Reed v. Town of Gilbert

• Decision Date: 08 February 2013
• Docket Number: No. 11–15588.,11–15588.
• Citation: 707 F.3d 1057
• Parties: Clyde REED, Pastor and Good News Community Church, Plaintiffs–Appellants, v. TOWN OF GILBERT, ARIZONA and Adam Adams, in his official capacity as Code Compliance Manager, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

707 F.3d 1057

Clyde REED, Pastor and Good News Community Church, Plaintiffs–Appellants,

v.TOWN OF GILBERT, ARIZONA and Adam Adams, in his official capacity as Code Compliance Manager, Defendants–Appellees.

No. 11–15588.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Aug. 10, 2012.

Filed Feb. 8, 2013.

Jeremy D. Tedesco (argued), Scottsdale, AZ, and David A. Cortman, Lawrenceville, GA, for Plaintiffs–Appellants.

Robert Grasso, Jr., Kim S. Alvarado (argued), and Jenny J. Winkler, Grasso Law Firm, P.C., Chandler, AZ, for Defendants–Appellees.

Appeal from the United States District Court for the District of Arizona, Susan R. Bolton, District Judge, Presiding. D.C. No. 2:07–cv–00522–SRB.

Before: CONSUELO M. CALLAHAN and PAUL J. WATFORD, Circuit Judges, and JAMES K. SINGLETON, Senior District Judge.^*

Opinion by Judge CALLAHAN; Dissent by Judge WATFORD.

OPINION

CALLAHAN, Circuit Judge:

Good News Community Church and its pastor, Clyde Reed (referred to collectively as “Good News”), appeal from the district court's determination on remand from the Ninth Circuit that the Town of Gilbert's ordinance that restricts the size, duration and location of temporary directional signs does not discriminate between different forms of noncommercial speech in a unconstitutional manner. In Reed v. Town of Gilbert, 587 F.3d 966 (9th Cir.2009), we held that the ordinance (sometimes referred to as the “Sign Code”) is not a content-based regulation and is a reasonable time, place and manner restriction. However, we remanded the case to the district court “to consider the First Amendment and Equal Protection claims that the Sign Code is unconstitutional in favoring some noncommercial speech over other noncommercial speech.” Id. at 983.

Accepting our opinion in Reed as law of the case, we conclude that the Sign Code is constitutional because the different treatment of types of noncommercial temporary signs are not content-based as that term is defined in Reed, and the restrictions are tailored to serve significant governmental interests. In addition, we determine that the amendments to the Sign Code made by the Town of Gilbert (“Gilbert”) during the pendency of this appeal do not moot this case and that Good News may file a new action in the district court should it wish to challenge the new provisions of the Sign Code.

I.

Good News is a relatively small church with 25 to 30 adult members and 4 to 10 children. “Members of Good News believe the Bible commands them to go and make disciples of all nations, and that they should carry out this command by reaching out to the community to meet together on a regular basis. To do so, they display signs announcing their services as an invitation for those in the community to attend.” Reed, 587 F.3d at 971 (internal quotation marks omitted). Starting around 2002, Good News met at an elementary school in Gilbert. Id. It presently rents space at an elementary school in Chandler, Arizona, which borders Gilbert.

For a time, Good News placed about 17 signs in the area surrounding its place of worship in Gilbert announcing the time and location of its services. In 2005, Good News received an advisory notice from Gilbert that it was violating the town's sign ordinance because “the signs were displayed outside the statutorily-limited time period.” For a while thereafter, Good News reduced the number of signs it erected and the amount of time its signs were in place, but friction with Gilbert persisted. Reed, 587 F.3d at 972. In March 2008, Good News filed suit in federal court in Arizona alleging that Gilbert's Sign Code violated the Free Speech Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. Id.A. The Sign Ordinances

Like many municipalities, Gilbert regulates the display of outdoor signs. Gilbert Land Development Code, Division 4, General Regulations, Article 4.4 (the “Sign Code”). Section 4.401(A) outlines the purposes for the Sign Code, namely, to “assure proper and efficient expression through visual communications involving signs compatible with the character and environment of the Town; to eliminate confusing, distracting, and unsafe signs; and to enhance the visual environment of the Town of Gilbert.”

Under § 4.402(A), no person may erect a sign without first obtaining a sign permit, unless the sign is one exempted under § 4.402(D). Section 4.402(D) lists nineteen different types of signs that are allowed without a permit.¹ Three of the types of exempted signs are of particular relevance: “Temporary Directional Signs Relating to Qualifying Event,” “Political Signs,” and “Ideological Signs.”

