Walnut Properties, Inc. v. City of Whittier
| Decision Date | 09 November 1988 |
| Docket Number | 87-5748,87-5859 and 87-5956,Nos. 86-5645,s. 86-5645 |
| Citation | 861 F.2d 1102 |
| Parties | WALNUT PROPERTIES, INC., a California corporation; and Vincent Miranda, Plaintiffs-Appellees, v. CITY OF WHITTIER; M.D. Klaxton; R.L. Henderson; L.A. Strong; James Bale, as Chief of Police, City of Whittier; J. Robert Flandrick, as City Attorney, City of Whittier; and Whittier City Council, Defendants-Appellants. WALNUT PROPERTIES, INC., a California corporation, Plaintiff-Appellee, v. J. Robert FLANDRICK; James Bale; City of Whittier; Whittier City Council; and Elvin Porter, Defendants-Appellants. WALNUT PROPERTIES, INC., a California corporation; and Vincent Miranda, Plaintiffs-Appellees, v. CITY OF WHITTIER; M.D. Klaxton, R.L. Henderson, L.A. Strong, Gene Chandler, and V.A. Lopez, as Members of the Whittier City Council; James Bale, as Chief of Police of the City of Whittier; and J. Robert Flandrick, as City Attorney of the City of Whittier, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
J. Robert Flandrick and Virginia Pesola, City Attys. and Burke, Williams & Sorensen, Los Angeles, Cal., for defendants-appellants.
Stanley Fleishman, Fleishman, Fisher & Moest, Los Angeles, Cal., for plaintiffs-appellees.
Appeal from the United States District Court for the Central District of California.
Before BROWNING, HUG and REINHARDT, Circuit Judges.
In this action, Walnut Properties, Inc. ("Walnut") challenges the constitutionality of a municipal zoning ordinance which regulates the location of adult businesses. The city of Whittier, California ("City") adopted an ordinance prohibiting, among other things, the location of adult businesses within 1,000 feet of a church. Walnut's adult "Pussycat" Theater violates that provision. At issue is whether enforcement of the ordinance would deprive Walnut of its First Amendment rights. This case also involves issues of abstention and immunity. We affirm the district court's finding that
the ordinance is unconstitutional on the basis that it fails to provide for reasonable alternative avenues of communication.
In May, 1977, Walnut began operation of its theater and exhibited "adult" films. In June, 1977, the City enacted an "urgency" ordinance imposing locational restrictions on adult businesses. The ordinance allowed the City's planning department time to study the problems associated with adult businesses and to consider potential zoning remedies. A study was conducted, and it revealed that, at that time, 13 adult businesses were located within the city boundaries; these operations included massage parlors, nude model studios, adult bookstores, and an adult theater (Walnut's Pussycat Theater). According to the City, the study indicated several undesirable secondary effects associated with these adult businesses.
Following the study, the City reenacted the ordinance several times. The City brought an action against Walnut in Los Angeles Superior Court seeking to enjoin Walnut from operating its theater because it violated the restrictions. The course of proceedings at the state level has not yet ended; instead, those proceedings have been stayed pending resolution of the federal proceedings.
The present action arises from the City's adoption of Ordinance No. 2257, on March 24, 1981. Like the preceding ordinances, that ordinance allowed adult businesses in commercial and industrial zones, but imposed certain separation requirements. The ordinance prohibited adult businesses within 500 feet of residential lots and establishments holding liquor licenses, and within 1,000 feet of schools, churches, parks, or other adult businesses.
On May 7, 1981, Walnut filed an action in federal district court seeking an injunction to restrain the City from enforcing the ordinance on the basis that it was unconstitutional. The district court held invalid that part of the ordinance prohibiting the location of an adult business within 1,000 feet of a church. The court rested its holding on the basis that there were insufficient facts to prove that the prohibition furthered a compelling state interest, and that a motivating factor in enacting the ordinance was the desire to restrict Walnut's exercise of First Amendment rights.
