annex final mandamus

i QUESTION PRESENTED Should a writ of mandamus issue directing the Respondents, Hon. Joel Flaum, Hon. Ilana Rovner, and ...

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i QUESTION PRESENTED Should a writ of mandamus issue directing the Respondents, Hon. Joel Flaum, Hon. Ilana Rovner, and Chief Judge Frank Easterbrook, of the United States Court of Appeals for the Seventh Circuit, to decide the merits of an appeal that was fully briefed, argued, and taken under advisement nearly four years ago?

ii LIST OF PARTIES AND CORPORATE DISCLOSURE The parties in the Seventh Circuit proceedings are Annex Books, Inc., New Flicks, Inc., LaFayette Video and News, Inc., and Keystone Video and Newsstand, Inc., as Appellants; and the City of Indianapolis as Appellee. Melo, Inc., is the parent corporation of Petitioners Annex Books, Inc., New Flicks, Inc., LaFayette Video and News, Inc., and Keystone Video and Newsstand, Inc. No publicly held company owns 10% or more of any of the Petitioners’ stock. For purposes of this mandamus action, the Hon. Joel Flaum, Hon. Ilana Rovner, and Chief Judge Frank Easterbrook of the United States Court of Appeals for the Seventh Circuit are the Respondents.

iii TABLE OF CONTENTS Page QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i LIST OF PARTIES AND CORPORATE DISCLOSURE . . . . . . . . . . . . . . ii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v PETITION FOR A WRIT OF MANDAMUS AND STATEMENT WHY RELIEF IS UNAVAILABLE IN ANY OTHER COURT . . . 1 OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1 JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATUTES INVOLVED . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 3 REASONS FOR GRANTING THE WRIT . . . . . . . . 6 I. A WRIT WILL AID THIS COURT’S JURISDICTION BECAUSE THE SEVENTH CIRCUIT’S FAILURE TO RENDER A DECISION OPERATES TO DEPRIVE THIS COURT OF ITS APPELLATE JURISDICTION . . . . . . . . . . . 6 II. THE NEARLY FOUR-YEAR DELAY IN THIS CASE CONSTITUTES EXTRAORDINARY CIRCUMSTANCES WARRANTING

iv TABLE OF CONTENTS (cont’d) Page A WRIT OF MANDAMUS. . . . . . . . . . . . . . . . . 9 III.

NO OTHER ADEQUATE RELIEF IS AVAILABLE TO PETITIONERS . . . . . 12

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 APPENDIX Opinion and Order of the United States District Court for the Southern District of Indiana, August 27, 2004 . . . . . . . . . . . App. 1 Final Judgment of the United States District Court for the Southern District of Indiana, August 27, 2004 . . . . . . . . . . App. 36 Order Denying Plaintiffs’ Motion to Alter or Amend Judgment, United States District Court for the Southern District of Indiana, March 31, 2005 . . . . . . . . . . . . . . . . . . . App. 38 Notice of Appeal, April 5, 2005 . . . . . . . . . . App. 52 Petitioners’ Letter to Clerk, United States Court of Appeals for the Seventh Circuit, May 22, 2008 . . . App. 55 Petitioners’ Motion to Issue Decision, March 19, 2009 . . . . . . . . . . . . . . . . . . . App. 56

v TABLE OF AUTHORITIES Page CASES

Annex Books, Inc. v. City of Indianapolis,

333 F.Supp. 2d 773 (S.D. Ind. 2004) . . . . . . . . . 3

City of Littleton v. Z.J. Gifts D-4, L.L.C.,

541 U.S. 774 (2004) . . . . . . . . . . . . . . . . . . 11-12

Ex parte United States, 287 U.S. 241 (1932) . . . . 7-9 Freedman v. Maryland, 380 U.S. 51 (1965) . . . 11-12 FW/PBS, Inc. v. City of Dallas,

493 U.S. 215 (1990) . . . . . . . . . . . . . . . . . . 11-12

In re Blodgett, 502 U.S. 236 (1992) . . . . . . . . . . 9-11 Johnson v. Rogers,

917 F.2d 1283 (10th Cir. 1990) . . . . . . . . . . . . 10

Knickerbocker Ins. Co. of Chicago v. Comstock,

83 U.S. (16 Wall.) 258 (1872) . . . . . . . . . . . . . . . 7

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) . . . . . . . . . . . . . 6-7

Roche v. Evaporated Milk Ass’n,

319 U.S. 21 (1943) . . . . . . . . . . . . . . . . . . . . . . . 9

U.S. v. Johnson, 732 F.2d 379 (4th Cir. 1984) . . . . 10

vi TABLE OF AUTHORITIES (cont’d) Page CASES (cont’d.)

