Petition for Writ of Certiorari — G.K. Ltd. Travel v. City of Lake Oswego, Oregon (No. 05-1603)

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OFFICE OF THE CLERK

Supreme Court of the Gnited States

G.K. LTD. TRAVEL, W. H. GILLISON,

KATHLEEN KUSUDO and RAMSAY SIGNS, INC.,

Petitioners,

CITY OF LAKE OSWEGO and SANDY INGALLS,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

JOHN F. WINSTON DOUGLAS M. BRAGG

Counsel of Record 9347 SW Tonapah St.

7590 SW Vlahos Dr. Tualatin, OR 97062

Wilsonville, OR 97070 Tel. (971) 219-3297

Tel. (503) 685-9260

Attorneys for Petitioners

COCKLE LAW BRIFF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Whether government may impose viewpoint based

regulations of speech without compliance with strict

scrutiny by claiming they have an incidental effect

upon speech.

Whether the sign code complies with the Time, Place

and Manner test under the First Amendment or even

the lesser standard applied to commercial speech?

Whether the Ninth Circuit properly exempted content-

based regulations of speech occurring on private prop-

erty and made by private persons, from the procedural

safeguards required by Freedman v. Maryland.

Whether Lake Oswego’s design review clause control-

ling permit approval is unconstitutionally vague as

written and applied?

Whether the district court improperly resolved, and

the Ninth Circuit Court of Appeals improperly rati-

fied, conflicts in evidence of material fact necessary to

support a summary ruling in favor of Lake Oswego.

STATEMENT PURSUANT TO

SUPREME COURT RULE 29.6

Petitioner Ramsay Signs, Inc. and GK Ltd. Travel, Inc. are

privately owned entities. Each has no parent corporation

and there is no publicly held company that owns more

than 10% of each company’s stock.

ili

TABLE OF CONTENTS

Questions Presented

Rule 29.6 Corporate Disclosure Statement

Table of Authorities

Opinions Below

Jurisdiction

Constitutional Provision Involved

Municipal Ordinances Involved

Statement of the Case

Legislative History of the Sign Code

Reasons for Granting the Petition

Without review, the government may impose

new viewpoint based regulations on speech

without complying with strict scrutiny by

claiming they have an incidental effect upon

speech. [The “di minimus” exception allowing

viewpoint discrimination]

The sign code fails to comply with the Time,

Place and Manner test under the First

Amendment or the lesser standard applied to

commercial speech due to a city’s failure to

present sufficient, uncontradicted evidence of

compliance

The Ninth Circuit improperly exempted

content based permitting regulations of speech

directed at speech occurring on private prop-

erty and made by private persons, from incor-

porating procedural safeguards required by

Freedman v. Maryland

TABLE OF CONTENTS - Continued

Page

The lower courts improperly authorized a city

to continue to employ a subjective design re-

view clause controlling permit aprroval that is

unconstitutionally vague

The district court improperly resolved, and the

Ninth Circuit Court of Appeals improperly

ratified, conflicts in evidence of material fact

necessary to support a summary ruling in

favor of Lake Oswego, thereby creating and

affirming entry of a void judgment chilling

protected speech which must be vacated

TABLE OF AUTHORITIES

Adickes v. H.S. Kress & Co., 398 U.S. 144 (1970)

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)... 20, 21

Central Hudson Gas and Elec. v. Public Serv.

Comm’n, 447 U.S. 557 (1980).......cceecerceesennneceerees passim

City of Ladue v. Gilleo, 512 U.S. 43 (1994) 5,7, 19

City of Painesville Building Dept. v. Dworkin &

Bernstein Co., 733 N.E.2d 1152 (Ohio, 2000)

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

Dills v. City of Marietta, 674 F.2d 1377 (11th Cir.

Edenfield v. Fane, 507 U.S. 761 (1993)

Foti v. City of Menlo Park, 146 F.3d 649 (9th Cir.

Freedman v. Maryland, 380 U.S. 51 (1965).... 14, 15, 16, 20

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

Gresham v. Peterson, 225 F.3d 899 (7th Cir. 2000) 17, 29

Haynes v. Mayor of Oradell, 425 U.S. 610 (1976) 4 37

Home Box Office, Inc. v. FCC, 185 U.S. App. D.C.

142, 567 F.2d 9 (CADC 1977)

Kolender v. Lawson, 461 US. 352 (1983)

La Tour v. City of Fayetteville, 442 F.3d 1094 (8th

Cir. 2006)

Lorrilard Tobacco v. O'Reilly, 533 U.S. 525 (2001)

Los Angeles v. Preferred Communications, Inc., 476

U.S. 488 (1986)

TABLE OF AUTHORITIES - Continued

Page

Menotti v. City of Seattle, 409 F3d 1113 (9th Cir.

foe hE ESN ENED ae OS a RSS CREE

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

SRR OPTS <b. ole Peta Me Beamer as 6, 11, 12

O'Connor v. Boeing N. Am., 311 F.3d 1139 (9th Cir.

oe ESET ET EERPONIC Da a ORERN ROeR aares Shae acre 20

Ovadal v. City of Madison, 416 F.3d 531 (7th Cir.

pe ne NE REE NTR SNS ON Reopen Cage ORME E DRE 10

Pearson v. Edgar, 153 F.3d 397 (7th Cir. BP ewkiksccsie sess 14

Phillips v. Borough of Keyport, 107 F.3d 164 (3rd

ie Neg fT REL ESAS ENED see aT 14

Quincy Cable TV, Inc. v. FCC, 248 U.S. App. D.C. 1,

Wom ©-me LOBE (CADC 19GB) oo coccccivcisciccisicc 12

R.A.V. v. City of St. Paul, 505 U.S. 377 4. Tale 7,8

Riley v. National Federation of the Blind of North

Carolina, Inc., 487 U.S. 781 be TESTIS TC ah aa 10

Roberts v. United States Jaycees, 468 U.S. 609

SN rctt vib etthaenicumcnpnieni en dues kf ind 17

Schneider v. State, 308 U.S. 147 Sc eee: 10

Seung Chun Lim v. City of Long Beach, 217 F.3d

thes crey ee i aE ie SAO Ee Pree 14

Shuttlesworth v. Birmingham, 394 U.S. 147 (1969)... 15

Solantic, LLC v,. City of Neptune Beach, 410 F.3d

tte ce mami oe Te rcees., Coe OR ae Mantes 6

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

soe ib cngigs NALS LN LG RO ETS 15

Texas v. Johnson, 491 U.S. 397 9 eR ae aapenaies ll

vii

TABLE OF AUTHORITIES -— Continued

Page

Thomas v. Chicago Park Dist., 534 U.S. 316 (2002)... 15, 16

Turner Broadcasting v. Federal Communications

Comm.., 512 U.S. 622 (1994).........::eeceeseeeseeeeseseneeees passim

United States v. Hausmann, 345 F.3d 952 (7th Cir.

OI oo cies sea daideaaernelaaeenniniinnamtaieett 17

Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489 (1982)...........-::secceesseeseeeeetees 17

West Virginia State Board of Education v. Barnette,

BED TTD. CBE (1GEB) «...ccccccrccoreccesncsscsoncssvesesovorenvererecessss 10

OPINIONS BELOW

The ruling of the United States Court of Appeals for

the Ninth Circuit dated January 26, 2006 affirming the

decision of the District Court is officially reported at 436

F.3d at 1064 (9th Cir. 2006) and is reproduced at App. A.

The affirmed decision and opinion of the District

Court issued March 29, 2004 is officially reported at 2004

U.S. Dist. LEXIS 6984 and is reproduced at App. B.

JURISDICTION

The ruling of the United States Court of Appeals for

the Ninth Circuit sought to be reviewed was entered on

January 26, 2006. The petition is timely under 28 U.S.C.

§ 2101 and Supreme Court Rule 13.3 because it is being

filed within 90 days of entry of an Order of the United

States Court of Appeals for the Ninth Circuit on March 15,

2006, denying petitioner’s timely request for rehearing

and rehearing en banc. The Order denying rehearing on

March 15, 2006 is reproduced at App. C.

This Court has jurisdiction to review the ruling of the

United States Court of Appeals for the Ninth Circuit

pursuant to 28 U.S.C. § 1254.

CONSTITUTIONAL PROVISION INVOLVED

The First Amendment to the U.S. Constitution is set

out at App. D.

MUNICIPAL ORDINANCES INVOLVED

Lake Oswego Municipal Code, Chapter 47 is set out at

App. E.

STATEMENT OF THE CASE

The jurisdiction of the district court was invoked

under 28 U.S.C. § 1331 (general federal question jurisdic-

tion) and 28 U.S.C. § 1343 (civil rights jurisdiction).

The plaintiff-petitioners, G.K. Ltd. Travel (“GK

Travel”) and Ramsay Signs, Inc. (“Ramsay”) are two

Oregon businesses presenting lawful, commercial speech

through the medium of a pole sign located on GK Travel’s

property in the City of Lake Oswego, an Oregon city. The

defendants are the City of Lake Oswego municipal gov-

ernment (“city”) and Ms. Sandy Ingalls, a former sign code

enforcement officer.

Legislative History of the Sign Code:

The City of Lake Oswego adopted Chapter 47 of its

Municipal Code to regulate signs throughout the city. See,

e.g., § 47.10.400. App. E-27, E-28. The Sign Code states

purposes for which it was allegedly adopted set forth in

§ 47.03.010. See App. E-5. Prior to enactment of the Sign

Code, or any of the amendments thereto, the City of Lake

Oswego did not undertake any research or review any

studies to determine what, if any impact, the sign regula-

tions would have on the Sign Code’s stated purposes.

A design review clause was one of several provisions

challenged by petitioners. City Manager Douglas Schmitz

admitted during his deposition that the “Design Review

Clause” (“DRC”) set forth in § 47.06.200 contained provi-

sions that could be interpreted differently by different

employees. See App. E-17, E-18. Schmitz responded to a

design review question about how to determine whether a

proposed sign was “compatible” with surrounding light

poles, benches, trash cans, bike racks, and landscaping

where two different people disagree about whether a

proposed sign is compatible by admitting there could be a

disagreement. See App. P-1, P-2. When asked whether the

code phraseology “signs may be reviewed for clarity”

meant that the sign was clear to the eye or clear to the

reader trying to understand it, he said it could be both.

See App. P-3.

During a City Council meeting conducted five years

after the 1994 modifications to the sign code that initially

banned petitioners’ pole signs at a date certain, Council

President Rhode addressed removing the “subjective

review section” from the sign code. He said that business

people complained to him that they needed a sign code

with basic criteria to which they could adhere. See App. L-

23. He said they found the design review clause in

§ 47.06.200 that the city repeatedly identifies as “subjec-

tive” to be one of the biggest problems with the code and

said it would be easier for a business person to let the

Planning Department design the sign. Id.

At the September 14, 1999 city council meeting,

Assistant City Manager Coffee spoke out to preserve the

DRC’s subjectivity arguing its uncertain meaning allowed

staff to turn down applications they would have to approve

under objective standards. See App. L-23. At the same

meeting, City Councilor Chizum expressed his fear that

objective standards would deprive the city of its ability to

say a sign was not “right.” See App. L-24.

The First Amended Complaint put forth a total of

seventeen claims. Thirteen addressed unconstitutional

deprivation of free speech arising out of the enactment and

enforcement of the Lake Oswego sign code against the

petitioners and others. See App. F. As alleged in the

complaint, the challenged code contains various provisions

which either directly regulate speech based upon content

or viewpoint, and other provisions which attempt to

regulate content and/or viewpoint even though they are

expressed in a content-neutral way. See App. E.

In September and October of 2003 the parties filed

cross motions for summary relief. All but a few claims in

the complaint remained at issue. Conflicts in the evidence

supported a declaratory order invalidating the entire sign

code. A summary of the narrowed claims is found at App.

G-1, C-2.

On March 30, 2004, the lower court terminated the

controversy between the parties by entering an opinion

and order purporting to resolve all claims. See App. B-1, B-

35. On April 9, 2004 the plaintiffs timely objected under

F.R.Civ.P. 60(b)(4), arguing the city’s production of the

conflicting evidence over material facts prevented sum-

mary relief. See App. H-1, H-2. That request was denied.

Petitioners twice unsuccessfully sought stays to

prevent the city from enforcing its ban of pole signs and

imposing unconstitutional permitting practices that

allowed city officials to impose subjective conditions for

approval of the size, conspicuity, visibility, message and

copy of any replacement signage. See App. J-1, J-3, J-4.

These requests do not appear on the public docket sheet.

See App. J-2.

The ban took effect within eight weeks of the district

court’s March 30, 2004 ruling. See App. E-13. The plain-

tiffs filed an opening appeals brief in October of 2004

identifying the issues preserved in the district court. See

App. K-1 through K-3.

REASONS FOR GRANTING THE PETITION

This petition seeks review of a ruling containing

several significant decisions by the Ninth Circuit materi-

ally modifying commercial and non-commercial speech

protections guaranteed by the First Amendment.

The regulations of on-premise signs contained in the

Sign Code are regulations of speech. City of Ladue v.

Gilleo, 512 U.S. 43 (1994); see also City of Painesville

Building Dept. v. Dworkin & Bernstein Co., 733 N.E.2d

1152 (Ohio, 2000). Furthermore, the regulations target no

speech of a lesser protected category such as fighting

words, obscenity, or incitement. No issues are raised

requiring consideration of the regulation of speech on

public property, either as a public forum, limited public

forum or non-public forum. Petitioners’ challenges focus on

the ability of the government to restrict private speech on

private property including regulation of expression on

political signs to commercial signs, and from time and

temperature signs, to those supporting the local high

school sports team.

The question of how the First Amendment applies to

on-premise’ signs is one of growing importance in this

country. See, e.g., La Tour v. City of Fayetteville, 442 F.3d

1094 (8th Cir. 2006) (reviewing a regulation of electronic

message signs); and Solantic, I“C v. City of Neptune

Beach, 410 F.3d 1250 (11th Cir. 2005) (reviewing a sign

code challenged as being content based). Lake Oswege is

one of many cities that are becoming increasingly aggres-

sive in avoiding compliance with existing limits on their

municipal power to regulate speech. The Court of Appeals’

new changes in standards for regulating on-premise signs

are inconsistent with Supreme Court precedent and the

law of other federal circuits. They significantly reduce

First Amendment protections, and ratify Lake Oswego’s

history of doing the same thing. These developments raise

issues of national importance regarding how the First

Amendment should be interpreted.

All five questions presented address the important

changes in First Amendment law that petitioners believe

significantly depart from established precedent, and

conflict with rulings of other circuits and the Supreme

Court and/or depart sufficiently from the accepted and

usual course of judicial proceedings so as to require the

exercise of the Supreme Court’s supervisory powers.

' As opposed to Billboards, or “off-premise” signs. See Metromedia

v. City of San Diego, 453 U.S. 490, 501, 507-508 (1981).

1. Without review, the government may impose

new viewpoint based regulations on speech

without complying with strict scrutiny by claim-

ing they have an incidental effect upon speech.

[The “di minimus” exception allowing viewpoint

discrimination].

For regulations of speech, the first inquiry is whether

the regulations are content or viewpoint based. City of

Ladue v. Gilleo, 512 U.S. 43, 59 (1994) (O’Connor, J.,

concurring). A regulation is viewpoint based if it treats

speech differently depending upon the identity of the

speaker, or the position the speaker-takes in a discussion.

R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992).

In City of Ladue, Justice O’Connor opined:

[I]t is quite true that regulations are occasionally

struck down because of their content-based na-

ture, even though common sense may suggest

that they are entirely reasonable. But though our

rule has flaws, it has substantial merit as well. It

is a rule, in an area where fairly precise rules are

better than more discretionary and more subjec-

tive balancing tests. On a theoretical level, it re-

flects important insights into the meaning of the

free speech principle — for instance, that content-

based restrictions are especially to be improper

attempts to value some forms of speech over oth-

ers, or are particularly susceptible to being used

by the government to distort public debate. On a

practical level, it has in application led to seem-

ingly sensible results.

512 US. at 50 (O’Connor, J., concurring) (internal cita-

tions omitted) (emphasis supplied).

The Ninth Circuit’s approach, however, was to apply,

essentially, rational basis review to viewpoint based

regulations of signs on the belief that exemption from the

requirements of obtaining a permit and going through

design review has only “incidental effects” upon speech.

See App. A-20 through A-23. This new “di minimus”

exception to strict scrutiny creates serious uncertainty in

an area of law that demands certainty.

The Ninth Circuit changes raise immediate important

censorship issues over what constitutes an “incidental

effect” upon speech and of how far a city can go to give

preferential treatment to particular speakers before it has

enacted a viewpoint based regulation normally subject to

strict scrutiny. Whether the application of that standard

should continue to apply to all viewpoint based regulations

of speech or whether a new exemption lacking standards

for its even application should be added,’ is a decision that

should be made by the Supreme Court instead of a federal

Court of Appeals.

The Court of Appeals’ newly invented “di minimus”

exception to identity based regulation was imitated re-

cently by the Eighth Circuit that created its own new

content based “di minimus” exception. It turned away from

precedent by allowing a city to continue to allow time and

temperature signs but ban electronic message centers

although the admitted distinction was based on the

content of the expression. See La Tour, supra.

* Although exemptions to the content based standard have been

carved out for fighting words, obscenity, and incitement, no such

exemptions exist for viewpoint based regulations of speech. R.A.V., 505

U.S. at 383 (explaining that these categories of speech are not entirely

unprotected).

