . 10 , 12a, 12e (atitach- 23 o "specified sexual activities" eent No "D") 24 and "specified anatomical Admitted areas" Answer to Plaintiff' s First Amended Complaint 25 etc . , paragraph XIII 26 (attachmen(attachmentNo . E ' 27 /// 1 28 FACTUAL MEMORANDUM ESTABLISHING ELEMENITS OF VIOLATION - 3 ' WARREN & KELLOGG,'P.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. BOX 626 RENTON. WASHINGTON 98057 255.8678 1 (e) In a manner which appeals At present this is ,a jury 2 to a prurient interest question per priorlcourt ruling. The City of 3 Renton will present further evidence by' later 4 motion which it believes will prove this element as a matter of law.1 5 6 Adult Motion Pictures are Prohibited Within a One Thousand Foot Radius 7 8 (f) Adult motion picture theaters Requests for Admission 9 are prohibited within an area No . 3-9 (attachmenei Circumscribed by a circle "F") 10 which has a radius consisting Admitted of 1 ,000 feet from any Findings of Fact ofJudge Single family or multi-family Walter T. McGovern in ll residential use , church or companion case (attachment 12 other religious facility or "G" ) institution or any park or Admitted 13 P-1 zone. 14 III CONTINUING COURSE OF CONDUCT 15 It has been admitted that sexually explicit movies have 16 been shown at the Renton Theater from January 20., 1983 through 17 the w ek commencing July 29 , 1983. (See Answer to Request for 18 Admission No . 10 admitting the film titles and the dates shown 19 and Request for Admission No . 12 admitting the sexually explicit 20 nature of the movies . The answer to Request for Admission No .' 12 21 has been referenced as the answer for each and every Request 22 for Admission for the films listed in Request for Admission Noy. 10. ) 23 I In the answer to Request No . 12 d, it has been admitted 24 24 that each film was distinguished or characterized by an emphasis 25 on matter depicting, describing or relating to specified sexual 26 conduct and exhibition as specified in anatomical areas but it 27 was denied that it was done in a manner to appeal to the prurient 28 FACTUAL MEMORANDUM ESTABLISHING ELEMENTS OF VIOLATION - 4 WARREN & KELLOGG, P.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. BOX 626 RENTON, WASHINGTON 98057 255-8678 1 interest. (See attachment "B" ) . Despite the -fact that this 2 admission was made, when the City asked Request for Admission 12 e , 3 that is that the film was shown as a part of a continuing course 4 of conduct of exhibiting films distinguished or characterized by 5 an emphasis on matter depicting, describing or relating to 6 specified sexual conduct and exhibition for specific anatomical 7 areas , it was denied as follows : 8 "deny - during a period of thime (sic) from the theater ' s opening until the date the (sic) 9 August 19 , 1983 , approximately 160 different films have been exhibited. The films since 10 January 20, 1983 comprise only approximately 11 35% of the films shown" 12 The answer to the. Request for Admission is argumentative 13 and non-responsive. The defense that is raised is spurious and 14 should be rejected by the court. The fact remains that sexually 15 explicit motion pictures have been shown at the Renton Theater 16 since January 20 , 1983 to date . The showing has been continuous . 17 The "course, of conduct" has been the showing of sexually explicit 18 films that are charaterized by specific sexual conduct and 19 exhibition of specific anatomical areas . This is an admitted fact . 20 When coupled with the further fact that the exhibitions have 21 been continuous since January 20 , 1983 the requirement in they 22 ordinance that there be a continuing course of conduct has been met. 23 The court should enter findings describing the nature of the material 24 shown, and the inclusive .dates of the showing, and then enter 'a 25 conclusion of law that this amounts to a continuous course of 26 conduct. No testimony at trial could alter , change , ', expand orl 27 modify what the court has before it , in such a manner as to change I 28 FACTUAL MEMORANDUM ESTABLISHING ELEMENTS OF VIOLATION - 5 WARREN & KELLOGG,I.P.S. ATTORNEYS AT LAW 10O SO. SECOND ST.. P. O. BOX 626 RENTONI. WASHINGTON 98057 255-8678 I I �i I I 1 . 1 the facts or the conclusion to be drawn from those facts . Once 2 the facts are all in front of the court and there ds no dispute 3 as to a material fact , it is the court ' s duty to enter the 4 appropriate conclusion of law. The City requests such a 5 conclusion as to the Plaintiff' s continuous course of conduct 6 at the Renton Theater . 7 The sole issue in the ordinance enforcement action will 8 be the jury question as to whether or not specific sexual activities I 9 and specified anatomical areas were exhibited in a manner which 10 app als to prurient interest . 11 Dated September 29 , 1983. 12 13 Respe fully submitted 14 C,t, C 15 Lawrence J . ' arren Attorney for City of Renton 16 17 18 19 20 21 22 23 24 25 26 27 LJW:nd 28 FACTUAL MEMORANDUM ESTABLISHING 9/28%83 ELEMENTS OF VIOLATION - 6 WARREN & KELLOGG, P.S. ATTORNEYS AT LAWI 100 SO. SECOND ST.. P. O. DOX 628 RENTON, WASHINGTON 98057 255-8678 1� 2 Nasty Girls 07/15/83 through 07/21/83 Little Darlin's 3 San Fernando Valley Girls 07/22/83 through 07/28/83 4 Brief Affair Hot Dreams Commencing 07/29/83 5 Society Affairs 6 ANSWER 7 ADMIT 8 .. . . . 9 REQUEST FOR ADMISSION NO. 11 : 10 Admit that the films described in stcommonly Admission described 10 11 above,) were shown at the Renton Theater, Washington, thigs h 507 South Third Street , Renton, King County, g , 12 ` theater is in an enclosed building used for presenting motion picture films for observation by patrons therein. 13 ANSWER: 14 Admit that the Renton Theatre is an enclosed building and that the movies identified in #10 were exhibited d within theat builds g. 15 Specifically deny /that the building 16 defined in the Ordinances . INTERROGATORY NO. 7 : 17 • If you deny that the films described in Request for Admissi n 18 No. 10 above were shown at the Renton Theater in , an enclosed building used for presenting motion picture.. and sevefor 19 observation by patrons therein , then state each fact , contention , legal or factual , and each provision of 20 federal , state , county or city law upon which you rely to support your denial of Request for Admission No . 11 . 21 ANSWER: 22 23 24 N/A 25 i - � 1 26 INTERROGATORY NO . 8: 27 i ; AdmisSion If you deny that the films describe� nn Request Theater on the dates 28 No . 10 were exhibited at the Reno WARREN &KELLOGG,P.S. REQ. FOR ADMISSION , INTERLOCKING no so.SECOND sT.�.o.w:cx AITORNEYSATLAW INTERROG. AND . REQ. PRODUCTION -11- BENTON,WASHINGTON W1S7 1 listed in Request for Admission No. 10, then , for the period 2 from January 1 , 1983 until the date of the answer bf these interrogatories, specify for each film shown at the Renton' 3 Theater during that period of time , the: a. Name of each film. 5 b. The name , address and business telephone number of the distributor of each film. 6 c. The print number or numbers or other 7 identifying data 'of each of the films . i 8 d . The dates upon which each of the films played at the Renton Theater. 9 e ! The hours of exhibition on each date on which 10 the film was exhibited . 11 fi The running time in minutes for each print of each film, specifying the print number or other 12 identifying data for each running time . 13 gr The present whereabouts of each film. 14 h. If the present whereabouts of any film is unknown to you , then specify the name and 15 address and telephone number of the party to ) whom you delivered the film when it was 16 released from your possession. 17 ANSWER: 18 - N/A 19 20 - 21 22 REQUEST FOR ADMISSION NO. 12 : 23 With respect to the film Deep Throat which was shown at the Renton Theater, admit the following: 24 a. The film exhibited the following: 25 , (i) Human genitals in the state of 26 - sexual stimulation or arousal; 27 i (ii) Acts of human masturbation , sexual intercourse or sodomy; 28 WARREN& KELLO1pC,ATTORNEYS AT LAM' P.S. REQ . FOR ADMISSION , INTERLOCKING WO SO. TT SECONDSi P.O,sox AN Twrrounr_ bun urn _ PRODUCTION -12- KENTON.ry INGTIONSSOS7 ( r . I 1 (iii) Fondling or other touching of human genitals, pubic region, buttock or 2 female breasts; 3 (iv) Less than completely and opaquely covered human genitals , pubic 4 region, buttock and female breasts below a point immediately above the 5 top of the areola; 6 (v) Human male genitals in a 7 discernibly turgid state, even if • completely and opaquely covered . 8 b. The film' s exhibition was advertised in the Seattle Post-Intelligencer at or about the time 9 of its exhibition. 10 c. The film was advertised on the marquee of the Renton Theater in Renton, King County, 11 Washington at or about the time of its 12 exhibition. 13 d. The film was distinguished or characterized by or an emphasis on matter depicting, describing and relating to the specific sexual conduct 14 exhibition of the specific anatomical areas 15 more particularly described in subparagraph "a" above of this Request for Admission . 16 e. The film was shown as a part of a continuing 17 course of conduct of exhibition of films at the Renton Theater distinguished or characterized 18 by an emphasis on matter depicting , describing or relating to the specific sexual conduct and exhibition of specific anatomical reas raps as more 19 particularly described in sub p g " of 20 this Request for Admission . 21 ANSWER: 22 See Attached 23 24 INTERROGATORY NO. 9: 25 With respect to the film Deep Throat, state: 26 a. The producer of the film. 27 b. The name , address and business telephone number, of the distributor or other source from which 28 you received the film. I WARREN A KELLOGG,P.S. LAW ATTpRNETi,AT REQ. FOR ADMISSION, INTERLOCKING sasEco�ro SAIozcx TUTFRenr._ AND REQ . PRODUCTION -13- REMon+.wAsn.rcTo"9605' ANSWER TO REQUEST NO. 12 a. admit b. admit that the film was advertised in the Seattle Post Intellegencer in a manner specifically designed to avoid appeal to a prurient interest. c. admit that in a the film was d on the tre manner specificallydesignedttoa marquee appeal to a prurient interest. d. ,admit that the film was distinguished or characterized byian emphasis on matter depicting, describing, or re- lating to specific sexual conduct and exhibition of specific anatomical areas but specifically deny that such characterization, emphasis or description was in a manner which appeals to a prurient interest. e: deny- During the period of thime from the theatres • opening until the date the August 19 ,1983, approximately 160 different films had been exhibited. The films since January 20, 1983 comprise only approximately 35% of the films shown. II • 1 1` . 1 F xtrot 2 Irresistible 03/18/83 through 03/24/83 3 SOeherezade, 1001 Erotic Nights u Satisfactions03/25/83 through 03/31/83 5 Pandora's Mirror 6 Debbie Does Dallas 04/01/83 through 04/07/83 Debbie Does Dallas II 7 Little Girls Lost 04/08/83 through 04/14/83 8 Ring of Desire 04/15/83 through 04/21/8�'3 9 The Dancers i Between the Sheets 10 04/22/83 throw h 04/28/83 Daddy' s Little Girl g 11 The Little French Maid 12 Every Which Way She Can 04/29/83 through 05/05/ 3 Night Life 13 Expose Me Now 05/06/83 through 05/12/83 14 Stormy 15 Young Doctors In Lust 05/13/83 through 05/19/83 Intimate Explosions 16 Up and Coming 05/20/83 through 05/26/83 17 Scheherezade , 1001 Erotic Nights 18 Up and Comming 05/27/83 through 06/02/83 19 Insatiable 20 Puss and Boots 06/03/83 through 06/09/83 Seduction of Cindy 21 06/10/83 through 06/16/63 Peepholes 22 Body Talk �3 Little Girls Blue II 06/17/83 through 06/23/83 The Best of Alex De Renzy 24 06/24/83 through 06/30/83 Tinsel Town 25 Princess Seka 26 Skin Deep 07/01/83 through 07/07/83 Babe 27 Doing It 07/08/83 through 07/14%83 28 Baby Cakes WARREN&KELLOGG,PS. REQ. FOR ADMISSION' INTERLOCKING ATTORNEYS AT,LAW _ IN so.SECOND ST.,P.O.Sox 626 L 1 2 Nasty Girls 07/15/83 through 07/21/83 Little Darlin's 3 San Fernando Valley Girls 07/22/83 through 07/28/83 4 Brief Affair 5 Hot Dreams Commencing 07/29/83 Society Affairs 6 ANSWER: 7 ADMIT 8 9 REQUEST FOR ADMISSION NO. 11 : 10 Admit that the films described in Request for Admission No . 10 11 above, were shown at the Renton Theater, commonly described as 507' South Third Street, Renton, King County, Washington, which 12 theater is in an enclosed building used for, presenting motion picture films for observation by patrons therein. 13 ANSWER:. 14 Admit that the Renton Theatre is an enclosed building and tha . 15 the movies identified tln thelbuilding is exhibited lused' laslthat word is the Specifically de y. hat 16 defined in the Ordinances . INTERROGATORY NO. 7: 17 If you deny that the films described in Request for Admission 18 No. 10 above were shown at the Renton Theater in an enclosied building used for presenting therein , thenmotion stateteach ands for every 19 - observation by patrons fact , contention alrcitytlaw , and each upon provision of to 20 federal , state , county or support your denial of Request for Admission No . 11 . 21 ANSWER: 22 23 24 N/A 25 26 • INTERROGATORY NO . 8: 27on If you deny that the films the Renton Theater onr Admiss daies 28 No. 10 were exhibited at WARREN i,KELLOGG,PS. T UW A REQ. FOR ADMISSION , INTERLOCKING ,��,u{pnro ATTORNEYS r.o.so:cx INTERROG. AND REQ. PRODUCTION -11 - ONION,WASHINGTONl4Os7 }SS-M7$ / C. , 0 ‘`.“-). School located at 314 South Fourth Street , Renton , King 2 County , Washington . ANSWER: 3 ADMIT 4 5 INTERROGATORY NO. 6: 6 If you deny that the Renton Theater above described is lo'cat d 7 within 1 ,000 feet from Renton High School located at' 400 South Second Street , Renton , King County , Washington , or within 8 1 ,000 feet from St . Anthony's Parchial School alocated at then 314 South Fourth Street, Renton , King County,, Washington, state the number of feet from the Renton Theater prop;ert', 9 more particularly described above, to the nearest portion of a 10 lot which is a public or private school use. 11 ANSWER: 12 • 13 N/A 14 - 15 16 REQUEST FOR ADMISSION NO. 10: 17 Admit that since on or about January 20, 1983 and thereafter, has exhibited , O. that defendant Playtime Theatres , Inc . , atrons and 18 causes to be exhibited, for observation by p possessed for the purpose of such ex exhibited at, he the foiiow* 19 motion picture films which h King beCounty, Washington on the en Renton Theater located in Renton , 20 below listed dates : 21 PROGRAM DATE EXHIBITED 22 Deep Throat 01/20/83 through 02/10/8i3 Devil In Miss Jones 23 Blue Jeans . 02/11/83 through 02/17/83 24 Naughty Network 1 25 American Desire 02/18/83 through 03/03/83 All American Girls 26 IFoxholes 03/04/83 through 03/10/83 27 Randy, The Electric Lady 28 Scoundrels 03/11/83 through 03/17/83 WARREN&KELLOGG,'.S. ATTORNEYS AT l/W orn rna ®TIMTRC7nN. INTERLOCKING W,SO.SECOND ST.►.O1lOX626 • r" X. • 1 Defendant is without sufficient knowledge as to the . allega- 2 tions in Paragraph No. 10 of Plaintiff' s Complaint and therefore 3 denies the same. 4 . • XI. 5 Defendant is without sufficient knowledge as to theallega- 6 tions i7 Paragraph No. 11 of Plaintiff' s Complaint and therefore 7 denies t e same. . 8 • XII . .9 Defendant admits the allegations in Paragraph No . 12 of 10 Plaintiff' s Complaint . 11 XIII . 12 Defendant admits that the programs and date exhibited stated 13 in Paragraph No. 13 is correct, but denies each and every other 14 allegation in Paragraph No. 13 of Plaintiff' s Complaint. 15 XIV. 16 Defendant is without sufficient knowledge as to the all ga- 17 tions i Paragraph' No. 14 of Plaintiff' s Complaint and therefore 7 18 denies the same. 19 XV. 20 Defendant is without sufficient knowledge as to the iallega- 21 tions in Paragraph No. 15 of Plaintiff' s Complaint and therefore 22 denies the same. 23 FIRST CAUSE OF ACTION 24 I XV I . 25 Defendant admits and denies each and every allegatio of 26 Burns & Meyer, P. . 10940 N.E. 33rd Place•Suite 107 1 • 1 REQUEST FOR ADMISSION NO. 3: 2 Admit that the Renton Theater , commonly described as 507 South 3 Third Street , Renton , King County, Washington, and legally described as follows : 4 Lot 4 and the west 2 feet of lot 3 , block 34 , 5 Smithers Second Addition to the Town of Renton , according to the plat recorded in volume 10 of 6 plats, page 28, records of King County , Washington, 7 situated in King County, Washington , 8 is located adjacent to a multiple residential use located -t Washington : 306 Morris Avenue South, Renton, King County, 9 ANSWER: 10 ADMIT 11 - - 12 INTERROGATORY NO . 3: , t3 If you deny that the Renton Theater above described in Request 14 for Omission No. 3 is located adjacent to a multiple residential use located at 306 Morris Avenue South, Rentoi, 15 Washington , then state the number of feet from the Renton Theater property more particularly described above to •the 16 nearest portion, of a lot which is a multiple residential use. 17 ANSWER: 18 19 N/A 20 21 22 REQUEST FOR ADMISSION NO. 4 : 23 Admit that the Renton Theater , commonly descrbe as ed and 507 7eSouth Third Street, Renton , King County, Bi y 24 described as follows : 25 II Lot 4 and the west 2 feet of lot 3 , block 34, Smithers Second Addition to the Town of Renton , 26 according to the plat recorded in volume 10 of plats , page 28 , records of King County , 27 Washington , situated in King County , Washington , 28 WARREN &KELLOGIG,P.S. REQ. FOR ADMISSION , INTERLOCKING ATTORNEYS ATLAIN' \I�TrrvOnr- eun RF.n _ PRODUCTION -5- IN SO.SECOND ST.P.O'PDX 6N ■ 'wiON,WASNINCTOt4 9.057 . �. 1 is located within 1 ,000 feet of a single family residential 2 use located at 310 Morris Avenue South, Renton, King County , Washington . 3 ANSWER: 4 ADMIT 5 . 6 INTERROGATORY NO. 4 : 7 If you deny that the Renton Theater above described is located 8 within 1 ,000 feet from a single family residential use located at 310 Morris Avenue South, Renton, King County Washington, 9 then state the number of feet from the Renton Theater property more particularly described above to the nearest single family 10 reside tial use . • 11 ANSWER: 12 13 N/A 14 15 16 REQUEST FOR ADMISSION NO . 5: 17 Admit that the Renton Theater, commonly described as 507 South Third Street, Renton, King County, Washington, and legally 18 described as follows : • 19 Lot 4 and the west 2 feet of lot 3 , block 34, Smithers Second Addition to the Town of Renton , 20 according to the plat recorded in volume 10 of plats, page 28 , records of King County , 21 Washington, situated in King County, Washington, 22 known as is located within 1 ,000 feet from a church commonly 23. Awareiess of Life Christian Metaphysics Church Washington . located at 11 Smithers Avenue South, Renton, King County, 24 ANSWER: 25 ADMIT 26 . 27 28 WARREN&KELLOGG,P3. urn rnR enMTSSION . INTERLOCKING ATTORNEYS AT LAW co.lam SECOND ST..P.O.BOX&% REQUEST FOR ADMISSION NO. 6: 2 Admit that the Renton Theater, commonly describe nd and 07eS7 outh uth 3 Third Street, Renton, King County, described as follows : 4 Lot 4 and the west 2 feet of lot 3, block 34, 5 Smithers Second Addition to the Town of Renton , according to the plat recorded inKvolum 10ing of plats, page 28, records 6 Washington , 7 situated in King County, Washington, 8 is located within 1 ,000 feet from a church commonly known as St . Anthony' s Catholic Church locatedon at 406 South Fourth 9 Street, Renton, King County, Washing 10 ANSWER: 11 ADMIT • 12 13 REQUEST FOR ADMISSION NO . 7: dmit that the Renton Theater, commonly described and 507eSouth Third Street, Renton , 14 A King County, Washington, 15 described as follows : Lot 4 and the west 2 feet of lot 3, block 16 Smithers Second Addition to the Town of Renton, 17 according to the plat recorded in volume 10 tof o plats , page 28, records of King 18 Washington , • situated in King County, Washington, 19 from a church l known as is located within 1 ,000 f Memorial Baptist Church locatedl at 20 Martin Luther King, Jr • , Washington° 324 Smithers Avenue South, Renton, King County, 21 ANSWER: 22 23 ADMIT 24 INTERROGATORY NO . 5: 25d is If jyou deny that the Renton Theater above knownraseAwarenesstof ed 26 within 1 ,000 feet from a church commonly 11 Smithers Life Christian Metaphysics Church located at 3 27 Avenue South, Renton, King County, Washington, or within 1 ,000 feet from a church commonly known as St . Anthony' s Catholic 28 Church located at 406 South Fourth Street , Renton , King WARREN&KELLOGG,PS. ATTORNEYS AT LAW __ ....nflt nrvTUR - --- .n �nYcx ( . 1 County, Washington, or within 1 ,000 feet from a church commonly known as Martin Luther King, Jr. , Memorial Baptist) 2 Church located at 324 Smithers Avenue South , Renton King1 3 County, Washington, then state the distance from the Theater property, more particularly described above, to the 4 nearest portion of a. lot which is a church or other religious facility or institution use . 5 ANSWER: 6 7 N/A 8 9 10 REQUEST FOR ADMISSION NO. 8: 11 Admit that the Renton Theater, commonly described as 507 South 12 Third Street, Renton, King County, Washington, and legally described as follows : 13 Lot 4 and the west 2 feet of lot 3 , block 34 , 14 Smlithers Second Addition to the Town of Renton , according to the plat recorded in volume 10 of 15 plats, page ,28, records of King County, Washington, situated in King County, Washington, 16 is located within 1 ,000 feet from Renton High School located 17 at 400 South Second Street, Renton, King County, Washington. 18 ANSWER: 19 ADMIT 20 21 REQUEST FOR ADMISSION NO. 9: 22 Admit that the Renton Theater, commonly described as 507 Sough Third Street, Renton, King County, Washington, and legally 23 described as follows : 24 Lot 4 and the west 2 feet of lot 3 , block 34 , Smithers Second Addition to the Town of Renton , 25 aecording to the plat recorded in volume 10 of plats, page 28, records o,f King County, Washington , 26 situated in King County, Washington, 27 is located within 1 , 000 feet from St . Anthony' s Parochial 28 WARREN&kELLOGc.P.S. REQ. FOR ADMISSION, INTERLOCKING ATTORNEYS AT LAW INTERROG . AND REQ. PRODUCTION -8- IN SO.SECOND ST.E•O tzc It PtTON,WASHINGTON SEOS7 i , (5,,, i i . FILED IN THE 3 !`LI13 1953 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON ' FEB 181983 5 - BRUCE RIFKIN, Clerk 6 , By_ ........ Deputy: 7 . ' . UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON 9 :.-1 PLAYTIME THEATRES, INC. , et al . , ) . - 10 ) Plaintiffs, ) 11 ) v. ) No. CB2-59M 12 ) CITY OF RENTON, et al. , ) 13 . ) Defendants. ) 14 ) ORDER ) 15 CITY OF RENTON, et al. , ) ) 16 Plaintiffs, ) ) 17 v. ) No. C82-263M ) (REMANDED) 18 PLAYTIME THEATRES , INC. , et al. ) ) 19 Defendants. ) 20 . 21 INTRODUCTION . 22 0 January 11 , 1983, the Court entered its order- I 23 a magistrate 's and adopting the magistrate s report and 24 recommendation and denying defendants ' motions to dismiss 25 and for summary judgment, and granting preliminary 26 injunction pendente lite. A separate order was entered \� 27 January 11 , 1983 approving and adopting the magistrate 's 28 ORDER - 1 I j � , 1 • , • / • • 1 supplemental report and recommendation and granting the 2 motion to remand Cause No. C82-263M to King County Superior 3 Court . 4 . On February 10, 1983, a hearing was had pursuant to the 5 parties ' January 31 , 1983 Stipulation and Order separating 6 dam ges claims from plaintiffs ' prayer for permanent 7 � and submittingthe matter to the Court on the injunction 8 evidence considered by Magistrate Sweigert . The Court has 9 considered the evidence that was before the. Magistrate, has 10 considered the parties ' memoranda, affidavits and oral • 11 arg ments. Accordingly, the Court rules that abstention 12 would be improper o e and plaintiffs ' prayer for a permanent 13 injunction must be DENIED. 14 15 FEDERAL ABSTENTION 16 The City of Renton argues that the preliminary 17 injunction was improvidently granted, that the permanent 18 injunction must be denied, and that this Court must abstain 19 and dismiss this action for lack of jurisdiction. • 20 Renton supplements its earlier argument and 21 authorities on this issue with Miofsky v. Superior Court 22 of State of California, et al . , in No. 80-4589, slip op. 23 (9th Cir. Jan: 3, 1983) . Renton argues that Miofsky aids 24 the resolution of the abstention issue herein by refining 25 the meaning of the term "vital state interest" without 26 giving it such overbreadth to deprive the federal court of 27 28 ORDER - 2 • 1 all of its 42 U.S .C . § 1983 jurisdiction. Rent-on asserts 2 that the city 's interest in establishing zones and setting 1 3 set acks is a "vital state interest" of the sort that 4 . requires the Court to abstain from acting in the case at bar 5 pending the outcome in State Court on the Complaint for i 6 Declaratory Judgment. The Miofsky court distinguished the ? cases cited for abstention: 8 In each of these cases, the state or an agent of the state was a party to the proceeding deemed 9 insulated from federal court intervention. In addition, each of these civil suits bore 10 similarities to criminal proceedings or otherwise 11 implicated state interests vital to the operation of state government . 12 . Id. at 7. The context of the Miofsky suit was a 13 comp aint that state court proceedings violated plaintiff 's 14 rights under Section 1983. 15 federally protected9 Miofsky does little to refine the term "vital state 16 interests" beyond reasoning that abstention is improper in a 17 action. The Court is unpersuaded 18 Section 1983 civil rights that federal abstention would be proper here. "The state 19 judicial proceeding in this case is purely civil in nature, 20 21 regardless of the importance of the state policies which the city asserts. " Magistrate ' s Supplemental Report and 22 Recommendation at 5. Although zoning, which is the 23 underlying subject matter of the declaratory judgment 's 24 25 suit in state court , may be an important function performed by a city, this alone does not prevent 'a federal court from 26 scrutinizing the constitutionality of the city 's actions . 27 1 28 ORDER - 3 1 The Court concludes that the state court action is no bar to / 2 continue jurisdiction over plaintiff 's suit for injunctive 3 reli - f. 4 5 PERMANENT INJUNCTON 6 - I . 7 In determining the propriety of a permanent injunction, 8 the i(ourt must first find that there is a threatened 9 violation of a legal right which would produce irreparable 10 harm and for which any other remedy would be insufficient. 11 The hardship must tip in favor of the plaintiff. 12 Renton 's Ordinance, really a series of three ordi- 13 nanc s: 3526, 3629, and 3637, is an attempt to preclude the 14 of "adult motion picture theatres" in zones which operation 15 are e -E#re-w 1 ,000 feet from certain other specified uses 16 or zones. "Adult motion picture theatres" refers to those 17 theatres exhibiting films characterized by an emphasis on 18 matter relating to "specified sexual activities" or "speci- 19 fied anatomical areas" as a "continuing course of con- 20 duct. . . in a manner which appeals to a prurient interest." • 21 The subject matter of the films is given a detailed defini- 22 tion but the "continuing course of conduct" language is , 23 not . The ordinance in its essential features is virtually 24 25 26\ 27 28 ORDER - 4 • li .,w..._. '•:e'.. ., .:,."s:wa:.:..:.eu'�: t`,...'...]..' Ty.•'iCwa . ua.tu-+t.o'aYr - ....... ni.:1'r tr+Si's..o' .-)•:"u:'e+:c.:..ti_.a.ar':urv.'Yl,. .).-.;:,. a. __.._v.t..,_...-.eiu�u.:f... J. (.. `. 1 identical to the ordinances in Young v. American Mini 2 Theatres , 427 U.S . 50 ( 1976) and Northend Cinema, Inc. 3 - v . Cilty of Seattle, 90 Wash. 2d 709, 585 P.2d 1153 4 ( 1978) except that the word "used" in describing "adult • 5 motion picture theatre" is defined with the "continuing 6 course of conduct" language. 7 A first amendment interest is affected. The ordinance 8 deal not with obscene material, but sexually explicit 9 mate ial . It is concerned with the exhibition of films 10 inside the theatre and not with "pandering," "the business 11 of purveying textual or graphic matter openly advertised to 12 appeal to the erotic interest of their customers." Pinkus 13 v. Uiited States , 436 U.S . 293, 303 ( 1978) . 14 15 II. 16 Since expression protected by the first amendment is 17 the subject of Renton 's ordinance, the next inquiry is 18 whether there is actual intrusion upon this first amendment 19 interest and if so, the nature of the intrusion. 20 There is some intrusion: in certain areas of Rehton, 21 films described in the ordinance may not be shown as a 22 continuing course of conduct in a manner which appeals to a. 23 pru rient interest. This intrusion is not substantial under 24 the circumstances for several reasons . Renton 's 25 restrictions are slightly narrower than those in the cases 26 cit d supra, because of the "continuing course of conduct" 27 28 ORDER - 5 . (= 1 language . No theatre had to be closed under Renton 's 2 ordinance, for no theatres were operating or were 3 considering operating when it was enacted. There is no 4 • cont it limitations on the creators of adult movies. The 520 5 acres of land in all stages of development available for 6 locating adult theatres (David R. Clemens Affidavit of 7 May 27, 1982, unrebutted, and his June 23, 1982 testimony at 8 36-41 ) belies there being substantial intrusion upon 9 plai tiffs' first amendment right. The real question is 10 whet er in spite of the acreage available to plaintiffs to 11 locate a theatre, the economic impact results in a substan- 12 tial, impermissible effect upon first amendment rights. 13 •:. Young notes that "the inquiry for first amendment 14 pur oses is not concerned with economic impact ; rather, it 15 looIs only to the effect of this ordinance upon freedom of 16 expression. " 427 U.S . at 78 (Powell, J . , concurring) . 17 The effect of Renton 's ordinance is that plaintiffs or 18 others wishing to exhibit adult film fare and not having a 19 thetre already built and ready for occupancy , must consider 20 whe her demand is such that construction of a theatre, is 21 feasible .. This impact is no different than that upon other 22 land users who must work with what land is available to th -m 23 in the city. With a large percentage of land within the 24 city available to plaintiffs, the financial feasibility of 25 the various locations is for them to analyze . To conclude 26 otherwise would be to place a burden on the city that 27 28 ORDER - 6 ;_ .e—�_ x� a <..•. y A�. — _ --- - -- 1 Constitutional analysis does not require. Moreover, the 2 mess ge of no individual or group has been silenced. The 3 number of such establishments has not been reduced because 4 • none existed and none were attempting to establish 5 themselves in Renton prior to the ordinance. The ordinance 6 merely specifies where adult theatres may not locate and in 7 doin so, stifles no expression. See, Young, 427 U.S . 8 at 81 , n.4 . (Powell, J . , concurring) . 9 The Court concludes that there is not a substantial 10 intrusion upon first amendment interests. Plaintiffs are 11 not virtually excluded from Renton by being confined to the ! 12 "most unattractive, inaccessible, and inconvenient" areas . 13 But see Basiardanes v . City of Galveston, 682 F. 2d 1203, 14 1214 ( 5th Cir. 1983) Renton 's exhibits, affidavits, memo- 15 randa, and oral argument persuade the Court that acreage in', 16 all stages of development from raw land to developed, 17 industrial, warehouse, office , and shopping space that is 18 criss-crossed by freeways, highways, and roads cannot be so 19 characterized. Significant cited cases to the contrary are 20 distinguishable : Schad v. ,Borough of Mount Ephraim, 452 U.S . 21 61 (1981 ) (live entertainment including nude dancing was not 22 a permitted use , and concerns such as trash, police protec- 23 tion, and medical facilities were not sufficient justifica- 24 tions for the exclusion) . Basiardanes (available sites muFh 25 less desirable than in Renton, and the zoning ordinance was _ 26 passed after the theatre was leased for showing adult 27 • 28 ORDER - 7 - / 1 1 films ) ; Avalon Cinema Corporation v. Thompson, . 667 F .2d 659 I 2 (8th Cir. 1981 ) (zoning ordinance enacted after suggested 3 adult use ) ; Keego Harbor Co. v. of Keego Harbor, 657 F .2d 941 4 ' (6th Cir. 1981) (no location within city that was not withinI 5 500 feet of a bar or other regulated use) . Ample, acces- 1 I 6 sible real estate is available for the location of adult 7 ' thea res in Renton. 8 9 III. 10 The insubstantial intrusion upon first amendment 11 interests by Renton 's ordinance must be considered against 12 the governmental interest which led to its enactment . Under 13 the four-part test of United States v. O 'Brien, 391 U.S . 14 367, 377 ( 1968) , a governmental regulation is justified 15 despite incidental impact upon first amendment 'interests 16 1 . If it is within the constitutional power of the 17 government, 18 2. If it furthers an important or substantial 19 governmental interest , , 20 3. If the governmental interest is unrelated to the 21 suppression of free expression, and 22 4. If the governmental restriction is no greater thane, 23 necessary for the furtherance of that interest. 24 25 ' . I 26 I 27 I 28 .ORDER - 8 • 1 As in Young, the first two elements of the test are 2 met . The ordinance was within the City of Renton 's power to 3 enact. Nor is there any doubt that the interests sought to 4 be furthered by this ordinance are important and 5 substantial. 6 Without stable neighborhoods, both residential and 7 g commercial, large sections of a modern city quickly can deteriorate into an urban jungle with 8 tragic consequences to social, environmental, and economic values . While I -agree with respondents 9 that no aspect of the police power enjoys immunity from searching constitutional scrutiny, it also is 10 undeniable that zoning, when used to preserve the character of specific areas of a city, is perhaps "the most essential function performed by local 11 government , for it is one of the primary means by 12 which we protect that sometimes difficult to define concept of quality of life ." Village of 13 Belle Terre v. Boraas, 416 U.S . , at 13 (Marshall, J . , dissenting) . 14 15 Young, 427 U.S . at 80 (Powell, J . , concurring ) . The 16 critical inquiries are whether these interests are furthere d d' 17 by the ordinance and whether the governmental interest is 18 unrelated to the suppression of free expression, element 19 three. 20 Renton 's interests, articulated in the ordinance, "in 21 protecting and preserving the quality of its neighborhoods , 22 commercial districts, and the quality of urban life through 23 effective land use planning, " are furthered by the 24 ordinance . The ordinance states in item 14, p. 3, Nos . 3629, 25 and 3637 : 26 27 28 ORDER - 9 • 1 14. Experience in numerous other cities, - includ- 2 ing Seattle , Tacoma and Detroit, Michigan, has Shown that location of adult entertainment land 3 uses degrade the quality of the areas of the City in which they are located and cause a blighting 4 • effect upon the city. The skid row [sic ] effect, which is evident in certain parts of Seattle and 5 bother cities, will ,have a significantly larger affect upon the City of Renton than other major 6 cities due to the relative sizes of the cities. 7 There was no evidence adduced to show that the secondary 8 effects of adult land uses would be different or lesser in • 9 Rento than in Seattle , Tacoma, or Detroit. Certainly, 10 Rentor must justify its ordinance, but in so doing, 11 experiences of other cities and towns must constitute some 12 . evide ce to the legislative body considering courses of 13 action. Genusa v. Cityof Peoria, 619 F.2d 1203, 1211 14 (7th Cir. 1980) . If the goal of preservation of the quality 15 of urban life is to have any meaning, a city need not await 16 deterioration in order to act . •Id. The observed effects 17 in nearby cities provides persuasive circumstantial evidence 18 of the undesirable secondary effects Renton seeks to 19 preclude from within 1 ,000 feet of residential zones,, • 20 schools, religious facilities, and public parks. Although 21 the effects in other cities are starkly shown when adult 22 uses are congregated, Renton need not await such 23 congregation. Similarly, no negative inference can be drawn 24 from Renton 's choosing to address only one form of "adult" 25 usage. It 's effort would have been bolstered by considering 26 other "adult" uses in view of other cities ' experiences, but , 27 28 ORDER - 10 . 1 inclusion of these other "adult" uses is not mandatory . Thei 2 city being aware that it is treading in a delicate area 3 between valued interests might understandably be loath to 4 • tackle the description, restriction, and rationale of more 5 than one such usage at a time. " [T]he city must be allowed 6 a reasonable opportunity to experiment with solutions to 7 admittedly serious problems." Young, 427 U.S . at 71 . 8 The governmental interest is unrelated to the suppres- 9 sion of free expression, and the third. element is satisfied . 10 Concern with preventing undesirable secondary effects is not 11 the kind of apprehension aimed at regulating the content of 12 an adult theatre 's exhibitions . Rather, it is a permissible {I 13 classification based on deleterious secondary effects. 14 Young, 427 U.S . at 70, 71 . 15 Renton solicited testimony through its City Council and 16 the Council 's Planning and Development Committee . It 17 summarized some ideas put forth at those public meetings in 18 its ordinance. Predictably, some citizens expressed 19 concerns reflecting their values which might be impermis- 20 sible bases for justification of restrictions affecting 21 first amendment interests. See, e .g. , Erznoznik v. City of 22 Jacksonville, 422 U.S . 205 ( 1975) (overbroad effort to • 23 protect privacy interests of certain citizens from "offen- 24 sive" speech --nude movie fare visible from public street ) . 25 The inclusion of these statements should not negate the 26 legitimate, predominate concerns of the City Council nor 27 28 . ORDER - 11 • . . r- 1 lessen the value of the circumstantial evidence of adult 2 land uses ' effects in nearby cities. Arguably, some of the 3 statements may be construed as characterizations of the 4 . community 's quality of life that is presently sought to be 5 preserved. Citizens ' judgments as to a city 's quality of 6 life is necessarily subjective. It is necessary to separate'' 7 these subjective characterizations of the city 's quality of 8 life from the goals of protecting and preserving it and the 9 evidence that the means will further the end. Renton could , 10 have written its ordinance in such a way as to better 11 distinguish these aspects of the problem, but this is not a 12 material consideration. 13 Finally, part four of the O 'Brien test is satisfied 14 for the restriction is no greater than necessary to further 15 the governmental interest. The 1 ,000-foot aspect of the 16 restriction does not preclude adult theatres from locating 17 anywhere in the city as in Keego Harbor. Renton 's 18 ordinance is similar to others that have been upheld except 19 for the "continuing course of conduct" language discussed 20 earlier which has some narrowing effect . 21 Renton 's effort to preserve the quality of its urban 22 life by enacting an ordinance which regulates adult theatre 23 . location is minimally intrusive of a particular category of 24 protjcted expression described in Young as being of "a 25 lesser magnitude than the interest in untrammeled political 26 debate." 427 U .S . at 70. Renton 's effort under the 27 28 . ORDER - 12 ; 1 circumstances is not unconstitutional under the first 2 amendment . Injunctive relief from enforcement of the 3 ordinance would be improper. NOW , THEREFORE , 4 • For the foregoing reasons, the Court having 5 reconsidered its de novo review which led to the entry of 6 � the preliminary injunction, the order granting preliminary 7 injunction must be vacated as improvidently granted, and 8 prayer for permanent injunction against plaintiffs ' J 9 enforcement of the ordinance is DENIED. Accordingly, 10 the ity of Renton 's Motion to Dismiss for Lack of 11 Jurisdiction is DENIED, and its Motion for Summary Judgment 12 is G' ANTED. 13 SO ORDERED. 14 DATED this /? day of February ,'4.61983. 15 ....-.—. 16 dillMft ,. ,..... / e 17 Chief United States District Jud g 18 19 20 21 22 - 23 24 25 26 27 28 ORDER - 13 t i ' 1 y ' 1 2 3 4 5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY OF RENTON, a municipal ) 7 corporation, et al. , ) NO. 82-2-02344-2 Plaintiffs, )8 ) MEMORANDUM IN SUPPORT OF � vs . ) MOTION TO EXCLUDE OR 9 ) LIMIT EXPERT WITNESSES AND PLAYTIME THEATRES, INC. , a ) TO REQUIRE DISCLOSURE OF 10 Washington corporation, ) EXPERT WITNESSES ll et all ) Defendants. )12 ) 13 SUMMARY OF FACTS 14 n August 3, 1983 Plaintiffs' First Set of Admissions 15 and Interrogatories was served on Defendants . Interrogatory 16 No . 99 sought the name of expert witnesses that Defendants 17 intended to call at the time of trial, the witness ' address , 18 telep one number, subject matter of the testimony and the 19 substance of the facts and opinions to which each expert is 20 expeJed to testify and the grounds for each such opinion. 21 Such an interrogatory is specifically authorized by Civil 22 Rule 26(4) (A) (i) . . A copy of Interrogatory No . 99 :is 23 Attachment "A"; a copy of the relevant portion of Civil Rule 26 24 is Attachment "B" . 25 During a conference between attorneys held on September 26 1983, Defendants' counsel promised that the .list :of expert 27 witnesses would be provided within ten (10) '.days .. .The 28 MEMO IN SUPPORT OF MOTION TO EXCLUDE OR LIMIT EXPERT WITNESSES & TO REQUIRE WARREN & KELLOGG. P.S. DISCL SURE OF EXPERT WITNESSES - 1 ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. BOX 62E RENTON, WASHINGTON 98057 255.8678 J1 i 1 Interr gatory has never been formally answered although it was 2 finally answered by informal letter dated September 28, 1983 and 3 delivered at 4:25 that afternoon (Attachment "C") . That 4 Interrogatory did not include telephone numbers for the witnesses, 5 the substance of the facts and opinions to which the expert is1 6 expected to testify or summary of the grounds of each opinion. , 7 The City of Renton attempted to contact various experts 8 listed and the results are discussed 'in,:the :affi:davits .of.. Mark E. g Barber (Attachment "D") and Barbara Murray (Attachment"E") . it 10 In summary, none of the witnesses contacted had been retained 11 to testify in this case. None had familiarity with the case 12 or the issues to be presented. Several objected to being 13 deposed until they were familiar with the case and areas of 14 their testimony, an understandable position. When the City 15 sought to schedule depositions , it was told that no depositions 16 coul take place the week of October 10th or after October 24th 17 beca se the trial in this matter would be ongoing. When a 18 demand was made that the witness list be limited to those 19 witnesses that would testify at trial, that request was refused. 20 ISSUES 21 1. Have Defendants answered Interrogatory No. 99 regarding 22 expert witnesses in a manner to satisfy Civil Rule 26(4) (A) (1) ? 23 If the Interrogatory was not properly answered, what is the 24 appropriate sanction the Court should impose? 25 2. \Because of the nearness of trial, and the obstruction 26 of discovery by Defendants , should expert witnesses be permitted 27 to testify for Defendant? 28 MEMO IN SUPPORT OF MOTION TO EXCLUDE OR LIMIT EXPERT WITNESSES & TO REQUIRE DISCLOSURE OF EXPERT WITNESSES - 2 WARREN & KELLO,'GG, P.S. ATTORNEYS AT LAW J 100 SO.'SECOND ST.. P. O. BOX 626 RENTON, WASHINGTON 98057 255-8678 1 3. Should expert witnesses be allowed to testify as to 2 "contemporary community standards"? If they are to be allowed 3 to testify, what limitation will the court place upon their 4 testimony? 5 ARGUMENTS 6 1. Have Defendants answered Interrogatory .No. 99 regarding 7 expert witnesses in 'a manner to satisfy "Civil Rule 26(4) (A) (i)j? 8 If the Interrogatory was not properly answered, what is the 9 appropriate 'sanction the Court should impose? 10 Defendants were served Interrogatories on August 3 , 1983 . 11 There ore , under CR 33(A). the answers were due August 23 , 1983 . 12 Defendants objected to the Interrogatories , but not to the 13 Interrogatory concerning expert witnesses . Despite this facti, i 14 Defendants did not provide even an informal answer until the end I 15 of t e business day, September 28 , 1983 and up to this date, not 16 provided a formal answer. Even after providing an informal response, I 17 Defendants have amended their response by adding two additional I 18 potential witnesses . Of real concern is the informal nature of I 19 the answer , and the statement in the answer . . . "The following 20 persons , subject to their availability , may be called upon tl 21 testify. " Not only is this answer not responsive to the 22 Interrogatory, it contains a double qualification. First, Ithe i 23 witness must be available and second, the defense must choose to 1 24 call that individual. 25 What is\ ever more distressing, is that Defendants have \ I 26 asked for the City' s experts , and they have been surrendered. I 27 Depositions of all of the City' s experts have been scheduled. 28 ME O. IN SUPPORT OF MOTION fi0 EXCLUDE OR LIMIT EXPERT WITNESSES & TO REQUIRE DI CLOSURE OF EXPERT WITNESSES - 3 WARREN & KELLOGG, P.S. ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. BOX 626 RENTON. WASHINGTON 98057 I R55•B678 I 1 The City did not take part in "playing the game" of withholding 2 its answers concerning experts until it received an answer to 3 its previously submitted request for 'expert witnesses . Now that 4 the deposition of one of the experts , Dave Clemens , has been 5 takenl, and the other, that of Mr. McGuire has been scheduled, 6 defendants' are suddenly unavailable for depositions . Not only 7 that, when they have been requested to limit the witness list 8 to th se they will call at trial , that request has been denied. - 9 It is abundantly clear that Defendants have taken part in a 10 plann d delay and avoidance of the discovery process . At the 11 original hearing before the court by Defendants seeking a 12 protective order as to the Interrogatories , the City objected, 13 to the possibility that Defendants might provide a laundry list 14 of e pert witnesses which the City would be required to sift and 15 comb to find the real experts . That eventuality has taken place . 16 As evidenced by the Affidavits of Mark Barber and Barbara Murray 17 (attachments "D" and "E") none of the witnesses that have been 18 contacted through the date of September 30 , 1983 have been retained 19 to testify at trial . None of them have an adequate knowledge 20 of the subject matter of the trial or the issues presented at 21 trial . In short, each of the witnesses knows Mr . Smith, one of 22 Defendants ' attorneys , but none have been prepared to testify. 23 While Plaintiff spends valuable discovery time tracking down 24 these experts , Defendants are gleefully taking the depositions 25 of Plaintiff' s experts and undoubtedly preparing the expert br 26 experts they intend to call at trial for their testimony. 1 27 Defendants have proceeded with discovery from a bad faith posture 28 MEMIdi IN SUPPORT OF MOTION TO EXCLUDE OR LIMIT EXPERT WITNESSES & TO REQUIRE DISCLOSURE OF EXPERT WITNESSES - 4 WARREN & KELLOGG, P.S. ATTORNEYS AT LAW 100 60. SECOND ST., P. 0. BOX 626 RENTON, WASHINGTON 98057 255-8878 1 1 with the intent to delay and obstruct the discovery process . 2 Plaintiff has not undertaken the same bad faith position and 3 shoulcil not be penalized for obeying the rules . The court must 4 impose terms and sanctions for this abuse and manipulation of 5 the discovery process . 6 The relevant portion of CR 26(4) (A). (.i) states : 7 "A party may through interrogatories require any other party to identify each person whom the other party 8 expects to call as an expert witness at trial , to state the subject matter on which the expert is 9 expected to testify, and to state the substance of the facts and opinions to which the expert is 10 expected to testify and a summary of the grounds for each. such opinion. " 11 12 This rule has been violated by Defendants in the following 13 ways : 14 1 . Plaintiff answered as to witnesses that may be called, 15 not those they expect to. call. 16 2. Several of the names provided were incorrect or the; 17 locations were incorrect. 18 3 . No phone numbers for the witnesses were included as 19 required by the Interrogatory. 20 4. There are no statements of the substance of the facts 21 and opinions to which the expert is expected to testify. 22 5 . There is no summary of the grounds for each opinion. 23 6 . The areas of expected testimony listed are broad and 24 general , but much beyond the scope of this trial . The answer 25 to the Interrogatory states that the witnesses may testify 26 ". . .with respect to the educational, scientific , political and 27 literary value of the motion pictures exhibited. . . as well as 28 MEMO IN SUPPORT OF MOTION TO EXCLUDE OR LIMIT EXPERT WITNESSES & TO REQUIRE WARREN & KELLOGG, P.S. DISCLOSURE OF EXPERT WITNESSES - 5 ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. BOX 626 RENTON, WASHINGTON I98057 255-8678 1 the fact the material exhibited is not patently offensive nor 2 does it appeal to a prurient interest . " Of those topics , only 3 the a peal to the prurient interest is an issue in this trial 4 7 . The answer is not a formal supplement to the answers 5 to in errogatories . In fact , the letter is not even signed by, 6 one o the attorneys representing the Defendants, but apparently 7 by Jack Burns ' partner , David R. Meyers . 8 CR 37 deal with failure to make discovery and sanctions ., 9 CR 37(3) states : 10 "Evasive or Incomplete Answer . For purpose of this 11 subdivision an evasive or incomplete answer is to be treated as a failure to answer. " 12 Later Rule 37 (b) (.2) details the sanctions that the court may impose 13 when n action is pending. The court should recall that a previous 14 .order .was entered requiring the answering of the very Interrogatory 15 discussed in this Motion. The rule states in relevant part : 16 "Sanctions by Court in which Action is Pending. If a 17 party. . . fails to obey an order to provide or permit discovery, . . . the court in which the action is pending 18 may make such orders in regards to the failure as are just, and among others , the following : ' 19 (A) An order that the matters regarding which the 20 order was made or any other designated fact shall be taken to be established for the purposes of the 21 action in accordance with the claim of the party obtaining the order; 22 (B) An order refusing to allow the disobedient 23 party to support or oppose designated claims or defenses or prohibiting him from introducing 24 designated matters in evidence; 25 (C) An order striking all pleadings or parts thereof, or staying further proceeding until the order is 26 ` obeyed, or dismissing the action or proceedings or any part thereof, or rendering a judgment by default 27 against the disobedient party; 28 MEMO IN SUPPORT OF MOTION TO EXCLUDE OR LIMIT EXPERT WITNESSES & TO REQUIRE DISCLOUSRE OF EXPERT WITNESSES - 6 WARREN & KELLOGG P.S. ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. BOX 626 RENTON, WASHINGTON 98057 255-8678 1 (D) In lieu of any of the foregoing orders or any addition thereto , an order treating as a contempt 2 of court the failure to obey any orders except an order to submit to physical or mental examination. . . 3 In lieu of any of the foregoing orders or any 4 addition thereto , the court shall require the party failing to obey the order or the attorney advising 5 him or both to pay the reasonable expenses , including •attorney' s fees , caused by the failure, unless the 6 court finds that the failure was substantially justified or that other circumstances make an award 7 of expenses unjust. " 8 The only just way of resolving the discovery dilemma 9 presented by Defendants is to refuse to allow these experts to 10 testify. As will be discussed below, use of experts is not 11 necessary even in an obscenity trial . Since this trial involves 12 a burden of proof substantially less than that of an obscenity 13 trial , use of experts is clearly not warranted. Further , the law 14 in this State, as discussed below, will show that the testimony 15 of the experts will add nothing to this trial , and in fact, the 16 testimony, to the greatest extent , will be incompetent. When 17 these facts are taken as a whole, the use of the witnesses i 18 unjustified, unjust and unnecessary . 19 2 . Because of the nearness of trial , and the obstructlion 20 of discovery by Defendants , should expert witnesses be permitted 21 to testify for Defendant? 22 Defendants are attempting to turn a simple zoning case into 23 an obscenity trial , To further that end they are attempting to 24 cal witnesses not only on th.e appeal to the prurient interest 25 issue but also on th.e issue of whether or not the movies ar4 26 patently offensive and whether or not they have any sociallj 27 redeeming values. Outside of whether or not there is an appeal 28 MEMO IN SUPPORT OF MOTION 'TO EXCLUDE OR (LIMIT EXPERT WITNESSES & TO REQUIRE DISCLOUSRE OF EXPERT WITNESSES - 7 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW f00 SO. SECOND ST., P. IO. BOX 826 RENTON, WASHINGTON 98057 255-8678 i I 1 to pr rient interest , these issues are not relevant to the case 2 at trial. 3 Defendants ' attempt to broaden this case to an obscenity 4 case is very clear when the court considers the test for obscenity 5 defined in Miller v... .Ca'liforhia , 413 U. S, 15 , 37 L.Ed 2d. 419 , 6 93 S, Ct . 2607 (1973) : 7 "(a) Whether ' the average person, applying contemporary community standards ' would find that the work, taken 8 as . a whole, appeals to the prurient interest . . . . (b) whether the word depicts or describes , in a patently 9 offensive way, sexual conduct specifically defined by the applicable law; and (c) whether the work, taken 10 as a whole lacks serious literary, artistic , political or scientific value. " 11 12 It should be recalled by the court that the ordinance is 13 a zoning ordinance patterned after ordinances found constitutional 14 by both the United States Supreme Court and the Supreme Court of 15 the Mate of Washington. This is a zoning ordinance only and the 16 stri gent test in Miller v. California, supra, is not before this 17 Cour . 18 Even if the stringent Miller test was before the court', the 19 use f experts is of marginal value to the court or the jury. As 20 stat d in the leading case of State v. J-R Distributors , Inc . , 21 82 2d 584, 598 , 512 P 2d 1049 (1973) : 22 . . the United States Supreme Court has rejected any constitutional need for ' expert' testimony on behalf 23 of the prosecution, or for any other ancillary evidence 24 of obscenity, where, as here, the allegedly obscene materials have been placed in evidence . The materials are regarded as sufficient in themselves for the 25 determination of the question. " 26 Later in that same case this quotation is made again in 27 several spots including twice at page 613 . On page 610 of the 28 MEMO IN SUPPORT OF MOTION TO EXCLUDE OR LIMIT EXPERT WITNESSES & TO REQUIRE DISCLOSURE OF EXPERT WITNESSES - 8 WARREN & KELLOGG, P.S. ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. BOX 826 RENTON, WASHINGTON 98057 255-8678 • 1 case, the following statement is made: 2 'No amount of testimony by anthropologists , sociologists , sychiatrists , or psychologists could have added anything 3 to the trial court's. .(or to this court's) ability to 4 determine that the materials failed to comply with 0.ny contemporary community standards related to sexual matters. " 5 6 That quotation is repeated later in J-R Distributors , 624. Several 7 times in State: v,' 'J-R. . Dis'tributbrs , the court makes statements 8 such.. aL •"Hard-core 'pornography can and does speak for itself" • 9 (page '610 and "such_ 'hard-core pornography' can and does speak 10 for itself on the 'question of obscenity , according to Paris • • 11 Adult Theatre I v. Slaton, _ supra; Kaplan v, California, supra; 12 and Roth- v. 'United States, 354 U, S. 476,489 1 L.,Ed 1498 , 77S. Ct . • 13 1304 (19571. " (Other citations omitted. ) (Page 623) , 14 It is clear that experts are not necessary-to the trial of 15 the ordinance :enforcement action according to the rules laid • 16 down r State w,' Dis'tributor's,' Inc. , supra . The material • 17 itself will speak to the jury. It would be improper to have an • 18 expert substituting his or her opinion for that of the jury. 19 Since an expert is required to possess some special skill pr 20 knowledge.''going beyond that of the average person , and the very 21 definition of contemporary community standards' requires the 22 application of knowle.dge :by the average person , ' the use of. an . 23 expert would be. improper and counter-productive . . While the experts • 24 may ve some minimal testimonial value in this case, when that • 25 minimal contribution is contrasted with the potential prejudicial 26 affect Of the testimony., and the fact that the Defendants have 27 sheltered these witnesses' and not made them available for deposition 28 MEMO IN SUPPORT OF MOTION TO EXCLUDE I OR LIMIT EXPERT ;WITNESSES & TO REQUIRE WARREN & KELLOGG', P.S. DISCLOURE OF EXPERT WITNESSES 9 ATTORNEYS AT LAW 100 60. SECOND ST.. P. O. BOX 626 RENTON, WASHINGTON 98057 255-8678 1 or other discovery, then equity and fair play would require the 2 barring of these witnesses . 3 3 . In State v. J-R Distributors , supra, and State v, Hull , 4 ' . .86 Wn 2d 527 , 547' P.2d 912 (1976) the court allowed Dr . 5 Richa d Jarvis to testify, on behalf of the State, However in 6 each of the case s , the court made statements that the use of an 7 expert was not necessary, What the court should be aware of i,s 8 that Dr . Jarvis is located in Seattle and according to State v. 9 J-R Distributors , Inc . , at page 597 the Dr . conducted a survey 10 of pu 114 lic opinion in the Everett-Seattle-Tacoma area which related 11 to the attitude people maintained toward the display of sexual 12 material and each interviewees ' belief as to the public ' s attitude . 13 The court then went on to say : 14 "Dr, Jarvis. is experienced in. a field of psychiatry and has held various teaching positions in that 15 specialty. His experience includes the area of pornography. He has conducted a five year study - 16 of people's attitudes toward pornography . Furthermore , there is nothing to indicate that the survey was 17 recently concocted merely for trial presentation. " 18 Dr. Jarvis therefore had substantial expertise and experience 19 measuring contemporary community standards with respect to' porno- 20 graphy in the community where the trial was taking place. His 21 testimony was relevant to contemporary community standards' even 22 thoug it was not necessary according to State v. J-R Distributors , 23 Inc . , supra, to establish the prosecution's case . 24 Contrasted with this , Defendants have indicated that thy 25 inten to call witnesses nationwide to testify to contempory. 26 community standards , as well as' other items not at issue in this 27 case . Defendants have not disclosed in the answers to Interrogatories 28 MEMO IN SUPPORT OF MOTION .TO EXCLUDE OR LI$ IT EXPERT WITNESSES & TO REQUIRE DISCLOSURE OF EXPERT WITNESSES - 10 • WARREN & KELLOGG1 P.S. ATTORNEYS AT LAW 1 100 SO. SECOND ST.. P. O. BOX 626 RENTON. WASHINGTON 98057 255-8678 1 that any of these witnesses have done any sort of study which is 1 2 related to the attitude people maintain toward the display of 3 sexual material_ in the Everett-Seattle-Tacoma area such as dolne 4 by , Jarvis . Since that information is not revealed, it can 5 only be concluded that these individuals have not conducted such 6 a survey. Even if such a survey has been recently done by one 7 of these witnesses or some third party, which information has 8 not been revealed in the answers to Interrogatories , it would be 9 a survey "recently concocted merely for trial presentation" . i 10 State v. J-R Distributors , Inc , left a definite impression that 11 the court would not find that type of a survey to be relevant to 12 the court. 13 Defendants apparently assert there is some sort of a 14 natio al standard of what appeals to the prurient interest when 15 contemporary communitystandards . Otherwise , some apply�ng the cont mp y 16 speci 1 qualifications would be needed for the experts that have been c ofar-flung places�is closed sed that are located in. such as 18 Flori a,' New York., Indiana, Wisconsin and Minnesota. 19 However, the national standard was rejected in Miller v. 20 California, and has been rejected in this State by State v. 21 J-R 'D;s'tributors , Inc. , supra : 22 "Miller v. 'California, 413 U. S . 15 , 37 L.Ed 2d, 419 , 93 S.Ct . 2607 (1973) , holds specifically that 23 'there is nothing in the First Amendment that requires the trier of fact to consider hypothetical 24 and unascertainable 'national standards '' when attempting to determine whether certain materials 25 are obscene, - Miller' quite logically recognizes 26 that : ., It is neither realistic nor constitutionally 27 sound to read the First Amendment as requiring 28 that the people of Maine. or Mississippi accept MEMO IN SUPPORT OF MOTION TO EXCLUDE OR LIMIT EXPERT WITNESSES & TO REQUIRE WARREN & KELLOGG,1P.S. DISCLOSURE OF EXPERT WITNESSES - 11 SE AT LAW 100 60. ORNEYS SECOND ST.. P. O. BO% 82E RENTON, WASHINGTON 98057 255-8678 i 1 1 public depiction of conduct untolerable in Las Vegas , or New York City , " Miller v, 2 California, supra, at 32. 3 We . agree :with the dissent of former Chief Justice Warren in Jacob'el'l'is v, Ohio , 378 U.S . 184, 200, 12 4 L.Ed, 2d 793 , 84 S. Ct. 1676 (1964) , quoted with approval in Miller v. California, supra at 32 5 'It is my belief that when the Court said in 6 Roth that obscenity is to be defined by reference to 'community standards , ' it meant 7 community 'standards--not a national standard, as is sometimes argued, I believe that there 8 is no provable 'national standard' . . . 9 State 'v, J-R 'Distrib'utors', Inc „, at 610 , then says : 10 " . , .The primary concern with requiring a jury to apply the standard of ' the average person, applying , 11 contemporary standards ' is to be certain that it will be judged' by its impact 'on the average person, rather I 12 than on a particularly susceptible or sensitive person li --or a totally insensitive one . Miller v. California, 13 supra, at 33; Roth V, . United 'States , 354 U. S . 476,489,. 1 L,Ed 2d 1498., 77 S .Ct . 1304 (1957) . 14 Thus we hold that as used in Roth and Miller the 15 ' contemporary community' standa�T to be applied by the average person is the contemporary community 16 . standard of the state in which the question of obscenity is to be tested by the trier of fact . " 17 18 Of the expert witnesses listed and those added through ithe 19 first and second amendment to the list, one local. ilitness ,PePpeT 20 Schwartz, was to testify in any fashion as to an appeal to a 21 prurient interest. The City has likewise been informed that 22 Pepper Schwartz is likely unavailable for trial . 23 There has been no disclosure that any one in the Seattle- 24 Tacoma-Everett area has done any sort of a survey , such as was 25 done by Dr . Jarvis for J-R Distributors , Inc , and Hull , so as 26 to qualify any of these out-of-state experts .to testify as to 27 the "contemporary community standards" in the State of Washington. 28 MEMO IN SUPPORT OF MOTION TO EXCLUDE OR LIMIT EXPERT WITNESSES . & TO REQUIRE WARREN & KELL'OGG, P.S. DISCLOSURE OF EXPERT WITNESSES - 12 ATTORNEYS AT LAW I 10O SO. SECOND ST.. P. O. Doi'626 RENTON. 'WASHINGTON 98067 . 255-8678 1 As such, it is clear that all of these witnesses would be incompetent 2 to testify as to "contemporary community standards" as they exist 3 in Washington State. That is the required test and one that the 4 Defendants will be unable to meet as to their expert witnesses . 5 As s ch, they should be barred. 6 SUMMARY 7 Defendants have undertaken a planned violation of the rules 8 of discovery with respect to expert witnesses . Since expert 9 witnesses are not going to be disclosed as required by the rules , 10 will not be provided with the films to be shown the court except 11 perhaps at the last minute, and will .not have any information 12 about "contemporary community standards" in the State of Washington, 13 thei7 testimony should be barred. Furthermore, expert witnesses 14 on the questions presented to this court are not necessary and 15 acco ding to J-R Distributors , supra, will: add nothing to the trial 16 �court' s ability i to determine that the materials fail to comply y 17 with any contemporary community standards relating to sexual matters . 18 For all of these reasons , taken singly and as a whole , Defendants ' 19 expert witnesses. should not be permitted 'to testify . 20 Dated September 30 , 1983 . 21 Res ctf submitted 22 /Va--y___ ____. Lawrence arren, 23 Attorney or City of Renton 24 25 26 27 28 MEMO IN SUPPORT OF MOTION TO EXCLUDE OR LIMIT EXPERT WITNESSES & TO REQUIRE DISCLOSURE OF EXPERT WITNESSES - 13 WARREN & KELLOGG, P.S. ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. pOX E28 RENTON, WASHINGTON 98057 255-8678 si • remedy at law and the court cannot exercise its equity 2 jurisdic ion therefore . , 3 ANSWER: 4 N/A , 5 6 INTERROGATORY NO . 98: 7 State the names of any and all witnesses or purported 8 witnesses , who have knowledge of any facts related to the allegations in the Plaintiffs' First Amended and Supplemental 9 Compla ' nt and your Answer and As tof eachative such witnesseSgive,'the Counterclaims filed herein. 10 following: 11 a. Name; • b. Present or last known address and telephone 12 number; _. 13 c. . Employer , employers' address and telephone 14 • number; III 15 ANSWER: See Attached 16 - i 17 i I 18 i9 INTERROGATORY NO . 99: 20 Do yo intend to call any expert witness at the timel of riarid inclu�ing the trial of Plaintiffs' motion for lease state theP minar following 21 Perma ent Injunction? If yes , p 22 a. The name , address and telephone number of each expert witness you intend to call at the time 23 of trial; 1 1 24 b . Set forth the subject matter upon whichc each eeac expert is expected to testify , 25 identifying the expert and the subject matter of his testimony; 26 27 • 28 . WARREN 81 KELL t �G,►.S. ATTORNEYS AT tAW REQ., FOR ADMISSION , INTERLOCKING Hp SOATT ONEYSAT�O.Roxclf INTERROG. AND REQ. PRODUCTION -131 - RENTON,WASHINGTONlWS7 us-ac71 1 . • . . F' ( . v., ..., , c. State the substance of the facts and opinions 2 to which each expert is expected to testify and a , summary of the grounds of each such opinion. 3 ANSWER: 4 To be supplied. 5 6 7 DATED: August A , 1983. 8 9 DANIEL ELLOGGg0iir 10 Attorney for Plainti 11 VERIFICATION 12 STATE OF WASHINGTON ) ss 13 COUNTY OF KING ) 14 JACK R. BURNS , beingfirst duly sworn on 'oath, 15 depos s and says : 16 I am the ATTORNEY FOR ak PLAYTIME THEATRES, 17 I'u„n-:o $04.0. INC. , , the above-named Defendants I have read the foregoing 18 Answe s to Interrogatories , know the contents -thereof and 19 believe the same to be true . 20 21 i I? . 41,t,t,u,... I 22 ,E 23 SUBSCRIBED AND SWORN to bef re on -3 , 1983' 24 ----(7. -47.164 .1 "(— Notaey P}rbui25 //29011- --/ in and for , re 26 Sta 9f:' Washington, residing at .1/Vt-t-?,(./7/ 27 28 1 WARREN&KELLOGG,P.S. REQ. FOR ADMISSION, INTERLOCKING ATTORNEYS AT LAW INTER1OG. AND REQ. PRODUCTION -132- IN so.SECOND sT,P.O.wx 626 RENTON,WASHINGTON96057 1 2ss-'c7$ ^t . .. , ,,,' A. ,,< CR 26 RULES FOR SUPERIOR COURT ` is: '�. '`` acquireddevelopeddesignated Way; (8) th ,,�� r. r t of subdivision (b) (1) of this rule and or in antici- �� Y ,.,.;�r, ` � r pation of litigation or for trial, may be obtained only as follows: documents or informatic r ,; as directed by the court. �'� •�� ���,M •�• (fir)—(i)-A-par-t�may interrogatories require any other . ,F1�`, of W: party to identify each person whom the other party expect to call-as If-the inotirnrfor�l `w ;: � ,;° an expert witness at trial, to state the subject matter on which the the court may, on such '� expert is expected to testify, and to state the substance of the facts r...i� i dVI i any party or person pro ,tPe �,�i Say `• , r` y Rule 37(a) (4) apply to ,� < r, .m : and opinions to which the expert is expected to testif and a sum- t r -� ,^ �-�`•' mary of the grounds for each opinion. (ii) Upon motion, the court the motion. �.-s�� �/1. • �„�•:.�;: may order further discovery by other means, subject to such restric- (d) Sequence and I ,.,, �:•? + tions as to scope and such provisions, pursuant to subdivision (b) (4) ;'fir r� "- 1 ; 4q. motion, for the conveniE_ r . ,,,, , (C) of this rule, concerning fees and expenses as the court may deem terests of justice, orders : r p. appropriate. `,,4t �.� ', .• ,,)4 in any sequence and the ; ,'ix a.'& , `., (B) :A party may discover facts known or opinions held by an whether by deposition o u , t< t _ -' ,.•+�,� G , , �>, , .ti.. expert who is not expected to be called as a witness at trial, only as other party's discovery. ,�4 n .,1 ' '• p provided in Rule 35(b) or upon a showing of exceptional circum- : ; : > V, stances under which it is impracticable for the party seeking dis- (e) Supplementation (. 4�il , c, # covert' to obtain facts or opinions on the same subject by other means. to a request for discover �{ . : g' 4 made is under no duty to ,�r'r, °`��•�,�� ': ��; (C) Unless manifest injustice would result, (i) the court shall- F`w. _ `e 4 ` .�, tion thereafter acquired,E P1/4,,l **Tr. :- , i ; require that the party seeking discovery pay the expert a reasonable (1) A party is und( f,f '4 fee for time spent in responding to discovery under subdivisions (b) .,., ., s� r,, ;.„' ' sponse with respect* a .� f (4) (A) (ii) and (b) (4) (B) of this rule; and (ii) with respect to P to a ,' ,•v l F,v�r, it " identityand location of ���4t�e � � .. discovery obtained under subdivisions (b) (4) (A) (ii) of this rule t-1 1` Y • :. matters, and (B) the ids a� ,,..i' "L. the court may require, and with respect to discovery obtained under `114�'" ' �" ' ^ ',';!'` subdivision (b) (4) (B) of this rule the court shall require, the party as an expert witness at 1 s ; petted to testify,and the 'x<- r vvoi Y seeking discovery to pay the other party a fair portion"of the fees as to "1,. and expenses reasonably incurred by the latter party in obtaining facts (2) A party is under ,� li ',1.,r {:.,f if he obtains information and opinions from the expert. �.pill ,'t I f_: the response was incorre i s- .f.' a••� . • ,; (c) Protective Orders. Upon motion by a party or by the persons ,V; ' r4i ; from whom discovery is sought, and for good cause shown, the court response though correct v • F �ti, I<::' y stances are such that a fai fry w ,� �,r-,� � g. in which the action is pending or alternatively, on matters relating knowing concealment. '`u ' ' ,,l'A lfi..�1a'�', ,2 to a deposition, the court in the county where the deposition is to be ' r 4F •.;i� 1,�, requiresprotectparty (3) A duty to suppl � �-•���1 ��. taken may make any order which justice to a art „c ,fir ,,, . ,i , _ oppression, or undue bur- of the court, agreement c �" ,, �,, � ,. '� .. __— ___ or person from annoyance, embarrassment, r'�=x. e., ' �. a, l;�, vr den or expense, including one or more of-the following: (1) that the _ through new requests for 5. 'P `'1 i Q ,,r•�}~ ,t; discoverynot be had; (2) that the discovery may be had only on ', .4 r /;�' N (4) Failure to seaso Zy, ;" ,}, .. �' specified terms and conditians including a designation of_the time or rule will subject the part; a ., tf tt 3% •t�,s place• (3) that the discovery may be had only by a method of dis- court may-deem a Or'� �=A.” ''� y ppropria �' �t ;'; �.4 covert' other than that selected by the party seeking discovery; (4) ,:ir i [Revised July 1,1972. qi it X' • ;;.� that certain matters not be inquired into, or that the scope of the dis- .,s} , a} ti., •/54 0• „,;i` covert' be limited to certain matters; (5) that discovery be conducted RULE 27. PEl • •'. .•: °. ,: with nn nne nresent except persons designated by the court; (6) that JACK R.BURNS Burns & Meyer, P.S. DAVID R.MEYER f(1 ATTORNEYS-AT-LAW MARY L HAMMERLY • 1094)N.E.3 rd Place • Suite 107 • Bellevue,WA 98004 • (206)828-3636 t • September 28, 1983 Larry Warre n Warren & Rellog SAP 2R 1983 100 S. Second Street ' nton, WA 98057 Re: City of Renton vs . Playtime Theatres, Inc. Xt/• Dear Larry: Below please find supplementation to your interrogatories req- esting the identification of witnesses and experts: 1. The following persons, subject to their availability, may be called upon to testify with respect to the educational , scien- tific, political and literary valt4ei:of the motion pictures exhib- ited at the Renton Theatre as well as the fact that th material exhibited is not patently offensive nor does it appeal to a prurient interest. Professor Knight University of Southern California Cinema Department Richard Green, M.D. Department of Psychiatry Health Science Center State University of New York _Stony Brook, NY .11794 Joshua Golden, M.D. /-'''3 - s-? c - o q t. Director of Human Sexuality Program University of California at Los Angeles 760 Westwood Plaza, Box 4 Los Angeles , CA 90024 Theodore Mcllvenna, M.Div. , Ph.D. Institute for Advanced Study of Human Sexuality 1523 Franklin Street San Francisco, CA 94109 Loretta Haroian • Institute for Advanced Study of Human Sexuality 1523 Frankin Street 94109 San Francisco , I • Larry Warren September 28, 1983 Page 2 Ruby Tanner Marriage and Family Counselor 5901 SW 1O0th Terrace Miami, FL Edward Donnerstein, Ph.D. University of Wisconsin Communication Arts Madison, WS 53706 Ferrin Satterfield, M.D. Univesity of Missesota Medical School Program. in Human Sexuality Research E Building , 2630 University Avenue S.E. Minneapolis, MN 55414 Diane Brashear, M.D. Brashear Center 1010 E. 86th Street Indianapolis, IN 46240 Otto Larson National Institute of Science . /Washington, D.C. Pepper Schwartz Department of Psychology University of Washington go Bst - �.is 1 EST. u l•• 2. Tt•e following individuals may be called -upon to testify relative to the community standards : Florence McMullen #1, Yesler Way • Seattle, WA 98104 Sylvia Mathews Suite 1606 , Smith Tower Seattle, WA 98104 " I i Larry Warren September 28 , 1983 Page 3 3. Defendants are currently attempting to locate and arrange for the testimony of a grammarian. As soon as an individual has ben located, his name will be disclosed to the plaintiffs. Additionally, defendants are attempting to locate a local movie critic, as well as other local scientific people to testify with respect to the matters in issue. As these people are located, and a decision made to call them as witnesses , they will be identified to you. Ver truly yours , Cc C_ I� . &A ''w S--- J k R. Burns h JRB:dkm cc: Bo. Smith 1 1 2 3 4 5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY •F RENTON, a municipal ) corpo ation, et al. , )) 7 ) NO. 82-2-02344-2 Plaintiffs , 8 ) vs ) AFFIDAVIT OF MARK E. g ) BARBER PLAYTD THEATRES, INC. , a ) 10 Washi gton corporation, et al. , ) 11 ) Defendants . it) 12 13 STATE OF .WASHINGTON ) ss 14 COUNTY OF KING ) 15 E. BARBER, being first duly sworn on oath, deposes 16 and sal, s : one of the attorneys representing the City of ' 17 1. I am 18 Renton in the above-matter. 19 2. As part of trial preparation, I was asked to contact expert 20 witnesses listed in a letter dated Spetember 28, 1983 from 21 counsel for Defendants, purportedly supplementing '22 Interr.gatories previously served. 23 3. I specifically contacted Professor Knight of the 24 University of Southern California, the first witness listed. have anyspecific knowledge of this25 Profes or Knight P did not 26 case oI what subject matter or facts upon which he would be 27 /// 28 AFFIDA IT OF MARK E. BARBER, - 1 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 200 SO. SECOND ST•. P. O. BOX 626 RENTON. WASHINGTON 98057 255-8678 i 1 request d to testify. He therefore had no opinions upon which 2 to base expert testimony. He. specificallyrequested if I 3 could p ovide him with the list of films that would be shown 4at tri 1. I gave him this information during our phone 5 confer ce. 6 . On the !day following the delivery of the letter 7 (which as delivered to my office at 4: 25 P.M. on September .28, 81983) y office was informed by Jack Burns that two additional, g expert would becalled: David Friedman of Los Angeles , 10 Califo is and John Webster of the University of Washington. 11 Additi nally, I was informed that Pepper Schwartz of the 12 UY niver it of Washington probably would not be available to 13 testif On Friday, September 30, 1983, counsel for Defendants 14in a t lephone conversation at approximately 1: 30 P.M. , informed 15 this a fiant of even another expert, Ward L. Pomeroy, Executive 16 DirectLr of the Institute for Advanced Human Sexuality, whose 17 name h d been erroneously omitted from the previous listing of 18 Defend nts' experts . 19 I have attempted to arrange agreeable deposition dates 20 for th se various individuals listed as defense. experts and 21 have b en told by Mr. Burns , on behalf of Defendants , that it 22 would 'e impossible for the Defendants to permit depositions 23 during the week of October 10 due to trial. I informed Mr. Burns 24 that t e tardy response in listing the Defendants' experts , as 25 well s the "fact that the Defendants have denominated approximately 26 15 ex erts , who ,are located from Minneapolis to Miami, and as far 27 as Lo Angeles to Washington shin ton D. C. , would mean that Plaintiffs experts its depositions in a timely manner. 28would b precluded irc,ui taking BARBER - 2 WARRENS AT LAG. P.S. AFFIDA IT OF MARK E• ATTORNEYS AT LAW �Op/O. SECOND /T., P. O. BOX 016 RENTON, WASHINGTON 98057 255-8678 1 , _ then indicated.that.the Plaintiffs' inay have to take the everts deposition: 2 just prior to their testimony before the jury. I informed 3 Mr. B rns this was not acceptable and that I would contact him 4 later to indicate Plaintiffs' position after consultation with 5 my co-counsel, Lawrence J. Warren, City Attorney and Daniel 6 Kello g. 7 6 . It should be noted by the Court that the interrogatories 8 described above were delivered to opposing counsel on August 3, g 1983. Answers to the designation of experts was due 20 days 10 later on or about August 23, 1983. Defendants did not list their 11 experts until the letter of September 28, 1983, above mentioned. 