By William W. Abbott
Reed v. Town of Gilbert, Arizona (9th Cir. Feb. 8, 2013, No. 11-15588) ___F.3d ___.
As part of its overall regulatory code, the City of Gilbert, Arizona enacted various sign regulations. The regulations generally require a City issued sign permit unless the sign qualifies under one of nineteen different exceptions. Three of the nineteen exceptions involved (1) temporary directional signs for a qualifying event, (2) political signs and (3) ideological signs. Temporary directional signs subject to the exemption were subject to specific limitations not applicable to political and ideological signs including size, location (excluded from public right of way), and duration (same day only).
Pastor Reed and Good News Community Church (“Good News”) initially filed suit challenging the limitations on the temporary directional signs, signs which the church relied upon for communication with its congregation and to the community. In response to Good News’ request for a preliminary injunction, the district court, [later followed by the Ninth Circuit (Reed v. Town of Gilbert, 587 F.3d 966 (9th Cir. 2009)], determined that this lawsuit was an “as applied” challenge (as applied to Good News as compared to a facial challenge to the ordinance.) Next, in the initial round of litigation, the Ninth Circuit Court of Appeals concluded that the ordinance was not a content based regulation, and that it was appropriately narrowly tailored in limiting speech. The appellate court also upheld the district court’s determination that the church had alternate means of communications. Finally, and again in the context of review the denial of the preliminary injunction request by the district court, the Ninth Circuit concluded that the district court did not error when it concluded that the ordinance did not favor commercial over non-commercial speech. The matter was remanded to the district court to address equal protection and First Amendment Claims where, by stipulation, the matter was submitted based upon cross motions for summary judgment. The district court entered judgment in favor of the City of Gilbert. Following Good News’ second appeal to the Ninth Circuit, the City amended its sign ordinance, then moved to dismiss the appeal on the grounds of mootness. One element of the amendment restricted the use of directional signs only for events taking place within City limits, an amendment which would have had the effect of prohibiting Good News from placing signs as church services occurred outside city limits. While the amendments potentially resolved some of Good News appeal, the Ninth Circuit rejected the motion to dismiss, exercising its discretion to review the local regulations.
On appeal, the Ninth Circuit noted the somewhat narrow and unusual posture of the case. Upon remand, there had been no further discovery, and no suggestion that an additional evidentiary proceeding was necessary. Accordingly, the justices viewed the legal conclusions from the earlier decision as the “law of the case”, framing in part the review of the appeal of the final judgment in favor of the City. The following unresolved questions on appeal involved: (1) were the different restrictions applicable to different types of commercial speech justified without reference to the content of the speech; and (2) are the differences narrowly tailored. Although the exercise of segregating sign types between directional, political and ideological involved some review of sign content, drawing such distinctions between general categories was acceptable in circumstances in which the ordinance was neutral as to signs within a particular category. Each exemption was based upon objective criteria and no distinction was based upon the individual sign content. The Court then focused on whether the ordinance was “narrowly tailored” to serve a legitimate government interest. There was no dispute that the City’s interests in aesthetics and safety were significant. The Court went on to note that the same constitutional considerations in protecting political, religious and ideological speech did not apply to temporary directional signs, the effect of which was to subject an ordinance creating an exemption for directional signs to less judicial scrutiny as compared to more protected speech. On the evidence before the Court, the Court concluded that the regulations of temporary directional signs were reasonable. Turning to protections under Arizona’s freedom of religion statute, the Court also upheld the ordinance and regulations as it was neutral in character and was not a “substantial burden.” Good News’ challenge based upon vagueness of the ordinance was rejected in part on the basis that the law of the case restricted the plaintiff’s claims to “as applied” challenges. The Court also disposed of Good News’ equal protection claims on the same grounds as the plaintiff’s primary claims were resolved. As to the potential claims to the amended ordinance, the Ninth Circuit remanded those potential arguments to the district court.
William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.