622 F.3d 524 (6th Cir. 2010), 08-4679, Miller v. City of Cincinnati

Docket Nº:08-4679.
Citation:622 F.3d 524
Opinion Judge:MARTHA CRAIG DAUGHTREY, Circuit Judge.
Party Name:Mark MILLER; Coalition Opposed to Additional Spending & Taxes; and WeDemandAVote.Com, Plaintiffs-Appellees, v. CITY OF CINCINNATI; Milton R. Dohoney; and Joel Koopman, Defendants-Appellants.
Attorney:Paula Boggs Muething, City of Cincinnati, Office of the Solicitor, Cincinnati, Ohio, for Appellants. Christopher P. Finney, Finney Stagnaro Saba & Patterson Co., LPA, Cincinnati, Ohio, for Appellees. Paula Boggs Muething, City of Cincinnati, Office of the Solicitor, Cincinnati, Ohio, for Appellan...
Judge Panel:Before: DAUGHTREY, COLE, and GIBBONS, Circuit Judges.
Case Date:September 24, 2010
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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622 F.3d 524 (6th Cir. 2010)

Mark MILLER; Coalition Opposed to Additional Spending & Taxes; and WeDemandAVote.Com, Plaintiffs-Appellees,

v.

CITY OF CINCINNATI; Milton R. Dohoney; and Joel Koopman, Defendants-Appellants.

No. 08-4679.

United States Court of Appeals, Sixth Circuit.

September 24, 2010

Argued: Nov. 17, 2009.

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ARGUED:

Paula Boggs Muething, City of Cincinnati, Office of the Solicitor, Cincinnati, Ohio, for Appellants.

Christopher P. Finney, Finney Stagnaro Saba & Patterson Co., LPA, Cincinnati, Ohio, for Appellees.

ON BRIEF:

Paula Boggs Muething, City of Cincinnati, Office of the Solicitor, Cincinnati, Ohio, for Appellants.

Christopher P. Finney, Finney Stagnaro Saba & Patterson Co., LPA, Cincinnati, Ohio, Curt C. Hartman, The Law Firm of Curt C. Hartman, Amelia, Ohio, for Appellees.

Dale D. Cook, Wiles, Boyle, Burkholder & Bringardner Co. L.P.A., Columbus, Ohio, for Amicus Curiae.

Before: DAUGHTREY, COLE, and GIBBONS, Circuit Judges.

OPINION

MARTHA CRAIG DAUGHTREY, Circuit Judge.

In this section 1983 action, the plaintiffs, two political advocacy groups and an individual member of one of the groups, claim

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that defendant City of Cincinnati's regulation governing access to the interior spaces of city hall violates the First and Fourteenth Amendments of the United States Constitution. After ruling in the plaintiffs' favor on a jurisdictional challenge by the defendants, the district court granted the plaintiffs' motion for a preliminary injunction. The district court concluded that the plaintiffs had established a substantial likelihood of success on the merits of four independent claims: that the challenged regulation (1) unconstitutionally prevented the plaintiffs from accessing city hall for protected-speech activities; (2) unconstitutionally restricted the plaintiffs' right of expressive association by forcing them to collaborate with a government official to gain access to city hall; (3) allowed discriminatory suppression of speech in violation of the Equal Protection Clause; and (4) was void for vagueness under the Due Process Clause. The defendants now appeal.

For the reasons that follow, we conclude that the district court correctly found it had jurisdiction to rule on the plaintiffs' motion for a preliminary injunction. The district court was also correct in holding that the plaintiffs have established a substantial likelihood of success on two of their four claims on which they based their motion: that the City's regulation violates the plaintiffs' right to free speech and that it is unconstitutionally vague. We therefore affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The principal plaintiff, Coalition Opposed to Additional Spending & Taxes (COAST), is an Ohio political action committee that takes positions on a variety of non-partisan issues, including-in this case-opposition to the Cincinnati City Council's authority to implement an automated photo-monitoring program to enforce traffic regulations. Plaintiff Mark Miller is an individual member of COAST, and COAST, in turn, participates in WeDemandAVote.Com, a political coalition advocating " participatory democracy." The defendants include the City of Cincinnati, city manager Milton Dohoney, and the city facilities manager, Joel Koopman.

COAST twice tried and twice failed to gain access to the interior stairs and the lobby of Cincinnati's city hall to hold a press conference and rally advocating its views. The City denied COAST's first request under the then-controlling version of Administrative Regulation # 5, which provided in relevant part:

This administrative regulation is designed to restate and clarify longstanding City policies regarding the use of public buildings....