12 On Se tember 8, 1983, at a discovery conference at my office, 13 Mr. Robert Smith promised to provide an answer to Plaintiffs' 14 experts interrogatory within ten (10) days (September 19 , 1983) . 15 The dlsclosure of experts was then delayed an additional nine 16 days y Defendants although they were aware of the impending . 17 trial date. 18 . Defendants' request for experts , although being served 19 subst.ntially after Plaintiffs' request, was answered before 20 the Defendants' answer as to experts was received. 21 . It is this affiants belief that Defendants have not 22 made good faith attempt to designate with particularity those 23 experts they intend to call at trial. Instead, the City has been 24 given a "laundry list" of experts, many of whom have not 25 necessarily been retained to testify by Defendants . It is unfair 26 to force the City to take experts' depositions immediately before 27 AFFIDAVIT OF MARK E. BARBER - 3 28 , WARREN & KELLOGG. P.S. ATTORNEYS AT LAW BOO SO. SECOND ST., P. O. BOX 626 RENTON. WASHINGTON 98057 &55-8878 1 the expert testifys before the jury. It is this affiant' s 2 belief this is Defendants' intent and tactic in this case. 3 4 5 Mark E. Barber 6 7 UBSCRIBED AND SWORN to before me this 30th day of 8 Septe ber, 1983. 9 10 Notary Public in and for the 11 State of Washington, residing at Renton 12 -. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 27 28 AFFDI VIT OF MARK E. BARBER - 4 WARREN & KELLOGG, P.S. ATTORNEYS AT LAW 100 t0. SECOND iT.: r• O. BOX 62 RENTON, WASHINGTON 98057 255-8678 1 2 3 4 5 UPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY of RENTON, a municipal ) corpo ation, et al. , 7 ) NO. 82-2-02344-2 Plaintiffs, ) 8 ) vs . ) AFFIDAVIT OF BARBARA MURRAY 9 ) PLAYTIME THEATRES, INC. , a ) 10 Washington corporation, ) et al . , ) 11 ) Defendants . ) 12 ) _. 13 STATE OF WASHINGTON ) ) ss 14 COUNT OF KING ) 15' ARBARA MURRAY, being first duly sworn on oath, deposes 16 and s-ys : 17 . I am an employee of Warren & Kellogg, P. S. and on 18 their behalf made numerous telephone calls in _order to contact 19 witne-s that were listed in a letter furnished by Defendantsll 20 couns-1 and which were tobeexpert witnesses in the above-matter. 21 . The first individual I talked with was Sylvia Mathews 22 and h-r deposition has been scheduled. 23 3. The next person I talked with was Florence McMullen 24 who is with the' office of the Associated Counsel' for the Accused. r 25 Ms . cMullen indicated to me that she was involved in the! Kwan 26 Fai -k trial and did not know how long she would be tied up 27 with that case. She also indicated that when the Mak matter 28 was :inished she was leaving the country for a vacation in AFFIDAVIT OF BARBARA MURRAY - 1 WARREN & KELLOGG, P.S. ATTORNEYS1AT LAW 100 60. SECOND ST.. P. O.I60X 626 RENTON, WASHINGTON 98057 255.8678 1 G 1 Switze •land. Therefore, no deposition could be scheduled for 2 Ms. Mc ullen. 3 4. The next individual I contacted was Libby Tanner. 4 The nai*e was listed incorrectly on the witness list as Ruby. 5 Ms. Ta er stated that she had not been contacted by Defendants 6 to tes ify as an expert witness in this case. She stated she 7 knew nothing about) the facts of this case. Ms. Tanner said that 8 she hal. been contacted by Mr. Smith previously, but not regarding 9 this p rticular case. She would not agree to have her deposition 10 taken ince she knew nothing about the case. 11 5 I then contacted Dr. Edward Donnerstein at the University 12 of Wis onsin in Madison, Wisconsin. He indicated to me that he 13 had be n contacted several days ago by Defendants ' counsel with a 14 reques for copies of journal articles written by Dri. Donnerstein. 15 To the best of myl,knowledge, he had not been requested to 16 testif at trial. 1 1 17 5. I then talked with Dr. Theodore Mcllvenna of the 18 Instit to for Advanced Study of Human Sexuality in San Francisco . 19 He advised that he had been contacted by the Defendants' counsel 20 but did not have much information about the case. He stated that 21 he wo ld prefer not to have his deposition taken until after he 22 has m re information. His deposition was scheduled for October 23 14, 1983 at his office in San Francisco. He will be contacted 24 at a later date to set up a definite time. He further stated 25 that he would contact the other attorneys prior to the time his 26 deposition was taken. 27 I also contacted Dr. Loretta Haroian. She advised 28 that he had not been contacted on this matter as yet, but WARREN & KELLOGG. P.S. AFFID VIT OF BARBARA MURRAY - 2 ATTORNEYS AT LAW; 100 60. SECOND ST.. P. O. EOX 026 RENTON. WASHINGTON 98057 155-8678 _ I. 1 that i1 was not uncommon for her to be scheduled to testify 2 as an -xpert in cases through the scheduling of Dr. McIllvenna: 3 She in•icated that she would be willing to have her deposition 4 taken -nd same was scheduled for October 14, 1983. The time 5 will b: establish d at a later date. 1 1 6 7 I then contacted Dr. Sharon Satterfield at the 7 Univer-ity of Minnesota .Medical School. Her name was incorrectly 8 listed as FerrinSatterfield. Dr. Satterfield was not available 9 for me to talk with her, but her secretary stated that she had 10 been o t of the country until this week and therefore, to the 11 best o, the secretary' s knowledge had not been contacted by 12 Defend-nts. - 13 8. I also taked with Dr. Diane Brashear of the Brashear 14 Center in Indianapolis . Dr. Brashear advised that she knows 15 Bob Stith, but had not been contacted by him and knows nothing 16 of this matter. 17 9. I havelattempted to located Otto Larson who was 18 liste• as an expert witness . His ..address was given as the 19 Natio al Institute of Science in Washington, D. C. 'Directory', 20 Assisuance in Washington, D.C. advises that there is no listing 21 for t e National Institute of Science nor a listing for Otto 22 Larso . 23 0. I have been unable to contact Pepper Schwartz of 24 the U iversity of Washington, Dr. Richard Green at the State 25 Unive}sity of New York or Dr. Joshua Golden at the University, I \ 26 of California in Los Angeles to date. I will continue to 27 contact them within the next day or so. 28 AFFID VIT OF BARBARA MURRAY - 3 WARREN & KELLOGG, P.S. ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. BOX CMS RENTON, WASHINGTON 98057 Q55-8678 l 1 1 . In no instance were any telephone numbers furnished 2 for an of the expert witnesses listed in the letter received i 3 from M . Burns. II have spent considerable time and expense it'll 4 tracki g down phone number and proper locations for these 5 indivimuals. 6 C arbara Murray 7 • I ' 8 S BSCRIBED AND SWORN to before me this, 0 day of 9 Septeil"er, 1983. 10 11 Notary Public in and for the State 12 of Washington, residing at 946/�J 13 14 15 16 17 18 19 20 21 22 23 24 25 , I 26 27 28 AFFIDAVIT OF BARBARA MURRAY - 4 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW f00 SO. SECOND BT.. P. O. SOX SQS RENTON. WASHINGTON 98057 255-8678 I � ' I 1 2 3 4 5 SUPERIOR 'COURT OF WASHINGTON FOR KING COUNTY 6 CITY 0 RENTON, a municipal ) corpor tion, et al. , 7 ) NO. 82-2-02344-2 Plaintiffs, ) 8 ) SUPPLEMENTAL AFFIDAVIT vs ) OF BARBARA MURRAY 9 ) PLAYTI " THEATRES, INC. , a ) 10 Washin;.ton corporation, ) 11 et al. ) Defendants . ) 12 13 STATE oF WASHINGTON ) ) ss 14 COUNTY OF KING ) 15 B ARA MURRAY, being first duly sworn on oath, deposes 16 and sa s : 17 07 September 30, 1983 I received a call from Loretta 18 that day. She stated Haroia whom I had talked to earliery 19 that s e had just had a converation with Theodore McIlvenna 20 and fo d out the amount of material she had to review prior 21 to tes ifying in this matter. She stated she was not familiar 22 with s me of the films that would be shown at trial. She then 23 told m that she would not give a deposition until after she 24 had reviewed all material involved. She indicated she would 25 be unable to be deposed as we had tentatively discussed on 26 Octobe 14, 1983, but stated that she would contact us later 27 /// 28 SUPPLE NTAL AFFIDAVIT OF BARBA MURRAY - 1 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW, SOO SO. SECOND ST.. P. O. BOX S26 RENTON. WASHINGTON 98057 255-8678 . v . w i 1 and po sibly we could take her deposition when she comes 2 here t. testify. ; 3 )--12/4A-itjt sc6h- 4 arbara Murray 5 ' • 2 S :SCRIBED AND SWORN to before me this 3Q day of 6 • Septem•er, 1983. . • 7 8 `/ 2 Notary Public in and for the 9 State of Washington, residing at Re!ttan 10 • S.-...t /-e- 9/36/e3 niF&_ 11 12 __ 13 14 15 16 17 • 18 . 19 20 21 T j 22 • • I' 23 b 24 25 �, 26 • 27 • 28 SUPP EMENTAL AFFIDAVIT OFAY; BARB'RA MURR - 2 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. BOX 628 , RENTON. WASHINGTON 98057 1 255-8678 I • I ti E c ;:VL BUJ 1 2 DAM 28 1983 3 CriY OF "ENTON _,�.z ,MAYOR°S oFAACE�.m,�= 4 5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY OF RENTON, a municipal ) corporation; LAWRENCE J. ) 7 WARREN; City Attorney of the ) NO. 82-2-02344-2 City o Renton; STATE OF ) 8 WASHIN TON, ex rel . LAWRENCE ) STATEMENTS OF FACTS RE J. WAR EN, City Attorney for ) PLAINTIFFS' OPPOSITION TO1 9 the Ci y of Renton , ) DEFENDANTS ' MOTIONS FOR ) DISMISSAL UNDER 10 Plaintiffs , ) ) 11 vs . ) ) 12 PLAYTIME THEATRES, INC. , a ) Washington corporation; KUKIO ) 13 BAY PROPERTIES INC. , a ) Washington corporation; ROGER ) 14 H. FORBES and JANE DOE FORBES, ) husban and wife ; ROBERT B. ) 15 McRAE nd ELIA C. McRAE; and ) DOES 1 THROUGH 10; ) 16 ) Defendants . ) 17 ) 18 he following statement of facts is submitted in support 19 of th Plaintiffs' memoranda in opposition to Defendants' 20 motion for dismissal of Plaintiffs' first cause of action for 21 declar tory judgment , and Defendants' motion for dismissal re 22 RCW 7 48. 050-. 100, both of which motions are based upon CR 23 12(b) ( ) . The following facts are essential to a proper 24 understanding of the legal principles involved in these' 25 motions for dismissal: 26 ( 1 ) On June 24, 1976 the United States Supreme Court 27 decided the case of Young vs. American Mini-Theatres , Inc. , 28 STATEMENTS OF FACTS RE PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTIONS WARREN&KELLOGG,P.S. FOR DISMISSAL PAGE 1 100 SO.SECOND ATTORN ST.,P.O.P.TAW BOX 626 RENTON,WASHINGTON 98057 1 427 U. S. 50, 96 S. Ct . 2440, 49 L. Ed . 2d 310 ( 1976) , upholding 2 a Detroit zoning ordinance which prohibited under the power of 3 the zoning code. the use of certain properties for specified 4 adult entertainment land uses . 5 (2) In May of 1980, the City of Renton had no theaters 6 within its jurisdiction which exhibited sexually explicit 7 • films . The City Council began consideration of the enactment 8 of zoning legislation dealing with adult entertainment land 9 uses . Thereupon, a committee of the City Council held public 10 heari gs on the subject matter and received testimony 11 concerning the adverse affect of adult entertainment land uses 12 upon amily oriented land uses within the City. On April 13, 13 1981 he City Council enacted Ordinance No . 3526 . A copy of 14 Ordina ce No. 3526 is attached hereto as Attachment "A" and by 15 this eference incorporated herein . The ordinance followed 16 the Yung case and the decision of the Washington Statel 17 Supreme Court in; Northend Cinemas vs . Seattle, 90 Wn. 2d 709,1 18 585 P.2d 1153 (1978) and added definitions of "adult motion 19 pictu e theater" , "specified sexual activities" , and 20 "specified anatomical areas" . The ordinance prohibited ithe 21 locati•n of an : "adult motion picture theater" within the 22 following distances from the following specified uses or �3 zones.: 24 •ne thousand feet ( 1 , 000 ' ) of any residential zone .r any single family or multiple family 25 lesidential use . 26 •ne mile of any public or private school . 27 one thousand feet ( 1 ,000 ' ) of any church or other eligious facilities or institution. 28 STATEM NTS OF FACTS RE PLAINTIFFS' OPPOSIJ ION TO DEFENDANTS' MOTIONS WARREN&KELLOGG,P.S. ATTORW FOR DI•MISSAL PAGE 2 .SECON ST.,S AT P.O. 100 SO.SECOND ST.,P. .BOX 626 RENTON,WASHINGTON 98057 1 ne thousand feet ( 1 , 000 ' ) of any public park or -1 (Public District) zone . 2 3) In December of 1981 or January 1982, Defendant 3 Kukio :ay Properties, Inc . ( "Kukio") entered into an agreement 4 to pur, base the Roxy Theater and the Renton Theater which are 5 locate' across the street from each other in downtown Renton . 6 The th-aters were purchased with the intention of leasing the 7 same o Playtime Theatres , Inc . ( "Playtime") the operating 8 compan which intended to use the premises for the purpose of 9 exhibi ion of adult motion picture films . Both Kukio and 10 Playtiue are owned by a single shareholder , Roger H. Forbes . 11 4 ) On January 20, 1982, six (6) days prior to the 12 closinl of the purchase of the theaters , Playtime and Kukio 13 filed an action in the United States District Court for the 14 Wester District. of Washington at Seattle entitled "Complaint 15 for De laratory Judgment and Preliminary Injunction", alleging 16 federa jurisdiction under 28 U. S. C. Section 1131 (a) , 421 17 U. S. C. Section 1983, 28 U. S. C. Section 2202, and Rule 57 of 18 the F- deral Rules of Civil Procedure , challenging the 19 consti utionality of Ordinance No. 3526. 20 5 ) On January 29, 1982, Kukio and Playtime brought on 21 their motion for a temporary restraining order seeking a'I 22 restraint against enforcement of the ordinance which motion 23 was defied by United States District Judge Walter T. McGovern 24 based pon report and recommendation of Magistrate Phillip K. 25 Sweige t . 26 (6 ) On February 9 , 1982, Playtime and Kukio filed and 27 served a new complaint entitled "Amended and Supplemental 28 STATEM NTS OF FACTS RE PLAINTIFFS' OPPOSI I ION TO DEFENDANTS' MOTIONS WARREN&KELLOGG,P.S. ATTORNEYS AT LAWFOR DI►MISSAL PAGE 3 100 SO.SECOND ST.,P.O.Bo 626 RENTON,WASHINGTON 95057 I I 1 Comp,-int for Declaratory Judgment and Preliminary Permanent 2 Injun tion" which complaint raised a new issue under the 3 zonin: ordinances of the City of Renton that a conditional use 4 permi must be obtained prior to the opening of an adult 5 motio picture theater. This allegation was made despite the 6 fact that at ; the hearing on the motion for temporary 7 restr- ining order on January 29, 1982 , David R. Clemens , 8 Direc or of Policy Planning of the City of Renton, had 9 testi ied to a contrary administrative interpretation; that is 10 that .:n adult motion picture theater was a permitted use under 11 the z.ning ordinance as administered by the City of Renton, 12 subje t only to separation from the uses specified in 13 Ordin-nce No . 3526. 14 (7) On February 19, 1982, the City of Renton filed a 15 civil action in this court seeking a Declaratory Judgment that 16 Ordin: nce No . ' 3526 was constitutional as applied to the 17 propo-ed use of ' the Renton Theater as an adult motion picture 18 theat=r as alleged in Plaintiffs' Amended and Supplemental, 19 Compi- int . 20 (8 ) On February 22, 1982, the City of Renton filed in 21 the U. ited States District Court a motion to Dismiss the 22 Plaintiffs' amended and supplemental complaint based upon the 23 filing of the action in the State Court for a Declaratory, 24 Judgme t to resolve the controversy between the City of Renton 25 and P1: ytime and' Kukio. The City argued, based upon a line of 26 Supreiie Court cases , that where a city ordinance is 27 consti utional on its face and the civil rights issue involves , 28 STATEM NTS OF FACTS RE PLAINTIFFS' OPPOSI ION TO DEFENDANTS' MOTIONS WARREN&KELL'OGG, FOR DISMISSAL PAGE 4 ATTORNEYS AT LAW i 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 1 impo tant state civil interests , the federal claim must be 2 pres.nted to the state court in the first instance where that 3 forun was available and the State had not waived its right to 4 have the matter resolved in the state court. The City further 5 argu=d that the state judiciary must be presented with aln 6 oppo tunity to ; consider and interpret the city ordinance and , 7 if necessary, . invoke a limiting construction because, the 8 fede al courts lacked jurisdiction authoritatively to construe 9 stat= legislation. Therefore , the federal complaint should be 10 dismissed for ;failure to state a claim upon which federal 11 relief could be granted based upon "abstention" grounds . The 12 Federal court declined to dismiss the federal lawsuit holding 13 that abstention, was not appropriate . Judge McGovern filed hits 14 order denying the City of Renton's Motion to Dismiss based 15 upon the report of the Magistrate on May 5, 1982. 16 (9 ) On ( March 8, 1982, Playtime and Kukio filed a 17 petition to remove the state court action to federal court . 18 Thereafter on March 12, 1982, the City of Renton filed its 19 objestions to removal and Motion to Remand the state 20 declaratory judgment action back to the state court . 21 ( 10) On March 18, 1982, Playtime and Kukio filed la 22 Motio to Dismiss the declaratory judgment state action which 23 had seen removed to the federal court . On April 9 , 1982, the 24 City of Renton's Motion to Remand and Playtime. and Kukio's 25 Motion to Dismiss the state court action came on for hearing 26 befor- Magistrate Sweigert . At the conclusion of the hearing, 27 the agistrate ;stated in an oral opinion from the bench that 28 STATE ENTS OF FACTS RE PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTIONS WARREN&KELLOGG,P.S. FOR DISMISSAL : PAGE 5 ATTORNEYS ATLAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 198057 . I 1 the state court action should be remanded and declined to 2 dismiss the action . However, the actual Order remanding the . I 3 declaratory judgment State action back to the State Court was 4 not entered until January 13, 1983. 5 ( 11 ) On May 3, 1982 , the City Council of the City of 6 Renton enacted Ordinance No. 3629 which amended Ordinance 3256 7 to incorporate the meaning which the City had argued could be 8 given to the ordinance by a state court . A copy of Ordinance, 9 No . 3429 is attached as Attachment "B" hereto and by this 10 reference incorporated herein. The principal changes were; 11 (A) the amending ordinance contained an elaborate 12 statement of the reasons for enactment of both Ordinance No. 13 3526 and Ordinance No . 3629 ; 14 (B) a definition of the word "used" was added; 15 . (C) violation of the use provisions of the ordinance 16 was declared to be a nuisance per se to be abated by a civil, 17 action and not by criminal enforcement; 18 (D) the required distance of an adult theater from al 19 school was reduced from one mile to one thousand ( 1 ,000 ' ) 20 feet; : nd 21 (E) a severability clause was added.. The amending, 22 ordina ce, also contained an emergency clause and was to be �3 effect.ve as of the date of its passage and approval by the 24 mayor. 25 ( 12) On May 4, 1982, the City of Renton filed a renewed 26 Motion for Dismissal, and on May 27, 1982 a Motion for Summary 27 Judgme t under F. R. C. P. Rule 56. 28 . STATEM NTS OF FACTS RE PLAINTIFFS' OPPOSI ION TO DEFENDANTS' MOTIONS WARREN&KELLOGG,P.S. FOR DI .MISSAL PAGE 6 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 1 ( 13) On June 14, 1982, the City Council of the _ City of 2 Rentoi enacted a third Ordinance No. 3637 which was identical 3 to 0 dinance No . 3629 in all respects except that thle 4 emergency clause was deleted and the ordinance was to be 5 effective thirty (30) days following its publication. A copy 6 of 0 dinance No. 3637 is attached as Attachment "C" and bl,y 7 this reference incorporated herein. 8 ( 14 ) On June 23, 1982, U. S. Magistrate Sweigert heard 9 City of Renton' s renewed Motion to Dismiss and its Motion for 10 Summary Judgment, as well as the Playtime and Kukio Motion for 11 Preliminary Injunction requesting restraint of the enforcement 12 of t e ordinances pending the disposition of the litigation . 13 On November 5 , 1982 , Magistrate Sweigert filed his report and 14 recommendation recommending denial of the City of Renton' s 15 Motion to Dismiss and Motion for Summary Judgment, and the 16 granting of a Preliminary Injunction pending the conclusion of 17 the litigation. On January 13, 1983 , Judge McGovern entered 18 an order approving the report and recommendation of thle 19 Magistrate . 20 ( 15) From January 27, 1982 through January 19, 1983 , 21 Defendant Playtime Theatres, Inc. had operated both the Roxy 22 Theater and the Renton Theater as general release motion 23 picture theaters,. However, on January 20, 1983, Defendant 24 Playtime Theatres , Inc . commenced showing sexually explicit 25 films at the Renton Theater and has continuously exhibited 26 sexually explicit films since that date . A list of the films 27 exhibited and the dates of exhibition are pleaded at paragraph 28 STATEMENTS OF FACTS RE PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTIONS WARREN&KELLOGG,P.S. ATTORNEYS AT LAW FOR DISMISSAL PAGE 7 1oo SO.SECOND ST.,P.O.BOX626 RENTON,WASHINGTON198057 1 13, p-ge 6 , line 20 through page 7 , line 15 of the Firsts 2 Amend=d and Supplemental Complaint filed herein by the, 3 Plaintiff. Representative depictions of the content of a 4 portio, of the films exhibited since that date are compiled as 5 Time and Motion Studies attached as attachments to the, 6 Decla ations of Robert S. Perry and Robert McGuire which are 7 filed herein . Those declarations describe the manner in which 8 the ime and Motion Studies are prepared based upon 9 surveillance of the actual films exhibited at the theater . 10 ( 16 ) On February 18, 1983, Judge McGovern entered his 11 final order in the federal court reversing his previous 12 decis on to grant the Preliminary Injunction, and finding that 13 the R-nton Ordinance No . 3526, as amended, was constitutional ! 14 On Aril 29, 1983, Judge McGovern entered an order denying 15 Playtime and Kukio' s motion to alter or amend the final order, 16 and urther denying a requested stay of the final order 17 pending appeal of the order to the Ninth Circuit Court of 18 Appe-ls . 19 ( 17) On May 19, 1983 ,\ the Plaintiffs filed their First 20 Amensed and Supplemental Complaint in this cause. The amended 21 comp aint added additional allegations and causes of action 22 alle: ing the maintenance by the Defendants of a public 23 nuis- nce at the Renton Theater by reason of the exhibition of 24 sexu= lly explicit and obscene motion picture films in 25 viol. tion of the provisions of the City of Renton' s zoning 26 code and state law. Plaintiffs further filed a Motion for 27 Preliminary and, Permanent Injunction, which motion was noted 28 STAT MENTS OF FACTS RE PLAINTIFFS' OPPO ITION TO DEFENDANTS' MOTIONS WARREN&KELLOGG,P.S. FOR DISMISSAL PAGE 8 I ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 1 for earing in this court on June 13, 1983 . The object of the ' I 2 motion was to restrain the Defendants from use of the Renton 3 Thea er as an adult motion picture theater in violation of the 4 City of Renton's zoning code. 5 ( 18) In response to the public announcement that the 6 City of Renton intended to file an amended complaint in the 7 stat= court action, Kukio and Playtime filed their application 8 in t e Ninth Circuit Court of Appeals for a stay of the final 9 orde of Judge McGovern, which application was denied by a 10 pane of the Ninth Circuit Court of Appeals by order filed on 11 June 13, 1983. The order in its entirety reads as follows : 12 "Appellants' motion for a stay or injunction pending appeal is denied. Appellants have failed 13 at this time to establish the requisite balance of hardship and likelihood of success on appeal to 14 warrant relief requested . " (Citation omitted) 15 ( 19) On June 3 , 1983, the Defendants once again filed a 16 peti ' ion for removal seeking to remove this state court action 17 to federal court. Plaintiffs immediately filed objections to 18 remo al and Motion for Remand, which motion was heard before 19 Judg= John C. Coughenour- on June 16, 1983 . At the conclusion 20 of tte hearing, the federal court entered its order remanding 21 the state court action to this court based upon a want of 22 fede al jurisdiction---the identical conclusion of Judge 23 McGo ern on the , prior remand . However, the Defendants' 24 improper removal of the state court action without federal 25 jurisdiction did have the effect of disrupting the hearing set 26 for he Plaintiffs' Motion for Preliminary Injunction on June 27 28 STAT' MENTS OF FACTS RE PLAINTIFFS' OPPO'•ITION TO DEFENDANTS' MOTIONS WARREN&KELLOGG,P.S. FOR DISMISSAL PAGE 9 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 • 1 13, 19;3 . Following remand, that motion has been reset by the 2 Plaintiffs for July 11 , 1983. 3 (20) On June 20, 1983 , Defendant Playtime Theatres, ! 4. Inc. iled its Motion requesting dismissal of Plaintiffs'.' 5 first cause of action for declaratory relief, and its motion 6 for dismissal of all sections of Plaintiffs' amended complaint I ' 7 which rely upon RCW 7. 48. 050-. 100, both of which motions are, 8 based upon CR 12(b) (6) alleging failure to state a claim upon . 9 which relief can be granted. 10 DATED: June 24, 1983. 11 Respectfully submitted , 12 13 DANIEL ELLOGG 14 of Attorneys for Plai ffs 15 16 17 18 19 20 21 • � I 22 23 24 25 26 27 28 . STATiMENTS OF FACTS RE PLAINTIFFS' OPPO•ITION TO DEFENDANTS' MOTIONS WARREN&KELLOGG,P.S. FOR DISMISSAL PAGE 10 ATTORN AW no SO ST.,P.O.BOX626 RENTON,WASHINGTON 98057 • t - . • . r- .. : • .. . ISI • CITY OF RENTON, WASHINGTON . ?:` ORDINANCE NO. AN ORDINANCE 'OF THE CITY OF RENTON, WASHINGTON, I. • - RELATING TO LAND USE AND ZONING THE CITY COUNCIL OF THE CITY OF RENTON; WASHINGTON, DO - . ORDAIN AS FOLLOWS: SECTION I: Existing Section 4-702 of Title IV (Building • • • Regulations) of Ordinance. No. 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended by adding the following . • subsections:. • . • 1. "Adult Motion Picture Theater": An enclosed building used fors presenting motion picture films, video cassettes, cable l' i television or any other such visual media, distinguished or characterized by an emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas" as hereafter defined, for observation by patrons therein. 2. "Specified Sexual Activities": (a) Human genitals in a state of sexual stimulation ,or arousal; , (b) Acts of human masturbation, sexual intercourse r or sodomy; " (c) Fondling or. other erotic touching of human genitals, • pubic region, buttock or female breast. . 3. "Specified Anatomical Areas" (a) ' Less than completely and opaquely covered human genitals, pubic region, buttock, and female breast below a point immediately above the top of the areola; and • (b) Human male genitals in a discernible turgid state, even if completely and opaquely covered. • • CERTIFICATE 1- 1, the unde-iigned, Dec-Dees ,Q . • City of Renton, �c�.0 Clerk of the ' a+hint on, certify that this is a true ` and comact copy .00.QI.N..A C.C"../.f...^�.r.�,7,. .. . Subsci'x rd and led L'tia z/`Jday c .1f,:•:,, 19 ` - - ` • . . . . .. . • SECTION II: There is hereby added a new Chapter to Title • 'ti:• IV (B tiding Regulations) of Ordinance No. 1628 entitled "Code of . Gener l Ordinances of the City of Renton" relating •to adult motion. • picture theaters as follows: .:- . - - A. Adult motion.picture theaters are prohibited within •• . the area circumscribed by a circle which has a radius consisting . ' of the following 'distances from the following specified uses or zones: . . - 1. Within or within one thousand (1000') feet of any • residential zone (SR-1, SR-2, R-1. S-1, R-2, R-3, - ' R-4 or T): or any single family or multiple family • •• residential use. . - . 2. One (1) mile.of any public or private school . ' 3. One thousand (1Q00') feet of any.church or other - • - • 'religious facility or institution ' - 4.• One thousand (1000') feet of any public park or P-1 . •zone. . B. The distances provided in this section shall be measured by following a straight line, without regard to intervening- buildings, from the nearest point of'the property parcel upon which the proposed • use s to be located. to the nearest point of the parcel of property or tle land use district boundary line from which the proposed land use s to be separated. _ • SECTION III: • This Ordinance shall be effective upon'its passage, approval and thirty days after its publication. . PASSED BY THE CITY COUNCIL this 113th day of April , 1961 e ores A, eaa, ity Clerk • • APPROVED BY THE MAYOR this • 13th day of . April. . 19.81. . . . : 3�,,,.,,w,r*.S o d, . App oved as to form: Barbara Y. Shinpoch, Mayor . wrence J. rren, City Attorney . • 1 Date of Publication: May 15, 1981 i - • -.- ..•w•N41yw • SO• ••f -.: .. • . . WOW Or MG o WasAinSlon.Io 4reb! t s 'FII w mil Or Mt CM?1 Mew T ° WY If Or[inentt Mo t,1At laen,na dlwrn[t if.him ll/mufti t. •/.....N IAt Di of lemon.as if ✓� inonr lace.and de ! _. • la lew. �'midi mat me same Alt kenMIA+a:r1 �, hie . In witness Wham(I how _ ill off kW I~[ • rmy s!Il«Non.qi c� rd Oiled NH syl of ow r ..Il j M 11 ) di /�i•r-� • CITY OF RF.ilTON, WAS1tlN TON ans. • tea. ORDLiANCE NO. 3E29 J• AN ORDINANCE OF THE CITY OF RENTON, WAStIINCTON • RELATING TO LAND USE AND ZONING • WHEREAS, on April 13, 1981, the City Council of the City of Rentop adopted Ordinance No. 3526, which Ordinance was approved by the ,Mayor on April 13, 1981, and became effective by its own terms on June 14, 1981; and . ' - . • WHEREAS,it was the intention of the City Council of the City of enton in the adoption of that Ordinance to rely. upon the opinion f the United States Supreme Court in the case of Youne, v. American Aini Theaters, 427 US 50, and of the Supreme Court of the State of Uashinpton in the case of Northencl Cinemas v. Seattle, - 90 Wn 2d, 709, to limit the location of adult motion picture theaters, ' as that term is defined therein, to promote the City of Rerltosl's great intirest in protecting and preserving the quality of its . neighborhoods•, commercial districts, , and the quality of urban life ' x` throurh .effective land use planning ; and . WHEREAS, the City Council, through its Planning and Development Committee, held a public meeting on March 5, 1931, to receive testir.Ior.r from the public concerning the subjctt of regulation of adult e tertainment land uses, nt which the following testimony was receiv d which the City Council believes to be true, and which formed the basis for the adoption of Ordinance No. 3526: • I 1 Areas within close walking distance of single and • multiple family dwellings should be free of adult entertainment land uses. . 2. Areas where children could be expected to walk, patronize or recreate should be free of adult entertainment land uses. 3. Adult entertainment land uses should be located in areas of the Cit.," which are not in close L proximity to residt?,ttial uses , churches . parks and other public facilities , and schools. 4. The image of the City of Renton as a pleasant and attractive place .to reside will he adversely �-�. - - ' . . V • - • affected by the presence of adult entertainment -- land uses in close proximity to residential land • • - • uses, churches, parks and other public facilities, • . • , and schools. - • 5. Regulation of adult entertainment land uses should • :‹.. • be developed to prevent deterioration and/or degradation of the vitality of the community before • the problem exists, rather than in response to an . ' existing problem. • . . . , 6. Commercial areas of the City patronized by young people and children should be free of adult enter- ' • ' tainment land uses. :I- • • 7. The Renton School District opposes a location of . adult entertainment land uses within the perimeters of its policy regarding bussing of students, so that - •students walking to school will not be subjected to s; confrontation'with the existence of adult entertain- ' vent land uses. . 8. • The Renton School District finds that location of - _ • adult entertainment land uses in areas of the City • ' which are in close •roximit to schools, and t. • • commercial areas patronized bystudents and young • • .,people, will have a detrimental effect upon the • quality of education which the School District is • providing for its students. • 9. The Renton School 'District finds that education of • ' its students will be negatively affected by location . of adult entertainment land uses in close proximity . to location of schools. 10. Adult entertainment land uses should be regulated by • • zoning to separate it from other dissimilar uses • just as any other land use should be separated from uses with characteristics different from itself. . 11. Residents of the City of Renton, and persons who are • non-residents but use the City of Renton for shopping and other commercial needs, will move from the community • or shop elsewhere if adult entertainment land uses are . allowed to locate in close proximity to residential uses, churches, parks and other public facilities, and schools. 12. Location of adult entertainment land uses in proximity to residential uses. churches, parks and other public „ . facilities .. and schools , may lead to increased levels • - of criminal activities, including prostitution, rape. incest and assaults in the vicinity of such adult • entertainment land uses. ' • 13. Merchants in the commercial area of the City are • • • concerned about adverse impacts upon the character and quality of the City in the event that adult • entertainment land uses are located within close proximity to residential uses, churches ,parks and . other public facilities, and schools. Location of • •1 -2- . I J H . • adult entertainment land uses in close proximity • to residential uses. churches. parks and other •• •• • • • public facilities. and schools. will reduce retail • • trade to commercial uses in the vicinity. thus •► . • ' . reducing property values and tax revenues to the • ' - City. Such adverse affect on property'values will cause the loss of some commercial establishments ` followed' by a blighting effect upon the corm ercial • districts within the City, leading to further deterioration of the commercial quality of the City. . `- ' 14. Experience in numerous other cities,. including Seattle, a' Tacoma and Detroit, ?iichigan. has shown that location y • of adult entertainment land uses degrade the quality . "- of the areas of the City in which they are located and cause a blighting effect- upon the city. The A• • skid roww effect, which is evident in certain parts , • of Seattle and other cities. will have a significantly ' ' • • larger affect upon the City of Renton than other ' gi' major cities .due to the•relative sizes of the cities. • • • 15. Ncq evidence has been presented to show that location , �. of adult entertainment •land uses within the City will • ",-. • improve the commercial viability of the community. - 16. Location of adult entertainment land uses within ' . walking distance of churches and other religious facilities will have an adverse effect upon the • • . . ministry of such churches and will discourage • . attendance at such churches by the proximity of adult entertainment land uses. . 17. A reasonable- regulation of the location of adult entertainment land uses will provide for the protection of the image of the community and its property values . • and protect 'the residents of the-community from the adverse effects of such adult entertainment lanu uses , . - while providing to those who desire to patronize adult entertainment land uses such an opportunity in areas • within the City which are appropriate for location' of • adult entertainment land uses. . 19. the community will be an undesirable place to live • if it is known on the basis of its image as the location of adult entertainment land uses. 20. A stable atmosphere for the rearing of families cannot be achieved in close proximity to adult entertainment land uses._ • 21. The ,initial .location of adult entertainment land uses will lead to the location of additional and • similar uses within the same vicinity, thus multiplying the adverse impact of the initial location of adult entertainment land uses upon the residential, churches , parks and other public facilities , and schools, and the impact upon the image and quality of the character of•the community. . _3_ and WHEREAS. since the adoption of Ordinance Ho. 3526. it • has cor to the attention of the City Council of the City of Renton • • that it would be appropriate to set forth in writing the findings • ye • • . of fact which were the basis for the adoption-by, City Council of Ordinance No. 3526; and j WHEREAS. the City Council finds that. in order to choose the least restrictive' alternative available to accomplish the purposes for which Ordinance No. 3526 was adopted. and to include a severabilit• claus which-was inadvertently omitted from Ordinance No. 3526. and . • to male certain other technical amendments to Ordinance lo. 3526. - • • • that it is necessary for the City Council to adopt legislation . . . . amending Ordinance No. 3526 to accomplish the foregoing.purposes; • and • . WHEREAS. the City Council; at its duly called special • meeting on February 25. 1982, held a• public hearing upon the subject • matter of land 'use regulations of adult motion pictures within the • City of Renton. at which public hearing the City Council received , comments from the public on that subject matter at which the followin;; testimony was received, which• the City Council believes to be true, . and which. together with the findings heretofore set forth as the • basis for the adoption of Ordinance No. 3256, form the basis for • the adoption of this Ordinance: - .1.. Many parents have chosen the City of Renton in • which to raise their families because of the lack of pornographic entertainment outlets with its influence upon children external to the home. 2. Location of adult entertainment land uses on the . main commercial thoroughfares of the City gives an impression of legitimacy to. and causes a loss of sensitivity to the adverse affect of pornography . upon children, established family relations, respect for marital relationships and for the sanctity of marriage relations of others , and the concept of non-aggressive consenual sexual relations. • -4- i • 1 • • 'C` . 3. Citizens from other cities and King County will travel to Renton to view adult film fate eeaway from areas in which they are known and recog 4. Property values in the areas adjacent to the adult • entertainment land uses will decline, thus causing • • a blight upon the commercial area of the City of • Renton. 5. Location of adult entertainment land uses within . neighborhoods and commercial areas of the City of � • ;: Renton is disrupting to youth programs such as Boy . .. Scouts, Cub Scouts and Campfire Girls. Many such youth programs use the commercial areas of the City _ as 'a historical research resource. Location of adult entertainment land uses in close proximity to residenti" • uses, churches, parks and other public facilities and • schools is inappropriate. 6. Location of adult entertainment land uses in close ' proximity to residential 'uses, churches. parks and • other public facilities, and schools , will cause a • degradation of the community standard of morality. . Pornographic material has a degrading effect upon the relationship between spouses. • • NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASIII: • DO ORDAIN AS FOLLOWS: SECTION I_: Existing Section 4-702 of Title IV (Building • • Regul tions) of Ordinance No. 1628 entitled "Code of. General Ordinance• of the City of Renton" is hereby amended by adding the following sub- . sections: • • "Used" The word "used" in the definition of "Adult moti . pict re theater" herein. R describes a continuing course of conduct of , exhi iting "specific sexual activities" and "specified anatomical are: • in a manner which appeals to a prurient interest. • ' SECTION II: Existing Section 4-735 of Title IV (Building Regu:.ations) of Ordinance No. 1628 entitled "Code of General Ordinance . of the City of Renton". is hereby amended by adding the follwing subsccti. (C) Violation of the use provisions of this section is deck' • to b a public nuisance per, se. which shall be abated by City Attorney by way of civil abatement procedures only. and not by criminal prosecui (I)) ;lathing in this section is intended to authorize, • leg lize or permit the establishment, operation or maintenance of any business, building or use which violates any City of Renton ordinance or tatute of the State of llashington regarding public nuisances . ' sexual conduct, ,lew dness. or obscene or harmful matter or the • exhibition or public display thereof. r i.• . . . . . . IF . , ...• i • : • ., . . . . • ibii4: . • . . I trl-': • . . • . • . . _ . ,.., . 1..t• . .. ' • . . ; . . . 1 - • 1 . I- . -... , . . . . • . . . : .,-,. i ..: . • SECTION III: Existing subsection (A)(2) of Section 4-735 .77... • • . .; of Title V (Building Regulations) of Ordinance No. .1628 entitled . *j ,•,' "Code of .eneral Ordinances of the City of Renton" is hereby amended . • ' • t.. . to read a follows: . . . - f..- . . • ,.. • 2. One thousand feet (1.0001) of any public or private . * • ' school. . . SECTION IV: City of Renton Ordinance No. 3526 is hereby .. , .t. , I . . 1! amended 1:1:r adding the following section to read as follows: '. I i . . . • = . ! . If any section, subsection, sentence, clause, phrase or • s • . * . , : any port on'.of this ordinance is for any reason held to be invalid • : ',.. . . , .. or unconstitutional by the decision of any court of competent t. . • . jurisdiction, such decision sball not affect the validity of the .. . . •t- . . , . • , .* : remaining portions of this ordinance: The City Council of the City ,Of Rentoi hereby declares that it would have adopted City of Renton . . . Ordinance No. 3526 and each section, subsection. sentence, clause. ' . 1 phrase or portion. thereof irrespective of the fact that any one or • , ' . .1. 47 7; more secions, subsections, sentences, clauses, phrases or portions ; be declared invalid Or unconstitutional. • F• • SECTION V: If any section. subsection, sentence, clause. .........._____ phrase o any portion of this ordinance is for any reason held to he . , ‘ : invalid r unconstitutional by the decision of court of competent • . any jurisdiction, such decision shall not affect the validity of the . . , remaining portions of this ordinance. The City Council of the City of Renton hereby declares that it would have adopted this ordinance and each section. subsection, sentence, clause, phrase or portion 1 thereof irrespective or the fact that any one or more sections . sub- . . . '.. section. . sentences, clauses , phrases or portions be declared invalid . I or unconstitutional. • • . . . • SECTION VI: The City Council of the City of Renton finds . i I and declares that an emergency exists because of the pendency of litigation against the City of Renton involving the subject matter of • this orhinance, and potential liability of the City of .Renton for . . damages as pleaded in that litigation, ano that. the irnediate adoption I ' . . . . -6- 1 —.mat : 1, , H . . _ ...., • ' • ,- - • .. .. • • • • . • • . . •••._ . . . , • • . • • • . F.,..,.. . . . • . of this ordinance is necessary for the Immediate preservation of • _. . • • i public peak, health, and safety or for the support of city government • . • . • and its existing public institutions and the integrity of the zoning. t . • of the City of Renton. Therefore, this ordinance shall take effect - • cc immediately upon its passage and approval by the mayor, ,e7 ..c. ii P SSED BY THE CITY COUNCIL this 3th day of Ray. 1982. • . . .... ri:- . • 1--••• hill, ores A. leaPel.ty tlerk f•- It, • • . .. . t---; • 1;• PPROVED BY THE ItAYOR this 3th day of May. 1982. • ;:.- .. 1.:: • . ICLXIXI.kra___ _LS_ LA.po. ci, - . • . ni-b- a 1". Shimpocg-,-BITEE Approved as to form: . . • • • . . '!!"- . • . • : cfack,,J,..„: 6 21 4 hy 0 a.,egift.0 * • ta-C7r7F-tc137 Xliirren7C'fily—Kiltiiiiiy . . . Date of Publication: nay 7. 1902 • . '.:. . • . ::, • Eli • .; . • •- . . . • • • • . • . • • . • - • • . • -7- . I 1 I . i . . ...... . . , • 1 CITY OF RENTON, WASHINGTON .i . ORDINANCE NO. 3637 ' AN ORDINANC OF THE CITY OF RENTON, WASHINGTON AMENDING OR INANCE NO. 3526 RELATING TO LAND USE AND ZONING ND AMENDING ORDINANCE NO. 3629 BY DELETING THE EMERGENCY CLAUSE AND RE-ENACTING • THE REMAINDnR THEREOF . • WHEREAS, on April 13, 1981, the City Council of the City • of Renton adopted Ordinance No. 3526, which Ordinance was approved • by the Mayor on April 13, 1981, and became effective by its own terms on June 14, 1981; and ' WHEREAS, on May 3, 1982, the City Council of the City of Renton adopted Ordinance No. 3629 amending Ordinance No. 3526, which Ordinance wads approved by the Mayor on May 3, 1982. and' became effective on its passage and by the terms of the Ordinance; . and WHEREAS thq City Council wishes to remove the emergency clause from Ordinance -No. 3629 and re-enact the remainder of Ordinance No. 3619 in its entirety; and WHERREAS, it was the intention of the City Council of the • City of Renton. in the adoption of Ordinance No. 3526 to rely upon the opinion of the United States Supreme Court in the case of Young v. American Mini Theaters, 427 US 50, and of the Supreme Court of the . State of Washington in the case of Northend Cinemas v. Seattle., 90 Wn 2d, 709, to limit the .location of adult motion picture theaters as that term is defi-ined 'therein, to promote the City of Renton's I ,' great interest in protecting and preserving the quality of its neighborhoods , commercial districts , and the quality of urban life through effective landl use planning; and WHEREAS, the City Council. through its Planning and Development Committee, held a public meeting on March 5, 1981, to C[AT nc t . -. I. toe ur+ders;gr+ed DELoers, A. Mrs D MAE of ttte CJty of ienloe. Wael+kglott, eerlffy fiat thk is a Vw � I and ce d copy of Q RP AM FtNt .....(!�R..,�44.3.7 • I Subsuibled and Sealed tti:a al41 day cf C.7.14.QCL. 19%.1 C:ty cierk r • ` receive testimony from the public concerning the subject of11 I regulation of adu lt entertainment land uses, at which the following • testimony was rec`ived which the City Council believes to be true, and which formed the asis for the adoption of Ordinance No. 3526: 1. Areas within close walking distance of single and . ' multiple family dwellings should be free of adult •. entertainment land uses. . - .' • 2. Areas where children could be expected to walk, patro ize or recreate should be free of adult • ' enter ainment land uses. • ' 3. Adult entertainment land uses should be located in areas of the City which are not in close -proximity to residential uses, churches, parks and other public facilities, and schools. 4. .The image of the City of Renton as a pleasant -. and attractive place to reside will be adversely affected'by the presence of adult entertainment land uses in close proximity to residential land uses, Churches, parks and other public facilities, and sc ools. 5. Regula ion of adult entertainment land uses should be developed to prevent deterioration and/or degradation of the vitality of the community before - - the problem exists, rather than in response to an • I existi g problem. 6. Commercial areas of the City patronized by young people and children should be free of adult enter- tainme t land uses. 7. The Re ton School District opposes a location of adult entertainment land uses within the perimeters • of its policy regarding busing of students, so that . students walking to school will not be subjected to confrontation with the existence of adult entertain- ment land uses. 8. The Renton School District finds that location of adult entertainment land uses in areas of the City which are in close proximity to schools, and . commercial areas patronized by students and young people; will have a detrimental effect upon the quality of education which the School District isII providing for its students. • 9. The Renton School District finds that education of its students will be negatively affected by location - of aduld entertainment land uses in close proximity to loca.ion of schools. • -2- • • • 1 10. Adut entertainment land uses should be regulations by Zoning to separate it from other dissimilar uses jus as any other land use should be separated from - use with characteristics different from itself. 11. Residents of the City of Renton, and persons who are • non residents but use the City of Renton for shopping • and other. commercial needs, will move from the community - or hop elsewhere if adult entertainment land uses are all wed to locate in close proximity to residential ' • use . churches. parks and other public facilities, and schools. 12. Location of adult entertainment land uses in proximity to residential uses, churches, parks and other public facilities, and schools, may lead to increased levels • of• criminal activities, including prostitution, rape, incest and assaults in the vicinity of such adult • entertainment land uses. 13. Merchants in the commercial area of the City are concerned about adverse impacts upon the character and quality of the City in the event that adult • entertainment land uses are located within close _ proximity to residential uses. churches, parks and otter public facilities. and schools. Location of adult entertainment land uses in close proximity to residential uses, churches. parks and other public facilities, and schools, will reduce retail trade to commercial uses in the vicinity, thus reducing property values and tax revenues to the City. Such adverse affect on property values will • cause the loss of some commercial establishments followed by a blighting effect upon the commercial districts within the City, leading .to further deterioration of the commercial quality of' the City. • 14. Experience in numerous other cities, including Seattle, Tacoma and Detroit, Michigan, has shown that location • of adult entertainment land uses degrade the quality • of the area of the City in which they are located and cause a blighting effect upon the City. The skid row effect, which is evident in certain parts of Seattle and other cities, will have a significantly larger affect upon the City of Renton than other major cities due to the relative sizes of the cities. 15. Vo evidence has been presented to show that location of adult entertainment land uses within the City will • im rove the commercial viability of the community. 16. Lo ation of adult entertainment land uses within walking distance of churches and other religious fa ilities will have an adverse effect upon the mi istry of such churches and will discourage attendance at such churches by the proximity of • adllt.entertainment land uses. -3- • II , . . 17. A reasonable regulation of the location of adult • entertainment land uses will provide for the protection . • . of the image of the community and its property values, and protect the residents of the community from the adverse effects of such adult entertainment land uses, • while providing, to those who desire to patronize adult entertainment ._land uses such an opportunity in areas . within the City which are appropriate for location of adult entertainment land uses. . 18. The community will be an undesirable place to live if t is known on the basis of.its image as the 1 . loc tion of adult entertainment land uses. • • 19. A stable atmosphere for the rearing of families • cannot be achieved in close proximity to adult entertainment land uses. 20. The initial location of adult entertainment land • use will lead to the location of additional and similar uses within the same vicinity, thus multiplying . the adverse impact of the initial location of adult . entertainment land uses upon the residential, churches, parks and other public facilities, and schools, •and . the impact upon the image and' quality of the character of he community. ' and WHEREAS, since the adoption of Ordinance No. 3526, it has come• to the attention of the City Council of the City of Renton that it.would be appropriate to set forth in writing the findings of fact which we're the basis for the adoption by the City Council of Ordinance No. 3526; and WHEREAS, the City Council finds that, in order to choose the least restrictive alternative available to accomplish the purposes . for which Ordinance No. 3526 was adopted, and in include a severability clause which was inadvertently omitted from Ordinance. No. 3526, and ' • to make certain ther technical amendments to Ordinance Igo. 3526, that it is necessary for the City Council to adopt legislation a'nending Ordinance No. 3526 to accomplish the foregoing purposes ; and • WHEREAS, he City Council, at its duly called special meeting on February 25, 1982, held a public hearing upon the subject matter of land us regulations of adult motion pictures within, the • City of Renton, a which public hearing the City Council received comments from the public on that subject matter at which the following . . testimony was rec ived,' which the City Council believes to be true, • 11 • _4_ • • I • I • • I and which; together with the findings Heretofore set forth as the I • . • .basis for the adoption of Ordinance No. 3256. form the basis for the adoption of this Ordinance: . 1. Ma parents parents have chosen the City of Renton in • which to raise their families because of the lack . • • • of Oornographic entertainment outlets with its • infi.uence upon children external to the home. 2. Location of adult entertainment land uses on the ' . man commercial thoroughfares of the City gives • an mpression of legitimacy to, and causes a loss of ensitivity to the adverse affect of pornography upo children, established family relations, respect • for marital relationship and for the sanctity of ' • marriage relations of others, and the concept of non aggressive consensual sexual relations. 3. Citizens from other cities and King County will travel to enton to view adult film fare away from areas in whi h they are known and recognized. .. 4. Property values in the areas adjacent to the adult . entertainment land uses will decline, thus causing • a b ight upon the commercial area of the City of . en on. • - . 5. Location of adult entertainment land uses within •• • neighborhoods and commercial areas of the City of Renton is disrupting to youth programs such as Boy • Sco4its. .Cub Scouts . and Campfire Girls. Many such youth programs use the commercial areas of the City as historical research resource. Location of adult entertainment land uses in close proximity to residential uses, churches, parks and other public facilities and • schools is inappropriate. • 6. Location of adult entertainment land uses in close • proximity to residential uses, churches', parks and • other public facilities, and schools, will cause a degradation of the community standard of morality. Pornographic material has a degrading effect upon the • relationship between spouses. • NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, • • WASHINGTON DO 0 DAIN AS FOLLOWS: . • SECTION I: Existing 'Section 4-702 of Title IV (Building Regulations) of Ordinance No. 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended by adding the following subsections: ' -5- • • • • f , li . - i , "Used" The word "used" in the definition of "Adult motion picture theater" herein, describes a continuing course of conduce of exhibiting"specific sexual activities" and "specified anatomical area in a manner which appeals to a prurient interest. . SECTION III: Existing Section 4-735 of Title IV (Building Regulations) of rdinance No. 1628 entitled "Code of General Ordinances I of the City of R nton" is hereby amended by adding the following subsections: (C) Violation of the use provisions of this section is declared to be a public nuisance per se, which shall be abated • by City Attorney byway of civil abatement procedures only. and not by criminal prosecution. (D) Nothing in this section is intended to authorize, legalize or permit the establishment, operation or maintenance • of any business, building or use which violates any City of Renton • ordinance or statute of' the State of Washington regarding public nuisances , sexuat conduct, lewdness , or obscene or harmful matter or the exhibitio or public 'display thereof. SECTION kit: Existing subsection (A) (2) of Section 4-735 of Title IV (Building Regulations) of Ordinance No. 1628 entitled ' "Code of General Ordinances of the City of Renton" is hereby amended to read as follows: ' 2. One thousand feet (1.000') of any public or rivate school. SECTION IV: City of Renton Ordinance No. 3526 is hereby amended by addin the following section to read as follows: . If any s ction, subsection, sentence, clause, phrase or any portion of t is ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, sue' decision shall not affect the validity of the remaining portion • of this ordinance. The City Council of the City -6- • I • 1. • A • _ r .. ` ' of Renton hereby declares•that it would have adopted City of Renton • - Ordinance No. 3526 and each section. subsection. sentence, clause, phrase or portiIon thereof irrespective of the fact that any one or :, more sections, .I5ubsections. sentences, clauses. phrases or portions . be declared invalid or unconstitutional. • SECTION V: If any section. subsection, sentence. clause, phrase or any pIortion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction. such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Renton hereb declares that it would have adopted this ordinance and each section. subsection. sentence. clause. phrase or portion thereof irrespective of the fact that any one or more sections, sub- ` sections. sentepces. clauses, phrases or portions he declared invalid • - or unconstitutio •nal. p . SECTION VI: This ordinance shall be effective upon its 'passage, and approval and thirty (30) days after its publication. PASSED BY THE CITY COUNCIL this 14th,day of June, 1982. ^, .,. i •r .g...,/ a. 1•/ g . . Delores A. Mead, tCity Clerk • APPROVED BY THE MAYOR this lath day of June, 1982. • • catlxa1 �atiPociN Barbara Y. Shinpoch, Mayor Approved as to form: ' ' (.:( . . . . Lawrence J. 4arTen, City Attorney I Date of Publication: .Lunt, 18, 1982 _ 1 2 3 4 5 IN THE SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY OF RENTON, a municipal ) 7 corporation; LAWRENCE J. WARREN, ) NO. 82-2-02344-2 City Attorney of the City of ) 8 Renton; STATE OF WASHINGTON ) PLAINTIFFS' TRIAL BRIEF exl rel. LAWRENCE J. WARREN , ) RE: APPEAL TO PRURIENT 9 City Attorney of the City ) INTEREST, CONTEMPORARY of Renton , ) COMMUNITY STANDARDS , 1 10 ) ENFORCEMENT OF ORDINANCE Plaintiffs , ) BY INJUNCTION, AND 1 11 ) BURDEN OF PROOF vs . ) 12 PLAYTIME THEATRES, INC. , ) 13 a Washington Corporation , ) KUKIO BAY PROPERTIES, INC. , ) 14 a Washington corporation, ) ROGER H. FORBES and JANE DOE ) 15 FORBES , husband and wife , ) ROBERT B. McRAE and ELIA C . ) 16 McRAE, ROBERT E. FEY and CAROL ) i FEY, husband and wife , ) 17 GERALD W. MARIS and HELEN MARIS, ) husband and wife, BRYCE A. ) 18 LOSEY, SHERRIE RICHTER, WILLIAM ) JIRSA, PAT R. DeLONG, and DOES ) 19 6 THROUGH 10, ) ) 20 Defendants. ) ) 21 I . SUMMARY 22 This action is before the Court to seek a declaration as 23 to the constitutionality of certain City zoning ordinances 24 regulating the location of adult motion picture theatersl, and 25 further , to enforce the City ordinance as to violations 26 alleged to have been committed by Playtime Theatres , Inc ! The 27 City has previously submitted its Brief requesting that the 28 WARREN&KELLOIGG,P.S. PLAINTIFFS' TRIAL BRIEF ATTORNEYSATLAW RAGE 1 700 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 zoning ordinances be held constitutional. The City has also 2 submitted a Brief and Motion for Partial Summary Judgement 3 co cerning all issues in the zoning ordinance enforcement , 4 except for the issue of "appeal to a prurient interest ' . 5 Those issues covered in previously submitted briefs in this 6 action will not be discussed in this brief. 7 There is little or no dispute before the Court regarding 8 t e facts of this case . In support of its request to enforce 9 i s zoning ordinance , the City has , through Requests for 10 Admission and Interrogatories , established all facts necessary 11 to prove its case with the exception of ( 1 ) a "continuous 12 curse of conduct" and (2) that the exhibition is "in a manner 13 appealing to a prurient interest" . It is admitted that 14 shown at the Renton Theater sexually explicit films have been 15 continuously since January 20, 1983 . Therefore , it is 16 anticipated that the Court will grant summary judgment as to 17 the issue of "continuous course of conduct" . The sole 18 r maining issue to be decided by the Court and submitted to an 19 a visory jury is what constitutes an "appeal to a prurient 20 interest" . 21 II. ISSUES 22 - A. What is the legal definition of "appeal to a 23 p urient interest"? 24 B. What role do "contemporary community standards" play 25 i the determination of"appeal to a prurient interest"? 26 27 I ' 28 WARREN&KELLOGG,P.S. PILAINTIFFS' TRIAL BRIEF ATTORNEYS AT LAW PAGE 2 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 I 1 C. Would expert testimony be of assistance to the trier 2 of fact in ascertaining the "contemporary community 3 standards"? 4 D . Is injunctive relief appropriate to enjoin further 5 violation of a zoning ordinance by a nuisance per se? 6 E. What is the burden of proof in this action? 7 III. ARGUMENT 8 The regulation of sexually explicit land uses has 9 been previously approved in Young v. American Mini Theaters and Northend Cinema v. Seattle. The only 10 issue remaining for trial is the "appeal to a prurient interest" of the exhibition of sexually ' 11 explicit films as a land use at the Renton Theater . 12 It should be recalled by the Court that this case 13 involves a zoning ordinance of the City of Renton regulating 14 t e location of adult motion picture theaters . This type of 15 zoning ordinance (and , the great majority of the language used 16 therein) has been approved in the cases of Young v. American 17 M ' ni Theatres , 427 U . S. 50 , 49 L . Ed 2d 310 , 96 S . Ct . 2240 6 and Northend Cinema v. Seattle , 90 Wn. 2d 709 , 585 P.2d 18 ( 97 ) 19 1 53 ( 1978) . See pertinent portions of Young, Northend Cinema 20 and zoning ordinances attached hereto as Attachments "A" "B" 21 a d "C" respectively. Note the identical language approved by 22 the Supreme Courts of the United States and the State of �3 Washington, which are included in Renton's zoning ordinance . 24 The Court will note from a review of the ordinance in 25 uestion that an "adult motion picture theater" may not be 26 ocated within 1 , 000 feet of a residential zone or actual 27 residential land use, a public or private school, a church or 28 other religious facility, or a P-1 (public use) zone . This WARREN&KELLOIGG,P.S. PLAINTIFFS' TRIAL BRIEF ATTORNEYS AT LAW PAGE 3 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 re triction does not eliminate the potential for location of 2 an "adult motion picture theater" within the City of Renton . 3 As found by Chief Judge Walter T . McGovern in the federal 4 court suit brought by the Defendants , there exists in eIcess 5 of 540 acres within the city limits where such a land use may 6 be located without violation of the zoning ordinance . 7 Furthermore , this type of film fare is readily available in 8 the metropolitan area. Therefore , the effect of the ordinance 9 iJ not a suppression of the market for adult film fare . 10 To emphasize the zoning nature of a Young type ordinance , 11 the Supreme Court stated in Young, supra, at 62: 12 " . . .The mere fact that the commercial exploitation 13 of material protected by the First Amendment is subject to zoning and other licensing requirements , 14 is not a sufficient reason for invalidating these ordinances ." 15 The Court further stated at page 71-72 : 16 "Since what is ultimately at stake is nothing more 17 than a limitation on the place where adult films may be exhibited , even though the determination of 18 whether a particular film fits that characterization turns on the nature of its content, we conclude that 19 the City' s interest in the present and future character of its neighborhoods adequately supports 20 its classification of motion pictures . We hold that the zoning ordinances requiring that adult motion 21 picture theaters not be located within one thousand ( 1 , 000) feet of other regulated uses does not 22 violate the Equal Protection Clause of the Fourteenth Amendment . " 23 A similar result was reached in Northend Cinema v . 24 Seattle , supra, at page 719 , when the Court stated: 25 "We conclude the City' s paramount interest in, 26 protecting, preserving and improving the character! and quality of its residential neighborhoods is 27 sufficient to justify this nondiscriminatory zoning regulation of the location of adult movie theaters 28 WARREN&KELLOGG,P.S. PLAINTIFFS' TRIAL BRIEF ATTORNEYS ATLAW PAGE 4 70o SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTONI 98057 255-8678 r 1 We find no violation of First Amendment or equal 2 protection guarantees . " 3 The opinions in Young and Northend Cinema establish that 4 an ordinance such as that adopted by the City of Renton (a 5 Young style ordinance) is a lawful zoning ordinance passed 6 under the police power of the City. The operative language 7 and all but part of one definition in the Renton zoning 8 o dinances are identical to that previously approved by: the 9 c urts in Young and Northend Cinema. 10 The only language that the Renton ordinances conitain 11 which is in addition to the language approved in Young and 12 Northend Cinema is within the definition of "used" . The 13 definition of "used" incorporates the previously judicially 14 approved terms of "specified sexual activities" and "specified 15 a atomical areas" . The ordinances also include the additional 16 q alifying terms that the "use" must be a "continuing course 17 0 conduct. . . in a manner that appeals to a prurient interest . " 18 Without these terms there would be no issue before this Court. 19 T e theater operator has admitted all elements of the I 20 ordinance violation except the "continuous course of conduct" 21 and the "appeal to a prurient interest" . See Answer to 22 Request for Admission 12, et seq. attached as Attachment "D" . 23 As Judge McGovern noted on pages 4 and 5 of his Order 24 ( Attached hereto as Attachment "E" ) in the federal Court 25 action involving these ordinances : 26 . . . The subject matter of the film is given` detailed definition, but the ' continuous course of 27 conduct ' language is not . The ordinance in its essential features is virtually identical to the 28 ordinances in Young v. American Mini Theatres , 427 WARREN&KELLOGG,P.S. PLAINTIFFS' TRIAL BRIEF ATTORNEYS AT LAW PAGE 5 I 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 9SS_N,7R t U.S. 50 ( 1976) and Northend Cinema, Inc . v. City of 2 Seattle , 90 Wn. 2d 709 , 585 P.2d 1153 ( 1978) except that the word ' used' in describing ' adult motion 3 picture theaters' is defined with the ' continuing course of conduct' language . " 4 The federal court , continuing at page 7 , stated: 5 " . . .The Court concludes that there is not a 6 substantial intrusion upon first amendment . interests . . .Significant cited cases to the contrary 7 are distinguishable . . . " 8 The federal court then concluded , at page 12: 9 "Renton' s effort to preserve the quality of its , urban life by enacting an ordinance which regulates ; 10 adult theatre location is minimally intrusive of a particular category of protected expression 11 described in Young as being of 'a lesser magnitude than the interest in untrammeled political debate . ' 12 427 U. S. at 70. Renton' s effort under the ! circumstances is not unconstitutional under the ; 13 first amendment. Injunctive relief from enforcement of the ordinance would be improper . " 14 The Court is bound under the doctrine of res judicata or 15 1 collateral estoppel by Chief Judge McGovern's determination 16 that the ordinances are constitutional on their face and as 17 a plied to this particular land use. This Court must conclude 18 t at the continuous exhibition of sexually explicit Films 19 since January 20, 1983, constitutes a "continuous course of 20 conduct" . Therefore , the only task remaining for the Superior 21 Court is to determine the meaning of the term "appeals Ito a 22 prurient interest" as it relates to a zoning ordinance . 23 The Court , of course , may consider obscenity cases to 24 assist it in determining a definition of "appeal to a prurient 25 interest" . However , it is ' unnecessary to consider any other 26 elements of the definition of obscenity. 27 A. What is the legal definition of "appeal td 28 a prurient interest"? The legal definition of WARREN&KELLOGG,P.S. PLAINTIFFS' TRIAL BRIEF ATTORNEYS AT LAW PAGE 6 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 "appeal to a prurient interest" in the State of 2 Washington is taken from the leading case of State of Washington v. J-R Distributors , 82 Wn . 3 2d 584, 512 P.2d 1049 ( 1973) : "an itching or restless craving for the lewd, lascivious , and 4 licentious, in sexual matters" . at 648-649 . 5 The leading case in Washington discussing the elements of 6 obscenity is State v. J-R Distributors, Inc. , 82 Wn 2d 584, 7 512 P.2d 1049 ( 1973) . That case specifically defines the term 8 " ppeal to the prurient interest in sex" when it states at 9 p- ge 648 and page 649 : 10 "Does the allegedly obscene work . . . appeal to the prurient interest in sex ( does it produce an itching 11 or a restless craving for the lewd , licentious , and ; lascivious , in sexual matters) as viewed by the 12 average person applying contemporary state wide community standards . . . . " 13 T e Court further explained the language in parentheses as 14 follows in footnote 5: 15 "The parenthetical language employed merely restates 16 an authoritative definition of the term ' prurient ' : la : marked by restless craving; itching with 17 curiosity. . . b: having or easily susceptible to lascivious thoughts or desires . . . c: tending to 18 excite lasciviousness. . .Websters Third New International Dictionary 1829 ( 1971 ) ." at 649 . 19 T is is the definition of "appeal to a prurient interest" in 20 the State of Washington . 21 The Supreme Court of Arizona has approved the following 22 definition of "appeal to a prurient interest" in State v . 23 Bartenan, 591 P. 2d 546 (1973) , at 550-52: 24 "The term appeal to the prurient interest means toll 25 excite lustful thoughts , a shameful or morbid; interest in sex or nudity, arouse sexual desires orl 26 sexually impure thoughts , inclined to or disposed to, lewdness , having lustful ideas or desires . 27 "A prurient interest in sex is not the same as a 28 candid, wholesome , or healthy interest in sex .1 WARREN&KELLOGG,P.S. •1LAINTIFFS' TRIAL BRIEF ATTORNEYS AT LAW 1�AGE 7 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 Material does not appeal to the prurient interest 2 just because it deals with sex or shows nude bodies . Prurient interest is an unhealthy, unwholesome , 3 morbid , degrading or shameful interest in sex , a leering or longing interest . An appeal to the prurient interest is an appeal to sexual desire, not an appeal to sexual interest . An interest in sex is 5 normal, but if the material appeals to an abnormal interest in sex , it can appeal to the prurient 6 interest . . . " 7 In Miller v. California, 413 U.S. 15, at 24-25 (1973) the 8 Supreme Court , for the first time , announced a definitive test 9 fir determining obscenity: 10 "The basic guidelines for the trier of fact must be : (a) whether ' the average person, applying 11 contemporary community standards' would find that ; the work, taken as a whole, appeals to the prurient ' 12 interest , Kois v. Wisconsin, supra, at 230, 33 L.Ed 2d 312 , quoting Roth v . United States , supra , at1 13 489 , 1 L.Ed 2d 1498 ; (b) whether the work depicts or describes, in a patently offensive way, sexual , 14 conduct specifically defined by the applicable state law; and ( c ) whether the work , taken as a whole , 15 lacks serious literary, artistic , political , or scientific value . " 16 In addition , the court gave "a few plain examples" of the type 17 of "hard-core" sexual conduct which can be found to be 18 p- tently offensive under the state and federal law: 19 Representations or descriptions of ultimate; 20 sexual acts , normal or perverted , actual or simulated . 21 - Representations or descriptions of masturbation , excretory functions , and lewd 22 exhibition of the genitals . This test has not been changed . The only significant 23 24 e planation came from the Court in Smith v. United States;, 431 25 U . S. 291 , at 301 -02 , 309 ( 1977 ) , when it clarified that 26 "patent offensiveness" , as well as "prurient appeal" , were 27 questions of fact to be determined by the application of 28 contemporary community standards by the hypothetical average WARREN&KELLOGG,P.S. PLAINTIFFS' TRIAL BRIEF ATTORNEYS ATUIW 8 PAGE 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 person. The test was further explained in Pinkus v. United 2 States, 436 U.S. 293, at 298 , 300 ( 1978) , when the Court held 3 th t children are not be be considered part of the "community" 4 when applying contemporary standards but that "the community 5 includes all adults who constitute it , and a jury can consider 6 them all in determining relevant community standards" . Id . , 7 at 300. 8 It was in footnote 20 of Roth v. U. S. , 354 U. S. 476 , at 9 487 (1957) , that the Court stated that appeal to a prurient 10 interest meant "having a tendency to excite lustful thoughts" . 11 In Mishkin v. New York, 383 U.S. 502, at 508 ( 1966 ) ; Hamling 12 v. United States , 418 U.S. 87, at 127-29 ( 1974) ; and Pinkus , 13 supra , at 301 -03 , the Court made it clear that when the 14 materials are intended to stimulate a specific deviant group 15 o1 a specific deviant sexual interest , then the jury can 16 decide whether the average person would find the appeal of the 17 matter to the "general" prurient interest or the deviant 18 prurient interest . 19 The Supreme Court has used various descriptive words to 20 illustrate what prurience may mean. Material can be prurient 21 w en it either attracts or repulses , as stated in Mishkin, at 22 � 5 8 . Attractively erotic material , even to the average �3 p rson, has been held obscene . Ginzburg v. United States , 383 24 U.S. 463 ( 1966) , Hamling, supra. Bizzare material, reputlsive 25 t the average person , has also been found obscene. Mishkin , 26 spra; Ward v. Illinois , 431 U.S. 767 ( 1977) . 27 28 WARREN&KELLOGG,P.S. PLAINTIFFS' TRIAL BRIEF ATTORNEYS AT LAW PAGE 9 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 t 1 The Court later characterized this trait in Ginzburg v. 2 United States , 383 U.S. 463 , at 471 (1966) , as "the widespread 3 weakness for titillation by pornography" . 4 The Court used the words "lewd" and "lascivious" in Roth , 5 footnote 20, and also gave approval to the Model Penal Code' s 6 us of "shameful or morbid" . One of the best analyses of this 7 mixture of "tendency to arouse lustful thoughts" and the 8 appeal to a "shameful or morbid interest" is set out in State 9 v. Bartanen , 591 P.2d 546 , at 550-52 (Supreme Court , Arizona, 10 En Banc. 1979) . The trial court charged the jury : 11 "The term appeal to the prurient interest means to 12 excite lustful thoughts , a shameful or morbid interest in sex or nudity, arouse sexual desires or 13 sexually impure thoughts, inclined to or disposed , to lewdness , having lustful ideas or desires. " 14 The Arizona Supreme Court upheld and approved this 15 d-finition as a synthesis of the "appeal" and the "tendency" 16 f nctions of prurience . As stated by the Court, at 552: 17 "The trial court herein used both the so-called 18 ' appeal' approach to obscenity, that is , does the material appeal to a morbid, shameful , disgusting , 19 unhealthy, unwholesome , degrading interest in sex , as well as a ' tendency' of the material to excite 20 ' lustful ideas or desires' . 21 "We believe the trial court correctly instructed the jury. " 22 However , as pointed out in Mishkin , supra , at 508 , 23 Hamling, supra, at 128-30, and Pinkus , supra, at 301-03, it is 24 proper , when the evidence calls for it , to allow the jury to 25 measure the material "by its appeal to the prurient 'interest 26 27 28 WARREN&KELLOGG,P.S. PI AINTIFFS' TRIAL BRIEF ATTORNEYS AT LAW PAGE 10 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 not onlyof the average person but also of a clearly defined g 2 deviant group" . Hamling, supra, at 128. 3 In Hamling, the Court noted that : 4 "Petitioners appear to argue that if some of the 5 material appeals to the prurient interest of sexual deviants while other parts appeal to the prurient 6 interest of the average person, a general finding that the material appeals to a prurient interest in 7 sex is somehow precluded ." 8 The Court relied on Mishkin in rejecting this contention , and 9 stated in Hamling , supra at 129 : 10 The District Court's instruction was consistent with this statement in Mishkin. The jury was instructed 11 that it must find that the materials as a whole appealed generally to a prurient interest in sex. 12 In making that determination, the jury was properly instructed that it should measure the prurient 13 appeal of the materials as to all groups . 14 Therefore , the definition of "appeal to a prurient 15 interest" as laid down by our Supreme Court in J-R 16 Distributors is in accord with the decisions of the United 17 S ates Supreme Court and the weight of authority. The Court 18 should adopt for the purpose of testing the depictions of 19 " pecified sexual activities" and "specified anatomical areas" 20 a a land use at the Renton Theater , the following definition 21 of "appeal to a prurient interest" : "An itching or restless 22 craving for the lewd , licentious , and lascivious , in sexual 23 mrtters . " State v. J-R Distributors , supra, at 648-649. The C'•urt mustguard against the argument which maybe advanced by 24 g g 25 tie Defendants that the proper definition of "appeal to a 26 p urient interest" must involve only the elements of shame and 27 morbidity --- particularly if the element of morbidity is 28 mis-focused upon the necessity for a "sickening" tendency . WARREN&KELLOGG,P.S. PLAINTIFFS' TRIAL BRIEF ATTORNEYS AT LAW PAGE 11 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 f � 1 This approach is far too narrow and does not fairly capture 2 th- essence of "appeal to a prurient interest" under our State 3 la . " 4 B. What role do "contemporary community standards" 5 play in the determination of "appeal to a prurient interest"? The contemporary community 6 standards , as understood by the jury' s perception of the average member of the 7 community of the State of Washington, is the "yardstick" against which the prurient appeal 8 of the Defendant's land use must be measured . 