Petition — Leipzig v. Baldwin

Supreme Court brief1977

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Iu the Supreme Court -

OF THE a

United States

OcTOBER TERM, 1976

No.

MARGUERITE LEtpzic, Mayor oF THE City oF REDWooD

City, CALIFoRNIA, and CHARLES GYSELBRECHT,

BUILDING OFFICTAL OF THE City oF REDWoop

City, CALIFORNTA,

Petitioners,

VS.

ALAN L. BaLpWwIN and Grorce Q. CANNON, JR..

Respondents.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

Davin E. ScHRICKER,

City Attorney

Suite 510

702 Marshal! Street, Suite 510

Redwood City, California 94063

Telephone: (415) 369-6251,

Attorney for Petitioners.

PERNAU - WALSH PRINTING CO. - 562 MISSION STREET - SAN FRANCISCO, CA 94108

Subject Index

Page

hk i te oe ie dee oe ee ee 2

Ci ad bees ch eseunetateescidndessaséeocees 2

i a ee canes sceduebeces 2

Constitutional, Statutory and Ordinance Provisions involved 3

ll EEA Pe ee a 4

Reasons for gramting the Writ .......cccccccccccccccccces 8

00h dite ee ced ehees ol ehenéearesvessesceenes 13

Table of Authorities Cited

Cases Pages

Adderly v. Florida [1966], 385 U.S. 39 .................. 9

Cameron v. Johnson [1968], 390 U.S. 611 ............... 8

Cantwell v. Connecticut [1940], 310 U.S. 296 ............ 8

Cohen v. Calif. [1971], 403 U.S. 15 ................205. 12

Cox v. Louisiana [1965], 379 U.S. 536 .................. 8,9

Cox v. New Hampshire [1941], 312 U.S. 569 ............ 9

Erznoznik v. City of Jacksonville [1975], 422 U.S. 205 ... 9,12

Farrell v. Township of Teaneck [1974], 126 N.J. Super.

Sk Se A ED Vic ddcencusdeecccadesenstcscieses< 10

Gibbons v. O’Reilly, 44 Mise. 2d 353, 253 N.Y.S. 2d 731

i Ui PE <escewacedcoacdndanneveecenvcescéoces 10

Golden v. Zwickler [1969], 394 U.S. 103 ................ 2

Hymes v. Mayor of Oradell [1976], _.. U.S. _.., 96 S. Ct.

ee Oe ess od ee aeebhcadecs sauueun 11,13

Indianapolis Schl. Commrs. v. Jacobs [1975], 420 U.S. 128 2

Karp v. Becken, 477 Fed. 2d 171 [9th Cir. 1973] ........ 10

Kovaes v. Cooper [1949], 336 U.S. 77 ................ 8,11, 12

Lehman v. City of Shaker Heights [1974], 419 U.S. 298 13

Lloyd Corp. v. Tammer [1972], 407 U.S. 551 ............ 11

ii ™“ TaBLr or AuTHorITIES CITED

Pages

Pace v. Village of Walton Hills [1968], 15 Ohio St. 2d 51,

Fe BPE ee eer yr emen ee 10

Pell v. Procunier [1974], 417 U.S. 817 ...............05- 11

Peltz v. City of South Euclid [1967], 11 Ohio St. 2d 128,

— Pf A an a ee ere 10

Poulos v. State [1953], 345 U.S. 395 .............cc cece, 8

Ross vy. Goshi, 351 Fed. Supp. 949 [D. Hawaii, 1972] .... 10

Rowan v. U.S. Post Office [1970], 397 U.S. 728 .......... 13

Schneider v. New Jersey [1939], 308 U.S. 147 ............ 13

Town of Huntington v. Estate of Schwartz, 63 Mise. 2d

836, 313 N.Y.S. 2d 918 [Dist. Ct. 1970] .............. 10

Village of Belle Terre v. Boraas [1974], 416 U.S. 1 ...... 9,12

Virginia State Bd. of Pharmacy v. Virginia Citizens Con-

sumer Council, Inc. [1976], 96 S. Ct. _., 48 L. Ed. 2d

Young v. American Mini Theatres, Inc. [1976], _.. U.S.

——, 96 S. Ct. 2440, 44 U.S.L.W. 4999 ................ 9,12

Redwood City Code:

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28 U.S.C.:

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Iu the Supreme Court

OF THE

Rnited States

OcTOBER TERM, 1976

No.

MARGUERITE LeErpzic, MAYOR OF THE CITY OF REDWOOD

Crry, CALIFORNIA, and CHARLES GYSELBRECHT,

BUILDING OFFICIAL OF THE City OF REDWOOD

City, CALIFORNIA,

Petitioners,

vs.

Aan L. BaLpwin and Georce Q. Cannon, JR,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

Marguerite Leipzig, Mayor of the City of Redwood

City, California, and Charles Gyselbrecht, Building

Official of the City of Redwood City, California, pray

that a writ of certiorari issue to review the judgment

of the United States Court of Appeals for the Ninth

Circuit entered in this case on August 9, 1976.

OPINION BELOW

The opinion of the Court of Appeals (Appendix B,

pp. 2-32) is not yet officially reported. No opinion

was delivered by the District Court.

JURISDICTION

The judgment of the Court of Appeals was entered

on August 9, 1976. A timely petition for rehearing

was denied on September 14, 1976 (Appendix A, p.

1). The jurisdiction of this Court is invoked under

28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether certain provisions of Redwood City’s

sign regulations, enacted in furtherance of legitimate

municipal interests, governing the erection, location

and maintenance of temporary signs, are constitu-

tionally valid restrictions permitted under the Ist and

14th Amendments insofar as said regulations apply

to political signs.

2. In the event this petition is granted, Petitioners

respectfully reserve the right to argue the jurisdic-

tional question of whether the case or controversy

herein is moot under the decisions in Golden v. Zwick-

ler (1969), 394 U.S. 103, and Indianapolis Schl.

Commrs. v. Jacobs (1975), 420 U.S. 128, and related

or similar decisions.

CONSTITUTIONAL, STATUTORY AND

ORDINANCE PROVISIONS INVOLVED

United States Constitution

Amendment I

“Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exer-

cise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peace-

ably to assemble, and to petition the government

for a redress of grievances.”

Amendment XIV, $1

“All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shail make or en-

force any law which shall abridge the privileges

or immunities of citizens of the United States;

nor shall any State deprive any person of life,

liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws.”

STATUTE

42 U.S.C. §1983

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage of any

state or territory, subjects or causes to be sub-

jected, any citizen of the United States or other

person within the jurisdiction thereof to the de

privation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be

liable to the party injured in an action at law,

suit in equity, or other proper proceeding for

redress.”

ORDINANCE

Redwood City Code §§3.89, 3.136, 3.137(b), and 3.139

(Appendix K, pp. 49-52)

STATEMENT OF THE CASE

_ Approximately three weeks before the April 9,

1974, general election in Redwood City, California,

Respondents, supporters of one of ten candidates for

three councilmanic seats, instituted the action below

in the United States District Court, Northern District

of California, contesting the validity of various pro-

visions of Redwood City’s sign ordinance insofar as

they pertain to the use of temporary signs used for

political advertising. The District Court’s jurisdiction

was invoked under 28 U.S.C. $1343, 28 U.S.C. §2201,

and 28 U.S.C. §2202. The amended complaint alleged

deprivation of 1st and 14th Amendment rights and

violation of 42 U.S.C. §1983.

On March 20, 1974, the District Court issued a

temporary restraining order and order to show cause

(Appendix J, pp. 47-48). After hearing, on March 28,

1974, the Court issued a preliminary injunction (Ap-

pendix I, pp. 45-46). Appeal was taken from the pre-

liminary injunction, but that appeal was mooted by a

subsequent partial judgment and permanent injunc-

tion, and that appeal was dismissed (Appendices H,

p. 44, G, pp. 42-43, F, pp. 40-41, and E, p. 39).

Respondents’ candidate was unsuccessful in his bid

for elective political office notwithstanding that the

interlocutory injunctive orders permitted him to cam-

paign virtually unrestricted with political signs. The

case proceeded to partial disposition through motions

for summary judgment following which a judgment

(Appendix G, pp. 42-43), later denominated ‘‘partial

judgment” (Appendix E, p. 39), and a permanent

injunction (Appendix F, pp. 40-41) were issued.

Thereafter, on further cross motions for summary

judgment, a portion of the remaining issues was de-

cided (Appendix D, pp. 37-38), and after trial on the

residual issues final judgment was entered on July 39,

1975 (Appendix C, pp. 33-36). Cross appeals were

taken, and on August 9, 1976, the judgment of the

Court of Appeals for the Ninth Cireuit to which this

petition pertains was entered.

The District Court, in sum, held unconstitutional

the provisions of the sign ordinance requiring a One

Dollar ($1.00) inspection fee (R.C. Code §3.136, 2nd

sentence), the aggregate area per candidate/issue lim-

itation (R.C. Code §3.137(b)), and the prohibition

upon the use of temporary political signs in residen-

tial areas (R.C. Code §3.139) [Appendices G, pp. 42-

43; F, pp. 40-41; E, p. 39; D, pp. 37-38; and C, pp.

33-36]. The Court of Appeals, in addition, held uncon-

stitutional the permit and refundable deposit require-

ments (R.C. Code §3.136), and the summary removal

provision (R.C. Code §3.89, last sentence) [Appendix

B, p. 32].

The facts adduced in the District Court proceedings

show that the City’s sign regulations at issue were

enacted by the City Council in the 1960’s in response

to considerable citizen protest of the large number

and character of campaign signs regularly and peri-

odically associated with elections. The Building Offi-

cial, who enforces the ordinance, testified that the

purpose for requiring a permit for each sign (R.C.

Code §3.136) is to provide a workable means for him

to identify a given sign, first by its location, and then

by its owner. Since enforcement of the ordinance is

generally carried out in response to complaints of

citizens, and since signs, themselves, bear no specific

information as to their owner, permits are filed for

each sign on the basis of location. The permit form

is used for all kinds of signs, but only those portions

pertaining to temporary signs are required to be com-

pleted by an applicant, and the Building Official

and his deputies readily assist applicants and furnish

information in filling out the forms. Respondents’

only witness at trial of the issue testified that he

personally has never filled out the application form.

The Building Official’s affidavits and testimony

show that the inspection fee of One Dollar ($1.00)

is a nominal amount to defray the cost of inspecting

signs in his offices, and also for investigation of each

site where the signs are erected. The costs to the

City for conducting such inspections average Ten

Dollars ($10.00) per sign. The Five Dollar ($5.00)

per sign “clean-up” deposit (R.C. Code §3.136) is

returned to the permittee upon removal of the sign.

The average cost per sign incurred by the City for

removing signs not properly disposed of by a permit-

tee is Twenty-five Dollars ($25.00).

