Amicus Curiae Brief — Board of Airport Commissioners v. Jews for Jesus, Inc.

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Text

a Supreme Court, U.S.

) ~D

10) Pinas

No. 86-104 JAN 8 1987

JOSEPH F. SPANIOL, JR.

CLERK

In The

Supreme Court of the United States

October Term, 1986

tf)

THE BOARD OF AIRPORT COMMISSIONERS

OF THE CITY OF LOS ANGELES, et al.,

Petitioners,

JEWS FOR JESUS, INC., et al.,

Respondents.

¢) —

On Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

ray

BRIEF OF THE INTERNATIONAL SOCIETY FOR

KRISHNA CONSCIOUSNESS OF CALIFORNIA, INC.,

AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

ray

Davin M. LiserMan

9806 Washington Boulevard

Culver City, California 90232

(213) 204-0488

Attorney for Amicus Curiae

International Society for

Krishna Consciousness of

California, Inc.

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

Page

INTEREST OF THE AMICUS 1

SUMMARY OF ARGUMENT Ww 8

HIIIIIEE .- sctasannstecncctatindiaennieteamiatcamantioiaaenaaie 4

TABLE OF CONTENTS

TI. RESOLUTION NO. 13787 IS UNCERTAIN,

Il.

AMBIGUOUS AND SPECULATIVE, AND

LACKS THE FORCE OF LAW. FOR THIS

REASON, JUDICIAL REVIEW IS NOT AP-

PROPRIATE AT THE PRESENT TIME .......

A. History And Background Of Resolution

TG SUNT * sciicictaicinclemmanente a heciecar tae ad cadonee

B. The Present Case Is Nonjusticiable 0.

A DECISION ON THE FEDERAL PUBLIC

FORUM DOCTRINE WILL VIOLATE THE

LONG-ESTABLISHED RULE OF AVOIDING

FEDERAL CONSTITUTIONAL ADJUDICA-

TION WHERE NONFEDERAL GROUNDS

FOR DECISION ARE AVAILABLE .00000..

A. The Public, Non-rented Portions of LAX Are

A Public Forum Under Article I, Seetion 2

Of The California Constitution

lL BAe fe A Pee Pere...

2. First Amendment Expression Is Com-

patible With The Intended Use of LAX ....

B. The District Court And Court Of Appeals

Were Remiss In Deciding The Federal Con-

stitutional Issue Prior To Considering Cali-

fornia Public Forum Doctrine —

SED eikenncnictinncsemsnidensnnaiemalaaaanaen

Pg, tt ne Ite 8: sawed PP

BS OF ickeitbelnnne siahas _App.

TABLE OF AUTHORITIES

Cases Page

Abbott Laboratories v. Gardner, 387 U.S. 136

(1967) 5,9, 10, 11, 12

Alascom, Inc. v. F.E.C., 727 F.2d 1212 (D.C.Cir.

1984) 12

Ashwander v. Tennessee Valley Authority, 297

U.S. 288 (1936) .... 11, 24

Babbitt v. United Farmworkers National Union,

442 U.S. 289 (1979) 10

Bender v. Williamsport Area School District, 106

S.Ct. 1326 (1986, No. 84-773) 0. 23

Bigelow v. Virginia, 421 U.S. 809 (1975) 13

California Bankers Association v. Schultz, 416

U.S. 21 (1974) . CS 12

Carreras v. City of Anaheim, 768 F.2d 1039 (9th

Cir. 1986) . —>- 15, 17, 20, 21

City of ies “Aladdin’ s Castle, 455 U.S.

283 (1982) oe ee 20, 26, 28

Doe v. Boffon, 410 U.S. 179 (1974) 00...

a 12

fon v. Arkansas, 393 U.S. 97 (1968) 0... 12

‘vu. Pacitwa Foundation, 438 U.S. 726 (1978) ........... 13

/ Gonzales v. Superior Court, 180 Cal. App.3d 1116,

ae Caner. 166 (1986) 14, 19, 22

Grayned v. City of Rockford, 408 U.S. 104 (1972) ........... 20

Guardianship of Roe, 383 Mass. 415, 421 N.E.2d

I . 20

Gulf Ou v. Bernard, 452 U.S. 89 (1981) occ 23

Hagans v. Lavine, 415 U.S. 528 (1974) oo. 24, 26

iil

TABLE OF AUTHORITIES—Continued

Page

In Re Hoffman, 67 Cal.2d 845, 434 P.2d 353, 64

I i a eaceeidiealaiied passim

In Re Lane, 71 Cal.2d 872, 457 P.2d 561, 79 Cal.

Rptr. 789 (1969) ....... 19

International Longshoremen’s and Warehouse-

men’s Union, Local 37 v. Boyd, 347 U.S. 222

(1954) 10

International Society For Krishna Consciousness

v. Barber, 650 F.2d 430 (2d Cir. 1981) 2

International Society for Krishna Consciousness

v. City of Los Angeles, Nos. CV-83-5229-ER,

CV-84-0045-ER (June 29, 1984) . 3, 6, 7, 8, 12

Jean v. Nelson, 105 S.Ct. 2992 (1985) (No. 84-

5240) 23

Linmark Associates v. Willingboro, 431 U.S. 85

(1977) 13

Lloyd v. Tanner Corp., 407 U.S. 551 (1972) 20... 22

Maryland Casualty Co. v. Pacific Coal & Oil Co.,

oo escakdaeabaieilinioaiaimenta 7

Metromedia v. City of San Diego, 453 U.S. 490

UIE III GI cccsscsssctnenapimenseeritiecstetmmnsetsatoee 13

Mills v. Rogers, 457 U.S. 291 (1982) css 26, 27, 28

Minnick v. California Dept. of Corrections, 452

8, RSE ae Ree ne eee eee 26

Owen Equipment and Erection Co. v. Kroeger, 547

te eR ie anna MR ESSERE i te 23

Pacific Gas and Electric Co. v. State Energy Re-

sources Conservation & Development Commis-

GR RL

TABLE OF AUTHORITIES—Continued

Page

People v. Fogelson, 21 Cal.3d 158, 577 P.2d 677,

Ge Ges TID COD cesiccniettrctenciniiarseieniene 2.18

Poe v. Ullman, 367 U.S. 497 (1961) saeadiaiiaiiaisuaneioane 5, 11

Prisoners Union v. California Department of Cor-

rections, 135 Cal.App.3d 930, 185 Cal. Rptr. 634

(1982) 15, 18, 19

PruneYard Shopping Center v. Robins, 447 U.S.

74 (1981) 27

Regional Rail Reorganization Cases, 419 U.S. 162

(1974) ; 5

Rescue Army v. Municipal Court of Los Angeles,

Se I 9

Robins v. PruneYard Shopping Center, 23 Cal.3d

899, 592 P.2d 341, 153 Cal.Rptr. 854 (1979)

aff’d sub nom. PruneYard Shopping Center v.

SO, GT TEs FO CI citeeentiseninnhnrststininermies 14, 15, 18, 19

Siler v. Louisville & Nashville R. Co, 213 U.S. 175

1 ERE RR TM RS ma Mn Mees OAM a 23, 24, 25, 26

Socialist Labor Party v. Gilligan, 406 U.S. 583

OIE secdehiihsiRebinbasneca acaba eee acces At Ae ee 9

Southeastern Promotions, Ltd. v. Conrad, 420

ee SE NEI pelceditithccendaiaiiee te da Cer ee 13

Spector Motor Service, Inc. v. McLaughlin, 323

ts 6 |) eee 1 Ci A SAN A Aa OTE RT 25

Steffel v. Thompson, 415 U.S. 452 (1974) Perce 12

Susslt v. City of San Mateo, 120 Cal.App.3d 1,

173 Cal. Rptr. 781 (1981) ....... ct SARS R80 Es Oe 19

Thomas v. Union Carbide Agricultural Co., 105

S.Ct. 3325 (1985) (No. 84-497) Chat re tcc 5

Three Affiliated Tribes v. Wold Engineering, 467

U.S. 138 (1984, No. 82-629) or neeee _ 28

+ ae

TABLE OF AUTHORITIES—Continued

Page

Toilet Goods Association v. Gardner, 387 U.S. 158

SREED i ccasnouneas 12

U.C. Nuclear Weapons Labs Conversion Project

v. Lawrence Livermore Laboratory, 154 Cal.

App.3d 1157, 201 Cal.Rptr. 837 (1984)... 14, 15, 18, 19, 20

United Mine Workers v. Gibbs, 383 U.S. 715 (1966). §=26

United States v. Hastings, 296 U.S. 188 (1935) 00... 28

Wilson v. Superior Court, 13 Cal.3d 652, 532 P.2d

116, 119 Cal.Rptr. 468 (1975) 2 > oa

Wolim v. Port Authority, 392 F.2d 83 (2d winiss

cert. denied, 393 U.S. 940 (1968) ) 17

Younger v. Harris, 401 U.S. 37 (1971) . 10

Zemel v. Rusk, 381 U.S. 1 (1965) .... 12

CONSTITUTIONS AND CHARTERS

Sa, Sa Rs i I ae artic 4, 13,14

Los Angeles City Charter, Article XXIX 00000... 7,8

GO es saidieliastedlnciaelimenienatetanl passim

300KS AND TREATISES

13A C. Wright, A. Miller & E. Cooper, Federal

Practice and Procedure, § 1352 (1984) nce cceceeeccnesseeenee 9

Kalven, The Concept of the Public Forum, Cox v.

A SERIE OIE, “III, © TB -sctnioscpiincesstdiicceieidecresestetntasi 22

T. Emerson, Toward A Theory of The First

Armed met (1966) nna eeeccsceesessnneceseeeernnee 22

No. 86-104

In The

Supreme Court of the United States

October Term, 1986

THE BOARD OF AIRPORT COMMISSIONERS

OF THE CITY OF LOS ANGELES, et al.,

Petitioners,

JEWS FOR JESUS, INC., et al.,

Respondents.

ral

On Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

ty.

BRIEF OF THE INTERNATIONAL SOCIETY FOR

KRISHNA CONSCIOUSNESS OF CALIFORNIA, INC.,

AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICUS

This brief amicus cur.ae is submitted in suport of the

respondents by the International Society for Krishna

Consciousness of California, Inc. (ISKCON), a not-for-

profit religious corporation in Los Angeles, California.

The brief is filed with the consent of the parties, as pro-

vided by the rules of this Court. Letters confirming the

consent of the parties have been or will be filed with the

clerk.

