City of Lakewood v. Willis

• Decision Date: 21 July 2016
• Docket Number: NO. 91827–9,91827–9
• Citation: 186 Wash.2d 210,375 P.3d 1056
• Parties: City of Lakewood, Respondent, v. Robert Willis, Petitioner.
• Court: Washington Supreme Court

186 Wash.2d 210

375 P.3d 1056

City of Lakewood, Respondent

v.Robert Willis, Petitioner.

NO. 91827–9

Supreme Court of Washington, EN BANC.

Filed July 21, 2016

Argued February 16, 2016

David Christopher Iannotti, Stewar Beall MacNichols & Harmell Inc. PS, 655 W Smith St. Suite 210, Kent, WA, 98032–4477, Counsel for Petitioner.

Matthew S. Kaser, City of Lakewood, 6000 Main St. SW, Lakewood, WA, 98499–5027, Counsel for Respondent.

Venkat Balasubramani, Focal PLLC, 900 1st Avenue S Suite 203, Seattle, WA, 98134–1236, Nancy Lynn Talner, Attorney at Law, 901 5th Avenue Suite 630, Seattle, WA, 98164–2008, Amicus Curiae on behalf of ACLU.

Magda Rona Baker, Washington Defender Association, 110 Prefontaine Pl. S Suite 610, Seattle, WA, 98104–2626, Amicus Curiae on behalf of Washington Defender Association.

Yurij Alexandrovich Rudensky, Columbia Legal Services, 101 Yesler Way Suite 300, Seattle, WA, 98104–2528, Amicus Curiae on behalf of Seattle/King County COAlition on Homelessness.

GORDON McCLOUD, J.

¶ 1 A city of Lakewood police officer saw Robert Willis walk into the traffic lanes at Interstate 5's (I–5) northbound exit ramp on Gravelly Lake Drive, Willis carried a sign saying he was disabled and needed help. The officer issued Willis a criminal citation. But the officer did not cite Willis for walking into the traffic lane, blocking traffic, or disrupting pedestrian or vehicle progress. Instead, the officer cited Willis for begging.¹ Willis raised several challenges to his subsequent conviction, including a First Amendment challenge to the antibegging ordinance under which he was charged. U.S. Const . amend. I

. The courts below affirmed his conviction. City of Lakewood v. Willis , noted at 186 Wash.App. 1045, 2015 WL 1552179, review granted , 184 Wash.2d 1010, 360 P.3d 817 (2015). We accepted review and now reverse.

FACTS

¶ 2 The city of Lakewood (Lakewood or City) charged Willis with one count of “Begging In Restrictive Areas” in violation of Lakewood Municipal Code (LMC) 9A.04.020A. Clerk's Papers (CP) at 16 (boldface omitted). That ordinance prohibits “begging”—defined as “asking for money or goods as a charity, whether by words, bodily gestures, signs or other means,”²

under the following conditions: (1) at on and off ramps leading to and from state intersections from any City roadway or overpass; (2) at intersections of major/principal arterials (or islands on the principal arterials) in the City; (3) within twenty five (25) feet of an ATM [automated teller machine] or financial institution; (4) within fifteen (15) feet of any (a) occupied handicapped parking space, (b) taxicab stand, or (c) bus stop, train station or in any public parking lot or structure or walkway dedicated to such parking lot or structure; (5) before sunrise or after sunset at any public transportation facility or on any public transportation vehicle or (6) while a person is under the influence of alcohol or controlled substances.

LMC 9A.04.020A. Begging under any of these conditions is a misdemeanor in Lakewood, punishable by a fine up to $1,000 or a jail term up to 90 days, or both. LMC 9A.04.030.

¶ 3 The complaint filed in Willis' case did not specify the “[r]estrictive area[ ]” in which Willis begged; it just cited LMC 9A.04.020A in its entirety. But the jury was ultimately instructed on only the first two “conditions” listed in the ordinance: begging “at on and off ramps” and “at intersections of major/principal arterials.” LMC 9A.04.020A.³ ¶ 4 The jury found Willis guilty. The municipal court sentenced him to 90 days in jail and a fine of $1,000, with 90 days and $750 suspended. The court also assessed $125 in costs.

¶ 5 Willis appealed his conviction to the superior court, raising several constitutional challenges for the first time,⁴ Specifically, Willis argued that the entire ordinance violated his First Amendment right to free speech, was unconstitutionally vague in violation of the Fourteenth Amendment's due process clause, and violated Fourteenth Amendment equal protection principles by criminalizing poverty. U.S. Const . amends. I

, XIV. The parties agree that Willis has raised both a facial and an as applied challenge under the First Amendment.⁵

¶ 6 The superior court appeared to identify some constitutional problems with Lakewood's begging ordinance: it noted the difficulty of distinguishing between a location “at” a freeway ramp, where the ordinance prohibited begging, and a location “on the public street,” where the ordinance supposedly did not prohibit begging. Report of Proceedings (RP) (June 7, 2013) at 5 (“the difference here in terms of what is at an on- and off-ramp versus being just a few feet away on the public street may make this a very difficult piece of legislation for purposes of people having some notice of what's legal or not legal”). But the court nevertheless affirmed Willis' conviction because “[i]n this particular case ... Mr. Willis was actually seen in the [off]ramp,” Id . (emphasis added).

