HomeMy WebLinkAboutPetition for Writ of Mandamus (1982) UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE CITY OF RENTON, et al. , ) C.A. #
Petitioners , )
vs. )
•
UNITED STATES DISTRICT COURT, for )
the Western District of Washington )
at Seattle, )
Respondent, )
PLAYTIME THEATRES, INC. , a Wash- )
ington corporation, and KUKIO BAY )
PROPERTIES, INC. , a Washington )
corporation, )
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. ORDERS AND OPINIONS BELOW, 2
II. STATEMENT OF FACTS, 3
•
A. Background On Enactment Of Ordinance No. 3526, 4
B. On January 26, 1982, A Civil Rights (42 U.S.C. § 1983) And
Declaratory Judgment Action (28 U.S.C. § 2202) Is Filed
Challenging 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
February 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
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• 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. REASONS WHY WRIT SHOULD ISSUE, 17
JURISDICTION, 17
A. An Order Denying A Motion To Dismiss Is Not An Appealable
Order 18
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B. The Petitioner Will Be Damaged Or Prejudiced In A'Way Not
Correctable On Appeal 20
C. The 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
Of Law 24
E. The District Court's Order Is An Oft Repeated Error, Or
Manifests A Persistent Disregard Of The Federal Rules 26
F. The Party Seeking The Writ Has No Other Adequate Means,
Such As A Direct Appeal, To Attain The Relief Desired 27
ABSTENTION, 28
A. Under 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
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
•
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• INDEX TO APPENDICIES
•
APPENDIX
"A" City of Renton Ordinance No. 3526, passed and adopted April
13, 1981.
"B" 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.
"C" 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.
"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
March 25, 1982.
"F" Exhibit deleted •
"G" City of Renton Ordinance 3629, passed and adopted May 3,
1982.
"H" 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.
"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.
12(b) (6) and Memorandum in Support Thereof, filed on May 4,
1982L
"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.
_
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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
Boehning 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 v. County of Delaware, 529 F.2d 681 (3rd Cir., 1978),.... 20, 28
Dombrowski v. Pfister, 380 U.S. 479 ( 1965),.. 23, 27, 32, 33, 41, 42, 43
Erzoznick 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 v. Pursue, Ltd., 420 U.S. 592 (1975),
10, 11, 12, 16, 24, 25, 29, 35, 36, 47
International 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
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Middlesex 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 Bureau 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
People ex rel. Busch v. Projection Room Theater, 17 Ca1.3d 55, 38, 39
Pinkus v. 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
Spokane Arcakes, Inc. v. Brockett, 631 F.2d 135 (CA. 9, 1980),
affirmed, U.S. , 70 L.Ed.2d 468 (1981 )
12, 23, 24, 40, 41, 42
Stansberry 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. 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. 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
14th 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
, i
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Loyola Law Review:
11 Loyola Law Rev. 689 at 699, 19
Nahmod, Sheldon H., Civil Rights and Civil Liberties Litigation,
1982 Cumulative Supplement, § 3.08, Due Process at pgs.. 67-73, 22
Ohio State Law Journal:
38 Ohio State Law Journal 301 at 308, fn. 54, 19
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1
2 •
3
4
5 UNITED STATES COURT OF APPEALS
6 FOR THE NINTH CIRCUIT
7
8 THE CITY OF RENTON, et al. , ) C.A. #
9 Petitioners, )
10 vs. - )
11 UNITED STATES DISTRICT COURT, for )
the Western District of Washington ).
12 at Seattle, )
13 Respondent, )
14 PLAYTIME THEATRES, INC. , a Wash- )
ington 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 Shinpoch as Mayor of the City of Renton; and Earl Clymer, Robert
24 Hughes, Nancy Mathews, John Reed, Randy Rockhill, Richard
25 Stredicke, and Tom Trimm, as members of the City Council of the
{ 26 City of 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 21 (a)
-1-
1 of the Federal Rules of Appellate Procedure, for a writ of
2 mandamus or, in the alternative, for a writ of prohibition,
3 directing the above-named respondent, the Honorable Walter T.
4 McGovern, Judge of the United States District Court for the
5 Western 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-
of Washington, entitled "City of Renton, a municipal
8 corporation, 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
the federal court by a petition to remove filed on March 8,
10 1982 under case number C82-263R, and consolidated under case
number C82-59M by order of Judge Walter T. McGovern dated
11 March 10, 1982; and
12 (2 ) to abstain from all further proceedings and dismiss the
Amended and Supplemental Complaint for Declaratory Judgment
13 and Preliminary and Permanent Injunction filed on February 9,
1982 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 heard 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 incorporated herein.
15 On November 5 , 1982 , U.S. Magistrate Sweigert filed his
16 "Report 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.
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.
3526.
4
5 On 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 "Defendant 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 Mayor'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 '"K" , "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-
1 ono record of that meeting , Mr. Clemens, then the City' s acting
2 Planning" Director who was present at the meeting , testified that
3 the Superintendent of Schools, and the President of the Renton
4 Chamber 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
9 he and 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 the 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
20 the City Council of the City of Renton recommended that an
21 appropriate zoning ordinance be written dealing with the subject
22 of adult 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
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I'
1 also be a banned area. " (See Exhibit "K" , "Report and
Recommendation" at page 4 , lines 22-32. )
2
3 On April 13 , 1981 , the Renton City Council passed and adopted
4 City of Renton Ordinance No... 3526, containing the identical
5 language of that portion of the Detroit Zoning Ordinance which had
6 been before 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 "adult motion theaters" , "specified sexual activities" , and
17 "specified anatomical areas" . In § II the ordinance prohibited
18 the location 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:
21 1000 feet of any residential zone or any single family or
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.
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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,
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 located across from each other in downtown Renton. On or about
9 January 27, 1982 , Kukio Bay Properties, Inc. leased said theaters
10 to Playtime Theaters, Inc. (hereinafter designated "Plaintiff
11 Playtime Theaters, Inc. " and "Respondent Playtime Theaters,
12 Inc. " ) . The lease agreements provide that the premises are to 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 Properties, Inc. and Plaintiff Playtime Theaters, Inc. on January
18 19, 1982 that if the property of the Plaintiffs was used to
19 exhibit adult motion picture films, enforcement proceedings would
20 be commenced . (See Exhibit B, "Amended and Supplemental
� page 21 Complaint" , a e 6 , lines 8-12 ) . Plaintiffs have admitted that
p
22 one of said theaters would continuously operate exhibiting adult
23 motion 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 Kukio Bay Properties, Inc. filed an action in the United States
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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 § 1131 (a) , 42 U.S.C. § 1983 and 28 U.S.C. § 2202 and Rule 57 of
5 the Federal 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 restraining order as ancillary relief under their original
9 complaint. Following oral argument on that date, Magistrate
10 Philip K. Sweigert announced orally, from the bench, that he would
11 recommend the denial of the temporary restraining order.
12 On February 3, 1982 , U.S. Magistrate Sweigert filed his
13 "Report and Recommendation" and proposed form of Order in which he
14 recommended to U.S. District Judge Walter T. McGovern that the
15 request for a temporary restraining order be denied .
16
17 C. The Renton And Roxy Theaters' Amended And
Supplemental Complaint, Filed February 9,
18 1982.
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 served a new Complaint entitled "Amended and Supplemental
24 Complaint 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
28 applied for. At the hearing on the temporary restraining order on
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1 ' January 29, 1982 , David R. Clemens, Director of Policy Planning of
• 2 the City of Renton, had previously testified to a contrary
3 administrative interpretation; that is, that, under the Zoning
4 Ordinance, 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.
14 Miranda, 422 .U.S.. 332 at..349 and 354 (1975 ) . A copy of the
15 Declaratory Judg'ment. Complaint is attached hereto as Exhibit "C"
16 and incorporated by reference herein.
17 E. The City Of Renton, Et Al. Files Its First
Motion To Dismiss On February 22, 1982.
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 Civil Complaint for Declaratory Judgment in the State Court
-9-
� I
I I
1 seeking a declaratory judgment to resolve the controversy between
2 the defendant City of Renton and Plaintiff Playtime Theaters, Inc.
3 and Plaintiff Kukio Bay Properties, regarding the use of the
4 Renton and Roxy Theaters as alleged by such Plaintiffs in their
5
Amended 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 Renton' s Complaint for Declaratory Judgment in the State Court was
8 attached as Exhibit A to its Points and Authorities (see Exhibit D
9 at page 3 , lines 11 et seq. ) . In its Points and Authorities, the
10 City of Renton argued:
11 (1 ) that the U.S. Supreme Court had held in Huffman v.
Pursue, 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 Employment Services v. Hodory, 431 U.S. 471, that where the
city ordinance was constitutional on its face and the civil
14 rights issue involved important state civil interests, the
federal claim must be presented to the state court in the
15 first instance where that forum was available and the state
had not waived its right to have the matter resolved in the
16 state court. See Exhibit "D" at Point II , on pages 11-14 );
17 (2 ) that the state judiciary must be presented with an •
opportunity to consider and interpret the state statute or
18 city ordinance and , if necessary, invoke a limiting
construction. (See Exhibit "D" at Point I (b) on pages 8-10 )
19 because the federal courts lacked jurisdiction
authoritatively to construe such state legislation (see
20 Exhibit "D" at Point IA on pages 6-8 ) and that "the federal
complaint should be dismissed for failure to state a claim
21 upon which federal relief can be based upon abstention
grounds (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 Judgment Action.
26 •
27 On March 8, 1982 , Plaintiff Playtime Theatre, Inc. and
28 Plaintiff F:ukio Bay Properties filed a petition to remove the
-10-
I
I ,
1 state court action to federal court and on March 12, 1982 , the
2 City of Renton filed its "Objection to Removal and Motion to
3 Remand" the state Declaratory Judgment action back to the state
4 court.
5
6 G. The. 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 supra, and its progeny of cases, because the zoning "use" which
13 was proscribed by Zoning Ordinance 3526 was amenable to two
14 constructions, one of which was that it "was a public nuisance or
15 a course- of conduct (which ) does not relate to any specific film
16 or the like" (Exhibit "D" , R.T. for Mar. 12, 1982 at p. 5, lines
17 11-16 ) ; that the term "Distinguished or characterized by an
18 emphasis on matter depicting , describing or relating to specific
19 sexual activities" raised a state question as to statutory
20 construction 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 specific film?" (Exhibit "D" , R.T. for Mar. 12, 1982 at p. 6,
23 lines 15-21 ) ; that under one construction it "means a course of
24 conduct 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 court action which had the power to "flesh out" an ordinance
i
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 of Renton pointed out that,. because of the peculiar
3 circumstances relating to zoning "use" ordinances, it would not be
4 • able to present the statutory construction issue for resolution in
5 the state court until it had occasion to apply the ordinance; that
6 it could 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
1
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 issues 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. Brockett, 631 F.2d 135 (CA. 9, 1980 ) affirmed U.S. , 70
16 L.Ed. 2d 468, 102 S.Ct. 557 ( 1981 ) , would have been different, had
17 the Spokane County Prosecutor raised those same issues in a state
18 declaratory judgment action concomitantly with his response
19 objecting 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 v.
22 Pursue, Ltd. , case (Exhibit "D" , R.T. for Mar. 12, 1982 at p. 18,
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 g 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 On April 9, 1982, Magistrate Sweigert heard the Defendants
11 City of 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 conclusion of the hearing , Magistrate Sweigert stated in an oral
rI 15 opinion from the bench that the state court action should be
16 remanded. As of the date of filing of this petition, no report or
17 recommendation has yet been issued by Magistrate Sweigert on those
18 issues.
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
28 given to the ordinance by a state court. A copy of Ordinance 3629
i '
-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
statement 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
was declared to be a nuisance per se to be abated civilly and
7 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 ,
9
• (5 ) A severability clause was added.
10
11 The amending ordinance, No. 3629, also contained an emergency
12 clause 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 report 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
1 a renewed 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 passed a third ordinance, No. 36.37, 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-
1 On November 5 , 1982 , U.S. Magistrate Sweigert filed his
2 "Report and Recommendation" and a proposed order:
3 (1 ) 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 "Order' Denying 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 );
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-
1 of such public nuisance in a state court civil judicial
proceeding 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 are as
21 follows:
22
23 JURISDICTION
24
25 The jurisdiction of this Court to issue a prerogative writ is
26 founded' on the All Writs Act, 28 U.S.C. § 1651, and Rule 21 of the
27 Federal Rules of Appellate Procedure. Special and unusual
28 circumstances warrant exercise by this Court of its discretionary
-17-
•
1 power to issue the common law writ of mandamus or prohibition
2 requested 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) 572 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 appealable order under 28 U.S.C. § 1292 (a) . Reed v. Lehman,
11 (1937, CA. 2, N.Y. ) 91 F.2d 919. Although an order denying a
12 motion to dismiss (and motion for summary judgment) for failure to
13 state 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 Court and 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,1/ see
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 ( Approach 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 May 5, 1982 , denying the City of Renton,- et al. ' s first motion
8 jto 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 ruling 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 238. See also 11 Loyola Law Review 689 at 699, where the
19 author 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 recognized and Middlesex County Ethics Committee abstention is '
5 called into play, petitioners will continue to suffer damage and
6 prejudice 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
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 consider 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
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' s desires that such legislation should not be applied in a
9 certain manner or that certain litigation should not be
10 undertaken, or against its demand that such matters be heard and
11 resolved 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 policy expressed in Middlesex County Ethics Committee, supra,
20 precludes the federal courts from entertaining jurisdiction and
21 holding 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 legislation and make the state legislative process function
25 efficiently.
26 Third, were the federal court to entertain jurisdiction under
27 the Civil Rights Act, 42 U.S.C. § 1983 , before the state court has
28 had an opportunity to afford due process relief under state law,
-21-
1 including its "administrative" decision that the ordinance should
2 not be "applied" in a given fact situation, the federal court is
3 inviting the recurring conflicts which are presently arising
4 between simple tort concepts (state law) and constitutional tort
5 concepts (federal law) . See Allen v. McCurry, 449 U.S. 90, 66
6 L.Ed.2d 308, 317, 101 S.Ct. 441 (1980 ) ; Parratt v. Taylor, 451
7 U.S. 527, 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 also, the collection of cases in Civil Rights and Civil
- 10 Liberties Litigation, 1982 Cumulative Supplement, by Sheldon H.
11 Nahmod, § 3 . 08, Due Process at pages 67-73 and Singleton v. City
12 of New 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. 2/
16 Fourth, by exercising jurisdiction prematurely in such cases,
17 and rendering constitutional judgments, federal courts are
18 creating an erroneous misconception that such legislation is
19 2/ Consider, in this regard, the differing results which are possible
depending upon which jurisdiction hears the case. Suppose, for example, an
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 applies the ordinance in a constitutional manner. If the ordinance was
correctly applied in a given fact situation, the ordinance is given meaning and
22 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.C. § 1988 attorneys' fees. In contrast, if an action were brought in the
federal court on the same defective legislation but by a party who is relying
25 upon someone 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
I 28 tort" and that an award of attorney's fees should be made under 42 U.S.C.
§ 1988.
-22-
•
1 beyond repair in the state court, whereas the opposite is true,
2 inasmuch as such legislation maybe revived . See Dombrowski v.
3 Pfeister, 380 U.S. 479 at 490, footnotes 6 and 7. Few are aware
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 abstention test set forth in Middlesex County Ethics Committee,
9 supra, whenever a claim based upon states' rights is affirmatively
10 pleaded , as here, in the federal court system.
11 In sum, the City is prejudiced in a way not correctable upon
12 appeal because:
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 ordinance 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
as 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 42 U.S.C. § 1983 , before the state court has had an
, I opportunity to afford due process relief, the federal courts
22 are inviting the insurmountable conflicts which have arisen
between 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 Diego, 453 U.S. 490, 69 L.Ed. 2d 800 ,
2 101 S.Ct. 2882 (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 In 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 determining the parameters of federal abstention where
12 important state interests were involved and where a state court
13 proceeding was available to consider the federal claim.
14 This Court has a duty to instruct the federal district court
15 On the proper scope of the Middlesex abstention rule. An
16 extraordinary writ is appropriate to review orders that require
17 the application 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 Schlagenhauf v. Holder, 379 U.S. 104, 13 L.Ed. 2d 152, 85 S.Ct. 234
23 (1964 ).
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 rights complaint is clearly erroneous as a matter of law. See pg.
-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 Where a state law involving important state interests (Zoning
12 Power and Legislative Power) is amenable to two constructions, the
13 state 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 state 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 error. 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 presents 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 Ordinance 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 /// /// ///
-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 after judgment has been rendered by the trial court) is the
8 promotion of judicial economy by avoiding the expense and delay of
9 interlocutory review of issues that might be rendered either moot
10 or subject to appeal if the case were allowed to go to final
11 judgment.
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 court, any judgment rendered by the district court will be
15 inconclusive and will not constitute a 'final adjudication" of the
16 matters involved. See Dombrowski v. Pfister, 380 U.S. 479 at 490,
17 footnotes 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 inflerior tribunal refuses to act upon a subject properly brought
, I
27 before 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 I Usurpation Of Jurisdiction Which Should Be
Corrected By Prerogative Writ.
