Tuesday, December 08, 2015
Ind. Decisions - 7th Circuit decided one Indiana case yesterday
In BBL, Incorporated v. City of Angola (ND Ind., Miller), a 24-page opinion, Judge Sykes writes:
Alva and Sandra Butler and their company, BBL, Inc. (we’ll refer to them collectively as “BBL”), purchased a restaurant in the City of Angola, Indiana, and planned to convert it to an adult-entertainment venue featuring nude dancing. Within days of the purchase, Angola amended its zoning and other ordinances to make this use of the property impossible. The Butlers and their company brought this suit alleging claims for violation of their rights under the First Amendment and Indiana law. They moved for a preliminary injunction. The district court denied the motion, and the plaintiffs took this interlocutory appeal seeking review of that decision. See 28 U.S.C. § 1292(a)(1) (authorizing interlocutory appeal of orders granting or denying injunctive relief).
The appeal is a procedural and substantive tangle. The judge denied the preliminary-injunction motion in a brief discussion at the end of a 73-page omnibus order addressing multiple motions then pending before the court. Included in the package of motions was a request by the City for judgment on the pleadings on certain parts of the legal test applicable to BBL’s First Amendment claim. The judge granted this motion, leaving the final step in the First Amendment analysis for later decision. That approach was unusual; we question whether “judgment” on the pleadings can be granted on intermediate steps in a doctrinal test. This procedural step affected the judge’s decision on the preliminary-injunction motion.
Still, the judge was right to deny the motion. At the preliminary-injunction hearing, BBL made a tactical decision not to contest the City’s evidence that the challenged ordinances were designed to reduce the negative secondary effects of adult-entertainment establishments. BBL thus stipulated away the key factual issue in the analysis of the First Amendment claim. To the extent that the preliminary-injunction motion was premised on the state-law claims, the judge also correctly denied it. [ILB emphasis]
BBL attacks other aspects of the judge’s omnibus order, but our jurisdiction is limited to the denial of preliminary injunctive relief. On that issue, we affirm.
Posted by Marcia Oddi on December 8, 2015 09:42 AM
Posted to Ind. (7th Cir.) Decisions