HomeMy WebLinkAboutPlaytime Theaters Court Case (1982 - Vol 2) • UNITED STATES DISTRICT COURT —
WESTERN DISTRICT OF WASHINGTON
Pt-4I_IP K. SWEIGERT 304 U.S. COURTHOUSE
u ur[o aT.T[s MAQIS TRAT[ November 5 , - 19 8 2 SEATTLE. WASH. 98104
1206) 442.1396
Jack R. Burns
10940 N.E. 33d Place , Suite 107 RECEIVED
Bellevue , WA 98004
Mark E. Barber NOV `> 1982
100 S. Second Street / COOf F�iJfON
P. O. Box 626 U?01 COUNCIL
Renton, WA 98057 CIL
Gentlemen :
Re : Playtime v. Renton
Case Nos. C82-59M & C82-263M
Attached are copies of my Report and Recommendation
and proposed form of Order in the above-captioned case .
The originals are being filed with the Clerk. Any objec-
tions to, or memoranda in support of the recommendation
should be filed and served within ten days with copies
to the Clerk for forwarding to the District Judge and to
my office . You should also file and serve a Notice of
Motion placing those objections on the Judge ' s calendar
for the third Friday following filing of those objections .
If no timely objections are filed, the matter will be
ready for a ruling by the Judge not later than two weeks
from the date of this letter or November 19 , 1982 .
Thank you for your cooperation.
Yours very truly,
f4((l'(0 (‘/(
Philip K. Sweige
United States Ma i trate
Attachments
PKS/vlk
cc : Colleen Garrigus
File Nos. C82-59M & C82-263M
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9 UNITED STATES DISTRICT COURT
10 WESTERN DISTRICT OF WASHINGTON AT SEATTLE
11 PLAYTIME THEATRES, INC. , et al )
)
12 Plaintiffs , )
13 v, CASE NO. C82-59M
)
14 CITY OF RENTON, et al. )
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15 Defendants . )
)
16 )
CITY OF RENTON, et al . , )
17 ) CASE NO . C82-263M
Plaintiffs , )
18 ) OBJECTIONS TO MAGISTRATE' S
V. )19 ) II REPORT AND RECO ENDATION ON
PLAYTIME THEATRES, INC . , et al . ) DEFENDANTS ' MOTION TO DISMISS
20 )
Defendants . )
21 )
22 COMES NOW the City of Renton to object to the Magistrate ' s
23 Report and Recommendations in Case No . C82-59M, dated March 23 ,
24 1982, as follows :
25 1 . The Magistrate' s introductory statement of facts does
26 not recite all of the facts which are apposite and necessary to
27 a resolution of the City' s claim that this Court should dismiss
28 the lawsuit, either on the ground of failure to state a claim upon
OBJECTIONS TO MAGISTRATE' S REPORT WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
100 60. SECOND ST.. P. O. SOX 626
P . 1 RENTON. WASHINGTON 98057
255-8878
2- which relief can be based, or on the abstention Principles
2 announced in Younger v. Harris , 401 U. S . 37 , Huffman v. Pursue Ltd . ,
3 420 U. S . 592 , Steffel v. Thompson, 415 U. S . 452, and Hicks v.
4 Miranda , 422 U. S . 332, and the opinion of Associate Justice
5 Stevens in Young v. American Mini Theater., Inc. , et al . , 427 U . S .
650, at 61 .
7 2 . The Magistrate' s conclusion that the "Defendants '
8 contention that the Court lacks jurisdiction is meritless , "
9 (Report, page 2, lines 12-14) is erroneous .
10 2 (A) . The Magistrate' s conclusions that "The dispositive
11 issue in this action is whether the Renton Zoning Ordinance has the
12 effect of suppressing or greatly restricting plaintiffs ' access
13 to the market for protected speech or is instead a permissible
14 time, place, and manner restriction" (Report at page 3 , lines 12-
15 16) and that the "Plaintiffs ' amended complaint raises these
16 issues : (1) whether on the record there is a compelling state
17 interest to justify the zoning ordinance which affects protected
18 First Amendment Speech; and, (2) whether the zoning ordinance
19 places an unconstitutional restriction on access to the market for
20 protected speech. " (Report at page 2, lines 14-19) are erroneous .
21
2 (B) . The Magistrate' s conclusion that "there is no
conceivable limiting statutory construction by a state court that
2`' would resolve this issue. " (Report at page 2, line 26 through
24
page 3, line 3, and page 3, lines 18-20) is erroneous .
25 3. The Magistrate' s conclusions that the enforcement of
26 a City Zoning Ordinance forbidding "Adult Motion Picture Theaters"
27
in certain areas is not a "civil enforcement proceeding" within
28 the meaning expressed in Huffman v. Pursue Ltd. , supra, (Report
WARREN & KELLOGG. P.S.
OBJECTIONS TO MAGISTRATE' S REPORT ATTORNEY, AT LAW
100•O. SECOND IT.. P. O. SOX Ill
RENTON. WA•HINGTON 98057
P. 2 255-8678
1 at page 4 , lines 5-15) is erroneous .
2 3 (A) . The Magistrate ' s conclusion that abstention is not
3 appropriate to allow the state court to construe the state
4 statute in the first instance, (Report, at page 3, lines 23-25 ,
5 and lines 6-9) is erroneous .
6 4 . The Magistrate' s statement that "Defendants use the
7 assertion of that claim (conditional use) as a basis for arguing
8 that plaintiff' s must exhaust those remedies (administrative) "
9 (Report, at page 4, lines 23-24) misunderstands the thrust of
10 the Defendants ' argument.
11
12 ARGUMENT
13 I
14 Introduction
15 On June 24, 1976, the United States Supreme Court upheld
16 a Detroit Zoning Ordinance relating to the use of property for
17 "Adult Motion Picture Theater, " "Adult Book Store, " and "Adult
18 Mini Motion Picture Theater" in Young v. American Mini Theatre,
19 Inc . , et al , 427 U. S. 50. In the Young case, Justice Stevens ,
20 speaking for the Court, rejected a claim that the Detroit
21 Ordinance was too vague, held at page 61 :
tit "to the extent that an area of doubt exists, we see no
20 reason why the ordinances are not 'readily subject to
24 a narrowing construction by the state courts. '"
25 On April 13, 1981 , the Renton City Council passed and
26 adopted City of Renton Ordinance No . 3526, containing the
27 identical language of a portion of the Detroit Zoning Ordinance
28 which had been before the U. S . Supreme Court in the Young case
WARREN & KELLOGG. P.S.
OBJECTIONS TO MAGISTRATE' S REPORT ATTORNEYS AT LAW
100 SO. SECOND ST.. P. O. SOE •211
RENTON. WASHINGTON 98057
P . 3
255.867e
1 (that portion relating to "Adult Motion Picture Theater . ")
2 See 427 U. S . 50 at 53 , fn. 4.
3 On January 28 , 1982, Plaintiff Kukio Bay Properties , Inc .
4 purchased the Roxy Theater and the Renton Theater in Renton. On
5 or about January 27, 1982, Kukio Bay Properties , Inc. leased
6 said theaters to Plaintiff Playtime Theaters , Inc . . The
7 lease agreements provide that the premises are to be used "for
8 the purpose of conducting therein adult motion picture theaters . "
9 (Amended Complaint, page 4, lines 19-22) . Mike Parness ,
10 Administrative Assistant to the Mayor of the City of Renton
11 advised the Plaintiffs on January 19 , 1982 that if the property
12 of the Plaintiffs is used to exhibit adult motion picture films,
15 enforcement proceedings will be commended. (Amended Complaint,
14 page 6, lines 8-12) . Plaintiffs have admitted that one of said
15 theaters would continuously operate exhibiting adult motion
16 picture film fare to an adult public audience but for the
17 threats of the Defendants to enforce the Zoning Ordinance
18 (Amended Complaint, page 4, tines 26-29) .
19 On January 20, 1982, Plaintiffs Playtime Theatres, Inc. and
20 Kukio Bay Properties filed an action entitled "Complaint for
21 Declaratory Judgment and Preliminary Injunction, " alleging
22 jurisdiction under 28 U. S. C. §1131 (a) , 42 U. S .C. §1983 and 28
23 U. S. C. §2202 and Rule 57 of the Federal Rules of Civil Procedures,
24 challenging the constitutionality of Renton Zoning Ordinance No .
25 3526.
26 On January 29, 1982, Plaintiffs moved for a temporary
27 restraining order as ancillary relief under their original
28
OBJECTIONS TO MAGISTRATE'S REPORT
WARREN & KELLOGG. P.S.
P.4 ATTORNEYS AT LAW
100 SO. SECOND ST.. P. O. SOX 6213
RENTON. WASHINGTON 98057
255-8678
1 Complaint . Following oral argument on that date, the Magistrate
2 announced orally, from the bench, that he would recommend the
3 denial of the temporary restraining order .
4 On February 3 , 1982, U. S . Magistrate Sweigert filed his
5 Report and Recommendation and Proposed Form of Order in which
6 he recommended that this Court deny the request for a temporary
7 restraining order.
8 On February 9, 1982, and before this Court had formally
9 ruled upon the motion for a temporary restraining order under
10 the original Complaint, Plaintiffs filed and served a new
11 Complaint entitled "Amended and Supplemental Complaint for
12 Declaratory Judgment and Preliminary and Permanent Injunction"
13 raising a new issue that under the Renton Zoning Ordinance a
14 conditional use must be applied for. Such issue ignored the
15 testimony of David R. Clemens, Director of Policy Planning of
16 the City of Renton at the hearing on the temporary restraining
17 order on January 29, 1982 that no conditional use permit was
18 required for operation of a movie theater in the business and
19 more intense zones of the City; i . e. , that under the Zoning
20 Ordinance, an Adult Motion Picture Theater was an allowable
21 use within the City of Renton to the extent not prohibited by
22 the restrictions of Ordinance 3526 .
23 On February 19, 1982, the City filed a civil action in
24 King County Superior Court seeking a declaratory judgment that
25 the ordinance involved in the instant action is constitutional
26 as applied to the Plaintiffs ' proposed use of the two theaters .
27 On February 22, 1982 (within the time allowed the Defendants
28 to file a response in the lawsuit) the Defendants filed a
OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
100 SO. SECOND ST.. P. O. SOX 11241
P. 5 RENTON. WASHINGTON 98057
.J 255-8678
1 response in the lawsuit) the Defendants filed a responsive
2 pleading to the Plaintiff' s "Amended and Supplemental Complaint
3 for Declaratory Judgment and Preliminary and Permanent
4 Injunction" (i. e . , this Motion to Dismiss) .
5 On February 23, 1982, this Court considered the request
6 for temporary restraining order de novo and rendered its judgment
7 that the Plaintiff' s motion for temporary restraining order under
8 the original Complaint which was superceded by the Amended
9 Complaint was denied. Judgment was entered on the same date.
10 The City moves to dismiss the present action because: (1)
11 the Amended and Supplemental Complaint fails to state a
12justiciable claim upon which relief can be based under either
13 28 U. S.C . , section 2202 or 42 U. S. C. §1933; and this Court lacks
14 jurisdiction of the subject matter (i. e. , the interpretation to
15 be given to Ordinance No . 3526 and whether it can or needs to
16 be given a narrowing construction) and (2) this Court should
17 abstain from exercising jurisdiction under the principles
18 expressed in Younger v. Harris, supra, Huffman v. Pursue Ltd. ,
19 supra, Steffel v. Thompson, supra, and the opinion of Associate
20 Justice Stevens in Young v. American Mini Theater, Inc. , et al ,
21 supra .
22 II
23 The U. S. District Court Lacks Jurisdiction Of
24 The Subject Matter Of The Declaratory Judgment Action
25 Renton Ordinance No. 3526 contains the identical language
26 of the zoning ordinance which was considered by the U. S . Supreme
27 Court in Young v. American Mini Theatres, Inc . , et al , 427 U. S .
28
OBJECTIONS TO MAGISTRATE' S REPORT
WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
P. 6 100 SO. SECOND ST.. P. O. SOX 111111
RENTON. WASHINGTON 96057
255-8678
1 50. See Younp at pace 53 , footnote 4 for the definitions of
2 "Adult notion Picture Theater , " "Specified Sexual Activities , "
3 and "Specified Anatomical Areas . "
4 In Young , supra, the theaters contended at page 58 :
5 "that the ordinances are so vague that they violate the Due
6 Process Clause of the Fourteenth Amendment. " In addressing
7 the "vagueness" contention in that case, Justice Stevens noted ,
8 at page 58 :
9 "There are two parts to respondents ' claim that the
ordinances are too vague. They do not attack the
10 specificity of the definition of 'Specified Sexual
11 Activities ' or ' Specified Anatomical Areas. ' They
argue, however , that they cannot determine how much
12 of the described activity may be permissible before
the exhibition is ' characterized by an emphasis ' on
13 such matter. In addition, they argue that the
ordinances are vague because they do not specify
14 adequate procedures or standards for obtaining a
waiver of the 1 , 000-foot restriction.
15 "We find it unnecessary to consider the validity
16 of either of these arguments in the abstract. For even
if there may be some uncertainty about the effect of
17 the ordinances on other litigants, they are unquestionably
applicable to these respondents . The record indicates
18 that both theaters propose to offer adult fare on a
regular basis . Neither respondent has alleged any
19 basis for claiming or anticipating any waiver of the
restriction as applied to its theater. It is clear ,
20 therefore, that any element of vagueness in these
ordinances has not affected these respondents . "
21 Thereafter , in ruling on the theater' s claims as to vagueness
22 of the language which was used and whether that issue was one
23 which required federal intervention, Justice Stevens responded
24 both generally and specifically to that issue, at page 60 :
25 "We are not persuaded that the Detroit zoning ordinances
26 will have a significant deterrent effect on the exhibition
of films protected by the First Amendment. As already noted,
27 the only vagueness in the ordinances relates to the amount
of sexually explicit activity that may be portrayed before
28 the material can be said to be ' characterized by an
emphasis ' on such matter. For most films the question
WARREN & KELLOGG. P.S.
OBJECTIONS TO MAGISTRATE' S REPORT ATTORNEYS AT LAW
P 7 100 SO. SECOND ST.. P. O. sox 15211
RENTON. WASHINGTON 98057
255.8878
1 will be readily answerable; to the extent that an area
of doubt exists , we see no reason why the ordinances
2 are not 'readily subject to a narrowing construction
by the state courts . Since there is surely a less vital
3 interest in the uninhibited exhibition of material that
is on the borderline between pornography and artistic
4 expression than in the free dissemination of ideas of
social and political significance, and since the
5 limited amount of uncertainty in the ordinances is easily
susceptible of a narrowing construction, we think this
6 is an inappropriate case in which to adjudicate the
hypothetical claims of persons not before the Court
7 (Our emphasis) .
8 The general language underscored above:
9 "For most films the question will be readily
answerable; to the extent that an area of doubt
10 exists, we see no reason why the ordinances are not
'readily subject to a narrowing construction by
11 the state courts' ",
12although not necessary to the decision in that case, does consti-
13 tute a binding decision that such language is not vague and does
14 not present a substantial federal question which will authorize
15 federal intervention. Justice Stevens ' opinion requires this
16 Court to hold, as a matter of law that such language as is used
17 in the Renton ordinance is susceptible of a narrowing construction,
18 and that the Court has no jurisdiction to proceed further in regard
19 to the application of such ordinance to specific properties where
20 the City of Renton has clearly stated that it wishes to have the
21 matter resolved in the pending state court proceedings, where it
22 can obtain the "narrowing construction" which this Court cannot
23 give to the ordinance. See U.S . v. 37 Photographs , 402 U. S. 363,
24 where the U. S . Supreme Court noted at page 368 that the federal
25 courts lack jurisdiction to construe state legislation:
26 As enacted by Congress, §1305 does not contain
27 explicit time limits of the sort required by Freedman,
Teitel, and Blount. These cases do not, however, require
28 that we pass upon the constitutionality of §1305(a) , for
it is possible to construe the section to bring it in
OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
100 SO. SECOND ST.. P. O. SOX Ill
P. 8 RENTON. WASHINGTON 98057
255-8678
1 harmony with constitutional requirements . It is true
that we noted in Blount that "it is for Congress , not
2 this Court , to rewrite the statute. " 400 US . at 419 ,
27 L Ed 2d at 505 and that we similarly refused to
3 rewrite Maryland' s statute and Chicago ' s ordinance in
Freedman and Teitel . On the other hand, we must
4 remember that "(w)hen the validity of an act of
Congress is drawn in question, and . . . a serious doubt
5 of constitutionality is raised, it is a cardinal
principle that this Court will first ascertain whether
6 a construction of the statute is fairly possible by
which the question may be avoided. " Crowell v. Benson
7 285 US 22, 62, 76 L Ed 598 , 619, 52 S Ct 285 (1932) .
Accord, e.g. , Haynes v. United States, 390 US 85 , 92 ,
8 19 L Ed 2d 923 , 929, 88 S Ct 722 (1968) (dictum) ;
Schneider v. Smith, 390 US 17 , 27 , 19 L Ed 2d 799 ,
9 806, 88 S Ct 682 (1968) ; United States v. Fumlev,
10 345 US 41, 45, 97 L Ed 770, 775, 73 S Ct 543 (1953) ;
Ashwander v. Tennesse Valley Authority, 297 US 288 ,
11 348 , 80 L Ed 688 , 711, 56 S Ct 466 0936) (Brandeis , J. ,
concurring) . This cardinal principle did not govern
12 Freedman, Teitel, and Blount only because the statutes
there involved could not be construed so as to avoid
13
all constitutional difficulties.
14 The obstacle in Freedman and Teitel was that the
statutes were enacted pursuant to state rather than
15 federal authority; while Freedman recognized that a
statute failing to specify time limits could be saved
16 by judicial construction, it held that such construction
had to be "authoritative, " 380 US, at 59, 13 L Ed 2d at 655,
17 and we lack jurisdiction authoritatively to construe
state legislation. Cf. General Trading Co. v. State Tax
Comm'n 322 US 335, 337 , 88 L Ed 1309 , 1311, 64 S Ct
18 1028 1944( ) (Our emphasis)
19 Every court has jurisdiction to determine its own
20jurisdiction. See Prack v. Weissinger, (C. A.4, 1960) 276 F . 2d 466
21 at 450:
22 " We are of the opinion that Miss Prack's second point of error is
23 well taken. The general rule as to the power of a court to determine its
own jurisdiction is stated in 21 C.J.S. Court §113 (1940) , as follows:
24 "Every court has judicial power to hear and determine, or
25 inquire into, the question of its own jurisdiction, both as to
parties and as to subject matter, and to decide all questions,
26 whether of law or fact, the decision of which is necessary to
determine the question of jurisdiction . . .^
27 The decision of Justice Stevens in Young, supra,
28
OBJECTIONS TO MAGISTRATE' S REPORT
WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
P. 9 too SO. SECOND ST.. P. O. SOX 626
RENTON. WASHINGTON 98057
255-8870
1 rec,uires this court to grant the defendant ' s motion and dismiss
2 the Amended Complaint for lack of subject matter jurisdiction.
3 II (A)
4 The Magistrate 's Conclusion That The Pleadings
5 Presented Issues For the Determination Of The
6 Federal Court Is Erroneous .
7 The Magistrate 's conclusion that:
8 1 . "The dispositive issue in this action is whether the
Renton zoning ordinance has the effect of suppressing
9 or greatly restricting plaintiffs ' access to the
market for protected speech or is instead a permissible
10 time , place , and manner restriction" ; and
11 2. "Plaintiffs' amended complaint raised three issues : (1)
whether on the record there is a compelling state interest
12 to justify the zoning ordinance which affects protected
First Amendment Speech ; and (2) whether the zoning
. 13 ordinance places an unconstitutional restriction on
access to the market for protected speech. "
14
are erroneous . Insofar as the federal issue of the facial
15
validity of Renton Zoning Ordinance 3526 is concerned, those
16
issues have already been answered by Justice Stevens ' opinion
17
in Young,' supra. Insofar as the same issues are raised in
18
relation to any alleged application of Renton Ordinance 3526
19
to the Roxy and Renton Theaters themselves , those matters are ,
20
in principle, for the determination of the City of Renton as to
21
how and when and in what context they may be raised. The City
22
of Renton having already filed a lawsuit in the state court seeking
23
a resolution of the application of the ordinance to the Renton
24
25 and Roxy' s proposed uses , the latter issue is , under Justice
26 Stevens ' opinion, for the state court ' s determination.
27 The City ' s decision to have this issue resolved in the state
28 court is not arbitrary. The reasons for the City's choice of
OBJECTIONS TO MAGISTRATE'S REPORT
WARREN & KELLOGG. P.S.
ATTORNEY.AT LAW
P. 1 0 100 SO. .ECOND.T.. P. O. .OX .24
RENTON. WASHINOTON 98057
253.8678
1 state forum are very practical ones , from the standpoint of
2 its financial liability :
3 (1) The City has relied upon Justice Stevens ' opinion
which holds that the language of the Detroit ordinance
4 is not vague, and that a city may enact such ordinance
with reasonable certainty that it would not thereby be
5 liable unless it improperly applied the ordinance to
specific facts and a specific use of property.
6
(2) The City does not wish to engage, involuntarily,
7 in abstract litigation with the Renton and Roxy Theaters ,
--litigation which subsequent events may prove to be
8 unprofitable and ill advised.
9 (3) The City is aware of its absolute liability under
i!onell v. New York City Dept. of Social Services , 436
10 U. S . 658, and Owens v. City of Independence, 455 U. S. 622,
for the deprivation of civil rights under 42 U. S .0
11 section 1983, and of the differing standards in determining
responsibility for attorney' s fees as a prevailing party
12 in 42 U.S .C. Section 1983 litigation. Such standards favor
the Civil Rights Plaintiff, Entertainment Concepts , Inc . v.
13 Maciejewski, 631 F. 2d 497 (7th Cir. , 1980) , cert . denied in
Maciejewski v. Entertainment Concepts, Inc . , U. S.
14 7 L.Ed. 2d 346 (Feb. 23, 1981) ; see also , Supreme Court of
Virginia v. Consumers Union of the U. S . , 446 U. S . 719 at
15 , 737 n. 17 (1980) and deter the City from affirmatively
applying the ordinance in an unreasonable manner .
16
(4) The City wishes its financial responsiblities for
17 unsuccessful litigation to be measured by state concepts
of liability for malicious prosecution for litigation
18 which has been unlawfully initiated pursuant to its own
affirmative action, rather than in terms of liability for
19 federal litigation pursuant to 42 U. S . C. section 1983 and
1988 for abstract civil rights violations , in which it is
20 an unwilling participant, and has no opportunity to have
the state statute "authoritatively construed" . U. S . v.
21 37 Photographs, supra.
22 (5) The City is aware of the irreconcilable results which
can be reached in federal and state courts regarding the
23 identical state statute. See, in this regard, in this
state, Spokane Arcades, Inc. v. Brockett, 631 F. 2d 135
24 (9th Cir. , 1980) , affirmed in Brockett, Spokane County
Prosecuting Attorney v. Spokane Arcades , Inc . No. 80-1604,
25 U. S. , 70 L . Ed. 2d 468; and in the State of North
Carolina, see State of North Carolina ex rel . Andrews v.
26 Chateau X, Inc. , 296 N.C. 251, 250 S .E. 2d 603 (Jan. 4, 1979)
remanded for reconsideration in Chateau X, Inc . v. State of
27 North Carolina, No . 78-138, 445 U. S. 947 (liar . 31, 1980)
28 in light of Vance, et al v. Universal Amusement Co . , Inc . ,
OBJECTIONS TO MAGISTRATE'S REPORT
WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
P. 11 tOO SO. SECOND ST.. P. O. SOX 626
RENTON. WASHINGTON 98057
255-8678
1 445 U. S. 308 , 100 S . Ct . 1156 , 63 L. Ed. 2d 413 (Mar . 13 ,.
1980) and readopted and reaffirmed in Chateau X, Inc .
2 v. State of North Carolina ex rel . Andrews, 302 N. C .
S. E. 2d (Mar . 4 , 1981) ; and in the State
3 oTIdaho, see Idaho ex rel . Wayne Kidwell v. U. S .
Marketing, Idaho , 631 P . 2d 622, probable
4 jurisdiction noted by the U. S . Supreme Court on
January 11 , 1982 in U. S . Marketing, Inc . , et al . v.
5 State of Idaho, No. 81-741 , 50 L.W. 3547 , unilaterally
dismissed by the Appellants, U. S . Marketing , Inc . et al ,
6 on March 10, 1982 under U. S . Supreme Court Rule 53 and
against the objections of the Attorney General of the
7 State of Idaho. See 50 L.W. 3751 . In the North Carolina
Case, above noted, the North Carolina State Moral Public
8 Nuisance Statute was construed by the North Carolina
State Supreme Court and upheld as constitutional without
9 considering the "closure" issue; in the Idaho case,
the Idaho Moral Public Nuisance Statute (identical in
10 content) was construed by the Idaho State Supreme Court
and upheld as constitutional including the ''closure"
11 issue; in the Washington case, the Washington Moral
Public Nuisance Statute (identical in content) was held
12 by the U. S. District Court to be facially unconstitutional
in a decision in which the federal court refused to
13. construe the statute or sever the parts which it had held
to be unconstitutional . In a Petition for Rehearing filed
14 in the Supreme Court (80-1604) , the Spokane County
Prosecuting Attorney brought to the attention of the U. S .
15 Supreme Cot:' the fact that the Plaintiffs in his 42 U. S . C.
§1983 litiF n were claiming reasonable attorney' s
16 fees and cc of $75, 000. 00 for a civil rights action
(in which the Spokane County Prosecutor was an involuntary
17 litigant) . On January 11, 1982, the U. S. Supreme Court
denied that Petition for Rehearing. See C.C.H. , U. S .
18 Supreme Court Bulletin at page B 666.
19 II (B)
20 The Magistrate' s Conclusion That Renton
21 Ordinance No . 3526 Cannot Be Given A Limiting
•
42 Construction Is Erroneous .
23 The Magistrate' s conclusion that "there is no conceivable
241imiting construction by a state court that would resolve this
25issue" is not supported by recent case law. Compare in this
26 regard, the language and construction given by California State
27 Courts to the identical ordinance in Walnut Properties, Inc .
28 v. Long Beach City Council, 100 Cal . App. 3d 1018, at 1021 , 161
OBJECTIONS TO MAGISTRATE' S REPORT WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
tOO SO. SECOND ST.. P. O. SOX 626
P. 12 RENTON. WASHINGTON 98057
255.8678
1 Cal . Rptr . 411 , at 413 , hearing denied by the California
2 Supreme Court on March 13 , 1980; Pringle v. City of Covina ,
3 115 Cal . App. 3d 151 at 160; 171 Cal Rptr. 251 , at 255 , hearing
4 denied by California Supreme Court on March 25 , 1981 ; Castner v .
5 City of Oakland , Cal . App. 3d , 180 Cal Rptr , 682, at 684
6 (Feb . 2 , 1982) Kuhns v. Santa Cruz County Bd. of Supervisors ,
7 Cal . App . 3d __, 181 Cal Rptr . 1 at 4 .
8 The City of Renton does not rely upon the interpretations
9 given to such language by the above California State courts , but
10 contend, instead, that a constitutional construction can be
11 given such language by the Washington State courts that the land
12 use proscribed by such language in such Zoning Ordinance is a
13 use which: (1) is a continuing course of conduct of repeated
14 violations , which (2) is not innocent, but "panders", being a use
15which appeals to prurient interest; i. e. a manner of use which
16 incites lasciviousness or lust. See Substitute House Bill 626,
17 Section 1 , (8), page 2, lines 29-30, enacted April 1, 1982.
18
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28 OBJECTIONS TO MAGISTRATE' S REPORT
WARREN & KELLOGG. P.S.
P. 13 ATTORNEYS AT LAW
100 SO. SECOND ST., P. O. SOX •26
RENTON, WASHINGTON 98057
255-8678
1 III
2 THE ENFORCEMENT OF A CITY ZONING ORDINANCE
3 RELATING TO THE USE OF PROPERTY FOR AN "ADULT
MOTION PICTURE THEATER" IS A "CIVIL
4 ENFORCEMENT PROCEEDINGS" WITHIN THE MEANING OF
HUFFMAN V. PURSUE , LTD.
5 In Huffman v. Pursue , Ltd. 420 U. S. 592 , the United States
6 Supreme Court extended the Younger v. Harris abstension doctrine
7 in criminal prosecutions to civil cases to abate a public nuisance
8 where : (1) the state is a party to the proceedings and the civil
9 proceeding to abate a public nuisance is both in aid of and
10 closely related to criminal statutes which prohibit the
11 dissemination of obscene. material , and (2) a federal injunction
12
interfering with the state proceeding to abate a public nuisance
13
disrupts the state' s effort to protect the very interests which
14
underlie its criminal laws and to obtain compliance with precisely
15
the standards embodies in those laws . See Huffman v. Pursue ,
16
Ltd. , supra, at page 604.
17
A violation of the use provisions of Renton Zoning ordinance
18
No. 3526, under the above construction and traditional and well-
19
recognized concepts of municipal law, is also a public nuisance
20
which is subject to abatement. See McQuillan, Municipal
21
Corporations , volume 8, s25 . 11 "Zoning and Nuisances" at page 31
22
and Shields v. Spokane School District, No. 81 , 31 Wash. 2d 247 ,
23 196 P. 2d 352, following Robinson Brick Co. v. Luthi , 115 Colo.
24 106, 169 P. 2d 171, 166 A. L.R. 655 , cited at footnote 5 of the
25 McQuillan text.
26 The declaratory judgment proceedings which have been filed in
27 the Washington state court, being in the nature of a civil action
28 to declare that such proposed land use in the proscribed area is a
OBJECTIONS TO MAGISTRATE' S REPORT WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
100 SO. SECOND ST.. P. O. SOX S2S
P . 14 RENTON, WASHINGTON 98057
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1 public nuisance which is subject to abatement under the zoning
2 restriction and may be enjoined, is but another way of enforcing
3 the public policy which was the subject of the lawsuit in Huffman
4 v. Pursue , Ltd. In that case , the situations were reversed :
5 Pursue , Ltd. framed its cause of action in terms of a declaratory
6 judgment action ; whereas , the Prosecuting Attorney framed his
7 pleadings in terms of a "public nuisance" which required abatement
8 under the civil law.
9 The declaratory judgment judicial proceedings which have been
10 filed in the state court herein are no less important than the
-11 "Civil Enforcement Proceedings" in Huffman v. Pursue , Ltd. See
12 Justice Stevens , speaking in the Young case at page 71 :
13 ' "The record discloses a factual basis for the Common
Council ' s conclusion that this kind of restriction will have
14 the desired effect. It is not our function to appraise the
wisdom of its decision to require adult theaters to be
15 separated rather than concentrated in the same areas . In
either event , the city's interest in attempting to preserve
16 the quality of urban life is one that must be accorded high
respect . Moreover, the city must be allowed a reasonable
17 opportunity to experiment with solutions to admittedly
serious problems . ' (Our emphasis . )
18
19 III (A)
20 The Magistrate' s Conclusion That Abstention
21 Is Not Appropriate Is in Error. Abstention
22 Is Not Only Appropriate, It Is Required.
23 The Magistrate's conclusion that abstention is not appropriate
24 to allow the state court to construe the state statute in the first
25 instance is erroneous . Abstention is not only appropriate, it is
26 required because it is jurisdictional . See the defendants ' contention
27 herein at Point II , page 8 . Under the defendants ' alternative
28 contention, on principle, the plaintiffs have failed to state a
OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
[ 100 SO. SECOND ST.. P. O. SOX SSS
P. 15 RENTON. WASHINGTON 98057
255.8878
1 claim upon which relief can be based. See Martinez v. California
2 444 U . S . 227 , 62 L Ed. 2d 481 (Jan. 15 , 1980) ; Allen V. McCurry ,
3 U. S . 66 .L.Ed. 2d 308 , at 313 (Dec . 9 , 1980) and Parratt v.
4 Taylor , U. S . , 68 L.Ed. 2d 420 , at 434 (May 18 , 1981) . See also ,
5 Point II of Memorandum of Points and Authorities in Support of
6 Defendants ' Motion to Dismiss Complaint Pursuant to F. R. C .P . 12 (b)
7 (1) and 12(b) (6) , at pages 10-13 .
8 Abstention is required by principles of comity which have nothing
9 to do with the fact that the Plaintiffs in this federal court have
10 been the first to file their cause of action in the courtroom. See
11 here Justice White speaking for the Court in Hicks v. Miranda, 422
12 U. S. 332 at 349 (June 24, 1975)
13. " . . . Neither Steffel v. Thompson, 415 US 452, 39 L Ed 2d
505 , 94 S . Ct . 1209 (1974) , nor any other case in this Court
14 has held that for Younger v. Harris to apply, the state
criminal proceedings must be pending on the day the federal
15 case is filed. Indeed, the issue has been left open and we
now hold that where state criminal proceedings are begun
16 against the federal plaintiffs after the federal complaint is
filed but before any proceedings of substance on the merits
17 have taken place in the federal court, the principles of
Younger v. Harris should apply in full force. . . Unless we
18 are to trivialize the principles of Younger v. Harris , the
federal complaint should have been dismissed on the State' s
19 motion absent satisfactory proof of those extraordinary
circumstances calling into play one of the limited exceptions
20 to the rule of Younger v. Harris and related cases . "
21 As Justice Stewart stated in his dissent in Hicks , supra, at
22 page 354:
23 "There is , to be sure, something unseemly about having the
24 applicability of the Younger doctrine turn solely on the
outcome of a race to the courthouse. . ."
25 There is no way in which the City could get the "authoritative"
26 construction of the ordinance in the state court , to which
27 it is entitled and as was envisioned by Justice Stevens '
28 opinion in Young, if this Court were to reject abstention by
OBJECTIONS TO MAGISTRATE' S REPORT WARREN & KELLOGG. P.S.
ATTORNEYS AT UAW
100 SO. SECOND ST., P. O. SOX 62S
P. 16 RENTON, WASHINGTON 98057
255.8678
1 attributing weight to the fact that the Plaintiffs were the first
2 to file their cause of action. The nature of the controversy is
3 such that the City of Renton will never be aware that such a
4 controversy exists , and hence will be unable to bring its state
5 action , until either : (1) the theaters change their use
6 (programming) from one which is traditional to that which can be
7 recognized as the programming of an "Adult Motion Picture
8 Theater" , or (2) the theater formally announces its future
9 intentions (as in this case) by the filing of its lawsuit.
10 The record herein shows that the City of Renton acted in
11 a timely manner by filing its state action before it was
12 required to respond with a responsive pleading to the federal
13 lawsuit. Further, the Statement of Facts recited above
14 demonstrates that when the City of Renton did file its
15 Motion to Dismiss on February 22, 1982 , it was in answer to the
16 Amended Complaint filed on February 9th. On that date , the
17 Plaintiffs had already abandoned their original complaint (filed
18 on January 20 , 1982) , under which they sought a temporary
19 restraining order, which order was denied on February 23 , 1982 ,
20 the day after the City filed its Motion to Dismiss the
21 Amended Complaint.
22 IV
23 THE MAGISTRATE MISUNDERSTANDS THE THRUST OF
THE DEFENDANTS' ARGUMENT REGARDING EXHAUSTION
24
OF ADMINISTRATIVE REMEDIES.
25 The Magistrate ' s statement that "Defendants use the
26 assertion of that claim (conditional use) as a basis for arguing
27 that Plaintiff must exhaust those remedies (administrative) "
28 misunderstands the thrust of the Defendants ' argument. The City
OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
P. 17 100 SO. SECOND ST.. P. O. SOX S24
RENTON. WASHINGTON 98057
255.8878
1 contends that the Plaintiffs ' attorney should not be allowed to
2 assert in a verified pleading a contention which is the
3 appropriate subject of an administrative ruling on a zoning
4 matter , without establishing the basis for the correctness of such
5 administrative ruling; particularly where there is sworn testimony
6 of the responsible City officer in the same federal court , prior
7 to the filing of such pleading, that the administrative ruling on
8 that issue is contrary to the fact which is sworn to in such
9 pleading.
10 The Magistrate ' s statement (Report , at page 4, line
11 25 et seq. ) that "exhaustion of administrative remedies is not
12 required to invoke federal jurisdiction under 42 U. S . C. s 1983
13' 'unless the administrative remedy is fully adequateto obviate the
14 federal claims " is a correct statement of the law, but a
15 misapplication of such law to the facts of record the
16 Plaintiff's spurious claim regarding "conditional use" under such
17 rule of law would have been obviated by the administrative remedy
18 when he became aware of the testimony of David R. Clemens , the
19 Director of Policy Planning of the City of Renton, at the hearing
20 upon Plaintiff's motion for a temporary restraining order on
21 January 29 , 1982, almost two weeks prior to the filing of
22 Plaintiffs ' Amended Complaint , that no conditional use permit
23 was required. Under ruling case law in the 9th Circuit , Plaintiff
24 was required to exhaust his administrative remedy (either by
25
inquiry, or by notice of the City's position) because such remedy
26 would obviate his federal claim.
27 /
28 /
OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S.
ATTORNEY! AT LAW
P. 18 100 10. SECOND ST.. P. O. BOX 626
RENTON. WASHINGTON 98057
2RS_R878
1 CONCLUSION
2 For all of the reasons noted above , Defendants submit
3 that this Court should grant the City of Renton' s Motion to
4 Dismiss .
5 DATED: April 7 , 1982.
6
Respectfully submitted ,
7
8
9
10
11
12
13
14
15
16
-17
18
19 -
20
21
22
23
24
25
26
27
28
OBJECTIONS TO MAGISTRATE' S REPORT
WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
P. 19 lOO SO. SECOND ST.. P. O. SOX SSG
RENTON. WASHINGTON YB037
235-B678
1
2
3
4
5
•
7
8 UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE
9
PLAYTIME THEATRES, INC . , a )
10 Washington corporation , et al , )
) NO. C82-59M
11 Plaintiffs , )
) OBJECTIONS TO
12 vs . ) MAGISTRATE ' S REPORT AND
) RECOMMENDATION ON
13 THE CITY OF RENTON , et al , ) DEFENDANT ' S MOTION FOR
) SUMMARY JUDGMENT AND
14 Defendants , ) RENEWED MOTION TO
THE CITY OF RENTON , a ) DISMISS , AND PLAINTIFFS '
15 municipal corporation , ) MOTION FOR PRELIMINARY
) INJUNCTION 16
Plaintiffs , )
) No . C82-263
17 vs . )
)
18 PLAYTIME THEATRES, INC . , a )
Washington corporation , et al , )
19 )
Defendants , )
20
COME NOW the Defendants and object to the Report and
21
Recommendation filed herein by Magistrate Philip K . Sweigert
22
dated November 5 , 1982 , as follows :
23
I . SUMMARY OF ARGUMENT
24
A . The Magistrate has erred as a matter of law by
25 failing to abstain from the exercise of Federal
Court jurisdiction . The refusal to abstain
26 constitutes an abuse of discretion .
27 On June 21 , 1982 , the United States decided the case of
28 Middlesex County Ethics Committee vs . Garden State Bar
CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
MAGISTRATE ' S FINDING '0. .o. SECOND ST.. P. O. DOX
PAGE 1 RENTON. WASHINGTON 98057
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1 Association , 50 Law Week 4712 , U . S. , 102 S . Ct . 2515 ,
2 73 L . Ed . 2nd 116 ( 1982 ) , which extended the Younger
3 abstention doctrine to noncriminal judicial proceedings
4 involving important state interests . There the Court
5 established a four-part test for abstention in noncriminal
6 proceedings :
7 1 ) Is a State action pending?
8 2 ) Are important State policy or interest
questions involved?
9
3) Can constitutional issues be resolved in the
10 State Court?
11 4 ) Is there any showing of bad faith , harrassment
or some other extraordinary circumstance which
12 would make abstention inappropriate?
13 The Court held that :
14 "So long as the constitutional claims of respondents
can be determined in the state proceedings and so
15 long as there is no showing of bad faith ,
harrassment or some other extraordinary circumstance
16 that would make abstention inappropriate , the
Federal Court should abstain ." At 4175 .
17
Therefore , it was an abuse of discretion for the
18
Magistrate to refuse to abstain from the jurisdiction of the
19
court in this matter .
20
B. The Magistrate ' s conclusion that the effect of the
21 City of Renton ' s ordinance is to exclude uses
exercising First Amendment rights from the City of
22 Renton is erroneous as a matter of law.
23 The United States Supreme Court in Young v . American Mini
24 Theaters , 427 U . S. 50 , 96 S. Ct . 2440 , 49 L. Ed . 2d 310
25 ( 1976 ) , has specifically approved the type of ordinance
26 adopted by the City . Only in the event of actual exclusion ,
27 Schad v . borough of Mt . Ephraim , 452 U . S. 61 , 68 L . Ed . 2d 671
28
CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S.
ATTORNEY. AT LAW
MAGISTRATE ' S FINDING SECOND .T.. P. O. I 4213
PAGE 2 RENTON, WASHINGTON LOO57
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1 ( 1981 ) , or effective exclusion , Basiardances v . City of
2 Galveston , 682 F . 2d 1203 (5th Cir . 1982) , is the presumption
3 of validity following Young overcome . This ordinance is not
4 exclusionary for two reasons :
5 ( 1 ) Plaintiffs are at liberty to exhibit any
6 sexually explicit material which is protected by the First
7 Amendment rights at any location within the City of Renton ,
8 including their present location , without restriction as to
9 place , time or manner . The ordinance , as amended , regulates
10 only a "continuing course of conduct" ( of exhibiting sexual
11 conduct which appeals to a prurient interest) which amounts to
12 " pandering" in a family-oriented area . Ord . 3629 , Sec . II .
13 Incidental exhibition of pornographic material will not
14 violate this amended ordinance . Plaintiffs ' conduct is
15 regulated only to the extent that it constitutes a " continuing
16 course of conduct" of "pandering" ( which conduct is not
17 protected by the First Amendment, Pinkus v . U .S . , 436 U . S. 293 ,
18 98 S. Ct . 1808 , 56 L. Ed . 2nd 293 ( 1978) ) in family-oriented
19 areas .
20 ( 2 ) Furthermore , the effect of the ordinance is not
21 exclusionary because , contrary to the findings of fact by the
22 Magistrate , substantial portions of the City of Renton are
23 available for exhibition of the sexually explicit films which
24 Plaintiffs desire to exhibit . Although the record discloses
25 that 520 acres or more are available within the City for an
26 adult theater , the Magistrate erroneously presumes that such
27 property is unsuitable for this particular use . Further , the
?8 relevancy of that erroneous presumption is grounded upon the
CITY OF RENTON ' S OBJECTIONS TO WARREN & KELLOGG, P.5.
MAGISTRATE ' S FINDING ONNCYS AT LAW
goo so. SEC
seeoNo ST., P. o. hue
PAGE 3 RENTON. WASHINGTON 91.30'i7
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1 unwarranted assumption that the City is required to assure the
2 availability of developed property for an adult theater . No
3 other enterprise could advance such a preposterous notion .
4 Even the First Amendment does not require that the City repeal
5 the laws of the market place in order to assure that Plaintiff
6 can operate its business within the City of Renton .
7 II . STATEMENT OF FACTS
8 A . Enactment of Ordinance :
9 In 1980 the City of Renton decided to study the
10 possibility of' adopting an ordinance regulating the exhibition
11 of sexually explicit films through the use of the City Zoning
12 power . After extensive study and public hearings , the City
13 adopted such an Ordinance on April 13 , 1981 (Ord . 3526 . A
14 copy of Ord . No . 3526 is attached as Attachment " A") . The
15 ordinance was patterned very closely after the ordinance
16 approved by the United States Supreme Court in Young . By
17 subsequent ordinances the City shortened the distance
18 restrictions providing more land within the City wherein the
19 ordinance did not apply . But more importantly , the amending
20 ordinances prohibited in the restricted zone a "continuing
21 course of conduct" of exhibiting sexual conduct in a manner
22 appealing to a prurient interest , and provided for abatement
23 of the public nuisance by civil proceeding , and not by
24 criminal enforcement . These later ordinances also adopted
25 findings of fact made by the City Council which supported the
26 various ordinances . ( See copies of Ord . Nos . 3629 and 3637
27 attached as Attachments " B" and " C" , respectively . )
28
CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S.
ATTORN[Y. AT LAW
MAGIST1RATE ' S FINDING BOO .O. .CGONu .T.. P. O. nux L16
PAGE RCNTON. WASHINGTON 98057
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1 B . Synopsis of Litigation :
2 4 / 13/81 - City adopted Ordinance No . 3526 .
3 1 /26/82 - Plaintiff , Kukio Bay Properties purchased two
theaters within the City of Renton both of
4 which are clearly within the proscribed
distance for separation of adult motion
5 picture theaters from residential zones ,
churches , schools and public buildings .
6 Plaintiff acquired the two theaters with
knowledge of the existence of the ordinance ,
7 and without any attempt to obtain
administrative relief from the ordinance , or
8 to inquire as to how the City would enforce
the ordinance .
9
1 /20/82 - Plaintiff filed this lawsuit requesting the
10 entry of a Temporary Restraining Order and
Preliminary Injunction .
11
1 /29/82 - Temporary Restraining Order hearing .
12 Magistrate Sweigert found that the ordinance
was basically constitutional and that the
13 Temporary Restraining Order was not necessary
to maintain the status quo .
14
2/09/82 - Plaintiffs filed Amended and Supplemental
15 Complaint .
16 2/19/82 - Prior to any action being taken on the merits
in the federal court action , the City filed a
17 Complaint for Declaratory Judgment under RCW
7 .24 in the King County Superior Court , naming
18 Plaintiffs herein as Defendants , and
requesting an adjudication of the
19 constitutionality of the ordinance as applied
to the specific land use proposed by the
20 Plaintiffs as set forth in their Amended and
Supplemental Complaint .
21
2/22/82 - City of Renton filed its motion to dismiss the
22 Plaintiff' s Amended and Supplemental Complaint
for lack of subject matter jurisdiction and
23 additionally requested the Court to abstain
from the exercise of jurisdiction since this
24 action primarily involves a zoning ordinance
under Young v . American Mini Theaters , which
25 matter should be heard in the state court .
26 3/08/82 - Plaintiffs filed a Petition to Remove the
state court action to Federal Court .
27
28
CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
MAGISTRATE ' S FINDING SECOND ST.. P. O. SOX d:e
PAGE r RENTON. WASNINVTON 9U051
25543670
1 3/12/82 - City of Renton filed its Objection to Removal
and Motion to Remand . Magistrate Sweigert
2 heard City' s Motion to Dismiss .
3 3/18/82 - Plaintiffs file their Motion to Dismiss the
state court complaint .
4
4/09/82 - Magistrate Sweigert heard the respective
5 motions concerning the Motion to Remand to the
state court and Motion to Dismiss . At the
6 conclusion of the hearing , the Magistrate
indicated in an oral opinion that the state
7 court action should be remanded . However , no
report or recommendation has been issued by
8 Magistrate Sweigert .
9 5/04/82 - City renewed its Motion to Dismiss Plaintiff' s
amended complaint .
10
5/27/82 - City filed Motion for Summary Judgment of
11 Dismissal with Prejudice , and renewed its
Motion for Dismissal .
12
6/23/82 - Magistrate Sweigert heared City' s Motion for
13 Summary Judgment , City' s Renewed Motion to
Dismiss Plaintiff ' s Amended Complaint and
14 Plaintiffs' Motion for Preliminary Injunction .
Despite the City' s request that the City' s
15 Motion for Summary Judgment be heard in
advance of the hearing on Plaintiff' s Motion
16 for Preliminary Injunction , the Magistrate
proceeded to hear both Motions at the same
17 time .
18 11 /05/82 - Magistrate Sweigert fileed his report and
recommendation .
19
20 III . ARGUMENT
A . JURISDICTION: This court must abstain from the
21 exercise of its jurisdiction in this matter and
remand the state court action to the state court for
22 resolution of the claims of the parties .
23 ( 1 ) Abstention Required : Since the previous ruling
24 herein on Defendant' s Motion to Dismiss the Federal Court
25 proceedings for lack of jurisdiction , the United States
26 Supreme Court filed an opinion in the case of Middlesex County
27 Ethics Committee v . Garden State Bar Association , supra . A
28 copy of that opinion is attached as Attachment "D" . In that
CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.5.
ATTORNEY* AT LAW
MAGISTRATE ' S FINDING ,00 .0. f[GONO ST.. P. O. IOx 626
PAGE 6 RCNTON. WASHINGTON 98057
255-8678
1 case the Supreme Court reversed the Court of Appeals by
2 holding that abstention under Younger v . Harris , 401 U . S. 37 ,
3 27 L . Ed . 2d 669 , 91 S . Ct . 746 ( 1971 ) was required .
4 In Middlesex County , disciplinary proceedings were
5 instituted by the local committee of the New Jersey
6 disciplinary system against an attorney based upon an
7 allegation of unethical conduct. Upon filing of a formal
8 statement of charges , the respondent refused to answer , but
9 instead filed suit in the United States District Court
10 contending that the disciplinary rules violated his First
11 Amendment right of free speech . The District Court granted
12 the Bar Association' s Motion to Dismiss based on Younger v .
13 Harris , supra . The Court of Appeals reversed .
14 On appeal the United States Supreme Court held , in a
15 unanimous opinion , that abstention was required under Younger
16 v . Harris , supra , and its progeny .
17 "Younger v . Harris , 401 U . S. 37 ( 1971 ) , and its
progeny espoused a strong federal policy against
18 federal court interference with pending state
judicial proceedings absent extraordinary circum-
19 stances . The policies underlying Younger abstention
have been frequently reiterated by this court . The
20 notion of ' comity' includes ' a proper respect for
state functions , a recognition of the fact that the
21 entire country is made up of a Union of separate
state governments , and a continuance of the belief
22 that the National Government will fare best if the
States and their institutions are left free to
23 perform their separate functions in their separate
ways . ' Id . , at 44 . (citations omitted) . Minimal
24 respect for the State processes , of course ,
precludes any presumption that the state courts will
25 not safeguard federal constitutional rights . " at
124 .
26
In the argument before this court on the Defendants '
27
Motion to Dismiss , Plaintiffs relied upon the fact that
28
CITY OF RENTON ' S OBJECTIONS TO WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
MAGISTRATE ' S FINDING 100 •O. •ECOND ST.. r. O. 110% 4/11
PAGE G L 7 RENTON. WASHINGTON yUU:.7
I fl L. 255•867B
1 Younger was a criminal case and Huffman v . Pursue , Ltd . , 420
2 U . S. 592 , 43 L. Ed . 2d 482 , 95 S. Ct . 1200 ( 1975) , was a
3 quasi-criminal action . Plaintiff distinguished those cases
4 ( which upheld abstention) from the instant case which more
5 closely partakes of a civil action . The Middlesex County case
6 now extends the abstention doctrine clearly to noncriminal
7 judicial proceedings involving important state interests .
8 " The policies underlying Younger are fully
applicable to noncriminal judicial proceedings when
9 important State interests are involved . " Moore v .
Sims , 442 U . S. 415 , 423 ( 1979) ; Huffman v . Pursue ,
10 Ltd . , 420 U. S. 592 , 604-605 ( 1975)—The importance
of- the State interest may be demonstrated by the
11 fact that the noncriminal proceedings bear a close
relationship to proceedings criminal in nature , as
12 in Huffman , supra . Proceedings necessary for the
vindication of important state policies . . . also
13 evidence the state' s substantial interest in the
litigation . Trainor v . Hernandez , 431 U . S . 434
14 ( 1977 ) ; Juidice v . Vail , 430 U . S. 327 ( 1977) . Where
vital state interests are involved , a federal court
15 should -abstain ' unless state law clearly bars the
interposition of the constitutional claims . ' Moore ,
16 supra , at 426 " (T) he . . . pertinent inquiry is
whether the state proceedings afford an adeuqate
17 opportunity to raise the constitutional claims . . . '
Id . , at 430 . See also Gibson v . Berryhill , 411 U . S.
18 564 ( 1973) ."
19 Under Young it is abundantly clear that the zoning
20 function of a municipality is one of the most essential and
21 necessary interests of State government . Therefore , it seems
22 clear that the Doctrine of Abstention must apply to a zoning
23 action just as it now must be said to apply to attorney
24 disciplinary procedures . As the Middlesex County Court noted
25 at footnote 12 :
26 " As recognized in. Juidice v . Vail , supra , however ,
whether the proceeding is labeled civil , quasi-
27 criminal or criminal in nature , the salient fact is
28 whether federal court interference would unduly
CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
MAGISTRATE ' S FINDING IOO 30. SECONDST.. P. O. DOX o:,
PAGE 8 RENTON, WASHINGTON 98057
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1 interefere with the legitimate activities of the
state . Id . , at 355-335 ." at 125 .
2
The Supreme Court has now refined the following test
3
for Federal Court abstention in noncriminal proceedings :
4
1 . Is a State action pending?
5
2 . Are important State policy or interest
6 questions involved?
7 3 . Can constitutional issues be resolved in the
state court?
8
4 . Is there a showing of bad faith , harassment or
9 some other extraordinary circumstance which
would make abstention inappropriate?
10
See Middlesex , supra , at pages 125-128.
11
Plaintiffs can make no claim that they will be unable to
12
raise their constitutional claim in the state court action
13
which was filed by the City prior to any action on the merits
14
herein . Likewise there can be no showing of bad faith ,
15
harassment , or other extraordinary circumstances that would
16
make abstention inappropriate under Dombrowski v . Pfister , 380
17
U . S. 479 , 85 S . Ct . 1116 , 14 L . Ed . 2d 22 { 1965) .
18
"Younger Abstention" having been clearly made
19
applicable to noncriminal judicial proceedings involving
20
important state interests such as zoning , it is an abuse of
21
discretion for this Court to fail to abstain from the exercise
22
of jurisdiction in this matter .
23
(2) Remand of State Court Action . The State Court
24
proceedings which were removed to Federal Court should be
25
remanded to state court . Because of the failure of the
26
Magistrate to issue a Report and Recommendation in accord with
27
his oral decision to remand the state court action , the City
28
CITY OF RENTON ' S OBJECTIONS TO WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
MAGISTRATE ' S(� FINDING 10080. SECOND ST.. P. O. 0Ox 6„
J PAGE RENTON, WASHINGTON 98057
255-8678
1 has been completely precluded from obtaining the definitive
2 construction of the statute which Young , supra , and
3 Dombrowski , supra , anticipated , and which would obviate the
4 necessity of these proceedings .
5 B. Plaintiffs' claim that the City must assure the
existence of a suitable location is incorrect . The
6 . City cannot consider the economic effect of its
regulation on the Plaintiffs .
7
Plaintiffs' attack on the viability of other locations
8
within the City , has diverted the Magistrate from what should
9
be the real issue in this Federal case , which is : ( 1 ) the
10
facial constitutionality of the ordinance , and (2) whether the
11
ordinance can be given a constitutional application to the
12
specific parcels of property owned by the Plaintiffs .
13
Plaintiffs may not advance the question of suitability of
14
other sites to disguise the fact that its specific locations
15
are proscribed by the face of the ordinance . As noted by
16
Justice Powell in his concurring opinion in Young :
17
"The constraints of the ordinance with repsect to
18 location may indeed create economic loss for some
who are engaged in this business . But in this
19 respect they are affected no differently from any
other commercial enterprise that suffers economic
20 detriment as a result of land use regulations . the
cases are legion that sustain zoning against claims
21 of serious economic damage . ( Citations omitted) "
22 "The inquiry for First Amendment purposes is not
concerned with economic impact ; rather , it looks
23 only to the effect of this ordinance upon freedom of
expression ."
24
. To be sure some prospective patrons may be
25
inconvenienced by this dispersal ." At 78-79 .
26 The City of Renton has no argument with the decision in
27 Schad v . Borough of Mt . Ephraim , 452 U . S. 61 ( 1981 ) , because
28 the regulation complained of in that case specifically
CITY OF RENTON ' S OBJECTIONS TO WARREN & KELLOGG. P.S.
ATTORNEY! AT LAW
MAGISTRATE ' S FINDING IOO SO. SECOND ST.. P. O. UOx 626
PAGE 10 RENTON, WASHINGTON 98057
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1 excluded " live entertainment land uses" from the entire city .
2 However , the regulation in Schad , along with those in other
3 cases including Kuzinich v . County of Santa Clara , F . 2d .
4 , No . 81 -4460 9th Cir . Slip Op . (Oct . 12 , 1982) , and
5 Basiardanes v . City of Galveston , 682 F . 2d 1203 ( 5th Cir
6 1932) , is readily distinguishable from the ordinance here .
