Cannabis Action Network v City of Gainesville, 11
| Decision Date | 03 November 2000 |
| Docket Number | 992022,11 |
| Parties | CANNABIS ACTION NETWORK, INC., Kevin Aplin, Plaintiffs-Appellants-Cross-Appellees, v. CITY OF GAINESVILLE, Defendant-Appellee-Cross-Appellant. Cannabis Action Network, Inc., Kevin Aplin, Plaintiffs-Appellees, v. City of Gainesville, Defendant-Appellant.United States Court of Appeals, Eleventh Circuit |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeals from the United States District Court for the Northern District of Florida. (No. 95-10172-1-CV-MMP), Maurice M. Paul, Judge.
Before EDMONDSON, DUBINA and WILSON, Circuit Judges.
These consolidated appeals involve facial challenges to a Gainesville, Florida, street closing ordinance and a sound ordinance. Plaintiff Cannabis Action Network's ("CAN") appeal on the merits has been consolidated with the Defendant City of Gainesville's (the "City") procedure-based appeal which argues that CAN's substantive appeal is untimely. We affirm the district court's judgment as to the procedural issue and reverse its determination of the merits.
CAN represents a group of self-described "political activists who seek to challenge the laws of the United States and the individual states prohibiting the possession and distribution of marijuana," based on the belief that "cannabis has a variety of medicinal, industrial, and food uses which should be brought to the attention of the public." CAN regularly conducts political rallies in public parks around the country to educate the public and protest the current state of the law. Since 1989, CAN has conducted an annual rally in the Downtown Plaza in Gainesville.
On October 11, 1995, CAN applied for three permits from the City which were necessary for the annual rally: (1) an Event Permit, (2) a Street Closing Permit, and (3) a Sound Amplification Permit. The city manager denied these applications on November 3, 1995.
Soon after, Marcellina Michel-Trapaga1 and CAN (collectively "Plaintiffs") filed a complaint in federal district court seeking declaratory and injunctive relief. Plaintiffs alleged that Section 18-17 of the Gainesville Code, which authorizes the city manager to promulgate rules for the use of the City's parks, the Street Closing Permit Ordinance, which requires a permit in order to gather in the City's parks, and the Sound Amplification Permit Ordinance, which requires a permit for the use of sound amplification, violate their First Amendment rights.
The plaintiffs also claimed that the City's Special Events Policy, which had been promulgated pursuant to Section 18-17 violated their First Amendment rights. Plaintiffs amended their complaint on December 5, 1995, to add Kevin Aplin as a plaintiff. After a hearing on the preliminary injunction, the district court judge enjoined the City from enforcing its Special Event Policy finding a substantial likelihood that the policy violated the First Amendment.
The City then filed a motion for clarification to determine whether the preliminary injunction required the City to issue a Street Closing Permit and a Sound Permit along with the Event Permit. In response, the district court entered a supplemental order requiring the City to issue all three permits. As a result, CAN held its annual rally on December 9, 1995. Approximately one year later, Plaintiffs filed a second amended complaint seeking a declaratory judgment that the permit ordinances, the delegation of rule-making authority ordinance, and the Special Event Policy (as amended) were unconstitutional.
On April 24, 1997, CAN filed a motion for summary judgment asking the district court to declare the challenged ordinances and the Special Event Policy unconstitutional. In response, the City conceded that Section 23-42 of the Gainesville Code ("Street Closing Ordinance")2 and the City's Special Event Policy, promulgated under Section 18-17, were unconstitutional, but disputed the remainder of the claims. On January 26, 1998, the district court granted CAN's motion in part, declaring the original version of the Street Closing Ordinance unconstitutional and reaffirming the preliminary injunction which held the Special Event Policy unconstitutional. The district court also ruled, in pertinent part, that the amended version of the Street Closing Ordinance was facially constitutional and that Section15-4 of the Gainesville Code ("Sound Ordinance") was not susceptible to a facial challenge.3
On June 3, 1998, the district court entered a Final Judgment in favor of CAN and the various individual plaintiffs on the facial unconstitutionality of the original version of the Street Closing Ordinance. However, the written judgment failed to mention that the district court had affirmed the enforceability of both the Sound Ordinance and the revised version of the Street Closing Ordinance. On June 10, 1998, the City filed a timely motion to amend the Final Judgment to accurately reflect the court's January 26, 1998, Partial Summary Judgment Order. On the same day, not realizing that the City had a motion pending relating to the judgment rendered against CAN, CAN and Aplin filed their notices of appeal.4 As a result of the City's pending motion, the district court dismissed CAN's appeal as untimely.
