City Of Lakewood, Res/cross-petitioner V. Robert W. Willis, Petr/cross-respondent (Majority and Concurrence)

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T= ILED COURT OF APPEALS G O IN THE COURT OF APPEALS OF THE STATE OF WAS Z015 APP - 7 ON AM 9: 22 DIVISION II STATE OF WASHINOTON No05034 - -IL 8 CITY OF LAKEWOOD, DEPU Respondent /Cross -Petitioner, v. UNPUBLISHED OPINION ROBERT W. WILLIS, Petitioner / Cross Respondent. MELNICK, J. — On discretionary review, Robert Willis challenges his municipal court jury trial conviction of begging in restrictive areas. Willis argues that the City of Lakewood' s ( City' s) anti -begging ordinance is unconstitutional because it infringes on his freedom of speech, it is unconstitutionally vague, and it discriminates against the poor. We reject Willis' s freedom of speech and vagueness arguments and hold that the ordinance is a constitutional restriction on conduct in a non public forum, and affirm the superior court. We also dismiss Willis' s claim that the ordinance violates equal protection by discriminating against the poor because review was improvidently granted on superior court erred this issue. by declining We do not reach the City' s cross -review claim that the to hold that the ordinance is content neutral. Accordingly, we affirm the superior court. FACTS AND PROCEDURAL HISTORY A person called 911 to report an individual banging on his or her car while begging for money on the northbound I -5 exit at Gravelly Lake Drive. A Lakewood police officer responded to the scene and found Willis standing on the shoulder of the northbound 5 I - ramp, facing south 45034 -8 -II toward oncoming traffic.1 Willis had a cardboard sign stating he was disabled and needed help. Willis approached a car by walking out from the shoulder and into the lane of travel. The City 09A.4. 020A under any the City whether charged provides: " following roadway by words, Willis with in begging restrictive areas under LMC 09A.4. 020A. LMC Begging shall be deemed a violation of this section of the municipal code conditions: ( or overpass." bodily 1) at on and off ramps leading to and from state intersections from Begging is defined as " asking for money or goods as a charity, gestures, signs or other means." LMC 09A. 4. 020( E). A municipal court jury found Willis guilty of begging in restrictive areas. Willis appealed to the Pierce County Superior Court and, for the first time, raised constitutional challenges to the ordinance.2 The superior court affirmed his conviction and held that LMC 09A.4. 020A is a reasonable time, place, and manner regulation that does not violate the First Amendment, the Due Process Clause, the Equal or Protection Clause. The superior court reasoned that the ordinance was " narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Clerk' s Papers ( CP) at 108. The City argued that the restrictions were content neutral; however, the superior court did not rule on the issue. Willis and the City petitioned this court for discretionary review, which we granted. We affirm the superior court. 1The record is somewhat confusing, as it appears to indicate that the citing officer was coming southbound from the north, meaning that if Willis had been on the northbound ramp, the officer would have had to established any City cross that Willis roadway the median to reach was at an " on [ or] off or overpass." Willis. ramp[] Regardless, the uncontroverted testimony leading to [ or] from state intersections from LMC 09A.4. 020A. This fact suffices for the foregoing analysis. 2 Because Willis did not raise his constitutional issues in the municipal court, the factual record is not well developed. 2 45034 -8 -II ANALYSIS STANDARD OF REVIEW I. The constitutionality of a statute or ordinance is a matter of law we review de novo. Kitsap County v. Mattress Outlet, 153 Wn.2d 506, 509, 104 P. 2d 1280 ( 2005). In general, a duly enacted ordinance is presumed constitutional, and the challenger must demonstrate its unconstitutionality beyond a reasonable context, the burden doubt. Mattress Outlet, 153 Wn.2d shifts to the State to justify at 509. But in the First Amendment a restriction on speech. Greater New Orleans BroadcastingAss' n, Inc. v. United States, 527 U.S. 173, 183, 119 S. Ct. 1923, 144 L. Ed. 2d 161 This shift also occurs where the challenged law restricts the time, place, or manner of 1999). Collier speech. v. City of Tacoma, 121 Wn.2d 737, 759, 854 P. 2d 1046 ( 1993). As we explain below, LMC 09A.4. 