Cimarron Alliance v. City of Oklahoma City, Ok, No. CIV-01-1827-C.

CourtUnited States District Courts. 10th Circuit. Western District of Oklahoma
Writing for the CourtCauthron
Citation290 F.Supp.2d 1252
PartiesCIMARRON ALLIANCE FOUNDATION, an Oklahoma Corporation, Plaintiff, v. THE CITY OF OKLAHOMA CITY, OKLAHOMA, an Oklahoma Municipal Corporation; et al., Defendants.
Docket NumberNo. CIV-01-1827-C.
Decision Date13 September 2002
290 F.Supp.2d 1252
CIMARRON ALLIANCE FOUNDATION, an Oklahoma Corporation, Plaintiff,
THE CITY OF OKLAHOMA CITY, OKLAHOMA, an Oklahoma Municipal Corporation; et al., Defendants.
No. CIV-01-1827-C.
United States District Court, W.D. Oklahoma.
September 13, 2002.

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Mark L Henricksen, Henricksen & Henricksen, El Reno, OK, Micheal C Salem, Salem Law Office, Norman, OK, for Cimarron Alliance Foundation, an Oklahoma Corporation, Plaintiff.

Richard C Smith, Municipal Counselor's Office-OKC, Tina A Hughes, Municipal Counselor's Office-OKC, Oklahoma City, OK, for Oklahoma City, City of, an Oklahoma Municipal Corporation, James C Couch, in his official capacity as City Manager of the City of Oklahoma City, Oklahoma, Defendants.


CAUTHRON, Chief Judge.

Before the Court for consideration are cross-motions for summary judgment submitted by the parties, Plaintiff Cimarron Alliance Foundation ("CAF") and Defendants City of Oklahoma City, Oklahoma ("Oklahoma City"), and James D. Couch in his individual capacity and official capacity as City Manager of Oklahoma City, Oklahoma ("Couch").1 The matter is now at issue.


In 1988 and 1989, in preparation and support for the Olympic Festival activities, Oklahoma City selected various utility poles across the city to be used for the display of banners. Supports, or braces that would be used to hold the banners, were placed on more than 1,000 utility poles across the city. The utility poles are located on sidewalks, streets, center medians and other areas around the city. A majority of the poles on which the banner supports were placed are owned by Oklahoma Gas & Electric Company ("OG & E"). Since 1989 and prior to passage of the new banner ordinance, the office of the Chief Traffic Engineer was in charge of approving banner applications. During

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that time, no completed banner application was rejected.

In the spring of 2001, a "banner review committee" approved banner applications submitted by CAF for the Gay and Lesbian Pride Parade, which was to occur in June 2001. The allotted time period for the CAF banners was from May 22, 2001, to July 10, 2001. CAF banners were displayed along the parade route. After the banners were posted, Oklahoma City officials, including Couch, began receiving calls from the general public, criticizing the presence of the banners. After the calls began, Oklahoma City Mayor Kirk Humphreys ("Humphreys") contacted Couch to find out what Oklahoma City's policy was concerning banner displays. When informed by Couch that there was no set policy, Humphreys encouraged Couch to develop one.

Claiming he had a mistaken belief that CAF's permission to display the banners ended when the parade ended, Couch ordered the banners taken down. Couch also felt that removal of the banners would quell the controversy surrounding the banners' content. After the banners were taken down and replaced, CAF's counsel sent Couch a letter threatening legal action if the banners were not put up for the rest of the remaining time period. Couch subsequently ordered the banners to be put back up at their original locations.

On August 28, 2001, the City Council adopted a new banner ordinance.2 CAF and an organization called "The Peace House" subsequently applied for the posting of banners for the 15th Annual Gay and Lesbian Pride Parade from June 1 to June 24, 2002. The application was rejected on the grounds that under the new ordinance, the banners promoted "social

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advocacy." As a result of the initial removal of the banners in 2001 and the denial of the banner applications in 2002, this litigation has ensued.


