Collier v. City of Tacoma

• Decision Date: 01 July 1993
• Docket Number: No. 59442-2,59442-2
• Citation: 121 Wn.2d 737,854 P.2d 1046
• Court: Washington Supreme Court
• Parties: , 62 USLW 2036 Michael COLLIER and Joel Beritich, Respondents, v. CITY OF TACOMA, Appellant. En Banc

Page 737

121 Wn.2d 737

854 P.2d 1046, 62 USLW 2036

Michael COLLIER and Joel Beritich, Respondents, v. CITY OF TACOMA, Appellant.

No. 59442-2.

Supreme Court of Washington,

En Banc.

July 1, 1993.

William J. Barker, City Atty., John C. Kouklis, Patricia Bosmans, Heidi Ann Horst, Asst. City Attys., Tacoma, for appellant

Adam Kline, Seattle, for respondents.

GUY, Justice.

Michael Collier, a candidate for Congress, posted his political campaign signs in residential areas within the City of Tacoma more than 60 days prior to the 1990 primary election. City workers removed Collier's signs from residential yards and parking strips in accordance with two Tacoma ordinances that restrict the preelection posting of political

                signs in such areas to a 60-day campaign window.   Collier sued Tacoma claiming the ordinances violated his free speech rights.   The trial court entered judgment in favor of Collier, holding the ordinances unconstitutional.   We accepted certification from the Court of Appeals and affirm in part and reverse in part
                

FACTS

Michael Collier was a candidate for the democratic party's nomination for Congress in the sixth congressional district of Washington in 1990. Collier had not previously held or run for any elective office. He was not considered a public figure or well known in political circles. Collier's opponent in the primary election was Representative Norm Dicks, a 14-year incumbent.

The primary election was scheduled for September 18, 1990. Collier began to plan his campaign in December 1989 and began fund raising in February 1990. Collier identified that the greatest obstacles to his campaign were lack of name familiarity and funding. During the course of the primary campaign, Collier raised and spent a total of $29,000. Representative Dicks spent $329,000 in his primary campaign.

Given his resources, Collier determined that yard signs were the most cost-effective means of communicating his political message. At the beginning of May 1990, the Collier campaign assembled some 700 two-sided yard signs. The first of these was posted outdoors between May 20 and 30. Collier supporters placed "Mike Collier for Congress" signs in their front yards and parking strips.

Tacoma Municipal Code (TMC) 2.05.275 defines and regulates political signs. The ordinance defines political signs as "[a]ll signs which are displayed out-of-doors on real property relating to the nomination or election of any individual for a public political office or advocating any measure to be voted on at any special or general election". The ordinance limits the posting of such political signs to a period of not more Tacoma Municipal Code 6.03.070 prohibits any person, firm, or corporation from posting any signs.

                than 60 days prior to and 7 days after the date of the election for which the signs are intended.   TMC 2.05.275(1). 1
                

on any public street or highway or upon any curbstone, lamp post, street sign, pole, hydrant, bridge, tree, or other thing situated upon any public street or highway or any publicly owned property within the City of Tacoma, except as may be authorized by ordinances of the City of Tacoma ... PROVIDED, HOWEVER, the prohibition contained herein shall not apply to political signs placed on parking strips preceding a primary or general election where such political signs are installed pursuant to the permission of the owner of the property abutting said parking strip and installed in such a manner as not to constitute a traffic hazard ...

Real estate signs advertising the sale or rent of the property upon which they stand or to which they are attached, and other signs attached to any building or sidewalk advertising the business carried on in the building, are exempt from the provisions of this chapter. TMC 6.03.080.

Pursuant to these ordinances, Tacoma Public Works Department employees removed signs displaying "Mike Collier for Congress" from residential yards and parking strips within the City of Tacoma that were posted more than 60 days prior to the primary election. Mr. Benjamin Thompson, City Engineer for Tacoma, testified that he directed personnel from his department to pick up all signs in the public Collier filed this action in July 1990 seeking a temporary restraining order, an injunction against the ordinances' enforcement, a declaratory judgment that the ordinances are unconstitutional, and attorney fees. The complaint was subsequently amended to include plaintiff ³ Joel Beritich, a Collier supporter who had political signs removed from his yard and parking strip. The amended complaint also cited 42 U.S.C. § 1983 as an additional source of protection for the rights involved and 42 U.S.C. § 1988 as the statutory basis for the claim of attorney fees. On February 15, 1991, the trial court entered judgment in favor of Collier, holding that the ordinances were unconstitutional, but denied Collier's claim for attorney fees. Tacoma appealed the trial court's judgment as to the ordinances, and Collier cross appealed the trial court's denial of attorney fees. We accepted certification from the Court of Appeals and now affirm in part and reverse in part.