020A restricts the place of speech. Therefore, Lakewood bears the burden to meet each element of the time, place, and manner test. II. FIRST AMENDMENT Willis argues that LMC 09A.4. 020A violates his right to freedom of speech because it is a based content - prohibition on speech and less restrictive alternatives were available. Even if the ordinance were content -neutral, Willis argues that the City failed to demonstrate that the ordinance supported a compelling state interest or was reasonably related to supporting that interest. The. City argues that LMC 09A.4. 020A is a permissible regulation of speech in a non -public forum. Alternatively, the City argues that LMC 09A.4. 020A is permissible as a content -neutral restriction on the time, place, or manner of speech. We agree with the City and hold that a freeway onramp is public a non - forum. We hold that LMC 09A.4. 020A is a reasonable and viewpoint neutral regulation, and we affirm the superior court without reaching the City' s alternative argument. 3 45034 -8 - II Forum Analysis A. Forum analysis requires a two -step inquiry. First, we must determine the type of forum affected by the restriction here: Is it a public forum, a limited public forum, or a nonpublic forum? If the forum is determined to be nonpublic, the restriction is constitutional if it is reasonable in light of the of purposes the forum and is neutral." viewpoint - Herbert v. Wash. State Pub. Disclosure Comm' n, 136 Wn. App. 249, 263, 148 P. 3d 1102 ( 2006). The First Amendment to the federal constitution protects the right to freedom of speech.3 But the government is not obligated to permit all forms of speech on property that it owns and controls. Sanders v. City of Seattle, 160 Wn.2d 198, 208, 156 P. 3d 874 ( 2007). Therefore, "[ i] n reviewing a free speech challenge to a government regulation, the level of judicial scrutiny is determined by the category into which a specific type of property falls." Sanders, 160 Wn.2d at 208. The public courts forums purposes of questions. ' distinguish between three which "' have assembly, immemorially communicating forums. been held in trust for the thoughts between First, there are traditional use of citizens, the public and ... for and discussing public quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 515, 59 S. Ct. 954, 83 L. Ed. 1423 ( 1939)). To be 3" of Perry Educ. Ass 'n v. Perry Local Educators' Ass 'n, 460 U. S. 37, 45, 103 S. Ct. 948, 74 L. Ed. 2d 794 ( 1983) ( purpose ... categories the free exchange of a traditional ideas. ' public forum, a property must have "` as a principal Sanders, 160 Wn.2d at 209 ( quoting Intl Soc' y for Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government amend. I. 4 for a redress of grievances." U. S. CONST. 45034 -8 -II Krisha Consciousness, Inc. v. Lee, 505 U. S. 672, 679, 112 S. Ct. 2701, 120 L. Ed. 2d 541 ( 1992) alteration original) ( internal in Second, nontraditional the quotation marks omitted)). government forum for public may create discourse." a public Cornelius v. forum " by intentionally opening a NAACP Legal Defense & Inc., 473 U. S. 788, 802, 105 S. Ct. 3439, 87 L. Ed. 2d 567 ( 1985). Educ. Fund, The courts will not " infer that the government intended to create a public forum when the nature of the property is inconsistent with expressive Third, " activity." Cornelius, 473 U. S. at 803. government property may be considered a nonpublic forum when it is not a traditional public forum and has not been designated by government as a forum for public communication." Sanders, 160 Wn.2d at 210. Here, Willis was convicted of begging on a freeway onramp. To determine whether the onramp is a public forum, we consider " whether a ` principal purpose' of the property is the free exchange of ideas, whether the property shares the characteristics of a traditional public forum, and the historical use of the property." Sanders, 160 Wn.2d at 211. Applying this analysis we hold that a freeway onramp is a non public forum. Freeway onramps are not, and have never been, principally intended as a forum for the exchange of ideas. and efficient They travel by are components of the motorists 1272, 1274 ( 9th Cir. 1997) ( Cir. 1991)). public Interstate System along the System' s highways. ' and are meant to "' facilitate safe Jacobsen v. Bonine, 123 F. 3d quoting Sentinel Commc' ns Co. v. Watts, 936 F.2d 1189, 1203 ( 1 lth Nothing in the record indicates that the government intended to open the freeways to discourse. Allowing expressive activity in the freeway and its onramps would disrupt the principal purpose of the freeway which is to facilitate travel. In fact, Willis' s activities disrupted travelers because he entered the lane of travel and approached cars. 5 Freeways and their onramps 45034 -8 -II are traditional not forums, public nor have they been designated as forums for public communication. Therefore, we hold that freeway onramps are nonpublic forums. Reasonable Restriction & Viewpoint Neutral B. Speech in in light of the nonpublic forums may be purpose served by the forum and are 111 Wn.2d 923, 926, 767 P. 2d 572 ( 1989) ( P. 2d 366 ( 1988)) ( alteration in restricted if ` ... the distinctions drawn are reasonable viewpoint neutral.' City of Seattle v. Huff, quoting City ofSeattle v. Eze, 111 Wn.2d 22, 32, 759 original) ( internal quotation marks omitted). 