The summary judgment standard the Court must apply is well established. Summary judgment may only be granted if the evidence of record shows "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). The substantive law giving rise to the underlying claim informs the Court as to which facts are material and for which there must be a genuine dispute. Occusafe, Inc. v. EG&G Rocky Flats, Inc., 54 F.3d 618 (10th Cir.1995). On summary judgment, the Court must view the evidence of record in a light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Occusafe, 54 F.3d at 621. However, "[t]he mere existence of a scintilla of evidence in support of plaintiff's position [is] insufficient." Anderson, 477 U.S. at 252, 106 S.Ct. 2505.


When a government official is sued in both his individual and official capacities for acts performed in each capacity, those acts "are generally treated as the transactions of two different legal personages." Bender v. Williamsport Area School District, 475 U.S. 534, 543 n. 6, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986), quoting F. James & G. Hazard, Civil Procedure § 11.6, p. 594 (3d ed.1985). Thus, a person sued in his official capacity has no stake, individually, in the outcome of the litigation. Bender, 475 U.S. at 543-44, 106 S.Ct. 1326. Personal or individual capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). In CAF's complaint, it names Couch as a Defendant in both his individual and official capacities. However, CAF does not seek any damages from Couch in his individual capacity; it only seeks equitable relief (injunction) against Couch as City Manager.3 As all relief requested against Couch is available against him only in his official capacity, see Johnson v. Board of County Commissioners, 85 F.3d 489, 493 (10th Cir.1996), CAF's complaint as to Defendant Couch in his individual capacity is DISMISSED. The Court shall now address the cross-motions for summary judgment between CAF and Oklahoma City and Couch in his official capacity.

CAF sues under 42 U.S.C. § 1983 for violations of its First Amendment rights. CAF argues the removal of its banners and subsequent denial of the 2002 application amount to an unconstitutional content and viewpoint-based restriction of its right to freedom of speech. Oklahoma City and Couch present two arguments: First, that the banner displays constitute government speech; therefore, it is permissible for Oklahoma City to engage in viewpoint and content-based regulation of what is displayed on them, and secondly, a utility pole is a non-public forum.


The First Amendment states that "Congress shall make no law ... abridging the freedom of speech." This provision

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embodies "[o]ur profound national commitment to the free exchange of ideas." Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 686, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). "[A]s a general matter, `the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content'" Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983) (quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)). The First Amendment is made applicable to the states by virtue of the Fourteenth Amendment. See Miller v. California, 413 U.S. 15, 44, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). However, when the government speaks, either directly or through private intermediaries, it is constitutionally entitled to make content-based decisions. Wells v. City & County of Denver, 257 F.3d 1132, 1139 (10th Cir.), cert. denied, 534 U.S. 997, 122 S.Ct. 469, 151 L.Ed.2d 384 (2001). Therefore, a court's analysis of restrictions that arise in the context of government speech is different from the analysis concerning private speech. Id.

No clear standard has been adopted by the United States Supreme Court for determining when the government is "speaking" and thus able to draw viewpoint-based distinctions, and when it is regulating private speech and thus unable to do so. In light of this dilemma, in deciding whether an expression is government speech, the Tenth Circuit Court of Appeals has adopted and considers four factors: (1) whether the central purpose of the speech is to promote the views of the municipality; (2) whether the municipality exercised editorial control over the content of the speech; (3) whether the literal speaker was an employee of the municipality; and (4) whether ultimate responsibility for the content of the speech rested with the government. Summum v. City of Ogden, 297 F.3d 995, 1004-05 (10th Cir. 2002); 2002 U.S.App. LEXIS 14636 *20 (10th Cir., July 19, 2002), citing Wells, supra. Accordingly, examination of those factors in this context, in conjunction with consideration of applicable Supreme Court precedent, resolves the government speech issue before this Court.

1. Whether the Central Purpose of the Speech Is to Promote the Views of the Municipality

While the purpose of a government program or subsidy that implicates speech interests will at times be apparent, see Wells, 257 F.3d at 1141 (citing evidence that the purpose of the sign asserted to be government speech was to "thank the sponsors and the citizens for the support of the cost of the display"), this is not the case here. It is undisputed that prior to the new ordinance the purpose of the banner program was to beautify the community, inform the public about area events, and to promote programs important to the City's image. After the passage of the ordinance, the purpose is to promote or celebrate the City or otherwise promote its corporate interests and welfare. Either way, the program allows private donors to express their messages or goals.

In applying the first factor, the...

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