6
7 Approximately one month after U.S. District Judge Walter T.
8 McGovern' s May 5, 1982 ruling which denied the Defendants ' Motion
9 to Dismiss the federal complaint on grounds of abstention and lack
10 (usurpation) of jurisdiction, the United States Supreme Court
11 decided 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 abstain in a "non-criminal judicial proceeding when important
16 state interests are involved" , where, as here, "state proceedings
17 afford an adequate opportunity to raise the constitutional
18 claims" . Although Chief Justice Burger's majority opinion (joined
19 by Justices 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 reversal was based upon an abuse of discretion. See D' Iorio v.
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 Colorado River Water Cons. Dist. v. U.S. , 424 U.S. 800 at 816, fn.
27 22, 47 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 Stevens which noted that there were ongoing judicial
9 proceedings in the state court in which the federal plaintiff had
10 been given the opportunity to raise his constitutional challenges.
11 In Middlesex County Ethics Committee, supra, disciplinary
12 proceedings were instituted by the local committee of the New
13 Jersey disciplinary system against an attorney based upon an
14 allegation of unethical conduct. Upon filing of a formal
15 statement of charges, the respondent -refused to answer, but
16 instead filed suit in the United States District Court contending
17 that the 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 Appeals. reversed. On appeal, the majority of the Court held
21 that abstention was mandated under the general principles
22 previously 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 ) ; Juidice v. 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
27 S.Ct. 2371 (1979 ) . See Middlesex County Ethics Committee, supra,
28 at page 124 where the Court noted :
-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 will not safeguard federal constitutional rights.
9 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
L.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
important 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,
430 U.S. 327, 51 L.Ed. 376, 97 S.Ct. 1211 (1977 ) . Where
16 vital 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,
994, 99 S.Ct. 2371. ' [T]he . . . pertinent inquiry is
18 whether the state proceedings afford an adequate opportunity
to raise the constitutional claims. . . . ' Id. , at 430, 60
19 L.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. Taylor, 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 Rights action, and its limitations arising out of the
26 resultan.t conflicts which exist in federal and state rights.
27 Petitioners contend that the Middlesex County Ethics
28 Committee case enunciates a four part test for Federal Court
-30-
•
1 abstention in non-criminal proceedings involving important state
2 interests, which controlled the discretion of the U.S. District
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. District 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 testa/ for abstention is as follows:
9 1. Is a State action pending?
10 2. -Are important State policy or interest questions
involved?
11
3. Can the constitutional issues be resolved in the state
12 court?
13 4. Is there a showing of bad faith, harassment or some
other extraordinary circumstance which would make
14 abstention inappropriate?
15 The record below clearly demonstrates that the Middlesex County
16 Ethics Committee four part test has been satisfied and that
17 abstention is mandated:
18 3/
See Middlesex County Ethics Committee, supra, at page 124-125, where the
19 Court framed a three part test:
20 The question in this case is three-fold: first, do state bar
disciplinary hearings within the constitutionally prescribed jurisdiction
21 of 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":
25 The importance of the state interest in the pending state judicial
proceeding 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
abstention inappropriate, the federal courts should abstain." (Our
28 emphasis. )
r -31-
1 1. A State action is Pending:
2 On February 9, 1982 , Plaintiffs Playtime Theatres, Inc. and
3 Kukio 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, 49
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
, i 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 Supreme 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 that 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' s interest in Young, supra, at pgs. 53, footnote 4, 60, and
17 at page 70, where he stated:
18 " . . . It is not our function to appraise the wisdom of its
decision to require adult theaters to be separated rather
19 than 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 by
26 local government" , at page 80:
27 "Without stable neighborhoods, both residential and
commercial , large sections of a modern city quickly can
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
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 used 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:
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 legit mate
13 activities of the state. Id. , at 355-336. " (Our emphasis..)
14 There can be no doubt that the federal court interference below
15 "unduly interfere( s) with the legitimate activities of the state" .
16 See arguments on " irreparable harm" at page 20, et seq. , supra.
17 3. The federal plaintiffs have an adequate opportunity to
18 raise 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 action which was filed in the state court raises the identical
23 issues which the federal plaintiffs raised in their federal
24 action. See page .32, lines 12-18, supra, and compare the issues
25 and contentions framed in Exhibits B and C.
26 4: 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 extraordinary circumstances which would make abstention
4 inappropriate under Huffman v. Pursue, Ltd. , supra.
5 "Abstention" having been clearly make applicable to
6 noncriminal judicial proceedings involving important state
7 interests such as zoning , it was a usurpation of jurisdiction and
8 an abuse 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 Violative 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 Middlesex County Ethics Committee v. Garden State Bar Assn. , Inc. ,
22 supra, and concluded that, although the Ohio public nuisance
23 abatement proceedings were civil in nature, the abstention rules
24 regarding criminal proceedings expressed in Younger v. Harris, 401
25 U.S. 37 (1971 ) applied. In effect, the Huffman opinion holds that
26 the first three parts of the Middlesex County Ehtics Committee
27 test had been satisfied. The Huffman case, however, was not
28 ordered dismissed as was done in Middlesex County but was remanded
-35-
1 to the U.S. District Court to determine whether the fourth part of
2 the test 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 1judicial 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 have 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 recent 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 ordinance is susceptible of a constitutional construction in
21 pending proceedings in the state court, the federal court must
22 dismiss the federal action.
23 Tile 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,
see, e.g. , Wainwright v. Stone, 414 U.S. 21 (94 S.Ct. 190, 38
28 L.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 any decision of the
4 Florida Supreme Court. " (Our Emphasis. )
5 To succeed 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 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. )
I
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 (1974 ) . 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 pending , under Middlesex County Ethics Committee, supra, the
3 federal court must abstain and must allow the matter to be
4 returned 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. Thirty-Seven Photographs, 402 U.S. 363 , 28 L.Ed.2d 822, 91
9 S.Ct. 1400 (1971 ) , a task which is routinely performed by state
10 courts. See Stecher 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, 2.8 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 state court where an important state interest is concerned, is
20 grounded upon several important state and federal policy
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
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.
28 Busch v. Projection Room Theater, 17 Ca1. 3d 55 at 56, the
-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 state
10 legislatures and don' t function in the same manner as regards
11 state legislation, see U.S. v. 37 Photographs, supra, the end
12 result 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 Tilton v. Richardson, 403 U.S. 672 at 684, where Chief Justice
18 Burger noted :
19 "The cardinal principle of statutory construction is to save
and not destroy. "
20
21 The question 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 appeal of a city ordinance after a state court decision by the
28 California Supreme Court upholding the ordinance on its face )
-39-
1 remanded the case back to the California Supreme Court for further
2 statutory construction by the state court, notwithstanding it held
3 the ordinance to be unconstitutional on its face. See in this
4 ! regard , Justice White' s opinion announcing the judgment of the
5 Court at page 823, footnote 26, wherein he addresses the issue of
6 ; severability 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 properly 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
of this [severability clause] consequent on our decision is a
13 matter 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 may 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 (9th 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 Initiative is "flagrantly and patently violative of express
5 ' constitutional prohibitions in every clause, sentence and
6 paragraph, 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 Pfister, 380 U.S. 479 at 490, as those footnotes relate to a
11 correct understanding of the Spokane Arcades, Inc. decision. That
12 judgment is binding only in so far as that plaintiff (Spokane
13 Arcades, Inc. and that defendant [Brockett] ) is concerned.
14 Properly understood , the Dombrowski footnotes hold that,
15 notwithstanding a federal court may declare a state statute to be
16 unconstitutional on its face so as to warrant the granting of a
17 federal injunction against the application of the statute to the
18 plaintiff, the state governmental authority may thereafter seek a
19 restrictive 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 be unconstitutional on its face, took it upon itself to remand
25 the cause back to the California Supreme Court for re-evaluation
26 as to whether the California Supreme Court could render the
27 ordinance a "limiting construction" which would "save" the
28 statute .
-41-
1 In the light of this recent development in the law, in the
2 Metromedia 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 certain provisions of the 1977 Washington State Initiative can be
11 constitutionally 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 County. Having failed to initiate a state action and require that
17 the state issue be resolved in the state courts, Brockett fell
18 prey to that factual distinction which separated his case from
19 Middlesex County.
20 The judicial inefficiency4" of permitting the federal system
21 4" In a speech prepared for delivery at New York University on November 18,
1982, Chief Justice Warren B. Burger has warned that if some drastic changes
22 are not made, state and federal court systems could "literally break down
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 cannot continue at the present rate, ' Burger said. 'It is not just a
matter 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 render judgment thereon which, in the final analysis under
3 Dombrowski, are and must be inconclusive, when 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 City, 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 issues 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 United States v. Raines, 362 U.S. 17 (1960 ) , where the High
22 Court held , at page 21:
23 This 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. 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
tio situans in 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 permit 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 allow the state courts the opportunity to construe the ordinance
12 and, if necessary, to invoke a limiting construction. See page
13 25, line 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
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 has held
that a state statute should not be deemed facially invalid
23 unless it is not readily subject to a narrowing construction
y 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 command. ' Id. at 297, 87 S.Ct. at 547. " (Our emphasis. )
2 At 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 narrowing 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 clearly 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 '"R" at page 2, lines 4-5 ),
19 is erroneous 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 to lawful
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
9 other 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:
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 1 not establish a zoning violation inasmuch as the continuing course
2 of conduct -must be presented "in a manner which appeals to a
3 prurient interest" .
4 There is no prior restraint. Conduct which is not protected
5 by the First Amendment is regulated within the specified areas,
6 - but only if the exhibition amounts to a continuous course of
7 conduct 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 proceedings 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 only 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 "irreparable 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 applied to the plaintiffs ' proposed use of the Renton and Roxy
26 Theatres: First,' enactment of the zoning ordinance is within the
27 police 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 adoption of the zoning ordinances is important and substantial.
2 (See page 33, line 12 et seq. , supra. ) ; Third, the governmental
3 interest 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 year before Plaintiffs announced their intention to operate an
7 adult motion picture theater within the City; Fourth, the
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 which 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 serious 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-
I1 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 .
r . 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
20 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
"K" 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 59M,
12 and that 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 • •
18
19
20
21
22
. 23
24
25
26
27
28
-50-
1 CERTIFICATE OF SERVICE
2 I hereby certify that , on this oc"-- 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 served :
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'
ci
18 DATED: December 1982 .
19 /; /7
20
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
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 for presenting motion picture films, video cassettes, cable
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":
II
(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, '7Ecoees ,0 ."JE,c.D Cierk of the
City of Renton, Washington, Certify that this is a true
and cortsct cm of.0419..1.N..ANC.C..6..., , .6.. .
Subscribed sad Seated this�� / "day of , , lta�a
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 o•f 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 (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 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 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 April , 1981
e ores A, ead City 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.
J• •
a
. C�CD1�Cr
r-� 9 1982 J
WARREN ik KELLOGG
. Cy
; 1 .
2
3
4 • - .
•
6
7 .
1
8 UNITED STATES DISTRICT COURT .
9 FOR THE WESTERN DISTRICT' OF WASHINGTON
10 PLAYTIME THEATRES, INC., a • )
Washington 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 ) AND PERMANENT INJUNCTION
•
15 )
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 )
1 ' the City of Renton; serve on: )
1 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 )
27 only. )
•
28
COME NOW Playtime Theatres Inc. and Kukio Bay-Properties
29
Inc. , bodies corporate of the State of Washington, by and through
30
their attorneys, Jack R. Burns and Robert Eugene Smith, of counsel,
31
' •
•
0:
Amended and Supplemental ATTORNEYS ATLAW 6
Complaint • Hubbard, Burns&Meyer
i Page 1 A PROFESSIONAL SERVICE coI{'oRAT1oN
` 1060a N.E.38th Place.Suite 105
--- • Kirkland.Washington 90033
1
•
1 1 and seek a declaratory judgment as well as a preliminary and
2 permanent injunction with respect to City of Renton Ordinance No.
3 3526 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 support of their cause of action, state:
7 I. JURISDICTION
8 1. This is a civil action whereby plaintiffs pray for a
9 preliminary and permanent injunction enjoining the defendants from
10 enforcement of the City of Renton Ordinance No. 3526, a copy of
11 ' which is attached hereto, as Exhibit "A" in support of this
12 complaint, the contents of which are incorporated herein by
13 reference,• on the grounds that said ordinance and the multiple
14 provisions thereof are unconstitutional as written, and/or as
15 threatened 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 threatened to be applied to the plaintiffs. The allegations to be
19 set forth in the premises establish that there are presented
20
questions of actual controversy between the parties involving
21 substantial 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&Meier
Page 2 A PROFESSIONAL SERVICE CORPORATION
• 10h114 N.C..1Mh 19xr•4qr IOS
Malawi.W..hinMo n•M011
IuIIN n:n'III Ib
• vl
•
•
•
1 and costs, and arises under the Constitution
laws or treaties of the United States.
li 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 .. .11
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
15 immunities secured by the Constitution and •
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
Y8 by such judgment.
P9 II. PARTIES
30 3. Playtime Theatres, Inc., a corporate body of the' State
31 of Washington plans to operate pursuant to a written lease agree-
Amended and Supplemental ATToa+ErsArLAW
Complaint Hubbard, Burns&Meyer
Page 3 A PROCESSIONAL SERVICE CORPORATION
10601 N.E.38th Place.Suite 10S
• Rirktand,Washington 98033
12061 8284636
' J
•
1 ment, a motion picture theatre which is located at 504 South 3rd
2 Street, within the .city limits of Renton, State of Washington. The
3 enterprise will he operated under the name of the Roxy Theatre.
4 Playtime Theatres, Inc. will also operate pursuant to a written
5 lease agreement, the Renton Theatre at 507 South 3rd Street, within
6 the city limits of Renton, State of Washington.
7 Kukio Bay Properties, Inc. , a body corporate of the State of
6 Washington has purchased the motion picture theatres described in
9 the 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 diately 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 Inc. will have the option to renew said leases for an additional
19 term of ten years terminating on January 26, 2002. The lease
20
agreements to be entered into by the parties provide that the
21 premises by used for the purpose of conducting therein adult motion
22 picture theatres. Playtime Theatres, Inc. took possession of said
23 theatres on or about January 27, 1982 and on January 29, 1982
24 planned to begin exhibiting feature length motion picture films for
25
adult audiences.
26
From on or about January 29, 1982, under the operation and
27
management 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
� I
ATTORNEYS AT LAW
Amended and Supplemental Hubbard, Burns f>Meyr'r
Complaint A PROFESSIONAL SERVICE CORPORATION
Page 4
10604 N.E.36rh Place,Suite 105
Kirkland.Waslrinston 96033
12061 828.3636
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 defendants herein as members of the City Council of the City of
11 Renton 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 acted and/or threaten to act to plaintiffs' immediate and
19 irreparable harm under color of authority of the Ordinance No. 3526
20 heretofore identified as Exhibit "A".
21 The named defendants, in their official capacity as afore-
22 mentioned, 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 of this Court.
26 •
27 III. FACTUAL ALLEGATIONS
28 10. The instant ordinance was passed with the sole purpose
29
to prevent 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.3E1h Place.Suite 105
Kirkland.WashinKion 9R033
12061 112e.1616
•
w '
1 protected First Amendment press materials available to adult
2 citizens 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 state 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 Administrative Assistant to the Mayor of the City of Renton has, as
10 aforesaid, advised that if the property of the plaintiffs is used
• 11 to exhibit 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 matic 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 public, access to such erotic materials which are not otherwise
19 obscene 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 (1975) 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 have contracted to purchase, and requiring them •to move their
25 business to a selectively obscure geographical location, violates
' I 26 the plaintiffs' rights under the First, Fifth, Sixth and Fourteenth
27 Amendments 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
part of their fare, erotic films, the City of Renton by its agents,
31
Amended and Supplemental ATTORNEYS AT LAW
Complaint Hubbard, Burns&Meyer
Page 6 , A PROTESSIONAL SERVICE CORPORATION
10604 N.E.36th Plate.Suite 105
Kirkland.Washington 98033
12061 626)6l6
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,
5 413 U.S. 483 (1973); and Roaden v. Commonwealth of Kentucky, 413
6 U.S. 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 will deny the plaintiffs the right to engage in said business in
9 the 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 totally depriving your plaintiffs, as well as others similarly
14 situate, from their normal business activities. This will have a
15 chilling effect on the dissemination and exhibition of adult film
16 fare to those interested adults who seek to satiate their educe-
17 tional, 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 abuse of legislative discretion and is not rationally related
27
and also deprives plaintiffs of their equal rights under the
28
•
Fourteenth Amendment of the Constitution of the United States; and
29
further by its use has language that is intrinsically vague and
30
void under the First and Fifth Amendments to the Constitution of
31
Amended and Supplemental ATTORNEYS AT LAW
Complaint Hubbard, Burns&Meyer
Page 7 A PROCESSIONAL SERVICE CORPORATION
106M N.E.3Mh Place.Suite 105
Kirkland.Wathmdlon 9e033
12061 R2EJ616
•
1 the 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 curtailed. 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 United States. The defendants, by their agents, servants and
9 employees, and/or their attorneys, by enacting such a wholly
10 unconstitutional ordinance, and now threatening to enforce the
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 Amendment to the Constitution of the United States, as well
16 as the 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 Fourth, Fifth, and Fourteenth Amendments to the Constitution of the
20
United States, and this is merely a design and scheme on the part
21 of the defendants to force the plaintiffs and others similarly
22 situate out of business, under color ,and pretense of claimed
23 enforcement 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
picture theatre.
