Mdk, Inc. v. Village of Grafton

• Citation: 277 F.Supp.2d 943
• Decision Date: 07 August 2003
• Docket Number: No. 03-C-0026.,03-C-0026.
• Parties: MDK, INC., Plaintiff, v. VILLAGE OF GRAFTON, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

277 F.Supp.2d 943

MDK, INC., Plaintiff, v. VILLAGE OF GRAFTON, Defendant.

No. 03-C-0026.

United States District Court, E.D. Wisconsin.

August 7, 2003.

COPYRIGHT MATERIAL OMITTED

Jeff Scott Olson, Madison, WI, for for Plaintiff.

Charles Bohl, Nathan Fishbach and Jennifer Kopp, Milwaukee, WI, for Defendant.

DECISION AND ORDER

ADELMAN, District Judge.

I. PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff MDK, Inc. ("MDK"), owner of the Luxury Box, a tavern in the Village of Grafton ("Grafton"), brings this action under 42 U.S.C. § 1983 challenging the constitutionality of Grafton's ordinance regulating adult-oriented establishments, § 9.35 of the municipal code. Plaintiff wishes to offer erotic nude or semi-nude dance entertainment, a form of expression protected by the First Amendment. See, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). Under the ordinance, an adult-oriented establishment must obtain a license and is subject to various time, place and manner restrictions, including a prohibition on locating within 500 feet of residential dwellings.

Plaintiff argues that Grafton's ordinance is unconstitutional on its face. It contends that the licensing provisions of the ordinance constitute a prior restraint in violation of the First Amendment because they: (1) vest unbridled discretion in Village officials to unreasonably delay judicial review of adverse licensing decisions and (2) contain no safeguards ensuring a prompt judicial decision once judicial review is underway. As relief, plaintiff requests a preliminary injunction barring enforcement of the ordinance. Grafton contends that plaintiff lacks standing to challenge the ordinance, and, alternatively, that even if the review procedures are unconstitutional they are severable from the rest of the ordinance, which is independently enforceable.

II. STANDING

A. General Principles

Under Article III of the Constitution, federal judicial power extends only to "cases" or "controversies." U.S. Const. art. III. The "case or controversy" requirement ensures that federal courts will hear only justiciable or live cases. Crosetto v. State Bar of Wis., 12 F.3d 1396, 1403 (7th Cir.1993). Federal courts must be careful to decide only live cases in order to avoid exceeding their role in the system of separation of powers that underlies our constitutional structure. See Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). The party seeking to invoke federal jurisdiction bears the burden of proving justiciability and must support its claim in the same way as any other matter on which the party bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. Alliant Energy Corp. v. Bie, 277 F.3d 916, 919 (7th Cir.2002).

The doctrine of standing focuses on justiciability at the time the action is commenced. Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The analysis focuses not on the claim itself but on the party bringing the challenge. Clarkson v. Town of Florence, 198 F.Supp.2d 997, 1002 (E.D.Wis.2002). The standing requirement has both "constitutional" and "prudential" components. Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). The constitutional requirements are those that must be satisfied in every case and cannot be modified by Congress; they are the "irreducible constitutional minimum" of standing.¹ Id. These requirements are that the plaintiff demonstrate (1) that he has suffered "injury in fact"; (2) that the injury is "fairly traceable" to the actions of the defendant; and (3) that the injury will likely be redressed by a favorable decision. Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471-72, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)).

B. Plaintiff's Standing

Grafton objects to plaintiff's standing on three grounds. First, it argues that plaintiff lacks standing because it has not applied for a license and thus failed to test the actual operation of the ordinance. Because plaintiffs bringing facial challenges to licensing ordinances are not required to first apply for licenses, Grafton's argument is, in effect, that plaintiff may not challenge the ordinance on its face. Second, Grafton argues that plaintiff has not suffered injury in fact. Third, Grafton argues that, even if plaintiff has suffered an injury, such injury is not redressable by the relief requested. I address each contention in turn.