4" Viewpoint- neutral regulations are those not in place ` merely because public officials oppose the speaker' s view. ' Herbert, 136 Wn. App. at 264 ( quoting Perry, 460 U.S. at 46). It is reasonable to prohibit begging activity in a forum that is primarily meant for the passage of automobiles. When persons confront motorists to ask for money, they interrupt the flow of traffic and disrupt the efficient functioning of the freeway system. Begging on the freeway also creates significant safety risks, particularly where, like Willis, a person enters into cars' lanes of travel. LMC 09A. 4. 020A is also viewpoint neutral. See Herbert, 136 Wn. App. at 264. Under the ordinance, no one may beg on a freeway onramp, regardless of why they are begging. In other words, even though the ordinance restricts the speaking of certain content, the ordinance does not concern itself with the speaker' s viewpoint. The ordinance evenhandedly regulates conduct, not to suppress any particular viewpoint, but to reduce a potentially severe threat to public safety. We 4 Because Willis raised his constitutional challenges for the first time on appeal, we are mindful that the City was precluded from making a complete factual record to defend its positions. For example, it never litigated the compelling interest the City had in enacting the ordinance. Nonetheless, we feel there are sufficient facts on the forum issue for us to decide the case. 45034 -8 -II hold that LMC 09A.4. 020A is a permissible regulation of a nonpublic forum, and we affirm the superior court without reaching the City' s arguments on cross -review. VAGUENESS. III. Willis argues that LMC 09A.4. 020A is unconstitutionally vague and violates the Due Process Clause of the Fourteenth Amendment. The City argues that Willis has failed to provide facts to support his vagueness claim, and that even if the record were adequate to permit review of Willis' s claim, LMC 09A. 4. 020A is not void for vagueness. We agree with the City and affirm the superior court. Willis appears to challenge LMC 09A.4. 020A as unconstitutionally vague on its face. When it is alleged that a statute is wholly unconstitutional, the court looks not to the conduct of the defendant, but to the face of the statute to determine whether any conviction under the statute could be constitutionally upheld. "' State v. Maciolek, 101 Wn.2d 259, 262 -63, 676 P. 2d 996 ( 1984) quoting State v. Hood, 24 Wn. App. 155, 158, 600 P. 2d 636 ( 1979)). An ordinance is sufficiently specific if two requirements are met: " First, criminality must be defined with sufficient specificity to put citizens on notice concerning conduct they must avoid. And second, legislated crimes must not be susceptible of arbitrary and discriminatory law enforcement." Kolender v. City of Seattle v. Webster, 115 Wn.2d 635, 642 -43, 802 P. 2d 1333 ( 1990); accord Here, both Lawson, 461 U. S. 352, 357 -58, 103 S. Ct. 1855, 75 L. Ed. 2d 903 ( 1983). requirements are satisfied. LMC 09A.4. 020A very clearly describes money or goods 09A. 4. 020( E). what conduct as a charity" while on a what freeway behavior is onramp or proscribed, other i. e. " enumerated asking for area. LMC The ordinance gives citizens and law enforcement alike precise direction about is forbidden, and where it is forbidden. Willis complains that the ordinance would 45034 -8 -II sweep in " all charities political campaigns or asking for interest people requesting donations in support of contributions ... groups ... [ and] people stranded on the side of a road. Br. of Appellant at 19. Even if we accept Willis' s position, it does not make the ordinance vague. Willis does not argue that LMC 09A.4. 020A " Roulette v. City of Seattle, 850 F. Supp. 1442, 1446 ( W.D. Wash. 1994), prohibited conduct." aff'd, 97 F. 3d 300 ( 9th Cir. 1996) ( an constitutes invest[ s] a police officer with discretion to define the infraction." Rather, " the ordinance itself defines what emphasis added). Roulette, 850 F. Supp. at 1446. LMC 09A.4. 