28
16. An adult motion picture theatre is not a permitted use
29
within any zoning classification currently in use within the City
30
of Renton. Accordingly, in order to locate an adult motion picture
31
•
Amended and Supplemental ATTORNEYS AT LAW
Complaint Hubbard, Burns 6,Meyer•
Page 8. A PROFESSIONAL SERVICE CORPORATION
1060a N.L.38th Place.Suite IDS
Kirtland,Washington 98033
-- (2061 828•3636
•
1 theatre anywhere within the City of Renton, it is necessary to
2 obtain 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
1
5 authority in the Hearing Examiner, Board of Adjustment and/or City
6 Council to deny such special permit, conditional use or variance.
7 No objective 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 various matters to be considered by the Hearing Examiner and/or the
15 Board of 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 potential for an unreasonable burden upon free speech and, as
1923 applied to plaintiffs and a motion picture theatre, they are
impermissibly 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 absence of narrowly drawn, reasonable and difinitive standards
25 to be followed in the exercise of said discretion violates
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.38th Waco.Suns 105
Kihland.Washington 96033
12061 1126)636
•
•
•
1 19. Further, since the Hearing Examiner, Board of
2 Adjustment and/or the City Council have no narrowly drawn,
3 reasonable 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 question.
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 the defendants in violation of plaintiffs' substantive and due.
16
process 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 First 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
amendment, and the public, including both adult citizens and
27
visitors to the City of Renton have the same constitutional right
28
to view said adult motion picture film fare as may he 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 fr Meyer
Complaint
Pay,e 10 A PROFESSIONAL SERVICE CORPORATION
10604 N.E.)Nh Place.Stole 10S
N.kLnd•WaihmgInn 99033
00d R2M16)L
•
•
I Further, the conduct of the defendants and their agents, servants,
2 employee's and/or attorneys and others, acting under their direction
' J 3 and control in attempting to refuse to allow plaintiffs to operate
4 their businesses in the City of Renton, unless they remove
5 themselves to" some obtuse selectively obscure geographical site,
6 will have the draconian effect of denying plaintiffs and others
7 similarly situate, access to the marketplace, and the viewing adult
8 public the right to satisfy its interest for adult film fare.
9 22. As a further result of the unconstitutional ordinance
10 enacted by the City Council and approved by the Mayor, as well as
11 the threatened conduct of the defendants to force plaintiffs to
12 not engage in their businesses, plaintiffs have been required to
13 retain attorneys to pursue their rights under the First, Fourth,
14 Fifth; 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
18 to the Constitution Of the United States.
. 19 23. The City of Renton zoning ordinance designated herein
II20 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:
1 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-
28 tion" in Section II(A)(4) or "distinguished or 'charac-
terized by an emphasis on matter depicting, describing
30
, or relating to "specified sexual activities" as 'used in
31
Amended and Supplemental ATTORNEYS AT LAW
. Complaint Hubbard, Burns&Meyer
Page 11 A PROCESSIONAL sERVICE CORPORATION
10604 N.E.30th Mace,Suite 105
Kirkland,Washington 96033
120611128.3636
. w
� •
•
•
•
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
t3 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 AT LAW
Complaint Hubbard, Burns&Meyer
Page 12 A PROFESSIONAL SERVICE CORPORATION
• 10604 N.E.Rah Place.Suite 10S
Kirkland.Washington 91033
•
1206)828.3636
•
•
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
,P 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 final prompt 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• P Y 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
Amended and Supplemental ATTORNEYS AT LAW
Complaint Hubbard, Burns&Meyer ,
Page 13 A PROFESSIONAL SERVICE CORPORATION
10604 N.E.30th Place,Suite 105
Kirkland,Washington 98033
Q061 828.3636
•
•
It
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 lame 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 uate safeguards, which due
g 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, by its 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 J
Amended and Supplemental ATTORNEYS AT LAW
Complaint • • Hubbard, Burns&Meyer
Page 14 A PROFESSIONAL SERVICE CORPORATION
+ 10604 N.E.38th Place.Suite 105
Kirkland,Washington 98033
0061 828.3636
•
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
I 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
18 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
23
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
, ! feature of substantial business interests and assets.
27
28 24. Plaintiffs herein aver that their rights afforded under
29
the First, Fourth, Fifth, Sixth and Fourteenth Amendments to the
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 PROCESSIONAL SERVICE CORPORATION
_ 10604 N.E.38th Place.Suite 105
IGr6land.Washinpon 98033
12061 828-3636
•
•
•
�4W•
• : %-I,t4 KE(iQGG
O.
1 and 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 went thereof by said defendants acting under color of state law, is
7 in furtherance of a scheme, plan and design to prevent any business
8 activity which may offer for sale or exhibition adult press
9 materials in the City of Renton to the adult public.
10 26. Those portions of the Renton Municipal Code contained
11 in Chapter 4-722 relative to the issuance of special permits,
12 conditional 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 20 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
* * * * *
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 • * * * * *
Amended and Supplemental ATTORNEYS ATuw
Complaint Hubbard, Burns&Meyer
Page 16
A PROCESSIONAL SERVICE CORPORATION
10E04 N.E.bth Place.Suite 10S
Kihlnd.W+thnition l%O2)
OW 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
y, 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
17 plan; (d) the most appropriate use of land through the
city; (e) etabilization 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
Amended and Supplemental ATTORNEYS AT LAW
Complaint Hubbard, Burns&Meyer
Page 17 - A PROFESSIONAL SERVICE CORPORATION
10604 N.E.38Ih Pace.Stine IDS
•
Kv►4,nd.Washmglon 90033
(2061 132133636
•
I �
•
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 provision's 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
Amended and Supplemental ArrORNInATLAW
Complaint Hubbard, Burns&M
yer
Page 18 A PROCESSIONAL SERVICE CORPORATION
106M N.I.LI1h ce.Sure 105
Kirtland.WalhinelPon 9e03)
12041 828 3636 _
•
1 J
1
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
i 9
1 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
I15 • 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
II22 enter a declaratory judgment, declaring Ordinance No. 3526 to be
23 unconstitutional 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, Sixth and/or Fourteenth Amendments to the Constitution of •
28 the United. States.
27 28. Plaintiffs seek a preliminary and permanent injunction
28 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 AT LAW
Complaint Hubbard, Burns&Meyer
Page 19 A PROFESSIONAL SERVICE CORPORATION
' 10604 N.E.38th Place.Suite MS
Kirkland.W,thinron 9E0)3
0061 82676)6
\_i
•
1 1. That defendants be required to answer forthwith this
2 Amended and Supplemental Complaint in conformance with the rules
3 and 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 r in and/or part, and that this Court further declare the ordinance
7 to be unconstitutional in its threatened application to the
6 plaintiffs.
9 3. That a Preliminary Injunction issue from this Court upon
10 hearing, restraining defendants and their agents, servants,
ti
11 employees, and attorneys, and others acting under their direction
12 and 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 Ordinance No. 3526 in whole and/or in part, by arresting plain-
16 tiffs., their agents, servants or employees, and/or threatening to
17 arrest plaintiffs, their agents, servants and employees and/or
18 harassing, threatening to close, or otherwise interferring with
19 plaintiffs' peaceful use of the premises.
1
20 4. That upon a final hearing, that this Court issue its
21 Permanent Injunction prohibiting the defendants and/or their
22 agents, servants and employees, and/or others in concert with them,
23 from 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-
26
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
Amended and Supplemental ATTORNEYS ATLAW
Complaint Hubbard, Burns&Meyer
Page 20 A PROEEssIoNAL SERVICE CORPORATION
10601 N.E.301h Peace.Suite 105
'Aland.Washington 9E033
I 0061 028.3636
•
•
•
1 '
i
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 h MEYER
6
By .
7 Jac \R. Burns
Attorney 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, 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
standing.
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.
P4 3. That said corporations are the plaintiffs in the within
25 proceedings.
28 4. That he has read the complaint to which this affidavit •
27 is affixed 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 will, if upheld, have the effect of depriving plaintiffs Of
Amended and Supplemental ATTORNEYS AT LAW
Complaint Hubbard, Burns&Meyer
Page 21 A PROFESSIONAL SERVKE CORPORATION
10604 N.E.3Et11 Mace.Suite 105
Kihbnd.Washington 900)2
12061 l28J626
" L
•
t_
•
1 access to the marketplace to exhibit their presumptively protected
2 First Amendment wares of adult film fare; and further, will deny to
3 interested adults, the access to such material for their informa
4 tion, education, entertainment, literary, scientific or artistic
5 interests, as'.well as subject plaintiffs, their agents, servants
6 and employees to criminal arrests and confiscatory fines and
7 forfeitures 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
10 Street, 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.
I 13 Dombrowski v. Pfister, 380 U.S. 479 (1965).
14
15 (. ) .
Jack\R. Burns
16
17 SUBSCRIBED AND SWORN to before me this day of
February, 1982.
18 , • I •
1 19 •C�c-,e '
. Notary 1 c in and for the
Staff (W��hington residing
G(�
20 at - '�
21
22
23
24
25 •
26 •
27
28
29
•
30
31
Amended and Supplemental. ATTORNEYS ATLAW A . ,
Complaint Hubbard, Burns&>Meyer
' Page 22 A M:OCEs9oNM SERVICE CORPORATION:
• 10604 N.E.I6th Mace.Suite 10S
• Kirkland.W»hindton 911033
--- P0616763 36 •
.I qIL('I IY lalll YlilUM
• Si.
COUNTY OF KING
t•.1X.Lett.t.i..l:lll...AIL!ID City Clerk in and for the City of Renton.
—.mu.;ion.do hereby certil hag the Ioregoinp Ordinance Is a true and cared
• •.Ipr sal Oroinanre No..,+ , of the City of Renton.u it appears on file
•n n.• ••u•co,and do further certify that the same has been published according
•
, 'n Witnen Whereof I hays he unto sat rnr11114 and affixed Iha seal oft
• //Sty of Renton.thit�...—.t71MJ dy of ti—FC.FM R r Ie
•
a�(1•f L�— 'City Clara
•
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
Regulations) of Ordinance No. 162S entitled "Code of General Ordinance;:
of the City of Renton" is hereby amended by adding the following
subsections: •
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 on matter depicting. describing or relating to "specific,
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
(b) Human male genitals in a discernible turgid state,
•
even if completely and opaquely covered.
•
• -1-
•
Exhibit _..
, ,
•
•
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. Adiilt 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-I. SR-2, R-1, S-1, R-2, R-3,
R-4 or T) or anv 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 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 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 April . , 1981
Delores A. ea , ity C erk
APPROVED BY THE MAYOR this 13th day of April , 1981.
Approved as to form: WiTITiFi Y. Shinpoc , Mayor
•
awrence 3. rren, Ciry %1t.toniey
Date of Publication: May 15, 1981
I I
I
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.
`I i .
{ r A
•
•
1
2
3
4
5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
6 CITY OF RENTON, a )
• municipal corporation,• ) NO. 8 2 - 2 — 0 2 3 4 4 - Z
7 - )
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 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 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 believes, and therefore alleges that on or about January 26,
32 1982, Defendant KUKIO BAY PROPERTIES, INC. purchased two
WARREN&KELLOGG.P.B.
COMPLAINT FOR DECLARATORY JUDGMENT ATTOIINfTf AT CAW
PAGE 1 tM w.RICONO ff..P.o.wi uA
RANT011.WA.MI"fTOM 93o57
asf.ff711
I
•
•
1 motion picture theaters within the city limits of Renton,
.2 King County, Washington known as the Renton Theater and Boxy
3 Theater, commonly described as 504 and 507 South Third
4 Street, respectively, and more particularly described as
6 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
a3 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 and
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 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 Q KELLOGG.P.B.
• AT LAN
PAGE 2 ..O.O.SECOND.T..P.O.bait,..
• aINTOM.WA.MIM.TOM•11057
S55.0 71
•
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
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. ,
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
1, 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 Ave. So. •
•
25 c. 620 feet from Renton High School, located at
26 400 So. 2nd Street, and 470 feet from St. Anthony's Parochial
27 School, located at 314 So. 4th Street.
28 7. Location of Roxy Theater: The Roxy Theater is
29 located within the following distances of the following
30 existing zones and uses:
•
31 a. ' There is a multiple residential use.as a part
• 32 of, or adjacent to, the Roxy Theater.
COMPLAINT FOR DECLARATORY JUDGMENT WARREN KELTLAW P.S.
PAGE 3 t.o w.:CONo VT. a:e:.,.
IItNYOM.WASMIMSTOM 11U017
195.9478
•
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 328 Smithers
7 Ave. So.
8 c. 420 feet frotn 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. P.laintiff 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 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.
31 d. Plaintiff claims that, pursuant to the
32 provisions of the City of Renton Ordinance No. 3526, an
WARREN R KELLOGG.P.S.
. COMPLAINT FOR DECLARATORY JUDGMENT ATTO AT LAW
PAGE 4 WO 90.EEeOMO 9T..r.o.wE U•
RENTON.WAGNINSTOM ee007
• *Ee.p7e
•
•
1 "adult,�matio�s rpi,•G:ture theater". is a permitted use within the •
2 8-1 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 prior 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 United 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 82-59M, that City of Renton
• 15 Ordinance 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 failure to request an administrative determination of the
27 necessity •of application for a special permit, conditional
28 use or 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&KELLOOG.P.$.
PAGE 5 ATTO ATOM
TM DO.SECOND OT..P.O.DOE DDD
IturreN.WAS.ON.TOM 111110117
={D.DD7D
•
Lx,e ,i1.• r..gir-edrn:twexlaaust their . administrative remedies prior tQ rigjWrr-es:: "iu.a,_.5t. .•
2 the filing of a lawsuit raising said claim.
8 f. Plaintiff claims that City •of Renton Ordinance
4 No. 3526 prohibits the Defendants from using the specific
6 • 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 parties hereto may be determined.
10 WHEREFORE, Plaintiff prays for relief as follows:
11 1 . . That the Court declare that City of Renton
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 .specifid 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", 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
WARREN Q KELLOGG. P.B.
COMPLAINT FOR DECLARATORY JUDGMENT ATTOMMMMMATLAM.
PAGE 6 L.O.D...COMD R..P.O..O■U..
RENTOM.WASH, 98057
131.N7/
• ..
•
•
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 ELLOO,
Attorney for Plaintif
10 •
11
12 •
'14
• 15
• 16 •
17
18
19
20 •
21
22
23
24
•
25
•
26
•
27 . .
•
28
29 •
30
•
31
32
COMPLAINT FOR DECLARATORY JUDGMENT WARREN 01 KELLOOG.P.S.
PAGE 7 ATiONM;7/
• ISO 00.I;COMD R.,. O.P.O.10;Ole
• •
RAMMON.W11U141M.T .Deoe7 .
• 155.1171
•
' • - CEFRTiFIC TE •
I, the unaerslgned,Qehke-es A A Clerk of IN,
City of Renton, Washington,gt certify that this Is a true
and correct copy of_t?=Le% �'44•54-1-7•�`v...
Subscribed and Sealed this day ot. 7 i9.,1?vZ
i// 'uf} . 7/ d
City C rk
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
Regulations) of Ordinance No, 162S entitled "Code of General Ordinance:.
of the City of Renton" is hereby amended by adding the following
subsections:
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 "specific(
sexual activities" or "specified anatomical areas" as hereafter defined.
for observation by patrons therein. .
2. "S`cified 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. "Si ecified Anatomical Areas"
(a) • Less than completely and opaquely co..cred 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-
ATTACHMENT "A" RECEIVED FED 1 9 1982
•
. j•*. . - ' ' . ,•.
SECTION II: There is hereby added a new Chapter to Title
IV (Building Regulations) of Ordinance ! o. 1628 entitled "Code of
General 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
l
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 •••r institution
j 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 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 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
i 13th dayof
April 1951
/
`%1
e ores A: eaa, pity Clerk
APPROVED BY THE ;MAYOR this 17th day of April . 1981.
3c.A, •S o
Approved as to form: �"
•
,-. Tlar6araZhinpoc aynr
awrence 'J:—arrcn,-•CT(•v Atl6riicy�
• Date of Publication: May 15, 1981 •
1
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.
1
• I • • *C=\:._CEIVa=
FEB 2 2198Z •.
1I WAL I - I. iwwUV .r _-- I
2 U.S. DISTRICT- JUDGE ( FEB 2 2: 2
4 j --_ I
5 ' .�
6I •
8 I UNITED STATES DISTRICT COURT
9 I FOR THE WESTERN DISTRICT OF WASHINGTON
10 PLAYTIME THEATRES, INC., a Washington )
corporation, and KUKIO BAY PROPERTIES, . ) NO. C82-0059M
11 INC., a Washington corporation, ' )
MOTION TO DISMISS
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., )
)
15 Defendants. )
. - )
16 •
I • 17 I COME NOW the Defendants and move to dismiss the above entitled
18 action pursuant to Rule 12(b) (1) and 12(b)(6) of the Federal Rules
I19 of Civil Procedure, in that the Court lacks jurisdiction over the
20 subject matter of the lawsuit and the plaintiffs have failed to
II 1
21 state a claim upon which relief can be based.
