Filed: May 20, 2008
Latest Update: Mar. 02, 2020
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 08a0188p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - SENSATIONS, INC.; LADY - GODIVA’S, INC., and LITLE RED BARN ADULT - THEATRE & BOOKSTORE, INC., - Nos. 06-2168/2508/2510; Plaintiffs-Appellants, , 07-1504 > v. - - - - CITY OF GRAND RAPIDS; MICHIGAN DECENCY - ACTION COUNCIL, INC.; JUDY ROSE; DAR VANDER - ARK; BLACK HILLS CITIZENS FOR A BETTER - COMMUNITY, INC., Defendants-Appellees. N Appeal fr
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 08a0188p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - SENSATIONS, INC.; LADY - GODIVA’S, INC., and LITLE RED BARN ADULT - THEATRE & BOOKSTORE, INC., - Nos. 06-2168/2508/2510; Plaintiffs-Appellants, , 07-1504 > v. - - - - CITY OF GRAND RAPIDS; MICHIGAN DECENCY - ACTION COUNCIL, INC.; JUDY ROSE; DAR VANDER - ARK; BLACK HILLS CITIZENS FOR A BETTER - COMMUNITY, INC., Defendants-Appellees. N Appeal fro..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0188p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
SENSATIONS, INC.; LADY
-
GODIVA’S, INC., and LITLE RED BARN ADULT
-
THEATRE & BOOKSTORE, INC.,
-
Nos. 06-2168/2508/2510;
Plaintiffs-Appellants,
,
07-1504
>
v. -
-
-
-
CITY OF GRAND RAPIDS; MICHIGAN DECENCY
-
ACTION COUNCIL, INC.; JUDY ROSE; DAR VANDER
-
ARK; BLACK HILLS CITIZENS FOR A BETTER
-
COMMUNITY, INC.,
Defendants-Appellees. N
Appeal from the United States District Court
for the Western District of Michigan at Kalamazoo.
Nos. 06-00060; 06-00300—Robert Holmes Bell, Chief District Judge.
Argued: January 30, 2008
Decided and Filed: May 20, 2008
Before: MERRITT, DAUGHTREY, and MOORE, Circuit Judges.
_________________
COUNSEL
ARGUED: Michael L. Donaldson, Livonia, Michigan, J. Michael Southerland, J. MICHAEL
SOUTHERLAND, P.C., for Appellants. Scott D. Bergthold, LAW OFFICE OF SCOTT D.
BERGTHOLD, P.L.L.C., Chattanooga, Tennessee, James R. Wierenga, DAVID & WIERENGA,
P.C., Grand Rapids, Michigan, for Appellees. ON BRIEF: Michael L. Donaldson, Livonia,
Michigan, J. Michael Southerland, J. MICHAEL SOUTHERLAND, P.C., Plymouth, Michigan, for
Appellants. Scott D. Bergthold, LAW OFFICE OF SCOTT D. BERGTHOLD, P.L.L.C.,
Chattanooga, Tennessee, James R. Wierenga, DAVID & WIERENGA, P.C., Grand Rapids,
Michigan, Catherine M. Mish, CITY ATTORNEY’S OFFICE, Grand Rapids, Michigan, for
Appellees.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. This case concerns a consolidated appeal by
Sensations, Inc. et al. (“Sensations”) and Little Red Barn Adult Theatre & Bookstore, Inc. (“Little
Red Barn”) (collectively “Plaintiffs-Appellants”), from the grant of a judgment on the pleadings to
1
Nos. 06-2168/2508/2510; 07-1504 Sensations Inc., et al. v. City of Grand Page 2
Rapids, MI., et al.
the City of Grand Rapids (“Grand Rapids”) and various private citizens and citizens’ groups
(collectively “Defendants”). These private citizens and citizens’ groups include Michigan Decency
Action Council, Inc., Judy Rose, Dar Vander Ark, and Black Hills Citizens for a Better Community
(collectively “Non-City Defendants-Appellees”). Plaintiffs-Appellants filed a complaint in the
United States District Court for the Western District of Michigan, seeking a preliminary injunction
against an ordinance regulating sexually oriented businesses on the ground that the ordinance
violated Plaintiffs-Appellants’ First Amendment and Due Process rights. The district court denied
Plaintiffs-Appellants’ motion for a preliminary injunction, granted Defendants’ motion for judgment
on the pleadings, and awarded attorney fees to Non-City Defendants-Appellees to be paid by Little
Red Barn.
