City News & Novelty, Inc. v. City of Waukesha

PETITIONER: City News & Novelty, Inc.
RESPONDENT: City of Waukesha
LOCATION: Medical University of South Carolina

DOCKET NO.: 99-1680
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: State appellate court

CITATION: 531 US 278 (2001)
ARGUED: Nov 28, 2000
DECIDED: Jan 17, 2001

ADVOCATES:
Curt Meitz - Argued the cause for the respondent
James A. Feldman - Department of Justice, on behalf of the United States, as amicus curiae, supporting the respondent
Jeff S. Olson - Argued the cause for the petitioner

Facts of the case

The City of Waukesha, Wisconsin requires sellers of sexually explicit materials to obtain and annually renew adult business licenses. City News and Novelty, Inc. (City News), owned and operated an adult-oriented shop in Waukesha. City News had first obtained a license in 1989. In 1995, City News applied for a renewal of its license. Waukesha's Common Council denied the application. The Council found that City News had violated Waukesha ordinances by permitting minors to loiter on the premises, failing to maintain an unobstructed view of booths in the store, and allowing patrons to engage in sexual activity inside the booths. Waukesha's refusal to renew City News's license was upheld in administrative proceedings and on judicial review in the state courts. Among other questions raised in its petition for certiorari, City News asked the Court to "resolve...whether the guarantee of prompt judicial review that must accompany [an adult business] licensing scheme means a prompt judicial determination or simply the right to promptly file for judicial review."

Question

Does the guarantee of prompt judicial review that must accompany an adult business-licensing scheme mean a prompt judicial determination?

Media for City News & Novelty, Inc. v. City of Waukesha

Audio Transcription for Oral Argument - November 28, 2000 in City News & Novelty, Inc. v. City of Waukesha

Audio Transcription for Opinion Announcement - January 17, 2001 in City News & Novelty, Inc. v. City of Waukesha

William H. Rehnquist:

The opinion of the Court in No. 99-1680, City News & Novelty Inc. versus the City of Waukesha will be announced by Justice Ginsburg.

Ruth Bader Ginsburg:

When a person is denied a license to conduct an adult business, a term used to describe “shops selling sexually explicit reading and viewing material”, we have said in a prior opinion that the First Amendment entitles to would be licensee to prompt judicial review.

Some lower courts have concluded that prompt review means a prompt decision on the merits of the individuals asserted right to conduct an adult business.

Other courts have said that fast access to a judge without setting a deadline for the judge’s decision is good enough.

We granted review to resolve this conflict after full consideration, however, we find that this case in not one in which we can address the issue.

City News & Novelty the party who sought our review was an adult business in Waukesha, Wisconsin.

One cannot conduct such a business in Waukesha without an annually renewable license.

In 1995, Waukesha decided not to renew City News’ license finding that the business had violated various city rules, for example, a bar on allowing minors in the premises.

City News challenged Waukesha’s licensing laws in Wisconsin’s courts.

The Wisconsin Court of Appeals rejected the challenge concluding among other things that prompt access to court review without a guarantee of prompt decision suffices to satisfy the constitution.

City News contest that judgment here.

The opinion we release today explains why City News is not properly situated to challenge the adequacy of Waukesha’s provision for a court check on license denials.

Since petitioning for our review City News has ceased to operate as an adult business and it no longer seeks license renewal.

Because no live immediate controversy persisted and that this case is what lawyer call moot, City News urges that its complaint against Waukesha remains fit for resolution because the business might some day seek another license but under the City's ordinance it must wait five years before reapply.

We cannot tell from the record before us whether City News would in fact face a five year wait.

We conclude in any event that a live controversy is not maintained by speculation that City News might be disabled from reentering the business that City News has now left and currently asserts no plan to reenter.

City News is not a qualified complainant for a separate reason as well.

When the business just starting out is denied a license that business cannot operate, courts have divided on the face of judicial review to which such a new business is entitled but City News was not just starting out, it was already up and running.

City News therefore did not seek Swift review of a license denial to enable the enterprise to begin operating, a business long underway typically seeks not to start but to stay in business to gain a stay of license terminations during dependency of judicial review, however, along that review take.

We venture no opinion on the merits of a plea for a stay of license termination allowing an adult business to remain in operation pending administrative and court review.

We conclude simply and only that this case involved a question other than the one on which we granted review.

For these reason we dismissed City News’s petition and leave the judgment of the Wisconsin Court of Appeals undisturbed.

Our decision in unanimous.