                right-of-way 2 throughout the city.   Mr. Thompson testified that his department also removes commercial signs from residential areas since commercial signs are not permitted in those areas.   Mr. Thompson understood that the ordinance allows an exception for on-site commercial signs pertaining to the sale or rent of private property.   He testified that in order to enforce the ordinances, he differentiates between commercial and political signs by reading them
                

ISSUES

This case presents three issues for review. First, do the Tacoma ordinances unconstitutionally restrict Collier's free speech rights? We hold that Tacoma's durational limitation Second, did the trial court err in declaring the Tacoma ordinances unconstitutional in their entirety? We answer in the affirmative and hold unconstitutional only those portions of the Tacoma ordinances that impermissibly restrict political speech.

on the preelection posting of political signs unconstitutionally restricts Collier's right to political expression.

Third, did the trial court err when it denied plaintiffs' request for attorney fees pursuant to 42 U.S.C. § 1988? We reverse the trial court on the issue of attorney fees and remand for a determination of an award of fees consistent with this opinion.

ANALYSIS

I

The Tacoma ordinances are challenged under both the first and fourteenth amendments to the United States Constitution, and article 1, section 5 of the Washington Constitution. The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech". U.S. Const. amend. 1. The freedom of speech which is secured by the First Amendment is "among the fundamental personal rights and liberties which are secured to all persons by the Fourteenth Amendment against abridgment by a State." Burson v. Freeman, 504 U.S. ----, ----, 112 S.Ct. 1846, 1850, 119 L.Ed.2d 5, 12 (1992) (quoting Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 740, 84 L.Ed. 1093 (1940)). Article 1, section 5 of the Washington Constitution provides that "[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that right."

As we stated in O'Day v. King Cy., 109 Wash.2d 796, 801-02, 749 P.2d 142 (1988) (citing State v. Coe, 101 Wash.2d 364, 373-74, 679 P.2d 353 (1984)), "[t]his court has a duty, where feasible, to resolve constitutional questions first under the provisions of our own state constitution before turning to federal law." We do so because in addition to our responsibility to interpret Washington's constitution, we must furnish a rational basis "for counsel to predict the future course of state decisional law." State v. Gunwall, 106 Wash.2d 54, 60,

                720 P.2d 808, 76 A.L.R.4th 517 (1986).   See Utter,  The Practice of Principled Decision-Making in State Constitutionalism:  Washington's Experience, 65 Temp.L.Rev. 1153 (1992).   We recognize that the free speech clauses of the state and federal constitutions are different in wording and effect, but that the result reached by previous Washington cases in general adopted much of the federal methodology for application to state constitutional cases.   The federal cases cited here and in our prior decisions are used for the purpose of guidance and do not themselves compel the result the court reaches under our state constitution.   See Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983);  Seattle v. Mesiani, 110 Wash.2d 454, 456, 755 P.2d 775 (1988).   With these statements in mind, we turn to our analysis of the Tacoma ordinances
                

II

The Tacoma ordinances implicate several concerns in our free speech jurisprudence: regulation of political speech, regulation of political speech in a public forum, and regulation based on the content of the speech. The speech restricted by Tacoma Municipal Code sections 2.05.275 and 6.03.070 is political speech. The code defines "political signs" and restricts the time and place in which such signs may be posted. Wherever the extreme perimeters of protected speech may lie, it is clear the First Amendment protects political speech, see Carey v. Brown, 447 U.S. 455, 467, 100 S.Ct. 2286, 2293, 65 L.Ed.2d 263 (1980), giving it greater protection over other forms of speech. Metromedia, Inc. v. San Diego, 453 U.S. 490, 513, 101 S.Ct. 2882, 2895, 69 L.Ed.2d 800 (1981). The constitutional protection afforded political speech has its "fullest and most urgent application precisely to the conduct of campaigns for political office." Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971).

The second important feature of the Tacoma ordinances is that they restrict political speech in a traditional public forum. The traditional public forum includes those places " 'which by long tradition or by government fiat have ...