McClanahan v. City of Tumwater, No. 3:2011cv05623 - Document 29 (W.D. Wash. 2012)

Court Description: ORDER denying 10 Motion for Temporary Injunction by Judge Ronald B. Leighton.(JAB)

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McClanahan v. City of Tumwater Doc. 29 1 HONORABLE RONALD B. LEIGHTON 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 BARNEY MCCLANAHAN, Plaintiff, 9 v. 10 11 No. 11-cv-5623 RBL ORDER DENYING MOTION FOR TEMPORARY INJUNCTION CITY OF TUMWATER, Defendant. 12 13 In June 2011, the City of Tumwater removed a yard sign from Plaintiff Barney 14 McClanahan’s property because the sign allegedly blocked the sidewalk. Mr. McClanahan 15 asserts that the removal, authorized by a City ordinance, is an unconstitutional infringement of 16 his First Amendment rights. Mr. McClanahan seeks a preliminary injunction preventing the City 17 from enforcing the ordinance. For the reasons below, the Court denies Mr. McClanahan’s 18 motion for a preliminary injunction. I. FACTUAL BACKGROUND 19 20 In May 2011, Mr. McClanahan placed a number of yard signs in front of his business, 21 Tumwater Pawn Brokers. Pl.’s Mot. for Prelim. Inj. at 2 [Dkt. 10]. According to City 22 employees, one of those signs protruded into the sidewalk, blocking the public right-of-way. 23 Dkt. 17 at 4. Mr. McClanahan asserts that the sign was wholly within his yard. Dkt. 10 at 2. 24 ORDER- 1 Dockets.Justia.com 1 The sign read “Stop Taking Our Property” and directed readers to a web address: 2 www.STOPThurston County.com. Id. 3 On June 11, 2011, after receiving complaints of signs throughout the city, Tumwater City 4 employees conducted a sweep, removing McClanahan’s sign in the process. Def.’s Resp. at 2 5 [Dkt. 17]. Mr. McClanahan, seeing the sign being pulled, came outside to investigate. Dkt. 10 6 at 2. City employees explained that his sign blocked a right-of-way and therefore violated the 7 Tumwater Municipal Code. Id. The City employees returned the sign, gave Mr. McClanahan a 8 letter detailing the City’s sign ordinance, and asked Mr. McClanahan to stake the sign farther 9 back. Dkt. 17 at 5. Notably, the City employees disturbed no other signs on Mr. McClanahan’s 10 property. Id. 11 Mr. McClanahan objects to Tumwater Municipal Code § 18.44.080(I), which prohibits 12 signs “located upon or projecting over public streets, sidewalks or rights-of-way, except those of 13 an official nature.”1 The code defines signs of an “official nature” as “any sign posted by a local 14 government agency that is necessary to protect and regulate the public health safety and 15 welfare.” TMC § 18.44.015(EE). 16 Mr. McClanahan asserts that the ordinance “deprives individuals of their constitutionally- 17 protected right to free speech.” Dkt. 10 at 1. The City, on the other hand, argues that the 18 ordinance “regulates signs in order to protect public health, safety and welfare.” Dkt. 17 at 2; see 19 also TMC § 18.44.010(B). Indeed, the City’s traffic engineer, John Logan, explains that 20 unauthorized signs in rights-of-way obstruct the vision of both pedestrians and drivers. Decl. of 21 John Logan at 6 [Dkt. 19]. Signs may pose a particular threat to small children, who may be 22 23 24 1 Mr. McClanahan also objects to TMC §§ 18.44.070(K) (exempting politically-related signs from permitting requirements); 18.44.120(B) (allowing city attorney to seek penalties for parties violating the ordinance); and 18.44.120(D) (allowing the City to immediately remove signs blocking rights-of-way). These implementing regulations appear to be ancillary, however, to § 18.44.080(I), which operates as the primary bar to signs that block rights-of-way in Tumwater. ORDER- 2 1 hidden from the view of drivers. Id. Additionally, signs that block the rights-of-way may violate 2 federal laws protecting access to public spaces for the disabled. Id. at 8. 3 II. DISCUSSION 4 To obtain a preliminary injunction, Mr. McClanahan must show: (1) that he is likely to 5 succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of 6 preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in 7 the public interest. Winter v. Natural Res. Def. Counsel, Inc., 555 U.S. 7, 20 (2008). Injunctive 8 relief is an “extraordinary remedy” that “may only be awarded upon a clear showing that the 9 plaintiff is entitled to such relief.” Id. (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). 10 A. 11 Mr. McClanahan asserts that the City impermissibly restricts his speech in a traditional Plaintiff Has Not Established a Likelihood of Success on the Merits. 