In April, the Sixth Circuit Court of Appeals issued a decision in Big Dipper Entertainment LLC v. City of Warren, No. 09-2339, rejecting a constitutional challenged to a sexually orientated business – but more importantly, giving advice on appellate civility.
The underlying § 1983 action was brought by Big Dipper, a topless bar, against the City challenging certain ordinances that regulate the licensing and location of sexually oriented businesses as unconstitutional. The ordinances mandated zoning restrictions on the location of such businesses. The Sixth Circuit affirmed the district court’s grant of summary judgment in favor of the City.
According to the court, the case law reflects the reality that “Democracies need political debate more than they do topless bars in order to function.” Slip. Op. at 3.
True, but the real reason we blog about this case is to note the Sixth Circuit’s discourse on civility in appellate briefs. According to the court, Big Dipper criticized the district court’s analysis in “notably harsh terms” such as arguing that the district court “made no pretense of applying the proper summary-judgment standard,” calling the district court’s analysis “cursory,” and complaining that the lower court “chose to disregard the voluminous and detailed analysis’” of Big Dipper’s expert. Slip. Op. at 6 (internal quotation marks omitted).
In response to these arguments, the Sixth Circuit stated:
“Arguments like these – which casually impugn the motives of the district court or, more commonly, opposing counsel – are regrettably common of late. So we think it worthwhile to comment on them. In our view, a party should think twice about questioning the district court’s integrity or that of opposing counsel. That two persons disagree does not mean that one of them has bad motives. And even in the worst cases, the better practice is usually to lay out the facts and let the court reach its own conclusions.”
We agree. As professionals, remaining civil in our appellate briefs is just as important as civility in the courtroom. The way to win an argument is by stating (rather than embellishing) the facts and analyzing those facts in light of the applicable law (see law school brief writing 101). The Big Dipper may be composed of the seven brightest stars in the formal constellation Ursa Minor – but in this case the Sixth Circuit did not find that the stars shone so bright.
The Sixth Circuit's opinion is available here.