9 In order to provide some objectivity to obscenity law, 10 and avoid the problems with the old "Hicklin Rule" of judging 11 obscenity by its impact on the young or sensitive, the Court 12 h s carefully chosen its wording . Miller , supra , at 24 , 13 s ated that the guideline is "whether 'the average person , 14 applying contemporary community standards' would find that the 15 work, taken as a whole, appeals to the prurient interest ." 16 le also Roth , supra , at 489 . Miller , supra , at 30 , also 17 said : "Triers of fact are asked to decide whether ' the 18 average person, applying contemporary community standards' 19 w uld consider certain materials ' prurient' . " 20 It is important to note that the Court did not ,say that 21 the jury was to decide whether the matter appealed to the 22 p urient interest of the average person applying contemporary 23 community standards . Rather the jury must determine whether 24 the average person (if the average person applied those 25 standards) would find the appeal to be to a prurient interest . 26 T e question is whether the appeal of the material 'would be �7 found to be an appeal to a generally erotic or shameful 28 WARREN&KELLOGG,P.S. PLAINTIFFS' TRIAL BRIEF ATTORNEYS AT LAW PAGE 12 700 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 f i 1 interest in sex , whether that interest was that of an average 2 person or that of a deviant class . 3 This subtle distinction is not a harmless one . If a 4 court were to charge a jury that they must find the matter 5 obscene only when it appeals to or excites a shameful or 6 morbid interest in an average person (or in the jury) , then 7 confusion would result because obscene material would, not 8 appeal to an average person . 9 Smith, supra, at 301-02, made clear that prurient appeal 10 a d patent offensiveness were to be judged by "the average 11 person applying contemporary community standards" . In Pinkus , 12 supra , at 300-01 , the Court stated : 13 Cautionary instructions to avoid subjective personal 14 and private views in determining community standards can do no more than tell the individual juror that 15 in evaluating the hypothetical "average person" he is to determine the collective view of the 16 community, as best as it can be done . 17 Pinkus , supra , at 298 , 300, held that it was the adult 18 community which was to be considered. Many cases have held 19 t1at obscenity is not to be determined by its effect on a 20 "sensitive" , "insensitive" , "prudish" or "tolerant" person , 21 but on the "average" person who comprises the synthesis of the 22 entire adult community, including those people. See Pinkus , 23 supra, at 304, Miller , supra, at 30, Roth, supra , at 489-90 . 24 As more fully set out below, the Supreme Court' s language 25 in Roth, Mishkin, and Miller require the jury to determine 26 w ether the average person would consider certain material 27 prurient , i.e . , whether that is the intended "appeal" of the 28 work. In applying community standards , this average perison' s WARREN&KELLOGG,P.S. PLAINTIFFS' TRIAL BRIEF ATTORNEYS AT LAW PAGE 13 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-R67R I 1 vi wpoint is applicable to both prurience and offensiveness . 2 It is not unlike deciding how the average person would measure 3 th7 appeal of the material if the jury handed the average 4 person a hypothetical yardstick and the "yardstick" ; was 5 contemporary community standards . As stated in Smith v. U1.S. , 6 suprra , at 302 : "community standards simply provide the 7 measure against which the jury decides the questions of appeal 8 to prurient interest and patent offensiveness" . 9 It is appropriate to allow jurors and courts to construct 10 th' s community standard "yardstick" out of their own knowledge 11 of the views on candor and decency of their neighbors, in the 12 co munity. This is analogous to the use of character evidence 13 in other cases , where a character witness testifies not to his 14 opinion of the defendant's veracity and reputation , but to the 15 witness's knowledge and familiarity with the defendant' s 16 reputation for veracity which exists in others in the 17 community as a whole. The witness is not to say, "I know he' s 18 an honest man" ; the witness is permitted only to say, 19 "Everyone knows he' s an honest man." 20 The community from which the standard is measured is the 21 entire State of Washington. J-R Distributors , at 609-610 22 We agree with the dissent of former Chief 23 Justice Warren in Jacobellis v. Ohio , 378 U.S. 184, 200, 12 L.Ed 2d 793, 84 S. Ct. 1676 ( 1964) , quoted 24 with approval in Miller v. California, supra, at 32. 25 "It is my belief that when the Court said in Roth that obscenity is to be defined by reference to 26 ' community standards , ' it meant community standards -- not a national standard , as is sometimes argued . 27 I believe that there is no provable 'national standard' . . . (Italics ours . ) " 28 WARREN&KELLOGG,P.S. PLAINTIFFS' TRIAL BRIEF ATTORNEYS AT LAW PAGE 14 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 i 1 . . . Thus, we hold that as used in Roth and Miller 2 the ' contemporary community standard' to be applied by the average person is the contemporary community 3 standard of the state in which the question of obscenity is to be tested by the trier of fact . " 4 Therefore , the "prurient appeal" of the Defendant' s land 5 use must be measured against the "yardstick" of the 6 contemporary community standard as understood by the jury' s 7 perception of the average member of the community of the State 8 of Washington. 9 C. Would expert testimony be of assistance to the 10 trier of fact in ascertaining the "contemporary community standards"? Expert testimony is 11 proper only touching upon matters of which the lay person has no knowledge . Contemporary 12 community standards is by definition within the unique understanding of the jury. Expert 13 testimony on the issue of contemporary community standards can only erode the , 14 confidence of the jury in its understanding of the standards of its community . 15 The Supreme Court in Smith , supra, at 302, repeated the 16 1-nguage of Hamling v. United States , 418 U.S. 87, at 104-05 17 ( 1974) , where the Court held : 18 A juror is entitled to draw on his own knowledge of 19 the views of the average person in the community' or vicinage from which he comes for making the required 20 determination , just as he is entitled to draw on his knowledge of the propensities of a "reasonable" 21 person in other areas of the law. 22 Our emphasis is • on the ability of the juror' to ascertain the sense of the "average person , applying �3 contemporary community standards" without the benefit of expert evidence . 24 Therefore , the Court should not hesitate to exclude 25 expert testimony regarding the "contemporary community 26 standard" . ' Knowledge of the particulars of this standard is 27 within the exclusive purview of the jury . Expert testimony 28 WARREN&KELLOGG,P.S. PLAINTIFFS' TRIAL BRIEF ATTORNEYS AT LAW PAGE 15 moo SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 cannot add to the jury' s peculiar knowledge . It can my 2 serve to prejudice and confuse the jury by attempting to erode 3 th jury' s sense of its understanding of its communi y' s 4 st ndard . 1 5 In Paris Adult Theatre v. Slaton , 431 U . S . 49 , at 56 6 ( 1 73) , the Court held that once the allegedly obscene 7 ma erial is placed in evidence , the jury can decide all facets 8 of the test on the application of their own knowledge, without 9 th- need for expert testimony. As stated by the Court at sage . 10 56: 11 Nor was it error to fail to require "expert" 12 affirmative evidence that the materials were obscene when the materials themselves were actually placed 13 in evidence . . . . the films , obviously , are the best evidence of what they represent . 14 The Court expanded on this concept in Kaplan v. 15 California, 413 U .S. 115 , at 121 ( 1973) : 16 We also reject in Paris Adult Theatre I v . Slaton, 17 . . .any constitutional need for "expert" testimony on behalf of the prosecution , or for any other 18 ancillary evidence of obscenity, once the allegedly obscene material itself is placed in evidence . 19 Paris Adult Theatre I, 413 U. S. at 56, 37 L.Ed 2d; at 456 . The defense should be free to introduce 20 appropriate expert testimony, see Smith v . California, 361 U. S. 147, 164-65 , 4 L.Ed 2d 205, 80 21 S. Ct . 215 ( 1959) (Frankfurter, J. , concurring) , but in "the cases in which this Court has decided, 22 obscenity questions since Roth, it has regarded the material as sufficient in themselves for the 23 determination of the question . " Ginzburg v. United States, 383 U.S. 463, 465, 16 L.Ed 2d 31 , 66 S. Ct . 24 942 ( 1966 ) . See United States v. Groner , 479 F.2d 577, 479-586 (CA 5 1973) . 25 The purpose and misuse of expert testimony was mentioned 26 by the Court in Paris Adult Theatre , supra, at 56, footnote 6 : 27 This is not a subject that lends itself to the 28 traditional use of expert testimony. Such testimony WARREN&KELLOGG,P.S. PLAINTIFFS' TRIAL BRIEF ATTORNEYS AT LAW P GE 16 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTOr 98057 255-8678 1 is usually admitted for the purpose of explaining to 2 lay jurors what they otherwise could not understand . . .No such assistance is needed by jurors 3 in obscenity cases ; indeed the "expert witness" ' practices employed in these cases have often made a 4 mockery out of the otherwise sound concept of expert testimony. . . "Simply stated , hard core pornography. . . 5 can and does speak for itself ." . . .We reserve judgment , however, on the extreme case , not 6 presented here , where contested materials are directed at such a bizarre deviant group that the 7 experience of the trier of fact would be plainly inadequate to judge whether the material appeals to 8 the prurient interest . . . . (Citations omitted) . 9 The limitations on the admissibility of evidence lie in 10 the broad discretion of the trial court , as evidenced by the 11 many rulings upheld by the Court excluding comparables , expert 12 witnesses , and other evidence in Hamling v. U.S. , supra,, at 13 124-27. See also Long v. 130 Market Street , 440 A.2d 517 , 521 14 (Superior Ct . , Pa . , 1982) , where the court refused testimony 15 of an "expert" as to his knowledge of availability of ' similar 16 pornography elsewhere in the state. 17 Expert testimony cannot add to the jury' s collective 18 k owledge of the contemporary community standard. Use of 19 n tional "experts" would be particularly inappropriate because 20 of the tendency to usurp the province of the jury. 21 D . Is injunctive relief appropriate to enjoin further violation of a zoning ordinance by a 22 nuisance per se? Injunctive relief is appropriate to enjoin a violation of a zoning �3 ordinance which declares the use to be a public nuisance per se . 24 Defendants Playtime and Kukio in their Answer deny that 25 an injunction is an appropriate remedy in this case . The 26 leading authority in Washington is to the contrary . See 27 28 WARREN&KELLOGG,P.S. PLAINTIFFS' TRIAL BRIEF ATTORNEYS AT LAW PAGE 17 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 Mercer Island v. Steinmann, 9 Wn. App. 479, 485 , 513 P.2d 80 11 2 ( 19739 : 3 "Injunctive relief is available against zoning violations which are declared by ordinance to be 4 nuisances . Mercer Island v . Kaltenback, supra ; Shields v. Spokane School Dist . , 81 , 31 Wn. 2d 247 , 5 196 P . 2d 352 ( 1948) ; Park v. Stolzheise, 24 Wn . 2d 781 , 167 P . 2d 412 ( 1946 ) ; Annot . , 129 A . L . R . 85 6 ( 1940) . 7 he City of Renton has declared in its zoning ordinances 8 that a violation of the ordinance is a nuisance per se. See 9 Ordin nce Nos . 3629 and 3637 attached as Attachment "C" . Th7 10 City Council of Renton also enacted Resolution No . 2508 11 declaring that the continued use of the Renton Theater as an 12 adult motion picture theater is a public nuisance under the 13 ordinance controlling location of adult motion picture N 14 theaters . See copy of Resolution No. 2508 attached hereto as 15 Attachment "F" . Those declarations clearly bring this case 16 within the rule set forth in Mercer Island v . Steinmann , 17 supra. As such, injunctive relief is available and 18 appropriate as a remedy in this case. 19 E. What is burden of proof in this action? The City Council has made a determination that a 20 particular land use is a nuisance per se . The Defendants' burden of proof is to show that the 21 characterization by the City of the use as a nuisance per se is arbitrary and capricious . 22 The City's burden of proof is to establish by a preponderance of the evidence that the Renton 23 Theater was operated as an "adult motion , picture theater" in violation of the zoning 24 regulation. 25 The Defendants will undoubtedly urge this Court that the 26 City f Renton has an extremely high burden of proof it this 27 case . That would be true if this case was one involving an 28 PLAIN IFFS' TRIAL BRIEF WARREN&KELLOGG'P.S. ATTORNEYS T LAW PAGE 8 100 SO. ECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 alleged interference with First Amendment rights . The City 2 would have to prove a compelling public interest to justify an 3 invasion of First Amendment rights . The City would further 4 bear the burden of showing that the method chosen to deal with 5 the problem at hand was necessary and that its effect on 6 protected rights was only incidental. 7 owever, the United States Supreme Court in Young v 8 Amerian Mini Theaters , supra, has decided that Young style 9 ordinances meet those burdens. 10 "In short , apart from the fact that the ordinances treat adult theaters differently from other theaters 11 and the fact that the classification is predicated do the content of materials shown in the respective 12 theaters , the regulation of the place where such Films may be exhibited does not offend the First 13 mendment . We turn , therefore , to the question hether the classification is consistent with the 14 qual protection clause ." at 62 . 15 ' . . . We hold that the zoning ordinances requiring that the adult motion pictures not be located within 16 1 ,000 feet of two (2) other regulated uses does not violate the Equal Protection Clause of the 17 Fourteenth Amendment. " at 72. 18 ead together , Young has held that ordinances similar t4 19 the Renton zoning ordinance do not violate the provisions of 20 the First Amendment regarding freedom of speech , and that 21 "time , place , manner" restrictions making adult theater a 22 public nuisance per se are constitutional . 23 he Young decision was then adopted by Northend Cinema v. 24 Seatt e , supra, at 719 : teog dep reh vinCgi tyansd imarmvingt thn techeasta ctiern25 "Wreo 26 and quality of its residential neighborhoods is sufficient to justify this nondiscriminatory zoning 27 regulation of the location of adult movie theaters . 28 PLAINTIFFS' TRIAL BRIEF WARREN&KELLOGG,P.S. PAGE 19 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 1 We find no violation of First Amendment or equal protection guarantees ." 2 Since the City of Renton has established that its 3 ordin nce is constitutional under the test of Young, supra , 4 I and Northend Cinema, supra, this case no longer involves the 5 heavy burden of proof that 'accompanies a First Amendment case : 6 Rather this case then is transformed into a simple zoning 7 enfor ement action. Once this court begins to inquire into 8 the zoning powers of the City its inquiry is much more limited 9 in scope because of the overriding importance of the zoning 10 power and because zoning power is primarily a legislative 11 function . As was stated in Young v. American Mini Theaters ; 12 supra, at page 80: 13 ' . .it also is undeniable that zoning, when used to 14 Rreserve the character of specific areas of a city , its perhaps ' the most essential function performed by 15 local government , for it is one of the primary means by which we protect that sometimes difficult to 16 define concept of quality of life . ' Village of 1 Belle Terre v. Boraas , 416 U.S. at 13, 94 S.Ct. , . at 17 1543 (Marshall, J. , dissenting) . " 18 As part of its legislative process , the City of Renton 19 has determined that location of an "adult motion picture 1 20 theater" within 1 ,000 feet of certian family-oriented land 21 uses and zoning classifications constitutes a nuisance per se . 22 The C' ty Council further has found , by resolution , tha 23 Playt'me Theatres, Inc. , by its continued showing of sexually 24 explicit motion pictures at the Renton Theater, has violated 25 that ity Ordinance and is therefore a public nuisance per se 26 which should be abated by de novo judicial process . 27 28 PLAIN IFFS' TRIAL BRIEF WARREN&KELLOGG,P.S. PAGE 20 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057I 255-8678 1 ecause of the Doctrine of Separation of Powers , 11the 2 Court must give great deference to the determinations of, the 3 city ith respect to the classification as nuisances per se 4 the 1 cation of "adult motion picture theaters" in proximit 5 to fa ily-oriented land uses and zones . Lillions v. Gibbs', 47 6 Wn . 2 629 , 632-33 , 289 P . 2d 203 ( 1955) . There the Cour; 7 state : 8 "When a board of county commissioners acts pursuant to a statute relating to zoning, it is a legislative 9 body exercising legislative powers . See State ex '11 jel . Lyon v. Board of County Com' rs of Pierce 10 runty., 31 Wn. 2d 366 , 196 P.2d 997 ( 1948) . In the bsence of fraud, this court will not inquire into 11 the motives which actuated the local legislative ) body to enact , or fail to enact , an ordinance or 12 resolution . See Cornelius v . Seattle , 123 Wash . 13 W550, 559, 213 Pac. 17 ( 1923) ; Clise v. Seattle , 153 ' ash . 661 , 666 , 280 Pac . 80 ( 1929 ) ; Goebel v . Elliott , 178 Wash. 444, 447, 35 P.2d 44 ( 1934) . The 14 riotives of the board in rejecting the commission' s ,' recommendation are not pertinent. 15 It is well established that courtswill not review, 16 xcept for clear abuse , the discretion vested in ' ublic officers, Metzger v. Quick, 46 Wn. 2d 477 , 17 I83, 282 P.2d 812 ( 1955) , and cases cited. If the action of the board , in and of itself, was not 18 rbitary and capricious, it follows that this court I ill not interfere . 19 the Court' s function, in effect is to insure that the due 20 proce s rights of the Defendants have not been violated . The 21 court must determine whether the City' s legislative 22 determination is arbitrary and capricious and whether the 23 oper tions of the Renton Theater do in fact violate the 24 locat' onal restrictions of the zoning ordinance, i .e . , whether 25 the land use of exhibiting these specific sexually explicit 26 films is done in a manner to appeal to a prurient interest . 27 That has always been the Court' s function in zoning cases. 28 PLAINTIFFS' TRIAL BRIEF WARREN&KELLOGG,P.S. PAGE 1 ATTORNEYS AT LA 100 SO.SECOND ST.,P.O. IOX 626 RENTON,WASHINGTO 98057 255-8678 I 1 That function should not be expanded in this case , simply 2 becau .e the Defendants claim First Amendment rights , 3 parti ularly since that argument has been rejected by both the 4 Unite* States Supreme Court and the Supreme Court of the State 5 of Washington. 6 An excellent discussion of the Court' s power in nuisance 7 cases is contained in the authoritative work of McQuillin, The 8 Law of Municipal Corporations, Third Addition ( 1978 revised 9 Volume) Callaghan and Company. McQuillin states under Section 10 24.84, at page 588: 11 "A municipal determination of the existence of a nuisance in fact is only persuasive and not 12 conclusive on the courts , it generally is ruled . Undoubtedly, an arbitrary declaration as to a 13 nuisance , such as that the use of particular property constitutes a nuisance, when such a 14 determination is without basis or, even worse , is a bare pretense, is not conclusive on the courts . But 15 with respect to nuisances per se or at common law and those which are nuisances under statutory 16 provision , and with respect to things reasonably, regarded as nuisances although their character as 17 such is subject to a reasonable difference of view, the determination by a municipality of the existence 18 of a nuisance or of what constitutes a nuisance , where the determination is within municipal power, 19 is conclusive on the courts . In other words , under the view that nuisances are to be classified on a 20 three-fold basis, to wit : ( 1 ) nuisances per se , (2) nuisances under the facts , and ( 3 ) nuisances by 21 nature although their nature as such is subject to reasonable difference of opinion, the power granted, 22 by law to governing bodies of municipal corporations' to declare what shall be nuisances and to abate them 23 is usually sufficient to authorize such bodies to denounce conclusively those things falling within 24 the' first and third of these classes to be nuisances, but as to those things falling within the 25 second class , the power possessed is only to declare such pf them to be nuisances as are in fact so. . . " 26 This Court must give great deference and great weight to 27 the City Council 's legislative determinations under all 28 PLAINTIFFS' TRIAL BRIEF WARREN&KELLOGG,P.S. PAGE 22 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 established court rules and under the Separation of Powers 2 Doctr ' ne . Once the City Ordinances have been found to be 3 constitutional , the First Amendment protections are no longer 4 at isue . 5 The City' s burden of proof is simply to establish by a 6 preponderance of the evidence that the Renton Theater has been 7 operated as an "adult motion picture theater" in violation of 8 the zoning regulations relating to the location of "adult 9 motion picture theaters" . People of the State of California 10 v. Friangadakis , 184 Cal. App. 2d 540, 7 Cal. Rptr. 776, 782; 11 People ex rel Sorenson v. Randolph, Cal.. App. 3d , 160 12 Cal. Rptr. 60 , 72. 13 DATED: October 10, 1983 . 14 15 Respectfully submitted , 16 17 LAWRENCE J. WARREN 18 19 20 1 21 22 23 24 25 , 26 27 28 PLAIT TIFFS' TRIAL BRIEF WARREN&KELLOGG,P.S. ATTORNEYS AT LAW PAGE 2 3 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 9CC_RG7R 1 gz.. ,�i„. 4 -.,,c,• - t,�•b.+G •y .-�.. -s Y _ ::F.�E��+`i�y.;..k w- -• •—••�1'::r �b':s-, f. Y 'r` .G• aY :4'Y,,.vjt (•,4� . ` s. �4 ., r�'iIV- ' i •:• J k Y , 40s• "- •��c r,�r• C'•{ - 4r« L'"b y„ 'x`� # •,� M1 ,moo• yla ,� -+� •?r '��� i T n "�1� F� ..�`ti r. �iC�'rt ",�'. S'•-� .t +k; :�+ .�..'� ..... . t -•, Cr i •'Sk #a. -,:y.,rw .'" ;� :,w'' -1'"h'.-� i�3t :�aa' pd :*d :. .,c.,*"Fr .w • .4r..,} 4 4., r,i - -. 4. I 2444 96 SUPREME COURT REPORTER ' 427 U.S. 52 427 Us • "regulated uses" or within 500 feet of a ified Anatomical Areas,'"1 it is .an adult 1 could r: residential area.' The term "regulated establishment.' I two oth'i • uses" includes 10 different kinds of estab- ,••The 1972 ordinances were amendments to 1ci } I respons , lishments in addition to adult theaters.' an "Anti-Skid Row Ordinance" which had : 1 jCs numbers s� The classification of a theater as "adult" been adopted 10 years earlier. At that time opinion i • J-- -L the Detroit Common Council made a find- i , I experts is expressly predicated on the character of ing that some uses of property are especial- 1 , location the motion pictures which it exhibits. If ly injurious to a neighborhood when they same nE the theater is, used to present "material are concentrated in limited areas.' The de- desirable distinguished or characterized by an empha- cision to add adult motion picture theaters I adverse' sis on matter depicting, describing or relat- and.adult.book stores to the list of business- j I in ing to'Specified Sexual Activities'or Spec- es which, apart from a special waiver? I 'Spand end 2. The District Court held that the original form on matter depicting, describing or relating to E i move el of the 500-foot restriction was invalid because 'Specified Sexual Activities' or'Specified Ana- Res,. • • ' it was measuiled from"any building containing tomical Areas,'(as defined below),or an estab- I adult . i a residential, dwelling or rooming unit." The lishment with a segment or.section devoted to • city did not appeal from that Wiling,but adopt- the sale or display of•such material. ' , Nortow ed an amendment prohibiting the operation of "Adult Motion Picture Theater began tt an adult theater within 500 feet of any area "An.enclosed building with a capacity.of 50 The o ' • zoned for residential use. The amended re- -or more persons used for presenting material station striction is ndt directly challenged in this alga- distinguished or characterized by an emphasis I tion. on matter depicting, describing or.relating to I theater , 3. In addition to adult motionpicture theaters 'Specified Sexual Activities' or 'Specified Ana- I I pancy s tomical Areas,'(as.defined below) for,observa- I films. and"mini"tl eaters,which contain less than 50 tion by patrons therein. 1,000 f.i seats, the regulated uses include adult book- "Adult Mini Motion Picture Theater stores; cabaets (group "D"); establishments "An enclosed building with a capacity for I the Pu f for the sale f beer or intoxicating liquor for less than 50 persons.used for presenting mate- I ..b) I consumption on the premises; hotels or mo- rial distinguished or characterized by an em- I tels; pawnshops; pool or billiard halls; public phasis on matter depicting,describing or relat- I enco • lodging hous6s; secondhand stores; shoeshine ing to'Specified Sexual Activities'or'Specified I I area. • parlors; and taxi dance halls. Anatomical Areas,' (as defined below), for ob- I I „c) • nervation by patrons therein." ; ' regula 4. These terms are defined as follows: I any p • "For the Purpose of this Section, 'Specified 6. Section 66.000 of the Official Zoning Ordi- nor • • Sexual Actil)IIities'is defined as: nance (1972)recited: :• ' renew "1. Human Genitals in a state of sexual "in the.development and execution of this :I I "d) ' • ; stimulation or arousal; • Ordinance,it is recognized that there are some 4, I dinar. • .i j "2. Acts I f human masturbation, sexual in- •uses which, because of their very nature, are I 8. A ,• tercourse or sodomy; recognized as having serious objectionable op- to the "3. Fondling or other erotic touching of hu- erational characteristics,particularly when sev- since man genital, pubic region, buttock or female eral of.them are concentrated under certain 1 rum,, breast. .circumstances.thereby.having a deleterious ef- fect upon the adjacent areas. Special 25, lt "And'Specified Anatomical Areas'is defined Po dl pet' regula- I adult as: tion of these uses is necessary to insure that nesses "1. Less than completely and opaquely coy- these adverse effects will not contribute to-the • : ered: (a)h man genitals,pubic region,(b)but- blighting or downgrading.of the surrounding ,I I 9. Res• took,and(c female breast below a point inane- neighborhood. These,special regulations are I , 42 U.' •diately abo a the top of the areola; and itemized in this section. The primary control I I the f= "2. Human male genitals in a discernibly or regulation is for the.purpose preventing a I turgid state, even if completely and opaquely concentration of.these:uses in any one area(i. 10. :• covered." e. not more than two such uses within one filed jc .. 5. There are three types of adult establishments thousand feet of each other which would create bow• such adverse effects). —bookstores, motion picture theaters, and { " i; I 363 (E I • mini motio picture theaters—defined respec- 7. The ordinance authorizes the Zoning Com- ;I• 11. "W Lively as fo lows: mission to waive the 1,000-foot restriction if it !i• for ads • "Adult k Store finds: I legitin "An esta Iishment having as a substantial or "a) That the proposed use will not be con- I I is not • significant portion of its stock in trade, books, trary to the public interest or injurious to near- "No . magazines,and other periodicals which are dis- by properties, and.that the spirit and-intent of I for th; tinguished or characterized by their emphasis this Ordinance will be observed. Detroi I I 06 I I 1 I nI!"C.,:whr•� �.s. _. ..�:._�:.-1' - -�' - _,--t"t' , `€ I =r -' `' ciY�1tVL Y;t..X.r e' ,• 07 f � .� .�r -i,,,%i� ".��''?v !'`3 C'g.• 9.8i8Ik ' ..'1.s✓• Z ':7k 1 •., . . .,. • Tr"' ,•'. ;" s 4. _ •+u. . .' , "•�j,aY.''' <q 4.-i•g,-4-,{".��'. ,"...+rt , _ ?„ "�}ry f q;.- s 3r*a" t $. 'v '*-' ( • }, {cM � t:z E.f t ^ �h- w 1Ytt, S t I 1-:4kyi''1 K. •. «•., 4.`„ I¢e •t i..., r}s�..•s 'd=.* 0, :_. ieVtr k.f.• )' ` 1. 1 rt�a r • e•3? 't -- ;. ' a al.. .� 'tt;" = iit'' `,ti_ ,`Q l �y t fll -. - 'a.teic ig.L„i4' -'•?.. xrz r f .ti� 'ti • ' .-4, r 7•.-.+ � r '; t•: ILi< i w. ., i34,taM'.. 1. - - .. _ ,' i . •• t i • r i ,ii r � : t f 7" • '` 'y, f y z u ,. i ..•Z • waru*.. r �' L , *• •• 1•,• ` 1, " + t •, , ; 6c� y ,ry i dSte t e 7. i t` i .7' `•T t +.-'' .- 8 ,X fi i 4, { ` }w. .... �t _.,,-if y,+ je +, ix, 'jt - • '.',... _f' 'i irf. .Tk�ka7 't .:r t.^..""A L n i. #17v,?,i71•1.*4 ,k:kit . • .#R s i EATTLE Oct. 1978 Oct 1978 NORTHEND CINEMA v.SEATTLE 715 1153 90 Wn-2d 709,585 P.2d 1153 I 1 •ne reasons discussed Supreme Court. See Housing Authority v. Saylors, 87� itutionality of the cre- Wn.2d 732, 739, 557 P.2d 321 (1976). motion picture theater A. Vagueness Appellants' first argument is that the definition of Aduli Motion Picture Theater (set out in the margin)3 is so vague nal arguments against as to deny them due process of law. They do not attack the. I included definitions of "Specified Sexual Activities" orj i " they claim the defini- "Specified Anatomical Areas," but argue they are not; ade- 3ter iS so vague as to • I quately informed of (1) how much "depicting, describing, ' d, they claim the con- ed zones is an imper- or relating" to the specified areas is necessary before a film i is "distinguished or characterized by an emphasis" thereon; ed First Amendment sification of theaters (2) what "depicting, describing or relating to" means; or i wn there violates First (3) how frequently such films must be shown before a� E building is "used" for the purpose. [2] We note at the outset that the definition of adult IS we find we find the decision theater use contained in the Seattle ordinance is identical C in Yog v. American in Youn in all relevant respects to the uphelddefinition4 i. Ed.d. 2d 2d 310, 96 S. Ct. g is Young) diapositive. Furthermore, as in Young, the complaining theaters show F. adult films almost exclusively. They do not claim they reation and definition ntical Iln all relevant 3ordinance No. 105565 Definition of Adult Motion Picture Theater I 3 also approved regula- (§ 1) t =._ 1 appellants argue the An enclosed building used for presenting motion picture films distinguished ' troit ordinance those or characterized by an emphasis on matter depicting, describing or relating to - ' 'Specified Sexual Activities' or 'Specified'Anatomical Areas', as hereinafter a `, it significance, as diS- defined,for observation by patrons therein: construe the provi- "Specified Sexual Activities" I it dentically with the '1.Human genitals in a state of sexual stimulation or arousal; '2.Acts of human masturbation,sexual intercourse or sodomy; ' I constitution. Darrin '3.Fondling or other erotic touching of human genitals,pubic region,buttock • z.n ''A 882 (1975). In this or female breast. . f Young persuasive. It ''Specified Anatomical Areas' important interest of .1 Less than completely and opaquely covered: '(a)human genitals, pubic region, (b)buttock, and (c)female breast below a • Dwer to protect city point immediately above the top of the areola;and while (preserving the "2.Human male genitals in a discernibly turgid state, even if completely and Dnal provisions were opaquely covered.' nd it appropriate to "Adult Motion Picture Theater , 'An enclosed building with a capacityof 50 or more in our state constitu- persons used for present- tion as (that given the ing material distinguished or characterized by an emphasis on matter depicting, ; g describing or relating to 'Specified Sexual Activities' or 'Specified Anatomical the United States 1 1 ''`e„:- :,,�'''.1tr 04,.!-r `1 : ,.+`,,t;,o•"-1, ,r-F fir.w72.at.6,- .w:.yt .,n ' toy. s;S,zi`,�'�Zn,P ,t...;�- n'i,,.a'.,,.s... f;.;7 'Y`^- �' ' -1 + ' t: t .` K;. •, t Ls{s- j{ ,� • ' ''. f "•.. • - f . ' ♦ .4} � • M _ • =:. •• y:~ y ''. d} —, j� 1R=^ i ': - t, *, s . T✓ .e"`¢i c r•' +",^'t-Ftt `-.t•a ,,,;fir �y rw,� y{r .-••• t •,.•..yu�y fi 5a...{w j :. E.,f*. l , -•r P x ;..:''- y. ' 3 '•tii ,! ss•- } L'' ,'4 tea•,^-.at' { t •`:t*b". , .$--b' " :' �Z}'•`''1'.:4- s�•..- •0,--• tyry:i:r\:•tS ; �. ✓k.•}- 'it';' \ "e-"- :•',.e as.i. .,,...y^thr."?"..'+'m a a 5`-471. ;:., ' ""a.1.�#. t ,..T.— s ..Aar••.. �!..,-t".:t.t"F'F. . c • �+ ,t .i .1' F i'._. e:T..�,__ ,\ _ .+.L •.f wt • 7+. , .. . r . .i...f j� .. • ..2. . .....4.•1 cv..n C y+0 s .•t�i-.-•'•!.~��.•r.� w ir "'h.i5..744. h •���a.:.+Y'•c,Y r._ kr .11 .;y iit+.t+t "'-. •"nw �.,.'t .+'�+ :.yam., ,.}. t �+,, x;+ +ct'•• ".r". >t , .�+,�" .g,' 2 R` , r •,•v •• {,,".t,. 4 ,�;� ✓,.'�.""• • ^ + • ; .Y i s R Z hi{'•T ✓„- p.it r+' Y' r '' � t 1 fi A. -,-.4, x..d 3.•3 • ,r ,,,y $ s s 1', •',4.i g '�'5.4 it'i 1$,.. .tire] ``. y v'2Y.'' r ' ^P�'r-;,7. +2�`..rj '' ':+,a ' ,-.-c, !i" ,1-,,,---7 x "2, .. . s- 7•- r ' .' Y y ti , j-I' r , f - 'A Y, • - * i-=": i F i�,w 1 ztr� i7. ter. 'tr..v <.1k. am .r K �.T i r= i i , ~'']`e d r;7: ♦ `� .S p,,+ v21 1.'";it:: ;',1 :'.,uAArssx r .7 a ,_' 't 1 -..' 9 r "yr�' r ,. . y' 4{E'. �.. ' z`•'4 1 w,r ';']'fit , z`4'-...,44 s,x v ems, .-4. 'i:r t `, �;.• -.-',S. > :.v''. } e' °y� +':. .. {!•-• ,b +rt i - .;�: �,F� ,,, „. v c� } ,. ,,,-.r -'S ,�":h r S'ra '1f w",i, ^hay-' .," �,:„• s 7 s4 "4 t'• >:, ,.,,x� 3 � - l+Y c k�• C�c(' �' !':fir.,. ,r '-}. F. 4, e,.Y J1,�fi',°k i t Va 1 4,,.11 ,*.iD 4P•a i.;'' ';r y{N6 r ,Tx' 44'4•? �,A�'. r..,r`'R• ,+'r'4', c./C.4i S.r'''W;'; �;:'�+"'•`,x* 4:Vs' ,.: Y' 716 NORTHEND CINEMA v.SEATTLE Oct.1978 t ' Oct.1978 NORTHEND 90 Wn.2d 709,585 P.2d 1153 90 Wn.2d the ordi- ordinance which is uncertf desire to show any other type of film. Therefore, ing constitutionally s( nance is fully adequate to give them notice of the regulated ing and o constitutionally utiwito rally s use, and they have no standing to challenge it for vague- substantiallysionsatordidentical t tie( ness. Young, supra at 59. cess claim must therefore [3] Nor do appellants have standing to assert the First i Amendment rights of others and challenge the ordinance B. Prior Restraint for facial overlIbreadth. The special rule giving standing to Appellants next argue I one whose owiJi rights are not violated to challenge an ordi- prior restraint on prot( nance for overbreadth applies only if the ordinance's deter- because it prohibits the s, rent effect on protected First Amendment speech is "both protected speech) outside real and substantial" and the ordinance is not easily sus- 1,, [4] As pointed out ab ceptible to' a narrowing construction. Erznoznik v. films ththat eir fa tet for rainet j sonville, 422 U.S. 205, 216, 45 L. Ed. 2d 125, 95 S. CtJack � (1975). We arse not persuaded those elements effect of this ordi- able are present rto find ony at trial locataon ad here. First, there is no evidence that the First more, although potential nance will be a substantial deterrence to protected Amendment peech. It does not limit the total number of films only in those dowi • adult theaters which may operate in the City, or signifi- thunder tthis hese c any rc burd cantly inhibit viewers from gaining access to the films The msta court below specifically found the ordinance does not have effect on the market, anc any significant deterrent effect on the exhibition or viewing ineret individualrights re ulat n free u: of adult motion picture films. Second, any language in the ;} purposes inis clearly regulating suf u • Areas; (as definers below)for observation by patrons therein here. We conclude the zc • movie theaters is a reas( 'For the purpose of this Section,'Specified Sexual Activities'is defined as: E Amendment speech whi '1.Human Guilts in a state of sexual stimulation or s j ment freedoms. See You '3.Fondling or other erotic touching of human genitals,pubic region,buttock • ment accorded adult mc or femaleSreast other types of movie the 'An d'specified Anatomical Areas'is defined as: p � .1.Less than completely and opaquely covered:(a)human genitals, ubic reg- 1 discuss next. ion,(b)buttock, d(c)female breast below a point immediately above the top of C. Classification '2 Basel the a.Human and state,even if completely and The final objection n man male genitals in a discernibly turgidzoning scheme is that i opaquely covered.' 5Since we hod the ordinance does not place a substantial burden on First 4 the content of the films Amendment speech,no presumption of unconstitutionality is raised. Appellants' aters differently fromtected by the First Ai argument the ordinance is presumptively invalid must therefore be rejected. Nor must the City choose the least restrictive alternative available to accomplish its i violates both the First purpose, as elle!:ed by appellants, since there is no substantial burden on free guaranties. speech. 1 .• r ^. 1,—,_.; �i, .•.?'r '�y `• `F4 1 'tyk 4:4,,.` 7-t'�'Y*,V,r 7x x„5 ;y'i`.r/t Y'y 1• t `�S1- {; ,,,,,; 11, ; ru ,,,,,�� �iim";{ `��,{ `, r: `,�l •„g�",t; se�,4 -$ f gay ,? ,s ��,�, T+.rek4`o c'tre-z 1.u•ts,:', • .z.y. E ' ',, .""'•„f 1.,,- ,1,4 ..t{L' ,p.4i:e,, .:. r'r:% �i''..'-:�,' ` r k,•'• .fi.:;,+� .J ,L, V '�r - 7'.[X 41,3T4,rho`- `kwnn t'� 44,,' .t ti„ t Ly•'I ,?Kk,a"y l�<o`a h :�ic'°�..aP '7„'Cw:;'. a} y,.�„r#+5, '.', ' Y v. Xa � .$x ,t t .iy'r �. p , +':" i �,�. - ':'",.M;•`','.'� ''`k I�rf 4 •V,�, ' `c'.,, „'�i��, ,r`'•y st.fik, ' .{;6'e.' " P t a -_".?., -1, ,6 }1, • ' �p 1 t_ ....',.,..-. •K,b Y� � Y .. :rir.F+Nw f( •dst „6 i .� �• J^i .�,". w,a. .. ,{tit,4#� .4 4., �A .-i .wt,1 1" :tri t 's ,'. yS•,-';' .` h-a �'....f tif.{�: +ds•,T ,�'x: ". r� i3w �:.7.--, r~• ••. i.; at,,7 ,4, ti, . X '=< -..-a ; 'e yty?+ r `,c�• " s ,C'w`�, .. . a a r}- Z-,. _ t .d,-‘-'''PP-.. `- 1u, 1l.. ,4 _s�. -. +� } {a� .,. ,��Ii � k�r w, �` 'r:,.'CS �V,,�.�� .^�•R'4[�4 4"r*t�„�,. �,.+.�'`�.. �•.i`. .Y.',¢Y i��.�Ii`•. . F .' - 'w f`�.• . .!r11yY^�•_..,�f I•"f^r .,.f�..'•.L�ri +•1' • - .. CERTIFICATE i — • — I,the undersigned,AVI VLIE £ rtorole- Clerk of the i City of Renton, Washington, certify that this is a true 1 and correct copy of..O.R.R/.4li�.Gf...!!�R...,S a'1.G... Subscribed and Sealed this .2 day of .Q.c.t.,1gi.�. . i-�e-t City CIO( • i CITY OF RENTON, WASHINGTON ORDINANCE NO. 3526 i . AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, RELATING TO LAND USE AND ZONING t THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO i .. ORDAIN AS FOLLOWS: - SECTION I: Existing Section 4-702 of Title IV (Building ;i Regulations) of Ordinance No. 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended by adding the following subsIctions: 1. "Adult Motion Picture Theater": An enclosed building - used for presenting motion picture films, video cassettes, cable television, or any other such visual media, distinguished or character=. , by an emphasis on matter depicting, describing or relating to "specifiL .. • sexual activities" or "specified anatomical areas" as hereafter defined, for .bservation by patrons .therein. 2. "Specified Sexual Activities": f (a) Human genitals in a state of sexual stimulation or arousal'; (b) Acts of human masturbation, sexual intercourse ' t1 or sodomy; t i (c) Fondling or other erotic touching of human genitals, , pubic region, buttock or female breast. , . 3. "Specified Anatomical Areas" .- • (a) Less than completely and opaquely covered human genitals, pubic region, buttock, and female - breast below a point immediately above the top s of the areola; and (h) Human male genitals in a discernible turgid state, even if completely and opaquely covered. • -1- 9 1 then listed in Request for Admission Nate1 , the answer heo perio 2 from January 1 , 1983 until the d tbes interr gator'ies, specify for each film shown at the ReIntor. 3 Theater during that period of time , the : q a . Name of each film. 5 b. The name , address and business telephone number of the distributor of each film. I 6 The print number or numbers or othe r 7 identifying data of each of the films . The dates upon which each of the films played 8 . . at the Renton Theater . 9 The hours of exhibition on each date on which 10 the film ,-was exhibited . 11 f. The running time in minutes for each print of each film, specifying the print number or other 12 identifying data for each running time . 13 g. The present whereabouts of each film. L14 If the present whereabouts of any film is unknown to you, then specify the name and 15 address and telephone number of when the pit y was whom you delivered the 16 released from your possession. 17 ANSWER: 18- N/A 19 20 21 22 REQUEST FOR ADMISSION NO. 12 : �3 With respect to the film Deep Throat which was shown at the Rent n Theater, admit the following: 24 a . The film exhibited the following: 25 (i) Human genitals in the state of 26 sexual stimulation or arousal; ( ii) Acts of human masturbation, sexual 27 intercourse or sodomy; I 28 WARREN&KELLOGG,P.S. j REQ . FOR ADMISSION , INTERLOCKING ATTORNEYS AT tAW Tao so.SECOND sT.,P.p.sox SA AmT> urnARf1T111('.TTnN -12- ...netu WAwINCTFIN111057 1 (iii) Fondling or pubic other gion,inbuttock human or 2 genitals, female breasts; i. 3 (iv) Less than completely and opaquely covered human genitals , pubic 4 region , buttock and female breasts 5 below' a point immediately above the top of the areola; 6 (v) Human male genitals in a ? discernibly turgid state, even if completely and opaquely covered . 8 b. The film ' s exhibition was advertised in the 9 Seattle Post-Intelligences at or about the time of its exhibition. 10 The film was advertised on the marquee of the Renton Theater in Renton, King County , 11 Washington at or about the time of its 12 exhibition . 13 d. The film was distinguished or characterized or rized by an emphasis on matter depicting, 14 relating to the specific sexual conduct and exhibition of the specific anatomical areas 15 more particularly described in subparagraph "a" above of this Request for Admission . 16 - . The film was shown as a part of a continuing course of conduct of. exhibition of films at the 17 Renton Theater distinguished or characterized 18 by an emphasis on matter depicting, describing or relating to the specific sexual conduct and exhibition of specific anatomical areas s moreo 19 particularly described in subparagraph "a" f 20 this Request for Admission . 21 ANSWE 22 See Attached 23 24 INTER;ROGATORY NO . 9: 25 With respect to the film Deep Throat, state : 26 a. The producer of the film. 27 b . The name , address and business telephone number of the distributor or other source from which 28 you received the film. WARREN&KELLOGG,P.S. ATTORNEYS AT U�w REQ. FOR ADMISSION, INTERLOCKING �. �®sTr.O.soxc2S Tv.roonnr� AwnRFo _ PRODUCTION -13- RENTON.WASHINGTON%WS7 ANSWER TO REQUEST NO. 12 a. admit b. admit that the film was advertised in the Seattle Post Intellegencer in a manner specifically designed to avoid appeal to a prurient interest. c. ad it that the film was advertied on the theatre marquee in a manner specifically designed to avoid appeal to a prurient interest. d. admit that the film was distinguished or characterized by an emphasis on matter depicting, describing, or re- lating to specific sexual conduct and exhibition of specific anatomical areas but specifically deny that such' characterization, emphasis or description was in a manner which appeals to a prurient interest. e: deny- During the period of thime from the theatres opening until the date the August 19 ,1983, approximately 160 different films had been exhibited. The films since January 20 , 1983 comprise only approximately 35% of the films shown. r} - ` � r, IIUDG TON DECISION �BY TH - OURT , .,� f'� .-- Y :met g.' "�,.. .ti c+.. "�, I:n-�?..x ..:i s '4r.,r .+A:z + -r.. FOR THE artj#z *airs jgj fQLTL e WESTERN DISTRICT OF WASHINGTON li, • CIVIL ACTION, DOCKET NO. C82-59M 1 PLAYTIME THEATRES, INC. , et al vs. JUDGMENT CITY 0 RENTON, et al { This action cam on forthKhearing)before the court, United States District Judge (D Ii i ar • Walter T. McG vern presiding. The issues having been duly 1 i d(heard) and a decision ha ' been duly rendered, it is ordered and adjudged I Chat plaintiffs' prayer for permanent injunction is DENIED, City of Renton's motion to dismiss for 1-ck of jurisdiction is DENIED and City of Renton's motion for summary judgment is GRANTED. I . Virttfi Tt17 UNITED STATES DISTRICT CO" WESTERN DISTRIOT.OF WASHINOTCN FEB ' 8 I, BRUCE RIFKIN, Clerk BY..........: .. ..... Deputy • { , I . I Dated at: Date: 18 February19831 Seattle, Washington • 1 Clerk of the Court I i I / _ _ � ,' - •y'� 1 2 FILED IN THE UNITED STATES DISTRICT COURT 1 3 WESTERN DISTRICT OF WASHINGTON 4 FEB 181983 5 BRUCE RIFKIN, Clerk! 6 By»_� / IF ._...- Deputy 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON 9 PLAYTIME THEATRES, INC . , et al . , ) 10 ) Plaintiffs, ) 11 ) v. ) No. C82-59M 12 ) CITY OF RENTON, et al. , ) 13 ) Defendants. ) I 14 • ) ORDER 15 CITY OF RENTON, et al. , ) 16 Plaintiffs, ) 17 v. ) No. C82-263M ) (REMANDED) 18 PLAYTIME THEATRES , INC. , et al. 19 Defendants. ) 20 21 INTRODUCTION 22 On January 11 , 1983, the Court entered its order 23 approving and adopting the magistrate 's report and 24 reco mendation and denying defendants ' motions to dismiss { 25 and or summary judgment , and granting preliminary 26 injunction pendente lite. A separate order was entered 27 Janu ry 11 , 1983 approving and adopting the magistrate 's 28 ORDER - 1 1 1 supplemental report and recommendation and granting the I 2 motion to remand Cause No. C82-263M to King County Superior ! 3 Court . i 4 In February 10, 1983, a hearing was had pursuant to thel 5 parties ' January 31 , 1983 Stipulation and Order separating 6 1 damages claims from plaintiffs ' prayer for permanent 7 injunction and submitting the matter to the Court on the 1 8 evidence considered by Magistrate Sweigert . The Court has 1 ' . 9 considered the evidence that was before the Magistrate, has 10 considered the parties ' memoranda, affidavits and oral ' I 11 argu ents. Accordingly, the Court rules that abstention 12 improper and plaintiffs' prayer for a permanent would be 13 injunction must be DENIED. 14 \ 15 FEDERAL ABSTENTION 16 The City of Renton argues that the preliminary 1 17 - injunction was improvidently granted, that the permanent 18 injunction must be denied, and that this Court must abstain I 19 and dismiss this action for lack of jurisdiction. 20 Renton supplements its earlier argument and ' 21 authorities on this issue with Miofsky v. Superior Court 1 22 of state of California, et al . , in No. 80-4589, slip op. 23 (9th Cir. Jan. 3,v 1983) . Renton argues that Miofsky aids 24 the resolution of the abstention issue herein by refining 25 the meaning of the term "vital state interest" without 26 giving it such overbreadth to deprive the federal court ofl 1 27 28 ORDER - 2 I • 1 1 all of its 42 U.S .C . § 1983 jurisdiction. Renton asserts 2 that the city 's interest in establishing zones and setting , 3 set backs is a "vital state interest" of the sort that 4 requi es the Court to abstain from acting in the case at bar ' 5 pendlg the outcome in State Court on the Complaint for 6 Declaratory Judgment . The Miofsky court distinguished the 1 7 cases cited for abstention: ' 8 In each of these cases, the state or an agent of 9 the state was a party to the proceeding deemed insulated from federal court intervention. In 'addition, each of these civil suits bore 10 similarities to criminal proceedings or otherwise ' implicated state interests vital to the operation 11 of state government . 12 13 Id. at 7. The context of the Miofsky suit was a 14 complaint that state court proceedings violated plaintiff 's federally protected rights under Section 1983. 15 Miofsky does little to refine the term "vital state 16 17 interests" beyond reasoning that abstention is improper in as 18 Section 1983 civil rights action. The Court is unpersuaded 19 that federal abstention would be proper here. "The state 20 judicial proceeding in this case is purely civil in nature, ' 21 regardless of the importance of the state policies which the 22 city asserts. " Magistrate 's Supplemental Report and 23 Recommendation at 5. Although zoning, which is the 24 underlying subject matter of the declaratory judgment 's 25 suit in state court , may be an important function performed, by a city, this alone does not prevent a federal court from 26 27 scrutinizing the constitutionality of the city 's actions . . 28 ORDER - 3 11 1 The' Court concludes that the state court action is no bar to 2 continue jurisdiction over plaintiff 's suit for injunctive 3 relie . 4 5 PERMANENT INJUNCTON 6 I . I • 7 In determining the propriety of a permanent injunction, I 8 the Court must first find that there is a threatened 9 viol = tion of a legal right which would produce irreparable 10 harm and for which any other remedy would be insufficient. 11 The ardship must tip in favor of the plaintiff. 12 Renton 's Ordinance, really a series of three ordi- 13 nances: 3526, 3629, and 3637, is an attempt to preclude the 14 operation of "adult motion picture theatres" in zones which 15 are within 1 ,000 feet from certain other specified uses • I 16 or zones. "Adult motion picture theatres" refers to those 17 theatres exhibiting films characterized by an emphasis on 18 matter relating to "specified sexual activities" or "speci- 19 fied anatomical areas" as a "continuing course of con= 20 duct . . .in a manner which appeals to a prurient interest . " 21 The subject matter of the films is given a detailed defini-j 22 tion, but the "continuing course of conduct" language is 23 not The ordinance in its essential features is virtually 24 _ 25 I 26 27 28 ORDER - 4 1 identical to the ordinances in Young v. American Mini 2 Theatres , 427 U.S . 50 ( 1976) and Northend Cinema, Inc. 3 v . City of Seattle , 90 Wash. 2d 709, 585 P .2d 1153 4 ( 1978 except that the word "used" in describing "adult 5 motion picture theatre" is defined with the "continuing 6 course of conduct" language. 7 A first amendment interest is affected. The ordinance ' 8 deals not with obscene material, but sexually explicit 9 material . It is concerned with the exhibition of films 10 inside the theatre and not with "pandering," "the business 11 of purveying textual or graphic matter openly advertised to 12 appeal to the erotic interest of their customers . " Pinkus ' 13 v . United States , 436 U.S . 293, 303 ( 1978) . 14 - 15 16 Since expression protected by the first amendment is 17 the subject of Renton 's ordinance, the next inquiry is 18 whether there is actual intrusion upon this first amendment , 19 interest and if so, the nature of the intrusion. 20 • There is some intrusion: in certain areas of Renton, , 21 films described in the ordinance may not be shown as a 22 continuing course of conduct in a manner which appeals to a 23 prurient interest. This intrusion is not substantial under 24 the circumstances for several reasons . Renton 's 25 restrictions are slightly narrower than those in the cases 26 cited supra, because of the "continuing course of conduct" 27 28 . ORDER - 5 r� 1 1 language . No theatre had to be closed under Renton 's 2 ordinance, for no theatres were operating or were 3 considering operating when it was enacted. There is no 4 content limitation on the creators of adult movies. The 520 5 acres of land in all stages of development available for 6 locating adult theatres (David R. Clemens Affidavit of 7 May 27, 1982, unrebutted, and his June 23, 1982 testimony at 8 36-41 ) belies there being substantial intrusion upon • 9 plaintiffs ' first amendment right. The real question is 10 whether in spite of the acreage available to plaintiffs to 11 locate a theatre, the economic impact results in a substan- 12 tial , impermissible effect upon first amendment rights. 13 Young notes that "the inquiry for first amendment 14 purposes is not concerned with economic impact ; rather, it 15 looks only to the effect of this ordinance upon freedom of 16 expression. " 427 U.S . at 78 (Powell, J . , concurring) . 17 The effect of Renton 's ordinance is that plaintiffs or 18 others wishing to exhibit adult film fare and not having a 19 theatre already built and ready for occupancy, must consider 20 whether demand is such that construction of a theatre is 21 feasible . This impact is no different than that upon other 22 land users who must work with what land is available to them 23 in the city. With a large percentage of land within the 24 city available to plaintiffs, the financial feasibility of 25 the various locations is for them to analyze. To conclude 26 otherwise would be to place a burden on the city that 27 28 ORDER - 6 1 1 ' 1 Constitutional analysis does not require. Moreover, the I 2 message of no individual or group has been silenced. The 3 numbe' of such establishments has not been reduced because 4 none xisted and none were attempting to establish i 5 thems lves in Renton prior to the ordinance. The ordinance 6. merel specifies where adult theatres may not locate and in • I 7 doing so, stifles no expression. See, Young, 427 U.S . 8 at 81 , n.4 (Powell, J . , concurring) . 1 9 The Court concludes that there is not a substantial 1 10 intr sion upon first amendment interests. Plaintiffs are 11 not irtually excluded from Renton by being confined to the I 12 "mos unattractive, inaccessible, and inconvenient" areas . 1 13 But see Basiardanes v. City of Galveston, 682 F. 2d 1203, I . 14 1214 (5th Cir. 1983) Renton 's exhibits, affidavits, memo- 1 15 randa, and oral argument persuade the Court that acreage in I i 16 all tages of development from raw land to developed, 17 industrial, warehouse, office, and shopping space that is 18 i criss-crossed by freeways, highways, and roads cannot be so l 19 cha acterized. Significant cited cases to the contrary are 20 dis inguishable : Schad v. Borough of Mount Ephraim, 452 U.S . i 21 61 11981 ) (live entertainment including nude dancing was not 22 a permitted use, and concerns such as trash, police protec- I I 23 do , and medical facilities were not sufficient justifica- 24 t io s for the exclusion) . Basiardanes (available sites much 25 les desirable than in • Renton, and the zoning ordinance wasI i 26 pas ed after the theatre was leased for showing adult I 27 28 ORDER - 7 1 _ I . . I I 1 films ; Avalon Cinema Corporation v. Thompson, 667 F .2d 659 2 ( 8th lir. 1981 ) (zoning ordinance enacted after suggested 3 adult use ) ; Keego Harbor Co. v. of Keego Harbor, 657 F .2d 94 4 (6th Cir. 1981 ) (no location within city that was not within ' i 5 500 feet of a bar or other regulated use) . Ample, acces- 6 sible real estate is available for the location of adult 7 theatres in Renton. ' i 8 I 9 III . . I 10 The insubstantial intrusion upon first amendment ' I 11 inte ests by Renton 's ordinance must be considered against 1 12 governmental interest which led to its enactment. Under 1 the I 13 the four-part test of United States v. O ' Brien, 391 U.S . )14 367, 377 ( 1968) , a governmental regulation is justified 15 despite ' incidental impact upon first amendment interests i 16 1 . If it is within the constitutional power of the I 17 government, 18 2. If it furthers an important or substantial i 19 governmental interest, 20 � I - 3. If the governmental interest is unrelated to the 21 suppression of free expression, and 22 4. If the governmental restriction is no greater than I 23 nec - ssary for the furtherance of that interest. 24 1 25 1 i 26 27 . 28 • OR ER - 8 • 1 As in Young, the first two elements of the test are 2 met . he ordinance was within the City of Renton 's power to 3 enact . Nor is there any doubt that the interests sought to 4 be furthered by this ordinance are important and 5 subst ntial. 6 Without stable neighborhoods, both residential and 7 commercial, large sections of a modern city quickly can deteriorate into an urban jungle with 8 tragic consequences to social, environmental, and economic values . While I agree with respondents 9 that no aspect of the police power enjoys immunity from searching constitutional scrutiny, it also is 10 undeniable that zoning, when used to preserve the character of specific areas of a city, is perhaps 11 I'the most essential function performed by local government , for it is one of the primary means by 12 Which we protect that sometimes difficult to define concept of quality of life." Village of • 13 Belle Terre v. Boraas, 416 U.S . , at 13 (Marshall, J . , dissenting) . 14 15 Young, 427 U.S . at 80 ( Powell, J . , concurring) . The 16 critical inquiries are whether these interests are furthered , 17 by the ordinance and whether the governmental interest is 18 unrelated to the suppression of free expression, element 19 three . 20 Renton 's interests, articulated in the ordinance, "in 21 protecting and preserving the quality of its neighborhoods, 22 commercial districts, and the quality of urban life through 23 effective land use planning, " are furthered by the 24 ordinance. The ordinance states in item 14, p. 3, Nos . 3629 25 and 3637 : 26 27 28 • ORDER - 9 • 1 14. Experience in numerous other cities, includ- 2 ing Seattle , Tacoma and Detroit, Michigan, has shown that. location of adult entertainment land 3 uses degrade the quality of the areas of the City in which they are located and cause a blighting 4 effect upon the city. The skid row [sic ] effect , Which is evident in certain parts of Seattle and 5 other cities, will have a significantly larger affect upon the City of Renton than other major 6 cities due to the relative sizes of the cities. 7 There was no evidence adduced to show that the 'secondary 8 effects of adult land uses would be different or lesser in 9 Renton than in Seattle, Tacoma, or Detroit . Certainly, 10 Renton must justify its ordinance, but in so doing, 11 experiences of other cities and towns must constitute some 12 evidence to the legislative body considering courses of 13 action. Genusa v . City of Peoria, 619 F .2d 1203, 1211 14 ( 7th Cir. 1980) . If the goal of preservation of the quality 15 of urban life is to have any meaning, a city need not await 16 deterioration in order to act . Id. The observed effects 17 , in nearby cities provides persuasive circumstantial evidence 18 of the undesirable secondary effects Renton seeks to 19 preclude from within 1 ,000 feet of residential zones, 20 schools, religious facilities, and public parks. Although 21 the effects in other cities are starkly shown when adult 22 uses are congregated, Renton need not await such 23 congregation. Similarly, no negative inference can be drawn 24 from Renton 's choosing to address only one form of "adult" 25 usage. It 's effort would have been bolstered by considering 26 other "adult" uses in view of other cities ' experiences, but 27 28 ORDER - 10 .. ti , 1 inclusion of these other "adult" uses is not mandatory . The � 2 city b ing aware that it is treading in a delicate area 3 between valued interests might understandably be loath to 4 tackle the description, restriction, and rationale of more than one such usage at a time. " [T]he city must be allowed 6 a rea onable opportunity to experiment with solutions to 7 admit edly serious problems . " Young, 427 U.S . at 71 . 8 The governmental interest is unrelated to the suppres- 9 sion of free expression, and the third element is satisfied. 10 Concern with preventing undesirable secondary effects is. not 11 the kind of apprehension aimed at regulating the content of 12 an adult theatre 's exhibitions. Rather, it is a permissible , 13 classification based on deleterious secondary effects. 14 Youn , 427 U.S . at 70, 71 . 15 Renton solicited testimony through its City Council and , 16 the Council 's Planning and Development Committee. It 17 summarized some ideas put forth at those public meetings in , 18 its ordinance. Predictably, some citizens expressed 19 concerns reflecting their values which might be impermis- 20 sible bases for justification of restrictions affecting 21 first amendment interests. See, e. g. , Erznoznik v. City of 22 Jacksonville, 422 U.S . 205 ( 1975) (overbroad effort to 23 protect privacy interests of certain citizens from "offen- 24 sive" speech --nude movie fare visible from public street ) . 25 The inclusion of these statements should not negate the 26 legitimate, predominate concerns of the City Council nor 27 28 ORDER - 11 1 lessen the value of the circumstantial evidence of adult 2 land uses ' effects in nearby cities. Arguably, some of the 3 state,ents may be construed as characterizations of the 4 commu ity 's quality of life that is presently sought to be 5 prese ved. j 9 Citizens' judgments as to a city 's quality of 6 life is necessarily �essaril subjective. It is necessary to separate 7 these subjective characterizations of the city's quality of 8 life from the goals of protecting and preserving it and the { 9 evid nce that the means will further the end. Renton could 10 have written its ordinance in such a way as to better 11 distinguish these aspects of the problem, but this is not a 12 material consideration. 13 Finally, part four of the O 'B-rien test is satisfied 14 for the restriction is no greater than necessary to further 1 15 the overnmental interest. The 1 ,000-foot aspect of the 16 rest iction does not preclude adult theatres from locating 17 anyw ere in 'the city as in Keego Harbor. Renton 's 18 ordi anc.e is similar to others that have been upheld except 19 for the "continuing course of conduct" language discussed 20 earlier which has some narrowing effect . 21 Renton 's effort to preserve the quality of its urban 22 lif by enacting an ordinance which regulates adult theatre 23 is minimallyintrusive of a particular category of, location 24 protected expression described in Young as being of "a 25 les er magnitude than the interest in untrammeled political! 26 deb te." 427 U.S . at 70. Renton 's effort under the 27 28 ORDER - 12 • 1 circumstances is not unconstitutional under the first 2 amendment . Injunctive relief from enforcement of the 3 ordin nce would be improper. NOW , THEREFORE , 4 or the foregoing reasons, the Court having 5 reconsidered its de novo review which led to the entry of 6 the preliminary injunction, the order granting preliminary injunction must be vacated as improvidently granted, and 8 plaintiffs ' prayer for permanent injunction against 9 enforcement of the ordinance is DENIED. Accordingly, 10 the City of Renton 's Motion to Dismiss for Lack of 11 Jurisdiction is DENIED, and its Motion for Summary Judgment , 12 is G' ANTED. 13 SO ORDERED. 14 / f DATED this i / day of February, 1983. 15 16k":66(4.0 16 17 ' c Chief United States District Judge 18 19 20 21 22 23 24 25 26 27 28 OR ER - 13 • i CITY OF RENTON, WASHINGTON RESOLUTION NO. 2508 A RESOLUTION OF THE CITY OF RENTON, WASHINGTON . DECLARING A PUBLIC NUISANCE AND ORDERING THE . CITY ATTORNEY TO TAKE ALL STEPS NECESSARY TO . ABATE THE SAME 1 • • WHEREAS the City Council of the City of Renton has previously passed Ordinances controlling adult movie picture theaters, and WHEREAS the reasons for the passage of those Ordinances still continue, and i WHEREAS upon the instructions of the City Attorney of ` _ the "City of Renton a continuous surveillance of the films being exhibited at ,the Renton Theater has been maintained, which surveillance shows that, , during the five month period from January 20, 1983 through this date, r . .. Approximately 14 pp y programs have been exhibited at said theater with each program containing two motion picture films. The titles of the • films exhibited and the approximate playing date of each is as • - follows: - _ Date Program - - 1/ 0183 - 2/10/83 Deep Throat TI' Devil in Miss Jones 2/11/83 - 2/17/83 Blue Jeans Naughty Network ' 2/ 8/83 - 3/3/83 American Desire • All American Girls • -3/ /83 - 3/10/83 Foxholes _ .I - Randy, the Electric Lady 3/11/83 - 3/17/83 Scoundrels Foxtrot - - 3/ 8/83 - 3/24/83 Irresistible 1 ' Schererazade, One Thousand and ' One Erotic Nights • - - 3/ 5/83 -. 3/31/83 Satisfactions • • Pandora's Mirror . 4/1/83 - 4/7/83 Debbie Does Dallas _ Debbie Does Dallas II • f• _._ -1- : CERTIFICATE • I,the undersi ,Maxine E. Motor, CityCierk of the City of Renton; Washington, certify that this is a true . and correct cop of... .i 419A1P.n N . 2508 Subscribed and Sealed this Btb...day ooff ..C1c.t..,198.3.. . 1 2 3 4 5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY OF RENTON, a municipal ) corporation , et al . , ) NO. 82-2-02344-2 7 ) 8 Plaintiffs , ) CITY OF RENTON' S RESPONSE ) TO DEFENDANTS' TRIAL BRIEF' vs. ) 9 ) PLAY IME THEATRES, INC. , a ) 10 Washington corporation , ) 11 et al . , ) Defendants . ) 12 ) 13 The City of Renton responds to the issues listed in 14 Defe dants' Trial Brief with appropriate citations from case 15 law •r Judge McGovern' s ruling in Federal Court as follows : 16 • 17 I . 18 ISSUE 1 : 19 Is Renton' s Ordinance Number 3526 , as amended , 20 void under the provisions of Article 1 , Section 5 of the Washington State Constitution as a content based restriction on speech? 21 22 RESPONSE �3 From Northend Cinema, page 714 : \A) *1 24 "Appellants make three constitutional arguments against the Seattle zoning provisions . First , I 25 they claim the definition of an adult motion 26 picture is so vague as to deny them due process of law. Second , they claim the confinement of such theaters to designated zones is an impermissible 27 prior restraint on protected First Amendment 28 speech. Third, they argue the classification of CITY S RESPONSE TO ISSUES RAISED WARREN&KELLOGG,P.S. ATTORNEYS AT LAW IN D FENDANTS ' TRIAL BRIEF PAGE 1 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 i 255-8678 1 theaters based on the content of the film shown 2 here violates First Amendment and equal rotection guarantees . ' 3 'In response to these contentions we find the 4 ecision of the United States Supreme Court in oun v. American Mini Theaters , Inc . , 427 U.S . 5 0, 49 ,L.Ed . 310, 96 S.Ct . 2440 (1976) (hereinafter referred to as Young) dispositive . 6 n that case the court approved the creation and definition of an adult theater zoning use 7 identical ,in all relevant respects to the Seattle zoning use . It also approved regulation of the 8 location for that use . Although Appellants argue the Seattle ordinance differs from the Detroit 9 ordinance ,: those differences do not , have constitutional significance, as discussed below. 10 We need not, of course , construe the provisions of our State Constitution identically with the 11 corresponding provision of the Federal Constitution . Darrin v . Gould , 85 Wn . 2d 859 , 12 868, 540 P . 2d 882 ( 1975) . In this case, however , we find the reasoning of Young persuasive . It acknowledges and accommodates the important 13 interest of the State in exercising its police 14 power to protect city neighborhoods against degradation, while preserving the democratic 15 principles the constitutional provisions were designed to protect . We therefore find it 16 appropriate to apply the general rule that language in our State Constitution will be given the same interpretation as that given the federal 17 constitutional provisions by the United States 18 Supreme Court . See Housing Authority v. Saylors , ET--Wn. 2d 732, 739, 557 P .2d 321 ( 1976 ) . 19 (Emphasis added . ) 20 From Northend Cinema, at page 718 : "The first element is that the ordinance has only 21 a slight and neutral effect on protected speech . 22 No real restraint or deterrent effect is evident . The ordinance regulates only the place where these films can be shown . It demonstrates a reasonable 23 decision that the public welfare is best served by 24 having this particular type of speech take place only in certain areas of the community . The 25 ordinance . thus remains neutral regarding the content of the films - it neither approves nor disapproves of that content, and neither promotes 26 nor inhibits exhibition of the films ." (Emphasis �7 added. ) , 28 CITY'S RESPONSE TO ISSUES RAISED WARREN&KELLOGG,P.S. ATTORNEYS AT LAW IN DI FENDANTS' TRIAL BRIEF PAGE 2 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 ; ' 255-8678 1 II. 2 ISSUE 2 : 3 Is Renton' s Ordinance Number 3526 , as amended , 4 void under the provisions of Article 1 , Section 5 of the Washington State Constitution in that no legitimate governmental purpose exists to support 5 the legislative intrusion into protected First Amendment activity? 6 7 RESPONSE 8 Fro" Northend Cinema, at page 718: 9 "The second element is the City's great interest in protecting and preserving the quality of its 10 neighborhoods through effective land-use planning . The record demonstrates the City' s sincere and . 11 sustained effort to enhance and improve the 12 quality of life in Seattle . Zoning is an extremely important tool for achieving land-use goals in a municipality . See Belle Terre v . 13 Boraas , 416 U. S. 1 , 39 L. Ed 2d 797 , 94 S.Ct . 1536 14 ( 1974) . Thus , "the city' s interest in attempting to preserve the quality of urban life is one that 15 must accord high respect . " Young , supra, at 71 . (Emphasis added . ) 16 See legislative findings incorporated into Renton Ordinance 17 Number 3629 and 3637 for a clear recitation of the legitimate 18 governmental purposes which were recognized by the Renton 19 City Council at the time of the enactment of the ordinances 20 to -ttempt to protect and preserve the quality of its family- 21 ori-nted neighborhoods . 22 �3 III. 24 ISSUE 3 : 25 Is Renton ' s Ordinance Number 3526 , as amended , 26 void under the provisions of Article 1 , Section 5 of the Washington State Constitution because it was enacted as a result of a hostility towards 27 protective speech? 28 CIT 'S RESPONSE TO ISSUES RAISED WARREN&KELLOGG,P.S. ATTORNEYS AT LAW IN IEFENDANTS' TRIAL BRIEF PAGE 3 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 I 255-8678 1 RESPONSE 2 The Defendants can point to no evidence to persuade the Court 3 tha • Ordinance Number 3526 , as amended , was enacted as a 4 result of a hostility toward protected speech. In fact , the 5 Ordinance was first enacted : on April 13, 1981 , almost one 6 yeari before Defendant Playtime Theatres announced its 7 i nto operate an adult motion picture theater at the int nt o p 8 Ren on Theater despite the existence of the Young-type 9 ordinance . 10 Fron Northend Cinema, page 718-19 : 11 "We emphasize that the purpose of the ordinance is 12 not to regulate the content of speech. Contrary to the assertions of the appellants , the ordinance is not a disguised form of censorship. The record 13 is replete with testimony regarding the effects of adult movie theater locations on residential 14 neighborhoods . The evidence is more than adequate 15 to support the finding below that the goal of the ordinance is to preserve the character and quality 16 of residential life in the City . " (See legislative findings incorporated into Renton 17 Ordinance No. 3637 . ) 18 IV. 19 20 ISSUE 4 : 21 Is Renton' s Ordinance Number 3526 , as amended , void as a violation of Article 1 , Section 5 of the 22 Washington State Constitution because of the failure of the City to assert any valid 23 governmental interest to justify the removal of existing protected free-speech activities to 24 obscure geographic locations within the City? 25 26 27 28 CITY' S RESPONSE TO ISSUES RAISED WARREN&KELLOGG,P.S. ATTORNEYS AT LAW IN DEFENDANTS' TRIAL BRIEF PAGE 4 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 RESPONSE 2 From Northend Cinema, page 718 : 3 ( 1 ) Issue discussed in Issue 2 above . 4 (2) Factual inaccuracy, See Judge McGovern' s Order, page 6 . 5 6 "No theater had to be closed under Renton' s ordinance, for no theatres were operating or were: considered operating when it was 7 enacted . There is no content limitation on the creators of adult movies. The 520 acres 8 of land in all stages of development available for locating adult theatres. (David 9 R . Clemens Affidavit of May 27 , 1982 , unrebutted, and his June 23, 1982 testimony 10 at .36-41 ) belies there being substantial intrusion upon plaintiffs' first amendment 11 right . Plaintiffs are not virtually excluded from Renton by being confined to the "most 12 unattractive, inaccessible , and inconvenient" areas . But see Basiardanes v. City of 13 Galveston , 682 F . 2d 1203 , 1214 (5th Cir . 1983) . Renton' s exhibits , affidavits , 14 memoranda , and oral argument persuade the 15 Court that acreage in all stages of development from raw land to developed , 16 industrial, warehouse, office , and shopping space that is criss-crossed by freeways , highways , and roads cannot be so. 17 characterized. Significant cited cases to the contrary are distinguishable: Schad v. 18 Borough of Mount Ephraim, 452 U.S. 61 ( 1981 ) ( live entertainment including nude dancing 19 was not a permitted use, and concerns : such as 20 trah, police protection , and medical facilities were not sufficient justification for , the exclusion . ) Basiardanes (available 21 sites much less desirable than in Renton , and the zoning ordinance was passed after the 22 theatre was leased for showing adult films.)" 23 24 V. 25 ISSUE 5 : . 26 Is Renton ' s Ordinance Number 3526 , as amended , void as a violation of Article 1 , Section 5 of the 27 Washington State Constitution because it creates a 28 classification without a justification? CITY'S RESPONSE TO ISSUES RAISED WARREN&KELLOGG,P.S. ATTORNEYS AT LAW IN DEFENDANTS' TRIAL BRIEF PAGE 5 I -too SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 I I 255-8678 1 RESPONSE 2 Jud a McGovern' s Order , page 10-11 : 3 "Similarly , no negative inference can be drawn from Renton' s choosing to address only one form of 4 "adult " usage . It ' s effort would have been bolstered by considering other "adult" uses in 5 view of other cities' experiences , but inclusion 6 of these other "adult" uses is not mandatory. The city being aware that it is treading in a delicate area between valued interests might understandably 7 be loath to tackle the description, restriction , and rationale of more than one such usage at a 8 time . " (T)the city must be allowed a reasonable 9 opportunity to experiment with solutions to admittedly serious problems ." Young, 427 U. S. at 10 71 . 11 The court must bear in mind that the Young decision permits a 12 cla-sification of films based upon sexually explicit content and different treatment accorded the theaters showing them. 13 14 As oted by the court in Northend Cinema , at 718 , such ! a res It does not infringe on freedom of speech or the 15 16 gua antee of equal protection of the law , because of two 17 fac ors : First , " . . . the ordinance has only a slight arid 18 neutral effect on protected speech. . . The ordinance regulates 19 onl the place where these films can be , shown. It 20 dem nstrates a reasonable decision that the public welfare is 21 bes served by having this particular type of speech take 22 pla e only in . certain areas of the community. The ordinance 23 thu remains neutral regarding the content of the films---it 24 nei her approves nor disapproves of that content , and neither 25 pro otes nor inhibits exhibition of the films .". Second , the 26 cit has " . . .great interest in protecting and preserving the 27 qua ity of its neighborhoods through effect land use pla ning . " 28 CIT 'S RESPONSE TO ISSUES RAISED WARREN&KELLOGG,P.S. ATTORNEYS AT LAW IN DEFENDANTS' TRIAL BRIEF PAGE 6 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 VI. 2 ISSUE 6 : 3 Is Renton' s Ordinance Number 3526 , as amended , void as a violation of Article 1 , Section 16 of 4 the Washington State Constitution in that the City has deprived the Defendants of a valuable use of 5 their property without due process of law or just 6 compensation? 7 RESPONSE 8 Bellevue v . Carlson , 73 Wn . 2d 51 , 435 P . 2d 957 ( 1968 )1 9 quoting from 8 E. McQuillin, Municipal Corporations , Section 10 25. 45 (3ed . rev. 1965 ) , at 117 : 11 "But to sustain an attack upon the validity of a 12 zoning ordinance , an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude 13 its use for any purpose to which it is reasonably 14 adapted . He is required to show that there is no possibility for profitable use under the 15 restrictions of the ordinance , or alternatively that the greater part of the value of the property 16 is destroyed by it , although there may be some slight use remaining. Adaptability, it has been 17 declared , envisages economic as well as functional use, and assumes not the most profitable use, but 18 that some permitted use can be profitable . "All factors being considered , as revealed by the 19 record before us , we are satisfied that the 20 respondent has failed to show that there is no present , possible , and reasonably profitable alternative use to which his property is adaptable 21 under the R-S zoning classification it now bears." 22 The court must conclude that any economic harm caused to the 23 Defendants by their commencement of operations of an adult 24 mot=on picture theater in the City of Renton in the face of 25 Ordnance Number 3526, as amended, has been self-inflicted . 26 As noted above , the Defendants purchased the Renton Theater 27 and commenced their operations long after Ordinance Number 28 CITY'S RESPONSE TO ISSUES RAISED WARREN&K ATTORNEYSS A AT ,P.S. T L LA AW IN DEFENDANTS' TRIAL BRIEF PAGE 7 700 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 3526 was enacted. Therefore , the City cannot be responsible 2 for such self-inflicted damages . 3 4 vII. 5 ISSUE 7 : 6 Is the definition of "used" unconstitutionally 7 vague under the provisions of the United States Constitution and the Constitution of the State of 8 Washington? 9 RESPONSE 10 Judg- McGovern' s opinion, page 12: 11 "Renton's ordinance is similar to others that have been upheld except for the "continuing course of 12 conduct" language discussed earlier which has some 13 narrowing effect . 14 "Renton' s effort to preserve the quality of its urban life by enacting an ordinance which 15 regulates adult theatre location is minimally intrusive of a particular category of protected 16 expression described in Young as being of a lesser magnitude: than the interest in untrammeled 17 political debate . 