¶ 7 The Court of Appeals granted Willis' motion for discretionary review and conducted a similar analysis. It began by asserting, erroneously, that “Willis was convicted of begging on a freeway [off]ramp.” Willis , 2015 WL 1552179, at *3

(emphasis added).⁶ The court then went on to hold that a freeway ramp is not a public forum and that the government may therefore impose reasonable, viewpoint neutral restrictions on speech on freeway ramps. Id. (“[f]reeway onramps are not, and have never been, principally intended as a forum for the exchange of ideas”). Like the superior court, the Court of Appeals noted that Willis entered the lane of vehicle travel: “Allowing expressive activity in the freeway and its onramps would disrupt the principal purpose of the freeway which is to facilitate travel. In fact, Willis' [ ] activities disrupted travelers because he entered the lane of travel and approached cars.” Id. (emphasis added).⁷ The Court of Appeals affirmed Willis' conviction.

¶ 8 We granted Willis' petition for review and now reverse.

ANALYSIS

¶ 9 The basic First Amendment principles applicable in this case are clear and, for the most part, undisputed by the parties.

¶ 10 The First Amendment protects “charitable appeals for funds,” Village of Schaumburg v. Citizens for a Better Env't , 444 U.S. 620, 632, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980)

, including appeals in the form of begging or panhandling, Gresham v. Peterson , 225 F.3d 899, 904 (7th Cir.2000) ; Smith v. City of Fort Lauderdale , 177 F.3d 954, 956 (11th Cir.1999) ; Loper v. N.Y. City Police Dep't , 999 F.2d 699, 704 (2d Cir.1993). As protected speech, begging may be subject to reasonable time, place, or manner restrictions. Ward v. Rock Against Racism , 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). The government bears the burden of justifying its restrictions on speech. Collier v. City of Tacoma , 121 Wash.2d 737, 753–59, 854 P.2d 1046 (1993).

¶ 11 A law restricting speech is subject to different levels of scrutiny, depending on the “forum” in which it operates. Perry Educ. Ass'n v. Perry Local Educators' Ass'n , 460 U.S. 37, 45–46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)

; City of Seattle v. Mighty Movers, Inc. , 152 Wash.2d 343, 349–50, 96 P.3d 979 (2004). Thus, in a First Amendment challenge, we begin by identifying the forum at issue. Mighty Movers , 152 Wash.2d at 349–351, 96 P.3d 979. A law restricting expression in a traditional public forum is subject to the highest level of judicial scrutiny: it must be “ ‘content neutral and narrowly tailored to serve a significant government interest and it must leave open ample alternative channels of communication.’ ” Id. at 350, 96 P.3d 979 (quoting Perry Educ. Ass'n , 460 U.S. at 45, 103 S.Ct. 948 ). A law restricting expression in a limited or nonpublic forum, by contrast, must only be viewpoint neutral and “ ‘reasonable in light of the purposes served by the forum.’ ” Rosenberger v. Rector & Visitors of Univ. of Va. , 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995)

(quoting Cornelius v. NAACP Legal Def

.

& Educ. Fund, Inc. , 473 U.S. 788, 804–06, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) ). The parties to this case agree that streets, sidewalks, and roadways generally constitute traditional public forums subject to the strictest free speech protections. See

Collier , 121 Wash.2d at 746–47, 854 P.2d 1046 (“[t]he traditional public forum includes those places ‘which by long tradition ... have been devoted to assembly and debate,’ such as parks, streets, and sidewalks” (internal quotations omitted) (quoting Burson v. Freeman , 504 U.S. 191, 196, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992)

)).

¶ 12 Because Willis raised his constitutional challenge for the first time on appeal, the City argues that he should bear the burden of any defect in the factual record. Resp't's Suppl. Br. at 7 (“without a developed record, the claimed error may not satisfy RAP 2.5(a)(3)

”). In this case, we agree with the City, and with the Court of Appeals, that it would be improper to review Willis' constitutional claim if the City had been precluded from developing the factual record necessary to defend its ordinance. See

Willis , 2015 WL 1552179, at *3 n. 4 ; see also

State v. WWJ Corp. , 138 Wash.2d 595, 603, 980 P.2d 1257 (1999) (where record is insufficient to evaluate a claim of error on its merits, the error is not “manifest” under RAP 2.5(a)(3) ). But for the reasons given below, we conclude that we can resolve Willis' facial First Amendment challenge by answering two purely legal questions: first, whether the provisions of LMC 9A.04.020A at issue here, LMC 9A.04.020A(1) and (2), apply in a substantial number of traditional public forums; and, second, whether those provisions are content based.

I. The Lower Appellate Courts Erred By Relying on Willis' Entry Into the Lane of Vehicle Traffic To Reject His First Amendment Challenge

¶ 13 Before addressing the merits of Willis' claim, we must correct an error in the lower appellate...