Will v. Calvert Fire Ins. Co.,

437 U.S. 655 (1978) . . . . . . . . . . . . . . . . . . . . . . 9

CONSTITUTIONAL PROVISIONS U.S. Const., amend. I . . . . . . . . . . . . . . . . 3, 5, 11-12 U.S. Const., amend. IV . . . . . . . . . . . . . . . . . . 3, 4, 10 U.S. Const., amend. XIV . . . . . . . . . . . . . . . . . . . . 3, 5 STATUTES AND RULES 28 U.S.C. § 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9 28 U.S.C. § 1651 . . . . . . . . . . . . . . . . . . . . . . 1-2, 5, 7 Sup. Ct. R. 20.1 . . . . . . . . . . . . . . . . . . . . . . . . 6, 9, 12 Sup. Ct. R. 20.3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. App. P. 28(j) . . . . . . . . . . . . . . . . . . . . . . . . . 5

vii TABLE OF AUTHORITIES (cont’d.) Page OTHER AUTHORITIES 16 Charles Alan Wright, Arthur Raphael Miller & Edward H. Cooper,

Federal Practice and Procedure: Jurisdiction 2d § 3933.1 (2d ed. 1996) . . . . . . . . 7

19 James William Moore & Daniel R. Coquillette, Moore’s Federal Practice, § 204.02[5] (3d ed. 2008) . . . . . . . . . . . . . . . . . . . 7 Operating Procedures for the Seventh Circuit Court of Appeals, App. III, Oper. P. 9 . . . . . . . . . . . . . . . . . . . 10-11

PETITION FOR A WRIT OF MANDAMUS AND STATEMENT WHY RELIEF IS UNAVAILABLE IN ANY OTHER COURT Petitioners Annex Books, Inc., New Flicks, Inc., LaFayette Video and News, Inc., and Keystone Video and Newsstand, Inc., petition for a writ of mandamus directing the Respondents – the Hon. Joel Flaum, Hon. Ilana Rovner, and Chief Judge Frank Easterbrook of the United States Court of Appeals for the Seventh Circuit – to render a decision on Petitioners’ appeal from the final judgment of the United States District Court for the Southern District of Indiana. In accordance with Supreme Court Rule 20.3(a), Petitioners state that the relief sought is not available in any other court because only this Court has jurisdiction to issue a writ of mandamus directed to a United States Court of Appeals. OPINIONS BELOW The opinion of the United States District Court for the Southern District of Indiana, reported at 333 F.Supp. 2d 773 (S.D. Ind. 2004), is set forth in the Appendix at App. 1. The unreported March 31, 2005, order of the United States District Court for the Southern District of Indiana denying Plaintiffs’ Motion to Alter or Amend Judgment is set forth in the Appendix at App. 38. JURISDICTION The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1651(a). Title 28 U.S.C. § 1651(a)

2 describes the jurisdiction of this Court to issue extraordinary writs as necessary or appropriate to aid its appellate jurisdiction. STATUTES INVOLVED Title 28 U.S.C. §1651(a) provides: Writs (a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. Title 28 U.S.C. §1254 provides: Courts of questions

appeals;

certiorari;

certified

Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree; (2) By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may

3 give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy. STATEMENT OF THE CASE Petitioners Annex Books, Inc., New Flicks, Inc., LaFayette Video and News, Inc., and Keystone Video and Newsstand, Inc., filed an amended complaint and motion for a temporary restraining order with the United States District Court for the Southern District of Indiana on October 28, 2003, asserting constitutional challenges under the First, Fourth, and Fourteenth Amendments to Chapter 807 of the Revised Code of the Consolidated City and County of Indianapolis, Marion County (“the ordinance”), which governs the licensing and regulation of adult entertainment establishments. Petitioners are retail outlets for expressive materials that are regulated by the ordinance. After a hearing on October 30 and 31, 2003, the district court granted the requested restraining order, and the parties later agreed that the injunction would remain in effect until a judgment on the merits was entered. On August 27, 2004, the district court granted the City’s motion for summary judgment with respect to the First and Fourteenth Amendment claims, while denying the City summary judgment on the Petitioners’ Fourth Amendment claims. Annex Books, Inc., v. City of Indianapolis, 333 F.Supp. 2d 773, 775, 787-89 (S.D. Ind. 2004). The court declared one provision of the ordinance unconstitutional under the

