City of Seattle v. Mighty Movers, Inc.

• Decision Date: 09 September 2004
• Docket Number: No. 73005-9.,73005-9.
• Parties: CITY OF SEATTLE, Petitioner, v. MIGHTY MOVERS, INC., Respondent.
• Court: Washington Supreme Court

96 P.3d 979

152 Wash.2d 343

CITY OF SEATTLE, Petitioner, v. MIGHTY MOVERS, INC., Respondent.

No. 73005-9.

Supreme Court of Washington, En Banc.

Argued June 12, 2003.

Decided September 9, 2004.

As Amended September 14, 2004.

Seattle City Attorney's Office, Gary Keese, Thomas Castagna, Seattle, for petitioner.

Tousley Brain Stephens PLLC, Chase Alvord, Seattle, for respondent.

Preston Gates & Ellis, Allen Draher, Paul Lawrence, Robert Dzielak, Seattle, for Amicus Curiae American Civil Liberties and Joint Artists & Music Promotions Inc.

Rinehat Robblee & Hannah, Richard Robblee, Kristina Detwiler, Jacob Black, Seattle, for Amicus Curiae Ibew Local 77.

MADSEN, J.

Under a city ordinance prohibiting the posting of signs on city property, the city of Seattle (City) billed Mighty Movers, Inc., for the costs of removing signs it had posted on utility poles. When Mighty Movers refused to pay the costs, the City filed this action to recover them. Mighty Movers challenged the constitutionality of the ordinance under article I, section 5 of the Washington State Constitution. The trial court upheld the constitutionality of the ordinance on the basis that a utility pole is a nonpublic forum, the ordinance is reasonable in light of the purposes of utility poles, and the ordinance is content and viewpoint neutral. The Court of Appeals reversed, concluding that the utility poles adjacent to the City's streets and sidewalks constitute a traditional public forum and, under the state constitutional standard applicable to public forums and overbreadth principles, the ordinance is unconstitutional. We hold that utility poles are a nonpublic forum and the ordinance constitutionally prohibited posting on city utility poles. Accordingly, we reverse the Court of Appeals' decision.

Facts

In 1994, the City of Seattle enacted Ordinance 117066, codified at former Seattle Municipal Code (SMC) 15.48.100 through SMC 15.48.130, making it unlawful for anyone to affix any handbill, sign, or poster to any traffic control device, utility pole, lamp post, city-owned structure, or city-owned tree or shrub in a public place.¹ The City made legislative findings that, among other things, the primary purpose of utility poles is to support utility lines; there had been a recent and pronounced proliferation of handbills, signs, and posters attached to utility poles; the Seattle Fire Department had reported a growing number of incidents where accumulated posted materials had been set on fire; the proliferation of the material represented a safety hazard to utility workers climbing the poles to perform essential duties; the material substantially contributed to visual blight and clutter and harmed the urban aesthetic; and utility poles have traditionally served a limited secondary purpose of providing for the placement of traffic, parking, and similar regulatory signs posted by the government.

The ordinance provided for enforcement through provisions authorizing the recovery of the costs of removal of illegal postings. SMC 15.48.120; see SMC 15.48.130 (containing rebuttable presumptions concerning who would be responsible for costs of removal). Following enactment of the ordinance, the City removed unlawfully posted materials and sent invoices to groups, organizations, and individuals presumed responsible for unlawful postings. During the period from December 1998 through October 1999, the City removed 149 brightly colored Mighty Movers advertising signs, nearly all posted on utility poles throughout the City, and sent an invoice to Mighty Movers for costs of removal. Mighty Movers refused to pay.

