Regulating the Traditional Public Forum & Annual Update of Missouri Land Use Cases Missouri Municipal Attorneys Association July 16, 2016 Presented By: Steven Lucas Maggie Eveker Cunningham, Vogel & Rost, P.C. Cunningham, Vogel & Rost, P.C.
First Amendment Background Principles The Supreme Court breaks down forums into three types: traditional public forums, designated forums, and nonpublic forums. See Perry Educ. Ass n v. Perry Educators Ass n, 460 U.S. 37 (1983). First Amendment generally prohibits any laws that regulate or restrict expression because of its message, its ideas, its subject matter, or its content. Police Dep t v. Mosley, 408 U.S. 92, 95 (1972). Regulations that distinguish speech on the basis of its content are subject to strict scrutiny, whereas those that are neutral with respect to the content of the regulated speech are evaluated under the less exacting, intermediate scrutiny standard of review.
First Amendment Background Principles https://maximumwage.wordpress.com/2011/07/26/a-re-enactment-of-a-civil-war-re-enactment/ Strict Scrutiny = Civil War Stomach Wound
First Amendment Background Principles Strict Scrutiny requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest. Citizens United v. Federal Election Com'n, 558 U.S. 310, 340 (2010) Intermediate Scrutiny Government regulation is sufficiently justified if: - It is narrowly tailored to serve the government s legitimate or significant, content-neutral interests and - Leaves open ample alternative channels for communication of the information
First Amendment Background Principles Under Intermediate Scrutiny the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989). Under Strict Scrutiny, Courts define narrowly tailored as a least restrictive means test. Thus, if the government could accomplish its interest in any other way than a content-based regulation on speech, the law fails strict scrutiny and is unconstitutional.
Two Different Approaches for Determining Content Neutrality (1) Functional Approach: if a government can justify the regulation without reference to the content, and did not adopt the law because of disagreement with the message it conveys, it s content neutral (2) Literal Approach: if you need to read the sign, or listen to the message being communicated in order to apply the regulation, the law is content-based. www.bomble.com
Two Different Approaches for Determining Content Neutrality Circuit Split regarding the extent to which government may distinguish between speech based on category or function. The Supreme Court had developed two separate lines of cases regarding content neutrality. Originally the court adopted the literal approach (the need to read the sign or listen to the message in order to apply the regulation) while later decisions supported the functional approach.
Functional Approach The principle inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech. Ward, 491 U.S. at 791(internal citations omitted)
Reed et. al. v. Town of Gilbert, Ariz., 135 S.Ct. 2218 (2015) Reed addressed a challenge to the Town of Gilbert s sign code, which contained a general requirement that all signs obtain a permit, but exempting several categories of signs from that requirement. Gilbert s sign code specifically drew distinctions between temporary event signs and political signs. The 9 th Circuit used the functional approach and relied on the government s regulatory purpose in determining that the town s sign regulations were content neutral. The Court specifically rejected the conclusion that the Gilbert Sign Code was content based because it discriminated on its face between categories of noncommercial speech.
Reed et. al. v. Town of Gilbert, Ariz., 135 S.Ct. 2218 (2015) Justice Thomas determined that the Sign Code s distinctions among different types of signs were content based and did not satisfy strict scrutiny. [g]overment regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. This common sense meaning of the phrase content-based requires a court to consider whether a regulation of speech on its face draws distinctions based on the message a speaker conveys. Facially content-based regulations are automatically subject to strict scrutiny regardless of the government s benign motive or content-neutral justification (quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429 (1993)).
Reed et. al. v. Town of Gilbert, Ariz., 135 S.Ct. 2218 (2015) The majority in Reed held that the Town of Gilbert s Sign Code was content based on its face and thus subject to strict scrutiny, which it failed. Takeaways: - Clear standard (the literal approach ) for courts to assess the content neutrality of laws regulating speech - First, a court must consider whether a law is content-based on its face. - If a law is content-neutral on its face, a court may go on to examine the government s justification for the law to determine whether an improper legislative intent exists. - However, if a law is content based on its face, it is subject to strict scrutiny regardless of the government s content-neutral justification.
