587 F.2d 379 (8th Cir. 1978), 78-1151, Blatnik Co. v. Ketola

Docket Nº:78-1151.
Citation:587 F.2d 379
Party Name:The BLATNIK COMPANY, a Minnesota Corporation, and Jack Blatnik, Jr., Appellants, v. Jerry H. KETOLA, Individually and as City Attorney for the City of Virginia, J. Edward Pearsall, Individually and as Mayor of the City of Virginia, and Edward Snyder, Individually and as Virginia Chief of Police, Appellees.
Case Date:November 13, 1978
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 379

587 F.2d 379 (8th Cir. 1978)

The BLATNIK COMPANY, a Minnesota Corporation, and Jack

Blatnik, Jr., Appellants,

v.

Jerry H. KETOLA, Individually and as City Attorney for the

City of Virginia, J. Edward Pearsall, Individually and as

Mayor of the City of Virginia, and Edward Snyder,

Individually and as Virginia Chief of Police, Appellees.

No. 78-1151.

United States Court of Appeals, Eighth Circuit

November 13, 1978

Submitted Sept. 14, 1978.

Page 380

Randall D. B. Tigue (argued), and Patsy S. Reinard, Legal Counsel, Minnesota Civil Liberties Union, Minneapolis, Minn., on brief, for appellants.

Jerry H. Ketola, City Atty., Virginia, Minn., for appellees.

Before LAY, BRIGHT and ROSS, Circuit Judges.

ROSS, Circuit Judge.

This appeal from the district court's 1 grant of a cross-motion for summary judgment in favor of appellees arose out of appellants' action for declaratory and injunctive relief and the dismissal of their complaint. Appellants challenged the constitutionality of an ordinance 2 enacted by

Page 381

the City of Virginia, Minnesota which, in part, provides for the prohibition of seminudity and nudity and other sexually explicit entertainment in on-premises liquor establishments. Appellants alleged that the ordinance is overbroad in that it prohibits activities entitled to the protection of the first and fourteenth amendments to the Constitution. 3

Appellants, the Blatnik Company, and its president, Jack Blatnik, Jr., are engaged in the operation of a duly licensed liquor establishment in Virginia, Minnesota. The Blatnik Company provides entertainment for its customers consisting of "go-go" dancers. The appellees are Jerry H. Ketola, City Attorney for the City of Virginia, J. Edward Pearsall, Mayor of Virginia and Edward Snyder, Virginia's Chief of Police. The appellees are responsible for the enforcement of the ordinance.

For the reasons hereinafter stated, we agree with the district court that there were no genuine issues of material fact presented and that the appellees were entitled to judgment as a matter of law.

I.

We note at the outset that appellants have alleged the existence of a case or controversy within the meaning of article III of the Constitution and that their claim for relief under 28 U.S.C. § 2201 is justiciable.

Federal declaratory relief under 28 U.S.C. § 2201 is available when those seeking to invoke the power of federal courts allege an actual case or controversy within the meaning of article III of the Constitution. Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1972); Flast v. Cohen, 392 U.S. 83, 99-101, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). In order to assure the requisite adverseness of interest which "sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions" the parties must possess a "personal stake in the outcome" of the case. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

In Steffel v. Thompson, 415 U.S. 452, 475, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), the Supreme Court held that declaratory relief may be invoked against a general as well as an actual threat of state prosecution whether an attack is made on the constitutionality of a state statute on its face or as applied. The challenger need not expose himself to actual arrest.

In this case the ordinance is not moribund and applies particularly and unambiguously to appellants' business. A violation of any provision of the ordinance is grounds for revocation or suspension of any and all licenses held by a liquor establishment as well as the imposition of a term of imprisonment or a fine up to $300.00.

II.

This case presents the issue of whether the state's broad regulatory power over liquor within its borders, conferred by the twenty-first amendment, outweighs a tavern owner's first amendment interest in...

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