7 The ordinance at bar leaves vast areas of the City available
8 for location of adult entertainment land uses contrary to the
9 erroneous findings of the Magistrate . ( See Part III D ,
10 infra . )
11 The City of Renton is not required to provide developed
12 "turn key" property for the Plaintiff to occupy in the
13 exhibition of its film fare . The court must not allow the
14 Plaintiff to advance its argument on behalf of the the
15 hypothetical claims of unknown third parties . Attention must
16 be focused upon the facial constitutionality of the ordinance
17 and its application to the specific locations in which the
18 Plaintiff claims an interest .
19 C . Under the Ordinance Plaintiff may under the
Ordinance , exhibit material protected by the First
20 Amendment .
21 Materials protected by the First Amendment may be freely
22 exhibited under the terms of the ordinance anywhere within the
23 City of Renton . The report and recommendation of the
24 Magistrate erred in his legal conclusion as to the effect of
25 the ordinance on the Plaintiff . ( Mag . Report pg . 6) .
26 The ordinance prohibits as a public nuisance per se ( 1 )
27 the "continued course of conduct" of exhibition of " specified
28 sexual activities" (meaning human genitals in a state of
CITY OF RENTON ' S OBJECTIONS TO WARREN & KELLOGG. P.S.
[�
ATTORNEYS AT LAW
MAGISTRATE ' S FINDING ,OO SO. SECOND ST.. P. O. UUR 44E
PAGE 11 RENTON. WASHINGTON 98057
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1 sexual stimulation or arousal , acts of human masturbation ,
2 sexual intercourse or sodomy , or fondling or other erotic
3 touching of human genitals , pubic regions , buttock or female
4 breasts) and "specified anatomical areas" (meaning less than
5 completely and opaquely covered human genitals , pubic region ,
6 buttock and female breasts below a point immediately above the
7 top of the aerola , and human male genitals in a discernible
8 turgid state , even if completely and opaquely covered) , (2) in
9 a manner which appeals to a prurient interest , ( 3 ) when done
10 within 1 , 000 feet of any residential use or zone , public or
11 private school , church or other religious facility or
12 institution , or public park . A "continuous course of conduct"
13 of exhibition of sexual conduct which appeals to a prurient
14 interest is " pandering" . Pinkus v . U .S . , supra . In summary ,
15 the ordinance prohibits "pandering" in family-oriented areas .
16 Exhibition of "specified sexual activities" or "specified
17 anatomical areas" elsewhere within the City is not a public
18 nuisance per se . Even if the Plaintiff exhibits such
19 activities in a residential zone , it is not a violation of the
20 zoning ordinance until the conduct can be shown to be a
21 " continuing course of conduct . " Innocent or negligent
22 exhibitions do not establish a zoning violation .
23 Finally , the ordinance , as amended , provides for no
24 criminal prosecution of a violation . In the event of a
25 violation , the City may only file a civil action in the King
26 County Superior Court to establish a right to a judicial
27 decree that the Plaintiff is in violation of the zoning
28 ordinance before any action may be taken to interefere with
CITY OF RENTON ' S OBJECTIONS TO WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
MAC 1ST RATE ' S FINDING IW DO. SECOND ST.. P. O. UOX
PAGE 12 RENTON, WASHINGTON 98057
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1 the exhibition . Therefore , the lawful exercise of Plaintiff' s
2 First Amendment rights at any location within the City of
3 Renton is not affected by this ordinance .
4 There is no prior restraint . Conduct which is not
5 protected by the First Amendment is regulated within the
6 specified areas , but only if the exhibition amounts to a
7 " continuous course of conduct" appealing to a prurient
8 interest , and after a judicial hearing determining that fact .
9 D. Contrary to the report and recommendation of the
10 Magistrate , Schad is not in point . Plaintiff' s
proposed land use is not "effectively excluded" from
11 the City .
12 Even if the court finds that the ordinance does infringe
13 upon the expression of First Amendment protected material ,
14 it is a valid "time , place , manner restriction" , because
15 .locations abound within the City of Renton outside of the
protected zones established by the ordinance where Plaintiff
16
17 may lawfully exhibit " specified sexual activities" and
18 " specified anatomical areas" in a " continous course of
19 conduct" , provided that such exhibition does not violate other
20 ordinances of the City of Renton or statutes of the State of
21 Washington regarding public nuisances , sexual conduct ,
22 lewdness , or obscene or harmful matter or the exhibition or
23 public display thereof. See City of Renton Ordinance No .
24 3629 , Section II .
25 _ The Magistrate ' s conclusion of law that Schad , supra , is
26 in point in that the effect of the ordinance is to exclude
27 adult theaters from the City of Renton ( see Mag . Report , pg .
28
CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S.
ATT ORNCYS AT LAW
MAGISTRATE ' S FINDING 10030. SECOND ST., r. O. BOA 62G
PAGE 3 RENTON. WASHINGTON 9 tUO57
255.8678
1 5 , lines 2-23 ; pg . 6 , lines 21 - pg . 7 , line 19 ; pg . 8 , lines
2 20-24 ) is erroneous for the following reasons :
3 ( 1 ) The Court is familiar with the Renton area , and
4 may take judicial notice that the areas where Plaintffs may
5 locate an "adult motion picture theater" are not unattractive ,
6 inaccessible and inconvenient .
7 ( a) One of the principal criteria for locating
8 an adult theater is to find a location with heavy traffic .
9 (Transcript June 23 , 1982 hearing , pages 7 - 8 . ) The areas
10 available are uniquely accessible , bounded on two sides by
11 major freeways ( I-405 and SR 167 ) . On a third side , the area
12 is bounded by a road carrying a traffic volume of 20 ,000
13 vehicle trips per day which runs from Valley General Hospital
14 across the Valley toward Southcenter . (Transcript June 23 ,
15 1982 hearing , pages 36 - 37 . ) The area is bounded on the West
16 by West Valley Highway , another major arterial road . ( See
17 Exhibit "A-2" . ) The areas are bisected by a major boulevard ,
18 a four-lane road and are criss-crossed with other major roads .
19 A number of these streets are being widened or improved at the
20 present time . ( See testimony of Dave Clemens of June 23 ,
21 1982 , pages 36 - 41 ) ( Also see Exhibit 2 at June 23 , 1982
22 hearing , heavy blue lines indicate freeways and arterials . )
23 ( b) The court may take judicial notice of the
24 location of theaters in the Seattle area which are in the skid
25 row area . Certainly , that area is more unattractive than
26 would be a location in a developing office park and warehouse
27 area such as is being provided by the City of Renton .
28
CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S.
ATTORNEY!. AT LAW
MAGISTRATE ' S FINDING IDO .O. SECOND .T.. P. O. DOX 626
PAGE 14 RENTON. WASHINGTON 98057
255-6678
1 (c) The area available for location of an
2 adult theater is more accessible to traffic than the present
3 location of the theaters leased by Playtime . ( See testimony
4 of Dave Clemens , June 23 , 1982 , pages 40 - 41 . ) Within the
5 permissible area , the freeways are readily visible and close
6 by . (See transcript June 23 , 1982 , page 13 . )
7 ( d) There are scattered retail , fast food and
8 office uses throughout the areas . (Transcript of testimony ,
9 June 23 , 1982 , page 11 . )
10 ( e) The northeast portion of the City of
11 Renton is largely developed while the southwest portion ,
12 wherein the permissive zone is included , is developing as
13 office park , warehouse and other business and commercial uses .
14 (Transcript of June 23 , 1982 hearing , pages 43 - 44 . )
15 ( f) Inconvenience of accessibility does not
16 materially effect the business of adult theaters . As pointed
17 out in the testimony , Point Roberts Theater , one of the two
16 profitable theaters operated by Plaintiff is in an isolated ,
19 nearly inaccessible location ( see transcript of June 23 , 1982
20 hearing , pages 73 and 74 ) . The other most profitable theater ,
21 the Embassy Theater , is located in downtown Seattle on Third
22 and Union and has absolutely no parking . (See Deposition of
23 Roger Forbes of May 27 , 1982 , page 28 . ) The Point Roberts
24 Theater , as far distant as forty (40 ) minutes or more from
25 Vancouver , B. C . , is accessible enough to exert tremendous
26 drawing power for Canadian patrons who wish to view sexually
27 explicit films . ( See transcript of June 23 , 1982 , page 16 . )
28
CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S.
ATTORNEYS , LAW
MAGISTRATE ' S FINDING 1oQ 0o. L CONOHT., I. O. uox ate
PAGE 15 RENTON. WASHINGTON 9UO57
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1 (g) The area available for an adult theater or
2 its environs already includes Longacres Race Track , which is
3 one of the major adult entertainment areas in the State of
4 Washington . ( See Exhibit A- 1 . ) This location is primarily
5 served by the same roadways and is located in the same area
6 that the Magistrate has termed inaccessible , unattractive and
7 inconvenient .
8 (h) The Magistrate ' s finding that the
9 permissive zone is far distant from the downtown business area
10 ( Mag . Report , pg . 5 , line 17-19) is erroneous . The permissive
11 zone is separated from the downtown business area by nothing
12 more than the width of Interstate 405 . The downtown core of
13 the City of Renton is bounded on the east and south by
14 Interstate 405 , on the north by Lake Washington and on the
15 west by Rainier Avenue South . ( See Defendant' s Exhibit A- 1 . )
16 ( i) The Renton Cinema , owned by SRO Theaters
17 is located in the northeast quadrant of the I-405 and Rainier
18 Avenue South interchange. The ordinance would permit a
19 theater in the southwest quadrant of that same interchange .
20 ( See Exhibit A-3 for references to permissive area . )
21 (2) The City of Seattle , with an area of 56 , 320
22 acres permits adult films in only 250 acres as approved by the
23 Washington State Supreme Court in the case of Northend Cinemas
24 v . City of Seattle , 90 Wn . 2d 709 , 585 P . 2d . 1153 ( 1973 ) . On
25 the other hand , the City of Renton which is approximately 15%
26 the size of the City of Seattle with only 9 , 635 acres , has
27 dedicated 520 acres to this use , and there is more property
28
CITY OF RENTON ' S OBJECTIONS TO WARREN & KELLOGG. P.S.
ATTORNCY• AT LAW
MAGISTRATE ' S FINDING ,00 •O. •[COND •T.. P. O. IIOx Ole
PAGE 16 RCNTON. WASHINGTON 9U057
255.0670
1 yet available through the short platting process , ( Transcript ,
2 June 23 , 1982 hearing , pages 33 - 35) .
3 (3 ) Even if the ordinance was susceptible of a
4 construction that it inadvertently prohibits the exhibition of
5 this type of fare altogether within the City ( which it has not
6 done) the film fare is still accessible to the residents of
7 the City of Renton through its availability in Redmond , Des
8 Moines and downtown Seattle . ( See Roger Forbes deposition ,
9 testimony , May 27 , 1982 , pages 25 - 26 . )
10 (4 ) The Magistrate' s finding that there is only 200
11 acres available in Renton as part of the permissive zone ( Mag .
12 Report , pg . 5 , lines 2-4) is not supported by the record .
13 After the City adopted the amendatory ordinances , the amount
14 of acreage increased to approximately 520 acres . ( See
15 Affidavit of Dave Clemens In Support of City of Renton ' s
16 Motion for Summary Judgment dated May 26 , 1982 . ) Further , in
17 addition to the 520 acres , the City presented evidence that
18 through the simple administrative procedure of short platting
19 property an additional amount of property , equal to
20 approximately one-half of the previously available property
21 would be made available to a prospective theater owner for
22 this use within the permissive zone . ( See Exhibit A-2 with
23 overlay and property marked in red . See also transcript of
24 testimony of hearing , June 23 , 1982 , pages 33-35 . )
25 It appears from the record that the Mag
istrate ' s
gistrate ' s
26 conclusion of law that the ordinance " . . . for all practical
27 purposes , excludes adult theaters from the City of Renton and
28 therefore greatly restricts access to lawful speech" ( Mag .
CITY OF RENTON ' S OBJECTIONS TO WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
MAGISTRATE ' S FINDING IOO •O. SECOND ST.. P. O. BOX 626
PAGE 17 RLNTON. WASHINGTON S u037
255.8678
1 Report , page 6 , line 21 - 23) so as to make Schad applicable ,
2 is erroneous as a matter of law. Part II of the plurality
3 opinion in Young , which was joined by Justice Powell , states :
4 " Reasonable regulation of the time , place and manner
of protected speech , where those regulations are
5 necessary to further significant governmental
interests , are permitted by the First Amendment . "
6 at 62-63 .
7 Justice Powell ' s concurring opinion commends the Detroit
8 type ordinance , the model upon which the Renton ordinance was
9 based . Through reliance upon the four-part test of United
10 States v . O ' Brien , 391 U . S. 367 ( 1968) , Justice Powell reached
11 the idential conclusion as that of the plurality
12 opinion---that this particular strategy of urban planning has
13 no significant effect upon accessibility of erotic material .
14 That test is set forth as follows :
15 " . a governmental regulation is sufficiently
justified , despite its incidental impact upon First
16 Amendment interests , ' if it is within the
constitutional power of the government ; if it
17 furthers an important or substantial governmental
interest ; if the governmental interest is unrelated
18 to the suppression of free expression ; and if the
incidental restriction . . . on First Amendment
19 freedoms is no greater than is essential to the
furtherance of that interest'" . At 79-80 .
20
In footnote u , Justice Powell continues :
21
"But a zoning ordinance that merely specifies where
22 a theater may locate , and does not reduce
significantly the number or accessibility of
23 theaters presenting films , stifles no expression ."
24 The ordinance in question here satisfies the O ' Brien
25 test . First , enactment of the zoning ordinance is within the
26 police power of the City of Renton . Second , as noted by
27 Justice Powell , the interest furthered by the adoption of the
28 zoning ordinances is important and substantial .
CITY OF RENTON 'S OBJECTIONS TO WARREN Cc KELLOGG. P.S.
A770104[1'11 AT LAW
MAGISTRATE ' S FINDING 100 .O. •[CONO ST.. P. O. BOX C311
PAGE 18 R[NTON. WASHINGTON DOO57
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1 "Without stable neighborhoods , both residential and
commercial , large sections of a modern city quickly
2 can deteriorate into an urban jungle with tragic
consequences to social , environmental and economic
3 values . While I agree with respondents that no
aspect of the police power enjoys immunity from
4 searching constitutional scrutiny , it is also
undeniable that zoning , when used to preserve the
5 character of specific areas of a city , is perhaps
' the most essential function performed by local
6 government , for it is one of the primary means by
which we protect that sometimes difficult to define
7 concept of quality of life . '" Young , at 80 .
(citation omitted . )
8
Third , the governmental interest asserted by the City is
9
entirely unrelated to the supression of free expression . The
10
zoning ordinance was enacted nearly one year before Plaintiff
11
announced its intention to operate an adult motion picture
12
theater within the City , and after a period of study which
13
pre-dated the enactment of the ordinance by nearly another
14
year .
15
Finally , the incidental restriction upon Plaintiff ' s
16
claimed First Amendment rights is not greater than is
17
essential . The land area restricted is the family-oriented
18
zone of the City and one thousand feet surrounding that zone .
19
The " use" which is proscribed within that area is the
20
" pandering" use , i .e . , a "continuing course of conduct" of
21
exhibiting sexual conduct in a manner which appeals to a
22
prurient interest . The restrictions imposed , which are
23
modeled after the Detroit zoning ordinace in Young , are the
24
product of careful legislative study in order to protect the
25
quality of life enjoyed by residents . As the Supreme Court
26
7 stated :
2
28 " . . . The City' s interest in attempting to preserve
the quality of urban life is one that must be
CITY OF RENTON ' S OBJECTIONS TO WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
MAGISTRATE ' S FINDING IQo SO. SECOND ST.. P. O. DOx 626
PAGE 19 RENTON. WASHINGTON 98057
255-8678
1 accorded high respect . Moreover , the City must be
allowed a reasonable opportunity to experiment with
2 solutions to admittedly serious problems ." Young ,
at 71 .
3
There are numerous locations within the City of Renton
4
where the Plaintiff may legitimately exhibit his protected
5
film fare . - The City is not required to meet the restrictive
6
tests of Schad as specified by the Magistrate . The ordinances
7
meet the tests set forth in Young and O ' Brien and are
8
therefore constitutional on their face and as applied to the
9
Plaintiff' s proposed use .
10
D. There need be no legislative history to support the
11 actions of the Renton City Council in the enactment
of the ordinance .
12
Because of the Magistrate' s erroneous conclusion that the
13
Renton City Ordinance " . . . for all practical purposes ,
14
exclude adult theaters from the City of Renton and therefore
15
greatly restrict access to lawful speech" , the Magistrate
16
reviewed the factual basis for the establishment of the
17
ordinance . The Magistrate appears to lay great emphasis upon
18
the legislative history behind the enactment of the ordinance .
19
Such an emphasis is misplaced . Under Washington law, a City
20
Council must make findings of fact to support rezoning
21
legislation ( which partakes of a quasi-judicial function) .
22
Parkridge v. Seattle , 89 Wn .2d . 454 , 537 P.2d . 359 , 1978) .
23
24 However , no findings of fact are required for the adoption of
25 legislation such as the ordinance in question which creates
26 zones ( which partakes of a legislative function) .
27 In any event , in Ordinance No . 3629 the City made
28 findings of fact which set forth the reasoning behind the
CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S.
ATTORNCY■ AT LAW
MAGISTRATE ' S FINDING .0 •O. SECOND •T., P. O. fox 620
PAGE 20 RICHTON. WA•HINGTON 91.1057
255.8678
1 regulatory scheme and its adoption of the Ordinance . Contrary
2 to the Plaintiffs' contentions , that the City need not engage
3 in an independent and empirical analysis to support its
4 ordinance . That approach was rejected in Genusa v . City of
5 Peoria , 619 F . 2d . 1203 , 1211 ( 1980) .
6 " Even though here , unlike in Young the City has not
demonstrated a past history of congregated adult
7 uses causing neighborhood deterioration , we agree
with the District Court that a city need not await
8 deterioration in order to act . A legislative body
is entitled to rely on experience and findings of
9 other legislative bodies as a basis for action .
There is no reason to believe that the effect of
10 congregated adult uses in Peoria is likely to be
different than the effect of such congregations in
11 Detroit ."
12 Particulary is this so when the circumstances surrounding the
13 enactment of the ordinance are neutral in that they are
14 unrelated to any specific proposed land uses . The cases cited
15 by the Magistrate are easily distinguished . In each case , the
16 City Council was reacting to the imminent presence of an
17 adult-oriented land use . Here there is no reason to impune
18 unlawful motives . The contrary is true . The ordinance was
19 adopted prior to Plaintiffs' proposal to use the theaters for
20 exhibition of adult film fare .
21 Under the Doctrine of Separation of Powers , courts must
22 presume that legislation is adopted with proper motives . As
23 stated in Lillion v . Gibbs , 47 Wn .2d . 629 , 633 , 289 P . 2d . 203
24 ( 1955 ) :
25 "In the absence of fraud , this court will not
inquire into the motives which actuated the local
26 legislative body to enact , or fail to enact , an
ordinance or resolution . ( citations omitted) "
27
28
CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG, P.S.
ATTORN[T6 AT LAW
MAGISTRATE ' S FINDING I00 SO. SECOND ST.. P. O. tfOX 626
PAGE 21 R[NTON, WASHINGTON 98057
255.8678
1 There is no evidence in this record that the City Council
2 intended to relegate exhibitions of the plaintiffs sexually
3 explicit material to an inaccessible , unattractive and
4 unsuitable area of the city . Even if that were true , such a
5 relegation is the perogative of the legislative body - - -
6 particularly bearing in mind that this material under
7 regulation is a "pandering" business which , under Federal law,
8 is a felony . Ginzburg v . U .S . , 383 U. S. 463 , 86 S. Ct . 942 ,
9 16 L. Ed 2d 31 ( 1966) . The state can likewise deal with
10 "pandering" activities in the same manner . Sedelbauer v .
11 Indiana , 428 N . E. 2nd 206 , at 207 (Ind . 11 /30/81 ) .
32 The Magistrate' s statement at page 8 , lines 9 - 15 , that
13 the manner in which the ordinance was enacted " . . . suggests
14 an improper motive" is unsupported by the evidence ,
15 constitutes a usurpation of the legislature' s powers under the
16 "Doctrine of Separation of Powers" , and amounts to an abuse of
17 discretion .
18 E. The test for issuance of a Preliminiary Injunction
not met under the circumstances in this case .
19
( 1 ) Status Quo : A preliminary injunction is an
20
extraordinay remedy , the nature and purpose of which is to
21
" preserve the status quo pending a determination of the action
22
on the merits . " Los Angeles Commission v . NFL, 634 F .2d .
23
1197 , 1200 (9th Cir . 1980) . The status quo now and at the
24
25 filing of this suit is that Plaintiffs are not exhibiting
26 sexually explicit films .
27 (2) Balancing Test: The plaintiff cannot safisfy the
28 balancing test for issuance of a Preliminary Injunction .
CITY OF RENTON 'S OBJECTIONS TO •
WARREN & KELLOGG. P.S.
ATTORNEY• AT LAW
MAGISTRATE ' S FINDING Ioo •O. SECOND IT.. r. O. RO% 636
PAGE 22 RENTON. WASHINGTON 98057
255-8678
1 William Inglis & Sons Baking Company v . ITT Continental Baking
2 Company , 526 F .2d 86 (9th Cir . 1975) . There the court
3 indicated that the moving party must demonstrate either ( 1 ) a
4 combination of probable success on the merits and the
5 possibility of irreparable injury , or ( 2 ) that serious
6 questions are raised and the balance of hardship tips sharply
7 in its favor .
8 The Plaintiff cannot demonstrate a probablity of success
9 on the merits . Nor can the Plaintiff demonstrate irreparable
10 injury.
11 As noted above in the argument under Part III C ,
12 Plaintiff is at liberty to exhibit any sexually explicity
13 material which is protected by the First Amendment at any
14 place or time within the City of Renton . Under the ordinance ,
15 the exhibition of non-obscene material which appeals to a
16 prurient interest when done in a family-oriented zone and as a
17 continuing course of conduct is regulated to the extent that
18 the exhibitor will be named as a defendant in a civil action
19 to abate that type of conduct . Therefore , the existence of
20 the ordinances has cause not present irreparable harm to be
21 suffered by the Plaintiff.
22 In any event , the only harm which the Plaintiff may ever
23 sustain as a result of the existence of the ordinances is to
24 be subjected to a civil lawsuit instituted by the City of
25 Renton to abate a public nuisance per se . No criminal remedy
26 is available to the City of Renton . To be subjected to a
27 civil lawsuit to determine whether an ordinance violation has
28 occurred and a public nuisance should be abated , cannot
CITY OF RENTON 'S OBJECTIONS TO WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
MAGISTRATE ' S FINDING too •0. SECOND ST.. P. O. SOX 626
PAGE 23 RENTON. WASHINGTON 98057
255.8678
1 constitute " irreparable harm" . Huffman v . Pursue Ltd . , supra ,
2 at 601 - 602.
3 IV . CONCLUSION
4 Defendants' objections to the Report and Recommendation
5 filed by the Magistrate my be summarized as follows :
6 A. First and always , this court must abstain from
the exercise of its jurisdiction .
7
B. The ordinance does not restrict the Plaintiffs
8 from exhibiting any material which is protected
by the First Amendment . The only conduct which
9 is regulated is that which amounts to
" pandering" in a family-oriented area ( which is
10 not protected by the First Amendment) .
11 C . Substantial portions of the City are available
under the ordinance for location of an adult
12 theater . Such uses are not "effectively
excluded" from the City .
13
In Stansberry v . Holmes , 613 F. 2d 1285 , 1288 (5th Cir .
14
1980) , the Court of Appeals eloquently described the Supreme
15
Court' s attitude toward local zoning :
16
"Zoning provides one of the firmest and most basic
17 of the rights of local control . . . In Berman v .
Parker , 348 U . S. 26 , 33 , 75 S . Ct . 98 , 102 , 99 L .
18 Ed . 27 ( 1954 ) , the Court held that land use
regulations may promote "values [ which] are
19 spiritual as well as physical , aesthetic as well as
monetary." In Village of Belle Terre v . Boraas , 416
20 U . S. 1 , 9 , 94 S. Ct . 1536 , 1541 , 39 L. Ed . 2d 797
( 1 974 ) , the Court said that zoning could be used to
21 create and promote living areas that protect " family
values [ and] youth values . "
22
This court should sustain the position taken by the City of
23
Renton , and dismiss Plaintiffs ' Amended and Supplemental
24
Complaint with prejudice and deny Plaintiffs' motion for
25
injunctive relief.
26
Resp lly submitted ,
27
28 of Cou sel for D- fe •; is
CITY OF RENTON ' S OBJECTIONS TO WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
MAGISTRATE ' S FINDING Ioo So. sccONo BT.. I. O. DOS 620
PAGE 24 RENTON. WASHINGTON 98057
255.8678
-�"� •
1
2
by HUBBARD a
4 ---
5
6
7
8 UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
9 AT SEATTLE
10 PLAYTIME THEATRES, INC . a )
Washington corporation , et al . , ) NO. C82-59M
11 )
Plaintiffs , )
12 )
vs . )
13 )
THE CITY OF RENTON , et al . , )
14 )
Defendants . )
15 )
)
16 THE CITY OF RENTON , a municipal ) NO. C82-263
corporation , )
17 ) BRIEF IN OPPOSITION TO
Plaintiff , ) PLAYTIME THEATRES MOTION
18 ) TO DISMISS CITY OF RENTON
vs . ) COMPLAINT FOR DECLARATORY
19 ) JUDGMENT AND IN REPLY TO
PLAYTIME THEATRES, INC. , a ) PLAYTIME THEATRES MEMO-
20 Washington corporation , et al . , ) RANDUM IN OPPOSITION TO
) REMAND
21 Defendants . )
)
22
A. The State Action Has Been Improperly Removed . The
23 United States District Court lacks jurisdiction to
rule on the Defendant ' s Motion to Dismiss .
24
28 U. S. C. Section 1447 (c) provides in part that :
25
"(c) If at any time before final judgment it
26 appears that the case was removed improvidently and
without jurisdiction , the District Court shall
27 remand the case , and may order the payment of just
costs ."
28
BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
TO DISMISS AND IN REPLY TO MEMORANDUM IN .0 SO. SECOND ST.. P. O. Sox 1528
OPPOSITION TO REMAND - PAGE 1 RENTON. WASHINGTON 98057
255.8878
/
1 The term "without jurisdiction" refers to want to federal
2 subject matter jurisdiction . Prack v . Weissenger , 276 F. 2d .
3 446 (CA 4th 1960) ; Haelan Laboratories , Inc . v . Topps Chewing
4 Gum Inc . , 131 F . Sup . 262 (EDNY 1955) .
5 Since the United States District Court is a court of
6 limited jurisdiction , a presumption arises that a cause is
7 without its jurisdiction . The burden is upon the party who
8 seeks the jurisdiction of the court , that is , the defendant
9 who seeks removal of a State Court proceeding , to establish
10 by a preponderance of evidence that the case falls within the
11 District Court ' s jurisdiction. If it is at all doubtful that
12 the petitioner has sustained that burden , the cause should be
13 remanded . Butler v . Polk, 592 F. 2d 1293 (CA 5th 1979) ; Jones
14 v . General Tire & Rubber Co . , 541 F. 2d 660 (CA 7th 1976) ;
15 Alabama ex rel Flowers v . Robinson , 220 F . Supp . 293 (D. C.
16 Ala . 1963) .
17 The trend is to restrict and limit the removal
18 jurisdiction of the Federal Court . Wright , Miller & Cooper ,
19 Federal Practice & Procedure , Jurisdiction , Section 3721 ,
20 page 533 ( 1976) ; Shamrock Oil & Gas Corp. v . Sheets , 313 U. S.
21 100 , 85 L. Ed . 1214 , 61 S. Ct . 868 ( 1941 ) ; Hibhart v . Santa
22 Monica Dairy Co . , 592 F. 2d 1062, 1064 (CA 9th 1979) . The
23 fact that a related case is pending in Federal Court is not ,
24 in itself, sufficient grounds for removal . Fabricius v .
25 Freeman , 466 F . 2d 689 (CA 7th 1972) .
26 The record herein establishes that Playtime Theatres
27 has not sustained their burden . See City of Renton ' s
28 Memorandum of Law in support of its motion to remand the
BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
TO DISMISS AND IN REPLY TO MEMORANDUM IN ,o0 SO. SECOND ST.. P. O. SO% S26
OPPOSITION TO REMAND — PAGE 2 RENTON. WASHINGTON 98057
255.8878
/
1 civil action to the State Court , filed with this Court on
2 March 11 , 1982. See also the nature of the controversy and
3 the facts pleaded by the City of Renton in the State
4 declaratory judgment action wherein the City of Renton seeks
5 an interpretative decision by the State Court of the meaning
6 to be accorded to the terms of the newly enacted Ordinance as
7 applied to Playtime Theatre ' s threatened operations . In
8 those pleadings , the City has raised a State issue as to the
9 meaning to be given by the State Court to certain terms of
10 the ordinance and whether any of the provisions contained
11 therein , if found to be unconstitutional as applied to the
12 Defendant , can be severed from the remaining valid provisions
13 of the ordinance . The United States Supreme Court has made
14 it clear that this Court has no jurisdiction as to those
15 State issues . See U .S . v . Thirty-Seven Photographs , 402 U . S.
16 363 at 369 , where the Court specifically held at page 369 :
17 " . . . We lack jurisdiction . . . to construe state
legislation ." (our emphasis)
18
See also Care Corporation v. Kiddie Care Corporation , 344 F .
19
Supp . 12 (D. C. Del . 1972) (where , in a State Declaratory
20
Judgment action , a plaintiff was threatened with a Federal
21
claim over which the Federal Court had exclusive
22
jurisdiction . It was there held that the Plaintiff could
23
resist removal of his action to a Federal Court) , and Norle
24
v . San Die&o Federal Savings & Loan Association , 663 F . 2d 841
25
(9th Cir Sept . 23, 1981 ) (where a mortgage lender ' s removal
26
of a state declaratory action was rejected) .
27
28
BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S.
TO DISMISS AND IN REPLY TO MEMORANDUM IN ATTORNEYS AT LAW
100 SO. SECOND ST., P. O. SOX E26
OPPOSITION TO REMAND - PAGE 3 RENTON, WASHINGTON 98057
255-8678
111
1 B. A dismissal would undermine the procedures outlined
in Dombrowski v . Pfister for good , State-Federal
2 Court relationships . Even where Federal inter-
vention is exercised the State Court should also be
3 allowed to give the ordinance a permissible narrow
construction in a non-criminal proceeding .
4
Assuming that the State zoning case is one in which this
5
Federal Court should intervene and should not abstain under
6
the abstention principles enunciated in Younger v . Harris ,
7
401 U . S. 37 , 27 L. Ed 2d 669 , 91 S. Ct . 746 ( 1971 ) and Huffman
8
v . Pursue Limited , 420 U . S. 592 , 43 L. Ed 2d 482 , 95 S. Ct .
9
1200 ( 1975) , or the rationale expressed by Justice Stevens '
10
opinion in Young v . American Mini - Theatres , 427 U . S. 50 ,
11
61 , 49 L. Ed 2d 310, 96 S. Ct . 2440 ( 1976) , which opted for a
12
narrowing construction by State Courts , nevertheless the
13
course of action established by the United States Supreme
14
Court in Dombrowski v . Pfister , 380 U . S. 479 , 14 L. Ed 2d 22,
15
85 S. Ct . 1116 ( 1965) would seem to require this Court to
16
remand the declaratory judgment action to the State Court to
17
allow the State Court an opportunity to give the ordinance a
18
narrowing construction .
19
In Dombrowski , the Plaintiff sought declaratory relief
20
and an injunction restraining the defendant from prosecuting
21
or threatening to prosecute the Plaintiff for alleged
22
violation of the Louisiana Subversive Activities Law. Having
23
found harrassment , in granting the Plaintiff' s injunctive
2A
relief under their challenge that the statutes were "overly
25
broad and vague regulations of expression" the Supreme Court
26
outlined the following procedural discipline for good
27‘
State-Federal Court relationships at 490 :
28
BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S.
ATTORNEY! AT LAW
TO DISMISS AND IN REPLY TO MEMORANDUM IN '00 S0. SECOND ST.. I. O. BOX 626
OPPOSITION TO REMAND - PAGE 4 RENTON. WASHINGTON 98057
255-8878
411
1 "We have already seen that where , as here ,
prosecutions are actually threatened , this
2 challenge , if not clearly frivolous , will establish
the threat of irreparable injury required by
3 traditional doctrines of equity . We believe that
in this case the same reasons preclude denial of
4 equitable relief pending an acceptable narrowing
construction . In considering whether injunctive
5 relief should be granted , a federal district court
should consider a statute as of the time its
6 jurisdiction is invoked , rather than some
hypothetical future date . The area of proscribed
7 conduct will be adequately defined and the deterent
effect of the statute contained within
8 constitutional limits only by authoritative
constructions sufficiently illuminating the
9 .contours of an otherwise vague prohibition . As we
observed in Baggett v . Bullitt , supra , 377 U . S. at
10 378 , 12 L . Ed 2d at 389 , this cannot be
satisfactorily done throuugh a series of criminal
11 prosecutions , dealing as they inevitably must with
only a narrow portion of the prohibition at any one
12 time , and not contributing materially to
articulation of the statutory standard . We believe
13 that those affected by a statute are entitled to be
free of the burdens of defending prosecutions ,
14 however expeditious , aimed at hammering out the
structure of the statute piecemeal , with no
15 likelihood of obviating similar uncertainty for
others . Here , no readily apparent construction
16 suggests itself as a vehicle for rehabilitating the
statutes in a single prosecution , and appellants
17 are entitled to an injunction . The State must , if
it is to invoke the statutes after injunctive
18 relief has been sought , assume the burden of
obtaining a permissible 6narrow construction in a
19 noncriminal proceeding before it may seek
modification ff the injunction to permit future
20 prosecutions .
21
6. Thirty-seven States , including Louisiana , have
22 adopted the Uniform Declaratory Judgments Act . The
Louisiana version , La Civ Proc Code Ann , 1960, Arts
23 1871 -1883 , abolishes the former requirement that there
be no other adequate remedy .
24
7 . Our cases indicate that once an acceptable limiting
25 construction is obtained , it may be applied to conduct
occurring prior to the construction , see Poulos v . New
26 Hampshire , 345 U. S. 395 , 97 L. Ed 1105 , 73 S. Ct . 760 , 30
ALR2d 9$7 ; Cox v . New Hampshire , 312 U . S. 569 , 85 L. Ed
27 1049 , 61 S. Ct . 762, 133 ALR 1396; Winters v . New York ,
333 U . S. 507 , 92 L. Ed 840 , 68 S. Ct . 665 , provided such
28 application affords fair warning to the defendants , see
BRIEF IN OPP . TO PLAYTIME THEATRES MOTION WARREN & KELLOGG, P.S.ATTORNEYS AT LAW
TO DISMISS AND IN REPLY TO MEMORANDUM IN IOO SO. SECOND ST.. r. 0. BOX 626
OPPOSITION TO REMAND - PAGE 5 RENTON. WASHINGTON 98057
255-8578
1 Lanzetta v . New Jersey , 306 U . S. 451 , 83 L. Ed 888 , 59 S .
Ct . 618; cf . 11arrison v . NAACP 360 U. S. 167 , 179 , 3 L. Ed
2 2d 1152 , 1159 , 79 S . Ct . 1025. "
3 Even though the defendants were enjoined from prosecuting the
4 defendants under the statute as it then read at the time of
5 the lawsuit , the court made it clear in Footnote 6 and 7 that
6 the State should also be allowed to " assume the burden of
7 obtaining a permissible narrowing construction in a
8 non-criminal proceedings" of the State statute . A dismissal
9 of the State action herein would undermine the procedural
10 steps outlined by the high court in its efforts to
11 accommodate both State and Federal interests and to promote
12 "comity" within the State and Federal judicial system .
13 C. The Spirit and Intent of Justice Stevens ' Ruling on
the Vagueness Claim in Young v . American Mini
14 Theater , reinforces the City of Renton ' s claim that
the State declaratory judgment should be allowed to
15 go forward to permit "a narrowing construction by
the State Court" on the definitional aspects of the
16 ordinance .
17 In Young v . American Mini Theater , supra , Justice
18 Stevens noted at page 58 :
19 "They argue , however , that they cannot determine
how much of the described activity may be
20 permissible before the exhibition is ' characterized
by an emphasis' on such matter"
21
In reply , Justice Stevens refused to elevate that issue to
22
the status of a substantial federal question . Instead , he
23
pointed out that to the extent that any doubt would
24
thereafter arise , such matter was to be resolved in the State
25
Court where the ordinance would be "readily subject to a
26
narrowing construction by the State Court" .
27
28
BRIEF IN OPP . TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S.
ATTORNEY! AT LAW
TO DISMISS AND IN REPLY TO MEMORANDUM IN .110. SECOND IT.. P. O. BOX E:6
OPPOSITION TO REMAND - PAGE 6 RENTON. WASHINGTON 98057
255-8678
S
1 A dismissal of the declaratory judgment action would
2 prevent the City of Renton from obtaining the construction of
3 the ordinance by the State Court to which it is entitled
4 under the rationale expressed by Justice Stevens in his
5 opinion in Young .
6 The relief sought by the City of Renton in its State
7 Court complaint is , in effect , a limiting construction and/or
8 severance of any constitutionally defective portions of the
9 ordinance relating to the use which Playtime Theatres has
10 offered to commence within the City of Renton . The Supreme
11 Court in Dombrowski v . Pfister , supra , invited state court
12 limiting construction of statutes -- even though facially
13 unconstitutional -- by means of the declaratory judgment
14 remedy. Furthermore , construction of the Ordinance is beyond
15 the jurisdiction of this Court , U . S . v . Thirty-Seven
16 Photographs , supra , and determinations of severance should be
17 more appropriately left to the judgment of the state court .
18 Metromedia , Inc . v. San Diego , U . S. , 69 L. Ed . 2d 800 ,
19 823 (July 2, 1981 ) .
20 Construction of portions of the Ordinance may be
21 appropriate to save the statute , as the Court is required to
22 do if there are any conceivable set of facts which support
23 the statutes' constitutionality . Tilton v . Richardson , 403
24 U. S. 672 , 684 , ; In re Marriage of Johnson , 96 Wn . 2d 255 ,
25 258 , P. 2d (October 15, 1981 ) . Clarification of the
26 terms "used" and "distinguished or characterized by" in the
27 definition of "adult motion picture theatre" may be necessary
28 to limit the application of the Ordinance to conduct
BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S.
ATTORN[Ye AT LAW
TO DISMISS AND IN REPLY TO MEMORANDUM IN '00 /O. SECONO 'T.. P.
O. BOX °_"
RENTON. WASHINGTON 98057
OPPOSITION TO REMAND - PAGE 7 255.8878
•
1 occurring on a repeated , continuous basis which may be
2 properly characterized as a "course of conduct" of exhibition
3 of films depicting " specified sexual activities" and
4 "specified anatomical areas ." The determination by the State
5 Court of the validity and applicability of the ordinance is
6 the most expeditious vehicle to a determination of the
7 respective rights of the parties under the ordinance ,
8 particularily in view of the particular expertise of the
9 State Court in ruling upon land use matters .
10 D. The instant case is a justiciable controversy , or a
question of great public interest of which the
11 State Court will entertain jurisdiction .
12 The principle elements of a justiciable controversy
13 under the Washington Declaratory Judgment Act (codified as
14 Chapter 7 . 24 RCW) are as follows :
15 1 . The parties must have existing and
genuine , as distinguished from theoretical rights
16 or interests .
17 2. The controversy must be one upon which
the judgment of the Court may effectively operate ,
18 as distinguished from a debate or argument evoking
a purely political , administrative , philosophical
19 or academic conclusion .
20 3. The controversy must be such that a
judicial determination will have the force and
21 effect of a final judgment in law or decree in
equity upon the rights , status or other legal
22 relationship of one or more of the real parties in
interest .
23
4. The proceeding must be genuinely
24 adversary in character and not a mere debate , but
advanced with sufficient militancy to engender a
25 thorough research and analysis of the major issues .
26 State ex rel O ' Connell vs . Dubuque , 68 W. 2d 553 , 558 , 413
27 P . 2d 972 ( 1966 ) . The first element was refined in
28 Diversified Industries vs. Ripley , 82 W. 2d 811 , 815 , 514 P. 2d
BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S.
TO DISMISS AND IN REPLY TO MEMORANDUM IN ATTORNEYSAT LAW
ioo so. SECOND
sT., P. O. BOX SIG
OPPOSITION TO REMAND - PAGE 8 RLNTON. WASHINGTON 98057
255.8678
/
•
1 137 ( 1973 ) , by further explanation that the justiciable
2 controversy must be " . . . an actual , present and existing
3 dispute , or the mature seeds of one , as distinguished from a
4 possible , dormant , hypothetical , speculative , or moot
5 disagreement . . . . "
6 Under any reasonable construction of the facts , this
7 Court must agree that the City of Renton and Playtime
8 Theatres are engaged in an actual , present and existing
9 dispute , between part-ies having genuine , opposing , direct and
10 substantial interests . A judicial declaration by the State
11 Court of the validity and applicability of the ordinance will
12 have the force and effect of a final judgment in law upon the
13 parties . Finally , in view of the considerable time and
14 effort expended by the parties , it must be clear to the Court
15 that these proceedings are genuinely adversary in character
16 and are advanced with sufficient militancy to engender a
17 thorough research and analysis of the major issues .
18 In any event , the issues involved in this litigation are
19 of such great and overriding public moment that the
20 Washington Court will take jurisdiction of this matter to
21 determine the validity- and applicability of the ordinance in
22 question even in the absence of a justiciable controversy .
23 See O ' Connell , supra , and In re Elliott , 74 W. 2d 600, 614 ,
24 446 P . 2d 347 ( 1968) , where the Court reviewed the genesis of
25 the "great public interest" exception in the case of Huntamer
26 vs . Coe , 41 W. 2d 767 , 246 P. 2d 489 ( 1952) .
27 The rule in Washington regarding the "great public
28 interest" exception is well stated in In re Elliott , supra ,
BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S.
TO DISMISS AND IN REPLY TO MEMORANDUM IN CO AT LAW
Ioo •o. SECOND
ST.. P. O. sox eze
OPPOSITION TO REMAND - PAGE 9 RENTON. WASHINGTON 98057
255-8878
•
1 at 614 . There , the Court quoted Anderson on Actions For
2 Declaratory Judgments , as follows :
3 " A petition for a declaratory judgment is
particularly appropriate to determine the
4 constitutionality of a statute when the parties
desire , and the public need requires , a speedy
5 determination of the public interest involved
therein ."
6
Therefore , the requirement of justiciability is not required
7
. . . if the question submitted to the Court is of sufficient
8
public interest and the need for an immediate answer is of
9
sufficient urgency to induce the Court to exercise its
10
discretion and render a declaratory judgment . " In re
11
Elliott , supra , at 615 .
12
Speaking in relation to the question of mootness , the
13
Washington Supreme Court has decided issues , even though
14
moot , " . . . if they present matters of substantial public
15
interest , particularly where final determination of the issue
16
is essential in guiding the conduct of public officials ."
17
DeFunis vs . Odegaard , 84 W.2d 617 , 628, 529 P. 2d 438 ( 1974) .
18
In this case , the public officials of the City of Renton
19 -
require judicial guidance in determining the proper course of
20
conduct to be followed in response to the land use offered by
21
Playtime Theatres .
22
RCW 7. 24 . 020 requires that a person seeking declaratory
23
relief must have a "right" or "legal relationship" affected
24
by a municipal ordinance in order to obtain a construction of
25
the ordinance . Municipal corporations are within the
26
definition of "person" for the purposes of the Declaratory
27
Judgment Act . RCW 7.24. 130.
28
BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG, P.S.
TO DISMISS AND IN REPLY TO MEMORANDUM IN ATTORNEYS AT LAW
100 SO. SECOND ST.. P. O. BOX 626
OPPOSITION TO REMAND - PAGE 10 RENTON. WASHINGTON 98057
255-8678
•
1 The City has an obvious interest in the validity and
2 application of its ordinance , and the integrity of its land
3 use planning municipal function which , as this Court is well
4 aware , is one of the prime functions of municipal government
5 under our coordinated system of federalism and home rule
6 under the Optional Municipal Code . Chapter 35A RCW .
7 However , in this case , the City of Renton now has even
8 greater interest in the validity and applicability of its
9 ordinance to the specific land use offered by Playtime
10 Theatres because of the potential exposure to liability for
11 damages under 28 USC Section 1983 , Monnel vs . Department of
12 Social Services of New York , 436 U. S. 658, 56 L. Ed 2d 611 , 98
13 S. Ct . 2018 ( 1978) , and for costs and expenses under 28 USC
14 Section 1988 , Owen vs . City of Independence , 445 U. S. 622, 63
15 L . Ed 2d 673 , 100 S . Ct . 1398 ( 1980 ) . This liability
16 establishes the property interest of the City of Renton in a
17 determination of the propriety of the actions which the City
18 has taken to regulate the subject matter of adult
19 entertainment land uses within its jurisdiction .
20 Playtime Theatres cites the case of City of Mishawaka
21 vs . Mohney , 297 N . E . 2d 858 ( Indiana , 1973 ) , for the
22 proposition that it is improper for the City to seek
23 declaratory relief as to validity of its ordinances . That
24 case is easily distinguishable from the present . In that
25 case the Court was uncertain whether the Defendant was
26 actually the owner of the book store and theater over which
27 the City was attempting to assert jurisdiction to regulate
28 the sale , distribution and exhibition of pornographic
BRIEF IN OPP . TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
TO DISMISS AND IN REPLY TO MEMORANDUM IN +00 60. SECOND •T.. P. O. SOX E26
OPPOSITION TO REMAND - PAGE 11 RENTON. WASHINGTON 98037
233.8878
•
1 materials . Therefore , the Court found that the City ' s fears
2 of a violation of their ordinance by the owner of the book
3 store were purely hypothetical , and the alleged controversy
4 was more theoretical than actual . In this case , Playtime
5 Theatres has actually offered to exhibit adult motion picture
6 film fare within the City of Renton at a location which falls
7 within the prohibitions of Ordinance No . 3526. Therefore ,
8 the dispute could be no more proper for determination under
9 the Washington Declaratory Judgment Act .
10 E. The "Priority Rule" does not require dismissal of
the State Court action because there is no identity
11 of relief requested in the State and Federal
actions .
12
As correctly stated by Playtime Theatres , the invocation
13
of the "Priority Rule" requires identify of subject matter ,
14
parties and relief. As set forth more particularly above ,
15
the relief requested by Playtime Theatres in the Federal
16
Court action cannot be identical to the relief requested by
17
the City of Renton in the State Court action because of this
18
Court' s lack of jurisdiction to construe legislation and/or
19
sever portions thereof found to be unconstitional .
20
F . Conclusion .
21 - --
The motion to dismiss the State Court action filed
22
herein by Playtime Theatres should be denied , and the State
23
24 Court action should be remanded to the King County Superior
25 Court from whence it was removed , with the award of costs and
26
27
28
BRIEF IN OPP . TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
TO DISMISS AND IN REPLY TO MEMORANDUM IN IOO SO. SECOND ST.. P. O. SOX 626
OPPOSITION TO REMAND - PAGE 12 RENTON. WASHINGGTON 98057
285-8878
411
1 attorneys fees to the City of Renton pursuant to 28 U . S. C.
2 1447 .
3
4 Res fully submitted ,
5
6 DANIEL KELLOGG
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S.
TO DISMISS AND IN REPLY TO MEMORANDUM IN ATTORNEYS AT LAW
100 SO. SECOND SIT.. P. O. BOX 426
OPPOSITION TO REMAND — PAGE 13 RENTON. WASHINGTON 98057
255-8878
Magistrate Sweigert
1 June 23 , 1982
1 : 30 p .m.
2 ;------ —1 RECEIVED
3
4 JUN 24 i982
CITY OF RENTON
5 MAYOR'S OFFICE
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 . , )
) NO. C82-59M
12 Plaintiffs , )
) DEFENDANTS ' REPLY BRIEF IN
13 vs . ) OPPOSITION TO MOTION FOR
) PRELIMINARY INJUNCTION AND
14 THE CITY OF RENTON, et al . , ) IN SUPPORT OF DEFENDANTS '
) MOTION FOR SUMMARY JUDGMENT
15 Defendants . )
)
16 )
THE CITY OF RENTON, a )
17 municipal corporation , )
) NO. C82-263
18 Plaintiff , )
)
19 vs . )
)
20 PLAYTIME THEATRES, INC . , a )
Washington corporation , et al . , )
21 )
Defendants . )
22 )
23
I . INTRODUCTION .
24
For purposes of this motion only, Defendants shall assume
25
that Plaintiffs are offering to exhibit films which are protected
26
by the First Amendment . In that guise of First Amendment
27
protection , Plaintiff appears to be attempting to require the
28
DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S.
TO MOTION FOR PRELIMINARY INJUNCTION AND 100 BOSEECONDEY6 AT LAW. COND ST.. P. O. BOX 626
IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON, WASHINGTON 98057
SUMMARY JUDGMENT PAGE 1 255-8678
1 City of Renton to assure that Plaintiff will be able to locate
2 its theaters at locations which , in Plaintiffs ' opinion , are
3 suitable , without regard to zoning considerations which the City
4 must make on behalf of all of its residents and businesses . No
5 other enterprise could advance such a preposterous notion . Even
6 the First Amendment does not require that the City repeal the
7 laws of the marketplace ( such as "supply and demand" and the rule
8 that private parties may not be required to sell or lease to , or
9 be associated with Plaintiffs ' trade) in order to assure that
10 Plaintiff can operate its business within the City of Renton .
11 The City' s duty is only to enact laws which assert valid
12 governmental interests , and which impose no substantial burden on
13 protected expression . Plaintiff is entitled to ' no guarantee to be
14 free from economic loss .
15 II . PRELIMINARY INJUNCTION
16 A. The purpose of a preliminary
injunction is to preserve the status
17 quo .
18 A preliminary injunction is an extraordinary remedy, the
19 nature and purpose of which is to "preserve the status quo
20 pending a determination of the action on the merits . " King vs .
21 Saddleback Jr . College District , 425 F. 2d 426, 427 (9th Cir .
22 1970 ) , citing Washington Basketball Club , Inc . vs . Barry , 419 F .
23 2d 472 (9th Cir . 1969 ) ; Los Angeles Commission vs . NFL , 634 F . 2d
24 1197 , 1200 (9th Cir . 1980) . In this case the issuance of a
25 preliminary injunction will not preserve the status quo . Just as
26 at the hearing upon the Plaintiff' s request for a Temporary
27 Restraining Order , the status quo is that the Plaintiff is not
28 showing pornographic movies . The Plaintiff' s use of the theaters
DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S.
TO MOTION FOR PRELIMINARY INJUNCTION AND ON AT l
ioo so. SECOND
ST., P. O. SOX s:e
IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057
255.8678
SUMMARY JUDGMENT PAGE 2
1 in question for the exhibition of movies which are not violative
2 of the ordinances of the City of Renton has continued throughout
3 these proceedings .
4 B. The Plaintiff cannot satisfy the test
for issuance of a Preliminary
5 Injunction .
6 The 9th Circuit employs two different tests to determine
7 whether a preliminary injunction should issue . The first , and
8 most common test , includes four factors : ( 1 ) There must be a
9 substantial likelihood that the plaintiff will ultimately prevail
10 on the merits of his claim; (2) The injunction must be necessary
11 to prevent irreparable injury; (3) The threatened injury to the
12 plaintiff must outweigh the harm the injunction might do to the
13 defendants ; and ( 4 ) The entry of the injunction must be
14 consistent with the public interest . Friends of the Earth , Inc.
15 vs . Coleman , 518 F . 2d 323, 330 (9th Cir . 1975) ; King vs .
16 Saddleback Jr . College District , supra; Henry vs . First National
17 Bank of Clarksdale , 595 F. 2d 291 , 302 (5th Cir . 1979) , reh . den .
18 601 F. 2d 586 , cert . den. 444 U. S. 1974, 100 Sup. Ct . 1020. See
19 also Columbia Basin Protection Association vs . Kleppe , 417 F.
20 Supp. 46 (E. D. Wash. 1976) ; Sierra Club vs . Hathaway , 579 F. 2d
21 1162 (9th Cir . 1978) .
22 The second test is the two-prong test set forth in Wm.
23 Inglis & Sons Baking Company vs . ITT Continental Baking Company ,
24 526 F. 2d 86 (9th Cir . 1975 ) . There the Court indicated that the
25 moving party must ' demonstrateeither ( 1 ) a combination of
26 probable success on the merit and the possibility of irreparable
27 injury , or (2) that serious questions are raised and the balance
28 of hardship tips sharply in its favor .
WARREN & KELLOGG. P.S.
DEFENDANT 'S REPLY BRIEF IN OPPOSITION ATTORNEYS AT LAW
TO MOTION FOR PRELIMINARY INJUNCTION AND IOO SO. SECOND ST.. I. O. SOX e2e
IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057
O IIIA ttnnv Tll r�I.LI r►IT r�ernr. - 255-8678
1 In applying these tests , the Court must keep in mind that
0
3 must be based upon established equitable grounds . "The grant of
4 a preliminary injunction is the exercise of a very far-reaching
5 power never to be indulged in except in a case clearly warranting
6 it" . Sierra Club vs . Hickle , 432 F. 2d 24 (9th Cir . 1970 ) ; Dymo
7 Industries , Inc . vs . Tapeprinter , Inc . , 326 F . 2d 141 (9th Cir .
8 1964) . A preliminary injunction should not issue if there is an
9 adequate remedy at law. Los Angeles Memorial Coliseum Commission
10 vs . NFL, 634 F. 2d 1197, 1202 (9th Cir . 1980 ) ; German vs . Times
11 Mirror Co .,, 520 F . 2d 786 (9th Cir . 1975) .
12 C. Plaintiff must bear the burden of
proof of "convincing presentation" to
13 establish necessity of injunctive
relief.
14
The plaintiff must bear the burden of proof to establish
15
its right to injunctive relief by something more than a
16
preponderance of the evidence . In the case of Sierra Club vs.
17
Hickle , supra , the Court required a "convincing presentation ."
18
In the case of Friends of the Earth , Inc . vs . Coleman , supra , the
19
court required the plaintiff to show a "strong likelihood" or
20
"reasonable certainty" that he will prevail on the merits .
21
D. The cases relied upon by the
22 Plaintiff are distinguishable .
23 Plaintiffs rely upon the cases of 414 Theater Corporation
24 vs . Murphy , 499 F. 2d 1155 (2nd Cir . 1974) , and Citizens for a
25 . Better Environment vs . City of Park Ridge , 567 F. 2d 689 ( 1975) .
26 In 414 Theater Corporation the adult use had existed for
27 five years prior to the institution of the criminal prosecutions
28 against which injunctive relief was requested . Furthermore , the
WARREN & KELLOGG. P.S.
DEFENDANT 'S REPLY BRIEF IN OPPOSITION ATTORNEYS AT LAW
TO MOTION FOR PRELIMINARY INJUNCTION AND 100 SO. SECOND ST.. P. O. SOX 626
IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057
255-8678
SUMMARY JUDGMENT PAGE 4
1 regulation complained of was a city-wide licensing requirement .
2 rinLi_ ly , the regulation vested sole discretion in an
3 administrator for issuance of the license . In this case , the
4 ordinance pre-dated the proposed use . The ordinance is not a
5 total ban upon protected expression within the City of Renton ,
6 but is merely a time , place and manner restriction . The
7 regulatory scheme vests no administrative discretion which is
8 subject to arbitrary and standardless review .
9 In the case of Citizens for a Better Environment , the
10 regulation complained of was also a city-wide ban against
11 solicitation for funds . There the plaintiffs had no opportunity
12 to express their First Amendment rights while awaiting a
13 determination of the constitutionality of the blanket
14 restriction . In the instant case , there is no deprivation of
15 constitutionally protected rights except in those locations which
16 are proscribed by the ordinances . Other areas of the City remain
17 available for free expression of adult oriented erotic material .
18 E. Issuance of a preliminary injunction
is incompatible with the public
19 interest .
20 In this case , the element of consistency with the public
21 interest required by the 9th Circuit should be of particular
22 concern to the Court , particularly in view of the status quo of
23 this fact situation .
24 III . YOUNG VS. AMERICAN MINI THEATERS .
25 A. The mandate of Young remains
unabated .
26
Plaintiff must in some fashion overcome the mandate of
27
Young vs . American Mini Theaters , 427 U. S. 50, 96 S. Ct . 2440, 49
28
DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG, P.S.
ATTORNEYS AT LAW
TO MOTION FOR PRELIMINARY INJUNCTION AND I0050. SECOND ST., P. O. BOX 626
IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057
255-8678
1 L. Ed . 2d 310 ( 1976 ) . See also Nortland Cinema , Inc . vs .
2 Seatt__ , ;; ; , JJJ r. 26 i i5; •i i1i �) , cert . 141
3 U . S. 946. Plaintiff dedicated to an attempt to discredit that
4 holding by citation from the dissent and emphasis upon the
5 plurality nature of the opinion .
