Tovar v. Billmeyer

• Decision Date: 15 December 1983
• Docket Number: No. 82-3258,82-3258
• Parties: Joseph TOVAR and Deborah Ann Moore, Plaintiffs-Appellants, v. C.G. BILLMEYER; Melvin Morgan; F.W. "Bill" Roskelley; John Evans; Donna Boe; Wayne Ellis; and The City of Pocatello, an Idaho Municipal Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1260

721 F.2d 1260

Joseph TOVAR and Deborah Ann Moore, Plaintiffs-Appellants, v. C.G. BILLMEYER; Melvin Morgan; F.W. "Bill" Roskelley;

John Evans; Donna Boe; Wayne Ellis; and The

City of Pocatello, an Idaho Municipal

Corporation, Defendants-Appellees.

No. 82-3258.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 3, 1983.

Decided Dec. 15, 1983.

James A. Shiner, Tucson, Ariz., for plaintiffs-appellants.

L. Charles Johnson, Pocatello, Idaho, for defendants-appellees.

Appeal from the United States District Court for the District of Idaho.

Before GOODWIN, WALLACE and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

The City Council of Pocatello, Idaho made two zoning decisions that prevented plaintiffs from operating their adult theater and bookstore at a newly acquired site. Plaintiffs challenged the City's action in federal district court, and the district judge granted summary judgment for defendants. The question presented on appeal is whether summary judgment is proper in a case where the City's zoning decisions may have been motivated by a desire to suppress protected first amendment expression. We hold that summary judgment is inappropriate and reverse.

FACTS

In 1972 plaintiffs Joseph Tovar and Deborah Ann Moore opened an adult bookstore and theater in a rented building at 135 South Main Street in downtown Pocatello, Idaho. The Pocatello zoning code provides that only those uses specifically mentioned in the permitted use list for each geographical zone are proper. No permitted use list for any geographical zone, including the Commercial Central zone where the theater and bookstore were located, mentioned movie theaters (other than drive-ins) as an allowable use. Nonetheless, plaintiffs obtained city building permits and licenses authorizing the operation of the theater and bookstore each year from 1972 through 1975.

In August 1975 plaintiffs learned that they would soon be evicted from their rented location at 135 South Main Street. Plaintiffs then purchased on August 28, 1975 another building as a home for the adult theater and bookstore. That building was located at 250 North Main Street, several blocks from plaintiffs' previous location and within the same Commercial Central zoning district.

Before plaintiffs had an opportunity to apply for the required city permits and licenses, the Pocatello City Council, without notice, held a special meeting on September 2, 1975. The meeting was attended by defendant Billmeyer, Pocatello's mayor, and defendants Morgan, Roskelley, Evans and Boe, all members of the City Council. Plaintiffs allege that the purpose of the meeting was to find a way to prevent the reopening of the adult theater. According to plaintiffs' version of the meeting, the City Council ordered the building inspector to deny a permit when plaintiffs applied for one. On September 10, 1975, Pocatello's building inspector, defendant Ellis, denied plaintiffs' request for a permit to operate the adult theater in the new building.

Plaintiffs also allege that, at its September 2nd meeting, the City Council for the first time adopted an interpretation of the term "amusement enterprises" in the zoning code. This term had always been in the code, which took effect in February 1969. Under the new interpretation of "amusement enterprises," indoor motion picture theaters would be allowed in the Commercial Highway zone, but not in the Commercial Central zone where plaintiffs' theater would be located. Plaintiffs argue that the only reason the Council adopted its interpretation of "amusement enterprises" was because the effort to exclude the adult theater from Pocatello could not have succeeded unless indoor theaters were allowed somewhere in the City. Plaintiffs contend that, in the absence of such an interpretation, the zoning code would be patently unconstitutional because it completely excluded indoor movie theaters as legitimate uses of property anywhere in Pocatello.

Following the building inspector's September 10th denial of the permit, plaintiffs The Board's decision was quickly appealed to the City Council by the Pocatello Downtown Merchants Association. On October 23, 1975, less than two weeks before defendant council members Evans, Boe and Roskelley were to stand for reelection, the City Council held a public hearing and voted to reverse the Board of Adjustments' decision and deny the conditional use permit.

                asked the Pocatello Board of Adjustments to grant a conditional use permit authorizing the adult theater's operation at the newly acquired site. 1   The Board held an extensive public hearing on the probable impact of an adult theater at the new location--including potential traffic and parking problems.  On October 8, 1975, the Board of Adjustments voted to grant the conditional use permit for the adult theater 2 as requested by plaintiffs
                

The City Council's refusal to grant the conditional use permit began a tangled series of protracted legal battles in both federal and state court. Plaintiffs first challenged the Council's decision in a state court suit filed in December 1975. In February 1976 the state court vacated the Council's decision because it was made after a public hearing where new evidence was considered rather than following a limited hearing reviewing only the evidence presented to the Board of Adjustments. The case was remanded to the City Council for further consideration. On March 18, 1976, the Council again voted to reverse the Board of Adjustments' decision. Plaintiffs did not appeal that ruling.

