Rowe v. City of Cocoa, 03-14262. Non-Argument Calendar.

• Decision Date: 28 January 2004
• Docket Number: No. 03-14262. Non-Argument Calendar.,03-14262. Non-Argument Calendar.
• Citation: 358 F.3d 800
• Parties: Clarence ROWE, Plaintiff-Appellant, v. CITY OF COCOA, FLORIDA, Judy Parrish, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

358 F.3d 800

Clarence ROWE, Plaintiff-Appellant, v. CITY OF COCOA, FLORIDA, Judy Parrish, Defendants-Appellees.

No. 03-14262. Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

January 28, 2004.

Lisa Kuhlman Tietig, Mark Tietig, Tietig & Tietig, Merritt Island, FL, for Plaintiff-Appellant.

Erin J. O'Leary, Usher L. Brown, Brown, Salzman, Weiss & Garganese, P.A., Orlando, FL, Anthony A. Garganese, City Atty., Cocoa, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, MARCUS and RONEY, Circuit Judges.

PER CURIAM:

This is an appeal of the denial of a facial challenge to a City of Cocoa, Florida regulation limiting the speech of non-residents during its City Council's meetings. Article X of City Council's Rules of Procedure, entitled "ADDRESSING THE COUNCIL," sets forth the following in relevant part:

In its discretion, the council may set aside up to thirty minutes of each regular meeting for "delegations." The purpose of such delegations shall be for any resident or taxpayer of the city to make his/her views known to the city council upon any subject of general or public interest.

* * *

The council recognizes that delegations is for the purpose of legitimate inquiries and discussion by the public and not for the purpose of advancing arguments or repetitious questions concerning matters which the council believes to be closed or not of general public concern. The council shall have the right at any delegations to decline to hear any person or any subject matter upon proper motion and majority vote by the council.

(Emphasis supplied). Furthermore, by a majority vote, the Council "may decline to hear any person who is not a resident or taxpayer of the City" subject to certain exceptions, such as, for example, if a user of the city's water or sewer system wishes to be heard on a related matter.

This Court holds that the City Council's Rules of Procedure on their face are a permissible limitation of speech to non-residents at the limited public forum of a City Council meeting and thus neither violates the First nor Fourteenth Amendments to the Constitution.

Plaintiff Clarence Rowe, a non-resident of Defendant City of Cocoa, regularly attended City of Cocoa Council meetings, speaking several times on matters of general interest and public concern. At two particular meetings held on April 23, 2002 and July 9, 2002, Mayor Judy Parrish invoked and applied the residency rule, limiting non-resident Rowe's comments during the public comment portion — i.e., "the delegations" — of the City Council's meeting to those relevant to, inter alia, the Council's agenda for that particular meeting.

Rowe ultimately brought this suit against the City and Mayor Parrish under 42 U.S.C. § 1983 for declaratory, injunctive and compensatory relief, alleging violations of his First Amendment rights to freedom of speech and expression, as well as a violation of his Fourteenth Amendment right to equal protection. In a well-reasoned order, the district court, inter alia, granted summary judgment to Parrish on all claims, and subsequently entered judgment in favor of both the City and Parrish.

Rowe appeals only the grant of summary judgment to the City. Specifically, he argues that the City's residency requirement for speakers during City Council meeting is overbroad on its face and therefore violates (1) his First Amendment rights of free speech and expression; and (2) his Fourteenth Amendment right to Equal Protection by making an impermissible distinction between resident and non-resident classes.

The City Council's Rules of Procedure do not, on their face, violate the First Amendment. "The freedom of expression protected by the First Amendment is not inviolate; the Supreme Court has established that the First Amendment does not guarantee persons the right to communicate their views `at all times or in any manner that may be desired.'" Jones v. Heyman, 888 F.2d 1328, 1331 (11th Cir. 1989) (quoting Heffron v. International Soc'y for Krishna Consciousness, 452 U.S. 640, 647, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981)). This Court has held in Jones that a city commission meeting is one forum where speech may be restricted "`to specified subject matter.'" Jones, 888 F.2d at 1332 (quoting City of Madison Joint School Dist. v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 176 n. 8, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976)). Stated differently, city commission meetings are "limited" public fora — i.e., "a forum for certain groups of speakers or for the discussion of certain subjects." Crowder v. Housing Auth. of City of Atlanta, 990 F.2d 586, 591 (11th Cir.1993) (citing Perry Educ. Ass'n. v. Perry Local Educators' Ass'n., 460 U.S. 37, 46 n. 7, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)). As such, "the government may restrict access to limited public fora by content-neutral conditions for the time, place, and manner of access, all of which must be narrowly tailored to serve a significant government interest." Id. (citing Perry, 460 U.S. at 45-46, 103 S.Ct.948).

There is a significant governmental interest in conducting orderly, efficient meetings of public bodies. Jones, 888 F.2d at 1332. One recognized way to conduct orderly, efficient meetings under Jones is for public bodies, such as a city council, to confine their meetings to specified subject matter. Id. at 1333 (holding that the removal of a public speaker by the mayor at a city commission meeting was not a First Amendment violation and thus permissible because "to deny the presiding officer the authority to regulate irrelevant debate and disruptive behavior at a public meeting ... would cause such meetings to drag on interminably, and deny others the opportunity to voice their opinions"); see also Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266, 272 (9th Cir.1995) ("Meetings of a public body do not become free-for-alls simply because the body goes beyond what a...