4 Fourth Amendment, upheld the remainder of the ordinance, severed the unconstitutional provision and entered final judgment in favor of the City. On April 1, 2005, the district court denied Petitioners’ Rule 59(e) motion to alter or amend the judgment. Petitioners filed their notice of appeal on April 5, 2005. In their appeal, Petitioners continued to challenge the constitutionality of the ordinance, and in their brief, identified the following issues for review: 1. Did the plaintiffs sufficiently cast doubt on the city’s rationale for its adult use licensing law, both by demonstrating its evidence was shoddy and by disputing its findings, so as to preclude summary judgment? 2. Does Indianapolis’s adult use licensing law define too broadly the uses subject to the law, rendering it unconstitutionally overbroad? 3. Did the plaintiffs cast sufficient doubt on the provision of the ordinance restricting the hours of operation for adult bookstores to present a genuine issue of fact for trial and preclude summary judgment? 4. Did the district court err in concluding that Indianapolis’s adult use licensing law provided a means to obtain judicial review of an adverse licensing decision? 5. Does Indianapolis’s law, in the context of license renewals, sufficiently curb

5 administrative discretion to pass muster under the First and Fourteenth Amendments? Brief of Plaintiffs-Appellants at 1-2, Annex Books, Inc., v. City of Indianapolis, No. 05-1926 (7th Cir. May 19, 2005). The City of Indianapolis did not cross-appeal. After full briefing by the parties, oral argument was held on September 8, 2005, at which time the case was taken under advisement by the Respondents. Thereafter, the City of Indianapolis filed notice of supplemental authority with the Court pursuant to Fed. R. App. P. 28(j) on December 8, 2005. Petitioners filed notices of supplemental authority pursuant to Fed. R. App. P. 28(j) on December 12, 2005; August 18, 2006; and July 18, 2007. On May 22, 2008, more than two and a half years after the panel took the case under advisement, no opinion had been issued. Accordingly, Petitioners’ counsel wrote to the Clerk of Courts for the United States Court of Appeals for the Seventh Circuit, requesting that the panel be urged to render its ruling due to the length of time that had transpired since oral argument. See App. 55. On March 19, 2009, no decision having been issued, Petitioners filed a motion with the United States Court of Appeals for the Seventh Circuit to render a decision in the case. See App. 56. Having been left with no other adequate remedy, Petitioners now turn to this Court under the All Writs Act, 28 U.S.C. § 1651, which extends jurisdiction to

6 this Court to issue extraordinary writs in such cases. REASONS FOR GRANTING THE WRIT Petitioners’ appeal to the Seventh Circuit Court of Appeals was taken under advisement by Respondents nearly four years ago. Despite the passage of time, and despite Petitioners’ letter to the clerk of courts for the Seventh Circuit and their motion requesting that a decision be rendered, there is still no decision in the case. The prerequisites for a writ of mandamus have clearly been met in this case. Supreme Court Rule 20.1 requires that to obtain a writ of mandamus, a petitioner must demonstrate that (1) the writ “will be in aid of the Court's appellate jurisdiction,” (2) “exceptional circumstances warrant the exercise of the Court's discretionary powers,” and (3) adequate relief cannot otherwise be obtained. I.

A WRIT WILL AID THIS COURT’S JURISDICTION BECAUSE THE SEVENTH CIRCUIT’S FAILURE TO RENDER A DECISION OPERATES TO DEPRIVE THE SUPREME COURT OF ITS APPELLATE JURISDICTION.

In its seminal and historic opinion describing the contours of its judicial review powers and other jurisdictional authority, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), this Court recognized that the writ of mandamus is the appropriate tool to protect the Court’s appellate jurisdiction. Id. at 175 (“[t]o enable this court then to issue a mandamus, it must be shewn to be an exercise of appellate jurisdiction, or to be

