Holland v. City of Tacoma

Decision Date27 March 1998
Docket NumberNo. 21522-5-II,21522-5-II
Citation954 P.2d 290,90 Wn.App. 533
CourtWashington Court of Appeals
PartiesDwight HOLLAND, Appellant, v. CITY OF TACOMA, Respondent.

Glen Alan Prior, Law Firm of Glen Prior Inc. Ps, Fife, for Appellant.

Shelley Marie Kerslake, Tacoma City Attorney's Office, Tacoma, Jean P. Homan, Tacoma, for Respondent City of Tacoma.

Lynne C. Wilson, Seattle, for Amicus

Curiae American Civil Liberties Union.

BRIDGEWATER, Judge.

Dwight Holland appeals the summary dismissal of his lawsuit challenging the constitutionality of a Tacoma ordinance that limits the volume of sound projected from car sound systems and the award of attorney fees to the City. We affirm as to the dismissal, but reverse as to the award of attorney fees.

Holland was arrested for violating Tacoma Municipal Code (TMC) 8.12.060(E), which prohibited the playing of car sound systems at a volume that would be "audible" at a distance greater than 50 feet. 1 Holland was convicted and appealed to the superior court. Before the appeal was heard, the City stipulated to the dismissal of Holland's conviction and the superior court ordered the dismissal with prejudice.

Holland subsequently initiated this action in Pierce County Superior Court with several claims, including: a challenge to the constitutionality of the ordinance; claims for damages under 42 U.S.C. §§ 1983 and 1985 (1994); and several tort claims including negligence, defamation, false light, invasion of privacy, false imprisonment, outrage, and negligent infliction of emotional distress. The City moved for summary judgment. The superior court granted the motion, and sua sponte, granted attorney fees to the City, ruling that the action was frivolous.

Because this was an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. CR 56(c). The court must consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wash.2d at 437, 656 P.2d 1030. The court should grant the motion only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson, 98 Wash.2d at 437, 656 P.2d 1030.

I. Assignments of Error Without Argument

Holland has several assignments of error for which he has included no argument in his appellate brief. Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration. State v. Johnson, 119 Wash.2d 167, 171, 829 P.2d 1082 (1992). Instead of making a reasoned argument, Holland simply incorporates his trial briefs by reference. But trial court briefs cannot be incorporated into appellate briefs by reference. U.S. West Communications, Inc. v. Washington Util. & Transp. Comm'n, 134 Wash.2d 74, 111-12, 949 P.2d 1337 (1997); see also Patterson v. Public Instruction, 76 Wash.App. 666, 676, 887 P.2d 411 (1994), review denied, 126 Wash.2d 1018, 894 P.2d 564 (1995). If we considered all of the referenced material as a part of his appellate brief, the brief would be 186 pages in length, well in excess of the 50-page limit set forth in RAP 10.4(b), and Holland did not move to file an over-length brief. We follow the reasoning in U.S. West that to allow such expansion by reference would render the Rules on Appellate Procedure meaningless. 134 Wash.2d at 112, 949 P.2d 1337. We therefore hold that Holland has abandoned the issues for which he attempted to incorporate arguments by reference to trial briefs or otherwise. We will address all other issues that have not been abandoned by Holland or that have been argued by the American Civil Liberties Union of Washington, amicus curiae.

II. Freedom of Speech--Overbroad Ordinance

Holland challenges the ordinance on the constitutional bases that it is overbroad, vague and abridges his freedom of expression. Because statutes are presumed constitutional, the burden of proving a statute unconstitutional is on the party challenging its constitutionality. Campos v. Labor & Indus., 75 Wash.App. 379, 384, 880 P.2d 543 (1994), review denied, 126 Wash.2d 1004, 891 P.2d 38 (1995). Our analysis as to the claimed unconstitutionality of the ordinance proceeds from two separate bases--(A) an "as-applied" challenge, and (B) a facial challenge. Because Holland has abandoned his argument concerning the unconstitutionality as measured by the Washington Constitution, we examine the issue solely from the United States Constitution and the First Amendment.

