City of Seattle v. Mighty Movers, Inc.

• Decision Date: 05 August 2002
• Docket Number: No. 49104-1-I.,49104-1-I.
• Citation: 112 Wash.App. 904,51 P.3d 152
• Parties: The CITY OF SEATTLE, a municipal corporation, Respondent, v. MIGHTY MOVERS, INC., a Washington corporation, Appellant.
• Court: Washington Court of Appeals

51 P.3d 152

112 Wash.App. 904

The CITY OF SEATTLE, a municipal corporation, Respondent, v. MIGHTY MOVERS, INC., a Washington corporation, Appellant.

No. 49104-1-I.

Court of Appeals of Washington, Division 1.

August 5, 2002.

Chase Christian Alvord, Tousley Brain Stephens Pile, Seattle, WA, for Appellant.

Thomas Mark Anthony Castagna, Assistant City Attorney, Seattle, WA, for Respondent.

Richard Howard Robblee, Rinehart Robblee & Hannah, Kristina Marie Detwiler, Seattle, WA, for Amicus Curiae IBEW Local 77.

Allen Bruce Draher, Paul J. Lawrence, Robert J. Dzielak, Preston Gates and Ellis, Seattle, WA, for Amicus Curiae Joint Artists & Music Promotions.

APPELWICK, J.

In 1994, the City of Seattle banned the posting of temporary signs on City-owned structures. Mighty Movers contests the constitutionality of the anti-posting ordinance. The central issue on appeal is whether the trial court erred in concluding as a matter of law that posting on City-owned properties, including utility poles, is not a traditional public forum. The record below establishes that posting temporary signs on the portion of poles, within reach of pedestrians, adjacent to streets and sidewalks is a traditional public forum. The record does not establish a compelling governmental interest to ban posting on these poles. We hold that the anti-posting ordinance is facially overbroad in violation article I, section 5 of the Washington Constitution. We invalidate that portion of the ordinance affecting traffic devices, utility poles, and lamp posts which are part of the traditional public forum. We therefore reverse.

FACTS

In 1994, the City of Seattle enacted a series of ordinances including the following:

SMC 15.48.100 Unlawful posting of signs.

It is unlawful for anyone to affix any handbill, sign, or poster upon any traffic control device, utility pole, lamp post, City-owned structure, or City-owned tree or shrubbery in any public place, or to affix the same to a wire or appurtenance thereof, except that affixation is authorized on poster boards and kiosks that are designated for handbills and signs. The provisions of this section shall not apply to traffic, parking and other regulatory signs posted under the auspices of a public agency with the permission of the City.

City-owned structures include bridges and overpasses, monorail supports, retaining walls, fences, street furniture and shelters, among other construction.

The City designated 11 kiosks for posting throughout the City. SMC 15.48.100. Anyone who violates this ordinance is liable for the cost of removing the sign. SMC 15.48.120.

By resolution, the City cited three reasons for this ordinance: 1) the safety hazard to utility workers posed by signs attached to utility poles; 2) the public safety hazard posed by signs posted on traffic control devices; and 3) the visual blight and clutter caused by the proliferation of signs on public structures.

In violation of the ordinance, Mighty Movers posted numerous signs advertising its service on utility poles throughout the City. The City removed these signs, and on June 8, 1999, it sued Mighty Movers to recover $7,870 in removal costs. Mighty Movers counter-claimed for a declaration that the ordinances violated article I, section 5 of the Washington Constitution, Washington's free speech provision. Mighty Movers also stipulated that

[u]nless Seattle Municipal Code Sections 15.48.100-.130 are determined to be unconstitutional, Defendant Mighty Movers, Inc. is responsible to pay Plaintiff The City of Seattle $7,870.00 plus interest at the rate of 12% per annum, reasonable attorney's fees, and legal costs as requested in the Amended Complaint for Monies Due filed by Plaintiff The City of Seattle in this matter.

Both sides moved for summary judgment. The trial court ruled in favor of the City, finding as a matter of law that the utility poles and other City-owned structures were not a public forum. The trial court relied on the United States Supreme Court's decision in Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 812, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984), in holding that "utility poles are not a traditional public forum." The trial court awarded the City $2,500 in attorney fees.

Mighty Movers appealed to the Washington State Supreme Court. The Supreme Court transferred the case to this court on September 5, 2001.

ANALYSIS

I. Standard of Review

This court reviews a grant or denial of a motion for summary judgment de novo. Washington State Republican Party v. Washington State Public Disclosure Comm'n, 141 Wash.2d 245, 254, 4 P.3d 808 (2000).

