Postscript Enterprises v. City of Bridgeton

• Decision Date: 11 June 1990
• Docket Number: No. 89-1074,89-1074
• Citation: 905 F.2d 223
• Parties: POSTSCRIPT ENTERPRISES, Appellant, v. CITY OF BRIDGETON, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 223

905 F.2d 223

POSTSCRIPT ENTERPRISES, Appellant, v. CITY OF BRIDGETON, Appellee.

No. 89-1074.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 17, 1989.

Decided June 11, 1990.

Murry A. Marks, St. Louis, Mo., for appellant.

Earl Robert Schultz, St. Louis, Mo., for appellee.

Before JOHN R. GIBSON and FAGG, Circuit Judges, and FLOYD R. GIBSON, Senior Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Postscript Enterprises ¹ appeals from a district court ² order granting summary judgment in favor of the City of Bridgeton, Missouri, on Postscript's claim that Bridgeton Ordinance 87-14, ³ which regulates movie arcades with viewing areas designed for viewing by fewer than six people, prohibiting doors or curtains on the booths, violated its first amendment rights. For the reasons set out below, we affirm the order of the district court.

On February 4, 1987, the Bridgeton City Council enacted Ordinance 87-14, regulating the operation of movie arcades in the City. Although a formal record of the city council's proceedings concerning the ordinance does not exist, the council's rationale for the ordinance can be found in the two clauses that precede it:

WHEREAS, the City Council finds that the viewing of movies within closed booths tends to promote crime, unsanitary conditions, and a pattern of conduct inimical to public health, decency, and order.

WHEREAS, the City Council believes that the viewing of movies within closed booths is not in the interest of the public welfare.

In order to implement the city council's goals, the ordinance requires that all movie arcade operators ⁴ obtain a permit within thirty days of the ordinance's effective date. After that thirty-day period, the ordinance makes the operation of a movie arcade without a permit illegal. Section B requires movie arcade operators who wish to receive a permit to submit a written application to the city council. The application requires detailed information on all financially interested persons, local agents, and managing employees. Section C(2) requires that viewing areas designed for fewer than six people be visible from a continuous main aisle. Failure to conform with section C(2) is deemed a violation of the ordinance and can result in the revocation of the movie arcade operator's permit.

Instead of applying for a permit, Postscript filed this action for a declaratory judgment. Postscript argues that both section C(2) and section B of the ordinance are unconstitutional.

Initially, the district court held that Postscript had standing to assert its constitutional claims, even though it had not yet applied for a permit, and that Postscript was entitled to protection under the first amendment. 699 F.Supp. 1393. The court then granted the City's motion for summary judgment, because it concluded that: (1) section C(2) is a valid manner restriction on Postscript's first amendment rights and does not infringe upon the rights of customers wishing to view films; (2) section B is not a prior restraint on free speech, because there are "no provisions in the ordinance that would result in the advance denial of the permit;" (3) requiring a corporation to conform to the ordinance is valid; (4) adequate standards exist in the ordinance for deciding whether to grant or deny a permit; and (5) section D of the ordinance, which entitles permit holders to a hearing before their permits are revoked, implies that permit applicants will be given a hearing before their applications to obtain a permit are denied.

Postscript challenges the district court's order, arguing that the court erred because: (1) genuine issues of material fact remain concerning the City's rationale for the ordinance; (2) the ordinance's permit requirement violated Postscript's due process rights by failing to provide a hearing prior to the denial of a permit; and (3) the ordinance serves as a prior restraint on Postscript's first amendment rights by authorizing the denial of a permit on the basis of past criminal conduct and by failing to provide valid and ascertainable standards by which the city council could issue or deny permits.

I.

"On appellate review of a decision to grant summary judgment, the court applies the same standard applied by the district court." United Tel. Co. v. Johnson Publishing Co., 855 F.2d 604, 607 (8th Cir.1988). "Summary judgment is granted if 'there is no genuine issue as to any material fact and * * * the moving party is entitled to a judgment as a matter of law.' " Id. (quoting Fed.R.Civ.P. 56(c)). Further, we recognize that "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.' " Wabun-Inini v. Sessions, 900 F.2d 1234-38 (8th Cir.1990) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548-55, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1)).

The City's motion for summary judgment was properly supported by an affidavit submitted by the Bridgeton City Clerk. The affidavit contained a certified copy of the ordinance, as well as portions of the Final Report of the Attorney General's Commission on Pornography.

Postscript's response to the motion for summary judgment, however, suffers from a substantial procedural defect. Federal Rule of Civil Procedure 56(e) requires that when a motion for summary judgment is supported by affidavits, as was the case here, an adverse party may not rest on mere allegations or denial of the movant's pleadings. Rather, the adverse party must, by affidavits or otherwise, "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Further, the affidavits must be made on personal knowledge, must set forth facts which would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated. Id. "If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Id.

In this instance, Postscript's sole response to the City's motion for summary judgment was an affidavit containing only conclusory statements from its attorney. "Attorneys' affidavits not based upon personal knowledge have been held not to comply with Rule 56(e)." Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986); see Automatic Radio Mfg. Co. v. Hazeltine Research, 339 U.S. 827, 70 S.Ct. 894, 94 L.Ed. 1312 (1950). Accordingly, since we conclude that the affidavit submitted by Postscript's attorney is not based on personal knowledge and does not set forth facts that would be admissible in evidence, we are satisfied that this response is inadequate to demonstrate the existence of issues of fact to survive a Rule 56 motion. We thus need look only to the City's support for the ordinance.

"The First Amendment does not require a city, before enacting ... an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses." Renton v. Playtime Theatres, 475 U.S. 41, 51-52, 106 S.Ct. 925, 930-31, 89 L.Ed.2d 29 (1986) (emphasis added). In considering this issue we think the Fourth Circuit's discussion in Wall Distrib. v. City of Newport News, 782 F.2d 1165 (4th Cir.1986), concerning local legislative determination, is particularly instructive. ⁵

In assessing the reasonableness of local legislative determinations of ends and means under this quite deferential standard of constitutional review, we may not confine the local legislature to only what it knows and can foresee from purely local conditions already experienced. Legislatures can no more be held bound not to know what the whole world knows than can courts; legislative notice of facts must be deemed to run at least as wide as does judicial notice.

In enacting local legislation of this sort, it therefore cannot be thought unreasonable (at least for constitutional review purposes) for local legislative bodies to assume that human nature--at least in respect of such basic matters as human sexuality and its commercial exploitation--will not vary greatly between generally comparable metropolitan areas within even so heterogeneous a society as that of twentieth century America. We therefore assess the reasonableness of Newport News' determination not solely on the basis--concededly sparse--of what had already demonstrably occurred within its geographical borders, but of what it might reasonably foresee in light of a sufficiently documented wider national experience properly reflected in matters of public record. It would defy common sense to suppose that the city fathers of Newport News are not made aware in this day and time of comparable conditions in other localities, and of the varied responses being made by other local governments to conditions already experienced. We therefore assume that a proper factor in this local legislative determination of governmental interests was what was demonstrably being generally experienced in comparable localities....

To insist that governmental interests justifying such legislation could only be found in specific local experiences and conditions would be unrealistically to require deliberate subjection to those experiences and conditions before attempting to avoid them.

Id. at 1169-70 n. 7 (emphasis added).

We realize that larger municipalities with greater resources available to them will in all likelihood have more detailed records supporting the enactment of ordinances like the one before us today. We had before us in Doe v. City of Minneapolis, 898 F.2d 612 (8th Cir.1990), such a record. The Bridgeton ordinance's introductory clauses, however, identify the council's concerns, which were the health and safety of the public, as well...