good morning ladies and gentlemen our first case for this morning will be six star holdings and ferrall against the city of milwaukee  good morning your honour's adam stevens appears on behalf of the city of watch me to please the court in this case standing with strikes stretched too far there were two plaintiffs involved in this case one of which feral carlos c there was a decision by the district court and it is the city's position that plaintiff errol if he does not have standing to challenge to be repealed licensing ordinances in there after seek lost profit compensatory damages from the city of want because paralyse never applied for either license or had the license ordinances applied against it does the jury's verdict tell us anything about whether they suffered an injury establish standing by demonstrating that applying for a theatre public entertainment club places would have been futile to say that the city failed to act on six dark  it is the posture of litigation throughout this case was significantly different i think the situation with six stars application for the theater license was made some months after become a council of the city and walk announced that they were planning on repealing those ordinances and then the application was made there are issues in the record that were before the disc reported now obviously before this court where for example there was another licensed premises by the name of rusty's that went in the exact same location that that six star was applying for in a theater license and therefore in addition to the repeal of the  addition to the fact that there was already an established license a miss that had very recently before the application of sixth are was made was in existence i think that it would not show necessarily that the ferals application would have been futile  evidence that made it a trial that the city had decided not to enforce the ordinances during you know the timeframe that you were just discussing you know no there was no have a new york and  repeal now know there was not it that was not a matter of discussion at trial as i recall your honor but the timeframe here was relatively quick meaning in july of two thousand and eleven the city introduced a file to repeal the ordinances the application by six star was made the following september the common council voted to actually repeal the ordinance on november second two thousand and eleven which is the day that sixth are in feral filed for the fourth amid a complaint and then the repeal itself was made effective in march two thousand and twelve in order to accommodate the clerical and in administrative burden of transforming hundreds of that's not in the record your honor i simply held objectively though there were two factors that i think are in the record that i think the court can consider number one  standing point you would agree would you not that under the supreme court's clapper decision an allegation of future in the injury is deficient for standing if the threatened harm is impending or there's a certain standing by alleging an intention to engage in a course of conduct that's affected but the constitutional injury interest but it's proscribed by statute and there's a credible threat of prosecution right correct so we have those rules in an upfront sense and we have the jury's verdict with hindsight at least seeing that there was in fact injury from the chilling effect of these ordinances which deterred the opening of the establishment by farrel so so why given that standing is not supposed to be just a surrogate for the merits why isn't that enough to assure that we do have a party with the necessary concrete versus injury in fact alleged causal connection and so forth i get your honor i would point to that the extent of the the course of litigation in this case the cases that you've cited when you're looking at the for the threat of future injury when you're looking at prospect of or present threat of prosecution that of course will give would have given farrell standing however at the time  this was going on that is to say in in two thousand and eleven the ordinance was subject to repeal so that no one knows i mean it's not over till it's over right and so you seem to be saying there's some within which it's ok to deprive somebody of first amendment rights if you're promising soon to repeal the ordinance it's doing that and i'm not familiar with any such rule no i guess let me  and i think what i'm suggesting is that just the mere knowledge that a long may be unconstitutional is not a does not cause an injury and i would cited in the brief the petra presbyterian church versus the edge of northbrook which is a case  this court which suggests that again your knowledge of the existence of an invalid law that might be applied to one is not an injury and so in the context of this case where feral was alleging that it had passed damages and had not done so had not made that allegation earlier in the litigation then until it was invited to do so sue a sponsor by the district court in the first summary judgement ocean what was wrong with that you mention a lot the fact that that's how this came up do you think a district court was acting beyond the scope of its authority and interpret ing the allegation is actually by that time and has applied damages allocation i think so i think that the at this stage of summary judgment necessary requirement for that stage of the litigation inquiry or or or that this case took occurred if you up and what happened then is feral was invited to submit further evidence to which i guess ultimately the district court decided that it was concrete particularized enough that would warrant standing again i would direct this court's attention because you do review the summary judgment decision to an oval to look again at the allegations that were made in support of the motion for summary judgment where those carol just simply said but for the existence of these two ordinances we would have opened a dry gentlemen's club which what  that that is one major aspect of the city during this litigation acknowledged that the former theater in the form of public entertainment club licenses did not have time limits for a decision to be made and that was not pretty was not litigated by the parties declared unconstitutional as applied to any other entity i am not aware of any i know that most plaintiffs in their reply brief i believe cited a district court opinion that was a party but i don't think that was decided on the merits but i wasn't aware that case like forget it i don't i just want to come back to your concern about the district court's re characterization and ask you how you can justify this concern in light of rule fifty six f which actually after notice in a reasonable opportunity to respond allows the court to grant summary judgment even on grounds not raised by a party to decide summary judgment on its own the judge wasn't doing anything precipitous the judge invited supplemental filings from the parties and it seems to me this is precisely the sort of action the fifty six  think you your honor what i meant to say was that the district court simply was wrong in deciding that there was sufficient evidence put forth a concrete particularized evidence showing that farrel had suffered an injury and again so it so you're not disputing the district judges ability to say there was an as