Ballen v. City of Redmond

• Decision Date: 15 September 2006
• Docket Number: No. 04-35606.,No. 04-35758.,04-35606.,04-35758.
• Citation: 466 F.3d 736
• Parties: Dennis BALLEN; Nice Tie Inc., a Washington corporation dba Blazing Bagels, Plaintiffs-Appellees, v. CITY OF REDMOND, a municipal corporation; City of Redmond Planning and Community Development Department; Roberta Lewandowski, in her official capacity as Planning Director of the City of Redmond Dept of Planning and Community Development, Defendants-Appellants. Dennis Ballen; Nice Tie Inc., a Washington corporation dba Blazing Bagels, Plaintiffs-Appellees, v. City of Redmond, a municipal corporation; City of Redmond Planning and Community Development Department; Roberta Lewandowski, in her official capacity as Planning Director of the City of Redmond Dept of Planning and Community Development, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

466 F.3d 736

Dennis BALLEN; Nice Tie Inc., a Washington corporation dba Blazing Bagels, Plaintiffs-Appellees, v. CITY OF REDMOND, a municipal corporation; City of Redmond Planning and Community Development Department; Roberta Lewandowski, in her official capacity as Planning Director of the City of Redmond Dept of Planning and Community Development, Defendants-Appellants.

Dennis Ballen; Nice Tie Inc., a Washington corporation dba Blazing Bagels, Plaintiffs-Appellees, v. City of Redmond, a municipal corporation; City of Redmond Planning and Community Development Department; Roberta Lewandowski, in her official

capacity as Planning Director of the City of Redmond Dept of Planning and Community Development, Defendants-Appellants.

No. 04-35606.

No. 04-35758.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 6, 2006.

Filed September 15, 2006.

Amended October 20, 2006.

J. Zachary Lell, Seattle, WA, for the defendants-appellants.

Steven M. Simpson, Arlington, VA, for the plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Washington; Marsha J. Pechman, District Judge, Presiding. D.C. No. CV-03-02580-MJP.

Before RICHARD C. TALLMAN and JAY S. BYBEE, Circuit Judges, and MARILYN L. HUFF,^* District Judge.

ORDER AMENDING OPINION AND AMENDED OPINION

TALLMAN, Circuit Judge.

ORDER

The Opinion filed on September 15, 2006, is amended as follows:

At slip opinion page 11445, first paragraph, line 1: delete the first paragraph and replace with the following text, retaining footnote 1 at the end of the new text:

"Ballen subsequently moved for an award of attorneys' fees and costs pursuant to 42 U.S.C. § 1988. Over the City's opposition to the fee total requested by Ballen, the district court granted Ballen's Motion in full and awarded fees and costs in the amount of $165,508. Another timely appeal followed."

On slip opinion page 11445, heading III: delete the two paragraphs of text under heading III and replace with the following text:

III

On December 6, 2005, in response to the district court's summary judgment invalidating the Redmond ordinance the City defends on appeal, the City passed a new sign ordinance that rescinded the ban that was the basis of Ballen's Complaint. However, the City has steadfastly threatened to re-enact the old ordinance if it receives a favorable outcome on this appeal. The City conceded in its notice to us and at oral argument that its new ordinance was adopted only as an interim regulation in response to the district court's summary judgment ruling. Because the new ordinance was intended to be only temporary pending the outcome of the litigation, this case is not moot. See Jacobus v. Alaska, 338 F.3d 1095, 1102-04 (9th Cir.2003) (citing Smith v. Univ. of Wash., 233 F.3d 1188, 1194 (9th Cir.2000) (indicating that mootness is less appropriate when repeal occurred due to the "prodding effect" of litigation); Coral Constr. Co. v. King County, 941 F.2d 910, 927 (9th Cir.1991) (noting that likelihood of reenactment is a significant factor in the evaluation of mootness)); see also Carreras v. City of Anaheim, 768 F.2d 1039, 1047 (9th Cir.1985) ("[R]epeal of the objectionable language [does] not deprive the federal courts of jurisdiction to decide the constitutional question because of the well-settled principle that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." (internal quotation marks omitted)). The case is not moot for that reason.

OPINION

This First Amendment commercial speech case arises from a dispute between Blazing Bagels' use of outdoor advertising and the City of Redmond's commercial signage ordinance. The City of Redmond, Washington, and its Department of Planning and Community Development (collectively "Defendants" or "the City" or "Redmond") appeal the district court's orders granting Plaintiff Dennis Ballen summary judgment and attorneys' fees. Appellees Ballen and his business, Nice Tie, Inc., d/b/a Blazing Bagels (collectively "Ballen" or "Plaintiffs"), challenge the City's sign ordinance ("Ordinance"), REDMOND COMMUNITY DEVELOPMENT GUIDE ("RCDG") 20D.160.10-090, prohibiting all portable signs, with ten exceptions, see RCDG 20D.160.10-060, arguing, inter alia, that the Ordinance does not directly advance the government's interest and, in the alternative, reaches further than necessary to accomplish the government's interest. We must decide whether the Ordinance prohibiting the use of portable signs is a permissible restriction on commercial speech. The district court ruled the City's Ordinance invalid and we affirm. We also uphold the fee award.

