EAST BROOKS BOOKS, INC., dbа Getwell Bookmart; Airport Adult Theater; Pete Patel; Lisa Wright; Stacy Collins; Betty Powers, Plaintiffs, Steve C. Cooper; Southern Entertainment Management Co., Inc., dba Club Tiffany, Plaintiffs-Appellants, v. CITY OF MEMPHIS; W.W. Herenton; Melvin Burgess, Defendants-Appellees.
No. 09-6254.
United States Court of Appeals, Sixth Circuit.
Argued: Jan. 13, 2011. Decided and Filed: Feb. 24, 2011.
633 F.3d 459
In addition, counsel‘s failure to uncover significant details about the abuse that Tibbetts suffered as a child was prejudicial. The information uncovered in post-conviction proceedings “paint[ed] a significantly more detailed picture of [Tibbetts‘s] troubled background” than the scant evidence introduced at the penalty phase, Jells, 538 F.3d at 499. The nonintroduced evidence provided numerous details of Tibbetts‘s abuse while in foster care and disclosed, for the first time, Tibbetts‘s abuse while under the care of his biological parents. In addition to providing additional substance, had counsel uncovered and presented the evidence disclosed during post-conviction proceedings, the jury would have heard the horrors of Tibbetts‘s upbringing from first-hand sources, and Tibbetts would have been able to stymie the State‘s attack on the truthfulness of Tibbetts‘s claims that he was abused. Presented with such evidence, the jury would have been provided with an alternative, much more compelling case for sparing Tibbetts‘s life. Because the Ohio Court of Appeals unreasonably applied clearly established lаw in concluding that counsel was not constitutionally ineffective, I would GRANT the writ of habeas corpus on this claim.
II. CONCLUSION
For the reasons discussed above, I would REVERSE the district court‘s judgment and GRANT Tibbetts‘s petition for a writ of habeas corpus on the basis of his second assignment of error. I respectfully dissent.
Before: KENNEDY, CLAY, and KETHLEDGE, Circuit Judges.
OPINION
CLAY, Circuit Judge.
Plaintiffs Steve C. Cooper and Southern Entertainment Management Company, Inc., appeal the denial of their motion for relief of judgment pursuant to
For the reasons set forth below, we AFFIRM the decision of the district court.
BACKGROUND
I. The 1991 Memphis Ordinance
In January of 1991, the City of Memphis (“Memphis” or the “City“) promulgated an ordinance (the “Memphis Ordinance“) that was intended to impose a licensing scheme on sexually-oriented businesses within Memphis.1
The Memphis Ordinance contained several components. Centrally, it required adult business operators and employees to obtain permits before conducting adult business and it set forth the application requirements and time lines for obtaining those permits. The Memphis Ordinance outlined certain offenses and application deficiencies that would disqualify a person from receiving a permit and certain infractions that would be cause for the Director of Police Services (“Director“) to either suspend or revoke a permit. The cost of the permit was initially set at $5,000 per business and $15 per employee.
If an adult business was owned or operated by a company, the Memphis Ordinance required each person with an interest in the business, no matter how small, to meet the permit requirements and be disclosed on an application.
The procedure for an adult business to appeal a denial, suspension or revocation of a permit was set out as follows: the applicant had ten days to filе the appeal with the Director. The Director was required to schedule a hearing on the appeal within sixty days of filing. After the hearing, the Director was required to issue a decision within five days. During the foregoing period, the adult business would be allowed to continue to operate (absent certain exceptional circumstances). If the Director denied the appeal, then the applicant had the opportunity to appeal the decision, within thirty days, by petitioning a court of competent jurisdiction for a common law writ of certiorari. During the court appeal, the City was allowed to suspend operation of the business.
In addition, the Memphis Ordinance forbid certain types of acts and performances within adult establishments. It also subjected the businesses to periodic inspection by city agencies including the police and the health department. Furthermore, the Memphis Ordinance created zoning limitations for adult businesses, which limited their concentration and proximity to certain residential, cultural and social institutions. Notably, it did not ban the sale of beer at adult establishments.
II. The 1996 Consent Judgment
Plaintiffs Steve C. Cooper, et al. (“Cooper“) operate adult businesses that would be regulated under the Memphis Ordinance. In November 1990, Cooper brought suit against the City in the United States District Court for the Western District of Tennessee, facially challenging the constitutionality of the Memphis Ordinance. See East Brooks Books, 48 F.3d 220.2 Cooper claimed that the Memphis Ordinance constituted an impermissible prior restraint on speech under the First Amendment.
On appeal, this Court held that: 1) the Memphis Ordinance failed to provide a methоd for prompt judicial review of adverse decisions, as required by the First Amendment; 2) the “shareholder disclosure” provision requiring applications for all people having an interest in an adult
On October 21, 1996, the parties entered into a consent judgment, agreeing to adopt the decision of this Court as the final ruling and judgment as to the constitutionality of the Memphis Ordinance. As a result, though the Memphis Ordinance was never repealed, it was never enforced with in Memphis and no adult establishment was ever required to apply for a permit. See Entm‘t Prods., Inc. v. Shelby Cnty., 545 F. Supp. 2d 734, 751 (W.D. Tenn. 2008).
