Opposition Brief — Los Angeles Police Department v. Perry

Supreme Court, U.S

No. 97-1228

In The

Supreme Court of the Hnited States

———

October Term, 1997

LOS ANGELES POLICE DEPARTMENT, CITY OF LOS

ANGELES, OFFICER JANE DOE RODRIGUEZ,

SERGEANT JOHN DOE MONTELONGO and CHIEF

WILLIE WILLIAMS,

Petitioners,

VS.

HARRY NMI PERRY and ROBERT “JINGLES” NEWMAN,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

JAMES H. FOSBINDER

Counsel of Record

RHONDA M. FOSBINDER

FOSBINDER & FOSBINDER

Attorneys for Respondents

723 Ocean Front Walk

Venice, California 90291

(310) 396-1071

(310) 285-3019

(800) 274-3321 * (800) 359-6859 uz

A DIVISION OF COUNSEL PRESS

i

QUESTIONS PRESENTED FOR REVIEW

Whether the Equal Protection Clause prohibits the City of

Los Angeles from requiring membership in a city licensed

“charitable” or “non-profit” organization in order for an

individual to be allowed to fully exercise one’s First Amendment

rights under the United States Constitution (hereinafter “First

Amendment’) in a traditional public forum.

Whether city licensed non-profit organizations have

“greater” First Amendment protection than individuals when

engaging in protected expressive activities.

il

TABLE OF CONTENTS

Page

Questions Presented for Review ................... i

Bas CS COMES .. ccccccsitexcesesiapianeneneee il

BRED GS CRIEOED 0 0 00 0ss0cssesseenssenee lil

Summmasy 5 AGE «oo cccvtscsvsendeneenenens l

SOMERSET PGS oc cccccucsteccsentaemenue l

Reasons for Denying the Writ .................... +

I. The Decision By The Ninth Circuit Properly

States And Applies The Applicable Rules Of Law

Set Forth By This Court And By Prior Ninth

COUNTER. sccccsestsctdcadansmann +

A. The Decision Below Is Consistent With This

Camt) GHEE. oc cccctcunsasenebiens +

B. The Decision Below Does Not Conflict With

The Ninth Circuit’s Earlier Holdings In

Gaudiya And One World One Family Now.

o00ccccctbeeesessensannne 8

II. AnAdvisory Opinion To The City Of Los Angeles

On How To Draft Its Ordinances Is Unnecessary

AGE DACIGEE, . «0c cisavivecéonieaneeneiin 12

CORGRIIOR oc cundecccsassneusnneneee 15

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Board of Trustees of the State University of New York v.

Fox, 492 U.S. 469, 109 S. Ct. 3028, 106 L. Ed. 2d

CEE eee ee eee ee Tee ee ee 4, 6,7

Burton v. United States, 196 U.S. 283, 49 L. Ed. 482,

RR OT Te eT eee TT Te Tee eee 13, 14

Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900,

rr vd ch ah w eee snes eee’ oe os 11

Carey v. Brown, 447 U.S. 455, 100 S. Ct. 2286, 65 L.

