No. 99-1680 

SUPREME COURT OF THE UNITED STATES 

CITY NEWS AND NOVELTY, INC., 

Petitioner 

v. 
CITY OF WAUKESHA, 
Respondent 

ON PETITION FOR WRIT OF CERTIORARI TO THE 

SUPREME COURT OF WISCONSIN 

RESPONDENT’S BRIEF IN OPPOSITION 

Curt R. Meitz 
City Attorney/Counsel of Record 
201 Delafield Street 
Waukesha, WI 53188 
Phone 262/524-3520 
Fax 262/650-2569 
Attorney for Respondent 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES ..................................... ii 

REASONS FOR DENYING ....................................... 1 

THE WRIT .................................................. 1 

I. THE CRITERIA FOR REVIEW HAVE NOT BEEN MET BECAUSE THE 
COURT OF APPEALS APPLIED WELL-SETTLED PRINCIPLES OF 
LAW AS SET FORTH BY THE U.S. SUPREME COURT IN FW/PBS. 

................................................... 1 

II. THE COURT OF APPEALS APPLIED THE APPROPRIATE BURDEN 
OF PROOF IN ANALYZING THE LICENSING SCHEME. ........ 2 

III. IN ACCORD WITH U.S. SUPREME COURT DECISIONS, THE 
LICENSING SCHEME PROVIDES OBJECTIVE STANDARDS OF 
RENEWAL TO GUIDE THE DECISIONMAKER. ................ 9 

IV. THE COURT OF APPEALS CORRECTLY APPLIED THE PRINCIPLES 
OF FW/PBS IN DETERMINING THAT WAUKESHA’S LICENSING 
SCHEME CONTAINS THE APPROPRIATE PROCEDURAL 
SAFEGUARDS. ....................................... 11 

CONCLUSION ............................................... 14 

i 

TABLE OF AUTHORITIES 

Cases 

Bamon Corp. v. City of Dayton, 
923 F. 2d 470 (6th Cir. 1991).............................. 7 

Berg v. Health & Hospital Corp., 
865 F.2d 797 (7th Cir. 1989)............................... 7 

Brandmiller v. Arreola, 
199 Wis.2d 528, 544 N.W.2d 894 (1996) ..................... 8 

City News and Novelty, Inc. v. City of Waukesha, 
170 Wis.2d 14, 25-6, 487 N.W.2d 316 (Wis. App. 1992) .. 8, 11 
Complaint Against Grady, 
118 Wis. 2d 762, 348 N.W.2d 559 (1984) ................... 12 

Doe v. City of Minneapolis, 
898 F.2d 612 (8th Cir. 1990)............................... 7 

East Brooks Books, Inc. v. City of Memphis, 
48 F.3d 220, (6th Cir. 1995)............................ 5, 6 

Freedman v. Maryland, 
380 U.S. 51 (1965) ............................... 2, 3, 4, 7 

FW/PBS v. Dallas, 
493 U.S. 215 (1990) ............ 1, 3, 4, 5, 6, 9, 11, 12, 13 

Graff v. Chicago, 
9 F.3d 1309 (7th Cir. 1993)......................... 5, 6, 12 

Jews for Jesus, Inc. v. Massachusetts Bay Transp. Auth., 
984 F.2d 1319, 1327 (1st Cir., 1993)...................... 12 

Kenosha County v. C & S Management, 
223 Wis.2d 373, 588 N.W.2d 236 (1999) ..................... 8 

Lakewood v. Plain Dealer Publishing Co., 
486 U.S. 750 (1988) ................................... 9, 10 

Lounge Management, Ltd. v. Town of Trenton, 
219 Wis.2d 13, 580 N.W.2d 156 (1998) ................... 7, 8 

ii 

Redner v. Dean, 
29 F.3d 1495 (11th Cir. 1994)............................. 13 

Renton v. Playtime Theatres, Inc., 
475 U.S. 41 (1986) ........................................ 3 

Shuttlesworth v. Birmingham, 
394 U.S. 147 (1969) ....................................... 3 

State v. McManus, 
152 Wis.2d 113, 447 N.W.2d 654 (1989) ..................... 9 

State v. Ruesch, 
214 Wis.2d 548, 571 N.W.2d 898 (Ct.App. 1997) ............. 8 

Suburban Video, Inc. V. City of Delafield, 
694 F. Supp. 585 (E.D. Wis. 1986) ......................... 7 