22 This motion is based upon the Memorandum of Points and
28 Authorities in Support of Defendants' Motion to Dismiss which
I 24 accompany this motion.
26 Defendants further move that this matter be set for hearing
26 and oral argument as soon as practicable.
•
27 (DATED: February 22, 1982
29 1 c .. .
80 MOTION TO DISMISS 1' /� .,-
PURSUANT TO F.R.C.P. Daniel Kel ogg
81 SECTION 12(b) (1) AND
12(b) (6).
821 WARREN&KELLOGG.P.S.
• I_ ATTORNSYS AT LAW
KO SO.MORO ST..P.O.WU US
I RIwtoN.WAIMIIISTOw 11110117
I • 21111.118711
•
1 . , FEB•
2 21982 .. . . . _. . I .
2 WAL1 LK T. Iwc�UV�R .
U.S. DISTRICT. JUDGE FF;,2 2 _ •
8 '
4
6
6
7
8 . UNITED STATES DISTRICT COURT
9 FOR THE WESTERN DISTRICT OF WASHINGTON
10 PLAYTIME THEATRES, INC. , a Washington )
corporation, and KUKIO BAY PROPERTIES, ) NO. C82-0059M
11 INC., a Washington corporation, )
MEMORANDUM OF POINTS AND:
12 Plaintiffs, ) AUTHORITIES IN SUPPORT
18 vs. ) OF DEFENDANTS' MOTION TO
DISMISS COMPLAINT
PURSUANT TO F.R.C.P.
14 THE CITY OF RENTON, et al., ) SECTION 12(b) (1) AND
18 ) 12(b)(6).Defendants. )
16 )
17 STATEMENT OF FACTS
18 City of Renton Ordinance No. 3526 is a zoning ordinance I
19 ' entitled "An Ordinance of the City of Renton, Washington, Relating
20 to Land Use and Zoning",. By its terms, adult motion picture
21 theaters, as defined in the ordinance are a prohibited land use
. 22 within the area circumscribed by a circle which has a radius
28 consisting 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
family residential use.
27 b. Within one mile of anyublic. or p private school.
28 c. Within one thousand feet of any church or other
religious facility or institution.
29
d. Within one thousand feet of any public park or P-1
80 zone.
81 • The Renton Theater and Roxy Theater, located in the City of
82 MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEFENDANTS' MOTION TO
DISMISS COMPLAINT PURSUANT TO F.R.C.P.. WARREN&KELLOGG.P.S.
ATTORNEY.AT LAW
SECTION 12(b) (1) AND 12(b)(6) P. 1 NIO SO.'MONO ST....O.DO:...
ftRNTON.WASHINGTON•11OE7
• REE.O47O
I
'
J
1 Renton, are owned and operated by the Playtime Theaters, Inc., a
2 ashington corporation (hereinafter called "Playtime") and Kukio
8 Bay Properties, Inc., a Washington corporation (hereinafter called
4 "Kukio"), under lease agreements which provide that such premises
' 5 are to be used for the purpose of conducting the business of an
6 adult motion picture theater exhibiting 'adult film fare. Both
,7 theaters are located 'within the prohibited land use area described
8 by City of Renton Ordinance No. 3526.
9 On January 20, 1982, "Playtime" the lessee and operator of the
10 theaters and "Kukio" the owner and lessor of the premises filed a
11 .leading in this Court entitled "Complaint for Declaratory Judgment
12 and 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, servarits, .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.
(3) A permanent injunction after final hearing; and
22
(4) an award of such damages as plaintiffs have
28 . sustained by reason of loss of business, the
expenditure of assets to enforce rights guaranteed
i 24 by the U.S. Constitution, and reasonable attorney's
fees and other damages as may be established.
25
26 On January 25, 1982, the plaintiffs herein caused an "Order to
27 Show Cause Why Temporary Restraining Order Shall Not Issue" to be
28 issued, which seta 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.
81 Sweigert thereafter filed his "Report and Recommendation" on
82 MEMORANDUM OF POINTS AND AUTHORITIES •
IN SUPPORT OF DEFENDANTS' MOTION TO WARREN a KELL000.0.s.
• DISMISS COMPLAINT PURSUANT TO F.R.C.P: �A !•�a P.
!SECTION 12(b)(1) AND 12(b) (6) P. 2 BOX Ole
,I,T,",WA.","..p"9e057 '
!
,
I -
•
1 February 3, 1982 in which he recommended that the Court deny the
2 Plaintiff's request for a temporary restraining order. In his
8 transmittal letter, the parties were informed that if no timely
4 objections were filed, the matter would be ready for a ruling by
5 the trial judge not later than February 16, 1982.
6 On February 8, 1982, the Plaintiffs served a copy of a
7 pleading entitled "Amended and Supplemental Complaint for
18 Declaratory Judgment and Preliminary and Permanent Injunction"
9 which prays for the same relief as was sought in the original
10 complaint which was filed upon January 20,1982.
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
16 corporation, plaintiff, vs. Playtime Theatre, Inc. , a Washington
17 corporation, and Kukio Bay Properties, Inc. , a Washington
18 corporation, defendants. In such complaint, a copy of which is
19
attached' as Exhibit "A" to these points and authorities, the
20 plaintiff is seeking a declaratory judgment to resolve the
21 following controversy and dispute which now exists between the City
• 22 of Renton and Playtime and Kukio relating to their legal rights,
22 duties 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 constitutional on its face. Playtime and Kukio claim that said
27 ordinance is unconstitutional on its face. •
r �
88 b. Renton claims that City of Renton Ordinance .No. 3526
29 is constitutional as it is applied to the specific land use
80 proposed by Playtime and Kukio. Playtime and Kukio claim that said
81 ordinance is unconstitutional as applied to the specific land use
82 MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEFENDANTS' MOTION TO WARREN&KELLOGG,P.S.
DISMISS COMPLAINT PURSUANT TO F.R.C.P. ATTO""tTUT UM
'SECTION 12(b) (1) AND 12(b) (6) P. 3 Iw p•OILCOND•*'.P.O.DOI GIS
.RENTON,WA."I""TO"•00N7
Sss.0117e
•
J
'
I
1 .roposed by them.
2
c. Renton claims that the component parts of City of I
. 7 8 Renton Ordinance No. 3526 are independant and severable and that
Kin County has the duty and ;
4 the Superior Court of Washington for 9
5 .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 .
4 City of Renton and its manifest intention. Playtime and Kukio
8 claim tha
t said ordinance is not susceptible of a constitutional I
I
9 construction and is not severable.d. RentonI
10 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 landI
18 use zoning classifications currently in use within the City of
14 Renton except to the extent that the specific use is prohibited
terms of said ordinance, and that there is no necessity for I
16 the t 16 application for a special permit, conditional use or variance priori
i
17 to the commencement of such specific land use. Playtime and Kukio j
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. I .
21 3526 provides a new use classification within the zoning
laws of I
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
26 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 administrative determination of the necessity of application for a
82 (MEMORANDUM OF POINTS AND AUTHORITIES WARREN a Kt�OG6 's
IN SUPPORT OF DEFENDANTS' MOTION TO
DISMISS COMPLAINT PURSUANT TO F.R.C.P. ARRE o"p�•AT o"O.PS
SECTION 12(b) (1) AND 12(b)(6) P. 4 .DOI PIS
Ry"to",Wa."s""To"•t067 •
&SS.SS7S
t '
1 I
. J
. .
1 (special permit, conditional use or variance from which appeal may
2
Ibe made from an unfavorable determination as provided in the Zoning
,
8 Code of the City of Renton, and that said administrative remedies
4 are adequate and appropriate. Playtime and Kukio claim that they
5 are not required to exhaust their administrative remedies prior to .
6 the filing of a lawsuit raising said claim.
8 I LEGAL ARGUMENT II
9 The plaintiffs were denied a temporary restraining order under'
10 their original complaint. They have abandoned their original
11 complaint, 71 C.J.S. S716 and, pursuant to Rule 15 of the Federal
12 Rules of Civil Procedure, have filed an amended pleading. Within
18 the time allowed to file a response to such amended pleading,
14 Re
nton has filed a Complaint for Declaratory Judgment under Chapter).
15 7.24 R.C.W. wherein it seeks to have the state court render its
' 16 interpretation of the constitutionality of City of Renton Ordinance)
, 17 o. 3526 and resolve the same issues which the plaintiffs seek to
18 have litigated in this federal court. Because a state civil action)
19
is now pending in the state court involving the same issues and the
i 1 80 construction to be given a city ordinance, this federal action must
21 be dismissed for the following reasons:
22 Re: Statutory Construction. •
29 (1) Tie 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 onl
26 its face and could not be rendered constitutional by
lany decision of the state court. Stecher v. Askew,
26 432 F. Supp. 997 at 999. The answer to that
question requires a dismissal. i
27
(2) A federal court lacks jurisdiction to I
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. Sec
' 80 People ex rel. Busch v. Projection Room Theater, 17 .
. Ca1.3d 55 at 56. The cardinal principle of
81 statutory construction in such matters is to save
i 82iMEMORANDUM OF POINTS AND AUTHORITIES
IIN SUPPORT OF DEFENDANTS' MOTION TO WARREN N!�KELLOGG,T.S.
!DISMISS COMPLAINT PURSUANT TO F.R.C.P.. ,� &, .A.LAW
(SECTION 12(b) (1) AND 12(b)(6) P. .5 tee Ofl.MONO UT..P.O.t•O=Sig
Ilnt+ow.WUMI 8057
ttt.SS7t
I i
•
1 and not to destroy. Tilton v. Richardson, 403 U.S.
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".
4 Kingsley Pictures Corp. v. Regents, 360 U.S. 684.
6 Re: Jurisdiction & Abstention.
6 (1) Where plaintiffs are unable to plead facts which
would establish the "extraordinary circumstance"
7 exception which the U.S. Supreme Court has mandated
for federal jurisdiction in civil injunction cases,
$ Huffman v. Pursue, Ltd. , 420 U.S. 592, the federal
courts lack jurisdiction and the state action raises
9 a "bar"'to federal action. Moore v. Sims, 442 U.S.
415. For the same reason, abstention is required.
10 (2) Playtime and Kukio have failed to exhaust their
11 administrative remedy re the zoning interpretation
raised in their amended pleading and are concluded
12 by the rationale expressed in Patsy v. Florida
International Univ. , 634 F.2d 900, cert. granted by
18 the U.S. Supreme Court and argument scheduled for
March 1, 1982.
14
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
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 render its application constitutional. Where, as here, the sole
27 question presented to the federal court is the facial ,
28 constitutionality of a state statute,' plaintiff has standing to
29 assert, and the federal court has jurisdiction to decide, 'only one
80 issue: to wit, whether the state statute is unconstitutional on
81 its face and could not be rendered constitutional by any decision .
82 MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT 0F• DEFENDANTS' MOTION TO WARREN&KELLOGG,P.S.
DISMISS COMPLAINT PURSUANT TO F.R.C.P. AMANITA ATuw
SECTION 12(b) (1) AND 12(b) (6) P. 6 NO SO."mo"O IT..P.O•"O6 SSA
RIJITOM.WA,NIN"TOM 96067
l65.6676
• i
I
1 of the state court. •
, I
2 This rule of law was concisely expressed by the United States
District Court, M.D. Florida, Tampa division in Stecher v. Askew, '
I
8 t
4 432 F.Supp. 997 at 999 (1977): I
5 "While as a general rule a State Supreme Court may
construe a statute which appear unconstitutional on its face 1
6 in such a way as to render its application constitutional,
see, e.g., Wainwright v. Stone, 414 U.S. 21 (94 S.Ct. 190, 38
7 L.Ed.2d 179) (1973), there may be cases in which such a
construction, even though attempte , ma —6eTimposs ne Under!
8 the facts alleged in the complaint, the plaintiff has standing!
to assert that this statute presents such a situation. The I
9 plaintiff has standing as to this issue: to wit, whether the
statute is unconstitutional on its face and could not be
•
10 rendered constitutional anz decision of the Florida Supreme.
Court." (Emphasis added).
'11
42 In short, the federal court has jurisdiction to decide the j
18 question of jurisdiction. U.S. v. United Mine Workers of America, t
114 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1974). Where a state !
i
16 statute is susceptible to a construction which will render the !
16 statute constitutional, the federal court must find that it has no I
17 jurisdiction to proceed further, and must allow the matter to i,
18 return to the state court system for an authoritative construction
19 by the state court. This result is mandated by the fact that a
20 federal court lacks jurisdiction to authoritatively construe state
21 legislation. U.S. v. Thirty-Seven Photographs, 402 U.S. 363, 28
, 22 L.Ed.2d 822, 91 S.Ct. 1400 (1971). See Stecher v. Askew, supra, at
28 999, where the court correctly stated:
24 "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 it.' Minnnesota ex
rel. Pearson v. Probate Court, 309 U.S. 270, 273,
26 523, 525, 84 L.Ed. 744 (1940). Furthermore, 'we lack
jurisdiction authoritatively to construe state legislation."
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
plaintiffs to succeed in this Court, they must •
For the
80 successfully demonstrate that no further interpretation could bring
81 the city ordinance under question within the confines of the
82 MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEFENDANTS' MOTION TO WARREN 4 KELLOGG.P.S.
DISMISS COMPLAINT PURSUANT TO F.R.C.P. A77011"nS AT LAW
SECTION 12(b) (1) AND 12(b) (6) P. 7 1.090..cw"o R..P.O.DOI IDS
RENTON.WA9"01•70"98057
•1EA87•
•
1 •rotections insured l the Constitution. If there is Au. saving
2 interpretation which the state court could make, plaintiffs must
$ demonstrate that the state courts will not so construe it. As the
4 Court said in Stecher, supra, at page 999:
1 5 "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 in1
Chaplinsky. In subsequent proceedings under this statute,
7 however, there in 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
' I' 10 demonstrate that the Florida courts will not so construe it. i
(our emphasis. )
11
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 Employment Services v. Hodory, 431 U.S. 471, 480, that is not the
15 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 .
I •
28 federal courts approach the constitutional issue regarding state
24 legislation. Largely because of the doctrine of separation of
25 powers, 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 Ca1.3d 55 at 56, the California Supreme Court noted, in
1 29 this context, at- page 336:
. 1 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 Q KELLOGG.P.S.
• DISMISS COMPLAINT PURSUANT TO F.R.C.P.• •TTOIOILTS AT UM
SECTION 12(b) (1) AND 12(b) (6) P. 8 TOO DO.=ONO ST..P.O.DOA OAS
RIATON.WA."INTION 911007
NO-S171
1
I
I
•
1 - .serious constitutional doubts . . ." (Our emphasis. )
2 and, at page 338:
8 "We are obliged to construe and interpret legislation in
a manner which will uphold its validity. (Citations). Thus,
1 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
7 legislatures and don't function in the same manner as regards state!
I
1 8 legislation, see U.S. v. 37 Photographs, supra, the end result is
9 certain to differ.
1 10 That this Court should allow. the Washington State courts the
11 opportunity to construe the ordinance and, if necessary, to invoke
12 a limiting 'construction is clear. In Erznoznik v. City of
18 Jacksonville, 422 U.S. 205, 95 S.Ct. 2266, 45 L.Ed.2d 125 (1975),
1 ' 14
the Supreme Court, in disposing of a challenge to a city ordinance
15 regulating the types of movies that could be shown by a drive-in
• 18 theater whose screen was visible from the public streets, made the
17 following observation:
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
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 fac alai lly i valid unless
22 it is not readily sub]ect to a narrowing construction 1.1y the
state courts, see Dombrowski v. Pfister, 380 U.S. 479, 497,216,5
23 S.Ct. 1118, 1126, 14 L.Ed.2d 22 (1965) . .,
422 95 S.Ct. at 2276. In Time, Inc. v. Hill, 385 U.S. 374, 87
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
26 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
New York courts will apply the statute consistently with the•
27 constitutional command.' Id. at 297, 87 S.Ct. at 547."
(Emphasis added).
28
, 29 As was stated by Justice Burger in Tilton v. Richardson, 403 U.S.
80 672 at 684 on the issue of "severability" and the importance of the
•
-- 81 statutory construction factor:
' I , 82 MEMORANDUM OF POINTS AND AUTHORITIES
, IN SUPPORT OF DEFENDANTS' MOTION TO WARREN!i KELLOGG.P.S.
DISMISS COMPLAINT PURSUANT TO F.R.C.P. •TTDMMnD AT LAW
SECTION 12(b) (1) AND 12(b) (6) P.
BOO DD.DDCOMD UT..P.O.DO1 DDD
RDMTOM.WADMIMmTOM 9OO57 • I
HIH-HD7H
1 I
•
' ,
1
i
•
•
•
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
5 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 Renton Ordinance No. 3526 were unconstitutional on their face, the
12 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,
19 456 P.2d 317 (Wash. 1969). That issue is more properly a matter
18 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 decision by the California Supreme Court) remanded the case back to
22 the California Supreme Court for further statutory construction by
28 the 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 623, 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 MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEFENDANTS' MOTION TO
DISMISS COMPLAINT PURSUANT TO F.R.C.P..
WARREN R KELLOGG.'r.s.
ATTO11"sT.A*I.
