WHITTIER — The City Council has decided to continue its 10-year legal battle to remove the X-rated Pussycat Theater from Uptown Whittier, but city officials say the latest appeal may be the last.
The legal dispute has cost the city $326,000 since 1977 when Walnut Properties Inc. bought the 1930s-era theater and began screening adult movies.
The Pussycat immediately sparked controversy, drawing pickets and prompting the city to pass a zoning ordinance prohibiting businesses from selling sexually explicit material within 1,000 feet of churches or schools and 500 feet of residences. This would have forced the Pussycat to move, since the theater is within one block of four churches, as well as affecting the other 15 or so adult businesses in town during the late 1970s.
But in the last few years, the protests have dwindled while courtroom delays and legal fees mounted. Area merchants say the Pussycat, now a member of the Uptown Assn., has not noticeably affected their businesses. And if the current appeal to the 9th U.S. Circuit Court of Appeals is unsuccessful, City Manager Thomas G. Mauk said, the litigation may end since the only remaining avenue of appeal would be the U.S. Supreme Court.
Supreme Court Not Likely
"It would take a tremendous amount of resources and good fortune" to do that, Mauk said, adding that the Supreme Court is not likely to take up the issue just two years after ruling on a similar case from Renton, Va.
In 1981, Renton officials passed an ordinance restricting adult businesses to an industrial area, arguing that an X-rated theater downtown would lead to urban decay. Last year, the U.S. Supreme Court upheld the Renton ordinance, which closely resembled the Whittier ordinance, and Whittier officials appealed based on the new ruling.
But U.S. District Judge Manuel Real, who in 1984 ruled in favor of the theater's right to operate, again decided in January that the Whittier ordinance was unconstitutional despite the Renton case. Whittier's latest action is an appeal of Real's last ruling.
City Attorney Robert Flandrick criticized Real, saying he disregarded the Renton decision in his ruling. "We think (Real) had a rock between his ears and didn't know what he was talking about," Flandrick said.
Mauk says the Renton ruling vindicates the Whittier ordinance. He said he is optimistic that a judge other than Real would rule in Whittier's favor. "At this time we believe and the council believes there's a ray of hope at the 9th Circuit level," Mauk said.
Assert Intent Is Different
But lawyers for Walnut Properties say that although the substance of the Whittier ordinance may be similar to the one in Renton, the intent was not. Renton officials took action before any adult businesses were open in town, while the Whittier ordinance was adopted to regulate existing businesses, said Stanley Fleishman, an attorney for Walnut. The Pussycat is the only adult business left in Whittier.
"The fight is about whether the city can enact an ordinance that would in effect drive us out of town," said Fleishman, who represents the Pussycat's statewide chain of 48 movie houses, 33 of which are adult theaters.
"For 10 years, they've been told by court after court that they're acting unconstitutionally. The city is wasting its time and wasting its money," he said.
That thought has also occurred to Mayor Pro Tem Sabina Schwab, who said she no longer supports continuing the fight. "I think that we are looking at a town that's very conservative and there are many people who want this to go as far as it will go," Schwab said. "But they rule against us each time and it seems like the handwriting is on the wall."
Uptown Assn. President Lane Langford said the Pussycat is not a burning issue among members of his organization.
"The Uptown Assn. really can't take a position on it. We're a promotional association," said Langford, who operates Bookland on Greenleaf Avenue. "The Pussycat Theater pays their business license just like everyone else does. I have to treat them like I would treat any other business, despite what my personal feelings might be about that."
Asked if the theater had harmed business in the area, Langford said, "No. I think people basically ignore it."
Whittier also is appealing a lawsuit filed by Walnut Properties against Flandrick and Planning Director Elvin Porter because the adult business zoning ordinance was re-adopted after a 1981 federal court ruling against it. In that ruling, the court said the city lacked information to justify the ordinance. So the Planning Commission and the City Council held a series of public hearings and then enacted a new ordinance. It was subsequently invalidated by Real.
Walnut sued Flandrick and Porter for punitive damages for their role in re-enacting an ordinance that had already been invalidated. Flandrick and Porter claimed immunity, but Real ruled against them in January.
The 9th Circuit will hear oral arguments for the latest round of appeals sometime this fall and is likely to issue a ruling in early 1988.