Gilbert asserts, and Good News concedes, that Good News' signs are Temporary Directional Signs subject to the requirements of § 4.402(P). This subsection provides that “Temporary Directional Signs Relating to a Qualifying Event ... shall be no greater than 6 feet in height and 6 square feet in area,” “shall only be displayed up to 12 hours before, during and 1 hour after the qualifying event ends,” “may be located off-site and shall be placed at grade level,” and “shall be placed only with the permission of the owner of the property on which they are placed.” Additional restrictions include that “[n]o more that 4 signs shall be displayed on a single property at any one time,” and that Temporary Directional Signs may not be placed “in a public right-of-way” ² or on “fences, boulders, planters, other signs, vehicles, utility facilities, or any structure.”

A “Political Sign” is defined as a “temporary sign which supports candidates for office or urges action on any other matter on the ballot of primary, general and special elections.” Political Signs (a) may be up to 32 square feet in size, (b) may be erected any time prior to an election but must be taken down within 10 days of the election, (c) are not limited in number, and (d) may be placed in the public right-of-way. An “Ideological Sign” is a “sign communicating a message or ideas for noncommercial purposes that is not a construction sign, directional sign, temporary directional sign, temporary directional sign relating to a qualified event, political sign, garage sale sign, or sign owned or required by a governmental agency.” Ideological Signs (a) may be up to 20 square feet in size, (b) are not limited in time, (c) are not limited in number, and (d) may be placed in the public right-of-way.

B. Initial Proceedings in the District Court

Gilbert initially stipulated to a preliminary injunction, but when Gilbert amended the Sign Code in a way that Good News believed continued to infringe on its constitutional rights, Good News filed a second motion for a preliminary injunction. In September 2008, the district court denied Good News' motion for an injunction, concluding that: (a) “§ 4.402(P) is a content-neutral regulation, and [ ] it passes the applicable intermediate level of scrutiny;” and (b) the Sign Code “does not violate equal protection, as any uneven effects are an unintended consequence of the lawful content-neutral regulation.” Reed, 587 F.3d at 973. Good News appealed to the Ninth Circuit.

C. Reed v. Town of Gilbert, 587 F.3d 966 (9th Cir. 2009)

In November 2009 we basically affirmed the district court's denial of an injunction. In doing so, we made four determinations that guide our review in this appeal.

1. Good News alleges an as-applied challenge to the Sign Code

First, we held that Good News' challenge was an as-applied challenge, and not a facial challenge, to the Sign Code. Id. at 974. We determined that Good News' attack on the ordinance was “basically a challenge to the ordinance as applied to [its] activities,” and therefore we limited our analysis of the constitutionality of the ordinance to its application to Good News. Id.

2. The Sign Code is not a content-based regulation

Second, after reviewing the evolution of our opinions from Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir.1998), to Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir.2005), and G.K. Limited Travel v. City of Lake Oswego, 436 F.3d 1064 (9th Cir.2006) (“G.K. Ltd.”), we determined the fact that an enforcement official had to read a sign did not mean that a ordinance is content-based. Instead, we concluded that “our focus should be on determining whether the ordinance targets certain content; whether the ordinance or exemption is based on identification of a speaker or event instead of on content; and whether an enforcement officer would need to distinguish content to determine applicability of the ordinance.” ³Reed, 587 F.3d at 976.

Applying this focus to the Sign Code, we found that the ordinance “regulates physical characteristics, such as size, number and construction of the signs,” their locations, and the timing of displays, none of which “implicate the content of speech.” Id. at 977. We noted that “[t]he definition of a Qualifying Event sign merely encompasses the elements of ‘who’ is speaking and ‘what event’ is occurring.” ⁴Id. These two criteria invoke the speaker-based and event-based characteristics approved in G.K. Ltd. because “the City d[id] not limit the substance of [the] speech in any way.” Id. (quoting G.K. Ltd., 436 F.3d at 1078). We explained that this case:

highlights the absurdity of construing the “officer must read it” test as a bellwether of content. If applied without common sense, this principle would mean that every sign, except a blank sign, would be content based. While a Gilbert officer needs to briefly take in what is written on the Qualifying Event Sign to note who is speaking and the timing of the listed event, this “kind of cursory examination” is not akin to an officer synthesizing the expressive content of the sign.

Reed, 587 F.3d at 978. We concluded “that § 4.402(P) is not a content-based regulation: It does not single out certain content for differential treatment, and in enforcing the provision an officer must merely note the content-neutral elements of...