Affidavits of the former Mayor show that, in con-

ducting legislative hearings prior to enactment of

the regulations, the City Council found that the use

of temporary signs create traffic hazards, accumula-

tion of debris, and otherwise create dangerous and

unsightly conditions and public nuisances. Affidavits

of citizens show that political signs are attention-

getting Wevices having an undue distracting influence

on motorists who, particularly in residential areas,

should be especially alert for children, bicyclists, and

pets. Moreover, uncontradicted affidavits show that

there is ample exposure to political signs in commer-

cial and industrial areas of the City through which

most residents must travel to reach residential areas.

The Building Official’s affidavits also show that

temporary signs, absent regulation, are generally left

unattended, deteriorate and constitute debris and haz-

ards. Summary removal (R.C. Code §3.89) is often

the only practical method of protecting the public

from abandoned signs before they become hazards.

Summarily removed signs are placed in storage. More-

over, prior to removal of such unidentified (as to

owner) signs, every effort is made by the Building

Official to contact the owner or occupant of the prop-

erty on which the signs are placed to obtain compli-

ance with the regulations. Further, summary removal

is not carried out with respect to enclosed property

or buildings without having first obtained permission

of the occupant or owner thereof, or having obtained

an appropriate order of a Court of competent juris-

diction.

The evidence also showed that alternative forums

for political advertising are readily available in the

area, including the use of coffee parties, newspaper

advertising, a Community College television station,

handbills, brochures, and the like. Affidavits of both

novice and experienced politicians stated that signs

are only one, and not necessarily the most effective,

means of political advocacy, and that the regulations

(including the aggregate area limitation [R.C. Code

§3.137(b)] and residential exclusion [R.C. Code

§3.139]) provide ample opportunity for use of signs

in Redwood City.’

REASONS FOR GRANTING THE WRIT

The question which this case presents is one of

first impression involving a matter of substantial and

considerable public interest, viz., the manner in which

an individual municipality may fashion a solution

to the prevalent local problems associated with the

use of political sign boards and posters. The issue is

not one of prohibition of a particular mode of expres-

sion, but the degree to which it legitimately may be

regulated within the confines of the time, place and

manner doctrine (Poulos v. State [1953], 345 U.S.

395; Cantwell v. Connecticut [1940], 310 U.S. 296;

Kovacs v. Cooper [1949], 336 U.S. 77; Cameron v.

Johnson [1968], 390 U.S. 611; Cor v. Louisiana

1To the extent, if at all, such affidavits were disputed, Peti-

tioners were cut off from trial thereof by the District Court’s

determination of the issues on summary judgment, and the Court

of Appeals’ holding that the aggregate area limitation and the

residential exclusion are per se unconstitutional.

[1965], 379 U.S. 536; Cor v. New Hampshire [1941],

312 U.S. 569; Adderly v. Florida [1966], 385 U.S. 39).

Moreover, this case involves an element of land

use regulation, in that the sign ordinance restricts

the use of political signs to certain portions of the

municipality (R.C. Code §3.139). Development of land

use regulations to soften the ever-increasing abra-

siveness of highly urbanized life is of paramount

importance to municipal governments throughout the

nation as evidenced by recent decisions of this Court

(Village of Belle Terre v. Boraas [1974], 416 U.S. 1,

Young v. American Mini Theatres, Inc. [1976], ..........

U.S. ....., 96 S. Ct. 2440, 44 U.S.L.W. 4999; Erzno-

znik v. City of Jacksonville [1975], 422 U.S. 205).

The decision of the Court of Appeals ignores this

important element, and instead establishes private

residential property as a Ist Amendment forum (Ap-

pendix B, p. 27).. The implications of that holding

are of grave concern to municipal government given

the recent determination that commercial speech is

entitled to Ist Amendment protection (Virginia State

Bd. of Pharmacy v. Virginia Citizens Consumer

Council, Inc. [1976], 96 S. Ct. , 48 L. Ed. 2d

346).

State and lower Court decisions conflict in certain

respects in this important area of regulation. While

there appears to be a preponderance of authority

2While Virginia State Bd., etc., supra, recognizes the viability

of time, place and manner restrictions, the Court of Appeals

decision essentially obliterates it, and municipalities may expect

commercial enterprises to capitalize on the holding. Indeed,

Respondents’ witness admitted that a sign company contributed

to the cost of this lawsuit.

holding unconstitutional absolute prohibition of polit-

ical signs (Pace v. Village of Walton Hills [1968],

15 Ohio St. 2d 51, 238 N.E. 2d 543; Peltz v. City of

South Euclid [1967], 11 Ohio St. 2d 128, 228 N.E. 2d

320; Farrell v. Township of Teaneck [1974], 126 N.J.

Super. 460, 315 A. 2d 424; Ross v. Goshi, 351 Fed.

Supp. 949 [D. Hawaii, 1972], other authority sup-

ports exclusion of political signs from residential

areas (Gibbons v. O'Reilly, 44 Misc. 2d 353, 253 N.Y.S.

2d 731 [Sup. Ct. 1964]; 'Town of Huntington v. Estate

of Schwartz, 63 Mise. 2d 836, 313 N.Y.S. 2d 918

[ Dist. Ct. 1970]). Moreover, the decisions of the Court

of Appeals herein throws doubt upon the validity of

almost any regulation of political signs when it is

noted that, in the same circuit, a district court in an

earlier decision upheld restrictions on political signs

when such restrictions conform to those placed on

outdoor signs generally (Ross v. Goshi, supra).

In recognizing, but determining insubstantial, the

legitimate public interests furthered by the regula-

tions, the Court of Appeals completely failed to

acknowledge the very real distinction between politi-

eal signs within the purview of the regulations, and

readily available modes of communication not so re-

stricted which are far less burdensome upon the

municipality. The distinction is crucial, for the con-

duct regulated by the City’s sign ordinances relates

to time, place and manner in the use of unattended

signs. By broadly characterizing political signs subject

to the ordinance as “virtually pure speech,’* the

8The authority relied upon by the Court involved prohibition

of a hand-held sign (Karp v. Becken, 477 Fed. 24 171 [9th

Cir., 1973] ).

Court relegated the public interests to such an inferior

position that the regulations fall by definition without

analysis (e.g., the “prior conditions” of inspection

fee, refundable deposit, and permit are made to ap-

pear as restrictions upon vocal utterances of persons,

ef., Hynes v. Mayor of Oradell [1976], .... U.S. —..,

96 S. Ct. 1755, 48 L. Ed. 2d 243). The burden imposed

upon the public by signs detached from the person is

substantial. The contested regulations, viewed in the

context of facts pertaining to the particular commu-

nity in which they are effective, and giving due regard

to the availability of alternative means of communi-

cation (Lloyd Corp. v. Tanner [1972], 407 U.S. 551,

567; Kovacs v. Cooper, supra), are readily seen as

reasonable. Conversely, the interests of a sign owner

in the message expressed by unattended signs is of

considerably less importance than that involved with

hand-held signs, leaflets, or other modes of speech

directly associated with the person. The “purity” of

the speech becomes diluted by disassociation with the

bearer of the message, and the municipality is left

with the problem created by the adulterated expres-

sive mode.

The limited exception to the foregoing might occur

when such signs are placed on an individual’s resi-

dential lot. But, in such circumstances, the counter-

vailing right of privacy of the neighbor is so great

as not to justify the use of signs in view of readily

available less abrasive but equally or more effective

alternative means of expression (Pell v. Procunter

[1974], 417 U.S. 817, 827-828), viz., neighborly per-

sonal communication. Placed in proper context, the

City’s sign ordinance thus regulates land use, “‘. . .

implicating 1st Amendment concerns only inciden-

tally and to a limited extent.” (Young v. American

Mint Theatres, Inc., supra, 49 L. Ed. 2d, at 327-328,

Mr. Justice Powell concurring; see, also, Village of

Belle Terre v. Boraas, supra).

The Court of Appeals thus failed to recognize the

crucial distinction between the nature of the signs

subject to the City’s ordinance and modes of com-

munication which the viewer reasonably can avoid

(cf., Erznozntk v. City of Jacksonville, supra). That

error causes conflict with decisions of this Court

protecting the right of privacy. Political advertising

in commercial and industrial areas (permitted under

the ordinance) can be avoided by “averting the eyes”

while traversing the area. However, it is in residen-

tial areas that political signs most particularly im-

pinge upon the right of privacy of others. In point

of fact, one cannot “avert the eyes.” Unlike the viewer

in Cohen v. Calif. [1971], 403 U.S. 15, relied upon

by the Court of Appeals, the dweller in residential

areas cannot walk away from the offensive visual

impingement. He can only avoid the impact of

political signs placed on neighboring properties

by restricting his personal use of his own property.

To avoid such signs, he must retreat to the

farthest corner of his own residence, or, at least, draw

his curtains or blinds. A suburban resident should

no more be required to wear blinders than earmuffs

(Kovacs v. Cooper, supra). Repetitive or continued

invasion of privacy is entitled to the highest degree

of protection (Rowan v. U.S. Post Office [1979], 397

U.S. 728). The visual attack of political signs pierces

and impinges beyond the outer boundaries of one’s

domain (id., 397 U.S., at 738). In residential areas,

the political advocate who uses signs forcefully in-

trudes upon the privacy of his neighboring captive

audience (Lehman v. City of Shaker Heights [1974],

419 U.S. 298, 307, Mr. Justice Douglas concurring).

In failing to make the aforementioned distinctions,

the Court of Appeals erroneously analogizes Redwood

City’s regulations to those prohibiting or unconstitu-

tionally burdening door-to-door solicitation or canvass-

ing (Schneider v. New Jersey [1939], 308 U.S. 147;

Hynes v. Mayor of Oradell, supra). Unless this Court

corrects the erroneous application of such authorities,

reasonable regulation of time, place and manner of

expression with respect to political signs, supported

by pertinent authorities (supra, pages 8-9), will be im-

possible.

CONCLUSION

WHEREFORE, Petitioners respectfully pray that

the Petition for Certiorari be granted.

Dated, Redwood City, California,

October 9, 1976.

Respectfully submitted,

Davip E. ScHRICKER,

City Attorney,

Attorney for Petitioners.

(Appendices Follow)

APPENDICES

Appendix A

United States Court of Appeals

for the Ninth Circuit

Alan L, Baldwin and George Q.'

Cannon, Jr.,

Plaintiffs-A ppellees,

Redwood City; Paul C. Keckley, as Nos. 75-1412

Mayor of Redwood City; and 75-3132

Charles Gyselbrecht, as Building

Official of Redwood City,

Defendants-A ppellants.

Alan L. Baldwin and George Q.

Cannon, Jr.,

Plaintiffs-A ppellants,

v. Nos. 75-3042

Redwood City; Paul C. Keckley, as 75-3529

Mayor of Redwood City; and

Charles Gyselbrecht, as Building

Official of Redwood City,

Defendants-A ppellees. ;

[Filed Sept. 14, 1976]

ORDER

Before: BrowNntnc and Cuoy, Circuit Judges,

and *Sxopli, District Judge

The petition for rehearing is denied.

*Honorable Otto R. Skopil, Jr., United States District Judge.

District of Oregon, sitting by designation.

