Blair argues that the State cannot now complain of being precluded from seeking further review of the Court's declaratory judgment because (1) the State could have intervened as a full party under Rule 24 but chose not to do so, and (2) the State essentially delegated to the City the role of resolving the case.
Blair's arguments are unpersuasive. As the State maintains, it had no reason to intervene under Rule 24 because it could, and did, do so under § 2403(b). Furthermore, the City and the State do not share congruent interests; indeed, the very existence of § 2403(b) reflects a recognition that the interests of the State and its localities do not fully overlap where the constitutionality of a state statute is at issue. Here, as the defendants argue, the City's primary concern was avoiding damages liability, whereas the State's primary concern was upholding its statute.
Another argument in favor of vacatur is the likelihood that, so long as the Court's precedent stands, the State will be unable to obtain appellate review of the declaratory judgment via any other court action. As defendants argue, law enforcement officers throughout California will be unwilling to "retest" the constitutionality of § 647(c) in the face of this Court's decision. An officer attempting to enforce the statute would likely lose qualified immunity and be subject to personal liability, because Blair I clearly establishes that the law violates the civil rights of those punished under it. 775 F. Supp. at 1322-26; see Gasho v. United States, 39 F.3d 1420, 1438 (9th Cir. 1994) (police officer not entitled to immunity if "the constitutional right is clearly established" and no "reasonable police officer could have believed, in light of the settled law, that he was not violating a constitutional right"), cert. denied, 132 L. Ed. 2d 831, 115 S. Ct. 2582 (1995); cf. Act Up!/ Portland v. Bagley, 988 F.2d 868, 872-73 (9th Cir. 1993) (illustrating that "clearly established legal principles" are established by case law).
Blair disputes the City's argument by asserting that the Court did not actually enjoin enforcement of the statute and that, therefore, the State can enforce it. Blair's reasoning is absurd. A facially unconstitutional statute cannot, of course, be enforced (constitutionally) against anyone. "Any attempt to enforce [the] statute would flout this Court's order." Blair II, 795 F. Supp. at 317 (emphasis added).
Vacating the declaratory judgment poses little hardship to Blair. While Blair contends that the "principal consideration offered by the City for settlement" was mootness, that is, the foreclosing of any appeal of the declaratory judgment, that is hard to believe. (See Pl.'s Opp'n, filed Aug. 7, 1995, at 11.) First, as discussed above, the Rule 68 offer of judgment makes no mention of appeal rights. Second, it has been clear from the beginning of this case that Blair is no longer a panhandler and that there is little chance that he will return to panhandling in the future. As a result, Blair has no present personal stake in the declaratory judgment for purposes of jurisdiction. The declaratory judgment has essentially no direct impact on Blair's life.
In considering whether to vacate a precedent, the Court must also take into account the public interest. U.S. Bancorp, 115 S. Ct. at 392. Blair argues that the Court's Blair I decision is important to the public interest in that it advances First Amendment debate and protects freedom of speech. The State, however, can also legitimately claim to represent the public interest by seeking to enforce the anti-panhandling statute.
Weighing the conflicting interests of Blair, the City, and the State, the Court holds that vacatur of the declaratory judgment is proper in this case. "'Judicial precedents are presumptively correct and valuable to the legal community as a whole. They are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by a vacatur.'" Id. (quoting Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 126 L. Ed. 2d 396, 114 S. Ct. 425 (1993) (Stevens, J., dissenting)) (emphasis added). This is such a case. The Court finds that the asserted public interest in the precedential value of Blair I does not outweigh the State's interest -- and the concomitant public interest -- in obtaining review of the important constitutional issue of § 647(c)'s constitutionality. As discussed above, the Ninth Circuit's concern about the "constitutional nature of the question" in this case weighs in favor of vacatur. Because issues involving freedom of speech under the First Amendment are so important to the public, they should be subject to the normal course of appellate review, not arrested by an unreviewable, mooted district court decision. See Blair III, 38 F.3d at 1521.
IT IS HEREBY ORDERED that:
1. The State's motion to intervene pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure is GRANTED.
2. The State's and the City's motion to vacate the Opinion and Order filed September 24, 1991, as amended by Order filed October 10, 1991, is GRANTED.
Dated: January 30, 1996.
William H. Orrick
United States District Judge