TK’s Video, Inc. v. Denton County, 
24 F.3d 705, 709 (5th Cir. 1994).......................... 12 

United States v. Salerno, 
481 U.S. 739, 746 (1987) ................................. 11 

Ward v. Rock Against Racism, 
491 U.S. 781, 797-8 (1989) ............................... 11 

Young v. American Mini Theatres, 
427 U.S. 50 (1976) ........................................ 3 

Wisconsin Statutes 

68.12(1) ................................................. 13 

944.21 .................................................... 8 

Other Authorities 

Waukesha Municipal Code sec. 8.195 ....................... 11 

iii 

REASONS FOR DENYING 
THE WRIT 

I. THE CRITERIA FOR REVIEW HAVE NOT BEEN 
MET BECAUSE THE COURT OF APPEALS 
APPLIED WELL-SETTLED PRINCIPLES OF LAW 
AS SET FORTH BY THE U.S. SUPREME COURT 
IN FW/PBS. 

The only Supreme Court jurisdictional rule 
applicable to this petition is Rule 10(c). Petitioner 
contends that a state court has decided “an important 
federal question in a way that conflicts with relevant 
decisions of this Court.” This is not the case because the 
Wisconsin Court of Appeals analyzed the City of Waukesha’s 
licensing scheme under the guidance of the United States 
Supreme Court’s decision in FW/PBS v. Dallas, 493 U.S. 215 
(1990). The law is clear in this area and the Court of 
Appeals has correctly applied the law to the particular 
facts of this case. The Court of Appeals unequivocally 
indicated that it applied the constitutional framework in 
FW/PBS to its examination of the City’s licensing scheme. 
(A-9 to A-12). Therefore, the criteria for review under 
Rule 10(c) has not been met and the writ should not be 
granted. 

1 

II. THE COURT OF APPEALS APPLIED THE 
APPROPRIATE BURDEN OF PROOF IN 
ANALYZING THE LICENSING SCHEME. 

The petitioner argues that the Wisconsin Court of 
Appeals erred by not placing upon the City the burden of 
proof to establish the constitutionality of the ordinance. 
As such, petitioner argues that this analysis by the Court 
of Appeals conflicts with controlling opinions of the U.S. 
Supreme Court and other appellate court decisions. 
(Petition p. 5-10). The petitioner’s argument is a clear 
misstatement of the law. 

The petitioner cites numerous decisions of this 
Court as holding that any government licensing scheme must 
be interpreted as a prior restraint, and therefore must be 
presumed unconstitutional. (Petition p. 5). However, 
petitioner's argument fails because the City of Waukesha's 
licensing scheme does not regulate the content of protected 
speech. It is a content-neutral time, place and manner 
restriction that has neither the purpose nor effect of 
imposing any limitation or restriction on the content of 
any communicative materials sold by the petitioner. The 
ordinance, unlike the statute at issue in Freedman v. 
Maryland, 380 U.S. 51 (1965) does not create a censor. 

2 

Therefore, FW/PBS correctly distinguished the ordinance at 
issue there from Freedman. 

Prior to FW/PBS, courts did not apply prior 
restraint analysis to content-neutral licensing schemes. 
Instead, courts limited their review to whether the 
regulations in question were content-neutral time, place, 
and manner regulations designed to serve a substantial 
government interest, and did not unreasonably limit 
alternative avenues of communication. Renton v. Playtime 
Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini 
Theatres, 427 U.S. 50 (1976). These cases post-date 
Shuttlesworth v. Birmingham, 394 U.S. 147 (1969), which 
petitioner cites in support of its argument that the City’s 
ordinance improperly places uncontrolled discretion in the 
hands of its officials. (Petition p. 11). The Wisconsin 
Court of Appeals correctly rejected this argument (App. 14) 
because the ordinance at issue here is entirely different. 
Shuttlesworth involved an ordinance in which the issuance 
of parade permits were used as a means of regulating the 
content of expressive activity. Renton and Young dealt 
with exactly the type of content-neutral ordinance that is 
at issue here. Petitioner fails to make that distinction 
in its analysis of Shuttlesworth and FW/PBS. 

