Local Government Law

Dist. Ct. erred in granting defendant-City’s motion for summary judgment in plaintiffs-adult bookstores’ challenge to defendant’s ordinance that required plaintiffs to remain closed between midnight and 10:00 am every day and all day Sunday. Defendant’s sole justification for ordinance (i.e. instant closings fostered fewer armed robberies at or near adult bookstores) was weak, where change in number of armed robberies was small, and defendant’s submitted data did not show that robberies were more likely at adult bookstores than other late-night retail outlets that were not subject to ordinance’s closing hours. Moreover, ordinance could not regulate secondary effects of speech by closing down adult bookstores altogether. Fact that adult store customers are free to patronize adult bookstores during hours they were allowed to be open did not require different result.

Dist. Ct. erred in denying EEOC’s motion for summary judgment that challenged defendant-employer’s affirmative defense, where defendant sought dismissal of underlying discrimination claim on ground that EEOC failed to satisfy mandate under 42 USC section 2000e-5(b) to make good faith effort to settle underlying claim prior to filing lawsuit in court. Any alleged failure to conciliate underlying discrimination claim is not affirmative defense to merits of underlying claim since: (1) conciliation, as set forth in section 2000e-5(b), is informal process entrusted solely to EEOC’s expert judgment; and (2) any meaningful review regarding whether EEOC negotiated in good faith would require prohibited inquiry into substantive reasonableness of particular settlement offers.