671 F.3d 564 (6th Cir. 2012), 10-3265, Ohio Citizen Action v. City of Englewood

Docket Nº:10-3265, 10-3293.
Citation:671 F.3d 564
Opinion Judge:HELENE N. WHITE, Circuit Judge.
Party Name:OHIO CITIZEN ACTION, Plaintiff-Appellant/Cross-Appellee, v. CITY OF ENGLEWOOD, an Ohio Municipal Corporation, Defendant-Appellee/Cross-Appellant.
Attorney:Daniel T. Kobil, Capital University Law School, Columbus, Ohio, for Appellant. Lynnette Dinkler, Dinkler Pregon LLC, Dayton, Ohio, for Appellee. Daniel T. Kobil, Capital University Law School, Columbus, Ohio, Stephen R. Felson, Robert B. Newman, Cincinnati, Ohio, Edward A. Icove, Icove Legal Grou...
Judge Panel:Before: WHITE and STRANCH, Circuit Judges; COHN, Senior District Judge.[*]
Case Date:February 02, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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671 F.3d 564 (6th Cir. 2012)

OHIO CITIZEN ACTION, Plaintiff-Appellant/Cross-Appellee,

v.

CITY OF ENGLEWOOD, an Ohio Municipal Corporation, Defendant-Appellee/Cross-Appellant.

Nos. 10-3265, 10-3293.

United States Court of Appeals, Sixth Circuit.

February 2, 2012

Argued: June 9, 2011.

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[Copyrighted Material Omitted]

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ARGUED:

Daniel T. Kobil, Capital University Law School, Columbus, Ohio, for Appellant.

Lynnette Dinkler, Dinkler Pregon LLC, Dayton, Ohio, for Appellee.

ON BRIEF:

Daniel T. Kobil, Capital University Law School, Columbus, Ohio, Stephen R. Felson, Robert B. Newman, Cincinnati, Ohio, Edward A. Icove, Icove Legal Group, Ltd., Cleveland, Ohio, Ellis Jacobs, Advocates for Basic Legal Equality, Dayton, Ohio, for Appellant.

Lynnette Dinkler, Jamey T. Pregon, Dinkler Pregon LLC, Dayton, Ohio, for Appellee.

Carrie L. Davis, American Civil Liberties Union of Ohio Foundation, Inc., Cleveland, Ohio, Paul D. Polidoro, Patterson, New York, Stephen L. Byron, Willoughby, Ohio, for Amici Curiae.

Before: WHITE and STRANCH, Circuit Judges; COHN, Senior District Judge.[*]

OPINION

HELENE N. WHITE, Circuit Judge.

The municipality of Englewood, Ohio, passed an ordinance banning all door-to-door canvassing and soliciting between 6 P.M. and 9 A.M. Ohio Citizen Action challenged this curfew and other provisions of the ordinance on First Amendment grounds. The district court upheld the

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curfew, but found other portions of the ordinance unconstitutional. We AFFIRM in part and REVERSE in part.

I. BACKGROUND

The facts underlying this case are not in dispute. Ohio Citizen Action (" OCA" ) is a non-profit, public-interest group founded in 1975 that advocates mainly on environmental issues. OCA describes itself as a community organization 80,000 members strong, which practices " door-to-door democracy" to promote reducing pollution in Ohio. Members support OCA financially and by signing petitions, writing letters, making phone calls, talking to neighbors, posting yard signs, or speaking out at community meetings. One of OCA's principal methods of organizing citizens and delivering its message is through face-to-face contact with citizens on their doorsteps. During these exchanges, OCA's canvassers typically solicit financial contributions to benefit the organization.1

Englewood (or " the City" ) is a northern suburb of Dayton, Ohio, with about 13,500 residents and 5,000 households. Since at least 1921, Englewood has had a solicitation ordinance of some kind. The ordinance initially prohibited door-to-door solicitation after sunset, but in 1983, this restriction was replaced with a 6 P.M. curfew. Violations are classified as misdemeanors punishable by a fine of up to $250 and up to 30 days' imprisonment.

In 2004, Englewood passed the ordinance in effect at the time of the events giving rise to this lawsuit (" the 2004 Ordinance" ). As relevant to this case, the 2004 Ordinance required anyone desiring to " peddle, vend, solicit or request contributions for any purpose, charitable or otherwise," to obtain a license from the City, with exceptions for newspaper sellers, certain vendors of goods or services and persons under the age of 18. Englewood Codified Ordinances (" E.C.O." ) § 854.03, 854.08 (2004). The licensing requirement did not apply to canvassing, defined as " the house-to-house distribution of ideas, pamphlets, literature ... or the collection of signatures or support for any purpose or cause," so long as canvassers did not also solicit donations. Id. §§ 854.01(a), 854.08(a). The 2004 Ordinance also contained a curfew provision, which prohibited " all canvassing, peddling, vending, soliciting and requests for contributions" every day of the week before 9 A.M. and after 6 P.M., " unless a later hour is approved by the City Manager for a good cause." Id. § 854.11.

