Get Outdoors II, LLC v. City of San Diego, Cal.

• Decision Date: 01 November 2007
• Docket Number: No. 05-56366.,05-56366.
• Citation: 506 F.3d 886
• Parties: GET OUTDOORS II, LLC, A Nevada Limited Liability Company, dba Get Outdoors, LLC, California, Plaintiff-Appellant, v. CITY OF SAN DIEGO, CALIFORNIA, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

506 F.3d 886

GET OUTDOORS II, LLC, A Nevada Limited Liability Company, dba Get Outdoors, LLC, California, Plaintiff-Appellant, v. CITY OF SAN DIEGO, CALIFORNIA, Defendants-Appellees.

No. 05-56366.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 6, 2007.

Filed November 1, 2007.

E. Adam Webb, The Webb Law Group, Atlanta, GA, for the appellant.

Randal R. Morrison, Sabine and Morrison, San Diego, CA, for the appellee.

Appeal from the United States District Court for the Southern District of California, William Q. Hayes, District Judge, Presiding. D.C. No. CV-03-01436-WQH.

Before: CYNTHIA HOLCOMB HALL and CONSUELO M. CALLAHAN, Circuit Judges, and LYLE E. STROM,^* Senior District Judge.

HALL, Senior Circuit Judge:

This appeal is the first of three unrelated but similar cases requiring us to decide whether and to what extent an outdoor advertising company has standing to challenge the constitutionality of a municipal sign ordinance. In this opinion, we will outline the general legal principles applicable to all three cases and decide the appeal in the challenge to the San Diego ordinance.¹ We affirm the district court's order granting summary judgment to the City of San Diego.

I. Background

Get Outdoors II is an outdoor advertising company attempting to build and operate signs in the City of San Diego ("the City"). On June 2, 2003, Get Outdoors II filed twenty-four applications for billboard permits with the City, through its Development Services Department. Get Outdoors II alleges that it had already signed leases with various real property owners to post signs on their parcels.

When the company's representative dropped off the applications, a city official informed him that the City's sign ordinance prohibited new billboards but agreed to review the applications. The City then performed a complete review of the applications and notified Get Outdoors II the next day that it could not grant permits for any of the signs under San Diego Municipal Code ("SDMC") § 142.1210, which prohibits new signs bearing "off-premises" messages.² The City sent a formal letter, dated June 9, to the same effect.³ In a later declaration, a city development official explained that, in addition to violating the billboard ban, each of the permit applications was missing key documents and that, in any case, the proposed billboards violated size and height restrictions. Each of the proposed billboards had a display square footage of 672 and a pole height of 50 feet in areas where display was limited to 50, 150 or 350 square feet and pole height limited to 20 or 30 feet.

Get Outdoors II filed this lawsuit on July 21, 2003. Its 33-page, 105-paragraph second amended complaint raises fourteen claims for relief based on the First and Fourteenth Amendments. It argues that the City's billboard regulations are unconstitutionally overbroad under the First and Fourteenth Amendments because they favor commercial over non-commercial speech and some types of noncommercial speech over others, and that its own rights were violated by the ban on off-site signs, as well as certain size and height restrictions. It also argued that the permitting process was an invalid prior restraint because it lacked a deadline provision and because it gave city officials unbridled discretion to grant or deny permits. Get Outdoors II requested injunctive relief, damages, and attorney fees. Notably, it requested that the court invalidate the entire sign ordinance.

The parties filed cross-motions for summary judgment, which were argued in November 2004. By that time, the City had enacted several legislative amendments, including a "message substitution" clause, a 45-day deadline for decisions on all permit applications, and a judicial review provision. See SDMC §§ 142.1210(a)(10)(D); 129.0808; 129.0809. The district court granted summary judgment to the City on July 13, 2005. See Get Outdoors II v. City of San Diego, 381 F.Supp.2d 1250 (S.D.Cal.2005).

The district court held that Get Outdoors II lacked standing to bring its overbreadth claim because it was challenging provisions of the ordinance other than the provision that applied to it, found the billboard ban constitutional, rejected the challenge to the permit procedure as moot, and rejected the unbridled discretion claim on the merits. The court also held that the challenged provisions were severable because the content-neutral size and height restrictions may function independently from the provisions regulating sign copy and location. It granted summary judgment to the City.