020A is not unconstitutionally vague, and we reject Willis' s vagueness challenge. IV. EQUAL PROTECTION Willis argues that LMC 09A.4. 020A discriminates against " individuals that need help or money" in Appellant violation at 21. of the Equal Protection Clause of the Fourteenth Amendment. Br. of The City argues that Willis has failed to provide facts to support his equal protection claim, and that even if the record were adequate to permit review of Willis' s claim, LMC 09A.4. 020A does not impermissibly discriminate against the poor. We agree that the record is not adequate to properly analyze Willis' s equal protection claim, and we hold that we improvidently granted discretionary review of Willis' s equal protection challenge. As a threshold to any equal protection challenge, a party must establish that he or she is similarly situated with other persons in a class who have received different treatment under the same law. State v. Osman, 157 Wn.2d 474, 484, 139 P. 3d 334 ( 2006). Willis argues that LMC 09A.4. 020A discriminates on the basis of poverty. But the record does not indicate whether Willis is impoverished. It is true that the not mean that Willis municipal court found Willis indigent. is below the poverty line —only 8 But this finding does that he " lacks sufficient funds to prosecute 45034 -8 -II an appeal." CP at 115. On this record, Willis cannot meet his burden to show that he is similarly situated with members of the allegedly targeted class. Even if Willis could show that he was similarly situated with the impoverished, this record is to determine the not adequate merits of Willis' s equal protection claim. " A defendant must establish that he received disparate treatment because of membership in a class of similarly situated individuals and that the disparate treatment was the result of intentional or purposeful discrimination." Osman, 157 Wn.2d at 484. Because Willis failed to raise the equal protection issue in the municipal court, the record is insufficient for us to adequately determine the City' s intent or purpose for passing LMC 09A. 4. 020A. Willis argues that the City failed to meet its burden; however, because he never raised it in the municipal court, neither the City nor Willis had the opportunity to present all of the facts necessary to decide this issue. Evidence of the challenged statute' s disparate impact may establish the requisite discriminatory intent or purpose. Vill. ofArlington Heights v. Metro. Hous. Dev. Corp., 429 U. S. 252, 266, 97 S. Ct. 555, 50 L. Ed. 2d 450 ( 1977). Absent a " clear pattern, unexplainable on grounds other at than [ the alleged class] ... 266. applied or impact alone is not determinative." Arlington Heights, 429 U. S. Here, nothing in the record speaks to the impact of LMC 09. 4. 020A, or how it is being in the field. Willis' firefighters in violation s allegation of that "[ this law, only o] fficers are not arresting charitable organizations poor people," is without substantiation. Appellant at 22. On this record, we are unable to perform a disparate impact inquiry. 9 Br. of 45034 -8 -II We dismiss Willis' s equal protection claim as improvidently granted, and we affirm the superior court. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. I concur: 10 45034 -8 -II BJORGEN, A. C. J. ( concurring) — The majority opinion holds, correctly, that the record is not adequate to properly analyze Willis' s equal protection claims. The majority opinion also concludes, however, that as a matter of law a finding of indigency does not necessarily mean that Willis is below the poverty line for equal protection purposes. Whether correct or not, a conclusion this elemental to the law' s treatment of the disadvantaged should not be made on an inadequate record and without thorough briefing. In Douglas v. California, the Court held, using an equal protection analysis, that those who are indigent have the right to public counsel for their first appeal as a matter of right. The evil, Justice Douglas wrote, is discrimination against the indigent. For there can be no equal justice where the kind of an appeal a man enjoys " depends on the amount of money he has." 372 U. S. 353, 355, 83 S. Ct. 814, 9 L. Ed. 2d 811 ( 1963) ( 19, 76 S. Ct. 585, 100 L. Ed. 891 ( 1956)). quoting Griffin v. Illinois, 351 U.S. 12, 5 With this opinion, the Supreme Court recognized that indigency, when coupled with the restriction of a right of sufficient stature, is a classification that