While the state court case was pending, plaintiffs brought the present action in district court seeking injunctive and declaratory relief as well as damages. The federal district judge decided to abstain because all of plaintiffs' claims, both state and federal, could be tried and heard in the state court proceeding. In response to this decision, plaintiffs filed a second state court suit in August 1976 seeking both monetary and injunctive relief. In December 1976, the second state action was dismissed by the Idaho state court primarily because plaintiffs' allegations could be decided in the first state court case, which was still pending at the time. The Idaho Supreme Court affirmed this dismissal. Tovar v. Billmeyer, 98 Idaho 891, 575 P.2d 489 (1978).

When the first state court case was finally concluded, ³ the federal district court dismissed plaintiffs' present action based on the abstention doctrine. We reversed that decision in Tovar v. Billmeyer, 609 F.2d 1291 (9th Cir.1980), because plaintiffs had not made an unreserved submission of all their federal claims to the state court and therefore could not be barred from returning to federal court with those claims.

After we remanded the case to federal district court, both plaintiffs and defendants moved for summary judgment. The district judge granted defendants' summary judgment motion. Plaintiffs now appeal that decision.

DISCUSSION

I. STANDARD OF REVIEW

Summary judgment is proper only if there are no genuine issues of material fact in dispute. Fed.R.Civ.P. 56(c); Peacock v. Duval, 694 F.2d 644, 645 (9th Cir.1982); Lutcher v. Musicians Union Local 47, 633 F.2d 880, 882 (9th Cir.1980). In reviewing a summary judgment, we view the evidence in a manner most favorable to the losing party. Gaines v. Haughton, 645 F.2d 761, 769 (9th Cir.1981), cert. denied, 454 U.S. 1145, 102 S.Ct. 1006, 71 L.Ed.2d 297 (1982).

We have previously recognized that summary judgment is usually inappropriate in cases dealing with potentially unconstitutional motivations. See, e.g., Peacock, 694 F.2d at 647, 648; Mabey v. Reagan, 537 F.2d 1036, 1044 n. 9 (9th Cir.1976); cf. Fonda v. Gray, 707 F.2d 435, 438 (9th Cir.1983) (although "questions of intent" may not "be amenable to disposition on summary judgment," summary judgment was affirmed because the facts are "largely undisputed"). Because evidence concerning motive is almost always subject to a variety of conflicting interpretations, a full trial on the merits is normally the only way to separate permissible motivations from those that merely mask unconstitutional actions.

II. PLAINTIFF'S FIRST AMENDMENT CLAIMS

We have no difficulty concluding that the evidence presented to the district court is insufficient to warrant summary judgment on behalf of defendants. We begin with the settled premise that zoning decisions may not constitutionally be made for the purpose of restricting protected first amendment speech, including that which is sexually explicit. ⁴ See generally Kuzinich v. County of Santa Clara, 689 F.2d 1345, 1347 (9th Cir.1982). Consequently, federal courts strictly scrutinize zoning decisions that impinge on first amendment rights. See generally Young v. American Mini Theatres, 427 U.S. 50, 56 & n. 12, 96 S.Ct. 2440, 2445 & n. 12, 49 L.Ed.2d 310 (1976); Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968); Ebel v. City of Corona, 698 F.2d 390, 392 (9th Cir.1983). Cf. Harper v. Virginia Board of Elections, 383 U.S. 663, 670, 86 S.Ct. 1079, 1083, 16 L.Ed.2d 169 (1966). Under the strict scrutiny standard, zoning decisions aimed at regulating unprotected activities that incidentally limit free expression are valid only if justified by a compelling state interest. Young, 427 U.S. at 56 n. 12, 96 S.Ct. at 2445 n. 12; Ebel, 698 F.2d at 392.

Thus, summary judgment is proper in this case only if, viewing the evidence in the light most favorable to plaintiffs, it can be said as a matter of law that the purpose of the zoning decisions was to serve a compelling governmental interest unrelated to the suppression of free expression. Kuzinich, 689 F.2d at 1348-49. In addition, the incidental restriction on first amendment freedoms can be "no greater than is essential to the furtherance" of the governmental interest. Young, 427 U.S. at 79-80, 96 S.Ct. at 2457 (Powell, J., concurring). Under this legal framework and ...