I. FACTS AND PROCEDURE
After learning that a local businessman was planning to open a sexually oriented business
in downtown Grand Rapids, Non-City Defendants-Appellees mobilized in favor of a regulatory
ordinance. When the Grand Rapids City Council expressed initial reluctance to pass such an
ordinance because of the potential costs of defending it against litigation, Non-City Defendants-
Appellees promised that they would fund any necessary legal defense with personal and privately
raised monies. On April 25, 2006, the Grand Rapids City Council passed Ordinance 2006-23 (“the
Ordinance”), entitled Conduct in Sexually Oriented Businesses. Grand Rapids justified the
Ordinance on the basis of the negative secondary effects associated with sexually oriented
businesses.
Pursuant to the Ordinance, a sexually oriented business means “any adult motion picture
theater, adult bookstore, adult novelty store, adult video store, adult cabaret or semi-nude model
studio as defined in Section 5.284 of [the Grand Rapids] Code.” Joint Appendix (“J.A.”) at 45
(Ordinance at § 2(5)). The Ordinance contains the following major provisions: (1) a prohibition
on total nudity; (2) the requirement that semi-nude adult-entertainment performers maintain a six-
foot distance from patrons, on a stage at least eighteen inches from the floor, in a room of at least
six-hundred square feet; (3) the configuration of any room where “any mechanical or electronic
image-producing device . . . display[s] . . . specified sexual activities or specified anatomical areas
. . . in such a manner that there is an unobstructed view from an operator[’]s station of every area
of the premises”; (4) a 180-day compliance allowance; (5) a no-touching rule between sexual
performers and audience members; (6) a prohibition on the operation of a sexually oriented business
between the hours of two A.M. and seven A.M. J.A. at 45-46 (Ordinance at § 3).
The Ordinance provides the following definitions:
“Nudity,” “nude,” or “state of nudity” means the knowing or intentional live display
of a human genital organ or anus with less than a fully opaque covering or a female’s
breast with less than a fully opaque covering of the nipple and areola. Nudity, as
used in this section, does not include a woman’s breast-feeding of a baby whether or
not the nipple or areola is exposed during or incidental to the feeding. . . .
“Semi-nudity,” “semi-nude,” or in a “semi-nude condition” means the showing of
the female breast below a horizontal line across the top of the areola and extending
across the width of the breast at that point, or the showing of the male or female
buttocks. This definition shall include the lower portion of the human female breast,
but shall not include any portion of the cleavage of the human female breasts
exhibited by a bikini, dress, blouse, shirt, leotard, or similar wearing apparel
provided the areola is not exposed in whole or in part.
Nos. 06-2168/2508/2510; 07-1504 Sensations Inc., et al. v. City of Grand Page 3
Rapids, MI., et al.
J.A. at 44-45 (Ordinance at §§ 2(b)(ii), 2(b)(iv)).
Co-plaintiffs Sensations, Inc. and Lady Godiva’s, Inc. filed a complaint in the United States
District Court for the Western District of Michigan, alleging that Grand Rapids had infringed on
their First Amendment rights in violation of 42 U.S.C. § 1983. The district court consolidated the
case filed by Sensations with a suit filed by Little Red Barn against both Grand Rapids and Non-City
Defendants-Appellees. Little Red Barn filed a motion for a continuation of a stay of enforcement
or for a preliminary injunction, in which Sensations joined. Grand Rapids filed a motion for
judgment on the pleadings, as did Non-City Defendants-Appellees. Sensations filed a brief in
opposition supported by twenty-six exhibits. Little Red Barn filed its Response and Brief in
Opposition and attached the affidavit of Dr. Daniel Linz and supporting documents.
The district court denied the motion for a continuation of a stay or for a preliminary
injunction. Little Red Barn filed a timely notice of appeal. The district court later issued an opinion
granting the Defendants’ motion for judgment on the pleadings. Little Red Barn filed a timely
notice of appeal, as did Sensations. The district court awarded attorney fees to Non-City
Defendants-Appellees to be paid by Little Red Barn, and Little Red Barn filed a timely notice of
appeal.
II. ANALYSIS
A. Standard of Review
Motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) are
analyzed under the same de novo standard as motions to dismiss pursuant to Rule 12(b)(6).
Penny/Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp., 399 F.3d 692, 697 (6th Cir. 2005).
