White v. City of Norwalk

• Decision Date: 18 April 1990
• Docket Number: No. 88-6430,88-6430
• Citation: 900 F.2d 1421
• Parties: Walter E. WHITE; James C. Griffin, Plaintiffs-Appellants, v. CITY OF NORWALK; William H. Kraus, City Administrator; Robert E. White, City Councilman, City of Norwalk; Cecil N. Green, City Councilman, City of Norwalk; J. Kenneth Brown, City Attorney, City of Norwalk; Daniel Lispi, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1421

900 F.2d 1421

Walter E. WHITE; James C. Griffin, Plaintiffs-Appellants, v. CITY OF NORWALK; William H. Kraus, City Administrator Robert E. White, City Councilman, City of Norwalk; Cecil N Green, City Councilman, City of Norwalk; J. Kenneth Brown City Attorney, City of Norwalk; Daniel Lispi, Defendants-Appellees.

No. 88-6430

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 7, 1989.

Decided April 18, 1990.

Jeffrey M. Epstein, Los Angeles, Cal., for plaintiffs-appellants.

John C. Barber of Wood, Ward, and Garnett, Tustin, Cal., for defendants-appellees.

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

Before BROWNING, FARRIS and CANBY, Circuit Judges.

CANBY, Circuit Judge:

Walter E. White and James C. Griffin brought this action against the City of Norwalk, California, and certain of its officials, under 42 U.S.C. Sec. 1983. White and Griffin are citizens of Norwalk who were ruled out of order when they spoke or attempted to speak at City Council meetings. In district court, they sought: (1) a declaration of unconstitutionality and injunction against enforcement of Norwalk Municipal Code Sec. 2-1.2, which prescribes rules for persons addressing the City Council; and (2) damages against the City and its officials for preventing plaintiffs from speaking, in violation of their rights of free speech and equal protection of the laws. The district court denied declaratory and injunctive relief, and a jury rejected the damages claim. We affirm both decisions.

I. Factual Background

The events that precipitated this litigation took place at three meetings of the Norwalk City Council between 1979 and 1982. At the first meeting, on October 9, 1979, plaintiff White was recognized to speak during a discussion concerning a contract for the City's annual calendar. White contends that while he was speaking, a council member interrupted him and incorrectly claimed that there was a motion on the floor and that White would accordingly have to stop speaking. White states that when he attempted to continue, the mayor had him escorted from the room by a deputy sheriff. The defendants contend that White was ruled out of order for being unduly repetitive and was escorted to his seat for refusing to stop talking after the Major ruled him out of order and asked him to desist.

The second meeting in question took place in either January, February or March of 1980. Plaintiff Griffin claims that he was speaking on an agenda item when he was interrupted by a council member who declared him out of order and had him escorted out of the Council chambers. Griffin did not recall the topic he was addressing nor what he said, but he testified that he made no personal attacks and did not yell, curse or use foul language. The defendants contend that there was simply no evidence sufficient to establish what occurred, and suggest that Griffin was probably ruled out of order for being repetitive.

The third meeting occurred on January 25, 1982. White alleged that he was speaking about a legal matter involving a city official. He claimed that he was told that the subject was a personal matter and that he should submit his information in writing. He alleged that when he attempted to take a written statement out of his pocket to distribute to the Council, he was immediately ruled out of order and removed from the room. ¹

White and Griffin brought this action in October 1982, seeking to have the Norwalk City Ordinance governing appearances before the City Council declared unconstitutional and enjoined, and also seeking damages for interference with their first and fourteenth amendment rights on the three occasions discussed above. Both claims having been denied, they appeal.

II. Challenge to the Ordinance

In order to understand this case, it is essential to know that there is surprisingly little relationship between plaintiffs' claim for declaratory and injunctive relief and their claim for damages. Plaintiffs attack the ordinance purely as being unconstitutional on its face, for overbreadth and vagueness. They have laid no foundation for attacking it as applied. The provisions of the ordinance that they challenge played no part in the jury trial concerning their three abortive appearances before the City Council, and the jury was not instructed on the ordinance. ² Indeed, the record indicates that the ordinance was adopted in January 1980, after the first meeting in dispute had occurred.

