City News and Novelty v. City of Waukesha, WI (01/17/2001)
City News and Novelty v. City of Waukesha, WI (01/17/2001)
By: Erik Gabrielson and Sean Neumann, Medill News Service
Questions presented
Is a licensing renewal procedure that acts as prior restraint on speech required to contain explicit language that prevents injury while a municipality considers the application for a license?
Brief
On Nov. 15, 1995, City News and Novelty, an adult-oriented bookstore and video parlor in Waukesha, Wis., applied for renewal of its required annual operating license. City News sells and rents explicit books, magazines and videotapes and provides viewing booths where people can watch videotapes for a fee.
Under Waukeshas municipal code, an application to renew a license must be filed 60 days before the license expires, and the city must notify the applicant within 21 days whether their application has been granted or denied.
On Dec. 19, 1995, the Waukesha common council denied City Newss application citing code violations that included permitting minors to loiter on the premises, failing to maintain an unobstructed view of video viewing booths and allowing patrons to engage in sexual conduct inside the booths.
After City News requested that the common council review its decision, the council affirmed its ruling. City News sought administrative review, and on June 28, 1996, the Waukesha Administrative Review Appeals Board upheld the common councils decision.
In response, City News filed suit in Waukesha County Circuit Court asking for judicial review of the Appeals Boards decision. On April 2, 1997, the circuit court denied City Newss appeal.
In the Wisconsin Appeals Court, City News argued that the Waukesha common councils ordinance was unconstitutional because it failed to provide explicit standards for renewing an operating license.
Specifically, City News contended that the ordinance does not provide explicit standards for license renewal; prescribe mandatory time limits for the application process; require preservation of the status quo pending judicial review of license denial or revocation; guarantee ""prompt judicial review"" to protect against erroneous denial of a license; or limit the time period in which the council must respond to a public hearing protesting a council action.
On Oct. 20, 1999, the Wisconsin Appeals Court upheld the constitutionality of all facets of the licensing ordinance in Waukesha save one: the time limit required for the council to respond to a public hearing.
The Appeals Court stated that while an applicant may receive a public hearing within 10 days after a council action, the common council is given no direction as to when it must respond or take action on the hearing. Even so, the court decided not to strike the entire ordinance.
On June 19, 2000, the U.S. Supreme Court granted certiorari in the case and limited review to question 3 as presented by City News and Novelty's petition.
On Jan. 17, 2001, a unanimous Court dismissed the writ, finding that the case was moot. ""It is undisputed that City News has ceased to operate as an adult business and no longer seeks to renew its license,"" wrote Justice Ruth Bader Ginsburg.
In letters sent to Waukesha two months after it petition the Court for review, City News advised the town that that it would withdraw its renewal application and close its business once the town granted a license to B.J.B., Inc., a larger and more modern business.
The dismissal left the judgment of the Wisconsin court undisturbed.