Cam I, Inc. v. Louisville/Jefferson County Metro Government, No. 2005-CA-000085-MR (Ky. App. 10/19/2007)
| Decision Date | 19 October 2007 |
| Docket Number | No. 2005-CA-000090-MR.,No. 2005-CA-000100-MR.,No. 2005-CA-000176-MR.,No. 2005-CA-000092-MR.,No. 2005-CA-000085-MR.,No. 2005-CA-000113-MR.,No. 2005-CA-000091-MR.,2005-CA-000085-MR.,2005-CA-000090-MR.,2005-CA-000091-MR.,2005-CA-000092-MR.,2005-CA-000100-MR.,2005-CA-000113-MR.,2005-CA-000176-MR. |
| Parties | CAM I, INC. AND OTHER LITIGANTS AS NAMED ON THE NOTICES OF APPEAL, Appellants/Cross-Appellees. v. LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT, Appellee/Cross-Appellant. |
| Court | Kentucky Court of Appeals |
Frank Mascagni, III, Louisville, Kentucky, Bradley J. Shafer, Lansing, Michigan, Brief and Oral Argument for Appellants/Cross Appellees.
N. Scott Lilly, William P. O'Brien, Louisville, Kentucky, Scott D. Bergthold, Chattanooga, Tennessee, Brief and Oral Argument for Appellee/Cross Appellant.
Before: COMBS, Chief Judge; HOWARD and MOORE, Judges.
This is a consolidated case in which Appellants, entities that are engaged in various adult entertainment or sexually oriented businesses, are challenging an ordinance amending Appellee Louisville/Jefferson County Metro Government's Code of Ordinances. Appellants appeal the Order and Judgment of the Jefferson Circuit Court granting in part summary judgment to Metro and denying in part Appellants' motion for temporary injunction. Metro cross-appeals the portions of the Order and Judgment granting in part Appellants' motion for temporary injunction.
In January of 2003, the City of Louisville and Jefferson County were merged to form Metro Louisville. At that time, both entities were involved in litigation in federal court challenging ordinances contained in Chapter 111 of the Metro Code pertaining to adult entertainment. As a result of that litigation, members of the Metro Council initiated a review of the then current status of the law governing adult entertainment businesses. Thereafter, Chapter 111 was amended by Ordinance No. 21, Series 2004, which is the subject of the matter at hand.
While Ordinance 21 contains many sections, those under attack by Appellants include provisions regarding: (1) a licensing requirement to operate an adult entertainment business; (2) anti-nudity provisions; (3) hours of operation restrictions; (4) "no direct payment" to entertainers restrictions; (5) prohibition of the sale of alcohol; (6) "buffer zone" requirements; and (7) no touch provisions.
Appellants filed suit in Jefferson Circuit Court challenging Chapter 111 on numerous state constitutional grounds and moved the court for a temporary restraining order and a temporary injunction enjoining Metro from enforcing or implementing Chapter 111.1 On the day the complaint was filed, the circuit court entered an order granting temporary injunctive relief enjoining Metro from enforcing Chapter 111 pending further orders of the court.2
Thereafter, Metro removed the case to federal court and Appellants filed a motion to remand. While the matter was pending in federal court, Metro sought to dissolve the Jefferson Circuit Court's Order for Temporary Restraining Order/Temporary Injunction. The federal court granted Appellants' motion, deciding that it lacked jurisdiction under 28 U.S.C. § 1441 because Appellants did not make any claims under the federal Constitution. Instead, Appellants relied only on state constitutional grounds for their complaint.
Both parties filed substantive motions in Jefferson Circuit Court. Among other pleadings, Metro filed a motion for summary judgment and a supplemental brief in support of its motion to dissolve the temporary restraining order. Appellants filed a supplemental brief in support of their motion for temporary injunction. Both parties having fully briefed the issues and the law, the circuit court entered a final and appealable judgment dissolving the restraining order, granting Metro's summary judgment in part, and denying in part and granting in part Appellants' motion for temporary injunction.
Appellants timely filed a notice of appeal, and Metro filed a cross appeal. A stay pending appeal was granted by this Court.