427 U . S . at 70 . Renton' s effort under the circumstances is not unconstitutional under the first amendment . " 18 (Emphasis added . ) 19 Judge McGovern explains his use of the term "continuing 20 cour .e of conduct" language on pages 4 and 5 of the Order . 21 "The subject matter of the films is given a detailed definition, but the "continuing course of 22 conduct" language is not. The ordinance in its essential features is virtually identical to �3 ordinances in Young v. American Mini Theatres , 427 24 U.S. 50 (1976) and Northend Cinema, Inc . v. City of Seattle, 90 Wash. 2d 709 , 585 P.2d 1153 ( 1978) except that the word "used" in describing "adult 25 motion picture theatre" is defined' with the 26 continuing course of conduct" language . \ 27 The ourt must understand the rationale behind the adoption 28 by tie City Council of the City of Renton of Ordinance Number CITY S RESPONSE TO ISSUES RAISED WARREN&KELLOGG,P.S. ATTORNEYS AT LAW IN D: FENDANTS' TRIAL BRIEF PAGE 8 1oo SO.SECOND ST.,P.O.BOX626 RENTON,WASHINGTON 98057 255-8678 ' 1 3629 and 3637 : In its first motion to dismiss the federal 2 laws it commenced by the Defendants herein against the City 3 of R-nton, the City cited the Young decision as stare decisi:s 4 and urged the federal court to abstain from the exercise of 5 its jurisdiction to allow the —state courts of the State o'f 6 Wash' ngton to construe Ordinance Number 3526 to preclude the 7 appl. cation of, the ordinance to an "innocent" exhibition of 8 "spe ified sexual activities" and "specified anatomical 9 area." . It was the City's contention that the, state court 10 coul• read into the statute the simple statutory construction 11 limi ation of requiring that a single innocent exhibition did 12 not bring the ; use of the property within the scope of the 13 zoni g ordinance, and that the zoning ordinance forbade only 14 a c ,ntinuous course of conduct which established a non- 15 innocent use , i . e . , a use which appealed to a prurient 16 interest . 17 18 Having failed in its attempt to urge the federal court to 19 allow the Washington State Courts an opportunity to 20 auth ritatively construe the zoning ordinance to preclude the 21 regulation of "innocent" exhibitions , the City proceeded to 22 amen the ordinance to specifically add a mens rea element to 23 the 'use" which is sought to be controlled by the ordinance . 24 The City could have solved the problem by making the 25 "inn cent" exhibition an affirmative offense. However , the 26 City chose instead to place the burden of establishing the 27 prur_ency of the use as a part of its case in chief. 28 CITY S RESPONSE TO ISSUES RAISED WARREN&KELL L P.S. ATTORNEYS AT LAW IN D FENDANTS' TRIAL BRIEF PAGE 9 ioo SO.SECOND ST.,P.O.B"OX626 RENTON,WASHINGTON 98057 255-8678 ' 1 The concern of the City of Renton is aptly demonstrated by 2 the case of Pringle v. City of Covina, 115 Cal. App. 3d 151 , 3 171 Cal . Rptr . 251 ( 1981 ) . A copy of the case report is 4 att- ched hereto as Attachment "A" . The operator of a cinema 5 attacked a Young-type ordinance which prohibited the location 6 of adult entertainment businesses" within 500 feet of a 7 res ' dential area or other specified use . The cinema was 8 located within that distance of such uses . Covina officials 9 asserted that a "single isolated instance of use" of 10 exhi•ition of prohibited conduct would violate the ordinance. 11 The court , after noting its duty to narrowly " . . .construe 12 thi legislation , if reasonably possible to preserve its 13 cons itutionality" , at 254 , noted that such an interpretation 14 woul• render the ordinance constitutionally invalid: 15 "To preserve the ordinance' s validity, the term 16 ' used' must , therefore, be construed to mean ' [t]o practice customarily. ' ' Customarily' means 'usually, , habitually, according to the customs , 17 general practice or usual order of things , 18 regularly. ' (Black' s Law Diet. , (4th Ed . ) p . 462; italics added . ) " at 257 . 19 It w= s to avoid exactly this type of hypertechnical argument 20 that the expanded definition of "use" was adopted. 21 Othe wise , exhibitors of "specified sexual activities" and 22 "spe ified anatomical areas" whose operations clearly brought �3 them within the letter and spirit of the proscription 24 rega ding the location of their operations , could continue to 25 atta k the facial validity of the ordinance based upon its 26 pote tial for; inclusion of innocent and/or negligent �7 exhioitions of "specified sexual activity" and "specified 28 CITY S RESPONSE TO ISSUES RAISED WARREN&K ATTORNEYS AT LA SAT LA ;P.S. W IN D: FENDANTS' TRIAL BRIEF PAGE 10 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 ana omical areas" , and scientific, artistic and/or literary 2 dep' ctions of such conduct in a manner which clearly did not . 3 app-al to a prurient interest . 4 5 Thu: , Judge McGovern' s ruling that the inclusion of the 6 def' nition of "used" has a narrowing effect upon the 7 ordinance scheme approved in Young and Northend Cinema is a 8 cor ect ruling. 9 10 VIII . 11 ISSUE 8: 12 Is Renton'' s Ordinance Number 3526 , as amended, and as implemented by the City, pre-empted by Chapter 13 9 .68 R. C.W.? 14 15 RESPONSE 16 S •ok=ne v. Portch, 92 Wn. 2d 342, 596 P. 2d 1044 ( 1979) : "Further the present ruling does not indicate a 17 retreat from our position in Northend Cinema, Inc . 18 v. Seattle , 90 Wn. 2d 709 , 585 P. 2d 1153 ( 1978) , cert . denied sub . nom . Apple Theater , Inc . v . Seattle, 441 U. S. 946 , 60 L.Ed 2d 1048, 99 S. Ct . 19 2166 ( 1979) , in which we upheld a zoning ordinance 20 restricting the location of adult movie theaters . RCW 9 .68. 010 preempts the field of obscenity prohibition but had no effect on the 21 municipalities' power to exercise their authority in other ,areas such as zoning . Nothing in this 22 opinion should be construed to deprive �3 municipalities of their authority to control obscene material by taking measures which do not 24 fall within the purview of state law."25 See he separate brief submitted in connection with this 26 argu o ent . 27 28 CITY'S RESPONSE TO ISSUES RAISED WARREN&K ATTORNEYS AT LA SAT LA ;P.S. W IN D2FENDANTS' TRIAL BRIEF PAGE 11 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 IX. 2 ISSUE 9: 3 Are the Plaintiffs required to prove that the 4 films exhibited by the Defendants are obscene? 5 RESPONSE 6 Jude McGovern' s Order, page 5 : 7 "A first amendment interest is affected. The 8 ordinance deals not with obscene material , but sexually explicit material . It is concerned with the exhibition of films inside the theatre and not 9 with "pandering" , "the business of purveying 10 testual or graphic matter openly advertised to appeal to the erotic interest of their customers . " 11 Pinkus v. United States, 436 U.S. 293, 303 (1978) . 12 Stat- v. J-R Distributors Inc. , 82 Wn. 2d 584, 512 P.2d 1049 13 ( 197 ) , at page 648: 14 "Considered and evaluated as indicated above, the Miller obscenity formula seems to me to have three 15 main facets which are elucidated by the following questions : ( 1 ) Does the allegedly obscene work, 16 material, pamphlet , book, film, or related medium, taken as a whole , appeal to the prurient interest in sex ( does it produce an itching or restless 17 craving for the lewd , licentious , and lascivious 18 in sexual matters) , as viewed by the average person applying contemporary state-wide community 19. standards. . . 20 Footnote 5 at page 649 states : 21 "The parenthetical language employed merely restates an authoritative definition of the term 22 "prurient" : la: marked by restless craving : itching with �3 curiosity. . . 24 b : having or easily susceptible to lascivious 25 thoughts or desires . . . 26 c : \tending to excite lasciviousness. . . " 27 It iz important that the Court differentiate between the 28 elem-nt of "appeal to a prurient interest" as contained in CITY'S RESPONSE TO ISSUES RAISED WARREN&K ,+P.S. ATTORNEYSS A AT T L LA AW IN DEFENDANTS' ;TRIAL BRIEF PAGE 12 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 ' 1 the Renton ordinance , and the legal definition of obscenity 2 under Miller of which "appeal to a prurient interest" is but 3 one of three prongs of the test . It appears that the 4 Defendants have embarked upon a concerted effort to mislead 5 the Court into involving all elements of the Miller test to 6 increase the burden of the City beyond that required by the 7 plai meaning of the ordinance . 8 9 The ordinance must be construed in a common-sense fashion. 10 Ther- must be some significance to the fact that the City 11 Coun it did not impose a limiting construction in its 12 defi ition of the word "used" to require that the material 13 exhi ited be obscene . It required only that the depiction of 14 "spe ified sexual activities" and "specified anatomical 15 area " be exhibited in a fashion which "appeals to a prurient 16 interest" . For that reason, considerations of "patent 17 offensiveness" and "redeeming social value" are erroneous , 18 and any testimony tending to establish or defeat such 19 elements is irrelevant. 20 21 DATE : October , 1983 . 22 Respectfully submitted , 23 24 LAWRENCE J. WARREN 25 Attorney for Plaintiffs 26 27 28 CITY'S RESPONSE TO ISSUES RAISED WARREN&KELLOGG,P.S. ATTORNEYS AT LAW IN DEFENDANTS' TRIAL BRIEF PAGE 13 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 •'a 1!7 115 Ca1.App.3d 153 PRINGLE v. CITY OF COVINA 251 I Cite as,App.,171 CaLRptr.251 Ind 115 Cal.App.3d 151 ,,t in pp 2. Constitutional Law �48(1) ems. 1si Robert PRINGLE and Darlene Pritchard, Court must construe legislation, if rea- Plaintiffs and Appellants, sonably possible, to preserve its constitu- tionality. v. CITY OF COVINA, a California Munici- 3. Zoning and Planning ts=278 pality, Defendant and Respondent» Zoning ordinance prohibiting location ' :.). • of adult motion picture theater within 500 _ Civ. No. 58388. feet of residential areas and defining such ''`M`a w theater as "an enclosed building with a Court of Appeal, Second District, capacity of 50 or more persons, used for ost Division 3. presenting material distinguished or charac- Jan. 26, 1981. "••. terized by an emphasis on depicting or de- tor, scribing'Special Sexual Activities'or 'Spec- ' Hearing Denied March 25, 1981. ified Anatomical Areas'," would be con- **'' strued to preserve its constitutional validity tot, 1 b x definingadult motion�) picture theater as c its Patron and operator of motion picture theater presenting preponderance of films re- theater sought a preliminary injunction in which dominant theme is depiction. of 'a ID barring a city from arresting or instituting ordinance's enumerated sexual activities. k<`' J!in civil actions against the theater under the U.S.C.A.Const. Amend. 14. �_-on city's adult entertainment zoning ordinance. 4. Constitutional Law 0=90.1(6) The Superior Court, Los Angeles County, Prosecution of single exhibition of any *e Thomas T. Johnson, J., denied preliminary one adult film under terms of adult enter- injunctive relief. Patron and operator ap- tainment zoning ordinance would violate •,`,.,• rod: pealed. The Court of Appeal, Potter, Act- First Amendment. U.S.C.A.Const. Amend. ing P. J., held that a zoning ordinance pro- 1. ,':wed hibiting the location of an adult motion * t>N picture theater within 500 feet of residen- .a. tial areas and defining such a theater as Larry J. Roberts, Barry A. Fisher, P.C., ;1 *gyp "an enclosed building with a capacity of 50 Fred Okrand, ACLU Foundation of South- •• ' '. or more persons used for presenting materi- ern California, Los Angeles, for plaintiffs �+ al distinguished or characterized by an em- and appellants. 1 4' to phasis on depicting or describing 'Special Oliver, Stoever & Laskin, Los Angeles, • ''g Sexual Activities' or 'Specified Anatomical Norman G. Oliver, City Atty., Ronald J. ;Y' Areas'," would be construed to preserve its Einboden, Asst. City Atty., for defendant :kit*. constitutional validity by defining adult mo- and respondent. Ytion picture theater as theater presenting a preponderance of films in which the domi- LPOTTER, Acting Presiding Justice. -jis3 nant theme is the depiction of the ordi- plaintiffs Robert Pringle, operator of the nance's enumerated sexual activities. Covina Cinema (hereafter Cinema), and Remanded. Darlene Pritchard, a patron of the Cinema, `+' '$'u'-•LH appeal from the denial of a preliminary injunction enjoining defendant City of Co- �' vine from"arresting or prosecuting or insti- • ••• :., � 1. Constitutional Law —251.4 tuting civil actions"against the Cinema un- It is basic principle of due process that der its adult entertainment zoning ordi- ordinance is unconstitutionally vague if its nance. - •r,. prohibitions are not clearly defined and The Cinema is a motion picture theatre in there must be ascertainable standards. Covina. In 1977, the Cinema offered a rep- U.S.C.A.Const. Amend. 14. ertory theatre program consisting of a vari- Ci�:'f�-�� *•:"..a"l•' ij�.l f,.�.i, •..i'Y.•,;. _.tys-,..1�`,.•'.y; _ �..1r..S•: - • _ ,,,I.. 4: ,�. - -^Jr,. %.` _ .r{F~ ..��:: �u�` 3. }Ar L- - ' - "!'^ �../ ' ,' ._1': � 'fry. ..�.l jZ. d 4%• � _ _ _ Y • • i 252 171 CALIFORNIA REPORTER 115 Ca1.App.3d 153 p ety of films, including an occasional show- vorable publicity, generated by the actions ing of films containing sexually explicit of city officials, had discouraged patrons . matter which consequently were rated "X" from attending the Cinema and made the • by the Motion Picture Association of Amer- repertory film policy economically unre- 1�1 warding. I • �c4 On July 14, 1977, the City Manager wrote letter to the Cinema expressing the corn- In September 1977, Pringle became the unity's concern' regarding the exhibition lessee and operator of the Cinema. f"X-Rated"films. Then,on July 18, 1977, In June 1978, defendant enacted a corn- he City Council instructed the City Attor- , prehensive zoning ordinance 2 prohibiting -t ey to prepare an interim emergency ordi- the location of "adult entertainment busi- ' ance prohibiting "adult" films in the city bile zoning regulation of various "adult".5"messes" within 500 feet of a residential area and uses could be studied. On July 25,the and other specified uses. The Cinema is nterim.ordinance was unanimously adopt- The withinted that distance of such uses. The ordinance declares that its purpose is "to insure that[the]adverse effects[arising I The Covina Cinema continued, after the from their"serious objectionable operation- 'option of the interim ordinance, to show al characteristics"] will'not, contribute to • - he films already!,on its calendar, including the blighting or downgrading of the sur- • •n July 26, 1977, the "X-Rated" films rounding neighborhood and will not unrea- 'Emanuelle" and,"The Joys of a Woman." ,tunably interfere with or injure nearby - embers of the Covina Police Department properties." iewed the films and prepared misdemeanor , harges against the theatre management 1An adult motion picture theatre is defined J. •hich were forwarded to the Los Angeles as "an enclosed ui di capacity of aunty District Attorneys office; but no fifty or more persons sed for resenting egal proceedings;were ever initiated, material distinguished or racterized liy In August 1977, the Cinema manager an- an emphasis on depicting ,or describing i f ounced that no more "X-Rated" films 'Specified Sexual Activities', or (_Specified ould be shown after the expiration of the Anatomical Areas'."3 (Covina Mun.Code, ::i -xisting calendar]on September 6. Unfa- § 17.04.026.2.) (Italics added.) : jilt The types of films exhibited included foreign the earlier one except for the deletion of a films, unusual domestic films, "classics," and requirement for conditional use permits. All "cult"films. At the July 25, 1977 City Council references are to the present version, since meeting, the then!theatre operators (assignors "[u]nder settled principles,[that]version ... is of the present operator Pringle) testified that the relevant legislation for purposes of this they only showed"X-Rated"films rated by the appeal. 'It is ... an established rule of law Motion Picture Association of America, had that on appeals from judgments granting or shown 300 films of which only 7 were"X-Rat- denying injunctions, the law to be applied is ed"(about 5 percent of their programming)and that which is current at the time of judgment in each of these films were from major distribu- the appellate court.'" (Kash Enterprises, Inc. tors and had played in every area around Covi- v. City of Los Angeles (1977) 19 Cal.3d 294, na. According to plaintiffs'verified complaint, 806 fn. 6, 138 Cal.Rptr. 53, 562 P.2d 1302.), r during the period[from July 13, 1977, to Sep- A. tember 6, 1977 (around the time of the enact-' 3, The Municipal Cow specifies anatomical ar- &' merit of the first interim ordinance), only 7 of eas and sexual activities as follows: 84 films(8.3 percent)were rated "X". "'Specified Anatomical Areas' include the i I following: human genitals,pubic region,but- Ordinance No. 1386 (adopted June 19, 1978) tocks, and female breasts below a point im- ! i which superseded!the 1977 interim ordinance mediately above the top of the areola." .[ and added provisions to title 17 of the Covina (§ 17.04.529.) '` Municipal Code was in force when the relimi- "'S p pacified Sexual Activities' includes the i I 1+ nary injunction was denied. While this appeal following: was pending,defendant,on September 4, 1979, "(a) The fondling or other touching of hu- ' ,) ,:. adopted Ordinance No. 1438,amending title 17. man genitals, pubic region, buttocks, or fe- , a \ This later version j is substantially identical to male breasts; , ti _,A 3. P:.. `°,�7F `<- r wig., �3i .;, , _ t ,}- 't.-'t'„w. !_-.:•-far..+: _ o-. rl.� • - -!+. ..'4+'- !.-fir:':'„ • . a'_'-j:;q,••, 'j.^•-4,...,„,,,„.,.1, v R.' a..,� )'� _ .. ,)'`" - y-r. ti. -x'•'IS:" - -44-yr Wit .:•�p� :J.,^ ,=t•r_� :%4:'h�,,;-. �;•t,,rc .: ...,o.:s.% •"te •,+- ",. "r ,a.' v!.e- -kv, u' .•i, • qc -c-..':+�-,t• r,'+:�_;'` ,1.1.:. `,.>q -F• ?b. .i�'- <'� . I ' i MI6 CaLApp.3d 156 PRINGLE v. CITY OF COVINA 253 74 15$ i Clte as,App.,171 Ca1.Rptr.251 • 1 Plaintiffs instituted this action (42 U.S.C. In support of their motion for a prelimi- ations § 1983) for declaratory and injunctive re- nary injunction, plaintiffs pointed out that sums the lief, alleging that the ordinance violated the relief they sought was limited. It federal and state guarantees of freedom of "would apply only to the Covina Cinema[so 1' °nre- speech, due process and equal protection. that] the zoning scheme of the city would They claimed that the ordinance was uncon- otherwise remain intact," and "would sim- the stitutional on its face and, as construed to ply restore the status quo which existed apply "to the operation of a neighborhood prior to the adoption of the ordinance when theatre which shows a variety of films in- the Covina Cinema did exhibit on an occa- ,":>;wan- eluding a few films which, although not sional basis films such as 'Last Tango in - .biting obscene,explicitly depict sexual activity ar- Paris." The only "'X-Rated' films that . busi- guably within the scope of the ordinance." would be presented would . . . 'be serious, z. !area They further argued that the terms_"distin- artistic'X-Rated'films of the variety previ- ...8 is Euished or characterized by an emphasis" ously exhibited by the Covina Cinema" and - and"used" were too vague and chilled free- these"would constitute only a small portion aom of expression. of the total program of the theater." 'rising In their verified complaint, plaintiffs don- In its opposition papers, defendant City to to sought"temporary injunctive relief in order contended that the ordinance was a valid ze sur- [to] exhibit and view constitutionally pro- tested films according to their own taste zoning regulation under Young v.American l °nrea- Mini Theatres (1976) 427 U.S. 50, 96 S.Ct. Eby and judgment." They alleged that"[i]f not 440restricted by the . . . Ordinance, [Pringle] 49 L.Ed.2d 310. pefendant claimed would occasionally exhibit films which, al- that Youj had addressed all plaintiffs' &fined—1155 though not obscene, explicitly depict sexual vagueness objections except the meaning of '' •e '--ity of activity". and Pritchard "would again view the word"used" in the adult theatre defini- Vsa sting on a selective basis films at the Covina ti—�on. D efendant construed "use" as any . by Cinema which explicitly depict sexual activ- "[o]ne showing of a film described in the " ordinance." Defendant also argued that .'bind ity • • • • any uncertainty in the ordinance was readi- xxclfi� In his declaration, Pringle stated that the ly subject to severance or a narrowing con- Code, Code, "Ordinance prevents Lltim) from selecting struction by the court i for exhibition films which fhel would other- ...Ilse wise choose, because 'he] cannot know The superior court denied plaintiffs''re- what films will bring the . . . CINEMA , All quest for a preliminary injunction. This since within the definition of an Adult Motio•n appeal followed. ...is Picture Theater . . . and consequently sub- d this jest[him]to civil and criminal sanctions for o!law . . violation of the Ordinance"; the Covi- g or Contention splied is na police have threatened to arrest him for - tin violating the ordinance if an "X-Rated" Plaintiffs contend that the preliminary .Inc. film were shown; and he desires to select injunction should have been granted be- 2g4' for exhibition at the Cinema a variety of cause the ordinance contains impermissibly 1302.) films, including some which are rated "X" vague terms which chill freedom of expres- ar- but would not generally be considered sion by deterring the exhibition of films "hard-core" pornography. that may or may,not be within its ambit.' the •,.but- "(b) Ultimate sex acts, normal or pervert- giL.Cbal. of (1) irnnermissible motivation. cant im- ed,actual or simulated,including intercourse, (2) severe restriction of acreks to nroterted weola." oral copulation, sodomy; h, and (3) 31nnroner rlaccifiratiop..pf "(c) Masturbation; and gpeech on the basis of content without a m- :. •Kies the "(d) Excretory functions as part of or in pelling interest in view ,she limited nature of connection with any of the activities set forth 111eyreliminary relief sought. Moreover-thoge i of hu- in (a) through (c) above." (§ 17.04.530.) con entions_involve factuaLissues which neces- or {e sitate a trial on the merits. 4. Our dis osition renders it u o reac at this time p aintiffs'other constitution- - .a.- e'.'.:�P� .y,.,--..f: S:''�'.. :..a- u;ar.r .a ..,. '�;.'•;r•'.r-'f'''�-_:', :., a.: - _ • _ -L. ,.f' f'.'y�.+i. ':J,. il:1! .,ram:• ''af:��-�":.D._,i•:...: +Z..yam:�P:1•�:'r�iti 7� ^�- ' -•�.:.' �',i'.:.iS .c_:y t'f..i '§= -`.• ..t .ta.`.. ?!..72.:ears_ :i .9T.-Li :E - ,�.:�� .w� •.;g. si 27v:.'::f�� n';_'.v^.Y:'r;;ax.; %"'1 ri�y.^,-i'r'.�1?..:'_. a:�> .t�:d.>'::. - •s, ..5: ta-• 4-i.�.':?'" �T.:)�'tip. ;.�'�'�� ,,.j. ',l.J.••:.M.�C! •I{.,: •,S'~�+::' "'w 7 �:":�, Jitj l.•r. - _ •+i ;-e+'::t!-�k•�.'�: -S.';?^ •if 'Zr"v�-:; `-'2':i •:r:`.:-4,, ...1 y.i.:.'a ✓'i -�: ' �t. 'f. ,s ,`.. 254 171 CALIFORNIA REPORTER 115 CaLApp-3d 157 t • .11.57 1_Discussion meanings inevitably lead citizens to Summary "steer far wider of the unlawful zone" . . . than if the boundaries of the forbid =r The superior court improperly denied a - ' den areas werejclearly marked.' [Fns.;1se ,--, ••,gym preliminary injunction. The definition f omitted.]" (Grayned v. City of Rockford,' :,''•''.^+ • an adult movie theatre contains vague stet- _,: supra, 408 U.S. at p. 109, 92 S.Ct. at, .E 4. utory language. To preserve the ordi- 2299,) „- " Dance's validity, it must be narrowly con- ' ` strued to apply only to theatres in which Similarly, our California Supreme Court y". the preponderant programming consists of has observed: , •: films in which the dominant theme is the "[V]ague statutory language,resulting in .' ; ;y. J depiction or description of the ordinance's inadequate notice of the reach and limits ' enumerated sexually explicit activities. of the statutory proscription, poses a spe-' , _ however, since our opinion placing such a daily serious problem when the statute' > „ narrow construction upon the ordinance will concerns speech, for uncertainty concern- ", +adequately protect plaintiffs',pending trial, ing its scope may then chill the exercise, we need not reverse the judgment. of protected First Amendment rights. The Ordinance Must Be Narrowly Con- ' (See Lewis v. City of New Orleans(1974) ,:., y+, •n• strued 415 U.S. 130, 133-134, 94 S.Ct. 970, 972— r ' 973,39 L.Ed2d 214,219-220; Gooding v. _, , ,, [1] It is a basic principle of.dueprocess Wilson (1972) 405 U.S. 518, 521, 92 S.Ct that an ordinance is unconstitutionally -+;; : - 1103, 1105,31 L.Ed.2d 408,413.) (Pryor vague if its prohibitions are not clearly Municipal defined. (See Grayned v. City of Rockford vunicpal Court (1979) 25 Ca1.3d 238,s "� (1972)408 U.S. 104, 108,92 S.Ct. 2294,2298, 251, 158 Cal.Rptr. 830, 599 P2d 636.) '33 L.Ed.2d 222.) There must be ascertains- A c, clusion,however, that the language :..: ,F ble standards. "Men of common intelli- of the ordinance does not meet constitution- 'A gence cannot be required to guess at the al standards of specificity is not necessarily •,''=• .. f meaning of the enactment. [Fn. omitted.]" dispositive of the case. (Pryor v. Municipal 't 4.' (Winters v. New York (1948) 333 U.S. 507, Court, supra, 25 Ca1.3d at p. 253, 158 Cal.' 515, 68 S.Ct. 665, 670, 92 L.Ed. 840.) Rptr. 330, 599 P.2d 636.) In Young v. • ,, Moreover: American Mini Theatres,supra,427 U.S.50, • +�;: "The general test of vagueness applies 61, 96 S.Ct. 2440, 2447,,49 L.Ed2d 310, in ="'`; with particular force in review of laws discussing a vagueness attack on the De- dealin• • g with speech. '[S]tricter Stan- troit ordinance which contained an identical dards of permissible statutory vagueness definition of an adult theatre,the court said :41, may be applied to a statute having a that it saw "no reason why the ordinances • ' _ potentially inhibiting effect on speech; a were not 'readily subject to a narrowing '. man may the less be required to act at his construction by the state courts.'" ▪ :;;,• peril here,because the free dissemination [2] Ve must construe this legislation, if ~•,fy ; of ideas may be the loser." (Hynes v. onably possible to preserve its constitu- Ma or of Oradell(1976 425 U.S.610,620, • ,.1. , ��: y ) , tionalit . (Kash Enterprises Inc. v. City of, 96 S.Ct. 1755, 1760, 48 L.Ed.2d 243.) Los Angeles, supra, 19 Ca1.3d 294, 305, 138 As the United States Supreme Court has Cal.Rptr. 53, 562 P.2d 1302.) As our _Su- . '= pointed out:, creme Court eicuialms1 jD Pryor. supra. Z5 :'? - "[W]here a vague statute 'abut[s] upon Ca1.3d at page 253. 158 Cal RV 330. 599 s sensitive areas of basic First Amendment P.2d 636: , freedoms,:it'operates to inhibit the exer- "The judiciary hears an ahl�o" to , _ cise of [those] freedoms.' Uncertain 'construe enactments to give specific con- ', 1,- 5. In this respect.,we are also mindful that arti- ment. (See People v. Glaze (1980) 27 Ca1.3d cle I, section 2 of the California Constitution 841, 844,fn.2, 166 Cal.Rptr. 85, 614 P2d 291; � 1 has been construed as even more protective of Wilson v. Superior Court(1975) 13 Ca1.3d 652,' : 4`- -, speech than the United States First Amend-' 658, 119 Cal.Rptr. 468, 532 P.2d 116.) \ , i \ - '. :j ' r.,r - S. a-r.w+.r'q-q,••-. or.✓�,,,r, ,_-•v,- --„T'fvv',.`. "7'• c. _ • ▪ • • • '.' .. - ,�._r ,, . � ' ` •, + n` ' is 'i- fi. '1 ` _ = . . rr� ' ...:J•. .%r' +>,:_ r . F_:. r rf ` ..i:-.lfY,,l^<'!r,� �j�'r. Y- ki _ .a`?.•..wr�w-:-{K%1-•`l :i,.�.Z?.Y.14-{�'r:! � yYt l�:iY<z: + I-r{yr=r r._ . Ca - ` +`4 -4�'•`,��, :vim_ r..�i - -r- ti?i. _ _ >J. ,' ^'+ r3,e4 1 rrC'b +: 7 •Yl. �•'.> :}re i✓.. ' x r' V:._.7 ' r, " ter, yY':;,' If,- •r.. `i;__ ,s.w .x•.1 .r.•_ 115 CaLApp.3d 160 PRINGLE v. CITY OF COVINA 255 i Cite as,App.,171 CaLRptr.251 . i tent to terms that might otherwise be and had not "indicated any plan to exhibit ' to I unconstitutionally vague.' (Associated „pictures even arguably outside the coverage `" Home Builders etc., Inc. v. City of Liver- 9f the ordinan s" (id., at p. 59, fn. 16, 96 • 4 .. 16i more (1976) 18 Cal.3d 582, 598, 135 Cal. S.Ct. at p. 2447, fn. 16) lacked standinr, to Rptr. 41; 557 P.2d 473,92 A.L.R.3d 1038.) raise the vagueness issue. - Thus we have declared that 'A statute N it will not'be held void for unrertstin�f The court in young said: "We find it any reasonable and practical construction unnecessary to consider the validity of�the can be given its language.' (American vagueness] arguments in the abstract. For Civil Liberties Union v. Board of Educe- even if there may be some uncertainty • tion(1963)59 Ca1.2d 203,218,28 Cal.Rptr. about the effect of the ordinances on other 700,379',P.2d 4.) If by fair and reasona- litigants,they are unquestionably applicable ble interpretation we can construe this to these [litigants]." (Id., at pp. 58-59, 96 :-to S.Ct. at pp. 2446-2447.) And "since the ordinance]to sustain its validity,we - adopt such interpretation . .. limited amount of uncertainty in the ordi- - - nances is easily susceptible of a narrowing _ :a. 155 Ij3] With these principles in mind, we construction, we think this is an inappropri- 5+t) now consider plaintiffs' contention that the ate case in which to adjudicate the hypo' `._ Covina ordinance contains impermissibly thetical claims of persons not before the 1. vague terms and therefore "chills freedom Court." (Id., at p. 61, 96 S.Ct. at p. 2447). i.CL of expression by deterring the exhibition of ' - 601" films that may or may not be within its Walnut simply followed Young in finding ambit." that a theatre which conceded that "it did y)1 We first turn to plaintiffs'argument that show and plans to continue showing movies they cannot determine by any objective which fall within the ambit of the ordi- they standard when a film is "distinguished 4r ne �agla 1 the requisite standinto g characterized �v" an "emphasis" on the challenge the ordinance for vagueness or i)' overbreadth• (100 Cal.Appjld at p. 1021; 160 >&1 enumerated sexual activities. In the ab- C1611 al.p. 411; see also Northend Gine- ;a• sence of a limiting interpretation, there is ma, Inc. v. City of Seattle (1978) 90 i•, merit to plaintiffs' claim, especially in view Wash2d 709, 585 P.2d 1153, 1157; Airport 50, of the history of this ordinance. Pringle Book Store, Inc. v. Jackson (1978) 242 Ga. in declared that he had been warned by_f_ov_- 214, 248 S.E.2d 623, 628.) 1177:�ce that any "X-Rated" film would .al violate the Ordinance. Defendant in its an- Here, however, we clearly are presented said ewer denied that it construed the ordinance with an actual, not hypothetical, claim of to prohibit the showing of all "X-Rated" uncertainty deterring the exercise of pro-, - .sag films. Yet defendant has not offered any speech. The litigants herein are a alternative construction which could give neighborhood theatre operator and patron further guidance to the Cinema and elimi- who wish occasional to exhibit and view, .� nate uncertainty as to what type of films artistic serious films which have been rated, of can be shown without risking a misdemean- "X" by the Motion picture Association 9f. � lgg or prosecution. America. However, rather than risk prose-, ��. cution, the Cinema is deterred from show-. instead, defendant claims_that nlaintiffs ing any "X-Rated" film, no matter how 154 25 vagueness arguments were answered in Young v. American Mini Theatres, supra, nationally recognized,as part of a repertory, 427 U.S. 50; 96 S.Ct. 2440, 49 L.Ed.2d 310, Program. and Walnut'Properties, Inc. v. City Council We must, therefore,attempt to eliminate 19°' (1980) 100 Cal.App.3d 1018, 161 Cal.Rptr. thh j ncertain narrowly construing the 411. We disagree. The ma'o i in Young language distinguished or characterized by'geldthat the Detroit theatreswhich 'pro- an emphasis" in order to sustain the stat-'552, ppse[d1 to offer adult fare on a regular rate's validjjy. Dictionary definitions can be basis"(427 U.S. at j,59 6 p�.�.Ct. at 447) helpful. A common meaning of the word' 4 1 .- • j • . . -: `.,, ,• •' .'i;p. - - Y _yP '.r.`-, ,.•-n• yr . �. >� - .}' ..,!4".P'cilc: --.�ScJ. r,, _.t! �S� ' .;^.}.. •-4. /�..%. ..y. _�M1•. n'� t.?-w'� �� -•�4 1• 4Y ,, .}_y. — I ,-r'-- - , � , >jf":': - h�� ' 'S•%�°r-•. "� . v- ' '� "� •: �tf•'� R• #."f'r ;�>! .;; ." ' " .a. , '•� . _*-'-c.. . ,rF , ., i .4. j `: .t' .;" . . . '• . .F; .. ,, "c�� �•tS ?L - f , ;:':,-;',!:' . 256 [ 171 CALIFORNIA REPORTER 115 CaLApp.3d 160 ;` " , I distinguished is "conspicuous; marked." "The verb'use'or'used'has two mean- Zia' (Random House Dict. (1966) p. 417.) The ings recognized by all lexicographers and ' word"characterize"has been defined as"to unconsciously differentiated in common • ':; describe the essential character or quality speech: (1) To employ or be employed or or'(Webster's New Intl. Diet.(3d ed., 1966) occupied. In this sense the word would °" p. 376; italics added); and "character" has include a single isolated instance of use. '` - been described as "[t]he dominant quality" (2) To practice customarily or(in the case (Webster's New World Thesaurus (paper- of a place or thing) to be the subject of ' back ed.,1974),p.61; italics added). More- customary practice, employment or occu- 1 J'k over, "emphasis" has been defined as pation." (Murphy v. Traynor (1943) 110 "stress or relative importance given to. a Colo. 466, 135 P2d 230, 232; State v. a certain part or feature of a literary work Gastonguay(1919) 118 Me.31, 105 A.402, i (as by its prominent position in the whole or 403.) . its fullness of presentation)." (WebstiQTs [4] In the trial court, defendant re • - .i.' New Intl. Dict., supra, pp. 742-743; italics`sponded to plaintiffs' vagueness attack by added.) claiming that a single exhibition of any one _, By combining these definitions, we con- adult film constituted a "use" in violation strue the phrase "distinguished or charac- of the ordinance. But, such an interpreta- terized 1y an emphasis" to refer to the tion would necessarily render this ordinance ddominant or essential therge...Acco��n, constitutionally invalid. "Motion pictures, y adult films under the ordinance include only the medium of expression involved here,are films whose dominant or predominant char fully within the protection of the First t`t• acter and- tJieme_is the depiction of the Amendment" (Young v. American Mini j gnu - :ted sexual activities or anatomical Theatres, supra, 427 U.S. at pp. 76-77, 96 j S.Ct. at p. 2455 (conc. opn. of Powell, J.).) ; - H: Book l Stores, Inc. v. Edmisten (4th Reasonable regulations of the time, place Cir. 1 79) 612 F.2d 821, 834, pointed out and manner of protected speech are permit- that :uch language would withstand a ted by the First Amendment where those • vagu:new challenge, stating: "The refer- regulations are necessary to further signifi- ence the ' cant governmental interests. (Id., at p. 63, predominant character of pub- fn. 18,96 S.Ct-at p.2449,fn.18.) Thus,this licati ns or films has been sustained in regulation can only be justified "if it is r W: v. Illinois, 431 U.S.167, ?70-73, 97 within the constitutional power of the , : S. 2085 [2087-2089], 52 L.Ed.2d 738 Government; if it furthers an important or (197' [and] 'is like the 'dominant theme' substantial governmental interest; if the .e test in Roth v. United States,354 U.S. 476, governmental interest is unrelated to the ) 489 77 S.Ct.! 1304 [1311], 1 L.Ed.2d 1498 suppression of free expression; and if the (1. 7) • .• •"I incidental restriction on alleged First '•'e next consider the meaninP ^� Amendment freedoms is no greater than is ,:{ "o • "used" in the Covina ordinance's defi- essential to the furtherance of that inter- ': ni on of an adult theatre as a building est" (United States v. O'Brien (1968) 391 •' "u •' for presenting" sexually explicit ma- U.S.367,377,88 S.Ct. 1673,1679,20 L.Ed.2d .;• to 'al. The ambiguity lies in the ordi- 672; see also Young, supra, 427 U.S. at pp- n:ace's failure to indicate what proportion 79-80,96 S.Ct.at pp.2456-2457(Cone.Opn. o a theatre's programming would consti- of Powell, J.).) , to "use." f A zoning relation based...tin_a "single •.' As was noted by the Supreme Courts of isolated instance of use" would fail this 1 'lorado and'Maine: W. It c9Jald not be 'justified by the city's _ 0 For example, in Nei d rkiema In`v- ty after another, almost completely uninter- City of Seattle,supra,the Washington Supreme rupted by any plot" (585 P.2d at p. 1155, fn. Court noted that films being shown at the thea- 1.) S,ch a film clearly would fall within the tres"are one sequence of explicit sexual activi- ambit of the Covina Sromance. - i'-:.i' tom .:Z. i.a':4 ..' 'r. ..3 ''t • 4: w..�_.• :�'.+!V Y M1 ''� •i �a4"f.;."a�},f. -.. _S.'n 'j.-' L' i :� _ .li . -.y' --_-)1.-..`;',h:+ .+r:=- :j.nt '.,.,1 ?"-gin..:' :l,i"i J'- e-C• •si'•'J X� •�:�dv`. •". .'� �.-v,:- _,�jj•-.a-,-fill'..fi.r...:+ '',. 'j•' .1�1�F'i- J:tr,�i,;—N',� ..C�,.. :w?: �J. i"11'•1'�,t... -!•' .l':-F..7T:• '._''�� •ii-6'.f-�IIi-eJS'�:1►u a'"�a ..���.�1• J�'ti JS'•i��`S-'Ji..l•%/I.. .@.` %t_. �' '''. ,eA,,,i1- -, •;: n:�4•-:: �' ''•. •.- r. ''c•'.� �' "4 ^':'". ::,:'�' ,,:! .`t: .k). _:v ..' '"• i - -/ '' - 'r..1- l80 115 CaLApp.3d 163 PRINGLE v. CITY OF COVINA 25,7 Cite as,App»171 CaLRptt.251 mean_ _Ls* `reslin ]preserving the character of its A Preliminary Injunction Should Have ,. rs and � (Id.,at p.71,96 S.Ct.at p. Been Granted ommon 2452.) While defendant certainly has an ?laintiffs alleged that the Qinenawnnld i• moved or important and substantial interest in main- Qnl�y present serious, • or artistic "X" rates i,• I would taming the stability of its neighborhoods, fi�rr s of the variety it previously_exhibited of use. vve cannot conclude that defendant could land these 'films would only constituts1 a Ess . : : the case reasonably have determined that. a single :mall portion of its program. As we have ,1 1 . ' !+iect of , showing of a sexually explicit film produces construed this ordinance, it does not apply J• rA occu- adverse "secondary effect[s]" destructive of to the Cinema's proposed programming. :13) 110 f the general quality of life in the neighbor- Lacking such an authoritative restrictive . rrte v ii hood. (See Young,supra,427 U.S. at p. 71, interpretation, plaintiffs suffered irrepara- •A.402, fn. 84, 96 S.Ct. at p. 2453, fn. 84; p. 80, 96 ble injury pending trial since the ordinance '•S.Ct. p. 2457 (conc. opn. of Powell, J.).) deterred the exhibition of these films. The snt re- Indeed, we would have to conclude-that superior court, therefore, should have nar- c2ek by "the ordinance was not rationally tailored rowly construed the ordinance and granted •any one to �g port its asserted pyse" (id., at.p. the limited preliminary injunction plaintiffs ,iolation 83,96 S.Ct.at p.2458)as a necessary zoning _sou ht- zrpreta- regulation to prevent neighborhood blight rdinance i • �"�T'was instead a "m In view of our construction of the statute, but "misconceived attempt however, a preliminary injunction pending 1 pictures, directly..? re late content of expression `� ;tee,are itrial is no longer necessary. As a result of by"using the power to zone as a pretgxt for this opinion, the ordinance cannot be en- ' First suppressing expression" (Id., at p. 84, 96 Mini S.Ct.at p. 2459). - forced against the Cinema unless, contrary 11 %-77, — — to its representations and previous policy, ., lel,J)) To preserve the ordinance's validity, the the Cinema presents a preponderance of ii ..t, place term "used" must, therefore, be construed films in which the dominant theme is the 1 permit_ to mean"'[t]o practice customarily." "Cus- depiction of the ordinance's enumerated those 1 tomarily" means "usually, habitually, ac- sexual activities. .. signifi- cording to the customs, general practice or The judgment(order)is remanded to the i at p.63, usual order of things, regularly." (Black's superior court for further proceedings con- • fees this Law Diet., (4th ed. 1951) p. 462; italics , tustent with the views expressed herein. If it is added.)7 1 of the Moreover, "usually" is commonly defined COBEY and ALLPORT,JJ., concur. - .ant or as "more often than not: most often: as a - if the rule: ORDINARILY." (Webster's New to the Intl. Diet., supra, p. 2524.) Accordingly, a I • a' if the preponderance of the films shown must First eve as'. eir ominant e t me the de iction w : NETNUMBERSTSIEY ut inter- o e or inance s enumerated sexual activi- . T =1'68) 391 ties in order for a theatre to be deemed an 1 LEd 2d 'a u t motion picture thew re" within the :I •S.at pp, ambit of the zoning ordinance. ! 4tac•Opn. 7. Since a violation of the ordinance is a misde- This interpretation comports with the defini- I ni meanor, this conclusion is also compelled by lions in defendant's Municipal Code zoning law the established policy to construe a penal stat- of"use"(§ 17.04.606)and "used"(§ 17.04.609) a`single I ute as favorably to the person facing prosecu- which read as follows: >� fill this tion as its language p and the circumstances of "'Use' means the u se for which land its application reasonably permit; the Cinema and/or building is erected, arranged, de- tile city's Is, therefore, entitled to the benefit of every signed or intended,or for which land and/or reasonable doubt as to the true interpretation building is or may be occupied or main- ', Nninter- of words or the construction of language used tamed." (§ 17.04.606.) 1155,fn. in the ordinance. (See People v. Walker(1976) "'Used' includes 'arranged for; 'designed ':hin the 18 Ca1.3d 232,242, 133 Ca1.Rptr. 520, 555 P.2d for; 'occupied or intended to be occupied 306.)' \ for.'" (§ 17.04.609.) 171,GLRptr.-7 i I _ !'. ':T:: °• ':Ji 2' T' ..•1. �1�. 'R-i.`.4 Tv N•S. 1 2 3 4 5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY IF RENTON, a municipal ) 7 corporation, et al . , ) NO. 82-2-02344-2 ) Plaintiffs , ) PLAINTIFFS' BRIEF RE: RES 8 ) JUDICATA AND COLLATERAL s. ) ESTOPPEL 9 ) PLAYTIME THEATRES, INC. , a ) 10 Washington corporation , . ) et al . , ) 11 ) Defendants . ) 12 ) 13 I . ISSUES PRESENTED 14 A. Are the Defendants precluded from attacking the 15 validity of the Renton ordinances on their face and as 16 applied to the Defendants specific land use under the 17 prov sions of the United States Constitution? 18 B. Are the Defendants precluded from attacking the 19 vali ity of the Renton ordinances on their face and as 20 appl ed to the Defendants specific land use under the 21 provisions of the Washington State Constitution? 22 II. ARGUMENT �3 A. The Defendants are precluded pursuant to the doctrines of res judicata and collateral , 24 estoppel from attacking the validity of the Renton ordinance on its face , and as applied 25 to the specific land use operated by the 26 Defendants , under the provisions of the United States Constitution and the Constitution of the State of Washington . 27 28 PLAINTIFFS' BRIEF RE: RES JUDICATA WARREN&KELLOG ,P.S. ATTORNEYS AT LAYS AND COLLATERAL ESTOPPEL PAGE 1 um)SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 The elements and distinctions between the doctrines of 2 res -udicata and collateral estoppel in Washington have been 3 more particularly set forth in the Brief filed by Plaintiff 4 in s pport of Plaintiff' s Motion for Summary Judgment re : 5 Consuitutionality of Ordinance or Alternatively Striking 6 Defe ses. A copy of the leading case of Bordeau v. Ingersoll 7 Rand Co . , 71 Wn . 2d 392 , 429 P . 2d 207 ( 1967 ) has been 8 prov ded to the Court. The attention of the Court is drawn 9 part cularly to pages 395 and 396 of that case report for an 10 exce lent review of res judicata and collateral estoppel . 11 It is the contention of the City of Renton that it is 12 improper for , the Defendants to raise once again the 13 cons itutional objections to the zoning ordinance which they 14 have once litigated in federal court. Having failed in their 15 atte""pt to defeat the ordinance scheme in federal court, now 16 the Defendants seek to relitigate those identical issues by 17 devo ing substantial portions of their Brief in argument to 18 matt-rs which have been decided as between the parties . 19 An excellent example of the danger of the Defendants!' 20 approach is illustrated by the Court' s inquiry during 21 arg ment on the opening day of trial regarding "empirical 22 dat. " to form the basis for enactment of the legislation. 23 Thi question was raised and decided in the federal court 24 lit' gation between these parties . 25 To understand the Plaintiffs' argument regarding issue 26 pre lusion in this enforcement action , the Court must 27 and:rstand what the issues were in the federal court 28 PLA NTIFFS' BRIEF RE: RES JUDICATA WARREN&KELLOGG,P.S. ATTORNEYS AT LAW AND COLLATERAL ESTOPPEL PAGE 2 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 litigation. That action was brought by Playtime Theatres , 2 Inc . and Kukio Bay Properties , Inc. , both Defendants herein ,' 3 as Plaintiffs praying, in summary, for the following relief: 4 1 . A declaratory judgment declaring the ordinance to be unconstitutional on its face 5 and in its threatened application to the intended land use . 6 2 . The issuance of preliminary and permanent 7 injunctive relief to restrain the City of 8 Renton from enforcing the ordinance. 3. Award of damages under 42 U. S. C. Section 1983 9 for damages alleged to have been suffered by reason of the loss of business and 10 expenditure of assets to protect rights guaranteed under the United States 11 Constitution, together with reasonable attorneys fees and other damages to be 12 established at time of trial . 13 Defendants Playtime Theatres , Inc . and Kukio Bay Properties , 14 Inc. have filed their answer herein alleging the following 15 affi mative defenses against the Plaintiffs' first and second 16 caus-s of action : 17 1 . That the ordinance is facially unconstitutional and as applied in that it is 18 in violation of the First , Fourth , Fifth , Eighth and Fourteenth Amendments to the 19 United States Constitution. 20 2 . That the ordinance is contrary to the Constitution of the State of Washington on 21 its face , and as applied , in that it violates 22 Article 1 , Section 5, Article 1 , Section 11 , Article 1 , Section 12, Article 1 , Section 16 , Article 1 , Section 21 , Article 2, Section 19 23 and Article 11 , Section 3 of the Washington State Constitution. See Affirmative Defenses 24 C , page 5 , Answers of Playtime Theatres , Inc . 25 and Kukio Bay Properties, Inc . A more detailed listing of the allegations and 26 con entions of the Plaintiffs in the suit that they 27 ins ituted in federal court is as follows : 28 PLAINTIFFS' BRIEF RE: RES JUDICATA WARREN&KELLOGG,P.S. ATTORNEYS AT LAW AND COLLATERAL ESTOPPEL PAGE 3 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 1 . They prayed for a declaratory judgment alleging that the ordinance was unconstitu- 2 tional as written and/or as threatened to be applied to their land use under the First , 3 Fourth , Fifth , Sixth and Fourteenth Amendments to the United States Constitution . 4 See page 2, line 16-25; page 19, line 21-26. 5 2 . That the zoning ordinance was passed to prevent the opening of any adult motion 6 picture theater within the City of Renton and to effectively censor First Amendment 7 protected materials . See page 5 , line 28-page 6 , line 2 ; page 6 , line 22-page 7 , 8 line 18 ; page 8 , line 8-17 ; page 13 , line 22-24 ; page 14, line 12-30 . 9 3 . That the ordinance was enacted as a part of a 10 scheme to deny to Playtime Theatres , Inc. and Kukio Bay Properties , Inc . access to the 11 marketplace for sale of allegedly non-obscene materials . See page 6 , line 13-21 ; page 11 , 12 line 1-8 ; page 16 , line 4-9 . 13 4 . That the ordinance discriminated in an arbitrary and capricious fashion as to the 14 nature of film fare presented on a basis not related to a valid public purpose in 15 violation of the Equal Protection Clause of the Fourteenth Amendment . See page 7, line 16 - 18-24 ; page 13 , line 26-31 ; page 15 , line 11-21 . 17 5 . That the ordinance is intrinsically void for 18 vagueness under the First Amendment and Fifth Amendment of the United States Constitution. 19 See page 7 , line 28-page 8, line 3 ; page 11 , line 24-page 12, line 6; page 15, line 1-10. 20 6 . That the ordinance was enacted without 21 legislative fact finding. See page 8, line 3-8; page 14, line 1 -11 . 22 7 . That the ordinance imposed an 23 unconstitutional prior restraint prohibited by the First , Fourth , Fifth and Fourteenth 24 Amendments to the United States Constitution . 25 See page 8 , line 17-24 . 8 . That an adult motion picture theater is not a 26 permitted use within the City of Renton and that therefore in order to locate an adult 27 motion picture theater within the City it is 28 necessary to obtain a special permit , PLAINTIFFS' BRIEF RE: RES JUDICATA WARREN&KELLOGG,P.S. ATTORNEYS AT LAW AND COLLATERAL ESTOPPEL PAGE 4 10O SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 conditional use permit or variance . That this process requires submittal to an 2 unconstitutional exercise of unbridled discretion in the absence of written 3 criteria, standards or guidelines and therefore is violative of rights protected 4 under the First , Fifth and Fourteenth Amendments to the Constitution of the United 5 States. See page 8, line 25-page 10, line 6 21 ; page 12, line 27-page 13, line 21 ; page 16 , line 10-page 19, line 19 . 7 A copy of theifederal court complaint is attached to the 8 complaint filed herein. 9 This Court is now bound by Judge McGovern' s finding of 10 fact and the judgment entered thereon that the ordinance is 11 constitutional, on its face and that the amendment to further 12 define the term "used" was a narrowing construction. 13 The City' s basic contention is that the facial 14 constitutionality of the ordinance was firmly decided in the 15 You case, and in Northend Cinema , Inc . v. Seattle . Under 16 the principles of stare decisis , the Young and Northend 17 Cin-ma decisions require a finding that the Renton ordinance 18 is constitutional on its face . 19 Further, and as an entirely separate claim, the City 20 conuends that ,, inasmuch as the Defendants herein did litigate 21 thai issue in' the federal court before Judge McGovern, they 22 are now precluded under the doctrine of res judicata and/9r �3 col ateral estoppel from relitigating that same issue in the 24 Stale court. Costantini v. Trans World Airlines , 681 F.2d 25 119 ? , 1201-02, at footnote 7 (9th Cir . ) , cert . den. U.S . 26 103 S.Ct . 570, 74 L.Ed . 2d 932 (1982) . A copy of the �7 Cos antini case is attached hereto as Attachment "A" . 28 PLA NTIFFS' BRIEF RE: RES JUDICATA WARREN&KELLOGG,P.S. ATTORNEYS AT LAW AND COLLATERAL ESTOPPEL PAGE 5 100 SO.SECOND ST.,P.Or BOX 626 RENTON,WASHINGTON 98057 2cc-R67R 1 , s was noted in Costantini , supra, at page 1201 , " . . .the, 2 doct ine of res judicata (or claim preclusion) ' bars all 3 groun• s for recovery which could have been asserted, whether 4 the were or not, in a prior suit between the parties . . .on 5 the -ame cause of action. ' Ross v. IBEW, 634 F. 2d 453, 457 6 ( 9th Cir . 1980 ) . Hence Appellant ' s contention that the, 7 question involved in his present action was never actually 8 liti_ated in the prior action is simply irrelevant ." 9 The Defendants' statement in their trial brief at page 10 4, 1 ne 7-12, that they "have never litigated the Federal 11 Cons itutional questions 'as applied' to Defendants is 12 pate tl untrue . See Argument above for a specification of 13 the claims asserted by the Defendants in their federal court 14 action , as compared with the claims of their affirmative 15 defe ses asserted herein . 16 Although Plaintiffs' pleadings in the federal complaint 17 challenged Renton ' s zoning ordinance on an "as applied" 18 basi. , they offered no proof on that issue . The entire 19 thru t of their argument and proof in the federal lawsuit, 20 both as to the original complaint and the amended and 21 supp emental complaint, was an attack on the facial validit� 22 of t e ordinance . It is basic "Hornbook" law, however , that 23 it akes no difference that the Defendants did not pursue 24 thei "as applied" claims after they had raised it . 25 The judgment of the United States District Court for the 26 West rn District of Washington with regard to the facial and 27 applied constitutionality of the ordinance must be accorded 28 PLAI TIFFS' BRIEF RE: RES JUDICATA WARREN&KELLOGG,P.S. ATTORNEYS AT LAW AND COLLATERAL ESTOPPEL PAGE 6 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 full faith and credit as judgments of courts of states, 2 wherein federal court judgments were rendered. Williams v. 3 Stea' ship Mutual Underwritin: Association, 45 Wn. 2d 209 , 273 4 P.2d 803 ( 1954) ; In re Finch, 156 Wash. 609, 287 Pac. 677 5 ( 1930) . 6 III. CONCLUSION 7 The Defendants must be precluded from further muddying 8 of t e issues before the Court by a clear ruling that this 9 Court is bound by the determinations of the federal court 10 (the forum chosen by the Defendants themselves) regarding the, 11 issu=s of the constitutionality of the ordinance on its face 12 and _s applied, to the specific land use for the purpose of 13 the nited States Constitution . Furthermore , our State 14 Supr=me Court has held in Northend Cinema that the relevent 15 prov sions of ,our State Constitution are to be construed 16 iden ically with the Federal Constitution. 17 Therefore , it is necessary that the Court enter its 18 orde precluding further dispute regarding thel 19 cons itutionality of the ordinance under the State and 20 Fede al Constitutions , and to avoid the unnecessary 21 expe diture of judicial time and energy involved ir} 22 reli igation of previously decided issues . �3 DATED: October , 1983. 24 Respectfully submitted , 25 26 LAWRENCE J. WARREN 27 28 PLAI TIFFS' BRIEF RE: RES JUDICATA WARREN&KELLOGG,IP.S. ATTORNEYS AT LAW AND •OLLATERAL 'ESTOPPEL PAGE 7 1oo SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 • COSTANTINI v. TRANS WORLD AIRLINES 1199 Cite as 681 F.2d 1199 (1982) dicating the sell- paid the buyer, is applicable here and re- concealment, as required for alleged excep- tnce!'atio of the mand to the district court to determine such tion to law of res judicata. seller requesting fees as are appropriate in pursuing this ice betwIIeen the Affirmed. appeal. rket price on the : IV. CONCLUSION 1. Judgment 0=713(2) nt, though draft- We find the award exceeds the authority Doctrine of res judicata bars all not m Odify or granted the arbitrators by the agreement of grounds for recovery which could have been :t and the appli- • these parties and was appropriately vacated asserted, whether they were or not, in prior In San Martine by the district court. Damages and costs suit between same parties on same cause of agreement recit- awarded Coast by the magistrate were not action. concluded with improperly granted. 2. Judgment 'a585(2)the agreement Accordingly, we AFFIRM the judgment In determining whether successive law- answer to the b Y� mages authoriz- below and REMAND the question of rea- suits involved single cause of action, for m a breach or sonable attorneys fees in this appeal. purpose of res judicata, court inquires: ty. [Submitted whether rights or interests established in claims ofi either prior judgment would be destroyed or im- w a result of 'the O S KEY NIM3ESSYSTEM paired by prosecution of second action; they respective- T whether substantially same evidence is Martine, 293 presented in two actions; whether two suits involve infringement of same right; and nn the re ult if whether two suits arise out of same trans- 'or other relief actional nucleus of facts. A. V. COSTANTINI, Plaintiff-Appellant, the purchase 3'. Judgment 0=585(2) ssion contract. v Action alleging that defendants con- of arbitration TRANS WORLD AIRLINES and Does I spired to prevent plaintiff from opening his lution inolves through XC, Defendants-Appellees. branch offices, and did so by secretly sub- I we vacate this No. 80-4239. mitting false statement that offices were trary to rem- being sold as franchises and were under t and as be- United States Court of Appeals, different ownership than parent offices was itrators under Ninth Circuit. barred, under principles of res judicata, by e it is not for Argued and Submitted Oct. 15, 1981. prior action which also alleged defendant's merits of an participation in efforts to insure collapse of it be shielded Decided July 22, 1982. plaintiff's license agreement and also ed to insure charged defendant with spreading false- in the agree- Plaintiff brought suit alleging that de- hoods about plaintiff's businesses, the only • issues hey endants conspired to significant difference beingthat plaintiff p prevent him from otem .Yfarine claimed to have unearthed one additional ericanemTow- pening his planned branch offices, and did o by secretly submitting false statements falsehood communicated by defendant. 52 (5th Cir. hat branch offices of plaintiff's travel ser- 4. Judgment 0...949(2) arbitration • ce were being sold as franchises and were Even assuming that letter defendant 1 nder different ownership than parent of- sent plaintiff deliberately misrepresented 't court, va- i ices. The United States District Court for facts upon which plaintiff's cause of action e uphold the he Northern District of California, William was based, plaintiff failed to make out he form of Schwarzer, J., dismissed complaint as claim of fraudulent concealment, as re- y fees and arred by res judicata, and plaintiff appeal- quired for alleged fraud exception to res t also seeks d. The Court of Appeals, Pregerson, Cir- judicata, where plaintiff failed to plead appeal. Ve uit Judge, held that: (1) res judicata with particularity facts establishing that he hale order arred plaintiff's suit, and (2) plaintiff diligently attempted to uncover information s fees to be i iled to make out claim of fraudulent that he said was concealed. f i -. • - .. . : ._ . . :. `: --i • - - . • . ? .. �6' -n. W .��y— J -_ --ei 1 _ d —v - a..re' _S w y� r . ♦ ttiL - 1200 681 FEDERAL REPORTER, 2d SERIES A. V. Costantini, pro se. In February 1974, appellant and his wife hi filed suit in the United Statesby District Stephen C. Tausz, Bronson, Bronson & If Court for the Northern District of Califor- McKinnon, San Francisco, Cal., for defend- ants-appellees. nia against numerous defendants, including TWA as well as other airlines and ATA. dE Appeal from the United States District The complaint was dismissed without preju- 01 Court for the Northern District of Califor- dice, pursuant to a stipulation of the par- nia. ties, in September 1974. In October 1975, appellant and his wife Ji filed a new complaint against ATA, ATC, Before WALLACE and PREGERSON, I1 Circuit Judges, and BYRNE*, District TWA, and various other airlines. This corn- Judge. plaint ["the 1975 complaint"] stated several corn- a counts and some pendent state • PREGERSON, Circuit Judge: claims.i The district court dismissed the 1975 complaint in July 1977 and entered Appellant Costantini appeals from the judgment against appellant and his wife on t district court's judgment dismissing his September 1. The Ninth Circuit affirmed E complaint as barred by res judicata. Be- on appeal. 1 cause we agree that res judicata bars the In 1978, appellant made a FOIA request instant lawsuit, we affirm. to the Civil Aeronautics Board and was sent 1 Appellant operates a travel agency busi- a copy of a June 1973 letter from TWA to ness in the San Francisco bay area. In the CAB in which TWA said appellant was 1972, he entered into a license agreement suspected of selling as franchises what he with Montgomery Ward & Co. ["Ward"] was representing as branch offices. This that permitted him to open branch offices charge, if true, would be grounds for disap- in Ward stores nationwide. He opened one proval of the "branch offices" by ATC and such branch office in June 1972 and secured IATA. In a follow-up FOIA request in approvals from the Air Traffic Conference 1979, appellant obtained an August 1972 of America ["ATC"], a division of the Air letter from TWA to ATA containing the Transport Association of America ["ATA"], same allegation. According to appellant,he and from the International Air Transport had never known that TWA was spreading Association ["IATA"]. These approvals are this particular charge against him, because a prerequisite for a branch office to issue TWA had assured him in a May 1973 letter interstate and international airline tickets. that the only adverse information it had heard about his business concerned allega- In March 1973, appellant opened a second Ward branch office, and shortly thereafter tions of illegal ticket sales and unqualified a third. ATC and IATA refused to approve branch managers. • these offices. In April 1973, Ward in- Appellant began the instant lawsuit in formed appellant that it would not allow February 1980. His amended complaint him to open more Ward branches until he ["the 1980 complaint"] named TWA and could secure ATC and IATA approval. In ninety Does as defendants, alleged diversity April 1974, Ward cancelled the license jurisdiction, and pleaded a single cause of ' agreement altogether, effective June 15, action. It alleged that the defendants con- 1974. spired to prevent appellant from opening •The Honorable William Matthew Byrne, Jr., Count IV alleged unfair competition under Cali- United States District Judge,Central District of fornia law, charging that defendants communi- California, sitting by designation. cated false information about plaintiffs' busi- ness that resulted in"baseless charges"against I. Count II of the 1975 complaint alleged a con- plaintiffs by the ATC. Count V alleged inter- spiracy to monopolize trade,pursuant to which ference with business relations and incorporat- defendants had agreed that plaintiffs'proposed ed the earlier factual allegations. • Ward branch offices would be disapproved. ,i.,..-- . ..r• -.ter- 3 COSTANTINI v. TRANS WORLD AIRLINES 1201 Cite as 681 F.2d 1199 (1982) :, appellant and his wife his planned Ward branch offices, and did so interference with his relationship with ATC United States District by, "secretively submitting to ATC and and IATA. here District of Califor- IATA false'statements that the branch of- This court has heldJhat a_federal cihut us defendants, including fices of plaintiff's United Travel Service sitting in diversity mast apply the res iusii- ther airlines and ATA. were being sold as franchises and were un- cata law of the state in which_it its. dismissed without preju- der a different ownership than the parent 1iramm v. Lincoln, 257 F.2d 250, 255 n.6 stipulation of the par- offices." (9th Cir. 1958). We have applied that rule !974. The 1980', complaint was dismissed by even where the prior action was in federal appellant and his wife Judge Schwarzer in April 1980 on the court and involved federal questions. See int against ATA, ATC, ground that it was barred by res judicata: St. Paul Fire & Marine Ins. Co. v. Weiner, ther airli es. This corn- It is from this judgment that appellant 606 F.2d 864, 868 (9th Cir. 1979) (collateral mplaint"] stated several appeals. Appellate jurisdiction is based on estoppel rules of forum state applied where l some endent state 28 U.S.C. §'1291. prior judgments were federal criminal con- ct court dismissed the DISCUSSION victions). Hence California's law of res ju- July 1977and entered [1] Appellant has mistakenly contended dicata dictates what preclusive effect is to llant nd his wife onbe accorded to the prior judgment against Pe i that res judicata applies only to "questions appellant. That California law, however, Ninth Circuit affirmed 1 essential to, and actuallylitigated in the determines the res judicata effect of a prior first action." Actually, the doctrine of res federal court judgment by applying federal made a FOIA request judicata [or claim preclusion] "bar[s] all standards.3 Therefore, those federal stan- tics Board and was sent grounds for recovery which could have been dards are applicable here to determine the 73 letter from TWA to . asserted, whether they were or not, in a preclusive effect of the prior judgment. WA said appellant was prior suit between the same parties . . . on as franchises what he I the same cause of action." Ross v. IBEW, Under federal law, appellant does not branch offices. This t 634 F.2d 453, 457 (9th Cir. 1980) (emphasis avoid the bar of res judicata merely because d be grounds for disap- i added). Hence, appellant's contention that he now alleges conduct by TWA not alleged h offices" by ATC and 1 the question involved in his present action in his prior suit,' nor because he has pleaded r-up FOIA request in was never actually litigated in the prior a new legal theory.5 Rather, the crucial tined an August 1972 action is simply irrelevant 2 question is whether appellant has stated in ATA containing the In the district court, appellant pointer to the instant suit a cause of action different :ording to appellant, he • from those raised in his first suit. two differences between the 1975 suit and it TWA as spreading the instant'suit which, he argued, made res [2] This circuit approaches that crucial a againstthim, because judicata inapplicable. First, he has alleged question tnnn ce eral criteria to rho in a M y 1973 letter new facts—that TWA falsely told ATC and termine w , its inv .e information it had IATA that appellant's branch offices were a single cause of action: ess concerned allega- actually franchises. Second, he has (1) whether rights or interests esta sales a d unqualified changed his legal theory from interference fished in the prior judgment would b i with his relationship with his employees to destroyed or impaired by prosecution o I e insta t lawsuit in 2. Appellant has apparently confused res judica- plies to facts which might have been pleade amend d complaint ; to with the related but distinct doctrine of col- with reference to the same event as well as to "] nam+d TWA and i lateral estoppel, which does apply only when those actually pleaded"). ants all ed diversity "an issue ,is actually and necessarily deter- ants, 1 mined." Montana v. United States, 440 U.S. 5- Scoggin v. Schrunk, 522 F.2d 436, 437 (9th led a single cause of 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 Cir. 1975), cert. denied,423 U.S. 1066,96 S.Ct. t the defendants con- i (1979). 807, 46 L.Ed.2d 657 (1976) (res judicata bars 'ellant from opening t 3. Younger'v. Jensen, 26 Ca1.3d 397, 411, 161 "assertion of every legal theory ... that might ( Cal.Rptr. 905, 914, 605 P.2d 813, 822 (1980); have been raised" in first action). competition under Cali- Levy v. Cohen, 19 Ca1.3d.165, 172-73, 137 Cal. at defend nts communi- i Rptr. 162,1167, 561 P.2d 252, 257 (1977); 4 B. 6. Harris v. Jacobs, 621 F.2d 341, 343 (9th Cir i about plaintiffs' busi- Witkin, California Procedure, Judgment, 1980) ("[r]es judicata preclusion extends onl� aseless charges"against i § 156(b)(2d ed. 1971). to claims that arise out of the same 'cause o Count {f alleged inter- action'asserted in the prior action"). H elations Ind incorporat- i 4. Lester v. NBC, 217 F.2d 399, 400 (9th Cir. legations 1954), cert. denied, 343 U.S. 954, 75 S.Ct. 444, 99 L.Ed. 746(1955) ("a judgment's finality ap- .. ' T,_r� 1202 681 FEDERAL REPORTER, 2d SERIES the second action; (2) whether substan- ditional rumor that TWA had spread. Fi- c( lo tially the same evidence is presented in nally, the two suits do involve infringement the two actions; (3) whether the two of the same right: the current suit seeks Sisi suits involve infringement of the same damages for violation of appellant's right to I, right; and (4) whether the two suite se advantageous business relations with Mont- t out of the same transactional nucleus of gomery Ward, just as the 1975 suit did 9 acts. q Thus the cause of action involved ;,,,,,,..the t Harris v. Jacobs, 621 F.2d 341, 343 (9th Cir. instant lawsuit is identical to one raised in ,E 1980). The last of these criteria is the most appellant's 1975 suit, so that res udicata important. Id.7 was properly invoked by the district court I [3j Both of appellant's lawsuits did l "arise out of the same transactional nucleu [4] Appellant seeks to escape this con_ t f facts"} TWA's alleged participation in elusion by arguing that TR'A fraudulently i efforts to ensure the collapse of appellant's concealed the facts upon which his current license agreement with Montgomery Ward. cause of action is based. We need not Both lawsuits charge TWA with spreading decide whether there is a fraudulent falsehoods about appellant's business prac- concealment exception to the law of res tices so as to ensure that ATC and IATA judicata because no fraudulent concealment would disapprove the branch-office ar- has been properly presented. Appellant rangement 8 The only significant differ- bases his argument on a letter TWA sent ence is that appellant claims to have un- him in May 1973, in reply to his inquiry as earthed one additional falsehood communi- to what adverse information TWA pos- cated by TWA. The 1975 suit alleged that sessed about his business. The letter re- falsehoods concerning illegal ticket sales ferred to charges that appellant had used and unqualified branch managers were illegal tickets and unqualified branch mana- spread, whereas the instant suit charges gers, and then added that a TWA sales false stories that appellant's branch offices were actually franchises. This evidentiary representative had "ma[d]e available to detail is scarcely enough to establish that Your personnel any information regarding the instant lawsuit arises out of a different your offices that was in our possession." "transactional nucleus of facts" than that Appellant insists that this' constituted a which generated the 1975 suit. fraudulent concealment of the fact that The other criteria for finding a single TWA had itself communicated an entirely cause of action are also met. Clearlydifferent charge against appellant to �, r TWA's freedom from liability for the loss of ATA.10 appellant's license agreement, established Even assuming that the letter was a de- by the 1975 action, could be impaired by liberate misrepresentation—which is far this instant action. The evidence in the from clear—appellant has not made out a instant action would apparently be virtually claim of fraudulent concealment because he identical with evidence offered in the 1975 has not pleaded with particularity facts es- action, except for the 1972 TWA letter to tablishing that he diligently attempted to ATA that appellant claims revealed an ad- uncover the information that he says was 7. No single criterion can decide every res judi the 1975 complaint had done. It is true that cata question; identity of causes of action appellant sought those damages in his 1975 "cannot be determined precisely by mechanis- action under a Sherman Act monopolization tic application of a simple test." Abramson v. theory, whereas he now claims interference University of Hawaii, 594 F.2d 202, 206 (9th with his business relationship with ATC and Cir. 19791. IATA. But, as mentioned above, a mere 8. See note 1 supra. change of legal theory does not imply a new cause of action. 9.' Paragraph 38 of the 1980 complaint seeks damages for the loss of the opportunity to open 10. See page 1200 supra. branch offices in Ward stores,just as 11106 of • - -- BETASEED, INC. v. U AND I INC. 1203 Cite as 681 F.2d 1203 (1982) Fi- concealed." Appellant filed his first (1974) even if such a showing would permit him to ment lawsuit nine months after receiving the . avoid the bar of res judicata. • seeks ' supposedly deceptive letter, and alleged, in- AFFIRMED. - ;ht to ter alia, tat TWA had conspired to cause yiont- ATC to di approve his branch offices. Cer- tainly he should have made discovery re-' 0 s KEYNUMBERSYSTEM did s quests fog any communications about his T in the business hat TWA and ATC might have sed in exchange . Appellant's contention that he dicata had "no tional basis for suspecting" that BETASEED, INC., Plaintiff-Appellant, • court. the May 1973 letter might not have given v him all t e adverse information TWA pos- s con- sessed about his business is simply not cred- U AND I INCORPORATED, ilently ible. Appellant had every reason, when he Defendant-Appellee. • urrent filed the original suit, to be suspicious of a U AND I INCORPORATED, Counter- >d not party he was alleging had "communicated claimant, Cross-Appellant, - idulent false an3 fraudulent information . . . re- of res suiting in baseless charges" against him. v. alment 1975 Complaint, 1142(c). BETASEED, INC., Washington Sugar pellant Appellant ,insists that hp. did resort to Beet Growers Association, the members A sent discove y procedures in his 1975 suit and and affiliates of the Washington Sugar uiry as indeed ade "ceaseless efforts to discover Beet Growers Association, Does 1 to A pos- the tru h." 1980 Complaint, 1134. But he 1500, inclusive, Counterclaim-Defend- :ter re- gives n details of those efforts and never ants, Cross-Appellees. td used ( explain what discovery requests he made Nos. 80-3490,,80-3514. i mana 1 in the 975 lawsuit, nor why those requests A sales failed o unearth TWA's August 1972 letter United States Court of Appeals, able to chargi g him with selling franchises. Ninth Circuit. garding I Hence he has not adequately alleged that Argued and Submitted Jan. 5, 1982. he ac d with reasonable diligence in trying g ;ession.1' I to disc ver the allegedly concealed informa- tion." Decided July 23, 1982. tuted a lct thatRehearing and Rehearing En Banc entirely Thu , the district court properly conclud- Denied Sept. 16, 1982. ; lant to ed th t the instant lawsuit is barred by res judic ta. Appellant has not shown the ex- Action was brought by sugar beet seed 1 istenc of any "fraudulent concealment", seller alleging that processor violated the ras a de - is fltr 11. Such pleading is a requirement of federal 747(1937)(deception by an attorney connected law. Rutledge v. Woven Hose St Rubber Co., with defendant's law firm kept plaintiff from de out a , • 576 F.2d 248, 250 (9th Cir. 1978). learning that she could seek compensation for ;cause he loss of support as well as out-of-pocket ex- , facts es- 12. oreover, the cases in which the fraud ex- penses in her wrongful death action). Here, cep ion to res judicata was applied differ cru however, appellant knew when he brought his meted to cial y from the instant case in that they involve original suit that he had a claim against TWA says was sit ations where defendant's misconduct pre- for attempting to block his license agreement ' ve ted plaintiff from knowing, at the time of with Montgomery to Wardk havingceATC and true that the first suit,either that he had a certain claim withIAT ontgome disapprove it. by was the gist d r his 1975 or Ise the extent of his injury. See,e.g.,Chris- Count Two of the 1975 complaint. And he Dpolization tia V. American Home Assurance Co., 577 knew what injury TWA had allegedly inflicted \ i iterference } P. d 899 (Okl.1978) (plaintiff discovered cause i ATC and 1 of action for bad-faith refusal to satisfy his on him: loss of the opportunity to open branch in the Ward stores. Thus if de- ' a mere l cl im only when breach-of-contract case went officesende is May 1973rdletters. can evenbe termed Tply a knew to jury);e, n United States Rubber Co. V. Lucky f"fraudulent," it did not prevent appellant from } Ph e, Inc., 159 So.2d 874 (Fla.App.1964) (de- fe dant's deceitful testimony at the first trial realizing what cause of action he had against 1.. c ncealed from plaintiff the true amount it was TWA nor what his damages were. o ed); Hyyti v. Smith, 67 N.D. 425, 272 N.W. J1j J 1- — —.0' ® • !KLEE:91i 1 2 7, 1983 2 3 CITY CLERK 4 5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY OF RENTON, a municipal ) corporation; LAWRENCE J. ) 7 WARREN; City Attorney of the ) NO. 82-2-02344-2 City of Renton; STATE OF ) 8 WASH NGTON, ex rel. LAWRENCE ) PLAINTIFFS' MEMORANDUM IN J. WARREN, City Attorney for ) OPPOSITION TO DEFENDANTS' 9 the City of Renton , ) MOTION FOR DISMISSAL ) UNDER CR 12(b) (6 ) RE . 10 Plaintiffs , ) RCW 7.48.050-. 100 ) 11 vs . ) ) 12 PLAYTIME THEATRES, INC. , a ) Washington corporation; KUKIO ) 13 BAY PROPERTIES INC. , a ) Wash ngton corporation; ROGER ) 14 H. F RBES and JANE DOE FORBES, ) husb nd and wife; ROBERT B. ) 15 McRA and ELIA C. McRAE; . and ) DOES 1 THROUGH 10, ) 16 ) Defendants . ) 17 ) 18 I . STATEMENT OF FACTS 19 Please refer to the separate Statement of Facts 20 submitted by the Plaintiffs for the facts pertinent to the 21 moti n for dismissal filed by the Defendants requesting 22 dismissal of all sections of Plaintiffs' amended complaint 23 which rely on RCW 7.48.050-. 100 for failure to state a claim 24 upon which relief can be granted . 25 II. ARGUMENT 26 A. A motion to dismiss under CR 12 ( b) (6 ) must be denied unless there is no state of facts 27 which Plaintiffs could prove consistent with 28 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR DISMISSAL WARREN&KELLOGG,P.S. UNDER CR 12(b) (6 ) PAGE 1 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 the complaint which would entitle the Plaintiffs to relief. 2 1 The function of a motion to dismiss under CR 12(b) (6) is 3 0 the -ame as that: of a general demurrer. The motion should not 4 be g anted unless it appears certain that the Plaintiffs would 5 be e titled to no relief under any state of facts which is 6 susc-ptible of proof under the claims stated. Collins vs. 7 Loma- & Nettleton Com•an , 29 Wash. App. 415, 628 P. 2d 855 8 ( 1981 ) ; Gibson vs . Port of Seattle, 28 Wash. App. 508, 624 9 P.2d 1168 ( 1981 ):; Green vs . Holm, 28 Wash. App. 135, 622 P.2d 10 869 1981 ) ; Corrigal vs. Ball and Dodd Funeral Home, Inc. , 89 11 Wash. 2d 959, 577 P.2d 580 (1978) . 12 A motion to dismiss a complaint for failure to state a 13 claii' upon which relief can be granted admits the truth of 14 fact alleged therein for purposes of the motion. Madison vs. 15 Gene al Acce •tance Cor •oration, 26 Wash. App. 387, 612 P. 2d 16 826 1980) . Thus, the test to be applied in resolving the 17 question whether the complaint sets forth facts showing that 18 the 'laintiffs are entitled to relief under any theory of law 19 is whether the complaint , taken in the light most favorable to 20 Plai tiffs , is sufficient to constitute a valid claim . 21 ; Applying these general principles of .law, it is clear that the 22 Defendants' request for an order "dismissing all sections of 23 Plaintiffs' complaint which rely on RCW 7.48.050-. 100 for 24 failure to state! a. claim upon which relief can be granted" is 25 witho t merit . 