12 public forum. Dkt. 10 at 6. He further contends that the City’s statute is vague, overbroad, and 13 constitutes a prior restraint. Id. at 12. Finally, Mr. McClanahan asserts that the ordinance 14 violates the Washington State constitution. Id. at 14. Tumwater maintains that its ordinance is 15 constitutional under both the federal and state constitution. The Court will address each of these 16 in turn. 17 1. The City Ordinance is a Permissible Restriction of Speech in a Public Forum. 18 Mr. McClanahan correctly argues that public rights-of-way are a traditional public forum. 19 “[P]ublic places historically associated with free exercise of expressive activities, such as streets, 20 sidewalks, and parks, are considered, without more, to be public forums.” United States v. 21 Grace, 461 U.S. 171, 177 (1983) (internal quotations omitted) (citing Perry Educ. Assn. v. Perry 22 Local Educator’s Assn., 460 U.S. 37, 45 (1983)). 23 24 ORDER- 3 1 In public forums, the government’s ability to constitutionally restrict expression is very 2 limited. “[T]he government may enforce reasonable time, place, and manner regulations so long 3 as the restrictions are content-neutral, are narrowly tailored to serve a significant government 4 interest, and leave open ample alternative channels of communication.” Grace, 461 U.S. at 177 5 (internal quotations omitted) (citing Perry, 460 U.S. at 45). Tumwater argues its restriction is a 6 time, place, and manner regulation and meets the Supreme Court’s prescriptions. 7 Mr. McClanahan claims that the City’s ordinance is a content-based regulation subject to 8 strict scrutiny. See Dkt. 10 at 8, 12. The City claims the ordinance is content neutral. Dkt. 17 at 9 9. Dealing with content-based restrictions, the Court applies a higher, strict scrutiny standard. 10 To permissibly enforce a content-based restriction, “[the state] must show that its regulation is 11 necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” 12 Perry, 460 U.S. at 45 (emphasis added). 13 As Tumwater’s ordinance undoubtedly curtails free speech, “the Government bears the 14 burden of proving the constitutionality of its actions.” United States v. Playboy Entm't Group, 15 Inc., 529 U.S. 803, 816 (2000). 16 The City has shown the ordinance to be a reasonable time, place, and manner restriction 17 as it has demonstrated that the ordinance is content neutral, narrowly tailored to serve a 18 significant government interest, and leaves open ample means of communication. 19 20 a. The City’s Restriction is Content Neutral. The primary consideration to determine content neutrality is “whether the government 21 has adopted a regulation of speech because of disagreement with the message it conveys.” Ward 22 v. Rock Against Racism, 491 U.S. 781, 791 (1989); Menotti v. City of Seattle, 409 F. 3d 1113, 23 1128 (9th Cir. 2005). The Court must look to the government’s purpose as the controlling 24 ORDER- 4 1 consideration. Ward, 491 U.S. at 791. “A regulation that serves purposes unrelated to the 2 content of expression is deemed neutral, even if it has an incidental effect on some speakers or 3 messages but not others.” Id. 4 In this case, Tumwater’s limitation—barring signs “located upon or projecting over 5 public streets, sidewalks or rights-of-way, except those of an official nature”—is based on 6 location and speaker rather than content. TMC § 18.44.080(I). The code does not differentiate 7 between different types of speech favoring some content by permitting it to be placed in the 8 right-of-way while prohibiting other content. 9 The Ninth Circuit has held that an enforcement officer may look to the “content neutral 10 element[] of who is speaking through the sign.” Reed v. Town of Gilbert Arizona, 587 F.3d 966, 11 976 (9th Cir. 2009). The Tumwater code allows only signs “posted by a local government 12 agency.” That agency then is “speaking through the sign.” The enforcement officer need not 13 consider the substance of the sign’s message; only the neutral element of whether a local 14 government agency placed it in the right-of-way. 15 The City did not remove Mr. McClanahan’s sign based on “disagreement with a message 16 sought to be conveyed.” G.K. Limited, 436 F.3d at 1071. Rather, it was removed because it was 17 in the right-of-way and because it was not placed there by a governmental agency. The 18 ordinance is content neutral. 19 b. The City’s Ordinance is Narrowly Tailored to Advance a Significant Government Interest. 20 Though Tumwater’s sign ordinance is content neutral, it must also be narrowly tailored to 21 actually advance a significant governmental interest. Ward, 491 U.S. at 791. The regulation, 22 however, “need not do so in the least restrictive or intrusive way.” Ward, 491 U.S. at 798-99; 23 Reed, 587 F.3d at 979 (quoting G.K. Ltd., 436 F.3d at 1073-74). Rather, “the requirement of 24 ORDER- 5 1 narrow tailoring is satisfied so long as the … regulation promotes a substantial government 2 interest that would be achieved less effectively absent the regulation.” Ward, 491 U.S. at 799 3 (internal quotations omitted). The government’s chosen means of promoting its interests, 4 however, may not be “substantially broader than necessary.” Id.; Reed, 587 F.3d at 979. 