6 Justice Powell concurred in Parts I and II of the opinion
7 written by Justice Stevens . Young , supra , at 73. Part I holds
8 that the language of the Detroit ordinance (which is virtually
9 indentical to the language of the Renton ordinances) is not
10 unconsitutionally vague as to the theater operators who ( like the
11 Plaintiff here) propose to offer adult film fare on a regular
12 basis . Young , at 59. Furthermore , complaints of vagueness may
13 not be raised on behalf of others if the regulations deterrent
14 effect on legitimate expression is not "both real and
15 substantial" and the regulation is "readily subject to a
16 narrowing construction by the state courts ." Young , at 60 ,
17 quoting from Drznoznik vs. City of Jacksonville , 422 U. S. 205,
18 216 , 95 S. Ct . 2268, 45 L. Ed . 2d 125.
19 Part II of the plurality opinion contains the essence of
20 the court ' s decision relating to the power of the municipality to
21 control the location of theaters exhibiting sexually explicit
22 material . There the court noted that the ordinance imposed no
23 limit upon the total number of adult theaters which may operate
24 in the City, and that " . . . the market for this commodity is
25 essentially unrestrained . " Young , at 62. The Court concluded :
26 " . . . we have no doubt that the municipality may
control the location of theaters as well as the
27 location of other commercial establishments , either
by confining them to certain specified commercial
28 zones , or by requiring that they be dispersed
DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S.
TO MOTION FOR PRELIMINARY INJUNCTION AND ATTORNEYSAT LAW
100 f0. •CCONOST.. P. O. BOX 826
IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057
255-8676
SUMMARY .TIIn(.MFMT PArP A
1 throughout the City . The mere fact that the
commercial exploitation of material protected by the
di:„, u �i,er
licensing requirements , is not a sufficient reason.
3 for invalidating these ordinances ."
4 • . . .
5 " Reasonable regulation of the time , place and
manner of protected speech , where those regulations
6 are necessary to further significant governmental
interests , are permitted by the First Amendment . . . . "
7 At 62-63.
8 The holding of the Young court is thus a majority decision ,
9 notwithstanding Plaintiff ' s valiant attempts to dilute its
10 impact .
11 Justice Powell ' s concurring opinion commends the Detroit
12 type ordinance as " . . . an example of innovative land use
13 regulation , implicating First Amendment concerns only
14 incidentally and to a limited extent ." At 73. Through reliance
15 upon the four-part test of United States vs . O 'Brien , 391 U. S.
16 367, 88 Sup. Ct. 1673, 20 L. Ed . 2d 672 (1968) , Justice Powell
17 reached the identical conclusion as that of the plurality
18 opinion---that this particular strategy of urban planning has no
19 significant effect upon accessibility of erotic material .
20 Therefore the ordinance did not constitute a stifling of
21 expression . Stevens , J . , at 34 , n . 35 ; Powell , J . , at 80 , n . 4 .
22 B. The Renton Ordinances meet the
standards set forth in United States
23 vs . O'Brien .
24 The ordinances in question here also satisfy Justice
25 Powell 's analytical approach , which would apply the four-part
26 test of O'Brien , supra . First , enactment of the ordinance is
27 within the police power of the City of Renton . Second , as noted
28
DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S.
TO MOTION FOR PRELIMINARY INJUNCTION AND ATTORNEYS AT LAW
100 SO. SECOND ST.. P. O. SOX 626
IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057
SUMMARY JUDGMENT PAGE 7 255-8878
1 by Justice Powell , the interests furthered by the adoption of the
/ '.lrri 1 v1 nYlnn C 2r a `mw 4 n.1 ',^ C 1 C} •fir 6 i ..
3 "Without stable neighborhoods , both residential and
commercial , large sections of a modern City quickly
4 can deteriorate into an urban jungle with tragic
consequences to social , environmental and economic
5 values . While I agree with respondents that no
aspect of the police power enjoys immunity from
6 searching constitutional scrutiny , it also is
undeniable that zoning , when used to preserve the
7 character of specific areas of a City, is perhaps
' the most essential function performed by local
8 government , for it is one of the primary means by
which we protect that somtimes difficult to define
9 concept of quality of life '" . Young , at 80 .
(citation omitted) .
10
Third , the governmental interest asserted is entirely
11
unrelated to the suppression of free expression . Ordinance No .
12
3526 was enacted nearly one year before Plaintiff announced its
13
intention to operate an adult motion picture theater within the
14
City, and after a period of study which pre-dated the enactment
15
of the ordinance by nearly another year . Had the City Council
16
intended to restrict the message purveyed by adult theaters , the
17
legislation adopted would have completely prohibited their
18
location , or substantially restricted their number .
19
Finally , the incidental restriction upon Plaintiffs claimed
20
First Amendment rights is not greater than is essential . The
21
restrictions imposed are the product of careful legislative study
22
in order to protect the quality of life enjoyed by residents . As
23
the Supreme Court stated :
2A
. . . the city' s interest in attempting to preserve
25 the quality of urban life is one that must be
accorded high respect . Moreover , the city must be
26 allowed a reasonable opportunity to experiment with
solutions to admittedly serious problems." Young , at
27 71 .
28
DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.s.
TO MOTION FOR PRELIMINARY INJUNCTION AND ATTORNEYS AT LAW
goo�o. a[cowo aT.. P. O. sox aza
IN SUPPORT OF DEFENDANT 'S MOTION FOR R[NTON• WASHINGTON 98057
SUMMARY JUDGMENT PAGE 8 255-8678
1 IV. ORDINANCE NOS . 3526 AND 3629 .
2 A . There- neea se no legislative history
to support the actions of the Renton
3 City Council .
4 Plaintiff argues that there is no written or recorded
5 legislative history to support the enactment of the ordinances .
6 A City Council must make findings of fact to support rezoning
7 legislation (which is a quasi judicial function) . Parkridge vs .
8 Seattle , 89 Wn 2d , 454 , 537 P. 2d , 359 ( 1978) . However , no
9 findings are required for the adoption of legislation such as the
10 ordinances in question which create zones (which is a legislative
11 function) .
12 However , the City has set forth its findings of fact in
13 Ordinance No . 3629. Plaintiffs suggest that the City must engage
14 in an independent empirical analysis to support its ordinance .
15 That approach was rejected in Genusa vs . City of Peoria , 619 F.
16 2d 1203, 1211 ( 1980) .
17 "Even though here , unlike in Young , the city has not
demonstrated a past history of congregated adult uses
18 causing neighborhood deterioration , we agree with the
district court that a city need not await
19 deterioration in order to act . A legislative body is
entitled to rely on experience and findings of other
20 legislative bodies as a basis for action . There is
no reason to believe that the effect of congregated
21 adult uses in Peoria is likely to be different than
the effect of such congregations in Detroit .
22
Plaintiff would apparently ask the court to look beyond
23
findings of fact enunciated by the City Council to question the
24
motives and intent of the Council members . As stated in Lillion
25
vs . Gibbs , 47 Wn 2d 629, 633, 289 P. 2d 203 ( 1955) :
26
"In the absence of fraud , this court will not inquire
27 into the motives which actuated the local legislative
body to enact , or fail to enact , an ordinance or
28 resolution . (citations omitted . )
DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
TO MOTION FOR PRELIMINARY INJUNCTION AND IOO SO. SECOND ST.. P. O. SOX 626
IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057
255.8678
CIIMMARY _TIIn(MFNT PAfF Q
1 Therefore , there being not even a hint of fraud , the adequacy of
2 Lu= nistory is not a -proper issue Ior this Court . io
3 review the legislative history would be an impermissive violation
4 of the doctrine of separation of powers .
5 B. Plaintiff' s attack on the "viability"
of other locations diverts attention
6 from the real issue .
7 The Court must not be diverted from the real issue in this
8 case : ( 1 ) the facial constitutionality of the ordinances , and
g (2) the constitutionality of their application to the specific
10 parcels of property owned by the Plaintiffs . Plaintiffs
11 apparently intend to place at issue the viability of parcels of
12 land located elsewhere within the City for location of adult
13 entertainment land uses , citing Shad vs . Borough of Mt . Ephraim ,
14 U . S. , 101 Sup. Ct . , 68 L. Ed . 2d 671 ( 1981 ) , Avalon
15 Cinema Corporation vs . Thompson , F. 2d (8th Cir . Dec . 12,
16 1981 ) , and Alexander vs. City of Minneapolis , F . Supp . ,
17 (D. C. Minn . , Feb. 19, 1982) .
18 Plaintiff may not advance the question of viability of
19 other sites to disguise the fact that its specific locations are
20 proscribed by the face of the ordinances . As noted by Justice
21 Powell in his concurring opinion ,
22 "The constraints of the ordinance with respect to
location may inded creat economic loss for some who
23 are engaged in this business . But in this respect
they are affected no differently from any other
24 commercial enterprise that suffers economic detriment
as a result of land use regulation . The cases are
25 legion that sustained zoning against claims of
serious economic damage . (citations omitted) "
26
"The inquiry for First Amendment purposes is not
27 concerned with economic impact ; rather , it looks only
to the effect of this ordinance upon freedom of
28 expression ."
DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S.
TO MOTION FOR PRELIMINARY INJUNCTION AND ATTORNEYS AT LAW
100 BO. SECOND BT.. P. O. BOX 626
IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057
255-8678
QVKA A DV TI?r &4CAIT DArC 111 II
1 " . . . to be sure some prospective patrons may be
inconvenienced by this dispersal . "
2
The City of Renton has no argument with the decision of
3
Shad which is a Supreme Court case . The regulation complained of
4
in that case completely restricted "live entertainment land uses"
5
from the entire city. This regulation is readily distinguishable
6
from the ordinances here , which leave vast areas of the City
7
available for location of adult entertainment land uses . The Mt.
8
Ephraim ordinance failed the test established by Young that the
9
challenged restriction must impose no more than a minimal burden
10
on protected speech .
11
The Avalon case which Plaintiffs rely upon is likewise
12
distinguishable . There the City Council enacted an emergency
13
ordinance in order to prevent the opening of an adult theater
14
which was virtually ready to open . The record there displayed
15
the City' s intent to keep the theater from opening . Opinion , at
16
8, n . 9. The Court of Appeals could not "ignore the fact that
17
passage [of the ordinance] was an ' emergency' measure to prevent
18
the exhibition and sale of sexually-oriented films" . Opinion , at
19
8 . This violated the third part of the O'Brien test that the
20
governmental interest asserted must be unrelated to the
21
suppression of free expression .
22
In addition , the ordinance in Avalon was not narrowly drawn
23
to exclude from its provisions legitimate films in which the
24
prohibited sexual acts or parts of the body were depicted for a
25
brief period of time , no matter the artistic merit or
26
intellectual content of the film as a whole . Opinion , at 9 . The
27
provisions of the ordinances here , and in particular the
28
DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S.
TO MOTION FOR PRELIMINARY INJUNCTION AND Ioo SO. ATTORNEYS AT LAW
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IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057
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SUMMARY JUDGMENT PAGE 11
1 provisions of Ordinance No . 3629, narrowly draw the definition of
2 the offending material to exclude from its prohibition material
3 which displays " specified sexual activities" and " specified
4 anatomical areas" as defined therein , which are merely incidental
5 to the work as a whole .
6 Finally, plaintiff relies upon the recently decided case of
7 Alexander vs . City of Minneapolis to justify its attack on the
8 "viability" of areas within the City where it may locate an adult
9 theater . First , the decision has no precedential value before
10 . this Court . Second , the case is readily distinguishable from the
11 facts of the case at bar . There the City attempted to close
12 existing non-conforming uses over a four-year amortization
13 period . The ordinances complained of here affect no existing
14 adult entertainment land uses within the City. Furthermore , the
15 court in Alexander specifically found that the effect of the
16 regulation was significant and would substantially reduce the
17 number of adult book stores and theaters within the City. Thirty
18 pre-existing uses were to be forced to compete for a handful of
19 lawful locations . Certainly , the portion of the City of Renton
20 for which zoning remains available for development of an adult
21 motion picture theater is sufficient to afford Plaintiff an
22 opportunity to ply its trade .
23 Third , under the Minneapolis ordinance no new adult uses
24 would be allowed to open . This is in stark contrast to the
25 situation at bar where there is no restriction to the
26 establishment of new adult entertainment land uses within the
27 area circumscribed by the ordinances in question .
28
DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S.
ATTTO MOTION FOR PRELIMINARY INJUNCTION AND SECOND ST . LAW
Ioo so. SECOND sT., P. O. BOX 626
IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON, WASHINGTON 98057
255.8678
SUMMARY JUDGMENT PAGE 12
1 C. The enactment of Ordinance No . 3629
was necessary to flesh out Ordinance
2 Jo . 352o .
3 The enactment of the ordinance does not constitute an
4 admission of partial unconstitutionality of Ordinance No . 3526.
5 The City has failed in its effort to convince this Court to
6 abstain from further interference with the sovereign jurisdiction
7 of the State of Washington over its local zoning matters , so that
8 the City can obtain a construction of Ordinance No . 3526 from the
9 State Courts who are authorized and under a duty to
10 constitutionally construe the legislation . Therefore , the City
11 Council has furnished the "fleshing out" of certain portions of
12 Ordinance No . 3526 which it was denied by its inability to
13 proceed further in State Court . •
14 Plaintiff complains of the definition of the word "use" on
15 the ground that the definition injects a subjective element into
16 the categorization of the motion pictures as prohibited or legal
17 uses . This is simply not true . The "fleshing out" of the
18 definition substantially reduces recourse to subjectivity in
19 determining what manner of "use" will bring the motion picture
20 purveyor within the constraints of the ordinance .
21 Plaintiff further complains that the abatement procedures
22 set forth in the ordinance are a prior restraint of free speech .
23 However , the abatement procedures here enacted are devoid of any
24 authorization for issuance of preliminary injunctions of
25 indefinite duration or the padlocking of premises against the
26 showing of future films.
27
28
DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
TO MOTION FOR PRELIMINARY INJUNCTION AND ,00 so. SECOND ST.. P. O. BOX 626
IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057
255.8678
CIIMMARV TIIflr.MF'NT Par. ' 12
1 D. Plaintiff has obtained no vested
rights to operate an adult motion
0 fi e th,- +- � � a
location .
3
Plaintiff asserts that it has a vested right to exhibit its
4
adult films at the Renton and Roxy Theaters . Plaintiffs should
5
more properly claim to be a permitted use or a prior non-
6
conforming use , neither of which are applicable here because the
7
ordinance predated Plaintiff' s proposed use .
8
The case of State ex rel Ogden vs . Bellevue , 45 Wn 2d 492,
9
275 P. 2d 899 ( 1954 ) stated that rule on vested rights in
10
Washington :
11
"The right vests when the party. . .applies for his
12 building permit , if that permit is thereafter issued .
The rule , of course , assumes that the permit applied
13 for and granted be consistent with the zoning
ordinances and building codes in force at the time of
14 application for the permit ."
(Emphasis added) .
15
Interestingly enough, Plaintiff claims that the business
16
zone in which the Renton and Roxy Theaters are located is not a
17
permitted use in one portion of its brief, and yet asserts the
18
vested rights doctrine which requires a permitted use in another
19
section of its brief. If the argument that a theater is not a
20
permitted use in a business zone is appropriate , then there can
21
be no vested rights .
22
Plaintiffs claim a substantial investment in the property
23
and a vested interest as of the date of enactment of a later
24
ordinance , Ordinance No . 3629 , which was enacted on May 3, 1982.
25
It should be recalled that Plaintiff made that investment in
26
direct contravention of an existing Ordinance of the City of
27
Renton , with knowledge that that ordinance existed . Plaintiff
28
DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S.
TO MOTION FOR PRELIMINARY INJUNCTION AND Ioo soATTORNEYS AT LAW
. SECOND eT.. P. O. BOX e:e
IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON, WASHINGTON 98057
SUMMARY JUDGMENT PAGE 14 255-8678
1 did not have the right to show its adult films under Ordinance
2 No . 3526 , and that right was not changed under Ordinance No .
3 3629 . No vested rights could be obtained . Plaintiffs ' use is not
4 a permitted use or a prior nonconforming use .
5 E. Ordinance No . 3629 is valid---having
been properly enacted .
6
Plaintiffs have challenged Ordinance No . 3629 alleging that
7
its emergency clause invades the right of the people to exercise
8
their rights of initiative and referendum .
9
The Court should specifically note that Plaintiffs are
10
attacking an ordinance , the effect of which would be to
11
substantially increase the permissible locations within the City
12
for Plaintiffs ' theaters . Since the affect of such an ordinance
13
would be to eliminate Plaintiffs' complaint that it has been
14
excluded from the City, Plaintiff does not wish the Court to
15
consider the ordinance on its merits . Rather , Plaintiffs are
16
making a technical , procedural argument to the Court .
17
The Court should decline to involve itself in what is a
18
State question and should hold for the purpose of this
19
Preliminary Injunction hearing that the enactment is within the
20
police power of the City. The Federal Court must presume the
21
Ordinance is legal and constitutional until such time as a State
22
Court has decided otherwise . Since Plaintiff' s complaint is
23
based strictly on the Washington Constitution and State Court
24
cases , no Federal question is presented .
25
Even if the Court entertains Plaintiffs' complaint , the
26
Court should find that the ordinance is properly enacted . As a
27
general proposition , emergency clauses in zoning enactments are
28
DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S.
TO MOTION FOR PRELIMINARY INJUNCTION AND 100 SO E
. S SECCONDCSSOND BT.. LAW
, r. O. BOX 626
IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057
SUMMARY JUDGMENT PAGE 15 255-8878
1 given effect . See McQuillan , Municipal Corporations ( 1976) ,
2 Section 25 . 52.
3 " A zoning ordinance takes effect from the date
prescribed by law. Such a date may be the result of
4 public emergency. . . . " ( footnote omitted )
5 It should be noted that Plaintiff has cited no zoning cases in
6 its arguments on emergency clauses .
7 Plaintiffs complain that the City Ordinance containing an
8 emergency clause violates Amendment VII , Article 2, 1 (b) of the
9 Washington State Constitution which reads :
10 "The second power reserved by the people is the
referendum and it may be ordered on any act , bill ,
11 law, or any part thereof passed by the legislature ,
except such laws as may be necessary for the
12 immediate preservation of public peace , health or
safety , in support of the State government and its
13 existing public institutions . . . "
14 Ordinance No. 3629 contained an emergency clause stating that the
15 enactment was for the immediate preservation of the public peace ,
16 health or safety , and included statements that the enactment was
17 necessary to limit the City' s financial liability. All of those
18 statements meet the requirements of the Washington State
19 Constitution .
20 In Swartout vs . Spokane , 21 Wn App . 665 , 670, 586 P. 2d 135
21 ( 1978) , the Court stated the test for review of legislation with
22 an emergency clause :
23 _ "We have always held to the rule that the legislative
declaration of the facts constituting the emergency
24 is conclusive , unless , giving effect to every
presumption in its favor , the court can say that such
25 legislative declaration , on its face , is obviously
false and a palpable attempt at dissimulation . . . .
26
" It is also well settled , both here and elsewhere ,
27 that , in determining the truth or falsity of a
legislative declaration of a fact , the court will
28 enter upon no inquiry as to the facts , but must
DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S.
TO MOTION FOR PRELIMINARY INJUNCTION AND ATTORNEYS AT LAW
f00�O. SECOND BT., I. O. BOX 626
IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057
255-8678
SUMMARY JUDGMENT PAGE 16
1 consider the question from what appears from the face
of the act , aided by its judicial knowledge . "
2
This court , in reviewing the emergency clause in the Renton
3
Ordinance and giving affect to every presumption in the City' s
4
favor , cannot find that the facts are obviously false and a
5
palpable attempt at dissimulation . All doubts must be resolved
6
in favor of the validity of the enactment . State ex rel Hamilton
7
vs . Martin , 173 Wash . 249 , 254 , 23 P. 2d 1 ( 1933 ) ; State ex rel
8
Hoppe vs . Meyers , 58 Wn 2nd , 320, 326, 363 P. 2d , 121 ( 1961 ) .
9
One of the recognized areas where emergency legislation may
10
be passed without referendum is when it involves police power . A
11
rather detailed explanation of police power and the referendum is
12
contained in State ex rel Case vs . Howell , 85 Wash 281 , 284 , 147
13
Pac . 1162 ( 1915) .
14
There should be no doubt that the zoning power is an
15
exercise of the police power of the municipality. As stated in
16
McQuillan , Municipal Corporations , 3rd Ed . Rev . ( 1976) states the
17
general rule in 2510:
18
"Relationship to Zoning to Other Police Reguluations .
19 Zoning laws in their usual form are an exercise of
the police power in a particular field , to secure the
20 public health , safety or welfare but they are only
one of several types of regulation of property by
21 local government , all of which are expressions of the
police power . . . . "
22
The State of Washington has long recognized that zoning is
23
an exercise of the police power . The case of Farrell vs .
24
Seattle , 75 Wn wnd 540 , 543, 452 P. 2d 965 ( 1969) quotes from the
25
seminal case on zoning in Washington as follows :
26
"Zoning is a discretionary exercise of police power
27 by a legislative authority . Lillions vs . Gibbs , 47
Wn 2d 629 , 289 P. 2d 203 ( 1955) ."
28
DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
TO MOTION FOR PRELIMINARY INJUNCTION AND I00 BO. SECOND BT.. P. O. BOX 626
IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WABHINGTON 98057
255-8678
OfIAAAAA ov TIITI!`AACAIT DnCC 7
1 In any event , Ordinance No . 3629 (which was enacted or. May
2 3 , 782 with an emergency clause) nas been re-enacted without the
3 emergency clause by the City Council on June 14 , 1982 as
4 Ordinance No . 3637 . by its terms it will become effective 30
5 days following its publication on June 18 , 1982
6 V. CONDITIONAL USE PERMIT.
7 Once again , Plaintiff addresses a significant portion of
8 his brief and the Court' s time to an argument that the ordinance
9 is unconstitutional on its face or as applied because of the
10 claimed absence of objective standards to determine whether to
11 grant or deny a conditional use permit for operation of an adult
12 motion picture theater . This is a " strawman" created by
13 Plaintiff' s erroneous construction of the Renton City Code . As
14 has been stated previously (See Defendant' s Reply Memorandum in
15 Support of Defendant' s Motion to Dismiss , Page 10-11 ) and as
16 stated by David Clemens in his testimony before the Magistrate on
17 January 29, 1982, and at his deposition on March 3, 1982,
18 theaters (and adult theaters except as limited by Ordinance Nos .
19 3526 and 3629) are a legal use in the commercial districts of the
20 City of Renton . There is no requirement that the Plaintiffs seek
21 approval of a conditional use permit , variance or any other land
22 use permit prior to the commencement of operaton .
23 In his deposition , Mr . Clemens stated at Vol I , Pg 73:
24 Q. Could you direct me where in that section you
find that an adult motion picture theater is a
25 permitted use within the B-1 business district?
26 A. It is not specifically set forth ; however , the
City has interpreted , since long prior to my
27 coming to the City , that commencing with the
B-1 district , a theater use and many other uses
28 that are not specifically set forth in the B-1
DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG, P.S.
ATTORNEYS AT LAW
TO MOTION FOR PRELIMINARY INJUNCTION AND ioo so. SECOND ST.. P. O. BOX 626
IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057
zsa-8878
SUMMARY JUDGMENT PAGE 18
1 district are allowed as being uses similar to
the uses specified in the B-1 district .
2
Mr . Clemens further stated that the same analysis applies to the
3
M-P, L-1 and H-1 zones . Vol I , pg 76 .
4
Any appeal from the administrative determination of whether
5
such a use is an allowed use must be made to the Hearing Examiner
6
within 14 days following the administrative determination . The
7
Hearing Examiner ' s decision is subject to review by the King
8
County Superior Court within 20 days after the date of the
9
decision . Renton City Code Section 4-3011 ( B) (5) . Appeals from
10
administrative determination are not appealed to the City
11
Council . Therefore , the Plaintiff is not subject to a
12
standardless , discretionary administrative procedure of
13
potentially unlimited duration .
14
VI . SUMMARY .
15
Having shown the constitutionality of the ordinances
16
following Young and avoiding the pitfalls of Shad , the validly
17
enacted Ordinance Nos . 3526 and 3629 must be upheld by this Court
18
and the City's Mot-ion for Summary Judgment granted . Plaintiffs '
19
attempt to force the City to do its market research for viability
20
of other locations before enacting reasonable zoning legislation
21
must be rejected . Plaintiffs may not concern this Court with
22
questions of the application of these ordinances to properties
23
other than the two specific locations owned by Plaintiffs .
24
In any event , in order to maintain the status quo , and to
25
achieve public interest , Plaintiffs ' Motion for Preliminary
26
Injuction must be denied . There is no likelihood that Plaintiff
27
'will prevail on the merits . The irreparable injury claimed to
28
DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S.
TO MOTION FOR PRELIMINARY INJUNCTION AND so. SlCONEOND AT �
Ioo ST., r. O O.. BOX eze
IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057
SUMMARY JUDGMENT PAGE 19 255.8878
1 have been suffered by Plaintiffs has been occasioned by their own
2 hands .
3 Respectfully submitted ,
4 ,--
•
7 / LAWRENCE J✓WARREN
6
7 (:;—,/;— ;);--e7
•
8 DANIEL KELLOGG
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S.
TO MOTION FOR PRELIMINARY INJUNCTION AND ATTORNEYS AT LAW
100 80. SECOND 8T.. P. O. 80X 626
IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WABHINGTON 98057
255-8678
SUMMARY JUDGMENT PAGE 20
CL,C1j
•
1
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)
et al , )
22 )
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.
TENEWED MOTION TO DISMISS ATTORNEY! AT LAW
goo so. SECOND aT., P. O. BOX 626
P . 1 RENTON. WASHINGTON 98057
255-8678
4111,
I.
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 feet .
MEMORANDUM IN SUPPORT OF WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
RENEWED MOTION TO DISMISS ,00 so. SECOND ST.. P. O. SOX 626
P. 2 RENTON. WASHINGTON 98057
255-8678
010
1 f . Ordinance No. 3526 contained no severability clause .
2 Ordinance No . 3629 adds such a severability clause to
3 Ordinance No. 3526.
4 Because of the importance of the amendments to Ordinance No .
5 3526, 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
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
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 — -
22 (9th Cir . 1953) . The decision of the court will not he set aside
upon appeal unless clearly erroneous as a matter of law or the
23
result of an abuse of discretion. U. S . v. Corrick, supra .
24 The purpose of the preliminary injunction requested is to
25
preserve 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.
ATTORNEYS AT LAW
IOO SO. SECOND ST., P. O. SOX 626
P. 3 RENTON. WASHINOTON 98057
255.8878
•
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
17 injunctive relief will unequivocably be denied, both at the
18 preliminary injunction phase and at trial upon their applidation
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
o SO. SECOND ST.. P. O. SOX S2S
P. 4 toRENTON. WASHINGTON 98057
255-8678
0110
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
7
Re ully submitted,
8
9 ft /jr‘P...4/40072
Daniel Kellogg
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
MEMORANDUM IN SUPPORT OF
RENEWED MOTION TO DISMISS WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
P 100 SO. SECOND ST., P. O. SOX SYS
RENTON. WASHINGTON 98057
O.K-aa-sa
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
10 PLAYTIME THEATRES , INC. , a )
Washington corporation, and KUKIO )
11 BA7 PROPERTIES , INC . , a Washington )
corporation, )
12 )
13 Plaintiffs )
14 vs )
NO . C82-59M
15 THE CITY OF RENTON, DEFENDANTS' ANSWER TO
PLAINTIFFS' AMENDED AND
16 and ) SUPPLEMENTAL COMPLAINT FOR
THE HONORABLE BARBARA Y. SHINPOCH, ) DECLARATORY JUDGMENT AND
17 as Mayor of the City of Renton, ) PRELIMINARY AND PERMANENT
INJUNCTION
18 and )
)
19 EARL CLYMER, ROBERT HUGHES, NANCY )
20 MATHEWS, JOHN REED, RANDY ROCKHILL, )
RICHARD STREDICKE AND TOM TRIMM, )
21 as members of the City Council of )
the City of Renton; serve on: )
22 DELORES 4.. MEAD, City Clerk, )
)
23 and )
)
24 JIM BOURASA, as acting Chief of )
Police of the City of Renton, )
25 )
Defendants, jointly )
26 and severally, in )
their representative )
27 capacities only. )
_ )
28
DEFENDANTS' ANSWER
WARREN & KELLOGG. P.S.
ATTORN6Y6 AT LAW
P . 1 100 SO. 6I OND 6T.. P. O. sox 626
RICNTON♦ WASHINGTON 98057
255.8878
1 THE CITY OF RENTON, )
)
2 Plaintiff, )
)
3 vs ) NO . C82-263R
)
4 PLAYTIME THEATRES, INC . , a )
Washington corporation and )
5 KUKIO BAY PROPERTIES , INC. , )
a Washington corporation, )
6 )
Defendants . )
7 )
8 COME NOW the Defendants , City of Renton, a municipal
9 corporation, Barbara Y. Shinpoch as Mayor of the City of Renton,
10 Earl Clymer, Robert Hughes , Nancy Mathews , John Reed, Randy
11 Rockhill , Richard Stredicke and Tom Trimm, as members of the
12 City Council of the City of Renton, and Jim Bourasa, as acting
13 Chief of Police of the City of Renton, herein, and in answer
14 to the complaint , admit , deny and allege as follows :
15 I. JURISDICTION
16 1. The Defendants deny the jurisdiction of this Court.
17 Plaintiffs ' Amended and Supplemental Complaint prays for relief
18 enjoining the Defendants from enforcement of City of Renton
19 Ordinance No. 3526 on the grounds that the ordinance is
20 unconstitutional as written and/or as threatened to be applied
21 to Plaintiffs . Plaintiffs further pray for declaratory judgment
22 to determine the constitutionality of City of Renton Ordinance
23 3526. Defendants affirmatively allege that City of Renton
24 Ordinance No. 3526 has been amended by City of Renton Ordinance
25
No. 3629 , copy of which is attached hereto as Attachment "A"
26 and the contents of which are incorporated herein by reference ,
27 which ordinance was adopted by the City Council of the City of
28 Renton and approved by the Mayor on May 3, 1982 , and by the
WARREN & KELLOGG. P.S.
DEFENDANTS ANSWER ATTORNEYS AT LAW
100 SO. SECOND ST.. P. O. BOX 626
RENTON. WASHINGTON 98057
P_ 2 255.8878
•
1 terms thereof became effective immediately upon its passage
2 and approval by the Mayor . City of Renton Ordinance No . 3526 ,
3 as amended, and City of Renton Ordinance No . 3629 are in full
4 force and effect and are applicable to the theater operations
5 alleged by the Plaintiff in its Amended and Supplemental
6 Complaint. The ordinances are facially constitutional .
7 Young v. American Mini Theatre, Inc . , et al . 427 U. S. 50, 96
8 S . Ct. 2440, 49 L. Ed. 2d. 310 (1976) . This Court should abstain
9 from any consideration of this lawsuit . The same declaratory
10 judgment action which is pleaded herein can be brought under
11 ...tate law by virtue of the Revised Code of Washington, Chapter
12 .'. 24. There has been no showing by the Plaintiffs that the
13 state procedural law is inadequate to allow full litigation of
14 any constitutional claim or that the state courts will not apply
15 appropriate federal principles of constitutional law in such a
16 declaratory judgment action. Allan v` McCurry, 449 U. S . 90,
17 101 S. Ct. 441, 66 L. Ed2d 308 (1980) ; Parratt v. Taylor, U. S.
18 , 101 S. Ct. , 68 L. Ed. 2d 420 (1981) .
19 2 . In answering paragraph 2 , Defendants deny that
20 jurisdiction is conferred upon this Court on the basis of 28
21 U. S . C.A. §1343 (3) , in view of the fact that there has been no
22 deprivation under color of any state law, or statute, or
23 ordinance, of the privileges or immunities secured by the
24
Constitution of the United States with reference to the cause
25
of action pleaded by the Plaintiffs . In addition, the Plaintiffs
26
inappropriately plead a violation of 42 U. S .C.A. §1983 , in that
27
neither Renton Ordinance No. 3526 nor Renton Ordinance No . 3629
28
DEFENDANTS ANSWER
WARREN & KELLOGG, P.S.
ATTORNEYS AT LAW
P . 3 ,00 SO. SECOND ST., P. O. BOX 620
RENTON, WASHINGTON 98057
255-8678
1 have, as yet, been applied to the Plaintiffs and thus no person
2 under color of any statute or ordinance of any state has caused
3 the Plaintiffs to be subjected to the deprivation of any rights,
4 privileges or immunities secured by the Constitution. Therefore,
5 this portion of the Plaintiffs ' Complaint should be stricken.
6 See Hoffman Estates v. Flinside, Hoffman Estates, U. S .
7 102. S .Ct. , 71 L. Ed. 2d 362 at 375 , footnote 21 and 22
8 (March 3, 1982) .
9 4. Defendants admit that if the Court hac jurisdiction
10 under 28 U. S. C.A. §2201, the Court may only render a declaratory
11 judgment regarding the city ordinances because Defendants
12 represent that they will obey the judgment of tie Court . Therefore,
13 entry of an injunction would be inappropriate.
14 5 . Any other matters pleaded in this particular section
15 of the complaint are denied by virtue of the fact that the
16 Defendants are without information and, therefore , are unable
17 to form a belief with respect to the same.
18 II PARTIES
19 6. In answering the allegations of paragraph 3 of the
20 complaint, the Defendants are without information and, therefore,
21 are unable to form a belief and deny the same.
22 7 . In answering the allegations of paragraph 4, admit
23
the same.
24 8 . In answering the allegations of paragraph 5 , admit
25
the same.
26
9. In answering the allegations of paragraph 6 , the
27 Defendants admit that Earl Clymer, Robert Hughes , John Reed,
28 Randy Rockhill , Richard Stredicke and Tom Trimm are members
WARREN & KELLOGG. P.S.
DEFENDANTS ANSWER ATTORNEYS AT LAW
100 SO. •ECOND ST., P. O. BOX 626
RENTON. WASHINGTON 98057
P 4 255-8678
1 of the City Council of the City of Renton who enacted City of
2 Renton Ordinance No . 3526 . In addition, Charles Shane was a
3 member of the City Council of the City of Renton on the date
4 that City of Renton Ordinance No . 3526 was enacted. Defendants
5 allege that Earl Clymer, Robert Hughes, John Reed, Randy
6 Rockhill , Richard Stredicke, Tom Trimm and Nancy Mathews are
7 presently members of the City Council of the City of Renton and
8 who enacted City of Renton Ordinance No . 3629 as heretofore
9 set forth. Defendants allege that the enactment of City of
10 Renton Ordinances No. 3526 and No . 3629 was a part of the
11 legislative function of the City Council of the City of Renton,
12 but deny that the ordinances as enac`ed are facially
13 unconstitutional .
14 10. In answer to the allegations of paragraph 8, the
15 Defendants admit that on the date of filing of the Amended and
16 Supplemental Complaint, that Defendant Jim Bourasa was Acting
17 Chief of Police of the City of Renton. Defendants allege that
18 since the filing of Plaintiffs ' Amended and Supplemental
19 Complaint, Allan L. Wallis was appointed as Chief of Police of
20 the City of Renton who is primarily responsible for seeing to
21 the enforcement of the City of Renton ordinances , civil ,
22 criminal and quasi-criminal in nature. In that connection,
23 Defendants affirmatively allege that Section II of Ordinance
24 No . 3629 provides in part as follows :
25 SECTION II : Existing Section 4-735 of Title IV
26 (Building Regulations) of Ordinance No . 1628 entitled
"Code of General Ordinance of the City of Renton" is
27 hereby amended by the following subsections :
28 (C) Violation of the use provisions of this
section is declared to be a public nuisance per se
WARREN & KELLOGG. P.S.
DEFENDANTS ANSWER ATTORNEYS AT LAW
tOO 90. SECOND ST.. P. O. SOX 626
P . 5 RENTON. WASHINGTON 98057
255-8678
1 which shall be abated by the City Attorney by way
of civil abatement procedures only, and not by
2 criminal prosecution.
3 (D) Nothing in this section is intended to
authorize, legalize or permit the establishment ,
4 operation or maintenance of any business , building
or use which violates any City of Renton ordinance
5 or statute of the State of Washington regarding
public nuisances, sexual conduct , lewdness , or obscene
6 or harmful matter or the exhibition of public display
thereof.
7
8 11 . In answering the allegations of paragraph 9 , the
9 Defendants deny the same✓.
10
11 ITI FACTUAL ALLEGATIONS
12 12. In answering the allegations of paragraph 10, the
13 Defendants deny the same.
14 13. In answering the allegations of paragraph 11 ,
15 the Defendants admit the same and, in that connection,
16 affirmatively allege that on February 19, 1982 , the Defendant
17 City of Renton filed a civil action in King County Superior
18 Court seeking a declaratory judgment that Ordinance 3526 is
19 constitutional as applied to the Plaintiffs ' proposed use
20 of the Renton and Roxy Theaters.
21 14. In answering the allegations of paragraph 12, the
22 Defendants admit the same.
23 15. In answering the allegations of paragraph 13, the
24 Defendants deny the same.
25 16 . In answering the allegations of paragraph 14,
26 the Defendants deny the same.
27 17 . In answering the allegations of paragraph 15 , the
28 Defendants admit the same.
DEFENDANTS ANSWER WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
tOO SO. SECOND ST.. P. O. BOX 626
P 6 RENTON. WASHINGTON 98057
255-8678
1 18 . In answering the allegations of paragraph 16 , the
2 Defendants deny the same and, in that connection, affirmatively
3 allege that prior to the filing of said complaint the Plaintiffs
4 had been informed in sworn testimony before this court that the
5 City of Renton' s interpretation of its Zoning Code was that an
6 adult motion picture theater was a permitted use within the
7 City of Renton except to the extent proscribed by ordinance .
8 Defendants allege further that the same information would have
9 been supplied to the Plaintiffs had they availed themselves of
10 the zoning administrative process which is administered by the
11 City of Renton by inquiry of the City of Renton..
12 19 . In answering the allegations of Paragraph 17 and 20,
13 the Defendants deny that a special permit , conditional use
14 permit, variance or other permit is required under Renton
15 Ordinance 3526 or Renton Ordinance 3629 . Therefore, paragraphs
16 17 and 20 of the Plaintiffs ' Complaint should be stricken.
17 20. In answering the allegations of paragraphs 18 and 19 ,
18 the Defendants deny that application of Renton Ordinance No.
19 3526 or Renton Ordinance No. 3629 invoke any discretion of a
20 Hearing Examiner or Board of Adjustment and/or the City Council .
21 Therefore, paragraphs 18 and 19 of the Plaintiffs ' Complaint
22 should be stricken.
23
IV BASIS IN LAW FOR RELIEF
24 — —
25 21 . In answering the allegations of paragraph 21 , the
26 Defendants are without information and, therefore, are unable
27 to form a belief and deny the allegations therein.
28 22 . In answering the allegations of Paragraph 22, the
DEFENDANTS ANSWER WARREN & KELLOGG, P.S.
ATTORNEYS AT LAW
P . 7 100 SO. SECOND ST.. P. O. BOX 6211
RENTON, WASHINGTON 98057
255-8678
1 Defendants are without information and , therefore, are unable
2 to form a belief and deny the allegations therein.
3 23. In answering the allegations of paragraph 23 , the
4 Defendants deny each and every allegation contained therein.
5 24. In answering the allegations of paragraph 24, the
6 Defendants deny each and every allegation contained therein.
7 25 . In answering the allegations of paragraph 25 , the
8 Defendants deny each and every allegation contained therein.
9 26 . In answering the allegations of paragraph 26, the
10 Defendants deny that Renton Ordinance No . 3526 or Renton
11 Ordinance No . 3629 require the issuance of a special permit,
12 conditional use permit , variance or other permit . Therefore,
13 paragraph 26 of the Complaint should be stricken.
14
15 V RELIEF SOUGHT
16 27 . In answering the allegations of paragraphs 27 and 28,
17 the Defendants deny the Plaintiffs are entitled to a declaratory
18 judgment. Defendants allege that this Court should abstain
19 in favor of the state courts deciding this issue, rather than
20 declaring the statute to be unconstitutional . In addition, it is
21 inappropriate that the Court permanently enjoin enforcement of the
22 statute by the Defendants . Eleventh Amendment. Huffman v. Pursue ,
23 Ltd. 420 U. S. 592, Samuels v. Mackell , 401 U. S . 66 at 72.
24 With respect specifically to prayer number 5 in paragraph 28
25 of the complaint, the Defendants move to strike the request for
26 reasonable attorney' s fees pursuant to 42 U. S. C.A. §1988, in
27 view of the fact that such application must be based upon an
28 action under 42 U. S . C.A. §1983 , which is inappropriate in this
DEFENDANTS ANSWER WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
100 SO. SECOND ST.. P. O. BOX 626
P . 8 RENTON. WASHINGTON 98057
255-8678
1 case in view of the fact that the Plaintiffs have not , under
2 color of any statute or ordinance of any state, been subjected
3 to the deprivation of any rights, privileges or immunities
4 secured by the constitution and the laws , since no actions
5 have been brought against Plaintiffs under Renton Ordinance No.
6 3526 or Renton Ordinance No . 3629 . Further , Defendants allege
7 that they are entitled to an award of their reasonable
8 attorney' s fees incurred in defense of this action pursuant
9 to 42 U. S . C.A. §1988 and general equitable principles , in view
10 of the fact that the subject matters which the Plaintiffs
11 would have exhibited at the Renton and Roxy Theaters under
12. the classification of "adult motion picture filar" during the
13 period in question are "obscene motion picture films" under
14 Washington State Law and do not involve constitutionally
15 protected speech. In filing this complaint , the Plaintiffs
16 acted in bad faith, vexatiously, wantonly and for oppresive
17 reasons . Vaughn v. Atkinson, 369 U. S . 527 , 8 L. Ed. 2d 88,
18 Rich Co . , Inc. v. United States for the Use of Industrial
19 Lumber Co . , Inc . 417 U. S . 116, 129, 40 L. Ed. 2d 703 , 714.
20
21 VI DEFENSES
22 By way of further answer, and as matters of affirmative
23 defense, the Defendants allege as follows :
24 28. Defendants allege as a defense that this Court has
25 no jurisdiction to hear the cause on the merits . Eleventh
26 Amendment.
27 29 . Defendants allege as a defense, that this court
28 should abstain from a determination in this matter in the interests
DEFENDANTS ANSWER WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
100 SO. SECOND ST., P. O. BOX 626
P. 9 RENTON. WASHINGTON 98057
255-8678
1 of comity and further that the exceptions of Younger v. Harris ,
2 401 U. S . 37 , 27 L. Ed. 2d 669 , 91 S . Ct . 746 (1971) , and Huffman v.
3 Pursue, Ltd. , 420 U. S . 592, 43 L. Ed. 2d 482, 95 S . Ct. 1200 (1975) ,
4 do not warrant a determination on the merits .
5 30 . Defendants allege , as a defense, that this Court
6 should determine that Renton Ordinance No . 3526 and Renton
7 Ordinance No . 3629 are constitutional on their face, and that
8 the state courts may decide their constutional application as
9 provided for by Village of Hoffman Estates v. Flipside, Hoffman
10 Estates , U. S. , 71 L.Ed. 2d 362 , 102 S. Ct. (1982) .
11 31 Defendants allege, as a defense, that this Court should
12 determine that the motion picture films which the Plaintiffs would
13 have exhibited at the Renton Theater and Roxy Theater during
14 the period in question under the classification of "adult motion
15 picture films" are "obscene motion picture films" under Washington
16 law and, as such, do not involve constitutionally protected free
17 speech.
18 32. Defendants allege, as a defense that Plaintiff Kukio
19 Bay Properties, Inc. , has no interest in the subject matter of
20 this lawsuit sufficient to constitute a "case or controversy"
21 under Article III, U. S. Constitution, and further, that Kukio
22 Bay Properties, Inc. , has not sustained and will not in the
23 future sustain any damage by reason of the alleged
24 unconstitutionality of the ordinances complained of.
25
VIII PRAYER
26
WHEREFORE, Defendants having fully answered the complaint
27
of Plaintiffs on file herein, said Defendant pray that :
28
DEFENDANTS ANSWER
WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
P. 10 100 BO. SECOND ST.. P. O. BOX 626
RENTON. WASHINGTON 98057
255-8678
1 A. The Plaintiffs' complaint be dismissed with prejudice;
2 B. Plaintiffs ' request for a permanent injunction and
3 declaratory judgment be denied;
4 C. That Defendants be awarded their costs herein,
5 including a reasonable attorney' s fee; and
6 D. That the court grant such other relief as it deems
7 proper.
8
9 DATED this day of June, 1982.
10
11 ��: ��'��,: /iJ6;,-,:;L(Ati
1� Cawrence J. rren, Attorney for
Defendants
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DEFENDANTS ANSWER
WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
P. 11 100 SO. SECOND ST.. P. 0. SOX 626
RENTON. WASHINGTON 98057
255-8878
7-7 !eN1-7-. \,/ !•-L
:B 2 1982
1
VVA1_.1 LLK l . mcL u V L.
2 U. S. DISTRICT .1UDC"RECEIv�D
3
4 , 1 ' S`�TGTt
0.00
6 UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
7
PLAYTIME THEATRES, INC . , a )
g Washington corporation, and )
KUKIO BAY PROPERTIES , INC . , ) NO. C82-59M
g a Washington corporation. )
)
10 Plaintiffs ) NOTICE OF MOTION TO DISMISS
11 vs )
)
12 CITY OF RENTON, a municipal )
corporation, et al . )
13 )
Defendants . )
' 14 )
15 PLEASE TAKE NOTICE that the Defendants will move to dismiss
16 the above-entitled action pursuant to rules 12 (6) (1) and 12(b) (6)
17 of the Federal Rules of Civil Procedure upon the grounds that
18 the court lacks jurisdiction over the subject matter of the
19 lawsuit .and the Plaintiffs have failed to state a claim upon
20 which relief can be based, on March 12 , 1982 at 9 : 30 A .N. or at
21 such other time as the court may hereinafter direct .
22 Defendant is requesting by separate motion that Defendants '
23 Motion to Dismiss referred to above be set for hearing before
24 United States District Court Judge Walter T. McGovern.
25 DEFENDANTS REQUEST ORAL ARGUMENT UPON THIS MOTION.
26
DATED: February 22, 1982.
27
28
29 Daniel ellogg, A for for
Plaintiff
30
31
32 NOTICE OF MOTION TO DISMISS
WARREN & KELLOGG, P.S.
ATTORNEYS AT LAW
100 SO.SECOND ST., P.O.BOX SES
RENTON, WASHINGTON 98057
255.8878
it ..y 4Nw
'4; i982 •
1 vvAL i r` i . rJ i;uUv
2 U. S. DISTRICT RIOT ,UDC.,
•
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, )
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 . , )
16
Defendants. )
16
17 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 �
19 of Civil Procedure, in that the Court lacks jurisdiction over the
20 subject matter of the lawsuit and the plaintiffs have failed to
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
24 accompany this motion.
25 Defendants further move that this matter be set for hearing
26 and oral argument as soon as practicable.
27 DATED: February 22 , 1982
28
29
80 MOTION TO DISMISS
PURSUANT TO F.R.C. P. Daniel Kel og
81 SECTION 12 (b) ( 1 ) AND lllll���(((����((��
12 (b) ( 6 ) .
82
WARREN & KELLOGG. P.S.
• ATTORNET•AT LAW
100 SO.SECOND ST..P.O.SOX•E•
RENTON. WA•HINOTON 9e057
gas-ee7e
. I
;� 2 21982
1 \ JAL.f �_r l. tU;Ci 'JLil
2 !�. S.
f '
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
OF DEFENDANTS ' MOTION TO
18 vs . ) DISMISS COMPLAINT
PURSUANT TO F .R. C. P.
14 THE CITY OF RENTON, et al . , ) SECTION 12 (b) ( 1 ) AND
) 12 (b) ( 6 ) .
15 Defendants. )
16
17 STATEMENT OF FACTS
18 City of Renton Ordinance No. 3526 is a zoning ordinance
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
26 family residential use.
27 b. Within one mile of any public or 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. 1 100.O•9ILCONO$T..►.O.BOX GIS
RENTON. WASHINGTON 06057
255-e67B
1 Renton, are owned and operated by the Playtime Theaters, Inc. , a
2 Washington corporation (hereinafter called "Playtime" ) and Kukio
$ 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 pleading 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
16 (2 ) a preliminary injunction restraining the defendants
and their agents, servants, employees and attorneys,
17 and others acting under their direction and control ,
from enforcing or executing and/or threatening to
18 enforce and/or execute the provisions of Ordinance
No. 3526 in whole and/or in part, by arresting
19 plaintiffs , their agents, servants or employees ,
and/or threatening to arrest plaintiffs, their
20 agents, servants and employees and/or harassing ,
threatening to close, or otherwise interferring with
21
plaintiffs ' peaceful use of the premises.
22
(3 ) A permanent injunction after final hearing; and
28 (4 ) an award of such damages as plaintiffs have
sustained by reason of loss of business , the
24 expenditure of assets to enforce rights guaranteed
by the U.S. Constitution, and reasonable attorney ' s
25
fees and other damages as may be established .
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 set a hearing date of January 29, 1982 at 1 : 30 p. m.
29 Following a hearing on the issue as to whether a temporary
80 restraining order should issue , United States Magistrate Philip K.
81 Sweigert thereafter filed his "Report and Recommendation" on
82 MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEFENDANTS ' MOTION TO
DISMISS COMPLAINT PURSUANT TO F.R.C. P. WARREN QKELLOGG, p,g,
ATTORNEYSECTION 12 (b) ( 1 ) AND 12 (b) ( 6 ) P. 2 tOO SECOND ST• LA
SOX
IIISS
RENTON, WASHINOTON 9E057
155.8878
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
8 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
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
16 federal action as defendants, entitled City of Renton, a municipal �
16 cor oration, laintiff, vs. Pla time Theatre, Inc. , a Washin ton
17 corporation, and Kukio Bay Pro erties, 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,
28 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.
28
b. Renton claims that City of Renton Ordinance No. 3526j
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
DISMISS COMPLAINT PURSUANT TO F.R.C. P. WARREN & KELLOGG, P.S.
SECTION 12 (b) (1 ) AND 12 (b) ( 6 ) p 3 ATTORNEYS AT LAW
100 t0,SECOND tT.,P.O.SOX•E•
RENTON, WASHINOTON 28057
2aa-ea7a
1 proposed by them.
2 c. Renton claims that the component parts of City of
8 Renton Ordinance No. 3526 are independant and severable and that
4 the Superior Court of Washington for King County has the duty and
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
7 City of Renton and its manifest intention. Playtime and Kukio
8 claim that said ordinance is not susceptible of a constitutional
9 construction and is not severable.
10 d. Renton claims that, pursuant to the provisions of
11 City of Renton Ordinance No. 3526 , an "adult motion picture
12 theater" is a permitted use within the B-1 and more intensive land
18 use zoning class ificatiors currently in use within the City of
14 Renton except to the extent that the specific use is prohibited by
15 the terms of said ordinance, and that there is no necessity for
16 application for a special permit, conditional use or variance prior
17 to the commencement of such specific land use. Playtime and Kukio
18 claim in their "Amended and Supplemental Complaint for Declaratory
19 Judgment and Preliminary and Permanent Injunction" , filed on
20 February 9 , 1982 in this Court, that City of Renton Ordinance No.
21 3526 provides a new use classification within the zoning laws of
22 the City of Renton of an "adult motion picture theater" which is
28 not a permitted use within any zoning classification currently in
24 the City of Renton, thereby requiring Playtime and Kukio to obtain
25 a special permit, conditional use or variance prior to commencements
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
IN SUPPORT OF DEFENDANTS ' MOTION TO WARREN IN KELLOGG, P.S.
DISMISS COMPLAINT PURSUANT TO F.R.C.P. ATTONNLTSAT LAW
SECTION 12 (b) (1 ) AND 12 (b) ( 6 ) P. 4 , 100 SO.•LGOND ST.,P.O.■OL C!•
RLNTON. WA•HINOTON 96067
155.e676
•
1 special permit, conditional use or variance from which appeal may
2 be 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.
7
8
LEGAL ARGUMENT
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. §716 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 Renton has filed a Complaint for Declaratory Judgment under Chapters
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 No. 3526 and resolve the same issues which the plaintiffs seek to
18 have litigated in this federal court. Because a state civil actions
19 is now pending in the state court involving the same issues and the
20 construction to be given a city ordinance , this federal action must
21 be dismissed for the following reasons:
22 Re : Statutory Construction.
28 ( 1 ) The subject of this action is a city ordinance which
is before a state court for its initial
24 interpretation. The only question before this court
is whether the city ordinance is unconstitutional on
25 its face and could not be rendered constitutional by
any decision of the state court. Stecher v. Askew,
26 432 F. Supp. 997 at 999 . The answer to that
question requires a dismissal .
27
(2 ) A federal court lacks jurisdiction to
28 authoritatively construe state legislation. U .S . V.
37 Photographs, 402 U.S. 363 . In contrast, a state
29 court is under a constitutional duty to construe
state legislation in a constitutional manner. See
80 People ex rel. Busch v. Projection Room Theater, 17
Ca1 . 3d 55 at 56. The cardinal principle of
81 statutory construction in such matters is to save
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. 5 ,00 SO.SECOND ST•.r.o.sox eas
RENTON. WASHINGTON 98057
t55-B67E
•
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 ,
8 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 OF- DEFENDANTS ' MOTION TO WARREN & KELLOGG, P.S.
DISMISS COMPLAINT PURSUANT TO F.R.C.P. ATTORNEYS AT LAW
SECTION 12 (b) (1 ) AND 12 (b) (6 ) P. 6 ,00 SO.•ECOND ST..P.O.■OX•SS
RENTON. WASHINGTON 98067
Y55-6676
1 of the state court.
2 This rule of law was concisely expressed by the United States
3 District Court, M. D. Florida , Tampa division in Stecher v. Askew,
4 432 F.Supp. 997 at 999 ( 1977 ) :
6 "While as a general rule a State Supreme Court may
construe a statute which appear unconstitutional on its face
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 attempted, may be mi possible. Under
8 the facts alleged in the complaint, the plaintiff has standing
to assert that this statute presents such a situation . The
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 Li any decision of the Florida Supreme
Court. " (Emphasis added ) .
11
12 In short, the federal court has jurisdiction to decide the
18 question of jurisdiction . U.S . v. United Mine Workers of America,
14 330 U.S . 258, 67 S.Ct. 677 , 91 L. Ed . 884 (1974 ) . Where a state
15 statute is susceptible to a construction which will render the
16 statute constitutional , the federal court must find that it has no
17 ' urisdiction to proceed further, and must allow the matter to
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 leeislation. 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
25 highest court of the State has interpreted it. ' Minnesota ex
rel. Pearson v. Probate Court, 309 U.S. 270 , 273 , 60 S.Ct.
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 ) . "
28
29 For the plaintiffs to succeed in this Court, they must
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
DISMISS COMPLAINT PURSUANT TO F.R.C.P. WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
SECTION 12 (b) (1 ) AND 12 (b) ( 6 ) P. 7 100 so.SECOND ST..P.O.SOX eas
RENTON. WASHINGTON 96057
255.6676
1 protections insured by. the Constitution. If there is any saving
2 interpretation which the state court could make , plaintiffs must
8 demonstrate that the state courts will not so construe it. As the
4 Court said in Stecher, supra, at page 999 :
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 in
Chaplinsky. In subsequent proceedings under this statute ,
7 however, there is absolutely no obstacle to the Florida
courts ' further defining the words 'Necessarily incite a
8 breach of the peace ' which were incorporated into this statute )
by State v. Mayhew, 288 So. 2d 243 (Fla. 1973 ) , as meaning
9 'words likely to cause an average addressee to fight. ' Such
construction would save the statute , and the plaintiff cannot
10 demonstrate that the Florida courts will not so construe it. "
(our emphasis. )
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 decided 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 There is a marked difference in the way in which the state and
28 federal courts approach the constitutional issue regarding state
24 legislation. Largely because of the doctrine of separation of
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 Theater, 17 Ca1. 3d 55 at 56, the California Supreme Court noted , in
29 this context, at page 336 :
80 "Furthermore, the United States Supreme Court recently
emphasized within the foregoing context that courts have an
81 obligation to construe statutes in such a way as to avoid
82 MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEFENDANTS ' MOTION TO
WARREN & KELLOGG. P.S.
DISMISS COMPLAINT PURSUANT TO F.R.C.P. ATTORNEYS AT LAW
SECTION 12 (b) (1 ) AND 12 (h) ( 6 ) P. 8 no SO.SECOND ST,P.O.SOX U*S
RLNTON. WASHINGTON 98057
155-8678
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 ,
4 the courts have held that provision for a prior adversary
hearing may be implied by law in otherwise silent statutory
5 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
8 legislation, see U.S . v. 37 Photographs , supra, the end result is
9 certain to differ.
