N.A.A.C.P., Western Region v. City of Richmond

• Decision Date: 28 September 1984
• Docket Number: No. 83-2341,83-2341
• Citation: 743 F.2d 1346
• Parties: N.A.A.C.P., WESTERN REGION and Berkeley-Albany-Richmond-Kensington Chapter, American Civil Liberties Union of Northern California, Plaintiffs-Appellants, v. CITY OF RICHMOND, Leo Garfield, Chief of Police; John Neely, Police Lieutenant; Thomas Corcoran, Mayor; George Livingston, Nathaniel Bates, Don Greco, A.E. Silva, Don Wagerman, Lonnie Washington, Jr.; John Ziesenhenne, Richard Griffin, as members of the Richmond City Council, et al., Defendants- Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1346

743 F.2d 1346

53 USLW 2200

N.A.A.C.P., WESTERN REGION and

Berkeley-Albany-Richmond-Kensington Chapter,

American Civil Liberties Union of

Northern California, Plaintiffs-Appellants, v. CITY OF RICHMOND, Leo Garfield, Chief of Police; John

Neely, Police Lieutenant; Thomas Corcoran, Mayor; George

Livingston, Nathaniel Bates, Don Greco, A.E. Silva, Don

Wagerman, Lonnie Washington, Jr.; John Ziesenhenne, Richard

Griffin, as members of the Richmond City Council, et al.,

Defendants- Appellees.

No. 83-2341.

United States Court of Appeals,

Ninth Circuit.

Submitted May 16, 1984.

Decided Sept. 28, 1984.

Amitai Schwartz, American Civil Liberties Union Foundation of Northern California, San Francisco, Cal., for plaintiffs-appellants.

Malcolm Hunter, Richmond, Cal., for defendants-appellees.

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

Before WRIGHT, HUG and NELSON, Circuit Judges.

NELSON, Circuit Judge:

The National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") challenge the constitutionality of a municipal ordinance that regulates parades on the city streets of Richmond, California. ¹ The district court granted summary judgment for the City of Richmond, holding that the case was not justiciable and that, in any event, the ordinance complies with the first amendment. We reverse.

FACTS AND PROCEDURAL HISTORY

On September 28, 1982, Willie Lee Drumgoole, a black man, died in the custody of the Richmond police. Two weeks later, the City announced that it would not investigate the incident. To protest Drumgoole's death, the allegedly racist practices of the police department, and the City's failure to take action, the NAACP decided to march through downtown Richmond and hold a rally at the Civic Center.

Section 11.84.010 of the Richmond Municipal Code ("RMC") prohibits parades on city streets without a permit from the Chief of Police, and section 11.84.020 requires the application for a parade permit to be submitted at least 20 days in advance. The NAACP applied for a permit on October 18 for a proposed parade on October 23. The Chief of Police denied the application on the ground that the NAACP had failed to comply with the advance notice requirement. To obtain a waiver of this requirement, the NAACP appealed to the City Council. RMC section 11.84.030 gives the Council the discretion to waive the 20-day deadline if it finds "unusual circumstances." Although the Council was scheduled to hold its next meeting that same evening, October 18, the meeting was cancelled because several Council members were out of town. ²

On October 20, the NAACP filed suit under 42 U.S.C. Sec. 1983 for declaratory and

injunctive relief, challenging the constitutionality of the parade ordinance under the first and fourteenth amendments. The district court refused to issue a temporary restraining order against Richmond, and plaintiffs appealed to this court. The Ninth Circuit motions panel helped the parties work out an interim compromise. The City consented to permit the parade to take place on the date desired, and the NAACP agreed to march on the sidewalks rather than on the streets. The rally and march took place on October 23 in accordance with the compromise order. The motions panel then dismissed the interlocutory appeal and remanded the case to the district court. NAACP v. City of Richmond, No. 82-4612

Upon return of the case to the district court, both sides filed declarations and moved for summary judgment. The court granted the City's motion, holding that the case was not justiciable and that the parade ordinance is, in any event, constitutional. It also denied plaintiff's motion for attorneys' fees under 42 U.S.C. Sec. 1988 for obtaining the right to march on October 23. This appeal on the merits followed.

DISCUSSION

I. THE CASE IS JUSTICIABLE.

The district court ruled that the NAACP lacked standing to challenge the parade ordinance, and that the case was moot. On appeal, the question whether summary judgment was properly granted is one of law. Boone v. Mechanical Specialities Co., 609 F.2d 956, 958 (9th Cir.1979). The standard governing this court's review is the same as that employed by the trial court under Fed.R.Civ.P. 56(c). Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327, 1328 (9th Cir.1983). We view the evidence and inferences therefrom in the light most favorable to the losing party. Angel v. Seattle-First National Bank, 653 F.2d 1293, 1299 (9th Cir.1981).

