For those of you who have read our column over the many years that we have been published, you might note that some cases never really seem to end and that the legal process can take a long time. One such case was D. Russo, Inc. v. the Township of Union out of the State of New Jersey. For those of you with incredible memories, you may remember that we have written several articles about this case. Some of these articles in fact had some humorous events.
For those of you who do not recall, the Township of Union in 2006 passed a licensing and regulatory ordinance affecting adult entertainment including adult dance clubs and adult bookstores. Immediately, Daniel Aaronson on behalf of Benjamin & Aaronson with local counsel, Vinnie Verdiramo, were able to obtain a temporary injunction that remained in effect during the entire pendency of the case. During the course of the proceedings, motions to dismiss filed by the Township were defeated, motions to dissolve filed by the Township were defeated, all while the State’s zoning law which also affected the establishment was being challenged.
One of the funnier moments in the litigation occurred when a dancer from Hott 22 the d/b/a for D. Russon, Inc., was investigated when a hand was found in a formaldehyde jar at her home. This led to an investigation as to whether she was involved in the occult, whether she had dismembered bodies and whether somehow this was related to the dancing establishment. Of course, the investigation revealed the less sinister side. Apparently a medical student had given the dancer the hand as a gift (romance is strange).
During the course of the litigation with the Township, the Township amended its licensing regulatory ordinance three separate times, all in response to amended complaints filed by Mr. Aaronson and Mr. Verdiramo. Eventually the State zoning ordinance was held constitutional by the trial judge and later overturned by the Appeals Court. The Township for its part, after amending its ordinance three times, unilaterally decided to repeal the ordinance completely.
Based upon this repeal, Benjamin & Aaronson and Vinnie Verdiramo petitioned the Court for attorneys’ fees. The court realizing that Mr. Aaronson was from Fort Lauderdale stated “that it would give attorneys’ fees in this case when you could make a snowball in Fort Lauderdale”. Obviously, attorneys’ fees were not awarded. Danny Aaronson and Vinnie Verdiramo then appealed the lack of award of attorneys’ fees to the Appellate Court. In late December of 2010, the Appeals Court sided with Aaronson and Verdiramo stating that the catalyst theory was alive and well in New Jersey and remanded, or sent back the case to the trial court for further findings.
The significant of this ruling cannot be overstated. The United States Supreme Court several years ago determined that the catalyst theory was dead. The catalyst theory simply is a theory that if a lawsuit brings about a change in the law then attorneys’ fees should be awarded because without that lawsuit the law would not have been changed and therefore those who filed the lawsuit should be considered the victorious party. The importance of the catalyst theory is that many laws would go unchallenged that are unconstitutional because those who are affected by them do not have the funds to hire attorneys.
If attorneys know that if they are successful in challenging these unconstitutional laws and they will receive attorneys’ fees then there is incentive for attorneys to challenge laws that may affect the downtrodden, the politically disenfranchised or those who simply do not have funds to vindicate their rights. As was said the U.S. Supreme Court did away with the catalyst theory. Yet, this New Jersey Court found under New Jersey law that catalyst theory was still alive.
This is not the end of the story. Just days before the writing of this article, Benjamin & Aaronson and Vinnie Verdiramo were informed that Union Township intends to seek appeal of the Appellate Court’s ruling to the New Jersey State Supreme Court. If the ruling stands at the New Jersey Supreme Court it will be a monumental victory for adult entertainment and other types of civil rights litigation within the State of New Jersey. Further, it may be clear indication to other Supreme Courts of other States that they have the power under State grounds to award attorneys’ fees under the catalyst theory. We will keep you informed of this litigation that never seems to end.
On another note, the fight seems to be escalating in Jefferson County, Kansas. In December, Daniel Aaronson flew out to Jefferson County, Kansas to speak on behalf of a potential adult private club that sought to open up in Jefferson County. Jefferson County is a small county of approximately 18,000 people. Yet, at the planning and zoning board hearing there were between three to four hundred people present. Mr. Aaronson explained the unconstitutionality of their laws and was of course hit with the common refrain by the citizen that they don’t care, they know whats best for their community and they will fight to keep adult entertainment out of their county.
Well, apparently the county meant what it said. They have hired a land use attorney expert from Topeka to aid their county attorneys. They have combed through their ordinance books to look for any pretextual reason to delay granting of a certificate of occupancy and the go ahead for the project. We will keep you informed of the battle as it continues and it surely is to be a battle. On one hand there is adult entertainment and the constitution and on the other hand there is the citizens of the county and their lack of desire to listen to reason or to law.
Lastly, our hearts do go out to Congresswoman Giffords and the other victims of that senseless shooting in Arizona. In the aftermath of those heinous crimes and indefensible actions, there were allegations thrown around by both the political left and the political right as to the cause of the shooting and whether the political rhetoric incited these actions. As always, when that occurs, some legislators come out with ideas to criminalize forms of speech in the true belief that somehow that will make us safer.
Again, although we certainly do not condone what occurred and we do find repugnant some of the political speech that is out there, just because it is repugnant does not mean it should be against the law. Rather, the way to deal with repugnant speech is to not follow it, is to not listen to it, is to rebut it with logic and sensible persuasion. When we use a tragedy like that which occurred in Arizona to have a knee jerk reaction to stiffle speech, then we are all the losers. Any speech is able to incite someone who is irrational to act irrationally. A law that criminalizes speech that incites would be too broad to meet constitutional muster. It would leave it in the hands of governmental authorities to determine what speech incites and what speech does not. Speech is too fragile to allow the government to determine what can be said and what cannot be said.