On April 12, 2005, OCA notified Englewood in writing of its intention to canvass the City later that day from 4 P.M. to 9 P.M., and that afternoon, members began canvassing and soliciting donations in the City. At some point in the evening, Englewood's police chief advised OCA's canvassing

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director by telephone that her members were in violation of the City's curfew, but that he would allow canvassing to continue until 8 P.M. In subsequent conversations, the City made clear its intention to strictly enforce the curfew in the future and OCA intimated that it would consider challenging the ordinance in court.

In May 2005, Englewood's City Manager submitted to the City Council a proposal to amend the 2004 Ordinance; the City Council adopted this revised ordinance (" the 2005 Ordinance" ) on July 12, 2005.2

The 2005 Ordinance kept the same licensing requirement and curfew provision as its predecessor, but rescinded the City Manager's discretionary power to grant curfew waivers for good cause. E.C.O. § 854.11 (2005). The 2005 Ordinance also included a provision requiring the City Manager to maintain a " do-not-solicit list" to which any property owner could add his or her residence. Id. § 854.12(a). Properties registered on this list became off limits " for the purpose of Contact Canvassing,[3] peddling, vending, soliciting or requesting contributions," id. § 854.12(b), and all persons engaged in such activities were required to obtain a copy of the list and present it when requested by City officials or residents, id. §§ 854.03, 854.12(a). Finally, the 2005 Ordinance prohibited anyone from " knock[ing] at the door or ring[ing] the doorbell of any residence ... upon which is clearly displayed at the entrance a notice that reads ‘ NO SOLICITORS' or that otherwise clearly purports to prohibit peddlers, Contact Canvassers, vendors, solicitors, or persons requesting contributions...." Id. § 854.12(c).

On July 25, 2005, OCA filed this action under 42 U.S.C. § 1983, alleging that the 2004 and 2005 Ordinances violated the First and Fourteenth Amendments of the United States Constitution on their face or

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as applied. Relevant to this appeal, OCA challenged the following: (1) the 6 P.M. curfew imposed by both ordinances; (2) the City Manager's discretion under the 2004 Ordinance to extend the curfew " for a good cause" ; (3) the licensing requirements of both Ordinances; and (4) the do-not-solicit provision of the 2005 Ordinance. OCA asked the district court to enjoin the City from enforcing all the challenged provisions and to issue a judgment declaring both ordinances unconstitutional. Both sides moved for summary judgment.

In a ruling issued on February 16, 2010, the district court struck down the licencing requirements of the 2004 and 2005 Ordinances as unconstitutional. See R. 110 [hereinafter D. Ct. Op.] The court also invalidated the do-not-solicit provision of the 2005 Ordinance, but upheld the requirement that would-be canvassers obtain a copy of the do-not-solicit list before going door to door. The court further upheld the 6 P.M. curfew provisions contained in both ordinances. Finally, the court ruled that OCA lacked standing to challenge the curfew-extension provision of the 2004 Ordinance.4

On March 3, 2010, after the district court released its opinion, but before it issued a final order terminating the case, Englewood filed notice that it had amended its solicitation ordinance by way of an emergency reading. The City asked the court to take judicial notice that the new law (" the 2010 Ordinance" ) resolved all defects cited in the February 16, 2010, opinion and requested that any injunctive relief be denied as moot. The notice included a copy of the newly passed amendments, but no affidavit or memorandum of support. On March 5, 2010, the court declined the City's requests and, consistent with its prior opinion, enjoined enforcement of the 2005 Ordinance's do-not-solicit provision and the licensing requirement of the 2004 and 2005 Ordinances. The court acknowledged the passage of the 2010 Ordinance, but expressed no opinion as to its constitutionality or whether its enactment rendered the injunctions moot. Both sides timely appealed.5

II. DISCUSSION

This Court reviews de novo a district court's decision to grant or deny summary judgment. Dillon v. Cobra Power Corp., 560 F.3d 591, 595 (6th Cir.2009). Summary judgment is appropriate when " the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Estate of Smithers v. City of Flint, 602 F.3d 758, 761 (6th Cir.2010); see also Fed.R.Civ.P. 56, Advisory Committee Notes (" The standard for granting summary judgment remains unchanged" despite 2010 amendments to Rule 56). A court reviewing a motion for summary judgment cannot weigh the evidence or make credibility determinations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986);

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Schreiber v. Moe, 596 F.3d 323, 333 (6th Cir.2010). Instead, the evidence must be viewed, and all reasonable inferences drawn, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 374 (6th Cir.2009).

A. OCA's Appeal

OCA argues that the district court erred in upholding the curfew and list-carrying provisions of the 2005 Ordinance, and in ruling that OCA lacked standing to challenge the curfew-extension provision of the 2004 Ordinance. We consider each claim in turn.

1. Curfew Provision of 2004 and 2005 Ordinances

OCA asserts that the 6 P.M. curfew violates the First Amendment of the United States Constitution as a matter of law; alternatively, OCA claims that the district court should not have granted summary judgment to Englewood because questions of material...

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