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Suann Prigmore et al v. City of Redding et al

December 13, 2012

SUANN PRIGMORE ET AL., PLAINTIFFS AND RESPONDENTS,
v.
CITY OF REDDING ET AL., DEFENDANTS AND APPELLANTS. AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA ET AL., PLAINTIFFS AND RESPONDENTS,
v.
CITY OF REDDING ET AL., DEFENDANTS AND APPELLANTS.



APPEAL from a judgment of the Superior Court of Shasta County, Monica Marlow, Judge. (Super. Ct. No. 172020) (Super. Ct. No. 172012)

The opinion of the court was delivered by: Duarte , J.

CERTIFIED FOR PUBLICATION

Affirmed as modified.

At issue in this case is to what extent defendants may limit plaintiffs' disseminating of leaflets on the outdoor grounds of the Redding Municipal Library (the Library). To regulate leafleting on the Library campus, the City Council of Redding, acting as the Library's Board of Trustees, adopted an Outdoor Public Forum Policy (the Policy). Among other restrictions, the Policy limited leafleting to a specific "free speech area" in front of the Library, prohibited leafleting involving solicitation, banned leafleting of vehicles in the parking lot, and prohibited "offensively coarse" language or gestures. It also required (restricted) online reservations for use of the "free speech area."

Two organizations (and certain of their members) separately challenged these portions of the Policy. Each organization obtained a preliminary injunction enjoining enforcement of these portions of the Policy and other regulations. On appeal, the City of Redding and other defendants contend the trial court erred in finding the Library was a public forum, and that even if the classification as a public forum were correct, the court misapplied the intermediate scrutiny standard to the challenged portions of the Policy. Defendants further contend plaintiffs did not have standing to challenge provisions of the Handbill Ordinance and the preliminary injunctions are overbroad.

As we will explain, we conclude the trial court correctly found the area outside the Library to be a public forum, and, with one exception, correctly found plaintiffs were likely to prevail on the merits in their challenges to the Policy and the Handbill Ordinance. The one exception is the ban on leafleting in the parking lot. We shall uphold that provision of the Policy. To the extent the preliminary injunctions are overbroad, we cure the problem by striking the offending language. Accordingly, we shall modify the preliminary injunctions and affirm as modified.

FACTUAL AND PROCEDURAL BACKGROUND

The Library

The Library opened in 2006 at 1100 Parkview Avenue in the City of Redding. It borders public parks on three sides. South City Park is to the west and south; there is an asphalt road separating the Library from the park to the west. On the east is Parkview Avenue. To the north is Grape Avenue; across from Grape Avenue is a large softball field and next to that field is a city hall complex.

The entrance to the Library is a covered area of approximately 765 square feet. In this area are two cement columns, a sculpture, several benches, and a newspaper rack.

In front of the Library entrance is a parking lot that wraps around much of the building. There are walkways between the parking lot and the Library building. The Library entrance is busy, with about 750 visits a day.

The governing body of the Library is the Library Board of Trustees, which is comprised of the five members of the City Council. The City of Redding contracts with LSSI Corporation for management of the Library. That contract is overseen by Kimberly Niemer, the Director of Community Services.

September 2010 Leafleting

Leafleting activity in September of 2010 spurred adoption of the Policy. That year, the Bostonian Tea Party (BTP), a member of North State Tea Party Alliance, chose to celebrate Constitution Day (September 17) by placing an education table outside the Library to display and disseminate various items, including pocket-sized constitutions, its newspaper, and labels with quotations from various Founding Fathers. BTP set up its table along the west wall of the Library breezeway on September 15, 2010. Two days later, three women from the Daughters of the American Revolution (DAR) arrived and set up a card table near the east wall.

Niemer demanded that DAR move its table to the same area where BTP's table was located. Although by policy DAR did not wish to be associated with any political organization, it complied and moved its table. Suann Prigmore, the chair of BTP's Constitution Week Committee, was incensed at Niemer's demand and a dispute arose between Prigmore and Niemer.