Members of ISKCON adhere to the principles of

Gaudiya Vaishnavism, or Krishna Consciousness, which,

as a central tenet of its theology and beliefs requires its

followers to regularly venture into public places for the

purposes of distributing religious literature, soliciting

funds to support the religion, and encouraging members

of the public to participate in various Krishna Conscious-

ness activities. Known in the sanskrit language as sankir-

tan, this activity lies at the core of the Krishna Conscious-

ness religion, and is its very life blood. See Internationa!

Society for Krishna Consciousness v. Barber, 650 F.2d

430, 442-43 (2d Cir. 1981).

Members of ISKCON have a deep-rooted, long-stand-

ing interest in the status of Los Angeles International

Airport (LAX) as a public forum. For over 15 years, they

have practiced sankirtan in the interior, non-rented public

areas of the airpor:, and have an intimate familiarity with

the history and usage of LAX as a situs for the exercise

of First Amendment rights. See, e.g., People v. Fogelson,

21 Cal.3d 158, 577 P.2d 677, 145 Cal.Rptr. 542. (1979).

Amicus is also conversant with the background and

history of Resolution No. 13787, which seeks to prohibit

all First Amendment activities, including speech, prosely-

tization, and literature distribution, from the interior por.

tions of the airport. Of particular significance to the pres-

ent case, Amicus were recently involved in a state and fed-

eral constitutional challenge to the validity of Resolution

No. 13787, which was dismissed by the federal district

— > en Some one

court for want of subject matter jurisdiction. International

Society for Krishna Consciousness v. City of Los Angeles,

Nos. CV-83-5229-ER, CV-84-0045-ER (June 29, 1984) (Ap-

pendix A) [hereinafter cited as ISKCON v. Los Angeles|.™

ISKCON thus has a critical interest in the outcome

of the present case. If LAX is deemed to be a non-public

forum, major portions of publicly owned airports, the

principal transportation centers for the United States and

the world, will, for the first time with judicial sanction

be declared speech-free zones. Such a result would be dis-

astrous for fledging organizations and religions such as

ISKCON, whose very existence may turn on access to such

publie facilities as LAX.

SUMMARY OF ARGUMENT

Federal courts are obligated to avoid deciding con-

stitutional questions both where the controversy between

the parties is not ripe for review and where nonfederal

grounds are available for decision. Each of these cireum-

stances is present here.

First, the history and background of Resolution No.

13787 reveals that the resolution lacks the force of law.

Specifically, as confirmed by federal district court decision

involving Amicus herein, without formal approval by the

Los Angeles City Council, the resolution is unenforceable

Hence, the scope and application of the resolution is con-

"The opinion in ISKCON v. Los Angeles appears as Appen-

dix A to this brief, and is cited to in the form “App.”

tingent, remote and speculative, and the present case is

not yet ripe for review.

Second, regardless of whether the public terminals of

LAX area are a public forum under the Federal Constitu-

tion, they are certainly so under the Liberty of Speech

Clause of the California Constitution, article I, section 2.

The district court and court of appeals thus erred in by-

passing the readily available nonfederal ground in favor

of reaching the merits of the federal constitutional question.

Important policy concerns underlying and emanating

from Article III strongly counsel the decision below should

be vacated, and the case remanded to the court of appeals

with instructions for the action to be dismissed for lack

of ripeness or, in the alternative, for consideration of the

state constitutional issue.

ra’

ARGUMENT

RESOLUTION NO. 13787 IS UNCERTAIN,

AMBIGUOUS AND SPECULATIVE, AND LACKS

THE FORCE OF LAW. FOR THIS REASON,

JUDICIAL REVIEW IS NOT APPROPRIATE

AT THE PRESENT TIME.

A serious question exists as to whether under local

law Resolution No. 13787 is enforceable. or whether it is

merely a horatory expression of the airport board’s pre-

dilictions. The answer to this question is crucial to the

present controversy, because the ripeness doctrine prevents

federal courts from deciding theoretical or abstract ques-

tions that do not yet have a concrete impact on the parties.

See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49

(1967); accord, Thomas v. Union Carbide Agricultural

Products Co., 105 S.Ct. 3325, 3333 (1985) (No. 84-497);

Pacific Gas and Electric Co. v. State Energy Resources

Conservation & Development Commission, 461 U.S. 190,

200 (1983).

‘‘TRJipeness is peculiarly a question of timing.’’ Re-

gional Rail Reorganization Cases, 419 U.S. 102, 140 (1974).

The doctrine considers the dual factors of ‘‘fitness of the

issues for judicial decision and the hardship to the parties

of withholding court consideration’’ Abbott Laboratories,

387 U.S. at 149, in determining whether a particular issue

is fit for review.

Here, these factors, when viewed in the context of the

history and background of Resolution No. 13787, strongly

indicate that judicial review of the present controversy

is, for two primary reasons, inappropriate: (1) the in-

jury complained of—purported enforcement of Resolution

No. 13787 through some form of civil adjudication—is too

contingent and remote to justify present adjudication ; and

(2) the parties have not and will not suffer any appreciable

hardships by the postponement or declining of judicial

review.

©The ripeness doctrine has its roots in both the Article III

“case or controversy” requirement, and in discretionary reasons

of policy for refusing to exercise existing power. See Regional

Rail Reorganization Act Case, 419 U.S. 102, 138 (1974); Poe v.

Ullman, 367 U.S. 497, 502-505 (1961).

A. History And Background Of Resolution No. 13787.

Both issues that petitioners seek to have resolved in

this case regarding the status of LAX as a public forum

arise only as a result of the passage of Resolution No.

13787 by the Board of Airport Commissioners on July

13, 1983.

The present case was filed approximately one year

after passage of the resolution, on July 17, 1984. Less than

three weeks earlier, however, the United States District

Court for the Central District of California had found in

parallel litigation challenging the same resolution that

‘‘whether the resolution violates the First Amendment is

not an actual case or controversy,’’ and that ‘‘[t]here is

not sufficient adversity between the parties to make de-

termination of the federal constitutional question appro-

priate.’”’ ISKCON v. Los Angeles, App. 10.

The district court stated:

[T]he Los Angeles City Charter provides that the

airport board ‘shall have power... to make and en-

%3/SKCON v. Los Angeles was filed in the California Superior

Court on July 18, 1983, and was removed on August 12, 1983.

A first amended complaint was filed on October 24, 1983, seek-

ing a declaration that Resolution No. 13787 was unconstitutional

and an injunction against its enforcement. On January 5, 1984,

the City of Los Angeles filed a second lawsuit against ISKCON

and four other organizations. The City asked for a declaration

that the resolution was constitutionally valid and an injunction

forbidding the five named organizations from violating it. The

two actions were consolidated.

The city’s suit was dismissed for vant of subject matter

jurisdiction in that the claim for a declaration that the resolution

was constitutional did not constitute a federal question. ISKCON °

v. Los Angeles, App. 3-6. It is, however, the court's ruling on

the action by ISKCON—the suit that was removed from state

court—that is of particular relevance here.

force all necessary rules and regulations governing

the use and control of all municipal airports within

the City of Los Angeles.’ City Charter Art. XXIV,

§ 239. The provision goes on to state that ‘said reg-

ulations shall be approved by the Council by ordi-

nance which shall prescribe the penalties for the viola-

tion of such rules and regulations.’ Section 239.2(1)

states that the general manager of the airport depart-

ment ‘shall have the power and duty to enforce all or-

ders, rules and regulations adopted by the Board.’ The

charter does not previde for the Board to pass res-

olutions, as it has in this case. Nor has the City

Council ratified the Board’s resolution.

Id. at 9 (emphasis in original).

The court thus remanded the case to state court, id.

at 10, where it is pending.

Subsequent to ISKCON v. Los Angeles, there is still

no indication that the airport board has promulgated any

rules and regulations as to the conduct of First Amend-

“The court added:

Further evidence that there is not case or controversy

‘of sufficient immediacy and reality to warrant the issuance

of a declaratory judgment,’ Maryland Casualty Co., 312

U.S. 270, is found in the City’s answer to ISKCON’s com-

plaint. The city states defendants, and each of them, deny

that Resolution No. 13787 adopted by the Board has been

enforced against the plaintiff or against anyone: [sic] { 5,

and ‘defendants, and each of them, allege that pursuant to

City Charter § 239 all rules must be approved by the City

Council.’ § 6.

The City does not substantively address this argument

in its reply, except to cite the standard and to observe that

ISKCON initiated the suit. That does not change the pre-

ceding analysis—the requirement of an actual controversy

is jurisdictional and as such, can be raised by any party

or the Court sua sponte at any time.

Id. at 9.

ment activities at the airport nor, as the court in ISKCON

v. Los Angeles noted, has it sought or obtained approval

of the resolution, by ordinance or otherwise, from the

city council. Instead, the board has adhered to the original

‘‘resolution’’ that merely describes itself as ‘‘a general

policy procedure.’’ Resolution No. 13787. It is, aceord-

ingly, by no means clear that the existence of the resolu-

tion, without more, can serve to create a justiciable con-

troversy.

B. The Present Case Is Nonjusticiable.

The facts upon which the district court and court of

appeals apparently believed that a justiciable controversy

existed do not, when reviewed in light of the history, de-

scribed above, dispel the doubts which the history creates.

The key element to the present case seems to be the stipu-

lation that an ‘‘uniformed peace officer’? at one time

handed respondent Alan Snyder a copy of the resolution

while Snyder was distributing free religious literature at

the airport, ‘‘ordered Snyder to cease,’’ and ‘‘further ad-

vised Snyder that any failure to comply ... would subject

Snyder to legal action by the City Attorney pursuant to

the express terms of Resolution No. 13787.’’ Stipulation of

Facts, para. 69; Jt. App. 19a.

More questions are raised, however, than are answered

by the stipulation. At the very least, and especially in

light of the quoted passage from JSACON v. Los Angeles,

it appears that the airport board, by the express terms

of section 239 of the City Charter® could not have taken

“The relevant portion of the City Charter is appended here-

to as Appendix B.

legal action against respondents until the city council

formally approved the resolution by promulgating it as

a municipal ordinance. and prescribing the penalties for

its violation. Thus, for aught that now appears, the action

by the police officer was merely a bluff or hollow threat

at best, and the ‘‘resolution’’ is a mere piece of paper

that does not and cannot affect the legal rights of anyone.