26 By the Defendants' failure to challenge the Plaintiffs' 27 relia ce upon RCW Chapter 7.418A, Defendants have implicitly 28 PLAIN IFFS' MEMORANDUM IN OPPOSITION TO DE ENDANTS' MOTION FOR DISMISSAL WARREN&KELLOGG,P.S. ATTORUNDER CR 12(b) (6 ) PAGE 2 .SECON ST.,YS AT W 100 SO.SECOND P.O.R BOX 626 RENTON,WASHINGTON 98057 255-8678 t • . • 1 ackn•wledged that the Plaintiffs' complaint herein states a 2 clai" upon which relief can be granted, at least under RCW 3 7. 48 , . Indeed , they could not contend otherwise , since that 4 stat to has been; held to be constitutional in an action filed 5 in t e United States District Court for the Eastern District 6 of W- shington in which Defendant Playtime Theatres,. Inc. and 7 Kukie Bay Properties ,. Inca were plaintiffs . . Playtime 8 Theatres, Inc. vs. Eikenberry, Cause No. C82-239RJM; Kukio Bay 9 Prop : rties , Inc,. vs . Maleng, Cause No . C82-354RJM . The 10 memorandum order, finding that statute . to be constitutional 11 despite Defendants' contentions to the contrary was entered 12 there n by United States District Judge Robert J. McNichols on 13 July ,\ 1982. The appeal of that matter is now pending before 14 the U ited States Court of Appeals for the Ninth Circuit . 15 At the very least, the amended complaint states a cause 16 of action for civil abatement of a public nuisance under RCW 17 7. 48. 110 and RCW 7. 48. 130. Those sections read , in pertinent 18 part, as follows : 19 " . . .Whatever is injurious to health or indecent or offensive to the senses . . . so as to essentially 20 interfere with the comfortable enjoyment of the life and property, is a nuisance and the subject 21 of an action for damages .and other further relief." RCW 7 .48. 010. 22 "A public nuisance is one which affects equally 23 the rights of an entire community or neighborhood , although the extent of the damage may be unequal ." 24 RCW 7.48. 130. 25 The . ase directly in point is California ex rel. Busch vs. 26 Pro 'e tion Room Theatre , 17 Cal. 3d 42, 550 P.2d 600 ( 1976) . 27 In Busch, the Los Angeles County District Attorney brought a 28 PLAIN IFFS' MEMORANDUM IN OPPOSITION TO DE ENDANTS' MOTION FOR DISMISSAL WARREN A KELLOGG,P.S. ATTORNEYS AT LAW UNDER CR 12(b) (6 ) PAGE 3 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 93057 I 9CC�f.7A 411 • 1 civi action under the special California Red Light Abatement 2 Statute to aba:te .a motion picture theater as a public 3 nuis. nce . The trial court entered a judgment for the 4 -defe dants sustaining a general demurrer to the, complaint on 5 the :round that the plaintiff had failed to state a cause of 6 aoti•n under the California Red Light Abatement Statute. On 7 appe- 1 the California Supreme Court reversed and remanded the 8 case for trial, holding that although the complaint did not 9 state a cause of action under the Red Light Abatement Statute, 10 it d'd state a cause of action under Civil Code Section 3479 11 and 3480. Those sections read , in pertinent part: 12 "Section 3479. Anything which is injurious to health or is indecent or offensive to the senses , 13 or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of 14 life and property. . .is a nuisance ." 15 "Section 3480. A public nuisance is one which effects at the same time an entire community or 16 . neighborhood , or any considerable number of persons, although the extent of the annoyance or 17 damage inflicted upon individuals may be unequal ." 18 These sections , taken together, are nearly identical 19 with RCW 7. 48. 010 and 7. 48. 130. At the very least , the 20 provi ions of the third, fourth and fifth cause of action of 21 Plain iffs' amended complaint state causes of action under 22 commo law nuisance theories sufficient to withstand challenge 23 under CR 12(b) (6 ) . 24 Therefore , there appearing to be facts pleaded within 25 the a"ended complaint which, if true, would state a claim upon 26 which relief could be granted under RCW Chapter 7 . 48A or 27 28 PLAIN' IFFS' MEMORANDUM IN OPPOSITION TO DE ENDANTS' MOTION FOR DISMISSAL WARREN&KELLOGG,P.S. UNDER CR 12(b) (6) PAGE 4N LAW 100 SO..SECOND ST.,P.O.SOX 626 RENTON,WASHINGTON 98057 255-867B . • . S . 1 7. 48,010 and 7 . 48. 130, Defendants' motion to dismiss under CR 2 12(b) (6) must be denied. 3 B. RCW 7 . 48 . 050- . 100 is not beyond constitu- tional construction by the state appellate 4 courts of the state of Washington. 5 Defendants have attacked Initiative 335 (codified as RCW 6 7. 48. 050-. 100) on two grounds. The first ground is the 7 alleged unconstitutionality of the initiative as a prior 8 restr- int under the First Amendment to the United States 9 Constitution. Plaintiffs must concede that Initiative 335 was 10 held to be unconstitutional on its face in Spokane Arcades, 11 Inc . s. Ra , 449 F.Supp. 1145 ( 1978 ) ; affirmed by the Ninth 12 Circu t Court of Appeals, 631 F.2d 135 (9th Cir. 1980) ; 13 affirmed by the United States Supreme Court without opinion 14 sub. nom. Brockett v. Spokane Arcades , Inc. , 454 U. S. 1165, 15 102 . Ct. 557 (1981 ) . However, Defendants claim that the 16 state courts of the State of Washington are bound to blindly 17 follo this unfortunate and ill-conceived decision is based 18 upon faulty understanding of the recent developments in the 19 analy-is of state statutes by the United States Supreme Court . 20 First of all , Defendants are misunderstanding the 21 inter.lay of footnotes 6 and 7 of Dombrowski vs. Pfister, 380 22 U. S. 79, 490, 85 S. Ct . 1116, 14 L. Ed . 2d 22 (1965) , as those 23 footn.tes relate to a correct understanding of the decision of 24 the nited States Supreme Court in Spokane Arcades, supra. 25 There the Supreme Court held that , notwithstanding that a 26 fede al court , may declare a state statute to be i 27 uncon titutional on its face so as to warrant the granting of 28 PLAIN IFFS' MEMORANDUM IN OPPOSITION TO DE ENDANTS' MOTION FOR DISMISSAL WARREN&KELLOGG,PS. UNDER CR 12(b) (6) PAGE 5 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 25545678 i 1 a federal injunction against the application of the state 1 2 statute, the state governmental authorities may thereafter 3 seek a restrictive interpretation of the statute in the state 4 court and thus "revive" the statute as to prosecution against 5 others of future violations . This principle is illustrated by 6 the unusual action taken by the United States Supreme Court in 7 Metromedia, Inc. vs . San Diego, 453 U. S. 490, 521 , 101 S.Ct. 8 2882, 69 L. Ed. 2d 800 ( 1981 ) , wherein, after finding a San 9 Diego city ordinance to be unconstitutional on its face , the 10 High Court remanded the cause back to the California Supreme 11 Court for re-evaluation as to whether. the California Supreme 12 Court could render the ordinance a "limiting construction" 13 which would save the statute. Under this recent development 14 in the law, the decision of United States District Court Judge 15 Fitzgerald in Spokane Arcades had no impact upon InitiativIe 16 335 other than to declare that the statute could not presently 17 be applied to the Plaintiffs therein, and that they were 18 entitled to an injunction against enforcement of the statute 19 until the statute had been given a "narrowing construction" by 20 the state courts . 21 Therefore, under Dombrowski, supra, as reaffirmed by 22 Metromedia , supra, there is nothing to prevent the appellate 23 court,: in the State of Washington from now asserting in a 24 state court action that, under a restrictive interpretation, 25 the •rovisions of Initiative 335 can be constitutionally 26 const ued. This invitation to constitutional construction by 27 the state court is not a repudiation of the Supremacy Clause 28 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DE ENDANTS' MOTION FOR DISMISSAL WARREN&KELLOGG,P.S. UNDER CR 12(b) (6) PAGE 6 ATTORNEYS AT LAW100SO.SECONDST.,P.O.dOX626 RENTON,WASHINGTON S8057 2554678 1 of A tiele VI of the United States Constitution. Rather, it 2 is t ,e fulfillment of the principle of statutory construction 3 that state laws shall be construed in such a fashion as to be 4 rend red constitutional. 5 Furthermore, under the circumstances of the decision in 6 S .ok ne Arcades , supra, the opinion is entitled to little 7 prec-dential value in the state courts of the State of 8 Washington. Although the Plaintiffs must concede that the 9 affi mance of the decision of the Ninth Circuit Court of 10 Appe-ls by the United States Supreme Court is a disposition of 11 the ase on the merits, it is beyond dispute that summary 12 disp.sitions by the Supreme Court 13 " . . .will not be accorded the full weight of decisions in which the issues were fully explored . 14 In the words of Mr. Justice Rehnquist , ' [n]o one seriously contends that these summary affirmances 15 received the full consideration that is given to a case argued on merits and disposed of by written 16 opinion. . . ' " 17 Stern and Gressman, Supreme Court Practice, Fifth Edition, Section 4.30, page 328. 18 Furthermore, as found by the Supreme Court of the State 19 Idaho upon review of Spokane Arcades : 20 " . . .it appears that the Spokane Arcades panel made 21 little effort to construe Washington's statute in a constitutional manner. For example, in holding 22 that the Washington nuisance abatement statutes were procedurely deficient , the panel listed, four 23 supposed defects, without once considering any alternative constitutional constructions . A 24 statute must be construed in a constitutional sense where , reasonable and practical to do so. 25 U . S . Civil Service Commission vs . National Association of Letter Carriers , 413 U. S 548, 93 26 S.Ct. 2880; 37 L. Ed. 2d 796 ( 1973) ; United States vs. Vuitch, 402 U. S. 62, 91 S. Ct . 1294, 28 L. Ed . 27 2d 601 ( 1971 ) ; State vs. Rawson, 100 Idaho 308, 597 P. 2d 31 ( 1979) . It seems clear that some, if 28 PLAIN IFFS' MEMORANDUM IN OPPOSITION TO DE ENDANTS' MOTION FOR DISMISSAL WARREN&KELLOGG,P.S. UNDER CR 12(b) (6 ) PAGE 7 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.SOX 626 RENTON,WASHINGTON 98057 255-1678 • • 1 not all of the reported procedural defects identified in Spokane Arcades may be cured by 2 appropriate construction." (Citations omitted) 3 Stat- of Idaho vs. U.S. Marketin: Inc. , 102 Idaho 451 , 631 4 P. 2d 622, 625-6, fn. 4. 5 The Idaho Supreme Court complemented the Idaho trial 6 cour for avoiding some procedural problems in the Idaho 7 � nuisance statutes by imposing appropriate limiting 8 cons ructions . In view of the array of potential narrowing 9 cons ructions available to the state courts in order to 10 fulf'll their duty to construe the statutes constitutionally, 11 the Idaho Supreme Court placed substantial doubt upon the 12 prec=dential value of the decision of the Ninth Circuit Court 13 of Appeals in Spokane Arcades. 14 Further doubt upon the precedential value of the Spokane 15 Arcades decision is found in the decision of the Supreme Court 16 in a firming the Ninth Circuit Court of Appeals without 17 opinion. That decision was dated November 9, 1981 , prior to 18 the ppointment of Justice Sandra Day O'Conner to the High 19 Court . Chief Justice Burger was joined by Justice Powell and 20 Justice Rehnquist in dissent . A copy of the memorandum case 21 is a 'tached hereto as Attachment "A" . Chief Justice Burger 22 urged abstention by the federal courts until the state courts 23 have been given; an opportunity to interpret the law in a 24 constitutional fashion. He complained of litigants such as 25 the Plaintiffs in Spokane Arcades (and the Defendants herein) 26 who ". . .have deliberately avoided resort to the courts of the 27 28 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DE ENDANTS' MOTION FOR DISMISSAL WARREN&KELLOGG,P.S. UNDER CR 12(b) (6 ) PAGE 8 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 ® • 1 stat - whose statute is being challenged . . . " ( Citations 2 omit ed) . The Chief Justice commended the state courts , 3 " . . .who are as capable as are federal judges of enforcing the Constitution of the United States , 4 and have taken the same oath to do so---the initial opportunity to consider the scope and 5 validity of state statutes . This is particularly so when the state law under consideration has 6 never been applied, and when its interpretation is uncertain ; in such a case the state court ' s 7 construction of the statute may obviate the need for adjudication of the federal constitutional 8 issues, or the state court may resolve these issues as we would. (Citations omitted) 9 10 "Even a cursory examination of the lengthy . 11 statute . . .discloses that the state courts might well have construed the law so as to avoid each of 12 these conceived deficiencies . . . 13 "In sum, both the District Court and the Court of Appeals should have declined to act until the 14 parties have exhausted available state remedies , at least absent a showing that resort to the state 15 courts would have been futile. There was no need whatever for federal courts to render a 16 declaratory judgment as to the validity of the state law on which the state courts had not yet 17 had opportunity to speak and on behalf of parties against whom the law has not been applied. I 18 would reverse and remand with directions to do now what should have been done initially ." 19 Considered in the foregoing light, the decision of the 20 Ninth Circuit Court of Appeals in Spokane Arcades , although 21 affir"ed by the United States Supreme Court, is of little 22 prece• ential value in this Court . Therefore, this Court 23 shoul' accept the invitation of Chief Justice Burger to assume 24 the responsibility of rendering a constitutionally limiting 25 construction of Initiative 335. 26 In any event, Defendants' request for dismissal under CR 27 12(b) (6) of all sections of the Plaintiffs' amended complaint 28 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DE^,ENDANTS' MOTION FOR DISMISSAL WARREN&KELLOGG,P.S. ATTORNEYS AT LAW UNDER CR 12(b) (6) PAGE 9 1o0 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 2554678 • • 1 whic rely upon the allegedly infirm remedies of Initiative 2 335 's improper. Should the court find the statute to be 3 cons itutionally infirm, the proper remedy is for this court 4 to d-cline to grant the relief requested following trial of 5 the ssues . 6 Defendants' second challenge against Initiative 335 is 7 base. upon the case of State vs. Charboneau's, 27 Wash. App . 8 5, 615 P.2d 1321 (1980) , pet. rev. den. 94 Wn. 2d, 1021 (1980) . 9 There, Division III of the Court of Appeals held that the 10 ballot title of Initiative 335 violated Article II, Section 19 11 of the Washington State Constitution. Plaintiffs contend that 12 the •ecision is incorrect. The Court of Appeals invalidated 13 the Initiative because the ballot title made reference only to 14 the prohibition as nuisances of places where obscene films are 15 exhibited or obscene publications are the principal stock in 16 trade. However, ; the court found that sub-sections 6 and 7 of 17 Section 2 of Initiative 335 (codified as RCW 7.48.052 (6) and 18 (7) ) •eclared certain other places to be nuisances in addition 19 to obscene movie theaters and obscene bookstores as described 20 in th- ballot title. Hence, the court came to the conclusion 21 that the ballot title was violative of the state constitution. 22 However , the court overlooked the fact that the 23 provi-ions of sub-sections 6 and 7 of RCW 7.48.052 are merely 24 a re- -nactment of the pre-existing provisions of RCW 7. 48. 050 25 and .48.240. As such, the inclusion of the previously 26 enact d statutes ;into Initiative 335 was mere surplusage , and 27 the • uestion of its inclusion in the ballot title was 28 PLAIN IFFS' MEMORANDUM IN OPPOSITION TO DE ENDANTS' MOTION FOR DISMISSAL WARREN&KELLOGG,PS. ATTORUNDER CR 12(b) (6)� PAGE . 10 .SECON SL,S AT P.O. 100 SO.SECOND ST.,I. .SOX 626 RENTON,WASHINGTON 98057 255-8678 • . 5 .• 1 ineo sequential. In any event, upon an appeal from a decision 2 rend=red herein regarding the constitutionality of Initiative 3 335, the Washington State Supreme Court will not be bound by 4 the decision of Division III of the Court of Appeals . Upon 5 revi=w, that court may render a proper statutory construction 6 in v ew of the foregoing arguement. 7 III.. CONCLUSION 8 Defendants' motion .to dismiss . under rule CR 12(b) (6) 9 must be denied. • The 'Plaintiffs' amended complaint states 10 abundant facts showing that the Plaintiffs are entitled to 11 relief under RCW Chapter 7. 48A and the common law nuisance 12 statutes (RCW 7.48. 010 and 7.48. 130) , notwithstanding the 13 dispo ition of Initiative 335. 14 However, this Court and the appellate courts of the 15 State of Washington are under a duty to construe Initiative 16 335 ' n a constitutional manner despite the prior holding of 17 the acial unconstitutionality of the statute in Spokane 18 Arcad s. 19 Therefore , this Court should render an appropriate 20 limit ng `construction of the statute , if such be necessaryr, 21 the statute from the summaryadjudication bythe and evive � 22 feder-1 courts as suggested by Dombrowski and Metromedia . 23 DATED: June V'j( , 1983. 24 Respectfully submitted , 25 26 By (:',efA—e DANIEL ELLO G, • 27 of Attorneys for P1 iffs 28 PLAIN IFFS' MEMORANDUM IN OPPOSITION TO DE' ENDANTS' MOTION FOR DISMISSAL WARREN&KELLOGG,P.S. UNDER CR 12(b) (6) PAGE 11 ATTORNEYS AT LAW, 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 • a' • MEMORANI R 4 statute without guidance from the state i • ) courts, the Court of Appeals wholly ignored ` • -an-explicit severebility clause and"de'•.lined�- . . to preserve those Pena of the state '4 • - ME • MORANDUM found uaoowtitutional, demurring that the lyll�vi®il,lil�JJ V M CASESreconstruction required to salvage the statute' 1the State of W. • would be better hanashingten•"dled by"pp to Junsdio- legislature of i P 607 (1971) (Burster. C. J., dissenting). The • tioaal Statement,at 47. Na t v po. Donald C.d Brackett,t, etc.;Appal• of federalism and comity militate in lent v November9 e Accedes,Inc.et'stl. • favorlpolicies affording state judges—who are as In sum, both the District Court and the 1' from the Unitedjudges of enforcing the Court of Appeals should have declined to act i 8, 1981. Jr capable as are federal until of parties had have declined available • States Court of Appeal for the Ninth Circuit. Constitution of the United States, and have • irate remedies, least absent a showing hat t, Ths judgment l affirmed. Dissenting opinion taken the same oath to do so—the initial resort to the state courts would have been • j ) • by the Chief Justice with whom Justice Pow- opportunity t consider the scope and validity futile. There was no need whatever for fed- • : ell stud Justice Rehaquiet join. of state statutes.This is particularly so when �, to ender a declaratory judgment •.. 631 F2d 136. the stab law under consideration has never er to courts validity dofe a state law on which the • .• ���° been applied, and when its interpretation is asstab courts have not yet had an opportunity • Chief Justice Burger, with whom Justice uncertain; in such a case the state mires -1 to speak and on behalf of parties against f' w Powell and Justice Rehnquist join.dissenting. construction of the statute may obviate the whom the law has not yet been applied. I (; affirms i decision of the need for adjudication of the federal constitu- would reverse and remand directions to '' The Court today tional issues, er the state court may resolve would d what should have been withods initially.on ert Washington Appeals bolding hasunconstitutionalet either tos those issues as we would.Harrison v NAACP, ; i redi statuteoconstrued which yet either g on 360 US 167, 3 L Ed 2d 1152, 79 S Ct 1026 1: enforced in or by a Washington (1969);City of Meridian v Southern Bell TeL state court. I would abstain from decision Co.Tel.C358 US 639,3 L Ed 2d 662.78 S Ct until the Washington courts are given an 466 o.(1959); Railroad Commission v Pullman - • ' opportunity to interpret the law which has Co. 312 US 496, 86 L Ed 971. 61 S Ct 643 • been thus invalidated. This Courf�•and all U941L federal courts—have enough to do without • . •••• . . i _ "preempting"stab courts on matbrs initially Here,the Court of Appeals invalidated per e • of stab concern, tions of the nuisance law dealing with the • ., Jasmines of temporary and permanent injurer t • gg The Washington "amoral nuisance" law. tions against establishments exhibiting ! i! 7.48.060 et seq.—a armors. lewd" " " a: t, Wash Res Cade f lewd or obsceno maths, on the grounds ' at rohibiting 4 hensivo statute directed P that.inter alis,1) '[o]o limits are set forth in : public auk and exhibition ofti tive by e vote the statute to confine the discretion of the ii • • j ale—was Adopted as an initiative by the Beforeo court issue the temporary abatement in. '• ' are in the November 8, 1977 election. Statement,at • • the emote was even certified by the Baas- junction."App.to Jurisdictional l: tsry of State, appell•sca, cveral corporations 44;; 2) "there is no ��ce that there will2. r,. prompt final judicial deter ' engagedaleofin the s, bohibitian, magazines, and urination on the merits." id.; end 3) "a do- - i. I and filed f, i ,. sale c movies, books, tense of nonobsoenity presume* is unveil- t . .: i f this action in the federal District Court On able at a trial for violation of an injunction • leas than three months February 6, five' (emphasis added). id., at 46. Evea a eureory - ..' . • after the had adoption,applied, and hDistrict istriapparently nation of the lengthy statute--which 1. before it had ever been contains detailed definitions of"lewd"o ff or b- • 1 Court declared the law=constitution.' scene" matter incorporating the stun ; : :! e 1 I-have previo�ly-outlined-the-ooncorae-that—Miller v Cali ornia,413 US 15, 37 L Ed 2d :; tf• �-• pro •es or f. should lead a federal court to stay its band in 419, 93 Stto�a o f (1 erita with 1 t cases such as this.when litigants have delib- consolidat f. • • on the temporary injunction and .. .. • ably avoided :wort to the courts of the the scheduling priority to cases brought {{ • stateII whose statute is being challenged. grants1. Vance v Universal Amusement Co 445 US under the statute,and which does not specify } 3)8. 317-320,63 L Ed 2d 413, 100 S Ct 1156 the defenses available In contempt proceed• a (1980)(Burger, C. J., dissenting); cf. Moore v inge--disdases that the state courts might 1 1 • [° well have construed the law so as to avoid °j• • • • City of East Cleveland. 431 US 494, 62u ge , each of these perceived-deficiencies. It is 4 - i' • •i 62 L Ed 2d 631,87 S Ct 1932(1977)(Burger. no to ;� � � Ti . C.J., dissenting);Wisconsin v Constantlneaw Ironic that, havingr exhibited hesitationomnito 27 L Ed 2d 515.91 8 Ct construe the �P t. 400 US 433.458-�43. �. t• �.+ a I 1 2 3 4 5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY of RENTON, a1 municipal ) corporation; LAWRENCE J. ) No . 82-2-02344-2 7 WARRE , City Attorney of the ) City bf Renton; STATE OF ) PLAINTIFFS' MEMORANDUM IN 8 WASHI GTON, ex rel. LAWRENCE ) OPPOSITION TO DEFENDANTS! J. WA REN, City Attorney for ) MOTION TO DISMISS 9 the City of Rentoln , ) PLAINTIFFS' FIRST CAUSE ) OF ACTION _'OR DECLARATORY 10 1 Plaintiffs , ) JUDGMENT ) 11 vs . j ) • ) 12 PLAYTIME THEATRES, INC. , a ) Washiigton corporation; KUKIO ) 13 ' BAY P OPERTIES, INC. , a ) Washi gton corporation; ROGER ) 14 H. FO BES and JANE DOE FORBES , ) husba d and wife; ROBERT B. ) 15 McRAE and ELIA C. McRAE ; and ) DOES THROUGH 10, - ) 16 ) 1 Defendants . ) 17 ) 18 I. ISSUES PRESENTED 19 "I ( 1 ) Whether the City's prayer for Declaratory Judgment 20 regaraing the constitutionality and applicability of the City 21 of Renton's adult land use ordinance to the present use by 22 Defendant is a justiciable issue? I 23 (2) Whether the Plaintiffs' request for Declaratory 24 Judgment is, in effect, a request for an advisory opinion? 25 (3 ) Whether the City of Renton has standing to seek 26 Declaratory Relief as to the constitutionality and 27 I. 28 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO WARREN&KELLOGG,P.S. DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 FIRST CAUSE OF ACTION FOR DECLARATORY RENTON,WASHINGTON98057 JUDGMENT PAGE I 255-8678 ' I i 1 ' app icability of its adult land use ordinance as a precursor 2 to ' ts prayer for an abatement of the nuisance? 3 II. STATEMENT OF FACTS 4 Please refer to the separate Statement of Facts I 5 subm' tted by the Plaintiffs for the facts pertinent to the 6 motion for dismissal filed by the Defendants requesting 7 ,dism& ssal of the First Cause of Action of Plaintiffs' Amended 8 Complaint for -Declaratory Judgment . 9 III. ARGUMENT 10 A. The actual use of the property by Defendants in a manner which violates the City of 11 Renton ' s land Tie ordinance renders the constitutionalitZi applicability and 12 enforceability of the ordinance justiciable issues. 13 The City of Renton seeks as a preliminary cause of 14 acti n , a Declaratory Judgment that the City of Renton 15 Ordi ance Nos . 3526, 3629 and 3637 are constitutional and that 16 the se to which Defendants have put the subject property is 17 gove ned thereby. 18 Washington enacted the Uniform Declaratory Judgment 19 Acti n in 1935. (Codified as RCW Chapter 7.24) . This act is 20 to b liberally construed and administered , and is remedial in 21 nature . RCW 7.24. 120; Sorenson v . Bellingham, 80 Wash. 2d 22 547, 559, 496 P. 2d 512 (1972) . 23 The criteria upon which a person may seek a declaratory 24 judgm nt is found in RCW 7.24.020, which states in pertinent 25 part : 26 "A person. .whose right . . .or other legal relations 27 are affected by a. . .municipal ordinance . . .may have determined any question of construction or 28 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO WARREN&KELLOGG,'P.S. DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' ATTORNEYS AT LAW FIRST CAUSE OF ACTION FOR DECLARATORY 1ao SO.SECOND ST.,P.O 6 RENTON,WASHINGTON 98O57 98057 JUDGMENT PAGE 2�i 255-8678 •1 1 validity arising under the ordinance . . .and obtain a declaration of rights, status or other legal 2 relations thereunder." 3 RCW 7. 24. 130 includes "municipal corporations" within 4 the definition pf "person" for the purpose of the Declaratory 5 Judgment Act. 6 Defendant claim that there is no justiciable issue 7 presented in Plaintiffs' first cause of action and therefore , 8 'the court should dismiss the Plaintiffs' cause of action for 9 declaratory judgment . However , the Plaintiffs meet the 10 principal elements which determine whether a justiciable issue 11 exists . The principal elements of a justiciable controversy 12 ,unde the Washington Declaratory Judgment Act are as follows; 13 1 . Thelparties must have existing and genuine , as distinguished from theoretical , rights or 14 interests . 15 2. The controversy must be one upon which the judgment of the court may effectively 16 operate , as distinguished from a debate or argument evoking a purely political , 17 administrative, philosophical or academic conclusion . 18 3. The controversy must be such that a judicial 19 determination will have the force and effect of a final judgment in law or decree in 20 equity upon the rights , status or other legal relationship of one or more of the 21 real parties in interest . 22 4. The proceeding must be genuinely adversary in character and not a mere debate , but 23 advanced with sufficient militancy to engender a thorough research and analysis of 24 the major issues . 25 Stat- ex rel . O'Connell v. Dubuque, 68 Wn. 2d 553, 558, 413 26 P. 2d 972 ( 1966 ) . The first element was refined in Diversified 27 Industries v. Ripley, 82 Wn. 2d 811 , 815, 514 P. 2d 137 (1973) , 28 ' PLAINTIFFS' MEMORANDUM IN OPPOSITION TO WARREN&KELLOGG,P.S. DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' ATTORNEYS AT LAW FIRS CAUSE OF ACTION FOR DECLARATORY 'IOO SO.SECOND ST.,P.O.BOX 626 JUDGMENT PAGE 3 RENTON,WASHINGTON9s057 255-8678 1 by further explanation that the justiciable controversy must 2 be ' . . .an actual, present and existing dispute, or the mature 3 see's of one, as distinguished from a possible, dormant , 4 hypothetical, speculative, or moot disagreement. . .;" 5 In 1982 Defendants Playtime Theatres, Inc. and Kukio Bay 6 Pro • erties , Inc . moved to dismiss Plaintiffs' original 7 com•laint while the action was removed to the United Staties 8 District Court for the Western District of Washington claiming 9 ; the e was no justiciable issue . In substance , DefendantS' 10 pre ent position and argument are identical to that of a your 11 ! ago , notwithstanding a material change in circumstances : thlat 12 the Defendants' exhibition of sexually explicit films hams , 13 sin e January 20, 1983, constituted an actual and continuous 14 violation of the Renton zoning ordinance. 15 ' The memorandum 'submitted by the Defendents in support of 16 this motion is lifted virtually verbatim from the memorandum 17 submitted to the federal district court a year ago, with two 18 excptions; ( 1 ) On page 4, lines 1 through 9 are; added; (2) 19 on cage 8 , the conclusion has been added. The substance of 20 Defendants' legal position has not changed , despite the 21 sub .tantial difference in the nature of the 'controversy 22 bet een the parties which requires adjudication. 23 Defendants' exhibition of sexually explicit films , as a 24 con inuing course of conduct, since January 20, 1983 not only 25 ' vio ates the ordinance , but it effectively generates a 26 jus iciable issue, as required by O' Connell , supra. 27 28 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO WARREN&KELLOGG,P.S. DEF DNDANTS' MOTION TO DISMISS PLAINTIFFS' ATTORNEYS AT LAW FIR T CAUSE OF ACTION FOR DECLARATORY 1oo SO.SECOND ST.,r.o' eox6z6 RENTON,WASHINGTON 98057 ' JUD MENT PAGE 4 255-8676 1 First, the City certainly has a genuine right and I 2 interest to beladjudicated. The City has the right to have I 3 its adult land use ordinance obeyed as well as enforced. The • 4 interest in having this ordinance enforced and obeyed has been 5 ' frustrated since January 20, 1983. Since criminal remedies 6 are foreclosed jby the terms of the ordinance, the invocation 7 of this Court' s jurisdiction to declare that the Defendants' 8 use of the property is illegal is the only means by which the 9 Cit 31 may move to enforce its zoning code. Whereas the fairly rl 10 existence of a genuine controversy may have beena ly 11 deb- table when the Defendants were not using the ' property Iin 12 vio ation of the ordinance, now the illegal use is an actual I 13 ong•ing fact. The controversy is no longer an abstract 14 arg went concerning the effects which might flow from a 15 , hyp•thetical sett of facts in which the Defendants might show 16 uns ecified films of an unknown and uncertain content . lIn 17 thi connection, the attention of the Court is drawn to the 18 Tim and Motion Studies which are a fair representation of the 19 ; con ent of the films exhibited at the Renton Theater since 20 ' Jan ary 20, 198i3, and which are attached to the Declaration of 21 Rob rt S. Perry and Robert McGuire filed herein . I 22 Second, tihe court is being asked to find not only that 23 the City of Renton' s Ordinance is constitutional , but that I 24 Defendants are in violation of the ordinance . The 25 con titutionality of the ordinance is a collateral incident , 26 not the main focus of this litigation. Further, the court 1 27 wil be asked to enforce the ordinance and put an end to the I 28 1 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO WARREN&KELLOGG,P.S. DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 FIRST CAUSE OF ACTION FOR DECLARATORY RENTON,WASHINGTON 98057 JUDGMENT PAGE 5 255-8678 1 � 1 ' Defendants' activity at present location. This is notli a 2 debate which will result in a purely academic conclusion . 3 Third, there will be a final judgment. Plaintiffs' pra er for relief unequivocally enunciates , inter alia: 5 (5) That the court declare that the Defendants' use, during the period commencing on January 20, 6 1983 and continuing through and including the date of the filing of this Amended and Supplemental 7 Complaint; of the specific motion picture theater premises more particularly described herein,' as an 8 "adult motion picture theater" as defined in the ordinance was and is prohibited by the "City of 9 Renton Adult Use Ordinance" , as amended , and constitutes a per se public nuisance . 10 (Plaintiffs ' First Amended and Supplemental Complaint for Declaratory Judgment; Injunctions ; 11 Abatement of Moral Nuisances, at Page 144, lines 10 through 18) . 12 Wit regard to the use of land by Defendants between January 13 20, 1983 and May 19, 1983, the court's decision will be final . 14 Finally, under any reasonable construction of the facts, 15 , this court must agree that the parties are engaged in a 16 17 ; gen inely adversary proceeding. The "militancy" with which , this matter has progressed is evidenced by the mere size of 18 18 the files maintained by counsel for the parties , the number of 19 Ihea ings and court appearances in federal as well as state 20 cou t, the length of time this matter has been pending with 21 22 activity all the while, the continuing discovery being sought by 'he City, not to mention the flurry of paper generated for 23 the hearing on this motion to dismiss . It cannot be argued in 24 goo• conscience that the Plaintiffs and Defendants are not in 25 act al controversy as required by the law of the State of 26 Was ington. 27 28 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO WARREN&KELLOGG,P.S. ' DEF 3NDANTS' MOTION TO DISMISS PLAINTIFFS' ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O1 BOX 626 FIR T CAUSE OF ACTION FOR DECLARATORY RENTON,WASHINGTON 98057 JUDGMENT PAGE 6 255-8678 • I 1 In Kitsap County v. Bremerton, 46 Wash. 2d 362, 281 P. 2d 2 841 ( 1955) , our Supreme Court reinforces this court's role in 3 ent ring a declaratory judgment in circumstances such as tholse 4 at ar. At page 367, the court cites Iowa Life Insurance 5 ' Company v. Board of Supervisors , 190 Iowa 777, 180 NW 721 : 6 "It has been said that courts cannot pass on the question iof the constitutionality of a statute 7 abstractly, but only as it applies and is sought to be enforced in the government of a particular 8 case before the court . " 9 Admittedly, if the sole relief being sought by the City 10 was a declaratory judgment re: the constitutionality of a 11 statute , it might arguably be a request for an advisory 12 ' opi ion. However, the relief sought by the - City in the 13 ins ant case gores far beyond a declaratory judgment. Simply 14 sta ed, the City seeks to have the ordinances in question 15 dec ared constitutional as a preliminary step--then to have 16 the court declare that the activity complained is prohibited 17 by he ordinance , and finally, to have that activity abated ., 18 B. The, City of Renton has standing to maintain a declaratory judgment action. 19 Any person whose rights are affected by a municipality' s 20 ordinance has the standing to bring an action for declaratory 21 jud ment to have determined any question of construction or 22 validity of said ordinance . RCW 7 . 24. 020. 23 It is evident that the legislation anticipated that a 24 municipality may need to seek a declaratory judgment . The 25 legislature included a municipal corporation in the definition 26 of erson at ROW 7. 24. 130. Had the legislature intended that 27 a unicipality never be allowed to seek a declaratory 28 PLA ;NTIFFS' MEMORANDUM IN OPPOSITION TO WARREN&KELLOGG,P.S. DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 FIRST CAUSE OF ACTION FOR DECLARATORY RENTON,WASHINGTON 98057 JUDGMENT PAGE 7 255-8678 1 judgment, municipal corporations would not have been included 2 in t e definition. 3 Defendants misstate the holding of Acme Financial 4 Company v. Huse 192 Wash. 96, 73 P.2d 341 ( 1937) . , That court 5 ;did not say that a declaratory judgment on the 6 constitutionality of a statute is maintainable ONLY when the 7 Plaintiff alleges damage. (See page 5 of Defendants' memo in 8 support of Defendants' motion, lines 3 through 8 . ) 9 The Acme court merely said , at 107, 10 " . . . that, in a proper case , a plaintiff may, by the use of the method therein provided, require 11 our courts to declare, in the form of a judgment , whether or not a statute is constitutional . " 12 (Emphasis added) . 13 The Acme court anticipated , as did the statute , that 14 giv-n proper circumstance a plaintiff may seek to have an I • 15 ordinance declared constitutional rather than uncon- 16 stitutional. 17 The court in Federation v. Personnel Board, 23 Wash. 18 App. 142, 594 P.2d 1375 ( 1979) , posed the "right capable of 19 ' judicial protection" standard . This case is the ' proper case 20 under Acme and Federation. The City of Renton has a right 21 whi h is in need of judicial protection, the right to have its 22 ' ordinance obeyed and enforced . 23 The Plaintiffs have standing to request a declaratory 24 judgment as to the constitutionality of the Adult Land Use 25 ' Ordinance as a preliminary ruling, which would in turn affect 26 the remaining prayers for relief. 27 28 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO WARREN&KELLOGG,P.S. DEF NDANTS' MOTION TO DISMISS PLAINTIFFS' FIR T CAUSE OF ACTION FOR DECLARATORY ATTORNEYS AT LAW 100 SO.SECONDST.,P.O.BOX 626 RENTON,WASFiINGTON98os7 J UD MENTS PAGE' 8 255-8678 1 IV. CONCLUSION 2 There is . a real case and controversy outstanding in King 3 'Coun y Superior Court. In the final analysis, the court will 4 ;be •etermining whether the Defendants are in violation of the 5 City of Renton's Ordinance and whether their activity should 6 be .bated. The City of Renton has standing to seek that 7 relief. 8 Declaratory judgment relief is the only means by which 9 ,the Plaintiffs, may obtain an adjudication of the ' correctness 10 ;of 'heir position--and the illegal character of : Defendants' 11 hand use . Therefore Plaintiffs have standing to seek the 12 Iprel.minary relief of a declaratory judgment that the Adult 13 !Lan• Use Ordinance is constitutional as applied to the 14 :Defe dants' actual land use. 15 Defendants' motion to dismiss Plaintiffs' first cause 'of 16 !acti.n for declaratory judgment must be denied. 17 DATED: June 424/ , 1983. J/ 18 Respectfully submitted, 19 20 DANIEL LOGG, 21 of Attorneys for Plain f s 22 23 I I i 24 25 26 27 28 PLAI TIFFS' MEMORANDUM IN OPPOSITION TO 'DEFE DANTS' MOTION TO DISMISS PLAINTIFFS' WARREN&KELLOGG,P.S. FIRS CAUSE OF ACTION FOR DECLARATORY ATTORNEYS AT LAW JUDG ENT PAGE 9 'RENON,WASH GTON980576 255-8678 • 1 2 3 4 5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY OF RENTON , a municipal ) 7 corporation , ; et al . , ) NO. 82-2-02344-2 ) 8 Plaintiffs , ) PLAINTIFF' S SUPPLEMENTAL' ) BRIEF RE: PRURIENT INTEREST 9 vs. ) AS ONE PRONG OF THE ) THREE-PRONG MILLER TEST FOR 10 PLAYTIME THEATRES, INC . , a ) OBSCENITY W shington corporation , ) 11 et al . , ) 12 Defendants . ) ) 13 I . 14 SUMMARY OF FACTS 15 In 1982 , the City of Renton amended its adult 16 entertainment land use ordinance which restricted the 17 commercial showing of adult films within a specific distance 18 of family-oriented uses and zones. As amended, the ordinance 19 recluded the exhibition of "specified sexual activities" and 20 "specified anatomical areas" as a continuous course of 21 onduct , in a manner which "appeals to a prurient interest" . 22 uch exhibitions were declared to be a public nuisance per 23 le subject to abatement by civil process . 24 II . 25 ARGUMENT 26, The "appeal to prurient interest" aspect of the Renton ?7 zoning ordinance is similar to one prong of the three-prong 28 WARREN&KELLOGG,P.S. PLAINTIFF' S SUPPLEMENTAL BRIEF ATTORNEYS AT LAW RE: PRURIENT INTEREST AS 100 SO.SECOND ST.,P.O.BOX 626 ONE PRONG OF MILLER TEST PAGE 1 RENTON,WASHINGTON 98057 255-8678 , 1 test found in, Miller v. California , 413 U .S. 15 ( 1973) . As 2 mor particularly noted in other briefs submitted on this 3 iss e, the City of Renton contends that the requirement of a 4 sho ing of appeal to prurient interest (one component of the 5 test for obscenity) does not draw in the entire Miller test . 6 If such were ;the case , the City of Renton would be required , 7 in effect, to prove the obscenity of the material in order to 8 re ulate the ; Defendants' land use by this zoning ordinance . 9 Su h an expansion of the clearly expressed legislative intent 10 would be an improper construction of the ordinance . Hart v . 11 Pedples Nat' l Bank, 91 Wn . 2d 197 , 203 , 588 P .2d 204 (1982) . 12 Additional support for the City of Renton 's position is 13 found in the provisions of RCW Chapter 7 .48A , the statute. 14 followingthe holdingthat en cted by the Legislature 15 In ' tiative No . 335 (RCW 7.48 .050-. 100) was unconstitutional . 16 Following the Miller test for obscenity , RCW 7 . 48A 010 17 (2) equates "lewd" with "obscene" and defines "lewd matter" 18 a any matter : 19 " (a) Which the average person , applying contemporary 20 community standards, would find, when considered as a whole , appeals to the prurient interest; and 21 "(b) Which explicitly depicts or describes patently 22 offensiv'e representations or descriptions of: 23 (i) Ultimate sexual acts , normal or perverted , actual or simulated; or 24 ( i) Masturbation , fellatio , cunnilingus, 25 bestiality, excretory functions , or lewd exhibition of the genitals or genital 26 areas; or 27 , 28 WARREN&KELLOGG,P.S. PLAINTIFF' S, SUPPLEMENTAL BRIEF ATTORNEYS AT LAW RE: PRURIENT' INTEREST AS 100 SO.SECOND'ST.,P.Q.BOX 626 ONE PRONG OF MILLER TEST PAGE 2 RENTON,WASHINGTON 98057 255-8678 1 ' 1 (iii)' Violent or destructive sexual acts , 2 including but not limited to human or animal mutilation , dismemberment , rape or 3 torture ; and 4 " (c) Which considered as a whole , and in the context in which . it is used , lacks serious literary , 5 artistic , 'political , or scientific value." 6 The State Legislature went one step further to 7 distinguish the concept of "pruriency" from "obscenity" when 8 it defined "prurient" at RCW 7 .48A 010(8) as " . . .that which 9 in ites lasciviousness or lust ." 10 The Legislature recognized that "appeal to the prurient 11 . in erest" was only a sub-part of "obscenity". RCW 7 .48A 010 12 ' (2 ( a) . The Legislature specifically equated "lewd" with 13 "o scene" , but did not equate "prurient" with "obscene" . 14 Ra her the Legislature has set it apart and defined it 15 se arately . 16 III . j 17 CONCLUSION 18 19 "Appeal to prurient interest" is not "obscenity" , whether 20 the Court is construing the state law or the city ordinance in 21 question . By regulation of only a continuous land use of 22 a hibition of sexually explicit films . which ' "appeal to a 23 p urient interest" the City of Renton sought only to avoid the 24 r gulation of an "innocent" use . Only continuous uses which 25 a peal to, lustful or lascivious tendencies were to be 26 regulated . To find to the contrary would ignore the 27 distinction between "prurience" and "obscenity" as identified 28 by the Legislature. If the City were to be required to prove WARREN&KELLOGG,P.S. LAINTIFF'S SUPPLEMENTAL BRIEF ATTORNEYS AT LAW RE: PRURIENT INTEREST AS 100 SO.SECOND ST.,P.O.BOX 626 my PRONG OF MILLER TEST PAGE 3 RENTON,W55866GTON98057 J 1 "obscenity" , there would be no reason for the zoning approach 2 to regulation of such uses under Young and Northend Cinema . 3 The City of Renton would proceed against the material which 4 was exhibitedunder available criminal and civil remedies 5 which require proof of obscenity. Only the Defendant' s land 6 - use is under question here. The Court should construe the 7 ord_nance according to its plain meaning --- the construction 8 , souht by Plantiffs . 9 DATED: November , 1983 . 1 10 Respectfully submitted , 11 12 13 AWRENCE J. WARREN 14 15 16 17 18 19 20 1 21 22 23 24 25 26 27 1 28 WARREN&KELLOGG,P.S. PL INTIFF'S SUPPLEMENTAL BRIEF ATTORNEYS AT LAW RE: PRURIENT INTEREST AS 100 SO.SECOND ST.,P.O.BOX 626 ON� PRONG OF MILLER TEST PAGE 4 RENTON,WASHINGTON 98057 255-8678 ' - ,, -Y-‘ C71./‘} IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING CITIY OF RENTON , a municipal ) co poration, et al . , ) NO. 82-2-02344-2 Plaintiffs , ) ) vs . ) ) PL YTIME THEATRES, INC . , a ) Washington corporation , ) et al . , ) ) Defendants . ) ) PLAINTIFF 'S PROPOSED SUPPLEMENTAL AND AMENDED JURY INSTRUCTIONS DATED: November , 1983 . ! I Respectfully submitted , P Y ,5/ LAWRENCE J. WARREN , of Warren & Kellogg, P . S . Attorneys for Plaintiffs • 1 EXPLANATION OF CHANGES BETWEEN PLAINTIFFS' FIRST PROPOSED JURY INSTRUCTIONS AND PLAINTIFFS' PROPOSED SUPPLEMENTAL AND AMENDED JURY INSTRUCTIONS PROPOSED INSTRUCtION NO. EXPLANATION 1 No change 2 No change 3 In second. line insert the word "municipality. " 4 No change 5 No change 6 No change 7 Plaintiffs ' original proposed ` Instruction No . 7 is withdrawn. In place thereof Plaintiff proposes Instruction No . 7A to more accurately define the concept of "prurient" and "appeal to prurient interest" . 8 In the fourth line insert the phrase "in sex" . 9 No change 10 In the third line of page 2 insert the phrase "in sex" . 11 In the fourth line of the third paragraph insert the phrase "in sex" . 12 No change 13 No change 14 Paragraph one is rephrased. 14A A new instruction is proposed as No . 14A to instruct the jury that the context of the land use of exhibition of "specified sexual activities" and "specified anatomical areas" must be considered by them. PROPOSED INSTRUCTION NO. EXPLANATION 15 Instruction No. 15 is substantially , rephrased. 16 Instruction No. 16 is substantially rephrased. 17 No change 18 No change 19 A typographical error in the word "directions" in the last line of paragraph 2 on page one of Instruction No. 19 is corrected. Special Verdict The phrase "in sex" is added to the Form last line of Question No . 2. • • NO . _ L I will now instruct you on the law. It is your duty to determine the facts in this case from the evidence produced in court . It also is your duty to accept the law from the judge , regardless of what yolu personally believe the law is or ought to be. You are to apply the law to the facts and in this way decide the case . The order in which these instructions are given has no sig ificance as to their relative importance. The attorneysl may properly discuss any specific instructions they think are particularly significant . You should consider th,e ins ructions as a whole and should not place undue emphasis on -ny particular instruction or part thereof. The evidence you are to consider consists of the testimony of the witnesses and the exhibits admitted int',o evidence . It has been my duty to rule on the admissibility of vidence . You must not concern yourselves with thle reasons for these rulings . You will disregard any evidencle whic either was not admitted or which was stricken by thie court . In determining whether any proposition has been proved , you should consider all of the evidence introduced by all parties bearing on the question. Every party is entitled do 1 the benefit of the evidence whether produced by that party or by another party. • III You are thejudges sole 'ud es of the credibility of the witnesses and of what weight is to be given the testimony of each. In considering the testimony of any witness, you may take into account the opportunity and ability of the witness to observe, the witness' memory and manner while testifyingl, any interest, bias or prejudice the witness may have, the reasonableness of the testimony of the witness considered ill l' light of all the evidence, and any other factors that bear on believability and weight. Counsel's remarks, statements and arguments are intended to elp you understand the evidence and apply the law. They are not evidence , however , and you should disregard any rem.rk, statement or argument that is not supported by the evidence or the law as given to you by the judge. I The lawyers have the right and the duty to make any obj ctions that they deem appropriate . Such objections sho ld not influence you, and you should make no presumption bec use of objections by counsel. 1 The law does not permit me to comment on the evidence in any way and I have not intentionally done so. If it appears to ou that I have so commented, during either the trial or the giving of these instructions , you must disregard the com ent. , Jurors have a duty to consult with one another and too del berate with a view to reaching a verdict . Each of you must decide the case for yourself but only after an impartial consideration of the evidence with your fellow jurors. In I • • the course of deliberations , you should not hesitate to re-examine your own views and change your opinion if you are convinced it is erroneous . You should not surrender your honest conviction as to the weight or effect of the evidence solely because 'of the opinions of your fellow jurors , or for the mere purpose of returning a verdict. You are officers of the court and must act impartially ' I and with an earnest desire to determine and declare the prorer verdict . Throughout your deliberations you will �'' ' neither sympathy nor prejudice to influence you. per it I i WPI 1 .02 NO. 2 Evidence may be either direct or circumstantial. Direct evi• ence is that given by a witness who testifies concerning fac s which the witness has directly observed or preceived thrrugh the senses . Circumstantial evidence consists of proof of facts or circumstances which, according to common experience permit a reasonable inference that other facts exi ted or did not exist . The law makes no distinction bet een the weight to be given to either direct or circumstantial evidence. One is not necessarily more or less val able than the other. WPI 1 .03 • • NO. 3 All parties are equal before the law whether they be municipality, corporation, partnership or individual . Each is -ntitled to the same fair and unprejudiced treatment as any individual would be under like circumstances. it WPI 1 .07 (modified) • • NO. 4 A witness who has special training, education or experience in a particular science , profession or calling, may be allowed to express an opinion in addition to giving testimony as to facts. You are not bound, however, by such an pinion. Ins determining the credibility and weight to be giv n such opinion evidence , you may consider, among other thi gs, the education, training, experience, knowledge arid abi ity of that witness, the reasons given for the opinion, the sources of the witness' information, together with the fac ors already given you for evaluating the testimony of any oth r witness . WI 2. 10 � �I NO. 5 Playtime Theatres, Inc. and Kukio Bay Properties , Inc. , Defendants , are corporations. A corporation can act only thr ugh its officers and employees. Any act or omission of anemployee officer or em to ee is the act or omission of the corporation. WPI 50 . 18 NO. 6 i I • For the purpose of these instructions, the definition of "s•ecified sexual activities" is as follows : (a) Human genitals in a state of sexual stimulation or arousal; (b) Acts of human masturbation , sexual intercourse or sodomy; (c) Fondling or other erotic touching of human genitals, pubic region, buttock or female breast. For the purpose of these instructions , the definition, of "s•ecified anatomical areas" is as follows: (a) Less than completely and opaquely covered human genitals , pubic region , buttock , and female breast below a point immediately above the top of the areola ; and (b) Human male genitals in a discernible turgid state , even if completely and opaquely covered . • Cit of Renton Ordinance No . 3526 . NO. 7A "Prurient" means that which incites lust or I � 1-sciviousness. "Appeal to a prurient interest" means having a tendency to excite lustful thoughts . R. C.W. 7 .48A.010(8) ; Roth v, United States, 354 U.S. 476 , 487 , 1 L . Ed . 2d 1498 , 77 S. Ct . 1304 ( 1957 ) ; Arizona v . Bartanen, 591 P.2d 546 , 552 (Ariz. 1979) . � I NO . 8 The City of Renton claims that the Defendants have exhibited at the Renton Theater "specified sexual activities" and "specified anatomical areas" in a manner which appeals to a prurient interest in sex. The City of Renton further claims that this exhibition of "specified sexual activities" and "specified anatomical areas" has been a continuing course of conduct since January 20, 1983 . The Defendants deny the above-mentioned claims of the City of Renton. WPI 20. 05 (modified) Citiy of Renton Ordinances No. 3526 , 3629 and 3637 . NO . 9 The foregoing is merely a summary of the claims of the p- rties . You are not to take the same as proof of the matters claimed unless admitted by the opposing party; and yo are to consider only those maters which are admitted or are established by the evidence . These claims have been outlined solely to aid you in understanding the issues . • WPI 20.05 � I NO. 10 The City of Renton claims Defendants' operations at the Re ton Theater are in violation of the zoning laws of the City of Renton . To establish such a violation by the • Defendants , the City must show the following elements : ( 1 ) That the Renton Theater is an enclosed building for presenting motion picture films; (2) That the motion picture films which have been exhibited by the Defendants at the Renton Theater are distinguished or characterized by an emphasis on matter depicting, describing , or relating to "specified sexual activities" and "specified anatomical areas" , as those terms are defined elsewhere in these instructions; H ( 3) That the motion picture films have been exhibited by Defendants for observation by patrons in the Renton Theater; (4 ) That the Renton Theater is located within 1 , 000 feet of any of the following uses or zones ; (a) Any residential zone; (b) Any single-family or multiple-family residential use; ( c) Any public or private school; (d) Any church or other religious facility or institution; ( e) Any public park; ( f) Any P-1 (public use) zone . (5 ) That the exhibition of "specified sexual activities�� "specified specified anatomical areas" by the Defendants at the Renton Theater since January 20, 1983 has been a continuing course of conduct. (6 ) That the exhibition of "specified sexual activities" and "specified anatomical areas" I i by the Defendants at the Renton Theater has been in a manner which appeals to a prurient interest in sex. The Defendants have admitted the elements set forth above as ( 1 ) through (4) . The Defendants have denied the elements set forth above as (5) and (6 ) . WPI 20 .02 (modified) NO. 11 The City of Renton has the burden of proving each of the following propositions : First , that the Defendants have exhibited "specified I. sex ual activities" and "specified anatomical areas" at the Renton Theater since January 20, 1983 as a continuing course of conduct ; Second , that the Defendants have exhibited "specified sexual activities" and "specified anatomical areas" at the Renton Theater in a manner which appeals to a prurient interest in sex. If you find from your consideration of all the evidence that each of these propositions has been proved, your verdict should be for the Plaintiff. On the other hand , if any of these propositions has not been proved, your verdict should be for the Defendant. WPI 21 .02 (modified) 1 • I NO. 12 When it is said that a party has the burden of proof on an proposition, or that any proposition must be proven by a "p eponderance" of the evidence , or the expression "if you fi d" is used, it means that you must be persuaded , considering all the evidence in the case bearing on the qu stion that the proposition on which that party has the bu den of proof is more probably true than not true . � I WPI 21 . 01 r 1 NO. 13 _ You are to determine whether the average person would find that the Defendants have , since January 20 , 1983 , ex"iibited at the Renton Theater in a continuous course of conduct , depictions of "specified sexual activities" and "specified anatomical areas" in a manner which appeals to a prurient interest in nudity, sex, or excretion. Ordinance No. 3526, as amended; State v. J-R Distributors , Inc. , 82 Wn. 2d 584 , 610 (1973) . ` i I • NO . 14 � I You are to decide what judgment ment would be made by the g average person by applying contemporary adult community st-ndards. Community standards simply provide the measure aginst which you decide the question of appeal to prurient interest . In deciding what conclusion the average person, applying contemporary community standards, would reach in these respects , you are entitled to draw on your own knowledge lof the views and sense of the average person in the community from which you came . For the purpose of these instructions , you are to consider that the community from which you came ' is the entire State of Washington. Smith v. United States , 431 U.S. 291 , 301-3 , 97 S.Ct . 1756 , 52 L .Ed. 2d 324 ( 1977) ; State v. J-R Distributors , Inc. , 82 Wn. 2d 584 , 610 ( 1973) . NO. 14A In determining whether there has been a continuing course of conduct of exhibiting "specified sexual activities" and "specified anatomical areas" in a manner which appeals to a prurient interest , you must consider the land use to which the theater has been put , and the context in which the "specified sexual activities" and "specified anatomical arias" have been exhibited. Ordinance No . 3526 , as amended. NO . 15 You may find that the exhibition of "specified sexual activities" and "specified anatomical areas" at the Renton Theater has been done in a manner which appeals to a prurient interest in sex if the exhibition either stimulates the erotic , or disgusts and sickens . Mishkin v. New York, 383 U.S. 502 , 508 , 16 L.Ed. 2d 56 , 86 S.Gt . 958 ( 1966 ) ; State v. J-R Distributors , Inc . , 82 Wn. 2d 584, 632 ( 1973) . ' I I � NO. 16 You must avoid subjective personal and private views in de ermining contemporary community standards. Instead , you mu.t evaluate what judgment would be made by a hypothetical average adult person applying the collective view of the adult community as a whole . The standard of the average ad It community is a synthesis of all men and women, inc luding the sensitive and insensitive, prudish and tolerant, educated and uneducated, religious and irreligious , and everyone in between. Smith v. United States , 431 U.S. 291 , 304 , 97 S.Ct . 1756 , 52 L .Ed . 2d 324 (1977) . Pinkus v. United States , 436 U.S. 293 , 298, 300 , 98 S.Ct . 1808, 56 L. Ed. 2d 293 ( 1978) ; State v. J-R Distributors , Inc . , 82 Wn. 2d 584 609 - 610 ( 1973) . NO . 17 There is no requirement that the parties prove or disprove the prurient appeal of the material by expert testimony when the material itself is placed in evidence. The material is the best evidence of what it represents . As with all witnesses , the trier of fact may accept or disregard all or any part of the testimony and put as much weight on the testimony as you find appropriate . Paris Adult Theatre v. Slaton , 413 U . S . 49 , . 56 , 93 S . Ct . 2628, 37 L. Ed. 2d 446 ( 1973) ; Kaplan v. California , 413 U .S. 115, 121 , 93 S. Ct . 2680, 37 L. Ed. 2d 492 ( 1973) ; State v. J-R Distributors , Inc . , 82 Wn. 2d 584 , 610 ( 1973) . NO . 18 You are instructed that the First Amendment freedom of speech guarantee has no application to the Defendants' theater operation at the Renton Theater. The City of Renton is entitled to enact reasonable regulations governing the se aration of an adult motion picture theater from certain of er family-oriented zones and land uses . Such a zoning regulation does not infringe upon the Defendants ' First Amendment rights . � I Yo ng v. American Mini Theatres Inc . , 427 U.S. 50, 62, 72, 9• S. Ct. 2 0, 9 L. Ed. 2d 3 0 1976 ) ; Northend Cinema v. Se,-ttle , 90 Wn. 2d 709 , 718 - 719 ( 1978) . I i ' I NO . 19 Upon retiring to the jury room for your deliberation, of this case, your first duty is to select. a foreman to act as chairman. It is his or her duty to see that discussion is crried on in a sensible and orderly fashion, that the issues submitted for your decision are fully and fairly discussed ar_d that every juror has a chance to be heard and '.to participate in the deliberations upon each question before the jury. You will be furnished with all of the exhibits admitted in evidence, these instructions and a special verdict from wY.ich consists of two questions for you to answer. It is nIcessary that you answer each of the questions unless ,the q estions themselves specifically provide otherwise . You s ould answer the questions in the order in which they are aked as your answers to some of them will determine whether y u are to answer all, or only some, or none of the others . A cordingly , it is important that you read the questions c refully and that you follow the directions set forth. This being a civil case , ten of your number may agree u on the answer to a question . The same ten jurors must a ree upon the answers to all questions. Whether the foreman I . is one of the ten or not, the foreman will sign the verdict a rl , d announce your agreement to the bailiff who will conduct you into court to declare your verdict . Judge • 1 1 I WPII 1 .08 WPI 1 . 11 i I SUPERIOR COURT OF WASHINGTON FOR KING COUNTY CITY OF RENTON, a municipal ) corporation, et al . , ) NO. 82-2-02344-2 ) Plaintiffs, ) SPECIAL VERDICT FORM ) vs. ) P AYTIME THEATRES, INC. , a ) W. shington corporation, ) e • al. , ) ) Defendants. ) We , the jury, make the following answers to the q estions submitted by the Court : ( 1 ) QUESTION NO. 1 : Has the exhibition of "specified sexual activities" or "specified anatomical areas" by the Defendants at the Renton Theater since January 20, 1983 been a continuing course of conduct? ANSWER: (Yes or No) If your answer to Question No. 1 is . "Yes" , then answer t e following: (2) QUESTION NO. 2: Has the exhibition of "specified sexual activities" or "specified anatomical areas" at the . Renton Theater by the Defendants been in a manner which appeals to a prurient interest in sex? ' ANSWER: (Yes or No) I � I I FOREMAN W°I 45. 08 et seq. (modified) i:, :-.i. L7'21ery—rz---' , Rr.C ..: .P ` 1 1 r OCT 1 1983 2 h • 1 CITY OF RENTON 4 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 5 CITY OF RENTON, a municipal ) . - corporation, et al. , ) 6 ) Plaintiffs, ', ) NO. 82-2-02344-2 7 ) vs. ) I 8 ) PLAINTIFFS' BRIEF RE: PLAYTIME THEATRES, INC. , a ) DEFINITION OF "APPEAL TO 9 Washington corporation, et ) PRURIENT INTEREST" 10 al. , ) Defendants. ) 11 12 I. ISSUES PRESENTED 13 A. What is the legal definition in the State of Washington 14 of "appeal to a prurient interest"? - 15 What is the specific element of the zoning ordinance, 16 definition of "used" which is tested by "appeal to a prurient 17 interest"? 18 II. ARGUMENT 19 A. The legal definition of "appeal to a prurient innterest" in the State of Washington is taken from 20 the leading case of State of Washington v. J-R Distributors . 21 The appropriate definition of "appeal to a prurient interest" 22 23 for the purposes of this action is set forth in State of Washington v. J-R Distributors, Inc. , 82 Wn. 2d 584, 512 P. 2d 1049 (1973) , 24 ,I 25 cert den. , 418 U. S . 949 , 41 L.Ed. 2d 1166, 94 S. Ct. 3217 (1974)1: 26 Does t e material " . . . produce an itching or a restless craving 27 for th lewd, licentious , and lascivious , in sexual matters ." 1 28 at 648 9 . PLAINT FFS' BRIEF RE: DEFINITION OF WARREN & KELLOGG; P.S. "APPEAL TO PRURIENT INTEREST" - 1 ATTORNEYS AT LAIN 100 SO. SECOND ST.. P. O. BOX 826 RENTON, WASHINGTON 98057 255-8678 •! ,A 1 This efinition is based upon Websters Third New International 2 Dictionary, page 1829 (1971) which defines the term "prurient" 3 as follows : 4 "la: marked by restless craving; itching with curiousity. . . b : having or easily susceptible 5 to lascivious thoughts or desires . . . c: tending to excite laxciviousness . . . ." 6 This lain and easily understood definition is constitutionally 7 group ed, and should be adopted by the Court herein for the 8 purpose of construction of the zoning ordinance under question 9 and the measurement of the "pruriency" of the land use actually 10 11 operated by the Defendants at the Renton Theater. 12 B. In order for the zoning ordinance to be violated 13 the trier of fact must find that the exhibition of "specified sexual activities" and "specified anatomical 14 areas" has been done in a manner which "appeals to a prurient interest" . 15 The definition of an "adult motion picture theater" which 16 17 may not be located within 1,000 feet of certain family-oriented 18 uses a d zones within the City of Renton, is as follows : "An enclosed building used for presenting motion 19 picture , films , video cassettes, cable television, 20 or any other such visual media, distinguished or characterized by an emphasis on matter depicting, describing or relating to ' specified sexual act- 21 ivities ' or 'specified anatomical areas' as here- after defined, for observation by patrons therein." 22 (Emphasis added) . 23 See Or inance No. 3526 , § I. 24 When the City was unsuccessful in its effort to persuade 25 the feeral court ,to authoritatively construe the ordinance so 26 as to preclude the regulation of an "innocent" exhibition, thee, 27 City a ended Ordinance No. 3526 to specifically add a mens rea 28 elemen to the "use" which was sought to be regulated. The City WARREN & KELLOGG. P.S. PLAINTIFFS' BRIEF RE: DEFINITION OF ATTORNEYS AT LAW "APPEAL TO PRURIENT INTEREST" - 2 too So. SECOND ST.. P. O. BOX 626 RENTON, WASHINGTON 98057 255-8678 1 could have made an "innocent" exhibition an affirmative defense 2 to a iirosecution for abatement of a public nuisance per se under 3 the ordinance.n e. However, the City chose to assume the burden of 4 estab 11 ishing the "pruriency" of the "use" as a part of its case 5 in chef in order to state and prove its cause of action. 1 6 he amendment added the following definition of "used" as 7 inclu ed in the definition of "adult motion picture theater" set 1 8 forth above: 1 9 "The word 'used' in the definition of "Adult motion picture theater" herein, describes a 10 continuing course of conduct of exhibiting ' specifi(ed) sexual .activities.'. and .' sp.ecifi(ed) 11 anatomical areas ' in a manner which appeals 12 to a prurient interest." (Emphasis added) . 13 See Ordinance Nos . 3629 and 3637, §@ I. It is clear that the 14 element of the definition of the "use" which must appeal to aprurient interest is the exhibition of "specified sexual 15 I 16 activities" and "specified anatomical areas" . It is only 17 incide tal in this case that the particular visual media which have utilized in their operation is motion picture 18 the Defendants P 19 film. The provisions of the ordinance would have been violated • 20 (and the land use would be a nuisance per se) if the visual 21 media for exhibition of sexually explicit material had been some 22 other korm of presentation. 23 Frthis reason, the Court must clearly focus on the land 24 use operated bythe Defendant at the Renton Theater, including 25 all of its operational characteristics, in determing whether the 26 exhibition of sexuallyexplicit materials at the Renton Theater 1 27 has in fact been carried on in a fashion which appeals to a 1 28 prurient interest. . PLAINTIFFS' BRIEF RE: DEFINITION OF WARREN & KELLOGG. P.S. "APPEAL TO PRURIENT INTEREST" - 3 ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. SOX 626 RENTON, WASHINGTON 98057 255-8678 i i I 1 III. CONCLUSION 2 The legal definition of "appeal to a prurient interest" in 3 the State of Washington is an " . . . itching or a restless craving 4 for the lewd, licentious, and lascivious, in sexual matters . 5 J-R Distributors , . Inc. , supra, at 648-9 . 6 the zoning ordinance is violated and the offending land use 7 becom s a nuisance per se when the operations of the land use, 8 in exhibiting "specified sexual activities" and "specified 9 anatomical areas" is done in a manner which "appeals to a 10 prurient interest" . 11 Dated: October 12, 1983. 12 Respectfully submitted, 13 14 15 Lawrence J. Warren Attorney for Plaintiffs 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS' BRIEF RE: DEFINITION OF WARREN & KELLOGG, P.S. "APPEAL TO PRURIENT INTEREST" - 4 ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. BOX 626 RENTON, WASHINGTON 98057 255-8678 1 ; `, ., M1., 2 1OCT 1 3 1►983 3 RENTON 4 j',;3 ''°ffi" °' },`;t._� a!;E .......E..,,,,.,.,.., .,.,. ..-,,....,.. .......�_.,,,........ , 5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY OF RENTON, a municipal ) corporation , et al . , ) NO. 82-2-02344-2 7 ) Plaintiffs , ) PLAINTIFFS' TRIAL BRIEF RE: 8 ) PRE-EMPTION BY STATE OF vs. ) OBSCENITY REGULATION 9 ) PLAYTIME THEATRES, INC. , a ) 10 Washington corporation , ) et all . , ) 11 ) Defendants . ) 12 ) 13 ISSUE 14 Is the City of Renton' s zoning ordinance pre-empted by 15 enactment by the State of Washington of legislation which 16 restricts available criminal remedies to control obscene 17 material? 18 ARGUMENT 19 The Supreme Court has specifically sustained zoning 20 ordinances similar to the one in Northend Cinema as against a 21 pre-emption argument. Spokane v. Portch , 92 Wn. 2d 342 , 596 22 P .2d 1044 (1979) . That case involved a Spokane ordinance 23 which substantially re-enacted RCW 9 .68 .010 et seq. However , 24 the city ordinance made violation of this statute , which was 25 composed of a number of sections purporting to control 26 obscene and erotic material , a misdemeanor . State statute 27 provided that violation of RCW 9 .68 was a gross misdemeanor . 28 PLAINTIFFS' TRIAL BRIEF RE: PRE-EMPTION WARREN&KELLOGG,P.S. BY STATE OF OBSCENITY REGULATION PAGE 1 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 I i I � 1 The Supreme Court made it clear that the municipality was 2 pre-empted from enacting criminal legislation controlling 3 obscene and ,erotic material . Note the provisions oIf 4 Ordinance No. 3629 (attached hereto as Attachment "A" ) whiclh 5 specifically waive any criminal remedy against violation of 6 the ordinance ., 7 However, in Spokane v. Portch, the specifically Court 8 stated that their ruling "does not indicate a retreat from 9 our position in Northend Cinema . . . " at 348 . The court 10 reaffirmed the municipality's power to exercise its authority 11 in o her areas :such as zoning at page 349, wherein it stated: 12 "RCW 9 .68 . 010 pre-empts the field of obscenity prohibition but has no effect on the 13 municipalities' power to exercise their authority in other areas such as zoning . Nothing in this 14 opinion should be construed to deprive municipalities of their authority to control 15 obscene material by taking measures which do not fall within the purview of state law." 16 CONCLUSION 17 The City of Renton is not pre-empted from enacting the 18 subject legislation. Criminal legislation was pre-empted by 19 Spokane v. Portch, supra. However , the Renton Ordinance is 20 not criminal, remedy. Rather, the ordinance specifically', 21 decl res any violation of the legislation to be a public 22 nuisance per se , to be abated through civil abatement 23 procedures only. The Young-type zoning approach td 24 regulation of sexually explicit land uses is unaffected. 25 \ . Respectfully submitted , 26 27 LAWRENCE J. WARREN 28 PLAINTIFFS' TRIAL BRIEF RE: PRE-EMPTION WARREN&KELLOGG,IP.S. BY STATE OF OBSCENITY REGULATION PAGE 2 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 • ' ' Ca. AS 3524 • •!1 �I 1 . CITY OF RENTON, WASHINGTON f ..' 1 ORDINANCE NO. 3E29 i 1 AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON t RELATING TO LAND USE AND ZONING • WHEREAS, on April 13, 1981, the City Council of the City of Renton adopted Ordinance No. 3526, which Ordinance was approved by the Mayor on April 13, 1981, and became effective by its own 4 ' ii t terms on June 14, 1981; and .•• i • WHEREAS,it • was the intention of the City Council of the .3 f': • Cityof Renton in the adoption of that Ordinance to rely upon the ; • ` 1 opinion of the United States Supreme Court in the case of Young v. , IAmerican Mini Theaters, 427 US 50, and of the Supreme Court of 1 .4 ; the State of Washington in the case of Northend Cinemas v. Seattle. 90 Wn 2d, 709, to limit the location of adult motion picture theaters, . as that term is defined therein, to promote the City of Renton's : . i great interest in protecting and preserving the quality of its 1 neighborhoods, commercial districts, and the quality of urban life • through effective land use planning; and , , -' WHEREAS, the City Council, through its Planning and Development Committee, held a public meeting on March 5, 1981, to l II receive testimony from the public concerning the subject of regulation of adult entertainment land uses, at which the following testimony I • I; r was received which the -City Council believes to be true, and which formed the basis for the adoption of Ordinance No. 3526: - • 1. Areas within close walking distance of single and 1 E multiple family dwellings should be free of adult 1 I 1 entertainment land uses. 3 • I 2. Areas where children could be expected to walk, ; i patronize or recreate should be free of adult i entertainment land uses. : 1 + 1 3. Adult entertainment land uses should be located j �: in areas of the City which are not in close I ? . proximity to residential uses, churches, parks. '• _ i and other public facilities, and schools. , ' .:' l 4. The image of the City of Renton as a pleasant 1j I• and attractive place to reside will be ,adversely I CERTIFICATE t ' { I "a I,the undersigned.iniltrrue £ wen a Clerk of the .1 , l• City of Rentor,Wn.hintton, certify that this is a true R Iand correct c.el•L .AR.A.01.0.t.4YC,R...&40...5itai.... { Subscrih.:o-i5e..._l this :14 day of .Qct:.,1921 r City Clerk • 11 1 i i f; .: :.J \'A" 1 1 . t i I. . affected by the presence of adult entertainment land uses in close proximity to residential land • uses, churches, parks and other public facilities, • • and schools. 5. 'Regulation of adult entertainment land uses should be developed to prevent deterioration and/or degradation of the vitality of the community before the problem exists, rather than in response to an existing problem. . 6. Commercial areas of the City patronized by young • people and children should be free of adult enter- ~ ,tainment land uses. ,; ~ 7. The Renton School District opposes a location of • adult entertainment land uses within the perimeters of its policy regarding bussing of students, so that • students walking to school will not be subjected to £ .. confrontation with the existence of adult entertain- ment land uses. ; , 8. The Renton School District finds that location of ; adult entertainment land uses in areas of the City A which are in close proximity to schools, and `F commercial areas patronized by students and young I- people, will have a detrimental effect upon the t quality of education which the School District is . providing for its students. 9. The Renton School District finds that education of ' its students will be negatively affected by location of adult entertainment land uses in close proximity f to location of schools. i • 10. Adult entertainment land uses should be regulated by • zoning to separate it from other dissimilar uses .,3 3 • just as any other land use should be separated from uses with characteristics different from itself. 1 '� 11. ,Residents of the City of Renton, and persons who are s; . 1 a i non-residents but use the City of Renton for shopping ` a I� and other commercial needs, will move from the community or• shop elsewhere if adult entertainment land uses are allowed to locate in close proximity to residential i` uses, churches, parks and other public facilities. and schools. .� 12. Location of adult entertainment land uses in proximity a • to residential uses, churches, parks and other public facilities, and schools, may lead to increased levels i. of criminal activities, including prostitution, rape, A 'incest and assaults in the vicinity of such adult tt= entertainment land uses. . F 13. Merchants in the commercial area of the City are concerned about adverse impacts upon the character and quality of the City in the event that adult entertainment land uses are located within close proximity to residential uses, churches,parks and j • . 1 other public facilities, and schools. Location of • E I T r \ -2- ; . a j . : i 1 . I I • I I I . ; t i � � i adult entertainment land uses in close proximity ! ' • i to residential uses, churches, parks and other :public facilities, and schools, will reduce retail f trade to commercial uses in the vicinity, thus i • reducing property values and tax revenues to the i I 11 • City. Such adverse affect on property values will • cause the loss Of some commercial establishments • followed by a blighting effect upon the commercial districts within the City, leading to further . 1 deterioration of the commercial quality of the City. , i i 14. Experience in numerous other cities, including Seattle, f Tacoma and Detroit, Michigan, has shown that location • i • of adult entertainment land uses degrade the quality of the areas of the City in which they are located i } . and cause a blighting effect upon the city. The 5 , skid row effect, which is evident in certain parts of Seattle and other cities, will have a significantly• • :; larger affect upon the City of Renton than other K major cities due to the relative sizes of the cities. 15. No evidence has been presented to show that location . of adult entertainment land uses within the City will. - improve the commercial viability of the community. 'i 16. 1 Location of adult entertainment land uses within € walking distance of churches and other religious facilities will have an adverse effect upon the ministry of such churches and will discourage 1' - attendance at such churches by the proximity of • adult entertainment land uses. 17. A reasonable regulation of the location of adult . t entertainment land uses will provide for the protection 5 of the image of the community and its property values, 1 • . !