Kuba v. 1-a Agr. Ass'n

• Decision Date: 19 October 2004
• Docket Number: No. 02-16989.,02-16989.
• Parties: Alfredo KUBA, on behalf of himself and all others similarly situated, Plaintiff-Appellant v. 1-A AGRICULTURAL ASSOCIATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

387 F.3d 850

Alfredo KUBA, on behalf of himself and all others similarly situated, Plaintiff-Appellant v. 1-A AGRICULTURAL ASSOCIATION, Defendant-Appellee.

No. 02-16989.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 1, 2003.

Filed October 19, 2004.

COPYRIGHT MATERIAL OMITTED

David Blatte, Berkeley, CA, for the plaintiff-appellant.

Charles W. Getz, IV, Office of the Attorney General, State of California, San Francisco, CA, for the defendant-appellee.

Appeal from the United States District Court for the Northern District of California; Phyllis J. Hamilton, District Judge, Presiding. D.C. No. CV-01-02254-PJH.

Before: LEAVY, PAEZ, and BERZON, Circuit Judges.

BERZON, Circuit Judge.

Alfredo Kuba demonstrates on behalf of animal rights at the Cow Palace ("the Palace") every year, when the circus or the rodeo is playing there. The Palace, a performance facility, located just south of San Francisco, is owned by the State of California and operated by 1-A District Agricultural Association ("the Association").

In 1988, the Board of Directors of the Association adopted a "First Amendment Expression Policy" ("the Policy"), which prohibits individuals from demonstrating outside the Palace except in designated "free expression zones," none of which is near an entrance to the building. Kuba maintains that these "free expression zones" do not allow demonstrators access to patrons of the Palace adequate to allow engaging in conversation or handing out leaflets. He challenged the Policy in federal district court, both facially and as applied to him, as violative of the First Amendment, the Equal Protection and Due Process Clauses of the federal constitution, and the free speech, equal protection, and due process protections of the California Constitution.

Both parties moved for summary judgment. The district court held the Policy a permissible time, place and manner regulation, dismissed Kuba's motion for summary judgment, granted the Association's motion, and dismissed Kuba's complaint with prejudice. Kuba timely appealed. We reverse.

I. Factual Background

The 1-A District Agricultural Association is a self-governing governmental entity created by the State of California to hold fairs and exhibitions and to manage recreational and cultural facilities. Cal. Food & Agric. Code §§ 3851, 3951, 4051. The Association organizes and produces the Grand National Rodeo and Stock Show at the Cow Palace and rents out the arena to private promoters for other events, such as the Ringling Brothers Barnum and Bailey Circus.

The Association adopted its "First Amendment Expression Policy" in 1988, amending it in 1989 and 2002.¹ This Policy defines "demonstration" as:

individual or group display of signs other than specifically allowed herein, picketing, leafleting, collection of signatures or marching and any group activity involving the communication of expression, either orally or by conduct of views and/or grievances, and which has the effect and intent or propensity to express that view or grievance to others. Demonstration does not include one-on-one voluntary discussions, with the exception of oral advocacy within 75 feet from any point along the front entrance and/or in the fire zones; or individuals wearing small buttons less than 3-inches in diameter; or symbolic clothing, which clothing does not include pictures or lettering.

The Policy also provides for the creation of "free expression zones onsite for purposes of demonstrations." Such a zone is defined as "a designated area located onsite as established by the Association's Board of Directors, at which members of the public shall have reasonable access [to visitors to the Cow Palace] for purposes of conducting demonstrations."

Oddly enough, the Policy never explicitly prohibits demonstrating outside the designated free speech areas.² However, for a number of reasons, we construe the Policy as if it contained such an outright prohibition. The Policy does state that "no one utilizing the free expression zone shall leave said zone for purposes of demonstrating or continuing any activities originated in the free expression zone" (emphasis added). Also, the Association's findings with respect to "on-site demonstrations," which are included in the Policy, indicate that the purpose of the Policy is to permit individuals to demonstrate only in free expression zones. If individuals were free to demonstrate anywhere regardless of the designated free expression zones, those zones would hardly accomplish the goals of "balanc[ing] the interest of the demonstrators in being given access to the patrons of the Cow Palace, and the safety of the patrons and prevention of accidents or congestion that could lead to injury," and "balanc[ing] the interests of those who wish to engage in activities under the First Amendment versus the patrons of various events who may no[t] wish to receive or participate in that message." In its brief to this court, the Association describes the Policy as "restricting First Amendment activities to free expression zones." Therefore, in effect, if not in so many words, the Policy does prohibit "demonstration" outside of the free expression zones.