In this posture, the dual components of Abbott

Laboratories are plainly satisfied. First, because Resolu-

tion No. 13787 entails ‘‘uncertain or contingent future

events that may not occur as anticipated, or indeed may

not occur at all.’’ 135A C. Wright, A. Miller & E. Cooper,

Federal Practice and Procedure § 1352, at 112 (1984),

the issues which petitioners raise are not fit for judicial

decision.

In Soctalist Labor Party v. Gilligan, 406 U.S. 583

(1972), for example, the Court refused, after other issues

in the case had become moot. to review a constitutional

challenge to a state requirement that all political parties

seeking a position on the ballot must file a loyalty oath.

The Court reasoned that ‘‘{n]othing in the reeord shows

that appellants have suffered any injury thus far, and the

law’s future effect remains wholly speculative.’’®

“Cf. Rescue Army v. Municipal Court of Los Angeles, 331

U.S. 549 (1947) where the Court refused to review a California

decision denying a claim under the Federal Establishment Clause

because it was unable to determine with certainty how much

of the challenged statute was implicated in the case: “[J]uris-

diction . . . should be exerted only when the jurisdictional ques-

tion presented by the proceeding . . . tenders the underlying

constitutional issues in clean-cut and concrete form, unclouded

by any serious problem of construction relating either to the

terms of the questioned legislation or its interpretation by the

state courts.”” Id. at 584.

Similarly, in International Longshoremen’s & Ware-

housemen’s Union Local 37 v. Boyd, 347 U.S. 222 (1954),

the Court held that a federal court could not grant

declaratory judgment on the constitutionality of a particu-

lar construction of a federal statute where the conduct

had not yet occurred, and where the challenged construc-

tion had not yet been ratified by the federal agency

charged with its administration and enforcement. In

language particularly propos here, the Court stated: ‘‘De-

termination of the scope and constitutionality of legisla-

tion in advance of its immediate adverse effect in the

context of a concrete case involves too remote and ab-

stract an inquiry for the proper exercise of the judicial

function.’’ Jd. at 224.

The second component of Abbott Laboratories is satis-

fied because there is no realistic threat of actual enforce-

ment of the resolution in its present form.” and because

respondents and other groups have been actually prosely-

tizing and distributing !terature in LAX for many years

without any untoward interference with airport opera-

tions. Consequently, there is no meaningful hardship to

the parties of withholding court consideration until the

controversy between them is more sharply defined.

In this regard, it has long been established as part of

the ‘‘ease or controversy’? requirement of Article III that

See Babbitt v. United Farmworkers National Union, 442

U.S. 289, 298 (1979) ("A plaintiff who challenges a statute nvust

demonstrate a realistic danger of sustaining a direct injury as

a result of the statute’s operation or enforcement.” (emphasis

supplied); cf. Younger v. Harris, 401 U.S. 37, 42 (1971) (“per-

sons having no fears of state prosecution except those that are

imaginary or speculative, are not to be accepted as appropriate

plaintiffs.’’)

an agency’s ‘‘pronouncements, policies, and programs...

d[o] not give rise to a justiciable controversy save as they

ha[ve] fruition in action of a definitive and concrete

character constituting an actual or threatened interfer-

ence with the rights of the persons complaining.’’ Ash-

wander v. Tennessee Valley Authority, 297 U.S. 288, 324

(1936). Accordingly, in order for a contested action to be

considered ripe for review, the impact on the parties must

he ‘‘sufficiently direct and immediate as to render the

issue appropriate for judicial review at this stage.’’ <Ab-

bott Laboratories, 387 U.S. at 152.

In thus refusing to declare Connecticut’s law pro-

hibiting the use of contraceptives invalid, the Jourt in

Poe v. Ullman, 367 U.S. 497 (1961), emphasized chat ‘‘ju-

dicial power is to be exercised to strike down legislation,

whether state or federal, only at the insistence of one who

is himself immediately harmed, or immediately threatened

with harm, by the challenged action.’’ Id. at 504. Of par-

ticular interest here, Poe noted that even the ‘‘existence

of a state penal statute would constitute insufficient

grounds to support a federal court’s adjudication of its

constitutionality in proceedings brought against the

State’s prosecuting officials if real threat of enforcement

is wanting.’’ Jd. at 507.

If the existence of an unenforeced penal statute was

insufficient to raise federal jurisdiction in Poe, then surely

an unenforceable agency resolution such as is in issue

here should be insufficient to invoke federal jurisdiction

as well. Indeed, Resolution No. 13787 has never been

formally enforced against anyone since its passage in

1983, nor in its present form can it be.

Nor, in this context, can it be claimed that the resolu-

tion creates a ‘‘chilling effect’? on First Amendment activi-

ties. As illustrated by ISKCON v. Los Angeles, this case

is not the first instance where airport officials have pre-

sented the resolution to individuals exercising First

Amendment rights at LAX, yet for all the hyperbole and

excitation, the resolution remains unenforced and unen-

forceable.

Accordingly, there is no immediate, direct and signi-

ficant hardship to the parties of withholding judicial con-

sideration of the public forum question,” and the writ of

in this regard, respondents are not faced with the dilemma

of incurring the disadvantages of complying with the resolution

or risking penalties for noncompliance, as were the challenging

parties in such cases as Doe v. Bolton, 410 U.S. 179, 188 (1974),

Epperson v. Arkansas, 393 U.S. 97, 100 (1968), and Abbott Labora-

tories, 387 U.S. at 152-53. Moreover, it is indisputable that no

criminal action can be initiated. Nonetheless, the petitioners

apparently contend that a case or controversy is created by the

mere possibility of civil adjudication. This ground, however,

is too remote, and does not satisfy the requirements of Steffel

v. Thompson, 415 U.S. 452 (1974) where it is unknown how

the state courts would treat such an action. Additionally, the

mere potential of civil adjudication would expand the case or

controversy requirement beyond any acceptable or manageable

boundaries. See Toilet Goods Association v. Gardner, 387 U.S.

158, 164 (1967); Alascom, Inc. v. F.E.C., 727 F.2d 1212, 1217

(D.C. Cir. 1984).

At the very least, development of a more concrete set of

facts is required. See California Bankers Association v. Shultz,

416 US. 21, 56-57 (1974); Zemel v. Rusk, 381 U.S. 1, 19-20

(1965). This is especially so in a freedom of expression context

where “cach medium of expression presents special First Amend-

(Continued on following page)

certiorari should be dismissed as improvidently granted

for want of ripeness.

II.

A DECISION ON THE FEDERAL PUBLIC FORUM

DOCTR NE WILL VIOLATE THE LONG

ESTABLISHED RULE OF AVOIDING FEDERAL

CONSTITUTIONAL ADJUDICATION WHERE

NONFEDERAL GROUNDS FOR DECISION

ARE AVAILABLE.

A. The Public, Non-rented Portions Of LAX Are A

Public Forum Under Article I, Section 2 Of The California

Constitution.

Respondents, as well as other groups and individuals

seeking to engage in expression in California facilities

such as airports, have a right of access to the public, non-

rented portions of LAX which is independent of federal

public forum doctrine. The existence of such a right was

asserted by the respondents at the onset of litigation

against the petitioners, see Complaint, paras. 24, 26, and

was argued extensively in both the district court, see

Trial Brief Of Plaintiffs And Counterdefendants, at 39-45,

and the Court of Appeals. See Appellee’s Brief, at 6-18.

(Continued from previous page)

ment problems” FCC v. Pacifica Foundation, 438 U.S. 726, 748

(1978), ‘““which must be assessed . . . by standards suited to it.”

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 547

(1975). Courts must “assess| | the First Amendment interest

at stake and weigh it against the public interest allegedly served

by the regulation.’’ Linmark Associates, Inc. v. Willingboro, 431

U.S. 85, 91 (1977) (quoting Bigelow v. Virginia, 421 U.S. 809, 826

(1975)). Moreover, “a particularized inquiry into the nature of

the conflicting interests at stake . . . beginning with a precise

appraisal of the character of the ordinance as it affects com-

munication,” Metromedia v. City of San Diego, 453 U.S. 490,

503 (1981) (plurality opinion) (emphasis supplied), is required.

On the present record, such an analvsis is plainly not possible.

Inexplicably, both courts ignored the California public

forum issue, although federal courts are under a clear

obligation to avoid deciding Federal Constitutional ques-

tions where nonfederal grounds for decision are available.

1. LAX Is A Public Forum.

Article I, section 2 of the California Constitution does

not merely track the language of the First Amendment.

Rather it is a ‘‘protective provision more definitive and

inclusive than the First Amendment.’’ Wilson v. Superior

Court, 13 Cal.3d 652, 658, 532 P.2d 116, 120, 119 Cal.Rptr.

468, 472 (1975); accor’, Robins v. PruneYard Shopping

Center, 23 Cal.3d 899, 908, 592 P.2d 341, 346, 153 Cal.Rptr.

854, 859 (1979), aff’d sub nom. PruneYard Shopping Cen-

ter v. Robins, 447 U.S. 74 (1980); Gonzales v. Superior

(1986) ; U.C. Nuclear Weapons Labs Conversion Project v.

Lawrence Livermore Laborary, 154 Cal.App.3d 1157, 1163-

164, 201 Cal.Rptr. 837, 843 (1984)."°

Cal. Const. art. |, §2 provides that “Every person may

freely speak, write and publish his or her sentiments on all sub-

jects, being responsible for the abuse of this right. A law may

not restrain or abridge liberty of speech or press.”’ U.S. Const.

amend. ! states that “Congress shall make no law respecting

an establishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the press;

or the right of the people to peaceably assemble, and to peti-

tion the Government for a redress of grievances.’ Although the

free speech provision of the California and Federal Constitu-

tions are thus similar, “they are not the same.” Gonzales v.

Superior Court, 180 Cal.App.3d 1116, 1122, 226 Cal.Rptr. 164,

167 (1986).

Under the California Constitution, then, such facilities

as stadia,'! convention centers,” shopping centers, prison

grounds, interior premises of state owned visitor’s cen-

ters,'5 and major transportation terminals,'® must be made

available for the reasonable exercise of First Amendment

rights. ‘‘To protect free speech and petitioning is a goal’’

of the highest order under the California Constitution,

Robins, 23 Cal.3d at 908, 592 P.2d at 346, 153 Cal.Rptr. at

859, which may be overborne only if it is outweighed by

substantial governmental interests in restricting expres-

sion at a particular time and place. See Prisoners Union

v. California Department of Corrections, 135 Cal.App.3d

930, 938-41, 185 Cal. Rptr. 634. 638-40 (1982).

