Monday, June 07, 2004

Supremes: "normal" judicial review may be OK for adult licensing schemes

The US SCt release this case from Littleton, CO, that involved a facial challenge to an "adult materials" licensing scheme on the basis that it did not make adequate provision for a prompt judicial determination.

While the City argued that all that was required was a prompt avenue for judicial review, the Court held that prompt judicial determination is critical. However, it also found that the standard review procedures available were sufficient in the case of that ordinance, at least to survive a facial challenge. Factors supporting the decision included:
1) standard rules of procedure covered the issue
2) the standards in the ordinance were objective and therefore appropriate for easy judicial determination
3) there was no reason to believe that the courts would not recognize the constitutional need for a prompt determination and deport themselves appropriately; and
4) there was always the avenue of a 1983 suit in federal court should an as-applied challenged require it.


Yes, the US Supreme Court held that the federal court supervision of the state courts was available and a supporting factor in why specific legislation covering state court review might not be required.

And the Court also seemed to be saying that discretion in an ordinance (at least where the 1st amendment is implicated) would demand strengthened provisions for judicial review. While this is 1st amendment via 14th and not the 14th itself, one must wonder whether the court would buy the wholesale extension of the post-Roth cases like McKinney to traditional as opposed to new property. If the Supremes start recognizing that discretion in local regulatory ordinances is a key source of discriminatory enforcement, I think we'll see movement on this front.

Finally - one has to wonder whether the Supremes would have analyzed the review question the same way if the case came from Florida, where local administrative decisions can only be reviewed by cert (because of the Legislature's continuing failure to live up to its Article V implementation duties and provide for the review of local administrative decisions by general law) and cert is "kinda discretionary" in terms of standards, etc - AND there's no general way for the proper appellate courts to supervise the cert jurisdiction of the circuit courts. Think about it: today, if a circuit court judge wanted to sit on a cert petition for 2 years, there's no procedural way to force her to disgorge a decision. Some courts even use a "miscarriage of justice" standard (created more or less from whole cloth) to dismiss petitions that may be well founded in the law. That is, the line of cases (that historically applied to lower courts, not lower administrative tribunals) that held that the courts wouldn't use cert to correct "mere legal error" in the proceedings or outcomes argues strongly against applying this decision to them.

Happy litigating, everyone!

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