Houston Chronicle v. City of League City, Tex.

• Decision Date: 30 May 2007
• Docket Number: No. 05-41689.,05-41689.
• Citation: 488 F.3d 613
• Parties: The HOUSTON CHRONICLE PUBLISHING CO.; The Galveston County Daily News, Plaintiffs-Appellees-Cross-Appellants, v. CITY OF LEAGUE CITY, TEXAS; et al., Defendants, City of League City, Texas, Defendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

488 F.3d 613

The HOUSTON CHRONICLE PUBLISHING CO.; The Galveston County Daily News, Plaintiffs-Appellees-Cross-Appellants, v. CITY OF LEAGUE CITY, TEXAS; et al., Defendants, City of League City, Texas, Defendant-Appellant-Cross-Appellee.

No. 05-41689.

United States Court of Appeals, Fifth Circuit.

May 30, 2007.

Jonathan R. Donnellan (argued), The Hearst Corp., New York City, Joel R. White, Austin, TX, for Houston Chronicle.

Charles Anthony Daughtry, Daughtry & Jordan, Houston, TX, for Galveston County Daily News.

Mark C. Watler (argued), Arnold G. Polanco (argued), Ross, Banks, May, Cron & Cavin, Ramon Gustave Viada, III, Abrams, Scott & Bickley, Houston, TX, for City of League City.

Appeals from the United States District Court for the Southern District of Texas.

Before JONES, Chief Judge, and WIENER and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

The City of League City, Texas, challenges being permanently enjoined from enforcing, as unconstitutional, its Ordinance 2004-45 (the Ordinance), regulating street vendors and door-to-door solicitors. The City contends: the two plaintiff newspapers, The Houston Chronicle and The Galveston County Daily News, lack standing; the injunction should be vacated for mootness because, post-entry of the injunction, the City repealed the constitutionally impermissible provisions; and the not-repealed provision, § 78-39, which regulates only street vendors' conduct at traffic-signal-controlled intersections, is a constitutional restriction. The newspapers respond: they have standing; vacatur due to mootness is improper because such mootness resulted from the City's voluntary actions; § 78-39 is unconstitutional, as held by the district court; and it erred in not awarding them attorney's fees.

Both newspapers have standing. Further, the injunction will not be vacated. Because the remaining provision, § 78-39, has never been applied to the newspapers, however, and, because its plain language is non-discriminatory and content-neutral, we reverse the district court's holding it unconstitutional, both facially and as applied. Pursuant to the newspapers' cross-appeal, we reverse the district court's refusal to award attorney's fees to them, because they remain prevailing parties on their claim, pursuant to 42 U.S.C. § 1983. VACATED IN PART; REVERSED IN PART; REMANDED.

I.

The instant dispute post-dates a related Texas state-court action, in which the Houston Chronicle sued City officials for prosecuting its street vendors for violating Texas Transportation Code § 552.007(a) (prohibiting street solicitations, except by charitable organizations). That state-court action ended in March 2004 with a consent judgment permanently enjoining the City from prosecuting Houston Chronicle vendors under this state law. Houston Chronicle Pub. Co. v. Sistrunk, No. 03-CV-1587 (122nd Judicial District Court, Galveston County, Texas 3 March 2004).

The Ordinance is similar to the above Texas law. (As noted, most of it was voluntarily repealed after entry of the injunction in this action, leaving only § 78-39, quoted below.) The Ordinance required, inter alia, any "solicitor, peddler, canvasser, or itinerant vendor", prior to engaging in any "business and related activities", to: register with the City; submit to a criminal background check; pay a $30 fee; and post a $1,000 bond. LEAGUE CITY, TEX., ORDINANCES art. II, §§ 78-32 and 78-33 (2004). The Ordinance exempted "[m]inors conducting fundraising activities who represent a youth organization, including, but not limited to Boy Scouts, Girl Scouts, Little League groups, and school groups". Id. at § 78-34(c).

In January 2005, approximately nine months after the 2004 state-court consent judgment, the City amended the Ordinance to add § 78-39. That section is primarily at issue in this appeal and states, in part:

(a) No person who is within a public roadway may solicit or sell or distribute any material to the occupant of any motor vehicle stopped on a public roadway in obedience to a traffic control signal light. It is specifically provided, however, that a person, other than a person twelve years of age or younger, may solicit or sell or distribute material to the occupant of a motor vehicle on a public roadway so long as he or she remains on the surrounding sidewalks and unpaved shoulders, and not in or on the roadway itself, including the medians and islands.

Id. at § 78-39 (emphasis added).