Reed et. al. v. Town of Gilbert, Ariz., 135 S.Ct. 2218 (2015) [t]he Court of Appeals and the United States misunderstand our decision in Ward, as suggesting that a government s purpose is relevant even when a law is content based on its face. Justice Thomas
General Categories of Panhandling Regulation (1) Blanket bans meaning laws that completely outlaw panhandling in a city (2) Aggressive begging these laws regulate the type of begging allowed (3) Location bans meaning these laws simply ban panhandling in certain areas of the city
Panhandling Regulation https://fairchangecs.wordpress.com/2014/12/15/panhandling-law-wastes-tax-money-hurts-homeless/
Thayer v. City of Worcester, 755 F.3d 60 (1 st Cir. 2014) In 2013 the City of Worcester adopted an aggressive panhandling ordinance and a pedestrian safety ordinance The aggressive panhandling ordinance applied to soliciting in the form of - Using the spoken, written, or printed word, bodily gestures, signs, or other means of communication with the purpose of obtaining an immediate donation of money or other thing of value - It defined aggressive conduct as obviously threatening behavior The pedestrian safety ordinance stated in part that, - No person shall persist in walking or standing on any traffic island or upon the roadway of any street or highway, except for the purpose of crossing the roadway at an intersection or designated crosswalk or for the purpose of entering or exiting a vehicle at the curb or for some other lawful purpose
Thayer v. City of Worcester, 755 F.3d 60 (1 st Cir. 2014) Justice Souter used the functional approach for determining content neutrality and explained that - after examining the text as well as the intent behind the ordinances, we think there is no serious question that the district court was correct in finding that the restrictions were not based on the content of the speech within the terms of the First Amendment doctrine. Held: the ordinances were contentneutral restrictions because they did not identify or effect speech except by reference to the behavior, time or location of its delivery, identifying circumstances that raise a risk to safety or that compromise the violation of a person addressed to avoid solicitation.
Norton v. City of Springfield, 806 F.3d 411 (7 th Cir. 2015) The City of Springfield passed an ordinance banning panhandling in its downtown historic district. The ordinance defined panhandling, in pertinent part as - [a]ny solicitation made in person in which a person requests an immediate donation of money or other gratuity. The ordinance explicitly exempted from the definition of panhandling the passive display of a sign that invites donations without making a vocal request. It also exempted oral requests to send money later. Following Reed, the court determined - Reed abolishes distinction between content regulation and subject-matter regulation and made clear that a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter, and even if the distinctions were originally implemented in order to make the ordinance less speech-restrictive.
Cutting v. Portland, 802 F.3d 79 (1 st Cir. 2015) City enacted ordinance that states in part, No person shall stand, sit, stay, drive or park on a median strip except that pedestrians may use median strips only in the course of crossing from one side of the street to the other. Held: The ordinance impedes on the First Amendment because it indiscriminately bans virtually all expressive activity in all of the City s median strips and is not narrowly tailored to serve the City s interest in protecting public safety.
Cutting v. Portland, 802 F.3d 79 (1 st Cir. 2015) www.coreytempletonphotography.com The City s ordinance was not narrowly tailored because it was geographically over inclusive and banned substantially more speech than necessary.
McLaughlin v. City of Lowell, 140 F. Supp. 3d 177 (D. Mass. 2015). The City of Lowell passed an ordinance that banned all aggressive panhandling in its downtown district. Specifically, the ordinance grouped aggressive panhandling into three categories: (1) panhandling that will likely cause a reasonable person to fear bodily harm; (2) continuing to panhandle after being given a negative response; and (3) panhandling near certain locations such as parking lots and ATMs Held: The panhandling ordinance is clearly content-based because it requires the authorities to examine the content of a message and determine whether a violation occurred. The only compelling government interest articulated by Lowell is the desire to protect citizens from the fear of bodily harm. However, the ordinance, as written, does not use the least restrictive means to achieve this interest and thus fails the strict scrutiny analysis.