� and protect the residents of the community from the i. adverse effects of such adult entertainment land uses, • : while providing to those who desire to patronize adult 1 . . i entertainment land uses such an opportunity in areas , within the City which are appropriate for location of adult entertainment land uses. i 19. The community will be an undesirable place to live if it is known on the basis of its image as the . location of adult entertainment land uses. 20.. A stable atmosphere for the rearing of families 1 , cannot be achieved in close proximity to adult 1i entertainment land uses. • . i• • i 21. The initial location of adult entertainment land . • uses will lead to the location of additional and , ' similar uses within the same vicinity, thus multiplying the adverse impact of the initial location of adult entertainment land uses upon the residential, churches, parks and other public facilities, and schools, and •• the impact upon the image and quality of the character of the community. -3- i 9 ' , + 1 Ij 2' ! ! s 4 I A i 1 .. . and S. WHEREAS, since the adoption of Ordinance No. 3526, it has come to the attention of the City Council of the City of Renton 1 ± . that it would be appropriate to set forth in writing the findings• of fact which were the basis for the adoption by the City Council 2 l• • of Ordinance ,No. 3526; and ' WHEREAS, the City Council finds that, in order to choose the least restrictive alternative available to accomplish the purposes for which Ordinance No. 3526 was adopted, and to include a severability• i clause which'was inadvertently omitted from Ordinance No. 3526, and ' • : to make certain other technical amendments to Ordinance No. 3526, that it is necessary for the City Council to adopt legislation .;I • - I is � .• ► amending Ordinance No. 3526 to accomplish the foregoing purposes; '1 1 r and• i • WHEREAS, the City Council, at its duly called special meeting on February 25 1982, held a public hearing upon the subject 1 matter of land use regulations of•adult motion pictures within the A 1City of Renton. at which public hearing the City Council received comments• from the public on that subject matter at which the following 4 • testimony was received, which the City Council believes to be true, • • and which. together with the findings heretofore set forth as the basis for the adoption of Ordinance No. 3256, form the basis for t •. , the adoption of this Ordinance: i r 1. Many parents have chosen the City of Renton in ;j which to raise their families because of the lack I :;; '.. i of pornographic entertainment outlets with its i influence upon children external to the home. ..,i . • ' 2. , Location of adult entertainment land uses on the • main commercial thoroughfares of the City gives • an impression of legitimacy to, and causes a loss of sensitivity to the adverse affect of pornography i :. I upon children, established family relations, respect P'i. 1 for marital relationships and for the sanctity of marriage relations of others, and the concept of i I. Irk 1 non-aggressive consenual sexual relations. -4 .t2I ''' i . t i • j 1 i .t • 1 • ' I • 1 a . . 1 3. Citizens from other cities and King County will travel • to Renton to view adult film fare away from areas in f • I which they are known and recognized. • 4. Property values in the areas adjacent to the adult I . entertainment land uses will decline, thus causing a blight upon the commercial area of the City of Renton. : i . '1 '1 • 5. Location of adult entertainment land uses within neighborhoods and commercial areas of the City of 1 Renton is disrupting to youth programs such as Boy I 1 Scouts, Cub Scouts and Campfire Girls. Many such youth programs use the commercial areas of the City i as a historical research resource. Location of adult •• entertainmenthuc land uses otherepublicmfacilities to iandtial ' � uses, churches, parks , 1 • schools is inappropriate. 6. Location of adult entertainment land uses in close , ... proximity to residential uses, churches, parks and I other public facilities, and schools, will cause a i i I degradation of the community standard of morality. 1; Pornographic material has a degrading effect upon the i relationship 'between spouses. •: NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTOt DO ORDAIN AS FOLLOWS: r SECTION I: Existing Section 4-702 of Title IV (Building Regulations) of Ordinance No. 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended by adding the following sub- -.1 •• : 1 I; sections: !1 "Used" The word "used"' in the definition of "Adult motion ; • r • ., picture theater" herein, describes a continuing course of conduct of exhibiting "specific sexual activities" and "specified anatomical areas" y .J • eals to a prurient interest. .4 . • �' ! in a manner which app A+ SECTION II: Existing Section 4-735 of Title IV (Building . :. �{ . 0 1 I, Regulations) of Ordinance No. 1628 entitled "Code of General Ordinances } i subsections: of the City of Renton" is hereby amended by adding the following i.. (C) Violation of the use provisions of this section is declared ._� .• .1 to be a public nuisance per se, which shall be abated by City Attorney ' criminal eat E: ' , by way of civil abatement procedures only, and not by Pros (D) Nothing in this section is intended to authorize, , i j ! l• egalize or permit the (stablishment, operation or maintenance of any t business, building or use which violates any City of Renton ordinance • or statute of the State of Washington regarding public nuisances, . 1 • sexual conduct, lewdness, or obscene or harmful matter or the • • exhibition or public display thereof. , -, -5- • i 1 " _ i L 4 1 t . • SECTION III: Existing subsection (A)(2) of Section 4-735 of Title IV (Building Regulations) of Ordinance No. 1628 entitled ,i "Code of General Ordinances of the City of Renton" is hereby amended . t to read as follows: . r1 2. One thousand feet (1,000') of any public or private ' f school. SECTION IV: City of Renton Ordinance No. 3526 is hereby • amended by adding the following section to read as follows: ;;; If any section, subsection, sentence, clause, phrase or any portion of this ordinance is for any reason held to be invalid . ! . { or unconstitutional by the decision of any court of competent urisdiction, such decision shall not affect the validity of the } 4 ' remaining portions of this ordinance. The City Council of the City of Renton hereby declares that it would have adopted City of Renton " • Ordinance No. 3526 and each section, subsection, sentence, clause. hrase or portion thereof irrespective of the fact that any one or tt sentences, clauses, phrases or portions f ore sections, subsections,e declared invalid or unconstitutional. _ I • SECTION V: If any section. subsection, sentence, clause, li 1 - -1 hrase or any portion of this ordinance is for any reason held to be Aq invalid or unconstitutional by the decision of any court of competent . I jurisdiction. such decision shall not affect the validity of the •• � t remaining portions of this ordinance. The City Council of the City ` of Renton hereby declares that it would have adopted this ordinance , • � and each section, subsection. sentence, clause. phrase or portion thereof irrespective of the fact that any one or more sections, sub- , • sections, sentences, clauses, phrases or portions be declared invalid I I or unconstitutional. ;1 SE • CTION VI: The City Council of the City of Renton finds <- and declares that an emergency exists because of the pendency of i t • . litigation against the City of Renton involving the subject matter of t this ordinance, and potential liability of the City of Renton for damages as pleaded in that litigation, ana that the immediate adoption II II i ! • . -6- j t i 1 i jii . . . I of this ordinance is necessary for the immediate preservation of f. public peak. health, and safety or for the support of city government and its existing public institutions and the integrity of the zoning ;, ` of the Cityof Renton. Therefore. this ordinance shall take effect I t . `t ' �I 4 immediately upon its passage and approval by the mayor. II i + PASSED BY THE CITY COUNCIL this 3th day of May, 1982. i . e A. Meadf'lerk e ores I 4 . f APPROVED BY THE MAYOR this 3th day of may. 1982. tI x ` . 'I f Barbara Y'. Shinpoch. Mayor • { Approved as to form: j . Ci,p4.0.,A.......'t ?h-pribK... HLH Lawrence J. Warren, City Attorney 4 Date of Publication: May 7, 1982 7 fl 1 j I i . i ,.. i : . C i I F f -7- III �. t I .:: . _ 1 0(1 Cj-b-Ir 2 O01 11. 19-8-3 I ,_ 3 i 7,i 12 !!!:!N r.:_�. �:,,_s.4 rl► 0O 1 1 8 i98J 5 SUPERIOR COURT:"OF WASHINGTON FOR KING COUNTY 6 CITY OF RENTON, a municipal ) corporation, et al . , ) NO. 82-2-02344-2 7 ) 8 Plaintiffs , ) PLAINTIFFS' BRIEF RE: REQUIREMENT OF PROOF OF vs . ) OBSCENITY IN A YOUNG 9 ) ENFORCEMENT ACTION ' • PLAYTIME THEATRES, INC. , a ) 10 Wasklington corporation , ) 11 et al . , ) ) Defendants . ) • 12 ) 13 The Court, during pre-trial arguments , expressed some 14 concern that enforcement of a Young-style ordinances tight 15 require proof of obscenity. The Court also expressed concern 16 that the obscenity test might be triggered because the City 17 has termed this action a nuisance proceeding. The Court , 18 lastly, expressed some concern that the definition of the 19 word "used" might require proof of obscenity. This Brief 20 will discuss those issues . 21 SUMMARY OF ARGUMENT 1 22 1 . Young-style ordinances regulate more than 23 obscenity; they also regulate constitutionally protected 24 speech through a reasonable "time , place , manner" I 25 restriction . . 26 2 . A nuisance action may be brought for violation of a �7 Young-type ordinance triggered by a violation of the zoning 28 code . Conversely , although nuisance actions may also be WARREN&KELLOGG,P.S. ATTORNEYS AT LAW PLAINTIFFS' BRIEF RE : 1o0 SO.SECOND ST.,P.O.BOX 626 RE IUIREMENT OF PROOF OF OBSCENITY RENTON,WASHINGTON 98057 IN�A YOUNG ENFORCEMENT ACTION -1- 255-8678 1 brought for violation of obscenity laws , the "triggering 2 event" there is a violation of .a specific obscenity statute. i 3 3. The term "used" in the Renton ordinance which uses 4 the term "appeal -to prurient interest" has a legal definition 5 sep- rate and apart from the three-part Miller test and does 6 not trigger the full test . 7 ARGUMENT • 8 1 . ' Young-style ordinances regulate more than obscenity. They regulate constitutionally 9 protected speech through a reasonable "time , place, manner" restriction. 10 As stated on the face of the Renton ordinances , these 11 enactments were patterned after Young v. American Mini 12 Theaters , 427 U.S. 50 ( 1976 ) , and Northend Cinema v. Seattle , 13 14 90 Wn . 2d 709 ( 1978 ) . The intent of each of these three enactments, that is the Detroit ordinance, the Seattle 15 ordnance , and the Renton ordinance , was to regulate the 16 loc tion of adult motion picture theaters . All three of the 17 ordinances clearly attempt to place a reasonable "time , 18 pla e, manner" restriction on the exercise of presumptively 19 con titutionally-protected speech. The ordinances do not 20 attempt to regulate obscenity. As stated by Young, supra, in 21 footnote 18 at page 64: 22 "reasonable regulations of the time , place , and 23 manner of protected speech, where those regulations are necessary to further significant governmental 24 interests , are permitted by the First Amendment ." (Citations omitted . ) 25 That footnote followed a discussion by the Court about 26 th- protected First Amendment nature of the materials that 27 would be regulated by the zoning. 28 WARREN&KELLOGG,P.S. ATTORNEYS AT,LAW PLAINTIFFS ' BRIEF RE : 100 SO.SECOND ST.,P.O.BOX 626 REQUIREMENT OF PROOF OF OBSCENITY RENTON,WASHINGTON 98057 TYT H n v(1TTAT(S Wl4p�nRr1 MFMT nr TT(1N -2- 255-8678 1 "The mere fact that the commercial exploitation of material protected by the First Amendment is 2 subject to zoning and other licensing requirements is not a sufficient reason for invalidating these 3 ordinances ." at 62. 4 See also Northend Cinema, supra, at page 717 : I 5 "We conclude the zoning regulation of location of 6 adult movie theaters is a reasonable regulation of place for First Amendment speech which does not violate First Amendment freedoms. See Young at • 7 page 63." 8 Both Young and Northend Cinema presuppose that the 9 materials which would be regulated by the subject ordinances 10 amount to constitutionally protected free speech . It is 11 clear that obscenity is not constitutionally protected free 12 speech. Miller v. California, 413 U.S. 15, 37 L.Ed. 2d 419 , 13 93 S. Ct. 2607 ( 1973) states at page 23: 14 "This much has been categorically settled by the Court, that obscene material is unprotected by 15 the First Amendment . Kois v. Wisconsin , 408 U. S. 16 229 , 33 L . Ed 2d 312 , 92 S. Ct 2245 ( 1972 ) ; United States v. Reidel , 402 U.S. at 354 , 28 L.Ed 2d 813; Roth v. United States , supra , at 485 , 1 L . Ed 2d 17 1498. " 18 Therefore, if Young and Northend Cinema permiti a 19 reasonable "time , place , manner" restriction on protected free 20 speech and zoning ordinances involving the location of adult 21 motion picture theaters , those ordinances extend beyond 'the 22 obscene to regulate material that is not obscene butlis 23 ot1.erwise constitutionally protected free speech. 24 To give meaning to Young and Northend Cinema, the Court 25 must realize that such enactments were not necessary Ito 26 regulate obscenity. Sufficient remedies are available under 27 the criminal laws, RCW Chapter 9 .68, public nuisance 28 statutes , RCW 7 . 48. 010 et seq. , and moral nuisance statutes, 1 WARREN&KELLOGG,P.S. ATTORNEYS AT LAW PLAINTIFFS' BRIEF RE : 10o SO.SECOND ST.,P.O.BOX 626 REQUIREMENT OF PROOF OF OBSCENITY RENTON,WASHINGTON 98057 TWA YOTTNG ENFORCEMENT ACTION -1- 255-8678 1 1 RCW 7 .48.050-. 100 and RCW Chapter 7.148A, to control 2 dissemination of obscene material . To require proof of 3 obscenity in enforcement of a a Young-style zoning or.dinanc'e 4 would destroy and repudiate the concept of reasonable "timel, 5 place, manner" zoning •restriction on presumptively protected 6 free speech, and thus 'repudiate the rationale and authority 7 of those two cases . Restricting Young to require proof off 8 obsJenity leads to the result of regulating the "time, place , 1 9 man er" for exhibition of obscene material. Obscenity 10 requires no "time , place" manner" regulation. At all times 11 and locations obscenity is unlawful. 12 2. A nuisance action may be brought for violation of a Young-type ordinance triggered by a 13 violation of the zoning code . Conversely , although nuisance actions may also be brought 14 for violation of obscenity laws , the "triggering event" there is a violation of a 15 specific obscenity statute . 16 The Plaintiffs have reviewed a line of California cases 17 inv lving public nuisance actions where the Courts required 18 proof of obscenity. People ex rel Gow v. Mitchell Brothers' P 19 Santa Ana Theater , 101 Cal. App. 3d 296 , 161 Cal . Rptr . 562 20 ( 1980) ; People ex rel Gow v. Mitchell Brothers' Santa Ana 21 Theater , 114 Cal . App . 3d 923 , 171 Cal . Rptr . 85 ( 1981) ; 22 People ex rel Gow v. Mitchell Brothers' Santa Ana Theater , 23 118 Cal. App. 3d 863, 173 Cal. Rptr. 476 ( 1981 ) ; People lex 24 rel Cooper v. Mitchell Brothers' Santa Ana Theater, 128 Cal . 25 App. 3d 937, 180 Cal. Rptr . 728 ( 1982) ; People ex rel. Busch 26 v: Projection Room Theater , 130 Cal . Rptr. 328 , 550 P. 2d 600 27 ( 776) . Among the cases reviewed, there are no cases which 1 28 in olve a Young-style ordinance . WARREN&KELLOGG,P.S. ATTORNEYS AT LAW PL INTIFFS ' BRIEF RE : 100SO.SECONDST.,P.O.BOX626 REQUIREMENT OF PROOF OF OBSCENITY RENTON,WASHINGTON 98057 INIA YOUNG ENFORCEMENT ACTION -4- 255-8678 1 1 1 The following critical differences between those cases 2 and the case before this Court include: ( 1 ) the Californiia 3 cases allege obscenity as a predicate to bringing the action. I 4 In this present case , the City presumes, for the purpose of 5 the trial of Plaintiffs' :First .and Second Causes of Action, 6 tha the materials exhibited are protected free speech, not 7 obs enity. (2) The California cases seek a total ban of the 8 offending use under California law. Here, the City seeks to I 9 prosecute a zoning violation at a specific location. Under 10 the ordinance , constitutionally protected materials may be 11 exhibited in other areas of the City or as a non-continuing 12 cou se of conduct . The fact that the zoning approval as i 13 provided in Young left the market for sexually explicit (but i 14 not obscene) materials "essentially unrestrained" is the 15 critical rationale for permitting this regulating scheme . 16 Young, at 78-79 . 1 17 The California statute involved in those cases was a 18 general public nuisance statute. The Court quoted from a 19 state statute defining public nuisance as : i 20 " [a]nything which is injurious to health , or is indecent, or offensive to the senses, or an 1 21 obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or 22 property by an entire community or neighborhood , or 23 by any considerable number of persons. . . ." (Emphasis added) . 24 Compare that with R.C.W. 7. 48.010 which states in part 25 " . . .whatever is injurious to health or indecent or 26 offensive, to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life or 27 property, is a nuisance and the subject of an action 28 for damages and other and further relief . " (Emphasis added) . WARREN&KELLOGG,P.S. ATTORNEYS AT LAW PLAINTIFFS' BRIEF RE : 100 SO.SECOND ST.,P.O.BOX 626 1 REQUIREMENT OF PROOF OF OBSCENITY RENTON,WASHINGTON 98057 TN I A YOUNG ENFORCEMENT ACTION -5- 255-8678 • I 1 The City of Renton has alleged RCW Chapter 7 . 48 asia 2 basis for relief in another portion of its complaint , but not 3 in the causes of action being tried at this time . If and when 4 the City seeks to move under 7 . 48.010, then the City will be 5 held to prove an obscenity standard just as the California 6 courts required. However, the City' s present cause of action 7 for abatement of public nuisance per se for violation of the 8 zoning code is grounded upon RCW 35. 22. 280(30) which describes 9 the powers of first class cities . That power includes : 1 10 "To declare what shall be a nuisance, and to abate the same , and to impose fines upon parties who may 11 create , continue , or suffer nuisances to exist ; " (Emphasis added) . 12 The City of Renton is a non-charter code city which has all ' of 13 the powers of a city of any class in the State of Washington. 14 RCW 35A.21 . 160. 15 Therefore , the Court can easily distinguish this case 16 fro the California public nuisance cases which, by the terms 17 of the source law must involve the pleading and proof of 18 obscenity. 19 The California public nuisance cases are further 20 distinguishable from the present zoning case by the nature, of 21 22 th enforcement remedy sought . In the California cases , ithe �3 Co rt was asked to declare that the books , films and magazines were obscene , and thus would be public nuisances at ,,any 24 to ation . 25 26 Here , the City contends , for the purpose of this trial , that the Defendants' land use is a public nuisance only 27 because of its location within 1 , 000 feet of a family-oriented 28 WARREN&KELLOGG,P.S. ATTORNEYS AT LAW PL , INTIFFS' BRIEF RE : 700 SO.SECOND ST.,P.O.BOX 626 RE Q UIREMENT OF PROOF OF OBSCENITY RENTON,WASHINGTON 98057 INIA YOUNG ENFORCEMENT ACTION -6- 255-8678 1 use •r zone. If the Defendants' land use, showing its present 2 film fare , was moved to a permitted location within the City, 3 the City could not bring a zoning enforcement action as in 4 this case . 5 If the City of Rehton., sought to prohibit the materials 6 throughout the City, but used a Young-style zoning ordinancie , 7 the City would have run directly afoul of Schad v. Borough of 8 Mt. Ephraim, 452 U.S. 61 ( 1981 ) , and Basiardanes v. City of 9 Galveston, 682 F. 2d 1203 (5th Cir . 1983) . Those two cases 10 held that the use of a Young-style ordinance to entirely ban 11 protected free speech, or to effectively ban it, was note a 12 reasonable "time , place , manner" restriction, and therefore 13 violated the First Amendment . 1 14 The California cases are distinguishable from the case at 15 bar in the allegations of the cause of action. The California 16 cases allege that the materials are obscene (outside of the 17 protection of the First Amendment) and .therefore could be 18 exhibited at no location in the city. 19 In order to put the use of the term "nuisance" in zoning 20 cases into perspective , one should consider a similar zoning 21 violation as the one on trial. It is undebatable that the 22 City has the power to regulate the commercial exercise of free �3 speech. For example , a city could create a single family 24 neighborhood zone and not permit a commercial newspaper press 25 to be located in that single family neighborhood. 26 But , suppose such a commmercial printing press did locate 27 in a single family neighborhood . This would clearly be a 28 violation of the zoning ordinance . The city would sue in the WARREN&KELLOGG,P.S. ATTORNEYS AT LAW PLAINTIFFS' BRIEF RE: 100 SO.SECOND ST.,P.O.BOX 626 REQUIREMENT OF PROOF OF OBSCENITY RENTON,WASHINGTON 98057 255-8678 TT,1 I n vnrlrlr_ p1\iF(1R('FMF'NT AC:TT(1N -7- 1 civil courts , claiming a nuisance and seeking an injunction . 2 Undoubtedly, if a court found the use to be a nuisance and 3 granted the injunction, there would be some effect on free 4 speech , since the printing press would be banned from the 5 nei lhborhood and would have to relocate . But while free 6would be im acted and the citywould be using . a speech p , 7 nuisance theory, there would be no claim that an obscenity 8 standard would have to be applied. 9 There is no important distinction between the newspaper 10 loc ting in the single family residence , and the adult motion 11 picture theater locating within the restricted area. The fact 12 that the free speech that is sought to be limited is sexually 13 explicit free speech is immaterial as long as the regulation 14 is a reasonable "time , place , manner" restriction. 15 3 . The term "used" in the Renton ordinance which uses the term "appeal to prurient interest" 16 has a legal definition separate and apart from the three-part Miller test and does not 17 trigger the full test . 18 Defendants have asserted to the court that because of 19 certain language in Roth v. United States , 354 U. S. 476 1 20 L. Ed 2d 1498 , 77 S. Ct. 1304 ( 1957) , that mention of "appeal, to 21 a prurient interest" makes the ordinance equilavent to, an 22 obscenity statute. However, the Defendants have taken the �3 la guage out of context and do not state the appropriate full 24 test of Roth. The language quoted by Mr. Smith was from page 25 487 as follows : 26 "Obscene material is material which deals with sex in a manner appealing to prurient interest ." 27 28 WARREN&KELLOGG,P.S. ATTORNEYS AT LAW PLAINTIFFS' BRIEF RE: no SO.SECOND ST.,P.O.BOX 626 REQUIREMENT OF PROOF OF OBSCENITY RENTON,WASHINGTON 98057 TM l ❑ vflrTNr FNF(1PrF.MRNT ArTTC I -8- 255-8678 1 From this one statement the court is to infer that "obscenity" 2 is a uilavent to "an appeal to a prurient interest" . Then the 3 Defe dants ask the court to make the incredible jump in logic 4 to say that if "obscenity" is equal, under Roth, to an "appeal 5 to prurient interest" then, "appeal to prurient interest" is 6 equ l to the modern obscenity definition under the three prong 7 Mil er test . • 8 A close reading of the quoted material from Roth will 9 show the court that the statement quoted by Mr. Smith is not 10 intended to be all inclusive. Obscene material under Roth is 11 mat rial which deals with sex in a manner which appeals to 12 prurient interest and that is patently offensive. 13 Furthermore , the Roth test has now been refined to a 14 three prong test under Miller . The Miller test was adopted ' in 15 Was ington by' State v. J-R Distributors, 82 Wn. 2d 584 , 512 16 P.2. 1049, and slightly modified in State v. Regan, 92 Wn. 2d 17 47, 640 P.2d 725 (1982) . 18 If the Defendants ' position is to be followed to its 19 logical conclusion, using Roth, then the Court would have to 20 consider the effect upon definitions given in footnote20: 21 If obscene material equals "appeal to a prurient interest" ; and 22 23 If "appeal to a prurient interest" equals "having a tendency to excite lustful thoughts" (footnote 20) ; 24 Then , obscene material equals "material having a tendency to excite lustful thoughts" . 25 26 Therefore , if the defense position is accepted by this Co rt , (i .e . , that mention of "appeal to a prurient interest" 27 tr ggers the entire obscenity test under Miller) , this Court 28 WARREN&KELLOpG,P.S. ATTORNEYS AT LAW PL INTIFFS' BRIEF RE: ,00 SO.SECOND ST.,P.O.BOX 626 REQUIREMENT OF PROOF OF OBSCENITY RENTON,WASHINGTON 98057 TWA vnrTNC; FNT+nRrF.MRNT ArTTnN -Q- 255-8678 1 1 could use the first definition of "appeal to a prurient 2 interest" and define obscenity as "material having a tendenby 3 to +cite lustful thoughts" . This is clearly not the current i 4 defi ition of obscenity in Washington State as expressed in 1 5 J-R Distributors: 1 6 "The three elements of the test must coalesce before material may be described as 'obscene' . 7 1 . . On the other hand, if it falls outside the Roth - 1, 8 Miller standards it is not legally ' obscene' and is entitled to protection of the First and Fourteenth 1 9 Amendments even though it may be distasteful to some who view it . Roth v. United States , supra, at 481 - 1 10 85; Miller v. California , supra. " i 11 The Young' zoning ordinance is intended to regulate 12 protected speech --- material which is not in violation of the 13 Miler test. By use of only one leg of the three leg Miller 1 14 tes , the City has clearly defined the type of material which 15 is to be regulated : continuous exhibitions of prurient 16 mat rial , rather than incidental or innocent exhibitions which 17 do not appeal to a prurient interest . Examples : medical 18 instructive material; marriage counselling; serious workstof 19 literature . The three elements of the Miller test do not 20 necessarily coalesce in the material regulated by the City 21 ordinance. Therefore the material sought to be regulated, is 22 no necessarily obscene . 23 The three prong Miller test can be applied to a 24 mathematical equation as follows : 25 .A = Appeal to the prurient \interest 26 B = Patent offensiveness 27 C = Lack of serious . . . value 28 Then A + B + C = Obscenity i WARREN&KELLOGG,P.S. ATTORNEYS AT LAW PLAINTIFFS' BRIEF RE: ioo SO.SECOND ST.,P.O.BOX 626 REQUIREMENT OF PROOF OF OBSCENITY RENTON,WASHINGTON 98057 INA YOUNG ENFORCEMENT ACTION -10- 255-8678 1 The Defendants wish the court to hold that appeal to a 2 prurient interest is equal to obscenity. If that is the case : 3 A = appeal to purient interest 4 A = obscenity 5 Obscenity = A + B + C • . 6 Then A = A + B + .0 V 7 The effect of .this equation upon the elements of "patent 8 offensiveness" and "lack of serious . . . value" is as 9 fol ows : 10 If A = A + B + C , and 11 If A = A 12 Then B + C = Zero 13 But if "B" ( patent offensiveness) plus "C" ( lack ' of 14 serious . . . value) equals zero, then those two elements , of 15 the Miller test may be ignored and Miller is meaningless . 16 The a is then no distinction between the material regulated 17 under Young , (i .e. protected First Amendment speech) , and the 18 illegal material which Miller is designed to prohibit . 19 20 21 22 23 24 25 � � I 26 27 28 WARREN&KELLOGG,P.S. ATTORNEYS AT LAW PLAINTIFFS' BRIEF RE: 100 SO.SECOND ST.,P.O.BOX 626 REQUIREMENT OF PROOF OF OBSCENITY RENTON,WASHINGTON 98057 TN 6 ynniv ; RNRfRCEMENT ACTION -11- 255-8678 • 1 CONCLUSION 2 It is important to bear in mind that : 3 "[t]he primary objective in interpreting a statute is to ascertain and give effect to the intent of the 4 Legislature. See Janovich v. Herron , 91 Wn. 2d 767 , 771 , 592 P .2d 1096 ( 1979 ) . If a statute is 5 susceptible to two interpretations , the one which best advances the .overall legislative purpose should 6 be adopted. Hart v. Peoples Nat'l Bank, 91 Wn . 2d 197, 203, 588 P.2d 204 (1982) " 7 Reid v. King: County, 35 Wn. App. 720, 722, P. 2d 8 (Sept. 1983) . The intention of the City Council is manifest 9 by its reliance upon Young and Northend Cinema as opposed to 10 Mil er. Had the City Council intended to regulate obscene 11 mat rial, it would have relied on Miller. It was their intent 12 to egulate protected free speech. Therefore, it relied on 13 Young and Northend Cinema. 14 Dated: October 14, 1983 . 15 16 Respectfully submitted, 17 18 • LAWRENCE J. WARREN, 19 Attorney for Plaintiffs 20 21 22 23 . I 24 25 26 27 28 WARREN&KELLOGG,P.S. ATTORPLAINTIFFS' BRIEF RE: .SECON ST P..B 100SO.SECONDST.,P.O.BOX626 REQUIREMENT OF PROOF OF OBSCENITY RENTON,WASHINGTON 98057 rITI A yr TmTn L'+ATL nnnt.ML'ATT A ITTf1TT _10_ 255-8678 r 1 (}*‘'Ir 2 3 4 5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY CIF RENTON, a municipal ) corporation, et al. , ) 7 ) NO. 82-2-02344-2 Plaintiffs, ) 8 ) MEMORANDUM IN SUPPORT OF vs. ) CITY' S MOTION TO EXCLUDE 9 ) TESTIMONY OF EXPERT PLAYTIME THEATRES., INC. , a ) WITNESSES ON PATENT 10 Washi gton corporation, ) OFFENSIVENESS AND SERIOUS et al , ) LITERARY, ARTISTIC, 11 ) SCIENTIFIC OR POLITICAL Defendants . ) VALUE 12 ) 13 DISCUSSION 14 Defendants have disclosed a "laundry list" of expert 15 witnesses which they may call in their case. A .number of the 16 expert witnesses are being offered to testify on the last two 17 elements of the Miller test, elements which are not before 18 the Court. The City of Renton' s ordinance deals with material 19 whichi appeals to a prurient interest, but not material which 20 is ptently offensive or lacks serious literary, artistic, 21 scientific or political value. Those elements are not a 22 necessary part of the City' s proof in showing a violation of 23 the City ordinance. 24 WITNESSES TO BE EXCLUDED 25 1. ARTHUR ,KNIGHT:...In'.the .designation .of the topic ;of 26 expert testimony (hereinafter "designation") Defendants state 27 that Professor Knight will testify relative to the artistic 28 MEMO IN SUPPORT OF CITY' S MOTION TO EXCLUDE TESTIMONY OF EXPERT WITNESSES ON PATENT OFFENSIVENESS, ETC. - 1 WARREN ATTORNEYS ATT L LAAW KEL P.S. 100 80. SECOND ST.. P. O. SOX 626 RENTON. WASHINGTON 198057 255-8676 1 and literary values of the films. That is part of the obscenity 2 test but not part of the proof necessary in this case. 3 2. DR. RICHARD GREEN: Dr. Green is offered. apparently 4 for two purposes, (1) . a professional definition of pruriency 5 and (2) the value ,of the materials to ordinary adults and the 6 professional community. The pruriency issue will be dealt 7 with in another motion. However, the value portion of his 8 testimony once again goes to an obscenity standard, .not the g standal.d before the Court. 10 3. DR. SHARON SATTERFIELD: Dr. Sharon Satterfield was 11 offered to testify as to the..application of prurient appeal 12 ,and theserious value of the movies in question. At deposition 13 she declined to testify concerning prurient appeal and testified 14 only to serious value. • Serious value is an element of the 15 obscenity test and is not relevant to this case. 16 4. DR. CAROLYN LIVINGSTON: Dr. Livingston was offered 17 to to tify about contemporary community standards as it 18 relates to prurient appeal, patently offensive and serious lg valueJ of the material. Both patently offensive and the 20 serious values portions of her testimony relate to the obscenity 21 test. 22 5. FLORENCE McMULLEN: Florence McMullen' s testimony 23 as disclosed in the designation was as follows : 24 "The primary thrust of her testimony, as invisioned at the present time, will be to 25 that part of the Miller test that relates to patent offensiveness . " . 26 That part of the Miller test is not an element in this case. 27 MEMO IN SUPPORT OF CITY' S MOTION 28 TO EXCLUDE TESTIMONY OF EXPERT WITNESSES ON PA ENT OFFENSIVENESS, ETC. - 2 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 10080. SECOND ST.. P. O. BOX 626 RENTON. WASHINGTON 98057 255-8678 1 i- r l 1 SUMMARY 2 Expert witnesses testifying concerning patent offensiveness 3 or serous value of the works should be excluded from testifying 4 as tho a elements are not relevant to the case before the Court. 5 6 Respectfully submitted, 7 0 fe tAdo-v-PAAJ-12 ?c(A)C4-4-14€4,• 8 Lawrence -3. Warren 9 10 11 12 13 14 15 16 17 18 - 19 • 20 21 22 23 • 24 • 25 , 26 27 MEMO IN SUPPORT OF CITY' S MOTION 1 TO EXCLUDE TESTIMONY OF EXPERT WITNESSES 28 ON PATENT OFFENSIVENESS, ETC. - 3 WARREN & KELLOGG, P.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. P. 0. BOX 626 RENTON, WASHINGTON 98057 255-8678 ' I II 6. Proc=dures for Viewing Films � II A. In order to minimize inconsistencies between reviewers, the review team will jointly view one film and jointly complete the data sheet for that film. B. Upon completion of review of the first film, the review team will discuss the results and analyze and discuss any alternatives to the results identified. C. The review team will then review a second film and compare results and discuss any variations. This process will be repeated until reasonable continuity is established between individual review team members and', their review of the films. D. The Policy Development Director will identify variations from results obtained in his review of the film and discuss those variations with the' review team to identify as clearly as possible modifications which should'' be considered in the reviewers' future analysis of individual films. E. The Policy Development Director will initially view one film with each team member to audit the initial results and discuss any variations. F. Future films will be reviewed by the review team on a continual basis with no team member reviewing more than one film per day. G. The Policy Development Director will selectively audit the activities of the review team to insure continued continuity and consistancy between the results. 7. Proced res for Special Circumstances A. The Policy Development Director in his review of the initial sixteen films generally used a minimum of five counts on the VCR tape counter to identify the duration of any individual scene or change in activity. B. Where scenes or activities change relatively rapidly between activity categories, the reviewer will identify the beginning and end_ of the sequence and estimate the portion of that sequence to be logged to alternate categories. For example, in a flashback sequence, the portion of the duration of a series of scenes will be of a category where no specified anatomical areas or specified sexual activities occurs, while at the same time one or more sexual activities will follow rapidly. In those cases, the total duration of the flashback sequence will be identified with a rough percentage for each of the major categories involved. If a sequence lasts for a total duration of ten counts on the tape counter, and of that duration 70% was in heterosexual intercourse, 7 of the 10 counts would be identified in Category 2',and the remaining 3 counts would be identified in some other kategory such as Category 0. I ' • • v . 2 1, JOT 24 1983 3 V:::IT Y 0 T 0 N / FF CE 4 5 SUPERIOR COURT OF WASHINGTON FOR ZING COUNTY 6 CITY OF RENTON, a municipal ) corporation, et al. , ) 7 ) NO. 82-2-02344-2 Plaintiffs, ) 8 ) MEMORANDUM IN SUPPORT OF vs . ) MOTION TO EXCLUDE WITNESSES 9 ) AND FOR TERMS PLAYTIME THEATRES, INC. , a ) 10 Washiington corporation, ) et al. , ) 11 ) Defendants . ) 12 ) • 13 FACTS 14 On August 3, 1983, the City of Renton. served certain 15 Interrogatories on. Defendants seeking the names, facts and 16 opinions of experts whom. Defendants intended to call .at the ' 17 time of trial . Answers were not forthcoming, but rather 18 Defendants moved for a protective order as to other. areas of, 19 the Interrogatories and Requests for Admission. The Court 20 ordered that certain answers be provided and requested the 21 parties to attempt to resolve disputes concerning the scope 22 and necessity of answers . At that time, the City of Renton 23 explessed a concern to the court that Defendants would likely 24 provide a "laundry list" of experts which would prove too 25 numerous and too geographically diverse to permit meaningful 26 discovery. • 27 Defehdants promised answers to interrogatories concerning 28 experts and on a later occasion promised the answers on or before MEMO IN SUPPORT OF MOTION TO WARREN & KELLOGG, P.S. EXCLUDE. WITNESSES & FOR TERMS - 1 ATTORNEYS AT LAW 100 SO. SECOND ST., P. 6. BOX 626 RENTON, WASHINGTON 98057 255-8678 , 1 September 18, 1983 . In fact, the answers did not appear until 1 2 September 28, 1983 at the end of the business day. The City 3 immediately moved for an order from the Court requiring adequate 4 answers to the interrogatories as the interrogatory answers 5 listed only name and address, but did not'include telephone ' 6 number , substance of facts or summary of the opinions . 7 schedule a hearingwas not held Because of conflicts in sch du by 8 the Court until October 10, 1983, at which time Defendants 9 were required to present more complete answers . Those answers 10 were provided to the Court on October 11, 1983. Arguments ' 11 in Court continued until noon on October 12, 1983 and since that 12 time the City of Renton has taken at least eight depositions , 13 coas to coast. 14 Without fail the City has found that the witnesses an 15 not completely prepared. Several of the witnesse have viewed 16 the majority of the information upon which they would base 17 their expert opinions . While the City objects to any testimony 18 regarding areas in which it did not have the opportunity to 19 conduct meaningful discovery, this motion is based upon 20 depositions taken of experts that were not prepared, to a 21 substantial extent, to submit to deposition. Four witnesses 22 in particular fall into this category which will be discussed 23 below. 24 COURT RULES 25 The City of Renton sought to discover the facts known 26 and opinions held by experts under Civil Rule 26(b) (4) . The 27 City also took depositions upon oral examination of the 28 MEMO IN SUPPORT OF MOTION TO EXCLUDE WITNESSES & FOR TERMS - 2 1 WARREN & KELLOGG, P.S. ATTORNEYS AT LAW 100 60. SECOND ST., P. O. BOX 626 RENTON, WASHINGTON ,96057 255.8678 , , 1 denominated experts under the authority of Civil Rule 26 (b) (4) 1 2 (A) (ib .and . (ii) . _ I 3 Under stipulation of the parties depositions of the experts 4 were aken at San Francisco, Los Angeles, Minneapolis, New York 5 and i the Seattle area. As previously explained, several of 6 the wlitnesses had not viewed the factual information upon which 7 the deposition testimony was to be based. 8 Civil Rule 37 deals -with failure to make discovery and 9 sanctions therefor. 10 The City of Renton has previously made a Motion for an 11 order compelling discovery under Rule 37(a) . The Court has 12 required depositions of the potential expert witnesses but 13 full discovery was not possible because of the lack of the 14 prep ration of the witnesses. Therefore, the Defendants are ' 15 subj ct to various sanctions under Civil Rule 37(b) (2) which 16 states in relevant part: I 17 " (2) Sanctions by Court. in Which Action is Pending. ' If a party. . . . fails to obey an order to provide or 1 18 permit discovery, including an order made under subdivision (a) of this rule or Rule 35 , the court I 19 ' in which the, action is pending may make such orders in regard 'to the failure as are just, and among others 20 the following: I 21 (A) An order that the matters regarding which the order was made or any other designated facts shall be taken 1 to be established for the purposes of the action in 22 accordance with the claim of the party obtaining the order; I 23 (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses , or 24 prohibiting him from introducing designated matters I in evidence; 25 (C) An order striking our pleadings or parts thereof,' or staying further proceedings until the order is obeyed, 26 or dismissing the action or proceedings until the order is obeyed, or dismissing the action or proceedings, orlany 27 party thereof, or rendering a judgment by default against the disobedient party; - 28 MEMQ IN SUPPORT OF MOTION TO EXL DE WITNESSES & FOR TERMS - 3 WARREN & KELLOIGG, P.S. ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. BOX 626 RENTON, WASHINGTON 98057 255-8678 I 1 (D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the 2 failure to obey any orders except an order to submit to ' physicial or mental examination; 3 (E) Where a party has failed to comply with an order under Rule 35(a) requiring him to produce another for examination 4 such orders as are listed in paragraphs (A) , (B) and (C) of this subdivision, unless the party failing to comply] 5 shows that he is unable to produce such person for examination. 6 In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to 7 obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney' s fees, 8 caused by the failure, unless the court finds that the failure was substantially justified or that other 9 circumstances make an award of expenses unjust. " 10 The City of Renton would ask the Court for an order 11 exclu•ing these expert witnesses from testifying at the time 12 of trial for the reasons set forth in the Listing of Abuses 13 of Discovery listed below. ] 14 ABUSES OF DISCOVERY 15 1. ARTHUR .KNIGHT: Dr. Knight' s deposition was taken 16 by stipulation in Los Angeles on October 13, 1983. During hi 17 deposition it became apparent that Dr. Knight had not seen 1 18 seven of the ten films upon which he was to testify and did not 19 even have the right equipment necessary to show the films . He 20 was unable to tell the City the nature of his testimony on the 21 seven films , but assumed they would all fall into a pattern 22 of sexually explicit movies that he had seen previously, or 23 knew s mainstream, hardcore. He testified that he assumed 24 value in the films until he had actuallyseen the films . the 25 Of the three films he had seen previously, Dr. Knight had` notI 26 seen hose three in any point near in time to his deposition. I , 27 Proba ly the most objectionable item of Dr. Knight' s 28 deposition was his statement that he had not been requested to WARREN & KELLOGG, P.S. MEMO EN SUPPORT OF MOTION TO ATTORNEYS AT LAW EXCLUDE WITNESSES & FOR TERMS - 4 +Oo SO. SECOND ST.. F. O. BOX 626 RENTON, WASHINGTON 98057 255-8678 1 review the films before his deposition. The relevant pages 2 of Dr. Knight' s are attached hereto under Tab No. 1. 3 2. DAVID FRIEDMAN: Mr. Friedman' s deposition was 4 taken in Los Angeles, California on October 13, 1983. Mr. 5 Fried an stated that he had not seen the ads that had been 6 used t the Renton Theater until Mr. Smith showed him some of 7 the ads toward the end of his deposition. He stated he did 8 not get the ads and had not seen them prior to the date of 9 the deposition. See pages 63 and 64 of his deposition 10 attac ed as Tab No. 2. 11 3. SHARON SATTERFIELD: Dr. Sharon Satterfield' s • I 12 deposition was taken in Minneapolis, Minnesota on October 18,E 13 1983. During her deposition Dr. Satterfield stated that she 14 had seen all of the ten films to some extent and most of them 15 in teir entirety. Upon further examination, Dr. Satterfield 16 admitted that she had seen about one-third (1/3) of five 17 different films, with that one-third picked at random, with 18 that third viewed at fast forward on her video cassette 19 recorder. See the deposition pages 10 and 11, to deposition 20 of Dr. Sharon Satterfield attached hereto as Tab No. 3. 21 Despite the designation stating that Dr. Satterfield 22 was to be offered as an expert on a national standard for 23 prurient appeal, Dr. Satterfield declined to define that. 24 term and declined to testify concerning its application ... 25 in this case. Her counsel, Mr. Smith, stated on the record 26 that she was not prepared to testify since the Judge had ,not 27 defined the term for the purposes of this case. Thus , at 28 MEMO IN SUPPORT OF MOTION TO ' EXCLUDE WITNESSES & FOR TERMS -5 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST., P. OJ BOX 626 RENTON, WASHINGTON 98057 255-8678 I 1 1 least one-half of the testimony to be taken from Dr. Satterfield 2 at her deposition was simply not available at all, due to the 3 electi n of the Defendant to have, her not testify:_ As well, 4 it is uestionabie whether or not Dr. Satterfield could have 5 testifed as she had no contacts with the State of Washington 6 and had not viewed five of the films in their entirety. (See 7 discussion elsewhere above and pages 6-9 and 24-26 of her 8 deposition attached as Tab No. 4. ) 9 4. CONCLUSION: Three expert witnesses discussed above 10 were niot adequately prepared at the time of their deposition 11 to render meaningful deposition answers based upon factual 12 information which they had reviewed. Defendants have delayed 13 discovery throughout 'this case and should not be permitted to 14 profit from their delay. The City of Renton should be awarded 15 its expenses in taking the depositions and attorney' s' fees 16 for the time of travel and the deposition time itself for 17 these witnesses . 18 Respectfully submitted, 19 20 CLawrence1(Al-Q1A) J. Warren Attorney for Plaintiff 21 22 23 24 25 , 26 \ 27 LJW bjm 8 MEMO IN SUPPORT OF MOTION TO 10/23/8 EXCLUDE WITNESSES FOR TERMS - 6 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. BOX 626 RENTON, WASHINGTON 98057 255-8678 1 �" x,r, NOON & PRATT �',, ` % •lei` :OAK-, .-, 1 th garage. You have to understand that my whole house 1 2 , has been devastated and I have got a lot of stuff in I (.,.. 3 storage. And the stuff I could put in the garage, I putt 4 in the garage including the Betamax which I didn ' t want l j 5 • to send to storage. But we are living in a room now' i ' 6 only slightly larger than this, the bedroom. • And while 7 the television is there, I certainly don ' t have room to 5 connect up the Betamax. , 9 G. You had not then been requested to review 10 them prior to this deposition? 11 A. No. I was told I would be receiving them. 12 I don 't even think I was going to be receiving them. if 13 they had, I would have told them there was no point in 14 sending them because I don 't have anything to show ;them 15 on. 16 - Q. The information we have received from; Burns 17 & Meyer is that Professor Arthur Knight, film critic, 15 I will testify relative to the artistic and literary 19 values of the films. Could you tell us what the nature 20 of your testimony will be on the seven films? 21 A. No. I mean I can tell you about the , three 22 that I have seen. I am going on the assumption that the 23 others would fall into that pattern. 1 24 MR. SMITH: Don 't testify about what you haven t 25 seen. 26 THE WITNESS: That 's what I am saying. I don't 27 want to do that. Again when I have been asked to 25 testify on films in the past, I have looked at them j 1 i NOON b PRATT 25 f ,1 first. and if I felt they were pictures I could not with ' 2 any conscience testify in behalf of. I have said, 3 " Include me out. " . 4 Q. Is there anything that you .know. is there r. i:: 5 any information you have which would lead you ' to believe ' .i 4i 6 that the seven other films, that is, the films other • ii 7 than DEEP THROAT, DEVIL AND MISS JONES and SOCIETY i 6 AFFAIRS, are the same nature as the three you have that 9 you have seen? • 10 A. Yes. I believe they are. I know them to 11 be mainstream adult movies. 12 G. How do you know that? What information do • ;i 13 you have that tells you that those are the same type of 14 film? • / 15 A. Partially from the fact that some of them 16 have played in the same theaters. the Pussycat Theaters 17 and other adult film houses here in this area that don 't 16 run the equivalent of stag loop equivalents. Some are 19 cheaply done and shoddily done.. There is no artistic, ,i . 20 no conceivable artistic basis. 21 Q. Are you saying, then, that you believe that 22 your testimony in those seven would be the same as your • 23 testimony in DEEP THROAT. DEVIL AND MISS JONES and li 24 SOCIETY AFFAIRS? , i 25 A. It is' \conjectural until I have seen the I! i 26 films. I would conjecture, yes. 27 Q. What would be the artistic and literary 26 value that you would expect to see in those seven films 1 � NOON I PRATT 26 • 1 that you haven 't seen? '!f; 2 MR. SMITH: I would object to the films that he I 3 hasn't seen thus far because he has indicated it would I = / 4 be c njectural. Of course I would have no objection to the three film s t ms that he has seen. H 6 MR. CLANCY: Q. But you do believe that your 7 testimony would be that they do have artistic and 1 ; u e literary value? 9 MR. SMITH: Are you talking about the three — ! 10 MR. CLANCY: The seven. s 1 11 THE WITNESS: I am assuming until . I have seen the 12 films, yes. 'i; 13 PR. CLANCY: Q. You are assuming they would have ;i \j/ ' I 14 artistic and literary value? I i i Correct. 11 15 A. ; ., 16 Q. And your assumption is based upon your i l ill 1, 17 knowledge that they planed -- 14 17 kno g !i 18 A. The Pussycat Theater. �� 19 Q. The Pussycat Theater? 20 A. Yes. ' . 21 Q. Is there anything beyond that information? 22 A. Again the fact that they go out in cassette • 23 form, packaged like that. ' . 24 Q. The fact that somebody packages them in ; ' I. , cassette form and sells them as videotapes? That 's • 25 ' 26 another evidence -- 27 A. And is able to get them into " the marketplace. 28 Q. What do you . mean? That they would be / I . , l 1 ' 1 ' vending them or selling them? • il �' them and somebody else i`; 2 A. Somebody is sellingH .• 1 fyi 3 is buying them. I. y 1 because the are being sold 4 Q. Are you saying y 11 5 and are being bought that therefore they have literary . . • r - w 6 and artistic value? . •rE A. No. That they are- more mainstream movies, • f mainstream hard core or mainstream adult. whatever term • 9 you want to use. 10 Q. Are you saying that they are mainstream • 11 hard—core films? 12 A. Again until I have seen them I can't really 13 tell you. . 14 Q. You did use the term "mainstream hard—core 15 films. " Do you believe them to be mainstream hard—core i 16 films? 17 A. I would say I would rather say "mainstream ' 16 adult movies" until I have seen them. t 19 Q. Would you say that DEEP THROAT was a - 20• mainstream hard—core film? • 21 A. I would much rather withdraw the term and 22 say "adult movie. " . 23 Q. Would you say 'the DEVIL AND MISS JONES was 1' 24 a Mainstream hard—core film? i 25 A. I would say it is a mainstream adult movie. � Would you say that the film SOCIETY AFFAIRS 27 was a mainstream hard—core film? 41 26 A. Again I would rather say mainstream adult. ! l ri i • 1 Q. You say that you did tour together? "''')/ 1 _ . 2 A. Yes. . 3 Q. Where? . ` I 4 A. One year we left Cannes. We drove across . 5 Samn going as far as Malaga. Then my wife and I flew 6 • b ck to New York and back here. Roger and his wife then ` I 7 went to Scotland or somewhere. She !had relatives. The a last time we were together, we left Cannes and drove L to i 9 Switzerland. 10 G. Was it the two of you couples or other ' 11 couples? V 12 A. Just the two couples. 13 Q. Since that time have you fraternized in a 14 social way? 15 A. Roger comes here and we will have dinner. 16 As a matter of fact, Roger and -- He subsequently I 17 ivorced his wife. He is dating * a young lady who lives 18 here. He and this lady and my wife have had dinner and 19 gone to the theatef. 20 Q. Do you have any financial ties with him 21 ther than through your dealings with him? I 22 A. No, sir. • 23 Q. Have you seen any ads that have been used P4 at the Renton theater? 25 A. Just these that Mr. Smith has just shown me. \)// 26 Q. Did you see them before they were given to 127 you by Mr. Smith? ` 1 i 2B A. No, sir. I do not get the ads up there. • II NOON I PRATT 64 I ' 1' Q. You haven't seen those ads prior to 2 today? ' 3 A. NO. sir. 4 MR. CLANCY: That's about all. • 5 i 6 EXAMINATION 'I' _ 7 BY MR. SMITH: II , i 6 Q. ;Have I discussed the ads with you before j, 9 tod y? • 10 A. No. . i i; 11 Q. ;Have you looked at the ads -- ' 12 A. May I get my glasses? 13 Q. Have •I asked you what I wanted your 14 subsubstancelof your testimony or what to direct your i • 15 to timony to? . 16 A. Yes. 1 i7 Q. • ' What is it - you understood you were is 119 te-tifying concerning? 19 A. About advertising and publicity. 1 20 Q. i You are not testifying on whether or not 21 these films have community acceptance or tolerance, are 22 you? i . . 23 A. ' No. • 1 24 Q. You are not testifying whether or not these, it 25 films do sir rdo not have a certain prurient appeal 26 ' h wever that might be defined? 1 'I 27 A. No. . 2E Q. 'You are not testifying these are of serious lb • 1 A No. 2 ¢ So your information would then be drawn from what 3 geographical areas? 4 A It would be drawn primarily from the area of Minnesota, 5 the area of Maryland and the scientific community • 6 where I have seen material specifically presented from 7 studies in certain areas, primarily New York, 8 Wisconsin. • 9 ¢ - Let's take a step backwards.- There's ten films that 10 . are going to be shown to`a jury in =our„.lawsuit, and 11 we have' a listing of those films. Have you been ' . 12 provided with those ten films? 13 A Yes, I have. • 14 ¢ Have you had an-opportunity to view them? 15 A I have -viewed all of them to some extent, and most of 16 them in their entirety. • 17 ¢ Can you tell me when you say "all of them to some 18 extent," the ones that you have not viewed in their 19 entirety, which -and how much you've not viewed? - I 20 THE WITNESS : Do you have the list? 21 BY 'MR. WARREN: 22 ¢ I'll provide you with one, we'll share. • 23 A "Pandora's Mirror", I have not viewed in its .entiretyf 24 ¢ How much of it have you viewed? • 25 A About a third, different parts of it. • JOHN R. BRENNAN & ASSOCIATES Court Reporters Faribault Office Suite 218 Mankato Office Farib'ult Hotel-Rm.208 4005 West 65th Street 1680 Howard Drive Farib�ult,MN.55021 Edina,MN 55435 North Mankato, MN 56001 (507)334-3763 (612)925-4175 (507)345.1350 "Color Video Tape Deposition Service" ll `-r 1 0 How did you pick the third? 2 A Just 'at random. "Debbie Does Dallas",''-about the same • 3 amounts and "Body Talks", San Fernando Valley Girls, " 4 and ';Society Affairs,' I have also just run through • 5 segments of. • • j • 6 ¢ How did you view the third, did you fast forward the 7 video? 8 A Yes. • 9 ¢ Throughv.the third, or throughout the entire movie? • 10 A. -Throughout the entire movie: • 11 ¢ Doctor, let's -- If I understand where we are, let's . 12 focus on the scientific value of these particular 13 films, and could you state to me, from your persective, 14 what the particular scientific value that these movies . 15 might have? 16 A. Several of these films have been available for . 17 several years, and, therefore, have been viewed by . 18 a large number of people, many of whom have used 19 these in-:.a self-help way to deal with their own 20 .. attitudes or their own behavior around sexual issues. 21 Many of them have specifically used them for thera- 22 peutic purposes. They have been used as teaching , 23 tools by our program and many medical schools and 24 other educational facilities throughout the United 25 States in training professionals to be able to deal • JOHN R. BRENNAN & ASSOCIATES Court Reporters Faribault Office Suite 218 Mankato Office Firibault Hotel-Rm.208 4005 West 65th Street 1680 Howard Drive Feribault,MN.55021 Edina,MN 55435 North Mankato,MN 56001 (507)334.3763 (612)925-4175 (507)345-1350 "Color Video Tape Deposition Service" • 1 A. I don't get personally compensated. � I 2 4 Outside of the program itself? 3 A Right. 4 ¢ Doctor, we have been provided with a Stipulation as 5 to the area in, which you are going to testify. Were. 6 , • you aware of that? - 7 A. Yes. 8 I' ll read it to you, and I 'll cut a few extra words 9 out, but. you will testify relative to. the application 10 of prurient appeal and the serious value of the: movies 11 in question to a substantial number of adults in the 12 context of scientifict (educational) and with respect ' 13 to interpersonal relationships -- i.e. fantasy enric'h- 14 ment, communication enhancement and self-administered 15 therapy. - 16 Dr. Satterfield will testify to these values 17 from a national perspective,-not a regional or 18 geographical perspective. 19 Dr. Satterfield, specifically directing 20 your attention to that, and you can read it if you 21 wish to assist you, is your testimony going to be 22 strictly from a scientific standpoint? 23 Q What do you mean by "scientific"? 24 A. Do you intend to go into whether or not the movies , 25 might appeal to a prurient interest, for example? - I JOHN R. BRENNAN & ASSOCIATES - Court Reporters Farlbault Office Suite 218 Mankato pftice FauIlbault Hotel-Rm.208 4005 West 65th Street 1680 Howard Drive Fagibault,MN.55021 Edina,MN 55435 North Mankato,MN 156001 (57 334-3763 (612)925-4175 (507)345-1350 "Color Video Tape Deposition Service" , • 1 , 7 1 A. Yes, , they will be from a scientific standpoint. 2 ¢ Let's back up just a bit. There is some discussion • • 3 . in our case whether or not this will be an obscenity . 4 : ,.case and ,because of that,- we're trying to direct .our 5 attention to the individual elements of a potential' . - 6 obscenity case. There is, taken as a whole, one of the . - 7 three-legs ;of ,the- Miller test Aakeri as - 8 . or not there is serious literary, artistic, scientific • 9 -or political value. • 10 Now• , as I understand it, your testimony will . - -11 be pointed toward one of those items in .that leg, • 12 that is, there is serious scientific value, correct? 13 A. That is sight. 14 Al The other two legs is that applying contemporary • • ' 15 - -community standards, that the;.7iiork appeals to a 16 prurient interest. Are you going to be testifying • . • 17 in that area -- do you know? - 18 A. I don't know. 19 • MR. SMITH: If I may say, it would be • 20 anticipated that we may try to qualify her in 21 that area, but it may be that the Judge will rule 22 • her .exposure to the contemporary community is so 23 . diminimous that if::shev:.does-.give-1 thet. test;. then 24 she might be able to testify. However, on the ' • 25 other hand, if the Court uses the test which is JOHN R. BRENNAN & ASSOCIATES Court Reporters Fe ibault Office Suite 218 Mankatd Office Faribault Hotel•Rm.208 • 4005 West 65th Street 1680 Howard Drive Fahibault,MN.55021 Edina,MN 55435 North Mankato,MN 56001 (507)334-3763 (612)925-4175 (507)345-1350 "Color Video Tape Deposition Service" i . 8 . 1 written in the ordinance and does ot use the .!lot 2 full obscenity test, that test does not draw its 3 frame of reference from contemporary community 4 standards, and we would hope to be •able to 5 qualify her on prurience. .iv.zd .. I 6 .BY'.MR. WARREN: 7 ¢ I presume,. Doctor, that the one item we haven't talked . 8 about is applying contemporary community standards, • 9 that the movies or the depictions are patently 10 offensive. There's been no mention of that. 11 Have you been prepared to testify in that • 12 area at all? C 13 • MR. WARREN: Bob, you're shaking your 14 head, "No. " Is that -- ' 15 MR. SMITS: For the State� of Washington, 16 ' she is not -- we're not offering her as an expert 17 on contemporary community standards. • 18 BY. MR. WARREN: 1 19 ¢ Let's start with then the prurient appeal issue, • 20 Doctor, if we could. Do you understand the term 21 "prurient appeal"? I 1 22 A. I understand the difficulty in defining prurient appeal. 23 4 Do you have a definition that you have been working 24 with in viewing these particular filma? 25 A. My definition would be whether in the eyes of the person C JOHN R. BRENNAN & ASSOCIATES Court Reporters aribault Office Suite 218 Mankato Office aribault Hotel•Rm.208 4005 West 65th Street 1680 Howard Drive 0,aribauit,MN.55021 Edina,MN 55435 North Mankato,MN 56001 (507)334-3763 (612)925-4175 (507)345.1350 "Color Video Tape Deposition Service" • 9 L 1 viewing the film, there was any unusual arousal , 2 pattern that would be appealed to particularly by, • 3 these films. However, I do believe that that is very li 4 ' ..difficult to measure and feel very strongly, but 5 that's a very difficult area to assess. 6 4 Would you be giving your personal opinion, Doctor, 7 as to whether or not these movies have prurient 8 appeal, or that of some unknown third party? ' 9 A. I would be giving the opinion of someone who has • 10 worked .in the field of viewing explicit films, 11 . have the feedback of thousands of participants who 12 have viewed explicit films and have been able to judge 13 in a clinical population the effect of explicit films. 14 : 4 Do you believe that would reach the feeling of the 15 average person in the community? 16 A. I feel that since many of the participants in our .. • . ` ' 17 educational programs are average people in the 18 community, that I could address that. • 19 4 Let me ask you about your experience in the State of 20 Washington; have you been to the Seattle area? 21 b No. 22 , 4 . Have you seen any .hard data from the State of 23 Washington on the particular effect that sexually 24 explicit material has on the people that live in that 25 particular geographical area? JOHN R. BRENNAN & ASSOCIATES Court Reporters Faribault Office Suite 218 Mankato Office Faribault Hotel-Rm.208 4005 West 65th Street 1680 Howard Drive Faribault,MN.55021 Edina,MN 55435 North Mankato,MN 56001 (507)334.3763 (612)925.4175 (507)345.1350 "Color Video Tape Deposition Service" • • 24 • 1 ask you how overt does the power have to -be? 2 A. I think I would have to judge that-An.-:each individual • 3 case. 4 a Did you see 'any' instances in any of these films where 5 there was power exploitation to a degree that you • 6 found might reduce. its scientific value? 7 A. There was one film that I had questions about, and . 8 I thought they actually did a marvelous job of, -:in' 9 - a very sophisticated way of avoiding that, and that • • • 10 was the incest film, and that was that they clearly 11 ' -- the son and the daughter were the ones who made ". 12 the advances to the parents. • • • 13 4 Let's go back to a topic that we covered briefly,- • • 14 and maybe we're just not going to be able to resolve • 15 it to my satisfaction, but I asked you previously for • • 16 your definition of "prur' ent" or "prurient appeal." • 17 Are you going to be able to give me something 18 you feel comfortable with? 19 A. This is one of the areas I really want to discuss 'more 20 with 3'1r. 1Smith. It's an area that I personally have a - r 21 lot of difficulty with in the law. • 22 MR. SMITHt I've told Dr. Satterfield 23 that the JUdge has not yet ruled what definition' . 24 of prurient will be used. So under those circum= 25 stances, I suppose she's -- JOHN R. BRENNAN & ASSOCIATES • Court Reporters Faribault Office Suite 218 Mankato Office Faribault Hotel-Rm.208 4005 West 65th Street 1680 Howard Drive Faribault,MN.55021 Edina,MN 55435 North Mankato,MN 56001 (507)334-3763 (612)925-4175 (507)345-1350 1 "Color Video Tape Deposition Service" o 25 1 THE WITNESS : So I'm kind of specifically 2 avoiding that. • 3 BY MR. WARREN: . • 4 4 You're not prepared to testify on that topic? r • s . 5 A. Not today. .. . .. 6 a Doctor, as I've informed you during our chat earlier 7 today, I have had an opportunity to review some of • .8 your testimony in a prior occasion;, and we kind of - 9 touched on an area, but we haven't really said what . 10 you said there, and I don't wish to put words in your 11 mouth, unless I can and you accept them. - 12 You've indicated before in your testimony C. 13 that these movies can be used for conditioning or , • 14 desensitizing. Have you said the same thing today, - • 15 in a different way? 16 A. When I was referring to the educational use of these 17 films, I was using -- I was including the process of 18 desensitization. 19 a Do the movies as a whole have scientific value, or, is . 20 it the individual depictions that have the scientific . • 21 value? . . 22 E. I think it can be either. In some cases, the movies . 23 as a whole is what causes the desensitization. In . 24 other cases, we use specific Segments of movies to'i 25 address a particular issue, such as a -- If we 'have a . JOHN R. BRENNAN & ASSOCIATES • Court Reporters Faribault Office Suite 218 Mankato Office Farlbault Hotel-Rm.208 4005 West 65th Street 1680 Howard Drive Faribault,MN.55021 Edina,MN 55435 North Mankato,MN 56001 (507)334-3763 (612)925-4175 (507)345-1350 "Color Video Tape Deposition Service" n n e. • 26 1 fetishist, we'll use just a scene involving that • behavior. -Or witiv a transsexual, we'll use just a 3 scene showing the medical effects of hormones. • j 4 . - .Doctor, -will you agree with me -that the :.movies and . 5 their use, scientific use, have been -- in your - - . 6 :opinion, their scientific use has been primarily that - 7 of education::•or clinical or therapeutic use? • • • 8 A Can you repeat the first part? - g ¢ Education -- _have they been -- As a scientific value, . 10 these films been primarily an -educational or clinical , ' 11 or therapeutic use? - 12 A. If you include self-help as therapy. I personally. . • C13 think that these -- many of these films have -- in • 14 addition are entertaining and could be used for that • - - • 15 purpose. 16 4 Let me ask you this: Do they have any scientific ,use I. • - - 17 for data gathering where -- you don't view the films 18 to obtain some sort of statistics from the actors, 19 do you? 20 A. From the -- • 21 a From the movies themselves? • • • 22 A. Not from the actors. We- certainly use these as - in 23 our research, for a variety of reasons, either to ' 24 stimulate discussion or to see the effects in an 25 educational way. JOHN R. BRENNAN & ASSOCIATES • Court Reporters • Faribault Office Suite 218 Mankato Office Faribault Hotel•Rm.208 4005 West 65th Street 1680 Howard Drive Faribault,MN.55021 Edina,MN 55435 North Mankato,MN 56001 (507)334-3763 (612)925-4175 (507)345-1350 "Color Video Tape Deposition Service" • 1 RECEIVED 2 FEB 191982 • KING COUNTY SUPERIOR 3 COURT CI1RK S OFFICE 4 — • • . .. . . . . . . ... 5 • SUPERIOR COURT OF WASHINGTON FOR KING COUNTY • 6 CITY 'OF RENTON, a ) municipal corporation , ) c� c� 7 Plaintiff, • ) NO. 8 2 — 2 02 3 4 4 ' 2 8 ) vs ) SUMMONS (20 Days) 9 ) PLAYTIME THEATRES,. INC. , a ) 10 Washington corporation , and ) KUKIO BAY PROPERTIES, INC. , ) 11 ' a Washington corporation , ) 12 • ) Defendants . ) 13 '• THE STATE OF WASHINGTON TO: PLAYTIME THEATRES, INC. and KUKIO BAY PROPERTIES, INC. 14 A lawsuit .;has been started against you in the above- ! 15 entitled Court by CITY OF RENTON, Plaintiff. Plaintiff' s ; claim is stated , in the written Complaint , a copy of which is ' 16 serves upon you with this Summons . I • 17 In order to defend against this lawsuit , you must1 respond to the complaint by stating your defense in. writing , 18 and serve a copy upon the undersigned attorney for then • Plains iff within twenty (20) days after . the 19 Summons , excluding the day of service , or a defaulte ud this , may be entered against juefmunt ) 20 g you without notice. A default judgment is one where Plaintiff is entitled to what he asks 21 for b cause you 'have not responded . If you serve a Notice of ' ' ppea ance on the undersigned attorney, you are entitled tot 22 notice before a default judgment may be entered . i 23 ou may demand that the Plaintiff file this lawsuit with ] the C lurt. If you do so , the demand must be in writing and . must be served upon the person signing this Summons . Within 24 fourteen ( 14 ) days after you serve the demand , that persona must file this lawsuit with the Court , or the service on youj 25 • of thi�'s Summons 'and Complaint will be void . 26 If you wish to seek the advice of an attorney in this 27 matter) , you should do so promptly so that your written response , if any, may be served on time. 28 This Summons is issued Superior Court Civil Rules of then State of Wa hington . of the 29 Dated: February I"' , 1982 30 • 31 DANIE LLOGG JOLLA.... 32 of Warren & Kellogg , PAP CIVIL SUMMONS WARREN & KELLOGG.'P.S. ATTORNEYS AT LAW 100 SO.SECOND ST..P.O.SOX Sin • RENTON. WASHINGTON 980e7 pee-e67e ' 1 • ' I 1 2 • 3 4 5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY OF RENTON , a ) municipal corporation , ) NO. 8 2 o 02 344 . 7 ) Cy Plaintiff, ) 8 ) COMPLAINT FOR DECLARATORY vs . ) JUDGMENT (Chapter 7 .24 9 ) R . C.W. ) PLAYIME THEATRES, INC. , a ) 10 Washington corporation , and ) KUKIO BAY PROPERTIES, INC . , ) 11 a Washington corporation , ) ) 12 Defendants . � 13 ) COMES NOW the Plaintiff, CITY OF RENTON , a municipal 14 corporation , and requests a declaratory judgment pursuant to 15 Chapter 7 .24 R . C.W. to determine the applicability of City of 16 17 Renton Ordinance No. 3526 entitled : "An Ordinance of The City of Renton , Washington , Relating to Land Use and Zoning", 18 19 enacted and approved by the City Council and Mayor on April 20 13 , 1981 , and alleges as follows : 21 1 . Status of Plaintiff: The City of Renton is a 22 municipal corporation organized and existing under the laws 23 of th State of Washington . 24 2. Status of Defendants : Plaintiff is informed and 25 believes , and therefore alleges that Defendant KUKIO BAY, 26 PROPERTIES, INC. and PLAYTIME THEATRES, INC. are corporations 27 organized and existing under the laws of the State of 28 Washington , with their principal places of business located , 29 in King County, Washington . 30 3. Purchase by KUKIO : Plaintiff is informed and ! 31 believes , and therefore alleges that on or about January 26 , 32 1982 , Defendant KUKIO BAY PROPERTIES, INC. purchased .two ; WARREN & KELLOGG. P.S. COMPL INT FOR DECLARATORY JUDGMENT ATTORNITS AT LAW PAGE 1 100 SO.SECOND ST.,P.O.SOX SSG RENTON, WASHINGTON 98057 155.ee7e 1 motion picture theaters within the city limits of Renton', 2 King County, Washington known as the Renton Theater and Roxy 3 Theater , commonly described as 504 and 507 South Third 4 Street , respectively, and more particularly described as 5 follows : 6 Lots 1 and 2 , Block 6 , Smither ' s Sixth Addition to the Town of Renton , according to the plat recorded 7 in Volume 26 of Plats , page 47 , records of King County, Washington , and 8 ALSO Lot 4 and the West 2 feet of Lot 3 , Block 34 , 9 Smither ' s Second Addition to the Town of Renton , according to the plat recorded in Volume 10 of 10 Pllats , page 28 , records of King County, Washington , 11 ' Situate in King County, Washington . 12 4 . Lease by PLAYTIME : Plaintiff is informed and 13 believes , and therefore alleges that on or about January 26 , 14 1982 , Defendant KUKIO BAY PROPERTIES, INC. leased said Renton 15 Theater and Roxy Theater to Defendant PLAYTIME THEATRES , INC. 16 by written agreement for a period of ten years commencing on ' 17 or about January 27 , 1982 with an option to renew the lease 18 for an additional term of ten years terminating on January 19 26 , 2002. Said lease agreements provide that such premises 20 are to be used for the purpose of conducting the business of, 21 an adult motion picture theater exhibiting adult film fare . ' 22 Defendant PLAYTIME THEATRES, INC. took possession of the ' ' 23 theaters on or about January 27 , 1982. 24 5 . Ordinance: On April 13, 1981 , Plaintiff enacted 25 City of Renton Ordinance No . 3526 entitled : "An Ordinance of; 26 the City of Renton , Washington , Relating to Land Use ands 27 Zoning" (hereinafter referred to as the "Ordinance" ) , a true' '28 and correct copy. of which is attached hereto as Attachment 29 "A" and incorporated herein by reference as though set forth 30 herei ? . The ordinance is currently in full force and effect . 31 By the terms of said ordinance , adult motion picture! 32 theaters , as defined in the ordinance , are a prohibited land' WARREN & KELLOGG.]P.S. COMPLAINT FOR DECLARATORY JUDGMENT ATTORNEYS AT LAW PAGE 2 ,Go So.SECOND ST.,P.O.SOX US RENTON. WASHINGTON 9e067 255.ee78 I I I 1 use w thin the area circumscribed by a circle which has .ai r 2 radius consisting of the following distance's from the' 3 following specified uses or zones : 4 a. Within , or within one thousand feet of, any residential zone , , or any single family orl 5 multiple family residential use . , 6 b. Within one mile of any public or private) school . 7 c . Within one thousand feet of any church orl 8 other religious facility or institution . 9 d . Within one thousand feet of any public park or P-1 zone . 10 6 . Location of Renton Theater : The Renton Theater is! 11 located within the following distances - of the following 12 existing zones and uses : 13 a . The Renton Theater is adjacent to a 14 multiple residential use located. at 306 Morris Ave. So. ,i 15 Renton , and is 30 feet from a single family residential use 16 17 located at 310 Morris Ave . So. , Renton . b. 30 feet of a church commonly known as 18 Awareness of Life Christian Metaphysics Church and located at 19 20 311 Smithers Ave . So. , 270 feet of a church commonly known as 21 St . Anthony' s Catholic Church located at 406 So. 4th Street , 22 and 280 feet of a church commonly known as Martin Luther 23 King, Jr . , Memorial Baptist Church located at 324 Smithers Ave . So . 24 c . 620 feet from Renton High School , located at 25 26 400 So . 2nd Street , and 470 feet from St. Anthony' s Parochial i School , located at 314 So . 4th Street . 27 28 7 . Location of Roxy Theater : The Roxy Theater is located within the following distances of the following 29 existing zones and uses : 30 31 a. There is a multiple residential use . as a part of, or adjacent to , the Roxy Theater . 32 WARREN & KELLOaa. P.S. COMPLAINT FOR DECLARATORY JUDGMENT ATTORNEYS AT LAW PAGE 3 Ica.D.SECOND ST.,P.O.lOE SSS RENTON. WASHINOTON 68057 155.0678 1 b. 210 feet of a church commonly known as 2 Awareness of Life Christian Metaphysics Church and located at 3 311 Smithers Ave . So . , 420 feet of a church commonly known as 4 St . Anthony' s Catholic Church located at 406 So. 4th Street , 5 and 430 feet of a church commonly known as Martin Luthel 6 King, Jr . , Memorial Baptist Church located at 324 Smithers 7 Ave. So . 8 c . 420 feet from Renton High School , located at 9 400 So . 2nd St . , and 510 feet from St. Anthony' s Parochial 10 School located at 314 So . 4th Street . 11 8 . Controversy: A controversy and dispute now exists 12 between Plaintiff and Defendants relating to their legal 13 rights , duties and the effect of City of Renton Ordinance No . 14 3526 upon Defendants as follows : 15 a . Plaintiff claims that City of Renton Ordinance 16 No. 3526 is constitutional on its face. Defendants claim 17 that said ordinance is unconstitutional on its face. i 18 b. Plaintiff claims that City of Renton Ordinance 19 No . 3526 is constitutional as it is applied to the specific 20 land use proposed by the Defendants . Defendants claim that 21 said ordinance is unconstitutional as applied to the specific 22 land use proposed by the Defendants . 23 c . Plaintiff claims that the component parts of 24 City of Renton Ordinance No . 3526 are independant and 25 severable and that this Court has the duty and obligation to 26 interpret the same in a constitutional manner , so as to give 27 !, effect to the general purpose of the City Council of the City 28 of Renton and its manifest intention . Defendants claim that 29 said ordinance is not susceptible of a constitutional 30 construction and is not severable . � I 31 d . Plaintiff claims that , pursuant to thle 32 provisions of the City of Renton Ordinance No . 3526 , an WARREN & KELLOGG. P.S. COMPLAINT FOR DECLARATORY JUDGMENT ATT AT LAW PAGE 4 100 SO.SCCOND ST..P.O.SOX•U• RINTON. WASHINOTON 980157 255.8678 i • 1 "adult motion picture theater" is a permitted use within . thej 2 B- 1 and more intensive land use zoning classifications 3 curre tly in use within the City of Renton except to the 4 extent that the specific use is prohibited by the terms ofl 5 said ordinance , and that there is no necessity for 6 application for , a special permit , conditional use or variance] 7 prior to the commencement of such specific land use . 8 Defen ants have claimed in an "Amended and Supplemental 9 Complaint for iDeclaratoryJudgment and Preliminary and 10 Perma ent Injunction" , filed on February 9 , 1982 in the' 11 Unite States District Court for the Western District ofj 12 Washi gton , entitled Playtime Theaters , Inc . , a Washington 13 Corp. , and Kukio Bay Properties , Inc . , a Washington Corp . v . 14 The City of Renton , et al . , No. C 82-59M, that City of Renton' 15 Ordinance No . 3526 provides a new use classification within 16 "adult zoning laws of the City of Renton of an motion) 17 pictue theater" which is not a permitted use within any 18 zoning classification currently in the City of Renton , 19 thereby requiring the Defendants to obtain a special permit , 20 conditional use or variance prior to commencement of such 21 use. 22 e . Plaintiff claims that the filing of the above I 23 described federal lawsuit is premature in that the Defendants 24 have failed to exhaust their administrative remedies under 25 the toning Code of the City of Renton by. reason of their 26 fail re to request an administrative determination of the I 27 necessity of application for a special permit, conditional 28 use ' r variance from which appeal may be made from an 29 unfavorable de termination as provided in the Zoning Code of 30 the unfavorable of Renton , and that said administrative remedies are I 31 adequate and appropriate. Defendants claim that they are not 32 1 COMPLAINT FOR DECLARATORY JUDGMENT WARREN & KELLOGG. P.S. PAGE 5 ATTDRNir�AT LAW 1D0 SO.SECOND ST..P.O.SOX ISIS RENTON. WASNINGTON 0e057 255.ae7e 1 1 1 required to exhaust their administrative remedies prior to 2 the filing of a lawsuit raising said claim. 3 f. Plaintiff claims that City of Renton Ordinance 4 No. 3526 prohibits the Defendants from using the specific 5 motion picture theater premises described herein as an adult 6 motion picture theater . Defendants deny such claim. 7 9 . No Adequate Remedy: That no adequate remedy other 8 than herein prayed for exists by which the rights. of the 9 parti s hereto may be determined . 10 WHEREFORE, Plaintiff prays for relief as follows : 11 1 . That the Court declare that City of Rentonl 12 Ordinance No . 3526 is constitutional on its face , valid for 13 all purposes and in full force and effect . 14 2. That the Court declare that the ordinance is 15 constitutional as applied to the specific land use proposed 16 by th7 Defendants . 17 3 . That the Court declare that it was the manifest 18 intention of the Renton City Council to make the component 19 parts of City of Renton Ordinance No . 3526 independent and 20 severable . I 21 That the Court declare that an "adult motion) 22 picture theater" is a permitted use within the B-1 and morel 23 intensive land use zoning classifications currently in use) 24 withill the City of Renton , except to the extent that it may) I 25 be prohibited by the ordinance , and that 'therefore no special 26 permit , conditional use or variance application is required 27 prior to commencement of the land use of an "adult motion 28 pictu e theater" in areas of the city in which it is not) 29 prohi ited by the ordinance . j 30 That the Court declare that the Defendants 'i 31 intended use of the specific motion picture theater premises) 32 more particularly described herein as an "adult motion) COMPLAINT FOR DECLARATORY JUDGMENT WARREN & KELTLAW I P.S. PAGE 6 ATTORNEYS AT LAW loose.'iceman/T..P.O.SOX/i/ RENTON. WA•HINGTON 91067 *85.867e 1 � I 1 picture theater" as defined in the ordinance is prohibited by 2 the ordinance . _ I 3 6 . That the Court award the Plaintiff its costs and 4 attorney's fees as provided by law. 5 7 . That the Court grant such other and further relief 6 as the Court deems just and proper . 