7 necessary to enable [the Court] to exercise appellate jurisdiction”). Since Marbury, “[r]epeated decisions of this court have established the rule that this court has power to issue a mandamus, in the exercise of its appellate jurisdiction, and that the writ will lie in a proper case to direct a subordinate Federal court to decide a pending cause.” Knickerbocker Ins. Co. of Chicago v. Comstock, 83 U.S. (16 Wall.) 258, 270 (1872)(citations omitted). The All Writs Act sets forth this Court’s statutory authority to issue all writs necessary or appropriate in aid of its jurisdiction. 28 U.S.C. § 1651(a). One noted treatise has recognized that under the All Writs Act,“a writ may issue on the ground that undue delay is tantamount to failure to exercise jurisdiction.” 16 Charles Alan Wright, Arthur Raphael Miller & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3933.1, p. 557-58 (2d ed. 1996)(citations omitted).1 In Ex parte United States, 287 U.S. 241 (1932), this Court granted an application for a writ of mandamus compelling a federal judge to grant a bench warrant petition that the district court had incorrectly claimed

1

Moore’s Federal Practice similarly explains that traditionally, the role of the writ of mandamus was limited “to directing the lower court to decide a pending case or to require the lower court to reinstate a case.” 19 James William Moore & Daniel R. Coquillette, Moore’s Federal Practice, § 204.02[5] (3d ed. 2008).

8 it had the discretion to deny. Id. at 244-45, 249-51.2 This Court explained that the issuance of such a writ was necessary to aid it in exercising its appellate jurisdiction, which could otherwise be defeated by the unauthorized inaction of the lower court. Id. at 246. “[E]ven if the appellate jurisdiction of this court could not in any view be immediately and directly invoked,” this Court elaborated, “the issue of the writ may rest upon the ultimate power which we have to review the case itself by certiorari to the Circuit Court of Appeals

2

The procedural posture of Ex parte United States, 287 U.S. 241 (1932), is unusual in that the writ was sought and obtained directly from this Court, bypassing the court of appeals. This Court explained that its exercise of authority to issue a writ of mandamus directed toward the district court was appropriate in that case because the interpretation and enforcement of equity rules were at issue, and an expeditious resolution of a district court’s interference with such rules of equity in a case of such public import was necessary. Id. at 248-49. The Court explained: this court has full power in its discretion to issue the writ of mandamus to a federal District Court, although the case be one in respect of which direct appellate jurisdiction is vested in the Circuit Court of Appeals – this court having ultimate discretionary jurisdiction by certiorari – but . . . such power will be exercised only where a question of public importance is involved, or where the question is of such a nature that it is peculiarly appropriate that such action by this court should be taken. In other words, application for the writ ordinarily must be made to the intermediate appellate court, and made to this court as the court of ultimate review only in such exceptional cases. That the present case falls within the latter description seems clear.

Id.

9 in which such immediate and direct appellate jurisdiction is lodged.” Id. Over the years, this Court has continued to recognize the appropriate use of the writ of mandamus in aid of such prospective jurisdiction. In Will v. Calvert Fire Insurance Co., 437 U.S. 655, 661 (1978), this Court ruled that “[t]here can be no doubt that, where [an inferior] court persistently and without reason refuses to adjudicate a case properly before it, the [superior court] may issue the writ ‘in order that [it] may exercise the jurisdiction of review given by law’” (citations omitted). See also Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 25 (1943). Such jurisdiction includes the Court’s prospective jurisdiction over cases in which it will ultimately have the authority under 28 U.S.C. § 1254 to grant review by certiorari. See, e.g., Ex parte United States, 287 U.S. at 245-46. Thus, by granting a writ of mandamus as requested by Petitioners in this case, this Court would be acting in aid of its certiorari jurisdiction. II. THE NEARLY FOUR-YEAR DELAY IN THIS CASE CONSTITUTES EXTRAORDINARY CIRCUMSTANCES WARRANTING A WRIT OF MANDAMUS. The second prerequisite for a writ of mandamus is the establishment of “exceptional circumstances” that “warrant the exercise of the Court's discretionary powers.” Sup. Ct. Rule 20.1. In In re Blodgett, 502 U.S. 236 (1992), this Court stated that a two-and-a-half-year delay in ruling on a habeas petition was excessive and could warrant the

10 issuance of a writ of mandamus if the court of appeals failed to end the delay in that case. See id. at 239-41.3 Although it denied the mandamus petition because the State had failed to lodge an objection to the most recent court of appeals decision, this Court nonetheless expressed its “concern that the State of Washington has sustained severe prejudice by the 2 ½ year stay of execution.” Id. at 239. In closing, this Court emphasized “the right of the State to again seek mandamus relief or to request any other extraordinary relief by motion or petition if unnecessary delays or unwarranted stays occur in the panel's disposition of the matter.” Id. at 240.

