Fernandez v. St. Louis Cnty.

• Decision Date: 18 May 2020
• Docket Number: Case No. 4:19-cv-01638-SNLJ
• Citation: Fernandez v. St. Louis Cnty., 461 F.Supp.3d 894 (E.D. Mo. 2020)
• Parties: Robert FERNANDEZ, Plaintiff, v. ST. LOUIS COUNTY, MISSOURI, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

461 F.Supp.3d 894

Robert FERNANDEZ, Plaintiff,

v.ST. LOUIS COUNTY, MISSOURI, Defendant.

Case No. 4:19-cv-01638-SNLJ

United States District Court, E.D. Missouri, Eastern Division.

Signed May 18, 2020

Hugh A. Eastwood, Hugh A. Eastwood, Attorney at Law, W. Bevis Schock, Schock Law, St. Louis, MO, for Plaintiff.

Linda Levin, Robert C. Moore, St. Louis County Counselor's Office, Clayton, MO, for Defendant.

MEMORANDUM AND ORDER

STEPHEN N. LIMBAUGH, JR., UNITED STATES DISTRICT JUDGE

This matter comes before the Court on defendantSt. Louis County's motion for judgment on the pleadings(#33) and plaintiff's motion to exclude the affidavit of Jericka Johnson(#36).The County's motion is DENIED and plaintiff's motion is GRANTED .

As plaintiff puts it, "[t]his is a case about the First Amendment rights of a homeless beggar to solicit alms from motorists while standing on the sidewalk median of a County roadway."In a separate Order, this Court preliminarily enjoined the County from enforcing St. Louis County Code Sections 716.080and716.090 dealing with so-called "vagrants."However, the parties continue to dispute certain anti-solicitation provisions, including the solicitor license requirement (Section 804.050) and certain prohibitions against soliciting in public roadways (Section 1209.010.1).SeeSt. Louis County Peddlers and Solicitors Code§ 804.050(2019);St. Louis County Traffic Code§ 1209.090(2019).

Those ordinances read:

804.050 - Solicitor's License Required.

—It shall be unlawful for any solicitor to engage in such business in St. Louis County, without first having obtained a license therefor from the Division.

1209.090 - Pedestrians Soliciting Rides or Business —

1.No person shall stand in a roadway for the purpose of soliciting a ride, employment, charitable contribution or business from the occupant of any vehicle.

2.No person shall stand on or in proximity to a road for the purpose of soliciting the watching or guarding of any vehicle parked or about to be parked on a road.

As an initial matter, the Court will grant plaintiff's motion to excludeJericka Johnson's affidavit.The essence of that motion is to challenge the County's filing of a supportive affidavit as part of its motion for judgment on the pleadings, which is not a "material necessarily embraced by the pleadings."That criticism is well-founded.Rule 12(d) notes that a motion for judgment on the pleadings"must be treated as one for summary judgment" where "matters outside the pleadings are presented to and not excluded by the court."FED. R. CIV. P. 12(d).An affidavit is not a pleading.SeeJoe Hand Promotions, Inc. v. Shepard , 2015 WL 1976342 at *2(E.D. Mo.Apr. 30, 2015)(Limbaugh, J.);Patterson v. ABS Consulting, Inc. , 2008 WL 5263784 at *1(E.D. Mo.Dec. 18, 2008)(Sippel, J.);see alsoFED. R. CIV. P. 7(a)(defining "pleadings").And, despite the County's suggestion otherwise, Johnson's affidavit was not "attached to [a] pleading"—it was attached to a motion.Nor is the affidavit automatically treated as a "public record" as would come within the limited exception that allows a court to consider "some materials that are part of the public record" without converting the motion into one for summary judgment.SeeGreenman v. Jessen , 787 F.3d 882, 887(8th Cir.2015)(treating as a "public record" the underlying state court decisions made in the case).Ultimately, the Court need not decide whether the affidavit should be considered under this or any exception, though, because the affidavit does not materially aid the County's motion or this Court's consideration of it.In fact, the affidavit is cited only once in the County's supporting memorandum of law for the unremarkable proposition that "[t]he County Peddler and Solicitors Code sets out [the] licensing procedure which is applied to all individuals and groups soliciting the public."The Code speaks for itself on the proper scope of its mandates—an affidavit, whatever it proclaims, is simply immaterial in that respect.

That leaves the County's motion, which is governed under the same standards as a Rule 12(b)(6) motion.SeeAshley Cty., Ark. v. Pfizer, Inc. , 552 F.3d 659, 665(8th Cir.2009)."Judgement on the pleadings is appropriate only when there is no dispute as to any material facts and the moving party is entitled to judgment as a matter of law."Id.

