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7th Circuit mulls adult-business laws

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Indiana Lawyer Rehearing

The 7th Circuit Court of Appeals is considering whether a Southern District of Indiana judge correctly weighed evidence in granting a preliminary injunction that stopped Indianapolis from enforcing a 2002 ordinance regulating adult-business hours.

Attorneys appeared before a three-judge panel Sept. 20 to argue the 7-year-old case of Annex Books, et al. v. City of Indianapolis, Ind., No. 1:03-CV-918, which U.S. District Judge Sarah Evans Barker ruled on in December 2009.

The case had been remanded after the 7th Circuit heard arguments in 2005. The appellate court had affirmed Judge Barker’s judgment regarding the licensing procedures set out in the ordinance but reversed on whether any substantive First Amendment issues existed. The appellate court had ordered an evidentiary hearing, and she examined whether any secondary effects were created by the ordinance that required the plaintiffs to close between midnight and 10 a.m. The judge found the city’s evidence to date is likely insufficient to meet the standard or justify the ordinance, and Indianapolis appealed that preliminary injunction.

Corporate attorney Justin Roebel for Indianapolis argued that Judge Barker created a new standard and shouldn’t have weighed the evidence, and should not be turning this case into what he described as a “battle of experts.” The city doesn’t need to provide localized evidence but can use outside-the-state data, even if it’s from much larger cities such as New York and Reno that have different demographics.

The 7th Circuit judges pressed the attorneys about the data being relied on in this case, criticizing it as being outdated and not adequate to compare the effects of the ordinance.

Plaintiff’s attorney J. Michael Murray agreed the evidence wasn’t technically clear but that it logically showed an increase in crime rather than what the city said the ordinance effect would be. Murray said more conclusive and “statistically significant” data would be presented at trial for a permanent injunction, but Roebel argued that a trial isn’t the standard and the plaintiff’s data currently isn’t adequate to be relied on.

Chief Judge Frank Easterbrook questioned that data and said this is a case that doesn’t have clear guidance. In response to an initial statement from Murray about how the previous 7th Circuit ruling from last year created a “template” for Judge Barker to use, Chief Judge Easterbrook opined about how unclear this issue is for the trial court to determine.

“I think that might be overstating the extent to which our opinion can be said to be a ‘template’ … There’s a whole passage in there that says we appreciate that we’re remanding with a completely fuzzball standard and aren’t entirely sure what it means,” he said. “But that’s what the Supreme Court has said.”

The panel took the case under advisement.
 

Rehearing "City stopped from enforcing adult-business law" IL Daily Dec. 3, 2009

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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