Abilene Retail 30, Inc. v. Board of Commissioners , 508 F.3d 958 ( 2007 )

GORSUCH, J.,

joined by KELLY, J.,

dissenting from denial of rehearing en banc.

While the panel grappled admirably with this difficult and consequential case, I respectfully submit it warranted plenary review given its legal and practical significance.

Legally, the significance of this case is illustrated by the fact that it opens not one, but two, splits with our sister circuits on important questions of law concerning the amount of judicial deference due legislative judgments. First, the panel opinion sets a new and much higher burden for municipalities under Alameda Books Step 1 than has any other circuit court, and in the process creates a circuit split with the Fifth Circuit. See Concurrence Part I; Maj. Op., 492 F.3d at 1175 n. 10 (discussing LLEH, Inc. v. Wichita County, 289 F.3d 358 (5th Cir.2002)).¹ Second, unlike our sister circuits which afford substantially more judicial deference to legislative judgments, the concurrence’s treatment of Alameda Books Steps 2 and 3 effectively allows a jury to “veto” legislation whenever it concludes, by á preponderance of the evidence (that is, > 50.0001%), that the legislature’s chosen path is erroneous. Compare Concurrence Parts II & III with Daytona Grand, Inc. v. City of Daytona Beach, Fla., 490 F.3d 860, 881 (11th Cir.2007), G.M. Enters., Inc. v. Town of St. Joseph, Wisc., 350 F.3d 631, 639 (7th Cir.2003), Gammoh v. City of La Habra, 395 F.3d 1114, 1126 (9th Cir.2005), and Fantasy Ranch, 459 F.3d at 561.² Such a holding also arguably renders Alameda Books Step 1 superfluous (why bother asking if the legislature’s evidence was merely rationally related to its enactment when a jury can reject that enactment with a finding that a preponderance of the evidence does not support it?).³

Factually, this case is of great practical importance to the large numbers of rural counties and municipalities within our reach. Rural jurisdictions within the Tenth Circuit will be unable to rely on existing empirical “urban” studies to regulate the secondary effects of adult businesses and will be forced to meet new, unique, and significantly higher legal burdens not imposed on their counterparts in other areas of the country. See Maj. Op., 492 F.3d at 1175 (“To hold that legislators may reasonably rely on those [urban] studies to regulate a single adult bookstore, located on a highway pullout far from any business or residential area within the County, would be to abdicate our ‘independent judgment’ entirely.”).⁴

Though I can hardly say how I would have voted on the ultimate outcome of this case — for example, the county would still have had to show that its ordinance, even if a justified response, was narrowly tailored at City of Renton Step 3 — all of these reasons suggest to me that this case is of sufficient legal and practical significance that its resolution merited the attention of the full court.

1 . There is no question that LLEH remains good law in the Fifth Circuit after Alameda Books. See Fantasy Ranch Inc. v. City of Arlington, Tex., 459 F.3d 546, 562 (5th Cir.2006). If anything, in Fantasy Ranch the Fifth Circuit went further than it had in LLEH in upholding a municipality’s purely predictive judgment about potential future secondary effects at Step 1; in Fantasy Ranch, the municipality had no pre-enactment empirical evidence supporting the existence of secondary effects and a post-enactment records search revealed no arrests involving the city’s targeted secondary effects. Id. at 559-61.

2 . The facts of these cases are beside the point. The conflict concerns a pure question of law. Our sister circuits evaluate any evidence proffered at Steps 2 and 3 under a legal test far more deferential than the legal test set forth by our panel. Unlike the concurrence, our sister circuits will not allow factfinders to "reweigh the evidence considered by a legislative body” or "substitute [their] judgment in regards to whether a regulation will best serve a community”; so long as a legislature considered evidence "reasonably believed to be relevant to the problem addressed,” courts in those circuits will not "vitiate the result reached in the ... legislative process.” G.M. Enters., 350 F.3d at 639-40; see also Daytona Grand, 490 F.3d at 881; Gammoh, 395 F.3d at 1126; Fantasy Ranch, 459 F.3d at 561. Even if the facts were (somehow) relevant to a split on a purely legal question, the presence or absence of "local” evidence of extant empirical effects is not dispositive under settled Supreme Court precedent, see City of Renton, 475 U.S. at 51-52, 106 S.Ct. 925, a point the panel itself expressly acknowledges. See Maj. Op., 492 F.3d at 1174. Neither can it be said that the evidence before our court was unique in this respect. See, e.g., Fantasy Ranch, 459 F.3d at 559 (finding sufficient evidence even in the face of no pre-enactment empirical evidence and post-enactment empirical data indicating no secondary effects).

3 . The holding in this case indisputably rests in part on the concurrence. All three panel members joined the concurrence, giving it no less force than if it had been included in the majority opinion itself. See Woods v. Interstate Realty Co., 337 U.S. 535, 537, 69 S.Ct. 1235, 93 L.Ed. 1524 (1949) ("[Wjhere a decision rests on two or more grounds, none can be relegated to the category of obiter dictum."). Moreover, the panel remanded this matter for trial, and the jury will be instructed on the concurrence’s understanding of Alame-da Boolcs Steps 2 and 3. Every future secondary effects dispute in this circuit likewise will be measured against the concurrence’s standards for Steps 2 and 3.

4 . It does not suffice to suggest that the county may rely on evidence local police departments gather after a business has opened. We have specifically said that a municipality "need not wait for sexually oriented businesses to locate within its boundaries, depress property values, increase crime, and spread sexually transmitted diseases before it regulates those businesses.” Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683, 688 (10th Cir.1998); Maj. Op., 492 F.3d at 1186 n. 6. Instead, municipalities “may rely on the experience of other cities to determine whether the harms presented by sexually oriented businesses are real and should be regulated.” Z.J. Gifts, 136 F.3d at 688. In this case, moreover, the legislature did analogize between the documented experience of urban areas and what it anticipated would occur in its jurisdiction; indeed, such an analogy formed the very basis of its decision. See, e.g., Dickinson Cty. Ordinance No. 121304A (citing urban studies and basing its decision on the anticipation of similar effects in Dickinson County). The problem was that the panel, applying far less deferential standards than our sister circuits, rejected the legislature's analogy: "All of the studies relied upon by the Board examine the secondary effects of sexually oriented businesses located in urban environments; none examine[s] businesses situated in an entirely rural area.” Maj. Op., 492 F.3d at 1175.