2. The sign code fails to comply with the Time,

Place and Manner test under the First Amend-

ment or the lesser standard applied to commer-

cial speech due to a city’s failure to present

sufficient, uncontradicted evidence of compli-

ance.

In addition to challenging portions of the sign code as

content and viewpoint based regulations of speech, plain-

tiffs challenged the vast majority of the sign code as

unconstitutional under the Time, Place and Manner

(“TPM”) Test and the commercial speech test. See App. F-

20, F-21, F-23. As to TPM compliance in Turner Broadcast-

ing v. Federal Communications Comm., 512 U.S. 622

(1994), the Court explained: a content-neutral regulation

will be sustained if it: 1) furthers an important or substan-

tial governmental interest, 2) if the governmental interest

is unrelated to the suppression of free expression; and 3) if

the incidental restriction on alleged First Amendment

freedoms is no greater than is essential to the furtherance

of that interest. Turner, 512 U.S. at 662. The commercial

speech standard is similar except that some content based

regulation is allowed in schemes that target lawful, non-

misleading commercial speech. Central Hudson Gas and

Elec. v. Public Serv. Comm’n, 447 U.S. 557, 566 (1980).

The district court relied upon “sesthetics” and “traffic

safety” put forth in § 47.01.030 of the sign code to meet

the relevant governmental interest standard. Conflicting

evidence addressed in Section 5 below reveals Lake

Oswego did not rely upon or consider this code section as a

government interest supporting the ban on petitioners’

signs as stated by the district court. A threshold require-

ment of both Turner and Central Hudson has been modi-

fied by the first federal appeals court to accept officials’

aesthetic preferences as sufficient justification for regulat-

ing the expression on municipal on-premise signs.

But aesthetics, even a community’s real aesthetic

values, is usually not an appropriate interest justifying a

restriction of speech. See Schneider v. State, 308 U.S. 147,

163 (1939) (stating, “... the public convenience in respect

of cleanliness of the streets does not justify an exertion of

the police power which invades the free communication of

information and opinion secured by the Constitution.”). In

Riley v. National Federation of the Blind of North Caro-

lina, Inc., 487 U.S. 781, 791 (1988), the Supreme Court

stated, “the government, even with the purest of motives,

may not substitute its judgment as to how best to speak

for that of speakers and listeners; free and robust debate

cannot thrive if directed by the government.” Similarly,

the Supreme Court in Cohen v,. California, 403 U.S. at 25

(1971) stated, “... it is nevertheless often true that one

man’s vulgarity is another’s lyric. Indeed, we think it is

largely because governmental officials cannot make

principled distinctions in this area that the Constitution

leaves matters of taste and style so largely to the individ-

ual.” See also Ovadal v. City of Madison, 416 F.3d 531, 537

(7th Cir. 2005) (explaining that restricting speech because

of the way listener’s will respond, or that the speech is

offensive to some, is not a content-neutre] restriction of

speech).

A famous statement forbidding .~ ance on officials’

personal aesthetics was made by Justice Jackson in West

Virginia State Board of Education v. Barnette, 319 US.

624, 642 (1943), “If there is any fixed star in our constitu-

tional constellation, it is that no official, high or petty, can

prescribe what shall be orthodox in politics, nationalism,

religion, or other matters of opinion or force citizens to

confess by word or act their faith therein.” Aesthetics

applied’in the instant case, is nothing more than imposing

one public official’s opinion of beauty on private speakers

and their audiences. As admitted in the council meeting

minutes, the purpose of the sign code is to issue permits

only for those signs that “look right” to individual officials,

not the public. See App. L-23, L-24.

The City, record, and the Ninth Circuit Opinion,

consistently point out that the primary reason for regulat-

ing on-premise signs — and only reason that concerned the

City — was officials’ aesthetics. In this case they admit-

tedly vary from one official to another. The only cases

where aesthetics is viewed as a substantial governmental

interest is in the realm of off-premise signs and billboards.

Metromedia v. City of San Diego, 453 U.S. 490, 501, 507-

508 (1981).

In Metromedia, the plurality adopted its aesthetics

analysis from prior takings cases and land use cases — not

speech cases. Even so, there was concern with aesthetics

as a justification for regulating speech even though the

parties stipulated it was an appropriate interest for

regulating billboards. Indeed, aesthetic judgments are

subjective by nature and thus, inherently suspect “and for

that reason must be carefully scrutinized to determine if

they are only a public rationalization of an impermissible

purpose.” Metromedia, 453 U.S. at 510 (Plurality Opinion);

See also Metromedia, 453 U.S. at 530 (Brennan J., concur-

ring in the judgment) (“I think that the city has failed to

show that its asserted interest in aesthetics is sufficiently

substantial... .”). Although the particular aspects of

> See also Texas v. Johnson, 491 U.S. 397 (1989).

billboards and an agreement by the parties may have

justified this approach in Metromedia, there is no evidence

put forward by the City suggesting that on-premise signs

are so similar as to justify using aesthetics to regulate

them. Lake Oswego seems to have forgotten that the

aesthetics and traffic safety interests both sides agreed

were governmental purposes for restricting billboard

speech in Metromedia were rejected as purposes for

restricting on-premise signs by the same parties.

We have a long-standing history of the majority

attempting to control the expression of the minority in this

country. The purpose behind the First Amendment, is to

protect those whose speech we disagree with, whose tastes

or opinions we find distasteful or “ugly.” Whether the

personal aesthetic values of officials’ is a significant

governmental! interest sufficient to deny speech officials do

not consider tasteful or beautiful, is an issue of significant

importance and needs to be clarified in the realm of on-

premise signs.

Another related question under the TPM and com-

mercial speech tests is whether a regulator produces real

and persuasive evidence to satisfy its burden of proof

under Central Hudson and/or Turner.

When a city defends a regulation on speech as a

meuns to redress past harms or prevent antici-

pated harms, it must do more than simply “posit

the existence of the disease sought to be cured.”

Quincy Cable TV, Inc. v. FCC, 248 U.S. App. D.C.

1, 768 F.2d 1434, 1455 (CADC 1985). It must

demonstrate that the recited harms are real, not

merely conjectural, and that the regulation will

in fact alleviate these harms in a direct and ma-

terial way. See Edenfield v. Fane, 507 U.S. 761,

123 L. Ed. 2d 543, 113 S.Ct. 1792 (1993); Los An-

geles v. Preferred Communications, Inc., 476 U.S.

at 496 (“This Court may not simply assume that

the ordinance will always advance the asserted

state interests sufficiently to justify its abridg-

ment of expressive activity”) (internal quotation

marks omitted); Home Box Office, Inc. v. FCC,

185 U.S. App. D.C. 142, 567 F.2d 9, 36 (CADC

1977) (“{A] ‘regulation perfectly reasonable and

appropriate in the face of a given problem may be

highly capricious if that problem does not exist’ ”)

(citation omitted).

Turner, 512 US. at 664-668.

Although the district court cited aesthetics and traffic

safety as the sole governmental interests supporting the

Lake Oswego Sign Code, the record produced by the City,

and cited to by the Ninth Circuit,’ is devoid of evidence

that the banned signs implicate traffic safety, even though

the records indicate that various individuals offered

information to the city showing that reducing their size

and making them hard to read by passing motorists was

the sole safety issue. The evidence put forth regarding

aesthetics consists of comments of a few officials express-

ing their personal opinions that the entire medium of pole

signs is ugly regardless of what is on them, excepting, of

course, government messages and other messages by

certain speakers that city officials like. There is no indica-

tion that any community wide polling took place or that

the aesthetic opinions belong to anyone outside the city

planning department. Even if there was a city-wide poll, it

‘ The Ninth Circuit notes the existence of numerous documents,

however, one of those documents - he Urban Land Use publication -

was never produced by the City nor made part of this record.

would only show that the city was engaged in the prohib-

ited practice of restricting the expression of a minority in

favor of the whims (in this case relating to beauty) of the

majority (in this case of planning officials).

Likewise, the City produced no eviden-e showing how

the sign regulations would achieve the stared interests in

traffic safety. Common-sense and current research indicate

that taller signs — such as pole signs — provide drivers with

more reaction time and are thus safer than the shorter

signs allowed by the code.

Regulators’ failure to produce TPM or Central Hudson

compliance evidence in other circuits and before the

Supreme Court, has routinely caused the courts to void

regulations of speech under either TPM or Central Hud-

son. See Edenfield v. Fane, 507 U.S. 761, 770-71 (1993);

Seung Chun Lim v,. City of Long Beach, 217 F3d 1050,

1054 (9th Cir.), cert. denied, 531 US. 1191 (2001); Phillips

v. Borough of Keyport, 107 F.3d 164, 173 (3rd Cir.), cert.

denied, 118 S.Ct. 336 (1997); Pearson v. Edgar, 153 F.3d

397, 405 (7th Cir. 1998); Dills v. City of Marietta, 674 F2d

1377, 1382 (11th Cir. 1982) (holding that where evidence

does not show that the ordinance will achieve the purposes

for its enactment, the ordinance is not constitutional

under the First Amendment). The Ninth Circuit’s favor-

able ruling for Lake Oswego in the face of inadequate

proof speech is being regulated to serve a real and sub-

stantial or significant government interest in this case

- conflicts with the circuit’s own precedents, other circuits

and other Supreme Court precedent, and therefore war-

rants review.

3. The Ninth Circuit improperly exempted content

based permitting regulations of speech directed at

speech occurring on private property and made

by private persons, from incorporating procedural

safeguards required by Freedman v. Maryland.

A system of prior restraints exists where the speaker

must obtain the government's permission prior to speak-

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

546, 553-58 (1975). There are two types of prior restraint

protections provided for private speech on private prop-

erty.

The first is a protection from public officials using

unbridled discretion to administer a permit scheme.

Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969).

The second requires incorporation of procedural safe-

guards into the permitting scheme. Freedman v. Mary-

land, 380 U.S. 51 (1965). The incorporated safeguards

require that a Municipality must: 1) bear the burden of

initiating a judicial proceeding in the face of a constitu-

tional challenge; 2) bear the burden of persuasion at the

judicial proceeding by introducing real evidence of compli-

ance with the relevant speech standard; 3) limit any

restraint prior to the judicial determination to a specified

brief period of time, and 4) guarantee a prompt judicial

determination reviewing the propriety of the denial.

Freedman, 380 U.S. 51, 62 (1965).

The requirement to incorporate Freedman protections

in regulations targeting private speech in private forums

and the long-standing exemption from the requirement in

public forums was recently affirmed in Thomas v. Chicago

Park Dist., 534 U.S. 316, 322 (2002). There, the Supreme

Court restated its unchanged policy that F reedman protec-

tions are not required where the regulations are both

content-neutral and may affect speech in a public forum,

and where the record shows content and identity neutral

application of permitting schemes whose standards are

designed to protect the safety of the public and preserve

the physical integrity of public forums where people

incidentally assemble and speak. Jd. The Ninth Circuit’s

ruling ignored the different public policy considerations

supporting the public forum exemption, and expanded it to

apply to private property and to content and viewpoint

based speech regulations, in order to defeat censorship

protections intended to serve entirely different policy

considerations.

Such a significant, unprecedented and inconsistent

expansion of Thomas is an important federal issue that

should be settled by the Supreme Court. Elimination of

the Freedman protection requirements in permitting

schemes regulating municipal on-premise signs displaying

commercial and non-commercial expression is a question

relevant to every community in the country with a sign

code. Without these safeguards, cities have new powers to

censor, that remain unsupported by policies for exempting

public forums. This is yet again another area of law

destabilized by the Ninth Circuit and needs clear guide-

lines for all involved, before it begins to destabilize First

Amendment law in the rest of the circuits.

4. The lower courts improperly authorized a city to

continue to employ a subjective design review

clause controlling permit approval that is un-

constitutionally vague.

A regulation can be struck down for vagueness for one

of two reasons: 1) failure to ensure fair notice to citizens;

2) failure to provide standards for law enforcement.

Kolender v. Lawson, 461 U.S. 352, 357 (1983); United

States v. Hausmann, 345 F.3d 952, 958 (7th Cir. 2003). In

order to ensure fair notice, the regulation cannot allow the

“enforcement of a law that contains ‘terms so vague that

[persons] of common intelligence must necessarily guess at

its meaning and differ as to its application.’” Gresham uv.

Peterson, 225 F.3d 899, 907 (7th Cir. 2000) (quoting Rob-

erts v. United States Jaycees, 468 U.S. 609, 629 (1984)).

A second important goal served by the policy against

vague ordinances is to ensure that a law does not “imper-

missibly [delegate] basic policy matters to policemen,

judges, and juries for resolution on an ad hoc and subjec-

tive basis, with the attendant dangers of arbitrary and

discriminatory application.” Grayned v. City of Rockford,

408 U.S. 104, 108-09 (1972). In cases where the regula-

tions impact protected speech, even greater precision is

required. Haynes v. Mayor of Oradell, 425 U.S. 610, 620

(1976); Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 499 (1982) (explaining that, if

an ordinance “interferes with the right of free speech... ,

a more stringent vagueness test should apply.”).

The City of Lake Oswego deliberately agreed to keep

its DRC vague, in order to promote an official policy of

delegating unbridled discretion to individual sign permit-

ting officials allowing them to resolve sign permit applica-

tions on an ad hoc and subjective basis. See App. L-23, L-

24. This fact was further explained in a follow-up case in

the Lake Oswego municipal court. In the summer of 2005,

another pole sign owner, Darryl Eddy was tried for ordi-

nance violations for failing to remove a banned pole sign.

While the record was not incorporated in the district court

or appeals court proceedings, the undersigned counsel

appeared as defense counsel when Hamid Pishvaie, one of

the senior planners, explained to the municipal judge that

although the sign code set forth size limits on signs, those

sign limits were rarely approved. He affirmed that plan-

ners use the DRC as a basis to re-design signs presented

for a permit to make them smaller and comport more with

the individual planner’s tastes. Mr. Eddy could offer

substantial clarification of the city’s arbitrary permitting

practices through an amicus brief if review is granted.

The Ninth Circuit’s decision to allow Lake Oswego to

continue to impose admittedly subjective permitting stan-

dards violates the vagueness doctrine. The city’s practice

conflicts with other circuits, and prior decisions of this

court cited above, and further destabilizes protections for

commercial and non-commercial speakers who communi-

cate through on-premise signs in municipalities located in

this circuit.

5. The district court improperly resolved, and the

Ninth Circuit Court of Appeals improperly rati-

fied, conflicts in evidence of material fact neces-

sary to support a summary ruling in favor of

Lake Oswego, thereby creating and affirming en-

try of a void judgment chilling protected speech

and which must be vacated.

Certain conflicts in evidence presented by Lake

Oswego present the question of whether the district court

judgment is a void exercise of jurisdiction. While the Court

may alternatively address this issue under its powers to

issue extraordinary writs in aid of its jurisdiction under 28

U.S.C. § 1651 and Supreme Court Rule 20, the history of

the Court’s decisions shows that such writs rarely issue.

Supreme Court Rule ) Va) allows alternative discretionary

review of this kind oi ssue where the decisions of lower

courts depart sufficiently from the accepted and usual

course of judicial proceedings to warrant the Court’s

supervision. The lower court’s entry of summary judgment

in the face of compelling evidentiary conflicts over genuine

issues of material fact is the type of act that warrants this

Court’s supervision.

The lower court ruling grants summary judgment of

dismissal on all 17 of petitioners’ civil rights claims. See

App. B-35. At the beginning of the case, petitioners timely

requested a jury. See App. I, p. 1 As the time for trial

approached, the district court summarily resolved conflict-

ing evidence over material facts to support judgment for

the city. See App. B. A discussion of that evidence is

excluded from consideration or comment in either lower

court opinion.

The district court found that a few of the challenged

ordinances restricting commercial and non-commercial

speech were content-based, but nonetheless found the code

content-neutral. See App. B-17 through B-21. It also found

that the citys code survived commercial and non-

commercial speech challenges under intermediate stan-

dards of review put forth in Central Hudson and Turner

Broadcasting. Id. The court denied a challenge to the city’s

compliance with limitations on its power to ban a tradi-

tional medium of speech, although the city produced no

evidence that it carefully calculated the cost of its restric-

tions on the affected speakers, as addressed in City of

LaDue v. Gilleo, supra.

The district court also denied petitioners’ summary

judgment challenge that was based on evidence obtained

through discovery, and that cited the city’s admitted

official custom and practice of employing subjective

permitting standards in a subjective manner to censor

protected speech in violation of the prior restraint law of

Freedman, supra.

The city’s conflicting evidence also supported petition-

ers’ third party facial challenges. Small but important

parts of the record omitted from either courts’ analyses,

contain the material evidence from which a jury could

conclude the city failed to comply with intermediate

standards that apply to commercial speech and time, place

and manner regulation when it banned petitioners’ speech.

To reach and sustain judgment, each lower court had to

disregard its own duty to comply with the portion of

F.R.Civ.P. Rule 56 that deprives federal district courts of

jurisdiction to grant summary relief where there are

genuine disputes over issues of material fact that remain to

be resolved by the jury. See Appendix B-5.

