The Sixth Circuit recently rebuffed a request by adult business operators in Memphis, Tennessee to apply an unconstitutional city statute in order to escape a newly enacted, more onerous county ordinance. In 1996, adult business operators had brought suit against the City of Memphis facially challenging the constitutionality of an ordinance requiring registration of adult businesses. See East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220 (6th Cir. 1995). They claimed that the Memphis ordinance was an impermissible prior restraint on speech under the First Amendment. The parties ultimately entered into a consent judgment, agreeing to adopt the Sixth Circuit’s holding of unconstitutionality as the final ruling and judgment as to the Memphis ordinance. As a result, the Memphis ordinance was never repealed and never enforced.

Ten years later, Shelby County, which is home to Memphis, adopted its own regulations requiring registration of adult businesses. The County ordinance applied to Memphis adult business operators unless Memphis chose to "enact and enforce" its own similar ordinance.

In an effort to escape application of the more onerous County ordinance, the plaintiff adult business operators moved for relief from judgment pursuant to Rules 60(b)(5) and (6) of the Federal Rules of Civil Procedure, arguing that intervening changes in the law meant that the Memphis ordinance was no longer constitutionally defective. While the district court recognized that the unconstitutionality of the provision in the Memphis ordinance regarding judicial review had been rectified by intervening changes in the law, it found that the ordinance still suffered from other nonseverable defects that rendered it unconstitutional. Accordingly, the district court denied the motion for relief from judgment.

In an opinion written by Judge Clay, the Sixth Circuit affirmed the district court’s decision, applying the abuse of discretion standard applicable to Rule 60(b) motions. See East Brooks Books, Inc., et al. v. City of Memphis, et al., No. 09-6254 (6th Cir. Feb. 24, 2011) (PDF). In its opinion, the Court cheekily addressed the plaintiffs’ "newfound concern" regarding the ability of Memphis to "enjoy the democratic benefit of seeing a law it had enacted . . . revived again," noting that plaintiffs "need not worry" because the County ordinance addresses substantially all of the areas addressed by the Memphis ordinance (and more) and regulates all of the adult businesses that the Memphis ordinance was intended to cover.