A. Standing

The NAACP challenged the advance notice provision and the discretionary waiver provision of the parade ordinance and asserted that the ordinance is invalid on its face. The district court held that the NAACP lacked standing on all three questions. These issues will be addressed seriatim, together with the Article III and prudential considerations employed in determinations of standing.

Article III of the Constitution limits the exercise of federal judicial power to actual cases and controversies. See, e.g., Flast v. Cohen, 392 U.S. 83, 94-101, 88 S.Ct. 1942, 1949-1953, 20 L.Ed.2d 947 (1968). Litigants are required to demonstrate a "personal stake in the outcome" of a case to guarantee the "concrete adverseness which sharpens the presentation of issues" necessary for proper resolution of constitutional questions. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). To comply with Article III, the plaintiff must show: (1) a distinct and palpable injury, (2) a causal connection between the injury and the defendant's conduct, and (3) a substantial likelihood that the relief requested will redress the injury. See Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) ("Valley Forge ").

1. Advance notice requirement

The NAACP is an organization whose members have long engaged in demonstrations and other protests against perceived racial discrimination. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 911-12, 102 S.Ct. 3409, 3425-26, 73 L.Ed.2d 1215 (1982). These protests frequently occur in response to topical events, and their effectiveness may depend on both their immediacy and the forum where they take place. Here Richmond denied the NAACP's request to conduct a street parade protesting the death of a black man in government custody because the application violated RMC Sec. 11.84.020. The NAACP arguably suffered actual injury as a result. See Secretary of State of Maryland v. J.H. Munson Co., --- U.S.

----, 104 S.Ct. 2839, 2846, 81 L.Ed.2d 786 (1984) ("Munson "). It has standing, therefore, to contest the advance notice requirement

2. Discretionary waiver provision

The challenge to Richmond's discretionary waiver provision, by contrast, is solely anticipatory. The City Council did not exercise its discretion to refuse to waive the notice requirement, but simply failed to convene. Under the Declaratory Judgment Act, 28 U.S.C. Sec. 2201, federal courts may declare the rights and duties of litigants before a law is violated. See 10A Wright, Miller & Cooper, Federal Practice and Procedure Sec. 2757 at 582-83 ("Wright & Miller"). For his anticipatory claim to satisfy the case or controversy requirement, however, the plaintiff is required to show that he is seriously interested in subjecting himself to, and the defendant seriously intent on enforcing, the challenged measure. See, e.g., J.N.S., Inc. v. Indiana, 712 F.2d 303, 305 (7th Cir.1983); Stoianoff v. Montana, 695 F.2d 1214, 1223 (9th Cir.1983); Internat'l Soc. for Krishna Consciousness v. Eaves, 601 F.2d 809, 817 (5th Cir.1979). ³

The NAACP has displayed the requisite interest in subjecting itself to the discretion vested by the ordinance. It has already attempted to bring one application before the Council, and was spared the exercise of the Council's discretion only by the unexpected absence of a few Council members. See Reeves v. McConn, 631 F.2d 377, 381 (5th Cir.1980). Similarly, the Council has displayed an intent to use its discretion. It has never indicated that it considers the waiver provision moribund. See, e.g., Doe v. Bolton, 410 U.S. 179, 188-89, 93 S.Ct. 739, 745-46, 35 L.Ed.2d 201 (1973). In fact, the district court found that this case would not recur precisely because the Council's policy is to hear such requests. ⁴ The NAACP's fear that the Council will exercise uncircumscribed discretion, therefore, is far from hypothetical or abstract. See Babbitt v. United Farm Workers, 442 U.S. 289, 297-98, 99 S.Ct. 2301, 2308-09, 60 L.Ed.2d 895 (1979); Steffel v. Thompson, 415 U.S. 452, 458-59, 94 S.Ct. 1209, 1215-16, 39 L.Ed.2d 505 (1974). This being so, the NAACP has standing to challenge the discretionary waiver provision.

In addition to the restrictions on standing imposed by Article III, federal courts also limit for prudential reasons the claims which litigants may bring. In Valley Forge, supra, the Supreme Court identified three prudential considerations: (1) the plaintiff must ordinarily assert his own interests, and cannot base his claim on the rights of third parties, (2) his asserted harm must not be merely a "generalized grievance" shared in similar measure by all or a large class of citizens, and (3) his interest must arguably be within the "zone of interests" regulated by the statute. See 454 U.S. at 474-75, 102 S.Ct. at 759-60; Scott v. Rosenberg, 702 F.2d 1263, 1267-68 (9th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1439, 79 L.Ed.2d 760 (1984).

We find all of these concerns satisfied here. First, the NAACP asserts its own interest in conducting spontaneous parades. It does not base its claim solely on

the putative free speech rights of a third party. Second, it is self-evident that the NAACP's particular desire to hold public demonstrations against allegedly racist policies is not shared in similar measure by the...