III. The 2007 Shelby County Ordinance
On September 10, 2007, Shelby County adopted the Tennessee Adult-Oriented Establishment Registration Act of 1998 (the “Act“),
It requires an adult-oriented establishment to obtain a license from the county‘s adult-oriented establishment board in order to operate. It further requires that all entertainers, employees, and escorts employed by such an establishment obtain a work permit from the county. The Act also imposes several regulations, including a prohibition against the serving or consuming of alcohol on the premises; a ban on the touching or the exposing of certain parts of the body; and a requirement thаt all performances occur on an 18-inch high stage and be at least six feet from any other entertainer, employee, or customer.
Am. Show Bar Series, Inc. v. Sullivan Cnty., 30 S.W.3d 324, 331 (Tenn. Ct. App. 2000) (citations omitted).
Under the Act, a license or permit applicant must provide general information concerning his identity and proof of age, and must pay an annual operating license fee of $500 or a work permit fee of $100. For corporate applicants, the application must specify “the names and addresses of the officers and directors of the corporation, and the names and addresses of any persons holding fifty percent (50%) or more of the stock in the corporation.”
The County Ordinance took effect on January 1, 2008 and was subject to enforcement as of April 30, 2008. Enforcement of the County Ordinance in Memphis was limited only by the Act‘s preemption clause, which specifies that, “if a city or other political subdivision in this state chooses to enact and enforce its own regulatory scheme for adult-oriented establishments and sexually-oriented businesses, then the provisions of this part shall not apply within the jurisdiction of such city or other political subdivision.”
IV. Motion for Relief of Judgment
On October 9, 2008, Cooper filed a Motion for Relief of Judgment pursuant to
On September 28, 2009, the district court denied the motion. The district court held that, while the unconstitutionality of the provision in the Memphis Ordinance regarding judicial review had been rectified by intervening changes in the law, the ordinance still suffered from several defects which left it unconstitutional. The court further found that, while it might be possible to sever the provisions in the Memphis Ordinance regarding amortization and peaceful operation, it was not possible to sever the “shareholder disclosure” provision. The court also noted that the equities would not be served by granting the motion for relief, because Cooper failed to present any inequities in the status quo or any “public interest at stake . . . [but has] instead advanced a private business interest,” to wit, to be governed by the less strict guidelines of the Memphis Ordinance instead of the more restrictive County Ordinance.
Cooper then filed this timely appeal and we now affirm the denial of his motion for relief.
DISCUSSION
I. Subject Matter Jurisdiction
Defendants argue that this Court lacks jurisdiсtion to adjudicate the merits of this appeal because Plaintiff‘s claim raises no “case or controversy,” and therefore any decision by this Court would constitute an “advisory opinion.” Defendant further argues that Cooper lacks standing because he cannot show injury and, alternatively, because any relief that this Court could provide would not redress any injury that Cooper may claim.3
We review this challenge to the district court‘s subject matter jurisdiction de novo, as a question of law. See Charter Twp. of Muskegon v. City of Muskegon, 303 F.3d 755, 759 (6th Cir. 2002); RE/MAX Int‘l, Inc. v. Realty One, Inc., 271 F.3d 633, 640-41 (6th Cir. 2001).
As outlined above, the instant motion arises from a 1996 consent judgment entered by the District Court for the Western District of Tennessee. We have held that a consent judgment is “essentially a settlement agreement subject to continued judicial policing.” Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983);
The rationale underlying Rule 60(b) would be severely compromised if the very еxistence of a final judgment automatically resulted in the extinguishment of an active “case or controversy,” requiring the laying of a new jurisdictional foundation. Instead, it is settled law that “a Rule 60(b) motion is considered a continuation of the original proceeding. If the district court had jurisdiction when the suit was filed, it has jurisdiction to entertain a Rule 60(b) motion.” Charter Twp. of Muskegon, 303 F.3d at 762 (internal quotations omitted).
Defendant does not dispute the district court‘s jurisdiction in Cooper‘s 1990 case, the action from which the now-challenged consent judgment arises. Therefore, there is no question that the district court continues to have jurisdiction over Cooper‘s Rule 60(b) motion, and this Court has jurisdiction on appeal from that action.
II. Motion for Relief of Judgment
A district court‘s interpretation of its consent judgment is reviewed for an abuse of discretion, Huguley v. Gen. Motors Corp., 999 F.2d 142, 145-46 (6th Cir. 1993), as is a district court‘s decision to grant or deny a Rule 60(b) motion. Thompson v. Bell, 580 F.3d 423, 442 (6th Cir. 2009). Furthermore, “Rule 60(b) proceedings are subject to only limited and deferential appellate review.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
We will not grant relief from a consent decree for the mere convenience of a party. Rufo, 502 U.S. at 383. Instead, we proceed with the understanding that “modification of a consent decree is an extraordinary remedy that should not be undertaken lightly.” Waste Mgmt. of Ohio, Inc. v. City of Dayton, 132 F.3d 1142, 1147 (6th Cir. 1997) (Jones, J., concurring).