Appendix B

United States Court of Appeals

for the Ninth Circuit

Alan L. Baldwin and George Q.

Cannon, Jr.,

Plaintiffs-A ppellants,

vs.

Redwood City; Paul C. Keckley, as| Nog. 75-1412

Mayor of Redwood City; and] 75-3132

Charles Gyselbrecht, as Building

Official of Redwood City,

Defendants-A ppellees.

Alan L, Baldwin and George Q.

Cannon, Jr.,

Plaintiffs-A ppellees,

vs.

Redwood City; Paul ©. Keckley, as

Mayor of Redwood City; and

Charles Gyselbrecht, as Building

Official of Redwood City,

Defendants-A ppellants. J

Nos. 75-3042

75-3529

[August 9, 1976]

Appeal from the United States District Court

for the Northern District of California

OPINION

Before: BrowntnG and Cuoy, Circuit Judges,

and Sxopi,* District Judge

BRrownino, Circuit Judge:

Alan L, Baldwin and George Q. Cannon, Jr., prop-

erty owners, residents, and registered voters of Red-

wood City, brought this action for injunctive and

declaratory relief challenging certain Redwood City

ordinances governing the display of temporary signs,

including political campaign signs, as violative of the

First Amendment. Baldwin and Cannon filed their

complaint less than a month before the April 9, 1974,

general election in Redwood City. They stated that

Redwood City’s temporary sign regulations has pre-

vented them from erecting signs on behalf of a candi-

date for Redwood City Council, subsequently defeated

in the April 1974 election.

Redwood City has adopted a detailed code govern-

ing the erection, location, amd maintenance of all

types of signs within the city. The challenged provi-

sions are found in a division of this code dealing with

“temporary signs,” which is reproduced in full in the

margin.’ It constitutes a succinct but comprehensive

*Honorable Otto R. Skopil, Jr., United States District Judge,

District of Oregon, sitting by designation.

1This division of the ordinance reads in full as follows:

DIVISION 6. TEMPORARY SIGNS

Sec. 3.133. Erection regulated.

Se bamilsel' ty tie artialo without complying with the

signs permitted this article without complying with the

provisions of II of division 3 of this article if

regulatory scheme controlling the use of temporary

signs.

they comply with the provisions of this division. (Ord. No.

1983, art. 8, § 8.1)

See. 3.134. Uses.

Temporary signs shall be used solely for the purpose of

advertising an event occurring on a specific date, such as

elections, theatrical and circus performances and special sales

by retaii stores. (Ord. No. 1083, art. 8, § 8.2)

See. 3.135. Maximum length of time to be maintained.

Temporary signs shall not be maintained for a period in

excess of sixty days, and in no event shall such signs be

maintained more than ten days after the happening of the

event advertised thereon. (Ord. No. 1083, art. $ § 8.3)

See. 3.136. Permit required to erect; application; inspection

fee; cash deposit or bond.

No person shall erect or maintain any temporary sign until

a permit therefor has been secured from the building inspec-

tor. Applications for a temporary sign permit shall be made

on forms provided by the building inspector and shall be

accompanied by a nonrefundable inspection fee of one dollar

for each sign.

Every application for a temporary sign sha!l be accompa-

nied by a cash deposit of five dollars for each temporary

sign proposed to be erected to assure removal of such signs

in aceordance with the provisions of section 3.135. On the

failure to remove the signs as required by section 3.135, the

deposit shall be forfeited to the city; otherwise, the building

inspector shall cause the deposit to be refunded. In lieu of

a cash deposit, the building inspector may accept a bond,

executed by 2 corporate surety authorized to do business in

the state and conditioned upon removal of the temporary

signs in compliance with the provisions of section 3.135.

(Ord. No. 1083, art. 8, § 8.4)

See. 3.137. Maximum area.

(a) No temporary sign shall exceed sixteen square feet in

area. The aggregate area of all temporary signs placed or

maintained on any parcel of real property in one ownership

shall not exceed eighty square feet.

(b) The aggregate area of all temporary signs placed

or maintained within the city advertising a single event or,

in the event of an election, for any candidate or ballot issue,

shall not exceed sixty-four square feet. (Ord. No. 1083, art.

8, § 8.5; Ord. No. 1304, § 18)

See. 3.138. Placement on public property.

No temporary sign shall be permitted on or to extend over

any public property; provided, however, that the building

i or may issue a permit for the erection or maintenance

of ers, flags, bunting and similar devices over any public

Temporary signs are exempt from provisions of the

general sign ordinance imposing design and structural

controls upon signs (section 3.133). Temporary signs

may be used only for advertising an event occurring

on a specific date “such as elections” (section 3.134).

They may be maintained for no more than 60 days,

and must be removed within 10 days after the adver-

tised event (section 3.135). A permit must be obtained

for each temporary sign. Every application for a per-

mit must be accompanied by a $1.00 nonrefundable

inspection fee and a $5.00 refundable deposit to as-

sure removal (section 3.136). No temporary sign may

exceed 16 square feet (section 3.137(a)). The aggre-

gate area of such signs on any parcel in one owner-

ship may not exceed 80 square feet (Jd.). The

aggregate area of such signs advertising a single can-

didate or issue may not exceed 64 square feet (section

3.137(b)). No such sign is permitted on public prop-

erty (section 3.138). None is permitted in a residen-

tial zoned district of the city (section 3.139). The

building inspector may after 24 hours’ written notice

remove any sign erected in violation of the ordinance,

and “without notice, remove any temporary sign

right of way if he finds that such device is to be maintained

in connection with an event of a general civil and public

nature conducted within the city. The building inspector may

establish conditions on such permit as may be necessary to as

sure compliance with the purposes of this article. (Ord. No.

1083, art. 8, § 8.6) ae

See. 3.139. Prohibited in residentially zoned districts.

No temporary sign shall be placed or maintained in the

zoning districts mentioned in section 3.121. (Ord. No. 1083,

art. 8, § 8.7)

which is erected, placed or maintained in violation

of this article in any zoning district” (section 3.89).’

On cross motions for summary judgment the dis-

trict court declared unconstitutional the nonrefund-

able $1.00 inspection fee for each sign, the limitation

to 64 square feet of the aggregate area of all signs

on behalf of a candidate or ballot proposition, and the

ban on placing such signs in residential areas. On

subsequent motions for summary judgment the court

sustained the requirement of a $5.00 refundable de-

posit per sign and the provision for summary removal

of signs placed in violation of the ordinance. After

trial, the court also sustained the requirement that

a permit be obtained for each temporary sign, the

limitation of the area of each sign to 16 square feet,

2Section 3.89 provides:

All signs, including signs installed prior to the adoption

of this article, shall be constantly maintained in a state of

of security, safety and good repair. If the building inspector

finds that any sign is unsafe or insecure, is a menace to the

public safety or has been constructed, erected, relocated or

altered after the effective date of this article in violation

of the provisions hereof, he shall give written notice to the

owner or the tenant of the property wherein it is located to

remove or alter such sign. If the owner or tenant fails to

comply with the provisions of this article within ten days

after such notice, the building inspector may cause such

sign to be removed, and the cost thereof shall be paid by

the owner or tenant. The building inspector may cause any

sign which is an immediate peril to persons or property to

be removed summarily and without notice.

Notwithstanding the foregoing, the building inspector may

remove any sign erected, placed or maintained in violation

of this article if the owner of the property on which the sign

is erected fails to remove such sign after 24 hours written

notice to do so. In addition, the building inspector may sum-

marily, without notice, remove any temporary sign which is

erected, placed or maintained in violation of this article in

any zoning districi. (Ord. No. 1083, art. 3, § 3.5; Ord. No.

1140, § 2; Ord. No. 1304, § 3)

and the limitation of the aggregate area of all signs

on a single parcel of property to 80 square feet. Both

sides appeal.*

There are two preliminary matters.

A. On July 8, 1975, the district court entered an

order granting a motion for summary judgment up-

holding certain of the challenged provisions. Issues

relating to the constitutionality of other provisions

were tried to the court. Final judgment was entered

on July 30, 1975. The notice of appeal filed by Bald-

win and Cannon states that the appeal is “from the

judgment entered in this action on July 30, 1975... .”

Redwood City officials argue that Baldwin and Can-

non waived their right to appeal the July 8 order

because that order was not expressly incorporated

in the final judgment, and Baldwin and Cannon did

not file a separate notice of appeal within 30 days of

the “final” order of July 8 as required by Federai

Rule of Appellate Procedure 4(a). We disagree, The

order of July 8 denied Baldwin and Cannon’s prayer

for injunctive relief as to provisions sustained by

®The district court dismissed the action as to Redwood City on

the ground that a municipal corporation is not a “person” within

the meaning of 42 U.S.C. § 1983. Baldwin and Cannon do not

challenge this ruling. See City of Kenosha v. Bruno, 412 U.S.

507 (1973). Remaining as defendants were Paul C. Keckley and

Charles Gyselbrecht, who were sued in their official capacity of

Mayor and Building Official of Redwood City, respectively.

Apparently Mr. Keckley is no longer Mayor of Redwood City.

Rule 25(d) of the Federal Rules of Civil Procedure provides for

automatic substitution of his successor as a party. Substitution is

appropriate since it was admitted and the district court found

that occupants of the office had enforced and would continue to

enforce the temporary sign regulations.

the order. Although the order was interlocutory, it

was nevertheless appealable.t Baldwin and Cannon

lost their right to an interlocutory appeal from the

July 8 order because they did not file a notice of

appeal within 30 days.° But an interlocutory appeal

is permissive, not mandatory. When an appeal is not

taken, the interlocutory order merges in the final

judgment and may be challenged in an appeal from

that judgment.®

B. The complaint alleged that Baldwin and Can-

non were supporters of Melvin Kerwin, candidate

for the Redwood City Council in the 1974 election,

and were prevented by the challenged ordinance from

erecting signs of the size and at the locations they

desired in support of Kerwin’s candidacy. The elec-

tion has been held. Kerwin was defeated and, alleg-

edly, will not run again. Redwood City officials argue

that the case is moot, relying upon Golden v. Zwick-

ler, 394 U.S. 103 (1969). Zwickler challenged a state

statute barring distribution of anonymous literature

in an election campaign. Not only had the election

been held, but Zwickler’s opposition was directed

solely against a particular congressman, who had

since been appointed to a 14-year term as a state

#28 U.S.C. § 1292(a)(1). See EEOC v. International Long-

shoremen’s Ass’n, 511 F.2d 273, 276 (5th Cir. 1975); Abererom-

bie & Fitch Co. v. Hunting World, Inc., 461 F.2d 1040, 1041 (2d

Cir. 1972).

5George v. Victor Talking Mach. Co., 293 U.S. 377, 378-79

(1934); Bowles v. Rice, 152 F.2d 543, 544 (6th Cir. 1946).

®Adamian v. Jacobsen, 523 F.2d 929, 931 (9th Cir. 1975);

9 Moore’s Federal Practice § 110.18 (1975 ed.).

supreme court justice. It was therefore “most un-

likely” that. he would be a candidate again. On these

facts, the Supreme Court concluded that an “actual

controversy” of sufficient “immediacy and reality” to

warrant issuance of a declaratory judgment was

lacking.

