Gospel Missions of America v. City of Los Angeles
| Decision Date | 08 August 2002 |
| Docket Number | No. 00-55993.,00-55993. |
| Citation | 298 F.3d 1099 |
| Parties | GOSPEL MISSIONS OF AMERICA, a religious corporation; Erich Wagner, II; Ray Austin; Ron Barber; P.J. Bourbonnais; Jay Bowman, Jr.; William Campbell; Warren Daly; Edward Ebeling; Allan Gathungu; Douglas Gorden; Jeremy Harsh; Kelvin Jackson; James Kahl; John D. Love; George Lownes; Michael Medford; John Proctor; James C. Roberts; James Rodgers; David Root; Donald Stach; James Vanderpoel; Brenda Wagner; Paul Winn; Thomas Wise; Ruth Washington; Ray Zedd, Plaintiffs-Appellants, v. CITY OF LOS ANGELES; Los Angeles Work Airports; Henry Acosta, as an individual and in his official capacity as Officer for the Airport Police Bureau; Shirley Flucus, as an individual and in her official capacity; Ronald E. Marbrey, as an individual and in his official capacity, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James H. Fosbinder, Rhonda M. Fosbinder, Fosbinder and Fosbinder, Kahului, Hawaii, for the plaintiffs-appellants.
John M. Werlich, Office of the City Attorney, Los Angeles, California, for the defendants-appellees.
Before GOODWIN, WALLACE and THOMAS, Circuit Judges.
Gospel Missions of America (Gospel Missions) appeals from a summary judgment in favor of the City of Los Angeles (City) in an action stemming from the City's attempt to enforce against Gospel Missions an amended version of its charitable solicitations law. Gospel Missions argues that the City is in contempt of an injunction against the City's enforcement of certain provisions of the pre-amended version of that law and that the threatened enforcement of new provisions in the law would violate Gospel Missions' First Amendment rights.
The district court had jurisdiction under 28 U.S.C. §§ 2201-02, 1331 and 1343(a)(3)(4). We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and vacate and remand in part.
The City regulates charitable solicitations. See L.A., Cal., Municipal Code (L.A.M.C.) §§ 44.00-44.15. The current version of the Los Angeles charitable solicitation law (Ordinance) requires all persons intending to solicit charitable contributions within the city to file an application with the Los Angeles Police Department. Id. § 44.04. The Police Department then investigates the information provided and determines whether to issue an Information Card to the applicant. Id. § 44.02. No one may solicit charitable contributions in the City without an Information Card. Id. § 44.09. The City also imposes an additional set of requirements on "Professional Fundraisers." Id. §§ 44.14. Professional fundraisers are those who solicit charitable contributions on behalf of others for gain. Id. § 44.00(f).
Gospel Missions is a non-profit religious corporation that provides ministry and shelter to homeless individuals, who in turn solicit funds and share some of the proceeds with Gospel Missions. In 1992, five of its properties were raided by the Los Angeles County Sheriff's Department because the Sheriff's Department believed Gospel Missions might be violating city and county charitable solicitation laws.
In response to the raid, Gospel Missions filed suit against the City and Los Angeles County (County) and included in its allegations constitutional challenges to the City and County charitable solicitation laws. The district court entered summary judgment in favor of Gospel Missions and enjoined the City and County from enforcing numerous provisions of their respective laws. See Gospel Missions of America v. Bennett, 951 F.Supp. 1429 (C.D.Cal.1997) (GMA I).
The City then amended the Ordinance (Amended Ordinance) in an attempt to comply with the GMA I injunction. Gospel Missions reluctantly complied with the Amended Ordinance's requirement that it obtain an Information Card before soliciting. It then instituted this action (GMA II) with the expectation that its members would not be allowed to solicit funds upon the expiration of its Information Card in July of 2000.
At a GMA II status conference, the district court gave Gospel Missions thirty days to file a summary judgment motion. After the City filed its response to the motion, the court sua sponte granted summary judgment in the City's favor. On appeal, Gospel Missions argues (1) that the district court's sua sponte summary judgment for the City denied it a full opportunity to develop its claims; (2) that numerous provisions applying to professional fundraisers in the Amended Ordinance are either in contempt of the GMA I injunction or unconstitutional; (3) that the district court failed to address Gospel Missions' vagueness, overbreadth and equal protection arguments; and (4) that two of the non-professional fundraiser provisions in the Amended Ordinance — section 44.15(b) and section 44.02(b)(2) — are either in contempt of the GMA I injunction or unconstitutional. We address each argument in turn.