SECTION 12(b) (1) AND 12(b) (6) P. .10 WO W.111GO"0 r.O."O:PIS ,
WY"I"STO"1111O77
is"."•7"
i j
•
•
11
• 1 void on their face; until an acceptable limiting construction
is obtained, the provisions cannot be applied.' ) ; Liggett Co.
2 v. Lee, 288 U.S. 517, 541, 77 L.Ed. 929, 53 S.Ct. 481, 85 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. ' ); Dorch v. Kansas, 264 U.S. 286, 291, 68 L.Ed. 686,
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
9 infringing on protected speech. Compare United States v.
Thirty-Seven Photographs, 402 U.S. 363, 28 L.Ed.2d 822, 91
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."
•
14 11
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 HAS 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 may assume jurisdiction under an exception to
the policy against federal judicial interference with state
29 court proceedings of this kind." (Our emphasis. )
80 Upon 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 a KELLOGG,P.S.
R
DISMISS COMPLAINT PURSUANT TO F.R.C.P. ATTtl"" OAT LAW
OG
SECTION 12(b) (1) AND 12(b) (6) P. 11 meb.SZCONDST..P.O.SOX AAA
11E1T014.WA."I"STOM•EO67 •
1155.5575
M •
1
.
•
11 the basic question of jurisdiction was never resolved.
2 During the 1976 October Term, Huffman v. Pursue Ltd. , supra,
, 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.
22, 1977) and Trainor v. Hernandez, 431 U.S. 434, 52 L.Ed.2d 486,
16 496, 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
$ 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,
•
i e
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
19 * In Trainor v. Hernandez, supra, the High Court held that where Huffman v.
Pursue Ltd. applies, the Court should dismiss the case:
.20 "...For a federal court to proceed with its case rather than to remit
appellees to their remedies in a pending state enforcement suit would
confront the State with a choice of engaging in duplicative litigation,
thereby risking a temporary federal injunction, or bf interrupting its
' ,22 enforcement proceedings pending decision of the federal court at some
unknown 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
126
• actions is readily apparent. This disruption of suits Lox the State in its
sovereign capacity, when combined with the negative reflection on the
1 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 the interests of comity and federalism on which Younger and Samuels v.
Mackell primarily rest apply in full force here. The pendency of the state
29 court 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.)
81
82 MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEFENDANTS' MOTION TO •
DISMISS COMPLAINT PURSUANT TO F.R.C.P. WARREN a K[LLOOO.P.S.•
ATTORNEYS AT LAW
SECTION 12(b) (1) AND 12(b)(6) P. 12 T.O SO.=CO"R.T..P.O.RO1.a.
-- RENTON.WA."IR*TON a11057
11113.111671
•
•
•
•
1 principles of Younger-Huffman acted as a bar.
2 While the language of the Court in Huffman v. Pursue, Ltd. ,
' 8 supra, Judice v. Vail, supra, Trainer v. Hernandez, supra, and
4 Moore v. Sims', supra, does not specifically hold that federal
5 "jurisdiction" is in question, that appears, to be at the very core
• ' 6 of the problem. If not, what would be the reason for
7 distinguishing between Pullman abstention and Younger-Huffman
8 abstention?
• s
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
' 18 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.
14 (Dec. 9, 1980). In Allen et al. v. McCurry, supra, a majority of
16 the U.S. Supreme Court had occasion to rethink the legislative
• 16 intent and rationale which authorized federal jurisdiction in Civili
17 Rights cases, (42 U.S.C. section 1983). In that decision, the
18 majority made it clear that, except where the claim was made that a
19 state 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:
26 "...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 adequate in theory, was
80 inadequate in practice. 365 U.S. at 173-174. In short, the
federal courts could step in where the state courts were
81 unable or unwill ni g to protect federal rig th s. Id. , at 176."
82 MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEFENDANTS' MOTION TO
DISMISS COMPLAINT PURSUANT TO F.R.C.P. WARREN&KELLOGG,P.s.
ATTORNEYS AT LAW
SECTION 12(b) (1) AND 12(b) (6). P. 13 • 101 SO.EECOMO ET..P.O.SOX OMB
RENTOM.WA,"IMSTOM 11/O87
t""-SS7"
T (Our emphasis.)
2 See also, Patsy v. Florida International University, et al. , 634
$ F.2d 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,
$ 1982. In other words, it can no longer be claimed that every
6 person asserting a federal right is entitled to one unencumbered
7 •pportunity to litigate that right in a federal district court, at
8 ,•age 319:
9 "...The actual basis of the Court of Appeals' holding
appears to be a generally framed principle that every person
10 asserting a federal right is entitled to oneunencumbered '
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
18 lu i di tic on 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
I '
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 11th 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 U.S.. 66, 27 L.Ed.2d 688, 91 S.Ct. 764, inasmuch. as Playtime and
29 Kukio have an adequate due process remedy in the state court.
80 /// /// ///
81 /// /// ///
82 MEMORANDUM OF POINTS AND AUTHORITIES
• IN SUPPORT OF DEFENDANTS' MOTION TO
' DISMISS COMPLAINT PURSUANT TO F.R.C.P. WARREN&KELLOGG.P.S. .
iATTO""ITA AT LAM
SECTION 12(b) (1) AND 12(b) (6) P. 14 IM se.Moon,ST••P.O.b=sae
ROflO".WASHINGTON 116O57
t1e.u7e
•
III
1 �
2 HAVING FAILED TO EXHAUST THEIR ADMINISTRATIVE
REMEDY IN THE STATE ZONING PROCESS, PLAYTIME
8 AND KUKIO MAY NOT RELY UPON A "STRAWMAN"
CONSTRUCTED UPON AN ERRONEOUS ZONING
4 INTERPRETATION, AS A BASIS FOR FEDERAL
• JURISDICTION.
6
6 In what appears to be an attempt to bring themselves within 1
7 the favorable rule of law expressed in some recent decisions
8 restricting the use of conditional use permit type zoning
9 legislation for adult book stores, see City of Imperial Beach v. i
10 Palm Avenue Books, 115 Cal.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 of Renton Ordinance No. 3526 provides a new use classification
14 which is not a permitted use within any zoning classification
• 16 currently in the City of Renton, thereby requiring them to obtain a
16 special 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 ovie picture theater" is a permitted use within the B-1 and more
20 intensive land use zoning classifications currently in use within
21 the City of Renton except to the extent that the specific use is
22 prohibited by the terms of said ordinance, and that there is no
28 necessity for application for a special permit, conditional use or l
24 variance prior to the commencement of such specific land use.
26 Having failed to exercise their administrative remedy which is
26 available to them in the state zoning process, Playtime and Kukio
27 are concluded from urging that principle as a basis of federal
28 jurisdiction under the well reasoned case of Patsy v. Florida
29 International Univ., 634 F.2d 900, cert. granted by the U.S.
80 Supreme Court and argument schedualed for March 1, 1982.
81 Under its analysis in Patsy, supra, the Fifth Circuit, sitting
82 MEMORANDUM OF POINTS AND AUTHORITIES
'IN SUPPORT OF DEFENDANTS' MOTION TO
.i DISMISS COMPLAINT PURSUANT TO F.R.C.P. WARREN a KELLOGG.P.S.
ATM./WTI AT UM
SECTION 12(b) (1)• AND 12(b) (6) P. 15 goo w.SACOMO ST..►.O.DOS NM
RV TON,WASKINOTOM 90057
sss.ss7s
-- I
•
1len 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 (supra, at page 909 where the Court concludes that the "Ninth
6 Circuit 'has not gone so far' as to infer a blanket no - exhaustion -
6 under - any - circumstances rule from the Supreme Court cases.
Q 'Canton 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
15 Complaint for Declaratory Judgment under R.C.W. Chapter 7.24 filed
18 in the King County, Washington, Superior Court. This Court can
17 take 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
20 the zoning code of the City of Renton, or in the alternative, should
21 have sought the jurisdiction of the state court to obtain a construc- •1
22 tion of the provisions of this zoning ordinance. •
28 CONCLUSION
24 Because of .the pending action in the state court, the federal
25 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.
88 DATED: February 22, 1982.
29- c
80 I DANI LLOGG 0J
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&KEL.LOGG..P S.
ATIOMILTS AT LAM
(SECTION 12(b)(1) AND 12(b)(6) P. 16 ISO SO.*ICOMO S'T..P.O.OOP SSG
POSTON.WYMrMOTOM
*u$.s•T1
�l T 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
Tlr1VFD Dvinninmrmn OFDVTCL' 7,7/' f,Ina l l7A—cRPA CFATTT F G7T CLIT7T!_T!oT'
- 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 Pl .
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
Vl Th 3
li THE CLERK: This is in the matter of Playtime
2 Theatres v. City of Renton, cause number C82-59M. Counsel
3 make 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
1
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
ROVER RFAnWTT! C 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 case, the policies involved and why they 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 which 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)624-5RR6 SRATTT.F _ WACTTTA7r_mnm
-,1 5
1 see or what meets the eye.
2 I ' ll read the first paragraph because those are
3 the most important. It says, "An enclosed building used
4 for presenting motion pictures or films, video cassettes,
5 cable 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 ' specific anatomical areas, ' as here defined, from
10 observation 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 get at a use which, according to my interpretation or at
14 least one interpretation, relates to what you would say
15 was a public nuisance or a course of conduct, and it does
16 not relate to any specific film or the like .
17 Now, the question which is asked and a question
18 that I pose before the court which I think should be
19 resolved in the state court is: What is "distinguished or
20 characterized 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 type of activity is the one which is, I would say, the
24 grossest type of visual display and it has three
25 categories :
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 sexual intercourse or sodomy, and then you get the idea
7 well, 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 such a way that it means a pandering operation.
15 Now, one decision that would have to be made by
16 the state court was : "Distinguished or characterized by
17 an emphasis on matter depicting, describing or relating to
18 specific 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?
2,2 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
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 prostitution 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 what the plaintiffs really were complaining about here.
nnvry vrnnvmTrsr_ erpurrr _ Twr_ (7n61624-5886 SEATTLE. WASHINCTON
. 8
1 Aside from the possible questions of parts of the
2 ordinance that may be subject to interpretation or
3 overbroad 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
1j0 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?
I ,
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
nnvrp RFPnRTTNG 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 state 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 he 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 he a situation
11 in which the city then goes into state court and say they
12 are 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 regular film fare to something else.
17 THE COURT: Let me --
1,6 MR. CLANCY: It takes some action on the part
19 of the theatre owner.
2.0 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
______ _____—___.. .....,..�.... t.,.. /•1nG \c' A_ or Or,mmf L+ G7ncuTM(_mnw.
10
1
•
1 ' result would have been different?
2 '; MR. CLANCY: Absolutely,
3 THE COURT: That is, that the Supreme Court
4 '' would have not affirmed?
5 MR. CLANCY: Well , your Honor, your Honor has
i
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 I rel. and Drease v. Chateau Cinema X, and occurred in the
11 I state of Idaho.
12 I THE COURT: Are both of these cited in your
13 brief?
14 1 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 II is important in this case.
18 I MR. CLANCY: All right, then, here' s what the
19 1 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 legislature in the state of North Carolina and by the
24 state of Idaho. When it went through the state of North
25 I Carolina, it was interpreted in a constitutional manner
1
n nvra r nea rnnenr»n ego nest nee TMr. t.In . Ale-noAC crnmmr.r. wac:T•TTAT(:T(!'7
.�! 1 13
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 there 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.
12
I '
1 There ' s at least two reported decisions which
2 relate to that matter. So I can give your Honor the
3 Chateau Cinema X, which is a North Carolina case upholding
the statute, and the two decisions, one of the Fourth
5 Circuit and the Federal District Court, which ruled upon
the same statute.
7i But the point I 'm saying is the statute that
BB, they were involved in is the identical statute which was
' I
91 passed as an initiative in the state of Washington. So
10' that I am saying that the identical statute that you ' re
111 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, hut here -
18 THE COURT: They were affirmed by the Supreme
19 Court.
II
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 says it' s a substantial federal question as to that
25 statute. So that has the effect of counteracting what
13
11 they did on a simple affirmance without argument in the
21 Washington case.
31 THE COURT: It certainly may be a portend of
41 things to come, I don' t know; but certainly if Justice
51 Burger and Justice Rehnquist have their way, I .think the
I
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
81 entirely different situation here.
1
91 MR. CLANCY: Yes, but what we're arguing at
101 this point is that the federal court in relation to the
111 abstention doctrine should, when the same ordinance can be
121 taken and will be taken through the state court where the
131 state court can interpret, flush out, give substance and
14 , meaning to something, the city council, it should . Of
15 1 course, what I 'm asking to you rely upon, is that your
16 ' Honor cannot interpret because it --
I
17 THE COURT: I agree.
18 MR. CLANCY: You don't have a duty and
I-I 19 1 obligation, you can' t, you don 't have the power; whereas
20 1 the state courts are under a duty, an obligation
1
21 constitutionally, not only state constitution but under
1
22 federal constitution, to interpret the ordinance in a
;
'I '. 23 1 constitutional manner so long as it will not offend any
24 other principles.
I
25 I suggest that the manner in which this
1
14
1 ordinance can be enforced, that is through civil
2 procedures rather than true criminal procedures, then you
3 have the possibility that it can be fleshed out in the
4 state court; and the court here should abstain and permit
5 the state court to do it along the lines that I 've
6 suggested. That' s why I said --
7 THE COURT: Well, but there is an issue. The
8 only issue that' s really before the court in this case is
9 whether -- I agree with the principle that the federal
10 court is not going to authoritatively interpret the
11 provisions of that ordinance or a state statute. We
12 shouldn' t. But it does have the obligation, first of all,
13 to determine whether facially or as applied to the
14 particular person involved in this case on its face,
15 without being subject to any limiting construction, to
16 make it constitutional, and that issue has not been
17 determined in this case; but I think the court has that
18 obligation.
19 Now, one of the points that the plaintiffs in
20 this case have raised is that the effect, the effect of
21 this particular ordinance would be to so limit the
22 opportunity for distributors of adult film fare to present
23 that 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 .
• 15
That' s an issue that' s before this court.
2I 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 only a time-place restriction, a legitimate zoning
5 restriction, then if the other problems that it has might
6' require 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 thing, or at least to say that you fight it out in state
11 court; but that determination has not been made in this
12 case.
13 MR. CLANCY: Well, I think we' re in essential
14 agreement. What your Honor is talking about is the
15 Huffman 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 and 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 to apply it, " and that was interpreted in Stecher v. Askew,
23 432 F.Supp. 997 . Is it possible to apply this in a
24 constitutional manner?
25 Now, if you look at the substance of the
•
.,....�� .,..,.,.mTear. evvvTrr. Tur_ (?n61624-5886 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 the 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 the like; meaning that if the depiction of sodomy in three
17 dimension would be open and lewd conduct and could be
18 prosecuted criminally, then if you photograph it and Fut
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 get 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
FOYER REAflPTTNr SERVTrr_ TN( _ (7f161674-5RR6 SEATTT.F _ WARHTNGTON
17
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 school area, and the question is: Is the city council
6 authorized to say that, "You may not have a course of
7 conduct of these depictions at that type of a theatre. "?
8 That' s 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 which we've cited; that the Detroit type cases, this is
18 another application of his reasoning in the Detroit type
19 case.
20 THE COURT: That' s right, but one of the issues
21 before this court is whether this is a Detroit type case
22 or 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.
1 18
1 THE COURT: By the district judge in Minnesota.
2 That' s 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 and 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 more probably at least the most recent Supreme Court cases'
13 'treatment of that situation, all of them involve
14 enforcement proceedings in the state courts; not one of
15 them involved a declaratory judgment action. They
16 involved enforcement proceedings; and in each case, the
17 language 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 what I said. The Younger case was a situation wherein the .
24 civil court to abate a civil nuisance --
25 THE COURT: The Younger case?
BC)VP.R 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 process. There was no law enforcement, no arrest, no
6 prosecution, no complaint. It was saying that this place
7 is a public nuisance,rwe 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 had 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 attorney 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 have taken through the --
24 THE COURT: Now, what was a declaratory
25 judgment action?
ROYF.R P PnPTTNG srPvTrr_ TNr_ (7n6)624-5RR6 SEATTLR. WASHTNGTON
1 20
1I' 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,
1
4 and they did abate it by injunction. So it was the
51 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
presence of a public nuisance type arrangement through use
10 of the property, and it would be proceeded along in the
ll same 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 they should show a pornographic film knowing that if they
15 show it, they thereafter are going to be prosecuted
16 criminally and penalized for that act. So the mere fact
17 that 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 making 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 then to be convicted and receive the penalty. Therefore,
24 it is a prior restraint. " That isn't the case at all . It
25 shouldn't be in this situation either.
ROYER 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 equivalent 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 unconstitutional . But there' s nothing to prevent the use
20 ordinance 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 equivalent 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
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 that the city then regards it as a public nuisance, they
9 could file for a declaratory judgment that it is a public
10 nuisance because --
11 THE COURT: This isn' t a public nuisance
12 ordinance, 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 could be given to it is that the language thereafter is
18 interpreted to mean a course of conduct, and that the use
1!9 which is prescribed is a course of conduct type of use,
20 and that has to be done by the state court.
