Intern. Soc. for Krishna v. City of Los Angeles
| Decision Date | 09 June 2008 |
| Docket Number | No. 01-56579.,01-56579. |
| Parties | INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF CALIFORNIA INC., a nonprofit, religious corporation; California, Emil Beca, one of its individual members; Committee for Human Rights in Iran, a California public benefit corporation; Reza Nabati, one of its individual members, Plaintiffs-Appellees, v. CITY OF LOS ANGELES, a California Municipal Corporation; Stephen Yee, Airport Manager; Gilbert A. Sandoval, Chief of Airport Police, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David M. Liberman, Barry A. Fisher, Fleishman & Fisher, Los Angeles, CA, for Plaintiffs-Appellees.
Rafal Ofierski, City Attorney's Office 1 Dr. Carlton B. Goodlett Place, San Francisco, CA, Maritza Meskan, Criminal Justice Legal Foundation, Sacramento, CA, Claudia McGee Henry, John M. Werlich, Law Offices of John M. Werlich, Westlake Village, CA, for Defendant-Appellant.
D.C. No. CV-97-03616-CBM, Central District of California, Los Angeles.
Before: HARRY PREGERSON, STEPHEN S. TROTT, and RICHARD A. PAEZ, Circuit Judges.
We certify the question set forth in Part II of this order to the California Supreme Court. The answer to the certified question depends upon California law. The California Supreme Court's answer will be determinative of the appeal presently before us. We find no clear controlling precedent in the decisions of the California Supreme Court. We therefore respectfully request that the California Supreme Court answer the question presented below. If the court declines certification, we will "predict as best we can what the California Supreme Court would do in these circumstances." See Pacheco v. United States, 220 F.3d 1126, 1131 (9th Cir.2000).
For Plaintiffs-Appellees: David M. Liberman, Law Offices of David M. Liberman, 9709 Venice Blvd., # 4, Los Angeles, California 90034; Barry A. Fisher, Fleishman & Fisher, 1925 Century Park East, Suite 2000, Los Angeles, California 90067.
For Defendants-Appellants: Rockard J. Delgadillo, Kelly Martin, D. Timothy Daze, City Attorney's Office, One World Way, P.O. Box 92216, Los Angeles, California 90009; John M. Werlich, Law Offices of John M. Werlich, 1563 Shadowglen Court, Westlake Village, California 91361.
If the request for certification is granted, the Defendants-Appellants should be deemed the petitioners in the California Supreme Court.
The dispositive question of state law to be answered is: Is Los Angeles International Airport a public forum under the Liberty of Speech Clause of the California Constitution?
Our phrasing of the question should not restrict the California Supreme Court's consideration of the issues involved. "We will accept the decision of the California Supreme Court, which is the highest authority on the interpretation of California law." Grisham v. Philip Morris U.S.A., 403 F.3d 631, 634 (9th Cir.2005) (per curiam) ().
This case centers on whether Los Angeles International Airport is a public forum under the California Constitution.
Section 23.27(c)1 of the Los Angeles Administrative Code prohibits any person from soliciting and immediately receiving funds at Los Angeles International Airport ("LAX") inside the terminals, parking areas and on the sidewalks adjacent to the parking areas or airport terminals. On May 13, 1997, the International Society for Krishna Consciousness ("ISKCON") brought suit against the City of Los Angeles ("City") in the Central District of California, alleging that section 23.27(c) violates California's Liberty of Speech Clause and the First Amendment of the United States Constitution. (Dist. Ct. Case. No. CV 97-03616).
The Honorable John G. Davies was assigned to the case. On May 26, 1998, Judge Davies granted ISKCON's motion for summary judgment and denied the City's cross-motion for summary judgment. Judge Davies exercised supplemental jurisdiction over ISKCON's state law claim and found LAX to be a public forum under California's "basic incompatibility" test. Judge Davies held that because section 23.27(c) singled out solicitation, it amounted to an impermissible content-based restriction under California's Liberty of Speech Clause.
On June 26, 1998, the City filed its first Notice of Appeal to the Ninth Circuit (No. 98-56215). The court stayed briefing in No. 98-56215 pending the results of a Request for Certification to the California Supreme Court in Los Angeles Alliance for Survival v. City of Los Angeles, 157 F.3d 1162 (9th Cir.1998) ("Alliance I"). In Alliance I, we asked the California Supreme Court whether an ordinance that focuses on the public solicitation of funds should be considered content discriminatory under California's Liberty of Speech Clause. On March 2, 2000, the California Supreme Court answered that question in Los Angeles Alliance for Survival v. City of Los Angeles, 22 Cal.4th 352, 93 Cal. Rptr.2d 1, 993 P.2d 334 (2000) ("Alliance II"). The Alliance II court held that ordinances that single out the public solicitation of funds for distinct treatment should not be viewed as content-based under California's Liberty of Speech Clause. Id. at 357. Accordingly, we vacated Judge Davies's summary judgment order in favor of ISKCON in case No. 98-56215 and remanded the case for further proceedings consistent with Alliance II.