Reed s Impact on Panhandling Regulations (1) Blanket bans Unconstitutional (2) Aggressive begging regulates based on manner problematic - The more criteria a government uses to justify manner bans, the more likely a government will need to analyze the content of the message to enforce the regulation (3) Location bans Must leave open ample alternative channels for communication of the information http://twentytwowords.com/funny-panhandling-signs/
Missouri State Court Land Use Cases EEBN Event October 25, 2012 22
The Metropolitan St. Louis Sewer District v. City of Bellefontaine Neighbors 476 S.W.3d 913 (Mo. 2016) Transferred to Missouri Supreme Court after opinion As a matter of first impression, MSD was not entitled to sue the City for inverse condemnation The plain meaning of private property in Mo. Const. Art. I Sec. 26 does not include public property Sovereign immunity applies in suits between governmental entities - MSD failed to plead an exception, and therefore MSD s claims for negligence and trespass against the City are barred
Avery Contracting, LLC v. Niehaus 2016 WL 3564088 (Mo. 2016) Missouri Supreme Court transferred after opinion Avery Contracting sought a private roadway by necessity across land owned by MHTC and others, including a Homeowners Association 228.342: A private road may be established or widened in favor of any owner or owners of real property for which there is no access, or insufficiently wide access, from such property to a public road if the private road sought to be established or widened is a way of strict necessity... Inapplicable to roads included in a recorded plat referencing a declaration creating an owner s association, per 228.341 Nothing in 228.342 expressly authorizes the establishment of a private road over public lands
Westrich Farms, LLC v. East Prairie Farm, LLC 481 S.W.3d 73 (Mo. App. S.D. 2015) Landowner petitioned for a private road across his neighbor s property Existing road and bridge leading to landowner s farm was inadequate for farming purposes because the farming equipment weighed more than the bridge load limit To bring a claim under 228.342 RSMo., must plead all three elements: 1) plaintiff owns the property 2) no public road runs through or alongside the property, and 3) the new road is necessary Unable to plead the second element No mention of Mo. Const. Art. I, Sec. 35
Duffner v. City of St. Peters 482 S.W.3d 811 (Mo. App. E.D. 2016) Zoning code required 50% of residential yard be covered in turf grass BOA granted partial variance - required 5% of front or side yard Homeowners filed suit, but did not seek certiorari through 89.110 Circuit court had general jurisdiction and should have considered constitutional challenges to the ordinance - Including as-applied challenges - 89.110 has no remedy for constitutional challenge to ordinance Equal protection challenge to partial variance, however, was a collateral attack on Board s decision and 89.110 writ of certiorari was exclusive remedy Applying for the variance was not waiver of constitutional claims Petition adequately stated a claim that turf grass requirement exceeded City s zoning powers
Lake Ozark-Osage Beach Joint Sewer Board v. Missouri DNR, Missouri Land Reclamation Commission 2016 WL 3268221 (Mo. App. W.D. 2016) Company filed a petition to expand its permit to operate a limestone quarry to be located next to a wastewater treatment plant Missouri Land Reclamation Commission has ultimate authority and sole discretion to make a decision on a permit - Director s recommendations have no binding effect - Commission not required to adopt all of Director s conditions Commission may modify the Director s recommendations without issuing its own findings of fact and conclusions of law Commission is not limited only to accepting or denying permit as filed - may impose its own conditions - 444.773 was amended in 2014 to explicitly authorize the Director to impose conditions. Since the Commission appoints Director for limited purpose, Commission is one with authority to impose conditions
KH2, LLC v. Leah Betts, Green County, Missouri Collector of Revenue 2016 WL 1702000 (Mo. App. S.D. 2016) County Collector sought to collect City s costs of nuisance abatement Nuisance abatement additions to real property tax bill are collected per 67.398.3: - 3. Any ordinance authorized by this section may provide that if the owner fails to begin removing or abating the nuisance within a specific time which shall not be less than seven days of receiving notice that the nuisance has been ordered removed or abated may cause the condition which constitutes the nuisance to be removed or abated. The tax bill from the date of its issuance shall be deemed a personal debt against the owner and shall also be a lien on the property until paid. Owner who incurs the personal debt refers to the owner who received notice, not whoever owned the property when the Collector issued the property tax bill
City of Lake St. Louis v. City of O Fallon 462 S.W.3d 810 (Mo. App. E.D. 2015) Annexation dispute between two cities 2010 City of Lake St. Louis decision: Quo Warranto is not the exclusive remedy to determine a boundary dispute between cities 71.015 does not require description of annexed property to take any particular form, and imprecise description will not invalidate Description of property is sufficient if a competent surveyor can locate the land 71.012 and 71.015 provide the exclusive methods for deannexation, and property cannot be deannexed through estoppel, waiver, or acquiescence
Questions/Comments
Presented By: Steven Lucas CUNNINGHAM, VOGEL & ROST, P.C. legal counselors to local government 333 S. Kirkwood Road, Suite 300 St. Louis, MO 63122 314.446.0800 steven@municipalfirm.com; www.municipalfirm.com & Maggie Eveker CUNNINGHAM, VOGEL & ROST, P.C. legal counselors to local government 333 S. Kirkwood Road, Suite 300 St. Louis, MO 63122 314.446.0800 maggie@municipalfirm.com; www.municipalfirm.com These materials and the related presentation are intended for discussion purposes and to provide those attending the meeting with useful ideas and guidance on the topics and issues covered. The materials and the comments of the presenters do not constitute, and should not be treated as, legal advice regarding the use of any particular technique, device, or suggestion, or its legal advantages or disadvantages. Although we have made every effort to ensure the accuracy of these materials and the presentation, neither the attorneys presenting at this meeting nor Cunningham, Vogel & Rost, P.C. assume any responsibility for any individual s reliance on the written or oral information presented.