The seminal California decision, In re Hoffman, 67

Cal. 2d 845, 434 P.2d 353, 64 Cal.Rptr. 97 (1967), involved

a fact situation closely analogous to the present case. In

Hoffman, an anti-war group of approximately 15 persons

sought access to the main entrance, lobby and patio areas

of the Union Station railway terminal in Los Angeles in

order to distribute leaflets and discuss their views with

persons in the area. /d. at 847, 454 P.2d at 304, 64 Cal. Rptr.

"Carreras v. City of Anaheim, 768 F.2d 1039, 1045-046 (9th

Cir. 1986) (Anaheim Stadium).

121d. at 1046-047 (Anaheim Convention Center).

3Robins v. PruneYard Shopping Center, 23 Cal.3d 899, 592

P.2d 341, 153 Cal.Rptr. 854 (1975), aff'd sub. nom. PruneYard

Shopping Center v. Robins, 447 U.S. 74 (1980).

14Prisoners Union v. California Department of Corrections,

135 Cal.App.3d 930, 185 Cal.Rptr. 634 (1982).

1SU,.C. Nuclear Weapons Labs Conversion Project v. Law-

rence Livermore Laboratory, 154 Cai.App.3d 1157, 201 Cal.Rptr.

837 (1984).

161m re Hoffman, 67 Cal.2d 845, 434 P.2d 353, 64 Cal.Rptr.

97 (1967).

at 98. Although the City conceded that the leafleters ‘‘did

uot impede the flow of traffie to or from the station or

interfere with the purchase or sale of tickets or the con-

duct of business by the restaurants, bar, or magazine and

newspaper stand located on the premises,’’ ?d., they were

nonetheless convicted of violating a city ordinance re-

stricting their right to conduct such activities in a rail-

road station. and subsequently sought a writ of habeas

corpus from the California Supreme Court on the basis

that the ordinance unconstitutionally abridged their right

of free speech. Id.

In granting the writ, Chief Justice Traynor recognized

for the Court that ‘‘a railway station is like a public street

or park. Noise and commotion are characteristic of the

normal operation of a railway station. The railroads seek

neither privacy within nor exclusive possession of their

station.’’ 67 Cal.2d at 851, 434 P.2d at 356, 64 Cal. Rptr.

at 100."

7Union Station in Los Angeles was described as follows:

‘It is spacious and open to the community as a center for rail

transportation. It also houses a restaurant, a snack bar, a cock-

tail lounge, and a magazine stand. Not only passengers but

friends and relatives of passengers may freely enter and use the

facilities of the waiting room. Entry is also free to those who

seek food or drink or magazines or newspapers.” 67 Cal.2d

at 847, 434 P.2d at 354, 64 Cal.Rptr. at 98.

lf the railway station in Hoffman is a public forum based

upon the above-described facts, then the interior public areas

ef LAX are public forums a fortiori. As in Hoffman, the interior

terminal areas at LAX are spacious facilities open to the general

ublic without restriction. Seventeen gift shops, 12 cocktail

ounges, three snack bars, four duty-free shops, 16 insurance

outlets, four American Express offices, six postal centers, five

money exchanges, numerous car r.ntal facilities, an ice cream

(Continued on following page)

More importantly, Hoffman articulated the test for

determining whether a particular facility constitutes a pub-

lic forum under the California Liberty of Speech Clause:

The primary uses of municipal property can amply be

protected by ordinances that prohibit activities that

interfere with those uses. ... First Amendment activi-

ties [cannot] be prohibited solely because the property

involved is not maintained primarily as a forum for

such activities.

[Ijn the present case, the test is not whether petition-

ers’ use of the station was a railway use but whether

it interfered with that use.

Id. at 850-51, 434 P.2d at 356, 64 Cal.Rptr. at 100."

Hoffman thus directly and unambiguously rebuts the

contention that all expressive activities not directly re-

lated to air transportation and navigation may be entirely

excluded from the terminal buildings of LAX."? Indeed,

(Continued from previous page)

shop, a barber shop, and a Christian Science reading room are -

interspersed throughout the eight existing terminals, and are

accessible to the general public for no fee. Moreover, as many

non-travelers use the various terminals as do actual travelers.

Stipulation of Facts, paras. 4, 10; Jt. App. 7a, 9a.

'8Robins makes it clear that Hoffman rested solidly on Cali-

fornia law. 23 Cal.3d at 908, 592 P.2d at 347, 153 Cal.Rptr. at

859; accord, Carreras, 768 F.2d at 1044, n.8.

See also Wolin v. Port Authority, 392 F.2d 83, 90 (2d Cir.)

cert. denied, 393 U.S. 940 (1968) (“The Terminal Building is an

appropriate place for expressing one’s views precisely because

the primary activity for which it is designed is attended with

noisy crowds and vehicles, some unrest and less than perfect

order. Like a covered marketplace area, the congestio» justifies

rules regulating other forms of activity, but it seems undeniable

that the place should be available for use in appropriate ways

as a public forum.) (footnote omitted).

in People v. Fogelson, 21 Cal.3d 158, 577 P.2d 677, 145 Cal.

Rptr. 542 (1978), which concerned a facial overbreadth

challenge to a City of Los Angeles solicitation ordinance

applied to ISKCON’s activities at LAX,° the California

Supreme Court cited Hoffman in noting that the interior,

public areas of municipal buildings such as LAX are ‘‘ap-

propriate areas for exercise of protected activity.”’ Jd. at

167, n.9, 577 P.2d at 682, n.9, 145 Cal. Rptr. at 547, n.9.

The ongoing vitality and application of the compati-

bility test is also demonstrated by Robins, where the Ho/f-

man tormuiation was cited with approval.

Chief Justice Traynor’s opinion made it clear that

... ‘the test is not whether petitioners’ use of the sta-

tion was a railway use but whether it interfered with

that use.’... The opinion thus affirms that the public

interest in peaceful speech outweighs the desire of

property owners for control over their property.

23 Cal.3d at 909, 592 P.2d at 347, 153 Cal. Rptr. at 860.7!

Specifically, a member of ISKCON was arrested and con-

victed in Municipal Court of violating the solicitation ordinance,

which the California Supreme Court ultimately found “uncon-

stitutional on its face.” 21 Cal.3d at 167, 577 P.2d at 682, 145

Cal.Rptr. at 547.

214 recent California public forum decision, Prisoners Un-

ion, also quotes this passage from Hoffman, 135 Cal.App.3d at

939, Cal.Rptr. at 639, and observes in addition that the preceden-

tial value of Hoffman “is not diminished by the fact that the

opinion cited federal law. ‘“/d. at 939, n.3, 185 Cal.Rptr. at 639,

n.3. Indeed, “|kjeeping in mind that the free speech and pe-

titioning provision in the California Constitution does not mirror

the First Amendment either in form or content . .. we draw on

both provisions for the analysis required in this state.” Law-

rence Livermore Laboratory, 154 Cal.App.3d at 1163, 201 Cal.

Rptr. at 843. (emphasis in original) Accordingly, for state con-

stitutional analysis, “|f]ederal principles are relevant but not

(Continued on following page)

Other recent cases also reflect the rejection of a cate-

gorical approach to the existence of public forums under

California law. In Prisoners Union, the California court

of appeal rejected a ‘‘categorical ban on communication

among free citizens in a public parking lot, simply because

the parking lot is located on prison property.’’? 135 Cal.

App.3d at 958, 185 Cal. Rptr. at 638 (footnote omitted).

The nature of the facility was, of course, ‘‘ relevant, but not

determinative.’’ Jd. at 939, 185 Cal.Rptr. at 689 (emphasis

supplied). Rather, in every case in which the propriety

of expression is at issue, ‘‘the answer depends upon whether

the manner cf expression is basically incompatible with

the normal activity of a particular place at a particular

time.’’ Jd.”

In Lawrence Livermore Laboratory, a case factually

similar to the present case, the court of appeal expressly

recognized that it was faced with another ‘‘dispute over

(Continued from previous page)

conclusive so long as federal rights are protected.”” PruneYard,

23 Cal.3d at 909, 592 P.2d at 346, 153 Cal.Rptr. at 859; accord,

Gonzales, 180 Cal.App.3d at 1123, 226 Cal.Rptr. at 168 (‘Federal

law can provide guidance, even though it is not controlling in

this area.’’).

2California decisions, moreover, leave no doubt that “[i/t

is immaterial that another forum, equally effective,” may be

available to the respondents. Hoffman, 67 Cal.2d at 852 n.7,

434 P.2d at 857 n.7, 64 Cal.Rptr. at 101, n.7. Indeed, “ .. . it is

settled law that within the context of the traditional public

forum, abridgment of the freedom of expression may not be

conditional upon the existence of alternative channels of com-

munication.” Sussli v. City of San Mateo, 120 Cal.App.3d 1, 8,

173 Cal.Rptr. 781, 785 (1981). Hence, in the absence of “some

conflicting interest that could be protected in no other way,

[respondents] had the right to choose their own forum.” /d.;

accord, Gonzales, 180 Cal.App.3d at 1127, 226 Cal.Rptr. at 171;

= also In re Lane, 71 Cal.2d 872, 457 P.2d 561, 79 Cal.Rptr. 789

69).

the proper analytical approach to free speech/public forum

issues.’’ 154 Cal.App.3d at 1165, 201 Cal.Rptr. In holding

that an enclosed ‘‘Visitors Center... owned and operated

by the government and open to the public at large’’ ?d. at

1168, 201 Cal.Rptr. at 876, had to be made available to non-

governmental persons seeking to express their views, the

court emphasized that the crucial question was not whether

the place in question was a public street or park, or had

been affirmatively dedicated to expression, but ‘* ‘whether

the manner of expression is basically incompatible with the

normal activity of a particular place at a particular time.’ ’’

Id. (quoting Grayned v. City of Rockford, 408 U.S. 104,

116, (1972)).

This conclusion was recently reiterated in Carreras v.

City of Anaheim, 768 F.2d 1039 (9th Cir. 1985), which un-

derscored that

for the purposes of the California Liberty of Speech

Clause, the ‘public forum’ doctrine is not limited to

traditional public forums such as streets, sidewalks,

and parks or to sites dedicated to communicative ac-

tivity such as municipal theaters. Rather, the test

under California law is whether the communicative ac-

tivity ‘is basically incompatible with the normal activ-

ity of a particular place at a particular time.’