I

On June 17, 1997, to promote the City's dual goals of traffic safety and community aesthetics, see RCDG 20D.160.10-010, the City Council passed the Ordinance banning the display of most portable and offsite signs. RCDG 20D.160.10-090. The challenged provision of the Ordinance reads:

Portable Signs. All portable signs except real estate signs and other portable signs specifically allowed by RCDG 20D.160.10-060, Signs and Street Graphics, are prohibited. This prohibition includes, but is not limited to, portable readerboards, signs on trailers, sandwich boards, except as allowed by RCDG 20D.160.10-060(10), Signs and Street Graphics: Temporary Uses, and sidewalk signs.

RCDG 20D.160.10-090.

Ten categories of signage are exempt from this general prohibition: (1) banners on the Redmond Way railroad overpass, (2) construction signs, (3) celebration displays, (4) banner displays in the city center neighborhood, (5) major land use action notices, (6) political signs, (7) real estate signs, (8) temporary window signs, (9) signs on kiosks, and (10) temporary uses and secondary uses of schools, churches, or community buildings. RCDG 20D.160.10-060.

On most weekday mornings from mid-November 2002 through January 2003, and again from mid-April 2003 to mid-June 2003, Ballen, owner of Blazing Bagels, hired an employee to stand on the sidewalk wearing a sign that read: "Fresh Bagels—Now Open." The employee directed the attention of passing motorists to Ballen's business premises and informed passing motorists of Ballen's available retail products.

But the City did not like the taste of Blazing Bagels' advertisement. On June 18, 2003, the City transmitted a letter to Ballen notifying him that he was in violation of the law and warning him that continued noncompliance would result in the initiation of code enforcement proceedings. The letter ordered Ballen to cease and desist using a portable sign to advertise his business.

Instead of baking up a more palatable method of advertising, Ballen produced a Complaint filed in the King County 17657 Superior Court on July 22, 2003, under 42 U.S.C. § 1983 and Washington's Uniform Declaratory Judgments Act. The City removed the case to the United States District Court for the Western District of Washington.

On April 20, 2004, the parties submitted Cross-Motions for Summary Judgment. On June 15, 2004, the district court entered a final Order and Judgment Granting Plaintiffs' Motion and Denying the City's Motion. This timely appeal followed.

Ballen subsequently moved for an award of attorneys' fees and costs pursuant to 42 U.S.C. § 1988. Over the City's opposition to the fee total requested by Ballen, the district court granted Ballen's Motion in full and awarded fees and costs in the amount of $165,508. Another timely appeal followed.¹

II

A grant of summary judgment is reviewed de novo. Sierra Club v. Babbitt, 65 F.3d 1502, 1507 (9th Cir.1995). We must "determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied substantive law." United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.2003). All reasonable inferences supported by the evidence must be drawn in the nonmoving party's favor. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002). Both parties agree that this case should be decided as a matter of law on summary judgment as there are no genuine issues of material fact in dispute.

III

On December 6, 2005, in response to the district court's summary judgment invalidating the Redmond ordinance the City defends on appeal, the City passed a new sign ordinance that rescinded the ban that was the basis of Ballen's Complaint. However, the City has steadfastly threatened to re-enact the old ordinance if it receives a favorable outcome on this appeal. The City conceded in its notice to us and at oral argument that its new ordinance was adopted only as an interim regulation in response to the district court's summary judgment ruling. Because the new ordinance was intended to be only temporary pending the outcome of the litigation, this case is not moot. See Jacobus v. Alaska, 338 F.3d 1095, 1102-04 (9th Cir.2003) (citing Smith v. Univ. of Wash., 233 F.3d 1188, 1194 (9th Cir.2000) (indicating that mootness is less appropriate when repeal occurred due to the "prodding effect" of litigation); Coral Constr. Co. v. King County, 941 F.2d 910, 927 (9th Cir. 1991) (noting that likelihood of reenactment is a significant factor in the evaluation of mootness)); see also Carreras v. City of Anaheim, 768 F.2d 1039, 1047 (9th Cir.1985) ("[R]epeal of the objectionable language [does] not deprive the federal courts of jurisdiction to decide the constitutional question because of the well-settled principle that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." (internal quotation marks omitted)). The case is not moot for that reason.

IV

Commercial speech is defined as "expression related solely to the economic interests of the speaker and its audience," or as "speech proposing a commercial transaction."...