Baldwin v. Redwood City

Decision Date09 August 1976
Docket Number75-3132,Nos. 75-1412,75-3042 and 75-3529,s. 75-1412
Citation540 F.2d 1360
PartiesAlan L. BALDWIN and George Q. Cannon, Jr., Plaintiffs-Appellees, v. REDWOOD CITY et al., Defendants-Appellants. Alan L. BALDWIN and George Q. Cannon, Jr., Plaintiffs-Appellants, v. REDWOOD CITY et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit
OPINION

Before BROWNING and CHOY, Circuit Judges, and SKOPIL, * District Judge.

BROWNING, Circuit Judge:

Alan L. Baldwin and George Q. Cannon, Jr., property owners, residents, and registered voters of Redwood City, brought this action for injunctive and declaratory relief challenging certain Redwood City ordinances governing the display of temporary signs, including political campaign signs, as violative of the First Amendment. Baldwin and Cannon filed their complaint less than a month before the April 9, 1974, general election in Redwood City. They stated that Redwood City's temporary sign regulations has prevented them from erecting signs on behalf of a candidate for Redwood City Council, subsequently defeated in the April 1974 election.

Redwood City has adopted a detailed code governing the erection, location, and maintenance of all types of signs within the city. The challenged provisions are found in a division of this code dealing with "temporary signs," which is reproduced in full in the margin. 1 It constitutes a succinct but comprehensive regulatory scheme controlling the use of temporary signs.

Temporary signs are exempt from provisions of the general sign ordinance imposing design and structural controls upon signs (section 3.133). Temporary signs may be used only for advertising an event occurring on a specific date "such as elections" (section 3.134). They may be maintained for no more than 60 days, and must be removed within 10 days after the advertised event (section 3.135). A permit must be obtained for each temporary sign. Every application for a permit must be accompanied by a $1.00 nonrefundable inspection fee and a $5.00 refundable deposit to assure removal (section 3.136). No temporary sign may exceed 16 square feet (section 3.137(a)). The aggregate area of such signs on any parcel in one ownership may not exceed 80 square feet (Id. ). The aggregate area of such signs advertising a single candidate or issue may not exceed 64 square feet (section 3.137(b)). No such sign is permitted on public property (section 3.138). None is permitted in a residential zoned district of the city (section 3.139). The building inspector may after 24 hours' written notice remove any sign erected in violation of the ordinance, and "without notice, remove any temporary sign which is erected, placed or maintained in violation of this article in any zoning district" (section 3.89). 2

On cross motions for summary judgment the district court declared unconstitutional the nonrefundable $1.00 inspection fee for each sign, the limitation to 64 square feet of the aggregate area of all signs on behalf of a candidate or ballot proposition, and the ban on placing such signs in residential areas. On subsequent motions for summary judgment the court sustained the requirement of a $5.00 refundable deposit per sign and the provision for summary removal of signs placed in violation of the ordinance. After trial, the court also sustained the requirement that a permit be obtained for each temporary sign, the limitation of the area of each sign to 16 square feet, and the limitation of the aggregate area of all signs on a single parcel of property to 80 square feet. Both sides appeal. 3

I

There are two preliminary matters.

A. On July 8, 1975, the district court entered an order granting a motion for summary judgment upholding certain of the challenged provisions. Issues relating to the constitutionality of other provisions were tried to the court. Final judgment was entered on July 30, 1975. The notice of appeal filed by Baldwin and Cannon states that the appeal is "from the judgment entered in this action on July 30, 1975 . . . ." Redwood City officials argue that Baldwin and Cannon waived their right to appeal the July 8 order because that order was not expressly incorporated in the final judgment, and Baldwin and Cannon did not file a separate notice of appeal within 30 days of the " final" order of July 8 as required by Federal Rule of Appellate Procedure 4(a). We disagree. The order of July 8 denied Baldwin and Cannon's prayer for injunctive relief as to provisions sustained by the order. Although the order was interlocutory, it was nevertheless appealable. 4 Baldwin and Cannon lost their right to an interlocutory appeal from the July 8 order because they did not file a notice of appeal within 30 days. 5 But an interlocutory appeal is permissive, not mandatory. When an appeal is not taken, the interlocutory order merges in the final judgment and may be challenged in an appeal from that judgment. 6

B. The complaint alleged that Baldwin and Cannon were supporters of Melvin Kerwin, candidate for the Redwood City Council in the 1974 election, and were prevented by the challenged ordinance from erecting signs of the size and at the locations they desired in support of Kerwin's candidacy. The election has been held. Kerwin was defeated and, allegedly, will not run again. Redwood City officials argue that the case is moot, relying upon Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). Zwickler challenged a state statute barring distribution of anonymous literature in an election campaign. Not only had the election been held, but Zwickler 's opposition was directed solely against a particular congressman, who had since been appointed to a 14-year term as a state supreme court justice. It was therefore "most unlikely" that he would be a candidate again. On these facts, the Supreme Court concluded that an "actual controversy" of sufficient "immediacy and reality" to warrant issuance of a declaratory judgment was lacking.

This case is different. Baldwin testified that he was engaged actively in politics in the Redwood City area for nearly 20 years. He has participated, and made use of political signs, in both partisan and nonpartisan elections, including elections for the Redwood City Council and the board of Redwood City high school. He has supported candidates other than Melvin Kerwin indeed, has been a candidate himself. He testified that there would be future occasions in which he would want to use such political posters in a manner prohibited by the challenged provisions. The district court found that Redwood City officials would continue to enforce the challenged provisions against Cannon or other persons wishing to erect political campaign posters in future municipal elections. Thus, the record established Baldwin's continuing interest in local political campaigns involving the use of such signs and a continuing determination on the part of Redwood City officials to enforce the ordinances. On these facts, a future confrontation is likely; an immediate and real controversy exists. Moreover, given the frequency and brevity of local political campaigns and the length of time required to complete judicial proceedings, the issue is one "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). 7 These appeals are not moot.

II

Before considering the district court's rulings on each of the challenged provisions, we state our understanding of the tests to be applied.

Both the parties and the district court rely upon concepts drawn from cases involving challenges to state and local statutes under the Equal Protection Clause. The Supreme Court has employed a different analysis in evaluating governmental restrictions on free speech. In First Amendment cases involving statutes similar to Redwood City's temporary sign regulations, the Court's approach has been one of balancing rather than classifying. 8 The following general rule may be drawn from decisions in which state and municipal enactments have been weighed against the First Amendment: Incidental restrictions upon the exercise of the First Amendment rights may be imposed in furtherance of a legitimate governmental interest if that interest is unrelated to suppression of expression and is substantial in relation to the restrictions imposed, and if the restrictions are no greater than necessary or essential to the protection of the governmental interests. 9

Significant First Amendment interests are involved in this case. Communication by signs and posters is virtually pure speech. 10 The element of conduct in a sign posted on behalf of an issue or candidate during a campaign is minimal. Baldwin and Cannon seek to use posters in political campaigning, and "the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office." Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971). 11 Posters and signs are erected adjacent to "traditional first amendment forums, such as public sidewalks and other thoroughfares," Aiona v. Pai, 516 F.2d 892, 893 (9th Cir. 1975) 12 where "expressive activity may be restricted only for weighty reasons." Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972). 13 Redwood City's regulations inhibit the use of political signs in two principal ways: the permit and free requirements make it difficult to post signs 14; and various other restrictions on their face limit the quantity, size, and placement of signs. The regulations thus directly infringe t...

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