The question, as stated in the eight-page order, is: "Under the California Constitution’s liberty of speech clause, should we review the constitutionality of an ordinance that sets closing times for adult entertainment establishments under strict scrutiny, intermediate scrutiny, or some other standard?"
The question is based on two lawsuits that were filed in Federal District Court in San Diego challenging a 2002 law passed by San Diego involving regulation of hours of operation and private viewing areas in adult stores. The challenge to the hours of operation issue, which the store — Fantasyland Video — lost in the lower court in 2005, was brought to the federal Court of Appeals based on a challenge to California state law.
Attorney Clyde DeWitt, who is representing the store, told XBIZ that the Court of Appeals is asking the state Supreme Court to answer the question about California law, because federal courts like to defer to state courts in interpreting state laws.
The question being put to the California Supreme Court is based on inconsistent rulings in the past.
"Issues of the California Constitution should be resolved by California courts. I had argued that I thought that was a good idea, and apparently the court agreed with me," DeWitt said.
The California Supreme Court is required to accept or decline the question within four months, according to DeWitt.
"It can look at [the question] and say 'this is not important enough for us to address' and decline, or the court can accept it. Accepting the question is not answering it. They would then order the parties to file briefs and argument. If they accept the question, it will be argued before the California Supreme Court.
"At the very least, they will decide what standard the 9th Circuit should use to evaluate the ordinance under the California Constitution."
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