3 

FW/PBS v. Dallas was the first case that held 
that content-neutral licensing ordinances required any sort 
of prior restraint analysis. In a plurality decision, the 
court concluded that two prior restraint safeguards set 
forth in Freedman v. Maryland, 380 U.S. 51 (1965), apply to 
content-neutral licensing schemes. The court also 
concluded that the third prong of the prior restraint 
protections--that the governmental authority bore the 
burden of proving its constitutionality beyond a reasonable 
doubt--did not apply. 493 U.S. at 228, 246. Justice 
O'Connor stated that, 

The licensing scheme we examined today 
is significantly different from the 
censorship scheme examined in Freedman. 
In Freedman the censor engaged in 
direct censorship of a particular 
expressive material. Under First 
Amendment jurisprudence, such 
regulation of speech is presumptively 
invalid and therefore the censor in 
Freedman was required to carry the 
burden of going to court if the speech 
was to be suppressed and of justifying 
its decision once in court…. We 
conclude the First Amendment does not 
require that the city bear the burden 
of going to court to effect the denial 
of a license application or that it 
bear the burden of proof once in court. 
FW/PBS, 493 U.S. at 229-230 (emphasis added). 

Following this decision, courts analyzing similar 
licensing schemes relied upon it to conclude that content- 

4 

neutral licensing schemes must meet the first two Freedman 
procedural safeguards that (1) the status quo must be 
maintained prior to judicial review; and (2) expeditious 
judicial review must be available. But the third Freedman 
requirement, that the government bore the burden of proving 
its constitutionality, has not been held applicable. Most 
notably, the Seventh Circuit so concluded in Graff v. 
Chicago, 9 F.3d 1309 (7th Cir. 1993): 

In FW/PBS the Court held that the city 
of Dallas need not bear the burden of 
going to court nor the burden of proof 
once in court for two reasons: The 
ordinance was not presumptively invalid 
because the decision maker did not pass 
"judgment on the content of any 
protected speech." Also, "[b]ecause the 
license [or in this case, a permit] is 
the key to the applicant's obtaining 
and maintaining a business, there is 
every incentive for the applicant to 
pursue a license denial through the 
court." 493 U.S. at 229-30. 

Graff, 9 F.3d at 1324 n.11. East Brooks Books, Inc. v. 
City of Memphis, 48 F.3d 220, (6th Cir. 1995) ("Although the 
court’s opinion was fragmented, six justices agreed that at 
least the first two requirements in Freedman were 
applicable"). Id. at 224 n. 4. 

Petitioner's assertion (Petition p. 9) that the 
narrowest reading of FW/PBS would entail applying a full 

5 

prior restraint analysis to all content-neutral licensing 
schemes is not supported by the law. The narrowest reading 
of FW/PBS, as correctly applied by the Wisconsin Court of 
Appeals, would extend the least amount of prior restraint 
analysis to content-neutral licensing schemes and therefore 
incorporate only the first two prior restraint safeguards. 
Thus, consistent with FW/PBS, later decisions such as Graff 
and East Brooks Books applied the first two prongs of prior 
restraint analysis but refused to apply the third and 
allocate the burden to the City to prove the regulations' 
constitutionality. 

The City of Waukesha's adult establishment 
licensing scheme by its own terms has neither the purpose 
nor effect of imposing a limitation or restriction on the 
content of any communicative materials. The petitioner 
simply ignores the content-neutral character of the 
ordinance. The licensing and regulation of adult oriented 
establishments as set forth in the Waukesha Code is for the 
purpose of combating and curbing secondary effects of such 
establishments. (A-95 to 97). The Waukesha ordinance is 
in accord with many other ordinances that have been upheld 
across the nation that advance a substantial government 
interest of combating the secondary effects associated with 

6 

sexually oriented businesses. Doe v. City of Minneapolis, 
898 F.2d 612 (8th Cir. 1990); Berg v. Health & Hospital 
Corp., 865 F.2d 797 (7th Cir. 1989). Ordinances such as 
Waukesha’s have been justified as being narrowly tailored 
to serve a significant governmental interest. Id. Also, 
Bamon Corp. v. City of Dayton, 923 F. 2d 470 (6th Cir. 
1991). The Court of Appeals further recognized that an 
identical licensing scheme in relevant part was upheld as 
being narrowly tailored and furthering a substantial 
governmental purpose. Suburban Video, Inc. V. City of 
Delafield, 694 F. Supp. 585 (E.D. Wis. 1986). Therefore, 
the City of Waukesha's adult establishment licensing scheme 
is content-neutral and not subject to the third Freedman 
procedural safeguard. 