7 8 DANIEL ELLOGG, 9 Attorney for Plaintif 10 11 12 .13 ' 14 15 16 - I 17 18 19 20 21 22 • 23 24 25 26 . 27 28 29 30 31 32 I I WARREN & KELLOGG. P.S. COMPLAINT FOR DECLARATORY JUDGMENT ATTORNEYS AT LAW PAGE 7 +00 SO.SECOND ST..P.O.SOX.R. RENTON. WASHINOTON 9e057 IIea.ee7e • I I •fir ��+ CE C T tNe unaerslgnetl„fie%re '� lle 1erk of {FSA City of Renton, Washington, certify that this Is a true and correct copy of.. ''K5,C .. • Subscribed and Sealed this t?_ay of. - - 19., , ///2etd City Clerk CITY OF RENTON , WASH:,GTON ORDINANCE NO . 3526 AN ORDINANCE OF THE CITY OF RENTON , WASHINGTON, RELATING TO LAND USE AND ZONING THE CITY COUNCIL OF THE CITY OF RENTON , WASHINGTON, DO ORDAIN AS FOLLOWS : SECTION I : Existing, Section 4-702 of Title IV (Building' Regulation) of Ordinance No . 1628 entitled "Code of General rd'0 inance:. of the City of Renton" is hereby amended by adding the following subsections : 1 . "Adult `lotion Picture Theater" : An enclosed building used for presenting motion picture films , video cassettes , cable television , or anv other such visual media , distinguished or characters . by an emphasis on matter depicting , describing or relating to "spe'cifir( sexual activities" or "specified anatomical areas" as hereafter desfined . for observation by patrons therein . 2 . "Snecified Sexual Activities" : (a) Human genitals in a state of sexual stimulations or arousal; • (b) Acts of human masturbation, sexual intercourse or sodomy ; ' I (c) Fondling or other erotic touching of human genistals , pubic region , buttock or female breast . 3 . "Specified Anatomical Areas" (a) Less than completely and opaquely ce:'ered human genitals , pubic region , buttock, and female breast below a point immediately above the top of the areoia ; and (b) Human, male genitals in a discernible turgid state , even if completely and opaquely covered. -1- ATTACHMENT "A" RECEIVED ED FEE 1 9 1982, ./.) - I I SECTION II : There is hereby added a new Chapter to Title IV (Building Regulations) of Ordinance No. 1628 entitled "Code . of General Ordinances of the City of Renton" relating to adult motion picture theaters as follows : 1 A. Adult motion picture theaters are prohibited within the area circumscribed by a circle which has a ' radius consisting of the f )llowinp distances from the following specified uses or (zones : 1 . Within or within one thousand (1000 ' ) feet of any residential zone (SR-1 , SR-2 , R-1 , S-1 , R-2 , R-3 , R-4: or T) or any single family or multiple family residential use . • 2 . One. (1) mile of any public or private school 3. One thousand (1000 ' ) feet of any church or other religious facility (•.r institution 4. One thousand (1000 ' ) feet, of any public park or P-11 zone!. B. The distances provided in this section shall be measured by follo ing a straight line , without regard to intervening builldings , from the nearest point of the property parcel upon which the proposed 1 use is to be located , to the nearest point of the parcel of propl'erty or the 1 nd use district boundary line from 'which the proposed land use is to he separated. SECTION III : This Ordinance shall he effective upon its passage, approval and thirty days after its publication . PASSED BY THE CITY COUNCIL this 13th day of April I , 1W T i7 De ores�a`d, City Clerk APPROVED. BY THE MAYOR this 13th day of April. , 1981 . 3 40 _AI-•SaoCR" Approved as to form: Barbara Y . Shinpoch ,I flavor awrence J .-W rren , City Attorney Date of ublication : ,May 15, 19 I - 1 Tha' • V • JUN 18 1984 S 3 CITY p�= RENTON 3 5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 CITY OF RENTON , a municipal ) corporation , et al . , ) NO . 82-2-02344-2 7 ) Plaintiffs , ) CITY OF RENTON'S BRIEF 8 ) THAT ISSUANCE OF 7. ) INJUNCTION AGAINST 9 ) CONTINUED VIOLATION OF PLAYTIME THEATRES, INC . , ) CITY ZONING CODE BY AN 10 a Washington corporation , ) ADULT MOTION PICTURE et al . , ) THEATER WOULD NOT 11 ) CONSTITUTE AN ILLEGAL Defendants . ) PRIOR RESTRAINT 12 ) 13 I . FACTS 14 The City of Renton enacted an ordinance controlling the 15 location of adult motion picture theaters . The ordinances 16 were declared constitutional following declaratory judgment 17 actions in both the Federal and Washington State Courts . The 18 ordinance was then enforced by the City of Renton , my means of 19 court action . An advisory jury found four (4) of ten ( 10) 20 representative films of the film fare showing at the Renton 21 Theatre to be obscene and further found that the exhibition of 22 films emphasizing specified sexual activites and specified 23 anato ical parts ( terms defined in the ordinance ) was a 24 continuous course of conduct , and done in a manner which 25 appeals to the prurient interest in sex. The courts took into 26 consideration the advisory jury' s findings , largely adopted 27 them, and found that the Renton Theatre did in fact violate 28 CITY OF RENTONS' BRIEF WARREN&KELLOGG,P.S. PAGE 1 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 9 1 the City Zoning Code . The City of Renton is requesting that 2 an injunction be issued against the Renton Theatre further 3 operating as an adult motion picture theater , at its present 4 location . It is anticipated that the Defendants will claim 5 that issuance of such a injunction would constitute prior 6 restraint in violation of Defendants First Amendment Rights . 7 The purpose of this brief is to discussed the relevant 8 authorities , show the court that the injunction would not be 9 an illegal prior restraint and argue that even if the 10 injunction was a prior restraint it would not be an illegal or 11 unconstitutional prior restraint . 12 II . AUTHORITIES 13 The prior restraint doctrine had its origin in thie 14 English system of licensing and taxing the press . The 15 Licenser was the key to the administrative system used to 16 prevent seditious libel , protect copyright interests , anld 17 preserve monopolies . The affect of this licensing system was 18 to s bject all printed materials to the whim and pleasure oif 19 the Licenser with often arbitrary and uneven results . The 20 licensing system eventually ceased when the English Parliament 21 refused to renew the legislation empowering the licensing 22 system. However, the memory has remained and is closely tied 23 with 1First Amendment Rights in the United States , as currently 24 understood and enforced . 25 The modern prior restraint doctrine has evolved into an 26 amorphous difficult to define doctrine. The doctrine is moSt 27 often enforced against administrative licensing of speech and 28 WARREN&KELLOGG,IP.S. CITY OF RENTONS' BRIEF ATTORNEYS AT LAW PAGE 2 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 ' • inju ctions against speech. To the extent the prior restraint 2 doctrine operates against administrative licensing of speech 3 1 , it v-ries little from the English doctrine . As was stated in 4 For Blackstone Commentaries , 52 (Tucker ed. 1803) : 5 "[t]o subject the press to the restrictive power of 6 a Licenser , as was formerly done , . . . is to subject all freedom of sentiment to the prejudice of one 7 man. " 8 The modern United States rule against prior restraints 9 evolved in the 'case of Near v. Minnesota , 283 U.S. 697 ( 1930) . 10 In N-ar , the State of Minnesota authorized , under the law .f 11 public nuisance, judicial abatement of any newspaper or other 12 periodical deemed "malicious, scandalous and defamatory. " A 13 week y newspaper attacked Jews generally , and accused the 14 Mayor, Chief of Police , and County Attorney of incompentence 15 graft and neglect of duty . Suit was brought and the state 16 court ajudged the newspaper to be "malicious , scandalous and 17 defamatory" aslper the terms of the state law., and issued a 18 perpetual injuInetion against further publication of that 19 description. The Supreme Court struck down the injunction as 20 bein• invalid on its face as a prior restraint . The Supreme 21 Court at page 704 synopsised the publications against which 22 the injunction was sought when it said : 23 " . . .We deem it sufficient to say the the article, charged in substance that a Jewish gangster was in 24 charge of, gambling, bootlegging and racketeering in Minneapolis , and that law enforcing officers and 25 agencies were not energetically performing their, duties . . . There is no question but that the 26 articles I made serious accusations against the' public officers named and others in connection with 27 the prevalence of crimes and the failure to expose and punish them. " 28 ' WARREN&KELLOGG,P.S. CITY OF RENTONS'' BRIEF ATTORNEYS AT LAW PAGE 3 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 Having termed the material as primarily an attack 2 again t public officials , the court then went on to say at 3 page 717 : 4 "The fact that for approximately one hundred and 5 fifty years there has been almost an entire absence of attempts to impose previous restraints upon 6 publications relating to the malfeasance of public officers is significant of the deep seated 7 conviction that such restraints would violate constitutional rights ." 8 And later at page 720 the court explains its ruling by 9 stating: 10 " . . .The fact that the liberty of the press may be 11 abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the, 12 press from previous restraint in dealing with official misconduct . Subsequent punishment for 13 such abuses as may exist is the appropriate remedy , consistent with constitutional privilege ." 14 It is important to note that Near v. Minnesota , supra , 15 deal with accusations of official misconduct , and that the 16 courts ruling against the prior restraint was based on the 17 political nature of the speech and the fungible nature of news 18 and newspapers . 19 The court in Near v. Minnesota, supra, also recognized 20 that not all prior restraints are unacceptable . The court 21 said at page, 716 : 22 " . . . the protection even as to previous restraint is �3 not absolutely unlimited. But the limitation has been recognized only in exceptional cases . . . .On 24 similar grounds , the primary requirements of decency may be enforced against . obscener, 25 publications . " 26 It has been long recognized that obscenity is outside 27 the rotection of the First Amendment Roth v. United States , 28 WARREN&KELLOGG,P.S. CITY OF RENTONS' BRIEF ATTORNEYS AT LAW PAGE 4 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 • 354 U.S. 476 ( 1957 ) , and may be subject to prior restraint in 2 limi ed circumstances . Freedman v. Maryland , 380 U . S . 51 3 ( 196 ) . 4 It is recognized in this action that the Citys ' 5 ordinances are based upon Young v. American Mini Theaters , 427 6 U .S. 50 ( 1976 ) . ' In Young , the dissent specifically analyzed 7 the Detroit Zoning Ordinance as a "prior restraint" by 8 I , rest icting the permissible concentration of adult move 9 fi theaters . The ' plurality opinion rejects that analysis and 10 finds that a Young style ordinance is not a prior restraint . 11 1 ' By analyzing the Young style ordinance it is clear that an 12 inju ction for violation of the locational criteria does not 13 amoult to a prior restraint. The prior restraint as analyzed 14 in Naar v. Minnesota, supra, is a total ban on the speech, made 15 through court injunction. A total ban will never exist under 16. a Yoking style ; ordinance because the criteria is locational 17 only and there will always exists a location where this speech 18 may e exercised!. Failure to provide such a location under a 19 Young style ordinance , renders the ordinance unconstitution 1 20 and nenforcablein the first instance. See Schad v. Borough 21 of M unt Ephriam, 452 U.S. 61 ( 1981 ) . The very fact that the 22 Supr me Court ,permitted locational requirements for adult 23 moti n picture theaters , by means of a zoning code , ' must 24 assu a enforcement of the ordinance by means of complaint and 25 inju ction . Following proof of a zoning violation , a 26 muni ipality is normally left with the remedies of abatement 27 of t e use and/or the more finely tuned and finely drawn 28 WARREN&KELLOGG,P.S. CITY OF RENTONS ' ' BRIEF ATTORNEYS AT LAW PAGE 5 I 700 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 8057 255-8678 1 1 remedy of a carefully worded injunction against further 2 violation . Of course , abatement works the ultimate prior 3 .restraint , in that the use is closed all together. A finely 4 draw injunction would prohibit only conduct that a previously 5 been found to violate the zoning code . The injunction would 6 not rohibit lawful speech in areas where the speech would be 7 . perm' tted under the zoning code . To hold that in an 8 injunction, under these circumstances , would be a prior 9 restriaint , would be to hold the ordinance unconstitutional 10 because of prior restraints , a step that the United States 11 Supr me Court refused to take in Young v . American Mini 12 Thea ers . 13 Several recent law review articles have analyzed the 14 prior restraint doctrine and have rejected branding 15 injunctions issued after judicial hearings as being a prior 16 restraint violation. See for example Rethinking Prior 17 Restraint , Volume 92 Yale Law Journal , page 409 , copy of which 18 is attached hereto and Toward a Theory of First Amendment 19 Process : Injunctions of Speech, Subsequent Punishment, and the 20 Cost of the Prior Restraint Doctrine , William T . Mayton , 67 21 Cornell Law Review, 245 copy of which is attached hereto. 22 The Mayton Article determines that free speech is 23 burdened less; by a system of injunctions . Mayton first 24 defines prior restraint as : 25 "It is a restraint of speech imposed without the 26 checks and examinations of judicial review . " 27 28 WARREN&KELLOGG,P.S. CITY OF RENTONS' BRIEF ATTORNEYS AT LAW PAGE 6 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 That definition is derived partly from Pitsburgh Press 2 v. Human Relations Commission , 413 U.S. 376 , 390 ( 1973) which 3 stat- s : 4 "The special vice of a prior restraint is that 5 communication will be supressed either directly or indirectly by inducing excessive caution in the, 6 speaker, before an adequate determination that it, is unprotected by the First Amendment. " 7 Mayton then goes on to conclude at page 281 : 8 9 "Because injunctions are necessarily a product of a 10 judicial ' process , it should be preferred to subsequent punishment. This , of course , reverses 11 the hierarchy of process established by the present prior restraint doctrine . It should be remembered „ 12 however, that preventive civil relief is not without coasts to speech . In this regard, my point 13 has been, that preventive civil relief, including'. injunctions , carries a significantly lesser cost to 14 speech. " 15 Applying Mayton' s theory to the case at bar , there is no 16 prio restraint . The' injunction will have been issued only 17 after judicial view, and that injunction need cause no excess 18 caution in the speaker , provided only , that the speak r 19 exercises the speech in a zone permitting adult motion picture 20 theaters . 21 Similarly,; in the Jeffreys Article , comes to a simil r 22 conclusion when it states at page 428 : 23 " . . .the idea has been variously expressed but never so pithily as in Alexander Bickel ' s remark that ,, 24 'A criminal statute chills , prior restraint, freezes' . . . .As Professor Barnett put it: ' [T]he 25 pinpointed freeze of a narrowly drawn [ judicial] . . .order might produce less refrigeration 26 overall than the broader chill of threatened, subsequent punishment . . . ' 27 28 WARREN&KELLOGG,P.S. CITY OF RENTONS' BRIEF ATTORNEYS AT LAW PAGE 7 100 SO.SECOND ST:,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 1 That point is strongly reinforced when one 2 remembers that it is only the possibility of erroneous deterence that should be the subject of 3 concern. To the extent that the activity surpressed, whether by injunction or by criminal 4 prosecution, is outside the protection of the First Amendment and within a ligitimate sphere of 5 legislative action , efficient inhibition is a good thing . It is only excessive deterrence , erroneous 6 deterrence , deterrence that infringes on the substances of First Amendment freedoms , that is 7 decried. In that respect , it seems entirely plausible that the specifically targeted commands 8 of an injunction are actually likely to be less threatening to the system of freedom of expression 9 than the inevitably more general proscriptions of a penal statute . " 10 CONCLUSION 11 Any claim of prior restraint in this case is not 12 meritorious . Constitutionaly protected speech is not barred , 13 but only regulated as to place as permitted in Young v . 14 American Mini Theaters . The effect of an injunction would be 15 to prohibit speech found to be in violation of the law, after 16 full court hearing , and then only to the extent the speech is 17 without First Amendment protection , or in violation of la 18 constitutional zoning ordinance . To the extent that the 19 speech has been found obscene , prior restraint is not 20 applicable . To the extent the speech is not obscene , prior 21 restraint is also not applicable as the speech is permitted 22 else here in the City. If in fact such an injunction amounted 23 to prior restraint , the City would be unable to enforce what 24 has been found to be a valid ordinance thereby making the law 25 meaningless and permitting violations of the law to go 26 27 28 WARREN&KELLOGG,P.S. CITY OF RENTONS' BRIEF ATTORNEYS AT LAW PAGE 8 100 SO.SECOND ST.,P.O.80X 626 RENTON,WASHINGTON 98057 255-8678 1 unchecked . Issuance of an injunction , in this case would not 2 violate the prior restraint doctrine . 3 DATED : June , 1984 . 4 Respectfully submitted, 5 / �LAWRENCE J. /WARREN 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CITY OF RENTONS' BRIEF WARREN&KELLOGG,P.S. PAGE 9 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 626 RENTON,WASHINGTON 98057 255-8678 NO. 83-3805 UNITED STATES COURT OF APPEALS FOR. THE NINTH CIRCUIT PLAYTIME THEATERS, INC. , a Washington corporation, and KUKIO BAY PROPERTIES, INC. , aFFICE�FT�iECT *� a Washington corporation; RENTONASJThCIPALBLDG. 2GG NIILL AVE.SOUTU Appellants , RENTON,WA 98055 1 VS . THE CITY OF RENTON, et al . , 111 Appellees . On Appeal from the United States District Court For the Western District of Washington 'I BRIEF OF APPELLEES CITY OF RENTON, et al . Lawrence J . Warren Daniel Kellogg Warren & Kellogg , P . S. 100 South Second Street P .O. Box 626 Renton, Washington 98057 (1 (206 ) 255-8678 I � TABLE OF CONTENTS I I I . STATEMENT OF THE CASE 1 A . Nature of the Case 2I B . Jurisdiction of the District Court 21 C . Jurisdiction of the Court of Appeals 41 D . Appealability of Lower Court Ruling 4 E . Timeliness of the Appeal 41i F . Attorney Fees 4 ' I � II . STATEMENT OF FACTS 51 I ! A . Background on Enactment of Ordinance No . 3526 5 B . On January 26 , 1982 , Plaintiffs Filed a Civil Rights (42 U . S. C . section 1983) and Declaratory Judgment Action (28 U .S. C . section 2202) challenging Ordinance No . 3526 . On February 3 , 1982,, Magistrate Sweigert recommended that the Motion for a Temporary Restraining Order be denied 71 C . On February 9 , 1983 , Plaintiffs filed an Amended and Supplemental Complaint in which they pleaded contradictory facts under oath , and changed the theory set forth in their original Complaint 91i D . On February 19 , 1982 , the City of Renton filed a State Declaratory Judgment Action 10 E . The City of Renton filed its first 1 Motion to Dismiss on February 22, 1982 10 F . Plaintiffs filed a Petition to Remove the City of Renton' s State Declaratory Judgment Action on March 8 , 1982 11 G . The City of Renton ' s first Motion to Dismiss was argued on March 12 , 1982 11 i I i H . The City of Renton' s Motion to Remand is heard on April 9 , 1982 . Magistrate Sweigert stated in an oral opinion from the bench that the State Action should be remanded, but the State Declaratory Judgment lawsuit is not remanded until January 13 , 1983 12 I . The City of Renton enacted Ordinance No . 3629 as an emergency amending ordinance on May 3, 1982 13 J . The City of Renton filed a Renewed Motion for Dismissal and Motion for Summary Judgment 14 K . Judge McGovern denied the City of Renton's first Motion to Dismiss on May 5 , 1982 14 L . The City of Renton re-enacted Ordinance No. 3629 as a regular ordinance on June 14, 1982 14 ' M . On November 5 , 1982 , Magistrate Sweigert recommended that the City of Renton ' s Motion for Summary Judgment and Renewed Motion to Dismiss be denied and that the Plaintiffs ' Motion for Preliminary Injunction be granted 14 N . The City of Renton filed a Petition for Writ of Mandate in the Court of Appeals on December 2 , 1982 15 0 . On December 9 , 1982 , U . S . Magistrate Sweigert filed a Supplemental Report and Recommendation 15 P . On January 13 , 1983 , Judge McGovern entered an Order approving U. S . Magistrate Sweigert' s Report and Recommendations . Plaintiffs commenced operation as an "adult motion picture theater" 16 Q . On January 24 , 1983 the City of Renton filed a Supplemental Pleading to its Petition for Writ of Mandate seeking a stay of the Preliminary Injunction issued on January 13 , 1983 16, ii R . The parties entered into a Stipulation to sever the Plaintiffs' claim for damages , and to submit the case for final determination upon the then existing record 17 S . The Court of Appeals denied Petition for Writ of Mandate 17 T . On February 17, 1983, the district court filed its final Order , vacating the Preliminary Injunction as "improvi- dently granted" , holding Renton Ordinance No . 3526 constitutional and denying the motion for a Permanent Injunction 17 U . Notice of Appeal 181 III . THE STANARD OF REVIEW BY THIS COURT IS THE "CLEARLY ERRONEOUS" TEST REQUIRED BY FED . R . CIV. P . 52( a) 18 IV. THE PLAINTIFF ' S APPEAL IS BASED UPON AN INCORRECT CONSTRUCTION OF THE STIPULATION . ENTRY OF THE DISTRICT COURT 'S FINAL JUDGMENT WAS APPROPRIATE 191 V . THE FINDINGS OF FACT INCLUDED WITHIN THE DISTRICT COURT 'S WRITTEN OPINION ARE NOT "CLEARLY ERRONEOUS" AND ARE SUPPORTED BY THE RECORD 21 VI . THE DISTRICT COURT DID NOT SHIFT THE BURDEN, OF PROOF TO THE PLAINTIFFS TO SHOW A SUBSTANTIAL IMPOSITION ON FIRST AMENDMENT PROTECTED EXPRESSION 32 VII . THE RENTON ZONING ORDINANCE DOES NOT CREATE A STATUTORY CLASSIFICATION THAT IS NOT RATIONALLY RELATED TO A VALID PUBLIC PURPOSE OR NECESSARY TO THE ACHIEVEMENT OF A COMPELLING GOVERNMENTAL INTEREST 331 VIII . PLAINTIFFS CITE NO .AUTHORITY FOR THE PROPOSITION THAT A FAILURE TO INCLUDE OTHER ADULT BUSINESSES WITHIN THE SCOPE OF THE ORDINANCE IS A DENIAL OF EQUAL PROTECTION 35 iii IX. THE DEFINITION OF "USED" IS NOT IMPERMISSIBLY VAGUE IN VIOLATION OF THE FIRST AND FOURTEENTH . AMENDMENTS TO THE UNITED STATES CONSTITUTION 37 X . THE ORDINANCE DEFINITION OF "ADULT MOTION PICTURE THEATER" IS NARROWLY DRAWN AND IS NOT OVERBROAD 40 XI . THE RENTON ZONING CODE DOES NOT CONSTITUTE A PRIOR RESTRAINT UPON EXHIBITION OF SEXUALLY EXPLICIT MATERIALS WITHOUT A GUARANTEE OF PROCEDURAL SAFEGUARDS 41 XII . THE JUDGMENT OF THE U . S . DISTRICT COURT WHICH DENIED PLAINTIFFS' MOTION FOR A PERMANENT INJUNCTION SHOULD BE AFFIRMED, BUT FOR A DIFFERENT REASON 43 ' XIII . CONCLUSION 44 APPENDIX A - Ordinance No . 3526 471 APPENDIX B - Ordinance No . 3629 49 ' APPENDIX C - Ordinance No . 3637 56 APPENDIX D - Stipulation and Order dated February 8 , 1983 63 APPENDIX E - Correspondence to and Reply from District Court 66 , APPENDIX F - Excerpt of Answers to Inter- rogatories and Requests for Admissions Filed by Plaintiffs in State Enforcement Action 69 I � iv TABLE OF AUTHORITIES Federal Decisions Allen , et al . v . McCurry, 449 U . S. 90, 101 S. Ct 441 , 66 L. Ed . 2d 308 ( 1980) 3 ,44 Avalon Cinema Corporation v. Thompson, 667 F .2d 659 (8th Cir . 1981 ) 24 , 27 Basiardanes v. City of Galveston , 682 F . 2d 1203 (5th Cir . 1982) 27 ,30 ,32 Belle Terre , Village of v. Borass , 416 U . S. 1 , 94 S .Ct . 1536 , 39 L .Ed . 2d 797 ( 1974) 34 ,36 Broadrick v. Oklahoma , 413 U.S . 601 , 93 S.Ct . 2908 , 37( L .Ed . 2d 830 39 District of Columbia Court of Appeals v . Feldman & Hickey, U . S. , 103 S. Ct . 1303 , 75 L . Ed . 2d 206 ( 1983) 3 Eastlake v. Forest City Enterprises , Inc . , 426 U . S. 668 ( 1976 ) 24 , 28 Ebel v. City of Corona , 698 F . 2d 390 (9th Cir . 1983 ) 24 ,28 , Erznoznik v. City of Jacksonville , 422 U . S. 205,, 95 S .Ct . 2268 , 45 L .Ed . 2d 125 ( 1975 ) 39 ,40 , Genusa v . City of Peoria , 619 F . 2d 1202 (7th Cir . 1980 ) 24 Glaspey v. Norris , 231 F. 2d 881 (9th Cir . 1956) 21 Hicks v . Miranda , 422 U . S . 332 , 95 S . Ct . 2281 , 45 L .Ed . 2d 223 ( 1975 ) 3 , 10' Hoffman Estates , Village of v . Flipside , Hoffman Estates, Inc. , 455 U.S . 489 , 102 S. Ct . 1186 , 71 L . Ed. 2d 362 ( 1982) 39 Huffman v. Pursue Ltd . , 420 U .S. 592 , 95 S. Ct . 1200 , 43 L . Ed 2d 482 ( 1975) 3 , 11 , 12 v J -R Distributors v . Eikenberry , _ F . 2d ( 9th Circuit No . 82-34-T1 , decided February 6 , 1984) 40 Juidice v . Vail , 430 U . S . 327 , 97 S. Ct . 1211 , 51 L. Ed . 2d 376 ( 1977) 3 , 11 Katzenbach v. Morgan , 384 U.S . 641 , 86 S .Ct . 1717 , 16 L.Ed . 2d 828 ( 1966 ) 29 , 35 Keego Harbor Co . v . City of Keego Harbor , 657 F . 2d 94 (6th Cir . 1981 ) 27 , 30 Kuzinich v. County of Santa Clara , 689 F .2d 1345 (9th Cir . 1982 ) 24 ,27 ,28 Lundgren v. Freeman_, 307 F . 2d 104 (9th Cir . 1962) 18 Martinez v. California , 444 U .S. 277 , 100 S. Ct . 553 , 62 L . Ed 2d 481 ( 1980) 3 ,44 Massachusetts Mutual Life Ins . Co . v. Ludwig, 426 U . S. 479 , 96 S .Ct . 2158 , L . Ed . 2d 784 ( 1976 ) 4 ,44 McLaughlin v. Florida, 379 U .S . 184 , 22 S. Ct . 283 , 13 L .Ed . 2d 222 ( 1964) Middlesex Counter Ethics Committee v. Garden State Bar Ass ' n . , U . S . 102 S. Ct . 2515 , 73 L . Ed . 2d 116 ( 1982) 3 , 15 Miller v. California , 413 U . S . 15 , 93 S. Ct . 2607 , 37 L . Ed . 2d 419 ( 1973) 1 Moore v. Sims , 442 U .S. 415 , 99 S .Ct . 2371 , 60 L . Ed . 2d 994 ( 1979 ) 3 , 11 New Orleans , City of v . Dukes , 472 U . S. 297 , 96 S .Ct . 2513 , 49 L .Ed . 2d 511 ( 1976 ) 29 ,35 • i Northwestern Laundry v . Des Moines , 239 U . S. 4g6 , 60 L .Ed . 396 (1915 ) 29 , 35 Ohio Bureau of Em.loyment Services v. Hodory, 431 U . S. 2471 , 97 S .Ct . 52 L . Ed . 2d 513 ( 1977 ) 4 , 11 Parker v. Lea, 417 U . S . 733 , 94 S .Ct . 2547 , 41 L . Ed . 439 39 vi Parratt v. Taylor , 451 U .S. 527 , 101 . Ct . 1908 , 68 L . Ed 2d 420 ( 1981 ) 3 ,44 Pennhurst State School and Hospital v . Halderman , U . S. , 52 Law Week 4155 (No . 81-2101 , decided January 23 , 1984) 4 Playtime Theatres , Inc . v . City of Tacoma , (Ninth Circuit Court of Appeals No . 81-3544) 6 , 18 Renton, City of v. Playtime Theatres , Inc . , et . al . , United States District Court for the Western District of Washington at Seattle , No . C82-263 11 Renton , City of v. U . S . District Court , Z9,th Circuit Court of Appeals No . b2-7721 ) 15 Roth v. U . S. , 354 U .S. 476 ( 1957 ) 40 Schad v. Borough of Mt . Ephraim, 452 U .S . 61 , 101 S. Ct . 2176 , 68 L . Ed . 2d 671 ( 1981 ) 27 , 30 , 45 , Southwest Forest Industries , Inc . v . Westinghouse Electric Corporation , 422 F .2d 1013 , (9th Cir . 1970 ) ; cert . den . 400 U . S. 902 , 91 S.Ct . 138 , 27. L .Ed . 2d 138 21 Stanley v. Georgia , 394 U .S . 557 , 89 S . Ct . 1243 , 22 L .Ed . 2d 542 ( 1969 ) 35 Starsky v. Williams , 512 F . 2d 109 (9th Cir . 1975 ) 2 ,21 ,22 Steinsvik v . Vinzant , 640 F . 2d 949 (9th Cir . 1981 ) 181 Tovar v. Billmeyer , F .2d . (9th cir . No . 82-358, decided December 15 , 1983) 27 ,28 Trainor v. Hernandez , 431 U.S . 434 , 97 ' S. Ct . 1911 , 52 L . Ed . 2d 486 ( 1977) 3 , 11 U . S . v . O ' Brien , 591 U . S . 367 , 88 s . Ct . 1673 , 20 L .Ed . 2d 672 ( 1968 ) 2, 35 , 45 U . S . v . U . S. Gypsum Co . , 333 U .S. 364 , 68 S. Ct . 525 , 92 L . Ed . 746 ( 1948 ) 31 vii 1 U . S. v. Weiner , 578 F .2d 757 25 United States v . Chesher , 678 F . 2d 1353 , (9th Cir. 1982) 18 Young v. American Mini Theatres , 427 U . S. 50, 97 S .Ct . 191 , 49 L .Ed . 2d 310 ( 1976 ) 1 , 3 ,5 , 6 , 7 ,25 , 30 , 33, 34 , 36 , ' 38 ,39 ,45 Younger v . Harris , 401 U . S . 37 , 91 S . Ct . 746 , 27 L . Ed 2d 669 ( 1971 ) 12 State Decisions Northend Cinemas v. Seattle_, 90 Wn . 2d 709 , 585 P .2d 1153 ( 1978 ) 1 ,5 , 6 ,7 ,25 , 33 , 45 Renton , City of v. Playtime Theatres , Inc . , et al . , (King County , Washington , Superior Court No . 82-2-02344-2) 10 , Sacramento , County of v. Superior Court , Goldies Book Stores Inc . , 137 Cal . App . 3rd 448-, 187 Cal. Rep . 154 ( 1982) 25 , 26 State v. J-R Distributors , 82 Wn. 2d 584 , 512 P .2d 1049 ( 1973) 1 Weiner v. Mitchell , Silberberg & Knupp , 114 Cal . App. 3d 35 , 170 Cal . Rep . 533 251 Whitaker, City of v. Walnut Properties Inc . , 139 Cal . App . 3d 618 , 189 Cal . Rep. 12 ( 1983) 24 • viii STATUTES Federal Statutes 28.U . S.C. , Section 1131 (a) 8 28 U.S.C. , Section 2201 3 28 U . S .C. , Section 2202 3 , 7 ,8 42 U. S.C . , Section 1983 3 , 8 42 U . S. C. , Section 1988 3 ,5 State Statutes R .C.W. 35 .22 .280 361 R . C.W. 35A . 11 . 020 361 R. C.W. 35A .63 . 100 361 City Codes Renton Code of General Ordinances , Section 4-3011 (B) (5) 431 Ordinances City of Renton Ordinance No . 3526 1 , 5 ,7 , 8 , 10 , 13 ,22 ,30 ,41 City o Renton Ordinance No . 3629 8 , 13 , 14 , 25 , 37 , 41 City of Renton Ordinance No . 3637 8 , 14 , 17 ,23 ,26 ,37 , COURT RULES Fed. R . Civ. P. 52(a) 18 , 31 1 Fed . R. Civ. P . 56 2 , 14 , 19 ,21 I Fed . R. Civ. P . 57 8 Fed. R. Civ. P . 60( a) 20 i ix I STATEMENT OF THE CASE A . ature of the Case . This is an appeal by an operator of an adult motion picture theater from the decision by the district court that City of Renton Ordinance No . 3526 , as amended , was constitutional . The ordinance required separation of an adult motion picture theater from certain family-oriented zones and uses . The district court found the ordinance to be in accord with Young v. American Mini Theatres , 427 U . S . 50 ( 1976 ) , and Northend Cinema v. City of Seattle , 90 Wn. 2d 709 , 585 P .2d 1153 ( 1978 ) . The district court found that the ordinance caused "minimal intrusion" upon protected speech1 noting that no adult motion picture theater operations 1 Appellants contend that they intend only to exhibit adult mo-,ion picture films which are protected by the First Amendment , i . e . , not obscene . ( CR 23 , page 7 , line 3 ; Appellants ' Brief, page 2) . However, it is of interest to note that in the enforcemeInt action commenced by the City of Renton in the state court against these Plaintiffs following entry of the district court' s judgment that the ordinance was constitutional , th'e advisory jury made a contrary finding, at least in part . The jury was instructed under the obscenity test set forth in Miller v. California , 413 U . S . 15 ( 1973) , and State v. J-R Distributors , 82 Wn . 2d 584 , 512 P .2d 1049 ( 1973 ) . Based upon a stipulation of the parties, ten films which had been exhibited by the Plaintiffs at the Renton Theater since January 20 , 1983 , were submitted to the jury as a "representative sample" of nearly 100 films which had been exhibited during that time . Thp advisory jury' s verdict , returned on January 23 , 1984 , found that the Plaintiffs had exhibite "specified sexual activities" and "specified anatomical areas" as defined in the ordinance as a "continuous course of conduct". and "in a manner which appeals to a prurient interest" since January 20, 1983 . Furthermore , the jury found four of the ten films to be obscene : "Devil In Miss Jones" , "Debbie Does Dallas" , "Taboo II" and "Little French Maid" . The state trial court has taken the jury' s advisory verdict under advisement . The final opinion of the trial court has not yet been filed . - 1 - were in existence when the ordinance was adopted , and there' existed within the City 520 acres of land in all stages of devel-' opment available for location of an adult motion picture theater . The "minimal intrusion" upon protected speech was found by the district court to be justified under the four-part test set forth in U .S. v. O'Brien , 591 U . S. 367 , 88 S .Ct . 1673 , 20 L .Ed . 2d' 672 ( 1968 ) . The legislative history of the ordinance established that the intent of the City Council in the enactment of the ordinance was the prevention of deleterious secondary effects of an adultnotion picture theater . The district court found that the rest action imposed was not greater than necessary to accomplisi the governmental interest of preservation of the quality of life of the residents of the family-oriented areas of the City of Renton . The district court' s decision was characterized as a summary judgment under Fed . R . Civ . P . 56 . This was based upon the stipulation of the parties which closed the evidence and submitted the case for determination after final oral argument . Therefore , under Starsky v . Williams , 512 F . 2d 109 ( 9th Cir . 1975 ) , the district court was free to determine all issues and to resolve factual issues . On this appeal , it cannot be shown that the district court ' s findings of fact are "clearly erroneous" . The facts as found by the district court mandate affirmance . B . Jurisdiction of the District Court Appellants Playtime Theatres , Inc. and Kukio Bay Properties (hereinafter "Plaintiffs" , or "Playtime" and "Kukio" ) claim that - 2 - the facts which they alleged in their original complaint filed on January 20 , 1982 , and in their first amended and supplemental complaint filed on February 9, 1982, state a claim for federal relief under the Federal Civil Rights Act , 42 U . S . C . , section 1983, and that the U .S . District Court had both subject matter jurisdiction and discretion to grant federal injunctive and other relief, under the Civil Rights Act (42 U. S. C. , sections 1983 and 1988) and the Declaratory Judgment Statute (28 U. S . C . , sections' 2201 , 2202) . Appellees , the City of Renton , et al . , (hereinafter "City of Renton") contend: ( 1 ) That both the original complaint and the first amended and supplemental complaint failed to state a claim upon which federal relief can be granted under the Civil Rights Act . Young v. American Mini Theatres , 427 U . S. 50 , 97 S . Ct . 191 , 49 L .Ed . 2d 310 ( 1976 ) ; Martinez v. California , 444 U . S . 277 , 285 , 100 S. Ct . 553 , 62 L . Ed. 2d 481 , 489 ( 1980 ) ; Allen, et al . v. McCurry , 449 U . S . 90 , 100-101 , 101 S. Ct . 441 , 66 L . Ed . 2d 308 , 317 ( 1980 ) ; Parratt v . Taylor, 451 U . S. 527 , 543-544 , 101 S .Ct . 1908 , 68 L . Ed . 2d 420 , 434 ( 1981 ) ; and (2) That the City of Renton , acting in its governmental capacity , had the right to refuse to consent to federal jurisdiction on Plaintiffs ' Declaratory Judgment claim, and to insist that the important state interests as applied to Plaintiffs and Plaintiffs' constitutional defenses thereto be resolved in a Declaratory Judgment action in the State Court , Huffman v. Pursue Ltd . , 420 U. S. 592 , 606-607 , 95 S. Ct . 1200 , 43 L. Ed. 2d 482, 493-494 ( 1975) ; Hicks v. Miranda , 422 0. S . 332 , 348-350 , 95 S .Ct . 2281 , 45 L . Ed. 2d 223 , 238-239 ( 1975 ) ; Juidice v. Vail , 430 U . S. 327 , 97 S .Ct . 1211 , 51 L . Ed . 2d 376 ( 1977 ) ; Trainor v. Hernandez , 431 U . S . 434 , 97 S .Ct . 1911 , 52 L.Ed . 2d 486 , 496 ( 1977 ) ; Moore v. Sims , 442 U . S. 415 , 430 , 99 S . Ct . 2371 , 60 L . Ed . 2d 994, 1007 ( 1979 ) ; Middlesex County Ethics Committee v. Garden State Bar Ass'n. , U . S . , 102 S. Ct . 2515 , 73 L . Ed . 2d 116 ( 1982T See also , Associate Justice Stevens dissent in . District of Columbia Court of Appeals v. Feldman & Hickey , - 3 - i U . S . , 103 S. Ct . 1303 , 75 L . Ed . 2d 206, at 227 , fn. 2, ( 1983) and Ohio Bureau of Employment Services v . Hodory , 431 U . S . 471 , 480 , 97 S . Ct . 11898 , 52 L . Ed . 2d 513 , 521 ( 1977 ) ; see also Pennhurst State School and Hospital v. Halderman , 1 U . S . , 52 Law Week 4155 ( No . 81 -2101 , decided January 23, 1984) ; and (3) That the trial court erred in denying the City of Renton's motion to dismiss the Civil Rights action , nd in awarding Plaintiffs ancillary relief ( preliminary injunction) under the civil rights statute . 11 C . Jurisdiction of the Court of Appeals Appellee agrees with the position taken by Appellants . D . Appealability of Lower Court Ruling Appellee agrees with the position taken by Appellants . E. Timeliness of the Appeal Appellee agrees with the position taken by Appellants . F . Attorney Fees The City of Renton claims that the judgment of the U . S . District Court which denied Plaintiffs' request for injunctive relief under the Civil Rights Act should be affirmed, but for a different reason, Massachusetts Mutual Life Ins . Co . v. Ludwig , 426 U . S . 479 at 480 , 96 S . Ct . 2158 , 48 L . Ed . 2d 784 , at 786 ( 1976 ) ; namely , ( 1 ) That Plaintiffs had failed to state •a claim upon which federal relief can be based under the Civil Rights Act; (2) That, under the trial facts , the trial court was required to abstain ; and (3) That the trial court lacked subject matter jurisdiction to hear the declaratory judgment aspect of the lawsuit , inasmuch as the City of 1 Renton had refused to consent to federal jurisdiction and had insisted that the Declaratory Judgment issues regarding the vital state interests be heard in the state court . - 4 - Pursuant to such reasoning, the City of Renton further claims that Plaintiffs acted in bad faith in filing the civil rights ' action, and that the City of Renton is entitled to a reasonable attorney' s fee as a "prevailing defendant" on such issues in the trial court , under both the common law exception applicable to attorneys fees where a plaintiff is found to have filed such action in subjective bad faith and under 42 U. S. C. , section 1988 , where it can be said that the plaintiff can be charged with objective ad faith in filing such action . The City of Renton also seeks a reasonable attorney' s fee as the prevailing party on this appeal upon both of the above, grounds . II . STATEMENT OF FACTS The City of Renton objects to the "Statement of Facts" which Plaintiff have set forth in "Appellants' Opening Brief" as being inaccurate , and offers in lieu thereof the following : A . Background on Enactment of Ordinance No . 3526 On June 24, 1976 , the United States Supreme Court decided - Young v . American Mini Theatres , Inc . , et al . , 427 U . S . 50 , upholding a Detroit zoning ordinance restricting the location of a land use of "adult motion picture theatre" , among others . A similar ordinance of the City of Seattle was approved by the Washington State Supreme Court in Northend Cinemas v. Seattle , 90 Wn . 2d 709 , 585 P . 2d 1153 ( 1978 ) . This court has likewise previously found an ordinance enacted by the City of Tacoma , Washington, and patterned after Young, to be constitutional in an - 5 - action brought by these Plaintiffs . Playtime Theatres Inc . v. 1 City of Tacoma , Ninth Circuit Court of Appeals No . 81 -3544 ' (Wright, Hig and Schroeder, Circuit Judges) (unpublished opinion' filed October 25 , 1982) . In May of 1980 , there were no theaters within the City of Renton which exhibited sexually explicit films . At the suggestion of a City of Renton hearing examiner , the Mayor suggested to the City Council that they consider the advisability of enacting zoning legislation dealing with adult entertainment land uses . (Exhibit 6 ) 1 On March 5 , 1981 , the Planning and Development Committee of the City Council of the City of Renton held a meeting for the purpose of taking public testimony on the subject . ( CR 16 , page 3 ) While there is no record of that meeting , Mr . David R . Clemens , hen the City' s acting Planning Director who was present at the meeting, testified that the Superintendent of Schools , and the Manager of the Renton Chamber of Commerce spoke to concerns about adverse effects which adult entertainment uses would have upon the economic health of Renton' s businesses and upon children going to and from school . (CR 16 , page 3 ) He also testified that other citizens spoke generally about the adverse effects of such uses . (CR 16 , page 3-4) Mr. Clemens further testified that he and his depar1tment reviewed the decisions of the Washington State Supreme Court in Northend Cinemas v. Seattle , supra , (which dealt specifically with adult motion picture theaters) and of the United States Supreme Court in Young v. American Mini Theatres , supra , (which d alt with, adult entertainment uses in general) and - 6 - 1 presented ,he information from their review to the Planning and Developmen Committee . (CR 16 , page 3; Supp . Excerpt of Record , tab B-1 , R .T . of David Clemens testimony of January 29 , 1981 , page ' 37-39 ) e indicated generally that review of those cases , indicated hat adult entertainment uses tend to decrease property values and increase crime . On April 6 , 1981 , the Planning and Development Committee of the City Council of the City of Renton recommended to the City Council that an appropriate zoning ordinance be written dealing with the subject of adult motion picture theaters . (Exhibit 7) On April 13, 1981 , the Renton City Council enacted Ordinance No . 3526, which contained the identical language of that portion] of the Detroit zoning ordinance which was before the U . S . Supreme Court in the Young case ( relating to the definition of an "Adult Motion Picture Theater" ) , see Young , at 53 , footnote 4 , and considered by the Washington State Supreme Court in Northend Cinemas . A copy of Ordinance No . 3526 is appended to this brief at page 4" . B . On January 26 , 1982 , Plaintiffs Filed a Civil Rights (112 U . S . C . section 1983 ) and Declaratory Judgment Action (28 U. S . C . section 2202) challenging Ordinance No . 3526 . On February 3 , 1982, Magistrate Sweigert recommended that the Motion For a Temporary Restraining Order be denied . On January 26 , 1982 , Kukio purchased the Roxy Theater and the Renton Theater which are located across the street from each other . ( CR 1 , page 4 ) Neither of the Plaintiffs , although aware of the existence of the zoning restrictions imposed by Ordinance - 7 - 1 • No . 3526 , made any inquiry' of other possible legal locations within the City of Renton for an adult motion picture theater . ' I (Supp . Exc rpt of Record, tab B-2, R . T. of deposition testimony' of orbes read into record at hearingon June 23 , 1982 , Roger H . , page 90, lne 18 - page 91 , line 1 ) On orl aboutJanuary 27 , 1982 , Kukio leased both theaters to Playtime . (CR 1 , page 4) The lease agreements provide that the , premises were to be used "for the purpose of conducting therein adult motion . picture theaters . " (CR 1 , page 4) It is undisputed' that the two theaters are located in violation of the restrictions of the zo ing code of the City of Renton as enacted by Ordinance No . 3526 , and as amended by Ordinance Nos . 3629 and 3637 . (Suppl Excerpt I Record, tab B-2, R . T . of testimony of David R . Clemens on June 23 , 1982 , page 61 , line 4 ) . On January 20 , 1982, six (6) days prior to the closing of' the purchase of the two (2 ) theaters , Plaintiffs filed an action in the United States District Court for the Western District of Washington at Seattle entitled "Complaint for Declaratory Judgment and Preliminary Injunction ," alleging federal jurisdiction under 28 U . S. C . section 1131 ( a) , 42 U . S . C . section 1933 and 28 U . S . C , section 2202 and Rule 57 of the Federal Rules of Civil Procedure ; challenging the constitutionality of City of Renton Ordinance No, 3526 . In their original complaint which was verified by Roger H . Forbes , the sole owner of both corporations , Plaintiffs alleged under Forbes ' oath at page 4 , lines 28 , et sea. , that both - -- - ---fir- i theaters would "continuously operate exhibiting adult motion picture ilm fare to an adult public audience . " - 8 - , On January 29 , 1982 , Plaintiffs moved for a temporary , restraining order as ancillary relief under their original complaint ! Following oral argument on that date , Magistrate Philip K. Sweigert announced orally, from the bench, that he would recommend the denial of the temporary restraining order . On February 3 , 1982 , U . S . Magistrate Sweigert filed his "Report and Recommendation" and proposed form of order in which he' recommended to U.S . District Judge Walter T . McGovern that the request for a temporary restraining order be denied . C . On February 9 , 1982 , Playtime and Kukio filed an Amended and Supplemental Complaint in which they pleaded contradictory facts under oath, and changed the theory set forth in their original Complaint . On February 9 , 1982 , and before U . S. District Court Judge McGovern had formally ruled upon the motion for a temporary restraining order under the original Complaint , Plaintiffs filed and served a new Complaint entitled "Amended and Supplemental Complaint for Declaratory Judgment and Preliminary and Permanent Injunction . " In their new complaint which , this time , was verified Ly Jack R. Burns , Plaintiffs changed the theory of their pleadings to state , under Burns ' oath , that only "one of said theaters would continuously operate exhibiting adult motion picture film fare to an adult public audience . . . " , (CR 23, page 4 , lines 26-29 ) , and raised a new issue that under the City of Renton zoning code a conditional use permit must be applied for . This allegation was made despite the fact that at the hearing on the motion for a temporary restraining order on January 29 , 1982 , David R . Clemens , Director of Policy Planning of the City of Renton , had testified to a contrary administrative interpretation; - Q - that is , tzat an adult motion picture theater was a permitted use under the Loning ordinance as administered by the City of Renton . (Supp . Excerpt of Record, tab B-1 , R .T. of David Clemens testimony on January 29 , 1981 , page 60 . ) D . On February 19 , 1982 , the City of Renton filed a State Declaratory Judgment Action . On February 19 , 1982 , and prior to any substantial proceedings on the merits in the district court , the City of Renton filed a civil action in King County, Washington , Superior' Court , entitled City of Renton v. Playtime Theatres , Inc . , et al . ,1 No . 82-2-02344-2 , "Complaint for Declaratory Judgment" , seeking a declaratory judgment that Ordinance No . 3526 was constitutional as applied to the proposed use of the Renton and Roxy Theaters as alleged in Plaintiffs ' Amended and Supplemental Complaint . See Hicks v. Miranda , 422 U .S . 332 , at 348-350 ( 1975 ) . E . The City of Renton , filed its first Motion to Dismiss on February 22, 1982 . On ebruary 22 , 1982 (within the time allowed to file a thefederalthe Cityof Renton responsive pleading in lawsuit) filed a Motion to Dismiss the Plaintiffs ' "Amended and Supplemental Complaint for Declaratory Judgment and Preliminariy and Permanent Injunction , " based upon the filing of the action in the state court for a Declaratory 4udgment to resolve the controversy. ( CR 29) In its Motion to Dismiss and Memorandum of Points and Authorities in support thereof , the City of Renton advised the district court of the filing in the State Court of the action seeking a declaratory judgment to resolve the controversy - 10 - between the City of Renton and Plaintiffs . (CR 30 ) The City of Renton argued : ( 1 ) That the U .S. Supreme Court had held in Huffman v . Pursue , Ltd . , 420 U. S. 592 , and in the subsequent related cases of Juidice v . Vail , 430 U . S . 327 ( 1977 ) ; Trainor v. Hernandez , 431 U.S . 434 ( 1977) ; ( 1 Moore v. Sims , 442 U.S . 415 979 ) ; and Ohio Bureau Of Employment Services v . Hodory , 431 U . S . 471 ( 1977 ) , that where the city ordinance was constitutional on its face and the civil rights issue involved important state civil interests , the federal claim must be presented to the state court in the first instance where that forum was available and the state had not waived its right to have the matter resolved in the state court . (See CR 30, Point II , pages 11-14) ; and (2) That the state judiciary must be presented with an opportunity to consider and interpret the city ordinance and , if necessary , invoke a limiting construction (see CR 30, Point I(B) , pages 8-10) because the federal court lacked jurisdiction authoritatively to construe such state legislation (see CR, 30 , Point IA, pages 6-8 ) , and that "the federal complaint should be dismissed for failure to state a claim upon which federal relief can be based , upon abstention grounds , and for lack of jurisdiction to decide the controversy which has been pleaded . " -(-CR 30, page 16 , lines 24-26) . F . Plaintiffs filed a Petition to Remove the City of Renton's State Declaratory Judgment Action on March 8, 1982 . On March 8 , 1982 , Plaintiffs filed a petition to remove the state court action to federal court , entitled "City of Renton v. Playtime Theatres , Inc. , et al. , No . C82-263 , Petition to Remove . " Thereafter , on March 12 , 1982 , the City of Renton filed its "Objection to Removal and Motion to Remand" the state Declaratory Judgment action back to the state court . ( CR 52) G . The City of Renton' s first Motion to Dismiss was argued on March 12, 1982 . At the hearing before U .S. Magistrate Sweigert on March 12 , 1982 , on the City of Renton ' s Motion to Dismiss , the City of - 11 - Renton argued that the federal court should abstain on the grounds expressed in Huffman v. Pursue, Ltd. , supra, and its progeny of cases . The City of Renton pointed out that , because of the , peculiar circumstances relating to zoning "use" ordinances , it would not be able to present the statutory construction issue for resolution in the state court until it had occasion to apply the ordinance; that it could not apply the ordinance until a theater had changed its course of conduct from regular film fare to something else , or the theater itself had raised that "prospective" use and the legal question in a lawsuit ; and that since these theaters had not changed their course of conduct buts, had raised the issue in a federal lawsuit , the City must be , allowed to have those same issues authoritatively resolved in the state court system (R .T . for Mar . 12 , 1982 , at page 8 , line 15 through page 9, line 19 ) . Thereafter, U.S . Magistrate Sweigert orally ruled that the lawsuit was not presently governed byi Huffman v . Pursue , Ltd . (R . T . for Mar . 12 , 1982 , at page 18 , lines 1-25 and page 41 , line 2 through page 42, line 7 ) . On March 25, 1982 , U . S. Magistrate Sweigert filed his "Report and Recommendation on Defendants ' Motion to Dismiss ," holding that' "abstention under Younger-Huffman , (Younger v. Harris , 401 U. S . 37 , 27 L . Ed . 2d 669 , 91 S . Ct . 746 ( 1971 )) is neither required nor appropriate under these circumstances . " (CR 66 , at page 4, lines 14-15 ) . H . ' The City of Renton's Motion to Remand was heard on April 9, 1982 . Magistrate Sweigert stated in an Oral opinion from the bench that the State Action Should be remanded, but the State Declaratory Judgment lawsuit was not remanded until Janua ny 11.1. 1983 . - 12 - On March 18 , 1982 , Plaintiffs filed a motion to dismiss the declaratory judgment state action which had been removed to the U .S. District Court . On April 9 , 1982 , Magistrate Sweigert heard the City of Renton's ¶otion to Remand the Declaratory Judgment state action} and Plaintiffs ' Motion to Dismiss the state action . At the conclusion of the hearing, Magistrate Sweigert stated in an oral opinion from the bench that the state court action should be remanded and declined to dismiss the action . The state declaratory judgment action , however , was not remanded to the state court until January 13, 1983 . (CR 157 ) I . The City of Renton enacted Ordinance No . 3629 as an emergency amending ordinance on May 3 , 1982 . On 117 3 , 1982 , the City Council of the City of Renton enacted Ordinance No. 3629 , which amended Ordinance No . 3526 to incorporate the meaning which the City had argued in the district court on arch 12, 1982 could be given to the ordinance by a state court . ( CR 97) The principle changes were : ( 1 ) The amending ordinance contained an elaborate statement of the reasons for enactment of both Ordinance No . 3526 and Ordinance No . 3629 ; (2) A definition of the word "used" was added; (3) Violation of the use provisions of the ordinance was declared to be a nuisance per se to be abated by a civil action and not by criminal enforcement; (4) The required distance of an adult theatre from a school was reduced from one mile to 1 , 000 feet ; and, (5 ) A severability clause was added . - 13 - The amen ing ordinance , No . 3629 , also contained an emergency 1 clause and was to become effective as of the date of its passage and approval by the Mayor on May 3 , 1982 . (CR 97 ) A copy of Ordinance No . 3629 is appended to this brief at page 49 . J . The City of Renton filed a Renewed Motion for Dismissal and Motion for Summary Judgment . On May 4 , 1982 , the City of Renton , filed a renewed Motion for Dismissal , and on May 27 , 1982, a Motion for Summary Judgment under Fed . R . Civ. P . 56 with a supporting affidavit of David R . Clemens and a Memorandum in Support of such Motion . (CR 95-97) K . Judge McGovern denied the City of Renton's first Motion to Dismiss on May 5 , 1982 . On May 5 , 1982 , U . S. District Judge Walter T . McGovern filed his order approving and adopting the March 25 , 1982 Report and Recommendation of U . S. Magistrate Sweigert and denied the City of Renton's Lotion to Dismiss . (CR 77 ) 1 L . The City of Renton re-enacted Ordinance No . 3629 as a regular ordinance on June 14 , 1982 . On June 14 , 1982 , the City Council of the City of Renton enacted a third ordinance , No . 3637 , which was identical to Ordinance No . 3629 in all respects except that the emergency clause was deleted and the ordinance was to become effective thirty (30) days following its publication . ( CR 120 ) A copy of Ordinance No . 3637 is appended to this brief at page 56 . M . On November 5, 1982, Magistrate Sweigert recommended that the City of Renton's Motion for Summary Judgment and Renewed Motion to Dismiss be denied , and that the Plaintiffs' Motion for Preliminary Injunction be granted . - 14 - On June 23, 1982, U . S. Magistrate Sweigert heard the City of Renton' s renewed Motion to Dismiss plaintiffs ' amended complaint and its Motion for Summary Judgment as well as the Plaintiffs' Motion for Preliminary Injunction . On November 5 , 1982 , U . S . Magistrate Sweigert filed his "Report and Recommendation" and a proposed order: ( 1 ) Denying the City of Renton ' s Renewed Motion to Dismiss and Motion for Summary Judgment , and (2) Granting a Preliminary Injunction pending the conclusion of the litigation . (CR 142) N . The City of Renton filed a Petition for Writ of Mandate in the Court of Appeals on December 2 , 1982 . On December 2 , 1982 , the City of Renton filed a Petition for, Writ of Mandamus and/or Writ of Prohibition in the Ninth Circuit' Court of Appeals seeking an order directing remand of the states court Declaratory Judgment Action and requiring abstention and dismissal of the federal civil action filed by Plaintiffs in the district court on February 9 , 1982 . (See CA 82-7721 . ) 0 . On December 9 , 1982, U .S . Magistrate Sweigert filed a Supplemental Report and Recommendation . On December 9 , 1982 , Magistrate Sweigert filed a Supplemental Report and Recommendation, which ( 1 ) recommended remand of the state cou t declaratory judgment action; and (2) re-examined the effect of Middlesex County Ethics Committee v. Garden State Bar Association , U . S. , 102 S.Ct . 2515 , 73 L .Ed . 2d 116 ( 1982) , decided after denial of Defendants' first motion to dismiss , on the continued validity of that ruling . ( CR 151 ) - 15 - 1 P . On January 13 , 1983 , Judge McGovern entered an Order approving U . S. Magistrate Sweigert ' s Report and Recommendations . Plaintiffs commenced Operation as an "adult motion picture theater" . On January 13 , 1983 , the district court filed an "Order Denying Defendants' Motions to Dismiss and for Summary Judgment I and Granting Preliminary Injunction Pendente Lite" which: ( 1 ) • approved and adopted the Report and Recommendation of U . S . ' Magistrate Sweigert ; (2) granted Plaintiffs' Motion for Preliminary Injunction and enjoined enforcement of City of Renton, Ordinance No. 3637 against the Plaintiffs; (3) denied Defendants ' Motion for Summary Judgment and Renewed Motion to Dismiss ; and (4), granted Defendants ' Motion to Remand and remanded the City of Renton ' s state court declaratory judgment action to the state court . (CR 157 ) From January 27 , 1982 through January 19 , 1983 , Playtime Theatres had operated both the Roxy Theater and the Renton Theater as genera release motion picture theaters. On January 20 , 19831, Playtime Theatres commenced showing sexually explicit films ( "Deep Throat" and "Devil in Miss . Jones" ) at the Renton Theater and has continuously exhibited sexually explicit films since that date . Q . On January 24 , 1983 the City of Renton filed a Supplemental Pleading to its Petition for Writ of Mandate seeking a stay of the Preliminary Injunction issued on January 1.3 , 1983. On January 24 , 1983 , the City of Renton filed a supplemental petition in the Ninth Circuit Court of Appeals seeking additional relief in the form of a stayorder on the preliminary injunction which the district court had issued on January 13, 1983 . (See CA82-7721 . ) - 16 - R . The parties entered into a Stipulation to sever the Pilaintiffs ' claim for damages , and to submit the case for final determination upon the then existing record . On Fe ruary 8 , 1983 , a "Stipulation and Order" was filed ) severing the Plaintiffs' claim for damages , submitting the matter on the record and requesting an early hearing on the Plaintiffs' I motion for a Permanent Injunction . (CR 159 ) The effect of this stipulation was to close the evidence to be submitted to the) district court because " . . . the development of further testimony . . . would not materially add to the evidence already before the court relative to Plaintiffs' claims that Ordinance No . 3637 is u1constitutional . . . " (CR 159 , page 1 ) S . The Court of Appeals denied the City' s Petition for Writ of Mandate . On February 10 , 1983 , the Court of Appeals (Hug and Skopili, Circuit Judges) denied the City' s Petition for Writ of Mandate (C4 82-7721 ) on the grounds that the remand order of January 13 , 19831, had mooted that issue and that there were alternative means four I interlocutory review of the other issues . T . On February 17 , 1983 , the Preliminary Injunctionhe district court fild as ts final Order , vacatingas "improvidently granted", holding Renton Ordinance No . 3526 to be constitutional , and denying the motion for a Permanent Injunction . On February 10 , 1983 , the district court heard final argument on the Plaintiffs' Motion for a Permanent Injunction. On February 17 , 1983 , the district court entered its final order reversing its decision to grant the Preliminary Injunction and vac ted the same as "improvidently granted" , and denied the Plaintiffs' Motion for a Permanent Injunction . On February 18 , - 17 - 1983, the district court entered its judgment denying the City of Renton' s Motion to Dismiss for lack of jurisdiction and granting the City's Motion for Summary Judgment . (CR 168) On April 29 , 1983 , the district court entered an order denying Plaintiffs' motion to alter or amend the final order, and further denying a requested stay of the final order pending appeal of the order to the Ninth Circuit Court of Appeals . (CR 176 ) U . T,Ltice of Appeal . Notices of Appeal were filed by Plaintiffs on May 10 , 1983 . (CR 187 ) III . THE STANDARD OF REVIEW BY THIS COURT IS THE "CLEARLY ERRONEOUS" TEST REQUIRED BY FED . R. CIV . P . 52(a) . The standard of review in this case is the "clearly erroneous" test under Fed. R . Civ. P . 52(a) . Appellants ' ' arguments to the contrary ignore the recent decisions of this Court which state that review under the "clearly erroneous" test of Rule 52 ( a) " . . .must be afforded even where the trial is on depositions or stipulated facts . " United States v. Chesher , 678 F . 2d 1353 , 1358 , n . 3 ( 9th Cir . 1982 ) ; accord Steinsvik v ., Vinzant , 640 F . 2d 949 , 951 (9th Cir . 1981 ) ; see generally Lundgren v . Freeman , 307 F . 2d 104 , 114- 15 ( 9th Cir . 1962 ) ; see also Playtime Theatres , Inc . v. City of Tacoma, Ninth Circuit Court of Appeals Nb . 81-3544 (Wright , Hug and Schroeder , Circuit Judges) (unpublished opinion filed October 25 , 1982) . - 18 - IV . THE PLAINTIFFS' APPEAL IS BASED UPON AN INCORRECT CONSTRUCTION OF THE STIPULATION . ENTRY OF THE DISTRICT COURTS FINAL JUDGMENT WAS APPROPRIATE. At Pa t IV of Appellant' s brief , the Plaintiffs argue that there are disputed issues of material fact which would make entry of summary judgment inappropriate under Fed . R . Civ . P . 56 . The l Plaintiffs contend that they should be afforded an opportunity to present additional relevant and pertinent evidence . The Plaintiffs further contend that the stipulation which was entered, into by the parties on February 8 , 1983 , was a stipulation of agreed facts in the case . Nothing can be further from the truth . The stipulation (CR 159 ) simply closed the evidence on the issue of Plaintiffs ' claim . In the stipulation , the parties recited as follows : " . . . he development of further testimony before the court would not materially add to the evidence already before the court relative to Plaintiffs claims that Ordinance No . 3637 is unconstitutional . . . " Based upon that recital of facts , the parties stipulated that : " . . . the matters should be set for hearing by the court at the earliest available date . At such hearing , the matters shall be submitted to the court based upon the live testimony, affidavits , deposition testimony and exhibits previously heard and considered by Magistrate 11 Sweigert at the hearings held relative to Plaintiffs ' motions for temporary restraining order and preliminary injunction and Defendant ' s motions to dismiss Plaintiffs' complaint and for summary judgment . "3 . At such hearing , each of the parties reserve the 1 right to argue their theory of the facts and law to the court . " (CR 159 , page 2) A copy of the Stipulation and Order is appended to this brief at page 63 . - 19 - The stipulation , which was drawn by counsel for the Plaintiffs , was merely a stipulation that all of the evidence had been submitted, and that the issues were ready for decision by the district court following the argument of counsel . Plain iffs were apparently surprised when the district court changed its mind and vacated the previously "improvidently granted" Preliminary Injunction and entered final judgment against d them based upon its review of the record . However , such surprise is no excuse for their argument that ( 1 ) the findings as found by the Magistrate were a "basis" for the stipulation between the, parties ; and (2) that when the "findings" were changed, that the Plaintiffs should then be allowed to present additional evidence . All parties had previously stipulated that there was no further e idence which could be adduced to bear upon the issues' before the court . Both sides had closed their presentation of evidence and were proposing to submit the case to the court for decision following final argument, although the parties vigorously contended for different findings of fact and conclusion of law to be drawn from the record . Afte1 the entry of the district court ' s order and judgment op February 18, 1983, counsel for the City of Renton requested the district court to alter the judgment pursuant to Fed . R . Civ. P . 60(a) to correct a "clerical error" by deleting reference to the granting of summary judgment , and to characterize the opinion as a ruling on the merits following the trial of all issues . By letter dated March 1 , 1983 , the district court declined to alter the original ruling . (Copies of the City's request and the district - 20 - court's response are appended to this brief at pages 66-68 . ) The district court insisted that ( 1 ) summary judgment was appropriate on the record before the court, and (2) that , under the authority of Starsky v. Williams , 512 F. 2d 109 (9th Cir. 1975) , entry of summary judgment was appropriate in the light of the parties' stipulation to the close of evidence . This case is very like Starsky v. Williams , supra, where the trial court granted summary judgment under Fed . R . Civ. P . 56 . There the parties made extensive use of pre-trial discovery pro- ceedings to develop a complete record . This Court found that , in effect , the parties had agreed to try the case upon "affidavits , admissions and agreed documents . " at 113 . Therefore , the district court " . . .was free to decide all issues . . .and, in so deciding, to resolve factual issues . " At 111 . Southwest Forest Industries , Inc . v. Westinghouse Electric Corporation , 422 F . 2d 1013, 1017-18 (9th Cir . 1970 ) ; cert . den . 400 U . S. 902 , 91 S .Ct . 138 , 27 L . Ed . 2d 138 ; G_aspey v. Norris , 231 F . 2d 881 (9th Cir . 1956 ) . Therefore , the district court's alternative bases for ruling in favor of the City are correct . The Plaintiffs are bound by their stipulation that there is no additional relevant evidence which could be presented to the district court bearing upon the Plaintiffs' claims that the ordinance is .unconstitutional . V . THE FINDINGS OF FACT INCLUDED WITHIN THE DISTRICT COURT 'S WRITTEN OPINION ARE NOT "CLEARLY ERRONEOUS" AND ARE SUPPORTED BY THE RECORD. In Part V of the Appellants ' brief, the Plaintiffs argue that the district court made certain findings of fact which were - 21 - "clearly erroneous" and not supported by the record . A . laintiffs' first claimed erroneous finding is a misstatemeit of the district court's finding. The district court , found at p ge 6 , line 1 , that : "No theater had to be closed under Renton's ordinance , for iio theaters were operating or were considering operating when it was enacted . " (CR 167 ) This finding is absolutely true . Ordinance No . 3526 was adopted) on April 13, 1981 , (CR 16, page 5) more than nine (9) months priori to the time that Plaintiffs purchased the Renton and Roxy Theaters' and began the instant litigation on January 20 , 1982 . (CR 1 ) 1 B . Plaintiffs next claim that the district court' s finding that there are 520 acres of land available for development as an adult the ter is unsupported by the affidavit and testimony of David Clemens . The affidavit of David Clemens , (CR 97, page 2 , line 19) states as follows : "The total area within the solid colored areas [the land available for development as an adult motion picture theater] is 520 acres . Included in the 520 acres is 27 acres of City property, 22 acres as a green belt area and 5 acres as a proposed fire station site . " See also the transcript of Mr . Clemen ' s testimony on June 23„ 1982 . (Su p . Excerpt of Record, tab B-2, pages 51-62) Under Starsky' v . Williams , supra , the district court was entitled to resolve factual issues presented by the evidence as submitted, including the suitability of the sites for development . Plaintif s ' claims of inconvenient access are rebutted by the testimon of Roger H. Forbes , the sole shareholder, director and officer of both corporate Plaintiffs . At his deposition taken on May 27, 1982, Mr . Forbes testifed that one of his most profitable j - 22 - adult theaters was the Point Roberts Theater . Point Roberts is a tiny village , population approximately 250 persons , located on an ithsmus of land separated from the mainland of the State of Washington and bounded on the North by the Canadian border . By Mr . Forbes' own statement , patrons from Vancouver , B . C . , must drive for "20 minutes , 25 minutes , 30 minutes . Some place in there , " to view adult motion picture films exhibited by the Plaintiffs . (Supp . Excerpt of Record , tab B-2 , R .T . of deposition , testimony of Roger H. Forbes read into record at hearing on June 23 , 1982 , page 92 , line 11 ) . There ore the district court' s finding of available sites for development of an adult motion picture theater cannot be said to, be "clearly erroneous" . C . The Plaintiffs argue that it was improper for the district court to find that "observed affects in nearby cities' provides persuasive circumstantial evidence of the undesireable secondary affects" of adult motion picture theaters , (CR 167 , page 10 , line 16) and that the City' s concern was the prevention of these undesirable secondary effects (CR 167, page 11 , line 10 ) ' These findings by the district court are founded upon the actual finding by the City Council of the City of Renton that : "experience in numerous other cities , including Seattle , Tacoma and Detroit , Michigan, has shown that the location of adult entertainment land uses degrade the quality of the area of the city in which they are located and cause a blighting effect upon the city. The skid row effect , which is evident in parts of Seattle , and other cities , will have a significantly larger effect upon the City of Renton than other major cities due to the relative sizes of the cities . " Ordinance 3637, page 3, finding number 14) . - 23 - See also Affidavit of Gary F . Kohlwes , Superintendent of Renton School District (CR 15 ) ; Affidavit of David R . Clements , Policy Developmenti Director of the City of Renton (CR 16 ) . The Plaintiffs erroneously contend that the City must conduct a study and gather expert testimony and empirical evidence before it can enact an adult use zoning ordinance . Contrary to that contention , identical ordinances need not be tested anew each time such an ordinance is enacted by a different governmental entity . Genusa v . City of Peoria , 619 F . 2d 1202 (7th Cir . 1980 ) . As recently pointed out by this court: "Enactment of a zoning ordinance is a legislative act , Eastlke v. Forest City Enterprises , Inc . , 426 U . S. 668 , 673-674 ( 1976 ) , Kuzinich v. County of Santa Clara , 689 F . 2d 1345 (9th Cir. 1982Y, and great latitude is given to legislative bodies in the procedures they may use in factfinding . " Ebel v. City of Corona , 698 F .2d 390 , 392-3 (9th Cir . 1983) . There is no constitutional requirement that each successive city independently establish the effect of the deleterious land use . See City of Whitaker v. Walnut Properties , Inc . , 139 Cal . App . 3d 618 , 189 Cal . Rep . 12 ( 1983) where the California Court of Appeals , Second District , Division IV , held on this identical issue , at page 18 : "The city must buttress its assertion with evidence that the state interest has a basis in fact and that the factual basis was considered by the city in passing the ordiinance . ( Avalon Cinema Corporation v . Thompson , supra, 667 F .2dd659 , 661 . However , identical ordinances need not be tested anew each time they are enacted by a different governmental entity by establishing the actual existence of local conditions which would justify it . " . . . lawmakers in one local [should not be denied] the benefit of the wisdom and experience of lawmakers in - 24 - another community , no matter how similar the circumstances . . . . " (See County of Sacramento v . Superior Court Goldies Book Stores , Inc. , 137 Cal App . 3rd 448 , 454-455 , 187 Cal . Rep . 154 ( 1 982 ) ) . "The factual basis behind certain types of certain zoning laws , insofar as those zoning laws require dispersal or deconcentration , has been developed by testimony in other cases . Sociologists and urban planners have testified that a concentration of adult movie theaters in limited areas leads to the deterioration of surrounding neighborhoods . (See Young v. American Mini Theaters , supra, 427 U .S. 50 , at page 80 , 96 S .Ct . 2440 , at page 2457 , '49 L . Ed . 2d 310 ) . This testimony is sufficient and the city need not bring their own sociologist to apply these observations to the City of Whitaker . " In view of the fact that the Renton City Council had before it the same "model" zoning ordinance which was at issue in, Northend Cinemas , Inc . v. City of Seattle , 90 Wn . 2d 709 , 535 , P . 2d 1153 ( 1978 ) , and Young v. American Mini Theaters , 427 U .S . 50 , 96 S .Ct . 2440 , 49 L .Ed . 2d 310 ( 1976 ) , it had every right to take' notice of the findings of the trial court and the conclusions of law of the Washington State Supreme Court and the United States Supreme Court , upholding those findings . See in this regard , Weiner v. Mitchell , et al . , 114 Cal . App . 3d 35 , 170 Cal . Rep . 533 , where the California Court of Appeals , Second District ; Division , stated : " . . .we hold that it was proper for the trial court and it is proper for us . . . to take appropriate judicial notice of both the pertinent facts stated in the appellate opinion and of the , judgment in the aforementioned U .S . v. Weiner, supra , 578 F . 2d 757 (Cf Est to of Guerin , ( 1961 ) 194 Cal . App. 2d 566 , 569 , 15 Cal. Rptr . 512) ." at 537 . The Supreme Court of the State of Washington, in Northend Cinemas , Inc. , supra, stated at 1195 : - 25 - �� testimonyregarding the . . te record is replete with g g effects of adult movie theater locations on residential neighborhoods . The evidence is more than adequate to support the finding below that the goal of the ordinance is to preserve the character and quality of residential life in the city. . . " . .we conclude the city' s paramount interest in protecting, preserving, and improving the character and quality of its residential neighborhoods is sufficient to justify this non-discriminatory zoning regulation of the location of adult movie theaters . " Governmental bodies are not required to re-invent the wheel ' countless times over when mere access to common knowledge would render the considerable effort involved unnecessary . County of Sacramento v. Superior Court , 137 Cal . App . 3d 448 , 187 Cal . Rep. ' 154 ( 1982) . Testimony before the City Council consistently noted,' the adverse impact upon neighborhoods and businesses when an adult entertainment land use was situated in close proximity to residences , schools , churches , public or quasi-public uses , and businesses . (CR 16 , pages 3-4 ; Supp . Excerpt of Record, tab B- 1 , R . T . of testimony of David R . Clemans on January 29 , 1982 , pages 30-40 ) From this testimony the City Council was justified in drawing the findings made by it and expressed in the preamble to Ordinance Nos . 3629 and 3637 . The district court 's finding of observable undesirable secondary affects of adult motion picture theaters is grounded in the record and is based upon the common sense understanding, by the City Council of the City of Renton of I the deletierious effects which were to be' avoided by the enactment of this legislation . D . Plaintiffs further claim that the district court's finding hat the enactment of the Ordinance was not motivated by hostility toward protected ted speech (CR 167 , page 11 , line8 ) was - 26 - contrary to the weight of the evidence . On the contrary, there was no evidence before the district court to indicate any improper motive on the part of the City . In other cases where courts have found an improper motive , the record has reflected that action was taken to regulate adult theaters after application was made for a development permit for such a theater, Kuzinich v. County of Santa , Clara , 683 F . 2d 1345 ( 9th Cir . 1982 ) ; Avalon Cinema Corp . v . Thompson , 667 F . 2d 659 ( 8th Cir . 1981 ) , or the record has contained evidence of overt intentions of the city officials to frustrate development of an adult theater, Tovar v. Billmeyer , F . 2d (9th Cir. No . 82-358 , decided December 15 , 1983 ) , or to completely proscribe protected expression within the city . Schad v . Borough of Mt . Ephraim, 452 U.S 61 , 101 S.Ct . 2176 , 68 L .Ed . 2d 671 ( 1981 Keego Harbor Co . v . City of Keego Harbor , 657 F .2d 94 ( 6th Cir . 1981 ) ; Basiardanes V. City of Galveston , 682 F . 2d 1203 ( 5th Cir . 1983 ) . No such intent existed on the part of the officials of the City of Renton . For that reason , Plaintiffs were unable to adduce any evidence before the district court to establish such an improper motive . On the contrary, the district court approved the City Council's predominant concern over the . . .evidence of adult land uses ' effects in nearby cities . " (CR 167, page 12, line 1 ) The ordinance was adopted after a period of study of eleven ( 11 ) months, and after public hearings at which comments from the general public ' were received . Furthermore , the ordinance was adopted at a time when no adult theaters were in existence in the City of Renton . These facts clearly militate against any - 27 - i inference of improper motive on the part of the City Council in the enactment of the zoning ordinance . The rcord here must be compared with the record in Tovar , supra , a case recently decided by this Court in which ( 1 ) the City I Council adopted a new interpretation of a zoning ordinance; (2) ) ordered that a building permit for an adult theater be denied before application was made ; (3) the Mayor testified at his deposition " . . . that the primary purpose of the City Council ' s zoning decision was to prevent Plaintiff's theater from operating' ' in Pocatello" ; (4) the Mayor' s deposition testimony further ' indicated that he called a special meeting of the City Council without notice , before the theater operator had opportunity to apply for the required permits and license " . . . to see what the City Council could do about getting the . . . theater out of Pocatello'' ; and , (5) members of the City Council testifed that there had never been another instance in which the City Council had held a meeting to deny a building permit , and that "under most circumsta ces , it would be improper for the Council to act in such a way" . Tovar , supra , at 5850-1 . As also recently reiterated by this Court in Ebel v. City of Corona , 698 F .2d 390 (9th Cir . No . 82-5056 , decided February 1 , 1983) , " [e]nactment of a zoning ordinance is a legislative act , Eastlake v. Forest City Enterprises , Inc. , 426 U . S . 668 , 673-674 ( 1976) , Kuzinich v. County of Santa Clara , 689 F . 2d 1345 ( 9th Cir . 