This case is different. Baldwin testified that he was

engaged actively in politics in the Redwood City area

for nearly 20 years. He has participated, and made

use of political signs, in both partisan and nonparti-

san elections, including elections for the Redwood

City Council and the board of Redwood City high

school. He has supported candidates other than Mel-

vin Kerwin— indeed, has been a candidate himself.

He testified that there would be future occasions in

which he would want to use such political posters in a

manner prohibited by the chailenged provisions. The

district court found that Redwood City officials would

continue to enforce the challenged provisions against

Cannon or other persons wishing to erect political

campaign posters in future municipal elections. Thus,

the record established Baldwin’s continuing interest

in local political campaigns involving the use of sv a

signs and a continuing determination on the part of

Redwood City officials to enforce the ordinances. On

these facts, a future confrontation is likely; an im-

mediate and real controversy exists. Moreover, given

the frequency and brevity of local political campaigns

and the length of time required to complete judicial

proceedings, the issue is one ‘‘capable of repetition,

yet evading review.” Southern Pacific Terminal Co. v.

ICC, 219 U.S. 498, 515 (1911).’ These appeals are

not moot.

Before considering the district court’s rulings on

each of the challenged provisions, we state our under-

standing of the tests to be applied.

Both the parties and the district court rely upon

concepts drawn from cases involving challenges to

state and local statutes under the Equal Protection

Clause. The Supreme Court has employed a different

analysis in evaluating governmental restrictions on

free speech. In First Amendment cases involving

statutes similar to Redwood City’s temporary sign

regulations, the Court’s approach has been one of

balaneing rather than classifying.* The following gen-

eral rule may be drawn from decisions in which state

and municipal enactments have been weighed against

the First Amendment: Incidental restrictions upon

the exercise of the First Amendment rights may be

imposed in furtherance of a legitimate governmental

interest if that interest is unrelated to suppression

of expression and is substantial in relation to the

7See Storer v. Brown, 415 U.S. 724, 737 n.8 (1974), and cases

there cited; Webster v. Mesa, 521 F.2d 442, 443 (9th Cir. 1975).

The “capable of repetition, vet evading review” doctrine provides

an independent ground for holding this case not to be moot.

Thus, even though most of the evidence of a continuing interest

in Redwood City politics was provided by Baldwin, we will de

cide the issues raised by both plaintiffs. See Rosario v. Rocke

feller, 410 U.S. 752, 756 n.5 (1973).

8For recent examples of explicit use of a First Amendment bal-

ancing test by the Supreme Court, see Erznoznik v. Jacksonville,

422 U.S. 205, 208 (1976); Bigelow v. Virginia, 421 U.S. 809, 826

(1975); Pell v. Proeunier, 417 U.S. 817, 824 (1974).

restrictions imposed, and if the restrictions are no

greater than necessary or essential to the protection

of the governmental interests.°®

Significant First Amendment interests are involved

in this case. Communication by signs and posters is

virtually pure speech.’® The element of conduct in a

sign posted on behalf of an issue or candidate during

a campaign is minimal. Baldwin and Cannon seek to

use posters in political campaigning, and ‘‘the con-

stitutional guarantee has its fullest and most urgent

application precisely to the conduct of campaigns for

political office.” Monitor Patriot Co. v. Roy, 401 U.S.

265, 272 (1971)."* Posters and signs are erected

adjacent to “traditional first amendment forums,

such as public sidewalks and other thoroughfares,”

Aiona v. Pai, 516 F.2d 892, 893 (9th Cir. 1975),

where ‘‘expressive activity may be restricted only for

weighty reasons.” Grayned v. City of Rockford, 408

®See Young v. American Mini Theatres, Inc., 96 S.Ct. 2440,

2453 (1976) (Powell, J., concurring); Proeunier v. Martinez, 416

U.S. 396, 409-15 (1974); United States v. O’Brien, 391 U.S. 367,

377 (1968); Quaker Action Group v. Morton, 516 F.2d 717, 725

(D.C. Cir. 1975).

10Karp v. Becken, 477 F.2d 171, 176 (9th Cir. 1973); See

Ross v. Goshi, 351 F. Supp. 949, 953 (D. Hawaii 1973); Dulaney

v. Municipal Court, 11 Cal.3d 77, 83-84, 520 P.2d 1, 5-6, 112

Cal.Rptr. 777, 781-82 (1974). The significance of this fact is

that the extent of permissible regulation significantly increases

as the mode of expression moves from pure speech to speech com-

bined with conduct. California v. LaRue, 409 U.S. 109, 117

(1973).

11See Buckley v. Valeo, 96 S.Ct. 612, 632 (1976).

12S8ee Schneider v. State, 308 U.S. 147, 163 (1939). The gov-

ernment’s power to restrict expression is not enhanced by the fact

that signs are posted on private rather than public property. Cf.

Stone, Fora Americana: Speech in Public Places, 1974 Sup. Ct.

Rev. 233, 256-58.

“~

U.S. 104, 115 (1972).** Redwood City’s regulations

inhibit the use of political signs in two principal

ways: the permit and free requirements make it dif-

ficult to post signs’*; and various other restrictions

on their face limit the quantity, size, and placement

of signs. The regulations thus directly infringe the

First Amendment rights of individuals who want to

express political opinion in a traditional First Amend-

ment forum.

The governmental interests relied upon to support

the challenged regulations are public safety, order,

and cleanliness, aesthetics and the quality of commu-

nity life; administrative convenience; and equalization

13See Lloyd Corp. v. Tanner, 407 U.S. 551, 559 (1972); cf. Leh-

man v. City of Shaker Heights, 418 U.S. 298, 302-03 (1974). In

Lehman, the Court upheld a ban on political advertisements in

municipally owned street cars after determining that the city’s

policies on access to the transit advertising space were not “arbi-

trary, capricious or invidious.” The Court explained its use of

this lenient standard of review by stating. “[h]ere, we have no

open spaces, no meeting hall, park, street corner, or other public

thoroughfare. Instead, the city is engaged in commerce.” Id. at

303. The Court concluded “tnjo First Amendment forum is here

to be found.” Id. at 304.

14Two candidates in a San Mateo Community College District

Governing Board election filed uncontradicted affidavits stating

that the Redwood City temporary sign regulations had ham-

pered their efforts to mount a vigorous political sign campaign.

One stated that an investigation of Redwood City’s requirements

for political signs led to the conclusion that they are “cumber-

some, expensive and inhibiting.” The second candidate asserted

“that the permit procedure in Redwood City was so difficult, com-

plicated, expensive and restrictive as to virtually prohibit the

use of political signs by my supporters in that city.” The affi-

showing that Redwood City regulations are so burdensome as to

prevent extensive use of political They simply asserted

that posters erected in commercial districts are seen by most

Redwood City residents and that effective alternatives to political

posters are available.

of opportunity among political candidates. The latter

interest looks to the content of the communication,

and thus involves suppression of communication."

The remaining interests are unrelated to suppression

of free expression, and are legitimate concerns of

government. Obviously they vary greatly in import-

ance, both as general objects of government and as

justifications for the particular regulations involved

here. The relative significance of these interests, and

the importance of the challenged regulations to their

realization must be considered in determining the

validity of the particular regulations. In such a case

as this

the courts should be astute to examine the effect

of the challenged legislation. Mere legislative

preferences or beliefs respecting matters of pub-

lie convenience may well support regulation

directed at other personal activities, but be in-

sufficient to justify such as diminishes the exer-

cise of rights so vital to the maintenance of

democratic institutions.

Schneider v. State, 308 U.S. 147, 161 (1939).’*

Careful consideration must also be given to whether

the challenged regulation is either more inclusive or

more burdensome than necessary to further legitimate

15Cf. Buckley v. Valeo, 96 S.Ct. 612, 634 (1976).

i6After reviewing the relevant cases, one commentator con-

eluded that the Supreme Court uses the most rigorous version of

its First Amendment balancing test “for relatively familiar or

traditional means of expression, such as pamphlets, pickets, pub-

lie speeches and rallies . "a eategory that includes political

posters and signs. Ely, Flag Desecration: A Case Study in the

Roles of Categorization and Balancing in First Amendment

Analysis, 88 Harv. L. Rev. 1482, 1488 (1975).

governmental purposes. “[I]n the First Amendment

area ‘government may regulate . . . only with narrow

specificity.’” Hynes v. Mayor and Council of Borough

of Oradell, 96 S. Ct. 1755, 1760 (1976), quoting

NAACP v. Button, 371 U.S. 415, 433 (1963). In ad-

dition, the regulation must be the least restrictive

means available that would accomplish the legislative

purpose. “For even when pursuing a legitimate inter-

est, a State may not choose means that unnecessarily

restrict constitutionally protected liberty. ... If the

State has open to it a less drastic way of satisfying

its legitimate interests, it may not choose a legislative

scheme that broadly stifles the exercise of fundamen-

tal personal liberties.” Kusper v. Pontikes, 414 US.

51, 58-59 (1973) (citations omitted).'’ “The question

in this case is not whether some support for the regu-

lations may be adduced, by reference to evidence in

the record and a claim of reasonable inferences or

concerns, but is whether the regulations at issue here

are ‘unnecessarily restrictive for the purpose they

were designed to serve.’” Quaker Action Group v.

Morton, 516 F.2d 717, 723-24 (D.C. Cir. 1975), quoting

Quaker Action Group v. Morton, 460 F.2d 854, 860

(D.C. Cir. 1971).”*

The Redwood City officials rely heavily upon deci-

sions sustaining municipal restrictions upon door-to-

door canvassing and use of sound trucks. These modes

17See Procunier v. Martinez, 416 U.S. 396, 413 (1974) ; United

States v. O’Brien, 391 U.S. 367, 377 (1968).

18For application of these principles to sign ordinances, see

Farrell v. Township of Teaneck, 126 N.J. Super. 460, 315 Ad

424 (1974); Peltz v. City of South Euclid, 11 Ohio St. 2d 128,

228 N.E.2d 320 (1967).

of expression involve intrusions upon privacy sig-

nificantly more egregious and difficult to avoid than

posters. Decisions sustaining regulation of canvassing

and soliciting rest in part upon the importance of pro-

tecting “the householder’s right-to-be-let-alone.” Hynes

v. Mayor and Council of Borough of Oradell, supra,

96 S. Ct. at 1760. Similar considerations support the

validity of regulations prohibiting sound track emit-

ting “loud and raucous noises.” “The unwilling lis-

tener is not like the passer-by who may be offered

a pamphlet in the street but cannot be made to take it.

In his home or on the street he is practically help-

less to escape this interference with his privacy by

loud speakers except through the protection of the

municipality.” Kowacs v. Cooper, 336 U.S. 77, 86-87

(1949).'° Posters, on the other hand, do not invade

the home. They can be avoided simply by not looking.

