Gospel Missions of America v. City of Los Angeles, 00-55993.
| Decision Date | 05 May 2003 |
| Docket Number | No. 00-55993.,00-55993. |
| Citation | 328 F.3d 548 |
| 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 W. Fosbinder, Fosbinder & Fosbinder A Law Corporation, Kahului, HI, for the plaintiffs-appellants.
John M. Werlich, Office of the City Attorney, Los Angeles, CA, for the defendants-appellees.
Appeal from the United States District Court for the Central District of California; Steven V. Wilson, Chief Judge, Presiding, D.C. No. CV-99-07038-SVW.
Before GOODWIN, WALLACE and THOMAS, Circuit Judges.
The Opinion filed on August 8, 2002, appearing at 298 F.3d 1099 (9th Cir.2002), is withdrawn and replaced with the attached opinion.
With the revised Opinion, the panel has voted to deny Appellants' petition for rehearing. Judge Thomas has voted to deny the suggestion for rehearing en banc, and Judge Goodwin and Judge Wallace so recommend.
The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35(b).
The petition for rehearing and the suggestion for rehearing en banc are DENIED.
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 Los Angeles, Cal., Muni Code (L.A.M.C.) §§ 44.00-44.15 (2002). The current version of the Los Angeles charitable solicitation law (Ordinance) requires all persons intending to solicit charitable contributions within the City to file certain information 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), challenging 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. Gospel Missions of Am. 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. Gospel Missions and the City agreed that the organization would not be considered a professional fundraiser. Gospel Missions 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 are 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 and section 44.02(b)(2) — are either in contempt of the GMA I injunction or are 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 in the matter." 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." Id. 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. L.A.M.C. § 44.14. 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 never has 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."
Since standing is not a "claim" but an "issue," Gospel Missions' real argument addresses issue preclusion. For issue preclusion to bar relitigation, the issues must be "identical," Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1399 (9th Cir.1992), "actually litigated," and "necessarily decided." United States v. Weems, 49 F.3d 528, 532 (9th Cir.1995). We need not determine whether amending the ordinance makes the issues no longer identical because the second requirement has not been satisfied: Gospel Missions' standing to challenge the professional fundraiser provisions in GMA I was not "actually litigated." 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 neither framed in the pleadings nor contested by the parties in GMA I, issue preclusion does not bar the district court's standing decision. Amadeo v. Principal Mut. Life Ins. Co., 290 F.3d 1152, 1159 (9th Cir.2002) ( ); Weems, 49 F.3d at 532 (); 18 James W. Moore et al., Moore's Federal Practice § 132.03[2][c] (3d ed.2001) ().
Not only is issue preclusion unavailable because the issue of standing was not "actually litigated," but issue preclusion is unavailable for a second, more fundamental reason. GMA I stated there was standing, and Gospel Missions therefore seeks to bar the City from arguing a lack of standing. To accept Gospel Missions' argument would raise the possibility that we lack jurisdiction though issue preclusion forces us to pretend to exercise it. Yet we cannot blindly assume we have jurisdiction. A court must always decide for itself its own jurisdiction. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Just as we would not give precedential effect to a "drive-by" jurisdictional determination by our or a higher court, id. at 91, 118 S.Ct. 1003, we would not give preclusive effect to GMA I's un-litigated jurisdictional statement.
We thus consider...
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