i ak tee ie den ethane en ssede wen 5

City of Lakewood v. Plain Dealer Publishing Co., 486

U.S. 750, 108 S. Ct. 2138, 100 L. Ed. 2d 771

ed CRORE CLG SKN EeA ahd Cee baenndns 11

City of Cincinnati v. Discovery Network, 507 U.S. 410,

113 S. Ct. 1505, 123 L. Ed. 2d 99 (1993) ........ 6

Clinton v. Jones, 117 S. Ct. 1636, 131 L. Ed. 2d 945

ESSE er ee eee ee eee 13

Gaudiya Vaishnaya Society v. San Francsico, 900 F.2d

1369 (9th Cir. 1990), amended, 952 F.2d 1059 (9th

Tt Cia kehac he cee ke se Ke shee ans 4,8

iv

Contents

Page

Hudson v. United States, 118 S. Ct. 488, 139 L. Ed. 2d

CREE Ce ceca outlet ass pene besateaeee 13, 14

Murdock v. Pennsylvania, 319 U.S. 105, 63 S. Ct. 870,

ge Se ee nee 15

One World One Family Now v. City and County of

Honolulu, 76 F.3d 1009 (9th Cir. 1996) ..... 3, 4, 8, 9, 10

Perry v. Los Angeles Police Department, 121 F.3d 1365

oo ED, rey errr Eran 3, 5, 8, 11, 12

Raines v. Byrd, 117 S. Ct. 2312, 138 L. Ed. 2d 849

1997 U.S. LEXIS 4040 *14 (1997) ............. 13

Riley v. National Federation of the Blind, 487 U.S. 781,

108 S. Ct. 2667, 101 L. Ed. 2d 669 (1988) ...... 4,6,7

Shuttlesworth v. City of Birmingham, 194 U.S. 147, 89

>. Ct. 935, 22 L. BS. 26 IGS CIPS) ow ccc ccnccs 11

United States Nat’l Bank of Oregon v. Independent

Insurance Agents of America, Inc., 508 U.S. 439, 113

S. Ct. 2173, 124 L. Ed. 2d 402 (1993) .......... 13

Village of Shaumberg v. Citizens for a Better Environment,

444 U.S. 620, 100 S. Ct. 826, 63 L. Ed. 2d 73 (1980)

Contents

Page

Statute Cited:

Los Angeles Municipal Code Section a eee re 1,2

United States Constitution Cited:

First Amendment ..........--+ee cece eer eeeeeeeee passim

Rule Cited:

Fed. R. Civ. Proc. § 50 ...... cee eee ee eee cerns 3

l

SUMMARY OF ARGUMENT

Respondents Harry Perry and Robert Jingles Newman

respectfully request this Court to deny the Petition for Writ of

Certiorari seeking review of the opinion of the Ninth Circuit

Court of Appeal.

The writ should be denied because (1) there is no conflict

of law amongst the appellate courts, or between the Ninth Circuit

and this or any other court, or amongst the Ninth Circuit

decisions themselves, on the issues presented by this matter;

(2) the Ninth Circuit properly states and applies the relevant

rules of law; and (3) the petitioners are improperly seeking as,

advisory opinion from this Court on how to draft its ordinances,

which is not a matter within the jurisdiction of this Court.

STATEMENT OF THE CASE

The issue in this case centers on the constitutionality of an

ordinance enacted by the City of Los Angeles which bans the

sale of merchandise and the solicitation of donations on public

beachfront land, but exempts the solicitation of donations and

the sale of merchandise “constituting, carrying, or making a

religious, political, philosophical or ideological message or

Statement relevant to the purpose of said non-profit

organization” by city licensed non-profit organizations. Los

Angeles Municipal Code § 42.15 (1991) [Petition, pp. 4-5,

31g]. In striking the ordinance, the Ninth Circuit held that the

ordinance was facially unconstitutional and overbroad because

there was no basis for allowing the exercise of First Amendment

protected rights by licensed non-profit organizations, while

prohibiting the exercise of those rights by individuals not

belonging to non-profit organizations.

In the period preceding the filing of the action in the district

court, individuals engaging in religious, political, and artistic

2

activities, including Respondents, were ticketed and threatened

with arrest and jail if they accepted donations or if they took

money in exchange for protected articles bearing such

individual’s message, if the person could not demonstrate to

the City that they belonged to a licensed non-profit organization.

Under the ordinance, for example, if an individual wants to test

the waters for a run for Congress by going down to the Venice

Boardwalk to campaign, he or she will be arrested for violating

the City’s ordinance if the person raises even a small amount of

money by asking for campaign contributions, or for selling

CD-ROMs giving his or her life history and detailed proposals,

unless they first created a non-profit organization.

After the district court issued its initial Temporary

Restraining Order on May 8, 1995, a preliminary injunction

was entered on July 3, 1995, which was and has been the basis

for successful management of the ocean side of the Venice

Boardwalk ever since’.