applied challenge inherent in the complaint your issue was just with whether the evidence was sufficient that summary judgment i am i believe so your honor what i'm saying is that the as applied that the district court was it was incorrect in the asserting that  had as applied standing because in our view that because for all never applied for a license or had the licenses of awareness as a force against it that therefore it was not applied and that the simple effort of self censorship does not warrant the finally that there was as applied standing in the case and to the point made earlier as those other cases that do allow for self censorship in threat of injury are again all prospective looking theory that appears in a number of different areas of the law it happens in any trust cases where somebody says an explosion ery act kept me out of this market if it happens and in other areas and it's a big burden for a plaintiff to carry to show that things were specific enough and it's not you just talking that you were going to enter a market that it's something that's capable of proof in this jury found it so i don't understand why prospective market entry fails to confer standing well i think that the evidence that was put forth both of that at the summary judgment stage which is what is at issue in this appeal was insufficient and  did in our brief in chief did point out to this court the testimony that was elicited by the main principle of feral at trial which largely mimicked the the declaration that was filed in support of them the motion for summary judgment so and that was not to say because the city i guess is choosing not to go down the road of of appealing the jury very good rather simply saying looking at the universe of information that's here they're simply just not standing right why it would make any difference what pro's motivation was it stable to prove it suffered actual harm of an unconstitutional statute well i think in the particulars of this case the farrel simply said we would have done something we would have opened a dry gentleman's club but for the existence of these ordinances of until they made that declaration for the first time some you're over a year after the litigation began they had never made that kind of allegation earlier complaints that the problem is is that just it was until i was invited to do and from and from the city's perspective to the harm here is that there are unfortunately sometimes integrated ordinances there on the books and with this kind of a decision here any party could please the court i'm jeff olson for six current fair all one major flaw in the city's argument is that it failed to recognize that there are different types of as applied challenges the city is focused on the type of as applied challenge where an ordinance is applied or threatened to be applied to a person you know an unconstitutional manner arson is a different kind of the as applied challenge where ordinance covers a broad range of activities but is unconstitutional in its application only to some of those activities here so mr olson my big question for you is why would it have been so hard for ferals simply to have applied for the theater   then we would have had a very concrete piece of evidence it was hoping to enter this dry club market so to speak and futility seems to me like something quite different from risking fines or other kinds of sanctions they could have applied but it would have been just to make the point because nobody is ever going to get a license under these unconstitutional discretionary schemes for you say that but i just the city makes an argument look what's to prevent pretty much anybody from drifting along and saying i was going under this market yes you can have a jury trial you can have the jury decide yes you would have no you wouldn't that's a very expensive process time consuming and the like and we really have that's why we have these threshold requirements so i'm i'm just not clear why 's a public hearing and if you want to do a serious job you show up at the public hearing with your lawyers and from four to twenty four witnesses because that's how many you'll be facing from the other side from community residents that come in to testify against you and you know we had the black letter law that said you don't have to apply for a license to challenge it on constitutional ordinance so we advised our clients we could go ahead with this litigation without making that application and when do you think you are making an as applied challenge well we alleged as applied in facial challenges in every iteration of the complaint and it's right there in the first couple of paragraphs the violations of law section of the very first complaint alleging that the whole scheme for regulating adult clubs in milwaukee is unconstitutional as applied and on its face but we argued facial unconstitutionality in our summary judgment submissions and frankly that was because we had looked as deeply into the broad applicability of the as applied doctrine as we have would have started this news business no gentlemen's clubs are not popular jerks don't come into a courtroom whining to decide a case for a gentlemen's club proprietor they have to be pretty much boxed into a corner and we did that by evidence that our client retained architect to do architectural drawings and had a general contractor ready to go all our client made field trips to other gentlemen's clubs our client did a spreadsheet financial analysis of income and expense expectations for a dry club our clients looked at other non alcohol income producing entertainment businesses there was a long list of evidence we had to present there was that's right and if it would have been just the zoning ordinance that was on the books from before two thousand and nine to july of two thousand and eleven that's probably what we would have done but with these public entertainment club ordinance and the theater ordinance and it being very on certain what position the city was going to take about what ordinances even applied now we didn't know that they were going to take the position that the theater ordinance applied until mrs mullen the city attorney's office we didn't know they were going to take the position that the public entertainment club ordinance was going to was applicable until we filed against the theater licensing ordinance and they opposed our motion to a man by saying no it's the public entertainment club ordinance so we would have been going into court in a very dicey situation ahead we opened and they would have been risking per performance for print for pictures of up to two thousand dollars that's a lot of money could i ask you really going back to this idea of the damages remedy the jury finds four hundred thirty five thousand five hundred in damages what represent starting point the question they were asked is what amount of profit would they have earned before march twelve's two thousand and twelve and that can't be from the beginning of time obviously was it was it the statute of limitations w amusement license which is that cabarets license in the summer of two thousand and ten and that if it would have been for these unconstitutional ordinances applicable to dry clothes he would have opened that club one way or the other whatever and he's and he testified if if it would've been for these on constitutional ordinances but those