1. Whether Plaintiff May Bring a Facial Challenge

A constitutional challenge to a law can take one of two forms, "facial" or "as applied." Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 Am. U.L.Rev. 359, 360 (1998). A facial challenge alleges that the law cannot constitutionally be applied to anyone, no matter what the facts of the particular case may be. Id.; see also Forsyth County v. Nationalist Movement, 505 U.S. 123, 133 n. 10, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) (noting that facts concerning how law was applied to plaintiff were irrelevant to facial challenge). An "as applied" challenge, on the other hand, alleges that the law is unconstitutional only insofar as it is applied to the specific facts of the case under review. Isserles, supra, at 360.

A successful facial challenge results in the complete invalidation of the law in question. Further, such challenges typically rest upon a finding that the rights of others not before the court are implicated by the law. See, e.g., Broadrick v. Okla, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Facial challenges therefore

implicate[] a relatively robust role for the federal courts in reviewing legislative enactments. Such a role is in substantial tension with core principles underpinning Article III courts that require resolution of concrete disputes, general deference to the legislative process, and determination of constitutional questions as a matter of last resort and on a limited basis.

Isserles, supra, at 361. Thus, facial challenges are appropriate only in extraordinary circumstances. Id.; see also Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (holding that facial invalidation is manifestly strong medicine to be employed sparingly and only as a last resort).

However, the Supreme Court has held that when laws regulate freedom of expression, facial challenges are often appropriate. This is so because "First Amendment freedoms need breathing space to survive," NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), and the very existence of such laws may stifle the expressive activity of others not before the court. Forsyth County, 505 U.S. at 129, 112 S.Ct. 2395. Therefore, the ordinary rules of standing are relaxed in such cases. Id.; Broadrick, 413 U.S. at 612, 93 S.Ct. 2908.

In the First Amendment context, there are two different ways in which a law may be invalidated on its face: (1) if the law is overbroad or (2) if the law is unconstitutional in every application. City Council v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). Grafton characterizes plaintiff's facial attack as an overbreadth challenge. However, plaintiff's argument is not that the ordinance is overbroad, but rather that it is unconstitutional in every application. The two challenges are distinct, particularly in the context of licensing provisions.

A law is overbroad when, although it constitutionally regulates some conduct, it sweeps so broadly that it also covers a substantial amount of constitutionally protected conduct. See Broadrick, 413 U.S. at 611-15, 93 S.Ct. 2908; WilKar, Inc. v. Vill. of Germantown, 153 F.Supp.2d 982, 990 (E.D.Wis.2001). Overbroad statutes may be facially attacked because their very existence may discourage persons from engaging in protected expression out of fear of prosecution under the law. Broadrick, 413 U.S. at 612, 93 S.Ct. 2908.

A law is unconstitutional in every application when it does not constitutionally regulate any speech. Taxpayers for Vincent, 466 U.S. at 796, 104 S.Ct. 2118. Facial challenges under the First Amendment to laws of this type are permitted because "any attempt to enforce such legislation would create an unacceptable risk of the suppression of ideas." Id. at 797, 104 S.Ct. 2118. Laws that have been found to be unconstitutional in every application include: (1) laws that are content-based, see, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 381, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); (2) laws that are enacted for the impermissible purpose of suppressing speech, see Taxpayers for Vincent, 466 U.S. at 797 n. 14, 104 S.Ct. 2118 (1984) (listing Stromberg v. Cal., 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), and Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938), as cases involving facial invalidations resting on this ground); and (3) laws that confer unbridled discretion on administrative officials, see, e.g., Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 755-56, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). See generally, Isserles, supra, at 393.

Grafton's ordinance requires those who wish to offer erotic entertainment to first obtain a license; therefore, it constitutes a "prior restraint" on protected expression. See Forsyth County, 505 U.S. at 130, 112 S.Ct. 2395. There is a "heavy presumption" against prior restraints, which will be upheld only if they meet certain constitutional requirements. Id. One of those requirements is that the law "not delegate overly broad licensing discretion to a government official." Id.

Plaintiff claims that because the Grafton ordinance confers unbridled discretion on...