California Supreme Court,  Constitutional Law,  Judges,  Ninth Circuit

California Supreme Court to the Ninth: Can’t You Read?

October 17, 2007

Back in August, I covered the case of Fantasyland Video v. County of San Diego, case no. 05-56026 (9th Cir. Aug. 7, 2007), in which the Ninth asked the California Supreme Court to answer a certified question asking for the standard of review to apply to the constitutionality (under the California Constitution) of hours-of-operation restrictions on “adult entertainment establishments.”

The Ninth appeared to be telling the California Supreme Court that its jurisprudence on the issue is, shall we say, less than crystal clear. I wrote:

Another thing I like about this request from the Ninth Circuit is that it doesn’t claim there are no California cases on point. It says the most relevant case on the issue is impossible to figure out:

We certify the above question to the Supreme Court of California for an authoritative construction of the most directly relevant opinion on the issue, People v. Glaze, 27 Cal. 3d 841 (1980).

In other words, “Please tell us what the heck you were trying to say in that mess (and in the seemingly inconsistent cases that followed).” But they asked it nicely.

Then the Supremes took their shot in an order denying the Ninth’s request for an answer to the certified question, doing so in language suggesting that the Supremes are shocked — shocked — that the Ninth can’t figure it out from the existing cases:

[The request from the Ninth Circuit] is denied. California law is clear that content-neutral time, place, and manner regulations affecting protected speech are subject to an intermediate standard of scrutiny. Currently, California law does not suggest that restrictions upon the hours that adult businesses may operate require review under any test other than the intermediate scrutiny standard applicable to other content-neutral regulations.

I’m sure nobody was really “taking shots” here. That’s reading between the lines on my part, and cynical to boot.

Anyway, when the Ninth takes up the case again, it applies the “intermediate scrutiny” standard and upholds the hours-of-operation restrictions. The adult bookstore failed to “cast direct doubt” on the negative secondary effects of the adult business that the county used to justify the restrictions, including . . . increased noise and traffic? That’s the same objection people raised around here when they wanted to build a Lowe’s home improvement store!