A. As Applied

"Article 1, section 5 of the Washington Constitution and the first and fourteenth amendments to the United States Constitution protect freedom of speech. Pure conduct, on the other hand is not protected." O'Day v. King County, 109 Wash.2d 796, 802, 749 P.2d 142 (1988). Free speech can be regulated as to time, place, or manner. Bering v. Share, 106 Wash.2d 212, 234, 721 P.2d 918 (1986), cert. dismissed, 479 U.S. 1050, 107 S.Ct. 940, 93 L.Ed.2d 990 (1987). But to be entitled to free speech protections and the benefit of a time, place, or manner analysis, the plaintiff must have at least a colorable claim that the regulation involves expression. O'Day, 109 Wash.2d at 810, 749 P.2d 142.

Mere conduct is not expressive, and legislation may restrict it. But if the conduct is expressive and central to the actor's message, a law restricting that conduct is subject to a free expression challenge. O'Day v. King County, 109 Wash.2d 796, 803, 749 P.2d 142 (1988). Conduct is expressive when the actor intends to communicate a particular message by his actions and that message will be understood by those who observe it because of the surrounding circumstances. Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 2730-31, 41 L.Ed.2d 842 (1974).

City of Seattle v. McConahy, 86 Wash.App. 557, 567, 937 P.2d 1133, review denied, 133 Wash.2d 1018, 948 P.2d 388 (1997).

Holland asserted at oral argument that he was not trying to communicate a message to others by operating his radio when he was arrested. Indeed, he asserted that he was not attempting to express anything, he was merely listening. He has failed to provide any evidence showing that his actions were expression. If his actions were not expression, then they were mere conduct. Thus, the operation of Holland's automobile sound equipment had no expressive value. And, because expression is not involved we need not enter into an analysis of whether the noise ordinance is a reasonable time, place, or manner restriction of freedom of speech. Holland's first argument fails.

B. Facial Challenge

Holland's second argument is that the ordinance fails under a facial challenge. O'Day instructs us that "an overly broad statute that sweeps within its proscriptions protected expression is unconstitutional." 109 Wash.2d at 803, 749 P.2d 142.

If the County's regulations impermissibly burden protected expression, respondents have standing to challenge the regulations' overbreadth even though "their activity is within the permissible scope of the [ordinance] and even if such constitutional overbreadth can be considered 'harmless error' as applied to them." State v. Regan, 97 Wash.2d 47, 52, 640 P.2d 725 (1982); see also Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 2915-16, 37 L.Ed.2d 830 (1973).

O'Day, 109 Wash.2d at 803, 749 P.2d 142.

The court's usual "reluctance to entertain facial challenges is somewhat diminished in the First Amendment context." Roulette v. City of Seattle, 97 F.3d 300, 303 (9th Cir.1996) (citing Massachusetts v. Oakes, 491 U.S. 576, 581, 109 S.Ct. 2633, 2637, 105 L.Ed.2d 493 (1989)). This is the result of the court's concern that "those who desire to engage in legally protected expression ... may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 2802, 86 L.Ed.2d 394 (1985). In allowing such challenges, the court is protecting the free speech interests of "parties not before the Court." See, e.g., Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 2572, 96 L.Ed.2d 500 (1987) (citing City Council v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772 (1984)). 2 Thus, Holland, who has not asserted any claim to expression, may challenge the overbreadth of the ordinance, even though his conduct fell within the scope of the ordinance and its constitutional overbreadth would be harmless error as to his case.

"[T]he Supreme Court has entertained facial freedom-of-expression challenges only against statutes that, 'by their terms,' sought to regulate 'spoken words,' or patently 'expressive or communicative conduct' such as picketing or handbilling." Roulette, 97 F.3d at 303 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612-13, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973)). In other words, "a facial freedom of speech attack must fail unless, at a minimum, the challenged statute 'is directed narrowly and specifically at expression or conduct commonly associated with expression.' " Roulette, 97 F.3d at 305 (quoting City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 760, 108 S.Ct. 2138, 2145, 100 L.Ed.2d 771 (1988)); compare Arcara v. Cloud Books, Inc., 478 U.S. 697, 706-07, 106 S.Ct. 3172, 3177, 92 L.Ed.2d 568 (1986) ("where a statute based on a nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity," the statute may be subject to First Amendment scrutiny) with City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18 (1989) ("It is possible to find some kernel of...

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