21 Certainly, your Honor could say, "Well, the
22 statute can be constitutionally interpreted by the state
23 court. 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
BOYER 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 the McCurry case, "Really you have not supplied the
6 sufficient facts in this complaint to state a cause of
7 action 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, Allen 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 the 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
rinvyn pronDTTMP! OVDtrTrt' Tur _ f lAA 1 A 7d_SRAc CFATTT.F _ WACNTmn,r m
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 States 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 complaint to see if they have so framed it with sufficient
13 facts 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
116 didn' t have the federal cite but I got it, it' s Alfonse
17 Reichenberger v. Pritchard, 660 F.2d 280, 1981 . Rehearing
18 denied, 10-21-1981 . That' s a Seventh Circuit case. They
19 go off on the situation of failure to state a claim upon
20 which 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 what we say because they have not pleaded sufficient facts
2 to get 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 the 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 that, "Flagrantly and patently violative of every express
12 constitutional 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 that.
19 I want to know and I think the important
20 determination 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.
26
1 MR. CLANCY: Well , certainly there' s no bad
2 faith, certainly there' s not the irreparable injury that' s
3 great and immediate in Huffman; and the question is, that
4 third question: Have they succeeded there? And we have
5 posed to the court the practical problems which arise in
6 city government in their efforts to cope with the
7 situation and to flesh out a proper type ordinance, zoning
8 ordinance, 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 that the state court can' t handle it. You have to ask
14 yourself: Is this the type of case that a state court
15 should have because it relates to state sovereignty and
16 police 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 area, and we don' t want to enlarge our jurisdiction as to
22 those areas where it' s more properly considered in the
23 state 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 can 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 regular 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 This 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 then lets him go on, and says, "All right, I 'm going to
-1 28
1 take you down in the state court and establish this . "
2 And the state court looks as this, and says,
3 "This 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 everybody 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
111 state courts can interpret a statute and they can apply a
12 given 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.
1
19 Clancy referred to out of Idaho, the U.S. Supreme Court
20 took jurisdiction of, a motion to dismiss has been filed
21 by the parties who appealed that case. So it' s unlikely
22 that the Supreme Court will have a chance to reconsider
23 their F
rulings in Spokane Arcade.
24 What we have, your Honor, at issue, as I
1
25 perceive the court' s questioning: Is this a Younger v.
29 ,
1 Harris abstention issue? As Mr. Clancy pointed out, both
, 2 Mr. Clancy and myself were the original counsel in Huffman
3 v. Pursue and, of course, since we were in it, we have a
1 4 different perspective I suppose than somebody who might
5 read it in a law book; but nonetheless, your Honor,
6 Huffman v. Pursue was the first case where the U.S.
7 Supreme 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 person involved in the litigation. We bought it, so to
17 speak, and knowing that there was an appeal 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 authoritatively construed its statute to limit the
24 construction to the film declared to be a moral nuisance,
25 not to the establishment itself being a total moral
•
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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 Hoffman, 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 been in other cases that the U.S. Supreme Court considered.
19 . Gibson v. Bearhill had to do with Alabama and
20 the 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
e nni .....w•...: ., •.•�..••�........•.
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 hound 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 ' testified 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
RnvRR PrpnvmTmn crp7T(`r Tmr_ /7n 1F,7d-SRRA Cr/J.TTT.F WAcuTmmmnm
} 32
1 a law that says that you must exhaust administrative
2 remedies, 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 .
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 claim, X number of days for the hearing examiner to decide,
4 all of that is built in.
5 The procedural due process, we' re dealing with
6 potentially First Amendment matters, is built in that far,
7 but 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 the adequacy of the state administrative remedies, because
15 these parties are moving on a motion to dismiss and
16 consistent with the Ninth Circuit decision in the Spokane
17 School 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,
2.1 there was the failure to have time periods within which we
22 may 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 been 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 pleaded our 1983 action, and I think we have answered as
6 best 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 other than what I have done and Mr. Burns has done, and I
9 would then rest on our pleadings.
10 MR. CLANCY: Your Honor, may I respond?
11 THE COURT: If he' ll give you Fart of his time .
12 MR. SMITH: We' ll give him part of time, your
13 Honor.
14 MR. CLANCY: Fine. Thank you very much, Mr.
15 Smith. Your Honor, there' s only a couple of things . I 'd
16 like to explain to the court how that administrative
17 remedies 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 briefs in that respect, because of the amended complaint.
21 MR. CLANCY: But there' s something beyond that.
22 There wag- in the testimony of David Clemens on January
23 29th, 1982, which your Honor has a copy of the transcript,
24 page 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
• 1
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 conditional 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 complaint 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 there' 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
2!5 had not examined the record or we should have indicated to
BOYER REPORTING SERVICE. INC. (206)624-5886 SEATTLE, WASHINGTON
36
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
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
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 interest 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 not 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 arid 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 Court.
14 The United States Supreme Court was looking at
15 the nuisance abatement statute and they gave us, we won
16 the battle but we lost the war, because when they remanded
17 it to see whether or not they had jurisdiction to enter
18 relief, 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 will 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 know 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
DnvL+D DL nnipmTk1f cFAVTrr f 7nc,l Ai7d-SRRA srATTT.F. _ WARHTNf,T(TN
38
1 definitive. The judge dismissed it as moot. The only way
2 we could have boosted it to the United States Supreme
3 Court is to take another appeal, in which instance there' s
a question of whether or not you would ever have been
5 heard in the United States Supreme Court.
6 So as a consequence, it stopped what would have
7 been 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 that they have in Washington, word for word. It was
15 applied twice to two theatres. U.S. Marketing,
16 Pornographic 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 legislature said they' re entitled to attorney fees, "You
25 give them full attorneys fees. " What did they do then?
•
39
11 They then went into the federal court and said,
I •
, 2 "We want to enjoin enforcement of the statute after this
3 decision of the Idaho Supreme Court because of the
4 Brockett case,." and the judge there said "Well, wait a
5 minute now.." He said, "I 've got to abstain. You've got a
direct appeal from the Idaho Supreme Court to the United
• I ,
7 States Supreme Court. I 'm going to abstain, " and further
8 he said, "I think there may be collateral estoppel here. "
911 So then forced with that situation, they took a
10 direct appeal to the United States Supreme Court and, low
1
1
111 and behold, the United States Supreme Court noted
12j jurisdiction in the closure issue and now they have moved
�"1 1
13 ' to dismiss, because they don't want the closure issue
14 ; decided; but in addition, they've said "Well, we made the
1
15 mistake because we started the federal action with the
16 same plaintiff. We now are starting with a different
17 I . plaintiff. We' re going to attack the same statute. "
18 i And they've served the Attorney General on
i
19 1 another action in the federal court attacking the same
20 I statute upheld by the Idaho Supreme Court with a different
I
21 defendant because he will not be collaterally estopped.
22 They're going to move to dismiss, get it out of the United
23 States 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
1
40
1 problems and certainly I 'm not sure that Justice
2 O'Connor' s testimony before congress wouldn' t reflect a
3 view of a number of the judiciary; but nevertheless, the
4 question 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 there is a decision of the Supreme Court that is
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 , no.
18 MR. CLANCY: I 've given you the case, but I
19 suggest that the failure to state a claim, which is that
20 , decision I 've given you, is one way in which the courts
21 can 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 if 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.
41
,
II 11 Thank you, your Honor.
- 1
' 2 THE COURT: Well, gentlemen, my present feeling
,3 and, of course, this will be followed up by a report to
4 Judge McGovern, my present feeling is that the Huffman
5 Pursue line of cases are not applicable here; and that the
6 motion to dismiss should be denied for the reason that I
1
7 think that at least before this court is the issue of
8 whether or not on its face, and as applied to this
1
9 particular plaintiff, where it' s clear on both sides that
- I
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
1
14 ordinance that' s subject to state court construction,
151 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
I
19I that can be presented to the state court as to
201 construction of the ordinance, then the court has to say,
211 "Well, it doesn't suppress. " It' s a Young, it' s a
221 Mini Theatres case, and that' s the end of it.
I
231 But at least the court has to do that, I
- I
241 believe, and I don' t think that Younger and, as brought
, i I
251 into the civil area, that the court has yet gone so far as
S2�1VFD DFDr1DTT1.T/T QFDVTrF TLTr' f nnc lanA_mo04 QDATTT O WAC. ITVOWIFTrWr
42
1 to 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 objections and so forth, but that' s where we are; and, of
12 course, since we continued the matter of the further
•
13 hearing on the preliminary injunction, I think what I •
14 should do is wait till Judge McGovern has acted on my
15 report, set a new time for you if that is even in the
16 cards 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 tome. It may
19 be; 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' ought to be considered prior to the time that Judge
23 McGovern 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
,l 43
•
1 duty and obligation insofar as the defendant is concerned
12 to make certain that we' re going to move expeditiously on
it. 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.
r
7 MR. SMITH: I think --
8 THE COURT: Well, you have a right to note it
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
I '
15 to me. It may be and probably will be, but if it is, it
16 will not be heard on the 2nd.
- I
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
n iaasww •..n ww w..�.... �..� /wwi \i w a c nni ww....�. ... ....�......,....
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
15 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
° 45
1 CERTIFICATE
2
3
4 STATE OF WASHINGTON )
) ss.
5 COUNTY OF KING )
6 I, the undersigned Notary Public in and for the
State of Washington, do hereby certify:
II
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 the time of said proceedings to my qualifications, or to
13 the conduct of any party, have been noted by me upon said
14 transcript;
- I
15 I further certify that I am not a relative or
16 employee or attorney or counsel of any of the parties to
I
17! said action, or a relative or employee of any such
18 attorney 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
221 truth and nothing but the truth;
23 I further certify that the proceeding, as
2411 transcribed, is a full, true and correct transcript of the
25 testimony, including questions and answers, and all
--� 46
1 objections, motions, and exceptions of counsel made and
12 taken at the time of the foregoing proceedings;
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.
1I0
1�1
My commission expires
12 September 18, 1985
13
14 •
15
1
16
17 •
18
19
20
21
22 in C_I ty7 516-1J :1,,_-
23 ; E, �":71�,E:j�•it
24
25
' BOYER REPORTING SERVICE, INC. (206)624-5886 SEATTLE, WASHINGTON
Exhibit "E"
(Reference: Petition at pg. 3,
pq. 12,
pg. 13,
pg. 14. )
U.S. P
Magistrate Sweigert's Report and
9 9
• Recommendation, dated March 25, 1982.
- 1
\ U
• REgEOVED
•
1 MAR 251982
WARREN k KELLOGG
2
by
3 ,
I . 4
5 .
6
• 7 UNITED STATES DISTRICT COURT
. 8 WESTERN DISTRICT OF WASHINGTON
AT SEATTLE °
9 PLAYTIME THEATRES, INC., et al., )
10 Plaintiffs, )
11 v. ) CASE NO. C82-59M
12 CITY OF RENTON, et al., )
• 13 Defendants. )
.. ' 14 )
CITY OF RENTON, et al.,
.__._ 15 )
. Plaintiffs, )
.16 ) i
v. ) CASE NO. C82-263M
----- 17 )
PLAYTIME THEATRES, INC., et al., ) REPORT AND RECOMMENDATION
18 ) ON DEFENDANTS' MOTION TO
'(--- • Defendants. ) DISMISS
19 )
\ 1
20 INTRODUCTION AND SUMMARY CONCLUSION
21 Plaintiffs, Playtime Theatres, .Inc. , and Kukio 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
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
!REPORT AND RECOMMENDATION ON d"
ni-ssr-iisn 'DEFENDANTS' MOTION TO DISMISS - 1
H_' 131.1-1123
16
I
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-
' I
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
I
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•
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
✓r 1 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-4sr—wsn
nw—ms I
1 this case would eliminate the issues set forth above which must
2 be determined on the basis of facts developed at a hearing on the
3 merits. The parties agree that the zoning ordinance is appli-
!4 cable 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 and Younger v. Harris, 461 U.S. 37 (1971) is also without meri .
• 10 Pullman abstention is invoked where a definitive statutory
11 construction by a state court will avoid the constitutional
12 issues presented. The dispositive issue in this action is
a
113 whether the Renton zoning ordinance has the effect of suppress-
14 ing or greatly restricting plaintiffs' access to the market for
- -• - ;15 protected speech or is instead a permissible time, place, and •
1
16 manner restriction as approved in Young v. American Mini
1
- - - '17 Theatres, 427 U.S. 50 (1976) , rehearing denied, 429 U.S. 873
18 (1976) . As previously indicated, there• is no conceivable
i
119 limiting statutory.construction by a state court that would
120 resolve this issue. Abstention is not required. Procunier v.
21 Martinez, 416 U.S. 396 (1974) ; Zwickler v. Koota, 389 U.S. 241
(1967) . Furthermore, abstention is not appropriate merely to
22
allow a state court to construe a state statute in the first
; 23
instance. Spokane Arcades, Inc. v. Brockett, 631 F. 2d 135
( ; 24
(9th Cir. 1980) , affirmed, 70 L.Ed. 2d 468.
25
Younger abstention is invoked to avoid federal interferen•e
..__._.. III 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
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
nt- _wsa DEFENDANTS' MOTION TO DISMISS - 3
IXM—laa
- i
•
.J
1 state contempt proceedings) ; Trainor v. Hernandez, 431 U.S. 434
(1977) (pending attachment proceedings in aid of a state welfa -
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
C9 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
-i -� 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
i
; 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. 51983
27
"unless the administrative remedy is fully adequate to obviate
28
the federal claims." Canton v. Spokane School District No. 81
;
498 F. 2d 640 (9th Cir. 1974) , citing Whitner 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-BST-US7I 1
laN-ms
•
i •
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
6 Dismiss be denied.
• 7 A proposed form of Order accompanies this Report and
8 Recommendation. .
9 DATED this 23d day of March, 1982.
• 10 ��`�
11 l
. PETIlp K. Swbge
12 United States Magistrate
• 1
13
14
15
•
h 16
17
1 18
19
20
21
22
•
•
23
24
25.
I .
26
27
28
•
29
30 '
31
32 REPORT AND RECOMMENDATION ON •
DEFENDANTS' MOTION TO DISMISS - 5
RI—SST—IKTI
lriN—Iris
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 .
• ,,.li! to ,:n,,i.,lu,um
SS •
• COMM Or KING _
.• IEG[i1L•5...��,...� F/��.Goy Ilan in and lot the City of froth...
Washimlon, do hereby erAly Iif,tAe foment Ordinance is a hue and correct
copy of Ordinance No.. ,fir. ,
./.....ol the Cily of Re Mon,as it nor,on file
in my olficc,and do Iuriber certdy Thal the same Ass Dean publs'rcd according
to law.
In Witness Whereof I ha polo set my Ms
hand and affixed eha seal of
City of Renton,this/ yw dryofa[d
/�VL
fittlA/ /l. 7;e4 Cb ORt
CITY OF RENTON, WASHINGTON
ORDIAAi10E NO. 3 29
AN ORDINANCE OF THE CITY OF RENTOO, WASHINGTON
RELATING TO LAND USE AND ZONING
•
WHEREAS, on April 13, 1981, the City Council of the City
of Kenton adopted Ordinance No. 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 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 interest in protecting and preserving the quality of its
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
receive testir.tor. ' from the public concerning the subject of regulation
of adult entertainment land uses , at which the following testimony
was received which the City Council believcs 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
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 ` f
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 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
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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 lane 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.
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
cannot be achieved in close proximity to adult
entertainment land uses.
21.. The initial location of adult entertainment land
F-
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.
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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 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
1 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
; 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.
•
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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
lrnton.
1 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
1 entertainment land uses in close proximity to residenti:'
uses, churches, parks and•other public facilities and •
schools is inappropriate.
1 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.
I NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASIII:
1
IDO ORDAIN AS FOLLOWS:
SECTION I: Existing Section 4-702 of Title IV (Building
'Regulations) of Ordinance No. 1628 entitled "Code of General Ordinance
1
lof the City of Renton" is hereby amended by adding the following suh-
1
'sections: '
"Used" The word"used" in the definition of "Adult moti
1
"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 subsecii.
I (C) Violation of the use provisions of this section is decl:s
to be a public nuisance per se, which_shall be abated by City Attorne':
1by way of.civil abatement procedures only, 'and 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, •
'sexual conduct, lewdness, or obscene or harmful matter or the
I •
(exhibition or public display thereof.
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'
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. I •
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SECTION .III: Existing subsection (A)(2) of Section 4-735
1 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
• 1 school.
1 •
• 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
for 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 Shot 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 sections, subsections, sentences, clauses, phrases or portions
Ibe declared invalid or unconstitutional.
SECTION V: If any section, subsection, sentence, clause,
phrase or any portion of this ordinance is for any reason held to he
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 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
1
Or unconstitutional.
1 SECTION VI: The City Council of the City of Renton finds
and declares that an emergency exists because of the pendency of
• litigation against the City of Renton involving the subject matter of
this ordinance, and potential liability of the City of Renton for
1
damages as pleaded in that litigation, ano that the immediate adoption
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•
•
of this ordinance is necessary for the .immediate preservation of
•
public peak, health, and safety or for the support of city government •
land its existing public institutions and the integrity of the zoning
of the City of Renton. Therefore, this ordinance shall take effect
I '
immediately upon its passage and approval by the mayor.
PASSED BY THE CI'PY COU?ICIL this 3th day of May, 1982.
•� Q j
e ores . Mead6lerk
APPROVED BY THE MAYOR this 3th day of May, 1982.