Id. at 1045 (citations omitted).”

23Significantly, the court in Carreras acknowledged the dis-

trict court’s reliance on federal public forum analysis in finding

that the exterior parking lots and sidewalks of Anaheim Stadium

did not constitute a public forum. 768 F.2d at 1045, n.11. The

court emphasized, however, that ‘[w]hatever the validity of this

reasoning may be under federal law, it is not determinative

under the California Liberty of Speech Clause.” /d.

2. First Amendment Expression Is Compatible With The

Intended Use Of LAX.

Under California law, then, LAX may be declared off

limits to First Amendment expression ‘‘only if the Citys

meets its burden of establishing the basic incompatibility

between the expressive activity and the intended use of

the facility.’’ Jd. Here, no such showing can be made.

Petitioners candidly admit that they are not aware

‘‘of any occasion on which a member of Jews for Jesus, .. .

while engaged in the free distribution of religious litera-

ture in the interior walkways of LAX, .. . intentionally

. interfered with, blocked, obstructed, physically touched

in an offensive manner or otherwise ... annoyed any other

person.’’ Stipulation of Facts, par. 63; Jt. App. 18a.

More importantly, the petitioners also admit that at

the time he was asked to leave the airport premises while

he was distributing his religious literature, respondent Avi

Snyder ‘‘was not blocking any entrance, exit, stairway, es-

calator, elevator, door, or otherwise inhibiting the free

flow of pedestrian traffic on the pedestrian walkway lo-

cated inside Terminal 4 at LAX.’’ Stipulation of Facts,

par. 67; Jt. App. 19a. Nor was Snyder ‘‘ touching, annoy-

ing, blocking, obstructing, or otherwise harassing any other

person present in the immediate vicinity of his location.’’

Stipulation of Facts, par. 68; Jt. App. 19a. Thus, there is

absolutely no evidence in the record to indicate that the

distribution of religious literature is in any way incom-

patible with the intended use of LAX. See Carreras, 768

F.2d at 1045-046.

Consequently, because public places such as LA™ are

undoubtedly ‘‘important facilitlies] for publie discussion,’’

ow)

such facilities must constitute ‘‘a public forum that the

citizen can commandeer.’’ Kalven, The Concept of the Pub-

lic Forum, Cox v. Louisiana, 1965 S.Ct. Rev. 1, 12.4% In-

deed, the basic guarantee of a meaningful system of free-

dom of expression is to assure this access, see ‘I’. Emerson,

Toward A Theory of the First Amendment 19 (1966), and

‘‘the generosity and empathy with which such facilities are

made available is an index of freedom.’’ Kalven, supra,

at 12.

The California Constitution vigorously protects this

fundamental right. ‘‘Mere legislative preferences or be-

liefs regarding matters of public convenience may not sup-

port the diminution of such vital rights as the exercise of

free speech in our democracy.’’? Gonzales, 180 Cal.App.3d

at 1122, 226 Cal.Rptr. at 167.

Hence, under California law, only if the city’s legit-

imate interests in preserving the normal use of LAX can

be vindicated ‘‘in no other way,’’ Hoffman, 67 Cal.2d at

852, n.7, 484 P.2d at 857, n.7, 64 Cal. Rptr. at 101, n.7, may

expressive activity be totally prohibited at the airport.

B. The District Court And Court Of Appeals Were

Remiss In Deciding The Federal Constitutional Issue Prior

To Considering California Public Forum Doctrine.

Hoffman and its progeny make clear that article |, sec-

tion 2 of the California Constitution could have effectively

*4For Amicus, at least, LAX is one of the few places “in

which most of their fellow citizens can be found.” Lloyd Corp.

v. Tanner, 407 U.S. 551, 580-81 (1972) (Marshall, J. dissenting).

Indeed, there is no other facility in Southern California that reg-

ularly accommodates such large numbers of people from various

walks of life. In 1983, for example, LAX handled 33 million

passengers, in addition to an equal number of “meeters” and

“greeters.”’ Stipulation of Facts, par.10; Jt. App. 9a. Accordingly,

Amicus’ need for access to this particular forum is incalculable.

provided a nonfederal state constitutional ground upon

which to resolve the present controversy. Accordingly, re-

gardless of whether the district court and court of appeals

expressly addressed the California public forum question,

which they should have, important policy concerns cmanat-

ing from Article [Il of the Federal Constitution now re-

quire that the decision of the court of appeals be vacated

and the ease remanded with instructions to consider the

state law question.

This result follows directly from the fundamental

proposition that ‘‘[e]ven of cases unquestionably within

this Court’s subject-matter jurisdiction, we have disclaimed

any pretension to reach federal questions arising under the

Federal Constitution when an alternative basis of decision

fairly presents itself.’’ Bender v. Williamsport Area

School District, 106 S.Ct. 1326, 1331 (1986) (No. 84-773);

accord, Jean v. Nelson, 105 S.Ct. 2992, 2997 (1985) (No. 84-

5240). Thus, ‘‘[pjrior to reaching any constitutional

question, federal courts must consider non-constitutional

grounds for decision.’? Gulf Ou v. Bernard, 452 U.S. 89,

99 (1981) (emphasis added ).?°

This rule is long-standing. In the seminal case of

Siler v. Louisville & Nashville R. Co., 213 U.S. 175 (1909),

25“It is a fundamental precept that federal courts are courts

of limited jurisdiction’ Owen Equipment & Erection Co. v.

Kroeger, 547 U.S. 365, 374 (1978), which “have only the power

that is authorized by Article Ill of the Constitution and the

statutes enacted by Congress pursuant thereto.” Bender v. Wil-

liamsport Area School District, 106 S.Ct. 1326, 1331 (1986) (No.

84-773). Consequently, ‘every federal appellate court has a

special obligation to ‘satisfy itself not only of its own juris-

diction, but also that of the lower courts in a cause under re-

view,’ even though the parties are prepared to concede it.” /d.

the Court was faced with a variety of federal constitu-

tional and state statutory challenges to an order of the

Kentucky Railroad Commission fixing maximum railroad

rates. In holding that the state questions should be de-

cided first, and because these claims were dispositive the

federal issues need not be reached, the Court articulated

this rule:

Where a case in this court can be decided without

reference to questions arising under the Federal Con-

stitution, that course is usually pursued and is not

departed from without important reasons. In this

ease we think it much better to decide it with regard

to the question of a local nature, involving the con-

struction of the state statute and the authority therein

given to the commission to make the order in ques-

tion, rather than to unnecessarily decide the various

constitutional questions appearing in the record.

Id. at 193.

Siler was cited with approval and incorporated by

Justice Brandeis in his celebrated concurring opinion in

Ashwander, which emphasized the importance of this pol-

icy as follows:

The Court will not pass upon a constitutional

question although properly presented by the record,

if there is also present some other ground upon which

the case may be disposed of.... Thus, if a case can

be decided on either of two grounds, one involving a

constitutional question, the other a question of stat-

utory construction or general law the Court will de-

cide only the latter.

297 U.S. at 347.

In Hagans v. Lavine, 415 U.S. 528 (1974), the Court

also relied upon Siler, and noted that it ‘‘has characteris-

tically dealt first with possibly dispositive state law claims

pendent to federal constitutional claims.’’ Jd. at 546. The

Court further pointed out that many other Supreme Court

decisions ‘‘have stated the general proposition endorsed

in Siler—that a federal court properly vested with juris-

diction may pass on the state or local law question with

out deciding the federal constitutional issues—and have

then proceeded to dispose of the case solely on the non-

federal ground.”’ 415 U.S. at 546, n.12.

Siler, therefore, ‘‘is not an oddity.’’ 7d. at 546. On

the contrary, ‘‘[i]f there is one doctrine more deeply root-

ed than any other in the process of constitutional adjudi-

cation, it is that we ought not pass on questions of consti-

tutionality . . . unless such adjudication is unavoidable.”’

Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101,

105 (1944).

Recent cases, moreover, confirm the continued vitality

of this rule. In City of Mesquite v. Aladdin’s Castle, Inc.,

455 U.S. 283 (1982), for example, the Court declined to

review a municipal ordinance prohibiting children under

17 years of age from operating amusement devices unless

accompanied by an adult, where the Texas constitution

potentially provided an independent ground for the court of

appeals’ judgment striking down the restriction.® The

Court stated:

Finally, and of greater importance, is this Court’s

policy of avoiding the unnecessary adjudication of

federal constitutional questions. As we recently have

*City of Mesquite, like the present case, involved a munici-

pal “regulation” that was challenged under both the state and

federal constitutions. 455 U.S. at 291.

noted, see Minnick v. California Dept. of Corrections,

452 U.S. 105, 101 S.Ct. 2211, 68 L.Ed.2d 706, this

self-imposed limitation on the exercise of this Court’s

jurisdiction has an importance to the institution that

transcends the significance of particular controversies.

No reason for hasty decision of the constitutional

question presented by this case has been advanced.

If Texas law provides independent support for the

Court of Appeals’ judgment, there is no need for de-

cision of the federal issue.

Id. at 294. (footnote omitted),

The two essential ingredients of the Silers-Hagan-

Mesquite policy are thus present here. First, jurisdiction

over the state constitutional claim properly exists pursuant

to the well-established requirements for pendent jurisdic-

tion outlined in United Mine Workers v. Gibbs, 383 U.S.

715, 725 (1966). Seeond, an unambiguous, nonfederal right

exists under the California Constitution which amply sup-

ports the status of LAX as a public forum, independent of

the Federal Constitution.”’

Accordingly, the time-honored ‘‘federal policy of

avoiding constitutional adjudication where not absolutely

essential to disposition of a case,’’ Hagans, 415 U.S. at

546, n.12, should not be violated, and instead, the lead es-

tablished in Milis v. Rogers, 457 U.S. 291 (1982), should

be followed. There, the Court considered the issue of

‘whether an involuntarily committed mental patient has

27This Court has many times noted: “Within our federal

system the substantive rights provided by the Federal Consti-

tution define only a minimum. State law may recognize liberty

interests more extensive than those independently protected by

the Federal Constitution.” Mills v. Rogers, 457 U.S. 291, 300

(1982).

a constitutional right to refuse treatment with antipsycho-

tic drugs.’’ Jd. at 298-99. The case arose in the federal

court system, and approximately five months after the

court of appeals issued its decision, and shortiy after the

Court granted certiorari, the Supreme Judicial Court of

Mass&ehusetts decided a case*® involving ‘‘the right of a

noninstitutionalized but mentally incompetent person to

refuse treatment with antipsychotic drugs.’’ Jd. at 500-01.

