Abilene Retail 30, Inc. v. BOARD OF COM'RS. DICKINSON CTY.

Case: 05-3473 Document: 010157581 Date Filed: 10/25/2007 Page: 1

UNITED STATES CO URT O F APPEALS

TENTH CIRCUIT

ABILENE RETAIL #30, IN C.,

Plaintiff–Appellant,

v. No. 05-3473
(D.C. No. 04-CV -2330-JW L)
B OA RD O F C OM M ISSIO N ER S OF (D . Kan.)
DICK INSON CO UNTY , KANSAS;
K EITH H O FFM A N ,

Defendants–Appellees.

OR DER

Filed October 25, 2007

Before T AC HA , Chief Judge, K ELLY , H EN RY , BR ISC OE, LU CER O,
M U R PH Y, H AR TZ, O ’BR IEN , M C CO NN ELL, TY M K O VIC H, G O RSU CH ,
and H O LM ES, Circuit Judges.

The appellees’ petition for rehearing is denied by the panel that rendered

the decision in this case.

The suggestion for rehearing en banc was transmitted to all judges of the

court who are in regular active service. A poll was requested and a majority of

the active judges voted to deny rehearing en banc. Chief Judge Tacha and Judges

Kelly, O’Brien, Tymkovich and Gorsuch voted to grant rehearing. Judge Gorsuch

filed a dissent from the denial of rehearing en banc, and he was joined in this
 Case: 05-3473 Document: 010157581 Date Filed: 10/25/2007 Page: 2

dissent by Judge Kelly. Judge Lucero filed a response to the dissent. The dissent

and response are attached and incorporated in this order.

ENTERED FOR THE COURT

ELISABETH A. SHUM AKER, Clerk

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 Case: 05-3473 Document: 010157581 Date Filed: 10/25/2007 Page: 3

05-3473, Abilene Retail #30, Inc. v. Bd. of Comm’rs of Dickinson County, Kan.

G O R SU CH, J., joined by KELLY, J., dissenting from denial of rehearing en
banc.

W hile 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

Alam eda Books Step 1 than has any other circuit court, and in the process creates

a circuit split w ith the Fifth Circuit. See Concurrence Part I; M aj. 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

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.
 Case: 05-3473 Document: 010157581 Date Filed: 10/25/2007 Page: 4

whenever it concludes, by a 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), Gam moh v. City of La H abra, 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

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 “re-
weigh 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 em pirical effects
is not dispositive under settled Supreme Court precedent, see City of Renton, 475
U.S. at 51-52, a point the panel itself expressly acknowledges. See M aj. 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 em pirical evidence and post-
enactment empirical data indicating no secondary effects).
3
The holding in this case indisputably rests in part on the concurrence.
(continued...)

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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 M aj. 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

3
(...continued)
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 (1949) (“[W ]here a decision rests on two or more grounds,
none can be relegated to the category of obiter dictum.”). M oreover, the panel
remanded this matter for trial, and the jury will be instructed on the concurrence’s
understanding of Alameda Books Steps 2 and 3. Every future secondary effects
dispute in this circuit likew ise 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. W e 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); M aj. 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
(continued...)

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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.

4
(...continued)
(citing urban studies and basing its decision on the anticipation of similar effects
in D ickinson 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.” M aj. Op., 492 F.3d at 1175.

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05-3473, Abilene Retail #30, Inc. v. Bd. of Com m’rs

LUCERO , J., responding to the dissent from denial of rehearing en banc.

I write briefly to respond to my dissenting colleagues’ arguments that en

banc review was appropriate in this case. In doing so, I note that a potential

circuit split, in and of itself, is not a reason to grant en banc review under our

local rules. See 10th Cir. R. 35.1(A) (“En banc review is an extraordinary

procedure intended to focus the entire court on an issue of exceptional public

importance or on a panel decision that conflicts with a decision of the United

States Supreme Court or of this court” (emphasis added)).

Regardless, the panel opinion does not create a circuit split with the Fifth

Circuit decision in LLEH, Inc. v. W ichita County, 289 F.3d 358 (5th Cir. 2002).

Three weeks after the LLEH decision, the Supreme Court handed down City of

Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002). In clarifying the

burden that a local government must meet at Step O ne of the Renton evidentiary

inquiry, Alameda Books supercedes LLEH, and our panel opinion is predicated

upon that holding. No Fifth Circuit case has since relied on the LLEH court’s

interpretation of Step One. Cf. Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d

546, 559-62 (recognizing that Alameda Books controlled its Renton analysis, but

applying the narrow tailoring inquiry from LLEH because “[t]he question of

narrow tailoring was not before the Court in A lameda Books”).
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The four cases cited by the dissent as evidence of a circuit split with the

panel’s alternative holding are distinguishable, and particularly so when the

concurrence is read in concert with the majority opinion. In each of the cited

cases, the evidence produced by the local government at Step O ne w as both more

substantial and more contextual than that produced by Dickinson County. Unlike

the present case, each of our sister circuits had local evidence before it in addition

to the commonly cited studies. 5 Thus, in order to meet their burden to overcome

that Step O ne evidence, the regulated businesses would have had to produce more

evidence to prevail at Step Two than the Lion’s Den did here. In other words,

none of our sister circuits in these cases faced as close an evidentiary question as

that presented herein.

Finally, rural governments are not precluded by the panel opinion from

relying upon urban studies in appropriate contexts. See Abilene Retail #30, Inc.

v. Bd. of Comm’rs, 492 F.3d 1164, 1177 (10th Cir. 2007) (stressing county’s

5
See Daytona Grand, Inc. v. City of Daytona Beach, 490 F.3d 860, 876-77
(11th. Cir. 2007) (city relied on “its own experiences” alongside studies and
cases); Fantasy Ranch, 459 F.3d at 559-60 (5th Cir. 2006) (city relied on post-
enactment evidence including at least one study conducted “within the City of
Arlington” alongside foreign studies and cases); Gammoh v. City of La H abra,
395 F.3d 1114, 1126 (9th. Cir. 2005) (city council relied on “declarations from
investigating vice officers” alongside studies and cases); G.M . Enters., Inc. v.
Town of St. Joseph, 350 F.3d 631, 633-34 (7th Cir. 2003) (board “considered
police reports” about local businesses alongside studies and cases). Although the
presence of local evidence is not dispositive, it is indicative of higher production
at Step One and a correspondingly higher Step Two burden.

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failure to “analogize the studies it relied upon to the current or anticipated

secondary effects of sexually oriented businesses located in a rural county”

(emphasis added)). Additionally, cities are permitted to rely on evidence

garnered from local police departments or other local experts, and need not

commission formal studies. See Alameda Books, 535 U.S. at 435 (plurality

opinion) (“[A] police department report’s conclusions regarding crime patterns

may reasonably be relied upon . . . .”).

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