As the Court noted in Erznoznik v. City of Jackson-

ville, 422 U.S. 205 (1975), “[m]ucu that we encounter

offends our esthetic, if not our political and moral,

sensibilities,” but “the burden normally falls upon the

viewer to ‘avoid further bombardment of [his] sensi-

bilities simply by averting [his] eyes.” Jd. at 210-11,

quoting Cohen v. California, 403 U.S. 15, 21 (1971).

It is true, as the city officials argue, that means

other than posters are available for communication

between candidates and the community. The existence

of such alternatives is not alone enough to justify

19For cases striking down regulations of loud speakers, see

Saia v. New York, 334 U.S. 558 (1948); Wollam v. City of

Palm Springs, 59 Cal.2d 276, 379 P.2d 481, 29 Cal Rptr. 1

(1963).

any regulation the city may desire to impose upon

this means of expression.”® It is, however, a factor to

be considered in striking the appropriate accommoda-

tion between free speech and legitimate governmental

interests.”' Its significance depends upon the nature

of the First Amendment interest involved in the par-

ticular case, the purpose and the extent of the restric-

tion imposed, and the availability of less restrictive

means of accomplishing the legitimate governmental

objective. As we have said, the First Amendment

interests involved in the display of political posters

adjacent to public thoroughfares are substantial.

Moreover, means of political communication are not

entirely fungible; political posters have unique ad-

vantages. Their use may be localized to a degree that

radio and newspaper advertising may not. With excep-

tion of handbills, they are the least expensive means

by which a candidate may achieve name recognition

among voters in a local election.”

III

Baldwin and Cannon have not attacked the entire

regulatory scheme. We refrain from considering the

20Quaker Action Group v. Morton, 516 F.2d 717, 733 n.49(a)

(D.C. Cir. 1975); see Schneider v. State, 308 U.S. 147, 163

(1939).

21See Buckley v. Valeo, 96 S.Ct. 612, 634 n.17 (1976); Pell v.

Proecunier, 417 U.S. 817, 824-25 (1974); Bread v. Alexandria,

341 U.S. 622, 631-32 (1951); Kovaes v. Cooper, 336 U.S. 77,

89 (1949); Cox v. New Hampshire, 312 U.S. 569, 575 (1941).

See also Kleindienst v. Mandel, 408 U.S. 753, 765 (1972).

22('f. Kleindienst v. Mandel, 408 U.S. 753, 765 (1972); Martin

v. City of Struthers, 319 U.S. 141, 145-47 (1943); Van Nuys

Publishing Co. v. City of Thousand Oaks, 5 Cal.3d 817, 823-

24, 489 P.2d 809, 813, 97 Cal.Rptr. 777, 781 (1971); Stone,

supra note 12, at 256-57.

validity of particular aspects of the scheme not chal-

lenged. These include, among others, the restriction

of the period during which “temporary signs” may

be displayed.

The requirements challenged by Baldwin and Can-

non are of three kinds. The first are preconditions to

the erection of temporary signs: a permit application

must be filled out, a $1.00 inspection fee must be paid,

and a $5.00 refundable deposit must be made. The

second group includes limitations on the use, place-

ment, and size of political signs: the aggregate area

of signs per candidate or ballot issue is limited to 64

square feet, individual signs are limited to 16 square

feet, the aggregate area of signs per parcel of prop-

erty is limited to 80 square feet, and no signs are

permitted in residential areas. Finaliy, Baldwin aud

Cannon challenge the provision authorizing summary

removal of signs placed in violation of the other

regulations.

We first consider the limitation on the maximum

size of individual signs and upon the aggregate area

of signs because the conclusion we re. ch as to the

validity of these provisions affects the validity of

others.

We have no difficulty agreeing with the district

court that the limitations of individuals signs to a

maximum area of 16 square feet and the aggregate

are. of signs on a single parcel to 80 square feet do

not offend the First Amendment.

Neither limitation significantly deters the exercise

of First Amendment rights; they are comparable to

the decibel restriction on sound trucks upheld in

Kovacs v. Cooper, supra. Neither is related in any

way to the content of the posters. Their effect upon

the quantity of expression is remote. Larger signs

may be erected by complying with structural and de-

sign requirements applicable to other than temporary

signs; and there is nothing in the record to suggest

that the numbers of parcels in separate ownership in

Redwood City is so limited that the 80 square foot

per parcel limit imposes any significant restriction

on the total exposure a candidate can obtain. Baldwin

himself testified that he used signs slightly smaller

than 16 square feet in the Kerwin campaign in 1974

and was satisfied with the size; he also testified that

although he had placed more than 80 square feet of

signs on a piece of property on occasion, it was im-

probable that he would want to do so often.

Both limitations contribute to the appearance of

the community and further other legitimate municipal

interests. “Temporary signs” are not required to meet

design and structural requirements. The 16 square

feet limitation on such signs is based upon Redwood

City’s experience with the effects of the elements, par-

ticularly the wind, upon unreinforced signs of various

sizes. This legitimate interest might be served as well

by slightly less restrictive size limitations, but “[s]uch

distinctions in degree become significant only when

they can be said to amount to differences in kind.”

Buckley v. Valeo, 96 S.Ct. 612, 640 (1976). The city

officials justify the aggregate sign area limitation of

80 square feet per lot as reducing accumulation of

debris and minimizing traffic hazard. The relationship

of the restriction to these interests is attenuated and

the unavailability of less restrictive alternatives ques-

tionable, but the burden imposed on free speech by

this restriction is so minimal that generous allowance

may be made for municipal preferences.

The district court also was clearly correct in hold-

ing unconstitutional the limitation of the aggregate

area of posters on behalf of a single candidate or issue.

Because the restriction is keyed to a particular can-

didate or issue, it rests upon the message conveved

by the posters. It severely restricts the extent to which

supporters of a particular candidate or issue may

communicate with the voters through this medium.

Only four posters of the modest size of 16 square feet

may be posted “for any candidate or ballot issue” in

the whole of Redwood City—an area of more than 20

square miles with a population in excess of 55,000.

Most important, like the limitations on campaign

expenditures held unconstitutional in Buckley v. Va-

leo, supra, Redwood City’s limitation on the aggregate

area of posters that may he erected in support of any

candidate or issue “restrict[s] the quantity of cam-

paign speech by individuals, groups, and candidates,”

and therefore “limit[s] political expression ‘at the

core of our electoral process and of the First Amend-

ment freedoms.’” Jd. at 644. quoting Williams v.

Rhodes, 393 U.S. 23, 32 (1968). Such a restriction

ean be upheld only if the “the governmental inte sts

advanced in its support satisfy the exacting serutinv

applicable to limitations on core First Admendment

7 20

rights of political expression.” Buckley v. Valeo,

supra, 96 S.Ct. at 647.”

One of the asserted objectives of the aggregate size

limitation is to equalize the political opportunities of

poorer candidates by limiting the number of posters

that may be erected by those who are better financed.

“But the concept that government may restrict the

speech of some elements of our society in order to

enhance the relative voice of others is wholly foreign

to the First Amendment. . . .” Id. at 649.

No substantial privacy interest is involved. To a

large extent the intrusion may be avoided at the will

of the observer.

Any relationship between the aggregate area of

temporary signs and traffic safety is far too imprecise

to justify the restriction as ae traffic regulation. The

availability of less restrictive means is demonstrated

by another ordinance specifically prohibiting the erec-

tion of signs that may obstruct the vision of drivers

or interfere with traffic.** City officials suggest that

23A dollar ceiling on campaign expenditures restricts the use

of virtually all means of communication. Buckley v. Valeo, 96

S.Ct. 612, 634 n.17 (1976). The limitations imposed by Redwood

City on temporary signs, on the other hand, do not affect the use

of handbills, newspapers, radio, or television. As suggested ear-

lier, however, posters are a unique form of political communica-

tion for which, in many situations, there may be no adequate

substitute. Moreover, as the Court also noted. id., there is a

vital difference the manner in which a mode of com-

munications is employed (limiting the decibels emitted by a

sound truck, for example), and, regulating the extent of the

proper use of a mode of communication.

24Section 3.87 of Article II of the Redwood City Code pro-

vides: “No shall be erected so as to obstruct the vision of

vehicular t or at any location where it may interfere with,

or be confused with, any ‘traffic signal or device.”

this provision deals only with obstruction, and that

posters may also be distracting. Considering the uni-

verse of distractions that face motorists on our city

streets, temporary political posters are not sufficiently

significant to justify so serious a restriction upon

political expression.

Much the same analysis applies to the city’s legiti-

mate interest in the cleanliness and good order of its

streets. There are alternate means of accomplishing

this end that are substantially less restrictive of free-

dom of expression. Redwood City can and does im-

pose an obligation upon owners or tenants of property

to remove or alter unsafe or insecure signs.”° Redwood

City also requires that those who post temporary

signs to remove them no later than 10 days after the

advertised event. If these measures are not wholly

successful, the minimal burden of removing the resid-

ual litter is a price of free expression the city must

bear.”

~Ihe remaining interest advanced in support of the

limitation to 64 square feet of the aggregate area of

posters erected in Redwood City is aesthetics—the

preservation of Redwood City as an attractive place

to live and work. We do not dispute the importance

of this interest.27 However, temporary signs are used

primarily in connection with elections, which occur

relatively infrequently, and the city has further di-

25See note 2.

26('f. Schneider v. State, 308 U.S. 147, 162 (1939).

= Cae v. American Mini Theatres, Inc., 96 S.Ct. 2440, 2452-

53 (1976); Village of Belle Terre v. Boraas, 416 US. L, 5-6

(1974); Berman v. Parker, 348 U.S. 26, 33 (1954).

minished the problem by limiting the period during

which a temporary sign may be displayed to 60 days

and requiring removal 10 days after the election.

Moreover, it is not beyond the power of the city to

impose design restrictions that would bar the more

unsightly posters, without impairing political expres-

sion. The margin of offensiveness to the taste of some

that cannot be avoided by these less restrictive alter-

natives already used or available to the city does not

justify the virtual ban upon political posters imposed

by the 64 square feet limitation.*

The invalidity of the 64 square foot limitation af-

fects the burdensomeness, and hence the constitution-

ality, of the preconditions Redwood City imposes upon

erection of temporary signs: filing an application,

paying a $1.00 inspection fee, and depositing a $5.00

removal charge, for each sign. Applied to four 16-

square-foot signs, the burden of compliance may be

inconsequential. Applied to the number of political

posters that would nermally be used in supporting

a candidate or issue in a community the size of Red-

wood City, the burden is so great as to inhibit the

use of this means of communication. Moreover, each

of the three requirements, when examined in light of

28Accord Ross v. Goshi, 351 F. Supp. 949 (D. Hawaii 1972);

Peltz v. City of South Euclid, 11 Ohio St.2d 128, 228 N.E.2d 320

(1967). The regulations held invalid in these cases prohibited

political signs entirely. Redwood City officials argue that only

total prohibition, as distinguished from regulation, of a mode of

expression offends the First Amendment. The distinction is arti-

ficial. In a sense, “{a]ll regulatory legislation is prohibitory.”