The City filed suit in Seattle Municipal Court to collect the costs of removing the Mighty Movers signs, plus prejudgment interest and attorney fees. Mighty Movers filed a counterclaim seeking a declaration that the ordinance is unconstitutional on its face under article I, section 5 of the Washington State Constitution. The action was removed to superior court by stipulation. In October 2000, the parties filed cross-motions for summary judgment. The trial court granted the City's motion, reasoning that utility poles are not a traditional public forum, and the ordinance is reasonable and content and viewpoint neutral. The trial court entered judgment in favor of the City and awarded the City reasonable attorney fees.² The Court of Appeals reversed, holding that the City's utility poles located on or adjacent to a street or sidewalk within the City are a traditional public forum, and the ordinance was not narrowly tailored to serve a compelling governmental interest, nor were adequate alternative means of communication available. The court then held the provisions of the ordinance restricting posting on poles (utility poles, lampposts and traffic control devices) overbroad because they swept within their prohibitions constitutionally protected speech. The Court of Appeals concluded that the trial court erred in failing to grant Mighty Movers motion for summary judgment. City of Seattle v. Mighty Movers, Inc., 112 Wash.App. 904, 51 P.3d 152 (2002),review granted, 148 Wash.2d 1020, 66 P.3d 637 (2003).³

Analysis

We review a grant of summary judgment de novo, applying the same standard as the trial court. Stalter v. State, 151 Wash.2d 148, 155, 86 P.3d 1159 (2004); Clawson v. Grays Harbor Coll. Dist. No. 2, 148 Wash.2d 528, 536, 61 P.3d 1130 (2003). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." CR 56(c). Here, the facts are undisputed, and we decide whether as a matter of law summary judgment was properly granted. Clawson, 148 Wash.2d at 536, 61 P.3d 1130.

Mighty Movers contends that the City's ordinance violates article I, section 5 of the Washington State Constitution, which provides that "[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that right." The controlling issue is whether city utility poles constitute a public forum to which citizens have traditionally had a right of access for communication. Because our jurisprudence in this context draws substantially on federal law, we begin our discussion with the origins of the public forum analysis.

The First Amendment, as initially interpreted, did not establish any right of access to public property as a forum for speech. See Patricia Klein Smoots, Note, Members of the City Council v. Taxpayers for Vincent: The Constitutionality of Prohibiting Temporary Sign Posting on Public Property to Advance Local Aesthetic Concerns, 34 DEPAUL L.REV. 197 (1984). To the contrary, in Davis v. Massachusetts, 167 U.S. 43, 17 S.Ct. 731, 42 L.Ed. 71 (1897), the Supreme Court emphatically rejected any right of access. The Court equated the state's position to that of a private property owner, with as much authority to prohibit communicative activity on state property. Id. Forty years later, however, a plurality of the Court announced a public right of access to streets and parks in Hague v. Comm. for Indus. Org., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). There the Court recognized that use of certain public property has "from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens." Id. at 515, 59 S.Ct. 954 The Hague plurality recognized that while a citizen's right of access to the streets and parks is not absolute, it must not be abridged or denied in the guise of regulation. Id. at 516, 59 S.Ct. 954.

To assess whether public property constitutes a public forum, the United States Supreme Court applies a forum analysis that identifies three categories of public property and two tiers of judicial scrutiny. The three categories of public property are (1) public property that has traditionally been made available as a part of the "privileges, immunities, rights, and liberties of citizens"; (2) public property that has been designated by the government as a public forum; and (3) all other public property. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); see Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 112 S.Ct. 2711, 120 L.Ed.2d 541 (1992); Frisby v. Schultz, 487 U.S. 474, 479-80, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). The third category of property constitutes nonpublic forums. The level of judicial scrutiny to which a challenged regulation will be subject and the degree of judicial deference that will be afforded the legislative balance struck in the regulation is determined by the category into which a specific type of property falls. See Perry Educ. Ass'n, 460 U.S. at 44, 103 S.Ct. 948; City of Seattle v. Huff, 111 Wash.2d 923, 926, 767 P.2d 572 (1989). Therefore, an analysis of the "character of the property at issue" is the touchstone of a legal inquiry into the constitutional validity of a regulation that attempts to limit expressive activity. Perry Educ. Ass'n, 460 U.S. at 44, 103 S.Ct. 948.

Under the First Amendment, speech in a public forum, whether a traditional public forum or a public forum by government designation, is subject to restrictions on "time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Perry Educ. Ass'n, 460 U.S. at 45, 103 S.Ct. 948; see Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); Frisby, 487 U.S. at 481, 108 S.Ct. 2495; United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983).⁴ However, we have held that under the broad language of article I, section 5, restrictions on speech in a public forum can be imposed only on a showing of a compelling governmental interest. Collier v....