We review the district court’s denial of Plaintiffs-Appellants’ motion for a preliminary injunction
for abuse of discretion. Am. Civil Liberties Union of Ohio, Inc. v. Taft,
385 F.3d 641, 645 (6th Cir.
2004). In Bell Atlantic Corp. v. Twombly, 550 U.S. ---,
127 S. Ct. 1955 (2007), the Supreme Court
explained that “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do . . . . Factual allegations must be enough to raise a right to relief above the
speculative level . . . .”
Id. at 1964-65 (internal citations omitted). In Erickson v. Pardus, 550 U.S.
---,
127 S. Ct. 2197 (2007), decided two weeks after Twombly, however, the Supreme Court affirmed
that “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim
showing that the pleader is entitled to relief.’ Specific facts are not necessary; the statement need
only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”
Id. at 2200 (quoting
Twombly, 127 S. Ct. at 1964). The opinion in Erickson reiterated that “when
ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations
contained in the complaint.”
Id. (citing Twombly, 127 S. Ct. at 1965). We read the Twombly and
Erickson decisions in conjunction with one another when reviewing a district court’s decision to
grant a motion to dismiss for failure to state a 1claim or a motion for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12.
1
We have previously “noted some uncertainty concerning the scope of” Twombly. Commercial Money Ctr.,
Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 337 n.4 (6th Cir. 2007). In particular, we have taken note of the Second
Circuit’s interpretation of Twombly as enacting a “plausibility standard [which] did not significantly alter notice pleading
or impose heightened pleading requirements for all federal claims[, and] [i]nstead, . . . require[d] more concrete
allegations only in those instances in which the complaint, on its face, does not otherwise set forth a plausible claim for
relief.” Weisbarth v. Geauga Park Dist.,
499 F.3d 538, 542 (6th Cir. 2007) (citing Iqbal v. Hasty,
490 F.3d 143, 157-58
(2d Cir. 2007)).
Nos. 06-2168/2508/2510; 07-1504 Sensations Inc., et al. v. City of Grand Page 4
Rapids, MI., et al.
B. Did the District Court Err by Converting a Rule 12(c) Motion into a Rule 56 Motion?
Plaintiffs-Appellants argue that by considering the legislative record attached to Defendants’
motion the district judge improperly converted a motion for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c) into a motion for summary judgment pursuant to Federal Rule
of Civil Procedure 56. Federal Rule of Civil Procedure 10(c) provides that “[a] copy of a written
instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”2 We have
previously held that a district court converts a Rule 12(c) motion into a Rule 56 motion when the
district judge merely “fail[s] to exclude presented outside evidence.” Max Arnold & Sons, LLC v.
W.L. Hailey & Co., 452 F.3d 494, 503 (6th Cir. 2006). Thus the question before us is whether the
legislative record comes within the scope of Rule 10(c) or is “outside evidence” under Max Arnold.
In the instant case, we hold that the district court did not convert Defendants’ Rule 12(c)
motion into a Rule 56 motion. Certainly, the district judge accepted as evidence of secondary effects
the legislative record, which Defendants attached to their motion for judgment on the pleadings.
Were the legislative record to constitute a document outside the pleadings, then the district judge
would have converted a motion for judgment on the pleadings into a motion for3 summary judgment.
The legislative record did not constitute such an external document, however. Sensations attached
a copy of the Ordinance to its complaint as Exhibit A; under Rule 10(c), therefore, we treat the
Ordinance as part of the pleadings. The Ordinance, in turn, states that “[t]he City hereby adopts and
incorporates herein its stated findings and legislative record related to the adverse secondary effects
of sexually oriented businesses, including the judicial opinions and reports related to such secondary
effects.” J.A. at 43 (Ordinance at § 1(a)). By attaching the Ordinance to the complaint, therefore,
Sensations also incorporated the legislative record into the pleadings. Because Sensations had notice
via its own actions that the legislative record formed part of the pleadings, the district judge acted
fairly when he considered the Ordinance and legislative record as part of the pleadings, while
excluding outside evidence including the Linz affidavit. The district judge in this case appropriately
excluded additional affidavits presented by both sides that went beyond the legislative record;
therefore, he did not convert Defendants’ motion for judgment on the pleadings into a motion for
summary judgment.
C. Did the District Court Err in Denying Plaintiffs-Appellants’ Request to Conduct
Discovery?
The crux of this case is whether Plaintiffs-Appellants were entitled to discovery that might
have yielded evidence enabling them to disprove negative secondary effects at the local level. In
Deja Vu of Nashville, Inc. v. Metropolitan Government of Nashville, 466 F.3d 391, 398 (6th Cir.