For two decades controlling U.S. Supreme Court law

has prohibited judges from making credibility determina-

tions, weighing evidence and drawing legitimate infer-

ences to resolve conflicts in evidence over material facts

necessary to support summary judgment, where a jury

trial has been requested. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986) citing Adickes, 398 U.S., at 158-

159. The Ninth Circuit rule before this case was: “When

the evidence yields conflicting inferences, summary

judgment is improper and the action must proceed to

trial.” O’Connor v. Boeing N. Am., 311 F.3d 1139, 1149 (9th

Cir. 2002). As Appeals Panel Member Judge Gould com-

mented in his opinion in another important First Amend-

ment ruling last year, “We, of course, are not empowered

to make factual determinations when faced with conflict-

ing evidence .. . ” Menotti v. City of Seattle, 409 F.3d 1113,

1150 (2005).

——The Supreme Court’s rule on materiality of facts in

this context is that “[o]nly disputes over facts that might

affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment,”

Anderson, at 247, 248. (emphasis supplied) The Supreme

Court determines the genuineness of a dispute by the

content of the evidence and “summary judgment will not

lie if the dispute about a material fact is ‘genuine,’ that is,

if the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Jd. (emphasis sup-

plied).

Stated simply, where as here, there is conflicting

evidence in the record that might affect the outcome of the

suit and that evidence would allow a reasonable jury to

obtain a verdict for the nonmoving party, summary judg-

ment is prohibited.

Three seminal, genuine issues of material fact are

caused by conflicting evidence — whether the city’s pur-

poses are real and are constitutional; whether the city

delegates unbridled discretion to its employees by allowing

them to rely upon subjective criteria in deciding whether

to issue a sign permit; and whether the standards of the

Sign Code’s design review clause applied in the permitting

process are unconstitutionally vague so that each time a

permit is applied for, a First Amendment violation occurs.

The suit was filed in August of 2002. The City pro-

duced a selective and limited number of city records of its

legislative history. It answered interrogatories in April of

2003. It responded to a request to identify all documents

that it or its agents considered or reviewed in deliberating

or drafting the revisions of the sign ordinance several

times over the past 15 years, by revealing it could not

comply because the ordinance drafting files were not kept

by the city attorney. See App. M-1, M-4.

A city memo predating passage of the 1994 Sign Code

- identified “Citizen Involvement” as one of the goals to be

met in the legislative process. See App. L-3, L-4, L-6.

However the input that citizens provided was ignored. For

example, on October 5, 1993, Jerry Weaver testified that

the City’s proposed restriction of window signs would

render their advertising ineffective. See App. L-13. At the

same meeting Mike Carrolley of the Oregon Electric Sign

Association “OESA” urged the Council not to vote on the

sign code until the association he belonged to could work

with the city on it. See App. L-15. Also at that meeting

Don Brenamin, a member of the OESA said OESA would

have been happy to give input on the effects of changing

the sign code but was not notified until recently. See App.

L-11, L-12.

He warned city officials of several problems their

proposed restrictions could create for businesses. Jd. Greg

Stewart of Mailboxes, Etc. expressed his concern over the

council’s lack of consultation with OESA and said the sign

code was unclear and confusing. See App. L-12, L-13. A

city planner said in a private session that the staff did not

work with the sign industry people because the revisions

were intended to be very few and to address primarily

concerns in the Kruseway corridor and to make the code

appear constitutional. See App. L-15. Later, Councilor

Anderson moved for approval of the draft and the motion

passed. See App. L-16, L-17. Consideration of public input

relevant to the reasonableness of the city’s regulatory

alternatives was tabled.

The city produced little evidence of its legislative

history between the 1994 and 2000 code revisions. One

document dated April 9, 1998 advised another city gov-

ernment, “If you have to read the sign to regulate it, the

regulation is content-based and therefore unconstitu-

tional.” See App. L-19, L-20. Code Enforcement Officer

Ingalls admitted in her deposition that she had to read the

GK Travel sign to know whether to cite GK Travel. See

App. N-2 through N-8. Both lower courts failed to correctly

apply this admission.

As the City again started revising the sign code in

1999, it produced conflicting evidence over the actual

interests served by the code.

- “Council President Rhode spoke to removing the

subjective review section from the sign code. He

said that business people have told him that they

needed a sign code with a basic criteria to which

they could adhere. He stated that they found this

subjective review clause requiring signs compati-

ble with other nearby signs, elements of street,

site furniture, and adjacent structures to be one

of the biggest problems with the code. He com-

mented that it would be easier for a business per-

son to let the Planning Department design the

sign.” See App. L-23.

“Mr. Coffee (Planning Director and assistant

city manager) discussed the difficulty of legislat-

ing aesthetics and design. He pointed out that,

even with specific standards, someone would

come in with something that met the standards

but still did not look right. He argued that,

without the subjective review clause, staff had

no ability to turn down any sign that ostensibly

met the standard. He mentioned the tension be-

tween aesthetic quality and certainty.” Jd.

“Councilor Chizum reiterated his concern with

rewriting the code. He argued that removing the

subjective review clause simply opened up an-

other problem. He held that the City needed the

ability to say that a sign was not “right”. He

mentioned the appeal process for those who dis-

agreed.” See App. L-24.

“The Council agreed that staff would bring the

issue back before the full Council at another

study session.” Jd.

The city uses the word “subjective.” The Council

permanently tabled this issue. The DRC was never

changed. At that same meeting, Council President Rhode

materially contradicted Councilor Chizum’s conclusion

that business people wrote the sign code. See App. L-25.

That conclusion is consonant with the city’s rejection of

businesses’ input in 1993 before the 1994 code revisions

were passed, and the admitted disconnect between busi-

nesses and city officials over what an “effective sign” is.

“Council President Rhode spoke to removing the

phrase ‘to improve the effectiveness of signs’ from

the purpose section of the code. He argued that

people interpreted what that phrase meant in

different ways. He commented that business

people saw a flashing neon sign as more effective

than a monument sign. He contended that hav-

ing a goal of improving the effectiveness of signs

meant doing whatever a business person wanted

because he/she was the ultimate determiner of

what was most effective for his/her business.”

See App. L-23.

President Rhode seemed to be looking for a way to

make the code appear facially content-neutral while

continuing to allow planning officials to enforce it illegally.

Knowing what was effective was key to knowing whether

the signage allowed to replace banned pole signs was a

reasonable alternative under Central Hudson or Turner.

The 75% reduction in visibility imposed by the ban sug-

gested it was not. This city purposely disregarded input

from those who would be in the best position to know what

was reasonable, and made no other effort to find the real

answer to the constitutional question of the reasonable-

ness of alternatives.

The Ninth Circuit Court of Appeals ratified the

district court’s disregard of conflicting evidence which

proved that the city’s substantial government interests put

forth in its “purposes” clause were neither considered nor

relied upon during the legislative deliberations, and

disavowed both in its official records and by the testimony

of its corporate representative. During the September

1999 meeting, it became clear why the dispute over what

an effective sign meant was disingenuous as were the

other stated statutory “purposes” contained in LOC

47.01.030.

“Mr. Coffee (assistant City Manager and Planning

Director) said that staff did not consider the purpose

section as part of the regulations in the ordinance. Mr.

Powell (current City Attorney) also agreed that the pur-

pose statement had little practical effect.” See App. L-24.

City Manager Schmitz was present as well and made no

effort to correct these statements. See App. L-21, caption.

Moreover, the City’s 1993 official documents identify

entirely different and conflicting purposes for the code

revision, such as to “get rid of the unconstitutional lan-

guage” and to honor a settlement agreement with a

developer whereby the developer wrote its own sign code

for an annexed property in exchange for dropping opposi-

tion to the annexation. See App. L-3, L-4.

Plaintiffs also noted to the lower courts that the

“purpose” section of the 1993 code was carried over from

an earlier almost identical 1985 code section and not

discussed in any city records. See App. L-8. City Manager

Schmitz’ 2003 summary judgment affidavit, incorporates

official documents containing the admissions discussed

above. There, Schmitz admits that the 1985 code was

unconstitutional. App. O-2. Schmitz never mentions the

city’s reliance on the “purposes section” for good reason.

See App. O-1 through O-11.

In September, 2003, Schmitz was deposed as a

F.R.Civ.P. Rule 30(b)(6) corporate representative. Through

him, the city admitted it was unaware that the purpose

section of the code had ever been applied by city staff. See

App. P-4. This admission is consistent with the City’s

other admissions that the purpose of its admittedly subjec-

tive Design Revi» v Claus is to allow its permitting em-

ployees to veto u deny sign permits to any applicant

whose sign does not look right, even if another employee

decided it complies with the same subjective DRC stan-

dards.

During a meeting on May 2, 2000, the Mayor com-

mented about major community dissatisfaction with the

sign code and recommended grandfathering 67 poles signs

the city had banned. See App. L-27. In response to a

suggestion that the City loosen the restrictions on pole

signs, Councilman Chizum opposed this idea because he

believed that allowing pole signs “would keep the City

from achieving the look city officials wanted.” Id.

He reported a businessman said most business people

were unaware of the Sign Code. See App. L-28. Councilor

McPeak said business people she talked to thought the

Sign Code went way beyond restrictions imposed by other

cities. Jd. Councilman Lowery attempted to justify the ban

on pole signs implying that the City spent too much time

developing its ordinances and should not have to change

the law when a few people complained. Id.

In July of 2000 more public input was ignored includ-

ing a petition signed by the owner and majority of tenants

at an office building subject to the code. They contested

the ban on pole signs, noting that the use of this medium

went back 25 to 30 years. See App. L-31. Testimony by a

local merchant that 43 of 67 businesses with non-

conforming pole signs wanted the Council to stay with its

original decision to grandfather in the pole signs was

ignored. Jd. Another merchant testified that his pole sign

has been in place for over 30 years and questioned why a

sign that has been up for 30 years was all of a sudden

illegal. He indicated that going to a monument sign would

cost him $10,000 plus because he had to tear up the

parking lot to install the electrical lines to a monument

sign. See App. L-32, L-33. He mentioned that a monument

sign would also block the sightlines of vehicles leaving his

business. Id. His comments were ignored.

During Schmitz’ deposition the 30(b)(6) representative

was asked about the subjectivity in the design review

clause. (“DRC”) See App. P-1, P-2, P-3. He first admitted

that there could be some disagreement among officials

on whether or not a proposed sign is compatible as deter-

mined by the relationships of the elements of form, propor-

tion, scale, color, materials, surface treatment, etc. See

App. P-3.

He next admitted there could be disagreement among

officials over whether a proposed sign met the code re-

quirements and was compatible with the “streetscape”

where it was to be placed, including light poles, benches,

trash cans, bike racks and landscaping. Id. The City was

directed to the DRC section providing that “Copies of signs

visible from streets shall be designed to reduce distrac-

tions to motorists. Signs may be reviewed for clarity and

readability.” Id. When asked whether clarity meant clear

to the eye or clear to the reader who is trying to read it or

both, the City admitted additional ambiguity by saying it

could be both. Jd.

The discussions found in the city’s legislative history

do not focus on the least restrictive means of regulation or

studying whether there are ample alternatives for banned

pole signs. They reveal instead the dissension and dissat-

isfaction of affected businesses with the city’s decision to

keep its design review clause subjective in both content

and administration, and to ban a traditional medium of

expression without careful consideration of the ban’s

impact on protected speech.

The lower courts’ decisions are void exercises of

judicial power under these circumstances, because these

conflicts in evidence were to be presented to a jury whose

role it was to determine which evidence to believe. The

conflicting evidence over the real purposes has to be

resolved before other prongs of Turner or Central Hudson

are considered. There also remains the jury question of the

sufficiency of the city’s proof of compliance with the re-

maining prongs of Central Hudson and Turner. Faced with

this evidence, both lower courts chose to ignore Lorrilard

Tobacco v. O'Reilly, 533 U.S. 525, 555 (2001) (“government

must demonstrate that; 1) the harms recited are real”);

Edenfield v. Fane, 507 U.S. 762, 770-771 (1993) (Although

Central Hudson “does not permit us to supplant the

precise interests put forward by the State with other

suppositions ... neither will we turn away if it appears

that the stated interests are not the actual interests

served by the restriction”), and Foti v. City of Menlo Park,

146 F.3d 629, 639 (9th Cir. 1998) (“Although we must

consider the City’s limiting construction of the ordinance,

we are not required to insert missing terms into the

statute or adopt an interpretation precluded by the plain

language of the ordinance”). The lower courts clearly

exceeded these limitations to support incorrect rulings.

The City’s admission that it employs and preserves

subjective regulatory standards because objective stan-

dards would prevent its employees from denying permits if

they think a proposed sign does not “look right” is an

admitted policy of enforcing a law that contains terms so

vague that persons of common intelligence must guess at

its meaning and differ as to its application. As stated above,

a regulation is unconstitutionally vague under these

circumstances as a matter of law. Gresham, supra at 907.

Material conflicts in the evidence were identified by

petitioners to both courts. The district court improperly

resolved the conflicts, and excluded discussion of the

presence of the conflicts. The Court of Appeals followed suit.

Ruling without discussing or analyzing conflicting

evidence in the record that prevents entry of a summary

judgment is a departure from normal and accepted judicial

administration of summary judgment procedures that

required the Ninth Circuit to exercise supervisory powers

to void the district court judgment. The Court of Appeals

decision to ratify the judgment, particularly where highly

valued interests arising under the First Amendment were

involved is a substantial departure from federal appeals

procedures that justifies the exercise of the Supreme

Court’s supervisory powers to uphold the First Amend-

ment for an entire Federal Circuit, and prevent further

erosion of speech protections in other jurisdictions by

vacating the judgments below.

In the months that have passed since the U.S. Court

of Appeals avoided acknowledging the problems with the

evidence in this case, petitioners have already become

aware that a state trial court in New Hampshire was so

confused by the Court of Appeals Opinion, that it mistak-

enly concluded petitioners’ challenges did not include a

claim the city failed to present evidence of Central Hudson

compliance. The new erosion of First Amendment protec-

tions created by the Ninth Circuit Court of Appeals is

already growing.

Petitioners urge the Court to vacate the lower court

rulings and enforce their right to a jury trial as appropri-

ate, and to restore the protections the Court has created to

preserve their constitutional right of free expression.

Respectfully submitted,

JOHN F. WINSTON Douc.as M. BRraGG

Counsel of Record 9347 SW Tonapah St.

7590 SW Vlahos Dr. Tualatin, OR 97062

Wilsonville, OR 97070 Tel. (971) 219-3297

~ Tel. (503) 685-9260

Attorneys for Petitioners

TABLE OF CONTENTS

Page

Appendix A Ninth Circuit Opinion.......000.00.ccccccceeeeeeees A-1

Appendix B District Court Opinion ..............ccccccceeeeeeees B-1

Appendix C Order Denying Rehearing....................c0008 C-1

Appendix D First Amendment Reproduction................. D-1

Appendix E Lake Oswego Sign Code..............ccscesseeceeeees E-1

Appendix F First Amended Complaint....................:cc0000 F-1

Appendix G Petitioner’s Description of Summary

Judgment Claims Presented to District Court........... G-1

Appendix H Face Page and Page 8 of Petitioners’

F.R.Civ.P. Rule 60(b)(4) Request to Vacate Opin-

OUD oijtaoncksiunbaledoumbisenieh dtiacaaehiinlcadacissuutchguidicidlicn tyleiegin vid H-1

Appendix I Relevant Excerpts from District Court

Ne MG icbsideinciecss spsttavbupcasgcstansdiicncdasencivtdteguceivekan I-1

Appendix J

Face Page of Petitioners’ 1st Request for Stay............ J-1

SGI CS SPUN IG cade pipctonccincotecknescticncdecmiieonasoe J-1

Face Page of Petitioners’ 2nd Request for Stay........... J-3

Portion of Page 17 of 2nd Request for Stay ................. J-4

Appendix K 9th Circuit Issues Raised in Petitioners..... K-1

Appendix L Excerpts of Public Meeting Documents

Offered as Record in District and Appeals Courts

Public Hearing Agenda February 19983 ...................066. L-2

January 1993 Memorandum..................ccccecccceeeececeeeees L-3

“Purposes Section” of 1985 Sign Code.....................2004- L-7

October 1993 City Council Minutes ....................00000.... L-9

Additional October 1993 City Council Minutes......... L-10

TABLE OF CONTENTS - Continued

Page

Former Lake Oswego City Attorney 1998 Memo......L-19

Excerpts of September 1999 City Council Meet-

ING .....cercesecserccsccesscssscsecrsessesensacsesssssoossoesconcscasenessareees L-21

Excerpts of May 2000 City Council Meeting

sc icivcniisscdsiacasvotodecsapacdavecsensdaciveubevsdepnacnstneness L-26

Excerpts of July 2000 City Council Meeting

NN i a a bhappamahuagnaenredtebeedsbanaeneasentense L-30

Appendix M Lake Oswego Response to Petitioners

Second Set of Interrogatories ............:cccsccceessesesseeneeeees M-1

Appendix N Excerpts of Lake Oswego Code En-

forcement Officer Ingalls’ Deposition................--:s0 N-1

Appendix O Lake Oswego City Manager Schmitz’

i nia daenenabapinbiensntbanlendicndiaasebatoess O-1

Appendix P Excerpts of Schmitz’ Deposition.................... P-1

A-1

APPENDIX A

436 F.3d 1064

United States Court of Appeals, Ninth Circuit.