A fortiori, the delay of nearly four years since oral

argument in the present case warrants a writ of mandamus. Such a writ is appropriate especially in light of the procedural posture of this case: there was no trial, the record and transcript are not extensive, and the appeal is from the grant of summary judgment. The Seventh Circuit, like the other circuits, has recognized the importance of reasonably prompt decisions, and has drafted suggested timelines for the 3

Circuit courts of appeals have also recognized that the writ of mandamus is the appropriate remedy for cases involving a court’s undue delay. In Johnson v. Rogers, 917 F.2d 1283, 1285 (10th Cir. 1990), for example, the Tenth Circuit Court of Appeals granted a writ of mandamus after a fourteen-month delay in the district court’s hearing and deciding the petitioner’s habeas corpus petition. In U.S. v. Johnson, 732 F.2d 379 (4th Cir. 1984), the Fourth Circuit concluded that the two-year delay in the preparation of the defendant’s trial transcript justified granting a writ of mandamus, being within “the range of magnitude of delay as a result of which courts have indicated that due process may have been denied.” Id. at 382 (citations omitted).

11 issuance of prompt decisions through its Operating Procedures. Under the heading “Presumptive Times for Action,” the Operating Procedures set presumptive general guidelines of four to seven months for the circulation of majority and separate opinions for each case. Seventh Circuit App. III, Oper. P. 9. These timelines established by the Seventh Circuit are consistent with this Court’s decision in Blodgett recognizing that parties are entitled to prompt decisions of their appeals. This case involves constitutional claims, including a First Amendment challenge to a licensing ordinance. In another context, this Court has noted that litigants in free expression cases are generally entitled to “prompt final judicial decision[s].” Freedman v. Maryland, 380 U.S. 51, 59 (1965). In cases applying Freedman, this Court has continued to affirm that it is particularly critical in such First Amendment cases to protect against undue delay, and to ensure litigants’ constitutional rights are protected through “prompt” and “speedy” judicial decisions. City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004)(citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 228 (1990); Freedman, 380 U.S. at 59 (1965)).4 Although this line of 4

Specifically, this Court in City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004) explained:

Freedman, in listing constitutionally necessary ‘safeguards,’ spoke of the need to assure a ‘prompt final judicial decision’ . . . .

... Freedman's ‘judicial review’ safeguard is meant to

prevent ‘undue delay’. . . Thus, we read that opinion’s reference to prompt judicial review,’ together with the similar reference in [Justice

12 cases addresses the adequacy of the judicial review procedures in licensing schemes, the underlying principle of the importance of prompt judicial decisionmaking applies equally to the context of this case, in which a judicial delay of nearly four years has occurred. As such, the second requirement of Supreme Court Rule 20.1 for the issuance of a writ of mandamus is satisfied in this case. III. NO OTHER ADEQUATE RELIEF IS AVAILABLE TO PETITIONERS. Finally, Supreme Court Rule 20.1 requires that a writ of mandamus shall issue only when there is no other adequate relief available to the petitioners. In this case, Petitioners have attempted to induce the Seventh

Brennan’s FW/PBS opinion] as encompassing a prompt judicial decision.

Id. at 780-81 (citing Freedman v. Maryland, 380 U.S. 51, 59 (1965); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 228, 239 (1990)(citing majority opinion by Justice Breyer and concurring opinion by Justice Brennan, respectively). Although this Court proceeded to loosen the requirements of Freedman as applied to that case, it did so because it found that the state judicial review procedures available in that case were sufficient “as long as the courts remain sensitive to the need to prevent First Amendment harms” created by undue delays “and administer those procedures accordingly.” Id. at 781-82. This Court continued, “we have no reason to doubt the willingness of Colorado’s judges to exercise these powers wisely so as to avoid serious threats of delay-induced First Amendment harm. We presume that courts are aware of the constitutional need to avoid ‘undue delay result[ing] in the unconstitutional suppression of speech.’” Id. at 782.

13 Circuit to decide the case, both by letter to the clerk and through a formal motion requesting that a decision be rendered. See Apps. 55, 56. Under such circumstances, a writ of mandamus is the only adequate relief remaining to Petitioners. CONCLUSION Petitioners respectfully request that this Court issue a writ of mandamus directing the Respondents to render a decision in this case. J. MICHAEL MURRAY

Counsel of Record

STEVEN D. SHAFRON NANCY C. MARCUS Berkman, Gordon, Murray & DeVan 55 Public Square, Suite 2200 Cleveland, Ohio 44113 Telephone (216) 781-5245 Facsimile (216) 781-8207

Counsel for Petitioners