2
This language became effective December 1, 2007. The new language represents a stylistic change from the
former language of Fed. R. Civ. P. 10(c), which provided that: “[a] copy of any written instrument which is an exhibit
to a pleading is a part thereof for all purposes.” We may apply the new language to proceedings pending as of the
effective date insofar as the application is practicable and just. 28 U.S.C. § 2074(a).
3
Little Red Barn argues that the affidavits and articles contained within the legislative record are not properly
considered part of that record because Grand Rapids City Council members received the materials on the day they
adopted Ordinance 23 and could not have discussed the materials prior to passage of the Ordinance. It is not within our
province, however, to speculate as to how quickly or carefully the Council members might have read the documents that
comprise the legislative record. Little Red Barn is correct to point out that Article 37 in the record was published in May
2006, one month after the passage of the Ordinance. At oral argument, counsel for Grand Rapids clarified that the City
Council obtained an advance copy of the article, which it included in the legislative record. Counsel for Little Red Barn
did not dispute this explanation, which satisfies any concerns we might have had regarding whether the City Council
actually could have relied on the evidence it included in the legislative record.
Nos. 06-2168/2508/2510; 07-1504 Sensations Inc., et al. v. City of Grand Page 5
Rapids, MI., et al.
2006) (Deja Vu of Nashville III)4, cert. denied, --- U.S. ---, 127 S. Ct. 2088 (2007), we held that the
plaintiff adult-entertainment business Deja Vu was “not entitled to discovery regarding secondary
effects.” Plaintiffs-Appellants argue that Deja Vu of Nashville III can be distinguished from the
instant case on the basis of its procedural history; that the critical statement regarding discovery
amounted to dicta; and, if not, that the Sixth Circuit’s decision violates the Supreme Court’s decision
in City of Los Angeles v. Alameda Books, Inc.,
535 U.S. 425 (2002).5
We find Plaintiffs-Appellants’ arguments unconvincing and conclude that Deja Vu of
Nashville III forecloses their argument regarding entitlement to discovery. In neither Deja Vu of
Nashville III nor the instant case did plaintiffs receive a trial on the merits. See Deja Vu of Nashville
III, 466 F.3d at 394, 398 (noting that in Deja Vu a trial on the merits was unnecessary because there
were no unresolved issues of fact and that plaintiff was not entitled to discovery regarding localized
secondary effects). Moreover, the Deja Vu litigation involved a magistrate judge’s order insulating
the defendant government from discovery regarding secondary effects, an order which the district
court never reviewed.
Id. at 398. Thus, the procedural history of the Deja Vu case is analogous to
the current controversy, where the district court entered judgment on the pleadings without allowing
Plaintiffs-Appellants to conduct discovery. In addition, the opinion in Deja Vu of Nashville III did
not present its conclusion regarding discovery as dicta but rather stated it was “fundamental[]” to
the holding of the case.
Id. Plaintiffs-Appellants’ third contention—that Deja Vu of Nashville III
is incorrect under Alameda Books—is similarly unpersuasive. As the district court correctly
determined, Deja Vu of Nashville III is a binding interpretation of Alameda Books. Sensations, Inc.
v. City of Grand Rapids, No. 1:06-CV-300, No. 4:06-CV-60, 2006 U.S. Dist. Lexis 77159, at *25-
*26 (W.D. Mich. Oct. 23, 2006). Because this panel cannot overturn the decision of a prior Sixth
Circuit panel, we must conclude that the district court did not err in denying Plaintiffs-Appellants
the opportunity for further discovery before entering judgment on the pleadings. See Salmi v. Sec’y
of Health & Human Servs.,
774 F.2d 685, 689 (6th Cir. 1985); 6th Cir. R. 206(c) (a later panel
cannot overrule a prior panel’s published opinion).
D. Did the District Court Err in Determining that the Ordinance Satisfies the O’Brien test
Applicable to the Regulation of Sexually Oriented Businesses?
