Klein v. City of San Clemente

• Decision Date: 02 October 2009
• Docket Number: No. 08-55015.,08-55015.
• Citation: 584 F.3d 1196
• Parties: Steve KLEIN; Susen Fay; M. Lorraine Klein; Michael Lewis; Saul Lisauskas; Kristin Schuiteman; Jefferson Smith; Mary Thompson; Elizabeth Weller; and Robert Weller, Plaintiffs-Appellants, v. CITY OF SAN CLEMENTE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

584 F.3d 1196

Steve KLEIN; Susen Fay; M. Lorraine Klein; Michael Lewis; Saul Lisauskas; Kristin Schuiteman; Jefferson Smith; Mary Thompson; Elizabeth Weller; and Robert Weller, Plaintiffs-Appellants, v. CITY OF SAN CLEMENTE, Defendant-Appellee.

No. 08-55015.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 4, 2008.

Filed October 2, 2009.

Michael J. Kumeta (argued), La Mesa, CA; William G. Gillespie, Bonsall, CA; for plaintiffs-appellants Steve Klein, et al.

Edwin J. Richards (argued), Julie R. Beaton, M. Courtney Koger, Kutak Rock LLP, Irvine, CA; for defendant-appellee City of San Clemente.

Appeal from the United States District Court for the Central District of California, A. Howard Matz, District Judge, Presiding. D.C. No. CV-07-03747-AHM.

Before: STEPHEN REINHARDT, ROGER J. MINER,^* and MARSHA S. BERZON, Circuit Judges.

BERZON, Circuit Judge:

The City of San Clemente flatly prohibits the leafleting of unoccupied vehicles parked on city streets. We conclude that petitioners are likely to succeed in demonstrating that the City's justification for its prohibition is insufficient and that they have otherwise met the requirements for obtaining a preliminary injunction enjoining enforcement of the prohibition. We therefore reverse the district court's order denying petitioners' motion for a preliminary injunction and remand for further proceedings consistent with this opinion.

FACTUAL & PROCEDURAL BACKGROUND

On June 2, 2007, Steve Klein and several cohorts (collectively "Klein") were distributing leaflets expressing their views on immigration policy. Klein initially handed leaflets to passing pedestrians but later started placing leaflets under the windshield wipers of unoccupied vehicles parked along city streets. While doing so, he was approached by several local sheriff's deputies. The deputies ordered him to stop, explaining that "throwing" or "depositing" any commercial or non-commercial advertisement "in or upon" any vehicle violated a City of San Clemente anti-litter ordinance. Section 8.40.130 of the City's municipal code provides:

"No person shall throw or deposit any commercial or noncommercial advertisement in or upon any vehicle. Provided, however, that it shall not be unlawful in any public place for a person to hand out or distribute, without charge to the receiver thereof, a non-commercial advertisement to any occupant of a vehicle who is willing to accept it."

Klein asked the deputies what they would do if he continued to leaflet parked vehicles and was told that he would be cited for violating the ordinance. He immediately stopped distributing leaflets.

Klein then filed suit in federal court, arguing that the City's vehicle leafleting ordinance, both on its face and as applied, violated his free speech rights under the First Amendment of the federal Constitution and the Liberty of Speech Clause of the California Constitution. The district court denied Klein's motion for a preliminary injunction. Klein timely appealed.

ANALYSIS

To warrant injunctive relief, a plaintiff "must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Council, ___ U.S. ___, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008); see also Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). "In each case, courts `must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.'" Winter, 129 S.Ct. at 376 (quoting Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987)).

In this case, the district court judge denied Klein's motion for a preliminary injunction solely because he concluded that the City's ordinance was narrowly tailored to serve the City's significant interest in litter prevention and "promoting esthetic values." "We will reverse a denial of a preliminary injunction where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact." Sammartano v. First Judicial District Court, 303 F.3d 959, 964 (9th Cir.2002); see also Community House, Inc. v. City of Boise, 490 F.3d 1041, 1047 (9th Cir.2007). Further, "[w]hen the district court is alleged to have relied on an erroneous legal premise, we review the underlying issues of law de novo." Id.; see also Sammartano, 303 F.3d at 964-65.

