Service Employees, Local 5 v. City of Houston
| Decision Date | 28 January 2010 |
| Docket Number | No. 08-20616.,08-20616. |
| Citation | 595 F.3d 588 |
| Parties | SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 5; Tomasa Compean; Austraberta Rodriguez, Plaintiffs-Appellants, v. CITY OF HOUSTON, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jonathan Weissglass (argued), Altshuler Berzon, L.L.P., San Francisco, CA, Patrick M. Flynn, Houston, TX, for Plaintiffs-Appellants.
Mary H. Burke, Sr. Asst. City Atty. (argued), City of Houston Legal Dept., Houston, TX, for Defendant-Appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before REAVLEY, WIENER, and SOUTHWICK, Circuit Judges.
A labor union in Houston, Texas sought permits from the City for parades and rallies in support of a strike. The City gave only partial approval. The union sued, claiming the ordinances under which the permits were processed violated the First Amendment. The district court granted some relief. We proceed slightly further in invalidating the City's rules than did the district court but leave most of the City's scheme intact. We AFFIRM in part, REVERSE in part, and REMAND.
The Service Employees International Union, Local 5 ("SEIU") is the plaintiff. Among its members are 5,300 janitors in Houston. While in contract negotiations in October through November 2006, SEIU staged a strike. The goals of the strike were to be furthered by parades, marches, and rallies in downtown Houston. The target audience for these highly visible protests was those who worked in the Houston office buildings in which many SEIU janitors were employed. Optimal visibility, therefore, would have been in the middle of the workday. SEIU members planned to use megaphones and bullhorns to amplify their message.
SEIU applied for permits to conduct the parades, marches, and rallies it planned. The City denied several of its requests. SEIU's suit challenged three of the ordinances that restricted its plans. A preliminary injunction was entered permitting SEIU to proceed with some of its planned activities. The labor dispute has been resolved. The legal dispute continues.
A summary of the relevant ordinances is where we begin.
The three challenged City ordinances require permits for certain categories of noise, authorizing parades, and controlling some uses of parks. During the course of the litigation, there have been amendments to some of the ordinances. Because SEIU seeks to have us invalidate many of the restrictions, the relevant language is found in the latest version of the ordinances that has been included in the record. A sketch of each current ordinance follows.
The Sound Ordinance bans noise "that annoys, disturbs, injures, or endangers the comfort, repose, health, peace, or safety of others." Sound Ordinance, Houston, Tex., Code of Ordinances ch. 30, § 30-2(a). There are several enumerated exemptions. Among them is an exemption for church bells "when used as part of a religious observance or service during daytime hours," but only if limited to no more than five minutes per hour. Id. § 30-9(j). Also exempted are sounds produced by activities on public parks and playgrounds, and on public or private school grounds, "including, but not limited to, school athletic and school entertainment events." Id. § 30-9(k).
Sound amplification, including by a bullhorn or a megaphone, is generally prohibited. Id. § 30-4(a). Amplification of sound above a certain decibel level requires a permit. Id. § 30-8. The Sound Ordinance limits permits for the same location to two per thirty-day period. Id. § 30-8(a)(4).
The City regulates processions on its roadways. Parade Ordinance, Houston, Tex., Code of Ordinances ch. 45, art. IX. The regulation defines the covered processions this way:
Parade means a procession of pedestrians, vehicles, or animals, or any combination thereof, traveling in unison along or upon a street, road, or highway, organized and conducted for the purposes of attracting the attention of the general public and/or expressing or celebrating views or ideas by use of verbal, visual, literary, or auditory means of communication.
That definition of "parade" closes with the statement that "a procession of vehicles operated in compliance with ordinary traffic laws or a procession of pedestrians along or upon public sidewalks or private property," is not a parade under the terms of the Ordinance. Id.
Parades are prohibited except on issuance of a permit by the City. Id. § 45-232(a). A traffic and security control plan may be required of the permit-seeker if it opts against using City-provided police services. Id. § 45-232(g). Weekday parades in downtown Houston may begin either at 10:00 a.m. or 2:00 p.m., must last no more than an hour, and cannot extend for more than ten street intersections. See id. § 45-233(b)(2).
