The opinion of the court was delivered by: Sandra S. Beckwith, Chief Judge United States District Court
This matter is before the Court following remand from the en banc Sixth Circuit of Appeals in Deja Vu of Cincinnati, LLC v. Union Township Board of Trustees, et al, 411 F.3d. 777 (6th Cir. 2005). Now pending before the Court are the parties' motions for summary judgment.
Plaintiff's motion (Doc. 68) asks the Court to declare Union Township Resolutions 99-15 and 00-22, and an Ohio enabling statute that was in effect when these resolutions were adopted, unconstitutional in various respects. These enactments regulate adult cabarets, one of which Deja Vu operates in Union Township. Union Township's motion (Doc. 67) generally argues that Plaintiff's claims are moot, barred by the law of the case announced in the Sixth Circuit's en banc opinion, or should be denied on the merits. The Ohio Attorney General, who intervened in this case to defend the Ohio statute, seeks dismissal of the claims challenging Ohio's statute, based on the intervening and substantive statutory amendment that renders Plaintiff's claims moot. (Doc. 69)
Deja Vu filed its original complaint in September 1999 after Union Township enacted Resolution No. 99-15, regulating and licensing adult cabaret nightclubs. Deja Vu began operating a cabaret earlier that year, featuring clothed, semi-nude, and nude exotic dancers. After briefing and arguments, and the Supreme Court's decision in Erie v. P.A.P.'s A.M., 529 U.S. 277 (2000), this Court preliminarily enjoined the enforcement of sections of the Resolution pertaining to warrantless inspections, and disclosure of personal information by certain cabaret owners. This Court denied preliminary injunctive relief against other sections of the ordinance, concluding they would pass constitutional muster.
Deja Vu appealed, and this case was stayed pending its resolution. While the appeal was pending, Union Township enacted Resolution No. 00-22 to amend and replace Resolution No. 99-15. The new ordinance omitted the provisions which the Court had enjoined. Resolution 00-22 also reduced the disability periods for prior convictions of certain defined offenses in (F)(2)(e) and (f), although this Court had concluded that the corresponding sections of Resolution 99-15 were likely constitutional. (The text of Resolution No. 00-22 is Exhibit 4 Deja Vu's amended complaint, Doc. 59.)
A panel of the Sixth Circuit affirmed in part and reversed in part this Court's preliminary injunction. See Deja Vu of Cincinnati v. Union Township, 326 F.3d 791 (6th Cir. 2003). However, the Circuit granted en banc review and subsequently affirmed in all respects this Court's denial of injunctive relief. See Deja Vu of Cincinnati v. Union Township, 411 F.3d 777 (6th Cir. 2005) (hereinafter "Deja Vu of Cincinnati"). The Circuit expressed no opinion on the grant of the preliminary injunction against the inspection and disclosure requirements, in light of the Township's adoption of Resolution 00-22. The Circuit remanded the matter to this Court for further proceedings consistent with its opinion.
Deja Vu filed an amended complaint in January 2006. (Doc. 59) It seeks declaratory and injunctive relief as to both Township resolutions; a declaration that Resolution 00-22 conflicts with former R.C. 503.51, et seq; and a declaration that the former enabling statute is unconstitutional.
In August 2006, the Ohio Legislature's Am. Sub. H.B. 23 became effective, repealing all sections of the former enabling statute, and replacing them with a different statutory approach. R.C. 503.51-503.53 as amended essentially grants to Ohio townships the same home rule powers to regulate adult cabarets that Ohio municipalities have. (The text of the new statute is Exhibit B to Deja Vu's amended complaint, Doc. 59.)
1. Summary Judgment Standards
The standards for summary judgment are well established.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party opposing a properly supported summary judgment motion "'may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253 (1968)). The Court is not duty bound to search the entire record in an effort to establish a lack of material facts. Guarino v. Brookfield Township Trs., 980 F.2d 399, 404 (6th Cir. 1992); InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. den., Superior Roll Forming Co. v. InterRoyal Corp., 494 U.S. 1091 (1990). Rather, the burden is on the non-moving party to "present affirmative evidence to defeat a properly supported motion for summary judgment...," Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989), and to designate specific facts in dispute. Anderson, 477 U.S. at 250. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The court construes the evidence presented in the light most favorable to the non-movant and draws all justifiable inferences in the non-movant's favor. United States v. Diebold Inc., 369 U.S. 654, 655 (1962).
The court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The court must assess "whether there is the need for trial - whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250. "If the evidence is merely colorable, . . . , or is not significantly probative, . . . , the court may grant judgment." Anderson, 477 U.S. at 249-50 (citations omitted).
Although summary judgment must be used with extreme caution since it operates to deny a litigant his day in court, Smith v. Hudson, 600 F.2d 60, 63 (6th Cir. 1979), cert. dismissed, 444 U.S. 986 (1979), the United States Supreme Court has stated that the "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to 'secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (citations omitted).
2. Challenges to Resolution No. 99-15.
Deja Vu seeks a final judgment that Sections (L)(1) and (M)(2) concerning warrantless inspections, and portions of Sections (D)(5)(d) and (e), requiring disclosure of personal information from certain partners and shareholders of permitees, are unconstitutional. The Court preliminarily enjoined enforcement of these sections in its September 2000 Order. Resolution 00-22 omits these sections, so they do not currently have force of law in Union Township.
The Sixth Circuit addressed the inspection provisions obliquely, because the Attorney General filed a cross-appeal asking that the injunction on inspections be reversed. (Union Township did not appeal this question, and instead amended its ordinance.) The Sixth Circuit declined to entertain the Attorney General's appeal because the constitutionality of the Ohio enabling statute, the only basis for the Attorney General's intervention in the lawsuit, was not implicated. The Court then noted:
Even though we express no opinion on the constitutionality of the warrantless health and safety inspections, the district court's temporary injunction remains in effect, and we find nothing in the record to indicate that Union Township will attempt to re-enact the provisions already deemed offensive to the Fourth Amendment. If the district court should abruptly change course on remand and fail to permanently enjoin Union Township from conducting the warrantless health and safety inspections, that determination would of course be reviewable by this court on appeal from a final judgment below.
Deja Vu Cincinnati, 411 F.3d at 797.
With regard to the disclosure provisions of Sections (D)(5)(d) and (e), the Sixth Circuit did not address them because neither Union Township nor the Attorney General appealed the Court's ruling. And, as with the provisions on inspections, the new ordinance omits these requirements entirely.
Union Township argues these questions, and all of Deja Vu's arguments concerning 99-15, are moot because Resolution 99-15 was repealed and has never been enforced. There is nothing in the record to date raising the slightest inference that Union Township will reinstitute these provisions at any point in time. The preliminary injunction with respect to these provisions remains in effect.
Deja Vu has not demonstrated an entitlement to a permanent injunction, as it has not shown it will suffer any "continuing irreparable injury" under Resolution 99-15. See Deja Vu of Nashville v. Metropolitan Gov't of Nashville, 466 F.3d 391, 394 (6th Cir. 2006) (permanent injunction proper where party establishes a constitutional violation and will suffer continuing irreparable injury for which there is no adequate remedy at law). The Court rejects Deja Vu's argument that the cursory damage allegations of its first ...