1982) , and great latitude is given to legislative bodies in the procedures they may use in factfinding ." at 392-3 . - 28 - I Neithe does the fact that the ordinance focuses only upon adult thea ers to the exclusion of other adult uses implicate any hostility toward protected speech . The fact that other adult , business might have been included in this zoning effort but were not does tL.t create an arbitrary or illegal classification . , Northwestern Laundry v. Des Moines , 239 U .S . 486, at 495 , 60 L. Ed . 396 ( 1915 ) . The City is under no obligation to correct all of the evils perceived at one time and in one enactment . City of New ' Orleans v. Dukes , 472 U . S. 297 , 96 S .Ct . 2513 , 49 L .Ed . 2d 511 ( 1976 ) ; Katzenbach v. Morgan , 384 U .S. 641 , 675 , 86 S .Ct . 1717 , 16 L . Ed . 2d 828 ( 1966) (Brennan, J . ) . E . inally, the Plaintiffs casually challenge the district, court ' s f ' ndin.g that the enactment of the ordinance is only "minimall intrusive" upon protected expression (CR 167 , page 12,1 line 23) . The finding of "minimal intrusion" is the linch pin which and rgirds the decision in Young . As discussed previously at pages 22-23 , ample areas for location of an adult theater exist within the City of Renton under the regulation imposed by th4 ordinance ( CR 97 , page 2 ; Supp . Excerpt of Record , tab B-2 , R .T of testimony of David R . Clemens on June 23, 1982, page 51 -62) Furthermore , the area available within the City of Renton for development of an adult theater is much . greater than in the City of Seattle . The City of Renton , with a total area of 9 , 632 acres (CR 16 , page 2, line 26 ) has 520 acres available for development . The City of Seattle , with a total area of 56 , 320 acres , has only an area of 250 acres in which an adult motion picture theater may - 29 - be located in conformity with the zoning code . (CR 16 , page 6 , line 16) Finally, access to protected expression is readily available to the reridents of the City of Renton through adult motion ers manyof which are operated bythese Plaintiffs , theat , p located in the City of Seattle and throughout King County . (CR 16 , page 7 , line 1 ) Therefore , the district court correctly found that Ordinance No . 3526 , as amended , had avoided the pit falls of Schad v . Borough of Mt . Ephraim, 452 U . S . 61 ( 1981 ) , and Keego Harbor Co . v . City of Keego Harbor , 657 F . 2d 94 (6th Cir . 1981 ) , [where protected expression was actually excluded from the City, ] and Basiardaneis v. City of Galveston, 682 F . 2d 1203 (5th Cir . 1982 ) , [where the available sites for development were so inconvenient and undesirable that the court found a de facto exclusion from the city] . Justice Powell noted in his concurring opinion in Young: "The constraints of the ordinance with respect to location may indeed create economic loss for some who are engaged in this business . But in this respect they are affected no differently than any other commercial ente prise that suffers economic detriment as a result of 11.1 nd-use regulation . The cases are legion that sustained zoning against claims of serious economic damage . ( citations omitted) " "The inquiry for first amendment purposes is not concerned with economic impact ; rather, it looks only to the effect of this ordinance upon freedom of expression . " At 78 - 79 . The City of Renton is not required to provide developed "turn-key" property for the Plaintiffs to occupy in the exhibition of their film fare . Such a preposterous notion would not be - 30 - advanced ven by a newspaper publisher who would be required toi locate his printing operation in conformity with zoning restrictions of the city . The district court found at page 6 , line 17 : "The effect of Renton ' s ordinance is plaintiffs or others wishing to exhibit adult film fare and not having a theater already built and ready for occupancy , must consiider whether the demand is such that construction of a thelater is feasible . This impact is no different than Lthat upon other land users who must work with what land is a ailable to them in the City . With a large percentage of land within the City available to plaitiffs , the financial feasibility of the various locations is for them to analyze . To conclude otherwise would be to place a burden on the city that Constitutional analysis does not require . Moreover , the message of no individual or group has been silenced . The number of such establishments has not been reduced because none existed and none were attempting to establish themselves in Renton prior to the ordinance . The ordinance merely specifies where adult theaters may not locate and in doing so , stifles no expression . ( citation omitted) . " (CR 167) Ther fore , the opinion of the district court below and the findings of fact expressed therein are not erroneous in any respect and are fully supported by the record . Under the rule set forth in U . S. v . U . S. Gypsum Co . , 333 U .S. 364 , 68 S .Ct . 525 , 921 L . Ed . 746 ( 1948 ) , for definition of the term "clearly erroneous" , this Court cannot find , after review of the entire record , that it " . . . is left with the definite and firm conviction that a mistake' has been committed . " ( emphasis added) . Upon review by this Court , the findings of the district court are binding upon this Court and must control the disposition of this appeal . Fed. R . Civ. P . 52(a) . - 31 - VI . THE DISTRICT COURT DID NOT SHIFT THE BURDEN OF PROOF TO THE PLAINTIFFS TO SHOW A SUBSTANTIAL IMPOSITION ON FIRST AMENDMENT PROTECTED EXPRESSION . Part VI of the Appellants' brief argues that the district court improperly shifted to the Plaintiffs the burden of proving that the ordinance had no more than an "incidental impact" upon First Amendment protected expression . The argument is based upon the district court ' s reference in its opinion to a lack of evidence showing that secondary effects of adult land uses in the City of Renton would be different or lesser than in surrounding cities . (CR 167, page 10, line 7 ) . This reference in no way effects the burden of proof. The district court simply found, based upon all of the evidence before the court , that potential adult theaters , including the Plaintiffs' , were " . . . not virtually excluded from Renton. . . " (CR 167, page 7, line 11 ) . Compare Basiardanes v. City of Galveston , 682 F . 2d 1203 (5th Cir . 1982) . The burden of proof imposed upon the City to establish no more than "minimal intrusion" upon protected expression was borne by the City. Plaintiffs voluntarily incurred their substantial investment in the Renton and Roxy Theaters with knowledge that the use to which the proposed to put the theaters was a violation of the zoning code of the City of Renton . Plaintiffs made no effort to bring their land use into conformity with the zoning code of the City of Renton by exploration of alternative locations within the City where an adult motion picture could legally be located . (Supp . Excerpt of Record , tab B-2 , R .T . of deposition testimony of - 32 - I Roger H. Forbes , read into record at hearing on June 23 , 1982 , page 90 , line 17 - page 91 , line 1 ) The district court's finding that a significant portion of the City of Renton is available for development as an adult motion picture theater is supported by substantial evidence and is unassailable on this appeal ., Therefore, the self-inflicted economic burden which the Plaintiffs have assumed by their actions do not create a defect in the zoning regulation of protected speech in the City of Renton . The district court properly assessed the burden of proof in making the decision complained of . VII . THE RENTON ZONING ORDINANCE DOES NOT CREATE A STATUTORY CLASSIFICATION THAT IS NOT RATIONALLY RELATED TO A VALID PUBLIC PURPOSE OR NECESSARY TO THE ACHIEVEMENT OF A COMPELLING GOVERNMENTAL INTEREST . In Part VII of the Appellants ' Brief, the Plaintiffs raise the argument , discarded in Young v. American Mini Theaters , supra,) that zoni g ordinances such as in Young, Northend Cinema , Tacoma and Renton are constitutionally defective under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment in that a classification of theaters is made upon the basis of the content of the films shown , and that adult motion picture theaters are treated differently from other theaters showing films protected by the First Amendment . The Renton ordinance does not infringe on rights of free speech and equal protection for the reason that the ordinance has only a s ight or neutral effect on protected speech . The ordinance regulates only the place where films may be shown based upon the finding by the City Council that the public welfare is - 'R'R - , l best supported by location of these uses , and the secondary affects that flow therefrom, in certain parts of the community.' The ordin nce places no restriction on the content of movies that are shown once the theater is placed in the appropriate location . As in Young , no censorship is involved; nor is the ordinance a disguised form of censorship . While the classification is based upon content , it is done only for the legitimate purpose of regulation of the place of exhibition in the interest of preventing deleterious secondary effects of such theaters in the family-orilented areas of the City of Renton . This slight or neutral effect is clearly justified by the City's interest in the preservation of the quality of its family oriented neighborhoods through effective land use planning . Ultimately , that is one of the fundamental obligations of a municipal government to the residents of the city . See Village of, Belle Terre v. Borass , 416 U.S. 1 , 94 S .Ct . 1536 , 39 L .Ed . 2d 797 ( 1974 ) . This function , and experimentation with alternative solutions to this "admittedly serious problem" is likewise to be accorded high respect . Young, at 71 . Therefore , there being a rational relationship between the classification and the attainment of the valid public purpose and compelling governmental interest , the zoning scheme as established under the ordinance falls within the protection of the decision of Young . - 34 - VIII . PLAINTIFFS CITE NO AUTHORITY FOR THE PROPOSITION THAT A FAILURE TO INCLUDE OTHER ADULT BUSINESSES WITHIN THE SCOP OF THE ORDINANCE IS A DENIAL OF EQUAL PROTECTION . Part VIII of the. Appellants' Brief argues that the ordinance constitut s a denial of equal protection for the reason thatthe ordinance singles out adult theaters for regulation without) dealing with other land uses which may have similar operational characteristics . However , Plaintiffs do not cite a single case to establish such rule . In fact , the rule is to the contrary . ; The fact that other adult businesses might have been included in thi ordinance but were not does not create an arbitrary or illegal classific tion . Northwestern Laundry v. Des Moines , 239 U.S . 486 , at 495 , 6 L . Ed. 396 ( 1915 ) . The City is under no obligation to correct all of the evils perceived at one time and in ! one enactment City of New Orleans v. Dukes , 472 U .S . 297 , 96 S. Ct . 2513 , 49 . Ed . 2d 511 ( 1976 ) ; Katzenbach v. Morgan , 384 U .S . 1641 , 657 , 86 S .Ct . 1717 , 16 L .Ed. 2d 828 ( 1966 ) (Brennan , J . ) . In ny event , the regulation of stores selling films protected by the First Amendment for non-commercial exhibition in the priv cy of a residence , could implicate serious questions involvin the right of privacy which need not be raised , no discussed in the context of the zoning regulation of adult mo,tio picture theaters which hold themselves out for commercial, an public ex ibition of sexually explicit films , as is the case ;with the propo ed land use of the Plaintiffs . See Stanley v. Georigia, 394 U .S. 557 , 89 S .Ct . 1243 , 22 L .Ed . 2d 542 (1969 ) , as to the - 35 - right to view even obscenity in the home under the right of privacy. The district court correctly construed the ordinance under the four-part test set forth in United States v. O 'Brien , 591 U. S . 367 , 88 S .Ct . 1673 , 20 L .Ed . 2d 672 ( 1968 ) . First , enactment of the zoning ordinances is within the police power of the City of Renton . The City of Renton has the power to regulate zoning within the City of Renton , and to declare what shall be a nuisance . R .C.W. 35A .63 . 100 ; 35A . 11 .020 ; 35 . 22 . 280 . Secondly, as noted by Justice Powell in Young, the interest furthered by the adoption of the zoning ordinance is important and substantial , and " . . . is perhaps ' the most essential function performed by local governement , for it is one of the primary means by which we protect that sometimes difficult to define concept of quality of life' . Village of Belle Terre v. Borass , 416 U .S . , at 13 , 94 S. Ct . , at 1513 (Marshall, J . , dissenting) . " Youna, at 80 . Thirdly, the district court properly found that the governmenital interest asserted by the City of Renton was entirely, unrelated to suppression of free expression . The zoning ordinance was enacted over nine months before the Plaintiffs announced their intention to operate an adult motion picture theater within the city, and after a period of study which pre-dated the enactment of the ordinance by nearly another year . Based upon its review of the record , the district court found that "the governmental interest is unrelated to the suspression of free expression . . . " (CR 167, page 11 , line 8) . - 36 - Finally, the incidental restriction upon Plaintiffs ' claimed First Amendment rights is not greater than essential . The area of restriction is the family-oriented areas of the City. The "use" which is proscribed within that area is a "continuing course of conduct" of commercial exhibition of depictions of sexual conduct in a manner which appeals to a "prurient interest" . Incidental or " innocent" exhibitions of sexually explicit material are not regulated by this ordinance . Only the continuous commercial exhibition of sexually explicit material is regulated in order to carefully accomplish the prevention of deleterious secondary affects which have been observed in other cities , and to protect the quality of life enjoyed by the residents of the City of Renton . IX. THE DEFINITION OF "USED" IS NOT IMPERMISSIBLY VAGUE IN VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION . Plaintiffs have argued in Part IX of Appellants ' Brief that the definition of the word "used" enacted in Ordinance Nos . 3629 and 3637 is unconstitutionally vague . The definition is as follows : "The word ' used ' in the definition of ' Adult motion picture theater' herein, describes a continuing course of conduct of exhibiting ' specified sexual activities ' and specified anatomical area[s' ] in a manner which appeals to a prurient interest . " Ordinance No . 3637 , page 6, appended to this brief at page 56 . In reviewing the definition three elements appear : ( 1 ) a continuing course of conduct; (2) of exhibiting "specified sexual activities" and "specified anatomical areas" ; ( 3 ) in a manner which appeals to a prurient interest . "Continuing course of conduct" is not vague with respect to these Plaintiffs because they admit that their exhibition of "specifie sexual activities" and "specified anatomical areas" in sexually explicit films has been continuous since January 20 , 1983 . See Answers to Interrogatories and Requests for Admission filed by Plaintiffs in the state court enforcement action and appended to this brief at pages 69-74 . For each of the films listed in answer to Request for Admission No . 10 , appended at page 69 of this brief , the Plaintiffs admitted that the films were "distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual conduct and exhibition of specified anatomical areas . " Answer to Request for Admission No . 12( d) , appended at page 74 of this brief . The identical answers with respect to all other films referred to the Answer to Request for Admission No. 10 are omitted for sake of brevity . Plaintiffs admit to having exhibited material characterized by an emphasis on " specified sexual activites" and "specified anatomical areas" since January 20 , 1983, continuously to the date of the answer to interrogatories ( such exhibition has continued to ! the date of filing of this brief) . "Specified sexual activitiesf and "specified anatomical areas" , as defined in the Renton ordinance , are taken verbatim from definitions approved in Young, supra , at footnote 4 , page 53 . Plaintiffs' arguments against the "continuous course, of conduct" clause are conclusively dealt with in Young, supra, where the court rejected "vagueness" claims against the Detroit - 38 - Ordinance by application of the rule of law expressed in Erznoznik v . City of Jacksonville , 422 U .S. 205 , at 216 , 95 S .Ct . 2268 , 45 L . Ed . 2d 125 ( 1975) , that "if the statutes' deterrent affect on legitmate expression is not ' both real and substantial ' and if the statute is ' readily subject to a narrowing construction by the state courts'" then the litigants would not be "permitted to assert the rights of third parties" in the abstract . See also Village of Hoffman Estates v. Flipside , Hoffman Estates , Inc . , 455 U .S . 489 , 102 S. Ct . 1186 , 71 L . Ed. 2d 362, 369 ( 1982) . The Young court , at 58, states as follows : "We find it unnecessary to consider the validity of either of these arguments in the abstract . For even if there may be some uncertainity about the affect of the ordi ances on other litigants they are unquestionably applicable to these respondents . The record indicates that both theaters proposed to offer adult fare on a regular basis . Neither respondent has alleged any basis for claiming or anticipating any waiver of the restriction as applied to its theater . It is clear , therefore , that any element of vagueness in these ordinances has not affected these respondents . To the extent that their challenge is predicated on inadequate notice resulting in a denial of procedural due process under the Fourteenth Amendment , it must be rejected . Cf . Parker v . Levy , 417 U . S . 733 , 754-777 , 94 S . Ct . 2547 , 41 L . Ed . 439 . "Because the ordinances affect communication protected by the First Amendment , respondents argue that they may raise the vagueness issue even though there is no uncertainty about the impact of the ordinances on their own rights . On several occasions we have determined that a defendant whose own speech was unprotected had standing to challenge the constitutionality of a statute which purported to prohibit protected speech or even speech arguably protected . This exception from tradiltional rules of standing to raise constitutional issues has reflected the Court ' s judgment that the very existence of some statutes may cause persons not before the court to refrain from engaging in constitutionally protected speech or expression . See Broadrick v . Oklah10ma , 413 U . S. 601 , 611 -614 , 93 S . Ct . 2908 , 37 L .Ed . 2d 830 . The exception is justified by the overriding importance of maintaining a free and open market, for the - 39 - interchange of ideas . Nevertheless , if the statutes deterrent effect on legitimate expression is not ' both real and substantial , ' and if the statute is ' readily subject to a narrowing construction by the state courts , ' see Erznoznik v. City of Jacksonville , 422 U . S. 205 , 216 , 95 S . Ct . 2268 , 2276 , 45 L . Ed . 2d 125 , the litigant is not permitted to assert the rights of third partiles ." (emphasis added) The last element of the definition of "used" is the requirement of exhibition in a "manner which appeals to a prurient interest" . The term "prurient" is the specific point of attack by Plaintiffs . "Prurient interest" has a specific meaning . Roth v. U . S. , 354 U. S. 476 ( 1957 ) . This Court recently reaffirmed the definition of "prurient iterest" in the case of J-R Distributors ,', Inc . v. Eikenberry, F . 2d (9th Cir . No . 82-3441 , decided February 6 , 1984 ) , where it stated: "We agree with these decisions and reaffirm that , under the first-prong of the Miller test , a 'prurient interest' is ' a shameful or morbid interest in nudity, sex or excretion' . " Slip opinion, at page 20 . Each of the elements of the word "used have specific and definite meanings under the law or as applied to Plaintiffs . The definition is not impermissibly vague under the First and Fourteenth Amendments to the United States Constitution . X . THE ORDINANCE DEFINITION OF "ADULT MOTION PICTURE THEAER" IS NARROWLY DRAWN AND IS NOT OVERBROAD . In Part X of Appellants ' Brief, the Plaintiffs argue that the ordinance is overbroad and has a tendency to "chill" the First Amendment rights of others , notably the Renton Public Library which is operated by the City of Renton . Plaintiffs argue that the definition of "specified anatomical areas" could bring the collection of legitimate literature at the Renton Public Library - 40 - within the definition of an "adult motion picture theater" if any portion o that collection were devoted to depictions of sexually oriented aterials . This argument is specious in view of the the7 material be "distinguished requirement that or characterized by an emp asis on matter depicting, describing or relating to ' specified sexual activities' or ' specified anatomical areas ' . . . for observation by patrons . . . . " Ordinance No . 3526 The further restrictive definition applied to the word "used"' which was adopted by Ordinance No. 3629 requires that the depiction of "specified sexual activities" or "specified anatomical areas" be exhibited as a "continuing course of conductO and "in a manner which appeals to the prurient interest . " Ordinance No. 3629 . Therefore, the definition of "adult motion picture theater" is narrowly drawn and does not sweep within its ambit legitimate establishments which are not proper subjects for, regulation under the ordinance . XI . THE ENTON ZONING CODE DOES NOT CONSTITUTE A PRIOR RESTRAINT UPON EXHIBITION OF SEXUALLY EXPLICIT MATERIALS WITHOUT A GUARANTEE OF PROCEDURAL SAFEGUARDS . In Part XI of the Appellants ' Brief, the Plaintiffs argue that the Renton zoning code constitutes a prior restraint because it requires the exhibitor of sexually explicit film fare to, request a "special use" zoning change before locating an "adult motion picture theater" in the business district of the City . Plaintiffs ' argument is founded upon their misconstruction of ' the' zoning code in that they assert that there is no zone - 41 - classification within the City of Renton where an "adult motion picture theater" may locate as a matter of right . It is true that at the time of the institution of this lawsuit and Plaintiffs ' threat to commence a land use as an "adult motion picture theater" that the B-1 (business) zone did not list a motion picture theater as an expressly permitted use . However , that does not of necessity indicate that Plaintiffs are required to obtain a conditional use permit to operate an "adult motion picture theater" (or any motion picture theater) in the B- 1 orl more intensive land use zones within the City of Renton . The evidence before the district court established at the very firs hearing before the Magistrate on Plaintiffs ' Motion for' a Temporary Restraining Order, that the City of Renton' s administrative position was , and always had been , that motion picture beaters were a permited use in the business land use zones within the City. See Supp . Excerpt of Record , tab B-1 , R .T . of testimony of David Clemens on January 29 , 1982, page 60, line 4 ; and Supp . Excerpt of Record , tab B-2 , R . T . of testimony of David Cle ens on June 23, 1982, page 72, line 6 ; and testimony of David Clemens at deposition taken on March 3-4 , 1982 , Vol . I , page 73, line 8 - page 75, line 10 (Excerpt of Record, tab "C" , Exhibit 2 , pages 26-28) . This position was based upon the language of the zoning code which authorized the existence of land uses "similar" to the uses expressly listed as permitted uses . (Excerpt of Record , tab "C" , Exhibit 3) In fact , the very buildings which the Plaintiffs purchased for operation as an "adult motion picture theater" had been operated by Plaintiffs ' predecessors in interest - 42 - for over thirty (30 ) years as legal conforming uses as general release m tion picture theaters . In any event , any appeal from the administrative determina ion by the City of Renton of whether a use is an allowed, use must be made to the hearing examiner of the City of Renton within ourteen ( 14) days following the admininstrative determina ion . The hearing examiner decision on the appeal is likewise subject to review by the King County, Washington , Superior ourt by writ of review filed within twenty (20) days after the date of the decision by the hearing examiner . Relntor Code of General Ordinances , Section 4-3011 (B) (5) . Appeals from the administrative determinations are not appealed to the City Council . Therefore , the Plaintiff is not subject to a standardless , discretionary administrative , procedure of potentially unlimited duration . The ordinances are not facially vague and overbroad as a prior restraining system. XII . THE JUDGMENT OF THE DISTRICT COURT WHICH DENIED I PLAINTIFFS' MOTION FOR A PERMANENT INJUNCTION SHOULD BE AFFIRMED , BUT FOR A DIFFERENT REASON . The judgment of the district court entered on February 18 , e?'r 1983, rea s , in part , as follows : " . . . it is ordered and adjudged that plaintiffs ' prayer for ermanent injunction is DENIED, City of Renton.' s moti n to dismiss for lack of jurisdiction is DENIED and , City of Renton's motion for summary judgment is : 1 GRAN ED . " (CR 168) The City of Renton contends that the part of the judgment which denied the Plaintiffs' Motion for a Permanent Injunction should be affirmed but for a different reason than that assigned - 43 - by the district court . See Massachusetts Mutual Life Ins . Co . v. Ludwig , 426 U. S. 479 , at 480 , 96 S .Ct . 2158 , 48 L .Ed . 2d 784 , at 786 ( 1976 ) . The district court made its finding that Renton' s ordinance was cons'Jitutional after a trial on the merits and on an "as applied" basis . As a part of granting the City of Renton' s Motion for Summary Judgment , it must necessarily follow that the district court found the ordinance to be constitutional on its face . Therefore the district court was required , under rudimentary principles of stare decisis and the overwhelming body of case law authority, to dismiss the federal lawsuit for failure to state a claim upon which federal relief can be based--at least insofar as Plaintiffs' claims for a civil rights cause of action is concerned . Young v. American Mini Theatres , 427 U. S . 50 , 97 S . Ct . 191 , 49 L . Ed . 2d 310 ( 1976 ) ; Martinez v. California , 444 U.S . 277I, 285, 100 S. Ct . 553 , 62 L . Ed . 2d 481 , 489 ( 1980) ; Allen v. McCurry , 449 U .S. 90 , 100-101 , 101 S.Ct . 441 , 66 L .Ed . 2d 308 , 317 ( 1980 ); Parratt v. Taylor , 451 U . S. 527 , 543-544 , 101 S.Ct . 1908 , 68 L .Edi. 2d 420 , 434 ( 1981 ) . CONCLUSION The district court ' s decision must be affirmed . First , because the ordinance is constitutional . . Second, on other grounds than the basis of the district court ' s decision , because the district court should have abstained from exercising its jurisdiction when the City of Renton refused to consent to the determination of these "vital state interest" issues in the - 44 - federal court when state court proceedings were pending wherein the issue could be determined . The district court ' s findings properly characterized the ordinance as being in accord with the zoning regulation approved in Young v . American Mini Theaters , 427 U . S . 50 ( 1976 ) and Northend Cinemas , Inc . v . City of Seattle , 90 Wn . 2d 709 , 585 P . 2d 1153 ( 1978 ) . The impact upon protected expression is minimal for no existing adult theater operations were affected , and there exists within the city 520 acres of land in all stages of development available for location of an adult motion picture theater . The ordinance does not preclude the operation of an adult motion picture theater within the City of Renton, nor, in view of the availability of development possibilities , does it effectively exclude development of such a theater . Therefore , the pitfalls of Schad v. Borough of Mt . Ephraim, 452 U.S . 61 ( 1981 ) , and Basiardanps v. City of Galveston , 682 F . 2d 1203 (5th Cir. 1982) , have been avoided by the Renton ordinance . As in Young , the incidental or minimal impact upon protected expression imposed by the ordinance is justified under the four-part test set forth in United States v. O 'Brien , 591 U.S . 367 ( 1968 ) . In particular , the substantial governmental interest sought to be furthered by the regulation is completely unrelated to the suppression of free expression (it is not a disguised form of censorship) , and the governmental restriction is not greater than necessary to accomplish the governmental interest of - 45 - preservat ' on of the quality of life of the residents of the, family-or' ented areas of the City of Renton . I It cannot be said that the district court ' s findings of - justification of the regulation in the legislative history of the ordinance are "clearly erroneous" . The findings of fact incorporated into the district court's opinion are supported by the record and mandate affirmance of the district court ' s decision . Therefore , for the reasons set forth herein , this Court should affirm the judgment of the district court which granted the motion of the City of Renton for Summary Judgment of dismissal of the Amended and Supplemental Complaint filed by the Plaintiffs in the distr1Lct court.. DATED : February 15 , 1984 . Respectfully submitted , LAWRENCE J . 0 RREN d' DANIEL LLOGG , of Warren & Kellogg , S . Attorneys for Appellee , City of Renton, et al . - 46 - CERTIFICA / � \ I I, the undersigned,AAweSX►`"'�'"rk of tRe I4 City of Renton, Washington, certify that this is a true f and correct copy o `?•r ••.. {) �. 9-49-2— Sut�scrit�ed and Sealed this_lp....day of_. -. 11 ,--.�1//rt.%&Q. &/�l4.f. City Clack CITY OF RENTON, WASHINGTON ' ORDINANCE NO. _ 352.6_ • I I A? ORDINANCE OF THE CITY OF RENTON. WASHINGTON, • RELATING TO LAND USE AND ZO.4ING I , I THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO • • ORDAIN AS FOLLOWS: I SECTION I: Existing Section 4-702 of Title IV (Building , Regulations) of Ordinance No. 1628 entitled "Code of General Ordin•nce: of the City of Renton" is hereby amended by adding the following subsections: I. "Adult Motion Picture Theater": An enclosed buiidinp used for presenting motion pict:: •e films , video cas/setter, cable f . I 1 television, or any other such visual media, distinguished or character; I I I Ly an emphasis on matter depicting. describing or rlclaLing, to "spe ifir, • , sexual activities" or "specified anatomical areas' as hereafter de€i:,eo . I for observation by patrons therein. 1 1 2. "Snecified Sexual Activities": (a) Human genitals in a state of sexual stimulation or arousal; i (b) Acts of Human masturbation, sexual intercourse or sodomy; . (c) Fondling or other erotic touching of human genitals . pubic region, buttock or femalelbreast. II 3. "Snecified Anatomical Areas" (a) Less than completely and opaquely covered human genitals, pubic region, buttock, and female j breast below a point immediately above the top I • of the areola; and i 111""-- (h) Human male genitals in a discernible turgid st:te, IV even if completely and opaquelYi covered. t i -1- i . y ` RECEIVE.' j i i t 47 ; j i . V - J i I1 t . SECTION II,: There is hereby added a new Chapter to Title IV (:uilding Regulations) of Ordinance No. 1628 entitled "Code of { Gene al Ordinances of the City of Renton" relating to adult motion pict re theaters as follows: • • '• A. Adult motion picture theaters are prohibited within the rea circumscribed by a circle which has a radius consisting • f of t e following d,iAtances from the following specified uses or zones: • t F 1. Within or within one thousand (1000') feet of any G residential zone (SR-1. SR-2, R-1. S-1, R-2, R-3, R-4 or T) or any single family or multiple family residential use. ` 1. i f 2. One .'(1) mile of any public or private school 3. One thousand (1000') feet of any church or other religious facility or institution 4. One thousand (1000') feet of any public park or P-1 . zone. i B. The distances provided in this section shall be measuied I I s by fallowing a straight line, without regard to intervening buildings, I, from the nearest point of the property parcel upon which the proposedr. 1. - use is to be locate • ro the nearest point of the parcel of property • ,t or t e land use district boundary line from which the proposed land 1 use is to he separated. 1 1 • SECTION _II.: This Ordinance shall he effective upon its i •_ E passage, approval and thirty days after its publication. ' 1 PASSED BY THE CITY COUNCIL this 13th day of April , 1981 e ores ad/4ity drerk , • APPROVED BY THE MAYOR this 13th day of April . 1981. 1 IwJ�o..J..."—S ems. App oved as to form: • Barbara Y. S!i ni p c , ayor T.aw ence .J:-44ri•en. City Aiturncy11 . -- Dat of Publication: May 15, 11,81 , i 1 48 I 1 _ � t [ i 1 IiL I ...id No .s:+.«slaws rEl INIY Or RING J1 I�I • Msnl,�q:fw.Nf/� .�+/�����.rrry�ti'1�.M/w ill Ch r `t / �►d dlisuu M—•3>�.rl'• t~'I«eewse dfsce Y No aged UMW. ibillr.s q firsts.sol de IMM,was ON I Hsi um*has Mu MWit ssar e M Mint Maned I Mw 'isms NM we/11W M/Miff Ni Gh elReMen,q, WI d N ) /.1)'e_, S� ,ram CITY OF RENTON. WASHINGTON �� - ORDINANCE NO. 3L29 ' 7. A ORDINANCE OF THE CITY OF RENTON. WAShINGTON • LATINC TO LAND USE AND ZONING �, • WiEREAS. on April 13. 1981, the City Council of the City 1 of Renton .dopted Ordinance No. 3526. which Ordinance was approved • by the May.r on April 13. 1961. and became effective by its own - terms on J ne '14. 1951; and • :L. . • W EREAS,it was the intention of the City Council of the y . City of Reston in the adoption of that Ordinance to rely upon the opinion of the United States Supree Court in the case of Youne v, h m American 11 ni Theaters. 42Z US 50.. and of the Supreme Court of the State I'f Washington in the case of Northend Cinemas v. Seattle_ • 90 Wn 2d. 09. to limit the location of adult motion picture theaters. ' as that tc is defined therein, to promote the City of Renton's .t great inte est in protecting and preserving the quality of its S • neighborhoods.. commercial districts, and the quality of urban life through .effective land use planning,; and W(EREAS, the City Council, through its Planning and • Development Committee, held a public meeting on March 5, 1931, to receive testirior.• from the public concerning the subject of regulation. of adult entertainment land uses , at which the following testimony • it was received which the City Council believes to be true, and which formed the basis for the adoption of Ordinance No. 3526: • 1 Areas within close walking distance of single and multiple family dwellings should be free of adult • entertainmcn land' uses. 2. Areas where Children could be expected to walk, patronize or recreate should be free of adult entertainmen land uses. 3 Adult entertainment land uses should be located in areas of thae Ci:v which are not in close 1, Proximity to' reside.Itial uses , churches . parks and other public facilities , and schools. 4 . The image of the City of Fenton as a pleasant and attractive place to reside will he adversely �'� • 49 ' . i .J ' ' : affected by the presence of adult entertainment land uses in close proximity to residential land • uses. .cFurches, parks and other public facilities. . and schools. S. Regulation of adult entertainment land uses should • be developed to prevent deterioration and/or degradation of the vitality of the community before • . I the problem exists. rather than in response to an . ' existing problem. - • 6. Commercial areas of the City patronized by young people and children should be free of adult enter- . tainment land uses. • ' 7. The Ren1ton School District opposes a location of • . adult entertainment land uses within the perimeters • of its policy regarding bussing of students, so that • . • students walking to school will not be subjected to s confrontation'with the existence of adult entertain- - mentland uses. .4 . ..J • F . 8. The Renton School District finds that location of • 4; ' ' adult entertainment •land uses in areas of the City . which are in close proximity to schools, and . P • • commercial areas patronized by students and young • ..people, will have a detrimental effect upon the 1 quality of education which the School District is • providin; for its students. • 9. The Renton School 'District finds that education of • its students will be negatively affected by location of adult entertainment land uses in close proximity to location of schools. 10. Adult entertainment land uses should be regulated by zoning to separate it from other dissimilar uses • just as any other land use should be separated from • uses with characteristics different from itself. • 11. Reside�'nts of the City of Renton, and persons who are non-residents but use the City of Renton for shopping and other commercial needs, will move from the community , or si1dp elsewhere if adult entertainment land uses are allowed to locate in close proximity to residential uses.' churches, parks and other public facilities, and schools. 12. Location of adult entertainment land uses in proximity to residential 'uses , churches, parks and other public facilities .. and schools , may lead to increased levels • • of criminal activities, including prostitution, rape. incest and assaults in the vicinity of such. adult entertainment land uses. 13. ?Merchants in the commercial area• of the City are • • • concerned about adverse impacts upon the character - and quality of the City in the event that adult enteritainment land uses are located within close proximity to residential uses, churches ,parks and • other' public facilities , and schools. Location of • -2- • 50 :;:. J . • adult entertainment land uses in close proximity • to residential uses. churches, parks and other public facilities. and schools. will reduce retail .- trade to commercial uses in the vicinity, thus • reducing property values and tax revenues to the . City. S ch adverse affect on. property•values will • cause the loss of some commercial establishments followed] by a blighting effect upon the commercial • . district within the City. leading to further deterioration of the commercial quality of the City. 14. Experien a in numerous other cities, including Seattle. Zf Tacoma and Detroit, 1lichigan, has shown that location L of adult enrcrtainmgnt land uses degrade the quality ' of the areas of the City in which they are located j' - and cause a blighting effect upon the city. The • i skid row effect. which is evident in certain parts . If p° of Seattle and other cities, will have a significantly • • -larger affect upon the City of Renton than other -;. major cities .due to the,relative sizes of the cities. - 15. Na evidence has been presented to show that location 4- . . • of adult entertainment -land uses within the City will . • .„ improve the commercial viability of the community. • y;• 16. Location of adult entertainment land uses within -: •` Walking distance of churches and other religious facilities will have an adverse effect upon the • - . ministry of such churches and will discourage attendance at such churches by the proximity of adult entertainment land uses. j, 17. A reasonable• regulation of the location of adult entertainment land uses will provide for the protection of the image of the community and its property values . • and protect 'the residents of the-community from the •t adverse effects of such adult entertainment lana uses. . while providing to those who desire to patronize adult entertainment land uses such an opportunity in areas • within 'the City which are appropriate for location of adult entertainment land uses. . 19. The community will .bean undesirable place to live if it ills known on the basis of its image as the location of adult entertainment land uses. 20. A stable atmosphere for the rearing of families . cannot be achieved in close proximity to adult entertainment land uses. • 21. The initial location of adult entertainment land uses will lead to the location of additional and 1 similar uses within the same vicinity, thus multiplying the adverse impact of the initial location of adult entertainment land uses upon the residential, churches, ! parks and other public facilities, and schools, and the impact upon the image and quality of the character of• the community. • -3- ' 51 and WHEREAS. since the adoption of Ordinance No. 3526. it has come to the attention of the City Council of the City of Renton , that it would be appropriate to set forth in writing the findings Z of fact which were the basis for the adoption-by the City Council s ' ii of Ordinance No. 3526; and WHEREAS. the City Council finds that. in order to choose t I• the lea t restrictive alternative available to accomplish the purposes for whi h Ordinance No. 3526 was adopted. and to include a severabilil• clause Witch was inadvertently omitted from Ordinance No. 3526. and to make certain other (technical amendments to Ordinance No. 3526. • . • that it is necessary for the City Council to adopt legislation . amending Ordinance No. 3526 to accomplish the foregoing.purposes; • • and , WHEREAS. the City Council. at its duly called special • meeting on February 25. 1982, held a public hearing upon the subject • matter of land use regulations of adult motion pictures within the City of Renton. at which public hearing the City Council received ' comments from the public on that subject matter at which the following; testi ony was received, which' the City Council believes to be true, . and which, together with the findings heretofore set forth as the basis for the adoption of Ordinance No. 3256, form the basis for the adoption of this Ordinance: • .1. Many parents have chosen the City of Renton in • which to raise their families because of the lack of pornographic entertainment outlets with its influence upon children external to the home. 2. Location of adult entertainment land uses on the main commercial thoroughfares of the City gives an impression of legitimacy to. and causes a loss . of sensitivity to the adverse affect of pornography upon children. established family relations, respect for marital relationships and for the sanctity of marriage relations of others, and the concept of non-aggressive consenual sexual relations. . 1 - -4_ ' i . • • 52 1 j ' i . . . 3. Citizens from other cities and King County will travel to Renton to view adult film fare away from areas in • which they are known and recognized. p valves in the areas adjacent to the adult . 4. Property entertainment land uses will decline, thus causing a blight upon the commercial area of the City of Renton. 5. Location of adult entertainment land uses within neighborhpods and commercial areas of thesuchity Boy Renton is! disrupting to youth pfograms ' Scouts, Cub Scouts and Campfire Girls. Many such It. youth programuse the commercial areas of the City • 3' as 'a historical research resource. Location of adult _ entertainment land uses in close proximity to residentia uses. churches, parks and•other public facilities and • i . • schools is inappropriate. 6. Location of adult entertainment land uses in close proximity to residential uses. churches. parks and other public facilities. and schools . will cause a degradatiion of the community standard of morality. Pornographic material has a degrading effect upon the i relationship between spouses. i • 1OW THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASHI: • • DO ORD•IN AS FOLLOWS: • SECTION I: Existing Section 4-702 of Title IV (Building ' Regulations) of Ordinance No. 1628 entitled "Code of General Ordinance• of th' City of Renton" is hereby amended by adding the following suh- • secti ns: - • "Uscd" The word "used" in the definition of "Adult moti . pictu c theater" herein. describes a continuing course of conduct of exhib`ting "specific sexual activities" and "specified anatomical are: in a .anner which appeals to a prurient interest. ' SECTION II: Existing Section 4-735 of Title IV (Building Regu ations) of Ordinance No. 1628 entitled "Code of General Ordinance • of the City bf Renton is hereby amended by adding the following subsea i. (C) Violation of the use provisions of this section is decla to be a public nuisance per se. which shall be abated by City Attorney: by � criminalzosecui p ay of civil abatement procedures only. 'and not by (D) Nothing in this section is intended to authorize, ! leg lize or permit the establishment . operation or maintenance of any Ibus�ness, building or use which violates any City of Renton ordinance or tatute of the State of Washington regarding public nuisances . ' Isexual conduct, lewdness. or obscene or harmful matter or the ' exl ibition or .public display thereof. -5- 53 i •• z' SE_TIO,1 III: Existing subsection (A)(2) of Section 4-735 of,Title IV (3uildingRegulations) of Ordinance No. 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended t ' kto read as follows: T1 • 2. One thousand feet (1,000') of any public or private .. school. ,., SECTION IV: City of Renton Ordinance No. 3526 is hereby gl amended by adding the following section' to read as follows: ' I, anv,sectiun. subsection, sentence, clause, phrase or 4 • • any portio 'of this ordinance is for any reason held to be invalid • y. or uncons itutional by the decision of any court of competent .4 • jurisdict on. such decision shall not affect the validity of the • . . 1. ... —' • remaining portions of this ordinance: The City Council of the City Of Renton hereby declares that it would have adopted City of Renton Ordinance No. 3526 and each section, subsection. sentence, clause, phrase or portion. thereof irrespective of the fact that any one or • • if more sections. subsections. sentences, clauses, phrases or portions be decla eJ invalid Or unconstitutional. E . SECTION V: If any section. subsection. sentence, clause, _ phrase olr any portion of this ordinance is for any reason held to he invalid r unconstitutional by the decision of any court of competent • , jurisdic ion, such decision shall not affect the validity of the remainin, portions of this ordinance. The City Council of the City of Rento hereby declares that it would have adopted this ordinance and each section, subsection. sentence, clause. 'phrase or portion' I thereof irrespective of the fact that any one or more sections . sub- I section• . sentences, clauses, phrases or portions be declared invalid I or unco stitutional. . SECTION VI_: The City Council of the City of Renton finds and dec arcs that an emergency exists because of the pendency of litigation against the City of Renton involving the subject matter of this o finance, and potential liability of the City of Renton for d,anage• as pleaded in that litigation, ano that the immediate adoption -b- 54 . *lair.' --...•- . . "-!: ..t.I.. . • .. • ••.; . . . '•• • I 1 . .4'. - . ....- I '-; • . • . . • . . . . . •• •S'7 . . • • • • • . . • . . • . . . . r r • • • , . .. . of this ordinance is necessary for the Immediate preservation of ' • . . public peak. ealth. and safety or for the support of city government • • : • •;:, .. and its exist ng public institutions and the integrity of the zoning I . 1 . . •• • . ..,. . .:: of the City of Renton. Therefore. this ordinance shall take effect immediately unon its passage and approval by the mayor.% *74:'• PASED BY THE CfTY COUNCIL this 30 day of Hay, 1982. • • . i . e ores . . ea . lty EN . • 1. -... . V' • F . • 1 APPROVED BY TUE HAYOR this 3th day of Hay. 1982. k..:: . . . . ghici.... :-.-: . - • • tifbara • ImpocETRayor— • • ,Approved as to form: • ::- . • • -?. • • . . . ' e • . • .-- . :: • , . C/4144,1 ..../......., ' X4.4,-,........ • • fr . . • - • . . . • - tii7FIRTEW7S7I2iiiii;-.Kiiiiiiy . . . • ':.,1 . _. ... Date of Publication: mly 7. 1962 • l':.11. I . • k . . . j - . - . . • • • . . . . . . . : - • , • .. • . . - • - 1 • • . • . . - . • • , . . • , - • . . . • . . . • • . . . • • , • . • -7- , • - I • i • i 1 55 • . b CITY OF RENTON, WASHINGTON ORDINANCE NO. 3637 AN ORDINANCE OF THE CITY,OF RENTON, WASHINGTON � AMENDING ORDINANCE NO. 3526 RELATING TO LAND USE AND ZONING AND AMENDING ORDINANCE NO. 3629 BY DELETING THE EMERGENCY CLAUSE AND RE-ENACTING THE REMAINDER THEREOF WHEREAS, on April 13, 1981, the City Council of the City of Renton adopted Ordinance No. 3526, which Ordinance was approved . by the Mayor on April 13, 1981, and became effective by its own terms on June 14, 1981; and WHEREAS, on'May 3, 1982. the City Council of the City of Renton adopted Ordinance No. 3629 amending Ordinance No. 3526, which Ordinance was approved by Ithe Mayor on May 3, 1962, and' became effective on its passage and by the terms of the Ordinance; and WHEREAS th- City Council wishes to remove the emersency clause from Ordina ce No. 3629 and re-enact the remainder of • Ordinance No. 3629 in its entirety; and WHERREAS, .t was the intention of the City Council of the I City of Renton in the adoption of Ordinance No. 3526 to rely upon the opinion of th United States Supreme Court in the case of Youno . v. American Mini eaters, 427 US 50, and of the Supreme Court of the State of Washingt n in the case pf orthend Cinemas v. Seattle, 90 Wri 2d, 709, to limit the location of adult motion picture theaters as that term is defined therein, to promote the City of Renton's great interest in protecting and preserving the quality of its neighborhoods , co ercial districts, and the quality of urban life through effective land use planning; and ' • WHEREAS, he City Council, through its Planning and . Development Commi tee, held a 'public meeting on March 5, 1981, to . • etJiTIcl an . • I. umdertired,DELoe.e3 A. Mr4o arkdthe Gey lisnla+, Washi gtoe, cert./ that this is a 1M and copy of A R,A.tN RN .....dR.24 7.......eal C sub bed awl Sealed this alai day of cU,µ0R. 19`6.a. f sT .."& ft e/.0.:.. .za.d,.. . I City Der.* • • 56 ' I I -\ • 1 • 1 receive testimony from the public concerning the subject of regulation of adult entertainment land uses. at which the following testimony was received which the City Council believes to be true. and - which formed the basis for the adoption of Ordinance No. 3526: 1. Area within closeiwalking distance of single and mult ple family dwellings should be free of adult . ente tainment land uses. . 2. Area where children could be expected to walk. • patr nize or recreate should be free of adult ente tainment landIuses. 3. Adul entertainment land uses should be located 11 in a eas of the City which are not in close proximity to residential uses. churches. parks and ther public facilities, and schools. 4. The mage of the City of Renton as a pleasant -. and ttractive place to reside will be adversely affected by the presence of adult entertainment land uses in closelproximity to residential land uses. churches. parks and other public facilities, and chools. 5. Regu� ation of adult entertainment land uses should be developed to prevent deterioration and/or degradation of the vitality of the community before the ' roblem exists, rather than in response to an exis ing problem. 6. Comm rcial areas of the City patronized by young peop e and children should be free of adult enter- tain ent land uses. 7. The enton School District opposes a location of adul entertainment land uses within the perimeters • of i s policy regarding busing of students. so that stud nts walking to school will not be subjected to conf ontation with the existence of adult entertain- ment land uses. 8. The kenton School District finds that location of • ' adult entertainment land uses in areas of the City . whic' are in close proximity to schools. and commercial areas patronized by students and young peop ,e, will have detrimental effect upon the quality of education which the School District is providing for its students. 9. The Renton School District finds that education of its tudents will be negatively affected by location of a ult entertainment land uses in close proximity to location of schools. -2- • 57 = I . 1 10. Adu t entertainment Land uses should be regulations by ,oning to separate it from other dissimilar uses jus• as any other and use should be separated from use- with characteristics different from itself. 11. Res dents of the City of Renton. and persons who are non residents but juse the City of Renton for shopping and other commercial needs, will move from the community . or shop elsewhereiif adult entertainment land uses are allowed to locate in close proximity to residential usu. churches. parks and other public facilities. . and schools. • 12. Location of adult entertainment land uses in proximity to residential uses. churches. parks and other public fa ilities. and schools, may lead to increased levels ofcriminal' activities, including prostitution. rape. in est and assaults in the vicinity of such adult . en ertainment land uses. , 13. Me chants in the !commercial area of the City are co cerned about adverse impacts upon the character an quality of the City in the event that adult en ertainment land uses are located within close pr ximity to residential uses. churches, parks and of er public facilities, and schools. Location of adult entertainment land uses in close proximity tol residential uses. churches. parks and other • public facilities. and schools. will reduce retail t ade to commercial uses in the vicinity, thus • r ducing property values and tax revenues to the City. Such adverse affect on property values will cause the loss Of some commercial establishments fgllowed by a blighting effect upon the commercial d}stricts within the City, leading "to further deterioration of the commercial quality of the City. 14. ECperience in numerous other cities. including Seattle. Tacoma and Detroit. Michigan, has shown that location of adult entertainment land uses degrade the quality of the area of the City in which they are located and cause a blighting effect upon the City. The skid row effects, which is evident in certain parts of Seattle and other cities, will have a significantly larger affect upon the City of Renton than other major cities du'e to the relative sizes of the cities. 15. rlo evidence has been presented to show that location Of adult entertainment land uses within the City will improve the commercial viability of the community. • 16. Location of adult entertainment land uses within walking distance of churches and other religious acilities will have an adverse effect upon the Ministry of such churches and will discourage attendance at such churches by the proximity of • ladult.entertainment land uses. . " I -3- , I i . 58 I 17. A re sonable regulation of the location of adult ente tainment land luses will provide for the protection • of t e image of the community and its property values, and rotect the residents of the community from the adverse effects ofjsuch adult entertainment land uses, whi e providinn tothose who desire to patronize adult ent rtainment ..land uses such an opportunity in areas , . wit in the City which are appropriate for location of ' adu t entertainment land uses. 18. The community willjbe an undesirable place to live • if t is known on the basis of its image as the loc tion of adult entertainment land uses. 19. A sable atmosphere for the rearing of families cannot be achieved) in close proximity to adult • ent rtainment land uses. 20. The initial location of adult entertainment land uses will lead to 'the location of additional and I. similar uses within the same vicinity, thus multiplying the adverse impact of the initial location of adult entertainment land uses upon the residential, churches, pa s and other public facilities, and schools, and th impact upon the image and quality of the character of the community. ) and i • 1 WHEREAS, since the adoption of Ordinance No. 3526, it has come to the attention of the City Council of the City of Renton that it would be appropriate to/set forth in writing the findings I of fact which ware the basis' for the adoption by the City Council of Ordinance No. 3526; and WHEREAS, the City Council finds that, in order to choose the least restrictive alternative available to accomplish the purposes for which Ordi ance No. 3526 was adopted, and in include a severability clause which w s inadvertently omitted from Ordinance No. 3526, and to make certain other technical amendments to Ordinance No. 3526, that it is necessary for the City Council to adopt legislation II amending Ordinance No. 3526 to accomplish the foregoing purposes ; . 1 • and I WHEREAS, the City Council. at its duly called special meeting on Febuary 25, 1982,' held a public hearing upon the subject matter of land use regulations of adult motion pictures within the City of Renton, at which public hearing the City Council received . . comments from-.the public on that subject matter at which the following I testimony was received, which the City Council believes to be true, • 11 1 _q_ I 59 • . • ' I , i and which; together with the findings heretofore set forth as the I basis for the adoption of Ordinance No. 3256, form the basis for the adoption of this Ordinance: 1 1. Ma y parents havelchosen the City of Renton in ' • wh ch to raise their families because of the lack of pornographic entertainment outlets with its in luence upon children external to the home. • 2. Losation of adult entertainment land uses on the main commercial thoroughfares of the City gives an impression of 'legitimacy to, and causes a loss of sensitivity to the adverse affect of pornography uppn children, established family relations, respect for marital relationship and for the sanctity of ' ma riage relations of others, and the concept of no -aggressive consensual sexual relations. 3. C'tizens from other cities and King County will travel t Renton to view adult film fare away from areas in w ich they are known and recognized. 4. P operty values in the areas adjacent to the adult e tertainment land uses will decline, thus causing a blight upon the commercial area of the City of Renton. , 5. Location of adullt entertainment land uses within neighborhoods and commercial areas of the City of Renton is disrupting to youth programs such as Boy , S' outs, .Cub Scouts . and Campfire Girls. Many such y�uth programs use the commercial areas of the City a a historicaliresearch resource. Location of adult entertainment land uses in close proximity to residential uses, churches, iparks and other public facilities and schools is inappropriate. . 6. ocation of adult entertainment land uses in close roximity to residential uses, churches', parks and • other public facilities, and schools, will cause a degradation of the community standard of morality. Pornographic material has a degrading effect upon the • elationship between spouses. NOW HEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, • WASHINGTON D9 ORDAIN AS FOLLOWS: . . • SECrON I: Existing Section 4-702 of Title IV (Building . Regulations) of Ordinance No. 1628 entitled "Code of General Ordinances of the City •f Renton" is hereby amended by adding the following subsections: j -5- I � i 60 I, _ i . • "Used" The word "used" in the definition of "Adult motion picture thleater" herein, jdescribes a continuing course of conduce of exhibiting"specificjsexual activities" and "specified , anatomical area in a mannerwhih appeals to a prurient interest. SECTION II: Existing Section 4-735 of Title IV (Building Regulations) of rdinance No. 1628 entitled "Code of General Ordinances of the City of R nton" is hereby amended by adding the following subsections: (C) Violation of the use provisions of this section is declared to be public nuisance per se, which shall be abated by City Attorney by way of civil abatement procedures only, and not by criminal prosecution. (D) Nothing in this section is intended to authorize, legalize or pe it the establishment, operation or maintenance of any business, building or use which violates any City of Renton ordinance or st tute of' the State of Washington regarding public nuisances, sexual conduct, lewdness, or obscene or harmful matter I or the exhibition or public display thereof. SECTION III: Existing subsection (A) (2) of Section 4-735 I of Title IV (Building Regulations) of Ordinance No. 1628 entitled "Code of Gener 1 Ordinances of the City of Renton" is hereby amended to read as follows: 2. One thousand feet (1,000') of any public or private schooll. SECTION IV: City of Renton Ordinance No. 3526 is hereby amended by adding the following section to read as follows: If any section, subsection, sentence, clause, phrase or any portion o this ordinance is for any reason held to be invalid or unconstitu.ional by the decision of.any court of coinpetent jurisdiction, such decision shall not affect the validity of the I remaining por ions of this ordinance. The City Council of the City -6- i 1 I 61 ,: . of Renton hereby declares that it would have adopted City of Renton Ordinance No. 3526 and each section. subsection, sentence, clause, phrase or porti.n thereof irrespective of the fact that any one or . more sections, -ubsections. sentences, clauses, phrases or portions be declared inv-lid or unconstitutional. SECTION V: If any section. subsection, sentence, clause. , phrase or any p•rtion of this ordinance is for any reason held to be invalid or unco stitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the I remaining portions of this ordinance. The City Council of the City of Renton hereby declares that it would have adopted this ordinance and each secti n. subsection. sentence, clause. phrase or portion thereof irresp ctive of the fact that any one or more sections. sub- sections, sent lnces. clauses, phrases or portions be declared invalid or unconstitutional. SECTIO VI: This ordinance shall be effective upon its passage, and alproval and thirty (30) days after its publication. PASSED BY THE CITY COUNCIL this 14th day of June. 1982. - [' 6. .,/ a. _! r ",n . Delores A. Mead, .City Clerk APPRO ED BY THE MAYOR this 14th day of June, 1982. Barbara Y. Shinpoch. Mayor I � Approved as to form: - (4.14.4.r...„..„.t ;L'I/Lic.-.-.4...-- . . Lawrence J. 4 arren, City Attorney i I Date of Publication: miner la, ion . I 1 I i . -. . w•. • . • .';.• I I ' 62 1 2 3 FILED :N THE UNITED STATES DISTRICT C-0UR1 WESTERN DISTRICT OF WASMinaTON 4 5 FEB 1983 6 BRUCE` RIFKIN, Clerk By 'ac-�--•' .. Deputy 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 PLAYTIME THEATRES, INC. , a ) Washington corporation, et al. , ) 11 ) NO. C82-59M Plaintiffs , ) 12 vs . ) ) STIPULATION AND ORDER 13 THE CITY OF RENTON, et al . , ) ) 14 Defendants . ) 15 16 WHEREAS, this ,Court has heretofore entered its Prelimlinary 17 Injunction pendente lite against the enforcement of City of Renton 18 Ordinance No. 3637 after the taking of substantial evidence and 9 consideration of numerous exhibits; and 20 WHEREAS, the development of further testimony before the 21 Court wou d not materially add to the evidence already before the 22 Court rel tive to plaintiff' s claims that Ordinance No . 3637 is 23 unconstitutional and the interests of judicial economy , both for 24 the Court and for the parties , would be served by a speedy and 25 efficient resolution of the legal issues pending before the Court; 26 NOW, THEREFORE the parties stipulate as follows : Burns & Meyer, P.S. STIPULATION AND ORDER 10940 N.E. 33rd Place• Suite 10- Page 1 ' Bellevue, WA 98004 • (206) 828-3636 c)C{ I STIPULATION 2 1 . Plaintiffs' claims for damages should be severed jfrom 3 plaintiffs prayer for a permanent injunction against the enforcer ment of Ci y of Renton Ordinance No. 3637. ; I tt . 5 2. With respect to the plaintiffs' claims that City of 6 Renton Ord nance No. 3,637 is unconstitutional and their prayer for 7 a permanen injunction against its enforcement, the matter should 8 be set for hearing by the Court at the earliest available dates At g such heari ig, the matter shall be submitted to the Court based upo n 10 the live t-stimony, affidavits, deposition testimony and exhibit 11 previously heard and considered by Magistrate Sweigert at the 12 hearings h ld relative to the plaintiffs' Motions for a Temporary 13 Restrainin:., Order and Preliminary Injunction and defendant' s 14 Motions to Dismiss Plaintiffs' Complaint and for Summary Judgmnt. 15 3 . At such hearing, each of the parties reserve the right 16 to argue t eir theory of the facts and law to the Court. 17 4 . Inasmuch as all issues have been fully briefed in 18 matters pr-viously before the Court, no additional briefs will b� 19 submitted, unless called for by the Court. However, each party 20 shall be permitted to draw to the attention of the Court, witthout 21 argument, pertinent and significant autIorities which come to' the 22 attention of a party after the date of this stipulation stating the 23 reasons fo the supplemental citations. Any response shall be (made 24 promptly and shall be: similarly limited. 25 / • 26 / Burns & Meyer, P.S. STIPULATION AND ORDER , 10940 N.E. 33rd Place• Suite1107 Page 2 Bellevue, WA 98004 • (206) 828'3636 1 DATED this 31, day of January, 1983.E 2 BURNS & MEYER, P.S. ' I 3 4 BY L.� 5 J- ck ' . Burns , ttor ey for Plaintiffs 6 7 8 Larry Warre 9 Attorney fo efendants I � I 10 11 ORDER 12 IT IS SO ORDERED/ 2. �-2 Cr 13 DATED this•— day of ' h , 1983. ; 14 15 1 16 CHIEF UNITED STATES DISTRICT JUDGE 17 18 19 I ! I 20 21 22 23 24 25 26 1 Burns & Meyer, P.S. STIPULATION AND ORDER 10940 N.E. 33rd Place•Suite 10'7 Page 3 1 65 Bellevue, WA 98004 • (206)828-3636 I i UNITED STATES DISTRICT COURT WALTER T.MCGOVE-N CHIEF JUnc! WESTERN DISTRICT OF WASHINGTON SEATTLE. WASHINGTON 98104 ' I March 1 , 1983 - � I dimm Mr . Da iel Kellogg ~. Assist -nt City Attorney - - P .O. B x 626 Renton, WA 98057 - Re : Playtime Theatres , Inc .- v . city of Renton, Cause No . C82-59M Dear Mr .Kellogg : I ' The Court has received your February 25, 1983 • letter! requesting modification of the Court ' s Order ente7d February 18 , 1983 . The Court declines to amend its Order for the reason that all motions were resolved by its January 11 , 1 83 Order approving and adopting the Magistrate 's Report and Recommendation . The motions for summary judgment and for permanent injunctive relief were respectively granted- and denied upon reconsideration of the record . That record is constituted of the evidence I _ • previ usly heard and considered by the Magistrate . See Stipu ation and Order entered February 8; 1983 . The Court considers summary judgment appropriate on that recor •. Nevertheless, the Court was free to resolve all issues in the matter of permanent injunctive relief including factual issues ; such resolution, although by summary judgment , does not comprise a technical infirmity , but is subject to review pursuant to Fed . R . Civ . P . 52( a ) . See Starsky v . Williams , 512 F . 2d 109 (9th Cir . 1975 . Sincerely , Z(--; WALTER T . McGOVERN Chief United States District Judge Copy to : Burns & Meyer , P .S . 1 10940 N.E . 33rd P1 . , Suite 107 Bellevue , WA 98004 Clerk of the Court z_Ircii ii OF R4,11, A ./N OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON A. .. o O U 4$ ©' ►f P.T.OFFICE 8OX 626 100 S 2nd STREET • RENTON. WASHINGTON 98057 255-8678 1 MI 0 ^� LAWRENCE IJ.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY 9A �' DAVID M. DEAN, ASSISTANT CITY ATTORNEY 04 a Februar 25, 1983 MARK E. BARBER, ASSISTANT CITY ATTORNEY qTFD SEP1���Q y ZANETTA L.FONTES, ASSISTANT CITY ATTORNEY . I 1 Honorable Walter T. McGovern Chief United States District Judge I Room 71d United States Court House Seattle, Washington. 98104 Re: Playtime Theatres, Inc. v. City of Renton Cause No. C82-59M Dear Judge McGovern: On behalf of the defendants in the above-mentioned action we want to bring to the attention of the Court a clerical ' error in the Order dated February 17, 1983 and entered on 1 Februar 18, 1983, and the Judgment entered by the Clerk on February 18, 1983, and to request correction thereof , pursuant to F.R. C.P. 60(a) . You will recall that the Stipulation and Order executed by the parties on January 31, 1983 and ordered by the Court on February 8, 1983 provided that the Plaintiffs ' claim of . unconstitutionality of the ordinances and their prayer for I a permanent injunction against the enforcement of the ordinances should be submitted for hearing by the Court based upon the entire record previously heard and considered by the Magistrate. In that respect, it is our contention that the hearing before the Court of February 10, 1983 was final rgument after the close of all evidence on all issues � i exceptlfor the express reservation of the issue of Plaintiffs 1 z._ claim for damages . If that is true, then the reference to , the s. granting of Summary Judgment in favor of the City is a clerical .:.-^� error and should be deleted from the Circler and Judgment. i - '1 Z1 You will also recall that the Defendants ' renewed motion to dismiss for failure to state a claim upon which relief can, be grated (F.R. C.P. 12(b) (6)) was denied b-y the Court in the�Court' s previous approval of the Report and Reco endation of the Magistrate. We would request that the Court dispose of that renewed motion as a part of the final order of this case. , i 1 C Therefoe, it would be our suggestion that the last paragraph of the Court' s Order and the Judgment be amended to. read as follows : "For the foregoing reasons, the Court having reconsidered its de novo review which led to the entry of the preliminary injunction, the order granting preliminary injunction must be vacated as improvidently granted. Plaintiffs' prayer for permanent injunction against enforcement of the ordinance is denied., and Plaintiffs ' Amended and Supplemental Complaint for Declaratory Judgment and Preliminary and Permanent Injunction is dismissed with prejudice; Defendants ' motion to dismiss for lack of jurisdiction and Defendants' renewed motion to dismiss for failure to state a claim upon which relief can be granted (F.R.C.P. 12(b) (6) ) are both denied. " Very truly yours, Daniel Kellogg DK:bjm cc : Mr. Jack R. Burns Mr. James J. Clancy (with copy of Judgment and Order) Original of Letter to Court File • • ' I 1 School located at 314 South Fourth Street , Renton , King 2 County , Washington . ANSWER: 3 ADMIT 4 5 INTERROGATORY NO. 6: 6 If you deny that the Renton Theater above described is located 7 within 1 ,000 feet from Renton High School located at 400 South Second Street , Renton , King County , Washington , or within' 8 1 ,000 feet from St . Anthony's Parchial School located at1314 South Fourth Street , Renton , King County, Washington , then 9 state the number of feet from the Renton Theater property , more particularly described above , to the nearest portion of a 10 lot- which is a public or private school use . 11 ANSWER : 12 13 N/A 14 15 16 REQUEST FOR ADMISSION NO. 10 : 17 , Admit hat since on or about January 20, 1983 and thereafter , that d - fendant Playtime Theatres , Inc . , has exhibited , or 18 caused to be exhibited , for observation by patrons and possessed for the purpose of such exhibition, the following 19 motion picture films which have been exhibited at the Renton, Theater located in Renton , King County , Washington on the 20 below listed dates : 21 PROGRAM DATE EXHIBITED 22 Dee,,ep Throat 01/20/83 through 02/10/83 Ddvil In Miss Jones �3 • Blue Jeans 02/11/83 through 02/17/83 24 Nighty Network 25 American Desire 02/18/83 through 03/03/83 Ail American Girls 26 Foxholes 03/04/83 through 03/10/83 • 27 R tndy, The Electric Lady 28 S oundrels 03/11/83 through 03/ 17/83 WARREN&KEII'OGG,P.S. ATTORNEYST AT.0A. W REQ. F R ADMISSION, INTERLOCKING 1Ms0.SEO NEYSAiLAW llAx T►imcrnor aura urn opnnT1f TTnim _ _ -0- O,.�....,r.n.SO,X 1 Foxtrot - 2 Irresistible 03/18/83 through 03/24/83 3 Scheherezade, 1001 Erotic Nights 4 03/25/83 through 03/31/83 Satisfactions i, 5 Pandora's Mirror 6 D bbie Does Dallas 04/01/83 through 04/07/83 Debbie Does Dallas II 1 I 7 Little Girls Lost 04/08/83 through 04/14/83 8 Ring of Desire 9 T e Dancers 04/15/83 through 04/21/83i Brween the Sheets 10 04/22/83 through 04/28/83 Daddy' s Little Girl g 11 The Little French Maid 12 Every Which Way She Can 04/29/83 through 05/05/83, Night Life 13 Expose Me Now 05/06/83 through 05/12/83 14 Stormy 15 Young Doctors In Lust 05/13/83 through 05/19/83 Intimate Explosions 1 16 4 and Coming 05/20/83 through 05/26/83 U and Coming 17 Scheherezade , 1001 Erotic Nights 18 05/27/83 through 06/02/83 U and Comming i 19 II satiable 1 20 kiss and Boots 06/03/83 through 06/09/83 Seduction of Cindy 21 06/10/83 through 06/1;6/83 Peepholes 22 Body Talk 23 Little Girls Blue II •.06/17/83 through 06/213/83 The Best of, Alex De Renzy I 1 24 insel Town 06/24/83 through 06/50/83 25 rincess Seka 26 Skin Deep 07/01/83 through 07/07/83 Babe 1 27 Doing It 07/08/83 through 07/1I4/88 28 Baby Cakes 1 WARREN&KELLOGG,P.S. REQ. OR ADMISSION, INTERLOCKING ATTORNEYS ATLAO/ 1/0 SO.SECOND ST..I.O.SOX ENINTERROG. AND REQ. PRODUCTION 70 -10- RENTON,WASHINGTONlW57 1 N sty Girls 07/15/83 through 07/21/83 2 Little Darlin' s 3 San Fernando Valley Girls 07/22/83 through 07/28/83 4 Brief Affair 5 H t Dreams Commencing 07/29/83 Society Affairs 6 ANSWER: 7 ADMIT 8 9 REQUEST FOR ADMISSION NO. 11 : 10 10 Admit that the films described in Request for Admission ssioniNNo . ed a0 11 above, were shown at the Renton Theater, Ad ., commonly 507 South Third Street , Renton, King County, Washington, Which 12 theater is in an enclosed building used for presenting motion picture films for observation' by patrons therein. 13 ANSWER: 14 Admit that the Renton Theatre adwithinitheabuilding. 15 the moies identified in #10 were exhibited Specifically deny7that the building is "used" as that word is 16 defined in the Ordinances . INTERRbGATORY NO. 7: 17 If you, deny that the films described in Request for Admission 18 No. 10 above were shown at the Renton Theater in an enclosed building used for presenting motion picture.. films for 19 observation by patrons therein , then state each and every fact , contention , legal or factual , and each provision of 20 federal , state , county or city law upon which you rely to support your denial of Request for Admission No . 11 . 21 ANSWER: 22 23 • 24 25 N/A 26 11 INTERROGATORY NO . 8: 27 If you deny that the films described in Request for Admission 28 No . 1 were exhibited at the Renton Theater on the dates WARREN&KELLOG ,P.S. REQ. !OR ADMISSION , INTERLOCKING ATTORNEYSATIANJJ`1M SO.SECOND ST..P.O.fo-- X SIL INTERROG. AND REQ. PRODUCTION -11 - RENTON,WASHI.IGTONl057 1 listed in Request for Admission No . 10, then , for the period 2 from January 1 , 1983 until the date of the answer of these interro:atories, specify for each film shown at the Renton 3 Theater during that period of time , the : 4 a . Name of each film. 5 b. The name , address and business telephone number of the distributor of each film. 6 c. The print number or numbers or other 7 identifying data of each of the films . 8 d . The dates upon which each of the films played at the Renton Theater. 9 e The hours of exhibition on each date on which 10 the film was exhibited . 11 f The running time in minutes for each print of each film, specifying the print number or other 12 identifying data for each running time . 13 g. The present whereabouts of each film. 14 h. If the present whereabouts of any film is unknown to you , then specify the name and 15 address and telephone number of the party to whom you delivered the film when it was 16 released from your possession. 17 ANSWER: 18 N/A 19 20 21 REQUEST FOR ADMISSION NO. 12 : 22 �3 With lrespect to the film Deep Throat which was shown at the Rento Theater, admit the following: 24 . The film exhibited the following: 25 (i) Human genitals in the state of 26 sexual stimulation or arousal; ' � I 27 (ii) Acts of human masturbation , sexual intercourse or sodomy ; 28 WARREN&KELLOGG,P.S. REQ. FOR ADMISSION , INTERLOCKING ATTORNEYS AT LAW INTE-ROG. AND REQ. PRODUCTION -12- 100 SO.SECOND ST.r.o.BOX cx RENTON,WASHINGTON 90057 7 2 us-K7s 1 (iii) Fondling or other touching of human genitals , pubic region, buttock or 2 female breasts; 3 (iv) Less than completely and opaquely pubic covered human genitals , 4 region , buttock and female breasts 5 below a point immediately above the top of the areola; 6 (v) Human male genitals in a 7 discernibly turgid state, even if completely and opaquely covered . 8 b . The film ' s exhibition was advertised in the i 9 Seattle Post-Intelligencer at or about the time of its exhibition. 10 c. The film was advertised on the marquee of the Renton Theater in Renton , King County , 11 Washington at or about the time of its 12 exhibition . 13 d . The film was distinguished or characterized by an emphasis on matter depicting, describing or 14 relating to the specific sexual conduct and exhibition of the specific anatomical areas 15 more particularly described in subparagraph "a" above of this Request for Admission . 16 e . The film was shown as a part of a continuing 17 course of conduct of exhibition of films at the Renton Theater distinguished or chad 18 by an emphasis on matter depicting, describing or relating to the specific sexual conduct and 19 exhibition of specific anatomical areas as more particularly described in subparagraph "a" of 20 this Request for Admission . 21 ANSWER: 22 See Attached 23 . 24 INTERROGATORY NO . 9 : 25 With respect to the film Deep Throat , state: 26 a. The producer of the film. one 27 b . The name , address and or businessother source telhfrom number which of the distributor 28 you received the film. WARREN&KELLOGG,P.S. ATTORNEYS AT�/1W REQ. FOR ADMISSION , INTERLOCKING 1MSOATTOtP YSAi.O.wxcx INTERROG. AND REQ . PRODUCTION 'n -13- RENTON,WASSweTONMOP i ANSWER TO REQUEST NO . 12 a. admit b. admit that the film was advertised in the Seattle Posts Intellegencer in a manner specifically designed to avoid appeal to a prurient interest. c. admit that the film was advertied on the theatre marquee in a manner specifically designed to avoid appeal to a prurient interest. d. •admit that the film was distinguished or characterized by an emphasis on matter depicting, describing, or re- lat}ngto specific sexual conduct and exhibition of ci P s efic anatomical areas but specifically deny that such characterization, emphasis or description was in a man er which appeals to a prurient interest . e: deny. - During the period of thime from the theatres 6pei{ing until the date the August 19 , 1983 , approximately 160 different films had been exhibited. The films since January 20 , 1983 comprise only approximately 3571 of the films shown. I , 1 � I 7/,