Plaintiffs are consequently compelled to show that the ordinance is void on its face, if they are to succeed. The ordinance provides, in pertinent part 2-1.1(b) Rules of Decorum. While any meeting of the City Council is in session, the following rules of order and decorum shall be observed:

3. Persons Addressing the Council ... Each person who addresses the Council shall not make personal, impertinent, slanderous or profane remarks to any member of the Council, staff or general public. Any person who makes such remarks, or who utters loud, threatening, personal or abusive language, or engages in any other disorderly conduct which disrupts, disturbs or otherwise impedes the orderly conduct of any Council meeting shall, at the discretion of the presiding officer or a majority of the Council, be barred from further audience before the Council during that meeting....

2-1.1(d) Enforcement of Decorum. The rules of decorum set forth above shall be enforced in the following manner:

1. Warning. The presiding officer shall request that a person who is breaching the rules of decorum be orderly and silent. If, after receiving a warning from the presiding officer, a person persists in disturbing the meeting, the presiding officer shall order him to leave the Council meeting. If such person does not remove himself, the presiding officer may order any law enforcement officer who is on duty at the meeting as sergeant-at-arms of the Council to remove that person from the Council chambers....

3. Resisting Removal. Any person who resists removal by the sergeant-at-arms shall be charged with a violation of this Section.

4. Penalty. Any person who violates any provision of this Section shall, pursuant to Section 1.08.010 of the Code, be guilty of a misdemeanor.

Plaintiffs focus particularly on the proscription against "personal, impertinent, slanderous or profane remarks." They argue that such imprecise and content-oriented terms render the ordinance fatally vague and overbroad, under well-recognized first amendment doctrine. See, e.g., Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (criminal statute punishing utterance to another of "opprobrious words of abusive language" is void for overbreadth); Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974).

The City, however, offers a construction of the ordinance that is far narrower than that of plaintiffs. The City asserts that, properly construed, the ordinance does not permit discipline, removal or punishment of a person who merely utters a "personal, impertinent, slanderous or profane" remark. That provision is qualified, the City states, by the next sentence of the ordinance, which authorizes removal of any person:

who makes such remarks, or who utters loud, threatening, personal or abusive language, or engages in any other disorderly conduct which disrupts, disturbs or otherwise impedes the orderly conduct of the Council meeting....

Norwalk Mun.Code Sec. 2-1.1(b)(3) (emphasis added). Thus, the City asserts that removal can only be ordered when someone making a proscribed remark is acting in a way that actually disturbs or impedes the meeting. The same threshold is required, according to the City's reading of the ordinance, for warning and removal under section 2-1.1(d)(1) and for prosecution under section 2-1.1(d)(4).

The ordinance can certainly be read in other ways, but we conclude that it is readily susceptible to the City's interpretation. We therefore adopt the City's narrower construction. See Frisby v. Schultz, 487 U.S. 474, 480-84, 108 S.Ct. 2495, 2500-01, 101 L.Ed.2d 420 (1988) (Court's narrow construction of ordinance supported by representations of town counsel as to town's interpretation).

Plaintiffs argue that, even as construed by the City, the ordinance is fatally overbroad. They point out that in Gooding v. Wilson, the statute struck down by the Court punished the use of " 'opprobrious words or abusive language, tending to cause a breach of the peace.' " Gooding, 405 U.S. at 519, 92 S.Ct. at 1104 (quoting Ga.Code Ann. Sec. 26-6303) (emphasis added). In Gooding, however, it was clear that the state's interpretation of "tending to cause a breach of the peace" required no actual breach, but simply focused on the offensiveness of the words. Id. at 525-27, 92 S.Ct. at 1107-08; see also Tinker v. Des Moines Independent Community, 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (1969) (no showing of actual disruption of school operations by wearing of black armband).

A more fundamental flaw in plaintiffs' position is that their first amendment arguments do not take account of the nature of the process that this ordinance is designed to govern. We are dealing not with words uttered on the street to anyone who chooses or chances to listen; we are dealing with meetings of the Norwalk City Council, and with speech that is addressed to that Council. Principles that apply to random discourse may not be transferred without adjustment to this more structured situation.

City Council meetings like Norwalk's, where the public is afforded the opportunity to address the Council, are the focus of highly important individual and governmental interests. Citizens have an enormous first amendment interest in directing speech about public issues to those who govern their city. It is doubtless partly for this reason that such meetings, once opened, have been regarded as public forums, albeit limited...