5 The Court looks to the challenged code itself to determine what interests the city attempts 6 to advance by restricting speech. See, Foti, 146 F.3d at 637 (“The City’s asserted interests in the 7 ordinance are the oft-invoked and well-worn interests in preventing visual blight and promoting 8 traffic and pedestrian safety.”); Reed, 587 F.3d at 975; G.K. Ltd., 436 F.3d at 1072. The 9 Tumwater code states in relevant part that, “it is the intent of these regulations to protect public 10 safety.” TMC 18.44.010(B). 11 The interest in public safety is “readily recognized as [a] significant government 12 interest[].” Reed, 587 F.3d at 979 (relying on Metromedia v. City of San Diego, 453 U.S. 490, 13 507-508, 101 S.Ct. 2882, 69 L.Ed.2d 80 (1981), One World One Family Now v. City and County 14 of Honolulu, 76 F.3d 1009, 1013 (9th Cir. 1996)). The City’s identification in the code of the 15 recognized interest satisfies the requirement that the government put forth a significant interest. 16 Reed, 587 F.3d at 980 (citing Get Outdoors II v. City of San Diego, 506 F.3d 886, 893-94 (9th 17 Cir. 2007)). 18 The Reed Court held that time and place limitations on event signs actually did advance 19 the government’s interest and were not substantially broader than necessary, 587 F.3d at 980. It 20 acknowledged that while the limitations may not allow for the optimum exposure and 21 convenience, that was not the appropriate test. Id. The test is whether the government’s means 22 were substantially broader than necessary. Id. (quoting G.K. Ltd., 436 F.3d at 1074). Because 23 24 ORDER- 6 1 the city allowed the signs on a limited timeframe with specific location limitations, the ordinance 2 was not overly inclusive. Reed, 587 F.3d at 981. 3 Tumwater similarly restricts the location of signs, but otherwise allows signs with 4 political and other kinds of speech. Though this limitation may not allow the person placing the 5 sign “optimum exposure and convenience,” it does permit such speech when it is not placed in 6 the right-of-way. Mr. McClanahan displayed other signs not within the right-of-way, including a 7 larger sign with the same message as the sign City employees removed. Mr. McClanahan was 8 able to retrieve the sign and was able to display it in a nearby location not within the right-of9 way. 10 Tumwater’s interest in traffic safety and aesthetics is a recognized government interest. 11 Its means of advancing and defending this interest are not substantially broader than necessary. 12 The code is narrowly tailored to advance a significant government interest. 13 c. The City’s Ordinance Allows for Ample Alternative Methods of Communication 14 Mr. McClanahan has many alternative methods of communication available. Even if 15 those methods are not his preference, the Ninth Circuit has held that the test is not one of optimal 16 convenience, but whether the regulation “foreclose[s] an entire medium of public expression 17 across the landscape of a particular community or setting.” Reed, 587 F.3d at 980 (internal 18 quotations omitted) (quoting G.K. Ltd., 436 F.3d at 1074). 19 Mr. McClanahan asserts that this is precisely what the City regulation has done. Dkt. 10 20 at 10. Considering a permit requirement exception for temporary event-based signs, however, 21 Reed affirmed the District Court’s proposed alternative means of communication. 587 F.3d 98022 81. These included: “distributing leaflets, sending email messages or mail advertisements, 23 walking the sidewalks with signs advertising the church services, posting signs carrying religious 24 ORDER- 7 1 messages on their own property, and advertising in the newspaper, phonebook or other print 2 media.” Id. Similar alternatives exist to Mr. McClanahan in addition to the seemingly superior 3 alternative of which he has availed himself, posting his sign mere inches back so that it does not 4 protrude into the right-of-way. 5 2. Tumwater’s Ordinance is Not Unconstitutionally Vague 6 Mr. McClanahan claims that Tumwater’s ordinance is unconstitutionally vague as the 7 statute neither defines right-of-way nor “articulates any standards used by city enforcement staff 8 for evaluating the location of a sign.” Dkt. 10 at 13. Mr. McClanahan bears the burden of 9 proving this claim. Hill v. Colorado, 530 U.S. 703, 732 (2000) (petitioners failed to establish 10 that the challenged statute was unconstitutionally vague); Human Life of Washington, Inc. v. 11 Brumsickle, 624 F.3d 990, 1019-21 (9th Cir. 2010) (Human Life failed to establish that terms in 12 the statute were unconstitutionally vague). 