Although the Massachusetts’ decision involved the

rights of noninstitutionalized patients, and Wills concerned

institutionalized mental patients, the mere possibility that

state law might ‘‘influence the correct disposition of the

ease at hand,’’ id. at 302-03, persuaded the Court to vacate

the judgment of the court of appeals and remand for con-

sideration of the state law question.

At a minimum, this procedure should be followed

here. As in Mills, so here too, California undoubtedly

‘‘recognizes liberty interests ... that are broader than

those protected by the Constitution of the United States.”’

Id. at 303.29 Thus, the protection that the Federal Consti-

tution affords against the abridgement of the right to free

expression will ‘‘not determine the actual substantive

rights and duties of persons in the State of [California].”’

Id.

In this circumstance, a decision on the federal public

forum issue will transgress ‘‘the Court’s settled policy to

*6Cuardianship of Roe, 383 Mass. 415, 421 N.E.2d 40 (1981).

See PruneYard Shopping Center v. Robins, 447 U.S. 74,

81 (1980) (Supreme Court reasoning does not “limit the au-

thority of the state to exercise its police power or its sovereign

right to adopt in its own Constitution individual liberties more

expansive than those conferred by the Federal Constitution.”).

avoid unnecessary decisions on constitutional issues,’’*?

as well as ‘‘the prohibition against advisory opinions.’’

Id, at 38052' Accordingly, the judgment of the court of ap-

peals should be vacated and the case remanded for con-

sideration of the state law question.?

co)

CONCLUSION

The question of whether important regional facilities

such as publicly owned and operated airports constitute

public fora is an issue of substantial national significance.

#WAmicus do not concede that LAX is not a public forum

under federal law. On the contrary, as argued extensively in

the respondents’ brief, LAX is a public forum under federal law.

However, because of the concerns raised herein, the federal

question ‘need not be decided at the present time.

311m Mills, the Court cited United States v. Hastings, 296 U.S.

188, 193 (1935), in noting that “review of one basis for a deci-

sion supported by another basis not subject to examination

would represent ‘an expression of abstract opinion.’ ’’ 457 U.S.

at 305. This is precisely the situation here regarding the Cali-

fornia and Federal public forum question.

This procedure was followed in City of Mesquite, as well

as in Three Alfiliated Tribes v. Wold Engineering, 467 U.S. 138

(1984) (No. 82-629), where the Court vacated a decision by the

North Dakota Supreme Court that apparently rested on an er-

roneous conception of federal law, and remanded to that court

for clarification. Although Wold arose in the state as opposed

to federal court system, the same policy concerns which are

at issue here were raised there: “It is a fundamental rule of

judicial restraint . . . that this Court will not reach constitu-

tional questions in advance of the necessity of deciding them

This Court has relied on that principle ... to resolve

doubts about the independence of state law decisions in favor

of an interpretation that avoids a constitution question.” /d.

at 157-58 (citations omitted). This same “prudential rule’ id. at

158, should be employed in the present case.

It is only prudent, therefore, that the resolution of such

a question, which will have a direct impact on the types

of public facilities that may be made available for the

exercise of First Amendment rights, be made on the best

possible facts and circumstances. Unfortunately, such facts

and circumstances do not exist in the present ease.

The inadequacy of the present record upon which to

posit a federal public forum decision is attributable to

two primary factors: (1) the speculative and unentforce-

able nature of Resolution No. 13787; and (2) the existence

of a prominent, nonfederal right of access to LAX under

article I, section 2 of the California Constitution.

Thus, the judgment of the court of appeals should be

vacated and the case remanded with instructions that the

present action be dismissed, or, in the alternative, to con-

sider the state constitutional question.

Respectfully submitted,

Davin M. LiserMan

9806 Washington Boulevard

Culver City, California 90232

(213) 204-0488

Attorney for Amicus Curiae

International Society for

Krishna Consciousness of

California, Inc.

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App. 1

APPENDIX A

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

(Filed June 29, 1984)

INTERNATIONAL SOCIETY

FOR KRISHNA

CONSCIOUSNESS OF

CALIFORNIA, INC.,

Plaintiff,

VS.

CITY OF LOS ANGELES, A

CALIFORNIA MUNICTPAL

CORPORATION; EMMETT C.

McCAUGHEY, President of the

Los Angeles Board of Airport

Commissioners: ELIZABETH

K. ARMSTRONG, Vice-Presi-

dent of the Los Angeles Board

of Airport Commissioners; and

JOHNNTE L. COCHRAN, JR.,

MARY LOU CUNNINGHAM,

and SAMUEL GREENBERG,

members of the Airport

Commission,

Defendants.

CITY OF LOS ANGELES; THE

BOARD OF ATRPORT

COMMISSIONERS OF THE

CITY OF LOS ANGELES,

Plaintiffs,

)

YNO. CV 83-5229-ER

) CV 84-0045-ER

)

) (Consolidated)

)

) ORDER

) DISMISSING

) CASE NO.

) CV 840045 FOR

) LACK OF

) SUBJECT

) MATTER

) JURISDICTION

) AND

) REMANDING

) CASE NO.

) 83-5229 AS

) IMPROVIDENTLY

) REMOVED

App. 2

VS.

THE INTERNATIONAL

SOCIETY FOR KRISHNA

CONSCIOUSNESS OF

CALIFORNTA, INC.;

INTERNATIONAL CAUCUS OF)

LABOR COMMITTEES; FUSION )

ENERGY FOUNDATION;

SOLDIERS OF THE CROSS

OF CHRIST; NATIONAL

ANTI DRUG COALITION,

‘

Defendants.

me ee ee ee ee ee

On June 11, 1984, the Motion for Summary Judgment

of City of Los Angeles requesting declaratory and injune-

tive relief in both of the above-captioned consolidated mat-

ters came on for hearing. Robert C. Moest, attorney for

the International Society for Krishna Consciousness,

David L. Llewellyn, Jr., attorney for the Soldiers of the

Cross of Christ; and Jeffrey S. Cohen, attorney for the

Fusion Energy Foundation, National Anti-Drug Coalition

and the International Caucus of Labor Committees op-

posed the City’s Motion for Summary Judgment. James

R. Kapel represented the City parties.

Upon consideration of the papers submitted by the

parties, the file in this case, their oral argument, and its

own research, this Court does not find it possible to reach

the merits presented by the summary judgment motion.

For the reasons set out below, this Court has determined

that it does not have subject matter jurisdiction over Case

No. 84-0056-ER. This Court does not have jurisdiction

App. 3

over Case No. 83-5229-ER because there is no live econtro-

versy.

BACKGROUND

The first of the two consolidated cases was filed by

the International Society of Krishna Consciousness

(‘“‘ISKCON’’) against the City. It was filed in state court

on July 18, 1983, removed to the federal court August 12,

1983, and a first amended complaint was filed October 24,

1983. The complaint alleges that a resolution passed by

the Board of Airport Examiners forbidding ‘‘ First Amend-

ment activities by any individual and/or entity’’ at the

Central Terminal Area of the Los Angeles International

Airport (‘ LAX’’)! violates the first amendment of the

federal constitution, § 1983, and article 1, §4 2. 4, and 7 of

the California constitution. Plaintiff seeks declaratory

and injunctive relief. The City filed the second lawsuit

against ISKCON, the International Caucus of Labor Com-

mittees, Fusion Energy Foundation, the National Drug

Coalition, and the Soldiers of the Cross of Christ. The

City seeks a declaration that the resolution is constitu-

tional and that the listed defendants are violating the reso-

lution, and an injunction forbidding them from violating —

the resolution in the future.

DISCUSSION

Does this Court have Subject Matter Jurisdiction Over

the City’s Suit for Declaratory and Injunctive Relief?

The City claims that this Court has federal question

jurisdiction over its suit, pursuant to 28 U.S.C. § 1331

(1984). But a federal court does not have federal ques-

tion jurisdiction over a case in which the plaintiff is suing

App. 4

on a state law cause of action and the federal question only

arises by way of the defendant’s defense or by the plain-

tiff’s rebuttal to the defendant’s defense. Applying that

principle to the present case, all that the City would need

to prove in an affirmative suit would be that the defen-

dant(s) violated a state law. That the law is constitu-

tional would only come in a. a response to defendant’s ob-

jection that the state law is unconstitutional.

The Supreme Court recently dealt with this very is-

sue Franchise Tax Board v. Construction Laborers Va-

cation Trust, — U.S. —, 103 S.Ct. 2841 (1983), the Court

posed the question whether a suit for a declaratory judg-

ment that a state law was consistent with ERISA arises

under federal law and answered the question as follows:

We think not. We have always interpreted what

Skelly Oil called ‘‘the current of jurisdictional legis-

lation since the Act of March 3, 1875,’’ 339 U.S., at

673, 70 S.Ct., at 879, with an eye to practicality and

necessity. ‘‘What is needed is something of that com-

mon-sense accommodation of judgment to kaleido-

scopic situations which characterizes the law in its

treatment of causation ...a selective process which

picks the substantial causes out of the web and lays

the other ones aside.’’ Gully v. First National Bank,

299 U.S., at 117-118, 57 S.Ct., at 99-100. There are

good reasons why the federal courts should not enter-

tain suits by the States to declare the validity of their

regulations despite possibly conflicting federal law.

States are not significantly prejudiced by an inability

to come to federal court for a declaratory judgment in

advance of a possible injunctive suit by a person sub-

ject to federal regulation. They have a variety of

means by which they can enforce their own laws in

their own courts, and they do not suffer if the pre-

App. 5

emption questions such enforcement may raise are

tested there.

Id, at 2852 (footnotes omitted) (emphasis added).

The City’s reply brief unintentionally supports the

argument that it is not raising any federal question, ex-

cept as a defense. The City states:

There can be no doubt that the controversy be-

tween the parties arises out of the federal constitu-

tional and statutory law as well as involving state is-

sues. All of the defendants have claimed that they

have federally protected rights to conduct their dis-

tribution and soliciting activities in the terminal facili-

ties at LAX.

City’s Reply Brief at 25-26.

