Kindt v. Santa Monica Rent Control Bd.

• Decision Date: 10 October 1995
• Docket Number: No. 94-55479,94-55479
• Citation: 67 F.3d 266
• Parties: 95 Cal. Daily Op. Serv. 7981, 95 Daily Journal D.A.R. 13,670 Albert J. KINDT, Plaintiff-Appellant, v. SANTA MONICA RENT CONTROL BOARD; Susan Packer Davis; Dolores Press; Eileen Lipson; Wayne Bauer; Suzanne Abrescia; Jay Johnson; Robert Niemann; Anthony Trendacosta, as an Individual, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 266

67 F.3d 266

95 Cal. Daily Op. Serv. 7981, 95 Daily Journal

D.A.R. 13,670

Albert J. KINDT, Plaintiff-Appellant, v. SANTA MONICA RENT CONTROL BOARD; Susan Packer Davis Dolores Press; Eileen Lipson; Wayne Bauer; Suzanne Abrescia; Jay Johnson; Robert Niemann; Anthony Trendacosta, as an Individual, Defendants-Appellees.

No. 94-55479.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 5, 1995.

Decided Oct. 10, 1995.

Brenda Powers Barnes, Los Angeles, California, for plaintiff-appellant.

Ralph H. Goldsen, Anthony A. Trendacosta, Santa Monica Rent Control Board, Los Angeles, California, for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before: FLETCHER, WIGGINS, and FERNANDEZ, Circuit Judges.

FERNANDEZ, Circuit Judge:

Albert J. Kindt, an owner of rental property, appeals the district court's summary judgment in favor of the Santa Monica Rent Control Board and its past and current members in his action under 42 U.S.C. Secs. 1983 and 1985. He claims that the defendants conspired to violate his First Amendment right to free speech by ejecting him from public board meetings and by discriminating between speakers who supported their views and speakers who opposed them. We affirm.

BACKGROUND FACTS

Kindt is an owner of apartment buildings in Santa Monica, California, and a frequent participant in meetings of the Santa Monica Rent Control Board, an elected public body. Board regulations provide that any member of the public who wishes to address the Board on a particular item must fill out a slip of paper for that item (known as a "chit"). ¹

Speakers are then allowed to address the Board for three minutes in the order that their chits are drawn.

Before March 8, 1990, the Board allowed chits to be filed and heard on Items 1, 2, 4, 7, 8, 11, and 13. Quite a lot of discussion was generated during some of those items. For example, for several months three Board members refused to salute the flag during Item 1. They announced that they did so in protest of United States foreign aid to El Salvador. Kindt and other members of the public submitted chits asking to speak on Item 1. Kindt criticized the Board members' refusal to salute the flag. He also stated that a rent control board had no business addressing political issues of foreign policy.

Similar controversy arose during Item 4. First the chairperson of the Board would ask if any members had announcements. Board members regularly announced events such as abortion clinic defense sessions; meetings about several organized labor incidents, including the Eastern Airlines strike and the closure of the General Motors plant in Van Nuys; Fund for the Feminist Majority meetings; protests supporting the nuclear test ban; and demonstrations opposing the Persian Gulf War. Kindt would submit a chit to address the Board during Item 4. He would then castigate the Board for announcing matters that "had nothing to do with rent control."

Sometimes special guests would address the Board under Item 4. The record suggests that, in advance of the meeting itself, some of those guests had made requests to speak and that some were invited by the Board to speak on a particular topic. Speakers included a representative from the American Civil Liberties Union who requested a special resolution from the Board opposing the execution of Robert Harris; individuals discussing the Cambodian regime; and union representatives discussing the Greyhound Bus and Eastern Airlines strikes. Kindt vehemently objected to the propriety of bringing in speakers who did not have any apparent connection to rent control issues. Others also spoke to the issues under Items 1 and 4. The result was that those often tangential items disrupted the flow of Board proceedings and inconvenienced people, including several landlords, who were making appearances before the Board. They had to wait until the commentary and controversy under those items died down before they could transact their rent control business before the Board.

Then on March 1, 1990, the Board's general counsel Anthony Trendacosta announced that his review of the Brown Act ² had led him to the conclusion that, in general, public discussion should be heard only under Item 13 (requests to speak to the Board). Excepted were certain Items that required public discussion pursuant to the Board's regulations, such as Item 7 (public hearings). From that point forward, the Board ceased to consider chits during Items 1 and 4; any public commentary on those Items was taken during Item 13. Kindt continued to submit chits on Items 1 and 4, and often loudly disrupted the meeting when he was not allowed to speak during those items. However, Kindt was not refused the right to speak when he submitted chits under Item 13.

Kindt was ejected from Board meetings on occasion. The record indicates that Kindt was disrupting the orderly process of the meeting when he was ejected. On one occasion he, and others, in the front row were asked to move when their comments were disturbing another member of the public who was addressing the Board. On that occasion a Board member stomped out because he thought that the offenders should have been Kindt then decided to move his dispute with the Board into a new arena by filing this action. The Board and the other defendants moved for summary judgment or, in the alternative, for summary adjudication of issues and on the date set for trial the district court granted summary judgment. This appeal followed.

ejected. On one other occasion Kindt and a cohort ³ had been disrupting the Board meeting. Kindt was warned that he would be ejected if he continued to disrupt the meeting. He was later ejected along with the cohort after a Board member thought that the cohort had made an obscene gesture toward him. Kindt was at that particular moment sitting docilely. The Board's Rules of Decorum, section 1017 of the Board regulations, provide for the removal of those who disrupt meetings.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C. Sec. 1343. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. A grant of summary judgment is reviewed de novo. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). The panel must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court properly applied the relevant substantive law. See id.

DISCUSSION

Citizens are not entitled to exercise their First Amendment rights whenever and wherever they wish. See Adderley v. Florida, 385 U.S. 39, 47-48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966) (trespass statute that prohibits demonstrating on jailhouse grounds does not violate the First Amendment). There are three recognized categories of permissible regulation of expressive activity. First is the so-called public forum, which is usually a street or park that has "immemorially been held in trust for the use of the public and, time out of mind, ha[s] been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983) (quoting Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939)). In public fora, the state must demonstrate that a content-based regulation is "necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Id. at 45, 103 S.Ct. at 955. In addition, the state may impose time, place, and manner restrictions if they "are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Id.

At the other end of the spectrum is the nonpublic forum, "which is not by tradition or designation a forum for public communication." Id. "In addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." Id.; see also Planned Parenthood v. Clark County Sch. Dist., 941 F.2d 817, 829-30 (9th Cir.1991) (en banc) (school district's refusal to accept advertisement for its school-sponsored publications that were not public fora comported with the First Amendment because it was reasonable and viewpoint-neutral).

In between lies the third category: the limited public forum. The state creates a limited public forum when it "open[s] for use by the public ... a place for expressive activity." Perry, 460 U.S. at 45, 103 S.Ct. at 955; see also Widmar v. Vincent, 454 U.S. 263, 267-68, 102 S.Ct. 269, 273-74, 70 L.Ed.2d 440 (1981) (state created a limited public forum by opening its facilities to accommodate student meetings). Limited public Although a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum. Reasonable time, place, and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.

fora are governed by the same standards as public fora:

Perry, 460 U.S. at 46, 103 S.Ct. at 955.

We must determine the type of forum created by the Rent Control Board in order to ascertain the propriety of its speech regulations. In City of Madison, Joint Sch. Dist. No. 8 v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976), the Supreme Court stated that a school board meeting was open to the public under state law, and that any citizen was permitted to address the board during the time the board had dedicated for public commentary. To a claim that...