In modifying the Temporary Restraining Order to create

the terms of the preliminary injunction, the City of Los Angeles

was specifically not enjoined from “enforcing, Los Angeles

Municipal Code Section 42.15 against individuals or nonprofit

organizations selling commercial items such as, but not limited

to, foodstuffs, including but not limited to ice cream, hot dogs,

churros, pastries, fruit or soda... or any other consumer good

which does not have a constitutionally protected message

1. Notably, neither the district court’s Memorandum of

Decision, entered on July 3, 1995, granting a preliminary injunction

on behalf of the plaintiffs, nor the preliminary injunction itself, is

mentioned in the City’s Petition, nor included in the Appendix

thereto. Because it reaches essentially the same conclusions as the

opinion rendered by the Ninth Circuit, however, it is not necessary

to an understanding of the judgment sought to be reviewed and the

decision is therefore not reproduced herein.

3

inextricably intertwined with the product”, to aid the City in

distinguishing protected from non-protected activities.

The status quo with respect to allowing non-commercial

vendors engaged in expressive activities on the Venice

Boardwalk to occupy the western, ocean side of the walkway,

while prohibiting commercial vending, was thus successfully

preserved all summer long, as it is to this date.

On February 20, 1996, however, after presentation of

plaintiffs’ evidence at a bench trial in this action, the City of

Los Angeles moved for a judgment dismissing the action on

partial findings pursuant to Fed. R. Civ. Proc. § 50. The court

below granted the request, basing its decision solely on the

Ninth Circuit’s ruling in One World One Family Now v. City

and County of Honolulu, 76 F.3d 1009 (9th Cir. 1996), in

which an “as applied” challenge to a ban on the sale of message

bearing T-Shirts by non-profit organizations on a main city street

in Waikiki was rejected.

The Ninth Circuit Court of Appeals reversed, holding that

unlike the ordinance in One World, the Los Angeles ordinance

was not narrowly tailored because it discriminated against a

substantial quantity of speech based solely on the identity of

the speaker, i.e. protected, expressive speech by individuals not

affiliated with any non-profit organization, a distinction which

was unwarranted to protect the government's interests and to

remedy the evil the City was seeking to protect against, rampant

commercial activity on the Boardwalk. Thus, the ordinance is

overbroad “because it prohibits not only purely commercial

activities, but also protected expressive activities, like those of

plaintiffs here.” Perry v. Los Angeles Police Department, 121

F.3d 1365, 1371 (9th Cir. 1997).

4

REASONS FOR DENYING THE WRIT

L.

THE DECISION BY THE NINTH CIRCUIT

PROPERLY STATES AND APPLIES THE APPLICABLE

RULES OF LAW SET FORTH BY THIS COURT AND

BY PRIOR NINTH CIRCUIT DECISIONS.

A. The Decision Below Is Consistent With This Court’s

Rulings.

In its Petition for Writ of Certiorari, the City of Los Angeles,

et al. (hereinafter, “the City”) argues that the decision here sought

to be reviewed conflicts with the Ninth Circuit’s earlier decisions

in One World One Family Now v. City and County of Honolulu,

76 F.2d 1009 (9th Cir. 1996) and Gaudiya Vaishnaya Society

v. San Francsico, 900 F.2d 1369 (9th Cir. 1990), amended,

952 F.2d 1059 (9th Cir. 1991), and with this Court’s decisions

in Board of Trustees of the State University of New York v. Fox,

492 U.S. 469, 109 S. Ct. 3028, 106 L. Ed. 2d 388 (1989) and

Riley v. National Federation of the Blind, 487 U.S. 781, 108

S. Ct. 2667, 101 L. Ed. 2d 669 (1988). Nothing could be

further from the truth. In fact, the Ninth Circuit’s decision in

the instant matter is not only consistent with all of these

decisions, as well as with other decisions rendered by this Court,

but is supported by them as well.

The “problem” that the City complains of arises not from

any conflict of law, but from the City’s misunderstanding of

the law, as evidenced by the following “conclusion” set forth

by the City: “Thus, speech by non-profit organizations is

differentiated and given higher constitutional freedom of speech

treatment than other types of speech.” (Petition, p. 14 (emphasis

added)]. This statement, which summarizes the City’s entire

5

argument, is fallacious, and the Equal Protection Clause

mandates that the discrimination between the exercise of First

Amendment rights by non-profit organizations and individuals

is patently unconstitutional. As correctly observed by the Ninth

Circuit:

This type of speaker-based discrimination is

unacceptable. In Schaumberg, the [Supreme] Court

found that the solicitation of charitable donations

could not be regulated by a distinction based on

who was doing the soliciting. The [Supreme] Court

has also noted that “government regulation may not

favor one speaker over another.” Rosenberger v.