G.K. LTD. TRAVEL, an Oregon corporation; WH Gillison;

Ramsay Signs, Inc., an Oregon corporation; Kathleen

Kusudo, Plaintiffs-Appellants,

CITY OF LAKE OSWEGO; Sandy Ingalls,

Defendants-Appellees.

No. 04-35416.

Argued and Submitted Sept. 15, 2005.

Filed Jan. 26, 2006.

John F. Winston (argued), Sherwood, OR, and Douglas

M. Bragg, Tualatin, OR, for the plaintiffs-appellants.

Timothy J. Sercombe (argued) and Carra L. Sahler,

Preston, Gates & Ellis, LLP, Portland, OR, for the defen-

dants-appellees.

Appeal from the United States District Court for the

District of Oregon; Garr M. King, District Judge, Presid-

ing. D.C. No. CV-02-01147-GMK.

Before: FISHER, GOULD and BEA, Circuit Judges.

FISHER, Circuit Judge:

Plaintiffs-appellants (“plaintiffs”) are the owners of a

pole sign used to advertise their travel business in the

City of Lake Oswego (“City”).' With the stated purpose to

reduce visual blight and protect traffic and traveler safety,

' A pole sign is defined as a “free standing sign erected on one or

more supports which are more than 30 inches above the adjacent

ground surface.” Lake Oswego Sign Code (“LOC”) § 47.03.015.

A-2

the City has enacted a sign code ordinance (“Sign Code” or

“Code”) regulating the type, size and design of all signs

erected within its borders. The Sign Code prevents plain-

tiffs from continuing to use their pole sign, because that

form of sign is severely restricted. Plaintiffs challenge the

constitutionality of the Sign Code, raising multiple as-

applied and facial claims. The district court granted

summary judgment to the City, in large part, and plain-

tiffs appeal. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and affirm.

I. Background

A. Plaintiffs’ Pole Sign

Plaintiff Ramsay Signs, Inc. (“Ramsay”) owns a 42.5-

square-foot pole sign that has been used since 1980 in

Lake Oswego. Ramsay leased its pole sign to Journeys! of

Lake Oswego (“Journeys!”) in 1996 for the purpose of

advertising the Journeys! travel business. In February

2001, plaintiff G.K. Ltd. Travel (“G.K.”) purchased Jour-

neys! along with the pole sign lease and instructed Ram-

say to change the copy of the pole sign to advertise G.K.’s

travel business. Ramsay accordingly changed the text on

the sign from “Journeys! of Lake Oswego, Formerly Apollo

Travel” to “G.K. Ltd. Travel Groups Tours Cruises Com-

plete Travel Services Domestic & International.” The

City’s Code Enforcement Specialist, Sandy Ingalls, notified

the plaintiffs that because they were changing the copy on

their pole sign as a new business, the sign had to conform

with the Sign Code. Conformity, in this case, meant

removing the sign altogether because the Sign Code

prohibits pole signs in Lake Oswego unless statutorily

A-3

defined special circumstances exist, none of which were

applicable to plaintiffs. See LOC § 47.04.100(1).?

Plaintiffs sought and were denied a permit to change

their pole sign’s text without having to remove the sign

itself. The City eventually cited plaintiffs for violating the

Sign Code and insisted that plaintiffs remove the pole

sign. Plaintiffs then sought a variance for their sign, but

this too was denied by the City Planning Director. Plain-

tiffs appealed the variance denial to the City Development

Review Commission and the City Council, both of which

affirmed the Planning Director. Plaintiffs then filed suit in

federal district court.

Plaintiffs insist that their pole sign is a cheap, effec-

tive and significant means of attracting clients and,

without the sign, plaintiffs will lose a substantial amount

of income. Plaintiffs seek to have the Sign Code declared

unconstitutional.

B. The Sign Code

As stated in a memorandum of the City of Lake

Oswego’s Department of Planning and Development, the

Sign Code is the City’s response to a State of Oregon

instruction to cities and counties to adopt comprehensive

* Section 47.04.100(1) provides,

A non-conforming sign in all zones other than the EC zone

as described and established by the Lake Oswego Zoning

Code may be maintained or undergo a change of copy with-

out complying with the requirements of this chapter, with

the exception that any change for a new business or use or

any changes in a wall sign which is painted on a structure

will comply with this chapter at such time as change in copy

or alteration occurs.

A-4

land use plans with the aim of “encouragling] design of

public and private facilities and structures which enhance

community beauty.” See Or.Rev.Stat. § 197.175(2)(a). In

1994 the City passed the current version of the Sign Code

in order to cure earlier perceived constitutional defects. By

regulating all signs in the City, the Sign Code seeks,

among other things, to reduce visual clutter, preserve the

City’s aesthetics and protect traffic and traveler safety. See

LOC § 47.03.010 (“The City Council finds that to protect

the health, safety, property and welfare of the public, to

provide the neat, clean, orderly and attractive appearance

of the community. .. .”). In developing and amending the

Sign Code, the City’s Planning Commission conducted

public hearings, considered the success other cities had

experienced with their own sign codes and reviewed an

Urban Land Institute study on signage and communities.

Notably, during Council deliberations concerning the Sign

Code, businesses presented recommendations to the City,

many of which were incorporated.

The Council’s consultative process culminated in the

current Code, which limits the number and type of signs

permitted in the City. The Code lays out specifications for

all signs and, importantly for plaintiffs, generally prohib-

its pole signs. The Code is not triggered for the many

preexisting signs in most of the City’s zones until a new

business or use requires a change in copy of the sign or the

sign is altered.” LOC §47.04.100 (the “grandfather

* A “change of copy” is defined as “the change of logo and/or

message upon the face or faces of a legal sign.” LOC § 47.03.015. “Alter”

is defined as “{ajny change to a sign excluding change of copy or

maintenance — when there is no change of use, or occupancy or owner-

ship.” Id.

A-5

clause”). However, pole signs had to conform to the Sign

Code by May 21, 2004; in other words, almost all pole

signs in Lake Oswego were to have been removed by this

date. See G.K. Ltd. Travel v. City of Lake Oswego, 2004 WL

817142, at *1, 2004 U.S. Dist. LEXIS 6984 at *3 (D.Or.

Mar. 29, 2004) (“G.K. Ltd. Travel I”). In addition to regu-

lating the dimensions and characteristics of all signs in

the City, the Code includes a permit and design review

process that requires those seeking to erect a sign to allow

City officials to review the sign for readability, clarity and

compatibility. LOC §§ 47.10.400, 47.06.200(4), 47.06.200(5).

If a permit is denied, the permit-seeker may appeal to the

City Development Review Commission and ultimately to

the City Council. The Code also contains exemptions from

the City’s permitting process. If an exemption applies, the

sign still must “comply with all provisions and regulations

of [the Code],” but a permit is not required prior to instal-

lation. LOC §§ 47.06.205, 47.08.300. Specifically, the Code

exempts “[p]ublic signs, signs for hospital or emergency

services, legal notices, railroad signs and danger signs”

from the permitting process. LOC § 47.06.205(4). The Code

also exempts temporary signs from the permitting re-

quirement so long as the temporary sign goes up within a

specified time period triggered by the occurrence of an

enumerated event, such as an election or the sale, lease or

rental of property.‘ See, e.g., LOC § 47.08.300(B)(1). Fi-

nally, the Code incorporates a variance procedure to ease

“Temporary sign is defined as “laJny sign, banner, pennant,

valance or advertising display constructed of cloth, canvas, light fabric,

cardboard, wallboard or other like materials, with or without frames,

and any other type sign not permanently attached to the ground, or a

structure, intended to be displayed for a short period of time only.” LOC

§ 47.03.015.

A-6

the burden of the Code’s application in some cases. LOC

§ 47.12.500.

C. Plaintiffs’ Claims

Focusing on the Sign Code’s restrictions on pole signs,

plaintiffs raise two as-applied challenges to the Code

claiming that the Code’s size and type limitations and the

Code’s grandfather clause unconstitutionally regulate

plaintiffs’ speech on the basis of content. Plaintiffs want

these provisions stricken from the Sign Code and suggest

that without these provisions, the balance of the Sign Code

should be rendered unenforceable. Plaintiffs further claim

that the ban on pole signs is an unconstitutional ban on a

protected medium of speech as applied to the plaintiffs,

because pole signs are “a unique form of communication.”

Plaintiffs also attack the Sign Code by way of several

facial challenges, asserting that they are entitled to

declaratory, injunctive and monetary relief. Plaintiffs

argue that the Code, particularly its exemptions from the

permitting process, its grandfather clause and its design

review process allowing officials to read signs for clarity

and readability, represents a facially unconstitutional

regulation of noncommercial and commercial speech based

on content or viewpoint, or alternatively represents an

unreasonable time, place or manner regulation. They also

challenge the Code as a facially unconstitutional prefer-

ence for commercial over noncommercial speech because of

the treatment of temporary signs in residential zones.

LOC § 47.08.300(B). Finally, plaintiffs claim the permit-

ting scheme (including the design review provision of the

A-7

Code), LOC §§ 47.10.400, 47.06.200(4), is an unlawful

prior restraint on speech and unconstitutionally vague.*

D. District Court Disposition

The district court, in large part, granted summary

judgment for the City. In ruling on the content neutrality of

the Sign Code, the district court meticulously reviewed

provisions of the Code challenged by plaintiffs as content

based. The district court determined that the vast majority of

the provisions were content neutral, but found that a limited

portion of the Code was content based. Specifically, citing

Desert Outdoor Adver. v. City of Moreno Valley, 103 F.3d 814,

820 (9th Cir.1996), the district court found content based the

exemptions from the permit requirements for danger signs,

official notices and “no _ solicitation” signs, LOC

§§ 47.06.205(4), 47.06.205(10). It also found content based

_ the allowance, without a permit, of temporary signs in

commercial or industrial zones for charitable fundraising

events, LOC § 47.08.300(B)(2)(c), because the court found it

represented the City’s preference for a certain message. The

district court ordered these subsections stricken from the

Sign Code, but found the Code otherwise constitutional. G.K.

Ltd. Travel I, 2004 WL 817142, at *8-*9, *15-*16, 2004 U.S.

Dist. LEXIS 6984 at *24,*48. The City does not appeal these

rulings. The district court also granted summary judgment

to the City on the plaintiffs’ as-applied claims.

We review de novo the constitutionality of a local

ordinance. See Rui One Corp. v. City of Berkeley, 371 F.3d

* In district court, plaintiffs also raised equal protection and

takings arguments. The district court granted summary judgment for

the City on these claims and plaintiffs do not appeal.

A-8

1137, 1141 (9th Cir.2004). We focus, primarily, on plain-

tiffs’ challenge to the pole sign regulations and plaintiffs’

facial challenges to the Sign Code summarized above.

More specifically, we address five issues: (1) whether the

Sign Code’s regulation of pole signs is constitutional; (2)

whether the Sign Code otherwise is a constitutional,

content-neutral time, place or manner restriction on

speech; (3) whether the Sign Code’s regulation of tempo-

rary signs in residential zones indicates an impermissible

preference for commercial over noncommercial speech; (4)

whether the Sign Code’s permitting scheme is an unconsti-

tutional prior restraint; and (5) whether the Sign Code,

and specifically its design review clause allowing City

officials to review signs for “compatibility,” is unconstitu-

tionally vague. In all respects, we hold the Sign Code a

constitutional and permissible government regulation.

Il. Pole Sign Regulation

The Code restricts the availability of pole signs as a

carrier of communication in the City. See, eg., LOC

§§ 47.04.100, 47.04.102, 47.10.405(1)(D), 47.10.410(1)(D).

However, pole signs are permissible in the City’s general

commercial zones “when necessary to provide vision

clearance at driveways or intersections and when there is

no alternative, visible on-building or monument sign

location.” LOC §47.10.410(1)(D). Plaintiffs urge that

because the Sign Code bans their pole sign, it is an uncon-

stitutional regulation of plaintiffs’ speech and that the

Code impermissibly bans a protected medium of expres-

sion in violation of City of Ladue v. Gilleo, 512 U.S. 43, 54,

114 S.Ct. 2038, 129 L.Ed.2d 36 (1994) (holding unconstitu-

tional a city’s ban on all residential signs, because they are

A-9

a “venerable means of communication that is both unique

and important”).

The “government may impose reasonable restrictions

on the time, place, or manner of engaging in protected

speech provided that they are adequately justified without

reference to the content of the regulated speech.” City of

Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 428,

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

marks and citation omitted). In addition to being justified

without reference to content, the restrictions must be

“narrowly tailored to serve a significant governmental

interest and ... leave open ample alternative channels

for communication of the information.” Ward v. Rock

Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105

L.Ed.2d 661 (1989) (citing Clark v. Community for Crea-

tive Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82

L.Ed.2d 221 (1984)).

A. Justified Without Reference to Content

To pass muster under Ward, the challenged regulation

must first be “justified without reference to the content of

the regulated speech.” Jd. Our primary concern is deter-

mining whether a regulation of speech was adopted out of

disagreement with a message sought to be conveyed. “The

government’s purpose is the controlling consideration.” Jd.

However, we need not engage in a searching inquiry of the

legislature’s motive to determine the government’s pur-

pose. Rather, “whether a statute is content neutral or

content based is something that can be determined on the

face of it; if the statute describes speech by content then it

is content based.” Menotti v. City of Seattle, 409 F.3d 1113,

1129 (9th Cir.2005) (citing City of Los Angeles v. Alameda

A-10

Books, Inc., 535 U.S. 425, 448, 122 S.Ct. 1728, 152 L.Ed.2d

670 (2002) (Kennedy, J., concurring)) (internal quotation

marks omitted).

The pole sign restriction is not a “law{] that by [its]

terms distinguish{es] favored speech from disfavored

speech on the basis of the ideas or views expressed.”

Turner Broad. Sys. v. FCC, 512 U.S. 622, 643, 114 S.Ct.

2445, 129 L.Ed.2d 497 (1994). The Code restricts all pole

signs across the City’s general commercial zones without

creating exceptions for preferred content. Cf. Foti v. City of

Menlo Park, 146 F.3d 629, 636 (9th Cir.1998). The burdens

imposed by these pole sign restrictions are borne equally

by all of the City’s residents. See Turner Broad. Sys., 512

U.S. at 643, 114 S.Ct. 2445. Further, plaintiffs offer no

evidence suggesting illicit motive or bias on the part of the

City or that the City banned pole signs in general, or their

pole sign in particular, because of a desire to stifle certain

viewpoints. See City Council of Los Angeles v. Taxpayers

for Vincent, 466 U.S. 789, 804, 104 S.Ct. 2118, 80 L.Ed.2d

772 (1984).

Plaintiffs argue that the Code’s grandfather clause,

LOC § 47.04.100, exempting the City’s preexisting signs

from compliance with the Sign Code until there has been a

change in copy or alteration, is content based because it

requires City officers to “read a sign’s message to deter-

mine if the sign is exempted from the ordinance.” Foti, 146

F.3d at 636. It is not clear, however, that officers merely

examining the face of the sign to determine whether its

text or graphics have changed in a technical sense renders

the grandfather provision content based. Regardless, at

this point, we need not determine whether the grandfather

clause as applied to plaintiffs is an unconstitutional

content-based regulation of speech, because all pole signs,

A-11

including preexisting, grandfathered ones, were to be

brought into compliance with the Sign Code’s mandates by

May 21, 2004. See G.K. Ltd. Travel I, 2004 WL 817142, at

*1, 2004 U.S. Dist. LEXIS 6984 at *3; LOC § 47.04.100(5).

Therefore, the question of the constitutionality of the

grandfather clause as applied to pole signs is now moot.

See Clark v. City of Lakewood, 259 F.3d 996, 1011 (9th

Cir.2001) (“[A] case is moot when the issues presented are

no longer ‘live’ or the parties lack a legally cognizable

interest in the outcome.”) (internal citations omitted).

We conclude that the City’s restriction on plaintiffs’

pole sign is not a content-based regulation of plaintiffs’

speech. We therefore turn to whether the City’s interest in

regulating pole signs is significant, whether the restriction

is narrowly tailored and whether plaintiffs retain ample

alternative channels to communicate their message.

B. Significant Government Interest

Content-neutral time, place or manner restrictions

must advance a significant government interest in order to

be constitutional. See Ward, 491 U.S. at 791, 109 S.Ct.

2746. Through the Code’s statement of purpose, the City

asserts numerous interests in passing its sign regulations,

including its pole sign restriction. Section 47.03.010 states:

The City Council finds that to protect the health,

safety, property and welfare of the public, to pro-

vide the neat, clean, orderly and attractive ap-

pearance of the community, to improve the

effectiveness of signs, to provide for safe con-

struction, location, erection, and maintenance of

signs, to prevent proliferation of signs and sign

clutter, and to minimize adverse visual safety

factors to travelers on public highways and on

A-12

private areas open to public travel, it is neces-

sary to regulate [signs]... .

Of the justifications for the Sign Code and its restric-

tion on pole signs, the two most prominent are the preser-

vation of the City’s aesthetic quality and the protection of

travel safety. These are oft-invoked objectives with a rich

history of judicial endorsement, and sometimes skepti-

cism. See Foti, 146 F.3d at 637 n. 8. Against the backdrop

of numerous decisions of the Supreme Court and this

court, we do not doubt that Lake Oswego’s interests in its

appearance and the safety of the public are significant and

well established. See Taxpayers for Vincent, 466 U.S. at

807, 104 S.Ct. 2118 (“The problem addressed by this

ordinance — the visual assault on the citizens of Los

Angeles presented by an accumulation of signs posted on

public property — constitutes a significant substantive evil

within the City’s power to prohibit.”); Metromedia, Inc. v.