The County's arguments focus heavily on Ass'n of Cmty. Organizations for Reform Now ("ACORN") v. St. Louis Cty. , 726 F. Supp. 747(E.D. Mo.1989), aff'd , 930 F.2d 591(8th Cir.1991), in which, according to the County, Section 1209.090 was "definitively upheld by this Court and by the Eighth Circuit."Thus, the argument goes, ACORN is "stare decisis as to this particular ordinance" so that plaintiff's complaint "leaves no [factual] dispute" and instead "establish[es]defendant is entitled to judgment as a matter of law."Moreover, the County argues that, even outside of ACORN ’s on-point analysis, the ordinances at issue are content-neutral (regulating where , not what , speech can occur) and narrowly tailored (by being no more prohibitive than necessary and leaving open alternative channels for soliciting alms).

ACORN is, indeed, on-point.In that case, judgment was granted to the County over a First Amendment challenge to Section 1209.090.See726 F.Supp. at 754.On appeal, the Eighth Circuit recognized the First Amendment right to solicit contributions, but called Section 1209.090 a "time, place, and manner restriction" that was "content neutral."930 F.2d at 594.Thus, it applied an intermediate scrutiny standard to gauge the constitutionality of the County's ordinance.Id.(citingWard v. Rock Against Racism );see alsoWard v. Rock Against Racism , 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661(1989)("[A] regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests but [ ] it need not be the least restrictive or least intrusive means of doing so.");Turner Broadcasting Sys., Inc. v. F.C.C. , 512 U.S. 622, 662, 114 S.Ct. 2445, 129 L.Ed.2d 497(1994)(describing Ward as applying an "intermediate level of scrutiny").The Eighth Circuit explained that a time, place, and manner restriction is permissible if it is "justified without reference to the content of the regulated speech ... [is] narrowly tailored to serve a significant government interest, and ... leave[s] open ample alternative channels for communication of the information."ACORN , 930 F.2d at 594(quotingClark v. Community for Creative Non-Violence , 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221(1984) ).It concluded that a "government interest in safety and traffic efficiency is ‘significant.’ "Id.It further concluded that the ordinance was narrowly tailored in that it addressed a "real, not speculative [danger]," as shown by the evidence of ACORN's own solicitors engaged in solicitation while cars were moving and while the light was green.Id. at 596.Because intermediate scrutiny was applied, the County was not required to show that the least restrictive means was being used.Id. at 596-597;see alsoMcCullen v. Coakley , 573 U.S. 464, 486, 134 S.Ct. 2518, 189 L.Ed.2d 502(2014)(describing how, in regard to a time, place, and manner regulation, the "least restrictive alternative" standard is inapplicable, but the government must still "not burden substantially more speech than is necessary").

On the facts of this case, ACORN would, indeed, appear dispositive—this case deals with the same statute and the same basic factual concerns.That said, an appellate decision controls "unless an intervening Supreme Court decision has superseded it."Gresham v. Swanson , 866 F.3d 853, 855(8th Cir.2017).

Plaintiff says Reed v. Town of Gilbert, Ariz.,576 U.S. 155, 135 S.Ct. 2218, 192 L.Ed.2d 236(2015) does exactly that—it acts as intervening and superseding authority to ACORN .This is not the first time Eighth Circuit "content-neutral time, place, and manner" precedent has been challenged in light of Reed .SeeGresham , 866 F.3d at 856(evaluating the effects of Reed on TCPA-related content-neutrality precedent).And, in fact, at least one other judge of this Court has suggested Reed , indeed, acts as intervening authority on the issue of properly distinguishing between content-based and content-neutral laws.SeeTraditionalist Am. Knights of the Ku Klux Klan v. City of Desloge, Missouri , 2016 WL 705128 at *3(E.D. Mo.Feb. 23, 2016)(Baker, J.)("If the solicitation provisions of the City's ordinance were at issue, Reed would certainly constitute intervening authority").

In Reed , the Supreme Court made clear that a "crucial first step" in determining whether a law is content-based or content-neutral is to "determine[ ] whether the law is content neutral on its face ."Reed , 135 S.Ct. at 2228(emphasis added).That means evaluating a law on whether it "expressly draws distinctions based [on] communicative content" without regard to a government's benign motive, content-neutral justification, or lack of "animus towards the ideas contained in the regulated speech."Id. at 2227-2228.Thus, the Supreme Court disagreed that a municipal ordinance applying differing restrictions to sign usage based on their communicative purpose was "content neutral" simply because it "hinge[d] on whether and when an event [was] occurring."Id. at 2231.The Supreme Court explained "the fact that a distinction is event based does not render it content neutral," rather "[a]s we have explained, a speech regulation is content based if the law applies to particular speech because of the topic discussed or the idea or message expressed."Id.Distinguishing true event-based restrictions from content-based ones, the Supreme Court emphasized the ordinance "does not permit citizens to post signs on any topic whatsoever within a set period," but instead requires city officials to make a ...