Rector and Visitors of the University of Virginia, 115

S. Ct. 2510, 2516 (1995). The government's

argument that prohibition of expressive speech can

turn on a person’s membership in a non-profit

organization fails.

There is simply no authority limiting the right to

seek charitable donations or to sell expressive items

to those with memberships in non-profit

organizations. No other First Amendment rights are

restricted in such a manner. Once it is decided that

the activity here is expressive activity, fully protected

by the First Amendment, the fact that plaintiffs are

not nonprofit organizations does not affect the level

of protection accorded to their speech.

Perry v. Los Angeles Police Department, 121 F.3d 1365, 1371

(9th Cir. 1997) [Petition, p. 15a]; see also, Carey v. Brown,

447 U.S. 455, 100 S. Ct. 2286, 65 L. Ed. 2d 263 (1980)

(ordinance discriminating amongst types of picketers not

6

narrowly tailored); City of Cincinnati v. Discovery Network,

507 U.S. 410, 113 S. Ct. 1505, 123 L. Ed. 2d 99 (1993)

(ordinance discriminating between newsracks for newspapers

and newsracks for commercial handbills not narrowly tailored);

Village of Shaumberg v. Citizens for a Better Environment, 444

U.S. 620, 100 S. Ct. 826, 63 L. Ed. 2d 73 (1980) (ordinance

discriminating between charitable organizations based on the

amount of their receipts used for charitable purposes not

narrowly tailored to serve governmental interest in limiting total

number of door to door solicitations).

The City’s sole support for its conclusion that it may

discriminate in favor of non-profit organizations, offered without

explanation, is this Court’s decisions in Board of Trustees of

the State Univ. of New York v. Fox, supra, and Riley v. National

Federation of the Blind, supra. (Petition, p. 16]. However,

neither of those decisions supports the idea that protected speech

by non-profits may be differentiated from and offered greater

protection than protected speech by individuals without running

afoul of the Equal Protection Clause.

In Riley, in response to a challenge by a “coalition of

professional fund-raisers, charitable organizations, and potential

charitable donors”, Fox, supra, 487 U.S. at 787, this Court

held that various provisions contained in North Carolina’s

Charitable Solicitations Act licensing fund-raisers were

unconstitutional and not narrowly tailored to the state’s interest

in preventing fraud.

In so holding, the Court ruled that contrary to the state's

position that it had an overriding governmental interest in

regulating the charitable solicitations of non-profit organizations,

charitable fund-raising constituted equally protected First

Amendment speech. In ruling that non-profit charitable

solicitations may not be more burdened than other types of

7

protected speech, and is thus equally protected speech, this

Court certainly did not suggest that such speech by non-profits

was more protected than any other type of speech. Id.

In Fox, unlike in Riley, the issue before the Court was the

prohibition by the State University of New York (SUNY) of

the operation of private commercial enterprises in SUNY

facilities. Because the factual situation was vastly different than

in the instant case, the Fox decision is only tangentially related

to the instant action. In Fox, a group of students alleged that in

prohibiting “tupperware parties” in their dormitories, SUNY

was infringing upon their First Amendment rights.

In ruling that the housewares parties sought to be held by

the students constituted unprotected commercial speech, the

Court discussed its holding in Riley concluding that fund-raising

by charitable organizations is fully protected speech because

the commercial aspects of the speech are inextricably intertwined

with the non-commercial aspects of the speech. With respect to

the housewares parties, that Court stated, “there is nothing

‘inextricable’ about the noncommercial aspects of these

presentations.” Board of Trustees v. Fox, 492 U.S. at 474.

The Court went on to discuss the allowable scope of

government restrictions upon this commercial speech,

discussions which have no relevance to the instant action, in

which it is undisputed that all of the speech at issue is protected

First Amendment activity. Once again, there is simply nothing

in Fox to support the City’s contention that speech by non-

profit organizations is to be afforded any greater protection than

any other non-commercial speech, regardless of the speaker.