Nude dancing is a form of expressive conduct protected by the First Amendment. Deja Vu
of Nashville, Inc. v. Metro. Gov’t of Nashville (Deja Vu of Nashville I), 274 F.3d 377, 391 (6th Cir.),
cert. denied,
535 U.S. 1073 (2002). Nevertheless, in accordance with Supreme Court precedent, the
Sixth Circuit treats laws such as the Ordinance, which regulate adult-entertainment businesses, as
if they were content neutral. Richland Bookmart, Inc. v. Nichols,
137 F.3d 435, 438-39 (6th Cir.
1998). We have applied the test first set forth in United States v. O’Brien,
391 U.S. 367 (1968), to
regulations on the operation of sexually oriented businesses. See, e.g., Deja Vu of Cincinnati, L.L.C.
v. Union Twp. Bd. of Trs.,
411 F.3d 777, 789-90 (6th Cir. 2005) (en banc) (applying the O’Brien test
4
The district court opinion refers to this case as Deja Vu II. We have labeled it Deja Vu of Nashville III because
of the existence of an intervening decision between it and Deja Vu of Nashville, Inc. v. Metropolitan Government of
Nashville (Deja Vu of Nashville I), 274 F.3d 377 (6th Cir.), cert. denied,
535 U.S. 1073 (2002). The intervening
decision, which the Sixth Circuit in Deja Vu of Nashville III refers to as Deja Vu II, was Deja Vu of Nashville, Inc. v.
Metropolitan Government of Nashville,
421 F.3d 417 (6th Cir. 2005), cert. denied, --- U.S. ---,
126 S. Ct. 2916 (2006).
5
In Alameda Books, a plurality (rather than a majority) of the Supreme Court set forth a burden-shifting
framework governing the evidentiary standard in secondary-effects cases. The framework involves three steps: (1) the
city must put forth evidence of the nexus between the challenged regulation and the reduction of secondary effects; (2)
plaintiffs may “cast direct doubt on this rationale, either by demonstrating that the municipality’s evidence does not
support its rationale or by furnishing evidence that disputes the municipality’s factual findings”; and (3) “[i]f plaintiffs
succeed in casting doubt on a municipality’s rationale in either manner, the burden shifts back to the municipality to
supplement the record with evidence renewing support for a theory that justifies its ordinance.” Id., 535 U.S. at 438-39.
Nos. 06-2168/2508/2510; 07-1504 Sensations Inc., et al. v. City of Grand Page 6
Rapids, MI., et al.
to an hours-of-operation provision); Deja Vu of Nashville I, 274 F.3d at 396 (applying the O’Brien
test to a regulation requiring a specified buffer zone between the performer and audience); DLS, Inc.
v. City of Chattanooga,
107 F.3d 403, 410 (6th Cir. 1997) (same). J.A. at 43-44 (Ordinance at
§ (1)).
The O’Brien test requires us to determine whether Grand Rapids enacted the Ordinance “(1)
within its constitutional power, (2) to further a substantial governmental interest that is (3) unrelated
to the suppression of speech, and whether (4) the provisions pose only an ‘incidental burden on First
Amendment freedoms that is no greater than is essential to further the government interest.’” Deja
Vu of Nashville I, 274 F.3d at 393. First, Plaintiffs-Appellants argue that Grand Rapids did not have
the authority to pass the Ordinance because the city did not show a nexus between the regulations
and a reduction in secondary effects. But arguing that the evidentiary basis is weak avoids the
question we must decide, which is whether the city enacted the Ordinance within its constitutional
powers. We have previously held that regulating sexually oriented businesses to reduce negative
secondary effects lies within the scope of a city’s authority under the O’Brien test.
Id. at 393-94;
see also DLS,
Inc., 107 F.3d at 410. Second, the secondary effects which Grand Rapids desires to
reduce are “undeniably important” government interests. Deja Vu of
Cincinnati, 411 F.3d at 790
(quoting City of Erie v. Pap’s A.M.,
529 U.S. 277, 296, 300 (2000) (plurality opinion)). Third,
Grand Rapids aimed at suppressing the secondary effects associated with sexually oriented
businesses and not the speech communicated by those businesses. J.A. at 43-44 (Ordinance at § 1).