I •
•
8• S t.poGl•�.
Barbara i 5hinpoch, Mayor
Approved as to form: •
Lawrence J. Warren, City Attorney
Date of Publication: May 7. 1982
• i
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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.
II
L 1
1 I 1�
~� IN THH
2 UNITED STATES DISTRICT COURTi
WESTERN DISTRICT.OF.WASHINOTCN •
3
MAR 25 1982
4
5 Bfl c.KliIFKIN, Clerk
By �� ._.�DePUtyF,LED IN THE
UNITED STATES DISTRICT COURT
6 WESTERN DISTRICT OF WASHINOTON
7 UNITED STATES DISTRICT COURT MAY 5 - 1982
8 WESTERN DISTRICT OF WASHINGTON ,"
AT SEATTLE ''Ig
BRU RIFKIN, Clerk ::''!
9 PLAYTIME THEATRES, INC., et al., ) QY•_L.L. --__Depu r,`-
10 )
Plaintiffs, )
11 )
ti'• ) CASE NO. C82-59M
12 )
CITY OP RENTON, et al., )
13 )
(1112
Defendants. )
14 )
CITY OF RENTON, et al. , )
15 )
Plaintiffs, )
•
j 16 )
17 v• ) CASE NO. C82-263M
PLAYTIME THEATRES, INC., et V al., ) ORDER
: 18 )
• Defendants. )
4. 19 )
..,; 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
• i
•;,, 23
the records and files herein, does hereby find and ORDER:
24 • (1) Said Report and Recommendation is hereby approved an.
)o• a
25 dopted;
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 xo Magistrat Sweigert.
I� DATED this d day of , 1982.
(...±.4./tt.�30
31 CHIEF UNITED STATE DISTRICT JUDGE
32 . 1-4
FrhSST-044$ 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 .
I .
_ I
' I
I
1
•
• 1 i y 014 Magistrate Sweigert
2 Judge McGovern
Date of Hearing:
3 May 21, 1982
4
5
6
7
I UNITED STATES DISTRICT COURT
8 1 FOR THE WESTERN DISTRICT OF WASHINGTON
9 I AT SEATTLE
PLAYTIME THEATRES, INC. , a )
lOWashington corporation, et )
11 al ) NO. C82-59M
12 Plaintiffs )
)
13 vs . )
14 THE CITY OF RENTON, et al. ) JE
.:: :„_:
15 I Defendants.
)
16 THE CITY OF RENTON, a ) NO. C82-263
17 municipal corporation, )
) RENEWED MOTION TO* DISMISS PLAINTIFFS '
18 Plaintiff, j AMENDED AND SUPPLEMENTAL COMYLAINT
FOR. PRELIMINARY AND PERMANENT
19 vs INJUNCTION PURSUANT TO FRCP 12(b) (E)
PLAYTIME THEATRES, INC. , a )
20Was1hington corporation, )
21 et ial., )
22 I Defendants . )
)
23 1 '
CONE NOW the Defendants and renew their previous Motion to
24
Dismiss the Plaintiffs' Complaint for Preliminary and Permanent
25 1
Injnction 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 ATTORNCYS AT LAW
100 P0. SECOND PT.. P. O. PDX 11211
RENTON. WASHINGTON 98037
I 233-8678
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 Pirocedure..
5 This Motion is based upon the amendment of City of Renton
6 Ordinance No . 3526 which was adopted as City of Renton Ordinance
I 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 incorporated 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 Rllport and Recommendation on Defendant' s Motion to Dismiss, all
- 18 of which were previously filed herein and the Memorandum in
19 Support' of Defendant' s Renewed Motion to Dismiss and the files
• 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. 5,;._
24
Daniel Kellogg, Att ney 25
City of Renton
26
27
28 RENEWED MOTION TO DISMISS
P. 2 WARREN & KELLOGG. P.S.
ATTORNCY• AT LAW
100 SO. SECOND ST.. P. O. SOX 4126
RENTON. WA•HINGTON 98057
235•0678
•
. - CERTIFICA �2,��
I, the underslgned,2e%reS.7�l!�j"` Prk of tfie
City of Renton, Washington,g certify that this is a true
• and correct copy ot,��= `�`r' ....
Subscribed and Sealed this..f?...day of
City Clerk
• CITY OF RENTON, 17ASHI2;GTON
• .
ORDINANCE. N0. _ rah_
AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON,
RELATING TO LAND USE AND ZO.vING
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. 162S entitled "Code of General Ordinance:
of the City of Renton" is hereby amended by adding the following
subsections:
1. "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.
Tor observation by patrons therein.
2. "Snecified 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. "Snecified Anatomical Areas"
(a) Less than completely and 'opaauely 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.
•
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RECEIVED 1 9 tQR2
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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. Adult motion picture theaters are prohibited within
• the area circumscribed by a circle which has a radius. consisting
of the following distances from the fallowing specified uses or zones:
I '
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 anv church or other
religious facility o •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 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 be separated. •
• SECTION III: This Ordinance shall' be effective upon its
passage, approval and thirty days after •its publication. •
PASSED BY THE CITY COL"NCIL this 13th day of April , 1981
belores A.eadl�ty CZe.rk
APPROVED BY THE MAYOR this 13th day of April , 1981..
A 3 -�may- S►•,�od�,
pproved as to form: • Barbara Y. Shinvoch, Mayor
!L'
rence ;1:-�rren, CITE y Attorney - •
-
Date of Publication: May 15, 1981
•
•-- • ...11:Ui .:n:.1..klAlun
. R.S.
, I I.
COIINIT or RING / )p
I•i✓• �.G.tiGS. !� I"l /�u.fit One in and to the City of Ranloi,
-_ • ., Waehineton.do Hereby erlily Iiatrthe IorecoinQ Ordinance is a true and correct
copy of Ordinance No.. .fr.L.A../.....of the City of Renton•as it apya.a on Me
in my office•and do further certifythat the same has been pu��sf.cA according
to law.
In Witness Whereof I Aav far•into set or hand and affixed the seat Of the
City of Renton.this Y day ofj_d r /4 r
Afllrt.,v Q. w curt
. CITY OF RENTON, WASHINGTON
ORDINANCE NO. 3E29
AN ORDINANCE OF THE CITY OF RENTON, WAStINGTON
RELATING TO LAND USE AND ZONING
1
WHEREAS, on April 13, 1981, the City Council of the City .
of Kenton 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
WHERE•AS,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
I
he 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
I
neighborhoods., 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, 1981, to
receive testirlon-r. 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. Areas within close walking distance of single and 1
• , multiple family dwellings should be free of adult ;
j • entertainment land uses.
2. Areas where children could be expected to walk, ?
patronize or recreate should be free of adult
entertainment land uses.
i
3. Adult entertainment land uses.should be located • 1
in areas of the City which are not in close •
proximity'to residential uses, churches , parks NI 4
. and other public facilities, and schools.
f
4. The image of the City of Renton as a pleasant
1 , and attractive place to reside will be adversely •
• I
1
•
•
II
•
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
r 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
•
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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 effdcts of such adult entertainment lane 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 least restrictive alternative available to accomplish the purposes
for which Ordinance No. 3526 was adopted, and to include a severabilit •
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
comments 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.
•
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•
•
•
•
•
.• 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.
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;i
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:
1
"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 are:
• 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
f '
of the City of Renton" is hereby amended by adding the follming subsecti.
(C) Violation of the use provisions of this section is decl:u
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 prosecul
(D) Nothing in this section is intended to authorize,
legalize or permit the cs tablishment, 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,
1
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
o 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 Renton hereby declares that it would have adopted City of Renton
I
Ordinance No. 3526 and each section, subsection, sentence, clause,
phrase or portion thereof irrespective of the fact that any one or •
more sections, subsections, sentences, clauses, phrases or portions
be declared 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
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 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 unconstitutional.
SECTION VI: The City Council of the City of Renton finds
11 and declares that an emergency exists because of the pendency of
litigation 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 CITY COUi1CIL this 3th day of May, 1982.
e .ores eadetlerk
APPROVED BY THE MAYOR this 3th day of May, 1982.
•
10.d4.kod ii..Sirutivoc6. -- _
Barbara i. Shinpoch, Mayor
. • Approved as to form:
Lawrence J. Warren, City Attorney
' Date of Publication: Play 7, 1982
•
•
•
•
I ,
-7-
1 N,g SI 9Y •
s� H 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 Washington 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
MEMORAUNDUM IN SUPPORT OF WARREN & KELLOGG. P.S.
^.ENEWED MOTION TO DISMISS ATTORNEY.AT LAW
NIO so. fi6ONO.T.. P. O. .0i us.
P. 1 RMNTON. WA.NIN.TON 98057
UB.5S70
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 to be true as of the adoption of Ordinance No . 3629 on
15 May 3, 1982, were adopted.
16 c . The word "used" is further defined to be a continuing
17
course of 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 çeet. -
11EMORANDUN IN SUPPORT OF WARREN & KELLOGG. P.S.
ATT MOTION TO DISMISS SECOND ST AT LAW
RENEWED100 SO. SECOND ST.. P. O. SOI!CIS
P. 2 ALNTON. WASN$NOTON 66O57
255. 678
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
326, the 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 particular to renew their motion to dismiss Plaintiff' s
9 claim for injunctive relief which is founded on 28 U.S .C. , Section
10 2202 and 42 U.S. C. , Section 1983.
11
II. LEGAL ARGUMENTS
12
It is the contention of the Defendants that the amendment
13 I.
of Ordinance No. 3526 by the adoption. of Ordinance No . 3629 cures
14
any possible claim of constitutional defect by the Plaintiffs,
15
thereby ousting this court of jurisdiction to grant injunctive
16 I -
relief as requested by the Plaintiffs for the reason that there
17 '
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. Corrick, 298 U. S. 435, 56 S. Ct 829, 80 L.Ed. 1263 (1936) ;
20
Ross-Whitney Corp. vs . Smith Kline. & French Lab, 207 F. 2d 190
21
(9th Cir . 1953) . The decision of the court will not- be set aside
22
upon appeal unless clearly erroneous as a matter of law or the
23
! I result of an abuse of discretion. U. S. v. Corrick, supra .
24
The purpose of the preliminary injunction requested is to
25
preserve the status quo pending trial of the matter on the
26
merits, and ". . . should not be granted except in rare instances
27
in which the facts or law are clearly in favor of the moving
28
MEMORANDUM IN SUPPORT OF
RENEWED MOTION TO DISMISS WARREN & KELLOGG. P.S.
ATTORSZYS AT LAW
! i P;. 3 _
' R[NTON. WAS NOTON 95057 •
253-Od78
1 party. " Miami Beach Federal Savings & Loan Association v.
2 Callandar , 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 The injunctive relief may be granted, in the discretion
8 of the court, if it appears likely that the Plaintiff will
g 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
� unequivocably 17 injunctivewill relief une uivocabl be denied, both at the
18 preliminary injunction phase and at trial upon their application
19 for injunctive 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, and not by criminal remedies. Being unable to show any
26 irreparable harm suffered by Plaintiff, 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 ATTORNEYS AT LAW
f00 SO. SECOND ST.. P. O. SOX S2S
P.4 - RENTON. WASNINOTON 98057
255.867E
1 Therefore, there being no injunctive relief which this
2 court may 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
10 Daniel Kellogg
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 ATTORNCTS AT LAW
100 SO. /CCOND ST.. P. O. SOX Sall
RENTON. WASHINOTON 08057
155.8570
� I
•
•
Exhibit "J"
(Reference: Petition at pg. 15. )
•
Defendants City of Renton, et al. ' s
i
Motion For Summary Judgment, Affidavit
of David R. Clemens and Memorandum in
Support. of Motion For Summary Judgment,
filed May 27, 1982.
I �
•
1 Honorable Philip R.
Sweigert , Magistrate
2
3
4 —FILED
LODGED
5 REC J ED
MAY 27is32
6
r'r'? U.S. DtST?'.;i
7 1:_2._ W DISTRICT OF Vh:_H'"rTifi I
i!
8 UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
9 AT SEATTLE
10 PLAYTIME THEATRES , INC. , a )
Washington corporation, )
li et 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
24move this Court for Summary Judgment of Dismissal With Prejudice
25of 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.
ATTORMLTS AT LAW
WOO SO. ![COND ST.. P. O. SOX SSG
.RENTON. WASHINGTON 01057
*55.017a •
lAffidavit of David R. Clemens in Support of City of Renton's
2Motion 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 Dated: May 2'87, 1982.
9
Davie a ogg, A torn
10 for Defendants
11
12
1.3
14
15
16
17
18
19 ,
20 .
21
22
23
24
25
26
27 .
28DEFENDANTS' MOTION FOR SUMMARY JUDGMENT - 2
WARREN & KELLOGG. P.S.
ATTORIWYS AT LAW
TOO�O. NCOND ST.. P. O. SOX •i•
R&XTON. WASH, •5057
255.e170
1
I
1 1 Honorable Philip K.
2 Sweigert, Magistrate
3
1
4 I ---- --�_o -
5 ! — LODGED
6 ' MAY 2 7 i 3?
7 1 E r. - D1STF'7 C ,�T
. •_.•_::i NSTRlCT CF ,,,-1)
A :cN
UNITED STATES DISTRICT, COURT I
FOR THE WESTERN DISTRICT OF WASHINGTON
III
9 j AT SEATTLE
10 PLAYTIME THEATRES, INC.', a ).
11 Wishington corporation, et al , )
.
•
• Plaintiffs )
12 , ) NO. C82-59M
vs )
1:3 ) AFFIDAVIT OF DAVID R. CLEMENS
14 THE CITY OF RENTON, et al - • ) IN SUPPORT OF CITY OF RENTON' S
) MOTION FOR SUMMARY JUDGMENT
Defendants )
15 1 )
16 1I
)
)
17 THE CITY OF RENTON, a municipal )
18 corporation, )
)
19 j Plaintiffs ) NO. C82-263R
20 1 vs )
PLAYTIME THEATRES , INC. , a )
21 Washington corporation, et al )
)
22 1
Defendants )
23 ) .
24 STATE OF WASHINGTON )
) ss
25 ,COUNTY OF KING )
' 26; DAVID R. CLEMENS, being first duly sworn on oath deposes
27
-- and says :
28 AFFIDAVIT OF DAVID R. CLEMENS
j WARREN a KELLOGG. P.S.
' i Page 1 ATTORNEYS AT LAW
. I • 100 DO. SZCOND MT.. P. O. OOX US
I I • RRMTON. WAININOTON 90057
• 1 • 255-3078
1
1
1. I am the City 'of Renton's Policy Development Director
2 and make this Affidavit from my own personal knowledge .
1
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,1a witness in the Temporary Restraining Order Hearing in this
8 caie, having been called by the Plaintiffs .
9 3. The City Council of the City of Renton did enact
i
10 Ordinance 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.
1
13 Shown on that map in solid colored areas are those places in the
14 City of Renton where an Adult Entertainment Land Use would be
15 permitted under Ordinance No. 3629 , the most recent Ordinance.
1
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 sleven (27) acres of City property, twenty-two.. (22) acres as a green-
22 Melt area and five (5) acres as a proposed fire station site.
23 7. There has been a recent Local Improvement District
24 Which extended Lind Avenue , which runs north and south through
25 I
the middle 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 ATTORNEYS AT LAW
100 SO. SECOND ST.. P. O. DOE Ill
RENTON. WASHINGTON 98037
355-8678
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 City 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
? serviced 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 (ii://6R4(4=2
11
12 Davi R. C emens
13 SUBSCRIBED AND SWORN to before me this 0 day of May, 1982.
14
�
15 _ /i',rlc� �c��� F�'�-
16 Notary Public in and for .the
State of Washington, residing
17 ! at Renton
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
100 SO. SECOND ST.. P. O. SOX SAS
RaTON. WASNINGTON 98057
!SS-8E78
, 1 ,r I
iii, .1.-{1 . leP (1.1
41 - ____ _____, . ..
�m.
Oil ,. = )~ t* .
-- .7 , \,.... . 111. .
4nmass L 511. ---7— - ---
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war! \
rqToN
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EU
% 4 Piti k '
- -' ;--lett% • w.:-"Ilaill 71.1 .4111tarm
111
I •'' AN,Li[aiir ric=0, k —kV a= %;_-1--.
am% :mire
tubeides16,. . t . Azimpp,...,
IIY ` 1111! �.Lt�i
fillig 1
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r�� � EN ON�J�
# - •
11 Repx(0 , . . Pi paNt -agii 37:-it 1 IAvg. �j�/� 'r\
ti.;,..... itrlifik 1 - A 'elk. •
iii
-AVIA. IN I ;*-- ; as"I^ **Id' . . .1 .
..ii -- k 4 1111 Mr kiNEMIrlfilkNo h. f . •• ••••• • - ...... ... .
I AM "-a. no__ .... u I ....... ..•. 4ii
I ` , liffilMillirail 1 ..-pe ,..\ 6" --.-.' k ''
1 _ 1 w IN.. "'I
MISPIII
r I WIWI Elirdial v P• I I 1
-1 IrI1 ' AREAS IMRE ADULT POTION PICTURE ��
I IFif .ZERS ARE All dED BY ORD. 3526
3.
i 'AND ORD. 3629.
o 1 Ii
A LAKE
r mica. \ --- \.. 1 ... . .