City of San Diego, 453 U.S. 490, 507, 101 S.Ct. 2882, 69

L.Ed.2d 800 (1981) (“Nor can there be substantial doubt

that the twin goals that the ordinance seeks to further —

traffic safety and the appearance of the city — are substan-

tial governmental goals.”); Foti, 146 *.3d at 637.

Plaintiffs seem to argue that even if the general

interests in preventing visual blight and ensuring travel

safety are significant, they are not significant for Lake

Oswego because the City has neither established that it

has a problem with visual blight or travel safety, nor that

the pole sign restriction would actually advance the City’s

asserted interests.. In the absence of such evidence,

* Plaintiffs also argue that the City’s willingness to exempt certain,

pre-existing signs from the regulations indicates that the City’s

interests are not substantial. See LOC § 47.04.100. However, the City’s

(Continued on following page)

A-13

plaintiffs contend, the Sign Code is a constitutionally

defective means for advancing any governmental interest,

significant or otherwise.

These arguments are not convincing. As to whether

the City’s interests are actually served by the Sign Code,

we generally defer to the legislative body passing the law

in determining whether the government’s ends are ad-

vanced by a regulation. See City of Lakewood, 259 F.3d at

1015. Further, the Sign Code, including the pole sign

restriction, was the result of much legislative deliberation,

a dynamic dialogue with the City’s residents and busi-

nesses and extensive hearings; these conversations, along

with Council reliance on the experience of other cities,

produced strong evidence of the need for sign restrictions

and the form these restrictions should take.’ This evidence

provided the City with legitimate and relevant bases for

advancing its Sign Code and restricting the availability of

pole signs. See Lorillard Tobacco v. Reilly, 533 U.S. 525, 555,

121 S.Ct. 2404, 150 L.Ed.2d 532 (2001) (“We have permitted

litigants to justify speech restrictions by reference to studies

and anecdotes pertaining to different locales altogether, or

even, in a case applying strict scrutiny, to justify restrictions

based solely on history, consensus, and ‘simple common

interests are advanced by substantial reduction in offensive signage

even when all such signs are not immediately removed. “We [do not}

require that the Government make progress on every front before it can

make progress on any front.” United States v. Edge Broad. Co., 509 U.S.

418, 434, 113 S.Ct. 2696, 125 L.Ed.2d 345 (1993). See also Moser v.

FCC, 46 F.3d 970, 974 (9th Cir.1995).

” At one City public hearing, a resident characterized pole signs as

a “visual pollution.” Furthermore, a Department of Planning and

Development memorandum indicates that businesses “approached the

City requesting monument signs to replace pole signs which become

less visible as street trees grow taller.”

A-14

sense.’”); City of Renton v. Playtime Theatres, Inc., 475

U.S. 41, 51-52, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (“The

First Amendment does not require a city, before enacting

such an ordinance, to conduct new studies or produce

evidence independent of that already generated by other

cities, so long as whatever evidence the city relies upon is

reasonably believed to be relevant to the problem that the

city addresses.”).

C. Narrowly Tailored

A content-neutral regulation designed to advance

significant government interests: must be narrowly tai-

lored to be constitutional. Narrow tailoring requires that

the regulation actually advance the government’s inter-

ests, but it need not do so in the least restrictive or least

intrusive way. See State University of New York v. Fox, 492

U.S. 469, 479, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989),

Ward, 491 U.S. at 799, 109 S.Ct. 2746. “So long as the

means chosen are not substantially broader than neces-

sary to achieve the government's interest ... , the regula-

tion will not be invalid simply because a court concludes

that the government’s interest could be adequately served

by some less-speech-restrictive alternative.” Jd. at 800, 109

S.Ct. 2746.

Plaintiffs argue that the restriction on pole signs is

not narrowly tailored because it goes further than neces-

sary to achieve the City’s interests in aesthetics and traffic

safety. We do not agree. The Code permissibly and in a

narrowly tailored way limits the prominence of plaintiffs’

advertising sign by restricting its length and position. See

Foti, 146 F.3d at 641 (in holding a sign restriction to be

narrowly tailored, we noted “[t]he restrictions on the size

A-15

and number of picket signs are reasonable legislative

judgments in light of the City’s concern for traffic safety.”).

Because of their height, pole signs, as defined by Lake

Oswego, can reasonably be perceived by the City to be

aesthetically harmful and distracting to travelers. See

Metromedia, 453 U.S. at 510, 101 S.Ct. 2882 (“It is not

speculative to recognize that billboards by their very

nature, wherever located and however constructed, can be

perceived as an ‘esthetic harm.’”). Severely limiting their

presence in Lake Oswego directly serves the City’s pur-

poses. See Taxpayers for Vincent, 466 U.S. at 808, 104

S.Ct. 2118 (“By banning these signs, the City did no more

than eliminate the exact source of the evil it sought to

remedy.”). The Sign Code’s pole sign restriction is a nar-

rowly tailored means of achieving the City’s significant

interests.

D. Ample Alternative Channels

Even a narrowly tailored content-neutral regulation

must not foreclose too many channels of expression; there

must be ample alternative opportunities for a speaker to

convey his or her message. In our analysis, however, we

are cautioned against invalidating government regulations

for failing to leave open ample alternative channels unless

the regulation foreclose[s] “an entire medium of public

expression across the landscape of a particular community

or setting.” Colacurcio v. City of Kent, 163 F.3d 545, 555

(9th Cir.1998) (citing Metromedia, 453 U.S. at 525-27, 101

S.Ct. 2882 (Brennan, J., concurring)).

Although it restricts the availability of pole signs in the

City, the Code says nothing about other non-sign-based

forms of communication such as handbills, radio, television,

A-16

newspaper or telemarketing. See Bland v. Fessler, 88 F.3d

729, 736 (9th Cir.1996). Even with respect to signage, the

Code itself authorizes wall signs, monument signs, awning

and canopy signs, blade signs and overhanging signs,

allowing plaintiffs a “reasonable opportunity” to communi-

cate their message. See LOC §§ 47.03.015, 47.10.412,

47.10.415, 47.10.420; Menotti, 409 F.3d at 1141 (citing City

of Renton, 475 U.S. at 54, 106 S.Ct. 925). In light of these

ample alternatives, we cannot invalidate the Sign Code

merely because it restricts plaintiffs’ preferred method of

communication.® See Taxpayers for Vincent, 466 U.S. at

812, 104 S.Ct. 2118 (“[Tjhe First Amendment does not

guarantee the right to employ every conceivable method of

communication at all times and in all places”); Kovacs uv.

Cooper, 336 U.S. 77, 88-89, 69 S.Ct. 448, 93 L.Ed. 513

(1949) (“That more people may be more easily and cheaply

reached by sound trucks ... is not enough to call forth

constitutional protection for what those charged with

* More extensive restrictions banning “a venerable means of

communication that is both unique and important” might be unconsti-

tutional. City of Ladue, 512 U.S. at 54, 114 S.Ct. 2038. However,

plaintiffs do not prove that pole signs occupy such a “venerable”

position in Lake Oswego. For example, there is no explanation why

plaintiffs consider pole signs to be “unique and important” in Lake

Oswego or that monument or on-building signs would not effectively

serve plaintiffs’ communicative interests. Indeed, other businesses

encouraged the City to have monument signs replace pole signs. See

Taxpayers for Vincent, 466 U.S. at 812, 104 S.Ct. 2118 (“Notwithstand-

ing appellees’ general assertions in their brief concerning the utility of

political posters, nothing in the findings indicates that the posting of

political posters on public property is a uniquely valuable or important

mode of communication, or that appellees’ ability to communicate

effectively is threatened by ever-increasing restrictions on expression.”).

For this reason, plaintiffs’ as-applied challenge to the Sign Code as

“banning a medium” also fails.

A-17

public welfare reasonably think is a nuisance when easy

means of publicity are open.”).

In sum, we hold that the Sign Code’s pole sign restric-

tion is justified without reference to the content of the

regulated speech, is narrowly tailored to achieve the City’s

significant interests in aesthetics and traffic and traveler

safety and, although it forecloses the availability of pole

signs, it leaves open ample alternative means of communi-

cating the plaintiffs’ advertising message. The City’s pole

sign restriction, as applied to plaintiffs, is constitutional.

III. Content Neutrality of the Remaining Provi-

sions of the Sign

Plaintiffs next contend that even if the City may

properly regulate and restrict their pole sign, the Code

impermissibly infringes on the First Amendment rights of

third parties. At the outset we note that plaintiffs need not

establish standing prior to bringing this form of facial

challenge, which seeks to invalidate the entire ordinance.

See Foti, 146 F.3d at 635 (“The second type of facial chal-

lenge is an exception to our general standing require-

ments: the plaintiff argues that the statute is written so

broadly that it may inhibit the constitutionally protected

speech of third parties, even if his own speech may be

prohibited. A successful challenge to the facial constitu-

tionality of a law invalidates the law itself.”) (internal

citations omitted). In evaluating plaintiffs’ facial chal-

lenge, we apply the same content-neutrality test articu-

lated in Ward and addressed more fully above in our

discussion of the Code’s pole sign restriction.

A-18

A. Justified Without Reference to Content

Plaintiffs identify several portions of the Code that

they urge us to hold content based. The vast majority of

plaintiffs’ identified provisions clearly are not content — or

viewpoint — based. There is no indication either on the face

of the ordinance or in the evidence in the record that the

City’s purpose in adopting the Sign Code, and its size and

type restrictions, was to regulate speech on the basis of

content. See Madsen v. Women’s Health Ctr., 512 U.S. 753,

763, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) (“We .. . look

to the government’s purpose as the threshold considera-

tion.”); see also City of Ladue, 512 U.S. at 48, 114 S.Ct.

2038 (“It is common ground that governments may regu-

late the physical characteristics of signs... .”); Foti, 146

F.3d at 640 (“We have upheld restrictions on the size and

aggregate area of signs posted on private property based

on a city’s interests in aesthetics.”) (internal citations

omitted).

Although most of the provisions describe the type and

dimensions of permissible signs, plaintiffs do identify a

few potentially suspect portions of the Code, quoting Fott,

146 F.3d at 636, and asserting that “in this circuit a

regulation of speech is ‘content-based [if] a law enforce-

ment officer must read a sign’s message to determine if the

sign is[regulated.]’” These possibly content-based provi-

sions are: (1) An exemption from the permit requirement

for public signs, hospital or emergency signs, legal notices,

railroad signs and danger signs, LOC § 47.06.205(4); and

for temporary signs during enumerated events, like

elections, LOC § 47.08.300(B\(1)a) (during elections,

residents are exempt from the permit requirements

otherwise imposed on temporary signs). (2) One section

that grandfathers in old, nonconforming signs but requires

A-19

these signs to conform with the regulations when the sign

is altered. LOC §§ 47.04.100, 47.04.102.(3) The design

review provision (incorporated into the Code’s permitting

process) that requires City officials to review signs for

clarity and readability. LOC § 47.06.200(5). We review

each provision below, and hold that neither the Code as a

whole nor these provisions in particular regulate speech

on the basis of content. Therefore, the Sign Code is content

neutral.

1. Exemptions of Certain Signs from the Per-

mit Requirement

a. Speaker-based exemptions’

Section 47.06.205(4) provides, “public signs, signs for

hospital or emergency services, legal notices, railroad

signs and danger signs” must comply with the Sign Code,

but need not be subject to the City’s permit and fee proc-

ess. Plaintiffs insist that the limited exemptions of section

47.06.205(4) render the Sign Code content based because

the City is expressing a preference for certain types of

speech. We disagree.

The City interprets these provisions as providing

exemptions to certain speakers and not to particular

content. See G.K. Ltd. Travel I, 2004 WL 817142, at *5-

*16, 2004 U.S. Dist. LEXIS 6984 at *16; see also LOC

§ 47.03.015 (defining public signs as “a sign erected and

* We do not understand plaintiffs as challenging the speaker-based

exemptions of LOC § 47.06.205(4) on equal protection grounds. Cf. Foti,

146 F.3d at 637-38 (refusing to address whether a picketing and sign

ordinance that granted an exemption for government speech violated

equal protection because plaintiffs failed to present these arguments to

the district court).

A-20

maintained by a public agency within the right-of-way of a

street or alley”). Like the district court, we hold this

construction to be reasonable.”

The Supreme Court in Turner Broad. Sys., Inc. v. FCC

stated

[S]peaker-based laws demand strict scrutiny

when they reflect the Government’s preference

for the substance of what the favored speakers

have to say (or aversion to what the disfavored

speakers have to say)... . {[Llaws favoring some

speakers over others demand strict scrutiny

when the legislature’s speaker preference reflects

a content preference.

512 US. at 658, 114 S.Ct. 2445. In this case, the Sign Code

reflects the City’s preference for not subjecting certain

entities — public agencies, hospitals and railroad companies —

to the requirements of the permitting and fee scheme." The

® In evaluating § 47.06.205(4) of the Sign Code, the district court

found that exempting legal notices and danger signs from the permit

and fee requirements of the Code was constitutionally impermissible.

The district court reasoned that there are no obvious owners for legal

notices or danger signs (as opposed to hospital or railroad signs) and the

City’s limiting construction was therefore inapplicable. The court

ordered these subsections severed from the ordinance, relying on Desert

Outdoor Adver. where we concluded that exemptions in a sign ordinance

for “official notices” and “warning” signs were content based. See G.K.

Ltd. Travel I, 2004 WL 817142, at *6, 2004 U.S. Dist. LEXIS 6984 at

*18 (citing Desert Outdoor Adver., 103 F.3d at 820). The City has not

appealed the district court’s ruling and we do not rule on the constitu-

tionality of the severed exemptions.

" We have previously questioned the constitutionality of a “whole-

sale exemption for government speech,” but we do not read Lake

Oswego's Sign Code to provide such an exemption. See Foti, 146 F.3d at

637. Rather, the public agency exemption applies only to the permitting

scheme; public agencies are otherwise required to follow the substantive

requirements of the Sign Code. See LOC § 47.06.205 (“The following signs

(Continued on following page)

A-21

exemptions are purely speaker based according to the City’s

reasonable construction of the provision and say nothing of

the City’s preference for the content of these speakers’

messages, nor do they allow the City to discriminate

against disfavored speech. That is, plaintiffs have not

shown that the City preferred the substance of railroad

company messages, for instance, over travel agency

messages and therefore exempted the railroad companies

from the permitting process. See One World One Family Now

v. City & County of Honolulu, 76 F.3d 1009, 1012'n. 5 (9th

Cir.1996) (“Because [the] exemptions don’t enable the city to

discriminate against ideas it disfavors, they don’t render the

ordinance content-based.”), Moreover, these institutional

speakers are still subject to the mandates of the Sign Code

concerning the type, number and characteristics of signs that

are permissible in the City; it is just that certain speakers

need not obtain permits (and pay the associated fee) before

posting their signs. That the law affects plaintiffs more than

other speakers does not, in itself, make the law content

based. See Ward, 491 U.S. at 791, 109 S.Ct. 2746 (“A regula-

tion that serves purposes unrelated to the content of expres-

sion is deemed neutral, even if it has an incidental effect on

some speakers or messages but not others.”).

b. Event-based exemptions

Likewise, the permit exemption for temporary signs in

residential zones is not content based. Indeed, the provision

shall comply with all provisions and regulations of this chapter;

However [sic], no fee, permit or application is required.”). Furthermore,

the exemption here for public signs is more narrowly drawn because the

Code exempts only those signs “erected and maintained by a public

agency within the right-of-way of a street or alley.” LOC § 47.03.015.

A-22

creating this exemption explicitly demands content neu-

trality. See LOC § 47.08.300(B)(1) (“In any residential zone

temporary signage shall be allowed for each and every lot.

This signage shall not be restricted by content, but is

usually and customarily used to advertise real estate sales,

political or ideological positions, garage sales, home construc-

tion or remodeling, etc.”) (emphasis added). Section

47.08.300(B) imposes only temporal and size restrictions on

temporary signs. For example, homeowners may erect a

temporary sign concerning any topic whatsoever on their

property without a permit so long as that sign goes up not

more than 90 days prior to an election, stays up not more

than five days following the election and is no larger than six

square feet. See LOC § 47.08.300(B)(1Xa). Likewise, a

homeowner may put up “{o)ne temporary sign not exceeding

six square feet provided the sign is removed within fifteen

days from the sale, lease or rental of the property or

within seven days of completion of any construction or

remodeling.” LOC § 47.08.300(B)(1)(b). Such exemptions

indicate the City’s recognition that during certain times,

more speech is demanded by the citizenry because of the

event (e.g., a real estate transaction or election) but the

City does not limit the substance of this speech in any way.

The exemption for temporary signs does not manifest the

City’s desire to prefer certain types of speech or regulate

signage by its content. Therefore, this exemption, too, is

content neutral.