Bread v. Alexandria, 341 U.S. 622, 631 (1951). The question

is whether, on balance, a regulation of either kind unduly re-

stricts First Amendment rights.

its purpose, is unnecessarily burdensome and contains

an element of arbitrariness.

A single application form is used for all signs;

there is no separate application for temporary signs

alone. The form calls for detailed information which

appears burdensome to obtain. It is conceded that

most of this information is irrelevant to temporary

signs.**® Indeed, city officials testified they do not

require that this information be furnished to obtain

a permit for a temporary sign, and applicants who

appear in person to apply for such signs are so ad-

vised. But the form is also mailed to those who call

or write; it may be completed and returned by mail;

and it is headed “only complete application ac-

cepted.’

2°The form states, for example:

Each application for a Sign Permit must be accompanied

with duplicate copies of the following information:

1. A Plot Plan showing the position of the sign and

its relation to structures and other signs on the property.

2. Plans and Specifications for the sign and showing the

method of attachment or anchorage.

3. Stress sheets and calculations prepared by a Civil

or Structural Engineer, licensed as such by the State of

California, when required.

Another portion of the form requires the applicant to provide

the fire zone, the lot frontage, the area of existing signs, area

of the proposed sign, the maximum height and width of the sign,

the “clearance to grade,” the maximum projection beyond the face

of the building or the street property line, and the vertical and

horizontal clearance from overhead electric lines.

20The form requires the applicant to certify that he has ob-

tained the written consent of the owner of the property on which

the sign is to be posted. Baldwin and Cannon do not object to

the requirement of consent, but argue that the further require-

ment that the consent be written is unduly burdensome. City

officials testified that individuals filing permit applications were

required to certify that they had obtained written consent, but

were not required to produce the written consents. The written

The city officials offered evidence that the average

cost of inspection is $10.00 per sign, including admin-

istrative expenses and the salaries of inspectors and

office personnel. The cost of inspection must vary

greatly depending upon the circumstances, The only

aspect of a temporary sign subject to inspection at the

outset is its size, which can be verified in a few moments

with a tape measure. A $1.00 fee for checking the size of

a single poster might be reasonable; but, as the district

court held, a $500 fee for inspecting 500 identical

political posters would be essentially arbitrary, bear-

ing no relationship to the cost. The absence of ap-

portionment suggests that the fee is not in fact

reimbursement for the cost of inspection but an un-

constitutional tax upon the exercise of First Amend-

ment rights.**

consent requirement imposes a substantial additional burden, par-

ticularly where it is desirable to employ a large number of small

posters, as is commonly the case in political campaigns. The prac-

tice followed by Redwood City of not requiring that the written

consents be produced indicates that its interest is adequately

served by a statement that the applicant has the property

owner’s consent. Whatever benefit may accrue to the city from

the requirement that the applicant certify that the consent is in

written rather than oral form is insufficient to justify the

heavy additional burdens imposed on the exercise of First Amend-

ment rights.

31Follett v. Town of McCormick, 321 U.S. 573, 575, 576-77

(1944); Murdock v. Pennsylvania, 319 U.S. 105, 113-14 (1943);

cf. Strasser v. Doorley, 432 F.2d 567, 569 (1st Cir. 1970). But see

ists) States Labor Party v. Codd, 527 F.2d 118, 119 (2d Cir.

1 .

The charge sustained in Cox v. Hampshire, 312 U.S. 569, 576-

77 (1941), was ——

The fee requi to be submitted with an application for a

permit for other than a temporary sign varies with the valua-

ey of the sign, including cost of installation. Redwood City

82.

According to city officials, the average cost of re-

mova] is $25.00 per sign, But again, a $5.00 removal

deposit has no reasonable relationship to the cost of

removing a single 50 cent political poster placed by

a property owner in his front yard, and the charge

is so disproportionately burdensome as to inhibit

such an expression of political opinion. The deposit

is returned if the sign is removed, but money is most

useful during a campaign. Requiring the commitment

for the duration of the campaign of $5.00 in cash,

or surety, for each poster erected would, as a practical

matter, preclude erection of all but a few large signs.

Means less restrictive of free expression must be relied

upon to serve the interests of community tidiness and

aesthetics.

In some circumstances a city may both require a

permit for activity involving free expression without

violating the First Amendment® and also collect fees

that fairly reflect costs incurred by the city in con-

82S¢e, ¢.g., Cox v. New Hampshire, 312 U.S. 569 (1941);

Quaker Action Group v. Morton, 516 F.2d 717, 726-27 (D.C.

Cir. 1975).

Both Crs and Quaker Action considered “iu of per-

mits for parades or organized demonstrations. e Court’s opin-

ion in Cox suggests that the regulatory problems posed by politi-

eal signs and posters are of a much lower magnitude than those

presented by parades and demonstrations. In Coz, the Court

noted that the state supreme court had }

thought it significant that the statute prescribed “no mea-

sures for controlling or suppressing the publication on the

highways of facts and opinions, either by speech or by writ-

ing”; that communication “by the distribution of literature or

by the display of placards and signs” was in no respect

regulated by the statute; that the regulation with respect

to and processions was applicable only “to organ-

i formations of persons using the highways”; and that

“the defendants, separately, or collectively in groups not

nection with such activity.** We affirm the district

court’s holding that Redwood City’s inspection fees

are invalid, and extend this holding to the removal

deposit and the permit system because the particular

regulations adopted by Redwood City are unneces-

sarily burdensome and arbitrary in light of the in-

terests such regulations may properly serve.

The district court invalidated the exclusion of tem-

porary signs from residential zones in Redwood City

because this provision constitutes a “total prohibi-

tion.”** There is Supreme Court language suggesting

that a form of free expression may not be barred

entirely from an area in which exercise of the right

of free speech has been traditional.** In any event,

constituting a parade or procession,” were “under no con-

templation of the Act.”

Cox v. New Hampshire, supra, 312 U.S. at 575. The Court also

observed that the New Hampshire Supreme Court had noted that

requiring application for a permit gave public authorities the

advance notice necessary for proper policing of a parade or

demonstration. Further, the state supreme court had observed

that by fixing time and place, “the license served ‘to prevent

confusion by overlapping parades or processions, to secure con-

venient use of the streets by other travelers, and to minimize

the risk of disorder.’” Jd. at 576. Political signs neither inter-

fere with use of the streets nor create a risk of disorder.

33Murdock v. Pennsylvania, 319 U.S. 105, 113-114 (1943);

Cox v. New Hampshire, 312 U.S. 569, 577 (1941).

34The Redwood City temporary sign regulations permit politi-

eal signs in residential areas, if the signs are placed inside a

house three feet back from a window. The district court appar-

ently concluded that allowing signs only if they are inside a

house and three feet back from windows is equivalent to not

allowing signs at all. We agree.

35In Schneider v. State, 308 U.S. 147 (1939), the Supreme

Court flatly stated that “one is not to have the exercise of his

liberty of expression in appropriate places abridged on the plea

that it may be exercised in some other place.” Id. at 163. i

statement was quoted with approval in Grayned v. City of

Rockford, 408 U.S. 104, 118-19 n.40 (1972).

such a regulation, like any other governmental inter-

ference with free speech, may be sustained only if it

is no more restrictive than necessary to further sig-

nificant government interests.

The city officials argue that the exclusion of politi-

cal signs from residential areas does not have a sub

stantially adverse inpact on candidates because

residents are exposed to such signs as they pass

through commercial areas of the city. This ignores

the right of residents to express their own views. Of

the two plaintiffs, apparently only Cannon owned

commercial property in Redwood City. Baldwin de-

sired to erect a poster in support of the Kerwin can-

didacy in his own front yard. He was prevented from

doing so by the challenged ordinance.*®

City officials advance two municipal interests in

support of the ban. They argue that “indiscriminate

use of political signs in such suburban residential

areas is entirely out of place with the zoning and

planning character of the community.” They add that

“such signs become much greater traffic hazards in

such areas by virtue of narrower street systems, street

trees, and sight distances at intersections.” But Red-

wood City has not attempted to regulate “indiscrimi-

nate use” of political signs in residential areas or

signs which create traffic hazards. Instead, the city

has completely barred use of such signs in such areas.

As we have noted in considering the 64 square foot

86For this reason city officials were not harmed by the failure

of the court to receive additional evidence bearing on the ade-

quacy of the exposure resulting from signs erected in commercial

areas.

aggregate area limitation, less restrictive means are

available to deal with litter, ugliness, and traffic haz-

ards. For these reasons, the only state supreme court

that has considered the problem has concluded that

total exclusion of political posters from residential

areas is invalid.** We agree.**

Baldwin and Cannon challenge the last paragraph

of section 3.89 of the Redwood City Code on the

ground that it violates due process by permitting sum-

mary seizure where there is no imminent danger to

persons or property.*® The city officials answer that

the summary seizure provision is used only against

87Pace v. Village of Walton Hills, 15 Ohio St.2d 51, 238 NE.

2d 543 (1968); see Farrell v. Township of Teaneck, 126 N.J.

Super. 460, 315 A.2d 424 (1974). See also Ross v. Goshi, 351

F. Supp. 949 (D. Hawaii 1972); Peltz v. City of South Euclid,

11 Ohio St.2d 128, 228 N.E.2d 320 (1967). Two lower court de-

cisions in New York are to the contrary. Gibbons v. O’Reilly,

44 Mise.2d 353, 253 N.Y.S.2d 731, (Sup. Ct. 1964); Town of

Huntington v. Estate of Schwartz, 63 Mise.2d 836, 313 N.Y.S.2d

918 (Dist. Ct. 1970). Both cases are criticized in Note, Archi-

tecture, Aesthetic Zoning, and the First Amendment, 28 Stan.

L. Rev. 179, 195 nn, 81-82 (1975).

38The Supreme Court’s recent decision in Young v. American

Mini Theatres, Inc., 96 S.Ct. 2440 (1976), is not to the contrary.

The plurality goes no farther than to assert that “commercial

exploitation of material protected by the First Amendment is sub-

ject to zoning or other licensing requirements.” Jd. at 2448 (em-

phasis added). Mr. Justice Powell, concurring, applies the bal-

ancing test announced in United States v. O’Brien, 391 U.S. 367

(1968), including the requirement that “the incidental restriction

on... First Amendment freedoms is no greater than is essential

to the furtherance” of “an important or substantial governmental

interest.” Young v. American Mini Theatres, Inc., supra, 96 S.Ct.

at 2456. Our holding that the exc'usion of political posters from

residential areas is invalid rests apon application of this same

test.

39See note 2.

signs that are “essentially abandoned.” But the provi-

sion on its face allows city officials to remove signs

summarily if in their opinion there is a violation of

the sign regulations. There is no evidence that sum-

mary removal is in fact employed only when signs

are abandoned or hazardous. On the contrary, evi-

dence was offered that signs supporting the Kerwin

candidacy were seized during the campaign because

they violated the ordinance. Such seizures appear to

be contemplated by section 3.89. The final sentence of

section 3.89’s first paragraph permits summary re-

moval of “any sign which is an immediate peril to

persons or property ....” Thus, unless the final sen-

tence of the section’s second paragraph, challenged

here, is superfluous, it must have been intended to

allow summary removal in situations where there is

no immediate threat of harm.