B. The Decision Below Does Not Conflict With The Ninth

Circuit’s Earlier Holdings In Gaudiya And One World One

Family Now.

The decision below is not only consistent with the Ninth

Circuit’s own decisions, but it is also entirely supported by the

earlier decisions rather than contradicted by them.

In Gaudiya, for example, the Ninth Circuit recognized that

the sale of merchandise by the plaintiff non-profit organizations

constituted protected First Amendment activity, even though

the merchandise being sold existed in the gray area between

purely commercial speech and speech having no intrinsic

purpose or value other than to communicate a message, because

the merchandise and the message were inextricably intertwined.

Gaudiya Vaishnava Society v. San Francisco, 952 F.2d 1059

(9th Cir. 1991). As pointed out by the Ninth Circuit in the

instant decision, none of the reasoning in Gaudiya even

revolved around the incidental fact that the plaintiffs were non-

profit organizations rather than individuals. /d.; see also Perry

v. Los Angeles Police Department, 121 F.3d at 1370 [Petition,

p. 15a].

While it is true that in reaching its decision in Gaudiya the

Ninth Circuit necessarily “relied on case law that accords First

Amendment protection to fund-raising for charitable

organizations”, (Petition, p. 13], that decision simply does not

say that non-profit organizations are to receive greater

constitutional protection than others engaging in the same types

of expressive activities. To the contrary, in fact, the need for the

court to establish the basis for the First Amendment protection

of the non-profits’ activities at all suggests that there was some

issue as to whether or not that type of speech was even protected,

not that it was to receive greater protection. Thus, the Gaudiya

decision is in no manner inconsistent with the instant decision.

9

In One World One Family Now, non-profit T-Shirt vendors

who were attempting to sell articles of clothing bearing slogans

and messages on a busy city street in the heart of Waikiki raised

a very narrow “as applied” challenge to an ordinance which

banned the sale of any types of merchandise except newspapers,

but did allow handing out literature, proselytizing, or soliciting

donations, amongst other things. One World One Family Now

v. City and County, of Honolulu, 76 F.3d 1009, 1014 (9th Cir.

1996). The Ninth Circuit upheld the Honolulu ordinance in a

2-1 decision, holding that it was content-neutral and narrowly

tailored as applied to those particular plaintiffs.

In so holding, the Ninth Circuit found that while the

message bearing T-Shirts were undoubtedly First Amendment

protected items’, the Honolulu ordinance was valid because in

instituting a flat ban on all sales, it did not require any exercise

of discretion by government officials, was inherently content-

neutral, and was narrowly tailored since it banned both

2. Plaintiffs point out that T-Shirts themselves fall into a special

category of expressive item in which the monetary value of the

printed material is primarily in the medium (the article of clothing),

and only incidentally in the message, unlike other items in which

the article itself without the message has very little intrinsic value.

An interpretation of the First Amendment saying that anything could

be sold in a public forum as long as it had a message printed on it

would undoubtedly result in the sale in public parks of “Save the

Whales” refrigerators or “Newt Gingrich for President” bicycles.

Respondents respectfully suggest that for items where the message

is being conveyed on a medium that costs vastly more than its

intrinsic value only because of the message being conveyed should

be treated differently than items the value of which lies only

incidentally in the message. Thus, such items as newspapers, bumper

stickers, buttons, books and CD-ROMs, for example, have virtually

no value without the speech contained in them, and are clearly

purchased for the message they contain and not for the underlying

medium.

10

commercial and non-commercial sales alike, and left open ample

alternative channels of communication because it foreclosed one

narrow form of expression — sidewalk sales of message bearing

merchandise — but left the plaintiffs free to disseminate and

seek support for their views by handing out literature,

proselytizing or soliciting donations, for example. One World

One Family Now, 79 F.3d at 1014.

Unlike the Honolulu ordinance, the Los Angeles ordinance

is not a narrowly tailored ban, because it bans both the

solicitations of donations and the sales of First Amendment

protected materials by individuals, but not by registered non-

profit organizations, and therefore discriminates against

categories of speakers. It furthermore does vest discretion in

government officials, because they can require, grant or deny

non-profit licenses as a prior restraint on speech by individuals.