13 Though Mr. McClanahan accurately points out that the city ordinance does not define the 14 term “right-of-way,” the test for vagueness is not whether it is defined within the statute. Rather, 15 “[a] statute can be impermissibly vague for either of two independent reasons. First, if it fails to 16 provide people of an ordinary intelligence a reasonable opportunity to understand what conduct 17 it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory 18 enforcement.” Hill, 530 U.S. at 732. 19 The Supreme Court does not employ a technical legal analysis to make this 20 determination; it follows common sense logic. Hill, 530 U.S. at 732 (saying, “[t]he likelihood 21 that anyone would not understand any of those common words seems quite remote”). That 22 anyone would not understand the term “right-of-way” is similarly remote. 23 The Ninth Circuit and the Washington Supreme Court have each dealt with statutes that 24 included the term “right-of-way” and have not found those statutes impermissibly vague. G.K. ORDER- 8 1 Limited, 436 F.3d at 1076; Collier v. City of Tacoma, 121 Wn.2d 737, 744 (1993). The 2 Washington Supreme Court apparently relied on testimony from a Tacoma Public Works 3 Department employee to understand precisely where the city prohibited certain signs and still did 4 not consider the term impermissibly vague. Collier, 121 Wn.2d at 743-44 fn.2. 5 The ordinary meaning of right-of-way is sufficiently clear. This is not a complex 6 ordinance and only one location, the right-of-way, is at issue. Others in violation of the 7 ordinance did not claim they were confused or unclear as to what the ordinance mandated. A 8 person of ordinary intelligence has a reasonable opportunity to understand the conduct the 9 ordinance prohibits. 10 Mr. McClanahan has offered no evidence that the ordinance authorizes or encourages 11 discriminatory enforcement, the way to challenge a statute for vagueness under Hill. 530 U.S. at 12 732. Therefore his claim fails this test for unconstitutional vagueness as well. The Supreme 13 Court has said, “[a]s always, enforcement requires the exercise of some degree of police 14 judgment.” Id. at 733. Here, as discussed below, the breadth of the statute ensures that 15 enforcement cannot be arbitrary or discriminatory as the statute delegates almost no discretion to 16 enforcement officers. 17 Given the lack of demonstrated confusion and the lack of evidence of arbitrary or 18 discriminatory enforcement, the Court holds that the ordinance is not unconstitutionally vague. 19 3. Tumwater’s Ordinance is not Overly Broad 20 Mr. McClanahan relies on the overbreadth doctrine for standing on behalf of others to 21 assert that this statute violates their rights by chilling their constitutionally protected expressive 22 conduct. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). The Supreme Court has carefully 23 circumscribed this doctrine to prevent courts from prohibiting states from enforcing a challenged 24 law in situations where it is valid. Id. at 615. To limit this doctrine, the Court requires ORDER- 9 1 “particularly where conduct and not merely speech is involved…that the overbreadth of a statute 2 must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate 3 sweep.” Vincent, 466 U.S. at 799 (quoting Broadrick, 413 U.S. at 615). 4 Requiring “substantial overbreadth,” the Court has stated that “[t]he bare possibility of 5 unconstitutional application is not enough.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 217 6 (1975). The statute must “significantly compromise recognized First Amendment protections of 7 parties not before the court for it to be facially challenged on overbreadth grounds.” Vincent, 8 466 U.S. at 801. 9 Mr. McClanahan bears the burden of proving that this statute is overly broad and has 10 failed to do so. Hill, 530 U.S. at 732 (petitioners failed to establish that the challenged statute 11 was overbroad). Mr. McClanahan has not shown that application of this statute would be 12 unconstitutional as applied to any third party not before the Court. This is critical because as 13 applied to Mr. McClanahan, the application of the ordinance was constitutional. 14 Even if he had standing, Mr. McClanahan has failed to show that the statute is 15 substantially overbroad and would significantly compromise First Amendment protections in an 16 impermissible manner. 17 4. Tumwater’s Ordinance Does Not Constitute a Prior Restraint 18 Mr. McClanahan argues that giving public officials “the power to deny use of a forum in 19 advance of actual expression” constitutes a prior restraint. Dkt. 10 at 13 (relying on Ward, 491 20 U.S. 795 fn. 5). 