Upon remand, the matter was reassigned to the Honorable Consuelo B. Marshall.2 On August 2, 2001, the district court again granted summary judgment in favor of ISKCON and against the City. Like Judge Davies, Judge Marshall evaluated the constitutionality of the ordinance under California law and found LAX to be a public forum under California's "basic incompatibility" test. Int'l Soc'y for Krishna Consciousness of Cal., Inc. v. City of L.A., No. CV97-03616, 2001 WL 1804795 (C.D.Cal. Aug. 2, 2001). Judge Marshall then determined that section 23.27(c) was not a reasonable time, place, and manner restriction on the solicitation of funds at LAX. Because Judge Marshall found section 23.27(c) unconstitutional under California law, she declined to engage in a First Amendment analysis to determine whether it was constitutional under federal law.
On August 29, 2001, the City filed its second Notice of Appeal to the Ninth Circuit. (No. 01-56579 — the instant appeal.) A Ninth Circuit panel ("original panel") was assigned to the case.
Two weeks later, the events of 9/11 transpired.
On January 31, 2002, the City submitted various filings to our court, including a Motion for Certification to the California Supreme Court on the following question of law: "Is a municipally owned airport a public forum under California's Liberty of Speech Clause?" A motions panel denied the City's certification motion on April 15, 2002. Our docket notes that the motion was denied pursuant to the "panel's discretion."
On December 2, 2002, the original panel heard argument in this case. The panel asked the parties to discuss the certification question again during oral argument. The panel granted ISKCON's oral request to provide the court with supplemental briefing. ISKCON filed a supplemental brief on December 12, 2002, and the City filed a response to ISKCON's supplemental brief on January 22, 2003.
While the parties awaited the panel's decision, the City enacted section 171.07 of the Los Angeles Municipal Code — a new ordinance addressing the solicitation of funds at LAX. Section 171.07 became effective on December 16, 2002 and remains in effect today. It allows organizations to apply for a permit to "solicit and receive funds" in certain "locations assigned in a written permit by [LAX's] General Manager." L.A., Cal., Mun.Code § 171.07(B)(1)-(B)(2). It explicitly states that "provisions of this ordinance are ... temporary and provisional pending the outcome of litigation challenging [L.A. Admin. Code § 23.27(c)]."3 Id. § 171.07(G)(1) (emphasis added).
In light of the passage of section 171.07, ISKCON filed a new suit in the Central District of California on January 13, 2003. (District Court Case No. CV 03-00293.). ISKCON's new suit challenged the constitutionality of section 171.07 under both the California and federal constitutions. The suit was transferred to Judge Marshall because it related to No. CV 97-03616.
On March 21, 2003, the original Ninth Circuit panel issued an order in this case (No. 01-56579).4 The panel's order stated:
This case involves California plaintiffs and California defendants who disagree primarily over whether a California municipal ordinance violates the California Constitution. While we express no view whether appellees' federal claims were sufficient to support the district court's invocation of the principle of federal constitutional avoidance, we think it fair to say that the case raises "state law questions that present significant issues ... with important public policy ramifications." Kremen v. Cohen, 314 F.3d 1127, 1129 (9th Cir.2003). Whether the Liberty of Speech Clause of the California Constitution should be interpreted more expansively than the federal First Amendment in a context implicating substantial state police power interests is a question that would benefit from consideration by the state judiciary. Accordingly, we intend to certify this case to the California Supreme Court....
To continue reading
Request your trial
-
Prigmore v. City of Redding
...test, and how that test differs from its federal counterpart, are not abundantly clear.” (Int'l Soc'y for Krishna Consciousness of Cal., Inc. v. City of L.A. (9th Cir.2008) 530 F.3d 768, 775 [certifying to California Supreme Court the question of whether Los Angeles International Airport is......
-
Lindenberg v. Jackson Nat'l Life Ins. Co.
...provisions of Florida constitution on which there was no Florida Supreme Court guidance); Int'l Soc'y for Krishna Consciousness of Cal. Inc. v. City of L.A. , 530 F.3d 768, 773–76 (9th Cir. 2008) (certifying question whether airport was "public forum" under California constitution); Parcell......
-
International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles
...adjacent to the airport terminals or the sidewalks adjacent to the parking areas at the Airport."2 (Intern. Soc. for Krishna v. City of Los Angeles (9th Cir. 2008) 530 F.3d 768, 770.) LAX occupies 3,550 acres of land, approximately 93 acres of which is occupied by nine passenger terminals t......
-
Cuviello v. Cal Expo
...Consciousness of Cal., Inc. v. City of Los Angeles, 48 Cal. 4th 446, at 455 n.5 (2010); Int'l Soc'y of Krishna Consciousness of Cal., Inc. v. City of Los Angeles, 530 F.3d 768, 775 (9th Cir. 2008) ("[H]ow to articulate California's public forum test, and how that test differs from its feder......