The Ninth Circuit states the distinction between the cases

succinctly:

[I}n One World, the restriction did not discriminate

against certain types of speech depending on the

speaker. In fact, in One World, when the court

analyzed whether the ordinance was narrowly

tailored, it reasoned that the ordinance was narrowly

tailored because it addressed the government interests

“without ... significantly restricting a substantial

quantity of speech that does not create the same

evils.” 76 F.3d at 1014 (citing Ward, 491 U.S. at

799 n.7). Here, defendants claim to be prohibiting

the evil of commercial activity by prohibiting all

soliciting of donations and sales by anyone not

affiliated with a nonprofit. However, the nonprofit

distinction significantly restricts a substantial

quantity of speech — namely expressive speech by

11

people who are not nonprofit members — that does

not create the same evils as purely commercial

activity on the boardwalk — which is what the

government admittedly wants to restrict. Thus,

applying the reasoning of One World, rather than

merely looking to its result, one can see that the

ordinance at issue here is not narrowly tailored to

serve government interests.

Perry v. Los Angeles Police Department, 121 F.3d at 1371

[Petition, pp. 15a-16a].

Governmental authorities have often attempted to require

potential solicitors to register with civic or law enforcement

authorities before beginning their campaigns. Where registration

processes appeared to be actually licensing programs giving

undue discretion to the licensing officer(s), however, such

registration processes have generally been declared

unconstitutional. Cantwell v. Connecticut, 310 U.S. 296, 60

S. Ct. 900, 84 L. Ed. 1213 (1940); City of Lakewood v. Plain

Dealer Publishing Co., 486 U.S. 750, 757, 108 S. Ct. 2138,

100 L. Ed. 2d 771 (1988); Shuttlesworth v. City of Birmingham,

194 U.S. 147, 149, 150-151, 89 S. Ct. 935, 938-39, 22 L. Ed.

2d 162 (1969).

In essence, the ordinance struck down by the Ninth Circuit

as overbroad impermissibly sought to license any and all First

Amendment activity by requiring that the individual activist

either “shut up” or become a member of a non-profit organization

licensed by the City itself. This is necessary, the City argued, in

order for it to be able to distinguish between “commercial” and

“non-commercial” activities.

The City also argued to the Ninth Circuit that the non-

profit license was so easy to obtain that even plaintiffs could do

12

it, but, as noted by the court, this argument contradicts the City’s

position that the licensing, and hence the distinction between

non-profit organizations and individuals, is necessary to protect

the governments’ alleged interest in protecting against rampant

commercial activities if absolutely anyone can obtain it.*. Perry

v. L.A.P.D., 121 P.3d at 1370, n.1. “A lack of non-profit status

cannot reasonably be a predictor of purely commercial activity.”

Id.

Thus, the Ninth Circuit has properly stated and applied the

relevant rules of law set forth by this Court, in a manner

consistent with this Court’s and the Ninth Circuit’s other

decisions in this area, and there is no reason for review on those

grounds.

Il.

AN ADVISORY OPINION TO THE CITY OF LOS

ANGELES ON HOW TO DRAFT ITS ORDINANCES IS

UNNECESSARY AND IMPROPER.

Finally, the City seeks to know “what law, if any . . . a city

may establish in order to comply with constitutional freedom

of speech requirements . . .” [Petition, p. 8], and “exactly what

may and may not be banned and what must be allowed”.

[Petition, p. i]. This is a request for an advisory opinion. The

actual case or controversy comprising the instant action is the

constitutionality of the City’s ordinance as it currently exists,

not the constitutionality of all of the theoretical possibilities the

City could or could not allow in its future anti-vending

ordinances.

3. Actually, the ordinance is vague as to what is required to be

deemed a “non-profit organization”, since an entity can be

considered non-profit for federal tax purposes without being licensed

by the City of Los Angeles, for example.

13

“*The existence of judicial power under Art. III of the

Constitution depends on the existence of a case or controversy,’

and ‘a federal court lacks the power to render advisory opinions.’

(citations omitted)” United States Nat’l Bank of Oregon v.