The summary seizure of a political sign for even a

few days can deprive the sign’s owner of an impor-

tant First Amendment liberty interest. During a

campaign, time is especially valuable. In the area of

regulation of obscenity and censorship of movies, the

Supreme Court has held that the Due Process guar-

antee prevents the erosion of First Amendment lib-

erties by procedures which sweep broadly and with

too little discrimination.“ The Court recently stated

40 'g., Freedman v. Maryland, 380 U.S. 51, 58-59 (1965);

seme Search Warrant, 367 US. 717, 731-32 (1961). See

Board of Regents v. Roth, 408 U.S. 564, 575 n14

(1972)

that its “[i]nsistence on rigorous procedural safe-

guards” for an administrative board assigned to

sereen stage productions is “ ‘but a special instance of

the larger principle that the freedoms of expression

must be ringed about with adequate bulwarks.’”

Southeastern Promotions, Ltd. v. Conrad, 420 U.S.

546, 561 (1975), quoting Bantam Books, Inc. v. Sul-

livan, 372 U.S. 58, 66 (1963). The protection of polit-

ical speech on signs and posters certainly is no less

important than the protection of the cinema from the

censor.*' The unlimited power of removal conferred

on city officials by the last sentence of section 3.89 is

unconstitutional because it does not attempt to ac-

commodate the city’s interest in removing improperly

placed signs with First Amendment rights.

To be sure, the precise nature of adequate safe-

guards against suppression of protected speech in

motion picture licensing or censoring will differ from

the safeguards appropriate for the removal of politi-

410f. United States v. Schiavo, 504 F.2d 1, 13-14 (3d Cir.

1974) (in bane) (Adams, J., concurring); Slate v. McFetridge,

484 F.2d 1169, 1176 (7th Cir. 1973).

42Redwood City’s provision for summary removal of signs would

also be unconstitutional if judged under the Supreme Court’s

decisions on summa. seizure of property. Of course, the prop-

erty interest of the owners of most political signs is not very

significant. Nevertheless, those decisions seem relevant because

it is reasonable to assume that free speec!: interests deserve at

least as much protection as property interests. Cf. States Marine

Lines, Ine. v. Shultz, 498 F.2d 1146, 1154 (4th Cir. 1974). The

last sentence of §3.89 would be invalid under the summary

seizure of property cases because it permits summary seizure

in other than “extraordinary situations,” Fuentes v. Shevin, 407

U.S. 67, 90-92 (1972), and with no “accommodation of the con-

flicting interests of the parties,” Mitchell v. W. T. Grant Co., 416

U.S. 600, 607 (1974); see North Georgia Finishing, Ine. v. Di-

Chem, 419 U.S. 601, 606-07 (1975).

cal signs. The question of whether a film is obscene

will usually be more difficult and more subjective than

the question of whether a sign violates a valid ordi-

nance. Thus, we do not hold that a prior adversary

hearing and expedited judicial review are necessary

to prevent the improper removal of political signs.

If a city official believes that a sign posted on private

property is illegal and there is no threat of immediate

harm, he should attempt to notify the sign’s owner.

If the owner of an allegedly illegal sign cannot be

found within a reasonable time, the sign may be

deemed to be abandoned. In fact, the Redwood City

Building official stated in an affidavit that summary

removal is necessary only in dealing with abandoned

signs because “there is no practicable method of ob-

taining knowledge as the ownership of said signs, or

the party responsible for placing the same on such

property.” The final sentence of section 3.89, however,

grants a much broader power of removal than nec-

essary to deal with abandoned signs. If the owner

of an allegedly illegal sign can be located, the interests

at stake may be reasonably accommodated if the city

official gives notice of his intention to remove the sign

with a brief statement of the official’s reason for be-

lieving the sign is illegal so the owner may make an

informal response or correct the problem.

The remainder of section 3.89 is not at issue. Our

ruling does not prevent Redwood City from sum-

marily removing signs that remained posted after the

post-election deadline for removal. Such signs may

properly be treated as abandoned. In any event, after

an election is over, the First Amendment interest in

political signs is minimal at most.**

We affirm the district court’s grant of summary

judgment to Baldwin and Cannon, holding the in-

spection fee, the ban on signs in residential areas, and

the limitation of the aggregate area of signs per can-

didate or ballot issue to be unconstitutional. We re-

verse the district court’s grant of summary judgment

to Redwood City officials, holding the refundable de-

posit requirement and tle summary removal provision

to be constitutional, and, on remand, the district court

is directed to enter summary judgment for Baldwin

and Cannon with respect to those two provisions, see

Morgan Guaranty Trust Co, v. Martin, 466 F.2d 593,

599-600 (7th Cir. 1972) ; International Longshoremen’s

& Warehousemen’s Union v. Kuntz, 334 F.2d 165,

167 (9th Cir. 1964). We reverse the district court’s

holding that Redwood City’s permit requirement is

constitutional. We affirm the district court’s holding

that the limitation on the area of individual signs and

the aggregate area of signs per parcel of property are

constitutional.

Affirmed in part, reversed in part, and remanded

for entry of an injunction consistent with this

opinion,

430n the basis of the record, we conclude that the district

court’s refusal to tax costs in favor of Baldwin and Cannon be-

cause their bill of costs was filed three days late was not an abuse

of discretion. Cf. Doran v. United States, 475 F.2d 742 (1st Cir.

1973); Dickson Supply Ine. v. Montana-Dakota Utilities Co., 423

F.2d 106, 110 (8th Cir. 1970). We therefore do not reach the

city official’s contention that the court erred in its initial decision

that Baldwin and Cannon were entitled to costs.

Appeudix C

In the United States District Court

for the Northern District of California

No. C-74-0610 SAW

Alan L. Baldwin and

and George Q. Cannon, Jr.,

Plaintiffs,

vs.

Redwood City; Paul C. Keckley, as

Mayor Redwood City; and Charles

Gyselbrecht, as Building Official of

Redwood City,

Defendants. ;

[July 29, 1975]

FINAL JUDGMENT

By partial judgment dated January 16, 1975, and

order dated July 8, 1975, the Court previously adjud-

icated all issues in this action with the exception of,

(1) the reasonableness of Section 3.137(a) of the

Municipal Code of the City of Redwood City, and

(2) the reasonableness of requiring a separate per-

mit application for each temporary political sign

sought to be erected ($1.136 of said Code), with re-

spect to which exceptions the Court determined, pur-

suant to order dated July 8, 1975, that material facts

remained in issue. This cause, with respect to the

aforesaid remaining issues, came on to be tried before

the Court on July 16, 1975. The evidence, both oral

and documentary, adduced by the parties having been

heard and received, said issues having been duly tried,

decision having been duly rendered, and the parties

having waived preparation of findings of fact and

conclusions of law, it is hereby,

ORDERED, ADJUDGED AND DECREED:

1. That judgment shall be, and the same is hereby,

granted for defendants with respect to the above men-

tioned remaining issues.

2. That Section 3.137(a) of the Municipal Code of

the City of Redwood City is reasonable, and does not

unlawfully or unconstitutionally deprive plaintiffs of

rights guaranteed by the lst or 14th Amendments to

the United States Constitution, nor does said section

unlawfully interfere with the exercise of those rights,

or otherwise.

3. That the provisions of Section 3.136 of the Mu-

nicipal Code of the City of Redwood City requiring

a separate permit application for each temporary

political sign sought to be erected are reasonable, and

do not unlawfully or unconstitutionally deprive plain-

tiffs of rights guaranteed by the Ist or 14th Amend-

ments to the United States Constitution, nor do said

provisions unlawfully interfere with the exercise of

those rights, or otherwise.

4. Except insofar as superseded by the permanent

injunction dated January 16, 1975, the preliminary in-

junction heretofore entered in this action on March

28, 1974, is hereby dissolved.

5. The partial judgment dated January 16, 1975,

the order dated July 8, 1975, and this final judgment,

fully adjudicate all the claims, rights and liabilities

of all the parties herein.

Dated: July 29, 1975

/s/ Stanley A. Weigel

Stanley A. Weigel, Judge

No, C-74-0610 SAW

PROOF OF SERVICE BY MATIi

I am a resident of the United States and a resident

of the County of San Mateo, California. I am over

the age of 18 years and not a party to the within

action. My business address is City Hall, Redwood

City, California.

On July 28, 1975, I served the within

FINAL JUDGMENT

on the attorneys for plaintiffs in said action, by plac-

ing a true copy thereof enclosed in a sealed envelope

with postage thereon fully prepaid, in the United

States Post Office mail box at Redwood City, Cali-

fornia, addressed as follows:

Graham & James

Attorneys at Law

One Maritime Plaza

San Francisco, California 94111

Attn: Wayne S. Canterbury, Esq.

I certify (or declare), under penalty of perjury,

that the foregoing is true and correct.

Executed on July 28, 1975, at Redwood City, Cali-

fornia,

/s/ Winnie Galatolo

(Signature)

Appendix D

In the United States District Court

for the Northern District of California

No. C-740610 SAW

Alan L, Baldwin and

George Q. Cannon, Jr.,

Plaintiffs,

Redwood City, et al.,

Defendants. ;

[July 8, 1975]

ORDER

Plaintiffs and defendants have previously moved

for summary judgment on all issues in this case, and

by Findings of Fact and Conclusions of Law, Per-

manent Injunction, and Partial Judgment, all dated

January 16, 1975, the Court disposed of those mo-

tions. Plaintiffs have now moved again for summary

judgment on the remaining issues, and defendants

have cross-moved for summary judgment. The matter

having come on for hearing on July 3, 1975, all par-

ties having been heard, and the Court navi ing con-

sidered,

IT IS HEREBY ORDERED that the motion of

plaintiffs is entirely denied.

IT IS FURTHER ORDERED that, insofar as it

pertains to §§3.80 through 3.84 and 3.89 of the Mu-

nicipal Code of the City of Redwood City, the motion

of defendants is granted.

IT IS FURTHER ORDERED that, insofar as it

pertains to the provision for a refundable deposit of

$5.00 per sign contained in §3.136 of the Code above

described, the motion of defendants is granted.

IT IS FURTHER ORDERED that the motion»

defendants is otherwise denied. The Court has deter-

mined that the following material facts remain in

issue: The reasonableness of §3.137(a) of the Code,

and the reasonableness of requiring a separate permit

application for each temporary political sign sought

to be erected (§3.136 of the Code).

Dated: July 8, 1975.

/3/ Stanley A. Weigel

Judge

Appendix E

In the United States District Court

for the Northern District of California

No. C-740610 SAW

Alan L, Baldwin and |

George Q. Cannon, Jr.,

Plaintiffs,

vs. >

Redwood City, et al.,

Defendants. ;

ORDER NUNC PRO TUNC RE “JUDGMENT”

To eliminate any possible ambiguity,

IT IS HEREBY ORDERED that the Judgment

entered in this case on January 17, 1975 is amended,

nunc pro tunc, as follows:

1. The title of the document is amended to read

“PARTIAL JUDGMENT.”