Applying those review standards, we hold that the district court's conclusion regarding Klein's likelihood of success on the merits was incorrect. On the current record, none of the interests asserted by the City were proven sufficiently weighty to justify the restrictions placed on Klein's right to express his political views. Moreover, Klein has established the other prerequisites for a preliminary injunction under the Winter standard. We therefore reverse the district court's denial of Klein's motion for a preliminary injunction and remand for further proceedings consistent with this opinion.

I.

Klein filed suit under both the California and federal Constitutions.¹ We must first "determine if the California Constitution provides independent support for [his] claim. If so, we will be able to avoid the determination of any federal constitutional issues and thus abide by the doctrine that federal courts should not decide federal constitutional issues when alternative grounds yielding the same relief are available." Kuba v. 1-A Agric. Ass'n, 387 F.3d 850, 856 (9th Cir.2004) (quotation and citation omitted).

In this case, however, the relevant standards under the federal and state constitutions are the same. The parties agree, although they arrive at this conclusion by different routes, that the City's ordinance should be treated as a traditional "time, place, and manner" restriction on Klein's speech.² California's "formulation of the time, place, and manner test was fashioned from a long line of United States Supreme Court cases, and ... analysis of speech regulation under[the California Liberty of Speech Clause] employs time, place and manner restrictions measured by federal constitutional standards." Id. at 856 n. 7 (quotations and citations omitted); see also Kuba, 387 F.3d at 856. "Under either foundational document ... permissible restrictions on expression in public fora must be content-neutral, be narrowly tailored to serve an important government interest, and leave open ample alternative channels for the communication of the message." Kuba, 387 F.3d at 856-58 (quotation omitted).³ While Klein has the general burden of establishing the elements necessary to obtain injunctive relief, the city has the burden of justifying the restriction on speech. See Kaufman v. ACS Systems, Inc., 110 Cal.App.4th 886, 2 Cal.Rptr.3d 296, 313 (2003) ("The party seeking to uphold a restriction on commercial speech carries the burden of justifying it," (quotations omitted)); S.O.C. v. County of Clark, 152 F.3d 1136, 1146 (9th Cir. 1998) (holding that plaintiffs were likely to succeed on the merits because county did not meet its burden of demonstrating that its content-based ordinance was the least restrictive means to further a compelling interest).

II.

The parties agree that the ordinance is content-neutral, so the first prong of the traditional "time, place, and manner" inquiry is not at issue in this case. Thus, to justify restricting Klein's constitutionally-protected speech, the City must demonstrate that the restrictions imposed by its anti-litter ordinance are "narrowly tailored to serve a significant government interest, and that they leave open ample alternative avenues for communication of the information." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (citations omitted).

To satisfy the "narrowly tailored" aspect of this test, the restriction "need not be the least restrictive or least intrusive means of [serving the government's interest]," but it also may not "burden substantially more speech than is necessary to further" that interest. Id. at 798-99, 109 S.Ct. 2746. The existence of "numerous and obvious less-burdensome alternatives" is relevant to assessing whether the restriction on speech reasonably fits the interest asserted. See City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417 n. 13, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993).

The City contends that the anti-litter ordinance is narrowly tailored to advance two significant interests, which we address in turn below: preventing littering and the unauthorized use of private property. The district court concluded that the ordinance was narrowly tailored to advance the antilittering interest, and thus denied Klein's motion for a preliminary injunction. We disagree with the district court's assessment in this regard and conclude that the second interest proffered by the city, preventing unauthorized use of private property, fares no better. We therefore reverse.

A. LITTER

The City first asserts an interest in "prohibiting litter and visual blight thereby preserving the aesthetics of the community."⁴ Citing a line of cases addressing municipal regulation of billboards and outdoor advertising, the City argues that "it is well-recognized that the curbing of litter and visual blight [to preserve] the aesthetics of the community are substantial governmental goals." See, e.g., Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981). The ordinance is narrowly tailored to serve this interest, the City contends, because it "only prohibits the placing of materials on unoccupied vehicles where it results in litter" and thus "target[s] the precise problem that it wished to correct."

We cannot accept the government's syllogism. The city would...