The Policy

In response to this dispute, the Library Board of Trustees, over opposition, adopted the Policy. The Policy's stated purpose was "to recognize limited leafleting activity while exercising necessary control and supervision" on the Library campus.

As relevant to our review, the Policy provided as follows:

"Rules for Use of Limited Public Forum Area

I. Repetitive distribution of written materials such as pamphlets, handbills, circulars, newspapers, magazines and other materials (Leafleting) to Library patrons may only be engaged in as follows:

a) [limiting material to matters of public concern]

b) if it does not involve the solicitation of funds; and

c) if material is distributed from within the area described in the attached diagram (free speech area).

II. No materials may be left on the windshields of automobiles parked on Library grounds.

III. [Prohibiting use of Library's name]

IV. The exercise of free speech and assembly rights must comply with all applicable federal, state, and local laws. In addition, such activities or any aspect of such activity, both within or outside the free speech area, shall be modified or shall cease after warning in accordance with any directive issued by Library staff, upon determination that the behavior is:

1) [Interfering with Library programs]

2) [Obstructing the flow of traffic]

3) [Creating unreasonable noise]

4) Harassing persons in the immediate area of activity. A person shall be considered to harass another if he or she:

(a) [Strikes another]

(b) [Attempts physical contact]

(c) In a public place, makes an offensively coarse utterance, gesture or display, or addresses abusive language toward another person.

(d) [Follows someone]

(e) [Engages in annoying course of conduct with

no legitimate purpose]

5) [No violation of safety codes]

V. Pursuant to Redding Municipal Code section 2.42.120.A.5 and 2.42.120.B,[*fn1 ] any person in violation of these rules shall be in violation of the Redding Municipal Code.

Procedure

Reservations for the limited outdoor public forum area space can be made through the on-line [sic] room

reservation system at . . .

Online reservations will be taken up to six (6) months in advance and need to be made at least seventy-two (72) hours in advance. Reservations will be taken on a first-come, first-served basis. Reservations are limited to five (5) days per month in order to provide availability to others. . . ."

The diagram attached to the Policy showed that leafleting was limited to an area south of the entry doors of about 42 square feet. Tables had to be at least four feet from the doors and could cover no more than 30 square feet of the area.

Any violation of the Policy was a violation of the Redding Municipal Code (RMC); therefore, violators faced possible criminal sanctions.*fn2

Subsequent Leafleting

In April 2011, Prigmore and other BTP members distributed leaflets in front of the Library and also put them on cars in the parking lot. In addition, members of the American Civil Liberties Union were leafleting in front of the Library. Niemer warned them that they were violation of the Policy. They stopped leafleting due to their concerns about being arrested.

TRO and Preliminary Injunctions

The American Civil Liberties Union of Northern California and two individual members (collectively ACLU) brought a complaint against the City of Redding, the City Council, and the Library director for permanent and preliminary injunctive relief and for declaratory relief. The ACLU alleged certain provisions of the Policy were unconstitutional under both the United States and California Constitutions. The complaint sought to enjoin portions of the Policy and have those portions declared unconstitutional under the federal and state Constitutions.

On the same day, Prigmore, BTP, and the North State Tea Party Alliance (collectively Tea Party) also brought a complaint for declaratory and injunctive relief. This complaint named as defendants the City of Redding, the City Council, the City Manager, and the Library Board of Trustees. (We refer to the defendants in both cases collectively as the City.) In addition to bringing a facial and as applied constitutional challenge to the same portions of the Policy challenged by the ACLU, the Tea Party also challenged various provisions of the RMC that were part of the Handbill Ordinance adopted in 1984.*fn3 The challenged provisions were: (1) section 6.36.060, prohibiting placing handbills on vehicles; (2) section 6.36.080, requiring handbills to identify the person or organization who wrote the handbill and who caused the handbill to be distributed; and (3) section 6.36.100, ...


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