21 World Wide Rush clarifies that legislative discretion to restrict speech is not the primary 22 concern under the prior restraint doctrine. World Wide Rush, LLC v. City of Los Angeles, 606 23 F.3d 676, 687 (9th Cir. 2010). Rather, the concern typically arises when “discretion is delegated 24 to an administrator, police officer, or other executive official, as opposed to a legislative body.” ORDER- 10 1 Id. at 688 (internal quotations omitted) (relying on Long Beach Area Peace Network, 574 F.3d 2 1011, 1042 (9th Cir. 2008)). To correct or curtail the potential for this abuse, “[r]egulations must 3 contain narrow, objective, and definite standards to guide the licensing authority and must 4 require officials to provide an explanation for his decision.” World Wide Rush, 606 F.3d at 687 5 (internal quotations omitted). Alternatively, the regulation may not ban expression but regulate 6 it as to time, manner, and place. Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 126 (1997). 7 Here, little opportunity for abuse of discretion exists because there has been no delegation 8 of discretion. In fact, an enforcement agent has authority to consider only whether the sign is in 9 the right-of-way, and if so, whether it is an official sign. By comparison, under a permitting 10 structure, the official would have the authority to grant or deny a permit on a case-by-case basis 11 for the speaker to exercise his or her First Amendment rights in the forum. See e.g., Forsyth 12 County v. Nationalist Movement, 505 U.S. 123, 130-31 (1992) The breadth of Tumwater’s 13 restriction leaves almost no discretion in the hands of the officer and therefore does not 14 constitute an unlawful prior restraint. Furthermore, as discussed above, Tumwater’s ordinance is 15 a valid time, manner, and place restriction. 16 5. Plaintiff Has Not Properly Asserted Claims Under the Washington State Constitution. 17 Mr. McClanahan cursorily alleges a claim under the Washington State Constitution. 18 Article 1 § 5 of the Washington Constitution provides, “[e]very person may freely speak, write 19 and publish on all subjects, being responsible for the abuse of that right.” Washington State 20 courts have determined that strict scrutiny applies to all time, manner and place restrictions on 21 speech under the Washington Constitution. Collier, 121 Wn.2d at 747. Rather than showing 22 that a restriction advanced a significant government interest as under the federal constitution, 23 Washington courts have required that the restriction advance a compelling government interest. 24 ORDER- 11 1 Id. Further, in at least one similar situation, the government interest in aesthetics and safety did 2 not rise to a compelling state interest. Id. at 754-56. 3 However, in order to demonstrate that the state constitution rather than the federal 4 constitution applies, the plaintiff must allege six factors laid out in State v. Gunwall, 106 Wn.2d 5 54, 58 (1986). Collier, 121 Wn. 2d at 748 fn. 5. As these factors were not set forth in this case, 6 the issue is not properly before this Court. It would be inappropriate to hear this state claim in 7 the absence of requisite analysis and therefore the Court declines to do so. 8 B. Plaintiff Has Not Established a Likelihood of Irreparable Harm, an Equitable Entitlement, or that an Injunction Is in the Public Interest. 9 Though failure to show the likelihood of success on his constitutional claim is fatal to his 10 motion, Mr. McClanahan’s request for an injunction also fails the remaining Winter elements. 11 555 U.S. at 20. 12 The City’s ordinance did not impermissibly restrict Mr. McClanahan’s First Amendment 13 rights. As a result, he did not suffer any constitutionally recognized harm when the City 14 enforced the ordinance. He, therefore, did not suffer irreparable harm as the second Winter 15 prong requires. Winter, 555 U.S. at 20. There is no balance of equities that tips in Mr. 16 McClanahan’s favor. He is still free to display any sign he would like outside of the right-of17 way. 18 *** 19 *** 20 *** 21 *** 22 *** 23 *** 24 ORDER- 12 1 The public interest in right-of-way safety and accessibility render Mr. McClanahan’s request 2 impracticable. The Supreme Court and Ninth Circuit have recognized the significant 3 governmental interest in traffic safety. That interest is the public interest and trumps Mr. 4 McClanahan’s private interest in displaying his signs in the public rights-of-way. 5 It is so ORDERED that Plaintiff McClanahan’s motion for a preliminary injunction is 6 therefore DENIED. 7 DATED this 6th day of March, 2012 A 8 9 Ronald B. Leighton United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER- 13

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