Additionally, in 2005, Tennessee amended its Code to modify the Tennessee common law writ of certiorari to include expedited review on request. The amended statute states:
If the final decision of a board or commission revokes, suspends, or denies a license or permit that is required prior to engaging in conduct protected by the First Amendment to the Constitution of the United States, and either the petitioner or the respondent requests an expedited hearing, the court shall immediately grant the writ of certiorari, and shall hear the matter and issue its decision within forty (40) days of the court granting the writ of certiorari.
In denying Cooper‘s motion for relief, the district court found that, though intervening changes in law effectively cured the unconstitutionality of the Memphis Ordinance‘s appeаls procedure, this did not justify relief from judgment because the Memphis Ordinance remained unconstitutional for three other distinct reasons—the overly broad “shareholder disclosure” provision, the vague “peaceful manner” provision, and the unlawful amortization clause.
In order to determine whether the remaining defective provisions were severable, the district court properly looked to Tennessee state law. See City of Lakewood v. Plain Dealer Publ‘g Co., 486 U.S. 750, 772 (1988) (holding that “severability of a local ordinance is a question of state law . . . .“). In doing so, the district court аcknowledged that Tennessee law disfavors severance and limits the practice to striking only those features that, notwithstanding their absence, the court concludes the legislature still would have enacted the statute. See Davidson Cnty. v. Elrod, 191 Tenn. 109, 232 S.W.2d 1, 2 (1950). A court‘s conclusion that the legislature would have enacted a statute absent an unconstitutional provision must be based on evidence that is obvious on the “face of the statute,” Memphis Planned Parenthood, Inc. v. Sundquist, 175 F.3d 456, 466 (6th Cir. 1999); otherwise the court risks overstepping into functions reserved for the legislature.
Having outlined this legal framework, the district court found that the “peaceful manner” provision was severable, along with the amortization provision. The court found that the former could be severed because it was redundant to other provisions in the Memphis Ordinance (which enumerate infractions that would be considered cause for suspension or termination of a license), and that the latter
The district court nonetheless denied Cooрer‘s motion for relief, finding that the shareholder disclosure requirement could not be severed. It further found that the equities did not favor relief from judgment, as Cooper did not show that the judgment created any inequity, but merely that he would prefer to be regulated under the Memphis Ordinance instead of the more restrictive County Ordinance.
Cooper now retorts by arguing that there is “nothing in the text of the ordinance to meaningfully distinguish the two provisions which [the district court] was willing to elide from the single provision which it found too integral to the law to be severed.” Cooper supports this argument by citing to Section 6-72-4(A)(8) of the Memphis Ordinance, which states:
Every permittee shall, before employing any person or using the services of an independent contractor in the operation of or entertainment at a sexually oriented business, secure from the director of police services an employee‘s permit authorizing such person to serve as an employee or independent contractor in the place of business of the sexually oriented business permittee. It is made the duty of thе sexually oriented business permittee to ensure that each person so employed in permittee‘s place of business has an employee‘s permit as above required, which permit must be upon the sexually oriented business premises at all times subject to inspection by the director of police services, or his or her duly authorized agents.
We find this argument to be flawed. Cooper acknowledges that Memphis has a legitimate interest in identifying those who are legally accountable for the operation of an adult business. See also East Brooks Books, 48 F.3d at 226. For the stated legislative purpose of the ordinance to be fulfilled—to regulate the secondary effects of these businesses and to control for their geographic concentration—it is essential that Memphis have information about, and regulatory powers over, the people who control adult businesses. Therefore, Memphis’ purposes cannot be satisfied by disclosure of employees and contractors of adult businesses only, but requires the identification of a business‘s owners and stakeholders. Section 6-72-4(A)(8) does not compel disclosure of management and shareholders, and Cooper can point to no other section of the Memphis Ordinance that covers that field.4
Therefore, the district court‘s conclusion that the Memphis Ordinance, on its face, did not suggest that the shareholder disclosure provision could be severed was reasonable.
Cooper also fails to demonstrate that “applying [the judgment] prospectively is
Finally, the district court found that Cooper failed to identify any exceptional circumstances that would warrant relief under
CONCLUSION
Cooper has failed to demonstrate that either equities or intervening changes in law favor relief from judgment of the consent judgment with the City of Memphis. We therefore AFFIRM the district court‘s decision.
KETHLEDGE, Circuit Judge, concurring in part and concurring in the judgment.
I agree with the court that we have jurisdiction here. I respectfully disagree, however, with the court‘s conclusion on the severance issue, since I think it implausible that the shareholder-disсlosure provision was a sine qua non for the 1991 Ordinance‘s enactment. I also disagree