Li. 1 - . fi CM I . I
• 4
SS.
• : u.,;.IY Uh AMC )
(tlEanal.. r..Zrr..1114/ s ih ro ur
ty C' amid lar e City d
Mesbin@ton,do herebycertitT tr/� }rveC **Mince is a the ati reader • �i�
f opy of Ordinance No..5.(P a. __mid the Cityy d Banton.es it wearsI1 hN on .
M my office,end do further certify that the tame has been t>abltato.:ectarder
m lath. 0/14.
/4 352E
In Wilds Whereof'h have he/sunto set my ha en iced the sea Me
afItlic ..9 7 M day of
CITY OF RENTON, WASHINGTON
ORDINANCE NO. 3629 •
AN ORDINANCE OF THE CITY OF RENTONN, WASHINGTON
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
terms on June 14, 1981; and
WHEREAS,it was the intention of the City Council of the iI
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 it 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 interest in protecting and preserving the quality of its
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
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. 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.
4. The image of the City of Renton as a pleasant
' • 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
•I 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
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I
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 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 least restrictive alternative available to accomplish the purposes
for which Ordinance No. 3526 was adopted, and to include a severabilit
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
'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-
•
•
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 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, WASHI:
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 ts tablishment, 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
•
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 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 sections, subsections, sentences, clauses, phrases or portions
be declared 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
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
thereof irrespective of the fact that any one or more sections, sub-
sections, sentences, clauses, phrases or portions be declared invalid
or unconstitutional.
SECTION VI: The City Council of the City of Renton finds
and declares that an emergency exists because of the pendency of
litigation 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-
. 1
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.
eea� clerk
APPROVED BY THE MAYOR this 3th day of May, 1982.
•SULpoCk.
Bar ara Y. Shinpoch, Mayor
•
Approved as to form:
• Lawrence J. Warren, City Attorney
Date of Publication: May 7, 1982
•
-7-
1
Honorable Philip K.
2 Sweigert , Magistrate
3
4 --
5 -FILM
-- 6
MAY 27i:32
7 f`.FRz; L.S.
8 CY
UNITED STATES DISTRICT COUR �-
9 FOR THE WESTERN DISTRICT OF WASHINGTON
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
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 within the City of Renton which are clearly within the
MEMORANDUM IN SUPPORT OF MOTION WARREN & KELLOGG. P.S.
FOR SUMMARY JUDGMENT MTTO11NETS AT uW
SOO SO. SECOND SIT.. P. O. OOX 112S
P . 1 RINTOON. WASNI 98067
255.6676
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 enforcement 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 ST.. P. O. DOX SIS
RENTON. WASHINGTON 95057
255-Oa78
1 f . Ordinance No . 352E contained no severability clause.
2 Ordinance No. 3629 adds such a severability clause to
3 Ordinance No . 3526 . _
4 The 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
1z Mini Theater, 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 . 3629 leaves a substantial portion of the business
17 zoned property within the City of Renton available for the use
18 proposed by the Plaintiff in this action. Under the authority
19 of Young, supra, the ordinance is facially valid and has been
20 approved 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
23 Plaintiffs ' First Amendment rights . This case is ripe for entry
24 of summary judgment in favor of the City of Renton both as to
25 the First Amendment issue and the claim of damages under 42 U. S . C .
26 §1983 and 1988 .
27
28 MEMORANDUM IN SUPPORT OF MOTION
FOR SUMARY JUDGMENT
P . 3 WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
too SO. SECOND ST.. P. O. BOX •al
RENTON. WASHINGTON 98037
255-0678
•
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 On June 24, 1976 the U. S. Supreme Court upheld a district
5 zoning ordinance relating to the use of property for : (1) "Adult
6 Motion Picture Theater", (2) "Adult Book Store", and (3) "Adult
Mini Motion Picture Theater" in Young v. American Mini Theatre,
8 Inc. , et al, supra. There, the defendants attacked the zoning
g ordinance on grounds of vagueness.-1/ 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, the 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. 2d. 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 lbw much of the
described activity may be permissible before the exhibition is "characterized
22 by an emphasis" on such matter. In addition they argue that the ordinances
are vague because they do not specify adequate procedures or standards for
23 obtaining a waiver of the 1,000-foot restriction."
24 2/ See Young, supra, at page 58-59: "We find it unnecessary to
consider the validity neither of these arguments in the abstract. For
2 5 even if there 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. To the extent that their challenge is predicated
(Footnote continued on next page) WARREN & KELLOGG. P.S.
MEMORANDUM IN SUPPORT OF MOTION FOR ATTORNSYS AT LAW
100 SO. SECOND ST.. P. O. BOX 4241
SUMMARY JUDGMENT R[NTON. WASH,NCTON 90057
A255.S675
v
•
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 deterrent 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
ordinances 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 material can be said to be ' characterized by an
emphasis' on such matter. For most films the question
12 will be readily answerable; to the extent that an area
of doubt exists, we see no reason why the ordinances
13 are not 'readily subject to a narrowing construction
by the state courts. ' Since there is surely a less
14 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
18 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 comarnmication 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 lose
own speech was unprotected had standing to challenge the constitutionality
23 of a statute which purported to prohibit protected speech, or even speech
arguable protected. This exception Erma traditional rules of standing to
24 raise constitutional issues has reflected the Court's judgment that the
very existence of some statutes may cause persons not before the Court to
25 refrain from engaging in constitutionally protected speech or expression.
See Eroadrick v. Oklahoma, 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 OIeNcrs AT LAW„o .wTTTTONO YT.. P. O. wY Sal
SUMMARY JUDGMENT RENTON. WASHINGTON 93057
P. 5 255.8678
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
7
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
12- Court is required to adhere to Judge Stevens ' plurality opinion
13which holds that such language is,not susceptible to attack in
the federal courts because it is, as a matter of law, "readily
14
15subject to a narrowing construction by the state court. "
The City has taken additional legislative action to
16
17 clarify some of the uncertainties which the Young court
18 acknowledged (and also readily accepted) . Subsequent to oral
19 arguments 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 or
dinance ance 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 as KELLOGG. P.S.
FOR SUMMARY JUDGMENT ATTORN[T• AT LAW
toO f0. SECOND ST.. P. O. PDX •Z•
P . 6 RINTON. WA•HINOTON 98057
255.5678
'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
4longer be 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
7 the Plaintiffs have alleged in a verified complaint that they
8intend to 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,
ll 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,
18 the analysis of Justice Marshall as to the term "Designed for
19use" in Village of Hoffman Estates v. Flipside, Hoffman Estates ,
20 Inc. , 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 public 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 & KEL.L000. P.S.
ATTORNEYS AT LAWFOR SUMMARY JUDGMENT SOO so. SECOND ST.. P. O. SOX •_•
P . 7 RENTON. s aHINGT N 98057
'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
8opportunity 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
appears to be a generally framed principle that every
12 person asserting a federal right is entitled to one
13 unencumbered opportunity to litigate that right in a
federal district court, regardless of the legal posture
14 in which the federal claim arises . But the authority
for 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. "
17and 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 constitutional 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
23 constitutional 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 As illustrated by the Affidavit of David R. Clemens
27 in support of City of Renton' s Motion 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.
w AT LAWFOR SUMMARY JUDGMENT 100 SO. t[COND ST.. P. O. SOX 11211
P . 8 RSNTON. WASHINGTON 98057
236.067E
1 as amended, allows ample opportunity for exercise of First
2 Amendment rights within the City of Renton as required by
3 Young, supra, and Schad v. Burrough of Ephraim, U.S . ,
4101 S.Ct. , 68 L.Ed . 2d. 671 (1981) . The regulations being
' 5a reasonable time, place and manner restriction as approved
6 in Young, supra, there is no impermissible restriction
?upon Plaintiffs ' asserted First Amendment rights . The ordinance
8 is constitutional on its face and as applied. Plaintiffs may
9claim no element of vagueness in the ordinance. Therefore, their
10cause of action for declaratory and injunctive relief should be
11dismissed with prejudice.
12 B. PLAINTIFFS' CLAIM FOR DAMAGES UNDER SECTION 1983
13 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
16and 1938, which claim is premised upon their assertion of a
17violation of their constutitional rights by the enactment
18 (as opposed to the enforcement) of Ordinance No. 3526, as
19amended. Under the rationale expressed in Allen v. McCurry,
20 449 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 42 U.S .C. 51983 unless one of the following three
24
circumstances is shown to exist:
25
(1) The State substantive law is facially
26 unconstitutional;
27 (2) The State procedural laws is inadequate to allow
full litigation of a constitutional claim; or
28
MEMORANDUM IN SUPPORT OF MOTION
FOR SUMMARY JUDGMENT WARREN & KELLOGG. P.S.
ATTOSNErs AT LAW
P .9 100 SO. SECOND ST.. P. O. SOX Ste
RENTDN. WASNINOTON 98057
235.5678
1 (3) The State procedural law, though adequate in
theory is inadequate in practice.
2
3 In this case, none of the foregoing circumstances apply. As a
4matter of law, Ordinance 3526 is facially constitutional . See
Young, supra, at 58-60. The procedural law of the State of
6Washington is adequate to allow full litigation of Plaintiffs '
7constitutional claim, provided that the Plaintiff can state a
8case or controversy to invoke the jurisdiction of the Declaratory
9Judgment Act of the State court in the first instance. In any
10event, no inadequacy in the State system of jurisprudence
11has been shown to exist to prove that the State procedural law,
i2through adequate in theory, is inadequate in practice. Therefore,
13for purposes of pleading Section 1983 damages, Plaintiffs have
14clearly failed to state a claim upon which relief can be granted .
15 In any event, because the Plaintiffs ' claim for damages
16 is premised upon a claim of violation of Plaintiffs ' constitutional
17rights, the arguments stated above foreclose their claim for damages .
is Following Young, supra, and Village of Hoffman Estates, supra,
19it is clear that the City of 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
22 narrowing 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 for damages under 42 U.S.C. § 1983 and 1988 should be
27 dismissed with prejudice.
28 MEMORANDUM IN SUPPORT OF MOTION
FOR SUMMARY JUDGMENT WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
P .10 100 SO.REM1ON.SECOND
•A•NGTON 98057
255-8670
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
8First 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
12 involving violation of First Amendment rights, not only does
13Plaintiffs ' 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
16vio1ation. The court is requested to dismiss Plaintiffs '
17 Amended and Supplemental Complaint with prejudice.
18
Res fully submitted,
19
20
21 Daniel Kellogg
22
23
24
25
26
27 •
28 MEMORANDUM IN SUPPORT OF MOTION
FOR SUMMARY JUDGMENT WARREN & KELLOGG. P.S.
ATTORNEYS AT LAWP . 11 too SO. SECOND ST.. P. O. SOX S2S
RENTON. WASHINGTON 95037
255-0678
• 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.
•
•
•
2 • •
•
4
5
6
7 UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
I . ' 8 AT SEATTLE
9 PLAYTIME THEATRES, INC. , et al. , )
)
10 Plaintiffs, )
11 v. ) CASE NO. C82-59M
12 CITY OF RENTON, et al. , )
tr' )
13 Defendants. )
) REPORT AND RECOMMENDATION
14 ' )
CITY OF RENTON, et al. , )
15 )
Plaintiffs, )
16 i )
) CASE NO. C82-263M
)
17 V.( )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
r 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 se.t forth herein in some detail, I concluc
32
REPORT AND RECOMMENDATION - 1
►rt-scr-Iosn
nssm—ms
•
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.
• 1• 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 or 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
20 Ithem. 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
FPI•SW-11117h
l5M-Ins
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 ear 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. •
•
On June 14, 1982, defendants yetordinance,
14 passed a third
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 Court is No. 3526, they are clearly incorrect. Their request
21 for injunctive relief obligates the Court to consider any and
22 all changes in the applicable zoning scheme to the date of its
ruling.
_ 23
24 (B) Events Leading to Passage of the Ordinances.
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
1 ' nesses might seek to locate in the city. The mayor's memorand
32
REPORT AND RECOMMENDATION - 3.
YPI-SR-10-s71
125\I-MIS
•
•
1 'suggested that some cities had experienced difficulties in
2 He-doing" their zoning ordinances once such uses were esta-
3 (blished in the community.
4
On March 5, 1981, the Planning and Development Committee
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 'who 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
12 Renton's businesses and upon children going to and from school.
13 He also testified that other citizens spoke generally about the
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
17 Wn. 2d, 709, and of the United States Supreme Court in Young V.
'(American Mini Theatres, 427 U.S. 50 (1976) , and presented the
18
I (' ((information from their review to the Planning and Development
19
` •
,_, :Committee. He indicated generally that review of those cases
20
(indicated 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
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 I Ordinance No. 3526 was the result.32 •,
REPORT AND RECOMMENDATION - 4
1'1'1-'AST-1017tl
•
•
1 (C) The Effect of the Ordinance.
9 While the 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
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 (theatre purposes in particular. The developed areas include:
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;
{'•� (4) Warehouse and manufacturing facilities;
14
15 (5) A Mobile Oil tank farm; and,
16 (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
19 ,3istrict, not well lit during night time hours, and also
20
! generally devoid of pedestrian and vehicular traffic during
21 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.
erl—SST—IO 7e
MW_MM REPORT AND. RECOMMENDATION
•
1 (1) Probability of Success on the Merits.
9 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) ; Ruzinich v. County
7 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 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
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-1437Y
i
•
1 IU.S. at 71 n. 35. See Basiardanes v. City of Galveston, 682 F.'
9 2d 1203 (5th Cir. 1982) ; Avalon Cinema Corporation v. Thompson,
3 667 F. 2d 659 (8th Cir. 1981) ; Keego Harbor Co. v. City of I
. '1
4 IiKeego Harbor, 657 F. 2d 94 (6th Cir. 1981) ; Alexander v. City
5 !of Minneapolis, 531 F. Supp. 1162 (N.D. Minn. 1982) ; Purple
6 i'Onion, Inc. v. Jackson, 511 F. Supp. 1207 (N.D. Ga. 1981) ;
7
.Bayside Enterprises, Inc. v. Carson, 450 F. Supp. 696 (M.D. Fla.
- „
8 111978) ; 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 lavailability in Renton of films protected for adult viewing by
13 the First Amendment, it must be reviewed under the stringent
Fr' .1 (standards of Schad, supra. Schad directs the court to examine
14
15 the strength and legitimacy of the governmental interest behind
16 the ordinance and the precision with which it is drawn. Unless
17 ithe governmental interest is significant and is advanced with-
!lout undue restraint on speech, the ordinance is invalid. Schad,
18 II
19 00452 U.S. at 70.
The City of Renton has asserted that it has a substantial
20 1I
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.
I
27
I County of Santa Clara, supra.
28
Many of the conclusory statements of the reasons for
29
1 enacting the Renton ordinances reflect simple distaste for
30
adult theatres because of the content of the films shown.
31
Those statements directed at legitimate fears such as preven-
32
REPORT AND RECOMMENDATION - 7 •
ITI-.SST-10.47G
•
•
1 Iition of crime and deterioration of business and residential
neighborhoods are based principally.upon the Planning Depart-
:i ?meats review of other court cases in which zoning legislation
4 (regulating 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
(7-
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 ugovernmental interest, however, the ordinance will not pass
18 ficonstitutional muster. The ordinance must be narrowly drawn
10 to serve that interest with only a minimum intrusion upon First
20 Amendment freedoms. 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
j ,be held to be unconstitutional.
24
(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 ) .
FPI-F'7-10176
123ai— REPORT AND RECOMMENDATION - 8
1 I recommend that the Court enjoin enforcement of City of
:Renton Ordinance No. 3637 pending disposition on the merits.
3 IA proposed form of Order accompanies this Report and Recommen-
j
4 'dation.
5 DATED. this 5th day of November, 1982.
6
Philip K. Sweigert
g United States Magistrate
9
10
11
12
13
14
15
16 r '
--- 17
18
19
20 •
21 •
•
22
23
24
25
26
27.
28
29
30
• 31
32
REPORT AND RECOMMENDATION - 9
I•I I--SST-14348
IR?I-UM
•
•
•
9
• 3 •
4 Ii
5
. .. . . 6
UNITED STATES DISTRICT COURT
7 WESTERN DISTRICT OF WASHINGTON
8 AT SEATTLE
PLAYTIME THEATRES, INC. , et al. , )
9 )
Plaintiffs, )
10 )
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 iCITY OF RENTON, et al. , ) GRANTING PRELIMINARY
) INJUNCTION PENDENTE LITE
15 Plaintiffs,
16 � v. ) CASE NO. C82-263M
•-• 17 1PLAYTIME THEATRES, INC. , et al. , )
)
18 Defendants. )
• )
- /
19
The Court, having considered plaintiffs' motion for
20 II .
preliminary injunction, defendants' renewed motion to dismiss
21
' and motion for summary judgment, the Report and Recommendation
22 Iof United States Magistrate Philip K. Sweigert, and the balance
23 of the records and files herein, does hereby find and ORDER:
I
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
r►,-.57-lo1711 •
125Ni-ISMS
i 1
•
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
1G
17 •
18
19 ' •
•
20 •
21
•
22
23
24
•
25 • •
26
27-
• 28
29
30
31
32 • •
• ' ORDER - 2
RI-SST-1D171
1ssM-Ins •