No private business enterprises or solicitations should be permitted in City buildings or operated therefrom. Exceptions should be made only by specific approval of the Department Head when it is judged to be in the public interest, as in the case, for example, of the United Way Campaign.

No private signs or advertising materials should be displayed on or in City buildings unless for an approved public purpose authorized by the Department Head.

* * *

In making any exceptions to the above policies, Department Heads are urged to consider not only what is proper, but also how it appears to the public.

In the letter denying COAST's request, defendant Koopman noted that " the use of any City facility is for conducting business related to the functions of our various departments in serving the citizens and by City Council in the performance of their duties." Koopman further explained:

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City Facility Management's practice is that events held inside the building require a City sponsor, either a Council Member or a department as part of their regular business and duties. Private groups, unaffiliated with any department or Council Member, are allowed to use the outside stairs as long as our egress is not blocked.

Koopman encouraged COAST to seek out a city department or city council member willing to sponsor a press conference and rally inside city hall or, in the alternative, to hold the event on the exterior steps.

In fact, various private groups had held events inside city hall through sponsorship by a department official or city council member under the regulation. Most notably, the backers of a tax levy for Cincinnati's public school system, which is governed by an independent school board and not the city council, held a rally on the indoor stairs of city hall that featured city council members and representatives of private community groups as speakers. The Coalition for Community Values, a private group, arranged through the office of a city council member to use a conference room in city hall for a press conference calling on a local newspaper to stop accepting adult-entertainment advertisements. No city council member was present at that press conference; however, two aides to city council members did attend, although they did not speak.

In addition, the plaintiffs submitted as exhibits calendars that reflected use of the lobby and first floor staircase for charitable campaigns such as the United Way and for art and holiday displays. Conference rooms were booked for various non-profit events and fund-raisers, meetings of the American Society for Public Administrators, the Soccer Committee, Keep Cincinnati Beautiful (a city contractor), and the Earned Income Tax Credit Partnership/Make Work Pay, lectures relating to heart health, and the " Who Killed Our Kids?" campaign. City council chambers were used for such purposes as youth mock-trial activities and recognition ceremonies, Truman Scholarship interviews, concerts, a United Way event, a government-day program put on by the local chamber of commerce, and sessions of Leadership Cincinnati.

After COAST filed the instant action, the City revised Administrative Regulation # 5 to provide in relevant part:

City Hall is lawfully dedicated for the purpose of allowing City officials to exercise the rights and responsibilities specified in the Charter of the City of Cincinnati.

* * *

The interior spaces of City Hall are reserved for use by the Mayor, the City Manager and his assistants, City Councilmembers, City Department Directors, City Commissions and Boards, and City employees. The interior of City Hall is open to the public for purposes of visiting City officers and attending City Council and other public meetings. The interior of City hall is not generally available to the public for other purposes.

When the Mayor, City Manager and his assistants, City Councilmembers, City Department Directors, and City Commissions and Boards intend to use interior spaces of City Hall for assemblages, they should notify the Facilities Management Division of the Public Services Department....

Facilities Management is responsible for insuring that the assemblage does not create security problems, unreasonably interfere with ingress or egress from City Hall, or otherwise unreasonably interfere with the other official uses occurring inside City Hall.

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Under the revised regulation, the term " assemblages" apparently includes rallies and press conferences. City manager Dohoney instructed Koopman not to schedule any assemblages in the interior front lobby or interior stairs.

In the district court the parties stipulated that the revised regulation shares several similarities to the policy and practice under former Administrative Regulation # 5. Under both, private groups seeking to hold rallies or press conferences inside city hall must " politically or administratively collaborate with the Mayor, a member of the Cincinnati City Council, the City Manager and his assistants, a City Department Director, or a City Board or Commission." The authorized official who " sponsor[s] the use" of city hall by a private group, however, does " not necessarily need to attend the use and/or participate in the use in order for it to proceed." City officials have " full and independent discretion" as to whether they will collaborate with an outside group. Private advocates on one side of a public issue might secure sponsorship for a rally inside city hall, while advocates of the opposing viewpoint on the same issue might be denied access.

When the plaintiffs filed suit, they sought a preliminary injunction preventing the City from regulating access to city hall on the basis of the content or viewpoint of a proposed activity or from continuing to use an ad hoc, discretionary...

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