10 That this Court should allow the Washington State courts the
11 .pportunity 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. 2268 , 45 L. Ed . 2d 125 ( 1975 ) ,
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
• 16 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 invalid unless
22 it is not readily subject to a narrowing construction by the
state courts , see Dombrowski v. Pfister, 380 U .S. 479 , 497 , 85
23 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 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
25 the New York courts had ' been assiduous in construing the
statute to avoid invasion of the constitutional protections of
26 speech and press. We, therefore , confidently expect that the
New York courts will apply the statute consistc.rltly 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 :
82 MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEFENDANTS' MOTION TO WARREN & KELLOGG, P.S.
DISMISS COMPLAINT PURSUANT TO F.R.C. P. ATTORNEYS AT LAW
SECTION 12 (b) (1 ) AND 12 (b) ( 6 ) P. 9 too so.SECOND ST..P.O.SOX Si.
RENTON. WASHINGTON 98057
255-8678
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
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,
16 456 P. 2d 317 (Wash. 1969 ) . That issue is more properly a matter
16 for the state court. In a recent statement confirming the
17 importance of the " statutory construction" factor and the right of
18 state courts to interpret city ordinances, the U.S. Supreme Court
19 in Metromedia, Inc. v. San Diego, U.S. , 69 L. Ed . 2d 800
20 (July 2, 1981 ) ( involving an appeal of a city ordinance after
21 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
25 opinion announcing the judgment of the Court at page 823 , fn . 26,
26 wherein he addresses the issue of severability and the right of
27 state courts in that regard :
28 "Although the ordinance contains a severability clause ,
determining the meaning and application of that clause are
29 properly responsibilities of the state courts. See Dombrowski
v. Pfister, 380 U .S . 479, 497 , 14 L.Ed . 2d 22 , 85 S.Ct. 1116
80 ( 1965 ) ( 'The record suffices . . . to permit this Court to
hold that, without the benefit of limiting construction , the
$1 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 & KELLOGG, P.S.
ATTOANETS AT LAW
SECTION 12 (b) (1 ) AND 12 (b) (6 ) P. 10 100 10.SECOND ST.,►.O.■0X SSG
RENTON. WASHINOTON 95057
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. ' ) ; Dorchy 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 thel
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 I I
15 THE BASIC PRINCIPLES OF FEDERALISM AND COMITY
EXPRESSED TN 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 l!AS 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 & KELLOGG, P.S.
DISMISS COMPLAINT PURSUANT TO F.R. C. P. ATTORNEYS AT LAW
SECTION 12 (b) ( 1 ) AND 12 (b) ( 6 ) P. 11 100 SO.SECOND ST.,P.O. sox SIG
RENTON. WASHINOTON 98057
255-8678
� I
1 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.
5 22 , 1977 ) and Trainor v. Hernandez , 431 U.S. 434 , 52 L. Ed . 2d 486 ,
6 496, 97 S.Ct. 1911 (May 31 , 1977 ) and distinguished in Ohio Bureau
7 of Employment Services v. Hodory, supra. In his dissent in Judice,
8 Justice Stewart noted a significant difference between Pullman
9 abstention and Younger-Huffman abstention, at pg . 348 :
10 " . . .Both types of ' abstention ' of course , serve the
common goal of judicial restraint as a means of avoiding undue
11 federal interference with state goals and functions. But
there is a significant difference in result between the two .
12 Under Pullman abstention, the federal court may retain
jurisdiction pending state-court interpretation of an
18 ambiguous statute , while under Younger it may not. " (Our
emphasis. )
14
16 See also Trainor v. Hernandez , 431 U.S. 434 , 445 , 52 L. Ed . 2d 486 ,
16 496 , 97 S.Ct. 1911 (May 31 , 1977 ) and Moore v. Sims, 442 U .S . 415 ,
17 430, 60 L.Ed . 2d 994 . 1007 , 99 S.Ct. 2371 (June 11 , 1979 ) , citing
18 the Trainer v. Hernandez text noted above , in holding that the
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
21 confront the State with a choice of engaging in duplicative litigation,
thereby risking a temporary federal injunction, or of interrupting its
22 enforcement proceedings pending decision of the federal court at some
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
26 actions is readily apparent. This disruption of suits the State in its
sovereign capacity, when combined with the negative reflection on the
27 State's ability to adjudicate federal claims that occurs whenever a federal
court enjoins a pending state proceeding, leads us to the conclusion that
28 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 lay 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 & KELLOGG. P.S.
ATTORNEYS AT LAW
SECTION 12 (b) (1 ) AND 12 (b) ( 6 ) P. 12 100 SO.SECOND ST..P.O.SOX SES
RENTON, WASHINGTON 98057
1 principles of Younger-Huffman acted as a bar.
2 While the language of the Court in Huffman v. Pursue, Ltd. ,
3 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?
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 I
12 action in the state court finds support in the rationale expressed
18 in Allen v. McCurry, U. S. , 66 L.Ed . 2d 308 , 101 S . Ct.
14 (Dec. 9 , 1980 ) . In Allen et al. v. McCurry, supra, a majority of
15 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
23 the constitutional claim, See Allen et al. v. McCurry, supra, at
24 page 317 :
25 " . . .To the extent that it did intend to change the
balance of power over federal questions between the state and
26 federal courts, the 42d Congress was acting in a way
thoroughly consistent with the doctrines of preclusion. In
27 reviewing the legislative history of § 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 unwilling to protect federal rights. 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 too SO.SECOND ST.,P.O. BOX 616
RENTON. WASHINOTON 98057
255.8678
1
1
1 (Our emphasis. )
2 See also, Patsy v. Florida International University, et al. , 634
8 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 ,
5 1982 . In other words , it can no longer be claimed that every
6 person asserting a federal right is entitled to one unencumbered
7 •pportunity to litigate that right in a federal district court, at
8 rage 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 one unencumbered
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 jurisdiction of the federal district courts to the wisdom of
Congress . And no such authority is to be found in § 1983
' 14 itself . " (Our emphasis. )
16 It would seem, therefore, that the constitutional rule must
16 evolve that, as to the federal civil rights claims herein which do
17 not qualify under the exception of Huffman, supra, and which
18 interfere with the zoning power and the sovereign right of a state
19 to litigate zoning matters in its own judicial system, the party
20 must 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 j
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
25 state has waived its privilege under the llth Amendment, Hans v.
26 Louisiana, supra; Ohio Bureau of Employment v. Hodory , supra; Moore
i
27 v. Sims , supra, at 429 , 60 L.Ed. 2d at 1007 ; Samuels v. Mackell , 401j
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.
ATTORNEYSAT LAW
SECTION 12 (b) (1 ) AND 12 (b) (6 ) P. 14 goo so,SECOND
rT.,P.O.SOX ea•
RICHTON, WASHINGTON 95057
!ES•6678
1 III
HAVING FAILED TO EXHAUST THEIR ADMINISTRATIVE
2 REMEDY IN THE STATE ZONING PROCESS, PLAYTIME
3 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
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.
10 Palm Avenue Books , 115 Cal .App. 3d 134 , 171 Ca1 .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
15 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 movie 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
24 variance prior to the commencement of such specific land use .
25 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
DISMISS COMPLAINT PURSUANT TO F.R.C. P. WARREN & KELLOGG. P.S.
SECTION 12 (b) (1 )- AND 12 (b) ( 6 ) P. 15 ATTORNEYS AT LAW
100 SO.SECOND ST..P.O.SOX SIG
RENTON, WASHINGTON 96O77
YES-e678
•
1 en banc, 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
5 Circuit 'has not gone so far' as to infer a blanket no - exhaustion -
6 under - any - circumstances rule from the Supreme Court cases .
7 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
16 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-
22 tion of the provisions of this zoning ordinance .
23 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 .
28 DATED: February 22 , 1982 .
29 . c
80 DANI KE LLO GG
of Warren. & 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 & KELLOGG. P.S.
ATTORNcr.AT LAW
SECTION 12(b) ( 1) AND 12(b) ( 6) P . 16 'Oo.a..rCONO VT.. P.O.BOX fill
RENTON, WA.NINOTOM 0EO57
255.ee76
_-022.
..� _. Pii1L1r K. WE1GERT .
11.S. MAGISTRATE
1 32 ` 1982
2 v�
3 J. S. DISTRICT JUDGE
4
5
6 UNITED STATES DISTRICT COURT
7 FOR THE WESTERN DISTRICT OF WASHINGTON
8
PLAYTIME THEATRES, INC . , a )
9 Washington corporation, and )
KUKIO BAY PROPERTIES , INC. , ) NO . C82-59M
10 a Washington corporation, )
11 Plaintiff )
NOTICE OF MOTION FOR HEARING
12 ) MOTION TO DISMISS BEFORE
vs ) DISTRICT COURT JUDGE
)
13 THE CITY OF RENTON, a )
14 municipal corporation, )
)
15 Defendants. )
)
16 PLEASE TAKE NOTICE that Defendants ' Motion to set motion
17 to dismiss before United States District Court Judge Walter T.
18 McGovern will be brought on for hearing on March 12, 1982 at
19 9 : 30 A.M. or at such other time as the courtmay hereinafter
20 direct.
21 This Motion is made in conjunction with Defendants '
22 Motion to Dismiss .
23 DATED: February 22, 1982 .
24
25
26 Daniel Kellogg , Att me _ r
Plaintiff
27
28
29
30
31
NOTICE OF MOTION FOR HEARING TO
32 DISMISS BEFORE DISTRICT COURT JUDGE
WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
100 SO.SECOND ST..P.O.SOX IDES
RENTON. WASHINGTON 98067
255-8678
RECEIVED
2 198Z (-j'J! ' r, ,- t.
�\Vr:rcERT
.
2 S. DISTRICT JUDG;
3
4
5
6 UNITED STATES DISTRICT COURT
7 FOR THE WESTERN DISTRICT OF WASHINGTON
PLAYTIME THEATRES, INC. , a )
8 �rcrrv �
Washington corporation, and )
9 KUKIO BAY PROPERTIES, INC . , a )
Washington corporation, ) C82-59M
10 Plaintiffs ) DEFENDANTS ' MOTIORj,KO ' S�tL1GERI'
11 ) HEARING OF MOTION TO MTE
v. ) COMPLAINT BEFORE DISTRICT
12 CITY OF RENTON, a municipal ) COURT JUDGE
13 corporation, et al. , )
Defendants . )
14 )
)
15 COME NOW the Defendants and move the Court for an order
16 setting Defendants Motion to Dismiss Complaint, dated
17 February 22, 1982, before United States District Court Chief
18 Judge Walter T. McGovern.
19 By order of reference, depositive motions herein have
20 been referred to U. S . Magistrate Philip K. Sweigert .
21
Dated: 22, /f82
22
23
24 Daniel Kellogg, Att me
Defendants
25
26
27
28
29
30
31 DEFENDANTS MOTION FOR HEARING OF MOTION
TO DISMISS COMPLAINT BEFORE DISTRICT
32 COURT JUDGE
WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
100 SO.SECOND ST.,P.O.SOX III
RENTON, WASHINGTON 98057
233-8878
RECEIVED
;.1 2 2198 UII....I' K. S\i iIGER1
Z II•S• MAGISTRATE
1 . ,r\__. i t I . ivILUUV�
2 J. S. DISTRICT JUDGE
3
4
5
6 UNITED STATES DISTRICT COURT RECEIVED
FOR THE WESTERN DISTRICT OF WASHINGTON
7
8 PLAYTIME THEATRES, INC. , a )
Washington corporation, and ) PHILIP K. SWEIGERT
9 KUKIO BAY PROPERTIES , INC . , ) NO . C82-59M U.S. MAGISTRATE
a Washington corporation, )
10 )
Plaintiffs ) ORDER TO HEAR MOTION TO
11 ) DISMISS COMPLAINT BEFORE
12 vs ) DISTRICT COURT JUDGE
CITY OF RENTON, a municipal )
13 corporation, et al. , )
)
14 Defendants . )
15 )
THIS MATTER having come on regularly for hearing upon the
16
Defendants motion to set a hearing upon' defendants motion to
17
dismiss before United States District Court Judge, Walter T.
18
McGovern, and the court having considered the files and
19
records herein and being fully advised in the matter, it is
20
ORDERED as follows :
21
1 . Defendants motion to dismiss complaint pursuant
22
to F.R.C. P. 12(b) (1) and 12(b) (6) is set for hearing before
23
United States District Court Judge, Walter T. McGovern on
24
March 12, 1982 at 9 : 30 A.M. or at such other time as the court
25
may direct.
26
27 Dated:
28
29 Walter T. McGovern
30 District Court Judge
31
32 ORDER
WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
100 SO.SECOND ST..P.O.SOX lie
RENTON. WASHINGTON 98057
255.8678
R•
ECEIvED
713 2 2 1982 ,,
I'HILIP Ii
dVALI ttt I. iVicbuvL.:, U.S. SII•r IGERT
LIAGISTRATE
2 U. S. DISTRICT JUr y 7
3 <; � ) ^
4
5
6 UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
7
PLAYTIME THEATRES, INC. , a )
8 Washington corporation, and )
KUKIO BAY PROPERTIES, INC. , ) NO . C82-59M
9 a Washington corporation, )
10 Plaintiffs ) NOTICE OF APPLICATION FOR
) PERMISSION TO PARTICIPATE
11 vs )
12 CITY OF RENTON, a municipal )
corporation, et al . )
13 )
Defendants . )
14 )
15 PLEASE TAKE NOTICE that Defendants Application for
16 Permission to Participate will be brought on for hearing
17 on March 12, 1982 at 9 : 30 A.M. or at such other time as the
18 court may hereinafter direct.
19
DATED: February 22, 1982
20
21 /1;41-:1--'1e741?Gro-0.40..v/
22 Daniel Kellogg
23
24
25
26
27
28
29
. 30
31
32 NOTICE OF APPLICATION FOR
PERMISSION TO PARTICIPATE
WARREN & KELLOGG. P.S.
ATTORNEY.AT LAW
100 f0./ECONO ST..P.O.SOX Ill
RENTON. WASHINGTON 98057
255-8878
-0
-r,3 2 .G 198Z
tl.S. LiAGIS Eq
1 -IRATE
2 S. DIS RIC;
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
9
10PLAYTIME THEATRES , INC . , a )
Washington corporation, and )
11KUKI0 BAY PROPERTIES , INC. , )
a Washington corporation, ) NO. C82-0059M
12 )
Plaintiffs , )
-13 )
vs . ) APPLICATION FOR
' 14 ) PERMISSION TO PARTICIPATE
THE CITY OF RENTON, et al . , )
15 )
Defendants . )
16
17 COME NOW the Defendants , by their counsel of record, and
18nove the Court for permission to allow JAMES J . CLANCY to participate
19as counsel in this matter in association with WARREN & KELLOGG, P . S . ,
26dttorneys of record for Defendants , and represent as follows :
21 1 . MR. CLANCY is admitted to practice before the Supreme
22 ourt of the United States .
23 2. MR. CLANCY neither resides nor maintains an office for
24the practice of law in the Western District of Washington.
25 3. MR. CLANCY shall be joined in appearance and participation
26herein by LAWRENCE J . WARREN, DANIEL KELLOGG, MARK E . BARBER and
27DAVID M. DEAN, of Warren & Kellogg, P . S . , Attorneys of record for
28Defendants , all of whom maintain offices for the practice of law
29and are admitted to practice before this Court , and who shall sign
30a11 pleadings prior to filing and otherwise comply with CR 10(e) .
31 4. MR. CLANCY has limited his practice to principally matters
32relating to litigation of First Amendment rights , and claims
WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
APPLICATION TO PARTICIPATE - 1 too SO.SECOND ST..P.O.SOX 11211
RENTON, WASHINGTON 98057
255-8678
A
A •
•
i relating thereto , and as a consequence , has acquired an expertise
2shared by few people . MR. CLANCY has represented other municipal
3corporations involving claims similar to those herein.
4 5 . MR. CLANCY understands that he is charged with knowledge
5of and compliance with all applicable local rules .
6 6. MR. CLANCY has not been disbarred or formally censured
7by a Court of record or by a state bar association. There are no
8pendipg disciplinary proceedings against MR. CLANCY.
9 7 . The undersigned attorney for the Defendants represents
10that he is authorized and will be prepared to handle the matter ,
ilincluding the trial thereof, in the event M. CLANCY is unable
12to be present upon any date assigned by the Court .
13 WHEREFORE , the Defendants pray that the Court grant leave
14for JAMES J. CLANCY to participate in this case as counsel for
15Defendants in association with Warren & Kellogg, P. S . , attorneys
16of record for Defendants .
17 DATED: February 19 , 1982 .
18
19
G f
UKETTft4IIPM
20 of Warren & Kello . .
21 Attorneys for Defendants
22
23
24
25
26
27
28
29
30
31
32
APPLICATION TO PARTICPATE - 2 WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
100 SO.SECOND ST.,P.O.Sox Ste
RENTON, WASNINOTON 98057
255-8678
• RECEIVED
2 . i98L PHILIP I:. S\;':IG. RT
l).S. r nGI`� TTAE U• ♦
1
2 S. DISTRICT JUDO'
3
4
5
6 UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
7
PLAYTIME THEATRES, INC. , a )
8 Washington corporation, . and )
KUKIO BAY PROPERTIES , INC . , )
9 a Washington corporation, ) NO. C82-59M
10, Plaintiffs , )
11 vs ) ORDER GRANTING LEAVE TO
PARTICIPATE
)
12 CITY OF RENTON, a municipal )
corporation, et al. )
13 )
Defendants . )
14 )
15 THIS MATTER having come on regularly upon the Defendants
16 Application for Permission to allow JAMES J. CLANCY to
17 participate as counsel in this matter in association with
18 Warren & Kellogg, P. S . , attorneys of record for Defendants ,
19 and it appearing that the application complies with General
20 Rule 2 (d) of the Local Rules for the Western District of
21 Washington, and the court having considered the records and
22 files herein and being fully advised in this matter, it is
23 hereby ORDERED as follows :
24 1 .. Leave is granted for JAMES J. CLANCY to participate
25 in this case as counselfor defendants in association with
26 Warren & Kellogg, P. S . , attorneys for Defendants .
27 Dated:
28 Walter T. McGovern
29 District Court Judge
30
31
32 ORDER
WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
100 SO.SECOND ST.,P.O.BOX Ill
RENTON, WASHINGTON 98057
258-8878
;1. RECEIVED
2 ' 1982
PI;IL!I' I. s V
DISTRICT in."r); U.S. I,^_A CIS1'pA F
2
3
4
5
6 UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
7
PLAYTIME THEATRES , INC. , )
8 a Washington corporation, )
and KUKIO BAY PROPERTIES , )
9 INC. , a Washington ) NO. C82-59P4
corporation, )
10 ) DESIGNATION OF PERSON TO
Plaintiffs ) TESTIFY AT DEPOSITION
11 )
12 vs )
CITY OF RENTON, a municipal )
13 corporation, et al )
14 )
)
15 TO : PLAYTIME THEATRES, INC. , a Washington corporation, and
KUKIO BAY PROPERTIES , INC . , a Washington corporation;
16
AND TO : JACK R. BURNS, Attorney for Plaintiffs
17
18 PLEASE TAKE NOTICE that the Defendants designate
19 DAVID R. CLEMENS, Director of Policy Planning of the City of
20 Renton, to testify concerning the designated matters identified
21 in the Notice of Deposition Upon Oral Examination directed to
22 the Defendants dated February 17, 1982 .
23 DATED: February 22, 1982
24
25
26 Daniel Ke opg
27
28
29
30
31
32 DESIGNATION OF PERSON TO
TESTIFY AT DEPOSITION
WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
100 SO.SECOND ST..P.O.BOX 4125
RENTON, WASHINGTON 98057
155-8678
C, • RECEIVED
'Lo 7 r•. 4 ',
•
l'III!.'.:' L. \7 2IC RT.
3 2 21982 U.S. IAACI:,TRATF
12
'_'. S. DISTRICT J fl'
3
4
5
6 UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
7 PLAYTIME THEATRES , INC. , a )
Washington corporation, and )
8 KUKIO BAY PROPERTIES , INC . , )
NO . C82-59M
9 a Washington corporation, )
)
10 Plaintiff CERTIFICATE OF SERVICE
11 vs )
12 CITY OF RENTON, a municipal )
corporation, et al . )
13 )
Defendants . )
14 )
15 I certify that I served a copy of the following documents
16 on the parties to this action on February 22, 1982 :
17 1 . Notice of Motion to Dismiss
18 2. Motion to Dismiss Complaint Pursuant to
F.R.C. P. 12(b) (1) and 12(b) (6)
19
3 . Memorandum of Points and Authorities in
20 Support of Defendants Motion to Dismiss
Complaint
21
4. Notice of Motion for Hearing Motion to Dismiss
22 Before District Court Judge
23 5 . Defendants Motion for Hearing Motion to Dismiss
Complaint Before District Court Judge
24
6. Order to Hear Motion to Dismiss Complaint Before
25 District Court Judge
26 7 . Notice of Application for Permission to
Participate
27
28 8 . Application for Permission to Participate
•
29 9. Order Granting Leave to Participate
30 10 . Letter to Judge McGovern and Magistrate Sweigert
dated February 22, 1982
31 11 . Designation of Person to Testify at Deposition
32 by mailing copies , postage prepaid, to them at the following
CERTIFICATE OF SERVICE WARREN & KELLOGG, P.S.
P. 1 ATTORNEYS AT LAW
100 SO.SECOND ST..P.O.SOX Ste
RENTON, WASHINGTON 98087
255-8578
w
1 address :
2 Jack R. Burns
Hubbard, Burns & Meyer
3 10604 N. E . 38th Place, Suite 105
Kirkland, Washington 98033
4
5 I certify under penalty of perjury that the foregoing
6 is true and correct.
7 Dated: February 22, 1982
8 (::;- ,;1)14:t,e
9 Daniel Kellogg
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32 CERTIFICATE OF SERVICE
P. 2
WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
100 SO.SECOND ST..P.O.SOX IRS
RENTON. WASHINGTON 98057
255.8878
•
•
•
• 9 i93
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 FOR THE WESTERN DISTRICT OF WASHINGTON
10 PLAYTIME THEATRES , INC . , a )
Washington corporation , and KIJKI0 )
11 ' BAY PROPERTIES , INC. , a Washington) ,
corporation , ) NO. C82-59M
12 )
Plaintiffs , )
13 vs . ) AMENDED AND SUPPLEMENTAL
) COMPLAINT FOR DECLARATORY
14 THE CITY OF RENTON , ) JUDGMENT AND PRELIMINARY
) AND PERMANENT INJUNCTION
15 and )
)
16 THE HONORABLE BARBARA Y. SHINPOCII ,)
as Mayor of the City of Renton , )
)
17 and )
18 )
EARL CLYMER, ROBERT HUGHES , NANCY )
19 MATHEWS , JOHN REED, RANDY ROCKHILL)
RICHARD STREDICKE AND TOM TRIMM, )
20 as members of the City Council of )
the City of Renton ; serve on : )
21 DELORES H. MEAD, City Clerk, )
22 )
and )
23 )
JIM BOURASA, as acting Chief of )
24 Police of the City of Renton , )
)
25 )
Defendants , jointly and )
26 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
Amended and Supplemental ATTORNEYS ArLAW
Complaint Hubbard, Burns & Meyer
Page 1 A PROFESSIONAL SERVICE CORPORATION
I0604 N.E. 38th Place,Suite 105
Kirkland,Washington 98031
(20(,)828 1616
•
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 , 19R1 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 he applied to the p,p 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 he applied to the plaintiffs . The allegations to be
19 set forth in the premises establish that there are presented
20 questions of actual controversybetween 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 & Meyer
Page 2 A PROFESSIONAL SERVICE CORPORATION
101,04 N.L. 3nth Place,Suite IOS
Kirkland,Washington 98033
12O1,)11214 II,16
1 and costs , and arises under the Constitution
laws or treaties of the United States .
2
as well as 28 USCA §1343 (3) which provides in pertinent part that
3
the district courts shall have original jurisdiction of any civil
4
action authorized by law to he commenced by any person :
5
To redress the deprivation , under color of any
6 any state law, statute , ordinance , regulation ,
custom or usage , of any right , privilege or
7 immunity secured by the Constitution of the
United States . . . "
8
and the organic law which further authorizes the institution of
9
this suit founded on 42 USCA §1983 , which provides in pertinent
10
' part as follows :
11
Every person who , under color of any statute ,
12 ordinance , custom or usage , of any state or
territory subjects , or causes to he subjected ,
13 any person of the United States or other per-
son within the jurisdiction thereof to the
14 deprivation of any rights , privileges or
immunities secured by the Constitution and
15 the laws , shall be liable to the party 16 in-
jured in an action at law, sued in equity,
or other proper proceeding for redress .
17 Plaintiffs ' prayer "for declaratory relief is founded on Rule
18 57 of the Federal Rules of Civil Procedure , as well as 28 USCA
19
§2201 , which provides in pertinent part :
20 . . . Any court of the United States , upon the
21 filing of an appropriate pleading , may declare
the rights and other legal relations of any
22 interesed party seeking such declaration , •
whether or not further relief is or could be
23 sought . . .
24 The jurisdiction of this court to grant injunctive relief is
25 conferred by 28 USCA §2202 , which provides :
26 Further necessary or proper relief based upon
a declaratory judgment or decree may be granted
27 after reasonable notice and hearing against any
adverse party whose rights have been determined
28 by such judgment .
29 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 ATTORNEYS AT LAW
Complaint Hubbard, Burns & Meyer
Page 3 A PROFESSIONAL SERVICE CORPORATION
10604 N.E.38th Place,Suite 105
• Kirkland,Washington 98013
(2061 828-3636
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
8 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 he 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
Amended and Supplemental ATTORNEYS AT LAW
Complaint Hubbard, Burns & Meyer
Page 4 A PROFESSIONAL SERVICE CORPORATION
10604 N.E. 38th Place,Suite 105
Kirkland,Washington 98033
(206)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. 18th Place,Suite 105
Kirkland,Washington 980:11
(206)820-161
•
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 he 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
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
ao
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 PROFESSIONAL SERVICE CORPORATION
10(414 N.E. 38th Place,Suite 105
Kirkland,Washington 98011
1200 8271-36 18
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 educa-
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, Bu?7LS & Meyer
Page 7 A PROFESSIONAL SERVICE CORPORATION
10604 N.F:. 48th Place,Suite 105
Kirkland,Washington 911035
12010 828 1616
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 he
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 he 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 & Meyer
Page 8 A PROFESSIONAL SERVICE CORPORATION
10604 N.E. 38th Placer,Suite 105
Kirkland,Washington 98033
(206)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
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 he 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
19 applied to plaintiffs and a motion picture theatre , they are
20 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
26 plaintiffs ' rights under the First , Fifth and Fourteenth Amendments
27
to the Constitution of the United States . Interstate Circuit v.
28
Dallas , 390 U. S . 676 (1968) and Shuttlesworth v. City of
29
Birmingham, 394 U. S . 147 (1969) .
30
31
Amended and Supplemental ATTORNEYS AT LAW
Complaint Hubbard, Burns & Meyer
Page 9 A PROFESSIONAL SERVICE CORPORATION
10604 N.E. 38th Place,Suite 105
Kirkland,Washington 98033
(2061 828-3636
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 he 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
Complaint Hubbard, Burns & Meyer
Page 10 A PROFESSIONAL SERVICE CORPORATION
10604 N.E. 38th Place, Suite 105
.irkl,intl,Washington 98011
1200 8211-16 16
1 Further , the conduct of the defendants and their agents , servants ,
2 employees and/or attorneys and others , acting under their direction
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 he , repugnant
18 to the Constitution of the United States .
19 23 . The City of Renton zoning ordinance designated herein
20 as Ordinance No. 3526 , is clearly repugnant to the First , Fourth ,
21 Fifth and Fourteenth Amendments to the Constitution of the United
22 States as written and as threatened to he applied , for the follow-
23 ing reasons : •
24
(a) Said ordinance is void for vagueness in that it
25 fails to establish by its terms , definitive standards ,
26 criteria and/or other controlling guides defining
27 words , inter alia "other religious facility or institu-
28 tion" in Section I I A( ) (4) or "distinguished or charac-
29 terized byemphasis on matter depicting ,an P 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 PROFESSIONAL SERVICE CORPORATION
10604 N.E. 38th Place,Suite 105
Kirkland,Washington 98033
(206)828-3636
1 Section I (1) of said ordinance , as well as the words
2 "erotic touching" as used in Section I(2) (C) ; and as
3 such is a deprivation under color of state law of
4 plaintiffs ' right to due process under the First , Fifth
5 and Fourteenth Amendments to the Constitution of the
6 United States .
7 (b) Said ordinance is void for impermissible over-
8 breadth by means which sweep unnecessarily broadly and
9 thereby invade the area of protected freedoms in that
10 the same sets forth standards at variance with those
11 minimum standards prescribed by the Supreme Court of
12 the United States , in connection with the exercise of
13 First Amendment rights , and in particular , those
14 provisions which set forth the "specified anatomical
15 areas" and "specified sexual activities" in Section
16 I (2) and Section I (3) .
17
(c) Said ordinance is further void for impermissible
18 overbreadth and deprives plaintiffs of due process and
19 equal protection of the law through the arbitrary and
20 uncontrolled power conferred by the enactment of said
21 ordinance to the defendants ' enforcement of zoning laws
22 for the exercise of otherwise clear First Amendment
23 rights and therefore the same, is invalid under the
24
First and Fifth Amendments to the Constitution of the
25
United States made obligatory on the States under the
26
due process provisions of the Fourteenth Amendment .
27
(d) Said ordinance , lacking precision and narrow
28
specificity in the standards to be employed by defen-
29
dants in the operation of their legislative power to
30
enact zoning laws , constitutes a prior restraint under
31
Amended and Supplemental ATTORNEYS AT LAW
Complaint Hubbard, Burns & Meyer
Page 12 A PROFESSIONAL SERVICE CORPORATION
10604 N.E. 38th Place,Suite 105
Kirkland,Washington 98033
(206)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, capricious
6 and uncontrolled discretion on the part of defendants
7 herein , their agents , servants and employees .
8 (e) Said ordinance is void in that it fails , by its
9 terms , to establish procedural safeguards to assure a
10 prompt decision on the challenge to the arbitrary
11 zoning classification , and if a zoning challenge is
12 denied , the ordinance fails by its terms to provide for
13 a prompt final judicial review to minimize the deter-
14 rent effect of an interim and possibly erroneous zoning
15 classification under procedures which places the burden
16 on plaintiffs to both expeditiously institute judicial
17
review and to persuade the courts that the activity
18
sought to he 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. 38th Place,Suite 105
Kirkland,Washington 98033
(2061 828-3636
1 (h) Said ordinance is repugnant to the substantive due
2 process provisions of the Fifth and Fourteenth
3 Amendments to the Constitution of the United States
4 because the same permits deprivation of liberty and/or
5 property interests for the exercise of First Amendment
6 rights by unreasonable , arbitrary and capricious means
7 without a showing of a real and substantial relation-
8 ship to any state or city subordinating interest which
9 is compelling to justify state or city action limiting
10 the exercise by plaintiffs of their First Amendment
11 freedoms .
12 ( i) Said ordinance is impermissibly overbroad and
13 repugnant to the procedural due process requirements of
14 the Fifth and Fourteenth Amendments to the Constitution
15 of the United States , in that the same employs means
16 lacking adequate safeguards , which due process demands ,
17 to assure presumptively protected press materials ,
18 sought to be distributed to an interested adult public ,
19 the constitutional protection of the First Amendment .
20
(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
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
(206)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 r_larifi_
6 cation confers on defendants unbridled discretion in
7 the interpretation of that term and as such, is viola-
8 tive of the plaintiffs ' rights under the First , Fifth
9 and Fourteenth Amendments to the Constitution of the
10 United States .
11 ( 1) Said ordinance and particularly Section II (A) as
12 it purports to establish restrictions , requirements and
13 conditions for an alleged adult theatre imposes bur-
14 dens , restrictions and conditions that are not justi-
15 fied by any compelling state interest and as such , the
16 classification is an invidious and arbitrary discrimi-
17 nation as to a class and as such, is a denial. of
18 plaintiffs ' rights under the Fourteenth Amendment to
19 the Constitution of the United States , particularly
20 where , as here , protected First Amendment activity is
21 involved .
22
(m) The plaintiffs will suffer immediate and substan-
23 tial economic harm if said ordinance is applied to them
24 and the result of the application of said ordinance to
25 the activities of the plaintiffs will result in a for-
26 feiture of substantial business interests and assets .
27
28 24 . Plaintiffs herein aver that their rights afforded under
29 the First , Fourth , Fifth , Sixth and Fourteenth Amendments to the
ao
Constitution of the United States have been violated by said
31 defendants in the enactment of a wholly unconstitutional ordinance ,
Amended and Supplemental ATTORNEYS AT LAW
Complaint Hubbard, Burns & Meyer
Page 15 A PROFESSIONAL SERVICE CORPORATION
10604 N.E. 38th Place, Suite 105
Kirkland,Washington 98033
(206)828-3636
•
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
such as , inter alia
20 * * * * *
21
Special Permits : Recognizing that there are certain
22 uses of property that may be detrimental to the public
health , safety, morals and general welfare . . .
23
* * * * *
24
The purpose of a conditional use permit shall be to
25 assure , by means of imposing special condition and
requirements on development , that the compatibility of
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 AT LAW
Complaint Hubbard, Burns & Meyer
Page 16 A PROFESSIONAL SERVICE CORPORATION
10604 N.E. 38th Place,Suite 105
Kirkland,Washington 98033
(206)828-3636
•
The examiner shall have the right to limit the term and
2 duration of any such conditional use permit and may
impose such conditions as are reasonably necessary and
3 required .
4 * * * *
5 The conditions imposed shall be those which will
6 reasonable assure that nuisance or hazard to life or
property will not develop .
7 * * * * *
8 The examiner may, after a public hearing , permit the
9 following uses in districts from which they are pro-
hibited by this Chapter where such uses are deemed
10 essential or desirable to the public convenience or
welfare and are in harmony with the various elements or
11 objectives of the comprehensive plan .
* * * *
12
13 The hearing examiner shall he empowered to approve
conditionally approve or disapprove said conditional
14 use permit applications based on normal planning
considerations , including , but not limited to the
15 following factors : (a) suitability of site ; (b)
conformance to the comprehensive plan ; (c) harmony with
16 the various elements or objectives of the comprehensive
plan ; (d) the most appropriate use of land through the
17 city; (e) stabilization and conservation of the value
of property; . . . and prevention of neighborhood deteri-
18 oration and blight ; (o) the objectives of zoning and
planning in the community; (p) the effect upon the
19 general city' s welfare of this proposed use in relation
to surrounding uses in the community .
20
* * * * *
21
That the granting of the variance will not be materi-
22 ally detrimental to the public welfare or injurious to
the property improvements in the vicinity and zone in
23 which subject property is situated .
24 * * * *
25 That approval shall not constitute a grant of special
privilege inconsistent with the limitation upon uses of
26 other properties in the vicinity and zone in which the
subject property is situated .
27
* * * * *
28
That the approval is determined by the examiner or
29 Board of Adjustment is a minimum variance that will
accomplish the desired purpose .
30
31
Amended and Supplemental ATTORNEYS AT LAW
Complaint Hubbard, Burns & Meyer
Page 17 A PROFESSIONAL SERVICE CORPORATION
10604 N.E. 38th Place,Suite 105
Kirkland,Washington 98033
(206)828-1636
•
1 and as such are a deprivation under color of law of
2 plaintiffs ' right to due process under the First , Fifth
3 and Fourteenth Amendments to the Constitution of the
4 United States . Said provisions are void for impermis-
5 sihle 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 ATTORNEYS AT LAW
Complaint Hubbard, Burns & Meyer
Page 18 A PROFESSIONAL SERVICE CORPORATION
10604 N.E. 18th Place,Suite 105
• Kirkland,Washington 98033
(206)1128-3636
•
•
1 been , under the facts alleged herein , susceptible to
2 arbitrary, capricious and uncontrolled discretion on
3 the part of the defendants herein , their agents ,
4 servants and employees .
5 (d) Said provisions are void in that they fail by
6 their terms, to establish procedural safeguards to
7 assure a prompt decision on a challenge to the capri-
8 cious denial of a special permit , conditional use or
9 variance . The provisions fail by their terms to pro-
10 vide for a prompt final judicial review to minimize the
11 deterrent effect on an interim and possibly erroneous
12 and arbitrary denial of a zoning special permit , condi-
13 tional use or variance and , thus , the burden is on
14 plaintiffs to both expeditiously institute judicial
15 review and to persuade the courts that the activity
16 sought to be pursued and the procedures and ordinances
17 employed to prohibit the same are without the ambit of
18 the First Amendment .
19
V. RELIEF SOUGHT
20
21 27 . Plaintiffs are entitled to and desire that this Court
22 enter a declaratory judgment , declaring Ordinance No . 3526 to he
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
26 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 105
Kirkland,Washington 98033
(206)828-3636
1 1 . That defendants he 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 he rendered declaring
5 Ordinance No . ' 3526 to he unconstitutional as written , in whole
6 and/or in part , and that this Court further declare the ordinance
7 to be unconstitutional in its threatened application to the
8 plaintiffs .
9 3 . That a Preliminary Injunction issue from this Court upon
10 hearing , restraining defendants and their agents , servants ,
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 .
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 AT LAW
Comp] aint Hubbard, Burns & Meyer
Page 20 A PROFESSIONAL SERVICE CORPORATION
10604 N.E. 38th Place,Suite 105
Kirkland,Washington 48033
(2061 828-1636
1 6 . And for such other and further relief as may he
2 appropriate under the circumstances of this case .
3 DATED this day of February, 1982 .
4 Respectfully submitted ,
5 HUBBARD, BURNS & MEYER
6
By ( , 1 , \. t
7 Jack. 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.
210
21 2. That affiant is one of the attorneys for said
22 corporations . Affiant further states that he is authorized to
23 speak on their behalf.
24 3 . That said corporations are the plaintiffs in the within
25 proceedings .
26 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 SERVICE CORPORATION
10604 N.E. 38th Place,Suite 105
Kirkland,Washington 98031
(2061 828-1636
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 .
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 /
19 r o(tary 4. CP l is in and TiT the
20 State of W hington residing
at , . r.'' ..ir,%
21
22
23
24
25
26
27
28
29
30
31
Amended and Supplemental ATTORNEYS AT LAW
Complaint Hubbard, Burns & Meyer
Page 22 A PROFESSIONAL SERVICE CORPORATION
10604 N.E. 38th Place,Suite 105
Kirkland,Washington 9801.E
(206)828-1616
your Vr IY%.i I lilUN� 3
:':LINTY Of hlritt
1
I..�.�..LQt.'C::a...}1....(1.1c!lb City Clerk in and for the City of Renton.
;•ton. do hereby certify ha1-the foregoing Ordinance Is a true and correct
.gyp% rl i)r.':nance No.....3:` of the City of Renton. as it appears on file
•n is. ,; cc and do further certify that the same has been published according •
o faw.
'n Witness Whereof I have hepunto set mir bg0 and affixed the seal of th
• !it), of Renton. this
�i _.bay of �C a .L�' &'/
, -4egd .City Clara
CITY OF RENTON , WASHINGTON
ORDINANCE NO . 3 5 2(_
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 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 characters
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 Acti_vit_ies"
(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 arcola ; and
(b) Human male genitals in a discernible turgid state ,
even ,if completely and opaquely covered .
- 1-
Exhibit 1
•
•
SECTION II : There is hereby added a new Chapter to Title
IV (Building Regulations) of Ordinance No . 1628 entitled "Code of
General Ordinances of the City of Renton" relating to adult motion
picture theaters as follows :
A. Adtilt motion picture theaters are prohibited within
the area circumscribed by a circle which has a radius consisting
of the 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 'I') 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 he located , to the nearest point of the parcel of property
or the land use district boundary line from which the proposed land
use is to he separated.
SECTION III : This Ordinance shall be effective upon its
passage , approval and thirty days after its publication .
PASSED BY THE CITY COUNCIL this 13th day of April , 1981
Delores A . Mead, City Clerk
APPROVED BY 'I'llE [MAYOR this 13th day of April , 1981 .
.-BaJ .St..,."eo cile,
Approved as to form: Wi:F ra inpoch , Mayor
'641.re-t1--4-e I.A •,^�+v
awrence J . rren . City Attorney
Date of Publication : May 15, 1981
i 1
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
PLAYTIME THEATRES , )
INC. , et al . , )
) NO. C82-59M
Plaintiffs , )
v. ) CERTIFICATE OF SERVICE
)
THE CITY OF RENTON, )
et al . , )
Defendants . )
I certify that I served a copy of this Amended and Supple-
mental Complaint for Declaratory Judgment and Preliminary and
Permanent Injunction on the parties to this action on February 8 ,
1982 , by mailing copies , postage prepaid , to them at the following
addresses :
Daniel Kellogg
Warren & Kellogg
100 So. Second Street
P.O. Box 626
Renton , Washington 98057
I certify under penalty of perjury that the foregoing is true and
correct .
I )
Jack R. Burns
,
•
I
FILED for RtIcC:J at Request ui
vanw \x.'._Y.S%‘'t.,�1
k.s.L�1. . LL \.__t 1t JJ
Nl.AI. L'lAIh. c.UhIKA,'l
Ihts Contract , made and entered into thin day ,'t
.'anuarv, 1482. between Hobert h. Mckae and Elia C. McKie, herein-
. :ter called "Seller", and Kukio Nay Properties Inc. . a Washington
C" ,.orporation, hereinafter called the "purchaser", WITNESSETH:
C
N?
The seller agrees to sell to the purchaser and the purchaser
:t
r agrees to purchase from the seller the real estate, with the
t
appurtenances and the personal property, situate in King County, f
State of Washington, described in Exhibit "A" attached hereto and
I
by this reference made a part hereof.
The terms and conditions of this contract are as follows
'• ' The purchase price is Eight Hundred Thousand and no/100 Dollars `.
(S800,000.00) . payable as follows: I .
1 . Thirty Two Thousand Five Hundred and no/100 Dollars ! •'
1S32,500.00) upon execution of this agreement , including
purchaser's earnest money, receipt of which is hereby acknowledged.
4,
:•, 2. Promissory Note in the amount of Ninety Thousand and
no/100 Dollars (590.000.00) together with 18% interest on the 'k
k, diminishing balance payable in six (6) monthly payments of Fifteen '%
Thousand Seven Hundred Ninety Seven 27/100 Dollars (515.797.27) `.
each, commencing on February 26, 1982. receipt of which Promissory 4,
L
Note is hereby acknowledged.
3. The balance of Six Hundred Seventy Seven Thousand Five
Hundred and no/100 Dollars ($671,500.00) shall be paid in monthly
installments of Nine Thousand Seven Hundred Twenty and 16/100 ::,::.
Dollars ($9,720.16) or woe at purchaser's option on or before the �� ..
26th day of February, 1982 and on or before the corresponding day ` ?�
} 41
of each succeeding calendar month until the balance of said ,• IYf
1 "1 c IQ
" ,;..
col ^ r`'
1
nummmiummihaimuIIIIIIIIMIIIIIIIIIIIIIIIIIMIIIIIIIIImmIII9
l'
;•utChase pt t.'o shall have horn to
llv paid. fhe entire halan '.• .,t
the purchase price, plus interest , shall he paid b{ on or het ore ten
001 vc.tra plus thirty kii)) days tr,•m the date of closing. The
purchaser further agrees to pay interest on the diminishiny
principal balance of said purchase price at the rate of 122 per
annum from the 2bth day of January, 19b2 which interest shall he
O deducted from each installment payment and the balance of each
C payment applied in reduction of principal.
:D
f11 All payments to be made hereunder shall be made at 13520
N
C N.E. 50th, Bellevue, Washington, or at such other place as the
seller may direct in writing. 1
As referred to in this contract, "date of closing" shall be '
t
January 26, 1982.
1 . The purchaser assumes and agrees to pay before delin- I
!
quency all taxes and assessments that may as between grantor and
e
grantee hereafter become a lien on said real estate; and if by the
l
terms of this contract the purchaser has assumed payment of any '
t
mortgage, contract or other encumbrance, or has assumed payment of }
or agreed to purchase subject to, any taxes or assessments now a
lien on said real estate, the purchaser agrees to pay the same
before delinquency. 1
2. The purchaser agrees, until the purchase price if fully
`` paid, to keep the buildings now and hereafter placed on said real }�"
M estate insured to the actual cash value thereof against loss or
.h
damage by both fire and windstorm in a company acceptable to the a,
seller and for the seller's benefit, as his interest may appear,
Ni
and to pay all premiums therefor and to deliver all policies and
i'
•
`4 renewals thereof to the seller. f :., . ••
3. The purchaser agrees that full Inspection of said real
'
estate has been made and that neither the seller nor his assigns r ;
1 • �Ila �'0, ; ,
,1 . .r.
4h
,` `fit '.
•
•1 •r held t .ury covrn.uit rrs t t•e: lnv he 1 c.nul t t ton ••t any
t• :•t.•vementa thereon not shall the r e s a h rc pu
1 or seller or ;t..
•
,ssi,ns ot either he held to any covenant or agreement for altera-
tions , improvements or repairs unless the covenant or agreement
relied on is eontain •d herein or is in writing and attached to and
^ part-•+••�• A ot this contract .
The purchaser assumes all hazards of damage to or
0
•
C .+etru:tion of any improvements now on said real estate or here-
•
after placed thereon, and ot the taking of said real estate or any
part thereof for public use; and agrees that no such damage,T {
destruction or taking shall constitute a failure of consideration.
In case any part of said real estate is taken for public use, the
portion of the condemnation award remaining after payment of
•
reasonable expenses of procuring the same shall be paid to the
seller and applied as payment on the purchase price herein unless
the seller elects to allow the purchaser to apply all or a portion
of such condemnation award to the rebuilding or restoration of any
improvements damaged by such taking. In case of damage or destruc-
h
tion from a peril insured against. the proceeds of such insurance
s remaining after payment of the reasonable expense of procuring the
same shall be devoted to the restoration or rebuilding of such
i;
•
improvements within a reasonable time, unless purchaser elects that
said proceeds shall be paid to the seller for application on the
purchase price herein.
5. The seller has delivered, or agrees to deliver within 15
days of the date of closing, a purchaser's pclicy of title insur-
ance in standard from, or a commitment therefor, issued by Coulson- •
wealth Title Insurance Company, insuring the purchaser to the full
amount of said purchase price against loss or damage by ceasom of
.,rfi
v rf;
-3- ,«P:
• • :
Bettet In seller's title to said teal estate as .l the Witu of
closing and containing no exceptions other than the following:
a. 1'rtnted general exceptions appearing in said policy
Ioral,
b. Liens or encumbrances which by the terms of this
contract the purchaser is to assume, or as to which the conveyance
hereunder is to be made subject; and
c. Any existing contract under which seller is pur-
chasing said real estate, none of which tor the purpose of this
gparagraph 5 shall be deemed defects the seller's title.
C
x 6. To the extent this contract embraces personal property,
it is the intention of the purchaser to grant and the seller to
hold and retain a security interest in accordance with the Uniterm
{
Commercial Code of the State of Washington until the entire pur-
chase price is paid in full.
7. If seller's title to said real estate is subject to an
existing contract or contracts under which seller is purchasing
said real estate, or any mortgage or other obligation which seller
is to pay. seller agrees to make such payments in accordance with
the terms thereof and to pay said contract in full prior to the
expiration of this contract; and upon default, the purchaser shall
have the right to make any payments necessary to remove the
default, and any payments an made shall be applied to the payments .
next falling due the seller under this contract.
ti
8. The seller agrees, upon receiving full payment of the
purchase price and interest in the manner above s;>ecified, to •
execute and deliver to purchaser a statutory warranty deed to said
real estate, excepting any part thereof hereafter taken for public
use, free of encumbrances except any that may attach after date of `► ` {
closing through any person other than the seller. and subject to sat`' �•
4'
yIe ti '
' t` :,
:
K.' 24.
.::e encumbrances shown in f.xhihit "A", and to execute an: deliver
to purchaser a hill of sale of the personal property embraced in
Schedule "A".
'. Ynless u different date is provided tor herein , the pur-
chaser shall be entitled to possession of said real estate as of
the co,rmencetr.ent at business January 26, 1982, and to retain •
possession so long as purchaser is not in default hereunder. The
purchaser covenants to keep the buildings and other improvements on
Csaid real estate in good repair and not to permit waste and not to
.r
N use, or permit the use of, the real estate for any illegal purpose.
e•.
The purchaser covenants to pay all service, installation or
r
:onstruction charges for water, sewer, electricity, garbage or
other utility services furnished to said real estate after the date
purchaser is entitled to possession.
10. In case the purchaser fails to make any payment herein
provided or to maintain insurance, as herein required, the seller
+ may make such payment or effect such insurance, and any amounts so •
•
paid by the yeller, together with interest at the rate of 12% per `
s
annum thereon from date of payment until repaid, shall be repayable ip'
q
by purchaser on seller's demand, all without prejudice to any other �'
right the seller might have by reason of such default.
' 11. Time is of the essence hereof, and in the event the
) purchaser shall fail to comply with or perform any condition or lc
i
: ''''
ic. agreement hereof promptly at the time and in the manner herein ;;
y
required, the seller may elect at his option either: (a) to declare
all of the purchaser's rights hereunder terminated on thirty (30) » -
days' written notice to the purchaser. all payments made hereunder ` ' •,=
k '
and all improvements placed upon the premises being forfeited to
.4': the seller and seller having the right to re-enter and take poaaea-
sion of the real estate; or (b) to declare the whole amount of the :
1+ ' ✓Y
T
.
.r ,i to t.7c
iX.:,�y Div 'f,,A.1
•
;•urchase money or any part thereof to he due and collectible :At
once and proceed in any manner authorized by law to enforce the
collection of the full balance thus declared due. r
12. Purchaser agrees to pay all reasonable expenses and
tees , including attorney's fees, necessarily incurred in the
collection of any and all installments; tor the enforcement of any
�-�„ and all covenants or for termination of purchaser's rights here-
Cunder and that venue of any action brought hereunder shall be in
(NI King County, Washington.
' C
IN WITNESS WHEREOF, the parties hereto have executed this
4
t.
instrument as of the date first written above.
' it
o
ko er e
e -llama
. El is t . McRae
r
' ' KUKIO POP T ES INC.
#.
r: BY V
y Pres t
1.
Xp-
STATE OF WASHINGTON )
V` COUNTY OF KING ) is
,y
On this llitmc day of January. 1982. personally appeared
before me Robert > Rae and Elia C. McRae to me known to be the
• individuals described herein as Seller. and who executed • within •
instrument as their free and voluntary act and deed for • .uses
and purposes therein mentioned.
GIVEN UNDER MY HAND and official seal the day _ •
-first g '
above written.
tilt r r '' v e. ti c { '
De
e 9f lira matting dint 11:', "tti4
ti, ( r
t r .
,, ..„ i •
a ti
'.Alt. of h%ASHINL.I'oN t
kCiNlY oh AIM;
On this ♦' day of January, 19tl2,a tore ma Rogerpersonally ly appeared
!b4y,et Properties,ger A, uCIes, t,, -e known to be the President of Kuklu
Entire, Inc. . the Purchaser herein described, and who
executed the within instrument on behalf of said corporation as its
tree and voluntary act and dyed for the uses and purposes therein
mentioned.
I:IVEN UNDER yY HAND and official seal the day and v r -
..bove written. Mg s t
For the
V' • a 1 is in
C tate of hashln tdij�d resldinR i
t
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3,
S
t
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.,
ir,lr •:y
VM e' .;,'Jet
. '_ " t
...., ...,,,,,,,,..'it.._'n,...:::2;i6:-.)y.,,:zo:ii..::;.;
r, y,4
� i K iØ
Fq
r
I
t.\NINII "A"
t'AriCEL A.
Lots I and 2. Block b. Smither's Sixth Additf-n to tt.e Town of
Kenton, as per plat recorded in Volume 26 of Plats. Page 47,records of King County;
i'AKCEL B:
C Lot 4 and the West 2 feet of Lot 3, Block 34, Smither's 2nd
3 Addition to the Town of Kenton. as per plat recorded in Volume 10
,. of Plats. Page 28, records of King County; C
6
All situate in the County of King, State of Washington. ,
z l
SUBJECT TO: 1 q,
That certain real estate contract filed under King County Auditor's t. number 780614-0569 dated June 6. 1978 between Irwin Fey, who also appears of record as Irwin John Fey, individually and as personal representative of the Estate of Mildred M. Fey, who also appears of record as Mildred May Fey, deceased; Robert E. Fey and Carol Ann Fey, his, wife; and Gerald Wayne Maris and Helen Maris, his wife.
Sellers; and Roberi B. McRae and Elia C. McRae, husband and wife.
PurThasers, which the seller agrees to pay in full prior to January
26, 1992.
I.
ALSO SUBJECT TO: '',1
" A party wall agreement and the terms and conditions thereof dated
May 25, 1940 recorded under King County Auditor's number 31
062 a t'''
side sewer easement recorded under recording number 31062 060�an
easement disclosed by the plat of said addition and restrictions,
conditions and covenants contained in an instrument recorded under
King County Auditor's number 780614-0569.
•
TOGETHER WITH: %
The personal property and theatre equipment described on Schedule
A" attached hereto and made a part hereof. `
t , aJ
T.
1 Y K:
a
f
•
•
•
.
p
SCHEDULE "A"
Roxy Theatre
•
720 Seats
Projection Booth
Platter System 4
r Projector
Sound Head
Xenon System
S Sound System !
Lenses c •
- Concession Equipment
Bar t
ti Popcorn Machine
Ice Machine
0) Screen and Drapes ,t
t
Air Conditioning System and Heat Pump
ft
Renton Theatre
540 Seats
Projection Booth f '
i Platter System
Projector t`
Sound Head ^,
- Xenon System �/
Sound System
Lenses •
r.
Concession Equipment .r, ► ,"
Bar _
Popcorn Machine -f
t .
Screen :
•1 Air Conditioning System '
•
•
..1 it, A.�
y o r -ta , i ,,; ?::,i • is . l �.
•
i
i
i
a 1
ix.. vx ,. ,r.- . ..Y
1 . _
1
. .
1
1
A
,,
,,,
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4r
4
`,
i
I
STATE OF WASHINGTON
County of King ss
-1 The Director of Records & Elections, King County, State of Washington, and
exofficio Recorder of 1.),-;eds and other instruments, do hereby certify the
foregoing copy has b:en compared with the original Instrument as the same
appears on file and cf record is th. c:ffice,and that the same is a true and perfect
transcript of said original and of the whole thereof.
Witness try band and official seal this E.EB .2 2198,2 day
r z , 19 _ ..
Director of R 8t E ctions
—J eputy
ti `
ATTORNEYS AT LAW
JACK R.BURNS OF COUNSEL
DAVID R.MEYER Hubbard, Burns & Meyer JAMES R. HUBBARD
GLENNA BRADLEY-HOUSE
A PROFESSIONAL SERVICE CORPORATION
February 17, 1982
Daniel Kellogg
Warren & Kellogg, P. S.
P.O. Box 626
Renton, Washington 98057
Re: Playtime Theatres Inc. , et al. vs .
City of Renton et al.
Cause No. C82-59M
Dear Mr. Kellogg:
This will confirm that plaintiffs ' Motion for a Prelimi-
nary Injunction will be heard before Magistrate Sweigert
on March 19, 1982, beginning at 9 :30 a.m.
Very truly yours ,
L
Jack R. Burns
JRB:nr
cc Magistrate Sweigert
Clerk of the Court
• RECEIVED FEB 1 8 1982
Yarrow Bay Office
10604 N.E. 38th Place, Suite 105 • Kirkland, Washington 98033 • (206) 828-3636
w '
-
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8 FOR THE WESTERN DISTRICT OF WASHINGTON
9 PLAYTIME THEATRES, INC . , a )
Washington corporation, et )
10 al. , )
)
11 Plaintiffs , ) NO. C82-59M
vs. )
12 ) NOTICE OF MOTION
THE CITY OF RENTON, et al. , )
13 )
)
14 Defendants . )
15
TO: Clerk of the Court; and
16
TO: The above named defendants ; and
17
TO: Warren & Kellogg, P. S. , their attorneys .
18
PLEASE TAKE NOTICE that plaintiffs ' Objections to the Report
19
and Recommendation of the Magistrate will be brought on for hearing
20
on March . 5 , 1982 at 9 : 30 a.m. , or as soon thereafter as the matter
21
may be heard. Pursuant to Local Rule , the matter will be
22
23 considered without oral argument unless otherwise directed by the
24 Court .
25 DATED this 1 / hday of February, 1982 .
26 HUBBARD, BURNS & MEYER
27 BY t(. t )
28 hack . Burns
Attorney for Plaintiffs
29
30
31
ATTORNEYS AT LAW
Hubbard, Burns & Meyer
Notice of Motion A PROFESSIONAL SERVICE CORPORATION
10604 N.E.38th Place,Suite 105
Kirkland,Washington 98033
(206)828-3636
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8 FOR THE WESTERN DISTRICT OF WASHINGTON
9 PLAYTIME THEATRES, INC. , a )
Washington corporation, et )
10 al. , )
)
11 Plaintiffs , ) NO. C82-59M
vs. )
12 ) CERTIFICATE OF SERVICE
THE CITY OF RENTON, et al. , )
13 )
)14
Defendants . )
15
I certify that I served a copy of this Notice of Motion on
16
the parties to this action on February 17, 1982, by mailing copies ,
17
18 postage prepaid, to them at the following addresses :
19 Daniel Kellogg
Warren & Kellogg
100 So. Second Street
20 P .O. Box 626
21 Renton, Washington 98057
22 I certify under penalty of perjury that the foregoing is true and
23 correct .