A year after the 2004 state-court consent judgment, and several months after § 78-39 was added, the City, using a related Ordinance provision (§ 78-38), issued citations to two Houston Chronicle vendors selling newspapers at the intersection of State Highway FM 518 and Interstate 45, for "soliciting without a permit". Id. at § 78-38(12) (making it "unlawful for any peddler, solicitor, canvasser or itinerant vendor" to conduct business "on any public roadway, public roadway median, public sidewalk . . . or other public property within the city without written authorization from the city"). As a result, the Houston Chronicle and the Daily News filed this action in August 2005, pursuant to 42 U.S.C. § 1983, claiming the Ordinance violated the First and Fourteenth Amendments.

That October, the district court permanently enjoined enforcement of the Ordinance, holding it unconstitutional, both facially and as applied to prohibit newspaper sales on public streets. Regarding the recently enacted and above-quoted § 78-39, the court found: "the City allows charitable organizations [e.g., firefighters] to solicit donations for their causes at the intersection [in issue] while prosecuting the newspapers' vendors for engaging in constitutionally protected activity because the newspapers' activities are commercial, rather than charitable". Houston Chronicle Pub. Co. v. City of League City, Tex., No. G-05-448 (S.D. Tex. 14 Oct. 2005) (mem.) [hereinafter USDC Opn.]. The district court did not find, however, that the City ever prosecuted, or threatened to prosecute, the newspapers under § 78-39. But implicit in its findings is the suggestion that the City will do so. Id. at *7. In any event, the district court held: "Section 78-39 ... cannot be justified as a valid time, place and manner restriction because the City de facto discriminates in enforcing it based on the content of the message being conveyed". Id. at *3. The City filed its notice of appeal that November. The following January (2006), however, it voluntarily repealed the provisions of the Ordinance pertaining to registration, bond posting, and door-to-door solicitation; it did not repeal § 78-39.

II.

First at issue is whether the newspapers have standing. Because they do, next at issue is whether the injunction should be vacated due to mootness. It is not vacated because the mootness is due to the City's voluntarily repealing portions of the Ordinance. The remaining issues are whether the district court erred: (1) in holding § 78-39 unconstitutional (due to the City's repealing the other Ordinance provisions, only the constitutionality vel non of § 78-39 remains); and (2) in denying attorney's fees to the newspapers.

A.

The City maintains both newspapers lack standing to challenge the repealed provisions of the Ordinance, claiming the controversy as to those provisions is moot. (Mootness as it relates to vacatur is addressed in part II.B.) Concerning the remaining provision, § 78-39, the City conceded at oral argument here that the Houston Chronicle has standing to challenge that section. (Of course, we, not the parties, determine such jurisdictional questions.) The City continues, however, to contend the Daily News lacks standing to challenge § 78-39 because it failed to present evidence it engages in street-vendor sales prohibited by that provision.

Standing issues are reviewed de novo. E.g., Rivera v. Wyeth-Ayerst Labs., 283 F.3d 315, 319 (5th Cir.2002). No authority need be cited for our clear-error standard of review for findings of fact. The district court held both newspapers have standing because each demonstrated long-established practices of street-vendor sales in the City. USDC Opn. at *1.

To establish standing, a plaintiff must show: (1) it has suffered, or imminently will suffer, a concrete and particularized injury-in-fact; (2) the injury is fairly traceable to the defendant's conduct; and (3) a favorable judgment is likely to redress the injury. E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). As the parties agree, both newspapers satisfy the causation and redressability requirements. Therefore, at issue is: whether the newspapers can demonstrate injury for the repealed provisions and for § 78-39.

Toward this end, the newspapers rely on a 28 April 2005 letter from the City's attorney, which indicated the City would prosecute them under § 78-39. The letter acknowledged possible constitutional problems with subjecting the newspapers to the Ordinance's later-repealed permitting requirements, pursuant to, e.g., § 78-38, but stated:

It is our position that in all other respects the ordinance represents a reasonable exercise of the City's police power .... As the [City's Police] Chief made clear in his comments [at a meeting that April], [Houston Chronicle] salespeople are, in certain instances, setting up shop in the center of a painted, unimproved median on a busy farm-to-market road intersecting Interstate 45 South. Enforcement of the ordinance will minimize the possibility of serious bodily injury or death for these individuals. In the face of these known circumstances, I cannot imagine that either the [Houston] Chronicle or Daily News would wish to be recognized for having advocated a repeal of these safety measures at the risk of their employees' safety and well-being.

1.

Concerning the Houston Chronicle, the City issued two citations to its vendors at the above-referenced intersection, pursuant to the...