The Court has not discovered, nor have the parties

cited. a single case brought by a state, city or federal gov-

ernment seeking, before the law is enforced, a declaratory

judgment that a law is constitutional, with the exception

of Muskrat v. United States, 219 U.S. 346 (1911). Muskrat

established the longstanding precedent that a federal court

will not, before the law is applied, declare laws to be con-

stitutional, because by doing so the court would issue ad-

visory opinions.

The City contends that the consolidation saves it from

dismissal. ‘‘The City’s position as plaintiff in this second

case, rather than as a Cross-Complainant joining other

necessary and interested parties, is merely because the

second, separate suit was the easiest way to bring all nec-

essary parties before the Court.’’ City’s Reply Brief at

26. But, the other groups are not necessary parties for

ISKON’s (sic) suit that the resolution is unconstitutiona!

as applied to ISKCON and on its face because only

App. 6

ISKCON would be bound by the ruling if it were un-

favorable.’

Consolidation poses neither a practical nor a theo-

retical problem. All the cireuits which have considered

the question have said that consolidated cases retain their

separate identities. Robinson v. Worthington, 544 F.

Supp. 949 (N. D. Ala. 1982) recites the applicable law:

A review of the law concerning consolidation

quickly disabused the Court of the notion that actions

somehow lose their separate identity upon consolida-

tion. The ruling of the Supreme Court in regard to

consolidation prior to the adoption of Rule 42(a) is

still regarded as authoritative:

‘‘Consolidation is permitted as a matter of con-

venience and economy in administration, but does

not merge the suits into a single cause, or change

the rights of parties, or make those who are par-

ties in one suit parties in another.’’ Johnson v.

Manhattan Railway Co., 289 U.S. 429, 496, 497, 53

S.Ct. 721, 727, 77 L.Ed. 1331 (1933).

“Thus the Courts hold that actions do not lose

their separate identity because of consolidation.’’

Id. at 952 (citations omitted).

Therefore, the City’s suit for declaratory and injunc-

tive relief is dismissed for lack of subject matter juris-

diction for want of a federal question.

Does the Suit by ISKCON Raise a ‘‘Case of Contro-

versy[’’] Such That This Court Possesses Jurisdiction?

The jurisdiction of federal courts is limited to the ad-

judication of ‘‘cases or controversies’’ by Art. ITI, § 2, of

the Constitution. The Declaratory Judgment Act, 28

U.S.C. § 2201 aplies only to cases of actual controversy.’’

Thus,

App. 7

‘*the question in each case is whether the facts

alleged, under all the circumstances, show that there

is a substantial controversy, between parties having

adverse legal interests, of sufficient immediacy and

reality to warrant the issuance of a declaratory judg-

ment.’’ Maryland Casualty Co. v. Pacific Ceal &

Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed.

826 (1941).

quoted in Western Mining Council v. Watt, 643 F.2d 618,

624 (9th Cir. 1981).

The standard is heightened by the fact that the plain-

tiffs seek to have this Court declare the resolution uncon-

stitutional and enjoin its enforcement.* In such a case,

it is especially important that the Court is certain that

there is an actual case or controversy between the parties,

as the Supreme Court explained in Poe v. Ullman, 367 U.S.

497 (1961) (no case or controversy in suit seeking declara-

tory judgment on constitutionality of law banning sale of

contraceptives when no indication that law would be en-

forced).

These considerations press with special urgency

in eases challenging legislative action or state judicial

action or state judicial action as repugnant to the Con-

stitution. ‘‘The best teaching of this Court’s experi-

ence admonishes us not to entertain constitutional

questions in advance of the strictest necessity.’’...

[flederal judicial power is to be exercised to strike

down legislation, whether state or federal, only at the

instance of one who is himself immediately harmed,

or immediately threatened with harm, by the chal-

lenged action. ... ‘‘This court can have no right to

pronounce an abstract opinion upon the consti! ition-

ality of a State law. Such a law must be broucht into

actual or threatened operation upon rights properly

App. 8

falling under judicial cognizance, or a remedy is not

to be had here.

367 U.S. at 503 (citations omitted) (emphasis added).

The Supreme Court stated the mere existence of a

panel statute constitutes insufficient grounds for an ad-

judication of its merit if ‘‘real threat of enforcement is

wanting.[’’] Jd. at 507. See also Western Mining Council,

643 F.2d at 627.

Furthermore, events can render moot actions which

once presented a case or controversy. ‘‘Simply stated, a

case is moot when the issues presented are no longer ‘live’

or when the parties lack a legally cognizable interest in

the outcome.’? Powell v. McCormack, 395 U.S. 486, 496

(1969). .As the Supreme Court instructed the district court

in Ellis v. Dyson, 421 U.S. 426 (1975):

The district court will find it desirable to examine the

current enforcement scheme in order to determine

whether, indeed, there is now a credible threat that

petitioners ... might be arrested and charged with

loitering. A genuine threat must be demonstrated if

a case or controversy, within the meaning of Article

III of the [CJonstitution and of the Declaratory Judg-

ment Act, may be said to exit [sic]. ... Further, the

credible threat must be shown to be alive at each stage

of the litigation.

421 US. at 454 (citations omitted).

ISKCON argues that there is no present case or con-

troversy before this Court. Its amended complaint alleged

that immediateiy after the resolution was passed, airport

officials distributed copies of the resolution to ISKCON

members and members of the public. While this may have

created a case or controversy when this case was filed,

App. 9

there is none now. ISKCON states that its members have

not been harrassed by airport officials. Additionally, the

Los Angeles City Charter provides that the airport board

‘*shall have power. ... to make and enforce all necessary

rules and regulations governing the use and control of

all municipal airports within the City of Los Angeles.’’

City Charter Art. XXIV, § 239. The provision goes on

to state that ‘‘said regulations shall be approved by the

Council by ordinance which shall prescribe the penalties

for the violation of such rules and regulations.’’ Section

239.2(1) states that the general manager of the airport

department ‘‘shall have the power and duty to enforce all

orders, rules and regulations adopted by the Board.’’ The

charter does not provide for the Board to pass resolu-

tions, as it has in this case. Nor has the City Council rati-

fied the Board’s resolution.

Further evidence that there is not case or controversy

‘‘of sufficient immediacy and reality to warrant the issu-

ance of a declaratory judgment.’’ Varylan/ Casualty Co.,

312 U.S. 270, is found in the City’s answer to ISKCON’s

complaint. The city states ‘‘defendants, and each of them,

deny that Resolution No. 13787 adopted by the Board has

been enforced against the plaintiff or against anyone: { 5,

and ‘‘defendants, and each of them, allege that pursuant

to City Charter § 239 all rules must be approved by the

City Council.’’ 6.

The City does not substantively address this argument

in its reply. except to cite the standard and to observe that

ISKON initiated the suit. That does not change the pre-

ceding analysis—the requirement of an actual controversy

is jurisdictional and as such, can be raised by any party or

the Court sua sponte at any time.

App. 10

This Court finds that the question whether the reso-

lution violates the first amendment is not an actual ease

or controversy. There is not sufficient adversity between

the parties to make determination of the federal constitu-

tional uestion appropriate. This case was therefore im-

providently removed and must be remanded to state court.

DATED: June 29, 1984.

/3/ Edward Rafeedie

United States District Judge

App. 11

FOOTNOTES

1. The Board adopted the resolution July 13, 1983.

It stated in pertinent part:

NOW, THEREFORE, BE IT RESOLVED by the

Board of Airport Commissioners that the Central

Terminal Area at Los Angeles International Airport

is not open for First Amendment activities by any

individual and/or entity:

BE IT FURTHER RESOLVED that the Central

Terminal Area at Los Angeles International Airport

is only to be used for the promotion and accommoda-

tion of air commerce and air navigation or uses in-

cidental thereto unless the Board of Airport Com-

missioners makes the appropriate findings pursuant

to Charter Section 238.8 that a portion of said area

is not currently required for the promotion or ac-

commodation of air navigation or uses incidental

thereto; and

BE IT FURTHER RESOLVED that after the ef-

fective date of this Resolution, if any individual and/

or entity seeks to engage in First Amendment activ-

ities within the Central Terminal Area at Los Angeles

International Airport, said individual and/or entity

shall be deemed to be acting in contravention of the

stated policy of the Board of Airport Commissioners

in reference to the uses permitted within the Central

Terminal Area at Los Angeles International Airport;

and

BE IT FURTHER RESOLVED that if any individual

or entity engaged in First Amendment activities with-

in the Central Terminal Area at Los Angeles Inter-

national Airport, the City Attorney of the City of

Los Angeles is directed to institute appropriate liti-

gation against such individual and/or entity to ensure

compliance with this policy statement of the Board of

Airport Commissioners; and

App. 12

BE IT FURTHER RESOLVED if any entity or in-

dividual seeks to engage in First Amendment activ-

ities in the vicinity of the Central Terminal Area,

those activities must be conducted only on the side-

walks in front of the ticketing buildings and in sucli a

manner so as to not interfere with other persons.

(Emphasis added.)

2. The precise question in Franchise Tax Board was

whether a case was properly removed from state court.

The federal question analysis, however, is the same in both

removed cases and cases originally brought in federal

courts.

3. The procedural problems which would accompany

the City’s suit for a declaratory judgment support de-

clining to issue such declarations. ‘‘ All persons who have

an interest in the determination of the questions raised

in a declaratory judgment suit should be before the Court.’’

Diamond Shamrock Corp. v. Lumberman’s Mutual Cas-

ualty Co., 416 F.2d 707, 710 (7th Cir. 1969). The City

lists other organizations besides the five named defendants

who requested permission to solicit at LAX, and the de-

fendants have mentioned still more groups who they claim

have solicited at LAX. These other groups would surely

be interested parties in a case brought by the City to prove

that the law is unconstitutional, yet they are not parties

in this action. Including all interested parties would make

this an unmanageable lawsuit. But, unless such groups are

included, they would not be bound by the resolution of

this case. Were the Court to find the resolution consti-

tutional, this issue would have to be litigated again if the

resolution were enforced against nonparties and they con-

tested the constitutionality.

App. 13

4. Were the City the party arguing that no con-

troversy exists, the Court’s determination could differ.

When a defendant has enforced a statute in the past, or

has reasonably threatened to enforce it, the defendant

normally has a heavy burden showing that it will not en-

force the law in the future. See Rabinowitz v. Board of

Junior College, 507 F.2d 1255 (7th Cir. 1974). But here

ISKCON—who brought the suit—states that it is not

worried about prosecution, which strongly indicates that

there is no case or controversy. Indeed, at oral argument

the City’s attorney stated that the City wanted a ruling

on the constitutionality of the resolution and a determina-

tion whether LAX was a public forum before enforcing

the resolution.