Neither the speaker - nor event-based exemptions

implicate Foti insofar as neither requires law enforcement

officers to “read a sign’s message to determine if the sign is

exempted from the ordinance.” Foti, 146 F.3d at 636. In

the speaker category, officers decide whether an exemption

applies by identifying the entity speaking through the sign

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without regard for the actual substance of the message. In

the case of event-based exemptions to the permitting

process, the officer must determine only whether a specific

triggering event has occurred and if the temporary sign

has been erected within the specified time frame. Plainly, -

the City anticipates that signs will relate to the triggering

event, but the ordinance, by its own terms, does not

mandate the temporary sign comply with content restric-

tions. Although it may seem “bizarre” to plaintiffs to read

the ordinance as allowing temporary signs, regardless of

content, during certain events, this is precisely what the

ordinance says and it reveals the extent the City is willing

to go to avoid content-based restrictions on expression. See

G.K. Ltd. Travel I, 2004 WL 817142, at *7-*8, 2004 US.

Dist. LEXIS 6984 at *21.

2. Grandfather clause

Plaintiffs argue that the Sign Code’s grandfather

clause, LOC § 47.04.100(1), is content based under Foti

because, in order to evaluate whether the pre-existing sign

must now conform to the Code, the City official must

“read[the] sign’s message” and determine whether there

has been a “change of logo and/or message upon the face”

of the sign or if the sign has otherwise been altered.” See

Foti, 146 F.3d at 636; LOC § 47.03.015 (defining “change of

copy”). Plaintiffs attempt to broaden Foti to stand for the

Proposition that any time an ordinance requires a law

enforcement officer to read a sign, the ordinance must be

content based. We reject such an expansive reading. The

“ In regards to pole signs, the Code’s grandfather clause lapsed as

of May 21, 2004. See LOC § 47.04.100(5). In regards to other types of

signs, however, the grandfather clause remains in force.

A-24 |

Foti test actually turns on “whether the ordinance singles

out certain speech for differential treatment based on the

idea expressed,” id. at 636 n. 7; enforcement officials

having to read a sign is persuasive evidence of such a

purpose but may not always be dispositive.

In Foti, we evaluated a Menlo Park ordinance banning

all signs on all public property. The law, however, ex-

empted “open house,” safety, traffic and public information

signs. Relying on our earlier ruling in Desert Outdoor

Adver, v. City of Moreno Valley, 103 F.3d 814, 820 (9th

Cir.1996), we concluded that these exemptions were

content based “because a law enforcement officer must

read a sign’s message to determine if the sign is exempted

from the ordinance.” Foti, 146 F.3d at 636. Menlo Park was

clearly expressing a preference for certain types of signs

by exempting them from the city’s general prohibition. The

only way to determine if a sign was the type qualified to

receive Menlo Park’s favorable treatment was to evaluate

the content and substantive message of the sign.

Unlike in Menlo Park, here, City officials have to read

signs only to determine whether the text of the sign or a

logo on the sign has changed — i.e., whether it is a verba-

tim replication of the original text or an exact duplication

of the previous logo. As the City notes, even those who

speak no English could perform this superficial review

function by placing the former sign next to the new sign

and examining the characters and elements on both.

Unlike Foti’s exemptions, the grandfather clause does not

require Lake Oswego officials to evaluate the substantive

message on the preexisting sign and the clause certainly

does not favor speech “based on the idea expressed.” Jd. at

636 n. 7. A grandfather provision requiring an officer to read

a sign’s message for no other purpose than to determine if

A-25

the text or logo has changed, making the sign now subject

to the City’s regulations, is not content based. See Hill v.

Colorado, 530 U.S. 703, 720, 120 S.Ct. 2480, 147 L.Ed.2d

597 (2000) (“We have never held, or suggested, that it is

improper to look at the content of an oral or written

statement in order to determine whether a rule of law

applies to a course of conduct.”).

3. Design review provision

Section 47.06.200(5) allows City officials, during the

permitting process, to review signs for “clarity and read-

ability.” Plaintiffs suggest that this provision allows City

officials to prefer certain speech and regulate all messages

on the basis of content. The City counters by offering a

limiting construction, asserting that clarity and readabil-

ity refer only to legibility and not intelligibility. G.K. Ltd.

Travel I, 2004 WL 817142, at *8, 2004 U.S. Dist. LEXIS

6984 at *22. Without the City’s construction, the provision

would be suspect; however, we consider the City’s limiting

construction reasonable. See Village of Hoffman Estates v.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 5, 102

S.Ct. 1186, 71 L.Ed.2d 362 (1982) (“In evaluating a facial

challenge to a state law, a federal court must, of course,

consider any limiting construction that a state court or

enforcement agency has proffered.”). Review for legibility

entails, for example, an official reading a sign to ensure

that its text is visible from streets so as not to distract

passing motorists. Legibility review does not allow the

City to regulate the substance of the message contained in

a sign. We hold that the design review provision, as

limited by the City’s construction, is content neutral.

A-26

B. Remaining Ward Factors

1. Significant interest

The Sign Code, in total, is a content-neutral regula-

tion of speech. We must still determine whether the Code

is narrowly tailored to achieve significant government

interests and leaves open ample alternative channels for

communication. As explained in our discussion of the pole

sign regulation, part II.B supra, the City’s interests in

regulating speech to preserve aesthetics and protect traffic

and traveler safety are significant.

2. Narrow tailoring

We have already concluded that the pole sign restric-

tion is narrowly tailored and similarly conclude that the

remainder of the Sign Code’s regulations are narrowly

tailored to achieve the City’s significant interests. The

City’s regulations, limiting the type, size and number of

signs permissible within its borders, are “reasonable

legislative judgments in light of the City’s concern{s]....”

Foti, 146 F.3d at 641.” For example, pole signs and inter-

nally illuminated signs may distract travelers as they are

driving down the City’s streets, posing a hazard to traffic

safety. See id. (“A fifteen square foot sign carried by a

protester on a public sidewalk, when compared to a three

square foot sign, may block drivers’ views of road signs

' Further evidence of the City’s desire to tailor the Sign Code is

found in the Code’s variance procedure. City officials may grant a

variance so a party can avoid the strictures of the Code where “[s]trict

application of the [Clode requirement would deny the applicant a

reasonable opportunity to communicate by sign in a manner similar to

like persons or uses because of an unusual or unique circumstance... .

LOC § 47.12.500(2XA).

A-27

and traffic conditions, intimidate pedestrians, and ob-

struct the safe and convenient circulation of pedestrians

on the sidewalk.”) Additionally, the proliferation of tempo-

rary signs in the City’s residential zones may create visual

clutter and otherwise distract from the City’s neat and

orderly appearance. Without these restrictions, it is

difficult to imagine how the City would achieve its goals of

preserving aesthetics and protecting traffic safety. “Here,

no less restrictive means of accomplishing the govern-

ment’s objectives is readily apparent.” Bland, 88 F.3d at

736; see also Ward, 491 U.S. at 799, 109 S.Ct. 2746 (“[T]he

requirement of narrow tailoring is satisfied so long as the

... regulation promotes a substantial government interest

that would be achieved less effectively absent the regula-

tion.”) (internal citation and quotation marks omitted).

3. Ample alternative channels

In Taxpayers for Vincent, the Supreme Court evalu-

_ ated a severely restrictive Los Angeles ordinance prohibit-

ing the posting of signs on public property. 466 U.S. 789,

104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). The Court upheld

this prohibition as a valid, content-neutral time, place or

manner restriction. In its discussion of the availability of

ample alternative channels for communication, the Court

noted,

The Los Angeles ordinance does not affect any

individual’s freedom to exercise the right to

speak and to distribute literature in the same place

where the posting of signs on public property is

prohibited. To the extent that the posting of signs

on public property has advantages over these

forms of expression, there is no reason to believe

that these same advantages cannot be obtained

A-28

through other means. To the contrary, the find-

ings of the District Court indicate that there are

ample alternative modes of communication in

Los Angeles. Notwithstanding appellees’ general

assertions in their brief concerning the utility of

political posters, nothing in the findings indi-

cates that the posting of political posters on pub-

lic property is a uniquely valuable or important.

mode of communication, or that appellees’ ability

to communicate effectively is threatened by ever-

increasing restrictions on expression.

Id. at 812, 104 S.Ct. 2118 (internal citation omitted).

Similarly, the Sign Code, although significantly restricting

pole signs and regulating the type and manner of other

signs, does not threaten the ability of Lake Oswego resi-

dents to “communicate effectively.” Residents of the City

may resort to any number of alternative channels for

communication; indeed, the Code does not prohibit resi-

dents from communicating through signs so long as those

signs otherwise comply with the Code’s restrictions.”

We hold that the Sign Code is a valid content-neutral

restriction on the time, place or manner of speech, nar-

rowly tailored to serve the City’s significant interests

without impermissibly limiting the alternative channels

for communication. “(T]he ordinance does not create an

unacceptable threat to the ‘profound national commitment

to the principle that debate on public issues should be

uninhibited, robust, and wide-open.’” Jd. at 817, 466 US.

“ Several sections of the Code list allowable signs (subject to the

City’s permitting process), including, in various zones, blade, cornice,

awning, monument, window and canopy signs. See LOC §§ 47.10.41(D),

47.10.4121), 47.10.415, 47.10.420.

A-29

789 (citing New York Times Co. v. Sullivan, 376 U.S. 254,

270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964),

IV. Commercial/Noncommercial Speech Distinc-

tion

“[A]n ordinance is invalid if it imposes greater restric-

tions on noncommercial than on commercial billboards or

regulates noncommercial billboards based on their con-

tent.” Nat'l Adver. Co. v. City of Orange, 861 F.2d 246, 248

(9th Cir.1988) (citing Metromedia, 453 US. at 513, 516,

101 S.Ct. 2882). Plaintiffs claim that various subsections

of section 47.08.300, regulating temporary signs in resi-

dential zones, violate Metromedia’s rule. Section 47.08.300

contains a list of events (e.g., an election or the sale, lease

or rental of a property), the occurrence of which allows a

resident to erect a temporary sign, not exceeding listed

dimensions, for a limited time period. The City states that

temporary signs need not concern a specific, enumerated

topic, such as the sale of property, but can be about any

subject matter so long as the sign is displayed during the

relevant time period and is within the Code’s size limits.

The sections challenged do not indicate the City’s

preference for commercial speech nor do they regulate

based on the content of speech. See LOC § 47.08.300(B)\1)

(“This signage shall not be restricted by content... .”).

Rather, the regulations exempt signs from the Code’s

permit requirement during certain events. For example, 90

days prior to an election and five days afterwards, a resident

may erect a temporary sign not exceeding six square feet

without a permit. § 47.08.300(B\ 1a). The City insists that

the temporary sign could contain a purely commercial

message so long as it meets the Code’s temporal and size

A-30

limitations. The district court was convinced by the City’s

argument, stating, “it is a fair reading of the provisions

and demonstrates the lengths to which the City has gone

to regulate signs without doing so on the basis of content.”

G.K. Ltd. Travel I, 2004 WL 817142, at *7, 2004 US. Dist.

LEXIS 6984 at *21. The fact that no officer must read the

temporary sign’s message to determine if it falls into the

Code’s permit exemption further evidences the content

neutrality of the temporary sign provision. See Nat'l Adver.

Co., 861 F.2d at 248.

We are similarly convinced that section 47.08.300 does

not impermissibly favor commercial over noncommercial

messages, nor does it regulate noncommercial messages on

the basis of content. Where, as here, the Code is “neuiral

with respect to noncommercial messages,” the Metromedia

concern about cities distinguishing between myriad

communicative interests is not implicated. Clear Channel

Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 814 (9th

Cir.2003); see also Metromedia, 453 USS. at 514, 101 S.Ct.

2882.

V. Prior Restraint

Plaintiffs contend that the permitting requirement of

section 47.10.400 is an unconstitutional prior restraint on

speech. That section provides:

It is unlawful and a civil violation for any person

to erect, construct, alter or relocate any sign

without first obtaining a permit pursuant to the

provisions of this chapter unless a provision of

this chapter specifically exempts a sign from the

permit requirement.

A-31

LOC § 47.10.400(1). The City acknowledges that the

review authorized by the permitting scheme authorizes

“some discretion,” but asserts that City officials are not

reviewing signs based on content. Plaintiffs attack the

City’s permitting scheme on two grounds: first, it does not

contain adequate procedural protections for speakers and,

second, it gives unbridled discretion to local law enforce-

ment officials.

A. Procedures

Generally, prior restraints are constitutionally suspect

and may stand only if they are imposed for a short period

of time and provide a process for adequate and swift

appeal to a judicial body. See Freedman v. Maryland, 380

U.S. 51, 57-59, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). In

Freedman, the Court evaluated a film review procedure

whereby a state law required a film exhibitor to submit his

film to a censor prior to having it displayed at a local

theater. The Court held that such a review process sur-

vives constitutional scrutiny only if the system incorpo-

rates “procedural safeguards designed to obviate the

dangers of a censorship system.” Jd. at 58, 85 S.Ct. 734.

Plaintiffs argue that the Sign Code does not satisfy the

Freedman dictate because the Code’s permitting scheme

fails to contain necessary procedural safeguards such as a

process for swift appeal to a judicial body. However, in

Thomas v. Chicago Park District, the Court evaluated a

content-neutral licensing scheme that was challenged

under the Freedman prior restraint doctrine and con-

cluded, “Freedman is inapposite because the licensing

scheme at issue here is not subject-matter censorship but

content-neutral time, place, and manner regulation of the

use of a public forum.” 534 U.S. 316, 322, 122 S.Ct. 775,

A-32

151 L.Ed.2d 783 (2002); accord S. Or. Barter Fair v.

Jackson County, 372 F.3d 1128, 1138 (9th Cir.2004) (a

permitting scheme requiring permits even for private

gatherings did not violate Freedman “because it is content-

neutral, [and therefore] the Act need not contain the

procedural safeguards required of content-based regula-

tions.”). Likewise, because we have held that the Sign

Code is content neutral, the procedural requirements of

the prior restraint doctrine need not be satisfied. Jd. at

1137 (“[Nlone of the Freedman safeguards are required of

content-neutral time, place, and manner permit schemes.”)

(quoting Thomas, 534 U.S. at 320-23, 122 S.Ct. 775).

B. Unbridled Discretion

The prior restraint doctrine requires review of both

the law’s procedural guarantees and the discretion given

to law enforcement officials. Even though content-neutral

laws need not incorporate the strict procedural guarantees

of Freedman, they must avoid placing unbridled discretion

in the hands of government officials. See FW/PBS, Inc. v.

City of Dallas, 493 U.S. 215, 225-26, 110 S.Ct. 596, 107

L.Ed.2d 603 (1990). The requirement of sufficient direction

for City officials seeks to alleviate the threat of content-

based, discriminatory enforcement that arises “[w]here the

licensing official enjoys unduly broad discretion in deter-

mining whether to grant or deny a permit... .” Chicago

Park Dist., 534 U.S. at 323, 122 S.Ct. 775. To avoid im-

permissible discretion, the challenged ordinance should

“contain adequate standards to guide the official’s decision

and render it subject to effective judicial review.” Id.

The Code requires most who seek to speak through

the medium of a sign to obtain a permit from a City

A-33

official. See LOC § 47.10.400. The plaintiffs argue that this

permit process, authorizing City officials to review signs

for compatibility, LOC § 47.06.200(4), fails to contain the

standards demanded in Chicago Park District and thus

renders the Code an unlawful prior restraint.” Plaintiffs

believe that there are few, if any, limits on the discretion of

permitting officials so the officials may reject signs merely

because they do not like the message conveyed or the

speaker. We disagree.

The City may deny permits only when the sign does

not comport with the Code’s reasonably specific size and

type criteria or is not compatible with the surrounding

environment. Both reference to the surrou:.ding environ-

ment and the “compatibility” determination are explicitly

defined in the Code. Officials are to look only to the pro-

posed sign’s relationship “with other nearby signs, other

elements of street and site furniture and with adjacent

structures.” Jd. In determining whether the sign is com-

patible, the Code instructs permitting officials to consider

a limited and objective set of criteria, namely “form,

proportion, scale, color, materials, surface treatment,

overall sign size and ths size and style of lettering.” Id.

Additionally, the Code requires that most permit applica-

tions be processed within 14 days of receipt of the applica-

tion, instructs applicants what to include in the

application and allows for appeal to the City Council. See

LOC § 47.10.400; see also Chicago Park Dist., 534 U.S. at

* Section 47.06.200(4) provides that signs must “be compatible

with other nearby signs, other elements of street and site furniture and

with adjacent structures. Compatibility shall be determined by the

relationships of the elements of form, proportion, scale, color, materials,

surface treatment, overall sign size and the size and style of lettering.”

A-34

324, 122 S.Ct. 775 (favorably noting that the Park District

must respond to a permit application within 28 days).

General provisions of the City of Lake Oswego Code also

require that the permitting official state the reasons for

his or her decision to either grant or deny a permit so as to

facilitate effective review of the official's determination.

See LOC §50.81.015 (2005) (“Approval or denial of a

[minor development permit] application shall be accompa-

nied by written findings that explain the criteria and

standards considered relevant to the decision, state the

facts relied upon in rendering the decision and explain the

justification for the decision based on the criteria, stan-

dards and facts set forth.”); cf. City of Lakewood v. Plain

Dealer Pub. Co., 486 U.S. 750, 769, 108 S.Ct. 2138, 100

L.Ed.2d 771 (1988) (holding unconstitutional a news-rack

permitting ordinance in part because “nothing in the law

as written requires the mayor to do more than make the

statement ‘it is not in the public interest’ when denying a

permit application.”). Requiring the articulation of reasons

ensures that the compatibility determination is properly

limited in scope and allows the Sign Code to be “enforce-

able on review.” Chicago Park Dist., 534 U.S. at 324, 122

S.Ct. 775; see also S. Or. Barter Fair, 372 F.3d at 1140

(“These limits objectively constrain the ge verning body’s

discretion and allow effective judicial review.”).