Mighty Movers asserts that the City of Seattle's anti-posting ordinance violates the Washington Constitution. Specifically, it argues that the ordinance is facially overbroad under article I, section 5 of the Washington Constitution. In considering a facial challenge to an ordinance on free speech grounds, the facts of the particular case are not essential. City of Seattle v. Webster, 115 Wash.2d 635, 640, 802 P.2d 1333 (1990). "Constitutional analysis is made upon the language of the ordinance or statute itself." Webster, 115 Wash.2d at 640, 802 P.2d 1333.

A law is overbroad if it sweeps within its prohibitions constitutionally protected free speech activities. State v. Williams, 144 Wash.2d 197, 206, 26 P.3d 890 (2001). Under the Washington Constitution, unlike under the federal constitution, a facial overbreadth challenge does not require a finding that the challenged ordinance reaches a "substantial" amount of constitutionally protected conduct. O'Day v. King County, 109 Wash.2d 796, 803-04, 749 P.2d 142 (1988). "Under Washington law, an ordinance is invalid if it includes within its proscriptions protected expression, regardless of whether that overbreadth is substantial, as is required by the First Amendment jurisprudence." City of Seattle v. McConahy, 86 Wash.App. 557, 569, 937 P.2d 1133 (1997).

II. Public Forum Analysis

The amount of government regulation of speech allowed by the federal and state constitutions depends, in part, on the location and the method used for communicating. The government's ability to regulate speech in a public forum is much more restricted. The test, however, for regulating speech in a nonpublic forum is less stringent. "The Government's decision to restrict access to a nonpublic forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation." Cornelius v. NAACP, 473 U.S. 788, 808, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985).

Public forums are (1) those places which by long tradition or by government fiat have been devoted to assembly and debate,... or (2) channels of communication used by the public at large for assembly and speech, used by certain speakers, or the discussion of certain topics.

City of Seattle v. Huff, 111 Wash.2d 923, 927, 767 P.2d 572 (1989) (citations and internal quotations omitted). The first prong deals specifically with public property and contains two disjunctive categories traditional public forums and public forums designated as such by the government. Int'l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992). Mighty Movers does not assert that the City of Seattle has designated any of its City-owned structures as public forums, therefore we do not address whether any such property is a public forum by government fiat.

A. A Question of Law and Fact

The central question before us is whether posting on any of the enumerated City-owned properties or structures involves a traditional public forum. The question of whether any posting on City-owned properties in the City of Seattle is a traditional public forum is a mixed question of law and fact. When presented with a mixed question of law and fact, the factual issues can be decided as a matter of law if only one reasonable conclusion can be drawn. Allen v. State, 118 Wash.2d 753, 760, 826 P.2d 200 (1992). Such is the case here, and we therefore review the mixed question of law and fact de novo. Adams v. Great American Ins. Co., 87 Wash.App. 883, 886-87, 942 P.2d 1087 (1997) (citing Kelly Kunsch, Standard of Review (State and Federal): A Primer, 18 SEATTLE U. L.REV. 11, 28 (1994)). The location and the use of particular pieces of property over time are factual questions. Whether the particular use combined with the location constitute a traditional public forum is a legal question.

B. The Law: Vincent or Collier

Mighty Movers argues that the Washington State Supreme Court in Collier v. City of Tacoma, 121 Wash.2d 737, 854 P.2d 1046 (1993), already decided that a parking strip was a traditional public forum. Some of Mighty Movers signs were on poles within parking strips and therefore, it argues, were within that traditional public forum. Hence, the ordinance is overbroad. The City argues that we are bound by the United States Supreme Court's holding in Vincent, 466 U.S. at 813-15, 104 S.Ct. 2118 that the various public properties covered by the Los Angeles ordinance (on which the City of Seattle's ordinance is based) are not public fora as a matter of law. Hence, the ordinance cannot be overbroad. We begin with an analysis of Vincent.

Vincent involved a Los Angeles Municipal Code ordinance which prohibited the posting of signs on City-owned structures. Vincent, 466 U.S. at 793, 104 S.Ct. 2118. An organization supporting an election campaign produced 15 by 44 inch cardboard signs and attached them to utility poles by draping them over the horizontal crosswires which support the poles and stapling the cardboard together at the bottom. Vincent, 466 U.S. at 792-93, 104 S.Ct. 2118. The organization brought suit against the City for routinely removing their campaign signs. The City's stated interests in enacting the ordinance included promoting the safety of workmen who must scale the utility poles, eliminating traffic hazards, and improving the appearance of the city. Vincent...