Independent Insurance Agents of America, Inc., 508 U.S. 439,

446, 113 S. Ct. 2173, 2178, 124 L. Ed. 2d 402 (1993). Thus,

the prohibition against advisory opinions is based in the

Constitution, and this Court has always been loathe to render

such advisory opinions, especially where, as here, to do so

would blur the lines between the executive, legislative and

judicial branches. See Clinton v. Jones, 117 S. Ct. 1636, 131

L. Ed. 2d 945 (1997) (“These restrictions on judicial activities

‘help ensure the independence of the Judicial Branch and to

prevent the Judiciary from encroaching into areas reserved for

other branches.’ (citations omitted)”); See also Hudson v. United

States, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997). As this

Court has stated:

“No principle is more fundamental to the judiciary’s

proper role in our system of government than the

constitutional limitation of federal court jurisdiction

to actual cases or controversies.” (citations omitted)

Raines v. Byrd, 117 S. Ct. 2312, 138 L. Ed. 2d 849 1997 U.S.

LEXIS 4040 *14 (1997).

Furthermore, to ask this Court to iterate “what law, if any

... a City may establish in order to comply with constitutional

freedom of speech requirements . . .” [Petition, p. 8] and “exactly

what may and may not be banned and what must be allowed”

[Petition, p. i] is to improperly ask this Court to decide additional

constitutional questions not absolutely necessary to the decision

in this case: “It is not the habit of the Court to decide questions

of a constitutional nature unless absolutely necessary to a

decision of the case.” Burton v. United States, 196 U.S. 283,

14

295, 49 L. Ed. 482, 25 S. Ct. 243 (1905), quoted in Hudson v.

United States, 118 S. Ct. 488, 139 L. Ed. 2d 450, 1997 U.S.

LEXIS 7497 *34 (1997).

This Court is not a legislature, and is not in the position to

unnecessarily advise the City in how to draft its ordinances to

comply with established laws. What the City seeks in its request

for review by this Court is an encyclopedic explanation of what

it can and cannot allow in a public forum, i.e. an “owner’s

manual” or “laundry list” for drafting anti-peddling ordinances.

The City’s fundamental misconceptions about even the most

basic First Amendment principles is evident throughout its

petition, and drafting laws which withstand constitutional muster

is surely never an easy task; however, the City’s ignorance or

inability to comprehend fundamental First Amendment

principles is hardly cause for review on certiorari of a properly

reasoned appellate court decision.

Indeed, instead of looking to this Could for advice on how

to draft its ordinance, perhaps the City should look to the

language of the preliminary injunction entered by the district

court, which has been the basis for successful management of

the Venice Boardwalk for nearly three years now. Incidentally,

it should be noted that contrary to the City’s representation in

their Petition that without this Court’s advisory opinion they

will be forced to “go back to a total ban of sales and solicitations

on the Boardwalk”, [Petition, p. 15] such a “total ban” was

never enforced against First Amendment activists, performers,

artists, etc. on the Venice Boardwalk, but rather was only ever

enforced against purely commercial activities such as the sale

of soft drinks or shoes. After the current ordinance was enacted,

however, even purely commercial activities such as the selling

of hot dogs and Snapple brand drinks was allowed by the City,

as long as it was being done by a non-profit organization.

-

15

The City of Los Angeles has simply failed to recognize,

and continues to fail to recognize, that the distinction lies not

in whether or not the “sale of wares” is “charitable”, id., but in

whether the item being sold or given away is a protected,

expressive item whose value is in the message, regardless of

who is engaging in the protected speech.

It should be remembered that the pamphlets of

Thomas Paine were not distributed free of charge.

... Freedom of speech, freedom of the press,

freedom of religion are available to all, not merely

to those who can pay their own way.

Murdock v. Pennsylvania, 319 U.S. 105, 111, 63 S. Ct. 870,

87 L. Ed. 1292 (1943) (Emphasis added). And, it should be

noted, not merely to those who belong to non-profit

organizations.

CONCLUSION

For all of the foregoing reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

JAMES H. FOSBINDER

Counsel of Record

RHONDA M. FOSBINDER

FOSBINDER & FOSBINDER

Attorneys for Respondents

723 Ocean Front Walk

Venice, California 90291

(310) 396-1071

(310) 285-3019