Edge v. City of Everett

• Docket Number: Case No. C17-1361RSM
• Decision Date: 19 October 2022
• Citation: 636 F.Supp.3d 1247
• Parties: Jovanna EDGE, et al., Plaintiffs, v. CITY OF EVERETT, a Washington Municipal Corporation, Defendant.
• Court: U.S. District Court — Western District of Washington

636 F.Supp.3d 1247

Jovanna EDGE, et al., Plaintiffs, v. CITY OF EVERETT, a Washington Municipal Corporation, Defendant.

Case No. C17-1361RSM

United States District Court, W.D. Washington, at Seattle

Signed October 19, 2022

Jason B. Sykes, Jessica V. Newman, Keith P. Scully, Derek Alan Newman, Newman Du Wors LLP, Seattle, WA, for Plaintiffs Jovanna Edge, Leah Humphrey, Liberty Ziska, Amelia Powell, Natalie Bjerke, Matteson Hernandez.

Jamie L. Lisagor, Sarah C. Johnson, Sarah S. Washburn, Pacifica Law Group LLP, Seattle, WA, Ramsey Ramerman, City of Everett, WA, for Defendant.

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT

RICARDO S. MARTINEZ, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This case comes before the Court on the parties' Motions for Summary Judgment, Dkts. #74 and #76. The Court has determined that it can rule without oral argument. For the following reasons, the Court GRANTS IN PART and DENIES IN PART these Motions as stated below.

II. BACKGROUND

The general background facts of this case have been set forth previously by this Court when granting Plaintiff's Motion for Preliminary Injunction, Dkt. #55, and by the Ninth Circuit when that Order was appealed, Dkt. #65. These facts are generally sufficient for the Court's analysis below.¹ The Court adopts the factual and procedural background set forth in the Ninth Circuit's Opinion. See Dkt. #65.

Plaintiffs Jovanna Edge and others are or were employed by "bikini barista stands." Plaintiffs challenge the constitutionality of two ordinances enacted by the City of Everett, Ordinance No. 3559-17 (the "Lewd Conduct Ordinance") and Ordinance No. 3560-17 (the "Dress Code Ordinance"). The Lewd Conduct Ordinance expanded the definition of a lewd act to include an exposure of "more than one-half of the part of the female breast located below the top of the areola," "the genitals, anus, bottom one-half of the anal cleft, or any portion of the areola or nipple of the female breast" and created the new crime of Facilitating Lewd Conduct. Dkt. #65 at 7-8. The Dress Code Ordinance requires all employees, owners, and operators of "Quick-Service Facilities" to wear clothing that covers "the upper and lower body (breast/pectorals, stomach, back below the shoulder blades, buttocks, top three inches of the legs below the buttocks, pubic area and genitals)." Id. at 8. The Ordinance defines Quick-Service Facilities as "coffee stands, fast food restaurants, delis, food trucks, and coffee shops" in addition to all other drive-through restaurants. Id. Violations are deemed civil infractions. Id. To ensure that stand owners are motivated to enforce the dress code, the City instituted a $250 fine for first time offenders. Id. Repeat offenders face increased fines and risk losing their business licenses.

Although the Dress Code Ordinance defines "Quick-Service Facilities" broadly, it is clear from the title ("an Ordinance concerning the regulation of Quick Service Facilities including Barista Stands") and the preamble (e.g., "The City has seen a proliferation of crimes of a sexual nature occurring at bikini barista stands . . .") that this Ordinance was enacted to respond to the perceived problems associated with bikini barista stands. See Dkt. #1-2 at 2.

In their Complaint, Plaintiffs allege both Ordinances violated the First Amendment, the Fifth and Fourteenth Amendments (equal protection, vagueness and substantive due process), and corollary provisions in the Washington Constitution (art. I, sec. 5 (free speech) and art. I, sec. 12 (equal protection)). Dkt. #1.

This Court granted Plaintiffs' Motion for a Preliminary Injunction on December 4, 2017. Dkt. #55. In that Order, the Court found a likelihood of success on the merits with regard to Plaintiffs' Fourteenth and First Amendment claims. Specifically, the Court found that the Lewd Conduct Ordinance was likely void for vagueness and that both ordinances create dangers of arbitrary enforcement. The Court found that Plaintiffs' choice of clothing was communicative, the dress code ordinance was content neutral, that it was subject to intermediate scrutiny, and that it did not satisfy that test. Everett filed an appeal, which was granted. The Ninth Circuit found that the Lewd Conduct Ordinance was not void for vagueness and did not "create a constitutional problem by inviting discretionary enforcement." Dkt. #65 at 14-17. The Ninth Circuit ruled that "the vagueness doctrine does not warrant an injunction prohibiting enforcement of the Dress Code Ordinance." Id. at 19. Plaintiffs' First Amendment claims failed to "show a likelihood that their intended message will be understood by those who receive it." Id. at 22; see also id. at 23 ("The baristas' act of wearing pasties and g-strings in close proximity to paying customers creates a high likelihood that the message sent by the baristas' nearly nonexistent outfits vastly diverges from those described in plaintiffs' declarations."). The Ninth Circuit then provided a framework for this Court in thinking about the First Amendment claims:

We stress that plaintiffs deny that they engage in nude dancing and erotic performances, thereby disavowing the First Amendment protections available for that conduct. See Barnes [v. Glen Theatre, Inc.], 501 U.S. [560,] at 566, [111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) ]. The outcome of this case turns on the plaintiffs' contention that the act of wearing almost no clothing while serving coffee in a retail establishment constitutes speech. Because wearing pasties and g-strings while working at Quick-Service Facilities is not "expressive conduct" within the meaning of the First Amendment, the Dress Code Ordinance does not burden protected expression.

The district court's application of intermediate scrutiny under the "secondary effects" line of authority was inapposite because that doctrine applies to regulations that burden speech within the ambit of the First Amendment's sphere of protection. See World Wide Video of Wash., Inc. v. City of Spokane, 368 F.3d 1186, 1192 (9th Cir. 2004). Here, because the Dress Code Ordinance does not burden expressive conduct protected by the First Amendment, the City need only demonstrate that it "promotes a substantial government interest that would be achieved less effectively absent the regulation." Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 67, [126 S.Ct. 1297, 164 L.Ed.2d 156] (2006) (quoting United States v. Albertini, 472 U.S. 675, 689, [105 S.Ct. 2897, 86 L.Ed.2d 536] (1985)). The district court did not analyze the ordinance under this framework, so we vacate its preliminary injunction and remand for further proceedings.

Id. at 23. The Court now considers these claims on summary judgment.

III. DISCUSSION

A. Legal Standard for Summary Judgment

Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Material facts are those which might affect the outcome of the suit under governing law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In ruling on summary judgment, a court does not weigh evidence to determine the truth of the matter, but "only determine[s] whether there is a genuine issue for trial." Crane v. Conoco, Inc., 41 F.3d 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O'Melveny & Myers, 969 F.2d 744, 747 (9th Cir. 1992)).

On a motion for summary judgment, the court views the evidence and draws inferences in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Sullivan v. U.S. Dep't of the Navy, 365 F.3d 827, 832 (9th Cir. 2004). The Court must draw all reasonable inferences in favor of the non-moving party. See O'Melveny & Myers, 969 F.2d at 747, rev'd on other grounds, 512 U.S. 79, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994). However, the nonmoving party must make a "sufficient showing on an essential element of her case with respect to which she has the burden of proof" to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

B. No Genuine Disputes of Material Fact

As an initial matter, the parties appear to agree that there are no genuine disputes as to any material facts such that entry of judgment as a matter of law would be precluded. See Dkt. #74 at 8. The parties have stipulated to the facts, although they disagree with the admissibility of certain expert testimony. They have apparently agreed to submit the remaining issues in this case to the Court on these cross motions.

C. First Amendment Claims

Plaintiffs allege in the Complaint that they use their clothing (or lack of it) to convey messages including "female empowerment, positive body image, freedom of choice, and personal and political viewpoints," and claim that the Dress Code and Lewd Conduct Ordinances infringe on their First Amendment right to convey such messages at work and on their free time in public areas of the City. Dkt. #1 at 11-13. Plaintiffs affirmatively "deny that they engage in nude dancing and erotic performances." Edge v. City of Everett, 929 F.3d 657, 669 (9th Cir. 2019); Dkt. #32-1 at 4, 116, 208-09.

Plaintiffs do not contest dismissal of their First Amendment challenge to the Lewd Conduct Ordinance. The Court agrees that this claim should be dismissed for the reasons stated by the City of Everett. See Dkt. #74 at 11-12.

Turning to the Dress Code Ordinance, the Ninth Circuit has already ruled that it does not burden expressive conduct protected by the First Amendment and that the City of Everett need only demonstrate that it "promotes a substantial government interest that would be achieved less effectively absent the regulation." See Dkt. #65 at 23 (citing Rumsfeld, supra).

The City of Everett points to the record before the Everett City Council and this Court as sufficient to...