24
25 Jac R. Burns
26
27
28
29
30
31
ATTORNEYS AT LAW
Certificate of Service Hubbard, Burns & Meyer
A PROFESSIONAL SERVICE CORPORATION
10604 N.E.38th Place,Suite 105
Kirkland,Washington 98033
(206)828-3636
• 1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
9
PLAYTIME THEATRES , INC . , a )
10 Washington corporation , and KUKIO )
BAY PROPERTIES, INC . , a Washington)
11 corporation , ) NO. C82-0059M
)
12 Plaintiffs , ) REQUEST FOR PRODUCTION
vs . ) OF DOCUMENTS FOR
13 ) INSPECTION AND COPYING
THE CITY OF RENTON, et al . , )
14 )
Defendants . )
15
TO: The City of Renton and all other defendants ; and
16
TO: Larry Warren , attorney for the City of Renton .
17
Pursuant to Rule 34 of the Civil Rules of the Superior
18
Court of the State of Washington , the plaintiffs request that
19
defendants permit the plaintiffs or their agents , and/or attorneys
20
21 to inspect a copy of the documents hereinafter described .
22 "Document" as used herein means any memorandum, report ,
23 study, contract , agreement , chart , graph ,• index , data sheet , data
24 processing card or tape , note , entry, telegrams , letter , advertise-
25 ment , brochure , circular, tape , record , bulletin , paper , book,
26 pamphlet , account , photograph and any other written , typewritten ,
27 handwritten or other graphic matter , any electronic or other
28 recording of any kind or nature , any mechanical or electronic sound
29 recordings or transcripts thereof, however produced or reproduced ,
and all copies or facsimiles of documents by whatever means made .
31
Plaintiffs ' Request for ATTORNEYS AT LAW
Production of Documents Hubbard, Burns & Meyer
Page 1 A PROFESSIONAL SERVICE CORPORATION
10604 N.E. 38th Place, Suite 105
Kirkland,Washington 98033
(206)828-3636
1 The aforesaid production for inspection and copying should
2 be made at the offices of Hubbard , Burns & Meyer , 10604 N. E. 38th
3 Place , Suite 105 , Kirkland , Washington , within twenty (20) days
4 after service of this request . Inspection and copying will he
5 conducted by the undersigned attorneys or their agents and will
6 continue from time to time and from day to day until completed .
7 This request for production shall be deemed to he continu-
8 ing in nature , calling for prompt production by defendants of all
9 documents which come into their actual or constructive possession ,
t0 trust , care or control at any time in the future , as well as all
11 documents now in their actual or constructive possession , trust ,
12 care or control . The specificity of any request shall not he
13 construed as reducing the scope of any more generalized requests .
14 Documents responsive to the following requests contain
15 information relevant to matters involved in this action and are
16 reasonably calculated to lead to discovery of evidence relevant to
17 such matters . If you withhold from producing any documents other-
18 wise requested herein under a claim of privilege , please : (1 )
19 identify each such document with sufficient particularity as to
20 author(s) , addressee(s) , or recipient (s) , the contents to allow
21 plaintiffs to bring the matter before the Court ; (2) state the
22 nature of the privilege(s) asserted ; and (3) state in detail the
23 factual basis for the claim of privilege.
24 DOCUMENTS TO BE PRODUCED
25 Plaintiffs request that you produce and make available for
26 inspection, separately, in response to each numbered paragraph , all
27
documents which contain , in whole or in part , which refer to , in
28
whole or in part , or which reflect , in whole or in part , the
29
following :
30
31
Plaintiffs ' Request for ATTORNEYS ATLAW
Production of Documents Hubbard, Burns & Meyer
Page 2 A PROFESSIONAL SERVICE CORPORATION
10604 N.E. 38th Place, Suite 105
Kirkland,Washington 98033
(2061 828-3636
1 1 . All video tape recordings , magnetic sound recordings
2 and transcribed transcripts of the Planning Sc Development Committee
3 of the Renton City Council relative to consideration of Ordinance
4 No. 3526 .
5 ANSWER :
6
7 2 . All video tape recordings , magnetic sound recordings
8 and transcribed transcripts of City Council meetings of the City of
9 Renton relative to consideration of Ordinance No . 3526 .
10 ANSWER:
11
12 3 . All studies done by the Planning Department , Planning
13 Staff, or used or considered by the Planning Department or Staff,
14 in the preparation or formulation of Ordinance No . 3526 , or any
15 report relative thereto to the Planning Commission and/or the City
16 Council .
17 ANSWER:
18
19 4 . All information , studies , or other documents in the
20 possession of the City of Renton , its agents , servants or
21 attorneys , relative to the effect of adult businesses on property
22 values in neighborhoods in the City of Renton .
23 ANSWER:
24
25 5 . All reports , letters , studies or other forms of
26 communication of the City of Renton Police Department or any other
27 law enforcement agency relative to the crime associated with the
28 location of adult businesses in general , and in the City of Renton ,
29
in particular.
ao
ANSWER:
31
Plaintiffs ' Request for ATTORNEYS AT LAW
Production of Documents Hubbard, Burns & Meyer
Page 3 A PROFESSIONAL SERVICE CORPORATION
10604 N.E. 38th Place, Suite 105
Kirkland,Washington 98033
(206)828-3636
J ,
1
2 6 . All crime reports generated by the City of Penton
3 Police Department in the past five years relative to any and all
4 crimes associated with adult businesses , together with any and all
5 crime reports relating to prostitution and assault within the City
6 of Renton.
7 ANSWER:
8
9 7 . All studies , reports or other evidence of discussions
10 of any department of the City of Renton in the past five years
11 relative to the control of, proliferation of, or effect of, adult
12 theatres or adult bookstores in or on residential neighborhoods .
13 ANSWER:
14
15 8 . All studies for long range improvements in the
16 neighborhoods where the Roxy Theatre and Renton Theatre are
17 located , together with evidence of any development funds actually
18
spent in those neighborhoods in the past five years .
19
ANSWER:
20
21
9 . All correspondence , memos , or other evidence of
22
communications received by the City of Renton or any of the
23
defendants or their agents or servants from the public relative to
24
Ordinance No . 3526 and all replies thereto .
25
ANSWER:
26
27
10 . All interdepartment memorandums , correspondence or
28
other communications between agents , servants , employees and/or
29
elected ,or appointed officials of the City of Renton relative to
30
Ordinance No . 3526 .
31
Plaintiffs ' Request for ATTORNEYS AT LAW
Production of Documents Hubbard, Burns & Meyer
Page 4 A PROFESSIONAL SERVICE CORPORATION
10604 N.E.38th Place, Suite 105
Kirkland,Washington 98033
(206)828-3636
1 ANSWER:
2
3 11 . Any documents in the possession of any of the
4 defendants or their agents or servants which support or in any way
5 bear upon the legislative determination that an adult entertainment
6 use would have a severe adverse impact upon surrounding businesses
7 and residences .
8 ANSWER:
9
10
11
DATED this 4 day of February, 1982 .
12
HUBBARD, BURNS & MEYER
13
14
BY ���•
Jack R. Burns
15 Attorney for Plaintiffs
16 STATE OF WASHINGTON )
) ss .
17 COUNTY OF KING )
18 , being first duly sworn
on oath deposes and says : That I am the
19 in the above entitled matter , that I have read the foregoing
requests for production of documents and answers thereto , know the
20 contents thereof and believe the same to he true .
21
22
SUBSCRIBED AND SWORN to before me this day of
23 1982.
24
25 Notary Public in and for the State
of Washington residing at
26
27
28
29
30
31
ATTORNEYS AT LAW
Plaintiffs ' Request for Hubbard, Burns & Meyer
Product ion of Documents A PROFESSIONAL SERVICE CORPORATION
Page 5 10604 N.E. 38th Place,Suite 105
• Kirkland,Washington 98033
(206)828-3636
CC \
1
I 1983e4 FEN�'QI�J3
?)15cri_f,iii,A(Y:a2:
., ::
5
6 FILED IN THE
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHIN(y1Q1q
7
8 UNITED STATES DISTRICT COURT APR 29 1983
WESTERN DISTRICT OF WASHINGTON
9 BRUCE RIFKIN, CL,;r
PLAYTIME THEATERS , INC . , ) y� —.,.... Deputy
10 a Washington corporation, et al . , )
11 Plaintiffs, )
12 ) No. C82-59M
v. )
13 ) ORDER DENYING
THE CITY OF RENTON, et al. , ) PLAINTIFF 'S MOTIONS
14 ) TO ALTER AND AMEND
Defendants. ) JUDGMENT AND FOR
15 ) STAY PENDING APPEAL
16 THE COURT having considered all the material relevant
17 to Plaintiff ' s motions to alter and amend judgment and for
18 stay pending appeal , including the parties ' briefs,
19 concludes that its judgment should remain as earlier
20 entered . NOW , THEREFORE,
21 IT IS HEREBY ORDERED, ADJUDGED and DECREED that
22 Plaintiff ' s Motion to Alter and Amend Judgment is DENIED,
23 and its Motion for a Stay Pending Appeal is DENIED .
24 DATED this 29th day of April , 1983 .
25 z
26 ') Zc 7
c 2 %�.
i l Zt
WALTER . McG V RN
27 Chief United States District Judge
28
ORDER DENYING PLAINTIFF 'S MOTIONS
TO ALTER AND AMEND JUDGMENT AND
FOR STAY PENDING APPEAL 1 �‘ /
1 -
l i FILED IN THE
t� 'it UNITED STATES DISTRICT COURT
3 ) !�' WESTERN DISTRICT OF WASHINGTON
4 M1+..•.fir... : -
' FEB 18 1983
5 BRUCE RIFKIN, Clerk
6 ..... ..... Deputy
7
UNITED STATES DISTRICT COURT
8 WESTERN DISTRICT OF WASHINGTON
9
PLAYTIME THEATRES , INC . , et al . , )
10 )
Plaintiffs, )
11 )
v. ) No . C82-59M
12 )
CITY OF RENTON, et al . , )
13 )
Defendants. )
14 ) ORDER
15 CITY OF RENTON , et al . , )
)
16 Plaintiffs, )
17 v. ) No. C82-263M
) (REMANDED )
18 PLAYTIME THEATRES , INC . , et al . )
19 Defendants. )
20
21 INTRODUCTION
22 On January 11 , 1983 , the Court entered its order
23 approving and adopting the magistrate 's report and
24 recommendation and denying defendants ' motions to dismiss
25 and for summary judgment , and granting preliminary
26 injunction pendente lite. A separate order was entered
27 January 11 , 1983 approving and adopting the magistrate ' s
28
ORDER - 1
1 supplemental report and recommendation and granting the
2 motion to remand Cause No . C82-263M to King County Superior
3 Court .
4 On February 10, 1983, a hearing was had pursuant to the
5 parties ' January 31 , 1983 Stipulation and Order separating
6 damages claims from plaintiffs ' prayer for permanent
7 injunction and submitting the matter to the Court on the
8 evidence considered by Magistrate Sweigert . The Court has
9 considered the evidence that was before the Magistrate, has
10 considered the parties ' memoranda, affidavits and oral
11 arguments. Accordingly, the Court rules that abstention
12 would be imarour and plaintiffs ' prayer for a permanent
13 injunction must be DENIED.
14
15 FEDERAL ABSTENTION
16 The City of Renton argues that the preliminary
17 injunction was improvidently granted , that the permanent
18 injunction must be denied, and that this Court must abstain
19 and dismiss this action for lack of jurisdiction.
20 Renton supplements its earlier argument and •
21 authorities on this issue with Miofsky v . Superior Court
22 of State of California, et al . , in No. 80-4589, slip op .
23 ( 9th Cir . Jan. 3 , 1983) . Renton argues that Miofsky aids
24 the resolution of the abstention issue herein by refining
25 the meaning of the term " vital state interest" without
26 giving it such overbreadth to deprive the federal court of
27
28 ORDER - 2
1 all of its 42 U .S .C . § 1983 jurisdiction . Renton asserts
2 that the city 's interest in establishing zones and setting
3 set backs is a "vital state interest" of the sort that
4 requires the Court to abstain from acting in the case at bar
5 pending the outcome in State Court on the Complaint for
6 Declaratory Judgment . The Miofsky court distinguished the
7 cases cited for abstention :
8 In each of these cases , the state or an agent of
9 the state was a party to the proceeding deemed
insulated from federal court intervention. In
addition, each of these civil suits bore
10 similarities to criminal proceedings or otherwise
11 implicated state interests vital to the operation
of state government .
12
13 Id. at 7. The context of the Miofsky suit was a
14 complaint that state court proceedings violated plaintiff 's
15 federally protected rights under Section 1983.
16 Miofsky does little to refine the term "vital state
17 interests" beyond reasoning that abstention is improper in a
18 Section 1983 civil rights action. The Court is unpersuaded
19 that federal abstention would be proper here . "The state
20 judicial proceeding in this case is purely civil in nature,
21 regardless of the importance of the state policies which the
22 city asserts. " Magistrate 's Supplemental Report and
23 Recommendation at 5. Although zoning, which is the
24 underlying subject matter of the declaratory judgment 's
25 suit in state court , may be an important function performed
26 by a city, this alone does not prevent a federal court from
27 scrutinizing the constitutionality of the city 's actions .
28 ORDER - 3
1 The Court concludes that the state court action is no bar to
2 continue jurisdiction over plaintiff 's suit for injunctive
3 relief .
4
5 PERMANENT INJUNCTON
6 I .
7 In determining the propriety of a permanent injunction,
8 the Court must first find that there is a threatened
9 violation of a legal right which would produce irreparable
10 harm and for which any other remedy would be insufficient .
11 The hardship must tip in favor of the plaintiff.
12 Renton ' s Ordinance , really a series of three ordi-
13 nances : 3526, 3629 , and 3637 , is an attempt to preclude the
14 operation of "adult motion picture theatres" in zones which
15 are more than 1 , 000 feet from certain other specified uses
16 or zones. "Adult motion picture theatres" refers to those
17 theatres exhibiting films characterized by an emphasis on
18 matter relating to "specified sexual activities" or "speci-
19 fied anatomical areas" as a "continuing course of con-
20 duct . . . in a manner which appeals to a prurient interest . "
21 The subject matter of the films is given a detailed defini -
22 tion, but the "continuing course of conduct" language is
23 not . The ordinance in its essential features is virtually
24
25
26
27
28 ORDER - 4
1 identical to the ordinances in Young v . American Mini
2 Theatres , 427 U.S . 50 ( 1976) and Northend Cinema , Inc .
3 - v . City of Seattle , 90 Wash. 2d 709 , 585 P .2d 1153
4 ( 1978) except that the word "used" in describing "adult
5 motion picture theatre" is defined with the "continuing
6 course of conduct" language .
7 A first amendment interest is affected. The ordinance
8 deals not with obscene material, but sexually explicit
• 9 material . It is concerned with the exhibition of films
10 inside the theatre and not with "pandering, " "the business
11 of purveying textual or graphic matter openly advertised to
12 appeal to the erotic interest of their customers . " Pinkus
13 v . United States , 436 U.S . 293, 303 ( 1978) .
14
15
16 Since expression protected by the first amendment is
17 the subject of Renton 's ordinance , the next inquiry is
18 whether there is actual intrusion upon this first amendment
19 interest and if so, the nature of the intrusion.
20 There is some intrusion: in certain areas of Renton,
21 films described in the ordinance may not be shown as a
22 continuing course of conduct in a manner which appeals to a
23 prurient interest . This intrusion is not substantial under
24 the circumstances for several reasons . Renton 's
25 restrictions are slightly narrower than those in the cases
26 cited supra , because of the "continuing course of conduct"
27
28 ORDER - 5
1 language . No theatre had to be closed under Renton ' s
2 ordinance, for no theatres were operating or were
3 considering operating when it was enacted. There is no
•
4 content limitation on the creators of adult movies. The 520
5 acres of land in all stages of development available for
6 locating adult theatres (David R . Clemens Affidavit of
7 May 27 , 1982, unrebutted, and his June 23, 1982 testimony at
8 36-41 ) belies there being substantial intrusion upon
9 plaintiffs ' first amendment right. The real question is
10 whether in spite of the acreage available to plaintiffs to
11 locate a theatre, the economic impact results in a substan-
12 tial , impermissible effect upon first amendment rights .
13 Young notes that "the inquiry for first amendment
14 purposes is not concerned with economic impact ; rather, it
15 looks only to the effect of this ordinance upon freedom of
16 expression. " 427 U.S . at 78 (Powell, J . , concurring) .
17 The effect of Renton 's ordinance is that plaintiffs or
18 others wishing to exhibit adult film fare and not having a
19 theatre already built and ready for occupancy , must consider
20 whether demand is such that construction of a theatre is
21 feasible . This impact is no different than that upon other
22 land users who must work with what land is available to them
23 in the city. With a large percentage of land within the
24 city available to plaintiffs, the financial feasibility of
25 the various locations is for them to analyze . To conclude
26 otherwise would be to place a burden on the city that
27
28 ORDER - 6
1 Constitutional analysis does not require . Moreover , the
2 message of no individual or group has been silenced . The
number of such establishments has not been reduced because
4 none existed and none were attempting to establish
5 themselves in Renton prior to the ordinance . The ordinance
6 merely specifies where adult theatres may not locate and in
7 doing so , stifles no expression. See, Young, 427 U .S .
8 at 81 , n. 4 ( Powell , J . , concurring) .
9 The Court concludes that there is not a substantial
10 intrusion upon first amendment interests . Plaintiffs are
11 not virtually excluded from Renton by being confined to the
12 "most unattractive , inaccessible , and inconvenient" areas .
13 But see Basiardanes v . City of Galveston, 682 F . 2d 1203,
14 1214 ( 5th Cir . 1983) Renton ' s exhibits , affidavits , memo-
15 randa , and oral argument persuade the Court that acreage in
16 all stages of development from raw land to developed ,
17 industrial , warehouse , office , and shopping space that is
18 criss-crossed by freeways, highways , and roads cannot be so
19 characterized. Significant cited cases to the contrary are
20 distinguishable : Schad v. Borough of Mount Ephraim, 452 U .S .
21 61 ( 1981 ) (live entertainment including nude dancing was not
22 a permitted use , and concerns such as trash, police protec-
23 tion, and medical facilities were not sufficient justifica-
24
tions for the exclusion ) . Basiardanes (available sites much
25 less desirable than in Renton , and the zoning ordinance was
26 passed after the theatre was leased for showing adult
27
28 ORDER - 7
1 films ) ; Avalon Cinema Corporation v . Thompson , 667 F . 2d 659
2 ( 8th Cir. 1981 ) (zoning ordinance enacted after suggested
3 adult use ) ; Keego Harbor Co . v . of Keego Harbor , 657 F . 2d 94
4 ( 6th Cir . 1981 ) (no location within city that was not within
5 500 feet of a bar or other regulated use ) . Ample , acces-
6 sible real estate is available for the location of adult
7 theatres in Renton.
8
9 III .
10 The insubstantial intrusion upon first amendment
11 interests by Renton 's ordinance must be considered against
12 the governmental interest which led to its enactment . Under
13 the four-part test of United States v . O ' Brien, 391 U.S .
14 367, 377 ( 1968) , a governmental regulation is justified
15 despite incidental impact upon first amendment interests
16 1 . If it is within the constitutional power of the
17 - government ,
18 2 . If it furthers an important or substantial
19 governmental interest ,
20 3 . If the governmental interest is unrelated to the
21 suppression of free expression, and
22 4 . If the governmental restriction is no greater than
23 necessary for the furtherance of that interest .
24
25
26
27
28 ORDER - 8
•
1 As in Young, the first two elements of the test are
2 met . he ordinance was within the City of Renton 's power to
3 enact . Nor is there any doubt that the interests sought to
4 be furthered by this ordinance are important and
5 substantial .
6 Without stable neighborhoods, both residential and
7 commercial , large sections of a modern city
quickly can deteriorate into an urban jungle with
8 tragic consequences to social , environmental, and
economic values . While I agree with respondents
9 that no aspect of the police power enjoys immunity
from searching constitutional scrutiny , it also is
10 undeniable that zoning, when used to preserve the
character of specific areas of a city , is perhaps
11 "the most essential function performed by local
government , for it is one of the primary means by
12 which we protect that sometimes difficult to
define concept of quality of life . " Village of
13 Belle Terre v. Boraas , 416 U.S . , at 13
(Marshall, J . , dissenting) .
14
15 Young, 427 U .S . at 80 ( Powell, J . , concurring) . The
16 critical inquiries are whether these interests are furthered
17 by the ordinance and whether the governmental interest is
18 unrelated to the suppression of free expression, element
19 three.
20 Renton 's interests , articulated in the ordinance, "in
21 protecting and preserving the quality of its neighborhoods ,
22 commercial districts , and the quality of urban life through
23 effective land use planning, " are furthered by the
24 ordinance . The ordinance states in item 14, p. 3 , Nos . 3629
25 and 3637 :
26
27
28 ORDER - 9
•
1 14. Experience in numerous other cities , includ-
2 ing Seattle , Tacoma and Detroit , Michigan, has
shown that location of adult entertainment land
3 uses degrade the quality of the areas of the City
in which they are located and cause a blighting
4 • effect upon the city. The skid row [sic ] effect ,
which is evident in certain parts of Seattle and
5 other cities, will have a significantly larger
affect upon the City of Renton than other major
6 cities due to the relative sizes of the cities.
7 There was no evidence adduced to show that the secondary
8 effects of adult land uses would be different or lesser in
• 9 Renton than in Seattle , Tacoma, or Detroit . Certainly ,
10 Renton must justify its ordinance, but in so doing,
11 experiences of other cities and towns must constitute some
12 evidence to the legislative body considering courses of
13 action. Genusa v . City of Peoria, 619 F . 2d 1203, 1211
14
( 7th Cir. 1980) . If the goal of preservation of the quality
15 of urban life is to have any meaning, a city need not await
16 deterioration in order to act . Id. The observed effects
17 in nearby cities provides persuasive circumstantial evidence
18 of the undesirable secondary effects Renton seeks to
19 preclude from within 1 , 000 feet of residential zones ,,
20 schools, religious facilities , and public parks. Although
21 the effects in other cities are starkly shown when adult
22 uses are congregated, Renton need not await such
23
congregation. Similarly, no negative inference can be drawn
24 \ from Renton 's choosing to address only one form of "adult"
25
• usage . It ' s effort would have been bolstered by considering
26
other "adult" uses in view of other cities ' experiences, but
27
28 ORDER - 10
•
1 inclusion of these other "adult " uses is not mandatory . The
2 city being aware that it is treading in a delicate area
3 between valued interests might understandably be loath to
4 • tackle the description, restriction, and rationale of more
5 than one such usage at a time . " [T ]he city must be allowed
6 a reasonable opportunity to experiment with solutions to
7 admittedly serious problems . " Young, 427 U.S . at 71 .
8 The governmental interest is unrelated to the suppres-
9 sion of free expression, and the third element is satisfied .
10 Concern with preventing undesirable secondary effects is not
11 the kind of apprehension aimed at regulating the content of
12 an adult theatre 's exhibitions . Rather, it is a permissible
13 classification based on deleterious secondary effects.
14 Young, 427 U.S . at 70, 71 .
15 Renton solicited testimony through its City Council and
16 the Council 's Planning and Development Committee . It
17 summarized some ideas put forth at those public meetings in
18 its ordinance . Predictably, some citizens expressed
19 concerns reflecting their values which might be impermis-
20 sible bases for justification of restrictions affecting
21 first amendment interests. See, e . g.. , Erznoznik v. City of
22 Jacksonville, 422 U.S . 205 ( 1975) (overbroad effort to
23 protect privacy interests of certain citizens from "offen-
24 sive" speech --nude movie fare visible from public street ) .
25 The inclusion of these statements should not negate the
26 legitimate, predominate concerns of the City Council nor
27
28 • ORDER - 11
1 lessen the value of the circumstantial evidence of adult
2 land uses ' effects in nearby cities . Arguably , some of the
3 statements may be construed as characterizations of the
community ' s quality of life that is presently sought to be
5 preserved . Citizens ' judgments as to a city ' s quality of
6 life is necessarily subjective. It is necessary to separate
7 these subjective characterizations of the city ' s quality of
8 life from the goals of protecting and preserving it and the
9 evidence that the means will further the end . Renton could
10 have written its ordinance in such a way as to better
11 distinguish these aspects of the problem, but this is not a
12 material consideration.
13 Finally , part four of the O ' Brien test is satisfied
14 for the restriction is no greater than necessary to further
15 the governmental interest . The 1 , 000-foot aspect of the
16 restriction does not preclude adult theatres from locating
17 anywhere in the city as in Keego Harbor . Renton 's
18 ordinance is similar to others that have been upheld except
19 for the "continuing course of conduct" language discussed
20 earlier which has some narrowing effect .
21 Renton 's effort to preserve the quality of its urban
22 life by enacting an ordinance which regulates adult theatre
23 location is minimally intrusive of a particular category of
24 protected expression described in Young as being of "a
25 lesser magnitude than the interest in untrammeled political
26 debate . " 427 U .S . at 70 . Renton 's effort under the
27
28 ORDER - 12
1 circumstances is not unconstitutional under the first
2 amendment . Injunctive relief from enforcement of the
3 ordinance would be improper. NOW , THEREFORE ,
4 For the foregoing reasons , the Court having
5 reconsidered its de novo review which led to the entry of
6 the preliminary injunction , the order granting preliminary
7 injunction must be vacated as improvidently granted, and
8 plaintiffs ' prayer for permanent injunction against
9 enforcement of the ordinance is DENIED . Accordingly ,
10 the City of Renton ' s Motion to Dismiss for Lack of
11 Jurisdiction is DENIED, and its Motion for Summary Judgment
12 is GRANTED.
13 SO ORDERED .
;r°
14 DATED this / �/ day of February , 1983 .
15
16 /Er11?)
WALTER . Mc OVN
17 Chief United States District Judge
18
19
20
21
22
23
24
25
26
27
28 ORDER - 13
'-770rejLY
OF 'v
4, /� OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON
�%
POST OFFICE BOX 626 100 S 2nd STREET • RENTON. WASHINGTON 98057 255-8678
0 LAWRENCE I.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY
0,6
P`O DAVID M. DEAN, ASSISTANT CITY ATTORNEY
q7. SEPSE�O� MARK E. BARBER, ASSISTANT CITY ATTORNEY
January 31, 1983 ZANETTA L.FONTES, ASSISTANT CITY ATTORNEY
ii
Jack R. Burns EB 1 383
Burns & Meyer, P. S. CITY OF F:.N ION
Attorneys at Law t'+ �at0 '-;
10940 N.E. 33rd Place
Suite 107
Bellevue, WA 98004
Re : Playtime Theatres , Inc. vs City of Renton
No . C82-59M
Dear Mr. Burns :
Enclosed please find the Stipulation and Order which I
have signed.
Very truly yours ,
Lawrence J. Warren
LJW:nd
Encl .
cc : Mayor
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
9 AT SEATTLE
10 PLAYTIME THEATRES, INC. , a )
Washington corporation, et al. ,)
11 ) NO. C82-59M
Plaintiffs , )
12 vs . )
) STIPULATION AND ORDER
13 THE CITY OF RENTON, et al. , )
)
14 Defendants . )
15'
16 WHEREAS, this Court has heretofore entered its Preliminary
17 Injunction pendente lite against the enforcement of City of Renton
18 Ordinance No. 3637 after the taking of substantial evidence and
19 consideration of numerous exhibits; and
20 WHEREAS, the development of further testimony before the
21 Court would not materially add to the evidence already before the
22 Court relative to plaintiff' s claims that Ordinance No . 3637 is
23 unconstitutional and the interests of judicial economy , both for
24 the Court and for the parties, would be served by a speedy and
25 efficient resolution of the legal issues pending before the Court;
26 NOW, THEREFORE the parties stipulate as follows :
Burns & Meyer, P.S.
STIPULATION AND ORDER 10940 N.E. 33rd Place• Suite 107
Page 1 Bellevue, WA 98004 • (206)828-3636
1 STIPULATION
2 1 . Plaintiffs' claims for damages should be severed from
3 plaintiffs' prayer for a permanent injunction against the enforce-
4 ment of City of Renton Ordinance No. 3637.
5 2 . With respect to the plaintiffs' claims that City of
6 Renton Ordinance No. 3637 is unconstitutional and their prayer for
7 a permanent injunction against its enforcement, the matter should
8 be set for hearing by the Court at the earliest available date. At
9 such hearing, the matter shall be submitted to the Court based upon
10 the live testimony, affidavits, deposition testimony and exhibits
11 previously heard and considered by Magistrate Sweigert at the
12 hearings held relative to the plaintiffs' Motions for a Temporary
13 Restraining Order and Preliminary Injunction and defendant' s
14 Motions to Dismiss Plaintiffs' Complaint and for Summary Judgment.
15 3 . At such hearing, each of the parties reserve the right
16 to argue their theory of the facts and law to the Court.
17 4 . Inasmuch as all issues have been fully briefed in
18 matters previously before the Court, no additional briefs will be
1g submitted, unless called for by the Court. However, each party
20 shall be permitted to draw to the attention of the Court, without
21 argument, pertinent and significant authorities which come to the
22 attention of a party after the date of this stipulation stating the
23 reasons for the supplemental citations . Any response shall be made
24 promptly and shall be similarly limited.
25 /
26 / / /
Burns & Me)'er, Y.S.
STIPULATION AND ORDER 10940 N.E. 33rd Place • suite 107
Page 2 Bellevue, WA 98004 • (206)82B-3636
•
•
n
1 DATED this day of January, 1983.
2 BURNS & MEYER, P.S.
3
4
BY
5 Jack R. Burns
Attorney for Plaintiffs
6
7
8
Larry Warre
9 Attorney fo efendants
10
11 ORDER
12 IT IS SO ORDERED.
13 DATED this day of , 1983.
14
15
16
CHIEF UNITED STATES DISTRICT JUDGE
17
18
19
20
21
22
23
24
25
26
Burns & Meyer. P.S.
STIPULATION AND ORDER 10940 N.E. 33rd Place• Suite 107
Page 3 Bellevue, WA 98004 • (206)828-3636
1 IN THE DISTRICT COURT OF THE UNITED STATES
2 FOR THE WESTERN DISTRICT OF WASHINGTON
3 AT SEATTLE
4
5 PLAYTIME THEATRES, INC. , a )
Washington corporation, et al. , )
6 )
Plaintiffs, )
7 )
vs. ) NO. C82-59M
8 )
CITY OF RENTON, et al. , )
9 )
Defendants. )
10 )
11
12
13
14 TRANSCRIPT OF THE TESTIMONY OF JIMMY
15 JOHNSON and DAVID R. CLEMENS, and PARTIAL DEPOSITION
16 TESTIMONY OF ROGER FORBES, had in the above-entitled and
17 numbered cause in the above-entitled court before the
18 Honorable PHILIP K. SWEIGERT, United States Magistrate,
c 19 June 23 , 1982, at the United States Courthouse, Seattle,
20 Washington.
21
22
23
24
25
1 APPEARANCES
2
3 On behalf of the Plaintiffs: Mr. Jack R. Burns
and
4 Mr. Robert E. Smith
Hubbard, Burns & Meyers
5 106014 N. E. 38th Place
Suite 105
6 Kirkland, Washington 98033
7
8 On behalf of the Defendants : Mr. Lawrence J. Warren
9 and
Mr. Daniel Kellogg
10 Warren & Kellogg
100 S. Second St . Building
11 P. O. Box 626
Renton, Washington 98055
12
13
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18
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20
21
22
23
24
25
1 PROCEEDINGS
2
3 THE CLERK: The Court calls
4 C82-59M, Playtime Theatres , Inc. , versus City of Renton.
5 * * * * * * # * * * * *
6 JIMMY JOHNSON Called as a witness on behalf of
the Plaintiffs, having been duly
7 sworn, was examined and testified
as follows :
8
9 THE CLERK: Please state your full
10 name and spell your last name for the record.
11 THE WITNESS: My full name is Jimmt
12 Johnson. Last name is spelled J-O-H-N-S-O-N.
13
14 DIRECT EXAMINATION
15 BY MR. SMITH:
16 Q Mr. Johnson, are you affiliated with any organization,
17 corporation or business entity that has as its chief
18 responsibility the acquisition of property for adult
19 motion picture theaters?
20 A Yes , I am.
21 Q What is the name of that entity , sir?
22 A Walnut Properties , Inc.
23 Q What state is that a corporation in?
24 A California.
25 Q And, sir, where do you reside?
3 Direct - Johnson
1 A Los Angeles.
2 Q How old are you, sir?
3 A 32.
4 Q How long have you been employed in Walnut Properties?
5 A A little over 14 years .
6 Q Sir, what is your present capacity with that organizatio ?
7 A I oversee theater operations and publicity and advertis-
8 ing for the theaters and other entities that the corpo-
9 ration has.
10 Q Now, in overseeing theater operations, what relevance
11 does that have, if any, with the acquisition of new
12 theater properties?
13 A Could you run that by me again?
14 Q Yes. What relevancy does the theater overseeing opera-
15 tions have to the acquisition of new theater properties?
16 A Well, the operation of theaters in watching, you know,
17 the daily grosses and the business that 'you re doing is
18 related to any new locations that we were about to acquir- .
19 We can tell, you know, what is good and what is not so
= 20 good, what is bad.
21 Q Sir, how many theaters do you oversee at the present time '
22 A 33.
23 C And where are they located geographically?
24 A From Sacramento to San Diego, California.
25 Q Now , how long of the 14 years you' ve been working for
4
4 Direct - Johnson
Walnut Properties have you been in management?
2 A 12.
3 Q Do you have any particular educational background that
4 qualifies you to do the kind of work you're doing?
5 A Other than cinema classes , no. Basically it ' s all been
6 on the job training and experience , practical experience.
7 Q Sir, do you belong to any organizations that adult exhi-
8 bitors and/or producers may belong to?
9 A Yes , I do.
10 Q And what organizations are they , sir?
11 A The Producers Association of Los Angeles and the Adult
12 Film Association of America.
13 Q Have you ever held any office in either of those two or-
14 ganizations?
15 A Not in the Producers Association, but in the Adult Film
16 Association I have.
17 Q Approximately how many members are there in the Adult
18 Film Association?
19 A Approximately 300 members.
20 Q Composed of what, sir?
21 A Producers , distributors , and exhibitors of adult motion
22 pictures .
23 Q Do you have occasion to have any kind of meeting with
24 regularity?
25 A Yes.
1
5 Direct - Johnson
1 Q How often?
2 A The Producers Association, which is comprised of produce s
3 and distributors , meets once a month in Los Angeles , and
4 the Adult Film Association meets three times a year for
5 board of directors meeting and once a year for a conven-
6 tion.
7 Q And do you attend those meetings?
8 A Yes.
9 Q Are they all located in California?
10 A No. They' re all over the United States.
11 Q And do you have any kind of work seminars and programs
12 having to do with operation of theaters at these meetings .
13 A Yes. We ' ve had seminars on operation of theaters , on
14 advertising. Generally seminars on everything that makes
15 up the business.
16 Q In connection with your work, sir, as the overseer of
17 theater operations, do you have occasion from time to time
18 to talk to your various attorneys concerning the operatioi
19 of the business and zoning and business licenses, and suc ' ?
= 20 A Yes, I do.
21 Q And generally how many different attorneys do you deal
22 with?
23 A Quite a few. I 've talked with attorneys all over the
24 United States regarding, you know, adult film fare and I
25 try to keep up with, you know, zoning ordinances ir. the
6 Direct - Johnsen
1 state of California where it directly affects us. And
2 so I deal with, oh, six, seven, eight, different attor-
3 ney s.
4 Q Sir, Do either Mr. Burns or myself represent you or your
5 organization in any way?
6 A No.
7 Q Have we ever?
8 A No.
s Q Sir, when is it you were first contacted about the possi-
10 bility of testifying in this matter?
11 A Approximately two weeks ago.
12 Q And by whom were you contacted, sir?
13 A I was contacted by Mr. Forbes and by yourself, Mr. Smith.
14 Q And what were you requested to do, sir?
15 A I was requested to come to Seattle and look at locations,
16 possible locations, for adult motion picture theaters .
17 Q Now, sir, based on your experience and background and
18 your dealings with other professionals involved in the
19 operation of adult theaters , do you feel you have any
20 sense of what it takes to locate an adult motion picture
21 theater?
22 A Yes , I do.
23 Q Would you tell us the criteria that you perceive are rele
24 vant and important to you and to others in the business o
25 operation of adult theaters?
7 Direct - Johnson
1 A There ' s two main factors for an adult theater or motion
2 picture theater, and that is to be in a location that is
3 easily accessible by major streets and in a high traffic
4 area where you have a lot of walk-by traffic , drive-by
5 traffic. These, I think, are the two most important
6 factors. And to have, additionally to have other retail
7 businesses around you that draw customers.
8 Q All right , sir. Now, when was the first time you saw
9 the locations in question here in the city of Renton?
io We 're talking now about where the theaters that are owned
11 by Playtime, operated by Playtime are currently located.
12 A In March.
13 Q Of what year, sir?
14 A 1982.
15 Q Now, did you have occasion to do an eyeball inspection
16 since that time?
17 A Yes.
18 Q And when was that , sir?
19 A That was last night.
20 Q Would you tell the Court briefly how much time you spent
21 and what it was you did last evening in terms of an eye-
22 ball inspection?
23 A Well , I was taken last night; to the locations - -
24 C Which locations?
25 A I was taken to the proposed locations where an adult
8 Direct - Johnson
theater could locate in the city of Renton.
2 Q Was Mr. Burns with you?
3 A Mr. Burns was with me and Mr. Forbes was with me.
4 Q Mr. Burns explained to you by some showing of a map, or
5 something, the locations where adult theaters were allow-
6 able in the current ordinances in the city of Renton?
7 A He did both. He showed me by map and he showed me - -
8 because we drove all around the area, and pointed each
9 individual location out.
10 Q After you looked at each individual location, did you
11 have a feel as to whether or not those areas which are
12 zoned for an adult theater or in which an adult theater
13 may be able to be moved, would any one of those locations
14 be a viable entity for that kind of program?
15 MR. WARREN: I object to the ques-
16 tion and the line of questioning now, Your Honor, as it
17 now relates to an attempt to assert the rights of third
18 parties. We' re here on Renton and Roxy ' s Playtime
19 Theatres complaint that they' re not able to operate their
20 theaters within the area where they want to locate them,
21 and now they' re saying, well, we 're going to assert some-
22 thine that maybe could have happened, and it ' s not the
= 23 question that ' s before the Court.
24 THE COURT: Well, it seems to me
25 what he ' s asking is he' s trying to lay foundation for
9 Direct - Johnson
this gentleman' s opinion as to the sites that he was
2 shown, and so forth, and their feasibility for the pur-
3 poses of adult entertainment theaters. If the question
4 were rephrased and based on a foundation that ties it up
5 with the exhibit, the maps and so forth, and then ask
6 him for his opinion, then his number of years overseeing
7 the location of this kind of entertainment activity, I
8 think there' s probably a basis for him to give an opinion,
9 if that' s what we 're getting at.
10 But it seems to me you can rephrase the ques-
11 tion and ask him whether he ' s got an opinion and what the
12 opinion is.
13 Q (By Mr. Smith) Let me ask you, Mr. Johnson: how many
14 different geographical sites did you visit last evening?
15 A How many different geographical sites. I think - - would
16 this make it easy? I visited every location that was on
17 the map outlined in green.
18 Q Did you go to an industrial park area?
19 A Yes. There were what I would consider two basic areas.
= 20 There was an industrial or light manufacturing area and,
= 21 then, ,there was another area that we went by that was
22 developed with retail businesses.
23 Q Let me ask you: in addition to the criteria that you' ve
24 already enunciated for us, how much land is necessary to
25 establish a 400-seat theater including parking?
10 Direct - Johnson
A In Seattle, I do not know. I don't know what the requir=-
2 ments are for parking. I don' t know what the ratio is,
3 so many seats per parking space. That I would not know.
4 But, you know, in general terms, you need a good amount
5 of space to put in a 400-seat theater and parking.
6 Q Now, did you have occasion to see a location that had a
7 Shakey' s?
8 A Yes, I did.
9 Q Would you tell us about that location and why in your
10 opinion, if in your opinion it was not viable, why not?
11 A Well, I saw a location with a Shakey' s Pizza on it and
12 a location with a Burger King on it. Both buildings
13 appeared to be relatively new. They were at the edge of
14 a shopping center. And if those properties could be
15 acquired and a 400-seat theater could be put in there,
16 I would think that would be a viable location for, you
17 know, an adult theater.
18 Q Was there any other location, of all the ones you looked
19 at last evening, other than the one you just identified,
20 which would be a viable location based on your background
21 in your opinion?
22 A No, sir, not a one.
23 Q Would you tell us why not, sir?
24 A The areas that we visited, there were vacant lots, out at
25 the edge of town. There were parcels of land with railro. d
11 Direct - Johnson
1 spurs on them. There were parcels of land, with storage
•
2 s tanks for fuels. I assume they're for fuels. There were
3 . . areas that were developed with warehouses or light manu-
4 facturing. And those were primarily the only things that
5 were out in that area. In fact, they were the only things
6 out in that area.
7 And what you would have out there is people
8 coming into that area during the day, people who worked
9 there everyday. At nighttime there' s nobody out there.
10 So you lose your high traffic area, you have nobody going
11 down the street. I'm not sure that they would go out
12 there. It was pretty dark out there at night.
13 And in the exhibition business you must rely
on movieposters, yourely marquees y
14 must on or walk-by
15 and drive-by traffic in addition to your advertising.
16 That' s a very important part of advertising. And out
17 there you just don' t have it.
18 MR. SMITH: No further questions
19 of the witness at this time.
20 MR. WARREN: Your Honor, may it
21 please the Court, may I approach the exhibits?
22 THE COURT: Absolutely.
23
24
25
1 2 1-14 ..e,.4 r.
1 CROSS-EXAMINATION
2 BY MR. WARREN:
3 Q Mr. Johnson, do I understand it correctly that you've
4 been to the locations that are shown on these two exhi-
5 bits just the one time last evening?
6 A Yes, sir.
7 Q And did you note that a roadway that is in the area
8 located at the bottom of the map was torn up?
9 A Yes, sir.
10 Q And do you have any knowledge as to whether or not that
11 roadway carries a significant amount of traffic when it ' s
12 not torn up?
13 A No, I wouldn't. I know that there were some, appeared
14 to be homes, a few homes on that street.
15 Q Did you go down the freeway that ' s known as the Valley
16 Freeway to get to this area, do you know?
17 A I know that we got off of a freeway and started at one
18 end and went down the street , all the way around, and
19 then through the area that was under construction, and,
20 then, back around.
21 Q Could you not see from most of the locations that you
22 were discussing one or both freeways that are shown on
7
23 the map?
24 A Yes. I know that the freeways were close by.
25 Q With some sort of a reasonably sizable marquee , would it
13 Cross - Johnson
' t be possible, then, for these locations to be readily
2 identifiable as adult motion picture locations from the
3 freeways?
4 A I don' t know how big of a marquee you would be talking
5 about. I imagine that it would have to be pretty big.
6 Q Did you also see the Renton and Roxy Theater locations?
7 A Yes, I did.
8 Q And do you have any idea what the traffic is like on the
9 street that runs in front of those on the weekend?
to A I have never seen those locations on the weekend.
tt Q Did you have an opportunity to view the number of shops ,
12 and so forth, on the street that were open in the evening?
13 A I know that there were shops in the area and there ' s
14 automobile dealerships. I could not honestly tell you
15 how many of the businesses were open.
16 Q Is the number of businesses that are open in the evening,
17 is that not a function of how desirable a location might
18 be?
19 A Yes.
20 Q Is not also the availability of parking a consideration?
21 A Very important.
22 Q Do you know anything about the number of parking spots
G
23 that are available on site for the Renton or Roxy Theater?
24 A On site. I do not. I just know that there is quite a
25 bit of parking in the surrounding area.
14 Cross - Johnson
Q You say, "Quite a bit in the surrounding area. " Could
2 you - -
3 A There' s adequate.
4 Q In fact , is it not the case that there' s a very few park-
5 ing stalls on the street itself?
6 A I know that there' s parking on side streets.
7 Q And is it not true that those side streets are largely
8 residential streets?
9 A The area where I parked was not in a residential area,
10 no. There was a business there.
>> Q Was the parking that you utilized public parking or was
12 it in connection with a business?
13 A That I'm not sure. I think it was probably parking.
14 Q Do you have any knowledge as to whether that public park-
15 ing might be restricted at any time during the evening
16 hours?
17 A I have no knowledge as to that.
18 Q Do you have any knowledge as to the future construction
19 plans for any streets in the locations that you viewed
s
20 that you' ve identified as being in the green areas?
21 A No, I don' t. Well, no. As far as street construction,
22 no, I don' t.
23 Q Are you familiar at all with the locations where Mr. Forbes
24 enterprise operates his adult motion picture theaters now?
25 A Yes.
15 Cross - Johnson
Q Are you aware of the location at Point Roberts?
2 A Point Roberts, I have not been to.
3 Q Do you know where Point Roberts is?
4 A Yes, I do.
5 Q Do you know the fact that it ' s a community with a popula-
r tion of around 250?
7 A With a tremendous drawing power in the area.
8 Q From where?
9 A From Canada.
10 Q And that is how long away by car, do you know?
A It ' s quite a ways. I think it ' s like a 40-minute drive,
12 or something.
13 Q Does that not put that theater in doubt in your mind as
14 to an acceptable location?
15 A No, it does not. That theater does fine business , as does
16 one in Seaview.
17 Q Is that a high traffic area; Point Roberts?
18 A I know that - - I have not seen it. I have not seen the
19 location, but obviously there ' s a high traffic area. The
20 people are coming from somewhere because the theater does
21 business.
22 Q Is that not the point , Mr. Johnson, that people will
23 travel to locations that are somewhat inconvenient if they
24 wish to view this type of motion picture?
25 A If there ' s nothing in the area at night, no. Absolutely
16 Cross - Johnson
1 nothing. And the proposed locations , I 'm not sure that
2 there were street light. There was nothing out there
3 open. Absolutely nothing.
4 Q Let me ask you this question: do you know what there is
5 at night that draws people to Point Roberts outside of
6 this theater that is operated there?
7 A No, I don' t.
8 Q Did you limit your inquiry simply to those locations that
s are marked in green on the two maps that are on the
10 board?
11 A I 'm sorry. Did I limit my inquiry - - you mean, did I
12 rely on the information that those were the only locations
13 available?
14 Q Yes.
15 A Yes , I did. This is what I was told and those were the
16 areas that we looked at.
17 MR. WARREN: That ' s all the ques-
18 tions I have , Your Honor.
19 MR. SMITH: May I just have a
20 moment , Your Honor?
21 THE COURT: Certainly.
22 (Short pause in proceeding. )
23
24
25
17 Cross - Johnson
REDIRECT EXAMINATION
2 BY MR. SMITH:
3 Q Mr. Johnson, when you were being taken around and shown
4 locations, you relied upon the host driving the automobile
5 to point out the locations and telling you that these
6 within those categories are locations where the city
7 claims the adult theater to be located?
8 A Yes.
9 Q And you don' t know whether it was just restricted to the
10 green areas on Exhibit 8 and on the map, do you, sir?
11 A No. I 'm simply relying on the information that was given
12 me as to possible locations.
13 Q You looked at several very small locations in addition to
14 the larger location, did you not, sir?
15 A Yes.
16 MR. SMITH: Thank you. No further
17 questions.
18 MR. WARREN: Your Honor, we move
19 to strike all of the testimony as now not being competent
20 because we have no idea exactly what this gentleman has
21 viewed, the extent, the scope of it , or what he was told
22 when he went on his view.
23 THE COURT: I won' t strike the
24 testimony, but I will say that the Court, on the basis of
25 the testimony, is going to have an awfully hard time
1
18 Redirect - Johnson
REDIRECT EXAMINATION
2 BY MR. SMITH:
3 Q Mr. Johnson, when you were being taken around and shown
4 locations, you relied upon the host driving the automobile
5 to point out the locations and telling you that these
6 within those categories are locations where the city
7 claims the adult theater to be located?
8 A Yes.
9 Q And you don' t know whether it was just restricted to the
10 green areas on Exhibit 8 and on the map, do you, sir?
11 A No. I 'm simply relying on the information that was given
12 me as to possible locations.
13 Q You looked at several very small locations in addition to
14 the larger location, did you not, sir?
15 A Yes.
16 MR. SMITH: Thank you. No further
17 questions.
18 MR. WARREN: Your Honor, we move
19 to strike all of the testimony as now not being competent
20 because we have no idea exactly what this gentleman has
21 viewed, the extent, the scope of it , or what he was told
22 when he went on his view.
O
23 THE COURT: I won' t strike the
24 testimony, but I will say that the Court, on the basis of
25 the testimony, is going to have an awfully hard time
ALtX
cru-44A- AV-
18 Redirect - Johnson
figuring what he did see and what he didn' t see.
2 I' ll deny the motion.
3 MR. SMITH: We're willing to call
4 Mr. Forbes who drove the car and can tell.
5 THE COURT: Thank you.
6 MR. WARREN: Your Honor, on that
7 basis, when they call Mr. Forbes we're going to object
8 because he was not amongst the witnesses that were listed
9 in their denomination of witnesses , and the Court specif-
10 ically said they' re supposed to tell the other party who' s
11 going to testify.
12 THE COURT: That' s absolutely cor-
13 rect. If he' s not identified as a witness who was going
14 to testify today, he won' t testify.
15 MR. SMITH: But , Your Honor, on
16 the other hand, counsel objects to the failure of the
17 witness to be able to geographically impress on the Court
18 the various areas, and this is something which - -
19 THE COURT: I did not strike his
20 testimony. His testimony stands.
21 MR. SMITH: I understand that.
22 May I approach the witness , please, Your Honor.
23 THE COURT: Yes.
24 MR. SMITH: May I have this marked
25 as an exhibit , please?
19 Colloquy
THE CLERK: This will be Plaintiffs '
2 Exhibit No. 9.
3 Q (By Mr. Smith) Mr. Johnson, I show you a map which has
4 some area denoted in black on there and it says, "Areas
5 where adult motion picture theaters are allowed by
6 Ordinance 3526 and 3629. " Do you see that , sir?
7 A Yes, I do.
8 Q Now, were you shown this map last evening?
9 A Yes, I was.
10 Q Did you cover each of the areas in black designated on
11 that map?
12 A I'm sure that we did. I can only rely on my driver.
13 Q Were there two small areas in the northern part of the
14 map , the larger map, that you viewed?
15 A Yes.
16 Q And you saw those two locations?
17 A Yes.
18 Q All right. And, then, you saw a larger series of loca-
19 tions?
20 A Yes .
21 And these were all covered last evening?
22 A Yes .
23 MR. SMITH: Thank you. We' ll offer
24 Exhibit 9, Your Honor, as the area covered by the visual
25 inspection last evening by Mr. Johnson.
20 Redirect - Johnson
1 MR. WARREN: We object to the
2 characterization of that, Your Honor, because he couldn' t
3 identify exactly where he was either before or now.
4 THE COURT: To me he indicated he
5 relied on the person he was with.
6 MR. WARREN: We don' t have any
7 objection to the document itself since I believe we put
8 it in in the form of an affidavit by Mr. Clemens. So we
9 can' t object to the document itself.
10 THE COURT: You mean it ' s already
11 in here?
12 MR. WARREN: It' s already in here
13 as an exhibit to Mr. Clemens' affidavit in support of our
14 motion for summary judgment; the document they were just
15 using.
16 MR. SMITH: But not as an exhibit
17 in support of our motion for preliminary injunction, Your
18 Honor.
19 THE COURT: I' ll admit it for
= 20 whatever it' s worth.
21 MR. WARREN: We have no further
22 questions of this witness, Your Honor.
23 THE COURT: I assume he may step
24 down.
25 MR. BURNS: Yes .
21 Colloquy
1 Your Honor, that is all the evidence we have
2 to offer at this time.
3 THE COURT: All right.
4 MR. WARREN: Your Honor, to assist
5 the Court in getting the exhibits in, and for the record,
6 that the city is going to offer, we ' d like to call Mr.
7 Clemens to the stand.
8 THE COURT: Was he listed?
9 MR. WARREN: Yes.
10 THE COURT: All right, you can do
11 so.
12 Step forward and be sworn, please.
13
14 DAVID CLEMENS Called as a witness on behalf of
the Defendants, having been duly
15 sworn, was examined and testified
as follows:
16
17 MR. WARREN: Your Honor, with the
f
18 Court' s permission, we' d like Mr. Clemens to carry his
19 exhibit over to the board with him so that they could be
= 20 identified from there.
21 THE COURT: Would you rather have
22 him testified from there?
O
23 MR. WARREN: Largely from there,
24 yes.
25 THE COURT: That ' s fine , unless
22 Direct - Clemens
1 anybody has any difficulty hearing him. If you would
2 speak up. You won't have the benefit of a mike, but
3 nobody' s been speaking into it , anyway.
4
THE WITNESS: I ' ll try, Your Honor.
5
6 DIRECT EXAMINATION
7 BY MR. WARREN:
8 Q Mr. Clemens, can you identify for the Court and explain
9 what City ' s Exhibit - - I believe labeled 1-A is?
10 THE COURT: Has it been marked as
11 1-A?
12 THE WITNESS: Yes.
13 THE COURT: That' s backwards , but
14 that' s all right. Leave it as it is.
15 Q (By Mr. Warren) Could you identify the exhibit , please?
16 A Your Honor, the exhibit is a base map of the city of
17 Renton at 1 inch equals 800 feet. On it identified in a
18 red dashed line is the city limits of the city of Renton.
19 Superimposed upon that map is a first overlay consisting
= 20 of a light green, sort of a lime-colored, area which we
21 have identified as commercial and industrially zoned
22 property within the city of Renton.
23 The second overlay is a darker green color,
24 sort of a leaf green color, that identifies the areas in
25 which the city of Renton ordinances related to the location
23 Direct - Clemens
of adult motion pictures , the areas in which adult motto '
2 picture theaters would be allowed.
3 On the darker green area is a dotted line
4 surrounding two small areas which are currently zoned
5 G-1, which is a holding classification. They are not
6 presently zoned business or industrial. However, the
7 comprehensive plan identifies both of these areas as be-
8 ing potentially zoned for those purposes.
9
MR. SMITH: Your Honor, we would
io object to any testimony and move to strike the testimony
11 about the potential use having to do with an ordinance
12 which is not yet in effect. We were dealing, Your Honor,
13 with the initial ordinances passed. As Mr. Burns set out,
14 there have been two additional ordinances, the last of
15 which we heard about this past Monday. We' re talking
16 about an ordinance which really isn' t before the Court.
17 THE COURT: Are these areas that
18 are covered only by that ordinance or would they also be
19 of the same category under the original ordinance?
20 THE WITNESS: This identifies the
21 additional areas from the areas that were allowed under
22 the original ordinance. Portions of this area, generally
23 the southwesterly corner, were areas allowed by the origi al
24 ordinance , and the additional areas northerly were allowe4
25 by the amendments which the city council has adopted.
I
24 Direct - Clemens
THE COURT: Well, I 'm going to
2 hear the testimony. I have some question about its
3 relevance, depending on whether or not you're correct
4 and I deem you correct on the other matter, that is, what
5 is before the Court at this time, but in the interest of
6 getting everything in the record, I 'm going to go ahead
7 and hear the testimony in any event.
8 Q (By Mr. Warren) Mr. Clemens, would you explain to the
9 Court how a parcel would be included or eliminated from
io the dark green area on Exhibit 1-A? Excuse me, let me
11 move on to the next exhibit that we've marked so we' ll
12 get them all identified.
13 A Your Honor, this is identified as Exhibit A-2.
14 Q Is that simply a larger view of the first exhibit?
15 A Yes. The map ' s scale in this case is 1 inch equals 400
16 feet rather than the prior 1 inch equals 80O feet, and
17 it depicts the same information except that it excludes
2
18 the other areas that are zoned business or industrial.
19 MR. WARREN: We 'd offer these first
= 20 two exhibits, Your Honor.
21 THE COURT: It excludes what?
22 THE WITNESS: It excludes the over-
23 lay which identifies the areas - -
24 THE COURT: The light green?
25 THE WITNESS : Yes.
25 Direct - Clemens
THE COURT: It excludes the light
2 green?
3 THE WITNESS: That ' s correct.
4 MR. WARREN: We would offer the
5 first two exhibits, Your Honor.
6 MR. SMITH: We would object to the
7 exhibits on the basis - -
8 THE COURT: The same basis that
9 you've mentioned?