Petitioner also ignores the difference between a 
content-neutral ordinance and a content-based regulatory 
scheme. In contrast, Wisconsin’s courts have clearly shown 
that they understand the difference between a content- 
neutral licensing scheme and ordinances which prohibit 
protected expression. The ordinance in question in Lounge 
Management, Ltd. v. Town of Trenton, 219 Wis.2d 13, 580 
N.W.2d 156 (1998) prohibited all public nudity. Kenosha 
County v. C & S Management, 223 Wis.2d 373, 588 N.W.2d 236 

7 

(1999), involved an application of sec. 944.21, Wis. 
Stats., which prohibits the sale of obscene material. These 
laws encompassed expressive activities, but had no 
connection with their secondary effects such as 
prostitution, sexual assault, and other criminal 
activities. 

Unlike the ordinance in Lounge Management, there 
are no allegations, nor has there been any evidence shown 
that the Waukesha ordinance is content based or encompasses 
"expressive activities that do not implicate the secondary 
effects that the town may legitimately seek to regulate." 
Lounge Management, 580 N.W.2d at 161 The Court of Appeals 
recognized this fact itself in an earlier challenge to this 
ordinance by this plaintiff. City News and Novelty, Inc. 

v. City of Waukesha, 170 Wis.2d 14, 25-6, 487 N.W.2d 316 
(Wis. App. 1992). 

Although content-based regulations restricting 
First Amendment protected speech certainly are presumed 
unconstitutional, Wisconsin courts recognize that is not 
the case when content-neutral restrictions are at issue. 
See, Brandmiller v. Arreola, 199 Wis.2d 528, 544 N.W.2d 894 
(1996); State v. Ruesch, 214 Wis.2d 548, 571 N.W.2d 898 
(Ct.App. 1997) (citing State v. McManus, 152 Wis.2d 113, 

8 

447 N.W.2d 654 (1989) in support of its holding that the 
party challenging a content-neutral statute must prove 
beyond a reasonable doubt that there are no possible 
interpretations of the statute which would be 
constitutional.) 

The Petitioner’s argument that the City needed to 
prove that its ordinance is constitutional beyond a 
reasonable doubt is in direct conflict with FW/PBS v. 
Dallas and its progeny. It does not satisfy the 
requirement set forth in Rule 10(c) for review by this 
Court. 

III. IN ACCORD WITH U.S. SUPREME COURT 
DECISIONS, THE LICENSING SCHEME 
PROVIDES OBJECTIVE STANDARDS OF RENEWAL 
TO GUIDE THE DECISIONMAKER. 

The petitioner argues that the licensing 
ordinance does not contain sufficiently objective standards 
governing renewal decisions to prevent the exercise of 
unlawful discretion. It cites Lakewood v. Plain Dealer 
Publishing Co., 486 U.S. 750 (1988), in support of this 
contention. (Petition p. 11-13). 

The fundamental principles enumerated in City of 
Lakewood v. Plain Dealer Publishing Co. require a permit or 
licensing scheme to establish clear guidelines limiting the 

9 

discretion of the official designated to issue the permit 
or license to ensure that protected speech is not 
suppressed. The Wisconsin Court of Appeals applied this 
well-settled principle of constitutional law in holding 
that the same pitfalls present in the Lakewood case were 
not present in Waukesha’s licensing scheme. (A-15.) This 
is only logical, since by the time the government is 
deciding sanctions, it has already made its determination 
whether to deny (or in this case not renew) a license, and 
has therefore followed clear and discernible standards 
prescribed by the ordinance as required by Lakewood and its 
progeny. 

Arguing that the City does not have discernable 
standards to guide the decisionmaker, the petitioner claims 
that the ordinance should have had a range of provisions 
for the City to choose between mild and severe punishments. 
(Petition p. 12-13). This apparently is an attempt to 
convince the Court to apply the “least restrictive 
alternative” test. However, that test is not applicable to 
content-neutral regulations that promote a substantial 
government interest. 