Both parties agree that the proper standard of review on appeal of a summary judgment is the de novo standard. Thus, we review whether the trial court correctly held that there were no genuine issues as to any material fact, and the moving party was entitled to a judgment as a matter of law. Horne v. Precision Cars of Lexington, Inc., 170 S.W.3d 364, 366 (Ky. 2005). We conduct de novo review of the circuit court's application of the law to the facts. Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002). In conducting our review, we must consider the record in a light most favorable to the party opposing the motion for summary judgment. Baker v. Coombs, 219 S.W.3d 204 (Ky. App. 2007). Summary judgment is proper only when it would be impossible for the party opposing the motion to produce evidence at trial justifying a judgment as a matter of law in his or her favor. Horne, 170 S.W.3d at 366.
Appellants contend that numerous provisions of Chapter 111 violate several sections of the Kentucky Constitution. The Kentucky Constitutional sections, in relevant part, at issue are:
Section 1(4). The right of freely communicating . . . thoughts and opinions.
Section 2. Absolute and arbitrary power over the lives, liberty and property of freeman exists nowhere in a republic, not even in the largest majority.
Section 8. Every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.
Section 14. All courts shall be open and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.
Section 26. To guard against transgression of the high powers which we have delegated, We Declare that everything in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution, shall be void.
Primarily however, Sections 1(4) and 8 are the main sections upon which Appellants rely.
When considering the constitutionality of legislation, the Court draws all fair and reasonable inferences in favor of the validity of the legislation. Posey v. Commonwealth., 185 S.W.3d 170, 175 (Ky. 2006) (citing Kentucky Industrial Utility Customers, Inc. v. Kentucky Utilities Co., 983 S.W.2d 493, 499 (Ky. 1998)). "`[T]he violation of the Constitution must be clear, complete and unmistakable in order to find the law unconstitutional.'" Id. (citing Kentucky Utilities, 983 S.W.2d at 499); Walters v. Bindner, 435 S.W.2d 464, 467 (Ky. 1968) ().
The sections of the Kentucky Constitution under present review are included in Kentucky's Bill of Rights, which is recognized as the supreme law of the Commonwealth.3 Id. at 176 (citing Gatewood v. Matthews, 403 S.W.2d 716, 718 (Ky. 1966)). The Supreme Court of Kentucky articulated the standards for deciding state constitutional issues in Kentucky State Board for Elementary and Secondary Education v. Rudasill, 589 S.W.2d 877 (Ky. 1979). See Commonwealth v. Wasson, 842 S.W.2d 487, 514 (Ky. 1992) (Wintersheimer, J., dissenting). In Rudasill, a four-part test was adopted for Kentucky courts reviewing state constitutional issues. Under Rudasill, the Court should examine: (1) the text of the Constitution; (2) the intent of the framers; (3) a comparison of the state constitutional provision to the federal counterpart; and (4) how prior judicial opinions interpreted the constitutional provisions in question.
Rather than applying the test in Rudasill, Appellants insist that to review the Kentucky Constitution we should turn to other states' constitutional construction. Primarily, Appellants urge the Court to rely heavily on decisions from Pennsylvania for the proper construction of Kentucky's Constitution. It is true that Kentucky's Constitutional Convention relied on language used in Pennsylvania's Constitution when drafting Kentucky's Constitution. However, Appellants would have this Court ignore Kentucky's own jurisprudence in deciding this matter and instead, rely wholly on Pennsylvania's courts for interpreting the constitutional sections at hand. While certainly Kentucky's courts have relied on Pennsylvania jurisprudence in some areas, this is not true for all areas of the law. Indeed, Appellants have not cited this Court to one case wherein Kentucky's courts have relied on Pennsylvania's courts for the parameters and boundaries of free expression or free speech.
To the contrary, a comparison of opinions from courts from the two Commonwealths on similar free speech cases during the same period of time illustrates the inherent flaw in Appellants' reasoning. In 1940, the highest court in Kentucky decided Reuben H. Donnelley Corp. v. City of Bellevue, 283 Ky. 152, 140 S.W.2d 1024 (1940) and in 1941, Pennsylvania's Superior Court decided Commonwealth v. Reid, 20 A.2d 841 (Pa. Super. 1941). Both cases dealt with a fee imposed on the distribution of written material, such as books, circulars, pamphlets, cards, hand bills, etc. Before any person or corporation could engage in the distribution of such materials, a license had to be obtained.4
In the Kentucky case, the appellant was convicted of violating the ordinance for engaging in the business of distributing circulars at residences advertising the wares of a local druggist. He defended, in part,...
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