This case is distinguishable from Desert Outdoor

Adver. v. City of Moreno Valley where we invalidated as an

unlawful prior restraint an ordinance requiring residents

to obtain permits prior to installing off-site signs. 103 F.3d

at 818-19. The permitting official made determinations

upon finding thet the proposed display “will not have a

harmful effect upon the health or welfare of the general

public ... and will not be detrimental to the aesthetic

A-35

quality of the community or the surrounding land uses.”

Id. at 817. In concluding that the ordinance impermissibly

vested unbridled discretion in the hands of local officials,

we stated “[The ordinance] contains no limits on the

authority of City officials to deny a permit. ... Moreover,

City officials can deny a permit without offering any

evidence to support the conclusion that a particular

structure or sign is detrimental to the community.” Jd. at

819. In Lake Oswego, however, the standard governing

compatibility review is much more specific — “compatibility

shall be determined by the relationship of ... ” — than

mere reference to “the aesthetic quality of the community

or surrounding land uses.” And, as already noted, Lake

Oswego permitting officials must explain why the sign is

incompatible and therefore not worthy of a permit. We are

satisfied that the Sign Code contains appropriate stan-

dards “cabining the administrator’s discretion.” S. Or

Barter Fair, 372 F.3d at 1140.

Plaintiffs also complain that the Code’s design review

clause is so subjective that permitting officials are allowed

to censor expression. However, plaintiffs fail to point to

any section of the Code giving officials the discretion to

restrict signs by content. Plaintiffs are unable to identify a

single case of actual censorship of content by the permit-

ting authority. See S. Or. Barter Fair, 372 F.3d at 1140 (in

rejecting unbridled discretion claim, we noted, “we lack

actual evidence of a pattern of abuse.”); cf. City of Lakewood,

486 US. at 758, 108 S.Ct. 2138. In almost all instances, the

parties have been able to come to resolution regarding the

compatibility issues raised by the permitting official."

* In only one case did an applicant appeal the denial of a permit

and this appeal ended favorably for the applicant.

A-36

Sometimes, as plaintiffs identify, the dialogue with the

City breeds resentment or frustration on the part of the

permit seeker as businesses do not want to negotiate their

sign design with the City. Nonetheless, frustration of those

who are regulated by the Sign Code is not sufficient

evidence that the regulators are granted unbridled discre-

tion. Absent evidence of government abuse, we are unwill-

ing to conclude that the Code operates as an unlawful

prior restraint. “[Wle think that this abuse [of the permit-

ting process] must be dealt with if and when a pattern of

unlawful favoritism appears, rather than by insisting

upon a degree of rigidity that is found in few legal ar-

rangements.” Chicago Park Dist., 534 U.S. at 325, 122

S.Ct. 775. See also S. Or. Barter Fair, 372 F.3d at 1139

(“Should abuse occur, it may be remedied adequately

through as-applied challenges like the Fair’s § 1983

claim.”).

The City’s permitting scheme includes standards that

“are reasonably specific and objective, and do not leave the

decision to the whim of the [permitting official].” Chicago

Park Dist., 534 U.S. at 324, 122 S.Ct. 775 (internal citation

and quotation marks omitted). Although the design review

criteria are somewhat elastic and require reasonable

discretion to be exercised by the permitting authority, this

alone does not make the Sign Code an unconstitutional

prior restraint. See Ward, 491 U.S. at 794, 109 S.Ct. 2746

(“While these standards are undoubtedly flexible, and the

officials implementing them will exercise considerable

discretion, perfect clarity and precise guidance have never

been required even of regulations that restrict expressive

activity.”).

A-37

VI. Vagueness

A government regulation may be unconstitutionally

vague for two reasons. First, the regulation may fail to

give persons of ordinary intelligence adequate notice of

what conduct is proscribed; second, it may permit or

authorize “arbitrary and discriminatory enforcement.” Hill

v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147

L.Ed.2d 597 (2000). “[T]hese vagueness concerns are more

acute when a law implicates First Amendment rights and,

therefore, vagueness scrutiny is more stringent.” Cal.

Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141, 1150

(9th Cir.2001).

Plaintiffs contend that the Sign Code is unconstitu-

tionally vague, but fail to point to specific provisions of the

Code that are suspect. They focus most of their energy

arguing that the Code does not notify the citizenry of what

conduct is prohibited. To support their claim, plaintiffs

again identify statements from City residents expressing

frustration with the City’s design review policy.

The Sign Code appears quite clearly to describe what

conduct is permitted in the City. The Code provides ex-

plicit sign size and type requirements. See, e.g., LOC

§§ 47.04.115, 47.08.300. For example, a business, like

G.K., that seeks to put up a pole sign is adequately aware,

through the text of the Code itself, that it generally may

not do so without an exemption (granted only in limited

circumstances), LOC § 47.10.410(D), or a variance, LOC

§ 47.12.500. The Code states which signs are exempt from

permitting. For example, a resident seeking to place a sign

on her property during elections knows that so long as the

sign is within certain dimensions, she may do so without a

permit. The Code offers a thorough and precise list of

A-38

definitions for the various types of signs. See LOC

§ 47.03.015. And the Code requires most parties to obtain

a permit prior to erecting a sign, thereby preventing

unexpected citations. Thus, “it is clear what the ordinance,

as a whole, prohibits.” Hill, 530 U.S. at 733, 120 S.Ct.

2480.

In addition to providing notice of what conduct is

punishable, the clarity of the Code’s proscriptions avoids

the fear of arbitrary and discriminatory enforcement. City

officials may not punish sign owners simply for displaying

a message with which they disagree — the sign must

violate one of the specific provisions of the Code. Similarly,

the City will punish those who allow temporary signs to

remain on their property more than five days following an

election (unless some other exemption applies). See LOC

§ 47.08.300(B\(1). City officials are to enforce the Code as

it is written and the City provides sufficient guidance in

the Code’s numerous sections to avoid “delegat[ing] basic

policy matters to policemen, judges, and juries for resolu-

tion on an ad hoc and subjective basis. . . .” Grayned v. City

of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33

L.Ed.2d 222 (1972).

With respect to the Code’s permitting process, which

we have already held is not an invalid prior restraint,

there is admittedly an element of subjectivity to the

determination of “compatibility.” LOC § 47.06.200(4).

However, this subjectivity, alone, does not render the Code

unconstitutionally vague. The City is not obligated to

provide numerical or otherwise technical definitions of the

bounds of compatibility. See Grayned, 408 U.S. at 110, 92

S.Ct. 2294 (“Condemned to the use of words, we can never

expect mathematical certainty from our language.”). Fur-

thermore, the impreciseness of compatibility is mitigated by

A-39

the clarity of the rest of the design review section directing

officials to determine compatibility with reference to form,

color, shape, size, etc. LOC § 47.06.200(4); see Gammoh v.

City of La Habra, 395 F.3d 1114, 1120 (9th Cir.2005)

(“[O]therwise imprecise terms may avoid vagueness

problems when used in combination with terms that

provide sufficient clarity.”).

Plaintiffs would have us invalidate the entire Code

because of the reasonable subjectivity of the design review

process. We will not do so. “Vagueness doctrine cannot be

understood in a manner that prohibits governments from

addressing problems that are difficult to define in objective

terms.” Jd. at 1121. See also Cal. Teachers Ass’n, 271 F.3d

at 1151 (“[E]ven when a law implicates First Amendment

rights, the constitution must tolerate a certain amount of

vagueness.”). The Sign Code is not unconstitutionally

vague.

The district court’s grant of summary judgment in

favor of the City is AFFIRMED.

B-1

APPENDIX B

2004 WL 817142 (D. Or.)

United States District Court, D. Oregon.

G.K., LTD. TRAVEL, an Oregon Corporation,

WH. Gillison, Ramsay Signs, Inc., an Oregon Corporation,

and Kathleen Kusudo, Plaintiffs,

CITY OF LAKE OSWEGO and Sandy Ingalls, Defendants.

No. 02-1147-KI.

March 29, 2004.

Douglas M. Bragg, Tualatin, Oregon, John F. Winston,

Sherwood, Oregon, Stephen F. Crew, T. Chad Plaster,

Ramis Crew Corrigan & Bachrach, LLP, Portland, Oregon,

for Plaintiffs.

Timothy J. Sercombe, Stuart M. Brown, Preston Gates

& Ellis, LLP, Portland, Oregon, for Defendants.

OPINION

KING, J.

Before the court are defendants’ motion for summary

judgment (# 38) and plaintiffs’ motion for partial summary

judgment (# 43). Ora] argument on these motions was held

on November 10, 2003. After oral argument, a change in

counsel for plaintiffs occurred. New counsel requested the

opportunity to file an amended reply brief. I granted

plaintiffs’ request and they filed an amended reply brief on

January 30, 2004. I also granted leave to defendants to file

a sur-reply brief, which was filed on February 11, 2004.

The motions were taken under advisement on March 9,

2004, following additional written arguments submitted

by the parties.

B-2

For the reasons set forth below, I grant in part and

deny in part both motions.

FACTS

Plaintiffs challenge actions taken by the City of Lake

Oswego and its former Code Enforcement Specialist,

Sandy Ingalls, regarding plaintiffs’ advertising on a pole

to their claims regarding how the City’s sign regulations

were applied to them, plaintiffs also bring facial chal-

lenges to the constitutionality of those regulations and

seek to have them stricken as unconstitutional.

I. The City’s Sign Code

On or about January 5, 1994, the City adopted Ordi-

nance No.2085. That ordinance repealed then-existing

regulations governing signs and replaced them with a new

comprehensive set of sign regulations which were codified

in Chapter 47 of the Lake Oswego Code (hereinafter, the

“Sign Code”). The City’s reason for adopting the Sign Code

was in part to cure constitutional defects in its then-

existing sign regulations. The Sign Code has since under-

gone four additional minor amendments.

Various sections of the Sign Code disallow pole signs,

with some exceptions. The 1994 version of the Sign Code

directed that nonconforming signs conform within five

years of the Sign Code’s effective date and required the

removal of pole signs by February 3, 1999, or sooner if a

new business or use necessitated an alteration. Thereafter,

the City sent notices to businesses and local associations and

held several public hearings on issues related to the Sign

Code and whether the Sign Code adequately advanced

B-3

business interests. Ultimately, the City Council extended

the time for compliance for nonconforming signs to May

21, 2004 (i.e., the date on which the “amortization period”

would end for nonconforming signs).

Following the filing of this case, the City adopted

Ordinance No. 2358, which implements an amendment to

Section 47.04.100 of the Sign Code. The amendment

removes the May 21, 2004, deadline for removing and

replacing all nonconforming signs in the City for all signs

except pole signs.

Il. The Pole Sign

A pole sign of approximately 40 square feet in area

was constructed in 1980 on property with an address of

15835 Boones Ferry Road, Lake Oswego, Oregon. The pole

sign was originally and is currently owned by plaintiff

Ramsay Signs, Inc. (“Ramsay”).

In 1980, the City’s sign regulations required a permit

from the City prior to construction of a pole sign. The sign

regulations at the time only allowed “ground signs” in the

industrial and commercial zoning districts. The sign at

issue in this case was a “ground sign” under the regula-

tions in effect at the time. Neither plaintiffs nor the City

has any record of a permit having been issued in 1980 for

the construction of the sign.

Ramsay began leasing the sign to Apollo Travel, Inc.

(“Apollo”), a travel agency, in 1980. Ramsay continued to

lease the pole sign to Apollo until 1996, when Apollo sold

its operation to Keller & Pinnell Travel, LLC, dba Jour-

neys! af Laie Oswego (“Journeys”). At that time, Ramsay

changed the content of the sign to reflect the new name of

B-4

the travel agency. The version of the Sign Code applicable

at the time Journeys purchased Apollo required the

removal of nonconforming pole signs by February 3, 1999,

or sooner if a new business or use necessitated an altera-

tion. The City, however, did not require the Journeys sign

to be removed or replaced.

In February 2001, plaintiff G.K., LTD. (“GK”) pur-

chased Journeys. GK also operates a travel agency at the

same location. Without modifying the structure of the sign,

Ramsay changed the copy content of the sign in early 2001

from “Journeys! of Lake Oswego, Formerly Apollo Travel”

to “G.K. Ltd Travel Groups Tours Cruises Complete Travel

Services Domestic & International.” Plaintiffs made this

modification without a permit.

Prior to GK’s purchase of Journeys, plaintiffs were

aware that the pole sign would have to be replaced with a

different type of sign at the end of the amortization period.

On or about April 27, 2001, defendant Ingalls, acting

as the Code Enforcement Specialist for the City, sent a

letter to plaintiffs regarding the pole sign. Ingalls in-

formed plaintiffs that the sign was nonconforming and

alerted plaintiffs that the sign was installed without a

permit.

On or about May 29, 2001, plaintiffs applied for a sign

permit and requested permission to retain the pole struc-

ture and the size of the existing sign. Ingalls, on behalf of

the City, denied the permit in June 2001.

On or about August 23, 2001, the City cited GK for

using a prohibited pole sign.

In October 2001, Ramsay applied for a variance to

retain the existing pole sign and to allow an oversized sign

B-5

(40 square feet instead of the 32 square-foot maximum).

The City’s Planning Director denied the variance applica-

tion on or about December 17, 2001.

Ramsay appealed the decision to the City’s Develop-

ment Review Commission. After a hearing on the appeal

on February 4, 2002, the Commission denied the variance

in an order dated March 4, 2002.

Ramsay then appealed to the City Council, which held

a public hearing on April 16, 2002. On May 14, 2002, the

City Council issued findings and conclusions and entered

an order affirming the Commission’s denial of the vari-

ance. Ramsay did not appeal these findings and conclu-

sions. GK did not present evidence or testimony in the

City Council proceeding.

This case was filed on August 23, 2002. The City has

halted enforcement of the Sign Code against plaintiffs

pending resolution of this case. The pole sign remains in

place and displays the advertisement for GK.

LEGAL STANDARDS

Summary judgment is appropriate when there is no

genuine issue as to any material fact and the moving party

is entitled to a judgment as a matter of law. Fed.R.Civ.P.

56(c). The initial burden is on the moving party to point

out the absence of any genuine issue of material fact. Once

the initial burden is satisfied, the burden shifts to the

opponent to demonstrate through the production of proba-

tive evidence that there remains an issue of fact to be

tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On

a motion for summary judgment, the evidence is viewed in

the light most favorable to the nonmoving party. Robi v.

B-6

Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied, 528 U.S.

375 (1999).

DISCUSSION

I. Nature of Plaintiffs’ Claims

In their First Amended Complaint, plaintiffs assert

seventeen claims, pursuant to 42 U.S.C. § 1983, related to

the City’s Sign Code. Defendants seek summary judgment

against all of plaintiffs’ claims. Plaintiffs seek summary

judgment on all of their claims except claims five, six,

seven, eleven, fifteen, and seventeen.

Claims one through four assert violations of the First

Amendment through unconstitutional regulation of

commercial speech as applied to plaintiffs. Specifically,

plaintiffs take the City to task for its enforcement of the

Sign Code against plaintiffs’ pole sign.

Plaintiffs also bring myriad facial constitutional

challenges against the Sign Code under the First Amend-

ment (based on the regulation of commercial and non-

commercial speech) in claims eight, nine, ten, eleven,

twelve, thirteen, fourteen, sixteen and seventeen.

In claim five, plaintiffs allege that they were denied

equal protection under the law because of selective en-

forcement of the Sign Code based on race.

In claims six and seven, plaintiffs assert that en-

forcement of the Sign Code has effected an illegal taking of

their property interests.

Finally, in claim fifteen, plaintiffs bring an equal

protectios: challenge against the Sign Code on the basis

B-7

that, on its face, it unconstitutionally discriminates

between similarly situated persons.

As is evident from plaintiffs’ claims, the primary

thrust of this case relates to plaintiffs’ First Amendment

challenges to the Sign Code. I first address plaintiffs’ facial

constitutional challenges to the Sign Code under the First

Amendment. I then discuss plaintiffs’ as-applied chal-

lenges to the Sign Code as it relates to regulating pole

signs. In the final section of this Opinion, I address the

remaining claims (i.e., claims five, six, seven, and fifteen)

and any unresolved issues.

Il. Facial Challenges to the Sign Code under the First

Amendment

A. Plaintiffs’ standing

Although defendants have not contested plaintiffs’

standing to challenge the constitutionality of the Sign

Code on its face, it is important to observe that prudential

standing rules are somewhat relaxed in the First Amend-

ment context. Normally, a party bringing a lawsuit must

show an actual or threatened injury resulting from the

alleged illegal action and may only assert a violation of its

own rights. In the context of the First Amendment, how-

ever, a third party can bring a facial challenge on the basis

that a law regulates speech based on content, R.A.V. v.

City of St. Paul, 505 U.S. 377, 381 (1992), or contains a

prior restraint of protected speech, City of Lakewood v.

Plain Dealer Pub. Co., 486 U.S. 750 (1988). Plaintiffs

assert facial challenges to the Sign Code under both of

these theories.

B-8

B. Are the challenged provisions of the Sign Code

content-neutral or content-based?