Finally, the district court offered sound reasons why the Ordinance is narrowly tailored to
the reduction of secondary effects. The prohibition of full nudity has been viewed as having only
a de minimis effect on the expressive character of erotic dancing. See City of Erie, 529 U.S. at 301;
Barnes v. Glen Theatre, Inc.,
501 U.S. 560, 572 (1991) (plurality opinion). A plurality of the
Supreme Court in Pap’s A.M. rejected the argument that a ban on total nudity “enacts a complete
ban on expression” and instead found that the ban “ha[d] the effect of limiting one particular means
of expressing the kind of erotic message being
disseminated.” 529 U.S. at 292-93. In addition, the
Sixth Circuit has upheld every one of the other regulatory provisions contained in the Ordinance:
the six-foot distance requirement between performer and audience members and the no-touching
rule; the open-booth requirement; and the limitation on hours of operation. See Deja Vu of
Cincinnati, 411 F.3d at 789-91 (upholding an hours-of-operation limitation on adult businesses);
Deja Vu of Nashville
I, 274 F.3d at 396 (upholding a three-foot buffer/no-touching regulation);
Richland
Bookmart, 137 F.3d at 440-41 (upholding limitations on the hours and days that an adult-
entertainment business could operate); DLS,
Inc., 107 F.3d at 408-13 (upholding a six-foot
buffer/no-touching regulation); Bamon Corp. v. City of Dayton,
923 F.2d 470, 474 (6th Cir. 1991)
(upholding an open-booth requirement). Given the overwhelming weight of precedent against their
case, we asked Plaintiffs-Appellants at oral argument which specific provisions of the Ordinance
allegedly violated the First Amendment. Plaintiffs-Appellants could offer no answer except to argue
that the sum of the Ordinance’s parts placed such a significant burden on speech as to violate the
First Amendment, even though each individual provision is constitutional. This argument is
unavailing.
Plaintiffs-Appellants also argue that cameras in booths would be a less-restrictive means of
reducing illicit sexual activities and that a buffer requirement is not necessary for peep shows. The
Supreme Court, however, has found that a regulation narrowly tailored to achieve a government
interest “need not be the least restrictive or least intrusive means of doing so.” Ward v. Rock Against
Nos. 06-2168/2508/2510; 07-1504 Sensations Inc., et al. v. City of Grand Page 7
Rapids, MI., et al.
Racism, 491 U.S. 781, 798 (1989).6 We therefore affirm the decision of the district court that the
Ordinance satisfies the O’Brien test and is thus constitutional.
E. Did the District Court Err in Concluding that the Ordinance does Not Violate the Rights
to Free Association or Due Process, and is Not Unconstitutionally Overbroad or Vague?
We also affirm the district court’s well-reasoned explanation why the Ordinance does not
violate Plaintiffs-Appellants’ right to freedom of association and is neither overbroad, nor vague,
nor a violation of due process. Plaintiffs-Appellants’ freedom-of-association claim is foreclosed by
our prior holding that a mandatory buffer between performer and audience and a no-touching rule
do not violate the right to free association. Deja Vu of Nashville I, at 396-97. In support of their
overbreadth claim, Plaintiffs-Appellants cite Odle v. Decatur County, 421 F.3d 386, 399 (6th Cir.
2005), in which the Sixth Circuit found overbroad a general public-nudity ordinance. But a
regulation banning total nudity in sexually oriented businesses is far narrower than a similar
regulation applicable to the general public. The overbreadth doctrine is, moreover, “manifestly,
strong medicine” and should be employed “only as a last resort.” Broadrick v. Oklahoma,
413 U.S.
601, 613 (1973). In the instant case, there does not exist “a realistic danger that the statute itself will
significantly compromise recognized First Amendment protections of parties not before the Court.”
Members of City Council v. Taxpayers for Vincent,
466 U.S. 789, 801 (1984). Plaintiffs-Appellants’
claim that the Ordinance is vague fails because the Ordinance’s definition of semi-nudity, which
clearly states what parts of the female breast may be exposed, provides adequate notice, establishes
standards that may guide enforcement, and does not inhibit First Amendment freedoms. See Deja
Vu of
Cincinnati, 411 F.3d at 798. Finally, Plaintiffs-Appellants do not challenge the reasoning of
the district court regarding why the Ordinance is not an unconstitutional taking and does not violate
procedural or substantive due process.7
F. Did the District Court Abuse Its Discretion by Awarding Attorney Fees to Non-City
Defendants-Appellees?
By affirming the district court’s conclusion that the Ordinance is constitutional, we also
necessarily affirm the dismissal of claims against both Grand Rapids and Non-City Defendants-
Appellees. Despite dismissing the claims against Non-City Defendants-Appellees, we conclude that
the District Court abused its discretion by awarding attorney fees to Non-City Defendants-Appellees
and, therefore, we reverse the award of these fees.
In reaching this conclusion, we acknowledge that the question of whether the district court
abused its discretion by awarding attorney fees is a close one. The difficulty in resolving the fees
issue lies primarily in the fact that even had we found the Ordinance unconstitutional, we might well
have dismissed the § 1983 claims against Non-City Defendants-Appellees. We would be required
to dismiss these claims if we found that the actions of these private citizens and citizens’ groups are
not “‘fairly attributable to the state.’” Chapman v. Higbee Co., 319 F.3d 825, 833 (6th Cir. 2003)
6
This statement of the standard for a narrowly tailored regulation applies both to cases analyzed under O’Brien
and time, place, or manner regulations. Ward, 491 U.S. at 798 (“[W]e have held that the O’Brien test ‘in the last analysis
is little, if any, different from the standard applied to time, place, or manner restrictions.’” (quotation omitted)).
