Hacienda Valley Mobile v. Morgan Hill

Decision Date10 September 2003
Docket NumberNo. 01-16390.,No. 01-16303.,01-16303.,01-16390.
PartiesTALK OF THE TOWN; Video Treasures, Inc.; Video Treasures, Ltd.; Raymond Pistol, President, Secretary and Treasurer, Plaintiffs-Appellants, v. DEPARTMENT OF FINANCE AND BUSINESS SERVICES, on Behalf of City of Las Vegas, Defendant-Appellee. Talk of the Town; Video Treasures, Inc.; Video Treasures, Ltd.; Raymond Pistol, President, Secretary and Treasurer, Plaintiffs-Appellees, v. Department of Finance and Business Services, on behalf of City of Las Vegas, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Allen Lichtenstein, Las Vegas, Nevada, argued the cause for Talk of the Town and submitted briefs.

Peter M. Angulo, Rawlings, Olson, Cannon, Gormley & Desruisseaux, Las Vegas, Nevada, argued the cause for the City of Las Vegas and filed briefs. Thomas D. Dillard, Jr., also was on the briefs.

Appeal from the United States District Court for the District of Nevada, Lloyd D. George, District Judge, Presiding. D.C. No. CV-98-00910-LDG/RJJ.

Before William C. CANBY, Jr., Diarmuid F. O'SCANNLAIN, and William A. FLETCHER, Circuit Judges.

ORDER

The opinion filed September 10, 2003 is hereby amended as follows:

Slip. Op. at 13377 [343 F.3d 1063, 1070] n. 14: Add, as a new paragraph at the conclusion of current footnote 14, the following text:

After we issued our decision in this case, TOT filed a petition for rehearing alleging — for the first time ever — that it was punished for conduct sanctionable only under LVMC § 6.35.100(F), and therefore that it was not prosecuted under a generally applicable statute at all. We consider any such argument waived. See Officers for Justice v. Civil Serv. Comm'n, 979 F.2d 721, 726 (9th Cir. 1992) ("We will not ordinarily consider matters on appeal that are not specifically and distinctly raised and argued in appellant's opening brief."). TOT itself argued in briefing to this court that "The constitutionality of LVMC § 6.35.100(F) is not now, nor it has ever been [sic] an issue in this case," and it repeatedly conceded that it was prosecuted under a generally applicable statute (e.g., "Even under Arcara, the closure of a business involved in protected expression for violating a criminal law of general applicability clearly does not eliminate all First Amendment consideration." (emphasis added)). We therefore decline TOT's invitation...

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4 cases
  • Marceau v. Blackfeet Housing Authority
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 21 de julho de 2006
    ...decide the immunity issue by failing to raise it until the Housing Authority's petition for rehearing. Talk of the Town v. Dep't of Fin. & Bus. Servs., 353 F.3d 650, 650 (9th Cir.2003). That being so, we readopt our earlier opinion on this issue, Marceau, 455 F.3d at 978-83. Moreover, in th......
  • U.S. v. Ortuno-Higareda
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 8 de junho de 2006
    ...argument on petition for rehearing where issue had been raised "at no point in th[e] litigation"); Talk of the Town v. Dep't of Finance and Business Servs., 353 F.3d 650, 650 (9th Cir.2003) (refusing to consider argument raised on petition for rehearing "for the first time In Varney v. Secr......
  • Picazo v. Alameida
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 5 de maio de 2004
    ...Esparza. Under the law of this circuit, we deem the state's most recent argument waived. See Talk of the Town v. Department of Finance and Business Services, 353 F.3d 650 (9th Cir.2003) (refusing to consider an issue raised for the first time in a petition for rehearing); see also Smith v. ......
  • U.S. v. Whitmore, 03-3022.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 14 de junho de 2004

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