To determine whether government restrictions on

speech can be upheld as constitutional, the principal

inquiry is whether the restrictions are content-neutral or

content-based. Foti v. City of Menio Park, 146 F.3d 629,

636 (9th Cir.1998). In Ward v. Rock Against Racism, 491

U.S. 789, 791-92, reh’g denied, 492 U.S. 937 (1989), the

Supreme Court provided the following guidance for how to

determine whether a regulation is content-neutral or

content-based:

The principal inquiry in determining content

neutrality, in speech cases generally and in time,

place, or manner cases in particular, is whether

the government has adopted a regulation of

speech because of disagreement with the mes-

sage it conveys. The government’s purpose is the

controlling consideration. A regulation that

serves purposes unrelated to the content of ex-

pression is deemed content neutral, even if it has

an incidental effect on some speakers or mes-

sages but not others. Government regulation of

expressive activity is content neutral so long as it

is “justified without reference to the content of

the regulated speech.”

(Quoting Clark v. Cmty. for Creative Non-Violence, 468

U.S. 288, 293 (1984); other citations omitted; emphasis in

original); see also Madsen v. Women’s Health Ctr., Inc., 512

U.S. 753, 763 (1994) (“Our principal inquiry in determin-

ing .ontent neutrality is whether the government has

adopted a regulation of speech ‘without reference to the

content of the regulated speech.’... We thus look to the

government's purpose as the threshold consideration.”

(Citations omitted)).

B-9

In Foti, supra, the Ninth Circuit considered whether a

city ordinance regulating picketing, leafleting, and dis-

playing of signs on public property was content-neutral.

- The court stated: “‘As a general rule, laws that by their

terms distinguish favored speech from disfavored speech

on the basis of the ideas or views expressed are content

based.’” Foti, 146 F.3d at 636 (quoting Turner Broad. Sys.,

Inc. v. FC.C., 512 U.S. 622, 643, reh’g denied, 512 U.S.

1278 (1994)). When considering the exemptions to a ban

on signs on public property at issue in Foti, the court

concluded that the exemptions were content-based “be-

cause a law enforcement officer must read a sign’s mes-

sage to determine if the sign is exempted from the

ordinance” and “when ‘exceptions to the restriction on

noncommercial speech are based on content, the restric-

tion itself is based on content.’” Foti, 146 F.3d at 636

(quoting Nat’l Adver. Co. v. City of Orange, 861 F.2d 246,

249 (9th Cir.1988)). Applying this test, the Foti court

declared exemptions in the sign ordinance at issue for

“open house” real estate signs and safety, traffic, and

public informativnal signs to be content-based. Foti, 146

F.3d at 636. The court also cited favorably similar conclu-

sions in other Ninth Circuit cases, such as Desert Outdoor

Adver. v. City of Moreno Valley, 103 F.3d 814, 820 (1996),

cert.denied, 522 U.S. 912 (1997) (addressing exemptions

for signs such as official government notices and direc-

tional, warning, or informational signs), and Nat'l Adver.,

861 F2d ct 248 (addressing exemptions for signs such as

real estate signs). Id.

B-10

In arguing that certain provisions of the Sign Code

are content-based,’ plaintiffs rely heavily on the test set

forth in Foti (i.e., that if a sign’s message must be read to

determine its legality, the sign ordinance must then be

content-based). At the outset, I note that the Foti test only

makes sense when the government regulation at issue has

defined an acceptable or unacceptable sign based on the

message it is trying to convey (e.g., a sign that advertises

an open house). The test does not make sense when the

applicable government regulation is not based on a sign’s

message but is, instead, based on a sign’s appearance or

change in its appearance. As such, the fact that a law

enforcement officer has to examine a sign to determine its

legality is not always dispositive. For instance, the fact

that the applicability of certain provisions of the Sign Code

is dependent on whether a sign uses flashing lights or

whether a change in copy or appearance of a sign has

occurred does not mean that those provisions (or provi-

sions that define terms like “alter” or “change of copy”) are

content-based. Through these latter and similar provi-

sions, the City is not attempting to regulate the content of

' In their briefs, plaintiffs list the alleged “offending” (i.e ., content-

based) sections of the Sign Code. See Plaintiffs’ Amended Memorandum

in Support of Plaintiffs’ Motion for Partial Summary Judgment, pp. 11-

16, 24-25; see also Defendants’ Memorandum in Support of Defendants’

Motion for Summary Judgment, p. 31, n. 9; p. 33, n. 11; pp. 35, 38

(identifying and discussing plaintiffs’ alleged content-based provisions

of the Sign Code). A more concise and defensible list of challenged

provisions is provided by plaintiffs in one of their reply memoranda. See

Plaintiffs’ Reply Memorandum in Support of Motion for Partial

Summary Judgment, p. 10.

* This includes Section 47.04.100(1), which plaintiffs characterize

as content-based in their as-applied challenges to the Sign Code. That

section states:

(Continued on following page)

B-11

a sign or determine its message but is, instead, defining

triggering events such as when a grandfathered, non-

conforming sign must be brought up to code or removed.

Such a system is a reasonable means of protecting the

investment of current sign owners or users from newly-

imposed sign regulations.

Not only can the test articulated in Foti lead to an

overly simplistic approach to whether a regulation is

content-based, it can also detract from the more holistic

analysis that a court should apply when analyzing the

constitutionality of regulations that impact speech. As the

Supreme Court emphasized in Ward, supra, a court must

look at the purpose behind government regulation of

speech, especially when dealing with time, place, or

manner restrictions, as most of the Sign Code provisions

clearly are. With a few minor exceptions noted below, I

cannot discern any purpose or intent by the City to favor

or disfavor certain messages, content, or viewpoints

through the Sign Code provisions challenged by plaintiffs.

I now examine the few provisions of the Sign Code

that are arguably content-based.

A non-conforming sign in all zones other than the EC zone

as described and established by the Lake Oswego Zoning

Code may be maintained or undergo a change of copy with-

out complying with the requirements of this chapter, with

*Se exception that any change for a new business or use or

any changes in a wall sign which is painted on a structure

will comply with this chapter at such time as change in copy

or alteration occurs.

B-12

1. Exemptions to permit and fee requirements

for permanent signs

In Section 47.06.205 of the Sign Code, certain perma-

nent types of signs are exempted from fee, permit, or

application requirements, although they must still comply

with all other provisions and regulations of the Sign Code.

In particular, no fee, permit, or application is required for

“[plublic signs, signs for hospital or emergency services,

legal notices, railroad signs, and danger signs.” LOC

47.06.205(4). Plaintiffs argue that these provisions violate

the Foti test because an enforcement officer must read a

sign’s message to determine if it is subject to these provi-

sions.

The City offers a limiting construction of these provi-

sions to support a finding that they are not content-based.

See Vill. of Hoffman Estates v. Flipside, Hoffman Estates,

Inc., 455 U.S. 489, 494 n. 5, reh’g denied, 456 U.S. 950

(1982) (“In evaluating a facial challenge to a state law, a

federal court must ... consider any limiting construction

that a(n] ... enforcement agency has proffered.”); see also

Ouidoor Sys., Inc. v. City of Mesa, 997 F.2d 604, 611 (9th

Cir.1993) (the court has a duty “to interpret a statute, if

fairly possible, in a manner that renders it constitutionally

valid.”). Specifically, the City argues that “signs for hospi-

tal or emergency services” means signs owned by hospital

and emergency service providers. Likewise, “railroad

signs” means signs owned by railroads.

I find this construction to be reasonable and likewise

read “public signs” to mean signs placed by government

entities. Plaintiffs respond that such a construction stil]

renders the Sign Code provisions constitutionally suspect

B-13

because they are now viewpoint-based.* In the absence of

binding authority on point, I am reluctant to accept

plaintiffs’ argument and I refrain from declaring an

exemption from fee, permit, and application requirements

for government entities, railroads, and hospital and

emergency service providers to be content- or viewpoint-

based. I do note, however, that the Ninth Circuit in Foti,

supra, stated that it was “troubled by the wholesale

exemption for government speech” in the sign ordinance at

issue in that case. Foti, 146 F.3d at 637. The court, none-

theless, decided not to rule on the issue and affirmed the

district court’s finding that the exemption was not content-

based. Id. at 638.

Of course, even with the construction offered by the

City, there remains the issue of whether “legal notices”

and “danger signs” are content-based exemptions to the

fee, application, and permit provisions of the Sign Code.

Given Ninth Circuit precedent, it is difficult to conclude

otherwise. For instance, in Desert Outdoor Adver., 103 F.3d

at 820, the court declared exemptions in a sign ordinance

for “official notices” and “warning” signs to be content-

based and, ultimately, unconstitutional.

The other exemption applicable to permanent signs that

plaintiffs challenge is set forth at Section 47.06.205(10) of the

Sign Code. It exempts “no solicitation” signs (as permitted by

Section 34.16.945 of the Sign Code). As the City concedes,

this provision is also content-based.

* In making this assertion, and many of their other key arguments,

plaintiffs rely almost exclusively on two opinions from district courts

outside of the Ninth Circuit. See North Olmstead Chamber of Commerce

v. City of North Olmstead, 86 F.Supp.2d 755 (N.D.Ohio 2000); King

Enter., Inc. v. Thomas Township, 215 F.Supp.2d 891 (E.D.Mich.2002).

B-14

2. Regulation of temporary signs

In Section 47.08.300 of the Sign Code, certain tempo-

rary signs are allowed and exempted from fee, permit, or

application requirements, although they must still comply

with all other provisions and regulations of the Sign Code.

Section 47.08.300(B) of the Sign Code, entitled “Allowed

Signage,” sets forth which temporary signs are allowed in

residential zones, as well as which temporary signs are

allowed in commercial or industrial zones. Section

47.08.300(B)(1) states:

In any residential zone temporary signage shall

be allowed for each and every lot. This signage

shall not be restricted by content, but is usually

and customarily used to advertise real estate

sales, political or ideological positions, garage

sales, home construction or remodeling, etc. Sign-

age shall be allowed for each lot as follows:

a. Temporary signs not exceeding six

square feet, provided the signs are

erected not more than 90 days prior to

an election and removed within five

days following the election.

b. One temporary sign not exceeding

six square feet provided the sign is re-

moved within fifteen days from the

sale, lease or rental of the property or

within seven days of completion of any

construction or remodeling. An addi-

tional sign of the same size may be

erected if the property borders a second

street and the signs are not visible si-

multaneously. On tracts of land of more

than 2 acres in residential zones the

sign area may be increased to 32 square

B-15

feet. In no case shall the sign or signs

be erected for more than twelve (12)

months.

c. One temporary sign not exceeding

four square feet in area which is

erected for a maximum of eight days in

any calendar month and is removed by

sunset on any day it is erected.

d. Temporary signs erected within a

building which do not obstruct more

than 10 percent of any individual win-

dow surface.

(Emphasis added).

Plaintiffs challenge Sections 47.08.300(B)(1)(a) and (b)

on the basis that they restrict temporary signs connected

to elections and to the sale, lease, rental, construction, or

remodeling of property. Likewise, they challenge similar

provisions in Section 47.08.300(B\(2) applicable to com-

mercial or industrial zones. For instance, plaintiffs argue

that the provisions restrict the display of temporary

election signs in residential, commercial, and industrial

zones both in terms of sign size and the time within which

such messages may be displayed. Plaintiffs assert that

such restrictions could only be applied once an enforce-

ment officer ascertains that the signs pertain to election

issues, thus demonstrating that the restrictions are

content-based.

The City responds that the provisions at issue do not

limit themselves to election signs or signs about property

leasing, remodeling, etc. Instead, the City characterizes

the provisions as allowing for additional signage, regard-

less of content, during certain time periods or when

B-16

property is put to a particular use. For instance, during an

election season, or while a contractor is remodeling a

house, the relaxed signage rules apply regardless of

whether a sign suggests anything about elections or

advertises a remodeling contractor’s business. Plaintiffs

characterize this interpretation as “bizarre,” but it is a fair

reading of the provisions and demonstrates the lengths to

which the City has gone to regulate signs without doing so

on the basis of content.

The City defends one other temporary sign provision,

in the context of commercial or industrial zones, on the

same basis. That provision states:

Temporary non-illuminated signs not exceeding

16 square feet for charitable fundraising events

placed by nonprofit and charitable organizations.

Such signs shall not be placed more than seven

days prior to the event and must be removed

within two days following the event. No more

than three such events shall be advertised in this

manner per lot per year.

LOC 47.08.305(B)(2)(C)) (emphasis added).

Unfortunately for the City, it did not follow the same

model with this provision as it did with the other portions

of Section 47.08.305. In this instance, the City has made a

special allowance for increased signage “for charitable

fundraising events,” thus making a special exception for

certain sign content. In other words, there is no way to

read this provision as allowing any type of content on

signs up to 16 square feet around the time a charitable

fundraising event is taking place.

B-17

3 Construction and design standards for

permanent signs

In reviewing plaintiffs’ arguments, the only other

provision of the Sign Code that strikes me as potentially

content-based is Section 47.06.200(5): “Copy on signs

visible from streets shall be designed to reduce distrac-

tions to motorists. Signs may be reviewed for clarity and

readability.”

Defendants offer a construction of the provision to

prevent it from being construed as content-based. Namely,

they argue that the provision can be read “to refer to the

visibility of the sign not the intelligibility of its message.”

Defendants’ Memorandum In Opposition to Plaintiffs’

Motion for Partial Summary Judgment, p. 14. Although it

is a close call, I find defendants’ construction to be fair and

conclude that the provision does not open the door for the

City to determine a sign’s message. The latitude provided

to City officials by the provision is limited to ensuring that

the appearance of a sign does not provide a distraction to

drivers.

C. The constitutionality of the content-based pro-

visions

Now that I have identified which provisions of the

Sign Code are content-based, the issue becomes whether

they are constitutional. To begin this analysis, I first

summarize the provisions of the Sign Code that I have

found to be content-based:

e The exemption from fee, permit, and appli-

cation requirements for permanent signs

that are “danger signs,” “official notices,”

and “no solicitation” signs.

B-18

° The allowance of temporary signs in com-

mercial or industrial zones, without a per-

mit, “for charitable fundraising events.”

Content-based sign regulations on non-commercial speech

are presumptively unconstitutional. Foti, 146 F.3d at 637

(citing R.A.V, 505 U.S. at 382). To pass constitutional

muster, they must survive strict scrutiny. Boos v. Barry,

485 U.S. 312, 321-22 (1988). Strict scrutiny requires the

government to show that “the regulation is necessary to

serve a compelling state interest and that it is narrowly

drawn to achieve that end.” Jd. Also, the regulation must

use the least restrictive means to further the articulated

compelling interest. Foti, 146 F.3d at 636 (citing Sable

Communs. of California v. F.C.C., 492 U.S. 115, 126

(1989)).

Because the City, in its written and oral arguments,

maintained that the Sign Code was a content-neutral

ordinance, it did not provide argument or evidence to

Support a finding that the specific provisions identified

above could satisfy strict scrutiny. Regardless, with the

possible exception of “danger signs,” I find it doubtful that

the City could demonstrate that the content-based provi-

sions of the Sign Code meet such a high standard. As such,

I find the provisions to be unconstitutional.

' Such a de minimus portion of the Sign Code, however,

does not require that the Sign Code be voided in toto, as

plaintiffs request. Instead, the offending provisions shall

be severed,* as allowed by Section 10.02.050 of the Sign

Code and state law under ORS 174.040, which provides:

* As noted at the end of the Opinion, the parties shall have three

weeks to submit a proposed form of judgment. As part of that process,

(Continued on following page)

B-19

It shall be considered that it is the legislative in-

tent, in the enactment of any statute, that if any

part of the statute is held unconstitutional, the

remaining parts shal] remain in force unless:

(1) The statute provides otherwise;

(2) The remaining parts are so essentially

and inseparably connected with and

dependent upon the unconstitutional

part that it is apparent that the re-

maining parts would not have been en-

acted without the unconstitutional part,

(3) The remaining parts, standing alone,

are incomplete and incapable of being

executed in accordance with the legisla-

tive intent.

The stricken portions of the Sign Code are minor exemp-

tions or exceptions to major portions of the Sign Code (e.g.,

regulations governing temporary signs). The remaining

parts of the Sign Code are not dependent on the stricken

portions and can be executed effectively without them.

These conclusions are further bolstered by the fact that, as

explained below, I find no other constitutional infirmities

in the Sign Code that warrant the severance of additional

provisions.

the City is welcome to propose alternatives to severing the offending

provisions of the Sign Code, such as textual modifications that resolve

the constitutional infirmities identified in this Opinion. For instance, it

is plausible that the City could re-write the current exemption applica-

ble to charitable fundraising events by following the non-content-based

approach it uses in the context of temporary signs during an election

season.

B-20

D. The constitutionality of the content-neutral

provisions

In the event that the government’s restriction on

speech is determined to be content-neutral, the govern-

ment may permissibly impose reasonable time, place, and

manner requirements on speech. Such requirements are

valid if the government. can show that (1) they are nar-

rowly tailored to serve a substantial governmental inter-

est; and (2) they leave open ample alternative channels for

communication of the information. Ward, 491 U.S. at 791.

Under this time, place, and manner analysis, a narrowly

tailored regulation does not have to eliminate all less

restrictive alternatives, but must not burden substantially

more speech than is necessary to further the government’s

legitimate interest. Id. at 799.

The City argues that these standards are satisfied,

both for the specific Sign Code provisions challenged by

plaintiffs and for the Sign Code as a whole. In support of

this argum

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