7
Plaintiffs-Appellants argue only that Grand Rapids needed to consider more evidence regarding secondary
effects, citing Flanigan’s Enterprises, Inc. v. Fulton County, 242 F.3d 976 (11th Cir. 2001), cert. denied,
536 U.S. 904
(2002). However, Flanigan’s Enterprises actually supports a conclusion that the passage of the Ordinance did not
violate due process. In that case, the Eleventh Circuit held that although a county ordinance failed the O’Brien test
because the county had not relied on evidence relevant to asserted secondary effects, the passage of the ordinance had
not violated plaintiffs’ procedural due process rights.
Id. at 987-89.
Nos. 06-2168/2508/2510; 07-1504 Sensations Inc., et al. v. City of Grand Page 8
Rapids, MI., et al.
(en banc) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 947 (1982)), cert. denied,
542 U.S.
945 (2004).
On appeal, Little Red Barn contends that a symbiotic relationship existed between the city
of Grand Rapids and the citizens who advocated for the Ordinance and who offered and provided
funds to defend it against litigation. As we have observed, “The Supreme Court has developed three
tests for determining the existence of state action in a particular case: (1) the public function test,
(2) the state compulsion test, and (3) the symbiotic relationship or nexus test.” Id. Little Red Barn
argues that the citizens’ actions fell within the scope of the third test because the private citizens
usurped the government’s obligation to propose legislation as well as the government’s power to tax
and raise money. In Chapman, we held that “[u]nder the symbiotic or nexus test, a section 1983
claimant must demonstrate that there is a sufficiently close nexus between the government and the
private party’s conduct so that the conduct may be fairly attributed to the state itself.”
Id. at 834.
The inquiry proceeds on a case-by-case basis and is fact-specific.
Id.
As a categorical matter, the cooperative relationship between Grand Rapids and the Non-City
Defendants-Appellees that arose solely as a result of the citizens’ non-monetary mobilization in
support of the Ordinance could not rise to the level of a “symbiotic relationship” as defined in
Chapman. Merely petitioning a local government to pass specific legislation is the kind of political
speech at the heart of First Amendment protection. Furthermore, if advocacy for a piece of
legislation established a symbiotic relationship between citizens and the state, then citizen activists
would automatically be vulnerable to § 1983 suits arising from constitutionally unsound legislation
they supported. This would seriously chill citizen advocacy and burden our democracy, a
cornerstone of which is citizen engagement in the legislative process.
The more difficult question is whether in offering to pay for the defense of the Ordinance,
and indeed here in actually making substantial payments, Non-City Defendants-Appellees created
a symbiotic relationship to the state. We conclude that the offer by private citizens to fund the
defense of an ordinance, and acceptance by a local governing body, does not necessarily establish
a symbiotic relationship for purposes of a § 1983 claim.8 We caution, however, that the admonition
in Chapman to evaluate the existence or absence of symbiotic relationship on a case-by-case and
factually specific basis remains true in the context of an offer by private citizens to fund the defense
of legislation and an acceptance by a governmental entity. In the instant case, because we found the
Ordinance constitutional we do not need definitively to resolve the question whether by funding the
defense of the Ordinance, Non-City Defendants-Appellees created a symbiotic relationship with
Grand Rapids.
We find it important, however, as a precursor to our discussion of whether the district court
erred in awarding attorney fees, to show that arguments exist on both sides of the issue respecting
the existence of a symbiotic relationship. On the one hand, the idea of citizens being able,
effectively, to buy particular ordinances and statutes in service of their private interests, or their own
unique vision of the public interest, offends our national ideal of legislators serving the public as a
whole. On the other hand, as one judge suggested at oral argument, the reality of our political
process already falls far from that ideal. Non-City Defendants-Appellees’ offer of funds does not
differ significantly from the offer of campaign donations routinely made by lobbyists favoring
certain pieces of legislation and opposing others. Furthermore, the Supreme Court has held that
government funding of private entities via contracts does not create a symbiotic relationship.
8
At oral argument, counsel for Non-City Defendants-Appellees stated that they would not dispute evidence
submitted by Little Red Barn demonstrating that Grand Rapids had indeed accepted the offer made by Non-City
Defendants-Appellees to cover the expense of defending the Ordinance.