10 MR. SMITH: Yes, Your Honor.
11 THE COURT: I ' ll admit them subject
12 to your objection and to my rulings on that objection.
13 Q (By Mr. Warren) Mr. Clemens , could you now identify the
14 third exhibit?
15 A Your Honor, this exhibit, it' s identified as Exhibit A-3,
16 it ' s an aerial photograph of the area generally in the
17 southwest portion of the city of Renton and identified
18 on this map is a yellow line indicating the areas in which
19 the adult entertainment use, the adult theaters in ques-
a
20 tion in this proceeding, would be allowed.
21 It has a green and white dashed line which
22 identifies areas that are not presently zoned for that
23 purpose, but comprehensively planned for that purpose.
24 It identifies in an orange line street improve-
25 ments which the city of Renton currently has under contra3t
26 Direct - Clemens
1
and it identifies with a light dashed line the city limits
2 of the city of Renton.
3 MR. WARREN: We' d offer this exhi-
4 bit, Your Honor.
5 MR. SMITH: Same objection, Your
6 Honor.
7 THE COURT: All right, it will be
8 admitted provsionally.
9 Q (By Mr. Warren) Mr. Clemens, the fourth exhibit?
10 A The last exhibit is identified as A-4 . It is a aerial
11 photograph of the downtown portion of the city of Renton.
12 Located generally at the center of the photograph are
13 the parcels of property on which the Renton and Roxy
14 Theaters are located.
15 Also identified on the overlay are surrounding
16 uses such as churches , single and multiple family resi-
17 dences, and by an orange line a distance of 1,000 feet
18 from the Renton Theater.
19 MR. WARREN: We' d offer Exhibit
20 4.
21 MR. SMITH: Same objection, Your
22 Honor.
23 THE COURT: Same result. It will
24 be admitted provisionally.
25 MR. WARREN: Your Honor, I 'm sorry
27 Direct - Clemens
1 I misunderstood that objection. I know the Court has
2 indicated it ' s provisional.
3 THE COURT: Does this have anything
4 to do with the difference between the two ordinances?
5 MR. WARREN: No, Your Honor. It
6 shows the location - -
7 MR. SMITH: It certainly does.
8 THE COURT: Wait just a minute.
9 MR. WARREN: It shows the present
10 theaters ' location and the 1,000 foot prescription.
11 THE COURT: Didn' t the original
12 ordinance have a greater restriction?
13 MR. WARREN: Yes, a mile from
14 schools.
15 THE COURT: Does this indicate
16 the distance from schools?
17 MR. WARREN: This indicates simply
18 the least distance that was prescribed in the ordinance,
19 the 1,000 feet, and shows a number of uses within that
20 area.
21 THE COURT: What I 'm asking is - -
22 MR. WARREN: It doesn' t specifically
23 designate how far a mile is from schools, no.
24 THE COURT: Would this map be the
25 same if we were talking only about Ordinance No. 3529?
i
28 Direct - Clemens
MR. WARREN: In my opinion, it
2 would be. We would have prepared it the same way.
3 THE COURT: Well, perhaps Mr.
4 Clemens is the one to indicate that.
5 THE WITNESS : Your Honor, the only
6 difference between this exhibit , which you see before you,
7 and an exhibit which would identifythe prescriptions of
8 the original ordinance would be that at some point about
9 here would be another orange line, which would identify
10 1 mile distance from the Renton Theater.
11 The scale of this aerial photograph is approxi-
12 mately 1 inch equals 74 feet . So that we would be a num-
13 ber of feet off of this photograph before we would reach
14 1 mile.
15 THE COURT: What I 'm asking you is :
16 if this exhibit had been prepared without going as far
17 as you' ve indicated, would there be anything on it that
18 would be different if we were only talking about it in
19 view of the enactment of 3529?
20 THE WITNESS : No, sir.
21 THE COURT: It would be identical?
22 THE WITNESS: I believe it would
23 b e .
24 THE COURT: I ' ll admit it, then.
25 MR. WARREN: Your Honor, if I may
29 Direct - Clemens
approach the Clerk, we have two additional ordinances
2 that are self-proving documents, certified copies from
3 the city of Renton.
4 THE COURT: What do they deal with,
5 counsel?
6 MR. WARREN: Your Honor, there is
7 a considerable amount of the brief of the plaintiff that
8 deals with whether or not theaters are permitted use in
9 the business zone within the city of Renton. The first
10 one is simply a certified copy of the building permit and
11 additional documentation from the city of Renton with
12 respect to a theater that is located within the business
13 district of the city of Renton. This will be prior con-
14
sistent statement and a matter of policy that the city
15 has adopted for some time.
16 MR. BURNS: Your Honor, we have
17 the zoning code in front of the Court. It provides what
18 uses are allowed in the B-1 zones and more intensive use
19 zones. We have Mr. Clemens ' deposition testimony which
20 has been offered as an exhibit , and Exhibit No. 6 within
21 that deposition testimony Mr. Clemens has testified that
22 there is no written administrative policy or guideline
23 that exists within the city of Renton that says that a
24 theater use of any sort is permitted within the B-i zone.
25 The only place that that written administrative policy
30 Direct - Clemens
1 exists is in the pleadings of the defendants in this case.
2
We don' t think that that rises to the dignity
3 to show that a theater is permitted use within the B-1
4
zone. Mr. Clemens has testified that it is not on its
5 face and there' s no written policy. Mr. Clemens has
6 testified that it is , but we 're concerned with what the
zoning ordinance says on its face and its administrative
8 written interpretations , if any, exist, not what they
9 claim today.
10
THE COURT: I understand. I ' ll
11 overrule your objection and admit it.
12
MR. WARREN: Your Honor, the Exhibit
13 No. A-7, I suppose, does not technically need to be ad-
14 mitted as it was contained in an affidavit of the City
15 Clerk, Dale Mead, that was submitted to this Court before
16 we brought any additional copy of our exhibit list to
17 assist the Court in any fashion.
18
THE COURT: It ' s a part of one of
19 the affidavits?
20
MR. WARREN: Yes, it is.
21
THE COURT: I don ' t see any neces-
22 sity for it.
23
MR. WARREN: I just wanted to make
24 sure the record was complete.
25
As the last exhibit , Your Honor, we have had
4
31 Direct - Clemens
marked, and this is a document for Mr. Clemens ' identi-
2 fication, along similar lines with Exhibit No. 5, and I
3 would leave to Mr. Clemens to identify exactly what this
4 document is.
5 THE WITNESS: Your Honor, the
6 document is a list of uses that are not specifically
7 identified within the B-1 zoning district which the city
8 of Renton has issued building and business licenses for
9 extensively throughout our business district . If you
10 will note the preamble to the B-1 districts, which is
11 4-711, the district states a list of uses and other similar
12 uses. The listing that I have prepared is a listing of
13 uses that would fall in that general category.
14 MR. WARREN: We'd offer Exhibit 6 ,
15 Your Honor.
16 MR. BURNS: Your Honor, we have
17 the same objection with respect to this exhibit as we did
18 to B-1. It doesn' t have any probative value with respect
19 to the ordinance on its face or has it been authoritatively
20 construed in any sense of the word.
21 THE COURT: What ' s the exhibit num►-
22 ber?
23 MR. WARREN: A-6 , I believe , Your
24 Honor.
25 THE COURT: A-6 will be admitted.
32 Direct - Clemens
1 Q (By Mr. Warren) Mr. Clemens, using your illustrative
2 exhibits that are on the board, particularly Exhibits
3 A-1 and A-2, if I have the numbers correct , can you
4 explain to the Court how a parcel of land would be
5 included or excluded from the dark green area that you
6 have on that map?
7 A The methodology that was used in preparation of this map
8 was to identify the uses listed in the ordinance and
9 identify the distance from those uses as described in
io the ordinance and, if a portion of the parcel is touched
11 by the prescribed limit, then the entire parcel is ex-
12 eluded. These parcels of property are parcels of proper-
13 ty which are exclusively not touched by any of the pre-
14 scribed limits in the ordinance.
15 Q Were there any large parcels that were touched only par-
16 tially by the arc?
17 A Yes , there were any number of them.
18 Q Is there any simple administrative procedure that one
19 could use to free up portions of those large parcels?
20 A Yes . A platting procedure in the state of Washington
21 under the short plat regulations could subdivide proper-
22 ties to allow additional areas from those identified on
23 the map in the dark greer color.
24 Q Mr. Clemens , have you prepared another overlay to these
25 two exhibits that show other properties that would be
4
33 Direct - Clemens
1 available through the short plat process?
2 A Yes , I have.
3 Q Do you have that with you?
4
(Short pause in proceeding. )
5 Q (By Mr. Warren) Mr. Clemens, do you have that on the
6 right alignment?
7 A I 'm going to have to align it a little better, but we 're
8 getting close.
9 Q Now, just so the Court understands , would you explain
10 what the red areas are?
11 A Your Honor, this is Exhibit No. A-2 and shown on this
12 map as an overlay in a red color are areas that would be
13 available for adult motion picture theaters subject to
14 the platting of those properties and in some cases there
15 may be a requirement for a rezone of the properties.
16 But there are some of the parcels of property within the
17 general area which would be allowable with the platting
2 18 procedure.
19 Q Mr. Clemens , this is with respect to the permissible areas
= 20 for Ordinance 3526 and 3629 , is that correct?
21 A That ' s correct .
22 Q Have you tried to do a similar analysis on just the first
G
23 Ordinance 3526?
24 A Yes . Many of the results would be similar. There would
25 be additional parcel areas that would be allowable by a
34 Direct - Clemens
1 platting procedure.
2 THE COURT: May I ask - - maybe
3 you misspoke -p yourself - what number did you give as
4 the original?
5 MR. WARREN: 3526.
6 THE COURT: Was that right?
MR. WARREN: 29, I 'm sorry.
8 THE COURT: I thought that was
9 3529. Maybe we ought to rephrase the question so the record
10 is correct .
11 Q (By Mr. Warren) Mr. Clemens, did you try and utilize
12 this same procedure with respect to the permitted uses
13 under Ordinance 3529?
14 A Yes, I did, and the results were somewhat similar in that
15 there were additional parcels that were identified, or
16 additional areas which were identified that could be
17 available for adult motion picture theaters by platting
18 large parcels into smaller parcels.
19
MR. WARREN: Your Honor, just for
20 the record, checking our fi-les we believe that the numbers
21 are completely getting out of hand. We have the first
22 ordinance as 3526, the second ordinance 3629, and the
23 third ordinance, which is the one submitted by means of
24 an affidavit previously, was 3637.
25 THE COURT: I think somebody may
35 Direct - Clemens
have misspoken themselves the very first time these were
2 mentioned. I think you may be the culprit.
3 MR. BURNS: I think I am. I'm
4 looking at my brief and I see that I identified the first
5 ordinance 3526 in my brief. So, if I misled the Court,
6 I apologize.
7 THE COURT: You did. Okay, apology
8 accepted.
9 Q (By Mr. Warren) Mr. Clemens, could you now bring up - -
io excuse me, you've already got it up there - - A-2, and
11 explain to the Court the heavy blue lines on that exhibit?
12 A Yes. The heavy blue lines on this map illustrate freeways
13 or major arterial streets in the general vicinity of the
14 areas that we have identified. This large blue line here
15 is Interstate 405 running generally in an east-west direc-
16 tion.
17 The dark blue line here running generally in
18 a north-south direction is the Valley freeway, SR 167.
19 At the west is the West Valley Highway, SR 1
20 - - I'd better not use the number, but it is a state high-
Z
21 way, the West Valley Road.
22 At the extreme south end of the map is a major
0
23 east-west roadway , S.W. 43rd, it ' s identified in the city
24 of Renton. It has a designation of South 180th in the city
25 of Kent because our city limits abut at that point.
36 Direct - Clemens
Running in a north-south direction through
2 the center portion of the map is a major industrial
3 arterial, Lind Avenue, and a number of east-west streets,
4 S.W. Last, S.W. 39th, 34th and the East Valley Road.
5 Again, an industrial arterial.
6 Q With respect to the next exhibit , Exhibit A-3 that has
7 the orange lines on it , could you explain to the Court
8 what roads would be improved under that?
9 A Your Honor, the city of Renton has two major roadway
10 improvement projects going on simultaneously. The bottom
of the map, this orange line, identifies S.W. 43rd Street
12 improvements, which is taking generally a rural two-lane,
13 nonshouldered roadway, which has served extensive traffic
14 exceeding 20,000 vehicles per day for a number of years,
15 and widening it to a four and five-lane street section
16 to provide east-west access in a more acceptable manner
17 and bringing the levels of service down to typical urban
18 standards .
19 Also you' ll notice this reverse capital F
= 20 shaped orange line generally along the easterly portion
21 of the map and this is the local improvement district No.
22 3l4 which is intended to improve the East Valley Road and
= 23 construct S.W. 19th and S.W. 27th providing access to a
24 number of parcels of property.
25 Q Mr. Clemens , with respect to S.W. 43rd could
P ycu explain
37 Direct - Clemens
1 to the Court what that road serves going both east and
2 west along it?
3 A The area generally to the east of this aerial photograph
4 is predominantly residential in character, the Souss
5 (phonetic ) Creek Plateau area that abuts the southeasterly
6 portion of the city of Renton.
7 Generally to the west, to the immediate west,
8 are industrial and commercial areas of the city of Tukwila
9 and, then, immediately beyond those the residential areas
10 of the Highline area of King County.
11 Q Could you locate for the Court generally where Southcenter
12 would be?
13 A Southcenter would be approximately the same distance off
)
14 of the map as the distance between Valley Freeway and
15 West Valley Road again to the west. Approximately this
16 location.
17 Q Mr. Clemens , going back to the prior exhibit , if you could,
18
O4 , could you explain to the Court the access corridors to
19 the property that has been identified on your exhibit in
c = 20 green and red?
21 A The available access to this area comes from each of the
8 22 four major directions . From the south we have access by
23 the Valley Freeway which extends to the city of Tacoma on
24 the south.
25 On the north accessing from both east and west
4
38 Direct - Clemens
4
is Interstate 405 .
2 From the southwest we have access via the
3 West Valley Road and the extension of 180th.
4 Q Could you show the Court if somebody was coming along
5 405 in an east or westerly direction, either way, how
6 they would get to the property that is in the green?
7 A If you were going to an area in the northerly portion,
8 I would probably come down Interstate 405, take the Rainier
9 Avenue off-ramp to the intersection of Grady Way, make
10 two lefts, the second left being Lind Avenue, and that
11 would place you on the major industrial corridor passing
12 through the entire area.
13 If I was coming from the east , or if I was
14 coming from the same direction I was going to the southerly
15 end, there' s an easier route and that would be to take
16 405 to the Valley Freeway, take the Valley Freeway south
17 to . the first exit and enter the area immediately off of
18 the freeway off-ramp at S.W. 41st Street.
19 Q How about a piece of property on the very westerly portion
20 of the green?
21 A A couple of alternatives. From the west there ' s access
22 off of the West Valley Road via Monster Road, and from
23 the southwest at the intersection of S.W. 43rd and West
24 Valley Highway.
25 Q Could you explain to the Court, again using those same
39 Direct - Clemens
roads, where one would have to go to get to the foxy and
2 Renton Theaters at their present locations?
3 A The theaters in question are located in approximately this
4 location between Morris and Smithers Avenue South and
5 South 3rd Street, which is this top blue line on the
6 exhibit.
7 From the westerly direction, the easiest inter-
8 change is the Rainier Avenue interchange with 405, north-
9 erly through a number of traffic signals to South 3rd and
10 then easterly along South 3rd to the theaters.
11 Q Mr. Clemens, if one is coming down 405, could you express
12 your opinion, from your knowledge of the area, which of
13 the locations, either in the green area or the Roxy and
14 Renton, is the most accessible to traffic?
15 A My own opinion of the traffic situation is that from the
16 east, because of the extensive distance between the free-
17 way off-ramp and the downtown area, I would believe that
18 the area shown in green is actually more accessible time-
19 wise, although it would be slightly longer in terms of
20 overall miles distance.
21 Q How about coming from the west?
22 A From the west the access via 405 would be equal to this
23 point. The traffic congestion moving towards the center
24 of town would certainly be greater than extending out into
25 the area that we've shown in the green color. I would
40 Direct - Clemens
believe that from the west that access to this area would
2 be at least equal to, if not better on a time basis.
3 Again it would be slightly more in terms of distance.
4 Q Just for the Court ' s information, could you please locate
5 Longacres on the map?
6 A Yes. Longacres is identified on the map in this oval
and the words "Longacres Race Track" is identified on the
8 map.
9 Q Mr. Clemens, would you relate to the Court briefly, using
10 the aerial photograph of downtown Renton, which I believe
is Exhibit A-4 , could you relate to the Court now using
12 this exhibit as an example what the parking situation
13 is like around the Roxy and Renton? -
14 A The parking in the vicinity of the theaters is, to the
15 best of my knowledge , all in private ownership of the
16 businesses or residences in the area, with the exception
17 of on-street rya king. The only parking lot available is
18 a public parking lot of the cityof
Renton located on
19 i urrett Avenue South between South 2n.,i and actually South
._
•
20
21 This photograph is about one year out of date
22 and this parking. lot is now complete. So the parking
t'
23 �iiG be _cc -+ approximately y a blockar,c� a half to the
24 eas , and i s pL,1J _ic parking.
25 Q Mr. Clemens , is there any restrictions , to the best of
4l Direct - Clemens
• your knowledge, on the parking on Burnett during any
2 evening hours?
3 A I don' t really know.
4 Q Mr. Clemens, with respect to the traffic in front of the
5 Roxy and the Renton Theaters , is there any unusual cir-
6 cumstances that occur on the weekends?
7 A Yes . For a number of years the city of Renton has had
8 what has been called the "loop" which is an area where
9 young people have tended to congregate, drive their
10 vehicles around the one-way street loops , which consist
11 of South 2nd going westerly and South 3rd going easterly.
12 The city of Renton Police Department has had considerable
13 difficulty dealing with the traffic congestion, people
14 parking in off-street areas in the adjoining residential
15 neighborhoods , and so on.
16 Q Is there any traffic control devices utilized on the week-
17 end if this problem becomes severe, to the best of your
18 knowledge?
19 A When the problem becomes very severe , South 3rd Street
20 is sometimes blocked at Rainier Avenue, which is just
21 off the aerial photograph, and no traffic is allowed except
22 local business or residential traffic .
23 Q And South 3rd is the street that runs in front of the
24 two theaters in question?
25 A That ' s correct.
42 Direct - Clemens
Q Could you point out to the Court the surrounding neighbor-
2 hood of the Renton and Roxy Theaters and explain some
3 of the labels that you have attached to the exhibit?
4 A The most immediate adjoining uses to both the Renton and
5 Roxy Theaters are multiple family residential apartment
6 units. In the case of the Roxy Theater, it ' s in the same
7 building. In the case of the Renton Theater, it' s in an
8 adjoining building.
9 The next closest uses are a church and single
10 family residential homes to the south. Another church.
11 Actually two more churches . St. Anthony' s Elementary
12 School and its play yard.
13 And to the north there' s an area of a variety
14 of commercial uses and at South 2nd Street we reach Renton
15 High School.
16 Q Are all the uses you've just described within the 1,000-
17 foot limitation you' ve marked on your Exhibit A-4?
18 A That' s correct.
19 Q Mr. Clemens, could I have ycu turn again to Exhibit A-1
20 for just a moment. Can you point out to the Court on that
21 exhibit , or in all of the commercial and industrial zoned
22 property shown on the licnt green, where the greatest
23 acreage within the city .t is undeveloped or in develop-
24 ment at the present time mEht be located within the com-
25 mercial and industrial zcne?
43 Direct - Clemens
A Your Honor, with the exception of relatively small parcels,
2 the area from approximately this point northerly or east-
3 erly are primarily developed, existing commercial develop-
4 ment of various types.
5 From approximately this point westerly and
6 southerly are areas that are currently undeveloped and
7 in the processof transition to developed uses.
8 Q For the record, Mr. Clemens , could you explain where you
g were pointing so we make sure we understand on this exhi-
10 bit?
>> A Okay.
12 Q Use words rather than gestures.
13 A All right. Commencing at the Interstate 405 and Valley
14 Freeway interchange, which is identified on the map, and
15 extending a line northwesterly to the city limits, that
16 was the demarcation line that I was illustrating with my
17 hand.
18 Q Most of the property that is developable is in what direc-
19 tion from that line?
20 A To the south and west from that line.
21 MR. WARREN: Thank you. That ' s
22 all the ques:iens I have, Your donor.
23 MR. SPilT I: If it please the Court.
24 THE COURT: Yes.
25
44 Direct - Clemens
1 CROSS-EXAMINATION
2 BY MR. SMITH:
3 Q On this exhibit, sir, I notice a green area right up
4 here.
5 A Yes.
6 Q What is that?
7 A It is a separate tax lot within the ownership of the
8 Pacific Car and Foundry Company.
9 Q What does that green designation mean?
10 A It means that it is within the area that an adult motion
11 picture theater would be allowed.
12 Q I hand you an exhibit to your affidavit. Would you tell
13 the Court where you've designated that on the map that
14 you attached to your affidavit?
15 A It apparently failed to be included on this exhibit.
16 Q It failed to be included on the exhibit.
17 MR. SMITH: This is a map that ' s
18 been previously introduced. It ' s a part of the affidavit
19 of Mr. Clemens in support of the motion for summary judg-
= 20 ment.
21 Q (By Mr. Smith) So this area is not included, correct, in
22 this affidavit and on this map?
23 A That' s correct.
24 Q Would you take this down, and I want to ask you some ques-
25 tiens about this particular exhibit. Do you know what
45 Cross - Clemens
this map is , sir? Have you ever seen it before? It ' s
2 marked Exhibit 8.
3 A This is a map that was prepared on the instructions of
4 city attorney to be presented to yourselves for the pur-
5 poses of the - - or at the instruction of the Magistrate
6 as the result of the deposition that was held earlier
7 this year.
8 MR. WARREN: Your Honor, we 're go-
9 ing to object to any testimony on this particular exhibit
10 for two reasons. One, it was introduced in their case,
11 not ours, and not subject to cross-examination, and also
12 it ' s outside the scope of the direct.
13 THE COURT: I ' ll let him re-open
14 his case. Go ahead.
15 Q (By Mr. Smith) You prepared this, is that correct?
16 A That ' s correct.
17 Q What are the areas in red designated here , sir?
18 A The areas in red are the illustrations of the distances
19 from the uses protected by the original zoning ordinance.
20 Was that 3526? I believe that ' s correct.
21 Q What you're saying is that these are the areas that were
22 allowed in which an adult theater could be located; the
23 areas within that marked red?
24 A Those are the prescribed limits from the protected uses.
25 Q And that parallels this first exhibit , which was introduced
46 Cross - Clemens
1 over here? Is that not correct, sir, that which is mark-
2 ed Exhibit No. 1?
3 A Yes, I believe it does.
4 Q This is the exhibit that was brought into court about
5 which you testified, is that not correct?
6 A Yes.
7 Q Now, what are these green areas that have been now denoted
8 within the red area, sir?
9 A Those are the areas where the prescriptions of the Ordi-
10 nance 3526 would allow adult motion picture uses.
11 Q Didn' t you testify to the Court that the green areas in
12 this larger map were the areas where an adult theater
13 could locate?
14 A Yes , sir, I did, and I was wrong.
15 Q You were wrong?
16 A That' s correct .
17 Q So at the time you testified here against the temporary
18 injunction, you said all these areas were areas where a
19 theater could locate, but you were wrong?
20 A That ' s correct.
21 Q And now you' ve taken another map and have taken the same
22 areas that you said it was okay and you've delineated
23 those even smaller now, have you not, sir?
24 A That ' s correct.
25 Q At least as to this ordinance , is that correct?
47 Cross - Clemens
1 A That ' s correct.
2 Q And then when the affidavit that you submitted with the
3 map, you left an area out also, is that correct?
4 A That is correct.
5 Q All right.
6 MR. SMITH: Your Honor, most of
7 the questions I now will be asking will be direct, if
8 he wants for his convenience, to return to the witness
9 stand.
10 THE COURT: All right. It may be
11 easier if you do that.
12 Q (By Mr. Smith) Sir, you were asked today by counsel for
13 the city to discuss traffic problems in connection with
14 the West 3rd Avenue area, is that correct?
15 A West 3rd? I 'm not familiar with that street.
16 Q Well, the area where the Renton and Roxy are located.
17 A South 3rd.
18 Q South 3rd. Is that correct?
19 A Yes.
= 20 Q Were you called before the city council and asked to give
21 that same discussion?
22 A We discussed traffic problems so many times, I don' t know
23 whether it was in regard to this matter.
24 Q Do you have any independent recollection, as you sit there,
25 of having been called before the city council in connection
48 Cross - Clemens
1 with the adult entertainment ordinance and discussing
2 the traffic flow and traffic patterns and traffic prob-
3 lems?
4 A (Pause ) I can' t recollect specifically either way.
5 Q It doesn' t strike you as you having done it, having appeal -
6 ed, does it?
7 A I simply can' t tell you either way.
8 Q Okay. Now, let me ask you in connection with the police
9 - - you were asked the question whether or not when the
10 traffic problems became very severe , did the police do
11 anything in order to control traffic , and I think you
12 said they blocked off part of the 3rd Street , is that
13 correct?
14 A That' s correct.
15 Q And you said it would only then let, what, business use
16 in and residential?
17 A That ' s correct.
18 Q Which would mean if somebody were going to the Renton or
19 Roxy Theater, they would be allowed into the area, is
= 20 that correct?
21 A Yes.
22 Q So the blocking off of that area on weekends really doesn' t
23 have anything to do with this matter, as far as you' re
24 concerned, does it?
25 A It certainly would make it more ^ircuitous because the
49 Cross - Clemens
route that you would take would not be along South 3rd.
2 Q Well they could go through there. I mean, a potential
3 patron could go there and T just say where you' re going,
4 couldn' t you?
5 A Yes.
6 Q And would be allowed through by the police , isn' t that
7 correct?
8 A On a different route.
9 Q On a different route?
10 A That ' s correct .
11 Q But would be allowed through?
12 A Yes.
13 Q Now, about the parking. Suppose , let ' s say , this was
14 not an adult potential use and there were just two regular
15 35 millimeter theaters that held approximately 6 to 800
16 people total. Would the same problems with parking that
ry 17 you' ve identified today be in existence, sir?
18 A Yes, they would.
19 Q So that doesn' t change anything, does it?
20 A No.
21 Q Were you asked to appear before the city council and tell
22 them about the parking problems in connection with the
23 Renton and Roxy Theaters in connection with the adoption
24 of this order and the ordinances involved herein?
25 A (Pause )
50 Cross - Clemens
MR. WARREN: Your Honor, to cut
2 this short , it appears on the exhibit that counsel has
3 admitted previously as Exhibit 1, which is a tape of the
4 minutes of the council hearing, he did. If it doesn' t
5 appear, he didn' t.
6 THE COURT: Do we have all the
7 hearings that there were on that tape?
8 MR. SMITH: I have what was given
9 us , Your Honor.
10 MR. WARREN: Your Honor, he' s ask-
11 ing about appearing before the council. Appearing before
12 the full city council there are - -
13 THE COURT: I think in connection
14 with the adult ordinances.
15 MR. SMITH: Any of the ordinances
16 herein.
17 THE COURT: I' ll let him answer it,
18 if he can.
19 THE WITNESS : Your Honor, there
20 were a number of study sessions held by committees of the
21 council which there was extensive discussion on a number
22 of issues. At this point I can' t recollect specifically
23 whether that issue was discussed about those theaters .
24 We did talk about parking problems for adult theaters.
25 Q (By Mr. Smith) You did talk about parking problems for
Cross - Clemens
51
adult theaters?
2 A Yes.
3 Q In what context, sir?
4 A That adult theaters would draw traffic - - or draw
5 patrons from large areas and would need available park-
6 ing.
7 Q Now, what studies did you undertake to do that made you
8 qualified or give you the expertise to make that kind of
9 statement to any of the committees?
10 A We reviewed the case of the City of Seattle vs. North End
11 Theater, and the background that was contained in that
12 case was primarily the basis.
13 Q You read the case, is that correct?
14 A Yes .
15 Q And you read a letter or sort of an opinion letter by one
16 of the city attorneys, is that correct?
17 A Yes.
18 Q And nothing else, isn' t that true?
19 MR. WARREN: Your Honor, I 'm going
20 to object. This is not a member of the city council and
21 there were other people who testified that this is the
22 sole basis of what he said or what he thought. I don' t
23 see that it ' s relevant.
24 THE COURT: Well, if we're clear
25 we ' re only talking about Mr. Clemens.
52 Cross - Clemens
MR. SMITH: That ' s correct .
2 THE COURT: He can testify what
3 he read and what he based his recommendations on. He
4 can' t, certainly, testify for everybody on the city coun-
5 cil.
6 Q (By Mr. Smith) You can answer, Mr. Clemens.
7 A If you' d repeat the question, please?
8 Q Yes. Other than the North End Cinema case itself, pub-
9 lished decision, and the letter from one of the city
io attorneys sort of summarizing the decision, did you read
any other documents in connection with that case?
12 MR. WARREN: With respect to park-
13 ing, Your Honor, or what?
14 MR. SMITH: Parking was the issue
15 that I was addressing because that' s the issue I think he
16 said he had some conversation before one of the commis-
17 sions.
18 THE COURT: You are talking about
19 in connection with parking?
= 20 MR. SMITH: Yes, sir.
21 THE WITNESS : That was the material
22 that we reviewed, yes .
23 Q (Ey Mr. Smith) And no other?
24 A That ' s all that I can recall at this time.
25 MR. SMITH: Excuse me, Your Honor.
53 Cross - Clemens
(Pause in proceeding. )
2 Q (By Mr. Smith) Sir, would you tell us by any of the
3 exhibits that are up here which zone as a matter of right
4 an adult theater is permitted to locate in; as a matter
5 of right?
6 A The city of Renton allows theaters to be located within
7 the B-1 zoning classification as a matter of right.
8 Q As a matter of right?
9 A As a matter of right.
10 Q Now, is that a policy or is that by zoning ordinance, sir?
11 MR. WARREN: I object, Your Honor.
12 The zoning ordinance is a continuing document that has - -
13 its interpretation was made by administrative determina-
14 tion. And, "As a matter of right, " it is now a legal
15 term that they're asking this witness to testify to and I
16 don' t think he can do that. That' s up to the Court
17 eventually.
18 THE COURT: I'm not going to allow
19 him - - I don' t think he can testify as to whether it ' s
20 a matter of right. I ' ll sustain the objection.
21 Q (By Mr. Smith) Well , sir, if somebody wanted to put a
22 service station in the city of Renton, there are areas
23 which you set aside by zoning for service stations?
24 A Yes.
25 Q Does it say a service station may locate in this area?
54 Cross - Clemens
1 A I haven' t looked at the B-1 district in the last couple
2 of days , but I would guess that it does.
3 Q Now, is there a comparable zoning ordinance which says
4 adult theaters can locate in this area?
5 A No, there is not.
6 Q Would you explain to the Court the difference between
7 one that says a service station may locate in this area
8 and the other one which does not say an adult theater
9 can locate in this area?
10 A The distinction is that the ordinance says, "And other
11 similar uses. " The city of Renton hired professionals
12 in planning and building to interpret whether "other
13 similar uses" fall within the classifications that are
14 prescribed.
15 In the case of the city of Renton' s zoning
16 ordinance, there is only one business district , the B-1
17 district . We have a variety of industrial districts.
18 We have a variety of residential districts, but we have
19 only one district prescribed for commercial uses. So as
20 a result of that , significant weight is given to commer-
21 cial uses that propose to locate within that district.
22 Q Would you tell me on this exhibit that you've previously
2
23 identified that shows a list of the retail service or
24 business uses allowed within the city of Renton under the
25 provision of the B-1 zoning district , which one parallels
55 Cross - Clemens
an adult theater, which of the uses that are listed here?
2 MR. WARREN: I'm going to object
3 to the question, Your Honor. I don' t think this witness
4 can answer that and - -
5 THE COURT: He prepared the exhi-
6 bit. Which exhibit is that?
7 MR. WARREN: Exhibit A-6 , I believe,
8 Your Honor.
9 THE COURT: Would you hand him the
10 exhibit?
11 THE WITNESS: Your Honor, the list-
12 ing in this exhibit is a list of uses which are not listed
13 in the zoning ordinance of the city of Renton, but which
14 have been allowed by administrative doctrine both by the
15 planning department and building department over a number
16 of years that have located in the B-1 district.
17 Q (By Mr. Smith) Would you tell us which of these uses
18 would be comparable to an adult theater?
19 A States as the second item from the bottom, "Theaters . "
20 Q Do you distinguish between theaters and adult theaters
21 in any of your zoning ordinances, sir?
22 A No.
= 23 Q You do not?
24 A No.
25 Q The Renton and Roxy could open tomorrow without any concern
56 Cross - Clemens
about being 1,000 feet from any church or residential
2 location, sir?
3 A That' s correct.
4 Q As an adult use?
5 A No, sir.
6 Q But then there is a difference between a regular theater
7 and an adult theater in your perception, is that not
8 correct?
9 A Yes.
t0 Q So, then, which of the uses that you detail in this exhi-
ii bit would parallel an adult theater?
12 MR. WARREN: Your Honor, I'm
13 objecting because he ' s trying to argue with the witness
14 about the exhibit and mischaracterizes it.
15 THE COURT: He' s already answered
16 the question. The one that he feels is most similar is
17 that for theaters.
18 Q (By Mr. Smith) Now, sir, you told us about the short
19 plat technique of being able to get zoning approved, is
20 that correct?
21 A Short platting to subdivide property into smaller parcels ,
22 Q Would you tell us briefly in your perception how the
23 short plat technique is going to work?
24 A Short platting is allowed for properties to be divided
25 into - - up to four different lots and the procedures
57 Cross - Clemens
1 are prescribed in our subdivision ordinance requiring a
2 public hearing before the hearing examiner, and subject
3 to the conditions which may be established either by the
4 subdivision ordinance or by the examiner as special con-
5 ditions, the plat would be recorded and the lot would be
6 divided.
7 Q What standard does the hearing examiner apply in deter-
8 mining whether an adult theater could do a short plat?
9 A We 're not talking about an adult theater. We 're speaking
10 about a subdivision of land. There is never a discussion
11 of the use of that land in a subdivision process.
12 Q So that whoever came and wanted to subdivide into four
13 separate segments , - - is that what it is?
14 A Four separate lots.
15 Q And there would be no requirement or no necessity of
16 identifying one of the uses as being an adult theater use,
17 is that correct?
18 A No, sir.
19 Q Is there anything which would stop the city council from
20 the following week passing an ordinance making it impos-
21 sible for an adult theater to locate in that area?
22 MR. WARREN: I'm going to object
23 to the question because it ' s a legal question, Your Honor.
24 THE COURT: Sustained.
25 Q (By Mr. Smith) How many different ordinances has the city
58 Cross - Clemens
council purported to pass relating to adult entertainment
2 uses since the first of January, 1982?
3 MR. WARREN: If he knows , Your
4 Honor.
5 THE COURT: If you know.
6 A I believe there have been two. I 'm not positive.
7 Q (By Mr. Smith) And you have delineated, depending on how
8 closely you review your maps, differing time and differ-
s ing areas where you felt adult theater uses could be
io located, is that not correct?
11 A Yes. The maps that have been presented by the plaintiff
12 are maps that were prepared as a result of the first
13 ordinance. The maps which I have brought for today' s
14 hearing are in relationship to the most recent ordinance
15 adopted by the city.
16 Q And the mistakes that appear on the ones originally, were
17 those of your making? Is that correct?
18 A Yes.
19 Q Sir, on the areas that you' ve indicated - -
= 20 MR. SMITH: If I may approach the
21 board, please?
22 Q (By Mr. Smith) Now, is any of the area that is indicated
23 in the green now zoned for residential use?
24 THE COURT: Which color green?
25 MR. SMITH: I 'm saying of the area-
59 Cross - Clemens
1 zoned, any green.
2 A The dark green color covers two areas that you' ll note
3 are slightly less green. Those are areas that are
4 presently zoned a G-1 classification, which is a holding
5 residential classification.
6 Q (By Mr. Smith) Just 'residential?
7 A Yes.
8 Q So if these areas which are residential are hold, then
9 one would have to mark or delineate a 1,000 feet from
10 any area zoned as residential for locating an adult
11 theater, isn' t that correct?
12 A No.
13 Q Why not?
14 A Because the ordinance does not specify it.
15 Q The ordinance does not specify it?
16 A That ' s correct.
17 Q Who would have to take the responsibility of seeking a
18 rezoning of the areas which are in the lighter green?
19 A The person proposing to use the property for other than
20 residential purposes.
21 Q Now, could you tell the Court what the situation is with
22 regard to street lighting in the area that is green at the
23 bottom?
24 A To the best of my knowledge, the city ' s subdivision re-
25 quirements require street lighting on all public streets.
60 Cross - Clemens
1 I have not independently investigated whether the street
2 lights in that area are up and working.
3 Q In connection with the area that ' s marked in a dark green
4 here, are there any public streets that run through there?
5 A Yes.
6 Q At the present time?
7 A That ' s correct.
8 Q And you have no idea whether there' s any lighting there?
9 A That ' s correct.
10 Q The area that you designated up here , you say is part of
11 the Pacific Car Foundry location?
12 A Yes.
13 Q When did you first discover that that was available for
14 adult use?
15 A It was after the preparation of my affidavit.
16 Q And how did you discover that?
17 A I simply misread one of my earlier working maps.
18 Q Did you do an eyeball inspection of that area, sir?
19 A Yes , I have.
20 Q And what is that location presently used for?
21 A It ' s a part of the truck testing facility that ' s a part
22 of the PACCAR facility.
23 Q It is currently used as a truck testing facility?
24 A Yes, it is.
25 Q At the present time? -
A Yes.
61 Cross - Clemens
1 Q All right. Now, what about the area that' s marked down
2 here off of - -
3 A I believe that' s Hardy and Southwest 7th.
4 Q Yes. In the corner there. Have you done an eyeball
5 inspection of that piece, sir?
6 A As Mr. Johnson testified earlier, there' s a Shakey' s Pizza
7 Parlor and a Burger King Restaurant.
8 Q Is there any other property available in that area that
9 you know of?
10 A No. Only the parcels that those are currently on.
11 Q And they're brand new, are they not? Aren' t they brand
12 new within the past four or five years?
13 A Yes.
14 Q So that the area over here that - - it looks like a river
15 channel is flowing through that. What does that mean,
16 sir?
17 A That ' s an abandoned channel. The channel is no longer in
18 that location.
19 Q It ' s not part of the flood plain?
= 20 A No.
21 Q And that ' s on Thomas Avenue?
22 A That ' s correct.
23 Q Did you do an eyeball inspection of that area?
24 A Yes, I have.
25 Q Is that part of the industrial park?
62 Cross - Clemens
1 A There is an industrial building on the property.
2 Q Is there a plan that' s been filed to designate that as
3 an industrial park?
4 A It already is.
5 Q It is an industrial park. Light manufacturing, sir?
6 A I believe it ' s a warehouse.
7 Q Have you noticed whether there are any street lights in
8 that particular area?
9 A No, I have not reviewed that.
10 Q Now, down here at the bottom there are a series of com-
ments about, "It ' s a Burlington Northern Industrial Park"
12 that encompasses most of the green area here, is that
13 correct?
14 A A substantial portion of it , yes .
15 Q Do youhave any idea what limitations the Burlington
16 Northern places on prospective tenants in this location?
17 MR. WARREN: I 'm going to object
18 to the line of questioning, Your Honor. We' re well out-
19 side the scope of the direct . He' s going parcel by parcel ,
20 apparently.
21 THE COURT: Well, I 'd allow him
22 to re-open, anyway, and call him. Did he list this
23 gentleman as a witness?
24 MR. WARREN: Mr. Clemens , no.
25 THE COURT: I ' ll have to cut you
63 Cross - Clemens
1 off, then. Sustained.
2 MR. SMITH: This is in response to
3 the examination where they put the areas up. We have
4 had a series of changes in the location which then we 're
5 confronted with another change , as I said in part, which
6 is here, new evidence which is introduced. It relates
7 to orange areas which we can now do platting. So this
8 is all part of the - -
9 THE COURT: I would let you inquire
10 on cross with respect to his knowledge of the current
11 uses of property where the maps they' ve now prepared are
12 different and show different parcels than have been shown
13 on the earlier maps. I'd allow you to cross-examine him
14 on those.
15 Q (By Mr. Smith) Now, sir, this is again the Exhibit No.
16 8 and the area you've marked in green is the area that
17 you feel from your examination under the original ordi-
18 nance an adult theater use could be located, is that
19 correct?
20 A That is correct .
21 Q Ncw, is there any different areas on the exhibit that
22 you' ve now brought in here, which is designated as A-1,
23 and the overlays, any different uses that are currently
24 being put to the land in this area for the green than was
25 used in the area designated again on this map?
64 Cross - Clemens
1 A I 'm afraid your question got lost.
2 Q Okay. I ' ll withdraw it.
3 If someone would come into your office as of
4 the first of January of 1982 and inquire concerning the
5 areas available in which to put an adult motion picture
6 theater, which areas could he have found by inspection
7 of the zoning ordinance were available, if you know?
8 A By inspection of the zoning ordinance?
9 Q Correct.
10 A The two classifications of the ordinance which you would
11 look to would be the business district to determine
12 whether a theater is allowed, secondly, the section on
13 adult entertainment land uses , which speaks to adult
14 theaters.
15 Q And the only area that one on June 1, 1982, could have
16 determined was available is the area now marked in green
17 on Exhibit 8, is that correct?
18 A On that date, yes .
19 Q On that date.
20 MR. SMITH: Thank you. No further
21 questions .
22 MR. WARREN: Just one or two ques-
23
tion5.
24
25
65 Cross - Clemens
REDIRECT EXAMINATION
2 BY MR. WARREN:
3 Q Mr. Clemens, with respect to the first map, and that was
4 the exhibit from the temporary restraining order hearing,
5 how long did you have to prepare that map?
6 A A matter of hours .
7 THE COURT: Which exhibit are we
8 talking about , 8?
9 MR. WARREN: I don' t know the
io designation, but it was the exhibit from the temporary
11 restraining order hearing.
12 THE COURT: Oh, yes. All right.
13 Q (By Mr. Warren) And, Mr. Clemens, you subsequently
14 obviously found an error on that first map. Can you tell
15 me the source of the error?
16 A Yes . The source of the error is that the concluding sec-
17 tion of the adult entertainment land use district states
18 that where a portion of a piece of property is within
19 the prescribed distances , the entire parcel is eliminated.
20 As a result the number of parcels were eliminated because
21 of that section.
22 Q Now, with respect to the light green parcels on Exhibit
23 1-A with the white dashed line around it , which you
24 explained G-1 zone and as a holding zone, do you know the
25 comprehensive plan designation for those parcels?
66 Redirect - Clemens
1 A Yes . They are industrial park, with the exception of the
2 city' s parcel which is currently a green belt - wet land
3 area.
4 Q Mr. Clemens, outside of environmental reasons that might
5 be put forward for the larger of those parcels, do you
6 know of any reason why that property could not be rezoned
7 - -
8 MR. SMITH: Objection, Your Honor.
9 Counsel has argued he' s not a lawyer, he' s not qualified.
10 THE COURT: Well, he' s a planning
11 and zoning expert , isn't he?
12 MR. SMITH: Your Honor, I'm just
13 saying that the objection they made to the questions I
14 asked him calling for expertise he didn' t have.
15 THE COURT: I ' ll 'overrule the
16 objection.
17 THE WITNESS: Subject to environ-
18 mental considerations, I believe that the property could
19 be zoned industrial park as shown in the comprehensive
20 plan.
21 MR. WARREN: No further questions.
22
23 RECROSS-EXAMINATION
24 BY MR. SMITH:
25 Q Environmental considerations means what , sir?
67 Redirect - Clemens
Recross - Clemens
A Would include both the natural and human environments.
2 Q And human environment would include parking and traffic
3 patterns, would it not?
4 A Yes.
5 Q Is there any way that someone would know in advance what
6 the rules and regulations were that were going to be
7 applied in terms of the natural environment?
8 A Yes. Both the State and National Environmental Policy
9 Acts spell out the provisions quite clearly.
10 Q And what about with regard to the parking aspect and the
11 traffic pattern? Would someone know in advance how you
12 all were going to apply those environmental concerns?
13 A Yes. The city has a parking-loading ordinance which
14 prescribes certain amounts of parking, number of driveways,
15 and those kinds of things.
16 Q Is the Renton and Roxy Theaters in violation of that
17 policy?
18 A No, sir.
19 Q Pardon?
20 A No, sir.
21 Q They are not?
22 A No, sir.
23 Q When did you learn that you had left out a piece on one
24 of the exhibits where the Pacific Car Foundry was located?
25 MR. WARREN : Objection. Asked and
68 Recross - Clemens
answered.
2 THE COURT: Well, maybe it has
3 been. I ' ll let him answer it .
4 A It was after the preparation of the affidavit.
5 Q (By Mr. Smith) Which was some time in May? May 26, 1982.
6 Does that sound correct?
7 A If that ' s the date on it. I don' t have it before me.
8 Q Did you or, if you know, the attorney for the city tell
9 counsel for the plaintiffs about that omission on your
io part prior to coming to court today?
11 A I 'm not even sure that I brought it up with counsel because
12 I realized that the parcel was already developed.
13 Q You had lots of time - - when you say, "The parcel was
14 already developed, " what does that mean?
15 A There' s an existing use on the property.
16 Q Which means it can' t really be used, practically speaking,
17 for an adult theater, is that correct?
18 A Correct .
19 Q Now, you had plenty of time to assert that the error was
20 made and to advise counsel for the city , did you not ,
21 sir?
22 A Yes.
23 Q You didn ' t . You .just chose not to let them know, is that
24 correct?
25 A Yes .
{
69 Recross - Clemens
Q All right. Now, how long after you did the initial exhibit ,
2 we 're talking about the map you testified in connection
3 with the hearing on the temporary restraining order, how
4 long after you did that map was it before you learned
5 that you had made a significant error?
6 MR. WARREN : Object to the charac-
7 terization.
8 THE COURT: Overruled.
9 A It was after the hearing.
10 Q (By Mr. Smith) The same day?
11 A No. It would have been within a period of - - could
12 have been several weeks after the hearing.
13 Q And did you then call that to the attention of your
14 attorneys?
15 A Yes, we did.
16 Q And did you call that to the attention of the Court to
17 tell them that you had made an error in your testimony?
18 A No, sir. I made the information available to counsel.
19 Q And you did not yourself communicate it to counsel for
20 the plaintiff?
21 A No, sir.
22 Q Do you know whether or not your counsel communicated it
23 to counsel for the plaintiff or to the Court?
24 A I have no independent knowledge of that.
25 Q Did you write a letter to them telling your counselthat
70 Recross - Clemens
you had discovered this significant error?
2 A Nc, sir.
3 Q Did you discover the error prior to your deposition taker.
4 in early March?
5 A Yes.
6 Q And this map that you prepared is the one that you did
7 not - - you refused to give counsel at the time of your
8 deposition, isn' t that true?
9 A That' s correct.
to MR. SMITH: Thank you. No further
11 questions.
12 MR. WARREN: I have no further
13 questions, Your Honor.
14 THE COURT: You may step down,
15 Mr. Clemens.
16 MR. WARREN: Your Honor, the city
17 wishes to read several very brief portions of Mr. Forbes '
18 deposition into the record.
19 THE COURT: Okay. I think before
20 we do that , we're going to take a brief recess. We ' ll
21 be in recess until a quarter to 4 : 00.
22 (A recess was taken at this time. )
23
24 MR. WARREN: Thank you, Your Honor
25 I 'm now reading, Your Honor, from the deposit on
71 Recross - Clemens
1 of Mr. Forbes. It was taken May 27 - -
2 THE COURT: Let me shorten this
3 up. Is there some reason why these depositions can't
4 be introduced with an indication to me what portions to
5 read rather than reading them into the record?
6 MR. WARREN: Fine. I' ll be happy
7 to do so.
8 THE COURT: I'd certainly like to
9 shorten it up. I don' t see any reason to read it into
10 the record.
11 MR. WARREN: They were so brief,
12 but that ' s fine , Your Honor.
13 THE COURT: If they're very, very
14 short , let' s do that.
15 MR. WARREN: The first one is less
16 than half a page. On page 16 of Mr. Forbes ' deposition.
17 "Did you make any inqueries of a formal nature
18 to the city of Renton outside of an application for a
19 business license?"
20 "Well, we certainly got a copy of the ordinance
21 before we purchased the theaters , I would believe. "
22 "Did you discuss or inquire of the city about
23 J,ny other locations within the city limits of the city of
24 Renton outside of the locations of the Renton and Roxy
25 Theaters?"
72 Forbes Deposition
"No. "
2 The next item is on page 26 , Your Honor.
3 MR. SMITH: May I have just a mo-
4 ment, Your Honor?
5 (Pause in proceeding. )
6 MR. WARREN: Your Honor, I 've been
7 told that I didn' t identify the date of that deposition,
8 and that was May 27th, 1982, if I failed to do so.
9 On page 26 of that deposition starting at
10 line 13.
11 "Let me ask you this question without asking
12 you to divulge any big corporate secret. Could you tell
13 me which of the theaters in your enterprise is the most
14 profitable at the present time?"
15 "Could I tell you?"
16 "Yes. "
17 "I don' t know which one is exactly. There is
18 a number that are running neck and neck. "
19 "Could you tell me what the runners are, then?"
20 "The runners are the theater located at 3rd
= 21 and Union, the Embassy, and the theater in Port Roberts,
22 which is an interesting situation. "
23 "Could you tell me where Point Roberts is?"
24 "Point Roberts is a little tip of land that
25 you have to go through Canada to get to that' s part of
73 Forbes Deposition
the state of Washington. "
2 "Up near Bellingham?"
3 "Yes, around the bay. In fact, everything
4 that goes into Point Roberts, which has 250 people as a
5 year-round population, comes from Canada. "
6 And skipping over a portion and starting at
7 line 17 .
8 "How far is it from Vancouver?"
9 "Driving?"
10 "Sure. "
11 "20 minutes, 25 minutes , 30 minutes. Some
12 place in there. "
13 Then, Your Honor, moving on to pages 38 and
14 39 of the deposition. Your Honor, there ' s two pages and
15 if the Court wishes, I just won' t read those into the
16 record and leave them for the Court at a later time.
17 THE COURT: Pages 38 and 39 of the
18 same deposition?
19 MR. WARREN: Yes. And that deals
20 with the drawing power and area of an adult theater versus
21 a general run theater. That ' s what I 'm getting at.
22 And that ' s all the evidence the city has to
23 present, lour Honor.
24 THE COURT: Very well.
25 MR. WARREN: One procedural matter,
{
74 Forbes Deposition
and I've already spoken to counsel about this. I'm not
2 sure of his reaction, but we 'd ask the Court to permit
3 us to file objections to the deposition proceedings of
4 Mr. Clemens. We would also ask the Court for leave to
5 file additional portions of the deposition if we believe
6 the portions were taken out of context.
7 THE COURT: Well, that would be
8 your right if they were to be done here in court. So I
9 think you should be allowed that.
10 MR. WARREN: Thank you.
11 THE COURT: Perhaps you'd best
12 give me a time within which you think you' re going to
13 have to do that.
14 MR. WARREN: Well, Your Honor,
15 we would ask the Court until next Monday.
16 THE COURT: Very well.
17 MR. WARREN: For the record, we ' ll
18 try to get it in here before then.
19 THE COURT: All the testimony that 's
= 20 going to be presented, has been presented now, is that
21 correct?
22 MR. BURNS: Yes, Your Honor.
23 MR. WARREN: Yes, Your Honor.
24 THE CUT: On the matter of argu-
25 ment , of course, we've been through a lot of argument
75 Colloquy
1 before and I think if you would pretty much restrict
2 yourselves to those matters that we haven' t really gone
3 roundabout in terms of legal argument prior to this,
4 that we 're now talking about the showing that' s been made.
5 There' s been some differences. There have been some
6 other ordinances passed and if you restrict your argument
7 to the new things rather than rehashing the cases that
8 we've been through before, it would be more helpful to me.
9 Again, with respect to the argument , I see
10 no reason for recording the argument, or reporting the
11 argument. Does anybody see any reason? So I think that
12 we won't need Mr. White for the purposes of argument as
13 long as we 've got a record of everything that ' s been
14 presented.
15 MR. BURNS: Your Honor, are you
16 prepared at this time to make a ruling on which ordinance
17 we 're dealing with so that we ' ll know how to structure
s
18 our argument?
19 THE COURT: No. I 'm going to take
20 it under consideration. I'm not going to give you a
21 definite yes or no at this point.
22 All right, as far as I'm concerned and, I
23 think, as far as the parties re concerned , there' ll be
24 no need to report argument.
25 (Closing arguments off the record
and proceeding concluded. )
76 Colloquy
1
2 CERTIFICATE
3
4 I, KEITH WHITE, Official Court Reporter for
5 the United States District Court for the Western District
6 of Washington, do hereby certify that I took down in
7 stenographic notes the proceedings had on the subject
8 cause on the date hereinbefore set forth, and that the
9 foregoing 76 pages constitute a full, true and correct
10 transcript of those said proceedings , done to the best
11 of my skill and ability.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
77 CERTIFICATE
1
2 __._...__... .. ....._. ....... .. )1, Y v
z.
3 � 4111()2
4
•
5 ..,' _
6
8 UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
9 AT SEATTLE
10 PLAYTIME THEATRES , INC . , a )
Washington corporation, )
11 et al . , ) C82-59M
)
12 Plaintiffs, ) OBJECTION TO REMOVAL AND MOTION
) TO REMAND TO STATE COURT AND FOR
13 vs ) COSTS
) (28 U. S . C . 1447 (c) )
14 CITY OF RENTON, et al . , )
)
15 Defendants . )
)
16
COMES NOW the Defendant, CITY OF RENTON, in the above-
17
numbered cause and hereby objects to removal and moves the court
18
for an order remanding to State court the civil action commenced
19
in the Superior Court for King County, State of Washington,
20
entitled ''City of Renton, a municipal corporation vs . Playtime
21
Theatres, Inc. , a Washington corporation, and Kukio Bay
22
Properties, Inc. , a Washington corporation, " Cause Number
23
82-2-02344-2 . The aforesaid civil action was removed to this
24
court by petition to remove filed on March 8, 1982, under case
25
number C82-263R, and was subsequently consolidated under case
26
27 WARREN & KELLOGG, P. S .
Attorneys at Law
100 So. Second St. , P.O. Box 626
28 Renton, Washington 98057
255-8678
1 number C82-59M by order of Judge Walter T. McGovern on March 10 ,
2 1982 .
3 This motion is brought pursuant to 28 U. S. C . 1447 (c) and
4 the City seeks an order of remand to State court upon the
5 following grounds :
6 1 . The court lacks jurisdiction of the civil action
7 commenced by the City in State court upon the grounds that said
8 action is not with the requirements of 28 U. S.C . 1441 which sets
9 forth the basis for removal of actions generally;
10 2. This court lacks jurisdiction of the State action since
11 it is not a civil rights case.within the terms of 28 U. S . C.
12 1443 and 28 U. S.C . 1343 (3) ;
13 3 . This court lacks jurisdictial of the State action since
14 Playtime Theatres , Inc . ("Playtime") and Kukio Bay Properties ,
15 Inc . ("Kukio") have alleged no claim or right arising under the
16 treaties , laws and Constitution of the United States from which
17 original jurisdiction may be founded as provided in 28 U. S .C.
18 1331 (a) ;
19 4. This court lacks jurisdiction upon the grounds that
20 City of Renton ("City") is a municipal corporation located within
21 the State of Washington and"Playtime"and"Kukio" are corporations
22 organized and existing and with their principal offices located
23 in the State of Washington. No diversity of citizenship exists
24 between the parties hereto;
25 5. This court lacks jurisdiction of the claims and/or
26 requests for relief asserted in the City' s complaint in State
27 court; and
2.8
OBJECTION TO REMOVAL AND MOTION TO
REMAND TO STATE COURT AND COSTS
P . 2
1 6 . This court lacks jurisdiction of the claims asserted
2 in the City' s State complaint upon the grounds that removal of
3 said action would interfere with state sovereignty.