are two separate applications aren't they so i mean i guess here in two thousand and ten he doesn't say i want to move forward with the tavern license with started with the amusement license whatever all this thing he doesn't say i want to move for the amusement license without that aren't they two separate applications this is the tavern amusement license is a license you get if you already have a liquor licen like the ones that were at issue in this case apply to non alcohol selling clubs there the public entertainment club ordinance and the theater licensing ordinance and if it had not been for the existence of those ordinances ferraro would have opened a dry club in september of two thousand and ten as soon as his liquor license application and tavern amusement license application were denied by the city there was something so that's understood  the starting point yeah and there was some wrestling at trial about whether he could have actually done it in september two thousand town or whether the buildout would have taken a few months longer and let me explain why the jury awarded only about half the damages that were testified to by our economic prosecution involve pre enforcement facial change challenges to statutes order or ordinances are you able to  where where the chilling effect alone of and allegedly unconstitutional ordinance was sufficient to him for standing for an as applied challenge for application under one of the ordinances that we challenge but they didn't make an application under the other one we challenged multiple ordinances in that case some without having applied just based on chilling effect and we got a summary judgment decision that cleared the way to a trial on damages and that was settled by an arbitrary that ended just on the eve of a damages arbitration but we were able to recover damages in that case based on the ordinance under which we have been applied where the only injury was chilling effect but man the authorities of this court are very strong on the idea that  the chilling of protected speech made alone qualify as a cut nice of will article three injury that's in center for individual freedom versus madigan and we all versus keating the court said  of the statute constitutes the government's commitment to prosecute in accordance with it and a concrete prospect of future harm to those who would float and an american civil liberties union versus alvarez the court talked about the existence of a statute implies a threat to prosecute but then i suppose the interesting thing about this case i think i'm not aware of other cases in  which damages were the remedy the court typically is looking at and joining something that is an unconstitutional ordinance and perhaps there's no meaningful difference that it's you know opens up a whole new and the ones that get to the supreme court of course are the social justice ones involving really pre enforcement case usually brought by public interest organizations to constitutional rights in this century so in other words the inquiry would be the same the furrow the plans to make an unpopular political statement or something else closer to the core of protected first amendment we have to fight for the first amendment in the burlesque clubs and gentleman's bookstores because if we don't fight there we will be fighting in the libraries in the public schools tomorrow is the chilling effect from the statute being on the books and different when the statute has been repealed and the repeal is going to go into effect shortly well it's interesting that the city says although they didn't try to raise this at trial and i think that even where the issue was standing your stand it comes down to a question of fact like was there a threat of prosecution i think the city has to raise that defense at trial or it's go they say the court should have inferred from the fact that we had set about to repeal these ordinances that we had no intent to prosecute but really they didn't repeal them effective immediately they repealed them in november of two thousand and eleven effective in march of two thousand and twelve and the reason that they kept them on the books during that period was that they wanted something to be able to enforce against businesses covered by these licensure requirements and during that interim period they were didn't just say golly we've got some unconstitutional ordinances let's get them off the books they kept them in force for that period of four five months so i think that proximity to one well what we should have said in the complaint was one or the other or both to leave our options open and perhaps so how do we factor what you actually did say in well there's certainly an allegation in the complaint that farrel would have opened a jet dry club but for those ordinances and that's the allegation that's behind the jury verdict in this case if the court wants to say that you know because there was some  the over exaggeration of the client's intentions in the pleadings are because they haven't really slipped hard at the economics of running two clubs in downtown milwaukee when they drafted their complaint i just don't think that's something the key should turn up think your honors just briefly there is an issue in this case that's unique to the case and i know the court doesn't care to hear too many of the facts but but please recall know that the record in this majority of the summary judgment briefs discuss that was the majority of the district court summary judgment opinion so that was the primary issue of the case and in fact the court the district court said so in that is in accuracy so with the focus being declaration which then started this whole process and why we're here today if we had focused on the main thrust of this case which is what everyone was talking about for the most of the beginning of the litigation it was about the liquor license and soon as you recall it has come to not ban that i'm sorry the city prevailed on the liquor license and absolutely in the case they accept that there they did not important though is just because in the context that this came case came in then it is only in the third in the fourth amended complaints that these plaintiffs started to allege that the theater in the public entertainment club licenses were a problem as far as i know the court this court asked counsel whether or not the as applied in the facial challenges were made from the beginning from the first complaint and that is true but it only had to do with the vigorously defending its tavern and tavern amusement licensing process which did you object to the filing of these various amended complaint seems to me quite common for amended complaints to be submitted absolutely the city opposed to each and every one of them for a variety of substantive reason right so but you were not successful you know that is correct and just be from the big picture point of view here then how the we found ourselves in a jury trial regarding the theater in a public entertainment club licensed to which ferrell had never applied to for or had not quite a bit of time between when the district court interjected this thought into the process and the date of the trial yes and i think primarily because at that point there had been no discovery regarding damages that meaning the first summary judgment decision was based soley on liability and then once the second but i