Nos. 06-2168/2508/2510; 07-1504 Sensations Inc., et al. v. City of Grand Page 9
Rapids, MI., et al.
Rendell-Baker v. Kohn, 457 U.S. 830, 843 (1982) (“Here the school’s fiscal relationship with the
State is not different from that of many contractors performing services for the government. No
symbiotic relationship . . . exists here.”) As a corollary, private funding offered in defense of a
government ordinance would similarly not create a symbiotic relationship. Although Non-City
Defendants-Appellees’ offer of funding may have tipped the balance toward passage of the
Ordinance, ultimately members of the Grand Rapids City Council and not Non-City Defendants-
Appellees made the decision to pass the Ordinance. In the circumstances of this case, therefore,
even had we found the Ordinance unconstitutional, we might well have dismissed the claims against
Non-City Defendants-Appellees.
Nevertheless, we reverse the district court’s award of attorney fees to Non-City Defendants-
Appellees. “We review a district court’s award of attorneys fees under 42 U.S.C. § 1988 based on
an abuse of discretion standard.” Wilson-Simmons v. Lake County Sheriff’s Dep’t, 207 F.3d 818,
823 (6th Cir. 2000). “‘[A] prevailing defendant should only recover upon a finding by the district
court that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not
brought in subjective bad faith.’” Wolfe v. Perry,
412 F.3d 707, 720 (6th Cir. 2005) (quoting Wayne
v. Village of Sebring,
36 F.3d 517, 530 (6th Cir. 1994), cert. denied,
514 U.S. 1127 (1995)). “In
applying these criteria, it is important that a district court resist the understandable temptation to
engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his
action must have been unreasonable or without foundation.” Christiansburg Garment Co.v. Equal
Employment Opportunity Comm’n,
434 U.S. 412, 421-22 (1978). We conclude that the district court
abused its discretion because Little Red Barn’s claim against Non-City Defendant-Appellees was
neither frivolous nor unreasonable.
Little Red Barn sought not only injunctive relief from Grand Rapids but also other forms of
relief from Non-City Defendants-Appellees. Most significantly, Little Red Barn sought monetary
damages from Non-City Defendants-Appellees to compensate for “emotional and financial injury.”
J.A. at 69-70 (LRB Compl. at ¶ 56). In addition, Little Red Barn sought declaratory relief that the
“City’s relationship with the remaining defendants is constitutionally impermissible.” J.A. at 68
(LRB Compl. at ¶ 50). Such a declaration would apply to both Grand Rapids and Non-City
Defendants-Appellees and would deter both the City Council and private citizens from entering into
a similar relationship in the future.
When Little Red Barn brought suit, neither the Supreme Court nor the Sixth Circuit had
addressed the question of whether private citizens’ offer of funding to defend a statute, were it to
pass, creates a symbiotic relationship with the state. The Sixth Circuit affirms awards of attorney
fees only when plaintiffs relitigated already-settled legal matters, and we reverse the award of
attorney fees when issues of law remained unresolved or when a “plaintiff ha[d] an arguable basis
for pursuing his or her claim.” Smith v. Smythe-Cramer Co., 754 F.2d 180, 183-84 (6th Cir.), cert.
denied,
473 U.S. 906 (1985). Therefore, even if we were to conclude that a financial relationship,
such as the one between Grand Rapids and Non-City Defendants-Appellees, could never create a
symbiotic relationship for purposes of § 1983 claims, we must reverse the award of attorney fees
because Little Red Barn could not have known of this hypothetical legal conclusion in advance.
Penalizing Little Red Barn for bringing a claim, when Little Red Barn was not on notice that such
a claim could not succeed in district court, would be inequitable. “[W]hen a district court awards
counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law. . . . A
successful defendant seeking counsel fees . . . must rely on quite different equitable considerations.”
Christiansburg, 434 U.S. at 418-19. For these reasons, we reverse the district court’s award of
attorney fees against Little Red Barn.
Nos. 06-2168/2508/2510; 07-1504 Sensations Inc., et al. v. City of Grand Page 10
Rapids, MI., et al.
III. CONCLUSION
For the reasons explained above, we AFFIRM the district court’s denial of Plaintiffs-
Appellants’ motion for a preliminary injunction as well as the district court’s grant of Defendants’
motion for judgment on the pleadings for both Grand Rapids and Non-City Defendants-Appellees.
However, we REVERSE the district court’s award of attorney fees to Non-City Defendants-
Appellees.