4 This Motion is based upon the records and files herein
5 and the City' s Memorandum in Support of Motion to Remand to
6 State Court filed herewith.
7 DATED: // /98Z
8
9
10 G •
Daniel e logg, At orne r
11 City of Renton
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 OBJECTION TO REMOVAL AND MOTION TO
REMAND TO STATE COURT AND COSTS
P . 3
r near k
1 MAR 2 4, cc to : •. .HONORABLE WALTER. T. McGOVERN
2
CITY CLERK �+
FILED
LOGCED
4
5
6
DEpU!T'Y
7 r_�r___---�
8 UNITED STATES DISTRICT COURT •
WESTERN DISTRICT OF WASHINGTON
9
10 PLAYTIME THEATRES , INC. , . )
et al. , ) NO. C82-59M
11 )
Plaintiffs ) RESPONSE OF CITY OF RENTON, ET
12 ) AL, TO PLAYTIME THEATRES , INC . ,
• vs ) ET AL, MEMORANDUM IN SUPPORT OF
13 ) PLAINTIFFS' MOTION TO ALTER OR
THE CITY OF RENTON, et al . , ) AMEND JUDGMENT DENYING PLAINTIFFS '
14 • ) PRAYER FOR A PERMANENT INJUNCION
Defendants ) AGAINST THE ENFORCEMENT OF RENTON
15 ) ORDINANCE NO. 3637 .
16 ) MARCH 18 , 1983
17 INTRODUCTION
18 City of Renton Ordinance No . 3526 , passed and adopted on
19 April 13, 1981 , was modeled after the Detroit Zoning Ordinance which
20 had been approved by the United States Supreme Court five years
21 earlier in Young, et al v. American Mini Theaters, et al , 427 U. S . 50
22 (June 24, 1976) .
23 Renton Ordinance 3526 prohibited the location of an
24 "adult motion picture theater" within certain distances of specified
25 land uses in the City of Renton; namely , residential zones , single
26 family or multiple family residential uses , public or private schools ,
27 churches or other religious facilities , public parks or the P-1 zone .
28 RESPONSE OF CITY OF RENTON TO PLTFS '
MOTION TO ALTER OR DENY JUDGMENT -1
WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
IOO SO. SECOND ST., P.O. BOX 625
RENTON. WA51INGTON 98057
255.8578
1 Thereafter , the Renton City Council enacted Ordinance
2 No . 3637 as an amending Ordinance , and therein limited the reach
3 of Ordinance 3526 in two major respects :
4 (1) The City Council specifically limited the meaning of.:
5 the word "used" which appeared in the definition of "adult motion
6 picutre theater" in the model Detroit Zoning Ordinance and its "copy-
7 cat" counterpart , Renton Ordinance 3526 (see above) to prohibit only
8 that use of a theater which constitues "a continuing course of conduct
9 of exhibiting ' specific sexual acivities ' and ' specified anatomical
10 area' in a manner which appeas to a prurient interest" ; and
11 (2) The City Council specifically limited the exercise of
12 governmental law enforcement power which is available against suspect
13 zoning violations in the City of Renton to abatement "by City Attorney
14 by way of civil abatement procuedures only and not by criminal
15 prosecution" . The City Council also increased the "notice provisions"
16 of the ordinance by declaring that, pursuant to its traditional power
17 to abate public nuisancel "a violation of the use provision of this
18 section is declared to be a public nuisance per se"
19 1.Under the specific grant of authority contained in RCW 35.22.280,
2 0 a city of the first class in the State of Washington has the
following special power: (31) to declare what shall be a nuisance
21 and to abate the same, and to impose fines upon parties who may
create, continue or suffer nuisances to exist: and in addition,
22 the following related powers: (34) to regulate the carrying
on within its corporate limits of all occupations which are of
23 such a nature as to affect the public health or the good of said
city, or to disturb the public peace, and which are not prohibited
24 by law, and to provide for the punishment of all persons violating
such regulations, and of all persons who knowingly permit the same
25 to be violated in any building or upon any premises owned or
controlled by them; (36) to provide for the punishment of all
26 disorderly conduct, and of all practices dangerous to public
health or safety, and to make all regulations necessary for
2 7 the preservation of public morality, health, peace and good
order within its limits, . . ."
?8 RESPONSE OF CITY OF RENTON TO PLTFS'
MOTION TO ALTER OR DENY JUDGMENT - 2
WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
too SO. SECOND ST.. P.O. SOX 620
RENTON. WASHINGTON 98057
255-8678
•
1 I. The only issue before this Court on Plaintiffs '
motion to alter or amend the judgment pursuant
2 to FRCP Section 59 (e) is whether this court
correctly denied Plaintiffs ' prayer for a
3 permanent injunction a ainst enforcement of
Renton Ordinance No. 3637 . Th.e original ordinance
4 No . 3526 is not an issue on this motion. '
5 At page 1, lines 16 to 20 of their "Memorandum In Support of
6 Motion to Alter or Amend Judgment" Plaintiffs have correctly framed
7 the issue which is before the court at this time as :
8 "COME NOW Playtime Theaters , Inc . , and Kukio Bay
Properties , INc. , the Plaintiffs herein, and move
9 the Court to reconsider its decision filed February
18 , 1983 denying Plaintiffs ' prayer for a permanent
10 injunction against the enforcement of Renton
11 Ordinance No. 3637"
12 The constitutionality and application of its predecessor ordinance
13No. 3526 is not before the court on this motion. What is before this
14Court is Ordinance 3526 as clarified by amending ordinances 3629
15and 3627 . 2
16 L See, however, 2A Sutherland, Statutory Construction (4th Addition 1973)
Section 49.11, pages 265-266 where the author notes that amending legislation
17 is "strong evidence" of what the legislature intended in the first enactment:
"Section 49.11. Legislative interpretations of former statutes.
18 Where a former statute is amended, or a doubtful meaning of a
former statute rendered certain by subsequent legislation, a
19 number of courts have held that such amendment or subsequent
legislation is strong evidence of what the legislature intended
20 by the first statute. . ."
Citing Groves v. Meyers,35 Wn 2d. 403, 213 P.2d 483 (1950) and Miller v.
21 St. Regis Paper Company, 366 P.2d. 214 (Wn 1963) and
"whether or not a subsequent statute sheds light on the
22 meaning of a former statute depends on a number of circumstances.
Where the original law was subject to very serious doubt, by
23 permitting subsequent amendments to control the former meaning
a great deal of uncertainty in the law is removed. And the
24 legislature is probably in the best position to ascertain the
most desirable construction. In addition it is just as probable
25 that the legislature intended to clear up uncertainties, as it
did to change existing law where the former law is changed in
26 only minor details. Thus, it has been ascerted that 'one well
recognized indication of legislative intent to clarify, rather
27 than change, existing law is doubt or ambiguity surrounding a
statute. '" -
2 8 Citing Bowen v. Statewide City Employees Retirement System, 433 P.2d 150 Oh 1967) .
RESPONSE TO CITY OF RENTON TO PLTFS ' WARREN & KELLOGG. P.S.
MOTION TO ALTER OR DENY JUDGMENT - 3 ATTORNEYS AT LAW
100 SO. SECOND ST.. P.O. BOX 626
RENTON. WASHINGTON 98057
255-8678
1 II. The United States District Court ' s findings that
2 Ordinance 3637 was constitutional on its face under
the test prescribed by the United States Supreme
3 Court in U. S . v. O'Brien required that the Defendant ' s
summary judgment motion be granted on the ground that
4 the Plaintiffs have failed to state a claim upon
which relief can be based.
5 In U. S. vs . O'Brien, 391 U. S. 367 , at 377 (May 27 , 1968) the
6 United States Supreme Court prescribed the following tests for .
7 constitutionality where a claim was made, as here , that governmental
8regulations unlawfully interferred with First Amendment freedoms :
9 " . . .To characterise the quality of the governmental
10 interests which must appear, the court has employed
a variety of descriptive terms : compelling;
11 substantial ; subordinating; paramount ; cogent ; strong.
Whatever impression inheres in these terms , we think
12 it clear that a government regulation is sufficiently
justified if it is within the constitutional power of
13 the government; if it furthers an important or
substantial governmental interest ; if the governmental
14 interest is unrelated to the supression of free
expression; and if the incidental restriction on
15 alleged first amendment freedoms is no greater than
is essential to the furtherance of that interest . We
16 find that the 1965 amendment of Section 12(b) (3)
of the Universal Military Training and Service Act
17 meets all of these requirements , and consequently
that O'Brien can be constitutionally convicted for
18 violating it. "
19 In its order at page 8 , line 10 through page 13, line 3 , the trial
20 court examined City of Renton Ordinance 3637 in the light' of the
21 above described four-part O'Brien test and concluded :
22 "Renton' s effort under the circumstnaces is not
unconstitutional under the First Amendment .23
Injunctive relief from enforcement of the order
24 would be improper . "
25 Having found, as a matter of law, that Renton Ordinance 3637
26 was constitutional on its face , the trial court was required to
27 deny the Plaintiffs ' motion for a permanent injunction and grant
28 the City' s motion for summary judgment . It is elementary that a
RESPONSE OF CITY OF RENITON TO PLTFS ' WARREN & KELLOGG. P.S.
MOTION TO ALTER OR DENY JUDGMENT - 4 ATTORNEYS AT LAW
100 SO. SECOND ST.. P.O. DOE 626
RENTON. WASHINGTON 98057
255-8G78
1 court has no power to grant a motion for a permanent injunction
2 under a complaint which (1) fails to state a cause of action upon
3 which relief can be based, and (2) cannot be amended so as to cure
4 such defects . Federal Rules of Civil Procedure Section 12(b) (6) .
5 The fact that the trial court , in the same order, denied the City ' s
6 motion to dismiss upon the same grounds (FRCP , Section 12 (b) (6) )
7 does not present an inconsistency, inasmuch as Amending Ordinance
8 3637 did not appear on the face of the "Amended and Supplemental
9 Complaint for Declaratory Judgment and Preliminary and Permanent
10 Injunction" and, under one view, a summary dismissal could only be
11had by summary judgment motion. 3
12 III. The Plaintiffs ' claim that the court 's decision
13 is contrary to the established facts of the case
is foreclosed by the trial court ' s finding that
14 ordinance 3637 was constitutional under U. S. v.
O'Brien. As a matter of law, the court was
15 required to grant the .Defendant' s Motion for
Summary Judgment.
16 Plaintiffs apparently claim that this Court cannot review, de
17novo , the evidence adduced at the hearings for Temoporary Restraining
180rder and for Preliminary Injunction, and find new or additional facts
1'9or amend facts erroneously found. No authority for such a sweeping
20 .
21 3See 2 Sutherland, Statutory Construction (Fourth Edition 1973) Section 39.05,
page 127 where the author states:
22 "Court of general jurisdiction may not, according to the majority rule
and in the absence of statutory provisions to the contrary, take
23 judicial notice of municipal ordinances";
But further notes that the majority rule has been the object of criticism on the
24 grounds that it frequently results in decisions not founded on all of the law
of the case. The author criticizes the majority rule and suggest that the
25 trial court should have power to judicially notice all ordinances which are
available to it, and point out that the Vernnnt Supreme Court in Eno v. City
26 of Burlington, 125 Vermont 8, 209 A.2d 499 (1965) has held that such could
be done by agreement of the parties at time of argument even though the
27 court could not on its own notion take judicial notice of an ordinance which
had not been made a part of. the record.
28
RESPONSE OF CITY OF RENTON TO PLTFS '
MOTION TO ALTER OR DENY JUDGMENT -5 WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
100 SO. SECOND ST.. P.O. BOX 626
RENTON, WASHINGTON 98057
255-8673
1 proposition has been cited and apparently none exist. The very
2 relief requested by Plaintiffs in the instant motion is the
3 complete answer to Plaintiffs ' objection. Under FRCP 59 this Court
4 may alter or maned a previously entered erroneous decision.
5 Under the trial court' s ruling that Ordinance 3637 is constitutional
6 on its face under the four-part test of U. S . v. O'Brien (see point
7 2, supra at page 4 ) that claim is no longer available to them.
8 Because Renton Ordinance 3637 has been declared to be constitutional
9 on its face, Plaintiffs ' civil rights claim under 42 U. S. Code
10 Section 1983 is now infirm and requires a dismissal under FRCP
11 Section 12(b) (6) for failure to state a claim upon which relief
12 can be based.
13 In veiw of the trial court' s ruling, all of the allegations
14 which are aimed at raising "Schad" issues are immaterial and are
15 subject to a motion to strike under FRCP Section 12 (f) .
16 The Court ' s discussion of what Plaintiffs refer to as the
17 "established facts of the case", is nothing more than the court ' s
18 response that the Schad issue and Plaintiffs ' other claims are
19 bogus and that the facts which are addressed to the Schad claim
20 are inapposite .
21 IV. The Plaintiffs have addressed their arguments
22 to the wrong ordinance .
23 At page 13 , lines 15 to 22 , of their Memorandum in Support
24 of Motion to Alter or Amend Judgment , Plaintiffs are in error when
25 they make the following argument :
26 "This ordinance differentiates between theaters
27 (adult/general release) solely on the basis of
the image shown on the screen inside the theater .
28 In order to justify this classification , there
RESPONSE OF CITY OF RENTON TO PLTFS '
MOTION TO ALTER OR DENY JUDGMENT - 6 WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
100 SO. SECOND ST.. P.O. COX 626
RENTON. WASHI!.GTON 98057
255-8675
1 must be some operational characteristic that
distinguishes adult theaters from general
2 release theaters . As demonstrated by the
deposition testimony of David Clemens , the City
3 was unable to identify any problems unique to
adult theaters other than assertions of crime
4 and decreased property values . " (our emphasis)
5 While such an argument would be apposite if this court were consider-
6 ing the constitutionality of Ordinance 3526 in its unamended form,
7 such is not the case . Here the amended Ordinance 3637 is under
8 scrutiny and that ordinance does not 'liifferentiate between theaters
9 (adult/general release) solely on the basis of the image shown on the
10 screen. " As is pointed out in the introduction to this response
11 (see page 2 , supra) the differentiation as to Ordinance 3637 is
12 not between theaters which are used to exhibit adult and general
13 release films but rather between theaters which may exhibit "adult
14 release films" occasionally and in a ligitimate manner and those
15 which exhibit "adult release films" in a manner which appeals to
16 prurient interests and as a continuing course of conduct . When
17 one applies the minor premise to the Plaintiffs ' about described
18 major premise that "in order to justify this classification ,
19 there must be some operational characteristic , that distinguishes the
20 classification" , the conclusion is obvious that the classification
21 is proper.
22 That the Plaintiffs have erroneously focused their arguments
23 is shown by their stated reliance upon the deposition testimony
24 of David Clemens which related to Ordinance 3526 and was taken
25 before Ordinance 3637 was enacted. David Clemens is a member of
26 the Administrative staff of the City and exercises no legislative
27 authority. Mr. Clemen' s testimony is his recollection of what
28 transpired before the first ordinance was enacted. It is not
RESPONSE OF CITY OF RENTON TO PLTFS' WARREN & KELLOGG. P.S.
MOTION TO ALTER OR DENY JUDGMENT - 7 ATTORNEYS AT LAW
100 SO. SECOND ST.. P.O. COX 826
RENTON, WASHINGTON 98057
255-8870
1 probative of the thoughts of the City Council members . The use of
2 his deposition testimony is an attempt to collaterally attack the
3 fact finding and legislative process of the City Council . Rather
4 than producing a full record for this Court to review, Plaintiffs
5 seek to attack the legislation through the testimony of one only
6 collaterally involved. Such an approach has been judicially rejected.
7 See Lillian v. Gibbs 47 Wn 2d 629 , 633, 299 P. 2d 203 (1955) .
8 "In the absence of fraud, this court will not
inquire into the motives which actuated the local
9 legislative body to enact, or fail to enact , an
ordinance or resolution. (citations omitted) .
10
11 There being not even a hint of fraud, the adequacy of the legislative
12 history is not a proper issue for this Court. To review the legisla-
13 tive history would be an impermissive violation of the doctrine
14 of separation of powers . Swartout v. Spokane, 21 Wn App . 665 , 670, 586
15 P. 2d 135 (1978)
"We have always held to the rule that the legislative
16 declaration of the facts constituting the emergency
is conclusive , unless , giving effect'to every
17 presumption in its favor, the court can say that such
legislative declaration, on its face, is obviously
18 false and a palpable attempt at dissimulation. . .
19 "It is also well settled, both here and elsewhere ,
that, in determining the truth or falsity of a
20 legislative declaration of a fact, the court will
enter upon no inquiry as to the facts , but must
21 consider the question from what appears from the
face of the act , aided by its judicial knowledge . "
22 And Harris v. Hornbarker , 98 Wn 2d 650 , 657 P . 2d (Feb. 1983)
23 "The rule that courts generally will not inquire
24 into the motives of legislative officers acting
in a legislative capacity is not new. See 1 C .
25 Antieau, Municipal Corporation Law g 5 . 5 (1982) ;
5 E. McQuillin, Municipal Corporations § 16 . 90
26 (3d rev. ed. 1981) ; Cornelius v. Seattle , 123
Wash. 550 , 213 P . 17 (1923) ; Goebel v. Elliott , 178
27 Wash. 444 , 35 P. 2d 44 (1934) .
28 "Municipal legislation is not to be nullified by
the judicial branch of government unless the
RESPONSE OF CITY OF RENTON TO PLTFS ' WARREN & KELLOGG. P.S.
MOTION TO ALTER OR DENY JUDGMENT - 8 ATTORNEYS AT LAW
100 SO. SECOND ST., P.O. DOX 626
RENTON. WASHIN GTON 98037
255.8678
1 enactment contravenes the constitution or is
manifestly unreasonable, arbitrary and capricious .
2
3 "Fleming v. Tacoma, supra at 301 (Neill , J.
concurring) .
4 Exhibition of "specified sexual activities" or "specified
5 anatomical areas" in unrestricted portions of the business zone
6 within the City is not a public nuisance per se . Even if the
7 Plaintiffs exhibit such acitivies in a residential zone , it is not
8 a violation of the zoning ordinance until the conduct can be shown to
9 be a "continuing course of conduct" . Further , innocent or negligent
10 exhibitions do not establish a zoning violation inasmuch as the
11 continuing course of conduct must be presented "in a manner which
12 appeals to a prurient interest".
13 V. The City of Renton was not required to conduct a
14 study and gather expert testimony and empirical
evidence on the adverse effects of adult uses on
15 neighborhoods as a condition precedent to the
enactment of Ordinances 3526, 3629 and 3637 . In
16 the performance of its legislative function , the
Renton City Council was entitled to take judicial
notice of both "adjudicative facts" and
17 "legislative facts" which have already been
18 established in the development of the "model"
zoning ordinance upon which the Renton ordinances
19 are based.
20 In their "Memorandum in Support of Motion to Alter or Amend
21 Judgment" at page 11 , lines 12-19 , the Plaintiffs erroneously
22 contend that the City must conduct a study and gather expert testimony
23 and empirical evidence before it can enact an adult use zoning
24 ordinance . Contrary to the Plaintiffs ' contention , identical
25 ordinances need not be tested anew each time such an ordinance is
26 enacted by a different governmental entity. There is no constitu-
27 tional requirement that each successive city independently establish
28 enactment . See City of Whittier v. Walnut Properties , Inc . 189
RESPONSE OF CITY OF RENTON TO PLTFS' WARREN & KELLOGG. P.S.
MOTION TO ALTER OR DENY JUDGMENT - 9 ATTORNEYS AT LAW
100 SO. SECOND ST.. P.O. COX 626
RENTON, WASHINGTON 98057
1 Cal Rpt 12 (February 1 , 1983) where the California Court of Appeals ,
2 Second District, Division 4, held on this identical issue , at
3 page 18 :
4 "The City must buttress its assertion with evidence
that the State interest has a basis in fact and
5 that the factual basis was considered by the City
in passing the ordinance . (Avalon Cinema Corp . v.
6 Thompson, supra , 667 F. 2d 659, 661 . ) However ,
identical ordinances need not be tested anew
7 each time they are enacted by a different governmental
entity by establishing the actual existence of local
8 conditions which would justify it. ' . . . lawmakers
in one locale (should not be denied) the benefit of
9 the wisdom and experience of lawmakers in another
community, no matter how similar the circumstances ;
10 (see County of Sacramento v. Superior Court ,
Goldies Boo s ores , Inc . ) (1982) 137 Cal . App 3rd
11 448, 454, 455 , 187 Cal Rptr 154) ' the factual basis '
behind certain types of zoning laws , insofar as those
12 zoning laws require dispersal or deconcentration,
has been developed by testimony in other cases .
13 Sociologists and urban planners have testified that
a concentration of adult movie theaters in limited
14 areas leads to the deterioriation of surrounding
neighborhoods . (See Young v. American Mini Theaters ,
15 supra, 427 U. S. 50 at page 80 , 96 S. Ct . 2440 , at
page 2457 , 49 L. Ed. 2d 310) . This testimony is
16 sufficient and the City need not bring their own
17 sociologist to apply these observations to the
City of Whittier . "
18 As to identical state statutes , see 2A Sutherland, Statutor
19 Construction, (Fourth Edition 1973) Section 52. 02 "Statutes Copied
20 from Other States" at page 329 , et seq. and Section 52 . 03 "Similar
21 Statutes of Other States" at page 337 , et seq. The test prescribed
22 by the United States Supreme Court in U. S. v. O' Brien, supra, makes
23 no special demand of cities in the enactment of ordinances which
24 may impact the First Amendment area. The Renton City Council ,
25 in performing its legislative duties is entitled to take judicial
26 notice of both "adjudicated facts" and "legislative facts" which
27 have already been established in the development of the model zoning
28 ordinance upon which the Renton adult use ordinance is based .
RESPONSE OF CITY OF RENTON TO PLTFS ' WARREN & KELLOGG. P.S.
MOTION TO ALTER OR DENY JUDGMENT - 10 ATTORNEYS AT LAW
100 SO. SECOND ST.. P.O. BOX 626
rENTON. WASHINGTON 98057
255.8678
1 The requirements for taking judicial notice in Federal Courts
2 are set forth in Federal Rules of Evidence , Section 201 . Section
3 201 draws a distinction between "adjudicative facts" and "legislative
4 facts". "Adjudicative facts" have been described as simply the
5 facts of the particular case which are determinative of the outcome
6 of litigation. Such acts are ordinarily established by evidence
7 unless they are of such character that by common acceptance they
8 stand as established without other proof. It is these facts with
9 which the rules of judicial notice deal . See 1 Jones on Evidence ,
10 6th Edition, Section 2. 9. See also Advisory Committee ' s Note to
11 Rule 201, as promulgated by the Supreme Court . "Legislative
12 facts" have been described as that great body of information and
13 expository material which contributes to rationalization by capable,
14 intelligent, and objectively thinking people in the process not
15 only of ascertaining what the common law and social concepts are ,
16 but also in promoting their improvement and development . It is not
17 concern with the specific facts which are relevant to the resolution
18 of a disputed factual situation in a given case . See 1 Jones on
19 Evidence , 6th Edition, Section 2. 9. See also Advisory Committee ' s
20 Note to Rule 201 , as promulgated by the Supreme Court .
21 In veiw of the fact that the Renton City Council had before it
22 the same "model" zoning ordinance which was at issue in Apple
23 Theater , Inc. v. City of Seattle, 90 Wn 2d 709 , 585 P . 2d. 1153
24 (Oct . 19 , 1978) it had every right to take judicial notice of the
25 findings of the trial court and conclusions of law of the Washington
26 State Supreme Court in that case , upholding those findings . See
27 in this regard, Weiner v. Mitchell , Silberberb and Knupp , 179 Ca.
28 Rptr . 533 , where the California Court of Appeal , Second District
RESPONSE OF CITY OF RENTON TO PLTFS ' WARREN & KELLOGG. P.S.
MOTION TO ALTER OR DENY JUDGMENT - 11 ATTORNEYS AT LAW
100 30. SECOND ST.. P.O. SOX 626
RENTON. WASHINGTON 98057
255-8678
1 Division Three stated at page 537 :
2 " . . .We hold that it was proper for the trial court
3 and it is proper for us . . . to take appropriate
judicial notice of both the pertinent facts stated
in the appellate opinion and of the judgment in the
4 aforementioned U. S. v. Weiner , supra, 578 F. 2d 757
(Cf Estate of Guerin, (1961) 194 Ca. App . 2d 566 ,
5 569, 15 Ca. Rptr. 12)"
6 The court in Apple Theater, Inc . , supra, thereafter stated at 1195 :
7 ". . . The record is replete with testimony regarding
8 the effects of adult movie theater locations on
residential neighborhoods . The evidence is more
9 than adequate to support the finding below that the
goal of the ordinance is to preserve the character
10 and quality of residential life in the city. . .
11 . . .We conclude the city ' s paramount interest in
protecting, preserving, and improving the character
12 and quality of its residential neighborhoods is
sufficient to justify this non-discriminatory
13 zoning regulation of the location of adult movie
theaters . We find no violation of First Amendment
14 or equal protection guarantees . . . "
15 In their Memorandum in Support of Motion to Alter or Amend
16 Judgment at page 18 , lines 13 - 20 , the Plaintiffs content that,
17 because there was no special study, expert testimony, or empirical
18 data, etc . there has been a shifting of the burden of proof on the
19 issue of compelling governmental interests . The complete answer
20 to this burden of proof issue appears in that part of the Court' s
21 order at page 10, lines 0 to 20 where the court has recognized the
22 City Council ' s -right to take notice of well known facts :
23
24 "Certainly, Renton must justify its ordinance, but
in so doing, experiences of other cities and towns
25 must constitute some evidence to the legislative
body considering course of action. Genusa v. City
26 of Peoria, 610 F. 2d 1203 , 1211 (7th Cir 1980) . If
the goal of preservation of the quality of urban
27 life is to have any meaning, a city need not await
deterioration in order to act . i . d. The observed
P8 effects in nearby cities provides persuasive
RESPONSE OF CITY OF RENTON TO PLTFS '
MOTION TO ALTER OR DENY JUDGMENT - 12 WARREN & K ATTORNEYS
. P.S.
A AT T LAW
100 SO. SECOND ST.. P.O. DOX 626
RENTON. WASHINGTON 98057
255.8678
1 circumstantial evidence of the undesireable secondary
effects Renton seeks to preclude from within one
2 thousand feet of residential zones , schools ,
religious facilities , and public parks . "
3
4 Faced with this same issue, the Court of Appeals , Third Sitrict,
5 in County of Sacramento v. Superior Court , 187 Cal . Rptr. 154
6 (November 16, 1982) accurately observed that governmental bodies
7 are not required to reinvent the wheel countless times over where
8 mere access to common knowledge would render the considerable
9 effort involved unnecessary. County of Sacramento v. Superior Court ,
10 supra.
11 CONCLUSION
12 The Defendants submit that the Court' s decision entered herein
13 is correct and not in need of correction or alteration as requested
14 by Plaintiffs . Therefore, the Defendants request that the Plaintiffs '
15 Motion for Correction or Alteration of the Judgment be denied.
16 Dated March 14, 1983 .
17
Respectful submitted
18 -
19 Lawrence V J'---Warren
20
21
22
23
24
25
26
27
. :nd 28 RESPONSE OF CITY OF RENTON TO PLTFS'
( 4/83 MOTION TO ALTER OR DENY JUDGMENT - 13
WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
100 SO. SECOND ST., P.O. BOX G26
RENTON, WASHINGTON 98057
255.8678
E( ' E CoPy
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
9 AT SEATTLE
10 PLAYTIME THEATRES , INC . , a )
Washington corporation, et al )
11 ) NO . C82-59M
Plaintiffs )
12 ) THE CITY OF RENTON' S RESPONSE
vs ) TO PLAINTIFFS ' ADDITIONAL
13 ) AUTHORITIES FILED IN SUPPORT
THE CITY OF RENTON, et al ) OF PLAINTIFFS ' MOTION FOR
14 ) A PRELIMINARY INJUNCTION
Defendants )
15 )
16
17 On September 21 , 1982 , the City of Renton received
18 additional authorities which were filed by the Plaintiffs with the
19 Court in support of their Notion for a preliminary injunction.
20 In order to properly address the context of the decision of
21 Basiardanes v. City of Galveston , .682 F. 2d 1203 (1982) , it is
22 necessary to distinguish the facts in that case and
23 those facts elicited during- the course of the hearing on June
24 23 , 1982 in the above-referenced cause .
25 The following facs, which were found in Basiardanes , I
26 are clearly distinguishable from the facts presented in the case
27 at bar on the following point, :
28 CITY OF RENTON' S RESPO::`�.:.
WARREN & KELLOGG. P.S.
Page 1 ATTORNEYS AT LAW
100 SO. SECOND ST.. P. O. BOX 626
RENTON. WASHINGTON 98057
255-8678
1 1 . In,. Dasiardanes, the City of Galveston passed its
2 Ordinance 78-1 after the Plaintiff had leased his building for
3 use as an adult theater and had advertised that point . It is
4 uncontroverted that the City of Renton' s Ordinance No . 3526 was
5 in place before the Plaintiffs ever made the decision to operate �1
6 an adult motion picture theater within the municipal boundaries
7 of the City of Renton.
11.
8 2 . The City of Galveston, the appellete court noted ,
9 is an island located in the Gulf of Mexico off the coast of
10 Texas . In the instant case , the City of Renton is a suburbl'of is
11
a major metropolitan area . �,.
•
12 3 . To prevent the Plaintiff from using his premises 11
. 13 as an adult motion picture theater, the City of Galveston passed
14 a moratorium on downtown building permits and required a special
15 permit to show adult film fare. Neither of these types of
16
permits were or are required under City of Renton' s .Ordinance
17
No . 3526 , 3629 and 3637 .
18 4 . In Basiardanes , the court further noted that the
19 City of Galveston' s ordinance provided for an advertising ban
20
regarding adult theaters . Again, no such evidence of an
21 advertising ban -exists in the instant cause .
22 5 . Also , in Basiardanes , the appellete court noted
23 that the City of Galveston Ordinance 78-1 excluded adult theaters
24 from approximately 85% of Galveston and perhaps from all practic-
25 ,
able locations . This is distinguishable from the instant case
26 where the testimony indicated that developing locations within
27 the City of Renton are readily available under City of Renton
28
• Ordinances No . 3526 , 3629 and , for location of an adult
WARREN & KELLOGG.
OF FENTON' S RESPONSE ATTORNEYS
P.S.
A ATT LAW
100 50. SECOND ST.. P. O. BOX 626
RENTON, WASHINGTON 98057
Page 2 255-8678
y
1 motion picture theater . In fact , the evidence adduced at .the .'
2 hearing indicated tlilliiirhat a short-platting technique could be used
3 to open up even wider locations within the City of Renton to
4 theaters showing adult film fare .
5 6 . A further distinction from Basiardanes can be noted
6 in that the developing areas within the City of Renton, available
7 for .adult film theater use, are not a great distance from other
8 consumer oriented establishments as was the case in Basiardanes .
9 7 . In addition , few access roads in Basiardanes were
10 available into undeveloped areas available for adult motion
11 picture film use . The testimony adduced at the June 23 , 1982
12 hearing clearly indicates that access roads are excellent in
13 the developing locations within Renton and that the City is
I
14 Moving to improve the roadways within the developing area in
15 the southwest portion of the city; ..
16 8 , The appellate court noted that the undeveloped areas
17 in Galveston were poorly lit , however , the testimony elicited
18 at the June 23 , 1982 hearing indicates that the City of Renton
19 has underway a street lighting program into the developing area
20 within the City of Renton where adult film theaters may locate .
21 9 . The appellate court in Basiardanes also noted that
22 the City of Galveston passed its Ordinance No . 78-1 without
?3 study or review of the considerations in the location of adult
24 film theaters . However , the evidence in the instant cause
25 indicates that this issue of adult film theater locations were
26 under study and review by various council committees and a
27 public hearing was conducted before the City Council prior to
28 the adoption of Ordinance No . 3526 , 3629 and 3637 .
WARREN & KELLOGG. P.S.
CITY OF RENTON' S RESPONSE ATTORNEYS AT LAW
100 SO. SECOND ST., P. O. SOX 626
RENTON, WASHINGTON 98057 _
Page 3 255-8678
11111117:Ictual
In addition to these many distinctions within the
context of the Basiardanes decision and the present case
3 at bar , it should be brought to the court ' s attention that the Fifth
4 Circuit Court of Appeals ruled that the City of Galveston
5 Ordinance No . 78-1 was not facially vague and that the Plaintiff
6 and Appellant in that case had no standing to assert the rights
7 of third parties . See page 1210-1211 . As in Basiardanes , there
8 was no testimony in the instant cause during the June 23 , 1982
9 hearing that other persons have sought or seek to open adult
10 theaters within the City of Renton. Furthermore , the appellate
11 court recognized the City ' s authority to zone as an integral
12. aspect of its police power. Page 1212 . This should be given
13 particular weight in view of the decided distinctions between
14 the Basiardanes decision and the instant case.
15 The Plaintiffs have also submitted to this court a
16 •
copy -of the court ' s decision regarding the temporary restraining
17 order , temporary restraining order and consent order extending
18 temporary restraining order in the case of Guess What , Inc .
19 v. City of Memphis , United States District Court , Western
20 District of Tennessee , Western Division, Cause Number 82-2259-H.
21 Among other things , this decision speaks to the abstention
22 doctrine which had previously been raised by the Defendant , City
23 of Renton with respect to the case at issue .
24- It should be noted that on June 21 , 1982 , the United
25
States Supreme Court filed an opinion in the case of Middlesex
26
County Ethics Committee v. Garden State Bar Association , 50 Law
27
Week 4712 (June 21 , '1982) . A copy of that opinion is attached .
28
In that case the Supreme Court reversed the Court of Appeals
/�
WARREN & KELLOGG. P.S.
CITY OF RENTON' S RESPONSE ATTORNEYS AT LAW
IGO SO. SECOND ST., P. O. BOX 626
RENTON. WASHINGTON 98057
Page 4 255-8678
1 holding that abstention under Younger v. Harris , 401 US 37 (1971)
2 was required.
3 In that case disciplinary proceedings were instituted
4 by the local committee of the New Jersey disciplinary system
5 _against an attorney based upon an allegation of unethical
6 conduct . Upon filing of the formal statement of charges , the
7 * Respondent refused to answer but instead filed suit in the United
8 States District Court contending that the disciplinary rules
9 violated his First Amendment rights of free speech. The District
10 Court granted the Bar Association' s Motion to Dismiss based on
11 Younger v. Harris , supra. The Court of Appeals reversed.
12 On appeal to the United States Supreme Court the Court
13 held, in a unanimous opinion, that abstention was required under
14 Younger v. Harris , supra, and its progeny.
15 "Younger v. Harris , 401 US 37 (1971) , and its progeny
16 espoused a strong federal policy against
federal court interference with pending state
17 judicial proceedings absent extraordinary circum-
stances . The policies underlying Younger
18 abstention have been frequently reiterated by
this court . The notion of ' comity' includes
19 "a proper respect for state functions , a
recognition of the fact that the entire country
20 is made up of a Union of separate state
governments , and a continuance of the belief
that the National Government will fare best
21
if the States and their institutions are left
22 free to perform their separate functions in
their separate ways . ' Id . , at 44 . (citations
23 omitted) , Minimal respect for the State
processes , of course , precludes any presumption
24 that the state courts will not safeguard federal
constitutional rights . " at 4714 .
25 In the argument before this court on the Defendants '
26 Motion to Dismiss , Plaintiff relied upon the fact that Younger
27 was a criminal case and Huffman v . Pursue , Ltd . , 420 US 592 ,(1975) ,
28 was a quasi-criminal action. Plaintiff distinguished those cases
WARREN & KELLOGG, P.S.
CITY OF RENTON' S RESPONSE ATTORNEYS AT LAW
MOO SO. SECOND ST., P. O. BOX 626
RENTON, WASHINGTON 98057
Page 5 - 255-8678
//1 which upheld abstention from the instant case which more closely
2 partakes of a civil action . The Middlesex County case now extends
3 the abstention doctrine clearly to non-criminal judicial ;
4 proceedings involving important State interests . : 1
"The1
5 policies underlying Younger are fully
applicable to non-crimina judicial proceedings
6 when important State interests are involved . "
Moore v. Sims , 442 U. S . 415 , 423 (1979) ; Huffman .
7 v. Pursue , Ltd . , 420 U. S . 592 , 604-605 (19757—
The importance of the state interest may be
8 demonstrated by the fact that the non-criminal
proceedings bear a close relationship to pro- .
9 ceedings criminal in nature , as in Huffman , supra .
Proceedings necessary for the vindication of
10 important state policies or for the functioning
of the state judicial system also evidence the
11 state' s substantial interest in the litigation .
Trainor v. Hernandez , 431 U. S . 434 (1977) ; •
12 Juidice v. Vail , 430 U. S . 327 (1977) . Where
vital state interests are involved, a federal
13 court should abstain 'unless state law clearly
bars the interposition of the constitutional
14 claims . ' Moore , supra , at 426 "(T)he . .
pertinent inquiry is whether the state proceedings -
15 afford an adequate opportunity to raise the
16 constitutional claims . . . ' Id . , at 430 . See
also Gibson v. Berryhill , 411—U. S . 564 (1973) . "
17 Under Young v. American MiniTheaters , 427 U. S . 50 (1976) ,
18 it is abundantly clear that the zoning function of a. municipality
19 is one of the most essential and necessary interests of State
20 government . Therefore , it seems clear that the Doctrine of
21 Abstention under Younger must apply to a zoning action just as
22 it now must be said to apply to attorney disciplinary procedures .
23 As the Middlesex County Court noted at footnote 12 :
24 "As recognized in Juidice v. Vail , supra ,
25 however , whether the proceeding is labeled
civil , quasi-criminal or criminal in nature ,
26 the salient fact is whether federal court
Interference would unduly interfere with the
27 legitimate activities of the state . Id. , at
355-336 . " at 4714 .
28
CITY OF RENTON' S RESPONSE
WARREN & KELLOGG. P.S.
Page 6 ATTORNEYS Al LAW
100 SO. SECOND ST.. P. O. BOX 626
RENTON. WASHINGTON 98057
255-867e
{
111111J7 Plaintiff can make no claim that they will be unable
2 to raise their constitutional claim in the State Court action
3 which has been filed by the Defendants herein . Likewise there
_
4 can be no showing of bad faith, harassment , or other extra-
5 ordinary circumstances .that would make abstention inappropriate
6 under Dombrowski v. Pfister , 380 U. S . 479 (1965) . Therefore , i
7 the plaintiff must set up and rely upon their defense in the
8 State court since it can not be plainly shown that abstention
9 by this Court will not afford them adequate protection .
10 Plaintiff may attempt to distinguish the Middlesex
11 County decision upon the reason that in the Middlesex case ,
12 li
as in Younger , the State Court action had commenced prior to
13 the filing of the Federal Court action. This argument is fore- {'
14 bythe decision in Middlesex where the Court cites 3
closed County
15 from Hicks v. Miranda, 422 U. S. 332 (1975) , to state that "where
16 state criminal proceedings are begun against the federal
17 plaintiffs after the federal complaint is filed but before any
18 proceedings of substance on the merits have taken place in
19 federal court , the principles of Younger v. Harris should apply
20 in full force . " The court held that an analogous situation was
21
presented in Middlesex County where the New Jersey Supreme Court
22
raised upon its own motion the constitutional issues raised by
23
the Respondent after the filing of the Federal Court action .
24
The United States Supreme Court held that principles of comity
25
and federalism that call for abstention remain in full force
26
nothwithstanding the prior filing of the Federal court action ,
27
because the only issue that had been raised in the Federal Court
28
litigation at that point had been whether abstention was
WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW
Page 7 100 50. SECOND ST.. P. O. BOX G26
RENTON, WASHINGTON 98057
255-2878
IIIIIIIr
1 appropriate. Likewise , in this case., at the filing of Defendants '
2 Motion for Dismissal on the grounds of abstention, as well as
3 lack of jurisdiction , no proceedings had been held on the
- 4 merits of the claim, and the court should have abstained from
5 its jurisdiction.
6 "It would trivialize the principles of comity
and federalism if federal courts failed to take
7 into account that an adequate state forum for ,
all relevant issues has clearly been demonstrated .
8 to be available prior to any proceedings on the
merits in federal court . " (citing Hicks v. Miranda ,
9 supra , at 350) .
10 Plaintiffs may argue against this renewed request for
11 this Court to abstain from the exercise of its jurisdiction
12 because of the Court ' s prior ruling on the Defendant ' s Motion
13 to Dismiss . However , the Defendant ' s Motion for Summary Judgment ,
14 which is before the court for decision , raises for consideration
15 the question of all legal theories under which the Plaintiffs
16 claim to be entitled to' relief. For that reason, the question
17 of abstention is pecularily appropriate at this juncture of
18 the proceedings . •
19 Therefore , for the reasons stated above , the Defendant ' s -
20 request that the court abstain from the exercise of its
21 jurisdiction under the Middlesex County case . This court should
22 grant the Defendant ' s Motion. for Summary Judgment and deny the
23 Plaintiffs ' Motion for Prel:..f,1.inary Injunction.
24 DATED : September 23 , 1982 .
25 •
26 Lawrence J . Warren , Attorney
27 for Defendants
28 CITY OF RENTON ' S RESPONSE
WARREN & KELLOGG, P.S.
Q
Page 8 ATTORNEYS AT LAW
100 SO. SECOND ST.. P. O. BOX 626
RENTON, WASHINGTON 98057
255.8672
rs _ j
United States LAW WEEK 50 LW 4712
____________ij
Full T e �: t o f Opinions •
BURGER, C. J., delivered the opinion of the Court, in which WxrrE,
POwILL,REHNQUISr,and O'CoNNOR,JJ.,joined. BRENNAN,J.,filed an
No 81-460 opinion concurring in the judgment. MARSxA11-,J., filed an opinion con-
' curring in the judgment, in which BREN AN, $t-AC) rsJ , and STEVENS,
JJ.,joined.
MIDDLESEX COUNTY ETHICS COMMITTEE, ETC.,
PETITIONER v. GARDEN STATE CHIEF JUSTICE BURGER delivered the opinion of the
BAR ASSOCIATION, ET AL. Court.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF We granted certiorari to determine whether a federal court
APPEALS FOR THE THIRD CIRCUIT should abstain from considering a challenge to the constitu- :
Syllabus tionality of disciplinary rules that are the subject of a pending
No.81460. Argued March 31, 19E2—Decided June 21, 1982 state disciplinary proceeding within the jurisdiction of the
New Jersey Supreme Court. — U. S. — (1981). The
Under rules promulgated by the New Jersey Supreme Court pursuant to Court of Appeals held that it need-not abstain under Younger
its authority under the State Constitution to license and discipline attor-
neys admitted to practice in the State,a claim of unethical conduct by an v Harru, 401 U. S. 37 (1971). We reverse.
attorney is first considered by a local District Ethics Committee ap-
pointed by the Supreme Court. If a complaint is issued, the attorney
whose conduct is challenged is served with the complaint and has 10 days A •
- to answer. Upon a determination that a prima facie case of unethical
conduct exists, a formal hearing is held. The attorney charged may The Constitution of New Jersey charges the State Su- fE have counsel,discovery is available,and all witnesses are sworn. The preme Court with the responsibility for licensing and disci-
Committee may ultimately dismiss the complaint,issue a private letter plining attorneys admitted to practice in the State. Art. 6,
of.reprimand, or forward a presentment to the statewide Disciplinary
Board,which is also appointed by the Supreme Court. After a 2, 3.t Under the rules established by the New Jersey Su-
ds novo review,the Board is required to make formal findings and rec- preme Court, enacted pursuant to its constitutional author-
Reviewommendations to the Supreme Court,which reviews all decisions beyond ity, a complaint moves through a three-tier procedure.
a private reprimand and which permits briefing and oral argument for First, local District Ethics. Committee's appointed by the
uses involving disbarment or suspension for more than one year. Re- State Supreme Court are authorized to receive complaints re-
spondent Hinds,a member of the New Jersey Bar,was served by peti- lating to claimed unethical conduct by an attorney. New
boner,a local Ethics Committee,with a formal statement of charges of Jersey Court Rule 1:20-2(d). At least two of the minimum
violating certain Supreme Court disciplinary rules. Instead of filing an
ansv'er to the charges.Hinds and the three respondent organizations of of eight members of the District Ethics Committee must be
lawyers filed suit in Federal District Court. contending that the disci- nonattorneys. Complaints are assigned to an attorney mem-
plinary rules violated their rights under the Federal Constitution. The ber of the Committee to report and make a recommendation.
court dismissed the complaint on the basis of the abstention principles of Rule 1:20-2(h). The decision whether to proceed with the
Younger v.Harris.401 U. S.37. The Court of Appeals reversed on the complaint is made by the person who chairs the Ethics Corn •
-
ground that the disciplinary proceedings did not provide a meaningful mittee. If a complaint is issued by the Ethics Committee it
- cpportunity to adjudicate constitutional claims,notwithstanding an affi-
davit stating that the New Jersey Supreme Court would directly con- must state the name of the complainant, describe the claimed
Sider Hinds'constitutional challenges and would consider whether such a improper conduct, cite the relevant rules, and state, if
procedure should be made explicit in the Supreme Court rules. blown,-whether the same or a similar complaint has been
Held: The federal courts should abstain from interfering with the ongoing considered by. any other Ethics Committee. The attorney
disciplinary proceeding within the jurisdiction of the New Jersey Su- whose conduct is challenged is served with the complaint and
preme Court. has 10 days to answer.'
(a) The policies underlying Younger are fully applicable to noncriminal
judicial proceedings when important state interests are invoked. Unless good cause appears for referring the complaint to
Where such interests are involved,a federal court should abstain unless another committee member, each complaint is referred to the
state law clearly bars the interposition of the constitutional claims. The member of the Committee who conducted the initial investi-
per.rent inquiry is whether the state proceedings afford an adequate gation for review and further investigation, if necessary.
opportunity to raise the constitutional claims. The committee member submits a written report stating
(b) The New Jersey Supreme Colin considers its disciplinary proceed-
whether a prima facie indication_of unethical or unprofes-
'_.n;!. beginning with the Fling of a complaint with the local Ethics Corn-
r..:ttee.as''udicial in nature." As such.the proceedings are of a chase- sional conduct has been demonstrated. The report is then
ter:o warrant: federal-court deference. evaluated by the chairman of the Ethics Committee to deter-
tc: The Slate has an extremely important interest in maintaining and mine whether a prima fade case exists. Absent a prima fa-
ass_ring the professional conduct of the attorneys it licenses. The cie showing, the complaint is summarily dismissed. If a
:rate's interest in the present litigation is demonstrated by the fact that prima facie case is found, a Tormal hearing on the complaint is
petitioner. an acency of the New Jersey Supreme Court, is the named
defendant in:he present suit and was the body which initiated the state held before three or more members of the Ethics Committee,
proceedings acains: Hinds. The importance of the state interest in the a majority of whom must be attorneys. The lawyer who is
pending stale judic:a!proceedings and in the federal case calls Younger
abstention into clay. '1. Art. 6, 42 (.3 provides:
id) In light of the unique relationship between the New Jersey Su- "The Supreme Court shall make rules governing the administration of all
preme Court and the local Ethics Committee. and in view of the nature courts in the State and,subject to the law,the practice and procedure in all
of the proceedings. is cannot be concluded that there was no"adequate such courts. The Supreme Court shall have jurisdiction over the admis-
0000rtunit}"for Hinds to raise his constitutional claims. Any doubt as sion to the practice of law and the discipline of persons admitted."
to:his matter was!aid to rest by the New Jersey Supreme Cour.'s sub- 'For a more detailed explanation of the disciplinary procedure of the
sequent actions when. prior to the Fling of the petition for certiorari in District Ethics Committees,see Rule 1:20-2. As noted below, the proce-
this Court. it sue *owe entertained the constitutional issues raised by dare as amended in 19d1. now provides that a charged attorney may raise
Hinds. And there is no reason to disturb the District Court's unchal-_ constitutional questions in the District Committees. Any constitutional
lenged findings that there was no bad faith or harrassment on petition- challenges are to be set forth in the answer to the complaint. Rule
er's part and that the state disciplinary riles were not "flagrantly and 1:20-2(ji now provides:
patently' unconstitutional. Nor have any other extraordinary cvcum- -All constitutional questions shall be withheld for consideration by the Su-
stances been presented to indicate that abstention wnuid not be appr r preme Cour: as part of its review of the final decision of the Disciplinary
prate. P.esie' Board. Interlocutor: relief may be sought only in accordance
643 F. 2d 119 and 6.1 F. 2d I_ . reversed and remanded. with E. l.3C-:(d)(i)."
1✓
ed with unethical conduct may ha lunsel, discovery charges on Hinds.
s available, and all witnesses are swo,,.. The panel is re- Instead of filing an :-.—er to the charges in accordance
quired to prepare a written report with its findings of fact with the New Jersey bar disciplinary procedures, Hinds and
and conclusions. The full Committee, following the decision the three respondent organizations filed suit in the United
of the panel, has three alternatives. The Committee may States District Court for the District of New Jersey contend-
dismiss the complaint, prepare a private letter of reprimand, ing that the disciplinary rules violated respondents' First
or prepare a presentment to be forwarded to the Disciplinary Amendment rights. In addition, respondents charged that
Review Board. Rule 1:20-2(o).' the disciplinary rules were facially vague and overbroad.
The Disciplinary Review Board, a state-wide board which The District-Court granted petitioner's motion to dismiss
is also appointed by the Supreme Court, consists of nine based on Younger v. Hams, 401 U. S. 37 (1971), concluding
members, at least five of whom must be attorneys and at that "Mlle principles of comity and federalism dictate that o
least three of whom must be nonattorneys. The Board the federal court abstain so that the state is afforded the
makes a di not•o review. Rule 1:20-3(d)(3).' The Board is opportunity to interpret its rules in the face of a constitu- 1
required to make formal findings and recommendations to the tional challenge." App. 53a-54a. At respondents' request '
New Jersey Supreme Court. the District Court reopened the case to allow respondents an
All decisions of the Disciplinary Review Board beyond a opportunity to establish bad faith, harassment or other ex-
private reprimand are reviewed by the New Jersey Supreme traordinary circumstance which would constitute an excep-
Court. Briefing and oral argument are available in the Su- tion to Younger abstention. Dombrowski v. Pfister, 380
preme Court for cases involving disbarment or suspension for U. S. 479 (1965). After two days of hearings the District -
more than one year. Rule 120-4. Court found no evidence to justify an exception to the Youn-
B ger abstention doctrine and dismissed the federal court
complaint.
Respondent Lennox Hinds, a member of the New Jersey A divided panel of the United States Court of Appeals for
bar, served as executive director of the National Conference the Third Circuit-reversed on the ground that the state bar
of Black Lawyers at the time of his challenged conduct. disciplinary proceedings did not provide a meaningful oppor-
Hinds represented Joanne Chesimard in a civil proceeding tunity to adjudicate constitutional claims. The court rea-
challenging her conditions of confinement in jail. In 1977 soned that the disciplinary proceedings in this case are unlike
Chesimard went to trial in state court,for the murder of a po- the state judicial proceedings to which the federal courts usu-
liceman. - Respondent Hinds was not a counsel of record for ally defer. The Court of Appeals majority viewed the pro- .
Chesimard in the murder case. However, at the outset of ceedings in this case as administrative, "nonadjudicative"
the criminal trial Hinds took part in a press conference, mak- proceedings analogous to the preindictment stage of a crimi- 1
ing statements critical of the trial and of the trial judge's judi- nal proceeding.'
cial temperament and racial insensitivity. In particular, On petition for rehearing petitioners attached an affidavit
Hinds referred to the criminal trial as"a travesty,"a "legal- from the Clerk of the New Jersey Supreme Court which
• . ized lynching," and "a kangaroo court." stated that the New Jersey Supreme Court would directly
- One member of the Middlesex County Ethics Committee consider Hinds' constitutional challenges and that the court
read news accounts of Hinds'comments and brought the mat- would consider whether such a procedure should be made ex- •
ter to the attention of the Committee. In February of 1977 plicit in the Supreme Court rules. On reconsideration a di-
the Committee directed one of its members to conduct an in- vided panel of the Third Circuit declined to alter its original
vestigation. A letter was written to Hinds, who released decision, stating that the relevant facts concerning absten-
the contents of the letter to the press. The Ethics Commit- tion are those that existed at the time of the District Court's
tee on its own motion then suspended the investigation until decision.'
the conclusion of the Chesimard criminal trial. "(D) During the selection of a jury or the trial of a criminal matter, a law-
After the trial was completed the Committee investigated yer or law firm associated with the prosecution or defense of a criminal
the complaint and concluded that there was probable cause to matter shall not make or participate in malting an extra-judicial statement
believe that Hinds had violated DR 1-102(A)(5) of the Disci- that he expects to be disseminated by means of public communication and
plinar.' Pules of the Code of Professional Responsibility.' that relates to the trial,parties,or issues in the trial or other matters that
are reasonably likely to interfere with a fair trial. . . ."
That section provides that "A Iaw�'er shall not . . . (e)ngage
'The majority concluded that the hearings are designed to elicit facts,
in conduct that is prejudicial to the administration of justice." not legal arguments. as indicated by the presence of nonlawyers. The
Respondent Hinds also was charged with violating DR court also found that the ability to raise constitutional claims before the
7-107(D), which prohibits extrajudicial statements by law- Ethics Committee does not constitute a meaningful opportunity to have
vers associated with the prosecution or defense of a criminal constitutional questions adjudicated. No formal opinion is filed by the
matter.' The Committee then served a formal statement of District Ethics.Committee. The Third Circuit distinguished Gipson v.
New Jersey Supreme Ct,558 F. 2d 701 (CA3 1977), on the ground that in
Gipson the attorney being disciplined was already subject to the state
'Each District Ethics Committee appoints one member of the bar to court action at the time the federal proceeding had been initiated.
serve as Secretary. The Secretary maintains records of the proceedings. Judge Adams, concurring, emphasized that state courts have the pri-
The Secretary also transmits copies of all documents filed to the Division of mary responsibility to discipline their bar and, in general,the federal judi-
Ethics and Professional Services. Rule 1:20-2(c). ciary is to exercise no supervisory powers. Judge Weis. dissenting, ar-
'Subsequent to the initiation of the disciplinary hearing involved in this gued that respondents have full opportunity in the New Jersey proceeding
case. Rule 120•-3tel was amended to provide: to raise constitutional issues, concluding that the disciplinary proceedings
-Constitutional challenges to the proceedings not raised before the District are not a series of separate segments before independent bodies but are
Committee shall be preserved, without Board action, for Supreme Court pa,of a whole. Judge Weis also concluded that there w'as nothing to pre-
consideration as part of its review of the matter on the merits. Interlocu- vent the Ethics Cornmittee from considering constitutional claims.
tory relief may be sought only in accordance with Rule 1:20-7(d)(i)." 'The panel majority noted that no rule existed at the time of the Dis-
'Tne Disciplinary Rules of the Code of Professional Responsibility and tract Court's decision to assure the Court of Appeals that the New 3erse;:
Code of Judicial Conduct of the American Ear Association, with amend- Supreme Court would consider the constitutional claims. The cr oft also
men: and supplementation, have been adopted by the New. Jersey Su• concluded that the possibility of a formal procedure of the tie. Jersey
preme Court as the applicable standard of conduct for members of the bar Cour-for consideration of constitutional claims does not moot thi- c^.e be-
and the judges of New Jersey New Jersey Cour. F.::e 1:14. cause the underlying dispute as to the validity of the rules still remains.
'DR 7-107 dea1s. w-,th-Thal Puh ci:.-"and sstates Judie Weis,again dissenting.concluded that no justiciable controversy re-
1
u
,, rersey,g review in this Court, the 1' Supreme B
�
� ht has heard oral arguments on t stitutional chal- The State of New Jer__�, in common with most State- - ;
Anges presented by respondent Hinds and has adopted a rule recognizes the important state obligation•to.regulate peps: 4;.,'
allowing for an aggrieved party in a disciplinary hearing to who are authorized to practice law. New Jersey expres
, ' seek interlocutory review of a constitutional challenge to the this in a state constitutional provision vesting in the New
/ proceedings.' sey Supreme Court the authority to fix standards, regL.
II admission to the bar, and enforce professional discip'
A among members of the bar. New Jersey Const. Art. 6,
Younger v. Harris, 401 U. S. 37 (1971), and its progeny 13. The Supreme Court of New Jersey has recognized t.
the local District Ethics Committees act as the arm of •
espouse a strong federal policy against federal court interfer court in performing the function of receiving and investir
ence with pending state judicial proceedings absent extraor- ing complaints and holding hearings. Rule 1:2D-2; 1 r `..
dinary circumstances. The policies underlying Younger ab-
stention have been frequently reiterated by this Court. The Court has made clear that filing a complaint with the r' ' ':Y'.
notion of"comity' includes "a proper respect for state forte ethics and grievance committee "is in effect a filing with
lions,a recognition of the fact that the entire country is made v. 18 N. J. 280, : -j-
up of a Union of separate state governments, and a continu- Supreme Court. . . ." ToffKetchum,
113 A. 2d 671, 674, cert. denied, 350 U. S. 887 (1P' �,
once of the belief that the National Government will fare best From the very beginning a disciplinary proceeding is ju
c: r.
if the States and their institutions are left free to perform in nature, initiated by filing a complaint with an ethics :;.
their separate functions in their separate ways." Id., at 44." grievance committee.""• Ibid. It is clear beyond doubt t
Minimal respect for the sate processes, of course, precludes the New Jersey Supreme Court considers its.bar discipli:
any presumption that the state courts will not safeguard fed proceedings as "judicial in nature." As such, the proc I.
enl constitutional rights. ings are of a character to warrant federal court defers• f.