2. Page one, line 24 of the document is amended

by adding after the words “Paragraph 2” the words

“and is DENIED in all other respects.”

Dated: February 14, 1975.

/s/ Stanley A. Weigel

Judge

Appendix F

In the United States District Court

for the Northern District of California

No. C-74-0610 SAW

Alan L. Baldwin and 7

Geo: . Cannon, Jr.,

attina Plaintiffs,

vB. >

Redwood City, et al.,

Defendants. :

[Jan. 16, 1975]

PERMANENT INJUNCTION

* This matter having come on regularly for hearing

November 21, 1974, on the parties’ respective motions

for summary judgment and on plaintiffs’ motion for

permanent injunction, and the Court being advised in

the premises,

IT IS HEREBY ORDERED that defendants, their

agents, representatives and employees, and all per-

sons acting in concert with them, should be and hereby

are permanently enjoined from applying or enforc-

ing, directly or indirectly, the following sections of

the City of Redwood City Municipal Code, insofar

as said sections purport to regulate political cam-

paign signs and posters:

(a) The seconé sentence of Section 3.136 ef the

Redwood City Code, insofar as it relates to

the requirement for a non-refundable inspec-

tion fee of one dollar for each sign;

(b) Section 3.137(b) ;

(ec) Section 3.139.

Dated: Jan. 16, 1975

/s/ Stanley A. Weigel

United States District Judge

Appendix G

In the United States District Court

for the Northern District of California

No. C-74-0610 SAW

Alan L, Baldwin and |

George Q. Cannon, Jr.,

Plaintiffs,

VS. 4

Redwood City, et al.,

Defendants. J

[Jan. 16, 1975]

JUDGMENT

Cross-motions for summary judgment having been

duly brought on to be heard and the Court having

made orders thereto and directing that judgment be

entered herein, and the Court having filed its findings

of fact and conclusions of law, it is hereby

ORDERED, ADJUDGED AND DECREED

(1) That plaintiffs’ motion for summary judg-

ment is GRANTED in the respects set forth in Para-

graph 2.

(2) That defendants, their agents, representatives

and employees and all persons acting in concert with

them, are permanently enjoined from applying or en-

forcing, directly or indirectly, the following sections

of the City of Redwood City, Municipal Code, insofar

as said sections purport to regulate political campaign

signs and posters:

(a) The second sentence of Section 3.186 of the

Redwood City Code, insofar as it relates to the re

quirement for a non-refundable inspection fee of one

dollar for each sign;

(b) Section 3.137(b) ; .

(ec) Section 3.139.

(3) Defendant City of REDWOOD CITY is not

a “person” within the meaning of Title 42 U.S.C.

§1983; accordingly, the claim against said defendant

is DISMISSED.

(4) Defendants’ motion for summary judgment on

grounds of mootness is DENIED.

(5) Defendant KECKLEY’S motion for sum-

mary judgment is DENIED.

Dated: Jan. 16, 1975

/s/ Stanley A. Weigel

United States District Judge:

Appendix Hi

United States Court of Appeals

for the Ninth Circuit

No. 74-1556

Alan L, Baldwin and }

and George Q. Cannon, Jr.,

Plaintiffs-A ppellees,

Vs.

Redwood City, Paul C. Keckley, Mayor,

and Charles Gyselbrecht, Building

Official,

Defendants-A ppellants. j

[Sep. 11, 1975]

ORDER

Appeal from the United States District Court

for the Northern District of California

Before: BrowninG and Cuoy, Circuit Judges

and Sxopi.,* District Judge

On stipulation of counsel that the appeal is moot,

it is ordered that the appeal be and it hereby is dis-

missed.

*Honorable Otto R. Skopil, Jr., United States District Judge,

District of Cregon, sitting by designation.

Appendix |

In the United States District Court

for the Northern District of California

No. C-74-0610 SAW

Alan L. Baldwin and )

Geo: . Cannon, Jr.,

-s Plaintiffs,

vs. -_"

Redwood City, et al.,

Defendants. j

[Mar. 28, 1974]

PRELIMINARY INJUNCTION

This matter came on regularly for hearing March

28, 1974 on plaintiffs’ motion for preliminary injunc-

tion, Wayne Canterbury of Davis, Cowell and Bowe

appeared for plaintiffs and Clark G. Maloney, As-

sistant City Attorney for Redwood City, appeared for

defendants. All Counsel having waived in open court,

findings of fact and conclusions of law, the Court

having read the motion and First Amended Complaint

and the parties’ respective memoranda and affidavits,

and good cause appearing, it is

ORDERED that defendants, their agents, repre-

sentatives and employees, and all persons acting in

concert with them, are preliminarily enjoined from

applying or enforcing Sections 3.136, 3.137, 3.139,

3.80 through 3.84(f) and the last sentence of 3.89 of

the Redwood City Code insofar as said sections relate

to political campaign signs.

Dated: 3/28/74

/s/ Stanley A. Weigel

United States District Judge

Approved as to form.

Clark G. Maloney

Appendix J

In the United States District Court

for the Northern District of California

No. C-74-0610 SAW

Alan L, Baldwin and ]

George Q. Cannon, Jr.,

Plaintiffs,

v8. ‘

Redwood City, et al.,

Defendants. ;

[Mar. 20, 1974]

TEMPORARY RESTRAINING ORDER

AND ORDER TO SHOW CAUSE

This cause came on to be heard on plaintiffs’ veri-

fied complaint, the affidavits submitted therewith and

the certificate of Wayne S. Canterbury, attorney for

plaintiffs, and it appearing to the court that defend-

ants are committing acts as set forth in plaintiffs’

complaint, and will continue to do so unless restrained

by Order of this Court, and that immediate and ir-

reparable injury, loss or damage will result to plain-

tiffs if this order does not issue, and that defendants

were given notice and an opportunity to be heard in

opposition to the granting of a Temporary Restrain-

ing Order, it is

ORDERED, that defendants, their agents, repre-

sentatives and employees, and all persons acting in

concert with them, are temporariy restrained until

the further order of the Court in this matter on March

28, 1974 from applying or enforcing Sections 3.121,

3.137, 3.139 and 3.89 of the Redwood City Code insofar

as they relate to political campaign signs.

ORDERED, that plaintiffs’ motion for a prelimi-

nary injunction be set down for hearing on the 28th

day of March, 1974, at 2:15 p.m., in Courtroom No. 8,

450 Golden Gate Avenue, San Francisco, California;

and it is further

ORDERED, that defendants shall file all papers in

opposition to plaintiffs’ motion for preliminary in-

junction not later than 11:00 a.m., March 26, 1974.

ORDERED, that copies of this Order and of plain-

tiffs’ complaint and affidavits submitted therewith,

together with proper summons issued by the Clerk of

this Court, be immediately served by the United States

Marshal upon the defendants.

Dated: March 20, 1974.

/s/ Stanley A. Weigel

United States District Judge

Appendix K

REDWOOD CITY CODE

Chapter 3

Article II :

Division 6. TEMPORARY SIGNS

Sec. 3.133. Erection regulated.

Temporary signs may be erected in addition to all

other signs permitted by this article without comply-

ing with the provisions of subdivision II of division 3

of this article if they comply with the provisions of

this division. (Ord. No. 1983, art. 8, § 8.1)

Sec. 3.134. Uses.

Temporary signs shall be used solely for the pur-

pose of advertising an event occurring on a specific

date, such as elections, theatrical and circus perform-

ances and special sales by retail stores. (Ord. No.

1083, art. 8, § 8.2)

Sec, 3.135. Maximum length of time to be maintained.

Temporary signs shall not be maintained for a pe-

riod in excess of sixty days, and in no event shall such

signs be maintained more than ten days after the hap-

pening of the event advertised thereon. (Ord. No.

1083, art. 8, § 8.3)

Sec. 3.136, Permit required to erect; application; in-

spection fee; cash deposit or bond.

No person shall erect or maintain any temporary

sign until a permit therefor has been secured from

the building inspector. Applications for a temporary

sign permit shall be made on forms provided by the

building inspector and shall be accompanied by a non-

refundable inspection fee of one dollar for each sign.

Every application for a temporary sign shall be

accompanied by a cash deposit of five dollars for each

temporary sign proposed to be erected to assure re-

moval of such signs in accordance with the provisions

of section 3.135. On the failure to remove the signs

as required by section 3.135, the deposit shall be for-

feited to the city; otherwise, the building inspector

shall cause the deposit to be refunded. In lieu of a

cash deposit, the building inspector may accept a bond

executed by a corporate surety authorized to do busi-

ness in the state and conditioned upon removal of the

temporary signs in compliance with the provisions of

section 3.185. (Ord. No. 1083, art. 8, § 8.4)

Sec. 3.137. Maximum area.

(a) No temporary sign shall exceed sixteen square

feet in area. The aggregate area of all temporary signs

placed or maintained on any parcel of real property

in one ownership shall not exceed eighty square feet.

(b) The aggregate area of all temporary signs

placed or maintained within the city advertising a

single event or, in the event of an election, for any

candidate or ballot issue, shall not exceed sixty-four

square feet. (Ord. No. 1083, art. 8, § 8.5; Ord. No.

1304, § 18)

Sec. 3.138. Placement on public property.

No temporary sign shall be permitted on or to ex-

tend over any public property; provided, however,

that the building inspector may issue a permit for the

erection or maintenance of banners, flags, bunting and

similar devices over any public right of way if he

finds that such device is to be maintained in connec-

tion with an event of a general civil and publie nature

conducted within the city. The building inspector may

establish conditions on such permit as may be neces-

sary to assure compliance with the purposes of this

article. (Ord. No. 1083, art. 8, 4 8.6)

Sec. 3.139. Prohibited in residentially zoned districts.

No temporary sign shall be placed or maintained

in the zoning districts mentioned in section 3.121.

(Ord. No. 1083, art. 8, § 8.7)

Sec. 3.89

All signs, including signs installed prior to the adop-

tion of this article, shall be constantly maintained in

a state of security, safety and good repair. If the

building inspector finds that any sign is unsafe or

insecure, is a menace to the public safety or has been

constructed, erected, relocated or altered after the

effective date of this article in violation of the provi-

sions hereof, he shall give written notice to the owner

or the tenant of the property wherein it is located to

remove or alter such sign. If the owner or tenant

fails to comply with the provisions of this article

within ten days after such notice, the building in-

spector may cause such sign to be removed, and the

cost thereof shall be paid by the owner or tenant. The

building inspector may cause any sign which is an

immediate peril to persons or property to be removed

summarily and without notice.

Notwithstanding the foregoing, the building inspec-

tor may remove any sign erected, placed or main-

tained in violation of this article if the owner of the

property on which the sign is erected fails to remove

such sign after 24 hours written notice to do so. In

addition, the building inspector may summarily, with-

out notice, remove any temporary sign which is

erected, placed or maintained in violation of this

article in any zoning district.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.