Restrictions on the time, place and 
manner of protected speech are not 
invalid simply because there is some 

10 

imaginable alternative that might be 
less burdensome on speech…less any 
confusion on this point remain, we 
reaffirm today that a regulation of 
time, place and manner of protected 
speech need not be the least 
restrictive or least intrusive means. 
Ward v. Rock Against Racism, 491 U.S. 781, 797-8 (1989). 
See also: City News and Novelty v. City of Waukesha, 170 
Wis. 2d 14, 25-6, 487 N.W.2d at 320 (Wis. App. 1992). 
Thus, petitioner ignores well-established law with this 
claim. 

IV. THE COURT OF APPEALS CORRECTLY APPLIED 
THE PRINCIPLES OF FW/PBS IN DETERMINING 
THAT WAUKESHA’S LICENSING SCHEME 
CONTAINS THE APPROPRIATE PROCEDURAL 
SAFEGUARDS. 

The petitioner makes a facial challenge to 
Waukesha Ordinance 8.195. (Petition p. 13-17). It is the 
most difficult challenge to mount successfully since the 
challenger must establishment that no set of circumstances 
exists under which the act would be valid. United States 

v. Salerno, 481 U.S. 739, 746 (1987). The U.S. Supreme 
Court reiterated this standard in FW/PBS by stating that, 
“every application of the statute must create an 
impermissible risk of suppression of ideas.” 493 U.S. at 
224. 

11 

The Court of Appeals applied the constitutional 
framework set forth in FW/PBS rejecting petitioner’s claims 
that the ordinance contained inadequate time limits and 
failed to preserve the status quo. (A. 19-22). The court 
also affirmatively asserted that the ordinance provides 
prompt judicial determination as stated by the plurality in 
FW/PBS, 493 U.S. at 227, 228. With regard to the latter, 
the Court of Appeals cited several other decisions such as 
Graff v. Chicago, 9 F.3d 1309, 1324-25 (7th Cir. 1993), Jews 
for Jesus, Inc. v. Massachusetts Bay Transp. Auth., 984 
F.2d 1319, 1327 (1st Cir., 1993), and TK’s Video, Inc. v. 
Denton County, 24 F.3d 705, 709 (5th Cir. 1994) in support 
of its interpretation. In addition, the court indicated 
that the municipality did not have the authority to direct 
the state court to issue a decision within a specific brief 
period of time. (A-22). This is in accord with well- 
settled principles of the separation of powers doctrine. 
Complaint Against Grady, 118 Wis. 2d 762, 348 N.W.2d 559 
(1984). 

Petitioner asserts that the City could overcome 
the separation of powers problem by specifying in the 
ordinance that the status quo be preserved throughout the 
judicial review process. This argument, which erroneously 

12 

combines two separate and distinct requirements established 
by FW/PBS, must fail. Preserving the status quo throughout 
the judicial review process would do absolutely nothing to 
hasten review; therefore, it cannot be viewed as having any 
import whatsoever on a facial challenge of the ordinance 
and should be disregarded. The Court of Appeals correctly 
interpreted existing law when it concluded that the City 
could not dictate the State court’s schedule. 

In rejecting the petitioner’s argument that 
Waukesha’s licensing scheme was the same scenario that was 
struck down in Redner v. Dean, 29 F.3d 1495 (11th Cir. 
1994), the Wisconsin Court of Appeals applied the 
constitutional framework established in FW/PBS by 
concluding, 

Unlike Redner, however, ch. 68 does not 
contain contingencies that leave an 
applicant at the mercy of the 
licensor’s discretion. Perhaps more 
importantly, once the administrative 
review appeals board has issued its 
final determination see §68.12(1), 
Stats. appellant may obtain immediate 
judicial review. “The chapter 68 
Stats’ framework for judicial review 
provides a fixed timetable from the 
time the municipal authorities initial 
determination to the date of the 
administrative review appeals board 
decision.” (A-18.) 

13 

CONCLUSION 

Petitioners fail to advance any significant or 
substantial reason for review. The Court of Appeals 
properly applied well-settled principles of constitutional 
law. Review by the Supreme Court will not fulfill any of 
the requirements or goals of Rule 10(c). The petition for 
review should be denied. 

Dated this _______ day of May, 2000. 

CITY OF WAUKESHA 
Curt R. Meitz 
City Attorney 
Vincent D. Moschella 
Assistant City Attorney 
201 Delafield Street 
Waukesha, WI 53188 
414/524-3520 
414/650-2569 – FAX 
Attorneys for Respondent 
City of Waukesha 

14