The policies underlying Younger are fully applicable to The remaining inquiries are whether important state ir• 1,,:i
noncriminal judicial proceedings when important state inter-
ests are implicated so as to "arrant federal court abster
•
ests are involved. Moore v.Sims, 4-12 U. S. 416,423(1979); and whether the federal plaintiff has an adequate opportr :
Huffman v. Pursue, Ltd., 420 U. S. 592, 604-605 (1976). to present the federal challenge. 1
The importance of the state interest may be demonstrated by
the fact that the noncriminal proceedings bear a close rela- C • 1 '
• tionship to proceedings criminal in nature, as in Huffman, The State of New Jersey has an extremely important is .
supra. Proceedings necessary for the vindication of impor- est in maintaining and assuring the professional condo'
ant state policies or for the functioning of the state judicial the attorneys it licenses. States traditionally have exec•
system also evidence the state's substantial interest in the • extensive control over the professional conduct of attor•
litigation. Trainor v. Hernandez, 431 U. S. 434 (1977); See supra, n. 11. The ultimate objective of such cont'
Juidice v. Vail, 430 U. S. 327 (1977). Where vita] state in- "the protection of the public, the purification of the ba'
terests are involved, a federal court should abstain "unless
_late law clearly bars the interposition of the constitutional "See Shoal.,State Disciplinary Enforcement Systems Structural F
claims." Moore, supra, at 426. "[TJhe . . pertinent in- j
. (ABA National Center for Professional Responsibility 1980).
quire is whether the state proceedings afford an adequate The New Jersey allocation of responsibility is consistent with§2.1 •
opportunity to raise the constitutional claims. . . ." Id., at ABA Standards for Lawyer Discipline and Disability Proceeding'
430. See also Gibson v. Berryhill, 411 U. S. 564 (1973).
posed Draft 1978),which states that the"[u)]timate and exclusive r•
sibility within a state for the structure and administration of the (
The question in this case is threefold:first, do state bar dis- discipline and disability system and the disposition of individual
ciplinary hearings within the constitutionally prescribed ju- within the-inherent power of the highest court of the state."
^:sajction of the State Supreme Court constitute an ongoing
The rationale for vesting responsibility with the judiciary is t) i
practice of law-is so directly connected and bound up with the exe• j
state judicial proceeding; second, do the proceedings impli-g judicial power and the administration of justice that the right to e:'
ca:e important state interests; and third, is there an ade- regulate it naturally and logically belongs to the judicial depa:'
c::a:e opportunity in the state proceedings to raise constitu- Id.,commentary at §2.1. •
:ior.al challenges. 'The New Jersey Supreme Court has concluded that bar disc
proceedings are neither criminal nor civil in nature, but rather ar
-a:.^.ed as to the issue i. :he Court of Appeals and recommended that the neris. Jr.re Logan.70 N.J. 22.358 A.2d 787(1976). See also•
:_e `e remanded and dismissed as moot. . ards for Lawyer Discipline and Disability Proceedings i 1.2 (I
'R_e 1:2ir- .di states: Draft 1978). As recognized iri Juidice t. Vail. supra. however.
• ;. interlocutor, Review. An aggrieved party may file a motion for the proceeding-is labeled civil. quasi-criminal,or criminal in nat..
._r;e :o appeal with the Supreme Court to seek interlocutory review of a salient fact is whether federal court interference would unduly
•
...",venal chat:en•re to proceedings pending before the District Ethics with the legitimate activities of the state. Id., at 33b 336.
-•••se er:he D:scpiinar; Review Board, The motion papers shall The instant case arose before the 1978 rule change. In 1978
ithfcmt to R. 2:-1. Leave to appeal may be granted oril_ when neces• Jersey Supreme Court established a Disciplinary Review Board
ia.-: to prevent irreparable injury. If leave to appeal is granted, the with review of findings of District Ethics Committees. Nothu
rh:ord heiow may.in the discretion of the Court,be supplemented by the rule change, however, altered the nature of such proceeding
5U.ng of briefs and oral argument. responsibility under Art.6, 42. 3 remains with the New Jersey
Final Review. In any case in which a constitutional challenge to the Court.
•
•. <ee�:rags has been properly raised below and preserved pending review
"The role of local ethics or bar association committees may
•i.:he merits of the disc,pl.nary matter by the Supreme Cour.. the ag- gized to the function of a special master. Anonymous v.Assn „
t:.e•:ed party may.withir,:0 days of the PJing of the repor.and r ecornmen- of City of Sew York. 515 F. 2d 427 (CA2), cer.. denied. 423 .
:s:: n of:he Disciplinary Review Board, seek the review of the Court by (1975). The essentially judicial nature of discipiina ,.actions in
pr:ceeding to accordance with. the applicable provisions of R. 1:19-8.- sey has been recognized pre: ou,i•: by the federal courts. In '
'cornuels v.,Heckel[,401 U. S.66(197I).concluded that the same corn- New.Jersey Supreme Court. aid F. 2d 701 (CA3 1977). the Un:• :
:: and federalism pr.r,ciples govern the issuance of federal court declara- Court of Appeals (or the Third Circuit agreed that "incursions '
judgments concerning:he state statute that is the subject of the on- courts into ongoing [New Jer"eyl disciplinary proceedings woo
ticula iy disruptive of notions of nor tt.' Id , at 7W. �—.
gt.ng state crumina! proceeding.
f .•
1 courts to ignore sub-
" In ref , 25 N. J. There is no reason for the fe r. Miranda, 422 U.this sub-
Don se anal development. In Hi
332
of s ,3(19__ The judiciary as well as sequent
held that "where state criminal proceedings are
✓"':_ 2d en 8` e after the federalin are
1i6 endear upon professionally n interest ethical conducand begun against the federal
+A c ;s dePplaintiffsproceedings af of substance on th
r"y and thus standardsad a significant co rat oa in attorneys
engaged
edplaint is filed but before any
c merits have taken place in court. the principles o
�,::r dice. See n reStein,
, conduct of 237, 62 A.
2d g federal full t. the Id.. atl 349
• j''•a In re Stein, 1 N.J. 28, 237, 62 2d ,O1,
ract:9e. J. L. 527, 50 A. 119 Younger v. Harris should apply . o
ng
�• r In re Cahill, 66 • • presented here: the principles
-Su . Ct. 1 quoting The state's interest in the professional con- An analogous situation is
of attorneys
the administration of criminal comity and federalism which call for abstention remain in full
duct st special
involved in force. ri riato. No sole issue
proceed-
Middlesex s ecial importance. Finally, the slate's interest
has been��hether abstentionlisoappupgatt°therefore no1,
in the
justice is ofp
ddl present litigation is demonstrated by the fact that theapplication i
defendant in the proceedings on the merits will be terminated
trivialize principles of
�L•ddlesex County Ethics Committee, an namedagency of the Su- fags have occurred on the meulids andt ere by
prey a Court of New Jersey, is theinitiated
er principles. It won
?resent scut and was the body which initiated the state pro- of Young p P
comity and federalism if federal courts failed to take into ac-
ceThegsagainst respondentof the Hinds. riot to any p as
clearly been demonstrated to be available p at 350.n
importance of state interest in the pending stateb count that an adequate state forum for all relevantd issues as
Thet p
o-
juaicial proceeding and in the federal case calls Younger a on the merits in federal court. of the Dis-
stention into play. So long as the constitutional claims of re- Ce d pondents have not challenged the findings
long as h ran be showing ofd badfth state proceedings or someano o ofo petitioners theree a wasd thato badthe state rules were not "fl the
long as there is no showing faith,harrassment tn�Coup that no bad faith or harassment
on a at
other extraordinary circumstance that would make absten- P antly and patently" unconstitutional. Younger,
Ton inappropriate, the federal courts should abstain. 53 quoting Watson v.Buck,313 U. S.337,402(1941). and App. .
D j0a-.52a. We see no reason to disturb these findings, no
opportunity other extraordinary circumstances have been presented
to raise his federal con- indicate that abstention would not be appropriate."
o
Respondent Hinds contends that there was no opp -
:n the state.disciplinary proceeding III
s itutional challenge to the disciplinary rules. Yet Hinds ortunit} to raise
federal Because respondent Hinds had antent state tribunal the
fed to respond to the complaint filed by the local Ethics and have timely decided by a comp
cunst
Committee and failed even to attempt to raise any federal issues involved," Gibson v. "tent 411 U. S.. at
NewJe Jersey
challenge in e state proceedCommittees
Under thefederal S.. at
New Jerson toointe procedure.itstheEthicsstate Committees yconstantlyles. are • 577, and because no bad faith, harassment or other excep-
tional circumstances dictate to theta the ongoing proceed-
ts
cal'.ed upon to interpret disciplinary
time the should abstain from interfering
�mplainondent Hinds points to nothing g the judgment of the United States Court
coatthe t was brought by the local Committee to indicate fags Accordingly,
that the members of the Ethics Committee, the majority of of Appeals for the Third Circuit is reversed, and the case re-
whom are lawyers, would have refused to violated
federal con-
a claim
manded for further proceedings consistent with this op
that the rules which they were enforcing
!? ;�tutional guarantees. Abstention is based upon the theory Reversed and remanded.
i :ha:"'(t)he accused should first set up and rely upon his de-
i °sr.se in the state courts, even though this involves a chal-
Iin the judgment.
ze of the validity of some statute,unless it plainlo�appearso
• ,:=^-
i zt this course would not afford5, gPennepr v. Boykin, For JUSTICE
reasons stated by JUSTICE .�I.�RSHALL• I join the
i Younger v. Hams, supra, at 45,.quoting udent in this case. I agree that federal courts should
�1 U. S. 240, _13--�1 (1926). j
Ir.light of the unique relationship between the New Jersey show particular restraint before intrudinginto an
ongoing
of
E:preme Court and the local Ethics Committee, and in view proceeding by a state court against a orttinit}' to
e nature of the proceedings.it is difficult to conclude that
the State's bar, where there is an adequate op ortU.ital to
:-ere was no"adequate opportunity"for respondent Hinds :o raise federal issues in that proceedin
g.e his constitutional claims." Moore, supra, at 430. primary responsibility of state courts for establishing and en-
Wnatever doubt, if any, that may have existed about re rules to expressly per-
g Supreme Court upended the State bar disciplinary
s:ondent Hinds'ability to have constitutional challenges
laid to rest by mit a motion directly to the New Jersey Supreme Court for interlocutory
the bar o disciplinary the 'hearings Prior to adjudication of constitutional issues. Rule 1:20--1(d)(i)• See note 9 supra.
Even if interlocutory review is not granted.constitutional issues arePtrdee
::eat actions of the ion for Jersey certiorari
Supreme Court. the New d,coy Supreme Court.
J'-e filing of theem petition certiorari to thisn Court the New served for consideration by
1:20-2(j).
pre-
Jersey Supreme Court idea sponte entertained the cpnstttu The New Jersey Supreme Rule disciplinary
Rule 1 e 2U)•
Respondent
Court reviews all dtsctpl�rtary actions except
zonal issues raised by respondent Hinds. to present the issuance of Private letters of reprimand. withheld for consider-
;r.dstherefore has had abundant opportunityrequires that all constitutional issues be
ation by the Supreme Court as pan of its review of the decision of the Dis-
.._, constitutional challenges to the' state disciplinary however, q This appears to provide for Supreme Court re-
-This
proceedings.
+ ciplinar+ Review Board. ppe nand is made.
p 415 t;. S 452 view of constitutional challenges even whenSupreme
a private"tour to consider re-
), is hichi there from g finger a Thompson.
ve. c!efo g g proceeding plaintiff. s'undenc Hinds'constitutional challenges indicates that the state court de-
-� in which there was no ongoing state rdceedin to .erne a.9 a "Indeed.the decision of the New Jersey
•
his
op D. S. 103. lti7. sired to give Hinds a sµif judicial resolution f decidedtitutional whether absten-
this e e is vindicating the blefr constitutionalersrights of the federal P r whether the Courtsofo Appeals�r9 case also Bich the
issue
from Gnabtyn v.a Puretrial detention could "It:s not cle r eh as to the respondent organizations who are not ten'
r_ 9 be a). in which the issue of the legality of i P Jaisice V. ;:on .fou.d be proper We leave this issue to the Copar•
ties to the state disciplinary proceedings.•,; Wised in defense of a criminal prosecution. See also
Volt. raddit at°J7. the New Jersey cf.Appeals on remand.
'In addition, after the P1ing of the writ of certiorari
••••••••mismo"m. zip-seve..
FI
stsndards for members of th'i'- bars and the quasi- prosisionally to super---- To attain permanent status as supervi-
1 nature of bar disciplinary pro rags,In re Ruffalo, son, they had to particl n a selection process that required, as a
I
Lf S 5,44, 551 (1968), call for exceptional deference by first step,a passing aeon_ written examination. Subsequently, an
examination was given to 48 black and 259 white candidates. Fifty-four
the federal courts. See Gipson v, New Jersey Supreme •
percent of the black candidates passed,this being approximately 68 per-
•
C•our(, 558 F. 2d 701, 703-704 (CA3 1977); Erdmann v. Ste- cent of the passing rate for the white candidates. Respondent black em- .
vim, 458 F. 2d 1205, 1209-1210 (CA2 1972). I continue to ployees failed the examination and were thus excluded from further con-
adhere to my view, however, that Younger v. Harris, 401 sideration for permanent supervisory positions. They then brought an
U. S.37(1971),is in general inapplicable to civil proceedings. action in Federal District Court against petitioners (the State of
See Huffman v. Pursue, Ltd., 420 U. S. 592, 613 (1975) Connecticut and certain state agencies and officials),alleging that peti-
tioner had n3)ated Title VII of the Civil Rights Act of 1964 by requir-
(BRENNAN,J., dissenting). ing,as an absolute condition for consideration for promotion.that appli-
cants pass a written test that disproportionately excluded blacks and
• • was not job related. In the meantime, before trial, petitioners made
promotions from the eligibility list,the overall result being that 229 per-
cent of the black candidates were promoted but only 13.5 percent of the
JUSTICE MARSHALL, with whom JUSTICE BRENNAN, JUS- white candidates. Petitioners urged that this"bottom line"result,more
TICE BLACKMU'N and JUSTICE STEVENS join, concurring in favorable to blacks than to whites,was a complete defense to the suit.
the judgment. The District Court agreed and entered judgment for petitioners,holding
that the"bottom line"percentages precluded the finding of a Title VII
I agree with much of the general language in the Court's violation and that petitioners were not required to demonstrate that the
opinion discussing the importance of the State's interest in promotional examination was job related. The Court of Appeals re-
regulating the professional conduct of its attorneys. How- versed,holding that the District Court erred in ruling that the examina-
ever, I believe that the question whether Younger abstention tion results alone were insufficient to support a prima facie case of dispa-
would have been appropriate at the time that the District rate impact in violation of Title VII.
Held: Petitioners'nondiscriminatory"bottom line" does not preclude re-
Court or the Court of Appeals considered this issue is not as
spondents from establishing a prima facie eve nor does it provide peti-
simple as the Court's opinion might be read to imply. As the tioners with a defense to such a ease.
Court acknowledges,absent an ongoing judicial proceeding in (a) Despite petitioners'nondiscriminatory"bottom line,"respondents'
'which there is an adequate opportunity for a party to raise claim of disparate impact from the examination,a pass-fail barrier to em-
federal constitutional challenges, Younger is inapplicable. ployment opportunity, states a prima facie case of employment dis-
Ante, at 8. See also Gibson v.Berryhill, 411 U. S. 564, 577 cri
mination under 4703(a)(2)of Title VII, which makes it an unlawful
employment practice for a employer to"limit,segregate,or classify his
(1973). Here, it is unclear whether, at the time the lower employees"in any way which would deprive"any individual of employ-
courts addressed this issue, there was an adequate opportu- ment opportunities"because of race,color,religion,sex,or national ori-
nity in the state disciplinary proceedings to raise a constitu- gin. To measure disparate impact only it the"bottom line"ignores the
tional challenge to the disciplinary rules. Furthermore, it is fact that Title VII guarantees these individual black respondents the
unclear whether proceedings before the Ethics Committee opportunity to compete equally with white workers on the basis of more accurately viewed as prosecutorial rather than judi- job-
related criteria. Respondents'rights under 4 703(a)(2) have been vio-
arefated unless petitioners can demonstrate that the examination in ques-
cial in nature. tion was not an artificial,arbitrary,or unnecessary barrier but measured
I agree with the Court that we may consider events subse- skills related to effective performance as a supervisor.
quent to the decisions of the courts below because the federal (b) No special haven for discriminatory tests is offered by 4 703(h)of
litigation has addressed only the question whether abstention Title VII, which provides that it shall not be an unlawful employment
practice for an employer to act upon results of an ability test if such test
is appropriate. Thus far,there have been no proceedings on is "not designed, intended, or used to discriminate" because of race,
the merits in federal court. Ante, at 12-13. After the color,religion,sex,or national origin. A non-job-related test that has a
Court of Appeals rendered its decision and denied petition- disparate impact and is used to"limit"or"classify"employees is"used to
er's petition for rehearing, the New Jersey Supreme Court discriminate"within the meaning of Title VII,whether or not it was"de-
certified the complaint against respondent Hinds to itself. signed or intended"to have this effect and despite an employer's efforts
Apo. to Pet. for Cert. 62. Now, there are ongoing judicial to compensate for its discriminatory effect.
(c) The principal focus of 4 703(a)(2)is the protection of the individual
proceedings in the New Jersey Supreme Court in which employee,rather than the protection of the minority group as a whole.
Hinds has been given the opportunity to raise his constitu- To suggest that the "bottom line" may be a defense to a claim of dis-
tional challenges. As a result, Younger abstention, at least crimination against an individual employee confuses unlawful diacrimina- -
w.th respect to Hinds, is appropriate at this time. For this tion with discriminatory intent. Resolution of the factual question of in-
reason only, I join the judgment of the Court. tent is not what is at issue in this case, but rather petitioners seek to
justify discrimination against the black respondents on the basis of peti-
tioners'favorable treatment of other members of these respondents'ra-
MARY ANN BURGESS.Assistant Attorney General of New Jersey. Trcn- cial group. Congress never intended to give an employer license to dis-
tee•N.J.(JAMES R.ZAZALI.Attorney General of New Jersey,ERMINIE er• • ate against some employees on the basis of race or sex merely
L.CONLEY,Assistant Attorney Gcncral,RICHARD M. HLUCHAN,and because he favorably treats other members of the employees' group.
Gencr
JAYNEE LaVECCHIA.Deputy Attorneys cncral,with her on the brief)for
p::itioncr:MORTON STAVIS,Hoboken,N.J.(BERNARD K.FREAMON, 645 F. 2d 133.affirmed and remanded.
LEwIS MYERS, JR., ALFRED SLOCUM. LOUISE HALPER, NEIL
S1::LLIN,and BETTY LAWRENCE BAILEY. with him on the brief) for BRENNAN,J.,delivered the opinion of the Court,in which WHJTE,MAR-
r:srondcnts. SHALL-, BtactotL'N. and STEVENS,JJ.,joined. iPow•ELL,J., filed a dis-
senting opinion,in which BURGER, C.J.,and REIrNQUIST and O'CONNOR,
JJ.,joined.
No. 80-2147
CONNECTICUT, ET AL., PETITIONERS v. JUSTICE BRENNAN delivered the opinion of the Court.
WINNIE TEAL ET AL. - We consider here whether an employer sued for violation
of Title VII of the Civil Rights Act of 196-a' may assert a '
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF "bottom line"theory of defense. Under that theory, as as-
APPEALS FOR THE SECOND CIRCUIT
serted in this case, an employer's acts of racial discrimination
Syllabus
No. 84 21G7. Pr;Jed March 29, 1982—Decided June 21, 1982 'Title VII of the Civil Rights Act of 19C4, 78 Stat. 253, as amended, 4.
P-spondent black employees of a Connecticut state agency were promoted U. S. C. 4 200'e ct. seq.
F
FILE C,C) Py
2
3
4
5
6
7 UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
8 AT SEATTLE
9 PLAYTIME THEATRES , INC. , a )
Washington Corporation, et al , ) NO . C82-59M
10 )
Plaintiffs ) CERTIFICATE OF SERVICE
11 )
vs )
12 )
THE CITY OF RENTON, et al. , )
13 )
•
Defendants )
14 )
15 I certify that I served a copy of City of Renton' s
16 Response to Plaintiffs ' Additional Authorities Filed in
17 Support of Plaintiffs ' Motion for Preliminary Injunction"
18 on the parties to this action on September 23 , 1982 , by mailing
19 copies , postage prepaid, to them at the following address :
20 Jack Burns
21 Attorney at Law
10940 N. E. 33rd Place
22 Suite 107 •
Bellevue , WA 98004
23 I certify under penalty of prejury under the laws of the State
24 of Washington that the foregoing is true and correct .
25 2&i--4/7
26
Mark E . Barber
27 •
28 CERTIFICATE OF SERVICE
WARREN & KELLOGG, P.S.
ATTORNEYS AT LAW
100 SO. SECOND ST.. P. O. COX 626
RENTON, WASHINGTON 98057 -.
255-8670
1
2
3
4
5
6
7 UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
8 AT SEATTLE
9 PLAYTIME THEATRES , INC. , a )
Washington corporation, and )
10 KUKIO BAY PROPERTIES , INC. , )
a Washington corporation, )
11 )
Plaintiffs , )
12 ) CASE NO. C82-59M
v. )
13 ) REPORT AND RECOMMENDATION
THE CITY OF RENTON, et al . , )
14 )
Defendants . )
15 )
16 INTRODUCTION AND SUMMARY CONCLUSION
17 Plaintiffs , Playtime Theatres , Inc. , and Kukio Bay Properties ,
18 Inc. , recently acquired two existing theatre buildings in the City
19 of Renton and wish to commence showing feature length sexually
20 explicit adult films in one of them. The theatre buildings are
21 located in areas not zoned for such use. Plaintiffs filed the
instant suit claiming that the Renton zoning ordinance in question
23 is unconstitutional for a number of reasons . Because plaintiffs
24 wished to commence showing the adult films on Friday, January 29 ,
25
1981 , they sought a temporary restraining order prohibiting the
26
City of Renton from enforcing its ordinance . The matter was
27
referred to me by Order of Reference dated January 22 , 1982 , and a
hearing was held on January 29 , 1982 . Having heard the arguments
of counsel and considering the affidavits and limited testimony and
30 documentary exhibits admitted at that hearing, I recommend that the
31
Court deny the request for a temporary restraining order for the
32
reasons hereinafter set forth.
REPORT AND RECOMMENDATION - 1
DISCUSSION
2 In this Circuit, the party requesting injunctive relief must
3 clearly show either: (1) probable success on the merits and
4 possible irreparable injury, or (2) sufficiently serious questions
5 as to the merits to make them a fair ground for litigation and a
6
balance of hardship tipping decidedly in favor of the party seeking
7
relief. Los Angeles Memorial Coliseum Commission v. N.F.L. , 634
8 F. 2d 1197 (9th Cir. 1980) . Further, federal courts should proceed
9
with caution and restraint when considering a facial challenge to
10
the constitutionality of an ordinance. Erznoznik v. City of
11
Jacksonville, 422 U.S . 205 (1975) . Finally, the Court must also
12
bear in mind that a temporary restraining order is ordinarily for
13
the purpose of maintaining the last uncontested status quo between
14
the parties until full hearing of an application for preliminary
15
injunction can take place.
16
The ordinance in question provides that adult motion picture
17
theatres as defined therein are prohibited:
18
(1) Within or within 1000 feet of any residential zone or
19
single family or multiple family use;
20
(2) Within one mile of any public or private school;
21
(3) Within 1000 feet of any church or other religious
22
facility or institution; and,
23
(4) Within 1000 feet of any public park or P-I zone.
24
Plaintiffs ' complaint, challenges the constitutionality of the
25
ordinance on the following grounds : First, they claim that certain
26
definitional sections are so vague and overbroad as to deny them
27
due process. Second, they claim that confinement of adult theatres
28
to certain areas is an impermissible prior restraint on protected
29
First Amendment speech. Third, they argue the classification of
30
theatres based on the content of the films shown violates First
31
Amendment and equal protection guarantees. Plaintiffs did not
32
pursue their vagueness or overbreadth arguments at the hearing or
in their brief but focused only on the First Amendment and equal
protection claims.
REPORT AND RECOMMENDATION - 2
Defendants contend that the ordinance is not facially invalid
2 for vagueness or overbreadth but is a reasonable regulation of the
3 place in which "adult motion picture theatres" may be located
4
within Renton and has only an incidental effect upon exercise of
5
First Amendment rights . Defendants rely principally on Young v.
6
American Mini Theatres , Inc. , 427 U. S . 50 , 49 L.Ed. 2d 310 (1976) ,
7
rehearing denied, 429 U.S . 873 (1976) (hereinafter referred to as
8
Young) .
9
In Young, the Supreme Court approved the creation and
10
definition of an adult theatre zoning use in the City of Detroit
11
which was nearly identical to the Renton zoning use at least in its
12
definitional provisions . The Court also approved regulation of
13
location of that use . The Court reasoned that since the ordinance
14
only controlled the location of adult businesses and did not
15
restrict the content of the speech disseminated therein , it was
16
merely a time , place, or manner restriction. Id. at 63, 71. The Court
17
held that the City had a strong governmental interest in protecting
18
the quality of its neighborhoods , Id. at 71 , 72 , which justified
19
the zoning scheme which classified businesses on the content of
20
their material , and treated adult businesses (including theatres)
21
different from other businesses .
22
The Court indicated in Young, however , that the "situation
23
would have been quite different if the ordinance had the effect
24
of suppressing, or greatly restricting access to, lawful speech. "
25
Id. at 71 n. 35 . Accordingly, the critical inquiry is the "effect"
26
the ordinance ' s limitations have on the exercise of First Amendment
27
rights .
28
In their affidavits and through the limited testimony and
29
exhibits admitted at the hearing, plaintiffs have attempted to
30
distinguish the Renton ordinance from that approved in Young in tw.
31
respects : First, they contend that the City of Renton failed to
32
factually support its conclusion that adult movie theatres have
REPORT AND RECOMMENDATION - 3
1 an adverse effect on residential neighborhoods including incidental
2 amenities close thereto such as parks , churchs , and schools - thus
3 the cityestablished no important state interests
p justifying its
4 intrusion upon protected speech. Second, plaintiffs attempted to
5
show that rather than a mere locational restriction, the Renton
6
ordinance amounts to a virtual prohibition of adult theatres in
7
that city - that even though there may be property available , it is
8
not commercially feasible . I will address these contentions
9
separately.
10
(1) Basis for the City ' s Ordinance.
11
The affidavit submitted by Mr. Clemens , the Policy Development
12
Director of the City of Renton, and his testimony at the hearing,
13
indicated that the ordinance in question was only adopted after a
14
period of study and following public hearings at which the City
15
Council heard testimony indicating that adult entertainment land
16
uses would have an adverse affect on property values within the
17
business and residential areas of the city. He also indicated that
18
he had reviewed a summary of the findings and concusions made when
19
Seattle enacted a similar ordinance - those findings noted the
20
deterioration of business and community neighborhoods where adult
21
entertainment uses are permitted. Those findings prompted Seattle
22
to enact an ordinance restricting adult entertainment uses to one
23
specific area of the city. Plaintiffs contend that the city heard
24
no expert testimony and that they cannot rely on the Seattle
25
experience . I disagree . There is no reason to require that Renton
26
receive expert testimony to show what has been shown to be
27
generally experienced elsewhere. See Genusa v. City of Peoria,
28
619 F. 2d 1203 (7th Cir. 1980) .
29
(2) Whether the Ordinance Suppresses or Greatly Restricts
30 Access to Adult Fare .
31 After reviewing the maps and affidavits , and hearing the
32 testimony of Mr. Clemens , I conclude that although some of the
approximately 400 acres which the city asserts is available for the
REPORT AND RECOMMENDATION - 4
1
location of adult entertainment uses is definitely not available ,
2
and although much of it is not ideal , the record at this stage of
3
the proceeding would indicate that there are many adequate sites
4
available. Plaintiffs ' argument that such sites are not economi-
5
cally practicable is not relevant. The constraints of the ordinance
6
may create economic hardship or loss for those who engage in the
7
adult entertainment business , but that was also true in Young. See
8
Justice Powell ' s concurring opinion at 78 . The First Amendment
9
inquiry is not concerned with economic impact but only the effect
10
upon freedom of expression. All that is required is that those who
11
wish to exhibit sexually explicit films be given ample area to do
12
so, and that those who seek to view them be given access . The City
13
of Renton appears to have provided ample area.
14
CONCLUSION
15
Applying the standards applicable in this Circuit to a motion
16
for injunctive relief , I conclude that although there is some
17
possibility of per se irreparable injury because plaintiffs are
18
prevented from showing films arguably protected under the First
19
Amendment, plaintiffs have not clearly established a probability
20
that they will succeed on the merits . Rather, it appears that the
21
case is controlled by Young and that the ordinance only inciden-
22
tally affects protected speech or expression.
23
As to the alternate test, I conclude that although the
24
allegations in plaintiffs ' complaint are sufficiently serious to
25
be fair grounds for litigation, the balance of hardships does not
26
tip decidedly in plaintiffs ' favor. Although plaintiffs will not
27
be able to show the sexually explicit films they desire to show
28
unless and until this matter is concluded in their favor, they may
29
continue to exhibit other films . The hardship upon them is no more
30
severe than the general hardship imposed upon the one who desires
31
to use a particular piece of property in a manner incompatible with
32
its zoning. Weighed against this impact is the city ' s strong
interest in assuring compliance with its zoning laws .
REPORT AND RECOMMENDATION - 5
1 A proposed form of Order accompanies this Report and
2 Recommendation.
3 DATED this 3d day of February, 1982 .
4
5 ` I
/4(11
Philip K. S ger
6 United States Ma i trate
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32 REPORT AND RECOMMENDATION - 6
1
2
3
4
5
6
7 UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
8 AT SEATTLE
9 PLAYTIME THEATRES , INC. , a )
Washington corporation, and )
10 KUKIO BAY PROPERTIES , INC. , )
a Washington corporation, )
11 )
Plaintiffs , )
12 ) CASE NO. C82-59M
v. )
13 ) ORDER
THE CITY OF RENTON, et al . , )
14 )
Defendants . )
15 )
16 The Court, having considered plaintiffs ' Motion for a Temporar '
17 Restraining Order, defendants response thereto, and the Report and
18 Recommendation of United States Magistrate Philip K. Sweigert, and
19 the balance of the records and files herein , does hereby find and
20 ORDER:
21 (1) Said Report and Recommendation is hereby approved and
22 adopted;
23 (2) Plaintiffs ' Motion for Temporary Restraining Order is
24 hereby DENIED; and,
25 (3) The Clerk is to direct copies of this Order to all
26 counsel of record and to Magistrate Sweigert.
DATED this day of , 1982 .
28
29
30
CHIEF UNITED STATES DISTRICT JUDGE
31
32
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
(] 304 U.S. COURTHOUSE
F UNITED STATES K. SWEIGERT December 9 , 1982 SEATTLE. WASH. 98104
MAGISTRATE 7
(208) 442-1396 4
Jack R. Burns
10940 N.E. 33d Place, Suite 107
Bellevue, WA 98004
Mark E. Barber
100 S. Second Street i,/
P. O. Box 626 ,
Renton, WA 98057
Gentlemen:
Re : Playtime v. Renton
Case Nos. C82-59M & C82-263M
Attached are copies of my Supplemental Report and
Recommendation and proposed form of Order in the above-
captioned case. The originals are being filed wii of with the
Clerk. Any objections to, or memoranda in support
the recommendation should be filed and served within ten
days with copies to the Clerk for forwarding to the
District Judge and to .my office. You should also file
and serve a Notice of Motion placing those objections on
the Judge' s calendar for the third Friday following
filing of those objections. If no timely objections are
filed, the matter will be ready for a ruling by the
Judge not later than two weeks from the date of this
letter or December 23 , 1982.
Thank you for your cooperation.
Yours very trul
So. /f/(,W
Philip K. Swe t
United States 4>gistrate
Attachments
PKS/vlk
cc: Colleen Garrigus �_o.... . _
C8 3M " ; y-- `1ii .. �;•
File NOS. C82-59M & 2-26 !I i? ' :::y , ,-II,-: ;1 z . , I I
All !'_..
J 0I982
_ 1982
f{y
1
2
3
4
5
6
7 UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
8 AT SEATTLE
9 PLAYTIME THEATRES, INC. , et al. , )
10 Plaintiffs, )
11 v. ) CASE NO. C82-59M
12 THE CITY OF RENTON, et al. , )
13 Defendants.0 )
)
) SUPPLEMENTAL REPORT
14 ) AND RECOMMENDATION
THE CITY OF RENTON, )
15 )
Plaintiff, )
16 )
v. ) CASE NO. C82-263M
17
PLAYTIME THEATRES, INC. , et al. , )
18 )
Defendants. )
C
19 )
20 INTRODUCTION AND SUMMARY CONCLUSION
21 A Report and Recommendation which primarily addressed
22 plaintiffs ' motion for a preliminary injunction and defendants '
23 motion for summary judgment was filed on November 5, 1982 .
24 However, discussion of one other issue in this case was inad-
25 vertantly omitted from that report. That is, whether the City
-y. 26 of Renton' s state court declaratory judgment action was cor-
27 rectly removed to this Court and whether it should be remanded
28 to state court. Furthermore, although no motion for reconsi-
29 deration was ever made, it appears appropriate for the Court
30 to examine the effect of Middlesex County Ethics Committee v.
Garden State Bar Association, U.S. , 73 L.Ed. 2d 116
31
(1982) , decided after denial of defendants ' first motion to
32
dismiss , on the continued validity of that ruling.
FPI-SST-I0 7•78
125M-1235 SUPPLEMENTAL REPORT AND RECOMMENDATION - 1
1 For the reasons set forth below, I conclude that removal
2 of the state court action was improper and that it should be
3 remanded. I further conclude that the principles of comity and
4 federalism expressed in Middlesex, supra, do not preclude
5 federal jurisdiction over this case. Abstention is therefore
wholly inappropriate.
6
7 DISCUSSION
8 (A) Motion to Remand.
9 Under 28 U.S.C. §1441, a lawsuit brought in a state court
10 may be removed by a defendant to federal court, if it might
11 have been brought there originally. Grubbs v. G. E. Credit
12 Corp. , 405 U.S . 699 (1972) . In this instance, the City of
13 Renton filed an action in King County Superior Court, Cause
No. 82-2-02344-2 , seeking a declaration "that City of Renton
14
15 Ordinance No. 3526 is constitutional on its face, valid for
16 all purposes and in full force and effect. " On March 8 , 1982 ,
Playtime Theatres , Inc. , and Kukio Bay Properties , Inc. , file.
17
a petition to remove that action to federal court (City of
18
Renton v. Playtime Theatres, Inc. , et al . , C82-263M) . The
19
City of Renton responded with objections to removal and a
20
motion to remand.
21
It is well settled that jurisdiction is not conferred by
22
allegations that defendant intends to assert a defense based
23
on the Constitution or a federal law. Gully v. First National
24
Bank, 299 U.S. 109 , 113 (1936) . Federal law must be an
y`:>''' 25
essential element of the plaintiff ' s cause of action. "The
26
controversy must be disclosed upon the face of the complaint,
27
unaided by the answer or by the petition for removal. " Id.
28
The provision in the statute for removal of cases "arisin':
29
under the Constitution, treaties , or laws of the United States
30
(§1441 (b) ) embraces the same class of cases as is covered by
31
the original jurisdiction statute. State of Tennessee v.
32 SUPPLEMENTAL REPORT AND RECOMMENDATION - 2
SST-10.378
12511--1_35
1 Union and Planters Hank, 152 U.S. 454 , 461 (1894) . Thus, while
2 this Court is not responsible for determining whether City of
3 Renton' s action was properly brought under the state declarator,
4 judgment law, it must examine whether a federal court could
5 have ever asserted original jurisdiction over it. It is,
6 after all, federal law which will determine whether the com-
7 plaint raises a federal question. Shamrock Oil & Gas Corp. v.
8 Sheets , 313 U.S. 100 , 104 (1941) .
9 I have examined the complaint filed by City of Renton, an.
10 conclude that it presents no justiciable controversy which
11 would justify federal jurisdiction. First, Playtime and Kuki.
12 have not demonstrated that the City would have any standing to
13 file such a suit in federal court. It is a prerequisite of
14 justiciability that judicial relief will prevent or redress a
15 claimed injury. Simon v. Eastern Kentucky Welfare Rights Org. ,
16 426 U.S. 26 , 38-39 (1976) . Here, the City of Renton has made
17 no claim that any present or threatened conduct by Playtime
18 or Kukio will cause it any damage. Where there is no injury
alleged to be caused by defendants there is no standing. A
j 19
20 suit for declaratory judgment in federal court will not negate
the requirement of standing or justiciability. For this
21
reason alone, a suit such as this one would be outside of a
22
federal court' s jurisdiction.
23
Furthermore, there has been no showing of an actual case
24
or controversy which meets the requirements of Article III of
25
the Constitution. The City requests nothing more than a
26
judicial stamp of approval for its ordinance. Plaintiff' s
27
prayer for relief seeks that which a federal court simply
28
cannot provide, an advisory opinion. As Playtime and Kukio
29
pointed out in their motion to dismiss this action, municipal
30
ordinances carry with them a presumption of constitutionality.
31
The Supreme Court has long held that a zoning ordinance will
32
SUPPLEMENTAL REPORT AND RECOMMENDATION - 3
FPI-SST-10.3-78
125M-1235
1 be upheld against challenge as a valid exercise of the police
2 power if it bears a rational relation to the public health,
3 safety, morals, or general welfare. Village of Euclid v.
4 Ambler Realty, 272 U.S. 365 (1926) . The City seeks a judicial
5 declaration that this is "merely zoning, " by asserting that
6 Playtime and Kukio disagree. Their opposition to the remand
4: 7 motion fails to cite a single case where a muncipality, cloaked
8 with the presumption that its ordinances are constitutional,
9 has successfully invoked federal jurisdiction for a confirma-
10 tion of their validity. My own research has also failed to
11 reveal any such precedent.
12 This Court cannot give the City of Renton the relief it
' 13 seeks. Playtime and Kukio have not demonstrated a basis for
14 federal removal jurisdiction. The declaratory judgment action
15 herein should be remanded to state court, where Playtime ' s and
16 Kukio' s pending motion to dismiss can be resolved under state
17 law.
18 (B) Federal Abstention.
19
The second issue is whether Middlesex County Ethics
20 Committee, supra, requires this Court to abstain from consider-
21 ation of Playtime ' s and Kukio' s suit for declaratory and
22 injunctive relief, pending resolution of any remanded state
court action. My previous report, filed March 25, 1982 , and
"`l 23
, adopted by the Court May 5 , 1982 , sets forth the underlying
v 24
basis of my analysis herein. Because Middlesex is distin-
25
guishable from this case on at least two grounds, I find no
26
basis for the Court to reconsider its previous ruling.
27
Like Younger v. Harris, 401 U.S. 37 (1971) and its other
28
progeny, Middlesex involved a state enforcement action.
29
Although technically civil in nature, the state bar disci-
30
plinary proceedings at issue there bore a strong similarity to
31
proceedings which the court has already held to be akin to
32
SUPPLEMENTAL REPORT AND RECOMMENDATION - 4
FPI-SST-10-3.78
12511-1235
1 criminal. See Trainor v. Hernandez, 431 U.S. 434 (1977) ;
9 Juidice v. Vail, 430 U.S. 327 (1977) ; Huffman v. Pursue, Ltd. ,
3 420 U.S. 592 (1975) .
4 The Court' s statement in Middlesex that "the policies
5 underlying Younger are fully applicable to non-criminal
6 judicial proceedings when important state interests are
7 involved, " 73 L.Ed. 2d at 124 , can be properly understood only
8 in the context of the next sentence of that opinion. "The
9 importance of the state interest may be demonstrated by the
10 fact that the non-criminal proceedings bear a close relation-
11 ship to proceedings criminal in nature, as in Huffman, supra. "
12 Id. The Court further noted, "the state ' s interest in the
13 professional conduct of attorneys involved in criminal justice
14 is of special importance. " Id. at 126 . Justice Brennan' s
15 concurring opinion, joined by three other justices also
16 emphasized the "quasi-criminal nature of bar disciplinary
17 proceedings . " Id. at 128 .
�., 18 In every case in which Younger abstention has been held
r _
19 to be appropriate, the state ' s vindication of its important
20 interests would have resulted in some form of sanction against
21 the state court defendant. The state judicial proceeding in
this case is purely civil in nature, regardless of the impor-
22
tance of the state policies which the City asserts . This is a
23
critical difference. A state court declaratory judgment suit,
24
like that involved here, has never yet been made the basis for
25
. . federal abstention.
26
Second, the state court action was not yet pending at the
27
time Playtime and Kukio filed their federal lawsuit. In
28
Middlesex, the court was careful to distinguish its facts from
29
those of Steffel v. Thompson, 415 U.S. 452 (1974) in which a
30
federal declaratory judgment suit was permitted to proceed
31
because it had been filed prior to any state proceedings . See
32
SUPPLEMENTAL REPORT AND RECOMMENDATION - 5
FPI-SST-101-78
1_5\1-1235
1 Middlesex, 73 L.Ed. 2d at 127 n. 14 . Hicks v. Miranda, 422
2 U.S. 332 (1975) is the only Supreme Court case which ever
3 sanctioned dismissal of a federal lawsuit on Younger grounds
4 in the face of a subsequent state action. Yet, even a cursory
5 examination of Hicks reveals that it is inapplicable to this
case. In Hicks , the Court held that "where state criminal
6
7 proceedings are begun against the federal plaintiffs after the
l 8 federal complaint is filed but before any proceedings of sub-
9 stance on the merits have taken place in federal court, the
10 principles of Younger v. Harris should apply in full force. "
11 Id. at 349 (emphasis added) . Thus, no justification can be
{
12 found in Middlesex for an extension of the Younger doctrine to
13 such a radically different set of facts as those presented
* herein. The state action, which I have recommended that this
14
- -.. 15 Court remand, is a purely civil matter, with no overtones of
16 quasi-criminal enforcement. It presents no bar to continued
17 federal jurisdiction over plaintiffs ' pursuit of federal
-..
18 declaratory relief.
A proposed form of Order accompanies this Report and
19
Recommendation.
20
DATED this 9th day of December, 1982 .
21
22 101(
23 Philip K. Sweiger
United States Magirate
24
25
26
27
28
29
30
•
31
32 SUPPLEMENTAL REPORT AND RECOMMENDATION - 6
FPI-SST-10-3.78
125\1-1235
1
2
3
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 THE CITY OF RENTON, et al. , )
13 Defendants. )
) ORDER
14 )
THE CITY OF RENTON, )
15 )
Plaintiff, )
16 )
v. ) CASE NO. C82-263M
17 )
PLAYTIME THEATRES, INC. , et al. , )
18 )
Defendants. )
19 )
20 The Court, having considered plaintiff City of Renton' s
21 motion to remand, defendants ' response thereto, the Supple-
22 mental Report and Recommendation of United States Magistrate
23 Philip K. Sweigert, and the balance of the records and files
24
herein, does hereby find and ORDER:
25 (1) Said Supplemental Report and Recommendation is hereby
26 approved and adopted;
27 (2) The motion to remand is hereby GRANTED and Cause
28 No. C82-263M is hereby REMANDED to King County Superior Court;
29 and,
30 (3) The Clerk of Court is to direct copies of this Order
31 to all counsel of record and to Magistrate Sweigert.
32 ORDER - 1
1'eI-SST-10-3.78
125M-1215
1 DATED this day of , 19
2
3
CHIEF UNITED STATES DISTRICT JUDGE
4
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8
9
10
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ORDER - 2
32
P P I-SST-10.1.78
1 25 51--1 235
1
4
5 f CY '
6 C'£ Ury
7 3, ‘1., �v
8 UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
9 AT SEATTLE
10 PLAYTIME THEATRES , INC . , a )
Washington corporation, )
11 et al, ) NO. C82-59M
)
12 Plaintiffs , ) MEMORANDUM IN SUPPORT OF
) MOTION TO REMAND TO STATE
13 vs ) COURT
)
14 CITY OF RENTON, et al . , )
)
15 Defendants . )
)
16
STATEMENT OF FACTS
17
On February 19, 1982, the City of Renton filed suit in
18
State court against Playtime Theatres , Inc . ("Playtime") and
19
Kukio Bay Properties , Inc . ("Kukio") , both Washington
20
corporations . The Summons and Complaint was served on "Playtime"
21
and"Kukio ' s"registered agent for service of process on or about
22
February 25, 1982 . The civil action filed in the Superior Court
23
for King County, State of Washington, was entitled "City of
24
Renton, a municipal corporation vs . Playtime Theatres , Inc. , a
25
Washington corporation, and Kukio Bay Properties , Inc. , a
26
Washington corporation, Cause Number 82-2-02344-2. The civil
27
action sought a declaratory judgment with respect to City of
28
WARREN & KELLOGG, P. S .
100 S . Second St . , P.O . Box 626
Renton, Washington 98057
255--8678
•
1 Renton Ordinance No . 3526 .
2 On or about March 8 , 1982, "Playtime" and "Kukio" filed a
3 petition to remove in this court, alleging that the State civil
4 action is one of which this court had original jurisdiction
5 under the provisions of 28 U. S . C . 1331(a) , 1343(3) , and 42 U. S . C .
6 1983 . Further, "Playtime" and "Kukio" alleged in their
7 petition to remove that the State civil action is one which
8 may be removed to this court by "Playtime" and "Kukio" pursuant
9 to 28 U. S .C . 1441 and 1443 . The City denies these allegations ,
10 in whole and in part, and requests this court to enter an order
11 remanding the State civil action to State court.
12 ARGUMENT
13 The burden of proof in this matter is upon the petitioners
14 seeking removal to prove their allegations regarding original
15 and subject matter jurisdiction of the State civil action.
16 In Wilson v. Republic Iron Company, 257 U. S . 92, 97 , 42 S .
17 Ct. 35, 66 L.Ed. 144 (1921) , the court ruled that if a removal
18 is effected the plaintiff may take issue with the statements in
19 - the petition by motion to remand: If such issue is taken, then
20 the issues so arising must be heard and determined by the
21 district court and at the hearing, the petitioner/defendant must
22 take and carry the burden of proof . This rule is supported by
23 ample authority. Volume 1A, Moore ' s Federal Practice, Section
24 0 . 168 (4 . 1) , page 529 , Footnote 40 .
Petitioners allege that removal of the State civil action
25
26 is proper under 28 U. S .C . 1443 . However , this broad assertion
27 cannot withstand any critical analysis . It has been stated
that 28 U. S . C . 1443 , which provides for removal of certain types
28
MEMORANDUM IN SUPPORT OF MOTION TO
REMAND TO STATE COURT
P . 2
1 of civil rights cases, has been so narrowly construed that it is
2 available only in rare instances . Volume 1A, Moore, supra,
3 Section 0. 157 (13) , page 164 .
4 In Greenwood v. Peacock, 384 U. S. 808 , 86 S . Ct . 1800, 16 L .
5 Ed. 2d. 944 (1966) , the court explains the practical problems
6 which can be encountered should Section 1443 be construed broadly :
7 "In the fical year 1963 there were fourteen criminal
removal cases of all kinds in the entire nation; in
8 fiscal 1964 there were 43 . . . . in . . . fiscal 1965,
there were 1, 079 criminal removal cases in the
9 Fifth Circuit alone. That this phenomenal increase
is no more than a drop in the bucket of what could
10 reasonably be expected in the future . For if the
individual petitioners should prevail in their
11 interpretation of Section 1443 (1) , then every
criminal case in every court of every state - on
12 any charge from a five-dollar misdemeanor to first-
degree murder - would be removaable to a Federal
13 court upon alleging (1) that the defendant was
being prosecuted because of his race and that he
14 was completely innocent of the charge brought
against him, or (2) that he would be unable to
15 obtain a fair trial in the State court. On motion
to remand, the Federal court would be required in
16 every case to hold a hearing , which would amount
to at least a preliminary trial of the motivations
17 of the state officers who arrested and charged the
defendant, of the quality of the State court or
18 judge before whom the charges were filed, and of
the defendant ' s innocence or guilt . And the
19 Federal court might, of course, be located hundreds
of miles away from the place where the charge was
-
20 brought . This hearing could be followed either by
full trial in the Federal court, or by a remand
21 order . Every remand order would be appealable as
of right to a United States Court of Appeals . . .
22 and, if affirmed there, would then be reviewable
by petition for a Writ of Certiorari in this court.
23 If the remand order were eventually affirmed, there
might, if the witnesses were still available, finally
24 be a trial in the state court, months or years after
the original charge was brought. If the remand order
25 were eventually reversed, there might finally be a
trial in the Federal court, also months or years
26 after the original charge was brought. "
(See also Georgia v. Rachel , 384 U. S . 780, 86 S .
27 Ct . 783 , 16 L. Ed. 2d. 925 ZI966) ) ,
28
MEMORANDUM IN SUPPORT OF MOTION TO
REMAND TO STATE COURT
P. 3
ell II
1 In the civil action filed in State court, the City sought
2 a declaratory judgment with regard to Ordinance No . 3526 . If
3 "Playtime" and "Kukio" were able to remove this State civil
4 action to Federal court under Section 1443 , then no zoning case
5 could be heard in State court following this logic . By
6 necessity, every zoning case impacts property rights and is
7 subject to claims of due process and deprivation of proprietary
8 interests . The court in Greenwood, supra, was speaking to this
9 predicament if Section 1443 were broadly construed. The
10 rationale for limiting the affect of removal under Section 1443
11 is transparent. Any individual asserting damage caused by a
12 zoning enactment of a municipality could then seek to remove an
13 action filed against that party by the municipality to Federal
14 court. This would result in the same procedural nightmare as
15 indicated by the court in Greenwood, supra, with respect to the
16 claim of a civil rights violation by state criminal defendants .
17 The action commenced by the City in State court is a case
18 involving land use regulation and is not a civil rights case.
19 In Trainor v. Hernandez, 431 U . S . 434, 445, 52 L . Ed. 2d 486,
20 496, 97 S . Ct . 1911 (1977) , the court spoke to the need for
21 restraint by federal courts unless extraordinary circumstances
22 were present warranting federal interference or unless state
23 remedies were inadequate to litigate federal due process claims .
24 In the City' s state complaint, it is evident the petitioners
25 have an opportunity to fully and fairly present their views
26 regarding Ordinance 3526. To hold otherwise would foreclose the
27 State from the opportunity to construe the City' s ordinance,
28 and could well lead to the problems discussed earlier in Peacock,
MEMORANDUM IN SUPPORT OF MOTION
TO REMAND TO STATE COURT
1 supra, and Rachel , supra.
2 As stated previously, the right of removal by a defendant
3 for the protection of civil rights under 28 U. S .C. 1443 is a
4 very restricted one. Subdivision (1) requires two distinct
5 showings : that the right upon which the petitioner relies is a
6 "right under any law providing for . . . equal civil rights , " and
7 that the petitioner is "denied or cannot enforce" that right in
8 the state court. In Georgia v. Rachel , supra, the Supreme Court
9 held that the law relied on "must be construed to mean any law
10 providing for specific civil rights stated in terms of racial
11 equality. " 384 U. S . at 792 (emphasis ours) .
12 The court in Rachel, supra, went on to state:
13 "Thus the defendants ' broad contentions under the
First Amendment and the Due Process Clause of the
14 Fourteenth Amendment cannot support a valid claim
for removal under §1443, because the guarantees of
15 those clauses are phrased in terms of general
application available to all persons or citizens ,
16 rather than in the specific language of racial
equality that §1443 demands . " 384 U. S . at 792.
17
It should be noted that the denial of civil rights must
18
be by state constitution or statute. Rachel , supra, at ftn. l0.
19
The court in Rachel explained the strict interpretation of
20
§1443(1) and its purpose as follows:
21
"It insured that removal would be available only in
22 cases where the predicted denial appeared with
relative clarity prior to trial . It also insured
23 that the task of prediction would not involve a
detailed analysis by a federal judge of the likely
24 disposition of particular federal claims by
particular state courts . The task not only would
2S have been difficult, but it also would have involved
federal judges in the unseemly process of prejudging
26 their brethren of state courts . " (Emphasis added) .
Rachel , supra, 803-804, n 10.
27
Furthermore, even if a state statute or constitution
28
MEMORANDUM IN SUPPORT OF MOTION
TO REMAND TO STATE COURT
P. 5
,� 1 allegedly denies civil rights, there is no removal if the state
2 courts have held the statute unconstitutional ,
n 1 , or have not yet
3 had an opportunity of examining into the constitutionality of
4 the statute. Vol . lA Moore' s, Sec. 0. 165, p. 349-350, citing
5 Snypp v. State of Ohio, 70 F. 2d 535 (6th Cir . 1934) .
6 In the civil action, filed by the City, the State court
7 did not have an opportunity to determine if Ordinance No . 3526
8 was constitutional prior to "Playtime" and "Kukio" filing their
9 petition for removal . It is only proper that the State court
10 have an opportunity to examine the constitutionality of
11 Ordinance No . 3526 and to rule upon it where the issue has been
12 presented.
13 With regard to 28 U. S . C . 1443 (2) , it has an even narrower
14 meaning than Section 1443(1) . Moore states that :
15 " . . . (T)he petitioner must show that the act or
failure to act complained of was "under color
16 of authority. "
17 Thus §1443 (2) "confers a privilege of removal
only upon federal officers or agents and those
18 authorized to act with or for them in affirmatively
executing duties under any federal law providing
19 equal civil rights . " If, on the other hand, the
defendant is sued for non-action rather than action,
20 i. e. , "for refusing to do any act on the ground
that it would be inconsistent with such law, "
21 then removal under § 1443(2) is available only
to state officers and those acting under them.
22 And the reference in §1443 (2) to "any law providing
for equal rights" is limited to a federal law
23 providing for rights defined in terms of racial
equality; and which "manifests an affirmative
24 intention that a beneficiary of such law should be
able to do something and not merely to one where
25 he may have a valid defense or be entitled to
have civil or criminal liability imposed on those
26 interfering with him. " Vol. lA Moore' s , Sec . 0. 165 ,
p. 351-352 (footnotes omitted) .
27
28 MEMORANDUM IN SUPPORT OF MOTION
TO REMAND TO STATE COURT
P. 6
/,/2;/X]: From the foregoing, it is apparent that petitioner ' s
2 request for removal fails under any reading of Sec. 1441 .
3 As stated in the City' s Memorandum of Points and
4 Authorities in Support of Defendant ' s Motion to Dismiss
5 Complaint Pursuant to F.R.C . P. 12(b) (1) and 12(b) (6) , a federal
6 court lacks "jurisdiction" in matters involving state
7 sovereignty. The City specifically incorporates the arguments
8 raised in its above-referenced memorandum for the purpose of
9 this motion and attaches a copy of said Memorandum hereto as
10 Attachment "A" .
11 In their Petition to Remove, "Playtime" and "Kukio" also
12 allege a jurisdictional statute requiring a federal question.
13 (28 U. S .C . 1441) . However , the City' s state complaint requests
14 a declaratory judgment regarding Ordinance No . 3526 and its
15 specific application to the proposed land use by "Playtime" and
16 "Kukio" . The City' s state complaint may collaterally raise a
17 federal question, but it does not present a basic federal
18 question. Gully v. First Nat. Bank in Meridian, 299 U. S . 109,
19 57 S .Ct. 96, 81 L. Ed. 70 (1936) drew a distinction between basic
20 and collateral federal issues and limits removal , because of a
21 general federal question, to cases where the complaint presents
22 a basic federal question. Vol. lA Moore' s , supra, Sec. 0 . 160,
23 p . 189 - 192 . An action is not removable where the federal
24 question appears in the complaint by way of an anticipated
25 defense or because the defendant has a defense which raises a
26 federal question. (See Vol . lA Moore' s, supra, Sec . 0 . 160,
27 p . 191-192 and cases cited in footnote 36) .
28 Principles of state sovereignty, as well as petitioner ' s
MEMORANDUM IN SUPPORT OF MOTION
TO REMAND TO STATE COURT
P 7
1 failure to fall within the provisions of appropriate jurisdictional
2 statutes , as alleged in their petition to remove, requires that
3 this court enter an order remanding the civil action entitled
4 "City of Renton, a municipal corporation vs . Playtime Theatres,
5 Inc . , a Washington corporation and Kukio Bay Properties , Inc . ,
6 a Washington corporation," to the Superior Court for King County
7 of the State of Washington.
8 Costs should be awarded to the City pursuant to 28 U. S. C .
9 1447, for the necessity of bringing this motion.
10
11 Respectfully submitted,
12
13
Mark E. Barber, Attorney for
14 City of Renton
15
16
17
18
19
20
21
22
23
24
25
26
27
MEMORANDUM IN SUPPORT OF MOTION
TO REMAND TO STATE COURT
P. 8