Frumer v. Cheltenham Tp., 82-1598

• Decision Date: 17 June 1983
• Docket Number: No. 82-1598,82-1598
• Citation: 709 F.2d 874
• Parties: Marshall FRUMER, Joyce Caplan, Joan Johnston, Appellants, v. CHELTENHAM TOWNSHIP, Board of Commissioners of Cheltenham Township, Nicholas D. Melair, Jr.
• Court: U.S. Court of Appeals — Third Circuit

Page 874

709 F.2d 874

Marshall FRUMER, Joyce Caplan, Joan Johnston, Appellants, v. CHELTENHAM TOWNSHIP, Board of Commissioners of Cheltenham Township, Nicholas D. Melair, Jr.

No. 82-1598.

United States Court of Appeals Third Circuit.

Argued June 1, 1983.

Decided June 17, 1983.

Michael A. Etkin (argued), Frumer & Etkin, Philadelphia, Pa., for appellants.

Gilbert P. High, Jr. (argued), High, Swartz, Roberts & Seidel, Norristown, Pa., for appellees.

Before GIBBONS and BECKER, Circuit Judges and WEBER, District Judge ^*.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

Marshall Frumer, Joyce Caplan and Joan Johnston, residents of Cheltenham Township, Pennsylvania, appeal from an order denying their motion for a preliminary injunction against the enforcement of a township ordinance which provides:

No temporary sign shall be affixed to utility poles, street signs or any other structures within the rights-of-way of public streets or highways within the Township of Cheltenham.

They contend that the ordinance violates rights guaranteed by the first and fourteenth amendments. The district court, 545 F.Supp. 1292, denied a preliminary injunction on the ground that because the ordinance appeared to be a content-neutral time, place, and manner regulation, the plaintiffs had little likelihood of success under these facts on the merits. This appeal followed. The township officials contend that the appeal should be dismissed as moot. We hold that the appeal is not moot, and we affirm.

I. Mootness

The challenged ordinance was enacted by the Cheltenham Board of Commissioners on March 16, 1982 over the opposition of the plaintiffs and others. Frumer was then a candidate in the Democratic primary election, scheduled for May of 1982. Johnston was co-chairperson of the Cheltenham Democratic Committee, and Caplan a member of that committee. The opposition also included members of charitable organizations. The May primary took place before the hearing on plaintiffs' preliminary injunction motion. The general election took place in November, after the notice of appeal was filed.

The township officials contend that since the November election has passed, and it was in connection with that election that the plaintiffs intended to post temporary signs, the case is moot insofar as it seeks preliminary injunctive relief. Obviously, however, the Democratic Committee survives from one election to another, and has a continuing interest in the controversy. The issue posed by the complaint is one "capable of repetition, yet evading review," Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). The immediate need for an injunction may have evaporated, but there is a reasonable expectation that the same parties will be subject to the same action again. Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982); United States v. Criden, 675 F.2d 550, 553-54 (3d Cir.1982).

The township officials recognize that the case is not moot, since the trial court must still decide it at final hearing. They urge, however, that we should, for purposes of 28 U.S.C. Sec. 1292(a), recognize a separate mootness category: mootness of the immediacy of irreparable harm. No authority has been called to our attention which introduces such further complication to the already unduly complex law of justiciability. The absence of immediately threatened harm from application of the ordinance to the plaintiffs certainly is one factor to be taken into account in determining whether to grant a preliminary injunction. It is, however, a factor going to the merits of such relief, not to the justiciability of the controversy. Thus we hold that the appeal is justiciable.

II. The Merits of the Denial of a Preliminary Injunction

When reviewing the grant or denial of preliminary injunctive relief, we may reverse the district court only if that court abused its discretion, erred in stating or applying the law, or clearly mistook the facts. Punnett v. Carter, 621 F.2d 578, 582 (3d Cir.1980). The district court must be guided in its decision by (1) whether the party requesting relief has a reasonable probability of succeeding on the merits of his claim and (2) whether that party will be irreparably injured pendente lite if no preliminary injunction is forthcoming. Id. ¹ This latter inquiry is somewhat akin to that made in determining whether this appeal is moot. Not surprisingly, the district court found that such injury would occur. Appendix at 127 n. 4. It held, however, that plaintiffs had little, if any, chance of prevailing on the merits since the ordinance is a valid time, place and manner regulation.

Valid time, place and manner regulations are an exception to the first amendment protection of certain forms of speech. Such regulations impose a slight burden on speech in the interests of another public good. Since such a rationale might be proffered in justification of all types of limitations on speech, a regulation will be deemed valid under the time, place, and manner exception only if it meets certain criteria. According to the Supreme Court, "[w]e have often approved restrictions of that kind provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information." Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976); see also Metromedia, Inc. v. San Diego, 453 U.S. 490, 515-16, 101 S.Ct. 2882, 2896-97, 69 L.Ed.2d 800 (1981); Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 93-94, 97 S.Ct. 1614, 1618-19, 52 L.Ed.2d 155 (1977). The Virginia Pharmacy case itself involved restrictions on commercial speech, a form perhaps less protected by the first amendment than the political speech at stake here. But the test articulated in Virginia Pharmacy is not that applicable to commercial speech but to public debate. See cases cited at 425 U.S. 771, 96 S.Ct. 1830. ² As noted by this court, "it is undisputed that even speech entitled to the highest First Amendment protection may be subject to reasonable time, place and manner regulations that are content-neutral, serve a significant governmental interest, and that leave open ample alternative channels for communication of the information." American Future Systems, Inc. v. Pennsylvania State University, 688 F.2d 907, 915 (3d Cir.1982) (citing to Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647-48, 101 S.Ct. 2559 2563-64, 69 L.Ed.2d 298 (1981)), cert. dismissed, --- U.S. ----, 103 S.Ct. 583, 74 L.Ed.2d 941 (1982).

Plaintiffs have relied on several Ninth Circuit cases--particularly Taxpayers for Vincent v. Members of the City Council, 682 F.2d 847 (9th Cir.1982), prob. juris. noted, --- U.S. ----, 103 S.Ct. 1180, 75 L.Ed.2d 429 (1983)--which have announced additional criteria for the application of the time, place, and manner exception. In Taxpayers for Vincent the Ninth Circuit addressed the constitutionality of an ordinance much like the one in issue here. Instead of discussing whether there were ample alternatives to the type of expression banned by the statute, the court inquired whether the ordinance was the least drastic means of protecting the governmental interests it served. 682 F.2d at 852-53. ³ This latter inquiry is a heightened form of judicial scrutiny under which the likelihood that a regulation will be upheld is decreased. See, e.g., Widmar v. Vincent, 454 U.S. 263, 276, 102 S.Ct. 269, 277, 70 L.Ed.2d 440 (1981).

The least restrictive means test advanced in Taxpayers for Vincent was considered by this court in Tacynec v. City of Philadelphia, 687 F.2d 793 (3d Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 819, 74 L.Ed.2d 1016 (1983), and rejected. At issue in Tacynec was the validity of a limitation on the number of entrants in the Philadelphia Mummers Parade. In ruling that the ordinance was unconstitutional, the district court had applied the Taxpayers for Vincent criteria for valid time, place and manner regulation. 687 F.2d at 797. The court reversed, stating that the position of the Supreme Court on this issue is clear and citing inter alia Heffron, Linmark Associates and Virginia Pharmacy. Id. at 797-98. According to the Tacynec panel, the least restrictive means test is traditionally used only when the regulation in question is content-oriented, since then the dangers inherent in government support of one point of view relative to another justify the most exacting judicial scrutiny. Id. at 798.

Given that Tacynec is the law of this...