Even when there has been no cross-motion for summary judgment, a district court may enter summary judgment sua sponte against a moving party if the losing party has had a "full and fair opportunity to ventilate the issues involved." Cool Fuel, Inc. v. Connett, 685 F.2d 309, 312 (9th Cir.1982). The salient issues upon which the district court granted summary judgment were presented in the original motion. A fair examination of the record discloses that Gospel Missions had "a full and fair opportunity to ventilate the issues involved." Therefore, the district court did not commit reversible error by acting sua sponte.
The district court determined that Gospel Missions does not have standing to challenge the Amended Ordinance's professional fundraiser provisions. We review de novo the district court's standing decision. Tyler v. Cuomo, 236 F.3d 1124, 1131 (9th Cir.2000). Gospel Missions argues that the district court is barred by claim and issue preclusion from determining that it does not have standing to challenge the professional fundraiser provisions because the district court in GMA I already determined that Gospel Missions had standing to challenge them.
In Migra v. Warren City School District Board of Education, 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984), the Supreme Court described claim preclusion as "the effect of a judgment in foreclosing litigation of a matter that has never been litigated, because of a determination that it should have been advanced in an earlier suit" and issue preclusion as "the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided."
Our decisions on the subject of claim and issue preclusion have not been a model of clarity. Compare Frank v. United Airlines, Inc., 216 F.3d 845, 850 n. 4 (9th Cir.2000) () with Ross v. Alaska, 189 F.3d 1107, 1110 n. 2 (9th Cir. 1999) (). Since Migra is controlling, we will follow its formulation.
Since Gospel Missions argues that the standing question has already been decided, its argument addresses issue preclusion. Courts have characterized the issue preclusion doctrine in many different ways. See 18 Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure §§ 4416, 4419-21 (1981) (Wright & Miller). However, among the issue preclusion requirements are two that are particularly relevant to this case: the issue must have been "both `actually litigated' and `necessarily decided' in the former decision." United States v. Weems, 49 F.3d 528, 532 (9th Cir.1995).
Gospel Missions' standing to challenge the professional fundraiser provisions in GMA I was not "actually litigated" in its ordinary sense. Gospel Missions did not challenge the professional fundraiser provisions in GMA I until it submitted its supplemental trial brief and, even then, neither party raised the standing question. Since the standing issue was not framed in the pleadings or contested by the parties in GMA I, issue preclusion normally would not bar the district court's standing decision. See 18 James Wm. Moore et al., Moore's Federal Practice §§ 132.03[2][b][c] (3d ed. 2001)(Moore's), Wright & Miller § 4419. However, this case is different because the district court necessarily had to resolve the issue to form the basis of its decision. The district court must necessarily have decided whether Gospel Missions had standing to challenge the ordinance's professional fundraiser provisions, because if Gospel Missions had not had standing, then the district court would have lacked jurisdiction to issue the injunction prohibiting enforcement of the professional fundraiser provisions it found unconstitutional. This case is not unlike Weems, in which we struggled with a similar issue. There, a prior forfeiture proceeding may have resulted in the litigation of the issue of whether there was a lack of knowledge of a marijuana growing operation. Two forfeiture statutes were involved and only one would have resulted in preclusion. Because the district court reached both statutory sections, we held the issue of knowledge precluded, although the actual section relied on for forfeiture did not have a knowledge requirement. Weems, 49 F.3d at 532. We believe Weems controls. Thus, we conclude that we are bound by the district court's conclusion or, more properly, its unidentified position, that Gospel Missions had standing to challenge the professional fundraiser provisions in GMA I. But this standing is limited, as far as issue preclusion is concerned, to the Ordinance. Thus, the issue of standing is precluded only to the extent that the professional fundraiser provisions in the Amended Ordinance are the subject of the GMA I injunction. Issue preclusion does not prevent us from determining whether Gospel Missions has...
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Gospel Missions of America v. City of Los Angeles, 00-55993.
...No. CV-99-07038-SVW. Before GOODWIN, WALLACE and THOMAS, Circuit Judges. ORDER The Opinion filed on August 8, 2002, appearing at 298 F.3d 1099 (9th Cir.2002), is withdrawn and replaced with the attached With the revised Opinion, the panel has voted to deny Appellants' petition for rehearing......