App. 14

APPENDIX B

ARTICLE XXIV

DEPARTMENT OF AIRPORTS

(Formerly entitled, ‘‘Department of Trusts’’; repealed,

and new article added, 1947.)

See. 238. There is hereby established a Department

of Airports (hereinafter in this article referred to as the

Department) to be under the management and control of a

board of five commissioners to be known as the Board of

Airport Commissioners (hereinafter referred to as the

Board), to which the provisions of Article VI of this char-

ter shall apply insofar as applicable. (Added, 1947.)

See. 238.1. (Repealed, 1973.)

See. 258.2. (Repealed, 1973.)

Sec. 238.3. Such department shall have control of its

own revenues or funds, and expenditures of all bond funds

relating to its facilities or activities. (Added, 1947.)

See. 238.4. The Board shall have possession, man-

agement, charge, superintendence and control of all air-

ports, airport sites, and all equipment, accommodations

and facilities for aerial navigation, flight, instruction and

commerce belonging to or pertaining to this city; and such

other property as it may acquire or which shall be placed

under its control. (Added, 1947.)

See. 238.5. The Board shall fix, regulate and collect

rates or charges for the use of all buildings, grounds,

facilities, utilities and structures, which are owned, con-

trolled or operated by the city in connection with or for the

promotion or the accommodation of air commerce and air

App. 15

navigation; and for services in connection therewith.

(Added. 1947.)

Sec. 238.6. The Board shall regulate and control all

concessions, public service and public utilities operated

upon or in any airport under its control in connection with,

or for the promotion of air commerce or air navigation, or

in connection with the municipal facilities therefor, .nd

shall fix the fees to be paid to the city by any person, firm,

or corporation operating any such public service or utility:

and shall fix and regulate the toll or rates to be charged or

collected for services furnished by any such public service

or utility. The Board shall have the right, at all reasonable

times, to have access to examine the hooks. papers, maps,

and records showing the affairs, transactions, property,

and financial condition of such persons, firms or corpora-

tions, which said examination may be made by the mem-

bers of the Board, examiners of the Board, or any other

duly authorized representative; and to require reports re-

specting such matters from such persons, firms or cor-

porations at such times and in such form as the Board

may prescribe. The Board by order, subject to approval,

change or modification by the Council by ordinance, may

fix the amount of license fees to be paid to the city by any

such person, firm or corporation operating any such pub-

lie service or utility, and the rates or terms to be charged

and collected for commodities or services furnished or sup-

plied by such public service or utility. (Added, 1947.)

See. 238.7. The Board shall have the power to pur-

chase, lease, acquire, design, erect, maintain, improve,

repair and operate all such property, improvements, utili-

ties, equipment, supplies, machinery, aircraft, watercraft,

vehicles, appliances, or facilities as it may deem necessary

App. 16

or convenient for the promotion and accommodation of

air commerce and air navigation; for manufacture or re-

pair of devices therefor; or for use in connection there-

with. (Added 1947)

Construction and leasing of hangars on a munici-

pal airport to private persons and corporations for

manufacturing and other work on aircraft is not the

use of public funds for a private purpose in violation

of Article I, Section 14 of the State Constitution.

Pipes v. Hilderbrand, 110 Cal. App. (2d) 645, 648.

See. 258.8. The Board shall have power to grant

franchises, permits and licenses to, and to enter into leases

with, any person. firm or corporation, or agency of the

government for the use of any municipally owned or con-

trolled airport or any part of facility thereof, for the

promotion and accommodation of air commerce and air

navigation, or use incidental thereto, together with the

right to use said airport in common with others as neces-

sary to the right granted. (Amended, 1951.)

The Board shall likewise have power to enter into

leases with any person, firm or corporation for purposes

other than for the promotion and accommodation of air

commerce and air navigation covering any portion of the

airport property whenever the Board shall determine that

the use of such portion of the Airport property is not

necessary for the promotion and accommodation of air

commerce and air navigation or use incidental thereto.

(Added, 1951.)

See. 238.9. All such franchises, permits, licenses and

leases shall be granted and entered into subject to such

terms and conditions and such rentals or compensation as

App. 17

the Board in its discretion may prescribe. Every such

franchise, permit, license or lease granted or entered] into

for a definite period of time shall be made by order and

if made for a period of five (5) years or less such order

shall be published once in the same manner as ordinances

of the City, and shall take effect upon such publication.

If made for a longer period than five years the same shall

be submitted to the Council for its approval or disap-

proval. Action must be taken thereon by the Council with-

in sixty (60) days after such franchise, permit, license or

lease shall have been submitted to it. If the Council shall

approve the same, the order granting such franchise, per-

mit, license or lease shall thereupon be published once in

the same manner as ordinances of the City; if the Coun-

cil shall fail to disapprove any such franchise, permit,

license or lease within said period of sixty days, the order

granting such franchise, permit, license or lease shall

thereupon be published once in the same manner as ordin-

ances of the City. Every such order granting a franchise,

permit, license or lease for a period of time greater than

five years shall, before the same becomes effective, be

subject to the referendum provisions of this charter re-

lating to ordinances. (Amended, 1983.)

No such franchise, permit, or license shall be made for

a term or period greater than fifty (50) years, nor shall

any such lease be made for a term or period greater than

the term permitted by state, or for ninety-nine (99) years.

whichever is less, and any such franchise, permit, license,

or lease shall be subject to a readjustment of the rental

compensation at least every ten (10) years during the

term thereof upon such procedure as shall be prescribed

in the instrument granting such franchise, permit, license

or lease. (Amended. 1983.)

App. 18

Sees. 238.10-238.11 Inclusive. (Repealed, 1951.)

Sec. 239. The Board shall have power and it shall be

its duty, subject to the powers of the United States re-

specting commerce, to make and enforce all necessary

rules and regulations governing the use and control of all

municipal airports located within the City of Los Angeles,

or upon any of its property wherever located, and the

use of airways and waterways proximate thereto incident

to aerial navigation. Said regulations shall be approved by

the Council by ordinance which shall prescribe the penal-

ties for the violation of such rules and regulations.

Such regulations may embrace but are not limited to:

(a) The ascent, landing, mooring, movement, main-

tenance, operation or use of all apparatus for aerial navi-

gation and flight, or convenient or necessary in connec-

tion therewith.

(b) The design construction, maintenance, use, con-

dition and operation of all and any utility, machine, build-

ing, structure, improvement or appliance on any airport

under its jurisdiction; and control of excavation, obstruc-

tions and traffic on or in said airports. (Sec. added, 1947.)

Sec. 239.1. (Repealed, 1973.)

Sec. 239.2. The general manager of the Airport De-

partment, in addition to the powers and duties which are

or may be conferred upon him as elsewhere provided in |

this charter, shall have the power and it shall be his duty:

(Added, 1947.)

(1) To enforee all orders, rules and regulations

adopted by the Board relating to the regulation, operation

App. 19

or control of the funds, facilities, properties and appara-

tus of said department; (Added 1947.)

(2) To supervise and manage the design, construc-

tion, maintenance and operation of all work or works auth-

orized or ordered by the Board and to that end the Board

shall have power to delegate to him such necessary powers

and duties as are by this charter conferred upon said

Board. (Added, 1947.)

See. 239.3. The general manager shall have power to

designate and assign space for the use of aircraft at any

airport owned, controlled or operated by the city, at the

duly established rates or charges for the use of such mu-

nicipal facilities and subject to the rules and regulations

governing the same; and to designate and assign space in

any warehouse, shop, field, runway, hangar or like facility

operated by the city at the duly established rates or

charges for the use of such municipal facilities and subject

to the rules and regulations governing the same. Every

such assignment of space shall be in writing and shall re-

serve to the city the right to use such space or facility for

general airport or other purposes when such space is not

required for the use of the permittee or lessee. (Added,

1947.)

See. 259.4. Every such assignment of space shall be

revocable by the general manager without compensation to

the lessee or permittee upon due notice to be stated therein,

such notice in no case to exceed one year. (Added, 1947.)

See. 239.5. Whenever it shall be determined by the

Board by order that certain parts of any airport owned,

operated or controlled by the city may not be required at

such time for use in connection with, or for the promotion

App. 20

and accommodation of air commerce and air navigation,

the general manager shall have power to issue revocable

permits to use limited portions of such space for any and

all purposes which shall not interfere with air commerce

or air navigation and not inconsistent with any trust upon

which such land may be held by the City of Los Angeles.

Every such permit shall first be approved by the Board

and shall prescribe that it shall be revocable, without com-

pensation to the lessee or permittee, upon due notice to be

stated therein, such notice in no case to exceed one year.

(Added, 1947.)

See. 239.6. Every such assignment of space or re-

voeable permit shall be made in writing or printing which

shall set forth the terms and conditions thereof. (Added,

1947.)

See. 239.7.

The Board shall have power to order and contract for

the expenditure of all money derived from the sale of

honds of the City issued for airport improvements, and of

all money in the Airport Revenue Fund. Whenever the

Board shall have approved and authorized any work or

improvement, and shall have appropriated the necessary

money therefor, the general manager shall have power to

let any necessary contract in connection with such work or

improvement. In cases of emergency where the circum-

stances render it impossible to seeure bids for the fur-

nishing of labor or materials without undue delay or loss

to the City, the general manager may, with the approval

of the Board, let such contract without advertising for

hids. (Amended, 1977.)

App. 21

Notwithstanding any other provision of this Charter,

the requirement for security deposits including surety

bonds and faithful performance bonds and annual bid

bonds as prescribed elsewhere in this Charter may, in the

general manager’s discretion, be omitted when letting

contracts for purchases of materials, supplies and equip-

ment, and for the rental, repair and maintenance thereof.

(See. title deleted, 2nd par. added, 1982.)

See. 259.8. Airport Revenue Fund.

There is hereby established the Airport Revenue

Fund, the depository for which shall be the City Trea-

sury. Said fund shall be exempt from the provisions of

Section 382 of this Charter and shall be maintained

separate and apart from all other funds and accounts in

the City Treasury. The Airport Revenue Fund shall con-

sist of: (a) all funds, moneys, securities, credits and

other evidences of indebtedness in the present Airport

Fund and all

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.