triggers enhanced scrutiny under the equal protection clause. The result and reasoning of Douglas remain vital. In 2005 the United States Supreme Court, relying principally on Douglas, held that the due process and equal protection clauses also require the appointment of counsel for 5 The Supreme Court has recognized that due process and equal protection principles converge in the Court' s analysis of this family of issues. Bearden v. Georgia, 461 U.S. 660, 665, 103 S. Ct. The Court stated that " we generally analyze the fairness of relations between the criminal defendant and the State under the Due Process Clause, while we 2064, 76 L. Ed. 2d 221 ( 1983). approach the question whether the State has invidiously denied one class of defendants a substantial benefit available to another class of defendants under the Equal Protection Clause." Bearden, 461 U. S. at 665. 11 45034 -8 -II defendants, convicted on their pleas, who seek access to first -ier review in the Court of Appeals. t Halbert v. Michigan, 545 U.S. 605, 610, 125 S. Ct. 2582, 162 L. Ed. 2d 552 ( 2005). The Supreme Court has also made clear that poverty, standing alone, is not a suspect classification. Harris v. McRae, 448 U. S. 297, 323, 100 S. Ct. 2671, 65 L. Ed. 2d 784 ( 1980). However, a classification based on poverty or wealth can become a suspect classification, subject to more rigid scrutiny than other classifications, when such classification interferes with a fundamental constitutional right. 16B AM. JUR. 2d Constitutional Law, § 904. This recognition was at work in Douglas and is seen, although obliquely, in the Carolene Products footnote that laid one of the principal doctrinal footings for enhanced scrutiny under the constitution: There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. • United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4, 58 S. Ct. 778, 82 L. Ed. 1234 1938). The analysis was further refined in Bearden v. Georgia, 461 U. S. 660, 661, 665, 103 S. Ct. 2064, 76 L. Ed. 2d 221 ( 1983), which held that an indigent defendant' s probation may not be revoked for failure to pay a fine and restitution, absent findings that the defendant was somehow responsible for the failure or that alternative forms of punishment were inadequate. The Court prefaced its Fourteenth Amendment analysis by stating that it has long been sensitive to the treatment of indigents in our criminal justice system and citing a list of its cases dealing with the deprivation of the rights of an indigent person to counsel, appeals, and liberty. Bearden, 461 U. S. at 664 -65. 12 45034 -8 - II Our state Supreme Court has walked consistently with these precedents. In State v. Phelan, 100 Wn.2d 508, 514, 671 P. 2d 1212 ( 1983), the court applied an intermediate level of scrutiny in determining that jail time must be credited against the discretionary minimum term imposed under state law in effect before adoption of the Sentencing Reform Act of 1981, chapter 9. 94A RCW. Although our sentencing laws have changed, the court' s rationale for imposing heightened scrutiny remains strong: liberty, while not recognized as " fundamental ", is a basic human right and the poor, while not a suspect class, cannot be said to be fully accountable for their Physical status. Since a denial of credit for presentence jail time involves both a deprivation of liberty in addition to that which would otherwise exist, and a classification based solely on wealth, we will apply an intermediate level of scrutiny in the present case. Phelan, 100 Wn.2d at 514. Thus, neither the " fundamental" status of the right nor the suspect" nature of the class are necessary for heightened scrutiny. When one lacks the money to eat properly, the ability to effectively ask others for help becomes critical. When one is homeless or of fluctuating mental health, it may become effectively impossible to navigate the mazes of a social service system that at times would baffle a Theseus. Depending on one' s circumstances, the law' s restrictions on . ability to ask the individuals for help may ultimately jeopardize life, a constitutional interest among the most fundamental. This is not to argue that government may not ban aggressive panhandling on freeway ramps. It is to argue that the courts should not make rulings touching on the scope of the class of the poor for equal protection or due process purposes without a penetrating eye for 13 45034 -8 -II the facts of poverty in our nation and an acute review of what the case law requires in the world as it is. 14

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