Less than one week after the Findings of Fact and Conclusions of Law were rendered by the district court declaring the ordinance unconstitutional, City Attorney Flandrick advised the city council that it would be appropriate to consider readoption of that portion of the ordinance held unconstitutional if sufficient evidence were present to support the provision. In response, the City held public hearings on the separation requirement, and the City's planning director, Mr. Porter, began gathering evidence to remedy the deficiency found by the district court. Specifically, Mr. Porter wrote to several ministers of churches located in the City soliciting comments that would develop a factual basis for the ordinance. The responses from ministers were compiled in an April 9, 1984 staff report along with articles discussing the effects of adult businesses on children, law review articles reviewing adult business ordinances, and studies of similar ordinances in other cities. The report recommended readopting the 1,000-foot separation requirement between churches and adult businesses.
The city council did so, enacting Ordinance No. 2327 on May 22, 1984. That ordinance essentially amounted to a reenactment of the previous ordinance held unconstitutional by the district court just two months earlier, but the city council justified the reenactment on the basis that the recent study remedied the evidentiary shortfalls of the prior ordinance.
In response to this reenactment, Walnut filed another action in the district court on July 10, 1984, attacking the constitutionality of Ordinance No. 2327. Walnut sought the following: (1) a declaration that the ordinance was invalid insofar as it prohibited an adult theater from operating within 1,000 feet of a church; (2) an injunction against enforcement of the ordinance; and (3) damages against the City, City Attorney Walnut filed a motion for partial summary judgment declaring Ordinance No. 2327 unconstitutional. Defendants Porter and Flandrick filed a cross-motion for summary judgment or, in the alternative, partial summary judgment, asserting that Ordinance No. 2327 was constitutional and that, in any event, they were entitled to absolute immunity or, alternatively, qualified immunity. The district court denied the defendants' motion and granted partial summary judgment to Walnut declaring the ordinance unconstitutional.
Flandrick, and Planning Director Porter, alleging that the reenactment of the ordinance violated its constitutional rights.
Appeal was taken by the City from both of the district court decisions. For simplicity's sake, we refer to the first action--that regarding Ordinance No. 2257--as Walnut 1; we refer to the second action--involving Ordinance No. 2327--as Walnut 2.
The district court's decision in Walnut 1 was affirmed by this circuit. Walnut Properties, Inc. v. City of Whittier, Nos. 84-5755, 84-6087 (9th Cir.1985) (mem.) [762 F.2d 1020 (Table) ]. The Supreme Court, however, summarily vacated our judgment and remanded for reconsideration in light of City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29, reh'g denied, 475 U.S. 1132, 106 S.Ct. 1663, 90 L.Ed.2d 205 (1986); City of Whittier v. Walnut Properties, Inc., 475 U.S. 1042, 106 S.Ct. 1255, 89 L.Ed.2d 566 (1986) (mem.). We then vacated the district court's decision and instructed the court on remand to consider the evidence in light of Renton. Walnut Properties, Inc. v. City of Whittier, 808 F.2d 1331, 1333 (9th Cir.1986). The district court again found the ordinance unconstitutional and this appeal was taken by the City. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 (1982).
We rendered our decision in Walnut 2 following our consideration of Walnut 1 upon remand from the Supreme Court. Walnut Properties, Inc. v. City of Whittier, 807 F.2d 178 (9th Cir.1986) (order). We felt it necessary to vacate the district court's decision in Walnut 2, because, in deciding that Ordinance No. 2327 was unconstitutional, the district court had relied upon our original decision in Walnut 1, which was later vacated by the Supreme Court. We remanded Walnut 2 for reconsideration in light of Renton and this circuit's decision on remand in Walnut 1. On remand, the district court concluded that, even in light of those decisions, Walnut was entitled to partial summary judgment declaring unconstitutional the separation requirement between a church and an adult business. The court also rejected the defendants' immunity claims, and denied the City's motion for summary judgment. This appeal is from that portion of the district court's order denying Porter and Flandrick immunity. Our jurisdiction over a denial of a motion for summary judgment on an issue of immunity is established by Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). We have consolidated Walnut 1 and Walnut 2.
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