Permits generally are not required to use City parks but are necessary in order to hold "any public meeting or gathering" in certain designated locations. Parks and Recreation Ordinance, Houston, Tex., Code of Ordinances ch. 32, art. III. § 32-61(a). Some of those locations are described generically — "building or facility for which a rental fee is imposed," or a "baseball field, ... or other area specifically designated and equipped for sporting or recreational events. ..." Id. § 32-61(a)(1) & (2). Gatherings in certain specific locations, such as the Houston Zoo or the Arboretum, also require permits. Id. § 32-61(a)(3) & (4). A catch-all provision concludes the listing: "Any other improved and specially maintained area so designated by a rule or regulation promulgated pursuant" to section 32-5 of the Ordinances. Id. § 32-61(a)(5). A map is to be maintained by the parks director indicating the areas requiring permits for "public meetings or gatherings." Id. § 32-61(b). The City concedes that no such map exists.
The Parks Ordinance requires the permit to be issued if the objective requirements for the permit are met, but denied if certain subjective failings exist. Id. § 32-64(1)-(5). The latter failings include the "size and nature of the meeting is inappropriate for the designated area requested" or the "proposed function would be disruptive to or incompatible with, or cause an adverse effect on the use of the designated area by others." Id. § 32-64(4) & (5).
The following are the features of the ordinances that are still in issue and are said to have unconstitutionally limited SEIU's activities:
(1) The Sound Ordinance's limit of two permits for any single location in a thirty-day period.
(2) The Parade Ordinance's restrictions on downtown weekday parades to two one-hour windows.
In addition to specific features of the ordinances that impacted SEIU, it is also claimed that each ordinance is unconstitutional in its entirety for more general reasons:
(3) The Sound Ordinance contains content-based exceptions that are not narrowly tailored.
(4) The Parade Ordinance's definition of a "parade" is contest-based, vague and not narrowly tailored.
(5) The Parks Ordinance's failure to define what constitutes a "public meeting or gathering" and to designate the relevant areas in parks create vague and inadequately tailored provisions.
The claims before the district court were more numerous. On some, relief was granted and the City has not appealed. On others, no ruling on summary judgment was made. SEIU voluntarily dismissed the latter in order to proceed with an appeal. The only remaining challenges are what we have just described.
On October 19, 2006, SEIU filed suit in the U.S. District Court for the Southern District of Texas challenging the constitutionality of the three ordinances. Two individuals and SEIU are the current plaintiffs, all of whom are meant when we refer to SEIU, unless in context it is clear that we are referring only to the Union. The only current defendant is the City.
SEIU contended that all three ordinances were facially invalid in their entirety. SEIU sought a temporary restraining order and preliminary injunction barring the City from enforcing portions of the Ordinances. A preliminary injunction was granted on October 23, 2006, prohibiting enforcement against SEIU of certain provisions of the Parade and the Sound Ordinances.
In August 2007, the parties filed cross-motions for summary judgment. On March 31, 2008, the motions were granted in part and denied in part. The court invalidated (1) a Parks Ordinance provision requiring permit-seekers to obtain additional security, concluding it to be impermissibly content-based and vague, and (2) a Parade Ordinance provision requiring ten-days notice for obtaining a parade permit which was held to be a prior restraint on speech. The district court also found that an as-applied challenge to a provision of the Sound Ordinance raised a genuine issue of material fact and denied summary judgment as to that issue. The court granted summary judgment to the City on all other claims and denied damages.
SEIU dismissed all claims on which the district court did not rule. It then appealed on the issues we earlier identified. There is no cross-appeal.
This court reviews a grant of summary judgment de novo. Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir.2009). We apply the same standards in reviewing the evidence and applying the law as the district court. Id. Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). If the movant demonstrates that there are no genuine issues of material fact, the burden shifts to the opponent of the motion to establish that there are....
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