In implementing the Policy, the Association created three free expression zones. These zones lie on the perimeter of what is called the "preferred parking lot," the lot located directly in front of the main doors of the arena. Two zones are 10 by 20 feet and one is 16 by 18 feet. The zones are between 200 and 265 feet away from the main entrance doors to the arena.³

Zone 1 is located near the main automobile entrance to the Cow Palace from Geneva Avenue. Signs and banners displayed in Zone 1 are visible to people riding in vehicles that enter from Geneva Avenue. This zone is also along the pathway of those who enter the Cow Palace on foot, including individuals who take public transportation to the Palace. According to Kuba's declaration, this zone provides reasonable opportunity to communicate with patrons who do come on foot, but the number of people walking in from Geneva Avenue is very small.

Zone 2 is located at the bottom of a stairway leading to a raised walkway and, eventually, the upper parking lot. While this location places demonstrators in the path of those patrons walking to the arena from the upper lot, Kuba represents that, because the zone is at the bottom of the stairway, these patrons do not see him until they are right next to him; that before he can speak or hand them a leaflet they have already walked past him; and that it is therefore very difficult to communicate with patrons from this zone.

Zone 3 occupies a parking space at the southernmost end of the preferred lot. This zone is also situated across a drive-way from parking section A. According to Kuba, only a few of the people who park in parking section A actually pass by Zone 3, and those who do are separated from the demonstrators by barricades and moving cars, making communication "virtually impossible."

The Policy further states that "[o]rganizations or individuals desiring to demonstrate on-site [i.e., within the grounds or parking lot of the Cow Palace, but excluding the main arena and other enclosed facilities] should register with the Association." Furthermore, "[r]egistration will be granted on a first-come, first-served basis."⁴

Finally, under the Policy, anyone wishing to demonstrate within the "enclosed facility" (i.e., the Cow Palace arena and any other enclosed or semi-enclosed building or structure on the site) may rent an exhibit space. However, "[t]he Association maintains the right to assign space within its enclosed facilities... on a seniority basis and providing first preference to those exhibitors who by subject matter are related to the overall theme or subject of the Association's sponsored or controlled event."

The Policy does not mention any practice of renting parking spaces to exhibitors. The declaration and deposition of Michael Wegher, Chief Executive Officer of the Cow Palace, state, however, that parking spaces in the preferred lot are available for rent on the same basis as exhibit spaces within the arena. Accordingly, as for exhibit spaces, the Association can give first preference to those vendors wishing to rent parking spaces who are "related to the show, i.e., offer products and services which are consistent with the nature of the event." When asked whether the Association would rent a parking space to someone intending to sell T-shirts reading, "Boycott the Rodeo," Wegher responded, "Certainly [it] wouldn't [be] in our best interest to do that, would it? ... I don't think we would allow them to have show merchandise that would do that, neither would we allow them to have offensive, politically incorrect bumper stickers...."

In November 1998, Kuba was prohibited from demonstrating in the walkway to the entrance of the arena. According to Kuba, on the very same day, a radio station representative was allowed to hand out leaflets advertising the radio station directly in front of the arena entrance.

II. Analysis

A. Eleventh Amendment Immunity and Federal Jurisdiction

The Association claims, in passing, that it is immune from suit under the Eleventh Amendment. ITSI TV Productions, Inc. v. Agricultural Ass'ns, 3 F.3d 1289 (9th Cir.1993), holds otherwise. That case held that California's Agricultural Associations were not "arms of the state," and thus were not immune from suit under the Eleventh Amendment. Id. at 1294. As Appellee is an Agricultural Association, it is not immune from suit.⁵

We also conclude that the district court properly asserted supplemental jurisdiction over Kuba's claim under the Liberty of Speech Clause of the California Constitution.⁶ "Nonfederal claims are part of the same `case' as federal claims when they derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try them in one...