In response to the City's motion, CAN agreed that the Final Judgment should be amended and further argued that, although the individual plaintiffs did not join the April 24, 1997, motion for summary judgment, the district court could grant a judgment in their favor, as to the Street Closing Ordinance and the Event Policy, because when a court finds an ordinance to be facially unconstitutional upon the challenge of any one party, the ordinance is necessarily unconstitutional as to all others. On September 9, 1998, the district court granted the City's motion to amend the judgment, but declined to grant summary judgment in favor of the individual plaintiffs. Instead, the district court directed the City to show cause why it should not grant summary judgment in favor of the individual plaintiffs. The clerk's office was delinquent in entering the amended judgment5 directed by the court's September 9 order. Believing that the case was still active as to both CAN and the individual plaintiffs, CAN failed to renew its notice of appeal after the September 9 order.
After reviewing the memoranda filed regarding the status of the individual plaintiffs' claims, the district court entered an order dated November 17, 1998, granting summary judgment in favor of the remaining defendants and ruling that the amended Street Closing Ordinance was constitutional. However, the order failed to address the constitutionality of the Sound Ordinance and the Event Policy which had also been challenged by the individual plaintiffs. Because of this omission, the individual plaintiffs moved for clarification of the order, which the district court ultimately granted, in conjunction with its finding that the individual plaintiffs were entitled to summary judgment on the issues involving the Gainesville Ordinances 18-17, 15-14, and the amended version of 23-42. See Doc. 217 at 6.
In October of 1998, CAN filed a motion to extend the time for filing a notice of appeal under Federal Rule of Appellate Procedure 4(a)(5) ("Rule 4(a)(5)"). Identifying the history of the proceedings as "convoluted," and finding that CAN's failure to file a timely notice of appeal was "excusable neglect," the district court granted the motion to extend time. Accordingly, CAN was permitted to file a notice of appeal out of time and to join Kevin Aplin's timely appeal.
The City now appeals the district court's grant of an extension of time to CAN to file its notice of appeal. As previously noted, the City's procedure-based appeal has been consolidated with CAN and Kevin Aplin's appeal on the merits.6 There are three issues before us on appeal. As a preliminary matter, we must decide whether the district court abused its discretion in extending CAN's time to file a notice of appeal. If we find that CAN's appeal is properly before us, we must then determine whether Gainesville's Sound Ordinance ( 15-4) and Street Closing Ordinance ( 23-42) are unconstitutional prior restraints on free speech because they fail to include each procedural safeguard outlined in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965).7
We review a district court's grant of an extension of time under Rule 4(a)(5) for abuse of discretion. See Advanced Estimating System, Inc. v. Riney, 130 F.3d 996, 997 (11th Cir.1997). We review grants of summary judgment de novo, applying the same legal standards as the district court. See Cutcliffe v. Cochran, 117 F.3d 1353, 1355 (11th Cir.1997).
The City appeals the district court's grant of an extension of time to CAN to file its notice of appeal. CAN concedes that its first notice of appeal was untimely. However, CAN argues that the district court's extension was proper under Rule 4(a)(5) of the Federal Rules of Appellate Procedure ("Rule 4(a)(5)"), which provides that a district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal. CAN argues that the district court properly granted the extension of time because of the substantial ambiguities in the post-judgment proceedings at the district level. The City counters that CAN's argument relies on a lack of awareness and on a misunderstanding of the law, both of which do not support a finding of excusable neglect.
The Committee Notes for Rule 4(a)(5) clarify that a motion for an extension of time which is filed before expiration of the original 30-day period is evaluated under the "good cause" standard, whereas a motion for an extension of time filed after the expiration of the original 30-day period is evaluated under the "excusable neglect" standard. See Fed. R.App. P. 4(a)(5) advisory committee's notes; accord Advanced Estimating System, Inc. v. Riney,...
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