Get Outdoors II filed its timely appeal on August 17, 2005. We review the district court's dismissal for lack of standing, dismissal for mootness, and grant of summary judgment de novo. See Ruiz v. City of Santa Maria, 160 F.3d 543, 548 (9th Cir.1998); Desert Outdoor Advertising, Inc. v. City of Moreno Valley, 103 F.3d 814, 818 (9th Cir.1996). We may affirm on any ground supported by the record. Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir.2004). We hold that the City's billboard size and height restrictions do not violate the First Amendment, that Get Outdoors II's permit applications violated these restrictions, and that it therefore lacks standing to challenge the ban on off-premises messages. Because we also hold that the challenge to the permit process fails, we affirm.

II. Standing

We turn first to the question of whether Get Outdoors II has standing to challenge the entire sign ordinance on the basis of the injuries it has alleged here. Because Get Outdoors II has made what it calls an overbreadth claim, it argues that it falls into a special exceptional category of standing doctrine. Throughout its briefs, Get Outdoors II uses "overbreadth" to describe two different arguments: (1) a severability argument that an injury caused by one provision of the sign ordinance should be considered an injury caused by the entire sign ordinance; and (2) a traditional overbreadth claim that certain provisions of the sign code are unconstitutionally overbroad because they threaten to burden the speech of non-parties to this case. The discussion that follows addresses both of these arguments.

A. Lujan and Overbreadth Standing

The "irreducible minimum" of standing under Article III of the Constitution is 1) an injury in fact which is "actual, concrete, and particularized"; 2) a causal connection between that injury and the defendant's conduct; and 3) a likelihood that the injury can be redressed by a favorable decision of the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The federal courts have supplemented this requirement of "constitutional standing" with the doctrine of "prudential standing," which requires us to ask whether the plaintiff's claim is sufficiently individualized to ensure effective judicial review. See Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004); Sec'y of State v. Joseph H. Munson Co., 467 U.S. 947, 956, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984); Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974). We employ the prudential standing doctrine to avoid usurping the legislature's role as the policymaking body in our separation of powers. See Prime Media v. City of Brentwood, 485 F.3d 343, 353 (6th Cir.2007) (hereinafter "Prime Media II").

When a plaintiff states an overbreadth claim under the First Amendment, however, we suspend the prudential standing doctrine because of the special nature of the risk to expressive rights. See Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). While the prudential standing doctrine typically prevents us from hearing lawsuits on the basis of injuries to non-parties, the overbreadth doctrine operates as a narrow exception permitting the lawsuit to proceed on the basis of "a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick, 413 U.S. at 612, 93 S.Ct. 2908. In other words, a plaintiff challenging a law as overbroad argues that the law is constitutionally valid as applied to him, but unconstitutional as to others. See, e.g., Virginia v. Am. Booksellers Ass'n, Inc., 484 U.S. 383, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988); New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982).

Even when raising an overbreadth claim, however, we ask whether the plaintiff has suffered an injury in fact and can satisfactorily frame the issues on behalf of these non-parties. See Munson, 467 U.S. at 958, 104 S.Ct. 2839; Gospel Missions of Am. v. City of Los Angeles, 328 F.3d 548, 554 (9th Cir.2003). Without this bare minimum of standing, the overbreadth exception would nullify the notion of standing generally in First Amendment litigation. We therefore agree with a string of recent decisions in other circuits holding that the three Lujan elements still apply in the overbreadth context. See CAMP Legal Defense Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1269-72 (11th Cir. 2006); accord Prime Media II, 485 F.3d at 349-50; KH Outdoor, L.L.C. v. Clay County, 482 F.3d 1299, 1305 (11th Cir.2007); Advantage Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793, 799 (8th Cir.2006); see generally Valley Forge Christian College v. Americans United for the Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).

In this case, Get Outdoors II challenges the off-site ban, as well as the rest of the sign code, on the basis of the harm it causes to other potential speakers, specifically noncommercial speakers. Get Outdoors II must still show, however, that it meets the Lujan requirements for each of the provisions it wishes to challenge as overbroad.

B. Get Outdoors...